Summary Conviction Appeal Court - Ontario

Court File No.: CV-21-40000058-00AP Date: 2021-11-12

Re: R. v. Kevalas, Gediminas

Before: J. R. Presser, J.

Counsel: Matthew Shumka, for the Respondent Crown Paul J. J. Alexander, for the Applicant/Appellant Kevalas

Heard: November 10, 2021

Endorsement

I. OVERVIEW

[1] This is an application for bail pending summary conviction appeal. For the reasons that follow, I have decided that Mr. Kevalas has discharged his onus of establishing on a balance of probabilities that the test for bail pending summary conviction appeal has been met. He will be released on a recognizance with one surety, Eugene Gurevich, in the amount of $1,000, and the same conditions of release as his trial bail with such modifications as are appropriate in the summary conviction appeal context.

[2] After a trial in the Ontario Court of Justice, Mr. Kevalas was convicted of unlawfully entering a dwelling house with intent to commit an indictable offence, theft under $5,000, possession of property obtained by crime under $5,000, and two counts of threatening death. He was sentenced to a total of four months’ imprisonment, followed by 18 months’ probation.

[3] Mr. Kevalas appeals his convictions and seeks leave to appeal sentence on the following grounds:

(a) The trial judge erred in failing to consider whether the Crown had proven the requisite specific intent to commit the offences:

(b) Proposed fresh evidence, medical records showing Mr. Kevalas’s degree of intoxication, that he seeks to have admitted on appeal, could reasonably be expected to have affected the result if tendered at trial; and

(c) The trial judge erred in principle by treating Mr. Kevalas’s dated conditional discharge as an aggravating feature in sentencing.

[4] On this application, Crown counsel reasonably concedes (a) that there is no concern that Mr. Kevalas will not surrender himself into custody as required; and (b) that Mr. Kevalas’s detention is not required in the public interest. Having considered the matter, I agree. Mr. Kevalas has been on a trial bail since May of 2018 without incident. He attended at court for his trial and sentencing. There is no live concern that he will fail to surrender himself into custody in accordance with the terms of a bail order. I also agree that there is no public interest basis for detaining Mr. Kevalas in custody for reasons of public safety or maintaining public confidence in the administration of justice as these factors were described in R. v. Oland, 2017 SCC 17.

[5] The Crown opposes Mr. Kevalas’s release on bail pending appeal only on the basis of the merits of the appeal. In other words, the Crown position is that Mr. Kevalas has not established on a balance of probabilities that his appeal is not frivolous.

[6] In determining whether the appeal is “not frivolous,” I need not find a certainty of appellate success. Rather, I need only be satisfied that the appeal is “arguable”: R. v. DiGiuseppe, 2008 ONCA 223, at paras. 11 and 17. In this case, I find that the ground of appeal relating to the proposed fresh evidence has arguable merit, and for that reason I allow the application for bail pending summary conviction appeal. I do not need to consider whether the other two grounds of appeal have arguable merit. I should not be taken as opining on the question of whether either of these grounds reach the arguable merit threshold.

II. FRESH EVIDENCE GROUND OF APPEAL

(i) Positions of the Parties

[7] The Applicant intends to bring an application for admission of fresh evidence on appeal, namely medical records that he submits support the inference that he was extremely intoxicated on the date of the offences. He submits that this proposed fresh evidence is credible, relevant to the decisive issue of intent, and could reasonably be expected to have impacted on the verdict if tendered at trial. Although this was not explicitly advanced by the Applicant, I assume that this ground of appeal also advances the argument that if admitted, the fresh evidence could reasonably be expected to impact on the outcome of the appeal.

[8] It appears that the defence position at trial was that it could be inferred from the evidence: (a) that Mr. Kevalas was intoxicated by drugs or alcohol at the time of the offences, such that he did not have the capacity to form the specific intent required to commit them; and/or (b) regardless of whether intoxication deprived him of the capacity to form the necessary specific intent, that, as a result of intoxication he did not have the necessary specific intent.

[9] The proposed fresh evidence consists of medical records from a hospital emergency department. These show that in the very early hours of the morning on the date of the offence, Mr. Kevalas was passed out in a car at the side of the road. He was brought to hospital at 2:30 a.m., where he was intoxicated, agitated, moaning and groaning, and not answering questions. He was given antipsychotic medication Haldol and sedative Lorazepam. He was physically restrained. Notwithstanding having been given a sedative, Mr. Kevalas occasionally fought the restraints. The treating physician noted that he was impaired, and likely intoxicated by a sympathomimetic drug. I am advised this is a category of stimulant drugs which includes cocaine and amphetamines. Blood tests revealed “potentially toxic” ethyl alcohol levels, and the possible presence of a stimulant. The last entry in the medical record was at 7:15 a.m. on the day of the offences, at which time Mr. Kevalas was still somnolent. The treating physician noted that the plan was to discharge him when he was awake and sober. There is no discharge note. It seems that Mr. Kevalas left hospital at some point after 7:15 a.m., without having been discharged.

[10] By way of background, the offences occurred at 2:00 p.m. the same day. Mr. Kevalas broke into a residence, stole valuables, attempted to flee, and threatened to kill the home-owner and his neighbour when they tried to detain him pending the arrival of the police. Mr. Kevalas had little or no memory of these events. He was wearing a hospital bracelet and had ECG tags on his body at the time.

[11] The Crown position is that the proposed fresh evidence could not be admitted on appeal because it does not satisfy the requirements of due diligence or cogency. For these reasons, the Crown submits that the ground of appeal arising from the fresh evidence does not have arguable merit.

[12] The proposed fresh evidence hospital records were put before the Court at first instance as part of the sentencing hearing, and were referred to extensively in submissions on sentence. They were in the hands of defence counsel when the case was still in the provincial court. These records existed as of the date of the offence, so they could have been obtained through the exercise of due diligence at trial. Indeed, they were obtained by trial counsel at some point, but were not used until sentencing. The Crown acknowledges that the due diligence criterion is not to be applied rigidly as a prerequisite to the admission of fresh evidence on appeal (R. v. Hay, 2013 SCC 61) so as to avoid miscarriages of justice. However, the Crown submits that in the circumstances of this case, the due diligence requirement necessitates an explanation of the failure to produce the hospital records at trial before they can be admitted on appeal.

[13] The Crown further submits that the proposed fresh evidence is inadmissible on appeal because it does not satisfy the cogency prerequisite. This criterion requires a determination that the evidence is sufficiently cogent that it could reasonably be expected to have affected the verdict (R. v. M. G. T., 2017 ONCA 736 at paras 103-104). The Crown position is that the fresh evidence could not have affected the result at trial. This is because, the Crown submits, the judge’s findings of fact demonstrate that he considered, and went on to find, that specific intent was proven. Crown counsel submits that the trial judge’s findings are of directed, logical, and deliberate actions on Mr. Kevalas’s part; and that the trial judge inferred the requisite intention from these actions, as he was permitted to do. The Crown submits that given these findings, it could not be said that Mr. Kevalas lacked the required mens rea for the offences, even with the addition of the proposed evidence. The addition of new and further evidence of intoxication could not conceivably lead to a different outcome at trial, according to the crown. This is especially so, on the Crown’s submission, because the offences occurred many hours after Mr. Kevalas’s intoxication was documented at the hospital. Without expert evidence, the Crown says, the fresh evidence can not assist in determining Mr. Kevalas’s level of intoxication at the time of the offences. It therefore could not possibly have affected the result at trial, and cannot affect the outcome on appeal.

(ii) Is this an arguable ground of appeal?

[14] The offences at issue in this case all appear to be specific intent offences.[^1] As the Supreme Court of Canada noted in R. v. Tatton, 2015 SCC 33 at paras. 27-28, specific intent offences:

. . . require a heightened mental element. For example, they often require “the formation of further ulterior motives and purposes” . . . Because such crimes require more complicated thought and reasoning processes, one can readily understand how intoxication short of automatism may negate the required mental element.

[15] Evidence of intoxication may well be relevant, or even determinative, of a defendant’s capacity to form specific intent. Or of whether they did have specific intent.

[16] In this case, the defence was that Mr. Kevalas was too intoxicated to have specifically intended to commit the offences with which he was charged. The trial judge found that there was not enough evidence to raise a reasonable doubt as to whether Mr. Kevalas was too intoxicated to form the requisite mens rea.[^2] The relevant portions of the trial judge’s Reasons for Judgment are as follows, at paras. 4, 7 10:

4. The actus reus of these offences is not seriously in dispute. The Crown submits that there is an extensive body of evidence to support the inference that Mr. Kevalas acted intentionally. Counsel for Mr. Kevalas submitted that his client’s testimony, taken with evidence of his hospital stay, and observations of him by the witnesses, should raise a reasonable doubt that he acted with intention.

5. Mr. Kevalas’ account of the evening was scant in detail. His evidence described a pattern of blackouts without explanation. Perhaps the most logical potentially exculpatory explanation, that he was extremely intoxicated by drug or alcohol, had little foundation. He admitted to drinking the evening before the event, but not too much. He maintained his assertion that he ‘did not remember’ regarding any aspect of the offence.

6. Counsel submitted that there is some foundation to support the idea that Mr. Kevalas did not have an operating mind at the time of the offences: his hospital identification bracelet, the ECG patches, witness impressions that he was drugged or intoxicated by alcohol. However, this, without more and the bald assertion that he does not remember, is not evidence of his state of mind at the time of the offence. I find that the evidence on this record does not raise a reasonable doubt regarding his state of mind at the time of the offence.

7. The evidence supporting the inference that he had an operating mind is somewhat overwhelming and includes: his search for items of value within the home, their selection, their seizure, his flight from the home with these valuables through the bathroom window at the back of the home as Mr. Robinson’s children were at the front door, resistance to detention, threatening conduct attempting to secure escape, his upset with getting caught by police – all speak to a responsive, operating mind.

8. Having considered all of the evidence in this case, I find that the Crown has proven each of the offences before the Court beyond a reasonable doubt.

[17] The proposed fresh evidence speaks to the central issue at trial, Mr. Kevalas’s intoxication. It suggests that some twelve hours before the offences, he was hospitalized and found to have potentially toxic levels of ethyl alcohol in his blood. An emergency department doctor thought he might have also ingested stimulants. An antipsychotic and a sedative were administered to him.

[18] In my view, the Applicant’s argument for admission of the proposed fresh evidence is not frivolous. The evidence is arguably relevant in that it bears on the potentially decisive issue of whether Mr. Kevalas was so intoxicated that he could not and/or did not form the specific intent to commit the offences. I do not accept the Crown’s submission that there is simply no way that additional evidence regarding Mr. Kevalas’s intoxication could arguably have altered the trial judge’s assessment of whether mens rea was proven, particularly in light of the trial judge’s finding of an absence of relevant evidence on point. As medical records created by health professionals in the execution of their duties, the proposed fresh evidence is arguably credible and reasonably capable of belief. It could be argued that the evidence fills the evidentiary gap noted by the trial judge in relation to whether Mr. Kevalas was so intoxicated that he could not and/or did not have the required mens rea. I also consider it arguable, in light of the above-noted findings of the trial judge, that the fresh evidence might be expected to have affected the verdict. In other words, the argument that the admission of the fresh evidence is in the interests of justice is not frivolous.

[19] I agree with the Crown that the due diligence criterion is of concern here. It may ultimately not be in the interests of justice to admit the fresh evidence because of the failure of defence counsel at trial to exercise due diligence. But in my view, that is a matter for the Court to determine on the basis of full argument, armed with the full trial record, on appeal. The reason for trial counsel’s failure to adduce this evidence at trial – whether it was a decision made for strategic reasons, or whether it was counsel’s oversight or omission – may be important in determining where the interests of justice lie. The jurisprudence has established that a failure of due diligence should not act as an absolute bar to the reception of fresh evidence where this would cause a miscarriage of justice. The weight to be given to a failure of due diligence, if there was one here, and whether there would be a potential miscarriage of justice if absence of due diligence were to prevent reception of the evidence, are again matters for reasoned argument on the basis of the whole record. These are matters that cannot be determined summarily on the basis of the record before me on this bail application. Notwithstanding due diligence concerns, it remains arguable at this stage that the fresh evidence is admissible and that it may have an impact on the outcome of the appeal.

[20] Evidentiary limitations highlighted by the Crown may ultimately result in the Summary Conviction Appeal Court declining to admit the fresh evidence on appeal. Or they may lead to a finding that the fresh evidence, once admitted, is of limited assistance. In the absence of expert evidence as to how intoxicated Mr. Kevalas would have been so many hours after ingesting his last intoxicant, and/or how a combination of alcohol, stimulant drugs, and the medications administered in hospital would have impacted on his specific intent, the fresh evidence proffered may be of limited probative value. But Applicant’s counsel relies on the Court of Appeal’s holding in R. v. Paszenczenko, 2010 ONCA 615 at para. 61, that courts are entitled to take judicial notice of rates of alcohol elimination. He calculates what Mr. Kevalas’ blood alcohol level (“BAC”) would have been at the time of the offences, starting with the BAC noted in the hospital records, relying on the Paszenczenko formula. He submits that Mr. Kevalas’ BAC could have been over .150 at the time of the offences, almost double the Criminal Code driving limit. A BAC at this level could arguably impact on the formulation of specific intent. I conclude that evidentiary limitations and probative value of the proposed fresh evidence, as these may affect admissibility or weight, are arguable issues. The evidence has arguable probative value. These are matters that should be heard and determined at the hearing of the appeal with the benefit of facta, argument, and the full trial record.

III. CONCLUSION

[21] For the foregoing reasons, I am satisfied that at least one of the grounds of appeal advanced by the Applicant is not frivolous. The test for bail pending summary conviction appeal has been met. The application is allowed. A release order will issue on the terms outlined above.

Jill R. Presser J.

Date: November 12, 2021

[^1]: The Applicant relies on the following cases as authority for the proposition that the offences at issue are specific intent offences: (i) unlawfully being in a dwelling house with intent to commit indictable offence: R. v. Proudlock, [1979] 1 S.C.R. 525 at paras. 29, 33 ; (ii) theft: Leclair v. R. (1979), 11 C.R. (3d) 287 (Ont. C.A.) at paras. 1 – 2; (iii) possession of property obtained by crime: R v Tatton, 2015 SCC 33 at para. 38; (iv) threatening death: R. c. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931 at paras 17 – 19.

[^2]: Mr. Kevalas advances a ground of appeal, as noted, that the trial judge erred in only considering whether Mr. Kevalas was too intoxicated to have capacity for specific intent and in failing to consider whether he had actually formed specific intent. I do not intend to be taken to be expressing an opinion here as to the arguable merit of that ground of appeal in this case.