By Brad Yaeger on July 14, 2015.
Re: Case Summary and Comment – R v Feldman, 2013 ONCJ 713 (CanLII)
The appellant, Feldman, was convicted ex parte by Justice of the Peace D.K. Currie, for a violation a s. 3(2)(c) of the Safe Streets Act. His Worship convicted Mr. Feldman to 90 days, despite submissions by the Crown desiring a more lenient sentence. The evidence before the Court consisted of the testimony of a Transit Safety Officer, who reported observing Mr. Feldman approach a female seated on a bench near a bus terminal with his hands together in a praying motion. He testified that the appellant admitted to soliciting for money, and the officer issued a ticket. Mr. Feldman’s appeal was heard, and allowed, by S.R. Shamai J.
The grounds of the appeal were presented as “mental health considerations” (at para 4). Mr. Feldman was paranoid schizophrenic, manic-depressive, and had suffered mental health repercussions from a street drug overdose. The appellant argued that the ex parte trial denied him the benefit of s. 44 of the Provincial Offences Act, which allows for a suspension of proceedings if the defendant is unable to conduct his defence because of a mental disorder (at para 5). The appellant further submitted that the sentence of the Justice of the Peace was “grossly excessive” (at para 6).
The Judgment in Detail
The Court held that its review of the trial transcript revealed the preliminary issue of whether the evidence had in fact shown the appellant to be guilty of the offence in the first place. The Court observed a mischaracterization of the evidence by the Justice of the Peace (at para 11), and given the mischaracterizations, the Court was prepared to reevaluate the evidence against the appellant (at para 17). That evaluation was sufficient to allow the appeal, without considering the appellant’s submissions as to his mental health.
The Justice of the Peace characterized the evidence as indicating that Mr. Feldman approached the woman with his hands in a “cupping motion” when in fact, the testimony of the officer was that the appellant’s hands were together, “in a praying motion” (at para 15). In addition, the evidence of the officer was that the appellant solicited the woman “near” a transit stop. However, section 3(2)(c) of the SSA only prohibits solicitation “at” a transit stop (at para 11).
The Court observed that 3(2)(c) offers protection from solicitation to a “captive audience.” The Court found the evidence insufficient to establish the precise location of the bench where the woman was seated, it’s relation to the bus terminal, and the size of the platform beyond a reasonable doubt (at para 17). Given the vastness of the Union Station Bus Terminal, “with its dozens of platforms” (at para 17), the Court held that it “hardly seemed a confined area, giving a person no option but to submit to confrontation by a beggar” (at para 17). The Court further noted that there was no suggestion in the evidence that Mr. Feldman was behaving in an aggressive manner, and that the praying motion, rather than a cupping motion, brings into doubt whether the appellant was attempting to solicit money at all (at para 21).
The Court noted that at trial, no attempt was made to establish that the admission made by Mr. Feldman was a voluntary statement (at para 13). Absent such evidence, it refused to consider the admission.
Finally, the Court briefly reviewed the appellant’s actual submissions, “should a further review of the evidence show that the conviction was proper” (at para 24). With regards to the 90 day sentence, the prosecutor had proposed a suspended sentence and a period of probation. The Court referred to R v Jenkins (2010 ONCA 278 CanLII), where a trial judge was found to have erred in principle in imposing a larger fine than was requested by the prosecutor without having provided reasons for doing so (at para 28). Reviewing the transcript, the Court found no plausible justification for incarceration (at para 31).
R v Feldman reflects favourably on the appeal potential of an ex parte conviction; the superficial presentation of the evidence provided wide latitude for the Court to find reasonable doubt as to the merits of the Crown’s case against the appellant. The judgment also suggests a fairly narrow interpretation of what might qualify as “a transit stop” for the purposes of a section 3(2)(c) conviction. Absent credible evidence that the person being solicited was truly “captive”, future courts should be persuaded to provide the accused with the benefit of the doubt.
Further, the Court did not reject the appellant’s section 44 claim under the Provincial Offences Act, and in fact implied a degree of sympathy with the argument. Future appeals should certainly include this argument in the alternative, in the event that an accused has a history of mental health issues.