



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sabir, 2018 ONCA 912

DATE: 20181114

DOCKET: C63563

Strathy C.J.O., Nordheimer J.A. and McKinnon J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Belal Sabir

Appellant

Boris Bytensky, for the appellant

Caitlin Sharawy, for the respondent

Heard: October 16, 2018

On appeal from the conviction entered on September 22,
    2016 and the sentence imposed on March 27, 2017 by Justice Johanne Morissette
    of the Superior Court of Justice, sitting without a jury.

Strathy C.J.O.:

Introduction

[1]

The appellant appeals his convictions for criminal harassment (count 1),
    mischief under $5,000 (count 2), possession of a weapon for a purpose dangerous
    to the public peace (count 3), and the use of an imitation firearm in the
    commission of an offence (count 4). He also seeks leave to appeal his sentence
    of 18 months custody and two years probation.

[2]

For the reasons that follow, I would allow the appeal from the
    convictions on the weapons offences and would order a new trial on those
    counts. In the circumstances of this case, the trial judge did not discharge
    the heavy burden of providing meaningful assistance to the unrepresented
    accused.

[3]

I would grant leave to appeal sentence and would allow the sentence
    appeal in part.

Facts

[4]

The appellant and the complainant were co-workers. They did not get
    along. The complainant had spoken to her manager about a series of incidents in
    the workplace involving the appellants threatening words and conduct that had
    made her very uncomfortable.

[5]

In the early morning of August 21, 2014, the complainant left her
    boyfriends house and got into her car to drive home. She noted the appellant watching
    her from his own car, a black Volkswagen Golf. The complainants boyfriend
    testified to seeing a black Volkswagen on the street as the complainant was
    leaving his home. He did not observe who was inside the vehicle.

[6]

As the complainant began to drive away, she saw the appellant get something
    out of his trunk and then follow her in his car. He continued to follow her
    car, accelerating and decelerating at the same pace as she did. On two
    occasions, he came alongside her car, as if to force her off the road.

[7]

At some point, the complainants driver-side window shattered. The
    appellant made a U-turn in front of her and drove away. She called the police.

[8]

Two officers, P.C. Lucas and Sgt. Gilmore, responded to her call. The
    complainant was visibly distraught. They examined the vehicle and noted a small
    round divot near the top of her shattered window, which was held in place by
    the tinting film. They suspected that the damage was caused by a projectile,
    possibly a bullet. The complainant identified the accused as the individual who
    had been following her in his vehicle.

[9]

Another officer, P.C. Bollman, went to the appellants residence.
    Although it was the middle of the night, he found the appellant inside his
    garage, with the door open. He arrested the appellant for property damage and
    criminal harassment and read the appellant his rights. The arrest took place
    without incident.

[10]

Sgt.
    Gilmore arrived at the appellants residence as P.C. Bollman was effecting the
    arrest. He observed a Nissan vehicle parked outside the appellants residence.
    The rear windshield was shattered and had a small hole in it, similar to the
    damage to the complainants vehicle.

[11]

Sgt.
    Gilmore questioned the appellant about what had happened to the Nissan. The
    appellant said that it was being sent for salvage and that he had shot out the
    back window with his BB gun. Sgt. Gilmore asked him where the gun was. The
    appellant replied that it was in the trunk of his Volkswagen.

[12]

Sgt.
    Gilmore informed the appellant that they would tow his car and get a warrant to
    search it. The appellant allegedly agreed to let them search the vehicle and signed
    a Consent to Search form, permitting them to do so. The form stated that the
    purpose of the search was to assist in an investigation of criminal
    harassment. The vehicle was searched and a loaded BB gun was seized from the
    trunk. The appellant was then charged with the firearms offences.

[13]

About
    three months prior to trial, the appellant was provided with a memorandum that
    is prepared for unrepresented accused persons to assist them with criminal
    trial procedure. The actual document was not part of the record before us.

[14]

For
    the trial, counsel was appointed to cross-examine the complainant pursuant to
    s. 486.3 of the
Criminal Code
. The appellant otherwise conducted his
    own defence. He was articulate and had a reasonable appreciation of the trial issues,
    as well as of trial procedure and evidence.

Trial Judges Reasons

[15]

The
    trial judge accepted the complainants evidence identifying the appellant as
    the person who had followed her in his car. This evidence was corroborated by the
    observations of the complainants boyfriend. The trial judge found that the
    appellants conduct while following the complainant in his vehicle amounted to
    criminal harassment.

[16]

She
    also found that the BB gun seized from the appellants vehicle was used for a
    purpose dangerous to the public peace, to threaten and intimidate the
    complainant in furtherance of the criminal harassment, and was used to cause
    damage to the complainants vehicle in an amount less than $5,000.

[17]

The
    trial judge accepted a joint submission and imposed a custodial sentence of 18
    months.

Analysis

A.

Conviction appeal

[18]

It
    is well-settled that there is a heavy onus on a trial judge to assist a
    self-represented accused to ensure the fairness of the trial:
R. v. Tran
(2001), 55 O.R. (3d) 161 (C.A.), at paras. 22-27;
R. v. Dimmock
(1996), 47 C.R. (4th) 120 (B.C.C.A.), at para. 20. The degree of assistance
    required depends on the circumstances of the case and those of the particular
    accused:
R. v. Breton
, 2018 ONCA 753, at para. 13. The appellant
    submits that, in the instant case, this heavy onus was not met because: (1) the
    trial judge failed to conduct a voluntariness
voir dire
in relation to
    the statements made by the appellant to Sgt. Gilmore following his arrest; (2)
    the judge failed to inquire into potential
Charter
breaches; and (3)
    the judge misinformed the appellant concerning his right to testify.

(1)

The Statements

[19]

The
    Crown did not adduce evidence of the appellants statements to the police
    through the evidence of P.C. Bollman, who had arrested him for mischief and
    criminal harassment. In the Crowns examination of P.C. Bollman, the Crown told
    the officer that she was not going to ask him anything about what the appellant
    may have said to him.

[20]

However,
    in the course of the appellants cross-examination of P.C. Bollman, the
    following exchange took place with respect to the officers observations of the
    Nissan:

Q. [by the appellant]: And did you ask the accused what
    happened to the vehicle?

A. I did.

Q. What did he say?

A. Again, I cannot provide

The Crown: Well, he

The Court: No. That is fair. That is the accused.

The Witness [P.C. Bollman]: I can answer that?

The Crown: Yes. You can because he [the appellant] is asking.

A. Yeah. I recall you saying that you shot it out with a BB
    gun.

[21]

In
    examination-in-chief by the Crown, the next witness, Sgt. Gilmore, was asked about
    statements made by the appellant in response to questioning about the Nissan.
    He responded:

I asked him what had happened to that vehicle [the Nissan],
    and he told me it was going to the junk yard so he shot out the back window
    with his BB gun. I then asked him where his BB gun was at the time and he
    indicated to me that it was parked in the trunk of his Volkswagen and he
    further stated [the location of the vehicle].

[22]

The
    appellant submits that the statements made to Sgt. Gilmore regarding the Nissan
    and the BB gun were important pieces of the Crowns case against him. He
    submits that where the Crown seeks to introduce evidence of a statement made by
    an accused to a person in authority, voluntariness of the statement must be
    established beyond a reasonable doubt. The trial judge did not turn her mind to
    the issue of the voluntariness of these statements. There was nothing in the
    record to suggest that the appellant gave an informed waiver of his right to a
    voluntariness
voir dire
.

[23]

The
    Crown submits that the absence of a voluntariness
voir dire
did not
    render the trial unfair for two reasons. First, it was the appellant who
    initially elicited the statements from P.C. Bollman in cross-examination.
    Second, there was nothing in the record to suggest that the statements were not
    voluntary.

[24]

As
    the Supreme Court explained in
R. v. Park
, [1981] 2 S.C.R. 64, at p.
    73, there is no particular wording or formula required to communicate an
    informed waiver. However, the waiver must be express. The question is: Does
    the accused indeed waive the requirement of a
voir dire
and admit that
    the statement is voluntary and admissible in evidence?:
R. v. Park
, at
    p. 74. In the context of a waiver made by defence counsel, the court stated
    that the trial judge must be satisfied that counsel understands the matter and
    has made an informed decision to waive the
voir dire
: at p. 73. The
    onus on a trial judge with respect to voluntariness is high, even where an
    accused is represented by counsel. As the Supreme Court noted in
R. v.
    Hodgson
, [1998] 2 S.C.R. 449, at para. 41: The trial judge has a duty to
    conduct the trial judicially quite apart from lapses of counsel: see
R. v.
    Sweezey
(1974), 20 C.C.C. (2d) 400 (Ont. C.A.), at p. 417. This includes
    the duty to hold a
voir dire
whenever the prosecution seeks to adduce
    a statement of the accused made to a person in authority.

[25]

The
    decision of the British Columbia Court of Appeal in
R. v. Dimmock
is
    instructive on the issue of an informed waiver in the case of an unrepresented
    accused. In
Dimmock
, a new trial was ordered because the trial judge
    did not intervene to hold a
voir dire
on the admissibility of certain
    statements made by the accused to police, or obtain the accuseds informed
    waiver. The court concluded that despite the trial judge explicitly asking the
    accused whether the statements were voluntary and free of any inducement or
    threat, it could not be established based on these exchanges that the accused
    understood the issues and provided informed consent: at para. 22.

[26]

In
    the circumstances of this case, the record does not suggest that the appellant
    understood the purpose and consequences of a voluntariness
voir dire
,
    and made an informed decision to waive his right to a
voir dire
. Nor
    can it be said that, had the trial judge raised the issue of voluntariness with
    the appellant, the appellant would have proceeded in the same manner.

[27]

On
    the second point raised by the Crown, the case law makes clear that the
    voluntariness requirement extends to all statements made by an accused to a
    person in authority, even if the statement appears to be obviously voluntary
    or volunteered: per Dickson J. in
Erven v. The Queen
, [1979] 1
    S.C.R. 926. Whether or not the statement is actually voluntary is a substantive
    issue to be determined in the
voir dire
itself, not on the threshold issue
    of whether a
voir dire
is required.

[28]

When
    the appellant indicated his intention to adduce evidence of the content of his
    statements, the trial judge was required to hold a
voir dire
into the admissibility
    of the statements, in the absence of an informed waiver. In the circumstances
    of this case, she was required to inform the appellant of the purpose of a
    voluntariness
voir dire
, that he had a right to waive a
voir dire
,
    and the consequences of so doing. The appellants response to this information
    may have required a more detailed explanation of the
voir dire
process, including evidence to be adduced by each party and the burden of
    proof.

[29]

It
    is unnecessary to consider what else may have been required to assist the
    appellant in that regard. In the absence of an informed waiver, the failure to
    conduct a
voir dire
vitiates the conviction:
R. v. Park
, at pp.
    69-70. The appellants statements were central to the discovery of the firearm,
    as I describe below.

(2)

The Potential
Charter
Breaches

[30]

P.C.
    Bollman initially arrested the appellant for criminal harassment and property
    damage. While P.C. Bollman likely suspected, as a result of information
    received over the police radio, that a firearm had been shot at the
    complainants car window, this was not communicated to the appellant at the
    time of his arrest. The appellant was read his rights to counsel and he stated that
    he did not have a lawyer.

[31]

Observation
    of the damage to the window of the Nissan led Sgt. Gilmore to conclude that the
    damage was consistent with the damage to the complainants vehicle. Further
    questioning of the appellant following his arrest led to the disclosure that he
    had used a BB gun to shoot the window of the Nissan, and the location of the BB
    gun in the trunk of the Volkswagen.

[32]

The
    extent of the appellants jeopardy had changed after his reference to the BB
    gun and his connection to the shot-out Nissan. There was sufficient evidence of
    a potential breach of the appellants s. 8 and s. 10
Charter
rights to
    require the trial judge to raise the issues on her own motion, to invite
    submissions, and to enter into an inquiry. In
R. v Richards
, 2017 ONCA
    424, 349 C.C.C. (3d) 284, at para. 113, this court stated:

The onus extends, at least can extend, to an obligation on the
    trial judge to raise
Charter
issues on the judge's own motion where the
    accused is self-represented:
R. v. Travers
, 2001 NSCA 71, 154 C.C.C.
    (3d) 426 (N.S. C.A.), at para. 36. This is not to say, however, that this
    specific obligation becomes engaged on the mere scent or intimation of a
    possible
Charter
infringement:
Travers
, at para. 40. But
    where there is admissible uncontradicted evidence of a relevant
Charter
breach, the trial judge has an obligation to raise the issue, invite
    submissions and enter upon an inquiry into the infringement and its
    consequences:
Travers
, at paras.
36, 40;
R. v.
    Arbour
(1990), 4 C.R.R. (2d) 369 (Ont. C.A.), at p. 372.

[33]

Section
    10(a) of the
Charter
protects the right to be promptly informed of the
    reasons for arrest. As this court stated in
R. v. Roberts
, 2018 ONCA
    411, 360 C.C.C. (3d) 444, at para. 78, this requires information that is
    sufficiently clear and simple to enable [the accused] to understand the reason
    for their detention and the extent of their jeopardy. See also
R. v.
    Nguyen
, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 20. The testimony of
    the arresting officers in this case suggests that, despite their suspicion of a
    firearm being involved in the commission of the offence, and that suspicion
    being crystallized upon the appellant making statements about the BB gun and
    the Nissan, the appellant was not promptly informed about his potential jeopardy
    related to the firearms offences. This was sufficient evidence to trigger an
    inquiry into a potential s. 10
Charter
breach.

[34]

With
    respect to s. 8, a consent to search requires that the Crown demonstrate on a
    balance of probabilities that the consent was fully informed. This court in
R.
    v. Wills
(1992), 70 C.C.C. (3d) 529, outlined a number of factors required
    to establish valid consent to a search. Among these factors is a requirement
    that the individual giving consent be aware of the potential consequences of
    giving the consent: at p. 546. In other words,

[t]he
    person asked for his or her consent must appreciate in a general way what his
    or her position is vis-a-vis the ongoing police investigation including the
    nature of the charge or potential charge which he or she may face: at p. 546.
    In
Wills
, the court found that the consent given by the accused to a
    breath test was not a valid waiver of his s. 8 rights because he was not made
    sufficiently aware of his potential jeopardy and the potential consequences of
    consenting to the search. See also
R. v. Borden
, [1994] 3 S.C.R. 145,
    at p. 162.

[35]

At
    trial, Sgt. Gilmore testified that he explained to the appellant the mechanics
    of providing a consent to search  i.e. that it was voluntary and revocable at
    any time. However, the balance of the evidence before the trial judge was that
    the officers had not informed the appellant of the potential firearms charges.
    As noted above, the statements regarding the BB gun and Nissan changed the extent
    of the appellants jeopardy. The consent to search form referenced only an
    investigation into criminal harassment. Taken together, this represented
    sufficient evidence that the consent provided by the appellant may not have
    been fully informed such that an inquiry into the s. 8
Charter
issue
    was necessary.

[36]

On
    this record, there was an objective basis upon which to trigger the trial
    judges obligation to conduct an inquiry into voluntariness and
Charter
issues. The trial judge erred in failing to do so.

[37]

The
    statements made by the appellant in relation to the BB gun and the Nissan
    provided the critical foundation for the firearms convictions and for the
    conviction for mischief. I would accordingly allow the appeal in relation to
    counts 2, 3 and 4.

(3)

The Right to Testify

[38]

The
    appellant asserts that the trial judge, prompted by statements made by the
    Crown, left the appellant with the impression that if he testified in his own
    defence, he had to testify first, before any other witnesses he called. He
    further asserts that the trial judge failed to correct a subsequent Crown
    suggestion that if the appellant testified after other witnesses he called, the
    court would be entitled to draw an adverse inference from that fact.

[39]

The
    court has no authority to direct an accused person to call witnesses in any
    particular order or to give evidence before any other witness:
R. v.
    Angelantoni
(1975), 28 C.C.C. (2d) 179 (Ont. C.A.), at p. 183. Nor, quite
    obviously, is it appropriate to suggest that an adverse inference will be drawn
    from the failure of the accused to testify first:
R. v. Smuk
(1971), 3
    C.C.C. (2d) 457 (B.C.C.A.), at p. 462.

[40]

In
    the circumstances of this case, a review of the record indicates the appellant
    understood that he had a right to testify, understood that he was not required
    to testify first, and made it clear that he had no intention of giving
    evidence.

[41]

I
    am satisfied, therefore, that any error made by the trial judge regarding the
    right to testify did not deprive the appellant of a fair trial.

[42]

For
    these reasons, I would dismiss the appeal in relation to count 1.

B.

sentence appeal

[43]

The
    appellant submits that, in view of his youth and the absence of previous
    offences, if the firearms and mischief convictions are set aside, the sentence for
    criminal harassment should be reduced to time served (34 days), plus probation,
    without further ancillary orders. The Crown submits that the offence of criminal
    harassment is serious, even absent the aggravating aspect of the firearm, and
    proposes a sentence of 8 to 12 months.

[44]

I
    agree with the Crown that, even without the discovery of the firearm, there was
    sufficient evidence of the appellants identity and of his manner of driving to
    support the conviction for criminal harassment.

[45]

I also agree with the Crown that, although the appellant is a
    youthful first offender, the principles of denunciation and general and
    specific deterrence call for a custodial sentence. As this court observed in
R.
    v. Bates

(2000), 134 O.A.C. 156 (C.A.), at paras 38, 42,
    criminal harassment is a serious offence and usually requires the court to send
    a message to the offender and the public that harassing conduct against
    innocent and vulnerable victims is not tolerated by society, and that such
    conduct must be deterred. The appellants driving was both dangerous and
    threatening. The events had a serious impact on the complainants well-being
    and sense of security.

[46]

In
Bates
, at para. 37, the court made reference to the fact that the
    offence of criminal harassment was enacted to address concerns about escalating
    harassment against individuals: [t]he purpose of the new section was to
    criminalize the threatening behaviour and to permit punishment of the offenders
    in an attempt to restrain their behaviour before it escalates to physical
    violence against the victims.

[47]

As
    the Crown notes, the context of this case includes a history of intimidation,
    threats, and harassment in the workplace. The trial judge also noted in her
    sentencing reasons that the appellant did not appear to grasp the importance of
    acknowledging the harm to the complainant.

[48]

In my view a custodial sentence of 6 months is appropriate.

Conclusions and Order

[49]

For
    these reasons, I would allow the appeal, in part. I would set aside the
    convictions on counts 2, 3 and 4 and would order a new trial on those counts. I
    would grant leave to appeal sentence and allow the sentence appeal, in part. I
    would reduce the sentence of imprisonment imposed by the trial judge from 18
    months to 6 months. I would set aside the order under s. 109 (lifetime weapons
    prohibition), but would keep in effect the other ancillary orders, including
    the term of probation.

Released: GS  NOV 14 2018

G.R. Strathy C.J.O.

I agree. I.V.B. Nordheimer J.A.

I agree. Colin McKinnon J. (
ad hoc
)


