COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Zaba, 2016 ONCA 167
DATE: 20160411
DOCKET: C60486
Watt, Lauwers and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Frank Zaba
Appellant
Erec Rolfe, for the appellant
Dena Bonnet, for the respondent
Heard: January 8, 2016
On appeal from the conviction entered on September 26, 2014 and the sentence imposed on October 14, 2014 by Justice J.J. Douglas of the Ontario Court of Justice.
Huscroft J.A.:
[1] The appellant appeals his conviction for several offences against his wife including assault causing bodily harm, assault, unlawful confinement, use of a firearm in the commission of an indictable offence, dangerous driving, and possession of a firearm while prohibited. Charges of assault, threatening, and careless use of a firearm were stayed under the principle set out by the Supreme Court in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
[2] The appellant was sentenced to a term of imprisonment totalling 52 months for four separate incidents. This was reduced to 42 months and 15 days imprisonment after the appellant received credit of 9.5 months for pre-trial custody.
A. Background
[3] On March 17, 2014 the complainant attended at the police station with her sister and gave a detailed statement alleging that the appellant had abused her mentally and physically on several occasions. The complainant’s statement was made under oath and she was warned of the legal consequences of making a false statement. Her statement was videotaped by the police. Unusually, the complainant’s sister was with her while she made her statement.
[4] The complainant’s statement detailed four separate events of domestic abuse at the hands of the appellant:
On November 14, 2013, the appellant punched her in the head several times, resulting in a ruptured eardrum.
On February 4, 2014, the appellant hit, elbowed, and punched the complainant, shoved a firearm in her face, and threatened to use a gun to kill her ex-boyfriend, who had custody of their children.
On February 14, 2014, the appellant hit the complainant in the head several times, spit in her face, and chased her as she ran away. He then followed her in his truck as she escaped in the truck of a stranger who stopped to help her.
On March 14, 2014, the appellant grabbed the complainant, hit and bit her in the face, and threw her in the back seat of his truck. When she tried to escape, he dragged her back to their trailer.
[5] The complainant did not want to testify at trial and she did so only following her arrest on a warrant issued by the trial judge. During her the first day of her testimony, the complainant sat on the floor of the witness box and cried or appeared to cry. She said that she wanted to get back together with the appellant and denied having any memory concerning many of the events outlined in her statement. The complainant did not repeat this behaviour on the second day of her testimony, but maintained that she had little memory of the relevant events.
[6] The trial judge admitted the complainant’s March 17, 2014 statement to the police into evidence for the truth of its contents, in accordance with the decision of the Supreme Court in R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 (K.G.B.). The other evidence against the appellant included photographs of the complainant’s injuries, taken March 17, 2014, and testimony from Mr. Valiquette, a neighbour of the complainant’s ex-boyfriend, who witnessed the February 4, 2014 events and called 911.
[7] The appellant did not testify at his trial.
B. Issues
[8] The appellant raises the following issues on appeal:
Did the trial judge err in admitting the complainant’s March 17, 2014 statement to the police under the principled exception to the hearsay rule?
Did the trial judge improperly assess the credibility and reliability of the complainant?
Did the trial judge provide sufficient reasons for convicting the appellant of assault causing bodily harm (Nov. 14, 2013), assault (Feb. 14, 2014)[^1], and unlawful confinement (March 14, 2014)?
Did the trial judge render an unreasonable verdict in convicting the appellant of assault causing bodily harm (Nov. 14, 2013) and dangerous driving (February 14, 2014)?
I address each of these issues in turn.
(1) The admissibility of the complainant’s statement
[9] The admissibility of hearsay under the principled exception depends on whether the requirements of necessity and reliability are met. The appellant concedes that necessity is established. That leaves the requirement of reliability.
[10] In K.G.B., the Supreme Court set out three criteria relevant to determining the threshold reliability of a statement at pp. 795-96:
i. the statement is made under oath or solemn affirmation after a warning about the consequences of an untruthful account;
ii. the statement is videotaped in its entirety; and
iii. the opposite party has a full opportunity to cross-examine the witness on the statement.
[11] Absent an error in principle, the trial judge’s decision on the question of threshold reliability – whether the hearsay ought to be admitted, not whether it ought to be relied on – is entitled to deference: see R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at paras. 43-55.
[12] There is no dispute concerning the satisfaction of the first two criteria in K.G.B. The complainant’s statement to police was sworn and videotaped. However, the appellant submits that the trial judge made two errors in principle in admitting the complainant’s statement. First, the trial judge erred in finding that the appellant had a full opportunity to cross-examine the complainant on her K.G.B. statement. Second, the trial judge erred in finding that the complainant had no motive to fabricate evidence.
Cross-examination
[13] The appellant submits that he was deprived of a meaningful opportunity to cross-examine the complainant as a result of her memory loss. The appellant argues that it does not matter whether the complainant’s memory loss was real or feigned; the consequence is that his ability to cross-examine was rendered illusory and the complainant’s K.G.B. statement is unreliable as a result. The appellant cites R. v. Conway (1997), 1997 CanLII 2726 (ON CA), 36 O.R. (3d) 579 (C.A.) and R. v. Diu(2000), 2000 CanLII 4535 (ON CA), 49 O.R. (3d) 40 (C.A.) as support for this proposition.
[14] I would reject this ground of appeal.
[15] Plainly, the appellant did not get everything he wanted from cross-examination. In particular, the complainant did not recant her allegations of abuse. Her memory was selective. But cross-examination was not rendered meaningless on this account. A considerable amount of information was elicited from the complainant, who agreed with many of defence counsel’s suggestions. The trial judge carefully considered the impact of the complainant’s professed memory lapses and concluded that they did not have the effect of rendering the right to cross-examination illusory so as to bar admission of her statement. This conclusion was open to the trial judge on the record.
[16] Neither Conway nor Diu is authority for the proposition that difficulties in cross-examination render an out-of-court statement inadmissible in all circumstances. In Conway, unlike this case, the other K.G.B. criteria were not satisfied – that is, the statement was not made under oath or affirmation and was not videotaped. In Diu, although the statement was videotaped it was not made under oath or affirmation. Not only were the other K.G.B. criteria satisfied in this case, but there were additional indicia of reliability including photographs of the complainant’s injuries and the evidence of Mr. Valiquette.
Motive
[17] The appellant submits that the complainant had a motive to fabricate her evidence: she wanted out of her relationship with the appellant and wanted him out of their residence in order to obtain unrestricted access to the appellant’s drugs. The appellant submits that the trial judge erred in finding, at the threshold reliability stage, that the complainant did not act on this motive, as this issue was relevant only to the ultimate reliability of the K.G.B. statement. He argues that the threshold inquiry should have been limited to determining whether the witness had a motive to fabricate and should not have included an evaluation of that alleged motive.
[18] This argument is without merit.
[19] The trial judge was not limited to considering the mere existence a possible motive at the threshold reliability stage. Moreover, given the trial judge’s view that it was irrelevant – a “red herring”, as he described it – it could not undermine the complainant’s K.G.B. statement at the threshold reliability stage.
(2) The complainant’s credibility and reliability
[20] The appellant submits that the trial judge made several errors in assessing the complainant’s credibility and reliability. In particular, the appellant submits that the trial judge failed to consider the complainant’s K.G.B. statement in regard to each count on the information, and wrongly treated the complainant’s reliability as an all-or-nothing proposition. The appellant submits, further, that the trial judge failed to give adequate weight to the finding that the complainant lied about her memory loss at trial when assessing her credibility. The appellant points to several statements made by the complainant under cross-examination that were not considered by the trial judge.
[21] I would reject this ground of appeal.
[22] The trial judge’s finding that the complainant was lying about her memory loss is key to his decision. It reinforces his conclusion as to the complainant’s credibility and reliability in making the K.G.B. statement because he found that she lied in her trial testimony out of a desire not to incriminate the appellant. The trial judge found that the fundamental truthfulness of the complainant’s K.G.B. statement came out at various points, for example, when she said that her husband “never hit me in the back of the head all that day”. The trial judge interpreted this as hinting at the frequency of her abuse, even while exonerating the appellant for abuse on the relevant day.
[23] The trial judge also referenced confirmatory evidence in several respects. For example, the trial judge referred to photographs of the complainant’s face taken March 17, 2014, which record injuries consistent with those that the complainant said occurred on March 14th. In addition, the trial judge found that Mr. Valiquette, who witnessed the incident on February 4th, was both credible and reliable.
[24] The trial judge did not treat the complainant’s reliability as an all-or-nothing proposition, as the appellant submits. Although the trial judge’s reasons do not address all of the matters raised by the appellant’s counsel, this does not undermine the trial judge’s findings on the complainant’s credibility and reliability. Furthermore, although the complainant agreed with defence counsel’s suggestions as to what might have happened at several points in her testimony – for example, the possibility that her injuries were caused by the appellant grabbing her to prevent her from falling from the vehicle, or that the appellant may have disabled their vehicle to prevent her from driving while intoxicated rather than to prevent her escape – this is consistent with the trial judge’s finding that the complainant lied in her testimony at trial in order to protect the appellant. Shortcomings in the complainant’s evidence on cross-examination, such as unanswered questions as to when the injury to her eardrum occurred, are not fatal to a finding that her evidence was otherwise credible and reliable.
The sister’s role in the interview
[25] The appellant characterized the trial judge’s reliance on exchanges between the complainant and her sister, who was present when the complainant made her statement to the police, as constituting “oath helping”.
[26] I would reject this ground of appeal.
[27] The trial judge was alive to the problem posed by the sister’s role in the complainant’s K.G.B. statement. The complainant’s sister accompanied her to the police station to support her and sat with her while she made her statement. Given the appellant’s suggestion that the complainant’s sister goaded her into making her statement, the trial judge was entitled to consider the conversation between them on the basis that it formed part of the narrative of the complainant’s statement.
[28] I see no error in the trial judge’s approach. He found that the sister did not interfere significantly in the statement-taking process. He also made clear that although he was admitting the complainant’s statement in its entirety, her sister’s utterances could not be relied on for the truth of their contents.
(3) The sufficiency of reasons for the convictions
[29] The appellant submits that the reasons were insufficient in several respects. For example, the trial judge provided no analysis supporting the conviction of assault causing bodily harm (November 14, 2013); for rejecting the complainant’s evidence at trial that she was only repeating what others told her about the allegations (February 4, 2014); for finding the appellant guilty of assault (February 14, 2014); and for finding the appellant guilty of unlawful confinement (March 14, 2014).
[30] I would reject this ground of appeal.
[31] Watt J.A. summarized the principles governing review of the sufficiency of reasons in cases in which the credibility and reliability of principal witnesses is at issue in R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 116-121. The ultimate question is whether the reasons, read as a whole in the context of the evidence and the arguments at trial, are so deficient as to foreclose meaningful appellate review. Reasons need not be perfect; they need not address all of the evidence or answer every argument made at trial in order to be sufficient. The trial judge is in the best position to assess the evidence and his or her findings are to be accorded significant deference.
[32] In my view, read as a whole in the context of the complainant’s statement, the arguments at trial, the photographs of her injuries, and the evidence of Mr. Valiquette, the trial judge’s reasons are sufficient to support the convictions. It is clear from the trial judge’s decision that he accepted the complainant’s evidence in her K.G.B. statement in relation to each of the four incidents that provided the basis of each of the counts and relied on it. It was open to him to do so. The trial judge canvassed the possibilities concerning the reliability of the complainant’s statement and considered and rejected the appellant’s arguments.
(4) Are the verdicts unreasonable?
[33] The appellant submits that there is no evidence upon which the trial judge could have concluded that the complainant sustained her ear injury on November 14, 2013 and that there was no evidence that the appellant was guilty of dangerous driving.
[34] There was ample evidence in the complainant’s K.G.B. statement to support the appellant’s conviction for assault causing bodily harm. The complainant described punches to her head by the appellant and said that her eardrum was ruptured as a result. She did not remember the date but placed it as “around Christmas”. That is sufficient to sustain the conviction for assault causing bodily harm, despite the uncertainty surrounding the date that the assault occurred.
[35] However, in my view the appellant’s conviction for dangerous driving is unreasonable.
[36] Section 249(1)(a) of the Criminal Code, R.C.S. 1985, c. C-46, describes dangerous driving as operating a motor vehicle:
in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.
[37] In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 34, Cromwell J. said:
In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of [R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49], “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving”. [Emphasis in original.]
[38] The problem, in short, is that there is insufficient evidence concerning the manner of the appellant’s driving in this case. The only evidence came from the complainant’s K.G.B. statement, in which the complainant described attempting to drive away from the appellant in a stranger’s truck:
[T]he guy went to pull away and [the appellant] pulled up to the side and kept pulling over to the side and the guy was trying to leave and he kept going, trying to get him off the road.
[39] After the complainant left the stranger’s truck briefly, she returned to it and then left the scene with the stranger. The complainant said that the appellant kept following them, saying he was “calling the cops on the guy for taking his wife”.
[40] The complainant’s K.G.B. statement concerning the appellant’s driving is vague and is capable of supporting a number of possible interpretations. The appellant may well have intended to stop the complainant from driving off in the stranger’s truck, but that is not sufficient to support the trial judge’s finding that the accused was “using his motor vehicle as a weapon”.
[41] There was no evidence as to the way in which the appellant was driving or the context in which his driving occurred. For example, there was no evidence as to the speed at which the appellant was driving, the traffic conditions, the nature of the road or weather conditions, among other things that might properly be considered in determining whether, in all the circumstances, his driving was dangerous in the requisite sense.
[42] Accordingly, I would quash the appellant’s conviction for dangerous driving and enter an acquittal.
Disposition
[43] I would allow the appeal in part, quash the conviction for dangerous driving and enter an acquittal on that count. I would dismiss the appeal from the remaining convictions.
[44] As a result of this disposition, the sentence imposed on the dangerous driving count and the driving suspension are set aside. The other aspects of the sentence remain unchanged.
Released: April 11, 2016 “DW”
“Grant Huscroft J.A.”
“I agree David Watt J.A.”
“I agree P. Lauwers J.A.”
[^1]: The counts relating to unlawful confinement on February 14, 2014 were withdrawn. The trial judge’s reasons for judgement inadvertently refer to these counts, but the error was corrected in his reasons for sentence.