COURT FILE NO.: 45/19 DATE: 2020 06 05 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN – and – Daniel Miller
Arish Khoorshed, for the Crown Myles Anevich and Melanie J. Webb for the Appellant
HEARD: June 4, 2020
Conlan J.
REASONS FOR DECISION
I. Introduction
[1] This is a Summary Conviction Appeal brought by Daniel Miller (“Miller”).
The Proceeding in the Ontario Court of Justice
[2] In the Ontario Court of Justice sitting in Burlington, on March 8, March 9, October 15, October 16, 2018, and March 28, 2019, Miller was tried on charges of mischief to property under $5000.00 [section 430(4) of the Criminal Code], simple or common assault (section 266 of the Criminal Code), and breach of undertaking [section 145(5.1) of the Criminal Code). Three charges in total, in two Informations. The mischief to property and assault offences stemmed from a single transaction that occurred in Milton, Ontario on January 23, 2017, and the breach of undertaking occurred later on.
[3] On March 28, 2019, in oral reasons for judgment delivered by the trial Judge, Miller was found guilty on all counts. The mischief to property matter was stayed. Convictions were registered on the assault and breach of undertaking charges.
[4] The Crown called several witnesses at trial, including the victim of the offences, Irina Miller (“Irina”), the former wife of Miller. Miller testified in his own defence.
[5] Miller did not have retained counsel assisting him at trial, however, a lawyer appointed under section 486.3 of the Criminal Code was present and assisted with cross-examining the complainant on the first two days of the trial, March 8 and 9, 2018.
[6] It should be noted that the trial did not proceed smoothly. It went beyond its anticipated length. Further, although Miller originally entered a guilty plea to the breach of undertaking charge at the commencement of the trial on March 8, 2018, that guilty plea was later struck mid-trial.
The Appeal
[7] This is not a sentence appeal; only the convictions registered on the assault and breach of undertaking charges are being appealed by Miller. There are three arguments advanced by his counsel: (i) that the trial Judge failed in her duty to assist the self-represented Miller, (ii) that the reasons for judgment are insufficient, and (iii) that the trial Judge misapprehended the evidence.
[8] On the first ground of appeal, the written submissions advanced on behalf of Miller include an allegation that the trial Judge failed to raise with Miller the prospect of a violation of his right to be tried within a reasonable time under section 11(b) of the Charter.
[9] On the second ground of appeal, the written submissions advanced on behalf of Miller include an allegation that the trial Judge failed to engage in any form of W(D) analysis. There is also an argument that the trial Judge failed to deal at all with an essential element of the mischief to property offence, namely, the ownership of the property (a kitchen plate).
[10] On the third ground of appeal, the written submissions advanced on behalf of Miller include an allegation that the trial Judge misstated the evidence surrounding an audio recording of Miller speaking with Irina on the telephone on February 14, 2017 and, in addition, failed to consider some of the exhibit evidence at trial (photographs) pertaining to both the mischief to property and the assault charges.
[11] The remedy sought by Miller is an acquittal, or alternatively, a new trial.
The Crown’s Response
[12] The Crown asks that the appeal be dismissed. On the major issue of whether the trial Judge adequately assisted Miller, the Crown submits that the trial Judge “frequently provided guidance and explanation to the Appellant to ensure he had a fair trial”, and numerous examples are provided (paragraph 8 of the Crown’s factum). The Crown disputes that the trial Judge had any obligation to raise, on her own, the potential 11(b) Charter issue, in the particular circumstances of this case.
The Standard of Review and the Basic Legal Principles
[13] Miller has the burden of proof. He must persuade this Court that there is a reason to interfere with what occurred in the Court below.
[14] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.
[15] Factual findings made by the trial Judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. After all, an appeal is not a retrial. R. v. Doyle, at paragraph 6.
II. Analysis
[16] For the reasons that follow, after thorough reflection, and despite the able submissions of Mr. Anevich, I have determined that the appeal must be dismissed.
Alleged Failure to Adequately Assist the Self-Represented Accused at Trial
The Legal Principles
[17] This is the “core” of the appeal, as stated by Mr. Anevich during his oral submissions on behalf of Miller.
[18] I agree with these points made by Mr. Anevich at paragraphs 60 and 61 of the factum filed on behalf of Miller and which were stressed by Mr. Anevich during his oral submissions: (i) the basic requirement of a trial judge presiding over a hearing with a self-represented accused is to ensure that the accused receives a fair trial; (ii) where there is a finding that the trial was unfair and a miscarriage of justice occurred, that would be a justification for granting an appeal and overturning a conviction without regard for consideration of the curative proviso; (iii) this Court’s focus at the appellate stage is whether, collectively, the alleged failures to adequately assist Miller resulted in a miscarriage of justice; and (iv) in addressing that focussed enquiry, this Court should consider all of the circumstances of the case including the sophistication of Miller, the seriousness of the offences, and the nature of the defence. R. v. Hasanov, 2019 ONSC 6959 (S.C.J.), at paragraphs 11 and 32; R. v. Richards, 2017 ONCA 424, at paragraphs 110 and 124; and R. v. Breton, 2018 ONCA 753, at paragraph 14.
The Law as Applied to our Facts
[19] I would not give effect to this ground of appeal. Overall, I have not been persuaded that Miller’s trial was unfair. I conclude that there was no miscarriage of justice.
[20] First, let us examine the record in terms of the sophistication of Miller. There is no doubt that he was not a sophisticated person. The information before the trial Judge, uncontradicted, included that Miller did not complete high school, had a comprehension level of grade 9 or less, and had been diagnosed with attention deficit disorder and dyslexia (paragraph 67 of the factum filed on behalf of Miller).
[21] That is not the whole picture, however, or a balanced one. Miller was not a neophyte when it came to involvement with the criminal justice system (trial transcript, March 8, 2018, pages 3-4). He knew that he had the choice to share some of his evidence with the Crown in order to plea bargain (same reference, page 4, lines 22-28). He was assisted by counsel during what was surely one of the most important stages of the trial, the cross-examination of the complainant. On his own accord, he offered up legal terminology to the trial Judge, like “suspended sentence and probation”, and had no trepidation in asking for clarification of other legal terms that he was not certain about, like “summarily” in terms of the Crown’s election on the breach of undertaking charge (same reference, page 8, line 15 and page 10, lines 22-23).
[22] I have chosen these examples with some deliberation, as they all come from the first ten pages of transcript on the first day of the trial; as such they informed the trial Judge’s first impression of the accused. Having read every page of every trial transcript filed, I have seen nothing that would have served to alter that first impression, which undoubtedly was that Miller was without retained counsel and somewhere in the middle of the spectrum of sophistication when it comes to a self-represented accused – that is, not an ignoramus but also not well-informed.
[23] Let us next examine the seriousness of the offences: mischief to property by damaging a plate, domestic assault by pushing and choking Irina, and breach of undertaking by communicating with Irina. In my view, the mischief to property allegation was relatively minor. The breach of undertaking allegation was also relatively minor, particularly when one considers the content of the communications. The assault charge was serious.
[24] Let us next examine the nature of the defence. Miller offered a very simple and straightforward defence to the mischief charge – the plate broke because Irina smacked it out of his hand (trial transcript, October 16, 2018, page 68). The defence on the assault charge was equally uncomplicated – he didn’t do it. He did not push her. He did not choke her. She was being aggressive. The most that he did was to hold her back with his hand (same reference, page 70).
[25] Finally, in terms of other circumstances of the case generally, let us take a sober step back and consider what this case really was. Despite the length of the trial, and the awkwardness of going down the rabbit hole of a voir dire to determine the admissibility of statements made by Miller that had previously been agreed to as being voluntary and hence admissible, the proceeding was about as basic as one could find in any criminal court. After the defence evidence, the breach of undertaking charge was a certain finding of guilt. The mischief to property charge depended on an assessment of credibility of the witnesses, almost exclusively Irina and Miller. And the same for the assault charge.
[26] Given this landscape, I respectfully disagree with any suggestion that the trial Judge ought to have considered appointing amicus curiae, and/or granted an adjournment for the purpose of retaining counsel when asked for by Miller on October 16, 2018, and/or explained certain terms to Miller like “KGB statement”, and/or explained further to Miller the voir dire process and its purpose and the meanings of voluntariness and operating mind, and/or explained to Miller the concept of expert evidence as it pertains to the operating mind criterion of the voluntariness assessment, and/or raised with Miller section 11(b) of the Charter, all items of which were commented on by Mr. Anevich during his oral submissions on behalf of Miller.
[27] This Court needs to say more about two of these items – the voir dire and the section 11(b) Charter issue.
[28] On the former, one has to fairly review the trial transcript, October 15, 2018, starting at page 4. Despite Miller having previously committed to his out-of-court statements being admissible, the Crown and the Court agreed to embark upon a hearing to determine admissibility. The reason for the hearing was explicitly explained to Miller by the trial Judge – because he had alleged that he was under the influence of medication when he gave the statements in question. The meaning of voluntariness was also explicitly explained to Miller by the trial Judge, including but not limited to the requirement of an operating mind. And it is clear that Miller understood the reference to “operating mind” because he immediately uttered the words “no, I didn’t though” (page 5, line 8), signalling that he did not have an operating mind. There was no failure by the trial Judge to adequately assist Miller regarding the voluntariness hearing.
[29] Yes, as Mr. Anevich points out, Miller asked the trial Judge about getting a doctor’s note to speak about the medication issue. Should the trial Judge have then explained to Miller the concept of expert evidence? With respect, I think not. First, it is incorrect in law to suggest that expert evidence was strictly required to be tendered by Miller. It may have been helpful, but it was not strictly necessary. Second, Miller testified on the voir dire that, in a nutshell, when he gave the statements in question he was “under the influence of alcohol and Percocet” (trial transcript, October 16, 2018, page 7, line 22). In my opinion, and I am sure in the mind of the trial Judge at the time, the evidence of Miller left no doubt that the operating mind criterion was satisfied, and there was no reasonable basis for the trial Judge to believe that expert evidence, which would of course have delayed the completion of the trial even further, was something that needed to be reviewed with Miller. Moreover, this case, specifically the mischief to property and assault charges, was not going to turn on something that was said by Miller before the trial started. The entire voir dire issue, I say respectfully, was, and still is, largely a red herring. Mr. Khoorshed, for the Crown, is correct in that regard.
[30] Regarding section 11(b) of the Charter, during oral submissions, it was expressly conceded by Mr. Anevich on behalf of Miller that the said argument, if successful, is not sufficient on its own to find a miscarriage of justice and grant the appeal. Thus, assuming without deciding that the trial Judge ought to have secured trial continuation dates before October 2018, when the case did not finish on March 9th, and assuming without deciding that the trial Judge, in or before October 2018, ought to have raised the Charter issue on her own accord and invited Miller to apply for a remedy, given this Court’s findings on the other issues discussed herein, based on the said concession there remains no potential finding that the trial was unfair.
Alleged Insufficiency of Reasons
The Legal Principles
[31] I agree with these points raised by Mr. Anevich at paragraphs 88 through 91 of the factum filed on behalf of Miller: (i) adequate or sufficient reasons for judgment are an essential pillar of the principle of the rule of law in that every accused who is found guilty is entitled to know why the trial Judge was left with no reasonable doubt; (ii) in a credibility case, it is not open to the trial Judge to find the accused guilty without explaining how the court reconciled defects in the complainant’s evidence, including inconsistent testimony for example, especially where the accused has testified and denied the allegations; and (iii) insufficient reasons amount to reversible error. R. v. Sheppard, 2002 SCC 26, at paragraph 24; R. v. Gagnon, 2006 SCC 17, at paragraph 21; R. v. Dinardo, 2008 SCC 24, at paragraphs 25-26 and 31; and R. v. AM, 2014 ONCA 769, at paragraph 18.
The Law as Applied to our Facts
[32] I would not give effect to this ground of appeal. In my view, the reasons of the trial Judge, although fairly brief and delivered orally on the same day that the trial concluded, are sufficient to permit meaningful appellate review.
[33] In the reasons for judgment, spanning just three pages and starting at page 105 of the trial transcript from March 28, 2019, the trial Judge (i) defined what an assault is, (ii) found as a fact that Miller was the aggressor during the incident with Irina and was not trying to defend himself, (iii) gave several reasons as to why Miller’s testimony was rejected by the Court, and (iv) reviewed the salient portions of the evidence of Irina which was accepted by the Court and which established both the mischief to property and the assault charges beyond a reasonable doubt – the throwing of the plate by Miller and the pushing and choking of Irina by Miller. In my view, this adequately explained to Miller why he was found guilty.
[34] There was nothing to be said about the breach of undertaking charge because it was essentially admitted by Miller during the course of the trial. It was uncontroverted that he communicated with Irina in breach of the condition that he not do so.
[35] For some reason, the trial Judge, on her own, stayed the mischief to property offence, ostensibly under the Kienapple principle. In any event, that only served to help Miller. Given that result, it matters not whether Mr. Anevich is correct that there is an absence of evidence as to who owned the plate that was damaged.
[36] Finally, even if Mr. Anevich is correct that trial judges should never simply adopt the Crown’s submissions as their reasons for finding a self-represented accused with demonstrated comprehension problems guilty of a criminal offence, which submission I think is a good one, that is not what occurred here.
Alleged Misapprehension of the Evidence
The Legal Principles
[37] A misapprehension of the evidence may take a variety of forms: failure to consider evidence relevant to a material issue, mistake as to the substance of the evidence, or a failure to give proper effect to the evidence. R. v. Morrissey, [1995] O.J. No. 639 (C.A.), at page 18.
[38] In any event, it must be demonstrated that the imputed error affected the result. R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at paragraph 9.
The Law as Applied to our Facts
[39] I would not give effect to this ground of appeal. In my view, there was no misapprehension of evidence by the trial Judge.
[40] First, regarding the February 14, 2017 audio recording of the telephone conversation between Miller and Irina, I think that the trial Judge got it exactly right. The recording appeared to be cut-off. The implication from Miller throughout the trial was that the deleted portion of the call was somehow exculpatory (my word) for him in that it supported a self-defence argument on the day in question. The trial Judge gave the benefit to Miller in assuming that the deleted portion of the call may have helped him, but the trial Judge still concluded that he was the aggressor throughout the encounter that he had with Irina (reasons for judgment, trial transcript, March 28, 2019, page 107). The trial Judge was entitled to make that finding of fact despite the cut-off audio recording.
[41] Second, although it would have been preferable for the trial Judge to have referred in the reasons for judgment to the photographic evidence, including the photos showing a scratch under Miller’s eye and his broken eyeglasses, and then explain why that evidence did not serve to bolster that of Miller on the issue of self-defence, I think that this issue raised on appeal is an example of improperly striving for perfection or exhaustion in reasons for judgment. The trial Judge gave a myriad of reasons for rejecting the evidence of Miller; it has to therefore be presumed that the photographs did not change that assessment. The photographs, like any other individual piece of evidence tendered at trial, did not have to be referred to in the reasons for judgment in order for those reasons to meet the sufficiency threshold.
III. Conclusion
[42] For all of the foregoing reasons, the appeal is dismissed.
[43] I wish to thank both counsel for their helpful assistance in this matter.
(“Original signed by ”)
Conlan J.