



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beseiso, 2019 ONCA 707

DATE: 20190910

DOCKET: M50087

Pardu, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alex Beseiso

Moving Party

Alex Beseiso, acting in person

Andrew Hotke, for the respondent

Heard: September 3, 2019

REASONS FOR DECISION

[1]

The applicant, Alex Beseiso, was convicted on November 28, 2017 by
    Cooper J. of the Ontario Court of Justice of criminal harassment (
Criminal
    Code
s. 264(2)(d)), uttering threats (s. 264.1(1)) and causing a
    disturbance (s. 175(1)(a)). Sentence was suspended and the court ordered 12
    months probation. Mr. Beseisos summary conviction appeal was dismissed by
    D.E. Harris J. on November 26, 2018: 2018 ONSC 7074.

[2]

The appeal judge summarized the main facts at
    paras. 2 and 3 of his reasons:

Mr. Beseiso contracted with registered court
    transcriptionist Kim Fess for her to prepare transcripts of a real estate
    tribunal matter for him. When the transcripts were completed and it was time to
    pay, the appellant because upset that H.S.T. had been included on the invoice. 
    He expressed his displeasure in a telephone conversation with Ms. Fess and then
    sent her a barrage of text messages which stated, amongst other things, you 
    should order police presenceIm coming for you, bitchFucking bitchYou
    fucking with me, Ill teach you your place. The appellant called Halton police
    and said he was going to Fess home office address and that there was going to
    be trouble if they did not attend.  Fess also called the police and they
    arrived shortly afterwards at her home office.

By the time the appellant arrived in his
    pick-up truck, the police were already there. The police officers talked to the
    appellant but he seemed more concerned with launching profanities at Ms. Fess. 
    He was irate. When the police asked the appellant to leave, he loudly
    proclaimed that he would, to paraphrase, get his cousins from overseas and get
    back at her. The police asked him again to leave but he refused to do so.  He
    was arrested for cause a disturbance and utter threats. Fess and her employees
    were frightened and devised measures to protect themselves if the appellant
    returned.

[3]

Mr. Beseiso seeks leave to appeal his convictions
    pursuant to
Criminal Code
s. 839(1). Under
    that section, leave to appeal may be granted on any ground that involves a
    question of law alone. The factors that should guide the exercise of the
    courts discretion in granting leave were described in
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d) 641, at paras. 30 and 31: (i) the
    significance, beyond the specific case, of the proposed question of law to the
    administration of justice; and (ii) the strength of the appeal.

[4]

In his factum on this motion, Mr. Beseiso identifies
    three grounds of appeal that he characterizes as questions of law: (i) the
    appeal judge showed undue deference to the trial judges decision to curtail
    questioning about witnesses schedules in respect of Mr. Beseisos abuse of
    process application; (ii) the appeal judge erred in concluding that Mr. Beseiso
    had clearly and unequivocally abandoned his s. 11(b) application; and (iii) the
    appeal judge erred by holding that although the trial judge misstated the legal
    test for threatening, the error could not have affected the result.

[5]

The first and second grounds of appeal do not
    involve questions of law. They concern the appeal judges review of the factual
    basis for the trial judges decision to dismiss Mr. Beseisos abuse of process
    application and to not consider his s. 11(b) application.

[6]

The third ground of appeal concerns an issue
    raised by the appeal judge on his own in order to discharge his obligation to
    assist an unrepresented appellant. The appeal judge described the issue at
    paras. 24 and 25 of his reasons:

In reviewing the reasons for judgment in
    preparation for the oral hearing, there was one aspect which was worrisome. It
    was alluded to above. In the assessment of the threatening count, in
    considering the implications of the texts to Ms. Fess and whether they amounted
    to threats of bodily harm, the trial judge said,

And if somebody says to somebody else, Im
    coming for you, bitch and Youre fucking with me, Ill teach you your place,
    thats
reasonably possible
for a person,
    a normal person, to think that bodily harm was going to be inflicted upon them.
    Its
probably the only rational conclusion

you
    could apply. So, theres no doubt in my mind the Crown had proven that case
    beyond a reasonable doubt.

(Emphasis Added)

The trial judges insertion of the words
    reasonably possible and probably the only rational conclusion diluted the
    requirement that in cases where an element of the offence depends solely on
    circumstantial evidence such as here, a conclusion that the element has been
    proven must be the
only reasonable inference available
:
R. v. Villaroram
, 2016 SCC 33,
    [2016] 1 S.C.R. 1000, at para.
30
.

[7]

The appeal judge concluded that the trial judges
    misstatement of the only reasonable inference cautionary instruction either was
    not a legal error, when viewed in the full context of the trial judges
    reasons, or, if it was an error, it was a minor, insignificant error that could
    not have affected the result: at para. 31. The appeal judge explained his
    conclusion at paras. 28-30:

In this case, the trial judge impermissibly
    relaxed the rigor of the only reasonable inference standard. If this had been a
    jury instruction, there is little doubt that it would have constituted serious
    and perhaps reversible error. But I do not believe when the full text of the
    trial judges reasons is taken into account, there was any harm caused in this
    trial.

In this trial, specific alternative
    suggestions to the conclusion that a threat of bodily harm was intended were
    advanced by the appellant in his evidence. The trial judge rejected them. He
    was certainly entitled to do so. The suggestion that Im coming for you
    actually meant, Im coming for the transcripts was not persuasive. The idea
    that he was threatening legal action and not bodily harm was also extremely
    weak.

The trial judges rejection of these
    alternative suggestions demonstrates that he did not simply jump to the
    conclusion that the words spoken conveyed threats of bodily harm. He had
    tangible alternative suggestions before him which he considered and rejected.
    The potential error of ignoring alternative inferences which the only
    reasonable inference formulation is intended to address was, in effect, rebutted
    in the trial judges reasons.

[8]

This third ground of appeal does not involve a
    question of law alone. The appeal judge did query whether the trial judge had
    applied the proper legal test to his assessment of the evidence. However, upon
    reading the trial judges reasons as a whole, including his rejection of
    certain factual inferences, the appeal judge was satisfied that the trial
    judges findings of fact supported his conclusion when viewed through the
    proper legal lens. Accordingly, this issue involves a question of mixed fact
    and law, not one of law alone. In any event, the trial judge identified the
actus
    reus
of the offence as made out if a reasonable person
    aware of the circumstances in which the words were uttered would have perceived
    them to be a threat of death or bodily harm. He was satisfied that this
    element had been proven beyond a reasonable doubt. His analysis was sufficient
    in the circumstances of this case.

[9]

Further, this issue has little significance to
    the administration of justice, beyond the specific case. As well, the merits of
    the appeal do not appear to be very strong and there is no strong reason to
    think that Harris J. may have fallen into reversible error of law:
R.(R.)
, at para. 37.

[10]

The motion for leave to appeal is
    dismissed.

G. Pardu J.A.

David Brown J.A.

Gary Trotter J.A.


