COURT FILE NO.: 107/16

DATE: 20210119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

DARREN JOHN Appellant

Matthew Giovinazzo, for the Crown

Darren John, in person

HEARD: September 30, 2020

CAVANAGH J.

REASONS FOR JUDGMENT

Introduction

[1] The appellant Darren Philip John appeals his conviction and sentence on a charge of knowingly uttering or causing a person to receive a threat to cause bodily harm contrary to s. 264.1(1)(a) of the Criminal Code. The appellant was sentenced to a suspended sentence with a one year period of probation.

[2] The appellant raises thirteen grounds of appeal in relation to his conviction, and one ground of appeal in relation to his sentence. The grounds of appeal in respect of the appellant’s conviction relate to the trial judge’s decision to convict and to her decisions with respect to a number of applications made by the appellant, including a number of post-trial applications, which the trial judge dismissed.

Factual Overview

[3] In her Reasons for Judgment, the trial judge described by way of overview the factual circumstances of the charges against the appellant.

[4] The appellant, a rapper, and the complainant, a promoter of musical artists, met in January 2013 at a club when the appellant gave the complainant a CD with his music. He initiated this first communication. The complainant listened to the music. She thought it was aggressive. The appellant contacted her again and the complainant agreed to include the appellant among other artists she was promoting at a show she organized that was scheduled for April 19, 2013. They communicated during the period January to April 2013 and these communications were professional.

[5] The April 19 event went well. The complainant was happy with all of the artists she organized to participate in that event, including the appellant. After the performance, the complainant became concerned about the appellant because she believed he had been involved in an altercation and because he did not work well with other artists. The complainant was organizing another event scheduled in Ottawa on June 9, 2013. The appellant made a demand for a hotel room and expenses that Ms. Harry’s budget could not accommodate. The complainant decided the appellant was not a team player and concluded that he should be cut from the Ottawa show. The complainant was reluctant to confront the appellant and tell him she did not want him at the Ottawa show.

[6] Shortly after learning he was not included in the program, the appellant began to send the complainant text messages. They exchanged several text messages.

[7] Sometime after the last message the complainant alleges that she sent to the appellant, her sister contacted her to alert her about a video on YouTube entitled “Avalanche the Architect - Fuck Sonia Fuck Sparxx Fuck Alvin”. The complainant looked at the video, which included images of her, guns, Mr. Sparxx, and the complainant’s ex-boyfriend who had assaulted her. The complainant said the lyrics demeaned and threatened her. She believed some of the words suggested she would be killed. She was frightened.

[8] The complainant went to the police to report the video was a threat and told them she was afraid.

Evidence cited by appellant

[9] In his factum, the appellant refers to some of the evidence and the record of proceedings which I set out below.

Testimony of the complainant and record of proceedings in relation to text messages

[10] The complainant testified that she ran into the appellant at a nightclub around the end of May 2013. She wondered why he was there as he does not drink, smoke, and he was not with any friends. She testified she felt scared. Despite being scared, she admitted that they had drinks, talked, and he drove her home.

[11] The complainant testified she informed the appellant of her decision that he was not attending the show in Ottawa. She testified he called her names like “slut” and “whore” on the telephone and she hung up on him. When the appellant produced an audio recording of a phone conversation that he suggested recorded the call, the complainant testified she felt “set up”. She conceded she did not hear the appellant calling her any names. In the recorded conversation, she is heard telling the appellant it was her final decision about the Ottawa show.

[12] The complainant testified she and the appellant exchanged unpleasant text messages. The complainant agreed she gave it back to the appellant. The appellant denied sending the texts. Although she could not recall the date, the complainant was alerted to a YouTube video containing a rap song she stated caused her fear and she reported this to the police.

[13] The complainant testified the appellant sent a group message to 80 people calling her names like “rat” and “whore” and that she slept with club owners. She testified that he told these people that the complainant had been speaking about them in negative ways. She testified that the theme in the messages was the same as the video. When she was asked if she saved any messages or provided any to the police, she testified she sent messages to the investigating officer:

[14] The complainant was asked whether there was anyone she knew who was a rival or enemy that might be doing this other than the appellant, and her answer was there was no such person. After an initial denial, she agreed that a person known as Johnny Smash had threatened to shoot her, she had a problem with a person named Snow White. The complainant stated that she was defending herself almost daily in her role as coordinator of hip of events, she had not been seeing eye to eye with the manager of the Oh-So nightclub, and others were lashing out over rumours she had spread.

[15] The complainant was cross-examined about inconsistent police statements. She told the police she was scared to tell the appellant he would not be going to Ottawa at the Oh-So nightclub, and in a recorded telephone conversation played to her, she admitted providing this information to the appellant at the nightclub.

[16] The complainant testified that the reason the appellant was not going to Ottawa was because he was not a team player, she was scared of him, did not trust him, did not want to work with him and there were no other reasons. She told the police he was no longer invited, among other reasons, because he got into a fight on April 17 at the Gravity Night Club.

[17] The complainant denied using drugs but subsequently admitted that she used marijuana and MDMA, and she agreed a picture depicted her using marijuana and being given a large piece of marijuana.

[18] The complainant testified that the appellant created a Facebook with the sole purpose to harass her. She also admitted telling the appellant to get a Facebook to network.

[19] The complainant was cross-examined about the words in the song and she agreed several references in the video were not true: she was not a prostitute, she did not sell “twat”, she did not have sex with the appellant or with a “Scotian Sparxx”, no one ran a “train” on her (meaning multiple men sleeping with one woman), and Sparxx’ mother was dead; not the complainant’s mother.

[20] The complainant testified she did not know who posted the video. The video referred to a number of individuals: Scotian Sparxx, Marcus Pratt, Nikki, Alvin, with Scotian and Marcus being the same person. The complainant testified the lines in the music video appeared to go back and forth between herself and Marcus Pratt, saying: “it’s hard to differentiate who you are talking about”.

[21] The complainant agreed that the first part of the video, containing words “waking up with a gun”, contained words from another song. The complainant testified that the lyrics referring to playing with the complainant felt like a threat and it put her at risk with other men. In another part of her testimony, the complainant agreed that the sentence in the video was more degrading and not a threat.

[22] The complainant testified she was not aware of any issues between Sparxx and the appellant. However, the complainant denied knowing of animosity from Sparxx toward the appellant but agreed that the appellant appeared to have a problem with him. The complainant agreed that Mr. Sparxx resided with her when he was having a problem with the appellant.

[23] The complainant agreed that she left a telephone message for the appellant stating she was not scared of him but could not recall if she left the message on the morning that she attended the police station.

[24] The appellant asked the complainant if she attended the police station because she did not like the progression of the relationship with the appellant. While she agreed that the appellant said no to having a baby with her, she testified it was out of a sense of humour.

[25] The complainant could not recall if she ever observed the appellant using a cell phone. After this testimony, she testified that she had had a chance to think about things and she recalls seeing the appellant with a cell phone in her apartment.

[26] Subsequent to May 29, the complainant was contacted by the Peel Regional Police informing her that she had contacted the appellant. When she was asked if she had sent a message informing the appellant that he must watch out, she testified “I wasn’t sure”, and “I can’t say I did that message”. She denied she was asked to remove any posted message.

Testimony of TELUS representative

[27] A person employed by TELUS as a security analyst testified. She was called by the appellant as a witness at trial. She testified that the telephone number associated with the text messages allegedly sent by the appellant was registered in the name of a person with a different name than the appellant.

Testimony of Detective Reid

[28] Detective Reid, an officer with the Peel Regional Police, testified that he spoke with the complainant about some posts on social media. He testified that the complainant acknowledged posting material and recalled after being confronted with an audio recording that he may have asked her to remove the post.

Trial Judge’s Reasons for Judgment

[29] The appellant filed a number of applications including applications during the trial. These included Charter applications under ss. 2, 9, and 15, an abuse of process application, and an application for a directed verdict. The trial judge summarily dismissed some of these applications pursuant to R. v. Kutynec, [1992] O.J. No. 347 (C.A.).

[30] The trial judge dismissed the appellant’s ss. 2. 9, and 15 Charter applications.

[31] In the reasons for her verdicts, the trial judge reviewed the evidence, including many text messages the complainant said she exchanged with the appellant, and she considered the credibility and reliability of the complainant’s evidence. The trial judge found that inconsistencies in the complainant’s evidence were minor, and, overall, she was a credible witness. Nevertheless, the trial judge was not satisfied that the effect of the text messages sent by the appellant caused the complainant to fear for her safety or the safety of anyone known to her. The appellant was acquitted on the charge of harassment contrary to s. 264 of the Criminal Code.

[32] The trial judge then addressed the charges that the appellant uttered threats to cause death or bodily harm to the complainant. The trial judge was satisfied that the appellant wrote the song in question and created the video. The trial judge was satisfied that a reasonable person with knowledge of the circumstances in which the song and video were created would perceive them as a threat to cause bodily harm to the complainant. The trial judge had reasonable doubt that the threat was one to cause death.

[33] The appellant was found guilty of uttering a threat to cause bodily harm. The appellant was acquitted of the other two charges.

[34] Post-trial, the appellant brought applications for a mistrial, to re-open his case, for a stay of proceedings, for remedies based on abuse of process against the Crown, and for recusal of the trial judge based on a reasonable apprehension of bias. The trial judge dismissed the post-trial applications.

Analysis

[35] The appellant raises 14 issues on this appeal. I address each in turn.

Issue #1: Did the trial judge err in her assessment of the credibility and reliability of the complainant’s testimony?

[36] The appellant submits that the trial judge failed to properly analyse inconsistencies and contradictions in the testimony given by the complainant to the extent that she made a reversible error when she found that the complainant’s testimony was credible and reliable. The appellant submits that this error can only be remedied through a new trial.

[37] The appellant submits that the complainant provided conflicting evidence with respect to the following issues:

a. The complainant testified that after being advised he would not be going to Ottawa, the appellant called her several times in a telephone conversation “slut/whore”, whereas an audio recorded conversation revealed no such name-calling.

b. The complainant testified she was afraid of telling the appellant he was not going on the trip to Ottawa, however, she also testified that subsequent to meeting with him she had drinks with him, talked to him and he drove her home.

c. The complainant testified she had no rivals or enemies who could post such a video, whereas, in cross-examination, she testified that a person named Johnny Smash posted a message saying he would shoot Ms. Harry. The complainant testified that she perceived the comment about being shot in the face to be a joke, but also testified she would not work with Mr. Smash over the comment.

d. The complainant admitted that around the time the videos posted she had a problem with a person named “Snow White” and she testified that as a coordinator of hip-hop events, she had to defend herself almost every day.

e. The complainant testified she did not tell the appellant he was not going to Ottawa at the Oh-So nightclub which contradicted an audio recorded conversation where she admitted telling the appellant he was not attempting at this nightclub.

f. When asked about drug use the complainant testified that she does not use drugs, but she then admitted to smoking weed occasionally, using MDMA, and the appellant produced a picture of the complainant smoking marijuana with a person who provided her with a big piece of marijuana. The complainant agreed she told the police that the appellant created a Facebook page to harass and smear her, but she agreed that she suggested that the appellant needed a Facebook page.

g. The complainant was asked questions about running her charity and she testified that she had not tried to collect money, but then agreed that “we have a new website that had a donation button”.

h. When it was suggested that the complainant never observed the appellant with a cell phone, she disagreed, saying she could not recall observing the appellant using the phone. She later testified that she recalled seeing the appellant with a cell phone in her apartment.

[38] In her reasons, the trial judge was clear that there were some areas in the complainant’s testimony which she did not regard as significant and which do not undermine her credit and reliability. With respect to the alleged inconsistencies:

a. The trial judge addressed the complainant’s evidence about telling the appellant he would not be included in the Ottawa program and the telephone recording on which the appellant relies. The trial judge’s reasons show that she was alert to inconsistencies in the complainant’s evidence.

b. The trial judge addressed the fact that the complainant went with the appellant in his car and he drove her home and she found that the inconsistency with her statement that she was in fear of him was minor and, in her view, insignificant. The trial judge accepted the complainant’s evidence that she was trying to avoid friction with him.

c. The trial judge accepted the complainant’s explanation in which she acknowledged that she had disputes with others during the time when she first saw the video and the trial judge accepted the complainant’s evidence that none of those individuals were enemies. The complainant explained although she considered the comment made by “Johnny Smash” to be a joke, that she did not appreciate it and did not want to work with him.

d. The trial judge considered the evidence with respect to “Snow White” and rejected that there is any basis to conclude that Snow Weight was involved in the video. The trial judge concluded that connecting other persons with the video invites speculation.

e. The trial judge addressed the evidence concerning the complainant’s drug use.

f. The trial judge did not address in her reasons the evidence concerning the donation button on the organization’s website, although the complainant testified that it is not a charity.

[39] The trial judge was not required to address every inconsistency in the complainant’s testimony. The trial judge considered the complainant’s testimony in considerable detail and explained with extensive reference to the evidence why she considered the complainant’s testimony to be credible and reliable.

[40] The trial judge did not make a reversible error in her assessment of the testimony given by the complainant.

Issue #2: Did the trial judge err by failing to properly assess the totality of the circumstances in determining that the video constituted a threat?

[41] The appellant submits that the trial judge erred by failing to consider the video objectively having regard to important contextual features of this case.

[42] The contextual features upon which the appellant relies are:

a. The appellant was a music artist who, to the knowledge of the complainant, had aggressive music.

b. The video appeared on YouTube for all the public to see.

c. There was no evidence that the appellant posted the video.

d. Many parts of the song were completely fictional. The complainant testified that she never “sold twat” and did not sleep with the appellant or Mr. Pratt.

e. The song contained a picture of Hulk with the gun. Had the appellant wished to have the complainant take the threat seriously, it is unlikely he would have written the song and posted it on YouTube.

f. Many of the lyrics were open to subjective interpretation and referred to persons other than the complainant.

[43] The trial judge referred to the leading authorities in her reasons and she summarized the legal principles from the decision in R. v. Perrault, [2014] O.J. 369. The trial judge noted that the actus reus is made out if a reasonable person fully aware of the circumstances in which the words were uttered would have perceived them to be a threat. The trial judge noted that where there is no direct - but only circumstantial - evidence, intention may be proven by assessing all of the circumstances including the words uttered, the circumstances in which they were conveyed, and to whom they were uttered.

[44] In her reasons, the trial judge stated that she had not looked at any of the lyrics of the video or the images of the video in isolation. The trial judge addressed the fact that the appellant was a rap artist. The trial judge looked at the entire video as a whole. The trial judge wrote that she considered the video in the context of the circumstances of the case including the communications between the appellant and the complainant as well as the circumstances of their relationship. The trial judge turned her mind to the fact that other persons were mentioned in the song and she found that the fact that the video may be directed towards other persons in addition to the complainant is not an issue before her.

[45] The trial judge reasons show that she considered the relevant circumstances when she determined that the video constituted a threat. The trial judge did not commit a reversible error in this respect.

Issue #3: Did the trial judge err by failing to hold a voir dire to address the disclosure issue?

[46] The appellant submits that the trial judge erred by failing to hold a hearing to address the complainant’s assertion that he was entitled to additional disclosure. The disclosure was for production of a saved group Facebook message allegedly sent by the appellant to 80 people calling the complainant names like “rat” and “whore” and saying that she slept with club owners. The complainant testified that she provided a copy of the message to the investigating officer.

[47] When the appellant raised the issue of disclosure on May 12, 2014, the trial judge informed him that he should write a letter to Crown Counsel setting out what he says is missing and there would be a response. The trial judge advised that if there is a need for the appellant to bring an application because there has been a defect in the disclosure affecting trial fairness, the appellant can bring it to the trial judge in advance of the trial date.

[48] The complainant was asked about disclosure of the Facebook group message and testified “I actually provided the actual email where there is 80 people or 70 to 80 people I believe in one room”.

[49] Subsequent to the complainant’s testimony, the appellant advised the trial judge that there was some disclosure he had mentioned that he would like to get a copy of. The trial judge noted that the appellant was to write to the presiding Crown about the disclosure and he would write back and respond, and an application could be brought before the trial judge. The trial judge addressed various other issues in the matter was adjourned to August 1, 2014.

[50] On August 1, 2014, the appellant again noted that there was outstanding disclosure issue, advised that he had requested disclosure, put his request in writing, and confirmed that the investigating officer, Detective Liska, had advised she had received the request for disclosure. The appellant said that he did not receive the disclosure. The Crown present that day (not Crown trial counsel) noted “My information is that Officer Liska provided the disclosure to the Crown’s office” and assumed it had been disclosed. The trial judge noted that the appellant was required to bring an application if disclosure was not received.

[51] Although the appellant raised this issue on several occasions, he did not bring such an application.

[52] In her review of the evidence in her reasons, the trial judge recited the complainant’s evidence that the appellant sent Facebook group messages to 70 to 80 people per message that included words that were similar to those in the video where she was called names such as “rat” and “whore” and in which the complainant was referred to as a prostitute sleeping with owners of venues.

[53] After the verdict was released, the appellant brought a number of post-trial applications before the trial judge. At the hearing of these applications, the appellant again raised the disclosure issue. His position was that these messages were needed for him to cross-examine the complainant to challenge her credibility. Oral reasons on these applications were released on April 13 and 14, 2016 and on August 11, 2016. Written reasons were released on November 9, 2018. In her written reasons, the trial judge referenced her exchange with the appellant on May 12, 2014 about the procedure to be followed to address any disclosure issue. The trial judge concluded that there is no evidence a letter requesting disclosure was sent or that any defect in disclosure continued to be outstanding as the trial progressed. The appellant’s application was dismissed.

[54] In R. v. Dixon, [1998] 1 S.C.R. 244, at para. 22, the Supreme Court of Canada confirmed that the obligation resting upon the Crown to disclose material gives rise to a corresponding constitutional right of the accused to disclosure of all material which meets the Stinchcombe threshold. Where an accused demonstrates a reasonable possibility that undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has established the impairment of his Charter right to disclosure. The Supreme Court of Canada went on to hold, at para. 23:

However, a finding that an accused’s right to disclosure has been violated does not end the analysis. As Sopinka J. wisely observed in Carosella, supra, at p. 100, an appellate court must be careful not to “confus[e] the obligation to establish a breach of the right [to full answer and defence] with the burden resting on the appellant in seeking a stay”. Similarly, the initial test which must be met in order to establish a breach of the right to disclosure is analytically distinct from the burden to be discharged to merit the remedy of a new trial. The right to disclosure of all relevant material has a broad scope and includes material which may have only marginal value to the ultimate issues at trial. It follows that the Crown may fail to disclose information which meets the Stinchcombe threshold, but which could not possibly affect the reliability of the result reached or the overall fairness of the trial process. In those circumstances there would be no basis for granting the remedy of a new trial under section 24(1) of the Charter since no harm has been suffered by the accused.

[55] In Dixon, at para. 31, the Supreme Court of Canada noted that different principles and standards apply in determining whether disclosure should be made before conviction and in determining the effect of a failure to disclose after conviction:

At this stage [after conviction] an appellate court must determine not only whether the undisclosed information meets the Stinchcombe threshold, but also whether the Crown’s failure to disclose impaired the accused’s right to make full answer and defence. Where an appellate court finds that the right to make full answer and defence was breached by the Crown’s failure to disclose, the appropriate remedy will depend on the extent to which the right was impaired. Where, as here, the accused was tried before a judge alone, the judge has provided thorough reasons for the decision, and the undisclosed evidence is available for review, an appellate court is particularly well-placed to assess the impact of the failure to disclose on the accused’s ability to make full answer and defence at trial.

[56] In my view, the message falls within the scope of disclosure under Stinchcombe and it should have been disclosed. At the hearing of this appeal, counsel for the Crown was not able to show that the message was disclosed to the appellant. I accept that the appellant did not receive disclosure of this message. This, however, does not end the analysis.

[57] The question on appeal is whether the appellant has proven on a balance of probabilities that his right to make full answer and defence was impaired due to non-disclosure of the message. A two-step analysis is needed. First, in order to assess the reliability of the result, the undisclosed information must be examined to determine the impact it might have had on the decision to convict. If the undisclosed information does not itself affect the reliability of the conviction, the effect of the non-disclosure on the overall fairness of the trial process must be considered at the second stage of the analysis: Dixon, at para. 36.

[58] The appellant submits that his ability to challenge the credibility of the complainant through cross-examination was hampered because he did not have disclosure of the Facebook message and, as a result, his right to make full answer and defence was impaired.

[59] I first assess whether the appellant has shown that undisclosed information, if disclosed, might have affected the conviction.

[60] The trial judge first addressed whether the Crown had proven the charge of criminal harassment. In her reasons addressing this charge, the trial judge reviewed the text messages between the complainant and the appellant in considerable detail for the purpose of assessing whether the Crown had proven that the appellant’s conduct caused the complainant to fear for her safety. The trial judge found that the complainant believed that the person she was texting with was the person she knew as Avalanche who she identified in court. The trial judge found that the complainant is a credible witness, but the trial judge was not satisfied that the complainant was harassed by the communications in the sense required to prove criminal harassment. The trial judge was not satisfied that the effect of the text messages caused the complainant to fear for her safety or the safety of anyone known to her. The credibility of the complainant was central to the charge of criminal harassment and, on this charge, the appellant was acquitted.

[61] The trial judge then dealt with the charges under s. 264.1 of the Criminal Code. In arriving at her conclusions, the trial judge wrote that she relied on the decision in R. v. McRae, 2013 SCC 68. In McRae, at para. 13, the Supreme Court of Canada held that the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously. The test, correctly articulated by the trial judge, is whether a reasonable person would perceive a threat. This can occur even if the subject of the threat did not feel threatened.

[62] On the charge of uttering a threat to cause bodily harm, the trial judge was satisfied that the appellant wrote the song in question and created the video. In arriving at these conclusions, the trial judge found that the circumstances do not support a conclusion that any other person was involved with preparation of the video, and that connecting other persons with the video invites speculation. I am not persuaded that it is reasonably possible that disclosure of the Facebook group message might have affected the trial judge’s finding that the appellant wrote the song and prepared the video. The credibility of the complainant was not a significant factor in these findings.

[63] The next issue addressed by the trial judge was whether a reasonable person fully aware of the circumstances in which the words were uttered would have perceived them to be a threat. The trial judge considered the violent and powerful manner in which the appellant described himself in the lyrics and the juxtaposition of the images of the complainant and the references to issues between the appellant and the complainant and found that a reasonable person, fully aware of the tension between the complainant and the appellant and looking at the words in the lyrics dispassionately, would conclude that the video was a threat directed at the complainant. The credibility of the complainant was not a central factor for the trial judge. The trial judge considered the complainant’s opinion that she was threatened as one piece of evidence, but did not rely on it in reaching her conclusion.

[64] When I view the undisclosed evidence of the Facebook group message in the context of the factual issues addressed by the trial judge in her analysis of the charge of uttering a threat to cause bodily harm, I regard the materiality of this evidence to be very low. I am not persuaded that there is a reasonable possibility that, on its face, the failure by the Crown to disclose to the appellant the Facebook group message affects the reliability of the conviction.

[65] The appellant has not explained how, if the information had been disclosed, lines of inquiry with the complainant or other witnesses would have expanded or how disclosure would have led to opportunities to garner additional evidence. The appellant has not shown that there is a reasonable possibility that the failure to disclose the Facebook group message resulted in a trial process that was unfair to the appellant.

[66] In Dixon, at para. 39, the Supreme Court of Canada held that where the materiality of the undisclosed information is relatively low, an appellate court will have to determine whether any realistic opportunities were lost to the defence and, to that end, the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a very significant factor in deciding whether to order a new trial. In this case, when the appellant raised the disclosure issue, the trial judge advised him that if there was a problem with disclosure, he should bring an application. No application was brought. I consider this as a factor in my decision, but because the appellant was self-represented at trial and I regard the materiality of the undisclosed information to be very low, not a very significant factor.

[67] The trial judge did not fall into reversible error by failing to hold a voir dire to address the disclosure issue.

Issue #4: Did the trial judge err in holding that the appellant had the onus of proving a lack of reasonable and probable grounds for his arrest?

[68] The appellant had made an application at trial that his rights under s. 9 of the Charter were infringed when he was arrested. The trial judge dismissed this application. The appellant submits that the trial judge erred by reversing the onus of proof and holding that the appellant had not met his onus of proving that the investigating detective lacked reasonable and probable grounds to arrest him.

[69] The applicant in a Charter application bears the persuasive burden of establishing a breach of the Charter: R. v. Kutynec, [1992] 12755 (ON CA) at p. 295. The trial judge did not err by placing the onus of establishing a Charter breach on the appellant. The trial judge assessed the evidence given by Detective Liska and found her to be a credible witness. The trial judge accepted that Detective Liska’s subjective belief that the video contained threatening language was supported by objective evidence.

[70] The trial judge held that the appellant had not met his onus of proof on his Charter application on the balance of probabilities. The trial judge did not err.

Issue #5: Did the trial judge err by permitting the Crown to cross-examine the appellant on his criminal record and allowing the cross-examination to proceed as it did?

[71] After his conviction, the appellant claimed that his decision not to testify was affected by the conduct of Crown counsel. The appellant’s position was that his decision not to testify was made because Crown counsel advised him that he would rely on the appellant’s criminal conviction for fraud if he testified. The appellant relies on the Crown’s admission that on the day the appellant was deciding to testify or not, the conviction had been overturned by the Court of Appeal. The Court of Appeal decision was released on September 10, 2014. This was the subject of one of the appellant’s post-trial applications.

[72] During the voir dire in respect of the post-trial application based on (i) alleged abuse of process, and (ii) whether there should be a mistrial based on the appellant’s submission that he did not testify because Crown counsel at trial intended to cross-examine him on his criminal record which included a conviction for fraud (which was overturned by the Court of Appeal), the appellant testified, and he was asked about his criminal record in 2005. The appellant submits that the trial judge erred by allowing cross-examination about his criminal record by failing to balance the probative value of this evidence against its prejudicial effect.

[73] The appellant objected to questions about his criminal record and argued that the Crown was required to prove his criminal record. The trial judge ruled that whether the appellant has a record or not is relevant to the voir dire and the post-trial application and that the Crown was entitled to ask him about his record. The trial judge ruled on April 13, 2016 that if the Crown wished to prove the appellant’s criminal record, she would need to do so in some other way. The trial judge advised the appellant on April 14, 2016 that he did not need to prove his criminal record and that the Crown would need to do so.

[74] The issue of the criminal record at this stage of the proceedings was not to challenge the appellant’s credibility at large with respect to the charges against him, but to address issues raised by the appellant’s post-trial application. Given issues on the voir dire in which the appellant testified, the appellant’s criminal record was relevant, and the trial judge did not err in her ruling.

Issue #6: Did the Court misapprehend the evidence in finding that the appellant made a tactical decision not to testify?

[75] The appellant submits that the trial judge misapprehended the evidence when she found that the appellant had made a tactical decision not to testify at trial which was not impacted by the fact that Crown counsel at trial intended to cross-examine him about his criminal record which included a conviction for fraud.

[76] As I have noted, following release of the trial judge’s decision on June 30, 2015, the appellant brought several post-trial applications. One application requested an order declaring a mistrial and/or a declaration that the Crown had engaged in an abuse of process. A separate application requested an order that the trial evidence be re-opened so that the appellant could testify.

[77] The grounds upon which the appellant brought these applications were that (i) trial counsel for the Crown had threatened to cross-examine him on his criminal record if he testified, and the criminal record upon which trial counsel intended to rely was inaccurate because the appellant had successfully appealed from a conviction (for fraud) shown on the document, (ii) when the appellant informed trial counsel that the criminal record was inaccurate, trial counsel refused to investigate this information and confirmed that he intended to cross-examine the appellant on the criminal record notwithstanding the information the appellant had provided, and (iii) the appellant did not want the trial judge to become aware of the inaccurate information in the record upon which trial counsel intended to rely because he was concerned it would influence her assessment of the evidence and, for this reason, he chose not to testify.

[78] The trial judge concluded that an evidentiary hearing should be held with respect to the mistrial application and the abuse of process application. The appellant provided an affidavit upon which he was cross-examined. The appellant called Detective Liska and trial counsel, Mr. Poon, who were cross-examined. The trial Crown testified that he did not believe the appellant when he told him that the fraud conviction had been overturned.

[79] The appellant relies on passages from the transcript of proceedings on April 14, 2015 in which he raised the issue of providing letters as evidence of character references.

[80] Crown counsel at trial, Mr. Poon, objected to the admissibility of the evidence in this form and stated: “And I mean I warned him specifically last time, if he wanted to put his character on (sic) issue, I have evidence that - that speaks to his character. And he knows what I am talking about”. The trial judge stated “I do not want to hear about it, then”, and asked the appellant whether he wanted to make an application to re-open his case and file this evidence, noting that the Crown would have an opportunity to reply and call other evidence.

[81] The appellant responded that “the evidence won’t play (sic) an issue”, and the trial judge said “do not tell me what he has”. The appellant stated that he has an issue with it and he [Crown counsel] knows what the issues are.

[82] The trial judge said “ I am going to give this back to you” and told the appellant he would have two weeks to decide if he wanted to bring an application to re-open his case to file this material. The trial judge indicated that if he did so, she would likely allow him to re-open his case, but she confirmed that the appellant would have to make an application.

[83] On August 11, 2016, the trial judge gave oral reasons for her decision to dismiss the appellant’s applications to re-open the trial and for a mistrial and his abuse of process application based on alleged bullying by Crown trial counsel. On November 9, 2018, the trial judge released supplementary written reasons for her decision to dismiss these applications.

[84] In her written reasons, the trial judge referred to authorities setting out the criteria to be applied on an application to re-open the defence case after adjudication and she set out the applicable legal principles based on decisions in R. v. Arabia 2008 ONCA 565, [2008] O.J. No. 2960 (ONCA), R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.) leave to appeal refused, [1996] S.C.C.A. No. 487, and R. v. Griffith 2013 OCA 510.

[85] The trial judge wrote that she considered the evidence, submissions and law and concluded that the appellant made a strategic decision not to testify. The trial judge did not accept that the appellant’s decision not to testify at the trial was influenced by trial counsel’s decision to cross-examine him about his criminal record. The trial judge gave lengthy reasons for this conclusion which included:

a. The appellant was an able self-represented defendant who made a number of strategic decisions during the trial. One of these decisions was not to provide trial counsel with a full copy of the decision of the Court of Appeal granting his appeal from the fraud conviction he knew trial counsel intended to cross-examine him about.

b. The information which the appellant provided to trial counsel about the appeal from the fraud conviction, which he submitted was central to his decision not to testify, was the appellant’s choice.

c. In cross-examination, the appellant agreed he made a tactical decision not to bring the Court of Appeal ruling to the trial judge’s attention on September 10, 2014.

d. In cross-examination, the appellant agreed that he did not provide trial counsel with a copy of the Court of Appeal decision dated September 10, 2014. He provided a copy of the back page, and trial counsel said he needed the full document, which was not provided. The trial judge concluded that this was a strategic decision made by the appellant.

e. Whether the appellant would testify was canvassed a number of times during the proceedings. The trial judge found that there is no evidence that the appellant made the decision not to testify because he believed the Crown intended to cross-examine him about his criminal record.

f. The appellant acknowledged that the court could have disabused itself of the criminal record information, which was inconsistent with his evidence that he did not want the court to hear evidence because once heard it could not be unheard.

g. The appellant had ample time to tell the Crown he would oppose being cross-examined on the record, and he had more than enough time to get legal advice on that issue. The appellant chose to “hide in the weeds”, and this was a strategic choice.

[86] The trial judge rejected the appellant’s evidence that his decision not to testify was impacted by the Crown’s intention to cross-examine him about his criminal record and held that there was no trial unfairness.

[87] The trial judge considered the evidence in relation to this issue and made findings were available to her based on the evidence. The trial judge did not misapprehend the evidence or make a palpable or overriding error.

Issue #7: Did the trial judge err in relying on evidence not introduced at the voir dire to assess the merit of the appellant’s claim that his decision not to testify was influenced by conduct of Crown counsel at trial?

[88] The appellant submits that the trial record is unclear about what evidence could be used on the post-verdict motions and he was prejudiced by the confusing procedure. The appellant submits that the lack of an adequate record about what evidence could be used, together with the use of inadmissible evidence to decide the issues raised by the post-verdict motions, mandates a new trial.

[89] On October 6, 2015, before the commencement of the voir dire, the trial judge discussed with the appellant, who was assisted by duty counsel, the procedure that would be followed for the voir dire. The trial judge informed the appellant that he would have to decide on the evidence to present in support of his post-verdict motions, including whether to testify. The trial judge expressed that the voir dire would be blended, where the evidence applies to more than one application. This was stated by duty counsel in the appellant’s presence, and the trial judge asked the appellant whether he understood, and he responded that he did. The trial judge urged the appellant to speak with duty counsel to assist him to understand the process.

[90] The appellant swore an affidavit in support of his post-verdict applications, and he testified and was cross-examined.

[91] The trial judge did not err in referring to evidence and proceedings at the trial in her reasons for her decisions with respect to the post-verdict applications.

Issue #8: Did the trial judge commit a reversible error by allowing cross-examination of the appellant with respect to his knowledge of the law?

[92] The appellant submits that the cross-examination of him by Crown counsel with respect to his knowledge of the law, his participation in civil court proceedings, his representation of himself in the criminal matters, and his work as a paralegal was not relevant and prejudicial to him.

[93] The appellant relies on the decision of the Supreme Court of Canada in R. v. Jabiaranha (2000), 2001 SCC 75, 159 C.C.C. (3d) 1 (S.C.C.). In Jabiaranha, Crown counsel cross-examined the accused about his knowledge of s. 13 of the Charter. The Supreme Court of Canada held that in rare circumstances, cross-examination of a witness’s knowledge of s. 13 of the Charter may be permitted. In that case, the Court held that the prejudicial effects of the testimony outweighed its low prejudicial value, and the accused should not have been cross-examined on this subject.

[94] The issue raised by the appellant in this case is not the same as the issue in Jabiaranha. In this case, the appellant was cross-examined on matters relating to his experience in the civil and criminal justice systems. The appellant had sworn an affidavit in which he stated that he suffered prejudice because he was not represented at trial by a lawyer.

[95] The trial judge did not commit a reversible error in allowing cross-examination on matters relating to the appellant’s familiarity with the justice system and his ability to represent himself at the trial.

Issue #9: Did the trial judge commit a reversible error by failing to find that Crown counsel at trial had an obligation to determine whether the appellant’s criminal record was accurate and by failing to conduct an inquiry as to whether the Crown had a reasonable prospect of conviction?

[96] The appellant submits that Crown counsel at trial acted unfairly towards him by telling the appellant on several occasions that he intended to cross-examine him about his criminal record which included a conviction for fraud when, in fact, the fraud conviction was overturned by the Court of Appeal. The appellant submits that in so conducting himself, Crown counsel at trial failed to act fairly and with objectivity and dispassion. The appellant submits that the trial judge erred by failing to find that this conduct constituted an abuse of process.

[97] The appellant also submits that Crown counsel at trial acted unfairly toward the appellant by failing to withdraw from the case when the appellant raised the issue of abuse of process at the commencement of the trial. The appellant relies on the fact that the Crown offered to accept a peace bond even though it was clear that the appellant would not accept a resolution on this basis. The appellant contends that the Crown continued the prosecution when there was no reasonable prospect of conviction, and the trial judge erred in not conducting an inquiry into whether the Crown had a reasonable prospect of conviction.

[98] In her written reasons dismissing the post-verdict applications, the trial judge made extensive reference to the testimony given by Mr. Poon, Crown counsel at trial, in relation to the issues about the appellant’s criminal record. The trial judge referred to Mr. Poon’s testimony that the appellant told him that the most recent conviction for fraud had been overturned but he did not investigate this information because he was not prepared to take anything the appellant told him at face value based on what he knew about the appellant and his dealings with the appellant in and out of the courtroom.

[99] The trial judge referred to Mr. Poon’s evidence in which he acknowledged his duty to be fair to the appellant, but that he did not agree he had to investigate the information the appellant provided to him about his criminal record because he believed the appellant was able to tell the court if there were any problems with the criminal record, and the court could disabuse itself of any information. The trial judge found on the evidence that when Mr. Poon and the appellant were discussing whether the appellant would testify, Mr. Poon had been told by Detective Liska that the record the Crown intended to use (which showed the fraud conviction) was accurate. The trial judge found that Detective Liska first learned the fraud conviction was overturned when she heard the appellant state that in court.

[100] The trial judge carefully reviewed the evidence and concluded that there was no trial unfairness and that Crown trial counsel’s intention to cross-examine the appellant about the criminal record was not an abuse of process. This conclusion was reasonably open to the trial judge on the evidence. The trial judge did not err in reaching this conclusion.

[101] With respect to the appellant’s submission that the trial judge erred by failing to find at the commencement of the trial that Crown counsel at trial acted unfairly towards him by not withdrawing when, he contends, Crown counsel had discussed a possible resolution with him in circumstances where there were no reasonable and probable grounds to proceed, this was addressed by the trial judge with the appellant on October 2, 2014 and the appellant agreed that the Crown trial counsel was not disqualified from continuing to act as trial counsel.

[102] The trial judge did not err in failing to find that Crown trial counsel had an obligation to determine whether his criminal record was accurate or by failing to find that Crown trial counsel had an obligation to withdraw at the commencement of the trial.

Issue #10: Did the trial judge err by ordering a transcript of the song on the video and relying on this transcript in her reasons? Does this give rise to a reasonable apprehension of bias?

[103] The appellant submits that the use of a transcript of the song in the video was unfair to him. The appellant relies on the fact that the trial judge noted that the complainant and the investigating officer had difficulty understanding the lyrics. The applicant contends he was prejudiced because he was not able to use the transcript to cross-examine the complainant.

[104] The appellant submits that the fact that the trial judge arranged for production of a transcript would reasonably influence a reasonable person to question the impartiality of the trial judge.

[105] The record of proceedings on March 24, 2015 shows that the appellant was using a written record of the lyrics from the song on the video to examine the complainant. The trial judge asked whether there was any reason why she should not be provided with a copy of this document. The appellant responded that the document he was using was not consistent with the typed transcript prepared by the police. The document was not provided to the trial judge.

[106] On April 14, 2015, the trial judge informed the parties that she had ordered a transcript of the song by a court-authorized reporter that would be available for the parties to pick up. The trial judge told the parties that if they wished to make any further written submissions they could do so. The appellant responded that he did not believe he had any further submissions. The trial judge asked the appellant whether he wanted an opportunity to read the transcript and advised him that she intended to read it. She repeated that a copy is available from the Court Reporter’s Office and would be provided to the appellant. The trial judge offered to give the appellant and the Crown to the end of April to decide whether to make submissions about the transcript. Neither party made any submissions.

[107] The trial judge acted fairly and impartially in the way she dealt with the transcript. It was open to the trial judge to request the transcription to use as an aid, and she was forthright with the parties that she had done so and acted properly by arranging for them to receive a copy and to make any submissions they wished to make. The trial judge was clear in her reasons that she listened to the song on the video many times, and she recorded in her reasons the words she understands are in the video.

[108] The fact that the trial judge ordered a transcription of the song would not reasonably cause a reasonable person to conclude that the trial judge was not impartial.

[109] The appellant also submits that the trial judge acted inappropriately in the following additional respects which would reasonably cause a reasonable person to question the trial judge’s impartiality:

a. On August 9, 2016, another judge advised the appellant at another courthouse “I corresponded with the judge there, who also thought it was in the afternoon, and she asked me to clarify that”. This communication about court scheduling does not give rise to a reasonable apprehension of bias.

b. The appellant had submitted to the trial judge that a transcript of Crown trial counsel saying that “Ms. John” was harassed should be read as counsel suggesting that the appellant was harassed by Ms. Harry, the complainant. The trial judge, without hearing submissions from the Crown, assumed that the error in the transcript was that Mr. John had been harassed. This exchange does not give rise to a reasonable apprehension of bias.

c. Exhibits in this case were held by the trial judge for a substantial amount of time. This does not give rise to a reasonable apprehension of bias.

[110] The conduct of the trial judge upon which the appellant relies does not give rise to a reasonable apprehension of bias.

Issue #11: Did the trial judge err in delivering inadequate reasons with respect to who posted the images and/or who created the images?

[111] The appellant submits that the trial judge’s reasons are insufficient in respect of her finding that the appellant posted the video.

[112] In her reasons, the trial judge considered the submissions by the appellant that that video was posted as part of a “battle rap” with a person known as Sparxx, and she found there was no basis for her to reach this conclusion. The trial judge addressed whether the person known as Johnny Smash had a continuing dispute with the complainant, and whether Mr. Smash was referred to as “Avalanche” or “the Hulk”, and she found no evidence to support these conclusions. The trial judge considered whether the complainant’s sister, with whom the complainant was not on good terms, may have done something other than telling the complainant about the video, and found that there was no suggestion that she acted for an improper reason. The trial judge rejected that there is any basis to conclude that the person known as “Snow White” was involved in the video. The trial judge held that connecting these other persons with the video invites speculation.

[113] The appellant submits that that he provided the Court with a Facebook post in which a Mr. Smash admitted to posting the music video, and that the trial judge erred in not addressing this. The Facebook post was not put into evidence. The trial judge informed the appellant that to rely on this post as an admission, the appellant would need to call Mr. Smash as a witness to give evidence about the Facebook post. The trial judge invited the appellant to speak with duty counsel about the Facebook posts upon which the appellant was relying to show that Mr. Smash posted the video. Mr. Smash was not called as a witness.

[114] The appellant admitted that he was the author of the lyrics in the video. The issue at trial with respect to the charges against the appellant was not who posted the video, but who uttered the threat. The trial judge gave reasons for her findings that the images and words on the video were meant to intimidate and to be taken seriously, and that a reasonable person would conclude that the video was a threat directed to the complainant. The trial judge directed her mind to who created the video. The trial judge found that the one person with a connection to the video, and whose voice was heard on the video, was the appellant. The trial judge found that the Crown had proven beyond a reasonable doubt that the appellant made the threat on the video to cause bodily harm to the complainant.

[115] The trial judge’s reasons are sufficient to explain to the appellant why a conviction was entered and to provide for meaningful appellate review.

Issue #12: Should the appellant be allowed to present fresh evidence on this appeal?

[116] The appellant submits that he should be allowed to present the Facebook post by Mr. Smash as fresh evidence of this appeal.

[117] The proposed evidence of the Facebook post apparently made by Mr. Smash does not qualify for admission as fresh evidence under the test in R. v. Palmer, [1980] 1 S.C.R. 759, at para. 22 for several reasons.

[118] First, the appellant has not shown that the evidence could not have been adduced at trial by due diligence. The trial judge advised the appellant during the trial that he may need to call Mr. Smash as a witness to introduce the Facebook post into evidence. The appellant advised that he did not know the real name of Mr. Smash. The trial judge asked the appellant if he had asked the Crown to determine Mr. Smash’s legal name and she advised him that if he considered this evidence necessary for his defence, he could bring a motion before her. The appellant responded that he did not wish to do so.

[119] Second, the evidence of the Facebook post does not bear on a decisive or potentially decisive issue in the trial. The issue was not who posted the video, but who uttered the threat. The Crown did not need to prove that intended recipient of the threat was made aware of it or, if made aware of it, was intimidate by it or took it seriously: R. v. McRae, 2013 SCC 68, at para. 13. The proposed fresh evidence could not have affected the result.

[120] Third, the Facebook post itself is inadmissible because it is hearsay evidence.

[121] The appellant has not shown that he should be allowed to tender the Facebook post allegedly from Johnny Smash as fresh evidence on this appeal.

Issue #13: Should the appellant be permitted to raise on appeal that the proceeding should be stayed because his right under s. 11(b) of the Charter was infringed?

[122] The appellant submits that although he did not move before the trial judge to stay the proceedings under s. 11(b) of the Charter, he should be permitted to make such an application on the appeal to this court.

[123] The general rule is that an appellate court will not allow an issue to be raised on appeal for the first time: R. v. Hart, 2016 ONSC 1620, and authorities cited. The rational for this rule includes the prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue. In addition, the prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters.

[124] In Hart, B.P. O’Marra J. held, at para. 9, that the general rule is that Charter issues ought not to be raised for the first time on appeal. O’Marra J. noted that there may be possible prejudice to the adversely affected litigant who is unable to call the evidence it would have wished on the issue and, as well, there may be an absence of a sufficient record for the appellate court to properly determine the matter. O’Marra J. cited authorities for the proposition that where the court has a sufficient factual foundation to appraise the issue without prejudice to the parties, and particularly where refusing to do so will result in unfairness, it is proper for the appeal court to hear and determine the question before it.

[125] In exercising the discretion to permit new arguments on appeal, including Charter arguments, the appellate court must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed on appeal even though it was not raised at trial. The more numerous and contentious the evidentiary disputes in respect of the issue raised for the first time on appeal, the less likely it is that the appellate court will exercise its discretion in favour of considering the merits of the new argument: R. v. Roach, 2009 ONCA 156, at para. 8.

[126] During the trial proceedings, the appellant several times indicated that he wished to bring a s. 11(b) application. The trial judge told the appellant that he could bring such an application. The appellant was specifically informed by the trial judge on June 20, 2016 that if he wished to make a s. 11(b) application, he would need to make it. The trial judge advised the appellant of the option of less expensive digital recordings of the proceedings as needed for applications he wished to make in response to his comment on the cost of transcripts. The appellant did not bring a s. 11(b) application.

[127] If an application had been brought, this case would have been a transitional case under the framework set by R. v. Jordan, 2016 SCC 27, at paras. 96-97. The court would have been called upon to decide whether a transitional exceptional circumstance applied on the basis that the Crown had satisfied the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. As the Supreme Court of Canada stated in Jordan, “this requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice”.

[128] The record before me does not include the evidence that is needed to determine whether the time taken for this case was justified based on a contextual assessment of the parties’ reasonable reliance on the law as it previously existed. There is little of the correspondence between the Crown and the appellant in the record. There is no affidavit evidence with respect to this issue. The issues raised on a s. 11(b) application, if one were permitted to be made, would be highly contentious. The Crown would be prejudiced if this court were to hear an application under s. 11(b) as part of this appeal.

[129] I decline to hear an application by the appellant under s. 11(b) of the Charter on this appeal.

Issue #14: Did the trial judge err in over-emphasizing the need for specific deterrence in her reasons for the sentence?

[130] The trial judge sentenced the appellant to a suspended sentence and 12 months probation. The trial judge noted two days of pre-sentence custody. The trial judge declined to make any ancillary orders.

[131] The appellant submits that the trial judge erred by over-emphasizing the need for specific deterrence in her reasons for the sentence she imposed given that at the time of sentencing there had been no further issues between the complainant and the appellant.

[132] In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada held, at para. 11:

This Court has on many occasions noted the importance of getting wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that the judge deviates from the proper sentencing range does not in itself justify appellant intervention. Ultimately, except where a sentencing judge makes an error of law or an error principle that has an impact on the sentence, and appellate court may not vary the sentence unless it is demonstrably unfit.

[133] In Lacasse, the Supreme Court of Canada held, at para. 44, that an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellant intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence.

[134] In her reasons for sentence, the trial judge considered as an aggravating circumstance that the appellant had a 2005 conviction for uttering a threat and criminal harassment. The trial judge noted that there was an eight year gap between that conviction and the offence date in 2013. When the trial judge addressed the weight to be given to the need for specific deterrence, she referred to her reasons already given, which included that the appellant appeared to be unable to control his anger when he lashed out at the complainant and threatened to cause her bodily harm, and that the threat had a violent and emotional psychological component and preyed upon the complainant’s involvement in a domestic assault. The trial judge balanced the relevant factors in making her decision as to sentence.

[135] The trial judge did not err in her decision as to sentence.

Conclusion

[136] This trial began on April 24,2014 and continued over many days of evidence and post-trial applications. The trial judge made considerable efforts to ensure that the trial was fair to the appellant, who was self-represented. The findings of the trial judge are grounded in the evidence, and they are entitled to deference. The appellant has not shown that the trial judge erred such that the conviction should be quashed and an acquittal entered or a new trial ordered.

Disposition

[137] The appellant’s appeal is dismissed.

Cavanagh J.

Released: January 19, 2021

COURT FILE NO.: 107/16

DATE: 20210119

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

HER MAJESTY THE QUEEN Respondent

– and –

DARREN JOHN Appellant

REASONS FOR JUDGMENT

Cavanagh J.

Released: January 19, 2021