



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Frater, 2020 ONCA 624

DATE: 20201006

DOCKET: C65579

Brown, Trotter and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Anthony Frater

Appellant

Lynda E. Morgan, for the appellant

Ken R. Lockhart, for the respondent

Heard: September 18, 2020 by
    video conference

On appeal
    from the convictions entered on April 7, 2017, and the sentence imposed on June
    29, 2017, by Justice Maria Speyer of the Ontario Court of Justice.

REASONS FOR DECISION


[1]

Paul Anthony Frater was convicted in the Ontario
    Court of Justice of multiple charges arising out of the following events
    occurring on September 1, 2016; September 2, 2016; and October 20, 2016.

[2]

On September 1, 2016, the complainant received
    many text messages. Mr. Frater, the complainants former boyfriend, conceded at
    trial that he sent these texts. In the early hours of September 2, 2016, a man
    broke open the door to the complainants home while holding a knife. The tires
    of a vehicle in the complainants driveway were also slashed. Some hours later,
    the text messages, conceded to be from Mr. Frater, resumed.

[3]

On October 20, 2016, the complainant received
    threatening, harassing messages from an anonymous sender.

[4]

During the trial, the parties focused on whether
    the Crowns evidence was credible and reliable enough to prove that Mr. Frater
    was the man who broke open the door and slashed the tires on September 2, 2016,
    and authored the messages received on October 20, 2016. The trial judge had no
    doubt that Mr. Frater was the person responsible on both occasions.

[5]

In connection with the September 1, 2016 and
    September 2, 2016 incidents, she convicted Mr. Frater of breaking and entering
    a dwelling house with intent, contrary to s. 348(1)(a) of the
Criminal Code
(count 9); carrying a weapon (a knife) for a purpose dangerous to the public
    peace, contrary to s. 88(1) of the
Criminal Code
(count 12); mischief
    by destroying the tires of the vehicle of Mr. Miskovic, who was visiting the
    complainant at the time, contrary to s. 430(4) of the
Criminal Code
(count 11); criminally harassing the complainant contrary to s. 264(2)(b) of
    the
Criminal Code

(count 7); and breaching a probation order to
    keep the peace, contrary to s. 733.1(1) of the
Criminal Code
(count
    8).

[6]

With respect to the October 20, 2016 incident,
    she convicted Mr. Frater of two counts of threatening to cause bodily harm to
    the complainant, contrary to s. 264.1(1)(a) (counts 2 and 3); threatening to
    cause bodily harm to the complainants mother, contrary to s. 264.1(1)(a)
    (count 4); and breaching a probation order not to communicate with the
    complainant, contrary to s. 733.1(1) of the
Criminal Code

(count
    1).

[7]

Mr. Frater was sentenced to 28 months in jail,
    less 10 months credit for presentence custody, and he was placed on probation
    for two years. Along with other incidental orders, victim surcharges totalling
    $800 were also imposed.

[8]

Mr. Frater raises several grounds of appeal from
    these convictions and seeks leave to appeal the victim surcharges imposed as
    part of his sentence.

[9]

The only ground of appeal we allow relating to
    Mr. Fraters convictions addresses the trial judges
Kienapple

error
    in convicting Mr. Frater on both count 2 and count 3. By convicting Mr. Frater
    of both offences on the same evidence, the trial judge imposed double jeopardy:
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[10]

Specifically, Mr. Frater had been charged
    separately with threatening the complainant with bodily harm (count 2) and threatening
    her with death (count 3). The Crown relied on the same evidence for both counts
    but proceeded with both because there was an issue as to whether Mr. Frater,
    given the slang he used, had only threatened bodily harm or had also threatened
    death. The trial judge was satisfied that bodily harm was being threatened but was
    not satisfied that death was threatened. However, instead of relying on count 2
    alone to record the threatening to cause bodily harm conviction, she found Mr.
    Frater guilty of count 2 and registered an additional conviction under count 3
    of the included offence of threatening to cause bodily harm. Appropriately, the
    Crown has conceded that the trial judge erred in doing so. This ground of
    appeal is allowed.

[11]

All the other grounds of appeal against the
    convictions are dismissed. They amount to attempts to relitigate the issues at
    trial or to raise, on appeal, matters that were not live issues at trial.

[12]

In the first such ground of appeal, Mr. Frater
    argues that the trial judge erred by using a text exchange that occurred between
    the complainant and Mr. Frater in the hours before and after the complainants
    door was broken in to convict Mr. Frater of the September 2016 criminal
    harassment charge and to prove that he was the intruder. This ground of appeal
    is linked to a caution the trial judge gave herself about relying on
    uncorroborated or unconfirmed evidence from the complainant. The trial judge
    said that she would exercise such caution because the complainant had at times
    been evasive and gave contradicted and inconsistent evidence. Mr. Frater argues
    that since the uncorroborated and unconfirmed testimony of the complainant is
    the only evidence that the text exchange admitted into evidence is a genuine
    and complete record of the actual text exchange that took place, the trial
    judge should not have treated the text exchange as a dependable record.

[13]

This ground of appeal must be rejected. We do
    not accept that the trial judge was, in effect, declaring the complainant to be
    a
Vetrovec

witness:
R. v. Vetrovec
, [1982] 1 S.C.R.
    811. Nor need we consider whether this is a useful concept to apply in a trial
    by judge alone. Even where a true
Vetrovec

witness testifies in
    a jury trial, the law does not require the rejection of her unconfirmed or
    uncorroborated evidence. A jury is entitled to act on such evidence if it
    chooses to do so after considering the need for caution:
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 56. The same must hold true where a
    trial judge cautions themselves respecting a witness. The trial judge was
    entitled, in spite of the caution she gave herself, to accept that the text
    exchange was a reliable record of the communications that occurred, particularly
    given that the complainant was not challenged on this point in
    cross-examination. Moreover, the trial judge was in a position to evaluate the
    context, timing and content of the text messages, all of which are factors
    capable of supporting the complainants claim that the messages had not been
    altered. At base, this is a challenge to a credibility finding made by the
    trial judge, yet no palpable or overriding error has been demonstrated and no
    error of law or principle has been shown. This ground of conviction appeal is
    dismissed.

[14]

Mr. Fraters second ground of conviction appeal contends
    that the trial judge erred in admitting the text messages of October 20, 2016, given
    that the Crown failed to discharge its burden under s. 31.2 of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5, to satisfy the best evidence rule
    applicable to electronic documents. We do not accept this. Those text messages
    were admitted into evidence, on consent, as part of Exhibit 2 in the trial,
    without qualification. Because of this the Crown was not required to lead
    evidence to discharge its s. 31.2 burden, and the trial judge was entitled to
    treat the text messages as admissible evidence before her.

[15]

Mr. Frater also argues that the trial judges
    finding that Mr. Frater authored the
October 20,
    2016
text messages, which were sent using an anonymous internet address,
    is unreasonable. We disagree. The trial judges conclusion was not only
    reasonable, it was compelling. The messages from the sender were about a police
    investigation against the sender, caused by the complainant. The sender
    suggested the charges should be dropped. The style of the October 20, 2016 messages
    resembled the September 1 and September 2, 2016 exchange that Mr. Frater
    admitted to participating in. In both sets of communications, the party that the
    complainant is communicating with is referred to as Pablo, on September 2,
    2016 by Mr. Frater himself, and on October 20, 2016 by the complainant. When
    the complainant referred to the party she was communicating with as Pablo he took
    no steps to correct her. The October messages also disclosed personal facts
    that the complainant testified were known to Mr. Frater, and the trial judge was
    entitled to accept this testimony. This evidence, taken together, provided a
    sound foundation for the finding that Mr. Frater authored the October 20, 2016
    text messages.

[16]

Mr. Frater argues that the trial judges
    findings that he was the September 2, 2016 intruder; that he stepped into the
    apartment after breaking open the door; that he was armed with a knife at the
    time; and that he slashed the tires of the vehicle, were all unreasonable. We
    do not accept these submissions.

[17]

The finding that Mr. Frater was the intruder was
    entirely reasonable. Although the two eye-witnesses to the break-in, Mr.
    Miskovic and Mr. Bagan, did not provide elaborate descriptions of the intruder or
    identify Mr. Frater, nothing they said could rule him out, and the text
    exchange that followed between Mr. Frater and the complainant was decidedly
    incriminating as to his involvement. Its timing in the hours after the intruder
    fled, his disclosure in those messages of motive and animus to have been at the
    complainants apartment, his claim that the men inside were pimps, and his
    statement that he had seen what he needed to see, amply support the trial
    judges finding.

[18]

We need not resolve whether the trial judges
    finding that Mr. Frater took a step inside the apartment was unreasonable,
    although we are inclined to the view that it was not. This finding was supported
    by the direct evidence of Mr. Miskovic to that effect. We need not resolve this
    issue because even if such an error had occurred, it would not have changed the
    outcome. This is because the trial judge went on to find that even if Mr.
    Frater had not stepped inside, a part of his body would have entered as a
    natural consequence of breaking in the door, thereby satisfying the
    constructive entry provided for in s. 350(a) of the
Criminal Code
. There
    was an evidentiary foundation for this conclusion. The evidence described an
    extremely forceful break. Mr. Miskovic said the intruder busted the door open
    with his shoulder or by kicking it. Mr. Bagan said the door was slammed
    inside, like [he] killed the door, slammed in. The trial judge inferred in
    these circumstances that part of Mr. Fraters body must have broken the plane
    of the door. This was the trial judges determination to make.

[19]

Inconsistencies between witnesses in the
    description of the knife or the hand that the intruder used to hold the knife do
    not make the trial judges finding that the intruder had a knife unreasonable.
    Both witnesses agreed that he had a knife.

[20]

Nor was the trial judges finding that Mr.
    Frater slashed the tires unreasonable. The testimony of Crown witnesses that
    the tires were slashed went unchallenged, as the trial judge noted. She also had
    before her a record showing that calls were made to a number identified in the
    call log as Zabi (Tow Truck). Once it was found that Mr. Frater was the
    intruder, the conclusion that it was Mr. Frater who slashed the tires was
    inevitable. His text messages betrayed his anger about the presence of the
    complainants male guests, and it was the car of one of those guests that was
    vandalized at or around the time Mr. Frater was seen to be holding a knife while
    breaking open the door. The trial judges finding was not unreasonable. The circumstantial
    case against Mr. Frater on this charge was strong.

[21]

The final ground of appeal relating to the
    convictions is Mr. Fraters submission that the trial judge erred in applying
    the burden of proof. By rejecting Mr. Fraters unreasonable verdict arguments,
    we have already signalled that we reject his claim that the trial judge
    committed an error contrary to
R. v. Villaroman
, 2016 SCC 33, [2016] 1
    S.C.R. 1000, by convicting Mr. Frater on inadequate circumstantial evidence. The
    trial judge was entitled to find Mr. Frater guilty beyond a reasonable doubt on
    the evidence before her.

[22]

Nor are we satisfied that the trial judge
    breached the rule in
R. v. W.(D.)
, [1991] 1 S.C.R. 742,

by
    failing to consider whether Mr. Fraters denial, in the September text exchange,
    that he was the one who broke down the complainants door raised a reasonable
    doubt. We accept that the rule in
W.(D.)
applies to evidence
    inconsistent with guilt that is disclosed in the Crowns case, such as Mr.
    Fraters text message denial: see
R. v. B.D
.
, 2011 ONCA 51, 273
    O.A.C. 241, at para. 114. However, it is evident that the trial judge did not
    advert expressly to the
W.(D.)
rule because, in her decision, she was
    addressing the issues that had been litigated before her. Mr. Frater did not
    rely on this denial in his defence. Indeed, he took the position that the text
    messages should not be relied upon at all by the trial judge because she could
    not be satisfied that they had not been tampered with. The case litigated
    before the trial judge was about whether the Crowns affirmative evidence was
    sufficient to convict Mr. Frater. The trial judge wrote a decision that
    responded to that case, as she was entitled to do.

[23]

In any event, we agree with the Crown that the
    trial judges finding that [i]t is inconceivable to me that the break in and
    the slashing of the tires was carried out by a stranger or someone other than
    Mr. Frater necessarily entails that she was left in no doubt by Mr. Fraters
    denial, embedded as it was in his inculpatory text message exchange. No
W.(D.)

error occurred.

[24]

Mr. Fraters conviction appeal is therefore
    dismissed, save for his
Kienapple

appeal relating to count 3. That
    ground of appeal is allowed and his conviction under count 3 of threatening to
    cause bodily harm to the complainant contrary to s. 264.1(1)(a) of the
Criminal

Code

is set aside.

[25]

We also grant leave to Mr. Frater to appeal the
    victim surcharge portion of his sentence. The Crown agrees that the victim
    surcharges were imposed contrary to the
Charter
. They are set aside.

[26]

Notably, Mr. Frater, who has completed serving
    his sentence, has not sought a sentence reduction because of the
Kienapple

error, so we leave the balance of his sentence undisturbed.

David Brown J.A.

Gary Trotter J.A.

David M. Paciocco J.A.


