COURT OF APPEAL FOR ONTARIO
DOHERTY, WEILER and MOLDAVER JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Nadia E. Thomas
for the appellant
Appellant
Harry Black, Q.C.
- and -
for the respondent Albert Flis
ALBERT FLIS and PIETRO GRANDE
Alan D. Gold
for the respondent
Respondents
Pietro Grande
Heard: November 7, 2005
On appeal from the order of Justice John R. McIsaac of the Superior Court of Justice, sitting as a summary conviction appeal judge, setting aside the convictions registered by Justice Gregory Regis of the Ontario Court of Justice and ordering a stay of proceedings.
MOLDAVER J.A.:
INTRODUCTION
1The respondents Albert Flis and Pietro Grande are police officers employed by the Toronto Police Service. When they are not on duty, they reside with their families at the Town of Ajax in the Region of Durham.
2On the night of June 1, 1998, the respondents arrested Ryan Scullion (then aged seventeen) for car theft. The arrest occurred in Ajax at a time when both of the respondents were off duty.
3According to Ryan, in the course of his arrest, the respondents kicked and punched him for no reason and he suffered injuries to the left side of his face and head and right hand.
4Following his arrest, Ryan was turned over to the Durham police. At the police station, he explained that he had been at a friend’s house that night and that he had taken no part in the theft of a car. The police confirmed Ryan’s account and Ryan was released from the police station without charge.
5At the station, Ryan complained about being assaulted by the respondents. An investigation ensued and on September 16, 1998, the respondents were charged with common assault.
6On July 24, 2000, following a lengthy trial that proceeded sporadically over the course of ten months, Regis J. of the Ontario Court of Justice found the respondents guilty as charged. On August 10, 2000, he sentenced Flis to a fine of $1,000 plus probation for one year; Grande was sentenced to twenty-one days in jail plus probation for one year.
7The respondents appealed to the Summary Conviction Appeal Court from both conviction and sentence. The appeals took over four years to perfect. They were finally heard by McIsaac J. of the Superior Court of Justice in August 2004. The respondents raised numerous grounds of appeal and the hearing extended over three days.
8On October 6, 2004, the summary conviction appeal judge allowed the appeals and quashed the convictions. He did so on the basis that the trial judge had erred in his treatment of character evidence presented by the respondents. In view of his conclusion on that issue, he did not consider it necessary to decide the other grounds of appeal relating to conviction, nor did he address the appeals from sentence.
9Having quashed the convictions, instead of ordering a new trial, the summary conviction appeal judge, on his own motion, entered a stay of proceedings. He did so because of delay in obtaining the trial transcripts, for which he found the respondents blameless and the prejudice this had occasioned to their careers. The respondents did not ask for such relief and the Crown was given no opportunity to oppose it.
10The Crown now applies for leave to appeal and if leave is granted, requests that the appeal be allowed and that the respondents’ convictions for assault be restored. Alternatively, the Crown requests that the order staying the proceedings be set aside and that a new trial be ordered.
11For reasons that follow, I would grant leave to appeal, allow the appeal, set aside the order of the summary conviction appeal judge, restore the convictions and remit the sentence appeals to the summary conviction appeal judge for determination.
OVERVIEW OF THE FACTS
12The trial judge provided extensive reasons for judgment. He reviewed the evidence in considerable detail and made clear findings of fact. I see no need to duplicate his efforts. What follows is a synopsis of the events giving rise to the charges against the respondents. Detail will be added where necessary to flesh out a particular ground of appeal.
13The respondent Albert Flis is a police officer employed by the Toronto Police Service. On the night of June 1, 1998, while driving through the town of Ajax on his way home from work, he observed a group of young men in a van. Upon closer inspection, he noticed damage to the van’s steering column. This led him to conclude that the van was stolen and he called 911 on his cell phone. Upon reaching the dispatcher, he reported the suspected theft and advised the dispatcher of his location.
14Flis then followed the van. After a short period of time, it turned onto a residential street and stopped in a private driveway. Flis continued speaking to the 911 dispatcher and he was told that the Durham police were on their way.
15Instead of waiting for the Durham police, Flis retrieved his service revolver from his gym bag, got out of his car, shouted “police” and ordered the occupants of the van “to get on the fucking ground.” When the occupants did not comply, he held out his gun, moved along the side of the van and smashed the driver’s window. The van then reversed onto the street and sped off. In the process, it ran over his foot. By now, a Durham police car had arrived and it took chase with its lights flashing and siren blaring.
16At that point, rather than leaving the matter to the Durham police, Flis decided to remain involved. Although the van was no longer in sight, he managed to keep track of it by following the flashing lights of several Durham police cars that were now involved in the chase. Eventually, he spotted the van. It was stopped against a chain-link fence near a schoolyard. As he pulled up beside it, he saw two uniformed Durham police officers heading towards a ravine on the opposite side of the fence.
17Once again, instead of leaving the matter to the Durham police, Flis chose to stay involved. He got out of his car, and without consulting with or seeking assistance from the Durham police who were on scene, he “took it upon himself” to go after “the suspects.” To that end, he ran across a bridge onto Magill Street and as he proceeded north on Magill, he saw Ryan Scullion, then aged seventeen, standing by himself at a bus stop. According to Flis, it was then, for the first time, that he began to feel pain in the foot that had been run over by the van.
18When he first noticed Ryan at the bus stop, Ryan was standing still; he was not running or attempting to flee. Nonetheless, Flis offered three reasons for believing that he had reasonable grounds to arrest Ryan for car theft. First, he found it “very odd that somebody would be standing at a bus stop at that time of night [just after 10:00 p.m.]”; second, Ryan was a young white male dressed in casual clothing, as were the suspects that Flis had seen in the van; third, Ryan kept looking at him as he approached.
19Flis testified that as he moved towards Ryan, he held out his police badge and yelled, “Police. Get on the ground.” Ryan did not comply. Instead, he backed up, turned and started to run. Flis followed and tackled Ryan from behind. According to Flis, the full force of his body came down on Ryan as they hit the ground. Ryan, at the time, was five feet five inches tall and weighed 115 lbs. Flis was six feet two inches tall and weighed 220 lbs.
20After tackling Ryan, Flis pinned him to the ground by placing his left knee on the middle of Ryan’s back and his right knee on the back of Ryan’s head. At that point, despite the marked differences in their size, Ryan started to move his head back and forth in an effort to remove Flis’s right knee from the back of his head. Ryan also tried to “push up” to get Flis off his back. At the same time, Flis was having difficulty gaining control of Ryan’s hands and arms but he was finally able to place Ryan’s right arm in an arm bar lock. It was then, according to Flis, that Officer Grande “dropped right in front of him”. When asked to be more specific, Flis stated that Grande “would have got down on his knees, but exactly what he did I am not sure aside from he was right in front of me.”
21Flis stated that he and Grande immediately identified themselves as police officers and Grande took control of Ryan’s left arm, placing it in an arm bar lock behind Ryan’s back. Flis and Grande then lifted Ryan from the ground and turned him over to the Durham police.
22Flis denied kicking or punching Ryan. When asked about the black eye and other injuries to the left side of Ryan’s face, he stated that he was not sure how they had come about but he believed that they must have occurred when Ryan fell face forward onto interlocking brick after being tackled. He also acknowledged that they could have occurred when Ryan was flailing his head back and forth but he considered it more likely that they happened when he tackled Ryan to the ground. As for the injury to Ryan’s hand, he stated that it may have occurred by accident when he was attempting to gain control of Ryan’s arms and hands.
23The respondent Pietro Grande is also a police officer employed by the Metro Toronto Police Service. On the night in question, he was driving home from a family function with his wife and young children when he noticed a number of police cars (five or six) with their lights flashing and sirens activated. He was able to describe the scene in considerable detail. The police cars had boxed in a dark green Chrysler mini-van that had come to rest against a chain link fence at the west end of a school parking lot. The doors of the van were open and a uniformed Durham police officer was using his left hand to pull a male from the front passenger seat while holding his service revolver in his right hand. Directly behind that officer was a police dog handler. He was holding his dog on a leash and the leash was very taut. The dog was trying to get at the person in the van. At about the same time, he saw two other uniformed Durham officers climb over a chain link fence that separated the west end of the school parking lot from a ravine.
24Upon observing the arrest of a suspect at gunpoint, Grande became concerned for his family and decided to drive away. As he was leaving, he saw a man in plainclothes (later identified as Flis) running towards another man (later identified as Ryan Scullion). As this was occurring, he did not see Flis holding out his badge. The second man then turned and fled and Grande decided to join the pursuit. As he jumped out of his van, he told his wife to leave the area and he ran after Flis and Ryan. When he got to within ten feet of them, he screamed out that he was “a cop” and Flis responded, “So am I.” By this time, Flis had Ryan on the ground but Ryan was flailing his legs and “it was quite evident that [Ryan] was trying to get up or get away.” Grande then “jumped over [Ryan’s] feet” and “half dove, half fell on top of Ryan.” When he landed on Ryan’s back, he “heard the wind knocked right out of him.” At that moment, Ryan stopped flailing.
25When asked about his position on Ryan, Grande stated that his right knee was on the small of Ryan’s back and his left knee was on Ryan’s upper left thigh. According to Grande, Flis too was kneeling on Ryan but he could not see what Flis was doing because Flis’s body was covering his view of Ryan’s whole upper half and he could not see Ryan’s upper body.
26While kneeling on Ryan, Grande demanded that Ryan give him his left arm. He realized however that Ryan could not comply while he [Grande] had his full weight [210 lbs] on Ryan’s back. Accordingly, Grande shifted his weight and managed to force Ryan’s left hand free. Once Ryan was contained, he and Flis lifted Ryan to his feet and turned him over to the Durham police. Grande swore that at no time during the arrest did he see Ryan being kicked or punched. He had no idea how Ryan sustained his injuries.
27Ryan Scullion testified that on the night in question, he watched a movie at a friend’s house and then left to catch a bus to go home. As he stood at the bus stop on Magill Street, he saw several marked police cruisers with their emergency lights flashing and sirens activated. He also noticed two uniformed officers in a nearby ravine. One of them shouted, “Stop, Police.” Moments later, he saw a man in civilian clothes (now known to be Flis) approaching him. Flis motioned to him with his index finger and said, “Come here.”
28Fearing that Flis was the man the police were pursuing, Ryan became concerned for his own safety. As Flis came to within ten feet of the bus stop, Ryan turned and ran as fast as he could. To this point, he claimed that Flis had not produced his badge, nor had he identified himself as a police officer.
29Flis quickly caught up to Ryan. He grabbed Ryan’s collar and tripped him to the ground. Ryan landed stomach-first on the grass and Flis put his knee and the weight of his body on Ryan’s back. Flis had not identified himself as a police officer and Ryan remained frightened. In the circumstances, he decided not to struggle or move or say anything to Flis.
30As he lay motionless, Grande arrived. He too was in civilian clothes and he did not identify himself as a police officer. According to Ryan, Grande bent down and punched Ryan with his fist on the left side of Ryan’s face. Both of the respondents then started to punch Ryan in the face and head. He attempted to block their blows by clasping his hands behind the back of his head and drawing his elbows towards his face. As he was doing this, one of the officers kicked him in the head and both continued to hit him. By this time, he was terrified and he urinated in his pants. While he was being hit, he recalled one of the men saying “I seen you in that fucking van.” Ryan responded by saying “I swear to God, I wasn’t in that van.”
31One of the respondents then told Ryan to put his hands behind his back and he pulled Ryan’s hands away from protecting his head. Ryan did not resist. Ultimately, the respondents lifted Ryan to his feet and one of them slapped him from behind on the back of his head. At that moment, the other one said, “Stop hitting him. There’s people watching.”
32Shortly thereafter, a uniformed Durham police officer arrived and Ryan was placed in handcuffs and taken to the police station. He was described by various Durham officers who came into contact with him as being very scared and upset, shaking, quiet and cooperative, withdrawn and non-aggressive.
33Ryan suffered numerous injuries, primarily to the left side of his face and head. He stated that his face was “really bruised”; his left eye was swollen and bruised; he had a cut on his forehead over the left temple, a cut behind his right ear, and his right hand was swollen from having had his finger bent back. Ryan’s injuries were observed and photographed by the Durham police. He was released from the station without charges. It is common ground that he had no involvement in the theft of the van.
OVERVIEW OF REASONS FOR JUDGMENT
34As indicated, the trial judge provided extensive reasons for judgment. He recognized that the case turned on “the credibility of the witnesses” and with that in mind, he carefully reviewed the conflicting evidence surrounding Ryan’s arrest. In the end, he gave considered reasons for rejecting the evidence of the respondents and accepting Ryan’s version of what had occurred. In coming to that conclusion, he fully recognized that the onus of proof rested with the Crown throughout and that he could only convict the respondents if he was satisfied of their guilt beyond a reasonable doubt. In that regard, because the case turned on credibility, he approached and analyzed the evidence in accordance with the principles set forth in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.
ISSUES ON APPEAL
35This appeal raises a number of issues. Foremost amongst them is the manner in which the trial judge dealt with character evidence presented by the respondents. In particular, the question to be decided is whether the trial judge committed reversible error by failing to advert to the second purpose for which the character evidence was tendered, i.e. as a basis for inferring that the respondents were unlikely to have committed the offence charged.
36The summary conviction appeal judge answered that question in the affirmative and he set aside the respondents’ convictions. The Crown submits that the summary conviction appeal judge erred in so concluding. I propose to begin with that issue.
Did the trial judge err in his treatment of the character evidence?
37In order to appreciate this issue, it is unnecessary to detail the character evidence presented by the respondents. Suffice it to say that both officers enjoyed unblemished reputations for honesty and professionalism in the performance of their duties. In the case of Flis, this involved more than ten years of service as a police officer; in the case of Grande, he had over ten years of combined service as a correctional officer, court security officer and police officer.
38The trial judge was alive to the character evidence. At the outset of his reasons, after recognizing that the case turned “on the credibility of the witnesses,” he referred to the character evidence and the use he had made of it as follows:
In the case of the two defendants, I have carefully considered the beneficial character evidence given on their behalf in assessing their credibility [emphasis added].
39The summary conviction appeal judge focused on the trial judge’s stated use of the character evidence and he found that it constituted misdirection. In so concluding, he observed, correctly in my view, that the character evidence in question was admissible for two purposes. First, it was capable of supporting the respondents’ credibility (the first purpose) and second, it was capable of supporting an inference that they were unlikely to have committed the offence charged, thereby potentially casting doubt on the complainant’s evidence and weakening the Crown’s case (the second purpose). According to the summary conviction appeal judge, in these circumstances, where “evidence of good character is advanced for the dual purposes of supporting the testimonial trustworthiness of an accused and as circumstantial evidence supporting his or her denial of the offence,” a trial judge must “advert to these two aspects of the proffered testimony.”
40In support of that proposition, the summary conviction appeal judge relied on the following passage from the majority decision of this court in R. v. Profit (1992), 1992 7513 (ON CA), 11 O.R. (3d) 98 at 107 (C.A.), rev’d (1993), 1993 78 (SCC), 15 O.R. (3d) 803 (S.C.C.):
In view of his failure to refer to its admissibility [character evidence attesting to the appellant’s morality] as the basis for an inference that the appellant was unlikely to have committed the crime charged, it is a matter of considerable doubt as to whether he was aware of its admissibility for that purpose or whether he directed his attention to its use for such purpose.
41After quoting that passage, the summary conviction appeal judge correctly noted that the majority decision in Profit had been “overruled” by the Supreme Court of Canada, but he “[did] not see that reversal on other grounds as diminishing the binding nature of the above-quoted passage.” Presumably, in referring to “other grounds,” the summary conviction appeal judge had in mind the “common sense” observation made by the Supreme Court in Profit (per Sopinka J.) that in cases of sexual assault involving children (the situation in Profit), “the propensity value of character evidence as to morality is diminished” because such crimes occur “in private and in most cases will not be reflected in the reputation in the community of the accused for morality.” But as that was not the situation here, the summary conviction appeal judge considered it incumbent on the trial judge to advert to both purposes for which the character evidence had been introduced. In his opinion, the trial judge’s failure to do so (he only adverted to the first purpose), constituted reversible error:
This is not a case where the trial judge adverted to the purpose of the evidence of good character and gave it no weight: see R. v. Spencer, [2002] A.J. No. 145 (C.A.). In having failed to advert to the potential for the good character evidence to support the available inference herein [as circumstantial evidence supporting the respondents’ denial], I am satisfied that the assessment of reasonable doubt by the trial judge was fundamentally flawed and these findings of guilt cannot stand. The fact that both appellants’ police service history and records show absolutely no previous incidents of abuse of their positions could raise a doubt that they did so on this occasion. Accordingly, the convictions herein are quashed.
Analysis
42For reasons that follow, I do not agree that the trial judge’s treatment of the character evidence constituted a basis for overturning the respondents’ convictions.
43To begin with, I do not share the summary conviction appeal judge’s view that in cases other than those involving the sexual abuse of children, a trial judge commits reversible error if he or she does not expressly advert in the reasons for judgment to the two evidentiary purposes which good character evidence may serve. Case law from this court holds to the contrary: see e.g. R. v. R.S. (1985), 1985 3575 (ON CA), 19 C.C.C. (3d) 115 at 127 (Ont. C.A.) where Lacourciere J.A. found that the trial judge’s failure to mention the character evidence in his reasons did not amount to “self-misdirection or non-direction” and that it was “unreasonable to suppose that the factor [the appellant’s reputation for honesty] was not present to the judge’s mind having regard to his entire findings on the issue of credibility”: see also Griffith J.A.’s dissenting reasons in Profit, supra, at pp. 114 and 115.
44Apart from the case law, a formulaic approach to reasons for judgment that automatically condemns as fatally inadequate a failure to advert to a specific legal principle or rule is inconsistent with the functional approach that should be taken when reviewing the adequacy of reasons for judgment. On that approach, the significance of omissions in the reasons will depend on a multiplicity of factors, including the nature of the charges, the position of the parties and the nature and significance of the evidence or legal principle that was not specifically referred to in the reasons. A review of the reasons must also be contextual and take into account the entirety of the reasons, as well as any other facet of the trial record that may cast light on the significance (or insignificance) of the omission in issue.
45Applying that approach to the case at hand, when the reasons for judgment are read as a whole, it is not at all apparent to me that the trial judge failed to consider the respondents’ reputation for professionalism in assessing the strength of the Crown’s case. To be sure, he was alive to the evidence in question. He repeated significant portions of it in his “précis” of the evidence and he made it clear that if he had “not mentioned a specific piece of evidence,” that did not mean he had “overlooked it.” Rather, he had “carefully reviewed and considered all [of] the evidence.”
46Of particular note in this regard is the trial judge’s finding in relation to the respondent Flis that on the night in question, starting with his failed attempt to single-handedly arrest the suspects at gunpoint, he “ceased to behave as a professional police officer.” That finding was available to the trial judge on the evidence and I see no basis for interfering with it. Likewise, in the case of the respondent Grande, the trial judge had difficulty understanding why he would have chosen to abandon his family and throw himself into a volatile situation, about which he knew nothing, when there were Durham police officers nearby whom he could have alerted.
47In view of those observations, it can hardly be suggested that the trial judge did not consider the issue of professionalism in assessing the strength of the Crown’s case. On the contrary, it would appear that he did just that, albeit in a manner that did not favour the respondents. While that may be unfortunate from their perspective, it is hardly cause to overturn their convictions.
48Assuming, however, that the trial judge did not consider the respondents’ reputation for professionalism in assessing the strength of the Crown’s case (the second purpose for which the character evidence could be used), that does not mean that he also failed to consider it in assessing the respondents’ credibility (the first purpose). On the contrary, as I read his reasons, he did just that.
49At the outset of his reasons for judgment, the trial judge recognized, correctly in my view, that the case “turned on the credibility of the witnesses.” Two sentences later, he addressed the character evidence, stating that in the case of the defendants, he had “carefully considered the beneficial character evidence given on their behalf in assessing their credibility.”
50Notably, the beneficial character evidence consisted not only of the respondents’ reputation for honesty but also their reputation for professionalism. In other words, in using the character evidence to assess the respondents’ credibility, the trial judge not only considered their reputation for honesty (thereby making it less likely that they would testify falsely) but also their reputation for professionalism (thereby making it less likely that they would unlawfully assault someone in the course of an arrest or testify falsely about doing so).
51Bearing in mind that the case turned on credibility and that in assessing and ultimately rejecting the respondents’ evidence as incredible, the trial judge took into account their reputation for professionalism, it is fanciful to think that the outcome might have been different had he considered the same evidence in assessing the strength of the Crown’s case and in particular, whether he could safely rely on Ryan Scullion’s evidence to convict. This is especially so when one considers the cogent reasons given by the trial judge for accepting Ryan’s evidence, along with his finding that Flis was not behaving as a professional police officer at the time he arrested Ryan.
52In the final analysis, I am respectfully of the view that the summary conviction appeal judge took too formulaic an approach to the character evidence. Viewed realistically, this was a case in which the second purpose for which the character evidence was introduced (improbability) was inextricably interwoven with the first purpose (the respondents’ credibility). As such, while I acknowledge that it would have been preferable had the trial judge specifically adverted to the second purpose, in the circumstances, I am not persuaded that his failure to do so constituted error.
53Accordingly, I would give effect to this ground of appeal.
OTHER ISSUES
54Under ordinary circumstances, that would end the matter. The appeal would be allowed and the convictions restored. In this case, however, the respondents raised a host of issues on the summary conviction appeal that the summary conviction appeal judge did not address. The outstanding issues relate to both conviction and sentence.
55It is common ground that in the context of this Crown appeal, the respondents may raise additional alleged errors by the trial judge in an effort to sustain the order of the summary conviction appeal judge. It is further acknowledged that this court may consider and decide the alleged additional errors insofar as they relate to conviction: see R. v. Devitt (1999), 1999 1371 (ON CA), 139 C.C.C. (3d) 187 (Ont. C.A.).
56That said, the respondents seek to have the matter remitted to the summary conviction appeal judge for determination of the outstanding grounds of appeal against conviction. In support of their position, they submit that the additional issues have been fully argued before the summary conviction appeal judge and he is in a position to decide them without further argument. They further submit that as they have a statutory right of appeal to the summary conviction appeal court, they should be permitted to exercise that right before coming to this court. To do otherwise would effectively deprive them of one level of appeal.
57The Crown opposes the respondents’ request and submits that we should determine the additional issues, especially in view of the length of time that has now elapsed since the trial of this matter (almost six years).
58I agree with the Crown. The parties have filed extensive factums and briefs of authorities in connection with the additional issues, as well as the transcript of the arguments made before the summary conviction appeal judge. In view of this, we are in as good a position as the summary conviction appeal judge to decide the outstanding issues. The length of time that this matter has been outstanding is appalling. To the extent that we can finalize (subject to further appeal to the Supreme Court of Canada) the conviction appeal, the interests of justice require that we do so.
ADDITIONAL GROUNDS OF APPEAL AGAINST CONVICTION
59The respondents have raised a host of additional grounds against conviction, many of which are common to both of them. Of those, the vast majority relate to alleged errors and deficiencies in the trial judge’s reasons for judgment. I propose to address those grounds first.
Alleged errors and deficiencies in the trial judge’s reasons for judgment
60According to the respondents, the trial judge did little right in his reasons for judgment. They complain that he not only failed to grasp the evidence but that he also failed to appreciate the most basic principles of criminal law.
61In terms of the former, the respondents submit that the trial judge misapprehended material evidence, failed to consider material evidence, made findings of fact based on speculation, ignored inconsistencies in the complainant’s evidence and generally took a selective approach to the evidence that favoured the complainant’s testimony over that of the respondents.
62In terms of the latter, the respondents claim that the trial judge disregarded the presumption of innocence, reversed the onus of proof, contravened the principles of W.(D.), supra, by approaching the conflicting evidence as a credibility contest, subjected the respondents’ evidence to a higher degree of scrutiny than the complainant’s evidence, failed to give adequate reasons for rejecting expert medical evidence tendered by the respondents and in the end, rendered verdicts that were unreasonable and not supportable on the totality of the evidence.
63Taken at face value, the errors alleged by the respondents appear to be formidable. Under closer scrutiny, their true character becomes apparent and they may be seen for what they are – a concerted effort by the respondents to have their case retried on appeal.
64This was not a complicated case. It was about as straightforward as they come. The complainant claimed that the respondents unlawfully assaulted him while arresting him for an offence that he did not commit. The respondents denied his allegations of abuse.
65The case turned on credibility and the trial judge was uniquely positioned to decide it. In the course of doing so, he instructed himself, sometimes more than once, on the applicable legal principles: the onus of proof rested upon the Crown; the Crown was required to prove the essential elements of the charge beyond a reasonable doubt; in making his findings of credibility, he was to consider the whole of the evidence and assess it in accordance with the principles enunciated in W.(D.), supra; and finally, as there were no independent witnesses to the alleged assault, he was to look for evidence, independent of the complainant’s oral evidence, which might support or cast doubt on the complainant’s veracity.
66The respondents submit that while the trial judge may have mouthed the correct principles, he did not apply them in arriving at his ultimate determination. By way of example, they rely on the following passage to show that despite his awareness of the principles in W.(D.), the trial judge did not apply them in his analysis of the evidence:
Based on this assessment [his overall assessment of the evidence and the relevant legal principles], I have come to the following conclusion. Both defendants in this case, in my view, were bad witnesses. I do not believe that they told the truth about their dealings with Mr. Scullion. I do not accept their evidence with respect to their dealings with Mr. Scullion. I prefer Mr. Scullion’s account of the event over theirs.
67Read in isolation, I can understand why the respondents would be concerned that the trial judge may have approached the case as a credibility contest. However, when the reasons are read as a whole, it is apparent that he did no such thing. The following passage, found towards the end of his reasons, attests to this:
I therefore reject the evidence of both Mr. Flis and Mr. Grande, as it relates to their dealings with Mr. Scullion. Am I left with a reasonable doubt by their evidence? The answer is no. Am I convinced, beyond a reasonable doubt of their guilt, on the basis of the evidence that I accept?
The trial judge then went on to explain why he accepted the complainant’s evidence and why he was prepared to act on it to convict the respondents.
68The approach adopted by the trial judge is classic W.(D.). It lays to rest the respondents’ suggestion that he may have treated the case as a credibility contest.
69Another of the alleged legal errors raised by the respondents is the trial judge’s failure to give adequate reasons for rejecting the expert testimony of Dr. Peter McDougall, a retired plastic surgeon called by the defence. Dr. McDougall testified about the nature, extent and cause of the injuries sustained by the complainant Ryan Scullion. In particular, he testified that the injuries to Ryan’s face and head, depicted in the photographs taken by the police and Ryan’s parents, were far too minor and insignificant to have been caused by multiple punches and kicks. Rather, they appeared to be abrasions that occur when skin is drawn across a tough surface or object. As such, in his opinion, the injuries were more consistent with the defence position – they occurred when Ryan was tackled by Flis and his face came into contact with interlocking bricks and/or when Ryan was flailing his head back and forth in an effort to get free of Flis – than with Ryan’s version – he was tripped, fell face-forward onto grass and was then assaulted.
70In the body of his reasons, the trial judge reviewed the salient features of Dr. McDougall’s evidence. In the end, he dismissed the doctor’s evidence out of hand as follows:
His [Ryan’s] injuries, as noted by the various police officers and also depicted in the photographs, are consistent with what he said happened. On that point, let me just state that the evidence of Dr. McDougall was useless, to put it charitably. He was clearly a hired gun to support a completely baseless theory.
71The respondents submit that the trial judge was required to give fuller reasons for rejecting Dr. McDougall’s evidence and that in failing to do so, he fell short of the requirement that he “provide sufficient reasons in law.”
72I disagree. When the reasons for judgment are read as a whole, it is apparent that the trial judge rejected Dr. McDougall’s evidence because it defied reason and common sense.
73Apart from a cut behind his right ear, Ryan’s injuries were essentially confined to the left side of his face and head. If Ryan had landed face down on interlocking brick or come into contact with interlocking brick while flailing his head back and forth, surely he would have had abrasions on his chin and nose in addition to the other observable injuries. Dr. McDougall conceded as much in cross-examination. He also conceded that he had no idea how many blows (kicks and punches) actually landed on Ryan’s face and head and that such information was vital to his thesis that Ryan’s injuries were far too minor to have been caused by multiple kicks and punches.
74In short, Dr. McDougall did not fare well in cross-examination. In the circumstances, it is little wonder that the trial judge gave his testimony short shrift. It deserved little more.
75Other complaints made by the respondents about the trial judge’s failure to grasp the most basic principles of criminal law are equally groundless. They include suggestions that the trial judge disregarded the presumption of innocence, reversed the onus of proof, subjected the respondents’ evidence to a higher degree of scrutiny than the complainant’s evidence and, in the end, in the light of these fundamental errors, rendered verdicts that were unreasonable and not supportable on the totality of the evidence.
76I do not propose to address these complaints on an item-by-item basis. Suffice it to say that I would not give effect to any of them. The trial judge did not misconstrue or misapply basic principles of criminal law. He applied the correct legal principles and found the respondents guilty as charged. The respondents are unhappy with that result. That is understandable but unfortunately for them, it does not translate into a recognized ground of appeal.
77I take a similar view of the respondents’ concerns about the trial judge’s treatment of the evidence and in particular, their complaints that he misapprehended material evidence, failed to consider material evidence, ignored inconsistencies in the complainant’s evidence and generally took a selective view of the evidence that favoured the complainant’s testimony over that of the respondents.
78The trial judge reviewed the evidence in considerable detail. Overall, his reasons demonstrate a firm grasp of the material facts. Any slip-ups on his part in misstating or failing to mention the odd piece of evidence were minor and inconsequential.
79So too, I reject the respondents’ submission that the trial judge ignored inconsistencies and frailties in the complainant’s evidence and generally took a selective approach to the evidence that favoured the complainant’s testimony over that of the respondents.
80In his reasons, the trial judge referred specifically to the defence submission that “Mr. Scullion’s evidence was inconsistent, confused and therefore unreliable.” He rejected that submission, finding instead that Ryan’s account was “reasonable and truthful.” In so concluding, he considered several items of evidence that confirmed Ryan’s testimony, including his “demeanour and behaviour” upon being turned over to the Durham police and the consistency of his injuries “with what he said happened.”
81The approach taken by the trial judge hardly suggests that he ignored inconsistencies and frailties in Ryan’s evidence. To the contrary, it indicates to me that he considered them and found them to be inconsequential in his overall assessment of Ryan’s credibility – and with good cause I might add.
82The inconsistencies upon which the respondents rely relate largely to matters of detail that most people would have trouble remembering in the best of circumstances, let alone in those faced by Ryan on the night in question.
83How Ryan could be expected to remember, with exactitude, such things as the precise way in which he landed on the ground when tackled, the precise number of blows and kicks he received, the particular person responsible for inflicting individual blows and the precise amount of time that elapsed while he was on the ground, escapes me.
84Ryan was a seventeen-year-old boy whose only crime, it turns out, was waiting alone at a bus stop at ten o’clock at night. Suddenly, without warning, he found himself being chased, tackled and pinned to the ground by a total stranger, dressed in civilian clothes, who outweighed him by more than one hundred pounds. Moments later, another stranger in civilian clothing arrived and he found himself being punched and kicked.
85In those circumstances, it is hardly surprising that Ryan would have trouble remembering fine details. As for the basics, however, he remained constant from day one: he had no idea what was happening to him, he was frightened to the point that he urinated in his pants, he put up no resistance to the respondents and the respondents assaulted him for no reason.
86The trial judge viewed Ryan as an honest and fair witness. In his opinion, Ryan made concessions wherever necessary, did not exaggerate or embellish his evidence and he bore no animus toward the respondents. He further observed that Ryan was not shaken in cross-examination. The trial judge was uniquely positioned to make those assessments and it is not for this or any other appellate court to second-guess them.
87So much for the respondents’ claim that the trial judge ignored inconsistencies and frailties in the complainant’s evidence. What then of their further complaint that he held them to a higher degree of accountability and failed to adequately articulate why he disbelieved their testimony?
88The trial judge gave cogent reasons for concluding that Flis was not behaving as a professional police officer when he arrested Ryan. That finding is supportable on the evidence and the trial judge was entitled to consider it in his overall assessment of Flis’s credibility.
89The trial judge also disbelieved Flis’s evidence that Ryan was moving his head back and forth after being tackled and he further rejected Flis’s suggestion that Ryan’s injuries may have been caused by Ryan “rubbing his face on the interlocking bricks.” His reasons on these matters are reproduced below:
I do not believe Mr. Flis when he says Mr. Scullion was moving his head every which way. That does not make sense. Mr. Flis, a man of over 200 pounds, had his knee in the middle of Mr. Scullion’s back, and also was applying force to the back of his neck. Mr. Scullion could not have moved the way Mr. Flis suggests. His suggestion that Mr. Scullion’s injuries were caused by his rubbing his face on the interlocking bricks, is not supported by the evidence. If things happened the way Mr. Flis suggested, there would have been injuries to the nose and chin, as well as the right side of the face. The injuries are consistent with Mr. Scullion’s evidence. I do not believe Mr. Flis when he says he did not slap or punch Mr. Scullion.
90Flis submits that the trial judge was not entitled to draw the inferences he did and that his findings are a product of speculation. I disagree. The findings in question are based on common sense inferences arising from the evidence.
91Apart from those specific observations about Flis, the trial judge made the following general comments about both respondents:
Their demeanour in the witness stand during the testimony on the issue [their dealings with Ryan Scullion] was poor. Their accounts of what happened were inconsistent with each other on key points, and their credibility did not survive cross-examination.
92The respondents take exception to this passage for two reasons. First, they submit that it is conclusory; second, it shows that the trial judge held their evidence to a higher standard than the complainant’s evidence.
93I disagree with both submissions. Certainly, the trial judge could have provided more detail. But had he done so, it would not have inured to the benefit of the respondents.
94The respective versions given by the respondents as to their dealings with the complainant were about as different as night and day. Flis had Grande dropping in front of him out of nowhere. It was then that he and Grande identified themselves as police officers. By then, Flis had control of Ryan’s right arm and Grande merely took hold of Ryan’s left arm.
95Grande, on the other hand, claimed that he was ten feet from Flis when he and Flis identified themselves as police officers. Grande then threw himself on Ryan because Ryan’s legs were flailing and he felt that Flis did not have Ryan under control. It was “quite evident that [Ryan] was trying to get up or get away.” Grande positioned himself behind Flis and he could not see what Flis was doing – “Flis’s body was covering my view of Scullion’s whole upper half.”
96With regard to the “consistency” of their accounts and their overall credibility, I note that on Grande’s version, it took two police officers, weighing over 400 pounds, to bring a 115-pound seventeen-year-old teenager under control. Moreover, the respondents had their positions all wrong. Whereas Flis had Grande in front of him, face-to-face, Grande had himself behind Flis such that he could not see Flis’s face. In addition, Grande had Ryan doing things (e.g. flailing his legs in an attempt to escape) about which Flis made no mention.
97In short, it was as though the respondents were describing two different events. That explains why fuller reasons would not have assisted them; more importantly, it shows that the trial judge was not holding their evidence to a higher standard. Unlike Ryan, the respondents could not even get the basics straight.
98The trial judge did not err in his assessment of the evidence. In the end, while the various complaints raised by the respondents attest to their dissatisfaction with the result, they do not amount to legitimate grounds of appeal.
The fresh evidence issue
99The one other common issue raised by the respondents involves the admissibility of fresh evidence that they seek to introduce on appeal. The evidence is a Statement of Claim served on the respondents following the completion of the criminal trial. In it, Ryan Scullion apparently seeks damages against the respondents for injuries he sustained in the course of his arrest. I say “apparently” because the Claim is not included in the fresh evidence record.
100The relevance of the proposed fresh evidence is traceable to the Crown’s cross-examination of Flis at trial. In cross-examination, Flis conceded that prior to the incident in question, he had never met Ryan Scullion and there was “no bad blood” between them. Crown counsel then suggested that Ryan had not brought a civil suit against Flis and Flis responded that to his knowledge, he had not. In response to a further question, Flis stated that he did not know whether Ryan or his family had contacted his police force regarding a civil suit. When pressed on the issue, Flis reiterated that he did not know whether his force had been contacted or not and the trial judge told the Crown to “move on.”
101Manifestly, the Crown’s questions were designed to show that Ryan had no ulterior motive for implicating the respondents in a crime that they did not commit. According to the respondents, the Statement of Claim issued post-trial altered the landscape in that regard and they submit that it should be admitted as fresh evidence because it “is essential to assessing the credibility of the complainant as it offers the possibility of an ulterior motive for the evidence that the complainant gave at trial.”
102I would not give effect to that submission. The trial judge made no mention of Ryan’s “lack of an ulterior motive” in his reasons for judgment. His admonishment to the Crown to “move on” to a different area of questioning indicates to me that the trial judge placed little stock in the existence or non-existence of a civil action.
103In any event, I find it entirely unremarkable that Ryan would launch a civil suit following the outcome of the criminal trial. It only makes sense that he would. To infer from his commencement of a law suit years later and after a criminal court had convicted his assailants, that this seventeen-year-old boy had dollars and cents in mind when he accused the respondents of abuse on the night of his arrest borders on the absurd.
104In these circumstances, it is apparent to me that if the trial judge had known that Ryan was contemplating a civil action following the criminal trial, it would not have made the slightest difference to the outcome of the case. Accordingly, the proposed fresh evidence does not meet the fourth test in Palmer v. The Queen (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.). I would therefore not admit the fresh evidence on appeal.
MISCELLANEOUS ISSUES RAISED BY FLIS
105The respondent Flis has advanced four additional grounds of appeal as follows:
That the trial judge improperly limited his cross-examination of Constable Zebeski.
That the trial judge erred in refusing to order disclosure of notes taken at two pre-charge meetings in which a Crown Attorney, the investigating officer and the complainant and members of his family were present.
That the trial judge erred in failing to order a mistrial in the face of conduct on his part that gave rise to a reasonable apprehension of bias.
The trial judge erred in holding that Flis did not have reasonable grounds to arrest Ryan Scullion.
Cross-examination of Constable Zebeski
106Constable Zebeski is a police officer with the Durham Regional Police Force. On the night in question, he drove Ryan Scullion from the scene of the arrest to the Durham police station. On the way to the station and at the station, Ryan made various oral statements to Constable Zebeski that he (Zebeski) later reduced to writing. The statements were not verbatim and Ryan was not given an opportunity to review them for accuracy.
107In his cross-examination of Ryan, counsel for Flis did not refer Ryan to the statements allegedly made to Zebeski. Hence, Ryan was not given the opportunity to confirm, deny or clarify them. Despite this, in his questioning of Zebeski, counsel for Flis sought to introduce Ryan’s statements with a view to showing that they were not consistent with Ryan’s testimony.
108The trial judge refused to permit the proposed questioning because the statements were not verbatim and they had not been put to Ryan in cross-examination.
109The respondent Flis challenges that ruling. He submits that by limiting the cross-examination, the trial judge improperly restricted his right to make full answer and defence. I disagree. In my view, it was open to the trial judge, in the exercise of his discretion, to rule as he did. In the circumstances, the proposed evidence would have had little, if any, probative value and it would have unnecessarily prolonged an already lengthy trial. Accordingly, I would not give effect to this ground of appeal.
Refusal to disclose notes of pre-charge meetings
110Prior to the commencement of the trial, counsel for Flis brought a motion seeking disclosure of notes made by Sergeant Colling (the investigating officer) in the course of two pre-charge meetings held on August 25, 1998. The first meeting was attended by John Scott, a Crown Attorney, as well as Sergeant Colling, Ryan Scullion and members of his family; at the second meeting, Mr. Scott was not present.
111In her submissions opposing the defence motion for production, Ms. Johnston, for the Crown, advised the trial judge that the notes taken by Sergeant Colling had not been disclosed because in her opinion, they were irrelevant. They did not involve discussions of the evidence and they were not investigative in nature. As such, there was no reasonable possibility that they could be useful to the defence. The defence presented no evidence to contradict Ms. Johnston’s assertions.
112In the circumstances, the trial judge refused to order disclosure. In his view, the defence had failed “to meet the burden of demonstrating a reasonable possibility that the material could be used in meeting the Crown’s case or advancing a defence or otherwise making a decision which could affect the conduct of the defence.”
113In my view, the trial judge made no error in ruling as he did. On the information before him, there was no reason to believe that the notes contained material that might be useful to the defence. As such, they were irrelevant and the Crown had no obligation to disclose them. I would therefore reject this ground of appeal.
Reasonable apprehension of bias
114In the course of the trial, the trial judge was interviewed by two newspapers. The interviews had nothing to do with the trial. They related to a dinner at which the trial judge and other black judges were to be honoured by the Canadian Association of Black Lawyers for their contributions to the black community and the administration of justice. The interviews with the trial judge centred, for the most part, on his personal and professional background.
115In one of the interviews, the trial judge stated that “everyone comes to every position affected by their experiences” and “being black gives me certain types of experiences. I have an appreciation of issues of racism, I have an appreciation for some of the problems black people in [Toronto] face in their dealings with the police, and so on.”
116In the face of those comments, counsel for Flis moved to have the trial judge declare a mistrial. He did so on the basis that Flis was a white officer on the Toronto police force and that the trial judge’s remarks gave rise to a reasonable apprehension of bias given his belief that “some members of the Toronto Police Service, by the way they conduct themselves, cause problems for black people.” I note at this point that Ryan Scullion is white.
117The trial judge dismissed the motion and the respondent Flis submits that he erred in doing so. I disagree. The motion was baseless. It was an affront to the trial judge and it should not have been brought.
Did Flis have reasonable grounds to arrest Ryan Scullion?
118The trial judge found that Flis did not have reasonable grounds to arrest Ryan Scullion. Accordingly, in the opinion of the trial judge, when Flis “tackled [Ryan] to the ground, that was an assault.” Flis maintains that the trial judge erred in so concluding.
119I find it unnecessary to finally resolve this issue. Assuming that Flis did have reasonable grounds to arrest Ryan, he did not have the right to unlawfully assault him in the course of that arrest. That was the essence of the Crown’s case against Flis and it is the basis upon which the trial judge convicted him. Accordingly, even if the trial judge erred as alleged, the error was harmless.
CONCLUSION
120The trial judge did not make any errors in his reasons for judgment that warrant overturning the respondents’ convictions for assault. Accordingly, I would grant leave to the Crown to appeal, allow the appeal, restore the convictions and remit the sentence appeals to the Summary Conviction Appeal Court for determination. In the circumstances, given the views expressed by the summary conviction appeal judge in staying the proceedings against the respondents, it would be best if the sentence appeal was heard by a different summary conviction appeal judge. As for the delay in perfecting the initial appeal, the reasons for it, and any impact such delay may have had on the respondents’ careers, it will be for the summary conviction appeal judge to determine what, if any effect those factors may have on the issue of sentence.
Signed: “M.J. Moldaver J.A.”
“I agree Doherty J.A.
“I agree Karen Weiler J.A.”
