R. v. Horvatich, 2008 ONCA 296

CITATION: R. v. Horvatich, 2008 ONCA 296

DATE: 20080421

DOCKET: C47073

COURT OF APPEAL FOR ONTARIO

LASKIN, GILLESE JJ.A. and WHALEN J. (ad hoc)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

PAUL HORVATICH

Appellant

COUNSEL:

Donald J.C. Elliot, Q.C. for the appellant

Deborah Calderwood for the respondent

HEARD: April 11, 2008

On appeal from the convictions entered and sentence imposed on April 10, 2007, by Justice R.G.E. Hunter of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was tried on 8 counts of domestic acts of violence. After a short trial, he was found guilty of 4 charges: 2 counts of choking and two counts of assault. The remaining charges appear to have been dismissed on the basis of a Crown concession that the charges had not been made out.

[2] In the course of the trial, the complainant – the now estranged wife of the appellant – testified about events that occurred on five different days, including the events on the evening of August 3, 2006. In addition, the Crown called one of the complainant’s friends who testified about a distress call she received on August 3, 2006, from the complainant and what she observed when she, along with her husband, went to the complainant’s home that night. In addition, the Crown called a police officer who testified about the complainant’s condition on that same night.

[3] The appellant was the only witness called for the defence. He denied that the violent acts took place.

[4] The appellant raised three main grounds of appeal. The first is that the trial judge failed to properly weigh the evidence, having done so globally rather than on each separate count. In approaching the evidence this way, the appellant submits that the trial judge misapprehended the evidence. The second is that the trial judge failed to properly apply the W(D) principles. Specifically, he argued that the trial judge failed to properly assess the appellant’s credibility. Third, the appellant submits that the trial judge’s reasons were deficient.

[5] We do not agree. While the trial judge’s reasons might have been fuller, it is clear that he was alive to the enquiries that must be made pursuant to W.(D.) and that the W.(D.) principles informed his reasoning. He disbelieved the appellant’s evidence, in part because he found that the appellant made “little digs” about the complainant which were intended to cast her in a “rather unappealing light”. While one or two of the examples given by the trial judge are dubious, it was open to the trial judge as the trier of fact to make that determination. It does not amount to a misapprehension of the evidence to make an adverse determination in respect of the appellant’s credibility. After explaining why he disbelieved the appellant, the trial judge expressly found that it did not raise a reasonable doubt.

[6] The trial judge did not treat the case as if it were a credibility contest. He accepted the evidence of the complainant and gave reasons for finding her to be credible. Further, he considered not only her evidence but the evidence in total which included the corroborating evidence received from the other Crown witnesses in respect of one of the counts.

[7] Accordingly, we find the reasons to be adequate as they are sufficient to explain why the appellant was convicted.

[8] The appeal is therefore dismissed.

“John I. Laskin J.A.”

“E.E. Gillese J.A.”

“W.L. Whalen J.”