Court File and Parties
COURT FILE NO.: CR-23-76-AP DATE: 20240829
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEALS (East Region)
BETWEEN:
HIS MAJESTY THE KING Respondent – and – MICHAEL RENZI Appellant
Counsel: Ryan Makasare, for the Crown Daniel Howard, for the appellant
HEARD: 29 August 2024, at Kingston
Reasons for Decision
(On appeal from the convictions entered on 22 November 2023 by Justice A.G. Letourneau of the Ontario Court of Justice)
MEW J.
1Michael Renzi appeals his conviction, on 22 November 2022, following a trial, by A.G. Letourneau J. in the Ontario Court of Justice, sitting in Kingston, on three charges of criminal harassment, breach of undertaking, and breach of probation x 2, and against the sentence imposed on 10 August 2023.
2Mr. Renzi represented himself at trial, but was assisted by Mr. Howard, who was appointed by the court pursuant to s. 486.3 of the Criminal Code.
3The events giving rise to the convictions were found to have occurred on 21 February 2020 and 19 May 2020. On both of those days, it is alleged that there were encounters between the appellant and his ex-wife, Amber Green. On each of those days, Mr. Renzi was subject to an undertaking prohibiting him from communicating directly or indirectly with Amber Green, Brian Green and Matayia Renzi, as well as a probation order dated 7 June 2019 requiring Mr. Renzi to, inter alia, keep the peace and be of good behaviour.
4Mr. Renzi was sentenced to 12 months’ incarceration, less four months of pre-trial custody, and was placed on probation for three years, including a condition that the appellant have no contact with any member of Amber Green’s family, which would include Matayia Renzi, who is the daughter of the appellant and Ms. Green.
Overview
5The Crown alleged that on 21 February 2020, Ms. Green spotted the appellant at a Walmart in Kingston at approximately 3 PM. She said that in an attempt to evade Mr. Renzi, she and her daughter quickly went to the toy aisle. Having done so, she said that she noticed Mr. Renzi peering around the top of the aisle, looking down at them. Ms. Green then left the store with her daughter and went to a nearby Toys R Us store, and called the police at around 3:44 PM. A Kingston police officer, PC Douglas, attended the Toys R Us in response to Ms. Green’s call. Ms. Green and the officer spoke for approximately an hour, following which she began to head home. On her way home, she says that she noticed that Mr. Renzi’s car, a red Hyundai Sonata, was following directly behind her. Ms. Green said that Mr. Renzi drove his vehicle, with his head slightly out of the window, right behind her vehicle, for approximately four minutes before he drove away in an opposite direction.
6Mr. Renzi’s defence to these allegations is that he was never in Kingston on 21 February 2020. Rather, at all material times, he claims he was working at his job as a barber at a hair salon in Belleville. He testified that, based on transaction records, his last customer for the day had paid at 2:55 PM, and that he would have left work shortly thereafter and gone home with his young son, who had been dropped off at the salon a little earlier for a scheduled parenting time visit. Father and son then attended a hockey game beginning at 6 PM at Yardmen Arena in Belleville. Mr. Renzi said that he would have arrived at the arena at 5:45 PM, and tendered in evidence a photograph which he says shows that he and his son were together at the game at 6:32 PM. Given that it takes approximately 50 minutes to drive from the hair studio to Walmart in Kingston, he claimed it would have been impossible for him to have been there at 3 PM, as alleged by Ms. Green. Similarly, he could not have been driving behind her sometime after 5 PM in the Kingston area, and then have made it, with his son, to the arena in Belleville by 5:45 PM.
7Mr. Renzi’s employer, Jamie Wyse, testified that the last customer pertaining to the appellant was cashed out at 2:55 PM on 21 February.
8Mr. Renzi also referred to mobile phone records which placed Mr. Renzi’s phone as being in the Belleville areas at 2:17 PM, 2:39 PM, 3:39 PM, 4:11 PM, 5:53 PM and 6:09 PM on 21 February 2020.
9In respect of the second incident, Ms. Green testified that she was a passenger in a Ford F150 pickup truck driven by her husband, Brian Green. Their two children were in the rear seat. They had been to a store in Kingston to purchase a kitchen stove. As they drove away from the store, Ms. Green said that she noticed Mr. Renzi driving behind their vehicle in a red Hyundai Sonata car. She said that she and Mr. Renzi saw each other. Although Mr. Green changed lanes a couple of times, Mr. Renzi’s vehicle allegedly remained behind them. When they stopped at an intersection on Bath Road, Ms. Green took some photographs, identifying both the licence plate of the Sonata and Mr. Renzi as its driver. Ms. Green testified that Mr. Renzi looked directly at her. He was laughing; he had a grin on his face and then shook his head back and forth, before accelerating and turning left.
10Mr. Renzi agreed that he was in Kingston on 19 May 2020. He had driven from Belleville to Kingston to meet his girlfriend, Kimberly Leslie. He reached his destination at 12:27 PM. He did not see the Greens’ vehicle, nor was he familiar with the vehicle’s licence plate.
11Mr. Renzi’s appeal against conviction asserts that the trial judge misapprehended the evidence by finding that the timestamp of the photograph taken at the arena was 12:06 PM, rather than 6:32 PM.
12Furthermore, Mr. Renzi says that the trial judge erred by reaching an unreasonable verdict, on the totality of the evidence, including the photo at the arena, the mobile phone records, the salon records and the oral testimony of Mr. Renzi and his employer, raised serious doubts as to the truthfulness of Ms. Green’s evidence.
13With respect to the 19 May incident, the appellant argues that such is the unreliability of Ms. Green’s account of the events of 21 February, that her credibility at large was undermined to a sufficient degree that the trial judge should have been left in a state of reasonable doubt in respect of the May allegations, as well as those emanating from February.
Law - Conviction Appeal
14The appellant and the respondent are in substantial agreement on the applicable legal principles.
15A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. Morrissey (1994), 97 C.C.C (3d) 193 (Ont. C.A.) at para. 83.
16Where a misapprehension of the evidence is alleged, the court is required to consider the reasonableness of the verdict. In considering the reasonableness of the verdict, the appeal court must conduct its own, albeit limited, review of the evidence adduced at trial. A misapprehension of the evidence does not render a verdict unreasonable. A finding that the judge misapprehended the evidence is not a condition precedent to finding that a verdict is unreasonable. However, it will be easier to demonstrate the unreasonableness of a verdict if the appellant can demonstrate that the trial judge misapprehended the evidence: R. v. Morrissey, at para. 89; R. v. B. (R.H.), [1994] 1 S.C.R. 656 at paras. 13-16.
17Even if the court’s verdict is not unreasonable, an appellate court should consider whether the trial court’s misapprehension of evidence renders the trial unfair. If it does, the conviction should be quashed: R. v. Morrissey, at paras. 88 and 91.
Analysis
18The specific misapprehension of evidence alleged by Mr. Renzi relates to a photograph which is said to show Mr. Renzi and his son at the Yardmen Arena in Belleville at 6:32 PM. At paragraph 227 of his reasons, the trial judge wrote:
Mr. Howard points to Trial Exhibit 11 that shows Rocco, being Mr. Renzi’s son, at the Belleville Yardsmen’s [sic] Arena on February 21, 2020 with a timestamp 6:25 p.m.. However, the Exhibit indicates that the screenshot image was taken on that date at 12:06 p.m.
19Based on this extract, the appellant argues that the trial judge erroneously found that the photograph from the Yardmen Arena did not support his alibi because it was taken at 12:06 PM, despite of the photo clearly indicating that it was taken at 6:32 PM. The appellant says that the trial judge confused the time that the screenshot was taken with the timestamp on the photo.
20Earlier in his reasons, when describing the photograph, the trial judge wrote, at paragraph 42:
Mr. Renzi testified that the photograph that is marked as Exhibit 11 in this trial shows Rocco, his son, sitting in a chair close to the plexiglass and the wooden boards at the Yardmen’s [sic] Arena in Belleville Mr. Renzi testified that he was involved in two hockey games that night and he, and Rocco, were present at that arena for at least 3 hours. The following information is displayed at the top of the top of Mr. Renzi’s screenshot: “Bell, 12:06 p.m., Yardmen Arena, Feb 21, 2020, 6:32 p.m.”.
21At paragraph 92, the trial judge once again referred to Exhibit 11, referring to it as “the Instagram photograph” showing Rocco at the Yardmen’s Arena on 21 February 2020, and continuing:
The Court believes that the timestamp was 6:32 p.m. and the screenshot photograph was captured that day at 12:06 p.m.
22At paragraph 157, commenting on a submission by Crown counsel that the picture of Rocco was taken at 6:32 PM, the trial judge agreed that the photograph was of no assistance because Mr. Renzi would have had plenty of time to get from County Road 6 (where Ms. Green said she had last been followed by Mr. Renzi) to the arena.
23It is clear from these extracts that the trial judge was under no misapprehension as to the purpose for which the photograph was tendered, namely, to show that the appellant and his son were at the arena in Belleville at 6:32 PM, little more than an hour after Ms. Green alleges that Mr. Renzi was following her vehicle on a road just outside Kingston. I disagree that the trial judge misunderstood the time that the photograph was taken. Aside from the obvious point that the screenshot and the photograph could not have been taken on the same day, the important finding by the trial judge was that there was ample time for Mr. Renzi to have been following Ms. Green while she was on her way home, sometime after 5 PM, and still be at the arena in Belleville at 6:32 PM. As a result, he found the photograph to be of no assistance to the appellant.
24I therefore reject the ground of appeal predicated on the trial judge’s alleged misapprehension of the arena photograph.
25The more general ground of appeal is that the trial judge reached an unreasonable verdict because on the totality of evidence, there were serious doubts as to the reliability of the complainant’s evidence.
26The trial judge’s written decision consists of 54 pages containing 244 numbered paragraphs. It is clear from a review of his decision that he carefully considered all of the evidence, including the testimony of Ms. Wyse, the records from the salon, Mr. Renzi’s mobile phone records and the arena photograph. He also set out in some detail the evidence given by both Mr. Renzi, Ms. Green and Mr. Green. He stated the analytical framework established by the Supreme Court of Canada in R v. W.(D)., [1991] 1 S.C.R. 742 and then proceeded to apply it to the evidence.
27It is clear from a review of the trial judge’s reasons that he had significant concerns about the appellant’s credibility. He described Mr. Renzi as a “terrible” witness. At paragraph 193, the trial judge wrote:
Mr. Renzi was highly evasive during his testimony. He was self-congratulatory and very confrontational. He tried to hijack the narrative at every opportunity. He went on lengthy tangents, purposely, to avoid answering the relevant questions. Consequently, the Court is very cautious in regards to the reliability and credibility of Mr. Renzi’s evidence in this trial.
28The trial judge concluded that what were presented by Mr. Renzi and his employer as contemporaneous records of when Mr. Renzi had been with customers at the salon were likely not contemporaneous. One of the concerns with the records was that Mr. Renzi had seen three clients who had scheduled appointments on the morning of the 21st. Mr. Renzi said there was then a walk-in client, as reflected by the record that his last client had been cashed out at 2:55 PM. Yet there were only cash-out records for three clients of Mr. Renzi’s that day, not four.
29There was also evidence indicating that Mr. Renzi had only worked until 2 PM on 21 February. Indeed, his employer had originally written a letter to that effect.
30With respect to the evidence of Ms. Wyse, the trial judge said that he believed that she did her best when she testified at trial, but he did not accept her evidence that Mr. Renzi had worked past 2 PM. He explained his reasons for coming to this conclusion, including the fact that three of the receipts for work that Mr. Renzi had done in the morning were not put into the salon’s register until much later after the customers’ cuts were completed. It was also clear from the booking schedule that Ms. Wyse was very busy looking after her own clients that afternoon and would not have had time to interact with Mr. Renzi.
31The trial judge found that the mobile telephone evidence simply showed that Mr. Renzi’s phone was in use in Belleville that afternoon, but was not dispositive of where Mr. Renzi was. I would observe that the Crown agreed to the mobile phone records being entered as an exhibit despite the fact that it violates “all sorts of rules”, and that no other evidence was tendered, beyond the filing of Mr. Renzi’s Bell Mobility bill, concerning the calls recorded as having been placed or received that afternoon.
32There is no doubt that the trial judge found the evidence given by the complainant to be credible and compelling. Her many years of acquaintance with the appellant rendered it impossible, in his assessment, that she would have mistaken the identity of the person she saw in the Walmart store.
33With respect to the May incident, the trial judge simply did not believe Mr. Renzi’s assertion that he did not realise the truck that he was following was Mr. Green’s.
34Mr. Howard candidly acknowledges that, taken in isolation, each piece of objective evidence – the phone record, the transaction receipts, the salon’s schedule and the arena photograph – might not raise a reasonable doubt, but that taken together it was unreasonable for the court not to have concluded that the evidence raised a reasonable doubt.
35As I understand the submission, the appellant is saying that even if the evidence of Mr. Renzi was not believed, there was sufficient evidence – “objective” evidence – that the court should have accepted, that should have raised a reasonable doubt as to whether the offences had been committed.
36It is not the function of an appellate court to determine whether it would have come to the same conclusion as the trial judge. Rather, to the extent that an appellate court reviews the evidence at trial, it is to determine whether the verdict was unreasonable in other words, that it was a verdict that no judge or jury, acting judicially, could have reached: R. v. Villaroman, 2016 SCC 33, paras. 55 and 69.
37Having carefully reviewed the comprehensive decision of the trial judge, the submissions of counsel, and the applicable legal principles, I am satisfied that there was in fact an ample evidentiary basis for the findings made by the trial judge. He considered all of what the appellant has characterised as the objective evidence, and explained his reasons for not relying on that evidence.
38Having rejected the appellant’s account, the evidence supports the trial judge’s finding that Mr. Renzi was guilty of criminally harassing Amber Green on 21 February 2020 by following her from place to place, then and by following Amber Green and Brian Green on 19 May 2020. In so doing, Mr. Renzi was also in breach of the probation order requiring him to keep the peace and be of good behaviour. And by following Ms. Green as described, the trial judge’s finding on the charge of breaching his undertaking by directly or indirectly communicating with Ms. Green was also supported by the evidence.
39The appeal against conviction is therefore dismissed.
Sentence Appeal
40The appeal against sentence is premised on the assertion that the sentence imposed was harsh and/or excessive given the particular circumstances of the offender and the offences.
41The appellant submits that the sentence was disproportionate to the facts of the case. The circumstances of the criminal harassment offence were at the low end of the spectrum – two relatively brief encounters, featuring no violence or threats – and did not warrant a sentence at what the appellant argues was the higher end of the range. Although the appellant’s criminal record included a prior criminal harassment conviction involving Amber Green, that offence had yielded a conditional discharge. The longest jail sentence that the appellant had received prior to the index offences was 45 days for theft under $5,000 and mischief under $5,000 (although it is noted that those offences involved a different domestic partner).
42The appellant also takes issue with the probation condition of non-association with any member of Amber Green’s family, which would include his daughter with Ms. Green. In that regard, the trial judge recorded that Ms. Green had been granted sole custody of their daughter.
43Appellate intervention with a sentence is only appropriate where the sentencing judge has committed an error in principle that impacted the sentence or otherwise imposed a sentence that was demonstrably unfit: R v Lacasse, 2015 SCC 64, at paras. 36-55. At trial, the Crown referred to R. v Jafarian, 2014 ONCA 9 as support for a range of sentences between 12 to 15 months where an accused has prior convictions for criminal harassment and breach of court orders forbidding direct or indirect contact with a former spouse.
44Given the aggravating factors in this case, the custodial sentence imposed by the trial judge in fact fell at the low end of the applicable range. Although I would concede that there were no direct threats, the trial judge considered Mr. Renzi’s second criminal harassment conviction against the same victim to be a particularly aggravating factor. I find no error of principle on the trial judge’s part.
45With respect to the condition of probation regarding contact with the appellant’s daughter, counsel for the Crown, having consulted with the Witness Victim Assistance Program, and with Matayia Renzi, who is now 18 years old and is present in court, advised that the Crown will not opposed to varying the prohibition against contact with Matayia Renzi, by adding as a condition that there may be such contact given written and revocable consent by Matayia Renzi to the probation officer.
46The sentence is varied with respect to contact with Matayia Renzi, but the sentence appeal is otherwise dismissed.
Mew J.
Released: 29 August 2024