DATE: 20010704 DOCKET: C35435

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CATZMAN and CHARRON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Alexander Hrybinsky, for the appellant

Appellant

• and -

RICHARD MYERSCOUGH

No one appearing for the respondent

Respondent

Heard: June 18, 2001

On appeal from the acquittal directed by Justice John F. Hamilton, sitting as a summary conviction appeal court judge, dated October 4, 2000.

CATZMAN J.A.:

The appeal

[1] Following an altercation on a Toronto street, Richard Myerscough (“the respondent”) and a co-accused were convicted of three counts of assault. The respondent appealed his convictions to the summary conviction appeal court, which allowed his appeal and directed acquittals on all three counts. The Crown now seeks leave to appeal and, if leave be granted, appeals against that decision.

[2] The respondent was represented by counsel in both courts below. He was served personally with the Crown’s notice of appeal to this court. When the appeal to this court was called for hearing two months ago, the respondent was not present. The court adjourned the hearing and directed the Crown to make its best efforts to serve him with notice of the adjourned hearing date. When the appeal came on before us, we were satisfied, from the affidavit of the investigating officer, that such efforts had been made and that the respondent had notice of the date on which the appeal would be argued. Accordingly, we permitted Crown counsel to argue the appeal in the absence of the respondent or of anyone on his behalf.

The reasons of the trial judge

[3] In oral reasons for judgment delivered at the end of the trial, the trial judge recited the charges, the Crown’s election to proceed summarily, the pleas of not guilty and an order made for the exclusion of witnesses. He then proceeded to make findings of credibility, following “the guidance to this court by the Ontario Court of Appeal in Richards”. [^1] He found that the Crown witnesses (the three complainants and another member of their party) were credible witnesses, and found that the respondent and his co-accused were not credible witnesses. He then set out the facts, as he found them, on which his decision was based. He found that, on the evening before the events in question, the respondent and his co-accused had been celebrating the respondent’s birthday at a friend’s house, where a quantity of alcohol was consumed. In the early hours of the morning, the respondent, his co-accused and an acquaintance of the respondent named John left the friend’s house and proceeded to walk toward a nearby intersection. As they were walking, the three complainants and two of their friends parked their car and walked toward the same intersection. The trial judge continued:

Without any further ado, the three gentlemen, Mr. Kalimeris [the co-accused], Mr. Myerscough [the respondent] and John then attacked the party of two men and three ladies. They did so as a group, and did so by exchanging places, so that on each occasion where blows or kicks were struck, they were struck by all three parties. The result was that there were assaults made on [all three complainants].

[4] He then expressed himself to be satisfied beyond a reasonable doubt of the guilt of the respondent and his co-accused on each count, and entered convictions against them on all three counts.

The reasons of the summary conviction appeal court

[5] The summary conviction appeal court judge (“the appeal judge”) allowed the respondent’s appeal and directed acquittals on all three counts against him. It will be convenient to consider the appeal judge’s reasons for judgment by reference to the four grounds of appeal advanced on behalf of the Crown in the argument before us.

[6] In the Crown’s submission, the appeal judge erred in four respects:

(a) he wrongly reversed the trial judge for failing to give reasons for his findings of credibility;

(b) he wrongly substituted his own appraisal of the respondent’s credibility;

(c) he wrongly found that the trial judge did not correctly apply the concept of reasonable doubt; and

(d) he wrongly concluded that the trial judge had erroneously based his decision on “common intent”.

The first ground: failure to give reasons for credibility findings

[7] The appeal judge was critical of the manner in which the trial judge dealt with credibility in what he characterized as the trial judge’s “very terse judgment”. The appeal judge said:

I think he misapprehended the evidence because in giving reasons, he gave no reasons why he accepted one’s credibility over the other and he need not, but I would think in a trial that went on for three days, there is some [sic] to deal with at least Myerscough’s evidence ... He basically said I do not believe him. I find the victims credible.

The trial judge says I do not believe him. I think the trial judge would owe more to [the respondent] than to say I just don’t believe him. He should set out why he does not believe him in the circumstances.

I am well aware the trial judge need not set out all the reasons and he is presumed to know but I think in the circumstances of this case that there was an error as I have so stated.

[8] The reasons of the trial judge were admittedly brief, and it may have been desirable for him to go into greater detail to indicate why he believed the victims and disbelieved the respondent and his co-accused. In fairness, however, it should be noted that the trial judge did more than simply make findings of credibility and move directly to findings of guilt. Between those findings, he specifically set out the facts on which his decision was based. Those facts were consistent with and supported by the evidence of the Crown’s witnesses and inconsistent with the evidence of the respondent and his co-accused. The trial judge’s failure to give detailed reasons for his findings of credibility did not, in the circumstances of this case, constitute legal error.

[9] Trial judges do not err merely because they do not give reasons for deciding one way or the other on problematic points: R. v. Burns (1994), 1994 CanLII 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.) at 199-200; R. v. Barrett (1995), 1995 CanLII 129 (SCC), 96 C.C.C. (3d) 319 (S.C.C.) at 320. This proposition does not, of course, insulate trial judges from giving reasons in all cases. As Major J. said in R. v. R.(D.) (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 at 308:

McLachlin J. clearly set out the law regarding the requirement of trial judges to give reasons in Burns. However, it should be remembered that Burns dealt with a situation where the Court of Appeal agreed the trial judge had evidence before him to support the conclusion he reached, but overturned the verdict due to lack of reasons. The above-quoted passage does not stand for the proposition that trial judges are never required to give reasons. Nor does it mean that they are always required to give reasons. Depending on the circumstances of a particular case, it may be desirable that trial judges explain their conclusions. Where the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly reveals the trial judge’s reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere. Equally, in cases such as this, where there is confused and contradictory evidence, the trial judge should give reasons for his or her conclusions. The trial judge in this case did not do so. She failed to address the troublesome evidence, and she failed to identify the basis on which she convicted D.R. and H.R. of assault. This is an error of law necessitating a new trial.

[10] In the present case, the Crown witnesses testified to a sudden and unexpected assault by the accused and his co-accused, whereas the respondent and his co-accused testified to acting in self-defence in response to unprovoked blows inflicted by the complainants. The Crown and defence evidence was “contradictory” in the sense that they told dramatically different stories but their witnesses’ testimony was not internally inconsistent, and there was no uncertainty as to “the basis on which [the trial judge] convicted”. The evidence was not “confused” or “troublesome” (R. v. R.(D.), quoted above) or “bizarre” (R. v. R.(D.), at 307), so as to necessitate the kind of explanation to which the foregoing quote refers.

[11] I agree with the Crown that the appeal judge wrongly found that the trial judge had committed an error of law in failing to give reasons for his findings of credibility.

The second ground: substituting his own appraisal of the respondent’s credibility

[12] The summary conviction appeal was argued on the basis of the transcript of the proceedings before the trial judge. After expressing criticism of the trial judge’s findings of credibility, the appeal judge continued:

I read Myerscough’s evidence … There is no reason to disbelieve him in the circumstances.

I do not find on the facts of this particular case that there was any evidence to directly associate what the [respondent] was doing aside from what the [respondent] testifies on his own behalf which I do not find unreasonable in the circumstances ...

[13] It was not open to the appeal judge to reverse the trial judge’s finding against the credibility of the respondent in this manner. As this court said in R. v. G.W. (1996), 1996 CanLII 427 (ON CA), 93 O.A.C. 1 at 5:

The reviewing court should show “great deference” to the trial judge’s findings of credibility. It is, however, open to the appeal judge to conclude that a verdict based on credibility findings is unreasonable if the appeal judge takes into account the fact that the trial judge had the advantage of seeing and hearing the witnesses give evidence. However, where the verdict essentially turns on credibility findings, the appeal judge’s power to interfere should be exercised sparingly. ... The appeal judge must not try the case de novo or simply substitute her views for those of the trial judge.

[14] I agree with the Crown that the appeal judge wrongly substituted his own appraisal of the respondent’s credibility.

[15] On the subject of reasonable doubt, the appeal judge said:

I find that the trial judge has not correctly applied the doctrine of reasonable doubt and really set it out as a credibility contest between the two and that is not what it is supposed to be. There is always a third alternative without accepting the evidence of the accused.

[16] The proposition that there is “a third alternative without accepting the evidence of the accused” is indisputable: R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397. But nothing in the reasons of the trial judge suggests that he misunderstood or misapplied that proposition. Indeed, the reference in his reasons to this court’s decision in R. v. Richards [^2] suggests the contrary. Richards was an appeal from the same trial judge as in the present case. The reasons of Rosenberg J.A., who delivered the decision of the court in Richards, contain a separate section relating to “The Trial Judge’s Assessment of Credibility” and quote, in full, the well-known passage of Cory J. relating to the application of the burden of proof to questions of credibility: R. v. W.(D.) at 409. In these circumstances, the failure of the trial judge in the present case to recite that form of words cannot be equated with a failure to understand and apply the principle of reasonable doubt.

[17] I agree with the Crown that the appeal judge wrongly found that the trial judge had failed to properly apply the concept of reasonable doubt.

The fourth ground: common intent

[18] The appeal judge said in his reasons:

Myerscough was convicted on basically a group activity and the issue is that the trial judge made an error in that because there is no common intention because if there is to be common intent on a group assault that common intent must be different from defence charge that is the assault.

[19] The expression “common intent” in this passage appears to refer to s. 21(2) of the Criminal Code, which extends the liability of the parties to an offence beyond the wrongful act originally intended in cases involving “an intention in common to carry out an unlawful purpose”. However, in the trial judge’s reasons for judgment, he never used the phrase “common intent” or “intention in common”, nor did he express the basis of the respondent’s conviction by reference to s. 21(2). There was a more direct basis on which to convict the respondent. The evidence was that the assault on the three complainants arose suddenly and without warning. There was no suggestion of a common intention shared by their assailants. On the evidence called by the Crown at trial, the respondent, his co-accused and the unidentified third man all participated in the attack and all of them were liable to conviction as principals. There was no need for the trial judge to resort to a theory of extended liability under s. 21(2) nor, in my view, did he do so.

[20] I agree with the Crown that the appeal judge wrongly concluded that the decision of the trial judge was based on “common intent”.

[21] I agree with all four grounds of appeal advanced on behalf of the Crown. In essence, the appeal judge rejected the trial judge’s findings of credibility and substituted his own and, having done so, proceeded to retry the case. It was not open to him to do so: R. v. G.W. (1996), 1996 CanLII 427 (ON CA), 93 O.A.C. 1 (C.A.); R. v. C.P., [2001] O.J. No. 342 (C.A.). A review of the trial record indicates that there was ample evidence, which the trial judge accepted, to support the respondent’s convictions.

[22] Accordingly, I would grant leave to appeal, allow the appeal, set aside the order of the appeal court and restore the respondent’s convictions at trial.

Released: JUL 04 2001 RRM

Signed: “M.A. Catzman J.A.”

“I agree R. Roy McMurtry C.J.O.”

“I agree Louise Charron J.A.”

[^1]: R. v. Richards (1999), 1999 CanLII 1602 (ON CA), 26 C.R. (5th) 286

[^2]: For citation, see footnote 1