Court File and Parties

COURT FILE NO.: CR-18-4307-AP DATE: 20190404 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Darryl Reid Appellant

COUNSEL: Megan Cleland, for the Crown Julie Santarossa, for the Appellant

HEARD: February 14, 2019

Reasons on Summary Conviction Appeal

Pomerance J.:

[1] On April 26, 2018 Darryl Reid was convicted of assaulting his domestic partner. He appeals his conviction to this court, on grounds that the trial judge misapprehended evidence and failed to properly apply the principles in R. v. W.(D.), [1991] 1 S.C.R. 742.

The evidence

Evidence of the complainant

[2] The complainant and the appellant were in a romantic relationship. At the time of the incident, June 4, 2016, the two of them were spending the weekend on the appellant’s parents’ boat. The complainant testified that at one point, she and the appellant went for a walk, at which time he put his arm around her neck and said “if you lie to me, I’ll kill you”. The complainant testified that he then choked her, using both of his hands to grab and squeeze her neck. The complainant testified that she fell unconscious and woke up alone and on the ground. The ground was wet due to the rain.

[3] As she walked back to the boat, she saw the appellant’s father. The two of them went onto the boat. She went to the lower level and went to sleep in the bed the appellant’s daughter was sleeping in. According to the complainant, when she woke the next morning, the appellant was in the bed with her. He put his hand on her neck and said “You know I wasn’t going to kill you”. He looked at her neck, laughed and told her that she must have gotten a hickey or a bruise.

[4] The complainant testified that she went to the kitchen area of the boat, where the appellant’s mother was. The complainant testified that the appellant’s mother pointed to the bruise on her neck and said “did [the appellant] do that to you?” and “this has got to stop with him”. She went to the upper level of the boat where she ran into the appellant’s father. She testified that he asked her if the appellant had caused the mark on her neck and she nodded her head yes.

[5] Photographs of the injury, taken a few days later, were introduced as exhibits at trial.

[6] After the complainant returned home from the weekend, she sent text messages to the appellant. Some of those messages were entered into evidence at the trial.

[7] The relationship between the appellant and complainant continued. In late October 2016, the relationship ended when the complainant learned that the appellant was sexually involved with another woman during their relationship. After the breakup, the complainant went to the police where she reported the assault alleged to have occurred on June 4, 2016.

Appellant’s evidence

[8] The appellant testified at trial. He confirmed that he, the complainant and his daughter Alexis spent the weekend of June 4, 2016 on his parent’s boat. According to the appellant, while he and the complainant were on a walk, they had an argument about various issues, including what he called the complainant’s body issues. There was also discussion about prior sexual partners, and the conversation was marked by jealousy and frustration. The appellant was upset and walked away from the complainant, leaving her in the marina parking lot by herself.

[9] When the appellant returned to the boat, he told his father that he had become upset with the complainant because she was comparing him to another man. He went downstairs and fell asleep in one of the beds (not the one his daughter was sleeping in). When he awoke, the complainant was in the bed with him. They apologized to one another, and agreed to sexual activity that would include choking.

[10] The appellant’s parents and his daughter were asleep in adjacent beds separated by a curtain. The appellant testified that he and the complainant engaged in consensual “breath play”, whereby he had his hand on her neck during sexual activity. He told her that he had the power to cause her serious harm but that he would not because he loved her. Thereafter, the complainant got on top of the appellant and choked him.

[11] The following morning the appellant sensed that the complainant was upset. The complainant said that she wanted to go home. The appellant testified that he was ashamed that he had broken his promise to the complainant that he would not drink to excess.

[12] The appellant testified about the texts exchanged by him and the complainant. He testified that he was apologetic for breaking his promise about alcohol, about contributing to the complainant’s body issues, and because the complainant may not have been comfortable with the sexual choking, though he reminded her that it was consensual.

The affidavit

[13] The complainant later became involved in family law proceedings between the appellant and the mother of Alexis, over issues of custody and access. The complainant swore an affidavit alleging that the appellant faced firearms charges and had a criminal record for assault. These allegations were false. There were no charges against the appellant, and he did not have a criminal record.

The appellant’s parents

[14] The appellant’s father testified and confirmed that the accused and complainant drank a lot of alcohol that weekend on the boat. He testified that the appellant came home before the complainant, and told him that the two had had an argument. The appellant’s father went out to look for the complainant and he found her upset, but not crying. She said that she needed to use the washroom and he used the code to open the door for her, waiting until she was done. When the complainant was done, she stood at the sink to wash her hands. The washroom was well lit. The appellant’s father saw that her clothing was not wet or muddy, she was not disheveled and there was no apparent injury.

[15] The next morning the appellant’s father heard a conversation between the complainant and the appellant’s mother. The complainant pointed to the right side of her neck and said “look what Darryl did”.

[16] The appellant’s mother testified that the morning after the alleged assault, she saw that the complainant had a small mark on her neck – a small one inch mark that appeared to her to be a hickey. The appellant’s mother denied making the comments attributed to her by the complainant.

Analysis

[17] In his reasons, the trial judge correctly articulated the principles regarding the burden and standard of proof in criminal trials. He recited the test set out in the seminal case of W.(D.). However, the reasons reveal that the tests, correctly articulated, may not have been properly applied.

[18] The question to be determined was whether the injury to the complainant was caused by the non-consensual assault, described by the complainant, or consensual “breath play” described by the appellant.

[19] In finding that the injury was caused by a non-consensual assault, the trial judge rejected the appellant’s testimony. He said the following:

Your version of the events, Mr. Reid, quite simply fails the test of being logical and reasonable.

I find that you applied force to her in a manner in which she did not consent, leaving those bruises on her neck. I want you to know that I specifically reject your evidence on the point. The evidence of your parents I believe, but it does not help on the essential issues in this matter. The prosecution has proven this case beyond a reasonable doubt. Some of your evidence I do believe, but the evidence I do believe is not sufficient to contradict her evidence of the actual assault. So again, the Crown has proven the case beyond a reasonable doubt.

[20] The above passage leaves unanswered questions. Why did the appellant’s testimony “fail the test of being logical and reasonable”? The trial judge did not identify what it was about the appellant’s testimony that made it illogical and unreasonable. The trial judge stated that he believed some of the appellant’s evidence and disbelieved other portions. It was open to the trial judge to accept all, part or none of the appellant’s testimony. However, he did not specify what he believed and what he disbelieved and how this impacted on the verdict.

[21] Nor did the trial judge explain why the testimony of the appellant’s parents, which contradicted the testimony of the complainant and supported that of the appellant, was of no help “on the essential issues”. The appellant’s parents contradicted the complainant’s testimony as it related to statements about the alleged assault. The appellant’s parents did not testify about the assault itself, but their testimony was of circumstantial relevance to the allegations, and the credibility of the witnesses.

[22] Finally, and perhaps, most critically, the trial judge did not explain why, even if he rejected the appellant’s testimony, that testimony did not raise a reasonable doubt. In this regard, the reasons failed to honour one of the steps in W.(D.) critical to recognition of the burden and standard of proof of the Crown.

[23] With respect to the testimony of the complainant, the trial judge stated the following:

She remembers some things that are contradicted. She remembers speaking to Mrs. Reid Senior and that Mrs. Reid said “Did he do that to you?” Mrs. Reid says she never saw a mark on Gallant’s neck that caused any concern, nor did she ask that question. She remembers Mrs. Reid saying something like “It’s a problem when he drinks.” Mrs. Reid has no memory of that. Obviously, the defence will argue that this is a total fabrication by Ms. Gallant. But at the same time I have to ask, why would she fabricate that piece of evidence knowing that Mr. Reid’s mother would contradict it if it was not true? Why would she make a lie that would have a witness who would no doubt come to court to contradict that? There is many things you can lie about in which you cannot be challenged.

[24] The above passage raises various issues. First, the trial judge asked why the complainant would lie about something that could be easily contradicted by the appellant’s mother. To ask why the complainant would lie is to effectively reverse the onus of proof. The accused is under no obligation to explain why a Crown witness would lie. Witnesses may lie for any number of complex and hidden reasons. The fact that there is no apparent motive to lie does not mean that the witness is telling the truth.

[25] Furthermore, the above passage is inconsistent with other portions of the reasons. The trial judge said that he believed the testimony of the accused’s parents. He also said the following:

And I really believe that if Mr. Reid or Mrs. Reid saw her in extreme distress, I think they are good people and they would have done something about it. I think they knew that something was amiss, but it did not cause them to get involved.

[26] The trial judge believed the evidence that contradicted the complainant’s account of the discussion with the appellant’s mother. He asked, rhetorically, why the complainant would lie, yet he implicitly found that her evidence on this point was not the truth.

[27] Finally, the trial judge recognized, in another passage of the reasons, that the complainant did have reason to lie. The trial judge found that the complainant had an animus toward the appellant. The complainant had offered several lies about the appellant and that she was “out to get” him. As he put it:

Did Ms. Gallant tell the truth about everything? Did she tell the truth about all her contact with you after this incident? No. She obviously is out to get you. She lied about you having a record. She went to the Children’s Aid Society to make your life as miserable as it can be. She lied about you having guns. But that is all post-conduct. She lied to you thinking that she could do that as a victim, but that does not change my finding that she truly was a victim.

[28] The trial judge did not explain how, in the face of these deliberate lies, he could nonetheless believe the complainant’s testimony and find that it proved the offence beyond a reasonable doubt. The trial judge said that the lies were all “post-conduct”. It is not clear what was meant by that. I would observe that the complaint of the assault was also “post-conduct”. If, as the trial judge found, the complainant was “out to get” the appellant, and lied about issues affecting the appellant’s custody battle, there was reason to be cautious about accepting the complainant’s testimony about the assault. The need for caution was enhanced by the fact that the complainant’s testimony was contradicted by the appellant’s parents. The trial judge did not instruct himself on the need for caution. Nor did he explain how the complainant’s motive to fabricate could be reconciled with a finding that the assault was proved beyond a reasonable doubt.

[29] It is not for an appellate court to retry the case. It was for the trial judge to make findings of fact and credibility. I adopt and apply the reasoning of Durno J. in R. v. Salerno, [2000] O.J. No. 3511 (S.C.), at para. 7:

Before examining those areas, the function and scope of a judge sitting on summary conviction appeals must be kept in mind. I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. I can examine the transcript and determine if there was evidence upon which the trial findings could reasonably have been made. I cannot substitute my own findings of fact when there was a basis for those reached by the trial judge. The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made I cannot interfere.

[Citation omitted.]

[30] However, reasons for judgment may be reviewed on the basis that findings of fact and credibility are not adequately articulated or explained. In this case, the gaps in articulation suggest that the test in W.(D.) was not correctly applied. By failing to explain why the appellant’s evidence did not raise a reasonable doubt, the reasons leave open the possibility that the trial judge did not consider that issue. In failing to reconcile the complainant’s demonstrable lies with the finding of guilt, the reasons leave open the possibility that the burden of proof was not strictly applied. There is a possibility that the trial judge simply compared the evidence of the complainant to that of the appellant and decided which account he preferred. That is the very mischief that W.(D.) was designed to prevent.

Conclusion

[31] The nature of the errors are not such as to warrant an acquittal. This is not a case in which the verdict was unreasonable. It is one in which the verdict cannot be sustained on the reasons given by the trial judge. The appropriate remedy is therefore a new trial.

[32] For all of these reasons, the appeal is allowed, the conviction set aside, and a new trial ordered. Depending on the findings at a new trial, it may be necessary for the court to consider whether consent to “breath play” during sexual activity is a valid defence, given the restrictions relating to infliction of bodily harm: see R. v. Zhao, 2013 ONCA 293, 297 C.C.C. (3d) 533.

Original signed by “Pomerance J.” Renee M. Pomerance Madam Justice Released: April 4, 2019