COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Rosenberg and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Orin Bristol
Appellant
Gregory Lafontaine, for the appellant
Robin Flumerfelt, for the respondent
Heard: January 21, 2011
On appeal from the conviction entered by Justice Frank N. Marrocco of the Superior Court of Justice, dated March 30, 2007.
O’Connor A.C.J.O.:
OVERVIEW
1The appellant was convicted of aggravated assault following an incident outside a bar. After the complainant had been ejected from the bar, the appellant, who was the manager of the bar, became involved in an argument with the complainant. It was common ground that at some point the complainant was punched in the face. He suffered a fractured cheekbone. The sole issue was whether the appellant delivered the punch. The trial judge found that he did.
2The appellant raises two grounds of appeal: (1) that the trial judge erred in assessing the complainant’s credibility; and (2) that the trial judge reversed the burden of proof.
BACKGROUND
3On July 15, 2004, the complainant, Roland Gordon, and his girlfriend went to the Steam Whistle Pub in Toronto at about 11:30 p.m. Approximately two hours later, Gordon went to the washroom and while there knocked the paper towel dispenser off the wall. He was asked to leave, but would not go voluntarily.
4Four security officers removed Gordon from the bar by carrying him by his arms and legs. After he was ejected, Gordon insisted that he be allowed back into the bar to find his girlfriend. The security officers refused. An altercation ensued. Later Gordon claimed that the security officers punched and kicked him. He also claimed that one of the security officers attempted to choke him.
5Gordon’s girlfriend eventually came out of the bar. He and his girlfriend began to walk away when the appellant came outside. Gordon recognized the appellant as a manager and returned to complain about being ejected. The appellant and Gordon became involved in an argument.
6It is common ground that at some point Gordon was punched below the left cheekbone and that the blow caused a fracture to the bone in that area.
7Gordon testified that the appellant punched him during the course of their argument. He said the blow caught him by surprise – in effect a sucker punch. He saw the punch just before it hit his face.
8The appellant denied that he had hit Gordon. He said that after he spoke to Gordon for a few moments outside the bar, he returned to his office. One of the security officers supported the appellant’s version of events. He said that after the appellant went back inside the bar, an unidentified East Indian male who was leaving the bar bumped into Gordon. The two exchanged words and the East Indian male punched Gordon on the right side of his face, causing him to fall to the ground. He then ran away.
9Three of the security officers who removed Gordon from the bar were charged with assault causing bodily harm and one of them was charged with attempting to choke Gordon. The three were tried jointly with the appellant.
THE TRIAL JUDGE’S DECISION
10The trial judge delivered one set of reasons addressing the charges against the three security officers and the charge against the appellant. The trial judge acquitted the security officers of all of the charges.
11The trial judge found that Gordon was intoxicated at the time he was removed from the bar. He found that the security officers used reasonable force in removing Gordon. While the trial judge accepted that there was a struggle outside the bar, he was not persuaded that any of the assaults alleged against the security officers had taken place. He found that several of Gordon’s complaints were inconsistent with the medical evidence and that, in addition, his testimony differed from his description of the events on earlier occasions and to some extent from the description given by his girlfriend.
12As to the charge against the appellant, the trial judge rejected the appellant’s evidence and accepted Gordon’s evidence. He did not believe the evidence about the unidentified East Indian man.
ANALYSIS
(a) Assessment of the complainant’s credibility
13The appellant argues the trial judge made two errors in assessing the complainant’s credibility as it related to the charge against him. First, the trial judge erred in failing to consider the impact of the “devastating” findings that he had made with regard to Gordon’s credibility in dismissing the charges against the three security officers.
14I do not accept this argument. It is trite law that appellate courts show significant deference to a trial judge’s findings of credibility. It is also well accepted that a trier of fact may accept all, part or none of a witness’s evidence. That said, a trial judge should explain why he is able to accept part of the evidence, despite serious adverse credibility findings respecting significant parts of the evidence.
15Gordon’s evidence regarding the punch and the circumstances that led up to the punch was straightforward. Gordon and the appellant were arguing outside the bar. Angry words were exchanged. Gordon testified that in the course of the argument the appellant punched him. And, most importantly, unlike Gordon’s evidence respecting the security officers, there is no suggestion that his evidence in this respect was inconsistent with what he had said on earlier occasions, nor with the medical evidence.
16The trial judge was aware of Gordon’s credibility issues. His reasons show that he understood his task in assessing credibility. He considered the appellant’s evidence and Gordon’s evidence. He applied W.D. properly. In the end, he determined that it was the appellant who struck the blow to Gordon’s left cheek. It was open to him to accept Gordon’s evidence with respect to the punch. I see no error.
17Next, the appellant argues that the trial judge erred in using evidence that was admissible on the charges against the security officers on the charge against the appellant. By doing so, the argument goes, the trial judge convicted the appellant by a process of elimination. The trial judge’s findings that led to the acquittals were not made on the reasonable doubt standard. The trial judge used those findings to eliminate all factual possibilities other than that the appellant had punched Gordon in the face causing his fractured cheekbone.
18I do not accept this argument. The trial judge did not find the appellant guilty because he found that the security officers had not inflicted the blow that caused the fractured left cheek. Rather, the trial judge approached the issue of who threw the punch on the basis of the way the appellant argued the issue at trial. The melee with the security officers and the confrontation between Gordon and the appellant were two separate incidents. The punch to the cheek took place at some point after the melee with the security guards had ended and the appellant had come out of the bar. On Gordon’s version, the appellant punched him. On the evidence called by the appellant, it was the unidentified East Indian male. Thus, on the evidence, there were two possibilities. The trial judge considered those two possibilities and, for logical reasons, was satisfied beyond a reasonable doubt that the appellant had delivered the punch.
19I see no reason to interfere with the way the trial judge approached the complainant’s credibility.
(b) Reversing burden of proof
20The appellant submits that the trial judge erred in drawing an adverse inference against him because he failed to make efforts to locate the East Indian male. His counsel argues that the effect of this error was to place an onus on the appellant to obtain or call evidence.
21The trial judge gave a number of reasons for rejecting the appellant’s evidence. One of the reasons was that he had not made any inquiries concerning the identity of the East Indian male who, on his version of events, delivered the offending punch. The trial judge reasoned “[w]hy then not try to find the unknown East Indian perpetrator, or find information about this person unless, of course, one knew that he didn’t exist.”
22In my view, the appellant mischaracterizes the trial judge’s comment as placing an evidentiary burden on him. The comment related to the appellant’s credibility, nothing else. The trial judge noted that the appellant made efforts to locate another witness to the altercation between him and Gordon. He observed that although the appellant had been told about the East Indian male, who would be central to his defence, he did nothing about it. The trial judge reasoned that his failure was consistent with knowledge that the East Indian male did not exist.
23The trial judge did not, as argued by the appellant, draw an adverse inference against the appellant because he failed to call evidence. He merely exercised common sense in assessing credibility.
24Finally, I am satisfied that the trial judge properly rejected the evidence of one of the security officers, Sceron Officer, who testified that he saw the East Indian male punch Gordon. The trial judge gave a number of reasons for rejecting this evidence, including that it was inconsistent with the medical evidence. The security officer said that the punch he saw was to Gordon’s right cheek. The injury was to the left cheek. The trial judge also rejected the witness’s evidence because he found it unbelievable that he would not have pursued the East Indian male if he had seen him punch Gordon. Further, the trial judge found it equally unbelievable that Officer would have undertaken no steps to identify other witnesses to the assault until more than two years had elapsed. Moreover, the trial judge did not, as the appellant asserts, use his rejection of this witness’s evidence to draw an inference adverse to the appellant’s credibility. He simply rejected the security guard’s evidence and based the conviction on the evidence of the complainant, which he believed. This line of reasoning was open to him.
25In the result, I would dismiss the appeal.
RELEASED: “DOC” “MAR 25 2011”
“Dennis O’Connor A.C.J.O.”
“I agree M. Rosenberg J.A.”
“I agree Robert P. Armstrong J.A.”