Court File and Parties

COURT FILE NO.: CR-16-3741 DATE: 20180808 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – GUY BALTZER Appellant

Counsel: Jane M. Magri, for the Crown Laura L. Joy, for the Appellant

Heard: January 25, 2018

Reasons on Appeal

HOWARD J.:

Overview

[1] This is an appeal pursuant to s. 813 (a)(i) of the Criminal Code by Mr. Guy Baltzer from his conviction for assault contrary to s. 266 of the Code entered on July 19, 2016, by G. Campbell J. of the Ontario Court of Justice in Windsor, Ontario.

[2] In a four-count information, the appellant was charged that:

a. on or about December 14, 2009, he committed an assault upon his then wife, the complainant, contrary to s. 266 of the Code;

b. between May 1, 2010, and May 31, 2010, he committed an assault upon the complainant, causing bodily harm to her, contrary to s. 267(b) of the Code;

c. between July 1, 2014, and August 31, 2014, he committed an assault upon the complainant, contrary to s. 266 of the Code;

d. between October 1, 2014, and October 31, 2014, he committed an assault upon the complainant, contrary to s. 266 of the Code; and

e. on or about December 14, 2014, he committed an assault upon the complainant, contrary to s. 266 of the Code.

[3] The charges in count nos. 1 and 2 were withdrawn by the Crown.

[4] All of the charges involved the same complainant, Ms. Melissa Baltzer, the former wife of the appellant. During the investigation of the assault in December 2014 (count no. 5), Ms. Baltzer gave the police information about the two previously unreported assaults (count nos. 3 and 4).

[5] The events giving rise to count no. 5 of the information took place on December 13, 2014, which involved an incident that occurred after a work-related Christmas party. Mr. Baltzer stayed at the party for a short time, then left, and subsequently met his wife at a house party at another location. The trial judge found that there was drinking involved that night, and an argument ensued between Mr. Baltzer and his wife.

[6] Mr. Baltzer and his wife drove home together from the house party. When they got home, Mr. Baltzer locked her out of their home. The complainant tried the front and patio doors and then went to try the main door to the garage. She testified that Mr. Baltzer opened the door and pushed her into the nearby fence. Mr. Baltzer testified that the complainant charged at him, tripped over a recycling box, and fell into the fence.

[7] Following a four-day trial, in the course of which the trial judge heard testimony from eight witnesses, including the appellant, Campbell J. delivered oral reasons for judgment on July 19, 2016, in which he found the appellant not guilty of the charges in count nos. 3 and 4 and he convicted Mr. Baltzer of the charge of assaulting the complainant, contrary to s. 266 of the Criminal Code, on count no. 5. [2]

[8] On sentencing, Campbell J. imposed a fine of $2,990 and placed Mr. Baltzer on probation for 18 months, the terms of which included, inter alia, reporting in person to a probation officer at such times as directed by the officer and successfully completing the Partner Assault Response (PAR) Program, which is a rehabilitative program for domestic violence.

[9] By notice of appeal dated September 6, 2016, Mr. Baltzer appealed from his conviction on count no. 5. The notice of appeal set out the following four grounds of appeal:

1. The evaluation of the evidence by the Learned Trial Judge was flawed and led to an unreasonable verdict.

2. The Learned Trial Judge erred by misapprehending evidence involved in the factual finding regarding the application of force, which then played an essential part in the reasoning process resulting in conviction. This misapprehension of significant evidence resulted in a miscarriage of justice.

3. The Learned Trial Judge made an error of fact and law in his determination regarding the application of force, specifically by finding that “Impeding his wife’s lawful access in these circumstances was an application of force without her consent.”

4. The Learned Trial Judge made comments of a personal nature regarding the accused in his manner that raised an apprehension of bias. The comments showed a predisposition to decide the issue against the accused, as displaced by the error referred to above regarding the application of force.

[10] For reasons released December 29, 2016, I dismissed Mr. Baltzer’s application for an order pursuant to s. 683(5) of the Code staying the probation order and fine imposed by the sentencing judge pending his appeal of his summary conviction appeal to this court. [3]

[11] In argument before me, counsel for the appellant submitted that this is “a very strong appeal.” Respectfully, I must disagree. For the reasons that follow, Mr. Baltzer’s appeal must be dismissed.

Factual Background and Decision of the Trial Judge

[12] The parties are in agreement as to the essential facts of the case. The relevant factual background is set out in paras. 4-9 of the appellant’s factum, [4] with which summary the Crown’s factum agrees. [5] There is no need to repeat all of that detail here.

[13] The trial judge found that Mr. and Ms. Baltzer had not been married for long before difficulties developed in their relationship. They separated following a night of drinking and arguing in December 2014, which is the incident giving rise to the charge in count no. 5 of the information. [6]

[14] The evidence before the trial judge indicated that on more than one occasion “an argument took place for what I understand was a typical reason associated with Ms. Baltzer’s excessive drinking.” [7] Indeed, all of the events giving rise to the charges in count nos. 3, 4, and 5 before the trial judge arose out of incidents involving drinking and arguing. It appears that at times the parties’ relationship was turbulent.

[15] The trial judge addressed all three counts in the information in the course of his 12-page reasons for judgment, which he delivered orally from the bench.

[16] It is to be noted that the trial judge did not make a finding that the complainant was lying about the incidents involving the historical allegations. Rather, it is clear that the trial judge determined that in light of the conflicting evidence he could not be convinced beyond a reasonable doubt as to what had occurred with respect to the events giving rise to the charges in count nos. 3 and 4.

[17] For example, in respect of count no. 3, which involved an alleged assault arising out of an episode of drinking and arguing following a summer baseball game in 2014, the trial judge found that, “[c]learly something happened between this couple that caused Ms. Baltzer to be visibly upset. What happened may very well have been as Ms. Baltzer has indicated, but on these facts the nature of the assault and the resulting injury is at odds with the Crown’s other witnesses” and the complainant’s text message to a friend afterwards saying, “nothing happened.” [8]

[18] The trial judge therefore concluded that, “[b]eing mindful of the Crown’s onus of proof, I’m left with a doubt in regard to the allegation. Count three is therefore marked dismissed.” [9]

[19] A similar approach was taken by the trial judge in addressing count no. 4, which involved an alleged assault in which the complainant says she was pushed off the bed and struck her nightstand. Again, the trial judge did not make a finding that the complainant was lying in her account or was lacking in credibility. In commenting on the evidence of the complainant, the trial judge noted that she gave a detailed, coherent account of the events in question and, “[m]oreover, beyond the detail provided, her account appeared factually reliable as she didn’t try to embellish the facts or demean Mr. Baltzer as uncaring.” [10]

[20] In analyzing all of the evidence before him, the trial judge went on to say that, “[n]otwithstanding the compelling account put forward by Melissa Baltzer in regard how she sustained this injury to her eye, I must ask whether I’m left with a doubt as to the accused’s guilt.” [11]

[21] In weighing the conflicting evidence before him, the trial judge noted that the complainant had told several people that she injured herself by falling out of bed. He commented that:

… it isn’t lost on me that misinformation about how an injury sustained by a victim in domestic violence is often disseminated to avoid embarrassment and further unforeseen disruption in the relationship, but to accept that was the case on these facts would be akin to simply preferring her explanation for that reason rather than finding comfort with the fact that that is what actually happened. While I appreciate victims of domestic violence will act in this manner, I don’t find comfort by simply saying that is always the case where there are other considerations at play as there are here. [12]

[22] The trial judge proceeded to weigh those “other considerations” that he found were at play and concluded:

There is no doubt the complainant sustained the injury she complained of. There is no doubt she sustained it by striking the night table. There is also no doubt that she was very intoxicated and told a great many people that the injury was occasioned in a manner different than that which she testified to in court and that those circumstances are not at odds with the same instrumentality and subsequent actions taken to support the assertion that the injury may very well have been sustained other than by a push from the accused.

As a result, notwithstanding the compelling account put forward by this complainant, I am not satisfied the Crown has met its burden of proof. Count four is marked dismissed. [13]

[23] Turning to the assault alleged in count no. 5, the trial judge described the factual background to the incident in question that night, as follows:

On December 13, 2014, Ms. Baltzer attended a work Christmas party that was being held at Colasanti’s. The accused took the day off and attended the Christmas party also for a short while, staying for dinner, and then left. Ms. Baltzer held the opinion the accused went to Splat’s. Regardless, they met up together later at a house party. Both had been drinking.

There’s a lack of clarity in regard to how much the complainant drank and there is a lack of consistency in regard to how much she said she had drank to the police and during the trial. Nevertheless, I am satisfied that in typical form the couple had been out drinking and an argument later ensued. [14]

[24] The trial judge then reviewed the evidence of the complainant and Crown witness, as follows:

During the ride home the complainant took her shoes off. Mr. Baltzer was quick to exit from the car after they arrived home. He entered the house ahead of her and locked all of the doors. After Ms. Baltzer exited the car and went to the house, she of course found the entrance door locked. She went to the patio door and also found it locked. She next came around the side of the house and reached a point where the main door was located from the garage. Ms. Baltzer said that door was suddenly opened by the accused, who then pushed her into the fence. No injuries were sustained. Ms. Baltzer called 911 to report the incident.

Officer Twaddle attended to find her standing in the driveway wearing a skirt, a light sweater and in her bare feet in below zero temperature. He said she was very upset and crying. It was as a result of this complaint that the circumstances in support of the earlier allegations came to light. [15]

[25] Turning to the evidence of the appellant, the trial judge summarized his testimony as follows:

Guy Baltzer testified that he did in fact meet up with the complainant later on after the Christmas party. He recalled how he had asked Ms. Baltzer earlier not to drink so much and to avoid becoming intoxicated, but when they were together at their friend’s home it was apparent that she had in fact drank too much alcohol. He described her as stumbling and even having difficulty putting on her shoes. Their discussion once again turned into an argument. The accused said that once he got home he didn’t want to argue anymore, so he went into the home quickly ahead of her and locked all the doors. He next watched as she tried to gain entry, first walking around the side of the house and then to the patio doors at the rear and then around the side of the home, where he went through the garage to meet her at the door. Mr. Baltzer said that once he opened the door his wife charged at him and stumbled over a recycle box, which caused her to fall into the fence. [16]

[26] In concluding that the Crown had proven beyond a reasonable doubt that the appellant had committed an assault upon the complainant, the trial judge summarized his reasons as follows:

There can be no doubt that Mr. Baltzer was angry that evening. The evidence is clear he was troubled by her drinking and she had not been compliant with his request. It is startling, to say the least, that a grown married man would run into the house ahead of his wife and lock the doors while his wife remained outside in subzero temperature and poorly clothed and then watch and observe as she attempted to gain entry before confronting her with the settled intention of not letting her in the house. He was clear in this regard not only by deed but also in words.

The suggestion she could go to the neighbour’s house is nonsense. This was her home. This was where she lived. She had every right to enter, but it was more than that. The manner by which Mr. Baltzer behaved was beyond sophomoric. It was mean-spirited. It’s clear from his own account that he was intent on preventing her from gaining entry to the home. Even if I were to accept his account that she took three [or] four steps and charged toward him, it was in an effort to gain entry to her home at a moment when she saw the door had opened. By his own testimony he stood firm to obstruct her path of entry, as he said he braced himself with the door. Even on his own evidence it was foreseeable the complainant would want to enter the house, and the accused stood in her way. Impeding his wife’s lawful access in these circumstances was an application of force without her consent, but having said this I reject the accused’s account to this extent. That is, that he didn’t push his wife. I accept the complainant’s account that as she tried to gain entry the accused pushed her to prevent entry. That is in accordance with the whole of the evidence that is clear from his anger with her, his decision to keep her from entering and his ultimate decision to confront her at the door after she was trying to gain entry. It is clear the accused was intent on creating a confrontation which arose when he opened the door to the garage.

I am satisfied Mr. Baltzer forced the complainant into the fence. The Crown has met its burden of proof. There will be a finding of guilt on count five. [17]

[27] On appeal, the appellant seeks an order quashing the appellant’s conviction on count no. 5 and entering an acquittal therefor or, in the alternative, ordering a new trial.

Issue

[28] The appellant raises the following four issues on this appeal:

a. Did the trial judge misapprehend the evidence and err in law in concluding that by impeding the complainant’s access to the matrimonial home, the appellant committed an assault upon the complainant?

b. Did the trial judge err in failing to consider a defence based on the principle of de minimus non curat lex?

c. Did the trial judge’s characterization of the appellant’s behaviour as “sophomoric” and “mean-spirited” manifest a predisposition or bias to decide the issue of assault based solely on his personal notions of morality?

d. Did the trial judge misapply the burden of proof or otherwise err by failing to conduct a W.(D.) analysis when assessing credibility in relation to the December 2014 incident (count no. 5)?

Standard of Review

[29] The limited powers of a summary conviction appeal court are set out in s. 822(1) of the Code, which incorporates by reference the powers of the Court of Appeal as set out in s. 686 of the Code. As such, on an appeal against conviction, a summary conviction appeal court may allow the appeal only where:

a. the verdict is unreasonable or cannot be supported by the evidence;

b. the trial judge erred on a question of law; or

c. there was a miscarriage of justice on any ground.

[30] The limited jurisdiction of a summary conviction appeal judge was described by the Ontario Court of Appeal in R. v. Smits, 2012 ONCA 524, where the Court held that:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence 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 has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[.] [18]

[31] Our Court of Appeal has said that the function of a summary conviction appeal judge is to determine whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt. [19]

[32] To the same effect is the very recent reiteration by our Court of Appeal in R. v. Polanco, 2018 ONCA 444, released May 11, 2018, where Nordheimer J.A. said on behalf of the unanimous court that:

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[.] [20]

Analysis

Did the trial judge misapprehend the evidence and err in law in concluding that by impeding the complainant’s access to the matrimonial home, the appellant committed an assault upon the complainant?

[33] The argument of the appellant on this ground is based on the comments of the trial judge that:

By his own testimony he stood firm to obstruct her path of entry, as he said he braced himself with the door. Even on his own evidence it was foreseeable the complainant would want to enter the house, and the accused stood in her way. Impeding his wife’s lawful access in the circumstances was an application of force without her consent …

[34] In my view, this ground of appeal has no merit whatsoever and can be dismissed summarily.

[35] The appellant accepts that an assault is defined as the application of force, directly or indirectly, without the other person’s consent. [21]

[36] Leaving aside the question of whether, in the circumstances of the instant case, an assault may be made out on the appellant’s alleged act of bracing himself against a door in order to impede the lawful access of the complainant to the matrimonial home in circumstances where, it seems from his account, the complainant was charging the door, the fact remains that the appellant was not convicted of the offence based on that theory of assault or those findings of fact.

[37] That is, the appellant was not convicted of assault because “he braced himself with the door” and impeded “his wife’s lawful access” to the matrimonial home.

[38] Indeed, as indicated above, having recited the appellant’s own version of events as to how the altercation at the door transpired, the trial judge went on to say in his very next breath that, “but having said this I reject the accused’s account to this extent. That is, that he didn’t push his wife. I accept the complainant’s account that as she tried to gain entry the accused pushed her to prevent entry.”

[39] It is abundantly clear that the trial judge rejected the appellant’s account of what transpired. As such, it is immaterial whether the trial judge did or did not commit an error in law in commenting on a set of alleged circumstances that he expressly rejected as having taken place. In my view, the trial judge’s comments amount to no more than an observation based on a hypothetical set of circumstances, which the trial judge expressly found did not exist. However, the appellant was not convicted based on those hypothetical circumstances.

[40] Rather, the appellant was convicted of assault because the trial judge expressly found as a fact that the appellant pushed his wife, causing her to fall back into the fence. Based on those findings of fact, there was clearly a direct application of force by the appellant without the complainant’s consent. As such, there was no error of law committed by the trial judge in finding that an assault was made out on those facts.

[41] At most, even if one assumes that the trial judge’s comments on the hypothetical set of circumstances were incorrect in law, it cannot be said that those comments were material to the reasoning of the trial judge, given that the appellant was not convicted on those set of circumstances. As such, any error that might be said to exist cannot be said to be “material rather than peripheral to the reasoning of the trial judge.” [22] Such an error “had no effect on the verdict and caused no prejudice to the accused.” [23]

[42] This ground of appeal must be dismissed.

Did the trial judge err in failing to consider a defence based on the principle of de minimus non curat lex ?

[43] The appellant argues on appeal that the trial judge erred in failing to consider the existence of a defence based on the principle of de minimus non curat lex, that is, that the law does not concern itself with trifles.

[44] The appellant argues that a person who is:

… simply standing still while another runs at them is not an application of force by the person standing still. If anything, the person running is applying the force. Such contact would fall under the de minimus defence, which ought to have been considered in this case. Contact while the complainant ran at the Appellant, or even a slight push as she ran at him, resulting in no injuries, does not necessarily in itself rise to the level of wrongful application of force. [24]

[45] Again, the appellant was not convicted of assault because he was simply standing still while the complainant ran at him. The trial judge expressly rejected that account of the appellant. Thus, it need not be determined whether the de minimis principle might apply to a certain set of circumstances that the trial judge found did not exist.

[46] That said, I take it from counsel’s submissions that she is advancing an alternative argument, that is, that even if the trial judge found that the appellant pushed the complainant – “even a slight push” (a characterization to which I will return below) – the trial judge erred by failing to consider whether the de minimis principle applies to such circumstances.

[47] I note at the outset that at trial no defence based on the de minimis principle was presented to the trial judge. The defence presented at trial was denial, not de minimis. Counsel for the accused at trial argued that the accused did not in fact push the complainant; counsel did not argue the de minimis principle at all. As I have said, the trial judge rejected the appellant’s account and expressly found that the appellant pushed the accused into the fence.

[48] Further, I would also note that counsel for the appellant on the appeal before me was the same counsel who appeared for the accused at trial before the trial judge. As such, this is not a case of appellate counsel arguing on appeal that (different) trial counsel overlooked some obvious defence at trial. Rather, this is a case of counsel arguing on appeal, after the fact of a conviction having been handed down, that the trial judge erred by not considering a defence that she did not put before him at trial.

[49] Both our Court of Appeal and the Supreme Court of Canada have repeatedly held that the general rule is that an issue not raised at trial cannot be advanced on appeal. The Ontario Court of Appeal recently explained the rationale for the rule in R. v. Shafia, 2016 ONCA 812, as follows:

Appellate courts sit in review of decisions made in trial courts. Inherent in the appellate function is a requirement that issues be raised and determined at trial before they will be considered on appeal. This makes sense. It enables the parties to put their best foot forward at trial to create the necessary record for a just determination of the issue. And it furnishes the record essential to permit meaningful appellate review of the decision made at trial. Generally, an issue not raised at trial cannot be advanced on appeal: R. v. Reid, 2016 ONCA 524 (Ont. C.A.), at paras. 37-44; R. v. R. (R.) (1994), 91 C.C.C. (3d) 193 (Ont. C.A.), at pp. 198-199. When the exceptional discretion to do so is exercised, the test is a stringent one: Guindon v. R., 2015 SCC 41, [2015] 3 S.C.R. 3 (S.C.C.), at paras. 21-22. [25]

[50] While the Supreme Court of Canada has held that appellate courts have a discretion to hear and decide new issues not raised at trial, this discretion is not to be exercised routinely or lightly but only in exceptional circumstances. An appellate court should not exercise its discretion unless convinced that doing so would cause no prejudice to the parties or that failing to do so would risk injustice. The test is a stringent one. In this regard, our Court of Appeal held in R. v. Wookey, 2016 ONCA 611 that:

As the Supreme Court recently explained in Guindon v. R., 2015 SCC 41, [2015] 3 S.C.R. 3 (S.C.C.), at paras. 20-22, while appellate courts can hear and decide new issues not raised at trial, whether or not to do so is a matter for the court’s discretion. This discretion is exceptional; it should not be exercised routinely or lightly. When determining whether to exercise its discretion, a court should take into account all of the circumstances, including the following:

• the state of the record,
• fairness to all parties,
• the importance of having the issue resolved by the court,
• its suitability for decision, and
• the broader interests of the administration of justice.

The court should not exercise its discretion unless convinced that doing so would cause no prejudice to the parties or that failing to do so would risk injustice: Guindon, at paras. 22-23; Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678 (S.C.C.), at para. 33. [26]

[51] In my view, given the general recognition of our appellate courts of the “general injunction against appellate consideration of issues not advanced at trial” [27] and the stringent test that must be met before an appellate court may exercise its exceptional discretion, it was incumbent on counsel for the appellant to address the considerations enumerated in the case law, as set out in the quoted passage above, and explain why the various considerations as to the state of the record, fairness to all parties, etc., are satisfied in the instant case. Counsel for the appellant did not do so and made no attempt to address any of these considerations. In my view, in the absence of such submissions, it would be inappropriate for this court to find that the trial judge erred by failing to consider a defence that was not put to him. The appellant has not convinced this court, and has made no effort to convince the court, that exercising its exceptional discretion in the instant case “would cause no prejudice to the parties or that failing to do so would risk injustice.”

[52] Moreover, on the record before this court, it is not clear that a de minimis defence arises on the facts of this case. The appellant argues that “a slight push …, resulting in no injuries, does not necessarily in itself rise to the level of wrongful application of force.” I disagree with counsel’s characterization of the contact.

[53] The trial judge expressly found that the appellant was angry that night [28] and that he had a “settled intention” to prohibit his wife from entering the home. [29] The trial judge expressly found as a fact that the appellant pushed his wife, causing her to fall back into the fence. While the trial did find that no injuries were sustained by the assault, [30] the push was apparently of sufficient force to cause the complainant to fall back into the fence, which, the evidence indicates, [31] was some three or three-and-a-half feet behind her. That is not a “slight push.” It was an intentional and wrongful application of force by Mr. Baltzer to his wife without her consent. That the complainant fell back into the fence but did not suffer injury was, as the Ontario Court of Appeal observed in R. v. Kubassek (2004), 188 C.C.C. (3d) 307 (Ont. C.A.) in similar circumstances, “was purely fortuitous.” [32]

[54] In Kubassek, the appellant, who held very strong beliefs against same-sex marriage, attended one morning at a church where two same-sex partners were to be married that afternoon, attempted to speak to the congregation, and when asked to stop by the minister, pushed or shoved the minister with her right hand. As a result, the minister “stumbled backwards, towards the congregation, and almost fell over a pew that was two or three feet behind him. He did not fall and he was not injured in the incident.” [33]

[55] In refusing to apply the de minimis doctrine to the facts in Kubassek, the Court of Appeal noted that while the Supreme Court of Canada had not resolved the question of whether the de minimis principle provides a defence to a criminal charge, it was not necessary to decide that question in Kubassek because, the Court held, the conduct of Ms. Kubassek was not trivial. The Court concluded that:

Against this backdrop, the push or shove that she intentionally applied to Rev. Hawkes cannot appropriately be characterized as an “irregularit[y] of very slight consequence ... a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest.” To minimize the assault by ascribing to it the designation “trifling” or “trivial” is to ignore the realities of what transpired between Ms. Kubassek and Rev. Hawkes that Sunday morning. [34]

[56] In my view, similar considerations apply to the case at bar. The assault here must be considered in the context of the couple’s somewhat turbulent relationship, Mr. Baltzer’s “settled intention” that he was not going to permit his wife to enter the matrimonial home that night, coupled with his “mean-spirited” observations of his wife attempting to gain entry to the home to no avail. Against that background, it cannot be said that pushing his wife with such force that she fell back against a fence three-and-a-half feet away in order to bar her entry into the home, which left her standing out in the cold, in bare feet, poorly clothed, and in sub-zero temperature was a mere trifle that, if continued in practice, would weigh little or nothing on the public interest.

[57] As the Ontario Court of Appeal said in R. v. Carson (2004), 185 C.C.C. (3d) 541 (Ont. C.A.), the “harm to society occasioned by domestic violence, even of a minor nature, cannot be understated.” [35] In Carson, the Court of Appeal again noted that the Supreme Court of Canada had not explicitly decided the applicability of the de minimis principle as a defence to criminal culpability, and certainly not in the context of case that involved “the use of force or domestic violence.” [36] The Court described the de minimis principle as one that “seeks to avoid the criminalization of harmless conduct by preventing the conviction of those who have not really done anything wrong.” [37] The Court held that, even where the principle does apply, the “application of the principle goes only so far as to preclude criminalization of conduct for which there is no reasoned apprehension of harm to any legitimate personal or societal interest.” [38]

[58] As I have said, assessed in context, it cannot be said that the conduct of Mr. Baltzer was “harmless” or that he is someone who has “not really done anything wrong.” In my view, quite the opposite is true. To characterize his conduct that night as a matter of “trifles” is not only wholly inappropriate, it borders on the offensive.

[59] This ground of appeal must be dismissed.

Did the trial judge’s characterization of the appellant’s behaviour as “sophomoric” and “mean-spirited” manifest a predisposition or bias to decide the issue of assault based solely on his personal notions of morality?

[60] The appellant argues on appeal that the trial judge’s comments about the appellant’s behaviour that night being “sophomoric” and “mean-spirited” show “a predisposition to decide the issue of assault based solely on his willingness to bar his drunken wife from the home.” [39] In oral argument before me, counsel argued that the comments of the trial judge indicate that he was merely applying his own notions of morality, although counsel did acknowledge that the subject-matter of the trial judge’s comments could be used contextually.

[61] For essentially the same reasons that I voiced to counsel during argument, I reject the appellant’s argument.

[62] On my reading of the trial judge’s reasons for judgment, the trial judge made the comments in question in the course of his analysis of the mental element of the offence of assault, which, of course, he was required to conduct.

[63] In my view, it is telling that, as recited above, the trial judge began his analysis of the mental element with the express finding that there “can be no doubt that Mr. Baltzer was angry that evening.” I note in passing that there was sufficient evidence before the trial judge to support that finding. [40] The trial judge observed that the evidence was clear that the appellant was troubled by his wife’s drinking and by the fact that she had not been compliant with his request that she limit her alcohol-intake that evening.

[64] The trial judge found that the appellant had the “settled intention” of not letting his wife enter the matrimonial home. “He was clear in this regard not only by deed but also in words.” [41] There was ample and express evidence before the trial judge to support that finding.

[65] Indeed, in cross-examination, the appellant expressly described the thoughts that were in his mind as the couple was driving home from the house party and approaching the matrimonial home, and he freely admitted that:

a. “I knew exactly what I was going to do,” [42]

b. “I knew exactly what was going to happen,” [43]

c. “I knew what I was going to do and I locked the doors and that was it, I was done with it. It was over.” [44]

d. “I got out, she was still in the vehicle. I got out, I walked in the house, I locked the door, I went, proceeded to lock all the doors in the house, that’s what I did.” [45]

e. “Q. And you didn’t care [what the complainant was wearing when he locked her out of the home]. A. No, I didn’t.” [46]

f. “Was I angry with what she did, sure. But was I, I was pretty calm when I got in the house. I knew exactly what I wanted to do.” [47]

g. “I’d do it again. Q. You’d lock her out of the house again? A. Yes I would.” [48]

[66] The trial judge was clearly troubled by the fact that not only did the appellant specifically intended to lock his wife out of the house in sub-zero temperatures, but he then also watched her while he was inside the house and observed her outside as she attempted to gain entry to the house. Such conduct struck the trial judge as “startling.”

[67] It was in that context that the trial judge went on to remark that, “[t]he manner by which Mr. Baltzer behaved was beyond sophomoric. It was mean-spirited.” But then, in the very next breath, the trial judge found that, “[i]t’s clear from his own account that he was intent on preventing her from gaining entry to the home.”

[68] Thus, it is very clear that the trial judge made the impugned conduct in the course of analyzing what was the intent of the accused and determining the mental element of the alleged offence. As I said to counsel during argument, the trial judge’s comments were simply passing editorializations made in the course of his analysis and ultimate finding that the appellant made plain his “settled intention” not to permit his wife’s entry into the matrimonial home. The trial judge concluded that it was clear that the appellant “was intent on creating a confrontation which arose when he opened the door to the garage.” It is clear that the trial judge concluded that the appellant intentionally pushed the complainant back from the door, consistent with and motivated by his “settled intention” that he was not going to permit his wife to enter their home that night.

[69] In my view, the trial judge’s comments informed his analysis but did not overwhelm it. Those two comments did not drive his conclusion that the accused possessed the requisite intent for assault. They do not manifest a predisposition or bias to find the appellant guilty of assault. The accused was not convicted because of the trial judge’s personal notions of morality. He was convicted because, inter alia, the trial judge was convinced beyond a reasonable doubt that the accused possessed the necessary mens rea to support a conviction for assault. In my view, there was ample evidence before the trial judge to support his conclusion.

[70] Moreover, while not necessary to support his legal conclusion, the comments of the trial judge were not unreasonable in the circumstances. As I have said, the trial judge was clearly troubled by the fact that the appellant locked his wife out of their home and then watched her from inside the house and observed as she attempted, unsuccessfully, to gain entry to their home. He found the notion that a man would do that to his wife “startling.” The trial judge’s comments were akin to saying, “who does that??” In that vein, the trial judge characterized such behaviour as “mean-spirited.” In my view, in those circumstances, the description of “mean-spirited” is not unreasonable. More than that, speaking personally, I happen to agree with the trial judge’s characterization. While the term “sophomoric” is perhaps not a word I myself would have used, that is beside the point. It was not unreasonable for the trial judge to make that observation on the facts before him. As I have said, those comments did not drive or overwhelm the analysis, but they certainly punctuate the trial judge’s assessment of the evidence and allow the reader to better appreciate the trial judge’s perspective and reasoning on the issue of the appellant’s state of mind.

[71] I therefore dismiss this ground of appeal.

Did the trial judge misapply the burden of proof or otherwise err by failing to conduct a proper W.(D.) analysis when assessing credibility in relation to the December 2014 incident (count no. 5)?

[72] The appellant argues on appeal that the trial judge “failed to conduct a W.(D.) analysis when assessing credibility in relation to the December incident.” [49] In argument before me, counsel for the appellant raised a variety of objections to the decision of the trial judge relating to, generally, his alleged misapplication of the applicable burden of proof.

[73] The first objection raised by counsel for the appellant before me was centred on the trial judge’s use of the phrase “I am satisfied.” As recited above, in finding the appellant guilty of the charge of assault on count no. 5, the trial judge concluded that:

I am satisfied Mr. Baltzer forced the complainant into the fence. The Crown has met its burden of proof. There will be a finding of guilt on count five.

[74] Counsel for the appellant argued before me that use of the phrase “I am satisfied” indicated that the trial judge used the wrong burden of proof, i.e., that the trial judge may have thought that the applicable burden of proof was something other than proof beyond a reasonable doubt.

[75] For essentially the same reasons that I voiced to counsel during argument, I reject the appellant’s argument.

[76] A trial judge’s use of the phrase “I am satisfied” says nothing about the applicable burden of proof itself. A trial judge might conclude that “I am satisfied on a balance of probabilities that …” or a trial judge might conclude that “I am satisfied beyond a reasonable doubt that …” Use of the term “I am satisfied” itself is equivocal; it says nothing about what the applicable burden of proof is. It says only that, whatever the burden of proof is, the trial judge is satisfied that the burden of proof has been satisfied.

[77] Thus, one cannot conclude merely by the trial judge’s use of the phrase “I am satisfied” that he erred in applying some burden of proof other than proof beyond a reasonable doubt, applicable to the criminal context in the instant case.

[78] There is no merit to this objection.

[79] In a similar vein, the applicant also argues that we cannot speculate that the trial judge applied the proper test in concluding that he was “satisfied.”

[80] As I read the trial judge’s reasons for judgment as a whole, I note the trial judge’s apparent writing style, and I observe that he has a practice – to his credit – of writing a two or three sentence conclusion at the end of his analysis of each count, summarizing his disposition on that count. Thus, at the end of his analysis on count no. 3, the trial judge concluded, at p. 3 of his reasons for judgment, that:

Being mindful of the Crown’s onus of proof, I’m left with a doubt in regard to the allegation. Count three is therefore marked dismissed.

[81] Similarly, at the end of his analysis on count no. 4, the trial judge concluded, at p. 8 of his reasons for judgment, that:

As a result, notwithstanding the compelling account put forward by this complainant, I am not satisfied the Crown has met its burden of proof. Count four is marked dismissed.

[82] And finally, again, at the end of his analysis on count no. 5, the trial judge concluded, at pp. 11-12 of his reasons, that:

I am satisfied Mr. Baltzer forced the complainant into the fence. The Crown has met its burden of proof. There will be a finding of guilt on count five.

[83] Leaving aside the general proposition, which has been endorsed by the Supreme Court of Canada on more than one occasion, that “it is presumed that judges know the law with which they work day in and day out,” [50] it is plain that the trial judge here was well aware that the applicable burden of proof on the Crown in a criminal case is proof beyond a reasonable doubt, and this is abundantly clear from his conclusion in respect of count no. 3, where, again, he concluded that, “[b]eing mindful of the Crown’s onus of proof, I’m left with a doubt in regard to the allegation. Count three is therefore marked dismissed.” Clearly, the trial judge knew that the onus of proof on the Crown in the criminal case before him was to establish guilt beyond a reasonable doubt, and because the trial judge was evidently left with a doubt with respect to count no. 3, he was obliged to dismiss the charge.

[84] Accordingly, there is absolutely no merit in the suggestion by the appellant that the trial judge, who, of course, deals with the criminal burden of proof beyond a reasonable doubt in his work day in and day out, and having plainly demonstrated his understanding of the burden of proof in a criminal context in respect of count no. 3 at p. 3 of his reasons for judgment, somehow “forgot” what the applicable burden of proof was five pages later when he began to deal with count no. 5.

[85] This objection must be dismissed.

[86] The appellant also argues that the trial judge failed to conduct a proper W.(D.) analysis, in that, the trial judge is alleged to have done exactly what he is forbidden to do in a credibility case, that is, to have simply preferred the evidence of the complainant. The appellant argued that this approach of the trial judge effectively ignores the burden of proof and essentially shifts the burden to the accused.

[87] I disagree with the appellant’s submissions.

[88] It is clear that the trial judge well knew that in the context of a criminal case, he was not permitted to decide the case on the basis of a “credibility contest,” that is, on the basis that he simply preferred the evidence of the complainant.

[89] The trial judge explicitly demonstrated his understanding that he was not permitted to resolve the criminal charges before him simply on the basis of whose version of the evidence he preferred. Indeed, again, in weighing the conflicting evidence before him on count no. 4 involving the striking of the complainant’s head against the night table, the trial judge noted that the complainant had told several people that she injured herself by simply falling out of bed, and he concluded that:

… it isn’t lost on me that misinformation about how an injury sustained by a victim in domestic violence is often disseminated to avoid embarrassment and further unforeseen disruption in the relationship, but to accept that was the case on these facts would be akin to simply preferring her explanation for that reason rather than finding comfort with the fact that that is what actually happened. [Emphasis added.]

[90] The trial judge having explicitly demonstrated at p. 7 of his reasons for judgment that he understood that he could not dispose of count no. 4 based on “simply preferring [the complainant’s] explanation,” I do not accept that the trial judge somehow “forgot” that prohibition one page later when he began his analysis of the charge in count no. 5.

[91] There is no merit in the appellant’s submission.

[92] Finally, the appellant argues that the trial judge failed to conduct a proper W.(D.) analysis by failing to give proper (or any) reasons for his findings on credibility.

[93] I do not accept the appellant’s submissions.

[94] The appellant relies upon the decision of the Ontario Court of Appeal in R. v. Y.M. or R. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont. C.A.), which Laskin J.A., writing for the unanimous court, described as being “another appeal in which this court must determine whether the trial judge gave adequate reasons for disbelieving an accused.” [51]

[95] However, in R. v. Y.M., the Court of Appeal observed that of the ten pages consisting of the trial judge’s reasons for conviction, “his consideration of the appellant’s evidence occupies just a single sentence: ‘It is clear as well that for me to have made these findings of fact, I reject outright Mr. [M.]’s denials.’” [52]

[96] In the result, the Court of Appeal concluded that:

This court cannot be satisfied that the trial judge properly applied either the burden of proof or the principles underlying W.(D.). Instead, his conclusory rejection of the appellant’s evidence suggests that he wrongly shifted the burden of proof to the appellant and failed to consider whether the appellant’s evidence, though not accepted, still raised a reasonable doubt about his guilt. [53]

[97] As such, the decision of the Court of Appeal in R. v. Y.M. is clearly distinguishable from the instant case. The trial judge below certainly did not dispense with the appellant’s evidence in but a one-sentence summary. Indeed, the trial judge here spent more time summarizing the appellant’s evidence than he did the evidence of the complainant. Further, and more importantly, it cannot be said that the trial judge below offered only a “conclusory rejection” of the appellant’s evidence.

[98] Rather, in the case at bar, the trial judge based his conclusion that the Crown had met its burden of proof of establishing beyond a reasonable doubt that the appellant assaulted the complainant on, inter alia, the following analysis:

a. the trial judge expressly found that the appellant was angry with the complainant that evening;

b. the trial judge expressly found that the appellant was troubled by the complainant’s drinking;

c. the trial judge expressly found that the appellant was troubled because the complainant had not been compliant with his request that she limit her alcohol-intake that evening;

d. the trial judge expressly found that the appellant ran into the house ahead of his wife and locked all the doors, while his wife remained outside in sub-zero temperature while poorly clothed;

e. the trial judge expressly found that the appellant, being inside the matrimonial home, stood and watched his wife outside while she attempted to gain entry to the home, to no avail;

f. the trial judge found such behaviour on the part of the appellant to be startling, mean-spirited, and sophomoric;

g. the trial judge expressly found that the accused confronted the complainant “with the settled intention of not letting her in the house”;

h. the trial judge expressly found that the accused made his “settled intention” clear not only by deed but also in words;

i. the trial judge expressly found that it was clear from the appellant’s own account that he was intent on preventing the complainant from gaining entry to their home that night;

j. the trial judge did not believe and expressly rejected the appellant’s account that he merely “stood firm to obstruct her path of entry” and “braced himself with the door”;

k. the trial judge believed the complainant and expressly accepted her account that as she tried to gain entry to the home, the appellant pushed her to prevent entry;

l. the trial judge expressly found that his finding that the appellant pushed the complainant in order to prevent her entry to the matrimonial home was “in accordance with the whole of the evidence that is clear from his anger with her, his decision to keep her from entering, and his ultimate decision to confront her at the door after she was trying to gain entry”; [54] and

m. the trial judge expressly found that the appellant was “intent on creating a confrontation,” which arose when he opened the door to the garage and confronted the complainant.

[99] In my view, there is little significant similarity between the decision of the trial judge in the instant case and the decision of the trial judge that was criticized and overturned by the Court of Appeal in R. v. Y.M. It simply cannot be said that the trial judge here offered merely a “conclusory rejection” of the accused’s explanation, as Court of Appeal found in R. v. Y.M.

[100] I therefore reject the appellant’s argument that the trial judge failed to give sufficient reasons for his decision or that the appellant was somehow left in the dark as to the reasons why he was convicted. There is no merit to that submission.

[101] In my view, there was ample evidence before the trial judge to support the findings that he made. It cannot be said that his findings were unreasonable or unsupported by the evidence.

Conclusion

[102] The appellant has failed to establish that the trial judge’s findings were unreasonable or unsupported by the evidence, that he erred on some question of law, or that there was otherwise a miscarriage of justice on any ground.

[103] In my view, on the evidence before him, the trial judge could reasonably have reached the conclusion that the Crown had established beyond a reasonable doubt that the appellant assaulted the complainant on December 14, 2014. There is, therefore, no basis for appellate intervention.

[104] Accordingly, the appeal must be dismissed.

“original signed and released by Howard J.”

J. Paul R. Howard Justice

Date: August 8, 2018

Footnotes

[2] Transcript of the Reasons for Judgment in R. v. Guy Baltzer, of G. Campbell J., Ontario Court of Justice, delivered July 19, 2016 [Reasons for Judgment]. [4] Applicant’s Materials, Tab 1, Applicant’s Factum, filed September 13, 2017 (“Appellant’s Factum”), at paras. 11-46. [5] Anticipatory Respondent’s Factum, filed October 6, 2017 (“Respondent’s Factum”), at para. 2. [6] Reasons for Judgment, at p. 1. [7] Ibid. [8] Ibid., at p. 3. [9] Ibid. [10] Ibid., at p. 5. [11] Ibid., at p. 6. [12] Ibid., at pp. 7-8. [13] Ibid., at p. 8. [14] Ibid., at pp. 8-9. [15] Ibid., at p. 9. [16] Ibid., at pp. 9-10. [17] Ibid., at pp. 10-12. [18] R. v. Smits, 2012 ONCA 524, 36 M.V.R. (6th) 217 (C.A.), at para. 67 [citations omitted], citing R. v. Grosse (1996), 29 O.R. (3d) 785, 107 C.C.C. (3d) 97 (C.A.), at pp. 791-792 [cited to O.R.]. [19] R. v. Grosse, at pp. 791-792, citing R. v. W. (R.), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134, at pp. 131-132 [cited to S.C.R.]. [20] R. v. Polanco, 2018 ONCA 444, at para. 20 [citations omitted], citing R. v. O’Meara, 2012 ONCA 420, 284 C.C.C. (3d) 567, at para. 36. [21] Appellant’s Factum, at para. 11. [22] R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, citing R. v. Morrissey (1995), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.), at p. 221 [cited to C.C.C.]. [23] R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823 at para. 29. [24] Appellant’s Factum, at paras. 11-12. [25] R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 169. See also R. v. Rutledge, 2017 ONCA 635, 387 C.R.R. (2d) 78, at para. 15; R. v. Zvolensky, 2017 ONCA 475, at para. 4; R. v. Wookey, 2016 ONCA 611, 363 C.R.R. (2d) 177, at paras. 56-57; R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, 338 C.C.C. (3d) 47, at para. 39; and Guindon v. R., 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 21-22. [26] R. v. Wookey, at paras. 56-57. See also R. v. Zvolensky, 2016 ONCA 947, at paras. 5-6. [27] R. v. Zvolensky, 2016 ONCA 947, at para. 5. [28] Reasons for Judgment, at p. 10. [29] Ibid. [30] Reasons for Judgment, at p. 9. [31] Transcript of the proceedings at trial, taken April 5, 2016, examination-in-chief of Mr. Guy Baltzer, at p. 52, ll. 16-17. [32] R. v. Kubassek (2004), 188 C.C.C. (3d) 307, [2004] O.J. No. 3483 (C.A.), at para. 24. [33] Ibid., at para. 4. [34] Ibid., at para. 24, quoting The Reward (1818), 165 E.R. 1482 (Eng. Adm. Ct.), at p. 1484 per Sir Walter Scott. [35] R. v. Carson (2004), 185 C.C.C. (3d) 541 (Ont. C.A.), at para. 25, leave to appeal to S.C.C. dismissed (2004), 187 C.C.C. (3d) vi. [36] Ibid., at para. 24. [37] Ibid. [38] Ibid. [39] Appellant’s Factum, at para. 18. [40] Transcript of the proceedings at trial, taken April 5, 2016, cross-examination of Mr. Guy Baltzer, at p. 96, l. 9 to p. 98, l. 30. [41] Reasons for Judgment, at p. 10. [42] Transcript of the proceedings at trial, taken April 5, 2016, examination-in-chief of Mr. Guy Baltzer, at p. 97, ll. 8-9. [43] Ibid., at p. 97, l. 15. [44] Ibid., at p. 97, ll. 21-22. [45] Ibid., at p. 97, l. 30 to p. 98, l. 2. [46] Ibid., at p. 98, ll. 9-10. [47] Ibid., at p. 98, ll. 27-30. [48] Ibid., at p. 97, ll. 2-4. [49] Appellant’s Factum, at para. 15, referencing R. v. W.(D.), [1991] 1 S.C.R. 742. [50] R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55 (9); and R. v. Burns, [1994] 1 S.C.R. 656, at p. 664. [51] R. v. Y.M. or R. v. Maharaj (2004), 71 O.R. (3d) 388, 186 C.C.C. (3d) 247 (C.A.), at p. 389 [cited to O.R.], leave to appeal to S.C.C. dismissed [2005] 1 S.C.R. xiv (note), 192 C.C.C. (3d) vi (note). [52] Ibid., at p. 390. [53] Ibid., at pp. 394-395. [54] Reasons for Judgment, at p. 11.