COURT OF APPEAL FOR ONTARIO
CARTHY, MACPHERSON AND ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Carol Ann Bauman, for the respondent
Respondent
- and -
B. N.
Carolyne Kerr, for the appellant
Appellant
Heard: June 18, 2002
On appeal from the conviction of Justice Ivan J. A. Fernandes dated January 19, 2001.
MACPHERSON J.A. (Dissenting):
A. A. INTRODUCTION
1[1] The appellant, B. N., was convicted of the offence of assault causing bodily harm contrary to s. 267(b) of the Criminal Code. The principal issue on the appeal is whether the trial judge improperly rejected the testimony of a witness called by the defence.
B. B. FACTS
2[2] B. N. and the complainant, A. F., met each other in a group home and attended the same high school in Toronto. On October 10, 2000, there was a confrontation in front of a 7-Eleven store across from the high school. There is agreement that B. N. punched A. F. once during the confrontation. The results of this one punch were serious - a split lip and cracked tooth and a day in hospital for A. F. and a fractured knuckle and three days in hospital for B. N.
3[3] There is no agreement, however, about how the fight unfolded. Both A. F. and B. N. testified at the trial.
4[4] A. F. said that he was standing outside the 7-Eleven store, drinking a Nestea. He said that B. N. approached him, mumbled something he did not understand and “sucker punched” him - i.e. punched him without warning.
5[5] B. N. testified that he approached A. F. to discuss threatening messages that B. N. thought A. F. was leaving on his telephone answering machine. B. N. said that A. F. hit him in the face, that they clutched and grabbed each other, that A. F. swung at him but he ducked, and that only then did he throw the punch to A. F.’s face.
6[6] The only other witness at the trial was S. H., a 17 year old student at the same school as B. N. and A. F. She testified that she witnessed the fight from across the street. The essential features of her testimony confirmed B.N.’s description of the fight:
Q. Now, did you - what portion of the fight did you see? Could you tell us exactly what you saw?
A. Okay. They were there and they were like strug [sic], like grasping onto each other, like, and after that the boy [A. F.] he went to like, like to hit him, but B. N.’s faster and hit him.
7[7] The trial judge delivered comprehensive reasons for judgment. He explained why he accepted A. F.’s testimony and rejected B. N.’s. He also rejected S. H.’s testimony. He did not regard her as an independent and impartial witness and he concluded that her description of the fight was unreliable.
8[8] The trial judge concluded that A. F.’s description of the attack was truthful:
This court also finds as a fact that the accused struck the complainant without warning, in other words “sucker punching” him as the saying goes, and that the accused’s injuries which consisted of the broken right knuckle on the ring finger on the right hand was consistent with the complainant being punched in the mouth and resulting in a split lip and a chipped tooth.
9[9] The trial judge also rejected B. N.’s submissions relating to self-defence which were anchored in s. 34(1) of the Criminal Code:
34(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
10[10] Although, strictly speaking, it was not necessary for the trial judge to consider the self-defence issue in light of his factual findings about the fight (acceptance of A. F.’s single “sucker punch” description), he nevertheless stated that “[t]he force used by the accused was excessive by any reasonable standard”.
11[11] The appellant appeals from his conviction.
C. C. ISSUES
12[12] The appellant raises two issues on the appeal, which I would frame in these terms:
(1) (1) Did the trial judge err by rejecting the testimony of S. H.?
(2) (2) Did the trial judge err by concluding that the single punch thrown by the appellant constituted excessive force, thus removing the possibility of establishing self-defence under s. 34(1) of the Criminal Code?
D. D. ANALYSIS
(1) (1) S. H.’s testimony
13[13] The trial judge discussed S. H.’s testimony in this fashion:
This court did not find S. H. to be an absolutely independent impartial observer.
It is clear that she knew the accused. She was in two of his classes.
This court finds her evidence to be less than unreliable [sic] in the sense that she was some 30 feet from the incident. It is quite incredible that she would, from her vantage point, make her observations of the blood on the hand of the accused. It is noteworthy that she was across the road which students were travelling.
At any rate, her evidence was such that she readily conceded she did not see the entire fight. She saw the complainant in shock.
In all of the circumstances, she did not report the matter to the police or to the school.
She indicated that it was important to her to get to her social worker. She did not get assistance for either one of the two individuals although clearly someone was in trouble, and she saw the complainant was in shock. She saw some blood on the hand of the accused.
14[14] The appellant contends that there are two problems with the trial judge’s treatment of S. H.’s testimony: first, he should not have concluded that S. H. was not an impartial observer on the basis that S. H. knew B. N. and was in two of his classes; and, second, the factors mentioned by the trial judge do not support his conclusion that her testimony was unreliable.
15[15] On the impartiality point, I agree with the appellant that the fact that S. H. knew B. N. and that they were in two classes together in a large urban high school hardly undercuts her impartiality. However, I note that the trial judge qualified his appraisal by saying that he did not find her to be “an absolutely independent impartial observer”. In my view, there is a basis in the record for this conclusion.
16[16] B. N. testified that he was so pre-occupied during the fight that, although he could tell there were people around the fight, he could not identify them. S. H., on the other hand, in response to a question about how she became a defence witness, said that somebody (she did not say who) had called her because B. N. knew that she had been at the fight.
17[17] My conclusion is that, on the record, there was a whiff of uncertainty surrounding the integrity of S. H.’s role as a defence witness. I would not put it higher than this. Neither did the trial judge. I cannot say that the trial judge erred in this regard.
18[18] Turning to the reliability issue, my starting point is that an appellate court must be very careful before concluding that a trial judge has misapprehended the evidence in a criminal trial. As expressed by Estey J. in R. v. Harper (1982), 1982 11 (SCC), 65 C.C.C. (2d) 193 at 210 (S.C.C.):
An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial Court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.
19[19] The appellant does not contend that the trial judge completely disregarded S. H.’s evidence. In fact, he dealt comprehensively with her testimony, just as he did with the testimony of the other witnesses. Rather, the appellant submits that the trial judge’s reasons disclose “a lack of appreciation of relevant evidence” - in short, he misapprehended S. H.’s testimony.
20[20] In my view, the appellant’s submissions on this point are not without merit. It seems to be an exaggeration to conclude, as the trial judge did, that S. H.’s claim that she saw blood on the hand of B. N. from a distance of 30 feet was “incredible”. Furthermore, the negative inference he appeared to draw from S. H.’s failure to report the incident to the police or the school or to seek assistance for the two injured combatants might seem somewhat altruistic in the context of a fight near a large urban school.
21[21] However, it is important not to parse too closely individual sentences in a trial judge’s reasons for judgment. In the present case, the trial judge gave comprehensive reasons dealing with all aspects of the evidence. It is clear from these reasons that he believed A. F. and did not believe B. N. He fully documented his reasons for reaching these assessments.
22[22] Based on my review of the trial transcript and the reasons for judgment, I cannot conclude that the appellant did not receive a fair trial. Although there are some weaknesses in the way the trial judge expressed his findings about S. H.’s reliability, they do not rise to the high level of a misapprehension of the evidence, especially when those observations are placed in the context of the comprehensive reasons for judgment read as a whole. Accordingly, I would not give effect to this ground of appeal.
(2) Excessive force
23[23] In light of my conclusion on the first issue, the issue of excessive force does not arise. In the “sucker punch” scenario accepted as a fact by the trial judge, there is no self-defence issue.
E. E. DISPOSITION
24[24] I would dismiss the appeal.
“J. C. MacPherson J.A.”
25[25] I have read the reasons for judgment of my colleague, Justice MacPherson, and I respectfully disagree.
26[26] I do not agree with the trial judge’s assessment of the evidence of the witness, S. H. Justice MacPherson acknowledges that “there are some weaknesses in the way the trial judge expressed his findings about S. H.’s reliability”. However, he concluded that those weaknesses do not lead him to find that the trial judge misapprehended the evidence.
27[27] For me the weaknesses in the trial judge’s assessment of S. H.’s evidence are of such a nature that I come to the opposite conclusion. The fact that she knew the defendant from two of her classes in high school is of no significance without more to link her to the accused. Justice MacPherson has drawn attention to the fact that she became a defence witness because somebody had called her as the accused knew she had been at the fight. For me this evidence is not sufficient to create “a whiff of uncertainty surrounding the integrity of S. H.’s role as a defence witness” as my colleague concludes. In any event, my view is that more than a whiff of uncertainty is required to determine that a witness is not an absolutely impartial independent observer as found by the trial judge.
28[28] Justice MacPherson and I are ad idem in regard to the witness’s ability to observe the blood on the hand of the accused from a distance of thirty feet and in regard to her failure to report the incident to someone in authority and to seek assistance. However, for me these weaknesses in the trial judge’s assessment together with his comments concerning the witness’s impartiality lead me to the conclusion that the trial judge misapprehended her evidence. This is a serious matter for the accused in that S. H. was a key witness. She corroborated the material part of the defendant’s testimony concerning the defence of self-defence.
29[29] In view of my conclusion I must therefore consider the second issue in the appeal, i.e. did the accused use excessive force such as to deprive him of the defence of self-defence under s. 34 (1) of the Criminal Code?
30[30] In regard to the defence of self-defence, the trial judge said in his reasons:
This court also finds it a fact that the accused struck the complainant without warning, in other words “sucker punching” him as the saying goes, and that the accused’s injuries which consisted of the broken right knuckle on the ring finger on the right hand was consistent with the complainant being punched in the mouth and resulting in a split lip and a chipped tooth.
The force used by the accused was excessive by any reasonable standard.
This court does not find the defence of self-defence in all of the facts before it as having been founded.
31[31] I must, of course, accord considerable deference to the trial judge in his finding that the accused used excessive force. However, his finding appears to be inextricably bound up with his rejection of the evidence of the accused and the corroborating witness. In reality the trial judge accepted the complainant’s version that he was “sucker punched” and simply concluded that the “sucker punch” was excessive. There is no analysis of the incident based upon the theory of the defence.
32[32] In view of the importance of the evidence of S. H. I am not satisfied that if the trial judge had properly apprehended her evidence that he would have come to the same conclusion concerning excessive force.
33[33] In the result I would set aside the conviction and order a new trial.
RELEASED: September 19, 2002
“Robert P. Armstrong J.A.”
“I agree J. J. Carthy J.A.”