CITATION: R. v. Wadforth, 2009 ONCA 716
DATE: 20091013
DOCKET: C47354 and C47379
COURT OF APPEAL FOR ONTARIO
Rosenberg, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Applicant/ Appellant (Respondent on conviction appeal)
and
Darren Wadforth
Respondent (Appellant on conviction appeal)
James V. Palangio, for the appellant Crown on the sentence appeal, (respondent on the conviction appeal)
Nels Stanfield, for the respondent Darren Wadforth on the sentence appeal, (appellant on conviction appeal)
Heard: March 19, 2009
On appeal from a conviction of aggravated assault entered on April 5, 2007, by Justice G. Gordon Sedgwick of the Superior Court of Justice at Picton, Ontario, and on appeal by the Crown from the sentence imposed by Justice Sedgwick on June 11, 2007.
Watt J.A.:
[1] Proof of criminal responsibility for bruises and broken bones inflicted upon a one-month-old baby is often a difficult task. Some components of the proof, like the nature of the injuries caused, are often uncontroversial, while others, like the identity of the person responsible, spark vigorous dispute and involve conflicting evidence.
[2] The controversy here settled on the identity of the victim’s assailant. The prosecutor claimed that it was the appellant, the baby’s father. The appellant denied responsibility and pointed to the victim’s mother, a prosecution witness, as the person responsible.
[3] The trial judge concluded that the appellant caused the victim’s injuries, thus that he was guilty of the offence charged, aggravated assault. The appellant says that the trial judge’s reasons are fatally flawed in several respects, requiring at least a new trial, if not a verdict of acquittal. The Crown contends that the conviction is uncontaminated by legal error, but that the sentence imposed, a conditional sentence of 18 months, constitutes an error in principle and should be replaced by a sentence of actual imprisonment.
[4] For the reasons that follow, I would allow the appeal from conviction, quash the conviction and order a new trial. In the circumstances, I do not reach the Crown appeal from sentence.
THE FACTS
An Overview
[5] The indictment, amended at the beginning of trial, alleged that the offence occurred between June 13, 2005, the date of the victim’s birth, and July 11, 2005, the date on which the victim was referred to a pediatric specialist for investigation of suspicious and unexplained bruising to her legs.
[6] The prosecution’s case against the appellant included several components:
i. expert evidence about the victim’s injuries, including the nature of the force used to cause them and the time period within which they were likely inflicted;
ii. evidence of the appellant’s opportunity to cause the victim’s injuries;
iii. evidence of alleged remarks made by the appellant to his common law spouse (the victim’s mother) and another witness (the mother’s step-sister) alleged to amount to admissions of responsibility for having caused the victim’s injuries; and
iv. evidence of a post-arrest police interview of the appellant recorded on video with accompanying audio on July 22, 2005, said to contain admissions of criminal responsibility.
[7] The prosecution’s case was that on June 27 and July 11, 2005, days immediately following periods during which the appellant had the exclusive or near-exclusive opportunity to cause injury to the victim, others observed bruises on the child’s body in areas later associated with some but not all her fractures.
[8] The appellant’s response to the prosecution’s case was a denial of responsibility for the injuries suffered by the victim. The appellant testified on his own behalf. His denial included a disavowal of any admissions of responsibility to his common law partner and her step-sister, and an explanation of what he said during his police interview.
The Principals and Their Relationship
[9] The appellant and K.O. began living together in February, 2004, when K.O. was pregnant with her first child. When the baby was born, K.O., who was then sixteen, was uncertain about the infant’s paternity. Subsequent DNA testing established that the father was not the appellant.
[10] The appellant and K.O. shared child care responsibilities for K.O.’s first child. The child’s biological father had regular access. The baby was healthy and the access arrangements created no difficulty. The appellant provided financial support for the household and its occupants from his job at a local meat processing plant.
[11] Later in 2004, K.O. discovered that she was pregnant again. The appellant and K.O. considered giving up the second child for adoption and had several discussions with adoption agencies and prospective adoptive parents to explore this prospect. In the end, however, about one month before the victim was born on June 13, 2005, the appellant and K.O. decided to keep the new baby. K.O. was seventeen years old when her second child was born.
[12] K.O. returned to work at a local restaurant about two weeks after the baby was born. She returned because she liked the work, not because she felt she needed a break from her childcare responsibilities, which now included two children, a newborn and another, 13 months old. The couple followed the same child care routine with both children. The appellant was responsible for some feedings, as well as preparation of the evening meal and the baby’s formula.
[13] K.O. struck the appellant twice during the time they lived together, once hitting him with a baseball bat. The appellant never hit K.O.
The First Bruises: June 26-28, 2005
[14] Early in the evening of June 26, 2005, K.O. went out with her cousin, J.G., leaving the appellant to care for both children. K.O. couldn’t recall whether she fed and changed the victim at 6:00 p.m. or 10:00 p.m. that day, although she was home in time for the later feeding. Nor could K.O. recall who did the next change and feeding at 2:00 a.m. on June 27, 2005.
[15] When changing and feeding the victim at 6:00 o’clock the following morning, K.O. noticed bruises on the baby’s shins and ankles. She had no idea how or when the bruises were caused or first appeared. When the appellant had checked on both children and K.O. as he left for work at about 4:30 or 5:00 a.m. on June 27, 2005, everyone was asleep.
[16] K.O. dropped the victim off at a friend’s house around 8:00 a.m. on June 27, 2005, but said nothing to her friend about any bruises on the baby’s legs. She was not concerned about the bruises at that time. K.O.’s step-mother was to pick the baby up later in the morning and care for her until K.O. finished her shift at a local restaurant.
[17] When K.O. returned to her step-mother’s home to pick up the victim later in the afternoon, her step-mother mentioned that the baby had bruises on the front (shins) and back (calves) of both legs.
The Check-up and Hospital Visit
[18] At the victim’s regularly-scheduled medical appointment on June 28, 2005, K.O. did not tell the doctor anything about the bruising she had noticed on the baby’s legs a day earlier. The doctor checked the baby’s hips and weighed her with her clothes off, but noticed no bruises. The baby was not fussy during the doctor’s examination. The doctor did notice, however, that the infant had not gained any weight since birth.
[19] K.O. spoke to her step-mother after the doctor’s appointment for the baby. Her step-mother, J.O., didn’t think that K.O. was being truthful with her when K.O. told her that the doctor didn’t see the bruises because she (the doctor) had weighed the baby while the infant was wearing her sleepers. J.O. made it clear to K.O. that the baby should be taken to the emergency department of a nearby hospital to be examined. Initially, K.O. resisted her step-mother’s proposal, but later agreed to take the baby to the hospital.
[20] The physician who examined the baby in the emergency department on June 28, 2005, was not called as a witness. The physician’s report, filed as an exhibit, notes:
“? bruise –-could be from pressure against leg. *This will warrant watching” …“spots – ? bruising?”
[21] The doctor noted no tenderness along the baby’s shins, an area on which there were bruises.
[22] After the examination, J.O. confronted K.O. about the bruises, suggesting that either K.O. or the appellant had caused them. K.O. denied having caused the bruises.
The Second Set of Bruises: July 10-11, 2005
[23] On July 10, 2005, the appellant took the baby to a family gathering. He returned home around 4:30 p.m. K.O. left the apartment around 7:00 p.m. to go out drinking with a friend. K.O. returned to the apartment by cab around 11:30 p.m. She was so intoxicated that the appellant had to help her out of the cab and assist in putting her to bed. K.O. said that she had drunk about half a large bottle of Jack Daniels.
[24] The appellant fed and changed the baby at 10:00 p.m. on July 10, 2005, and again at 2:00 o’clock the following morning. He followed his usual routine and accomplished his task without incident. Before leaving for work at 5:00 a.m. on July 11, 2005, the appellant checked on K.O. and both children. All were asleep.
[25] When K.O. changed and fed the baby at 6:00 a.m. on July 11, 2005, she noticed six or seven fingerprint-sized bruises on the baby’s buttocks. But the baby was not fussy. K.O. called her step-mother, told her about the bruises, then left the baby with her father and step-mother on the way to work that morning.
[26] J.O. saw several bruises on the baby’s buttocks and couldn’t settle the baby down after K.O. left. J.O. took the baby to Dr. French who confirmed the bruises on the buttocks, as well as a couple of small bruises on the baby’s legs. The doctor also detected some blood abnormalities. Concerned that “something was going on”, Dr. French arranged a hospital appointment for the baby for the following day.
The Hospital Examinations
[27] On July 12, 2005, Dr. Richard van Wylick, a pediatrician, examined the victim at Hôtel Dieu Hospital. He observed bruises on the baby’s left thigh and buttock and a small bruise on her right buttock. He considered the presence of bruising in a one-month-old infant as highly suspicious for a non-accidental injury. Bruising, let alone extensive bruising, rarely appears on infants of such an age. Dr. van Wylick also expressed concern about the baby’s apparent failure to thrive.
[28] The nature of the victim’s injuries resulted in her hospitalization as healthcare professionals suspected child abuse and wanted to have a full body skeletal survey performed.
[29] Dr. Don Soboleski, a radiologist, examined the x-rays taken of the victim on July 19 and 20, 2005. He found four fractures of posterior ribs on each side of the child’s body, as well as fractures of the major bones, the femur and tibia, of both legs. The leg injuries were classic metaphyseal lesions, highly specific for non-accidental abuse. All fractures displayed new bone formation, indicating that the healing process was under way in both the rib cage and the legs.
[30] Dr. van Wylick gave evidence about the type of force required to cause the injuries he observed on the victim’s body. The rib injuries required compression of the whole chest, together with levering of the baby’s spine. The infant’s chest must have been free-floating when the rib fractures occurred, not held or pushed against a rigid surface. The doctor expressed the view that the rib injuries were non-accidental in origin. The mechanism used and the force required to cause the rib injuries were of such a nature that an ordinary person would recognize them as sufficient to cause injury to the baby.
[31] In Dr. Soboleski’s view, a person would have to hold the baby and apply sufficient force to fracture the ribs. The person applying the force would have to have a portion of his or her hand on the baby’s chest, the balance of the hand on the infant’s back. It takes a significant squeeze or compression on the thorax to make it break over that transverse process of the vertebral body.
[32] Dr. van Wylick described the victim’s leg injuries as “classic metaphyseal lesions”, the result of torsion or shear stress applied through the distal metaphysis. These injuries require traction, in other words, pulling, along the length of these long bones, potentially accompanied by twisting. The force required to cause these injuries would be recognized by an ordinary person as likely to cause injury to the body, not the product of moving the child’s legs to facilitate diaper changes.
[33] Dr. Soboleski confirmed that the leg fractures required a twist or a torsion or a shear force. These injuries did not occur as a result of any direct impact at or near the fracture site. These injuries could not have been caused by changing the baby, although they could be the product of a severe shaking or swinging the infant while holding on to a limb. Significant force was required to cause these textbook examples of non-accidental injuries.
The Timing of the Injuries
[34] Dr. Soboleski explained that dating injuries from the examination of X-rays is based on the appearance of the healing response around the fracture site. The dating of the injuries by this method is not an exact science. Usually, at four to six weeks after the injury, new bone is incorporated into the cortex. No incorporation occurred here. There was new bone formation, however, that led Dr. Soboleski to conclude that the injuries, which could have occurred at the same or different times, would be at least one week and closer to two weeks old at the date of X-ray, July 19-20, 2005.
[35] Dr. Soboleski acknowledged that the injuries could have been inflicted three weeks before the X-rays were taken, but he concluded that four weeks was “an outside chance”.
The Appellant’s Admissions
[36] Two witnesses gave evidence about remarks they attributed to the appellant when they confronted him about responsibility for the victim’s injuries after their nature and extent had become known.
[37] After K.O. learned of her daughter’s injuries on July 20, 2005, she asked the appellant: “Why did you do it?”. He either looked at her or denied responsibility. K.O. pressed her demand and accused the appellant of lying to her. The appellant responded: “I didn’t mean to do it”. By then, K.O.’s other child had been apprehended by child protection authorities. K.O. told the appellant that he had to confess his responsibility for the injuries first to her and then to the police so that she (K.O.) could see her other daughter again.
[38] L.C. is K.O.’s step-sister. About three weeks after the victim was admitted to hospital, L.C. conducted her own investigation to determine who had caused the baby’s injuries. In her quest for information, L.C. made it known that she wanted to speak to the appellant. Ultimately, L.C. spoke to the appellant on the telephone.
[39] L.C. asked the appellant whether he had caused the baby’s injuries. The appellant told L.C. that he had caused injuries to the baby, but “not to the extreme” of the injuries that the infant had suffered. The appellant said that he might have squeezed the baby too hard when he was changing her diaper, but he didn’t know when the injuries occurred.
[40] The appellant denied the remarks attributed to him by K.O. and said that he had never spoken to L.C., as she claimed.
The Police Interview of July 22, 2005
[41] A short time after K.O. reported the appellant’s “confession” to the police, investigators arrested the appellant on a charge of aggravated assault. After he had been cautioned and received Charter advice, he was interviewed by the investigating officer. At trial, the appellant abandoned his challenge to the admissibility of the audio and videotaped interview that followed.
[42] Several passages in the police interview are relevant to the grounds of appeal advanced by the appellant:
(1) D/ CST. GOAD Okay, so as I have advised to you, you realize why you have been arrested and charged with aggravated assault, and I have been upfront with you and have advised you that I understood from speaking to a couple of people that you had confessed to [K.] so what I did was I sought out [K.] and spoke to her in person and interviewed her last night under video and she advised me that she confronted you which she [sic] got home from the hospital and maybe you can just let me know your side of the story obviously you know, you’ve got something to say, and you would like to share it and it is your right, okay so you can just go ahead and tell me
WADFORTH: Oh like I said in the jail, I never intentionally would I hurt anybody, I never knew any of these like, damages, or anything till, he [sic] came home on Tuesday, I think she came home on Tuesday or Wednesday and she told me about them and I had no clue what had happened, so like I was, as soon as I found out I was shocked and I didn’t know what had happened so
D/CST.GOAD Okay, and you say you didn’t mean to hurt the baby
WADFORTH: And no way would I ever, ever hurt anybody, for any reason whatsoever
(2) WADFORTH: … and she came home around twelve o’clock or so that night and had had too much to drink that night, so I took care of her, put her to bed, and made sure she was okay, then I knew she wasn’t going to be able to get up in the morning and take care of the child cause she was too drunk or whatever, and then took her in you know, I brought out the baby, fed her, changed her and to the best of my recollection, I don’t remember doing anything
D/CST.GOAD You don’t remember doing anything
WADFORTH: No it could have been because of like all the stress that I have been under lately or what not but to my recollection, I don’t remember doing anything
(3) WADFORTH: Well for like the bruises as far like, bruises, as far as I know, I was just like holding her trying to burp her and I don’t know if I was squeezing her too tight, or what I was doing, but then the next day, like the day after, I was told, there were bruises, I didn’t know where they came from. And then as for the other ones I was just changing her, like holding her legs like up to her stomach, just to make sure nothing you know, she didn’t put her foot in the diaper or anything, and then I don’t know if I, just my, you know, stressed out too much and I put down more pressure than necessary or what had happened
D/CST. GOAD I see so you’re were [sic] explaining that you pulled her legs and her knees up and you think you may have put too much pressure on her knees or something you twisted
WADFORTH: I crossed her legs and was like just holding her down, like not for, as far as I know I wasn’t putting force behind it, I was just holding her there and it could have been stress from everything, you know, just got to me too much and I could have been not even knowingly doing damage and I didn’t know what happened
(4) D/CST. GOAD Really, okay and getting back to you know, [K.] and these injuries, so I mean you obviously admitting that you caused these injuries but maybe doing in just the stress load you’re under. Is that correct
WADFORTH: Yes
D/CST. GOAD Yes?
WADFORTH: Yes
(5) D/CST. GOAD Were there any episodes were you maybe were under some stress during those times as well? Where you may have caused some injuries at all
WADFORTH: No
D/CST. GOAD Not that you can recall
WADFORTH: No
D/CST. GOAD You can just specially remember that Monday, you believe was the 11th of July
WADFORTH: As far as I know
D/CST. GOAD Were [sic] things got to you and you probably were a little too forceful with the baby
WADFORTH: Too much of it was building just to too fast, I didn’t have, you know, didn’t vent it somewheres, probably
D/CST. GOAD Yeah, so you took it out on the four week old baby
WADFORTH: Well to the best of my recollection, I don’t like, I don’t remember doing this
The Appellant’s Evidence
[43] The appellant, who is without prior convictions, testified on his own behalf. He denied having caused the injuries suffered by the victim. Further, he disclaimed any acknowledgement of responsibility to K.O. and any conversation with, much less admission to, K.O.’s step-sister, L.C.
[44] The appellant only saw bruises on the victim when he picked her up after work on July 11, 2005, at the home of K.O.’s father and step-mother. He explained the procedure he always followed for diapering and feeding the baby, the same procedure he had followed for K.O.’s other child, who had never had any health problems. He had never been angry with the baby, or gripped the infant in any unusual way. He abjured the use of any excessive or unusual force and denied ever having treated the baby in the way illustrated by the medical witnesses to demonstrate the likely mechanism of injury.
[45] The appellant testified that he answered the investigator’s questions honestly, although he was extremely upset by the unexpected arrest and the nature of the accusations made against him.
THE GROUNDS OF APPEAL
[46] The appellant’s several grounds of appeal overlap. Each focuses on the reasons of the trial judge and alleges a flaw that, on its own or together with others, is said to require at the least a new trial, if not a verdict of acquittal. The grounds of appeal, as I would paraphrase them for discussion purposes, are these:
i. failure to properly apply the analysis required by R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742;
ii. failure to provide any or adequate reasons for the essential findings of fact and, in particular, for rejection of the appellant’s evidence; and
iii. misapprehension of material parts of the evidence resulting in a misapplication of the burden or dilution of the standard of proof required in a criminal prosecution.
ANALYSIS
The First Ground: The W. (D.) Error
The Positions of the Parties
[47] For the appellant, Mr. Stanfield says that the essential issue in this case was whether the prosecutor had proven beyond a reasonable doubt that it was the appellant who caused the victim’s injuries. The prosecutor relied on evidence of the appellant’s opportunity to cause the injuries and of admissions of responsibility he was alleged to have made to K.O., her step-sister, L.C., and to the investigating officer. The appellant denied causing the injuries, making any admissions of responsibility to K.O., likewise to L.C., and explained what he said to the investigating officer in the recorded interview after arrest.
[48] As a result of the issue raised at trial, Mr. Stanfield continues, it fell to the trial judge to determine whether he believed the appellant’s denials or had a reasonable doubt about his guilt as a result of what the appellant said. But the trial judge never did what was required of him. He made no mention of the appellant’s evidence, let alone any findings reflecting belief, reasonable doubt or disbelief. Even if we consider that the rejection of the appellant’s denial is implicit in the conviction recorded, the record is barren of any findings in connection with the evidence, other than the fact that its cumulative effect, to the trial judge’s mind, satisfied the prosecutor’s burden of proof.
[49] For the respondent, Mr. Palangio submits that the fundamental question is not whether the trial judge incanted the W. (D.) trinity, but whether he understood and properly applied the burden and standard of proof to the evidence as a whole. A review of the trial judge’s reasons as a whole, Mr. Palangio says, reveals the trial judge’s firm understanding of the relationship between reasonable doubt and the assessment of credibility and its proper application in this case. Mr. Palangio points out that the appellant does not say that the conviction is unreasonable. The findings of fact made by the trial judge were reasonably based on the evidence adduced at trial. Acceptance of the prosecution’s case of necessity indicates why the defence denial was rejected.
The Governing Principles
[50] In cases like this, involving near-equivalent opportunity to commit the offence charged and conflicting assertions and denials of responsibility, it is crucially important that the trial judge’s reasons reveal an understanding of the relationship between reasonable doubt and credibility. The failure expressly to articulate the word formula of W. (D.) is not fatal. What must appear, however, from the reasons as a whole, is the trial judge’s clear understanding of the relationship between reasonable doubt and the assessment of credibility and its application to the case at hand: W. (D.) at p. 758; R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 7 and 9; R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 46; R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13.
[51] The formula in W. (D.) is not a magic incantation, its chant essential to appellate approval and its absence a ticket to a new trial. Its underlying message is that the burden of proof resides with the prosecution, must rise to the level of proof beyond a reasonable doubt in connection with each essential element of the offence, and, absent statutory reversal, does not travel to the person charged, even if his or her explanation is not believed: S. (J.H.) at para. 13.
The Principles Applied
[52] To establish the appellant’s guilt, the prosecution was required to prove beyond a reasonable doubt that, on some occasion between June 13 and July 11, 2005, the appellant unlawfully assaulted the victim and that, as a consequence, the victim was wounded. To meets its burden, in a case in which the victim lived with both her principal caregivers, the prosecution focused on two dates when it could show that the appellant had exclusive access to the baby: June 26 and July 10, 2005. Nothing in the nature of the injuries themselves pointed more to one parent than to the other.
[53] In addition to the evidence of exclusive or semi-exclusive access to the victim during the specified dates, the prosecutor adduced evidence of alleged admissions of responsibility by the appellant to his partner, K.O., her step-sister, L.C., and, in an audio and videotaped interview, to the lead investigator. The prosecutor also relied upon expert opinion evidence about the age of the injuries based on a healing response visible on later X-ray. This evidence was said to be consistent with infliction of the injuries on July 10-11, 2005, although what was proffered was a time span, not a date certain.
[54] But there was another side to the story. The appellant, unencumbered by prior convictions, testified on his own behalf. He denied having caused the victim’s injuries. He made no admission of responsibility to K.O. and had no recollection of even having spoken to L.C., much less having admitted to her assaulting the baby. At least implicit in his evidence is the suggestion that K.O. caused the injuries. The appellant also explained his answers on police interview and described his state of mind when police charged him with the offence and interviewed him about it.
[55] The live issue in this case was identity: did the prosecutor prove beyond a reasonable doubt that it was the appellant who unlawfully caused the injuries to the victim?
[56] The core of the trial judge’s reasons convicting the appellant can be found in four paragraphs:
[20] Since then, [K.] has remained in the care of the C.A.S. Her mother ceased to live with the accused shortly after these events occurred. [K.], therefore, is no longer in the care of either of her parents. On all the evidence, it would seem unlikely that the major injuries to [K.], indicated on the radiographs and in the reports of the doctors at Hotel Dieu and K.G.H. were sustained at the time of the first period in June. On all the evidence, the court considers it most likely that the injuries to [K.] which have given rise to these proceedings occurred on the night of July 10-11, 2005, when she was in the care of her father.
[21] The accused has made several statements of his responsibility for the injuries suffered by [K.]. On July 22, 2005 he gave a voluntary statement to Detective Constable Andrew Goad of the O.P.P. at the Prince Edward O.P.P. Detachment. The statement took the form of an audio/visual taped interview. The disc is in evidence as Exhibit 11(A) to these proceedings, a transcript prepared by the O.P.P. is Exhibit 11(B). The admissibility and voluntariness of the statement has not been contested. Both counsel have referred to extracts from the transcript of the statement. In my view, the accused was trying to be truthful throughout the taped interview. At no time did he deny applying force to [K.], although he did not mean to hurt her “to the extent” she was injured. He repeatedly stated that he would never intentionally hurt “anybody”. As an example, at the feeding/changing time at 2:00 a.m., his evidence was that he “brought out the baby, fed her, changed her, and to the best of my recollection, I don’t remember doing anything.”
[22] At separate times he told the witness, [L.C.], that he had “done this”, (that is applied force to [K.]) but “not to the extreme of what injuries are described.” On another occasion, he admitted to his partner [K.O.], who was berating him about what had happened to [K.], asking him, “Why did you do it?”, that he was responsible but “I didn’t mean to do it.”
[23] After careful consideration of all the evidence heard and seen at this trial and of the applicable law as I have outlined it this afternoon, I have concluded that the Crown has established the essential elements of the offence of aggravated assault in this case beyond a reasonable doubt.
[57] The trial judge made no express reference to the three-step approach to the relationship between credibility and reasonable doubt advocated by Cory J. in W. (D.). What is more to the point, since the failure to recite the canonical trinity is not fatal, is whether the reasons, viewed as a whole, demonstrate the trial judge’s grasp of the substance of the critical relationship between reasonable doubt and the assessment of credibility: M. (R.E.) at para. 46.
[58] The reasons of the trial judge contain no mention of any evidence given by the appellant, including his denial of responsibility and direct contradiction of the claims of K.O. and L.C. that he made admissions to them. Although the reasons recite the substance of some of the admissions claimed by K.O. and L.C., they offer no assessment of the credibility of any witness and make no attempt to gauge the reliability of any evidence.
[59] The generic and conclusory language of the omnibus finding in para. 23 of the reasons, together with the complete absence of any mention of the appellant’s evidence or of an informed analysis of the impurities in the evidence of K.O. and L.C. compel the conclusion that the trial judge did not seize the substance of the critical issue of a reasonable doubt in the context of credibility assessment.
[60] In my respectful view, this ground of appeal succeeds.
The Second Ground: Inadequate Reasons
The Positions of the Parties
[61] The second ground of appeal is related to but more expansive than the first. Mr. Stanfield begins with a reminder that the basis upon which a trial judge decides a case must be intelligible, at least capable of being made out. The reasons must make apparent a logical connection between the decision rendered and the basis for that decision.
[62] In this case, Mr. Stanfield says, the reasons don’t make the cut. These reasons are at once conclusory and generic. They betray any analysis of the evidence. They contain no findings of credibility or of reliability. They offer no reason for the rejection of some evidence and acceptance of other evidence. These reasons deprive the appellant of what is his due: meaningful appellate review and an understanding of why he was convicted.
[63] The respondent characterizes the references to the evidence in the reasons of the trial judge as findings of fact. These findings were reasonably open to the trial judge in this uncomplicated case. The reasons for rejection of the appellant’s evidence are obvious once the prosecution’s evidence was found credible and reliable. The reasons were adequate in the circumstances.
The Governing Principles
[64] A trial judge’s reasons rendered at the end of a criminal trial must be sufficient to fulfil their tripartite functions of explaining why an accused was convicted or acquitted, providing public accountability and permitting effective appellate review: M. (R.E.) at para. 15. The reasons are sufficient if they respond to the live issues at trial and the key arguments of the parties: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20; M. (R.E.) at para. 34. The sufficiency of reasons is not to be measured in the abstract, but rather as the reasons respond to the substance of what was in issue: Walker at para. 20; M. (R.E.) at para. 34.
[65] The degree of detail required in reasons to ensure their sufficiency varies with the circumstances of individual cases. Sometimes, for example where the basis of the judge’s decision is patent from the record even without statement, less detail will be required. In other instances, such as cases in which the trial judge is required to navigate in unsettled legal waters or to resolve confused and contradictory evidence on a key issue, more detailed reasons are mandated: R. v. Sheppard, [2002] 1 S.C.R. 169, at para. 55; M. (R.E.) at para. 44.
[66] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise: M. (R.E.) at para. 49; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses’ credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events: Gagnon at para. 20.
[67] No uniform standard of detail exists by which we can determine the sufficiency of reasons that describe findings on credibility. The degree of detail required to explain these findings will vary with the evidentiary record and trial dynamics: M. (R.E.) at para. 51. Findings on credibility must be made with regard to the other evidence in the case, thus the need to make at least some reference to the contradictory evidence. In the end, the detail provided must demonstrate that the trial judge has seized the substance of the issue in the case tried. While no detailed account of all conflicting evidence is mandated, in a case where credibility is critical, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of all the evidence adduced at trial, raises a reasonable doubt about the accused’s guilt: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 23 and 30; M. (R.E.) at para. 50.
[68] Appellate review of reasons for sufficiency starts with deference to the trial judge’s findings of fact. Appellate intervention must be rooted in a functional failing in the trial judge’s reasons for decision. The reasons, read in the context of the evidentiary record and the live issues at trial, must fail to reveal an intelligible basis for the verdict, capable of permitting meaningful appellate review: Sheppard at para. 28; M. (R.E.) at para. 53.
[69] Our mandate is to determine the correctness of the trial judge’s decision. We apply a functional test, which requires that the trial judge’s reasons be sufficient for that purpose. If we conclude that the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then the appellant has demonstrated an error of law: M. (R.E.) at para. 52. Two paragraphs of the reasons of the Supreme Court of Canada in M. (R.E.) describe the nature of our inquiry.
[55] The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals [sic] the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.
[57] Appellate courts must ask themselves the critical question set out in Sheppard: do the trial judge’s reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review? To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved. If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute [sic] error in law.
The Principles Applied
[70] The critical factual issue in this case was the identity of the victim’s assailant, more particularly the adequacy of the prosecution’s proof that it was the appellant who caused the victim’s injuries. Typically, in cases such as this, the infant’s parents have near equal access to the baby during the period within which the injuries are caused. Mother said father did it. He told me so. Father said he didn’t do it, maybe mother did. And he didn’t tell mother, or mother’s step-sister that he had caused the injuries.
[71] The reasons of the trial judge recapitulate inculpatory parts of the evidence of K.O. and L.C. and reiterate some brief portions of the appellant’s police interview, commenting upon his failure to deny applying force to the victim. These references aside, what remains in the reasons is at once conclusory and generic. To repeat:
[23] After careful consideration of all the evidence heard and seen at this trial and of the applicable law as I have outlined it this afternoon, I have concluded that the Crown has established the essential elements of the offence of aggravated assault in this case beyond a reasonable doubt.
Except for the reference to aggravated assault, these reasons could apply equally to any other case on any other charge against any other accused: R. v. Brown (2002), 2002 41599 (ON CA), 61 O.R. (3d) 619 (C.A.), at para. 30.
[72] The reasons make no reference to the appellant’s evidence, including his contradiction of the testimony of K.O. and L.C. claiming he admitted responsibility for causing the injuries, and betray any appreciation of the frailties inherent in the testimony of both K.O. and L.C. The reasons are devoid of any mention of credibility and display no consideration of reliability. We know what the trial judge decided, namely that the prosecution had proven its case, but we know not why he reached that conclusion.
[73] In my view, these reasons preclude meaningful appellate review. It follows that the reasons amount to legal error.
[74] The reasons also contain two problematic references. The first, an apparent finding that the injuries suffered by the victim “most likely” occurred during the night of July 10-11, 2005, when the baby was alone with the appellant, seems to fall short of the standard of proof required in a criminal case: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 39. And the second, a reference to the failure of the appellant to deny in his police interview having applied force to the victim, comes perilously close to attaching evidentiary significance to a failure to deny a police allegation, thus compromising the right to silence.
[75] I will defer consideration of the consequences of the insufficiency of reasons on the validity of the verdict in this case until later in these reasons.
The Third Ground: Misapprehension of Evidence
The Positions of the Parties
[76] The appellant also contends that the trial judge misapprehended portions of the evidence adduced at trial. These misapprehensions include a mistake about the substance of the evidence, a failure to give proper effect to an item of evidence, and a failure to consider evidence relevant to a material issue. The trial judge was mistaken about the substance of the evidence of Dr. Soboleski about the age of the victim’s injuries and wrongly characterized the appellant’s response on police interview, “I don’t remember doing anything”, as a failure to deny the allegations. He failed to take into account evidence of the victim’s condition in deciding when the injuries were inflicted, thus who caused them. Further, the trial judge failed to appreciate that the bruising noticed on the victim’s buttocks on July 11, 2005, was not related to either the rib or leg fractures, thus could scarcely be used to link the appellant to the more serious injuries.
[77] Mr. Stanfield argues that these misapprehensions of evidence constitute mistakes about the substance of material parts of the evidence and, to the extent that the trial judge’s reasons are not otherwise insufficient, played an essential part in the reasoning process that resulted in a conviction.
[78] Mr. Palangio characterizes the alleged misapprehensions differently. From the respondent’s perspective, what the appellant characterizes as misapprehensions of the evidence are simply complaints about the weight the trial judge assigned to individual items of evidence, an argument doomed to fail here. There was no misapprehension of the content of the appellant’s police interview – the appellant never denied harming the victim, rather only contested the nature and extent of force applied and its connection to all the injuries suffered. The other errors amounted to little more than a complaint that the trial judge did not refer to all the evidence in his reasons. He was under no obligation to do so.
The Governing Principles
[79] Misapprehensions of evidence may involve a failure to consider evidence relevant to a material issue, mistakes about the substance of evidence, or a failure to give proper effect to evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538.
[80] An appellant who advances misapprehension of evidence as a ground of appeal against conviction is not entitled to appellate relief upon demonstration of a misapprehension, without more. What is required is some link or nexus between the misapprehension and the core elements of the judge’s reasoning process resulting in a conviction: Morrissey at p. 541.
[81] Where misapprehension of evidence is alleged, it becomes necessary to determine at the outset whether the claim of misapprehension has been made out. The next step involves consideration of the reasonableness of the verdict, an argument which, if it succeeds, warrants an acquittal, independently of any misapprehension of evidence. Where the verdict is not unreasonable, then it remains to consider whether the misapprehension caused the miscarriage of justice: Morrissey at p. 540.
The Principles Applied
[82] The reasons of the trial judge impede informed consideration of this ground of appeal. Suffice it to say that, ceding to the appellant the validity of his claims of misapprehension of evidence, I would not conclude that the finding of guilt was unreasonable. A finding of guilt is reasonable if it is a verdict that a properly instructed trier of fact, acting judicially, could reasonably have rendered. On their own, the misapprehensions of evidence advanced here, considered individually and cumulatively, are unlikely to have caused a miscarriage of justice. That said, the misapprehensions provide further evidence of the trial judge’s failure to come to grips with the substance of the critical issue in the case: the appellant’s responsibility for the victim’s injuries.
CONCLUSION
[83] The failure to give effect to the principles articulated in W. (D.) constitutes an error of law. Further, the deficit of reasons in the circumstances of this case also reflects legal error. The combined effect of these errors is incapable of rescue by recourse to the proviso in s. 686(1)(b)(iii) of the Criminal Code. The errors were neither harmless, nor the evidence so overwhelming that the proviso can properly be invoked.
[84] For these reasons, I would allow the appeal, set aside the conviction, and order a new trial. In light of this disposition, it is unnecessary to consider the Crown appeal from sentence.
“David Watt J.A.”
“I agree M. Rosenberg J.A.”
“I agree Gloria Epstein J.A.”
RELEASED: “MR” October 13, 2009