



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Klimitz, 2018 ONCA 553

DATE: 20180615

DOCKET: C62884

Lauwers, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Klimitz

Appellant

David Klimitz, acting in person

Gerald Chan, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: June 5, 2018

On appeal from the conviction entered on June 30, 2016
    and the sentence imposed on November 9, 2016 by Justice John B. McMahon of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant managed his elderly mothers finances. Over approximately
    two and a half years, her retirement savings were reduced from approximately
    $557,000 to $83.43. The trial judge found the appellant to have stolen at least
    $200,000. He convicted the appellant of theft and fraud offences and imposed a
    sentence of three years custody and a restitution order of $125,000.

[2]

The appellant appeals against both conviction and sentence.

[3]

With respect to the conviction, the appellant advances two primary
    grounds of appeal: (1) the trial judge erred in admitting into evidence two
    videotaped statements from the appellants mother, Royale Klimitz; and (2) the
    conviction ought to be stayed for delay pursuant to s. 11(b) of the
Charter
    of Rights and Freedoms
.

[4]

The first ground of appeal relates to the admission into evidence of two
    out-of-court video-taped statements made by the appellants mother to police.
    The appellants mother was already elderly at the time of the offences and a
    preliminary hearing in November 2013 was adjourned in part because the
    complainant, recovering from surgery, was too ill to testify. She died in June,
    2014. More than two years earlier, on January 13, 2012, and February 13, 2012,
    she provided two video-taped statements to police. The appellant was provided
    with the videotaped statements in December 2013.

[5]

The trial judge admitted the statements into evidence in a ruling made
    May 3, 2016.

[6]

Duty counsel argued on behalf of the appellant that the trial judge
    erred in doing so: the statements failed to satisfy the criteria for threshold
    reliability in
R. v. Bradshaw
, 2017 SCC 35, [2017] 1 S.C.R. 865
,
and should therefore not have been admitted into evidence for the truth of their
    contents. Duty counsel argued that although some of the
Bradshaw
safeguards were present  the statements were made under oath, they were
    videotaped, and the complainant, Ms. Klimitz, had received a caution about the
    legal consequences of lying under oath  the appellant did not have the
    opportunity to exercise the most significant safeguard: cross-examination of
    the declarant.

[7]

Counsel was concerned, in particular, about the reliability of the
    complainants statements that she was unaware that the appellant had been using
    her money, and that if she had been aware, she would not have allowed it.
    Further, duty counsel argued that there were concerns about the appellants
    siblings having influenced the complainant, and that the trial judge overstated
    the confirmation of the complainants statements provided by other evidence.
    Because of these infirmities, duty counsel argued, the complainants statements
    did not have the requisite reliability that could make cross-examination
    unnecessary:
Bradshaw
, at paras. 28-32, 40.

[8]

We see no error. The trial judge correctly stated the applicable law on
    threshold reliability (citing
R. v.Khelawon,
2006 SCC 56, [2006] 2
    S.C.R. 787), and made no error in its application. He was attentive to the
    dangers of admitting statements that had not been tested by cross-examination,
    and he carefully considered both the safeguards that were in place when Ms.
    Klimitzs statements were made and the existence of other evidence that would
    allow a trier of fact to assess the reliability of those statements. The trial
    judge considered the existence of confirmatory evidence such as the documentary
    evidence and the evidence of other witnesses, including the appellant. He was
    also alive to the inconsistencies in the complainants statements, and that she
    had poor memory as to dates. He expressly adverted to the requirement to focus
    on the threshold reliability of the statements on the
voir dire
,
    rather than ultimate reliability, which was a question to be resolved at trial.
    In
R. v. Bradshaw
, the court indicated at para. 4 that the dangers
    associated with a hearsay statement may be overcome on the basis of
    corroborative evidence if it shows, when considered as a whole and in the
    circumstances of the case, that the only likely explanation for the hearsay
    statement is the declarants truthfulness about, or the accuracy of, the
    material aspects of the statement. Here the surrounding circumstances provide
    powerful confirmation of the truth of the statement. It is inconceivable that
    this elderly widow, expecting to spend the rest of her days in a seniors
    residence, would have consented to the depletion of her retirement fund to the
    point that her rent fell into arrears for 5 months and she was evicted from her
    home. The analysis discloses no error that would permit us to substitute our
    own conclusion on admissibility for that of the trial judge.

[9]

The second ground of appeal can be dealt with summarily. The appellant
    advances the section 11(b) argument for the first time before this court.
    Courts are generally reluctant to entertain
Charter
arguments where
    they are raised for the first time on appeal. There is good reason for this.
    Because this issue was not raised below, we do not have the benefit of factual
    findings from a trial judge as to the reasons for the various delays alleged by
    the appellant, and to whom any delays should be attributed. Neither did the
    appellant file any fresh evidence before us that would enable us to make any of
    the necessary findings. We therefore lack the evidential foundation needed to
    entertain this ground of appeal and, accordingly, are not willing to permit it
    to be raised at this time.

[10]

With
    respect to the appeal of sentence, duty counsel argued that the trial judge
    committed an error in principle by failing to consider the impact on the
    appellant of negative media coverage he received, particularly a newspaper
    article that reported misconduct wider than the trial judges ultimate
    findings. Taking into account the ruin and humiliation faced by the appellant,
    as well as the fact that he has repaid $75,000 of the funds pursuant to the
    restitution order, counsel argued that the custodial sentence ought to have
    been no more than two years.

[11]

Although
    the trial judge did not reference the pre-trial publicity the appellant
    received, his failure to do so does not constitute an error in principle. Given
    the significant aggravating factors, the pre-trial publicity would not have had
    an impact in fashioning a fit sentence. The appellant breached the trust his
    elderly mother placed in him to administer the funds she needed for her living
    expenses. It was not a momentary lapse, but a repeated course of conduct
    encompassing some 80 transactions, and which the appellant took considerable
    efforts to conceal. The fraud was not discovered until less than $100 remained,
    and the appellants mother suffered the embarrassment of being evicted from her
    retirement home for being  unbeknownst to her  five months in arrears of
    rent. She felt humiliated, and made efforts to repay the home from her meagre
    pension income. The appellant deprived his mother of the level of nursing care
    and comfort that she would otherwise have enjoyed, and shifted the burden of
    her care onto his siblings. The trial judge made no error in the sentence
    imposed.

Disposition

[12]

The
    appeals from conviction and sentence are dismissed.

P. Lauwers J.A.

G. Pardu J.A.

B.W. Miller J.A.


