Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Bogdan Stirbei
Before: Justice D.A. Harris
Heard on: September 10, 2015
Reasons for Judgment released on: October 5, 2015
Counsel
Anthony MacKinnon — counsel for the Crown
Craig Penny — counsel for the defendant Bogdan Stirbei
Reasons for Judgment
HARRIS J.:
1Bogdan Stirbei is charged with one count of assault and one count of assault with a weapon (a water bottle) both involving his wife Coralia Stirbei.
2Crown counsel elected to proceed summarily. Mr. Stirbei pled not guilty and we held a trial.
3Mrs. Stirbei said that Mr. Stirbei assaulted her on the two occasions.
4Mr. Stirbei testified that he did not assault her at any time.
5This case then turns on my findings with respect to the credibility and the reliability of these two witnesses.
Legal Framework for Credibility Assessment
6In resolving that issue, I am guided by the Supreme Court of Canada decision in R. v. W. (D).
7If I believe the testimony of Mr. Stirbei, I must find him not guilty.
8Even if I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty.
9If I do not know whom to believe, it means that I have a reasonable doubt and I must find him not guilty.
10Even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
11In determining this, I must keep in mind that Mr. Stirbei, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely, it is nearly impossible to prove anything with absolute certainty, and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard … falls much closer to absolute certainty than to proof on a balance of probabilities."
12This is a tough standard and it is so tough for very good reason. As Cory J. said in R. v. Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt … is one of the principal safeguards which seeks to ensure that no innocent person is convicted."
Findings on Guilt
13I did not believe Mr. Stirbei.
14His evidence did not leave me with a reasonable doubt with respect to the initial assault. After considering all of the evidence I am satisfied that the Crown has proven him guilty of that offence beyond a reasonable doubt.
15On the other hand, I was not satisfied beyond a reasonable doubt with respect to the alleged assault with a water bottle.
16My reasons for these findings are as follows.
Assessment of Mrs. Stirbei's Credibility
17I found the evidence of Mrs. Stirbei to be very compelling. I base this conclusion on a number of factors.
18There was no reason for her to fabricate her allegations against him.
19On the contrary, she made it clear that she did not want her husband charged initially. She refused to do anything at the hospital that would result in that.
20The next day, after calling 911, she immediately hung up, because she still did not want him to be arrested. It was only when the 911 operator called her back and kept her on the line until police officers arrived at her residence, that she finally told a police officer anything.
21Even then she refused to give a statement that was recorded, either by audio, video or even written means.
22She also refused to allow Nina's Place to release any records that they had resulting from her attendance at the hospital on the first night.
23She also testified, quite convincingly that she had forgiven her husband for his earlier sexual infidelity. She said that she was trying to continue the relationship with him. She stated in a very matter of fact fashion that she had no relatives here and that she is not very young.
24The absence of a motive to fabricate an allegation is a proper matter for consideration in the course of the fact finding process. It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for Mrs. Stirbei to lie, then she must be telling the truth. Rather, I must assess the credibility and reliability of her evidence in the light of all of the other evidence. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.
25Ms. Stirbei did not overstate her case against Mr. Stirbei. Her accusations were short and simple. When confronted with the possibility that she had said something different to one of the police officers, she agreed that if the officer had written down, then she probably had said that. She did not raise the possibility that the officer had misunderstood her, although for reasons that I will refer to shortly, she might well have done so.
26She testified in a straight-forward and often matter of fact fashion. I note here that I am well aware that a finding of credibility should never be based on demeanour alone. The credibility and reliability of a witness must be assessed in the light of all of the evidence.
27It was obvious to me that English was the second language for both Mr. and Mrs. Stirbei and I made allowance for that when assessing their evidence. Crown counsel argued that Mr. Stirbei paused for much longer than was necessary before answering questions. I did not accept this submission in light of the language situation and the likelihood that he was extremely nervous while testifying in his own defence. Mrs. Stirbei also paused before answering although not to the same extent as her husband.
28Finally, there is the fact that the injuries which Mrs. Stirbei suffered that night were entirely consistent with her version of events. This provided compelling corroboration of her testimony with respect to that incident.
29Mr. Stirbei, on the other hand, said that nothing physical happened that night. This was entirely inconsistent with her injuries.
The First Incident: Assault
30This one final factor makes the evidence regarding the first incident very different from the alleged assault with a water bottle on the next day.
31Mrs. Stirbei expressed some slight uncertainty about whether Mr. Stirbei had deliberately thrown the water bottle directly at her.
32Mr. Stirbei stated unequivocally that he had not, that he had thrown the water bottle down onto the table top. He had no idea where it went after that, but he never intended for it to hit her or even come close to her.
33Mrs. Stirbei's statement to the police raised the possibility that his version of the events might be true. So, even though I did not believe Mr. Stirbei, after considering all of the evidence, I was not convinced that the Crown had proven guilt beyond a reasonable doubt with respect to that incident.
The Rule in Browne v. Dunn
34There was one other issue raised in this case with respect to my assessment of the credibility of the witnesses.
35Crown counsel argued that counsel for Mr. Stirbei failed to comply on several occasions with the rule in Browne v. Dunn. He suggested that I should take this into account as a factor in assessing the credibility of both Mr. and Mrs. Stirbei.
36Counsel for Mr. Stirbei disagreed. He argued that he had not failed to comply with the rule and that there was nothing for me to take into account here.
37In addressing this I propose to first summarize the rule itself and the law regarding its application.
Summary of the Rule in Browne v. Dunn
38This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while she is in the witness-box.
39It is a rule of fairness that prevents the "ambush" of a witness by not giving her an opportunity to state her position with respect to later evidence which contradicts her on an essential matter.
40It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief, putting her on notice of every detail that the defence does not accept.
41Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness.
42The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness's credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness's story is not accepted.
43It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness.
44In some cases, it may be apparent from the tenor of counsel's cross-examination of a witness that the cross-examining party does not accept the witness's version of events. Where the confrontation is general, known to the witness and the witness's view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.
45The potential relevance to the credibility of an accused's testimony of the failure to cross-examine a witness for the prosecution on subjects of substance on which the accused later contradicts the witness' testimony depends on several factors, including but not limited to the nature of the subjects on which the witness was not cross-examined, the overall tenor of the cross-examination, and the overall conduct of the defence.
46Where the subjects not touched in cross-examination but later contradicted are of little significance in the conduct of the case and the resolution of critical issues of fact, the failure to cross-examine is likely to be of little significance to an accused's credibility. On the other hand, where a central feature of a witness's testimony is left untouched by cross-examination, or even implicitly accepted in cross-examination, the absence of cross-examination is likely to have a more telling effect on an accused's credibility.
Remedies for Breach of the Rule
47If I find that there has been a breach of the rule here, I must consider a number of factors in determining the appropriate remedy. These factors include but are not restricted to:
- the seriousness of the breach;
- the context of the breach;
- the timing of the objection;
- the position of the offending party;
- any request to permit recall of a witness; and
- the availability of the impugned witness for recall.
48I point out the obvious, that this case is being tried before a judge alone. Accordingly, there is no need for a jury instruction in order to overcome any prejudice resulting from any breach of the rule.
49There are at least two remedies available to rectify a breach.
50One is for me to view the failure to cross-examine into consideration as a factor that I am entitled but not obliged to consider in assessing the evidence of both Mr. and Mrs. Stirbei.
51Another is for me to allow Crown counsel to recall Mrs. Stirbei to testify again.
Application of Browne v. Dunn to This Case
52In this case, counsel for Mr. Stirbei more than complied with the rule in Browne v. Dunn with respect to the second incident. He "put to" Mrs. Stirbei virtually every detail of what Mr. Stirbei later testified to.
53Counsel dealt with the first incident in a totally different manner. He put to Mrs. Stirbei the general proposition that Mr. Stirbei would deny striking her and pretty much left it at that.
54Mrs. Stirbei testified in-chief that she and her husband had been arguing for many months about their precarious financial position. She blamed this situation on him for taking three trips to Romania to see a girlfriend. That day, this was exacerbated by them not having sufficient funds to pay the dentist for that day's treatment. Then she criticized him for spending $20 on cigarettes instead of groceries. She described this as the final trigger that led to him hitting her.
55Mr. Stirbei testified that they went to see the dentist but he did not mention any difficulty in paying for this.
56He testified that he did not remember arguing about spending money on cigarettes instead of food.
57He did testify that, at approximately 4 p.m., his wife asked him to drive her to her hairdresser. As they were getting into the car, he told her that he did not want to argue with her. She did argue with him however and at some point he turned the car around and drove her home without going to the hairdresser.
58At the dinner table that evening, she started arguing about money issues again, this time in the presence of her parents. The parents joined in and criticized him too. He then told them, in effect, that they were welcome guests in the house but that they should remember their place. When they kept this up, he got up from the table and told his wife that he wanted a divorce.
59Neither of these fact situations had been put to Mrs. Stirbei by counsel.
60I am satisfied that they should have been. Stating that he wanted a divorce, chastising her parents in her presence, and turning back from driving her to the hairdresser were all matters that could reasonably be expected to upset or even anger Mrs. Stirbei. They were therefore relevant to, amongst other things, the issue of her motive to fabricate these allegations against him and to whether she was angry enough the next day to behave in the fashion described by Mr. Stirbei.
61Crown counsel did not raise this issue until closing submissions. A number of previous cases have clearly indicated that is preferable that counsel raise the issue at the time that the evidence was given.
62On the other hand, I accept Crown counsel's argument that there was little if anything to accomplish by objecting at that time. He was not going to ask me to recall the witness who had already been recalled once before after being told that she was free to go and had in fact left the building. Of note is the fact that the earlier recall was occasioned by an error on the part of counsel for Mr. Stirbei.
63I am satisfied that I should take the failure to cross-examine into consideration as a factor that I am entitled, but not obliged, to consider in assessing the evidence of both Mr. and Mrs. Stirbei.
64However I also instruct myself that Mr. Stirbei "should not be held responsible for what may have been a tactical decision or mere oversight on the part of his counsel".
65All in all, I attached little, if any, significance to this. It was not a determinative factor in my final decisions.
Final Verdict
66After considering all of the above, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Stirbei is guilty of the assault. Accordingly he is found guilty of that offence.
67I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Stirbei is guilty of the assault with a weapon. Accordingly he is found not guilty of that offence.
Released: October 5, 2015
Signed: "Justice D.A. Harris"