Date:20000126
NOVA SCOTIA COURT OF APPEAL
[Cite as: R. v. Shrubsall, 2000 NSCA 18]
Chipman, Roscoe and Bateman, JJ.A.
BETWEEN:
WILLIAM C. SHRUBSALL ) Appellant in Person
)
Appellant )
)
- and - )
)
HER MAJESTY THE QUEEN ) Kenneth W.F. Fiske, Q.C.
) for the respondent
Respondent )
)
)
)
) Appeal heard:
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) Judgment delivered:
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)
BATEMAN, J.A.:
[1] Mr. Shrubsall appeals from the decision of Justice Tidman of the Supreme Court who dismissed his appeal from a conviction in Provincial Court on a charge of criminal harassment (“stalking” - Criminal Code, R.S.C. 1985, c. C-46, s.264). The appellant is self represented here, as he was before Tidman, J. He was represented by counsel at trial.
[2] On his appeal to the Supreme Court, pursuant to the provisions of s.686 of the Code, Mr. Shrubsall alleged that the verdict was unreasonable and not supported by the evidence. In addition, it was his position that Judge Curran of the Provincial Court had erred in admitting as evidence an audiotape of a confrontation between the complainant and Mr. Shrubsall.
[3] In his Application for Leave and Notice of Appeal to this Court Mr. Shrubsall stated the following grounds:
1. The trial judge made several errors in law and failures in judgement in rendering his decision in a finding of guilty; in upholding this decision of the trial judge, the learned Supreme Court Justice also has erred in law in the same manner:
a.) The trial judge erred in law by finding the Appellant "knowingly or recklessly" harassed the Complainant, according to s. 264(1) of the Criminal Code.
b.) The trial judge erred in law by finding that the Complainant "reasonably, and in all the circumstances," feared for her safety, according to s. 264(1).5
c.) The trial judge erred in law by founding his decision on an alleged event that even in his own admission did not constitute "communication," though the Appellant was specifically charged with violating s. 264(2)(b).
d.) The trial judge erred in law by not considering the concept of "reasonable doubt" on the basis of the evidence adduced and its application thereof.
e.) The Crown Attorney wilfully withheld exculpatory evidence from the learned trial judge, contrary to his sworn duty to present all the relevant evidence in the interests of justice. Also, the Crown knowingly misstated the testimony of witnesses and knowingly asserted things for which there was no reasonable basis in the evidence or good faith basis to believe.
f.) The trial judge erred in law by admitting into evidence, an item which he declared in a voir dire to be the product of a warrantless search, thus violating the Appellant's freedom from illegal search and seizures as provided for in Section 8 of the Charter of Rights and Freedoms.
2. The learned Supreme Court Justice erred in law by failing to properly appreciate the appellate powers as set out in s. 686 (1)(a) C.C.C., and by further failing to apply these powers in this case as was warranted.
3. The learned Supreme Court Justice erred in law by failing to properly reweigh the evidence, in its entirely, as was appropriate and necessary.
4. The learned Supreme Court Justice erred in law by upholding an unreasonably low evidentiary standard for conviction, re: s. 264, as was set in this case at trial.
5. The learned Supreme Court Justice erred in law by failing to properly apply all the elemental standards, re: s. 264, as established in the relevant case law.
[4] These grounds were restated as three issues in Mr. Shrubsall’s factum:
1. The learned Supreme Court Justice, and the trial judge before him, erred in law and fact by failing to properly apply all the elemental standards, re: s. 264 Criminal Code of Canada, and by employing an unreasonably low evidentiary standard for conviction with respect to the findings at trial.
II. The learned Supreme Court Justice, and the trial judge before him, erred in law by admitting into evidence an item which was declared in a voir dire to be the product of a warrantless search, thus violating the Appellant's freedom from illegal search and seizures as provided for in Section 8 of the Charter of Rights and Freedoms.
III. The learned Supreme Court Justice erred in fact and in law by failing to properly appreciate the appellate powers as set out in s. 686(1)(a) of the Criminal Code of Canada - that is, he failed to properly review and reweigh the evidence, in its entirely, with respect to the trial judge's findings on credibility, reasonable doubt, and other key issues - and consequently failed to apply these powers in this case where the verdict was both unreasonable and a miscarriage of justice.
The Offence:
[5] “Criminal harassment” is defined in s.264 of the Code:
264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling‑house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
(Emphasis added)
[6] In R . v . Sillipp (1997), 120 C.C.C. (3d) 384 (Alta.C.A.) the Court summarized the elements which the Crown must prove on such a charge (at p.393):
[18] In the result, a proper charge to a jury in a criminal harassment case must include reference to the following ingredients of the crime, all of which must be proved beyond a reasonable doubt:
1) It must be established that the accused has engaged in the conduct set out in s. 264 (2) (a), (b), (c), or (d) of the Criminal Code.
2) It must be established that the complainant was harassed.
3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and
5) It must be established that the complainant's fear was, in all of the circumstances, reasonable.
. . .
[27] I would add only that the application of the reasonable person test to the objective evaluation of "all the circumstances" does not mean that the particular vulnerabilities of the complainant are excluded from consideration. .....
Analysis:
[7] As was noted by this Court in R. v. Cunningham (1995), 143 N.S.R. (2d) 149 (C.A.) an appeal of the decision of a summary conviction appeal judge, pursuant to s.839 of the Criminal Code, as is this, requires leave and is limited to questions of law. The error of law required to ground jurisdiction in the Court of Appeal is that of the summary conviction appeal court judge, not the trial judge:
839. (1) Subject to subsection (1.1), an appeal to the court of appeal as defined in section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against
(a) a decision of a court in respect of an appeal under section 822; or
(b) a decision of an appeal court under section 834, except where that court is the court of appeal.
. . .
(2) Sections 673 to 689 apply with such modifications as the circumstances require to an appeal under this section.
[8] Mr. Shrubsall submits that the summary conviction appeal court judge erred by adopting errors of law made at trial and by failing to properly apply his appellate powers pursuant to s.686(1)(a) of the Code:
686. (1) On the hearing of an appeal against a conviction . . . the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where
(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,
(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or
(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;
[9] This Court in R. v. Hurford (1998), 170 N.S.R. (2d) 379, recently confirmed the test to be applied by a summary conviction appeal court when an unreasonable verdict is alleged. In reviewing the finding as to sufficiency of the evidence, the summary conviction appeal court judge is not entitled to retry the case but to determine whether the verdict is unreasonable. This requires the appeal court judge to determine whether the trial judge could reasonably have reached the conclusion that the accused was guilty beyond a reasonable doubt. (citing R. v. Grosse (1996), 107 C.C.C. (3d) 97 (Ont.C.A.)) (see also R. v. Nickerson, [1999] N.S.J. No. 210 (N.S.C.A.)) Justice Tidman was clearly aware of the test by which he was to review Judge Curran’s decision. He addressed himself to that decision in detail and concluded:
A review of the trial transcript and exhibits satisfy me there was sufficient evidence upon which the trial judge could reasonably have concluded that the appellant’s conduct constituted criminal harassment and that the appellant either knowingly or recklessly harassed the complainant. .....
[10] The appellant has not persuaded me that Justice Tidman erred in the application of his review powers under s.686(1)(a). He addressed each of the appellant’s grounds in detail and was satisfied (i) that there was evidence from which the trial judge could reasonably have concluded that the complainant feared for her physical safety; (ii) that there was ample evidence upon which the trial judge could reasonably find that the appellant repeatedly communicated directly or indirectly with the complainant; and, (iii) that the trial judge, having accepted much of the complainant’s evidence in preference to that of the appellant, did not err in his consideration of the concept of reasonable doubt. I, too, have reviewed the transcript and would agree with Justice Tidman. There is nothing in his decision to indicate that he applied the wrong test. Nor is there anything in the record which would raise issues going to the fairness of the trial in the context of a miscarriage of justice. I cannot conclude that Justice Tidman erred in accepting the reasonableness of the trial judge’s findings of credibility.
[11] This leaves, then, only the question of the admission of an audiotape of a confrontation between Mr. Shrubsall and the complainant. This tape was seized by the police during the execution of two search warrants at Mr. Shrubsall’s room in the fraternity house where he was living at the time of his arrest. The search warrants were issued in relation to two alleged offences separate from the stalking charge and involving different victims. After a voir dire Judge Curran found that the audiotape did not fall within any category of the items authorized by the warrants and thus was unlawfully seized. He nevertheless admitted the tape into evidence. He said:
Warrantless searches are and based on Hunter and Southam, prima facie unreasonable. I think that can be said with respect to the searches here, as far as s.8 of the Charter of Rights is concerned. However, the police acted in good faith, believing that they had valid search warrants and I’d say most significantly, this was an apparent crime scene which has in my view or which provides the occupants in my view, a reduced expectation of privacy. In any event, based on the Collins decision of the Supreme Court of Canada, I am satisfied that the admission into evidence of this real and unconscripted evidence, the cassette, would not bring the administration of justice into disrepute and consequently although as I’ve said, I’m not satisfied about the validity of the search warrants or the application of s.489, I’m satisfied that the crown may nevertheless introduce the cassette in evidence . . .
[12] On review of this issue Justice Tidman said:
.....In view of the situation that much evidence of the confrontation was given by various witnesses at trial one may say that the tape was the best evidence of what actually occurred during the confrontation. Since its contents could have been and were, in fact, dealt with by the defence on examination and cross-examination, the admission of the tape contents under all circumstances was not unfair.
[13] Evidence obtained in violation of the Charter is excluded pursuant to s.24(2) only if its admission would bring the administration of justice into disrepute. In Stillman v. R. (1997), 113 C.C.C. (3d) 321 (S.C.C.) the standard of review on such an issue was stated (per Cory J.):
[68] It has been held that appellate courts should only intervene with respect to a lower court's s. 24(2) analysis when that court has made "some apparent error as to the applicable principles or rules of law" or has made an unreasonable finding: R. v. Duguay, [1989] 1 S.C.R. 93, 46 C.C.C. (3d) 1, 56 D.L.R. (4th) 46; Mellenthin, supra.
[14] The audiotape is of an encounter between Mr. Shrubsall and the complainant when she came home to discover that he had let himself into her apartment. Mr. Shrubsall recorded the event and advised the complainant that he was doing so. Both the complainant’s sister and Serge Aucoin, a friend of Mr. Shrubsall, were present. All four witnesses testified about the confrontation. Mr. Shrubsall does not identify any prejudice arising due to the admission of the audiotape nor any error in the trial judge’s decision to admit it.
[15] I am not satisfied that the trial judge erred in admitting the audiotape nor that it’s admission had any impact upon the fairness of the proceeding. Even had I found error, in these circumstances, the tape being non-conscripted evidence of an event about which all lay witnesses could and did independently testify, I would have applied the curative provision in s. 686(1)(b)(iii) of the Code.
Disposition:
I would grant leave but dismiss the appeal.
Bateman, J.A.
Concurred in:
Chipman, J.A.
Roscoe, J.A.