COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boston, 2013 ONCA 498

DATE: 20130729

DOCKET: C51713

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renagi Boston

Appellant

Russell Silverstein, for the appellant

Michael Medeiros, for the respondent

Heard: May 16, 2013

On appeal from the convictions entered by Justice S. Gail Dobney of the Ontario Court of Justice on July 22, 2009.

Tulloch J.A.:

A. OVERVIEW

[1] Following a chase by police, the appellant was arrested on an outstanding warrant. During the officers’ attempt to effect the arrest, a scuffle ensued and injuries were occasioned to one of the officers, PC Steffler. The appellant also suffered significant injuries including a broken nose and a hematoma in his scrotal area.

[2] The appellant was charged with assault causing bodily harm to PC Steffler and assault of PC Steffler with the intent to resist arrest. At trial, the appellant brought a Charter application for a stay of proceedings and alleged that his s. 7 rights were infringed because of the excessive force used by police during his arrest.

[3] In her reasons for judgment, the trial judge preferred the version of the events given by the officers, dismissed the appellant’s Charter application, and convicted the appellant of both offences.

[4] The appellant appeals from his convictions. Although the appellant raises a number of issues in his factum, the appellant’s principal submission is that the trial judge erred by misconstruing the burdens on the Charter application and the trial proper.

[5] For the reasons that follow, I have concluded that the convictions should be set aside and a new trial ordered on the basis of the appellant’s principal submission. In these circumstances, it is not necessary that I address the balance of the issues raised by the appellant.

B. BACKGROUND

(1) Ms. Braithwaite’s version of events

[6] The trial proceeded as a blended voir dire and trial. The testimony from the officers, and the evidence from the defence witness, Ms. Braithwaite, was largely uniform. In essence, the appellant fled from the police, was tackled by one officer and then tasered as he attempted to scale a fence. Ms. Braithwaite’s account of what happened after the police subdued the appellant differed from the officers’ accounts. Ms. Braithwaite testified that, after the police had subdued the appellant, she observed an officer elbow the appellant repeatedly in the face and kick him in the groin. Immediately after, Ms. Braithwaite heard the appellant yell, “he kicked me in my balls”.

(2) The officers’ version of events

[7] PC Steffler and two other officers testified that on July 3, 2008, they were on uniformed bike patrol and were looking for the appellant to arrest him on an outstanding warrant for assault.

[8] The officers testified that after they approached the appellant and touched his forearm, he fled on foot. They gave chase on bicycles, eventually tackling the appellant to the ground.

[9] The appellant freed himself and continued running. When he tried to get over a fence, an officer fired a taser gun at him. The officers pulled the appellant to the ground, but he continued to struggle and thrash and tried to slip his lower body under the fence.

[10] One of the officers, Sgt. Tobin, observed the other officers punching the appellant while he was on the ground. Another officer again fired the taser gun and the officers eventually subdued the appellant and handcuffed him.

(3) The trial judge’s reasons

[11] The trial judge identified at the outset of her reasons that two of the major issues before her were whether the appellant’s Charter rights had been breached and whether the offences were proven beyond a reasonable doubt. The issue of excessive police force was relevant to both these inquiries.

[12] The trial judge noted that as between the testimony of the officers and that of Ms. Braithwaite, there was a live controversy about the use of force applied in effecting the arrest of the appellant.

[13] In making her credibility findings, the trial judge reasoned that any inconsistencies in the officers’ testimony could be explained by the fact that their observations were made in the context of an intense physical struggle. The trial judge concluded that Ms. Braithwaite, on the other hand, had been less than candid with the court. Accordingly, the trial judge preferred the evidence of the officers and, where there was any inconsistency between the officers’ evidence and Ms. Braithwaite’s, she preferred the former.

[14] As a result, the trial judge rejected the assertion that the officers kicked the appellant in the testicles while he was handcuffed on the ground. Instead, she found that the injury to the appellant’s testicle was consistent with being pulled off the fence. The trial judge concluded that the appellant deliberately grabbed PC Steffler’s finger and snapped it back, thereby assaulting him with the intent to resist arrest and causing the officer bodily harm. She further found that the appellant bit PC Steffler’s finger, causing the officer to reflexively strike back in self-defence by hitting the appellant in the head. In the circumstances, the trial judge found that the appellant’s s. 7 Charter rights were not breached.

[15] Turning to the charges themselves, the trial judge then stated:

Since I do not find a Charter breach, and pursuant to the findings of fact that I made above, it follows that I find the accused guilty of both charges as laid.

(4) Submissions of the parties

[16] The appellant submits first, that the trial judge treated the defence witness Ms. Braithwaite’s evidence as unworthy of belief simply because it differed from that of the police officers. The appellant points to specific instances to demonstrate that the trial judge misapprehended or, at the very least, did not take a robust or thoughtful approach to considering Ms. Braithwaite’s evidence.

[17] The appellant’s second and principal submission is that the trial judge misconstrued the burdens of proof applicable to her conclusions on the Charter application and the findings of guilt on the offences for which the appellant was tried.

[18] The respondent, on the other hand, argues that the appellant has not demonstrated that the trial judge misapprehended any of Ms. Braithwaite’s evidence to such an extent that would warrant appellate intervention.

[19] With respect to the issue of misconstruing the burdens in the blended voir dire and trial, the respondent notes that the trial judge heard the submissions of counsel on both the Charter application and the trial at the same time. Accordingly, her reasons must be read as a whole and in the context of the entire record. In the Crown’s submission, the trial judge’s reasons demonstrate that she knew exactly how and to what standard the Crown would have to prove its case.

C. ANALYSIS

(1) The applicable burdens of proof

[20] As I indicated earlier in these reasons, the trial proceeded as a blended voir dire and trial. Accordingly, the Crown and defence made submissions on both the Charter application and the trial proper contemporaneously.

[21] The trial judge rejected Ms. Braithwaite’s evidence and reached her ultimate conclusion on the guilt of the appellant in one paragraph:

Since I do not find a Charter breach, and pursuant to the findings of fact that I made above, it follows that I find the accused guilty of both charges as laid.

[22] In my view, the trial judge erred by finding the guilt of the appellant in this manner. The trial judge’s ultimate conclusion gives no indication that she applied the proper standard of proof.

[23] In a Charter application, the burden of proof is on the defence to establish a breach on a balance of probabilities. In a criminal trial, the burden of proof is on the Crown to establish the guilt of the accused beyond a reasonable doubt.

[24] In a trial with a blended voir dire, the trial judge is still required to separate the burdens and apply the appropriate onus in disposing of both the Charter application and the trial proper.

[25] To determine whether the appellant’s guilt had been established, the trial judge was still required to consider whether, on all of the evidence, the elements of the offences charged had been proven beyond a reasonable doubt. From the paragraph quoted above and the balance of her reasons, I am not satisfied that this is the approach the trial judge took. As this court stated in R. v. Bucik, 2011 ONCA 546, 87 C.R. (6th) 309, at para. 33: “[t]he lesson from R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, is that assessments of the credibility or reliability of exculpatory evidence in a criminal case do not raise either/or choices, but must reflect the application of the burden of proof placed on the Crown to prove its case beyond a reasonable doubt” (emphasis added).

[26] Even though she completely rejected Ms. Braithwaite’s evidence on the voir dire, the trial judge should have made it clear that, at the voir dire stage of the proceedings, the defence had not discharged its onus in establishing a Charter breach.

[27] Having found that there was no Charter breach, in applying the evidence from the voir dire to the trial proper, the trial judge was then required to ask herself whether, on all the evidence, she was satisfied that the Crown had discharged its onus in establishing the guilt of the accused on the offences charged, beyond a reasonable doubt. In failing to do so, the trial judge committed a legal error.

[28] I cannot conclude from her reasons that she properly undertook this exercise and applied the correct burden of proof in order to convict the appellant of the offences charged.

[29] Accordingly, the appellant’s convictions cannot stand. I would allow the appeal, set aside the convictions and order a new trial.

Released: DW July 29, 2013

“M.H. Tulloch J.A.”

“I agree. D. Watt J.A.”

“I agree. P.D. Lauwers J.A.”