COURT FILE NO.: 18-241AP
DATE: 2019-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
M. Fox, for the Crown
Respondent
- and -
CHEMSI KRICHEL
Self-Represented
Appellant
P. Boushy, amicus curiae
HEARD: September 17, 2019
A.J. Goodman J.:
REASONS FOR JUDGMENT
(On Appeal from the Honourable Justice M. Agro)
[1] This is an appeal brought by the appellant against conviction imposed on April 24, 2018 by Agro J. of the Ontario Court of Justice at Hamilton, Ontario.
[2] Following a one-day trial, the appellant, Chemsi Krichel (“Krichel”) was convicted on a charge of intent to harass K.K. by making repeated emails to her, contrary to s. 372(3) of the Criminal Code. On May 28, 2018 the trial judge imposed a suspended sentence and 24-month period of probation.
[3] In the Notice of Appeal and written materials, the appellant raised several grounds of appeal against conviction.
[4] This appeal was conducted as a bilingual hearing. The appellant represented himself both at trial and during the course of submissions on this appeal.
[5] Mr. Peter Boushy was appointed amicus curiae for this appeal.
Evidence at trial:
[6] Prior to trial, the Crown brought an order for appointment of counsel to cross-examine the complainant pursuant to section 486.3 of the Criminal Code. Mr. Asgar Manek cross-examined the complainant on behalf of the appellant.
[7] The appellant and the victim, K.K., are former domestic partners. They were married in 2001 and separated in January 2016. The appellant and the victim have two children together.
[8] The complainant testified that after their separation, the appellant started exhibiting stalking behaviour by parking his car in front of her building and following her when she was shopping. K.K. also testified that the appellant would text and call her, cursing her. The victim testified that she told the appellant to stop contacting her.
[9] On January 30, 2017, K.K. called the police and officers Wall and Herron responded. K.K. provided the police with her complaint and information.
[10] Officer Herron called the appellant and formally cautioned him. She informed the appellant that he was not allowed to have any communication in any form whatsoever with the victim and if he did, it could result in criminal charges. The appellant testified that he asked Officer Herron if emails about immigration were okay. Officer Herron’s evidence was that she did not have a conversation with the appellant about emails or immigration. Officer Herron did not have a specific recollection about any discussions regarding emails.
[11] The appellant continued to email K.K. from January 27, 2017 until March 8, 2017. For example, in an email dated February 14, the appellant wrote to the victim “In case I am arrested, you have to continue to help your mother, she’s very sick. Please notify my brother because he’s not aware of anything. Thank you. “The complainant testified that she understood that email to be a message to put pressure on her and blame her for calling the police. The complainant did not respond to any of the emails. The emails made the victim feel frustrated and she found them annoying.
[12] The appellant testified in his own defence. While he understands English, his first language is French. His capacity in English is limited. The appellant admitted to sending the emails and stated the he was trying to “shake my wife conscience” and “to make her conscience work”. Throughout the appellant’s evidence in-chief, cross-examination and closing submissions he repeatedly stated that he was a good husband and father and discussed their separation proceedings.
[13] The appellant disputed any caution from the police officer regarding the sending of emails. He acknowledged that he was informed not to see or call the complainant.
[14] The trial judge rejected the appellant’s evidence that he believed he had permission to email the victim.
Positions of the Parties:
[15] The appellant submits that he is “completely innocent from the allegations my wife accused me”. The appellant’s focus during this hearing was on the issue of his ex-wife’s mendacity and her underlying motivation to testify. His arguments all but centered on the dynamics of the relationship and impugning the motivation of K.K. to testify and provide false information. In this regard, the appeal record is replete with background information, audio recordings and other materials related to the family law proceedings. Unfortunately, much, if not all of what the appellant submits is neither relevant nor material to this appeal.
[16] Mr. Boushy, as amicus, advanced several issues for the Court’s attention. In short, Mr. Boushy submits that the learned trial judge committed several errors. She did not apply the requisite test to determine the appellant’s intent for this offence. More importantly, the trial judge failed to fully address the critical issue of R. v. D. (W.), as required in this case on the crucial aspects of the evidence. The appellant submits that there was an error of law or mixed law and fact, and that the verdict was unreasonable.
[17] Mr. Fox, for the Crown, submits the conviction was reasonable, supported by the evidence and free from legal error. There was no miscarriage of justice. The only real issue at the trial was whether the accused had the intent to harass the victim. The appellant testified that he sent the emails that formed the basis of this offence. As such, the trial judge appropriately found that the actus reus had been proven beyond a reasonable doubt. Furthermore, there was clear evidence from the victim that she was harassed by the emails. It was open to the trial judge to reach the verdict she did on the evidence presented at trial.
[18] The Crown says that this Court is limited to reviewing the findings of fact to determine whether there are clear and manifest errors on the record. The duty of an appellate court is limited to determining whether the verdict is one that could reasonably have been rendered. The appellate court is entitled to review the evidence but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusions. The Crown submits that the verdict was reasonable.
Legal Principles:
[19] Pursuant to s. 686(1)(a) of the Criminal Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence, (b) there was a wrong decision of law or (c) on any ground where there was a miscarriage of justice. It is settled law that when considering unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, an appellate court is not entitled to re-try the case and substitute its view of the evidence.
[20] The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have convicted the respondent. Rather, the court must thoroughly re-examine and to an extent at least, conduct a limited re-weighing and consider the effect of the evidence: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168.
[21] Appellate courts may only interfere with verdicts if they can clearly articulate the basis upon which they conclude that the verdict is “inconsistent with the requirements of a judicial appreciation of the evidence.” Further, in deciding whether or not the trier of fact has exceeded the bounds of reasonableness in the verdict that was reached, an appellate court should show “great deference” to findings of credibility made at trial.
[22] The test for demonstrating an unreasonable verdict is an exacting one. To succeed, the appellant must demonstrate that the verdict is one that no judge or jury, properly instructed, could reasonably have rendered in the circumstances. A verdict may also be found unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the trial judge in support of the finding, or is shown to be incompatible with the evidence that has not otherwise been contradicted or rejected by the trial judge.
[23] An appeal court ought to afford deference to findings of fact made by a trial judge who has had the opportunity to see the witnesses and assess their credibility. An appellate review takes the facts as found by the trial judge and upon a limited review can reject those findings only where it can be shown that the trial judge committed a palpable and overriding error, or made findings of fact that are clearly wrong, unreasonable and unsupported by the evidence.
[24] An appellate court’s purpose of re-examining and re-weighing the evidence is not to determine whether the appellate court agrees with the trial judge’s verdict, but rather, to determine whether the trial judge’s verdict is reasonable and can be supported by the evidence.
Introduction of Fresh evidence:
[25] The appellant sought to introduce a series of letters, documents and audio recordings a fresh evidence in order to support his position on this appeal.
[26] The requisite test is found in the leading case of R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C. R. 759 at p. 11-12:
(1) the evidence should not be admitted if, by due diligence, it could have been adduced at trial;
(2) the evidence must be relevant in that it bears upon a decisive or potentially decisive issue;
(3) the evidence must be credible in that it is reasonably capable of belief; and
(4) the evidence must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[27] Canadian appellate courts have recognized that the Palmer criteria should not be applied mechanically.
[28] That being said, even in the context of an appeal against a conviction in a traditional adversarial criminal case, I agree with the Crown that none of the documents submitted on this appeal can pass the threshold to be admitted as fresh evidence. Both Mr. Fox and Mr. Boushy agree that the fresh evidence application has no merit. All of the documents or other materials furnished by the appellant were available at the trial as many of the documents were directly referenced by Mr. Manek or the appellant at trial. In any event, the documents are irrelevant to the appeal and the legal or factual issues that I must determine. None of the documents sought to be tendered would have impacted the results of the trial or address the substantive issues on appeal. The fresh evidence application was dismissed.
Application of the Legal Principles to this Case:
[29] From the Notice of Appeal and materials filed, the appellant conceded that the sole issue is focused on the conviction and not sentence. Further, in his materials filed, the appellant raised the issue of ineffective assistance of counsel. However, after full submissions from both the Crown and amicus, the appellant conceded the issue and this ground of appeal was abandoned.
A) Specific intent offence:
[30] Mr. Boushy submits that this offence is one of specific intent. The charge reads: “that between the 30th day of January 2017 and 8th day of March, 2017 at the City of Hamilton...did without lawful excuse and with intent to harass ‘K.K.’, make or cause to make repeated emails to her, contrary to s. 372(3) of the Criminal Code.
[31] From the language of the charge, I agree with Mr. Boushy that the Crown must prove the specific intent of an accused in order to satisfy the mens rea element of this offence.
B) Application of W. (D.) principles and Unreasonable Verdict:
[32] From my reading of the transcripts, it is apparent that the appellant had some considerable difficulty in representing himself due to his inadequacy in the English language and being a lay person. That is made clear to me when considering his abbreviated or aborted cross-examination of Officer Herron on the relevant evidence and during his uninformed and limited submissions regarding sentence.
[33] The seminal case of R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada laid out the framework on the issue of credibility in the appropriate case. Succinctly, if the trier of fact believes the evidence of an accused, he or she must acquit; even if he or she do not believe the evidence of the accused or the defence, but are left in a reasonable doubt, it must result in an acquittal; and even if the trial judge is not left in doubt by the accused or defence evidence, they must ask whether on the basis of the totality of the evidence which the trial judge does accept, he or she are convinced beyond a reasonable doubt of the accused’s guilt.
[34] It is trite law that a trial judge is entitled to believe all, some or none of a witness’ evidence, and to afford different weight to different parts of the evidence that are accepted. The trial judge is best positioned to assess credibility, having heard all of the evidence, how it was said, and the submissions of counsel. Such findings “are the paradigm case for deference.”
[35] Further, it is not an error where a trial judge fails to specifically articulate the test in W. (D.), as long as the principles are applied in each case where warranted.
[36] At page 88 of the transcript, Officer Herron testified that:
A. So the reason for my phone call was to talk to the accused and formally caution him in terms of telling him that he was not allowed to have any communication in any form whatsoever with the victim and to not go near her residence or her employer or her - where the children go to school. I made that very clear that that was not allowed, otherwise that would result in any possible charges if he continued that activity.
Q. And can you advise us of the, I guess the manner of the caution you provided?
A. What do you mean, sorry?
Q. Do you remember specifically what you said?
A. I told him that he was not allowed to talk to her in any way, shape or form, either directly or indirectly.
Q. Okay. And did you explain to him what directly
or indirectly means?
A. Yeah, that that means no, no phone calls or text messages or no emails.
Q. Do you have any memory of a specific conversation with the accused about emails?
A. I don't.
[37] At pages 105 and 106, the appellant responded to the judge’s inquires:
THE COURT: What did she tell you about sending text or emails or phoning your wife? Did she say anything to you about that?
A. She talked no communication, but I remember vividly, Your Honour, I said I have email, important email to send her regarding my mother-in-law, that's - and I understood that I - she agreed, she says, okay, for those one. That's what I understood and that's the reason why I, I talked about them during the investigation. And Your Honour, the way she accused me using CAS and so on, everything is false and I can prove it …
THE COURT: Sir ....
A .... to get my kids.
THE COURT: When you had the discussion with Officer Herron, what did you understand her to tell you? What did you know that you could do or not do?
A. I was - I just - I listened to what she said and I was surprised what's happening to me.
THE COURT: And what did you understand she told you about what you could do and could not do about contacting your wife?
A. We had very short discussion, it was very short, you know.
[38] At pages 119 and 120, the appellant testified:
THE COURT: Sir, please answer the question. You were asked, during that period of time, you knew that your wife did not want any contact from you.
A. Yeah, I know - I know that I was called by the police, no contact.
THE COURT: Did you know that she wanted no contact from you?
A. I just - I said the police told me there was no contact, there should be no contact and I didn't have no contact except the emails, just like what I said before. I sent those emails because it was important for my mother-in-law.
THE COURT: Well when the police told you there was not to be any contact, did you understand that to mean that your wife did not want you to contact her?
A. Yeah, I understand that. There was no contact, I didn't have no contact with her except the email that I understood it was permissible for me to, to send it to her.
Q. Okay. And sir, I’m going to suggest to you that you knew these emails would upset her and annoy her and you sent them anyway?
A. No, I didn't know that. No, I didn't know that because, because even the emails with her sisters and so on, we talked about it and that's, that's the way I showed - I gave her [indiscernible].
[39] While the trial referred to the W. (D.) test at p. 129 of the transcripts, and asked the appropriate question of the Crown attorney as referenced at p. 130, “Well what about his evidence demonstrates that he was not to have contact? The gist of his testimony was, "the officer told me no contact, no telephone, no text, no emails, but he thought he had permission because he says the officer told him it would probably be okay to send emails regarding the immigration issue involving the complainant's mom. So that was the thrust of his evidence. Was there anything else in his evidence though that would cause me to totally disbelieve him on that?”
[40] It is settled law that a trial judge does not have to offer any special words or incantation of the W.(D.) test. In some cases, an assessment of credibility may not require adoption of the three distinct steps suggested by W.(D). Clearly, deference must be afforded to the trial judge as he or she is in a unique position to assess the credibility of witnesses.
[41] What is crucial, however, is the requirement that a trial judge explain their reasons on credibility and reasonable doubt in a way that permits meaningful appellate review: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621. This is especially crucial where an accused testifies and gives exculpatory testimony.
[42] The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration: R. v. Vuradin (2013), 2013 SCC 38, 298 C.C.C. (3d) 139 (S.C.C.).
[43] Having asked the appropriate question, I am persuaded that in the ultimate analysis, and considering the reasons as a whole, the learned trial judge failed to address the second and third prongs of the W. (D.) test as it applied to the requisite intent and reasonable doubt.
[44] At the first stage of the test, the trial judge clearly rejected the appellant’s evidence. That leads to the conclusion that the appellant’s evidence failed to raise a reasonable doubt. However, it is clear from the jurisprudence that an outright rejection of an accused’s testimony is not proof of guilt beyond a reasonable doubt. That may tend to shift the burden of proof onto an accused.
[45] While acknowledging that the principle focus on appeal was on the issue of fabrication and Vetrovic witnesses, in the case of R. v. MacIsaac 2017 O.J. No 1027 at para. 47, the Court of Appeal had occasion to opine on the issue:
The trial judge erred in the manner in which he approached this evidence. It was open to the trial judge to disbelieve the appellant's statements as implausible and incapable of raising a reasonable doubt. However, without evidence of fabrication, the trial judge could not infer guilt from mere disbelief: (citations omitted). See also R. v. St. Pierre, 2017 O.J. No. 1480 (C.A.).
[46] The issue of the warning provided by Officer Herron about the impugned emails was a key component of this case. At p. 139, the trial judge stated:
.. She testified that she told the accused that his wife wanted no contact with him and gave him a verbal warning not to have contact, direct or indirect, by any means, including telephone, text or email and warned the accused that he was in jeopardy of arrest and prosecution if that conduct continued. The accused acknowledged receiving that warning. (emphasis added).
[47] The trial judge averted to the appellant’s overall acknowledgment of receiving that warning from Officer Herron, which, on its face, is inclusive of emails. While it is true that the appellant testified and accepted having received a warning from the officer, he neither agreed nor acknowledged that it applied to any purported email messages to be sent by him to the complainant.
[48] At p. 140, on the issue of emails, the trial judge also stated:
Constable Herron had no recollection of giving any such permission for qualified contact and stated that she would have recorded a notation to that effect had she done so.
[49] Constable Herron testified that if the accused had any questions, she would have noted it. However, there was neither a question posed nor evidence from the officer that giving of “such permission” with regards to emails would have ever been recorded by her. With respect, the trial judge misapprehended the evidence on that crucial issue that formed part of her ultimate conclusion.
[50] While there was evidence of a general overriding caution rendered by the officer to the appellant to not contact the complainant, either directly or indirectly, given the accused’s testimony and the responses from the officer on this specific issue regarding emails, the essential part of the case and credibility findings required a full analysis in accordance with W.(D).
[51] The trial judge accepted the evidence of the complainant and found her to be a credible witness. However, the trial judge does not make any findings of credibility regarding Officer Herron on the specific issue of the emails and discussions held with the appellant.
[52] I agree with the appellant that the trial judge drew an inference or made a finding of fact essential to the verdict that is equivocal and relied on by her in support of the finding or is shown to be incompatible with the accused’s evidence. It seems apparent that the appellant had difficulty with the English language with his limited questioning of the officer on this important issue.
[53] Having rejected the appellant’s evidence; it was incumbent on the trial judge to address the second and third prongs of W. (D.) and why she was not left with a reasonable doubt on the specific issue of any warning about email messages that may have been provided to the appellant.
Conclusion:
[54] For all the aforementioned reasons, the learned trial judge misapprehended the evidence regarding the subject of emails. This in turn lead to an overriding or palpable error in regard to the application of the second and third prongs of W. (D.). The combination of these errors was germane to the trial judge’s ultimate conclusion.
[55] The appeal is allowed, the conviction is set aside, and the matter is remitted back to the Ontario Court of Justice for a new trial.
[56] I am grateful for the assistance provided by Mr. Boushy as amicus.
A.J. Goodman, J.
Released: October 1, 2019
COURT FILE NO.: 18-241AP
DATE: 2019-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
CHEMSI KRICHEL
Appellant
REASONS FOR JUDGMENT
(On Appeal from the Honourable
Justice M. Agro)
Released: October 1, 2019