Court File and Parties

CITATION: R. v. Boomhour, 2007 ONCA 716

DATE: 20071019

DOCKET: C44596

COURT OF APPEAL FOR ONTARIO

DOHERTY, BLAIR JJ.A. and THEN J. (ad hoc)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ROBERT BOOMHOUR

Appellant

Counsel: Mark J. Sandler and Ngai On Young for the appellant Shelley Maria Hallett for the respondent

Heard and orally released: October 16, 2007

On appeal from the judgment entered by Justice H.R. McLean of the Superior Court of Justice dated November 16, 2005.

ENDORSEMENT

[1] The reasons of the summary conviction appeal court judge are reflective of the oral argument put to him both in terms of the order in which he addressed the issues and the time spent on the issues. In his reasons, the summary conviction appeal court judge indicated that the trial judge had conducted a careful review of the evidence as a whole. He also indicated that the trial judge had given thorough reasons in support of his findings and that he had addressed the competing credibility issues and applied the proper standard of proof. Furthermore, the summary conviction appeal court judge indicated that he could find no “manifest error of fact”.

[2] In our view, these comments reflect a considered rejection of the appellant’s arguments that the trial judge made material misapprehensions of the evidence and that the trial judge failed to properly assess the competing credibility claims. In our view, on a reading of the summary conviction appeal court judge’s reasons, an appellant would know why his appeal was unsuccessful.

[3] Nor do the reasons of the summary conviction appeal court judge prevent effective appellate review in this court. Mr. Sandler has raised the same arguments as were raised in the appeal court below. We have addressed those arguments on their merits. The merits are determined by reference to the trial record.

[4] The first argument advanced by Mr. Sandler arises out of the complainant’s testimony concerning what she had told her doctor the day after the alleged assault. Counsel contends that the conversation summarized in the doctor’s notes is inconsistent with the complainant’s evidence.

[5] In her evidence, the complainant said that she did not tell the doctor that she had been injured by the appellant. The appellant does not suggest that she did. Counsel argues, however, that the doctor’s notes indicate that the complainant told the doctor that she had been injured when she was feeding the farm animals. The appellant had testified that this is what the complainant told him.

[6] The notes are cryptic and, in our view, do not reveal any inconsistency with the complainant’s trial evidence. They are, at best, ambiguous. If counsel saw the notes as revealing a potentially significant inconsistency, it was incumbent on counsel to explore that potential inconsistency and develop it so that its significance to the question of the complainant’s credibility could be made clear.

[7] The second complaint arises out of the trial judge’s indication that there was no evidence that the complainant had any propensity to act violently towards others. It was open to the trial judge to find that evidence of a single incident involving the appellant’s former wife and the complainant did not provide any evidence of a propensity to act violently towards others. One event is not necessarily evidence of any propensity to act in a certain way.

[8] The only other source of evidence that could potentially demonstrate the complainant’s propensity to act violently towards others came from the appellant. The trial judge rejected the appellant’s evidence for reasons set out in the trial judge’s extensive analysis of the appellant’s credibility.

[9] We also reject the third argument advanced on appeal. Counsel contended that it was not open to the trial judge to find that the appellant’s evidence, and in particular his allegation that the complainant had a propensity for violence, revealed an animosity which adversely affected the appellant’s credibility.

[10] It is open to a trier of fact, who has the benefit of seeing the witnesses, to conclude that the manner in which a particular witness testifies reveals an intense animosity towards the other side which in the circumstances undermines the credibility of that witness.

[11] The next argument relates to the photographs and audiotape relied on by the Crown. The evidence of the photographs and the audiotape were properly viewed by the trial judge as confirmatory of the complainant’s evidence concerning the assault and the threat. The photographs and audiotape were confirmatory in that they made the complainant’s story more credible than it would have been but for the existence of that evidence. The fact that the photographs and audiotape were not necessarily inconsistent with the appellant’s version of events did not cause them to lose their ability to serve as evidence confirming the credibility of the complainant’s testimony.

[12] The final argument canvassed by counsel rests on the contention that the trial judge subjected the appellant’s testimony to a higher level of scrutiny than the complainant’s testimony. We must reject that submission. This was a difficult case from a credibility point of view. There were difficulties with the evidence of both the complainant and the appellant. We are satisfied that the trial judge’s reasons demonstrate a thorough review of the relevant considerations. The reasons he gave for ultimately finding that the complainant was credible and the appellant was incredible all properly arise from the evidence.

[13] The appellant also seeks leave to appeal sentence. Mr. Sandler did not make any oral submissions in support of that application in part because of time constraints. We see no basis upon which leave to appeal the sentence should be granted. The fitness of the sentence has already been reviewed by one appellate court and indeed reduced by that court.

[14] We grant leave to appeal from the decision affirming the conviction, but dismiss the appeal and we refuse leave to appeal from the sentence imposed in the summary conviction appeal court.

Doherty J.A.

R.A. Blair J.A.

Edward Then J. (ad hoc)