DATE: 2005-08-25

DOCKET: C41744

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MARINA TZARFIN (Appellant)

BEFORE:

McMURTRY C.J.O., BLAIR J.A., and KOZAK J. (ad hoc)

COUNSEL:

Marina Tzarfin in person

Joseph Wilkinson duty counsel

Elise Nakelsky for the respondent

HEARD:

August 22, 2005

On appeal from the dismissal by Justice Bruce Hawkins, of the Superior Court of Justice, of a summary conviction appeal from a conviction by Justice J. Ritchie, of the Ontario Court of Justice.

E N D O R S E M E N T

[1] Ms. Tzarfin was convicted, in the Ontario Court of Justice, of assaulting Mr. Radin Edouard. She was given a conditional discharge with twelve months probation. Her appeal to the summary conviction appeal court was dismissed.

[2] Ms. Tzarfin and Mr. Edouard had been romantically involved for about a year prior to the incident but Mr. Edouard had attempted on several occasions to end the relationship. He says Ms. Tzarfin became obsessive. On the day of the incident in question – which is relatively minor, on any interpretation of it – the two met accidentally on the street near Mr. Edouard’s residence. Ms. Tzarfin needed to use his washroom. What happened next is in dispute, and only Mr. Edouard and Ms. Tzarfin gave evidence to explain it.

[3] Mr. Edouard says that he told the appellant to leave him alone but that she followed him to his home, pushed into the house and locked herself in the bathroom. He had to enlist the aid of his landlord and landlady to get her out. When she finally emerged from the washroom, upon threat that the police would be called, she accused Mr. Edouard of transmitting a communicable disease to her and slapped him on the face. That was the assault. She then left the apartment. He reported the incident to the police.

[4] Ms. Tzarfin testified that she had a painful infection at the time, that she and Mr. Edouard had a civil discussion about their relationship on the street, and that she went into his house to use the facilities because of her infection. When she was in the bathroom she heard someone banging on the door, and when she came out the landlady was swearing at her and insulting her, so she left the apartment. She denied slapping or stalking Mr. Edouard, although she did acknowledge that she told him he had caused her infection.

[5] The trial judge accepted Mr. Edouard’s version of the events and rejected Ms. Tzarfin’s. She was convicted. For the reasons that follow, the appeal to this court is dismissed.

[6] Although Ms. Tzarfin quarrels vigorously with the findings of fact made by the trial judge, through the able assistance of duty counsel, she raises essentially one question of law for determination – the adequacy of the trial judge’s reasons, and the failure of the summary conviction appeal judge to deal properly with that issue: see Regina v. Sheppard (2001), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.). The case turned completely on credibility. Who was to be believed, and did the appellant’s version or the evidence as a whole raise a reasonable doubt? Ms. Tzarfin argues that the trial judge failed to analyse the evidence and to explain why he rejected her testimony.

[7] We do not accept this argument.

[8] While the trial judge’s reasons could have been more fulsome, it is not every case of brief reasons that will amount to reversible error. As this court stated in R. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont. C.A.) at para. 23 (relying on the reasons of Binnie J. in Sheppard):

Sheppard warns against conclusory reasons, that is, conclusions without explanations for them. However, as desirable as it is to give reasoned reasons, a failure to do so does not automatically amount to reversible error. In Sheppard, Binnie J. explained that inadequate reasons do not confer “a free-standing right of appeal” or “entitlement to appellate intervention” (para. 53). Instead, he adopted a functional approach. The adequacy of the judge’s reasons must be assessed against the rationales for giving them. In some cases inadequate reasons do not preclude meaningful appellate review or prevent an accused from knowing why he or she was convicted. For instance, the accused’s evidence may be obviously incredible, or the prosecution’s evidence may be overwhelming and unchallenged, and thus the basis of the conviction may be clear form the record.

[9] While we agree with the lucid and compelling analysis of Laskin J.A. in Maharaj, at paras. 20-29, regarding the Sheppard principles, appellate courts must not place an impossible burden on busy trial courts. An accused is entitled to adequate reasons, not perfect reasons.

[10] Here, the trial judge’s reasons, read as a whole, demonstrate – as the summary conviction appeal judge noted – that he had a firm grasp of the evidence, that he recognized the central issue in the case was credibility (an excruciatingly difficult issue to determine at times, and one which our system wisely leaves to trial judges), and that he was alert to the conflicting versions of what had happened. In arriving at his finding of guilt, the trial judge took into account not only his view of the demeanour of the witnesses, but also the inconsistencies in the evidence and the submissions of counsel regarding the credibility issues. He correctly applied the burden of proof and the three-pronged test in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), and clearly based his decision on the totality of the evidence, as required. In our view, the reasons given – although somewhat sparse – are adequate, in the circumstances of this case, to meet the functionality test set out in Sheppard.

[11] The trial judge did explain his reasons for accepting the testimony of Mr. Edouard, but contented himself with saying only that he “completely disbelieve[d] Ms. Tzarfin.” Viewing his reasons as a whole, however, we do not regard this as a case where the trial judge reversed the onus of proof and engaged in the prohibited reasoning process of saying that he disbelieved the accused because the accused’s evidence differed from that of the complainant and he believed the complainant: see R. v. Maharaj at para. 30. The trial judge did not accept the testimony of Ms. Tzarfin for a number of reasons, as outlined above.

[12] Nor is this a case like the decision of this court in R. v. Dore, [2004] O.J. No. 4009 (C.A.), relied upon by the appellant, where the trial judge’s reasons demonstrated an approach that ignored the burden of proof. Here, it is clear from the reasons of the trial judge that he was at all times aware that “the burden rests solely on the Crown”, and that he applied that standard.

[13] Accordingly, for the foregoing reasons, the appeal is dismissed.

“R. McMurtry C.J.O.”

“R.A. Blair J.A.”

“L.C. Kozak J.”