Court of Appeal for Ontario
Date: May 11, 2018
Docket: C64849
Judges: LaForme, Watt and Nordheimer JJ.A.
Parties
Between
Her Majesty the Queen Appellant
and
Emark Polanco Respondent
Counsel
For the Appellant: Davin Michael Garg
For the Respondent: Matthew Gourlay
Hearing
Heard: May 2, 2018
On appeal from: The decision dated June 6, 2017 by Justice Kelly Wright of the Superior Court of Justice sitting as a Summary Convictions Appeal Court, with reasons reported at 2017 ONSC 3765, allowing an appeal from the convictions entered on November 18, 2015 by Justice Donna Hackett of the Ontario Court of Justice.
Decision
Nordheimer J.A.:
[1] Introduction
[1] The Crown appeals, with leave, from the decision of the Summary Conviction Appeal Judge ("SCAJ") that allowed the respondent's appeal from conviction and ordered a new trial.
[2] The SCAJ held that the trial judge prejudiced the accused's right to make full answer and defence by preventing defence counsel from cross-examining the complainant on the content of 45 photographs. As a result, the respondent's convictions on five counts of assault, three counts of assault with a weapon, one count of assault causing bodily harm, and one count of theft under $5,000 contrary to ss. 266, 267(a), 267(b), and 334(b) of the Criminal Code, R.S.C. 1985, c. C-46 – all related to allegations of domestic assault – were set aside and a new trial was ordered.
[3] In my view, the SCAJ improperly interfered with the trial judge's discretion to control the trial process. I would allow the appeal and restore the convictions entered at trial.
Background Facts
[4] The underlying charges stemmed from events that took place when the respondent and the complainant were in an intimate relationship during an eight month period from around March until November 2013. By August or September 2013, the respondent had essentially moved into the complainant's apartment.
[5] The relationship started well but, over time, the complainant said that the respondent sought control over everything in her life. He took control of her cell phone, Facebook account, and computer passwords, permitting her only sporadic or supervised access. He also demanded her financial information.
[6] Unbeknownst to the complainant, the respondent was engaged in another romantic relationship with a woman, V.H., while he was with the complainant. V.H. would stay over with the complainant and the respondent in the complainant's apartment at times. Nevertheless, the complainant evidently did not know that the respondent was in a relationship with both of them.
[7] The complainant described how the relationship degenerated. It began with the respondent controlling what she could say to others. It escalated to the respondent regularly punching and kicking her, pulling her hair, and throwing objects at her. The violence increased in frequency and degree over time. The complainant sustained physical injuries.
[8] Eventually, the complainant revealed the abuse to a friend in November 2013, but asked her to refrain from contacting the police. However, the friend disobeyed the complainant's wishes and contacted the police. Officers then attended at the complainant's apartment when she was not expecting it. One officer described the complainant as appearing afraid. The complainant accompanied the police and gave a video-recorded statement. The respondent was arrested.
The Trial
[9] The trial was initially scheduled for two days in the Ontario Court of Justice. The trial evidence and submissions ultimately consumed 12 days of court time over five months. Cross-examination of the complainant spanned four days. The respondent did not testify, but his other girlfriend, V.H., gave evidence for the defence. She testified that she never saw the respondent assault the complainant. The trial judge found her to be neither credible nor reliable.
[10] During the final month of the relationship, the respondent was in a wheelchair following major reconstructive surgery on his leg. The defence called the respondent's physician to testify about whether he could have moved around post-surgery as the complainant described. The trial judge found the doctor's evidence unscientific and unreliable.
[11] In lengthy reasons that involved a review of all the evidence, the trial judge rejected the defence position that the complainant had fabricated the allegations. The judge addressed and resolved several challenges to the complainant's evidence before concluding that she was credible and reliable. She convicted the respondent on all counts.
[12] The main issue involved in this appeal, and the one upon which leave was granted, arose during the cross-examination of the complainant. Defence counsel (not counsel on appeal) wished to put certain pictures to the complainant. Crown counsel objected on the ground of relevance. The defence said that the purpose of the pictures was to show two things: the absence of injuries on the complainant and the nature of their relationship. In response to a question from the trial judge, defence counsel advised that he had "about" 110 or 115 photographs that he intended to put to the complainant. In fact, it turned out that defence counsel had 173 photographs.
[13] The trial judge directed that she would review each of the photographs and determine which of them she would permit defence counsel to use. The trial judge then spent the balance of the afternoon reviewing each of the photographs. In the end result, the trial judge precluded defence counsel from using 45 photographs. In certain instances, defence counsel agreed that a photograph could be eliminated because it was a duplicate.
[14] The trial then proceeded. Defence counsel eventually put only 96 of the 128 remaining photographs to the complainant. On November 18, 2015, the trial judge gave lengthy reasons for concluding that the respondent was guilty of each of the charges.
The Summary Conviction Appeal
[15] The respondent appealed to the Superior Court of Justice. He asserted that the trial judge had made three errors of law by:
(1) Improperly pre-screening and curtailing cross-examination on photographs the defence intended to put to the complainant;
(2) Subjecting the defence evidence to a more onerous level of scrutiny than the evidence of the Crown;
(3) Improperly relying on the content of prior consistent statements of the complainant in order to find the complainant's evidence had been corroborated.
[16] For reasons given, the SCAJ allowed the appeal, set aside the convictions and ordered a new trial. In doing so, the SCAJ relied only on the first ground of appeal relating to the photographs. The SCAJ concluded, at para. 32:
Even without knowing the specific content of the excluded photographs, I am persuaded that the photographs were a key component of the defence and their exclusion limited the Appellant's ability to make full answer and defence.
[17] In reaching her conclusion, the SCAJ found that the vetting process adopted by the trial judge "lacked consistency and was often confusing" and that the trial judge failed to apply the correct test for excluding defence evidence as set out in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 611. She also found that the trial judge applied different standards and tests to different photographs. In the end result, the SCAJ concluded that the trial judge had improperly interfered with the respondent's right to make full answer and defence.
Issues on Appeal
[18] The Crown was granted leave to appeal on the following issue:
(i) Whether the SCAJ erred by substituting her view of the admissibility of the excluded photographs for the trial judge's view, and whether the SCAJ erred by interfering with the trial judge's exercise of trial management powers?
[19] In the event that leave to appeal was granted, the respondent raised and the Crown responded to the following additional issues on appeal:
(ii) Whether the SCAJ wrongfully relied on the complainant's prior consistent statements as confirmation of credibility?
(iii) Whether the SCAJ subjected the defence's and Crown's evidence to differing standards of scrutiny?
Analysis
(1) The Main Appeal
[20] In my view, the SCAJ erred in exercising her appellate oversight. The jurisdiction of a summary conviction appeal judge is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge is also not entitled to interfere with a trial judge's findings unless they are unreasonable or unsupported by the evidence: R. v. O'Meara, 2012 ONCA 420, 284 C.C.C. (3d) 567, at para. 36.
[21] In this case, the SCAJ improperly interfered with the discretion of the trial judge to control the trial process. Trial judges must be concerned with the orderly progression of any proceeding. This is especially so in light of recent decisions of the Supreme Court of Canada, including R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and the increasing concern over the length of time that is being consumed in order to complete the prosecution of criminal offences. As the majority in Jordan said, at para. 139:
Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials.
[22] The right of a trial judge to control and manage the trial process is not a new one. It is well-established that trial judges have the authority to ensure that trials proceed not only fairly, but also efficiently. In exercising that authority, trial judges are entitled to take a number of steps, including restricting counsel's questioning of witnesses to ensure that that questioning is not unduly repetitive. On that point, by way of example, in R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, Watt J.A. said, at para. 92:
A trial judge may intervene to focus the evidence on issues material to a determination of the case. To clarify evidence as it has been given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitive evidence. To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings: Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, at paras. 233-34.
[23] There is no doubt that defence counsel was entitled to put photographs to the complainant for the purposes that he identified. That said, the defence was not, by the fact of relevance alone, entitled to put every such photograph to the complainant. At some point, such an exercise will become redundant and thus lose the probative value that must underlie the admission of any evidence.
[24] The SCAJ found "no fault" with the trial judge's decision to vet the photographs. However, she criticized the trial judge's conduct of the vetting. The criticism levelled at the trial judge by the SCAJ in terms of her process for "vetting" the photographs (including that the trial judge did not give reasons for each and every photograph that she excluded) is, in my view, an unfair one. The trial judge made it perfectly clear the reason why she was reviewing all of the photographs. Further, she gave reasons, in many instances, regarding the photographs that she excluded. Given the nature of the exercise, it was neither necessary, nor was it to be expected, that the trial judge would give separate reasons for each individual photograph. Indeed, in some instances, defence counsel agreed that a particular photograph was repetitive.
[25] In my view, the SCAJ erred when she concluded that the trial judge's exclusion of some of the photographs constituted an interference with the respondent's right to make full answer and defence. I would note, on this point, that the SCAJ did not have the 45 excluded photographs before her so it is especially difficult to see how she came to the view that they were of such importance as to rise to the level required for the conclusion that she reached.
[26] Two other points should be made regarding how the trial proceeded after the trial judge ruled on the admissibility of the photographs. The first point is that defence counsel never asked the trial judge to revisit her rulings on the photographs as the cross-examination proceeded or at its conclusion. In other words, defence counsel never suggested to the trial judge that the course of the cross-examination brought to light issues that should have caused the trial judge to have a different view of the excluded photographs, from what she had at the time that she made her rulings. It is difficult to square this failure to seek to revisit this issue with the conclusion that the respondent was prohibited from making full answer and defence.
[27] The second point arises from the exchange between defence counsel and the trial judge during closing submissions. Defence counsel was engaged in an exchange with the trial judge about the photographs when the following was said:
THE COURT: All I guess I'm saying to you is I don't really think you're trying to say, are you, that I excluded evidence that you think was probative?
[Counsel]: No, what I –
THE COURT: Okay
[Counsel]: What I'm saying –
THE COURT: That's the way I heard it.
[Counsel]: No, no. No, no. What I am saying …
[28] Defence counsel then went on to make submissions about the significance of the photographs and what the trial judge should take from them. However, the exchange I have quoted strongly suggests that defence counsel did not believe that the trial judge's ruling about the photographs had hampered the defence. These two contextual points taken from defence counsel's conduct at trial indicate that the probative value of the 45 excluded photographs, in the face of the 128 that were admitted, was so marginal that the Seaboyer test was met in this case – regardless of whether the trial judge expressly adverted to it.
[29] All of that said, there is no doubt that the right of a trial judge to control the trial process must be exercised cautiously. Counsel must generally be allowed to present their case as they see fit. Indeed, I accept the respondent's point that, in this case, it might have been preferable for the trial judge to permit the cross-examination to proceed and leave her decision, on whether to curtail the number of photographs presented to the complainant, until the repetitive nature of the exercise, or the irrelevance of individual photographs, became clear. The fact that another judge might have approached the issue in a different fashion, however, did not warrant interference by the SCAJ in the trial judge's discretion to proceed as she did. There is no set procedure for addressing these issues. As Morden A.C.J.O. said in R. v. Darrach, 38 O.R. (3d) 1, at pp. 21-22:
In response to this it is worth observing that neither the common law nor the Charter require that any specific procedure be followed in determining the admissibility of evidence. The procedure followed may vary and may be adapted to protect any competing interests that may come into conflict when evidence is proffered at trial.
[30] As I have said, trial judges have the authority to manage the trial process in order to ensure that trials proceed fairly but also efficiently. The decision of the SCAJ fundamentally undermines that authority. It stands in stark contrast to the point that was made by this court in R. v. Hamilton, 2011 ONCA 399, 279 O.A.C. 199, at para. 49:
At a time when we are concerned about the increasing cost and length of criminal trials as well as their drain on resources and the pressures they bring to bear on the administration of justice, appropriate trial management is to be encouraged, not muted.
(2) The Other Grounds of Appeal
[31] Because of the conclusion that she reached on the issue of the admissibility of the photographs, the SCAJ did not address the other two grounds of appeal raised by the respondent. In light of my conclusion on the issue of the photographs, it falls to this court to decide those two additional issues as well.
[32] The first additional issue is the respondent's assertion that the trial judge improperly used the complainant's prior consistent statements. Specifically, concern is expressed with respect to text messages between the complainant and one of her friends. In her reasons, the trial judge said, at p. 27, that a specific text message was consistent with the complainant's evidence that her communications were being monitored. I accept that, as stated, the trial judge's reasons in this regard reveal an improper use of the text messages. However, I do not view that error as being material in this case. There was ample other evidence, upon which the trial judge also relied, to found her conclusion that the allegations made by the complainant were reliable. This isolated error cannot serve to undermine that essential finding. The impact of the error is also significantly reduced by the fact that this was a judge alone trial.
[33] The other issue raised by the respondent is that the trial judge applied more stringent levels of scrutiny to the defence evidence than to that of the Crown. As this court has said on many occasions, this is an argument on which it is difficult to succeed. Specifically, this court said in R. v. Chanmany, 2016 ONCA 576, 352 O.A.C. 121, at para. 26:
We begin with an observation repeatedly made in the jurisprudence of this court. This "uneven scrutiny" argument is one that is difficult to make successfully: R. v. Howe, 192 C.C.C. (3d) 480, at paras. 58-59. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39.
[34] The instances in the evidence that the respondent points to on this issue do not meet the high threshold for success on this ground. Essentially, the respondent argues that the trial judge drew certain inferences from the evidence whereas the respondent would have asked for different inferences to be drawn. It should also be noted, on this point, that the trial judge did identify some problems with the complainant's evidence, but she also determined that those problems did not undermine the reliability of the complainant's evidence viewed as whole. As this court also said in Chanmany, at para. 27, an appellant "must do more than show that a different trial judge could have assessed credibility differently."
[35] Neither of these issues is sufficient to undermine the central conclusions reached by the trial judge.
Conclusion
[36] I would allow the appeal, set aside the decision of the SCAJ, and restore the convictions. I would remit the matter back to the Superior Court of Justice for the determination of the outstanding sentence appeal.
Released: May 11, 2018
"I.V.B. Nordheimer J.A."
"I agree. H.S. LaForme J.A."
"I agree. David Watt J.A."
Footnote
[1] Leave to appeal was granted by endorsement dated December 15, 2017 (Docket M48096).
