Her Majesty the Queen v. Sliwka
[Indexed as: R. v. Sliwka]
Ontario Reports
Court of Appeal for Ontario
Doherty, MacFarland and Paciocco JJ.A.
May 25, 2017
138 O.R. (3d) 473 | 2017 ONCA 426
Case Summary
Criminal law — Trial — Reasons for judgment — Sufficiency
Trial judge acquitting accused on eight charges arising from alleged physical and sexual abuse of complainant. Trial judge's brief reasons stating simply that she did not accept all of accused's evidence but that totality of evidence left her with reasonable doubt. Judge stating detailed reasons would be released later but none appeared despite repeated requests by counsel. Trial judge not addressing serious inconsistencies between accused's and complainant's evidence or conflicts between accused's evidence and evidence of investigating officers. Reasons not explaining trial judge's decision and not amenable to appellate review. Crown's appeal allowed.
Police officers went to the complainant's apartment in response to her 911 call. They found her wearing sunglasses and with a hood over her head. When she stepped outside and removed the sunglasses, it was obvious that she had been badly beaten. The accused followed the complainant into the hallway, told her to be quiet and tried to follow her into the elevator. Once in the elevator with the police, the complainant told them that the accused had beaten her. The accused was charged with three offences relating to the alleged attack which led to the 911 call and five offences arising from his alleged previous physical and sexual abuse of the complainant. He testified at trial, denied ever assaulting the complainant, and claimed to believe that her injuries were inflicted by an unknown intruder who broke into the apartment two days before the 911 call. The accused denied that the complainant was wearing sunglasses or a hood when the police arrived. The trial judge acquitted the accused on all charges. She stated that, while she did not accept all of the accused's evidence, in the context of all of the other evidence before her, she was not satisfied beyond a reasonable doubt that he was guilty of any of the charges. She stated that detailed written reasons would be released, but no written reasons ever appeared despite repeated statements by her assistant that "comprehensive reasons" would soon be released. The Crown appealed.
Held, the appeal should be allowed.
A trial judge's duty to give reasons applies to both convictions and acquittals. The trial judge's reasons did not explain her decision or expose it to proper appellate review. She did not address the serious contradictions between the complainant's evidence and the accused's evidence. Nor did she examine the conflicts between the police officers' evidence and the accused's evidence. She did not identify any specific part of the evidence, or gap in the evidence, upon which she based her conclusion that the Crown had failed to prove any of the counts beyond a reasonable doubt. This was not a case in which the trial record as a whole revealed the basis upon which the acquittals were entered and allowed for a meaningful appeal. The acquittals were quashed and a new trial was ordered.
Cases Considered
Other Cases Referred To
Parties and Counsel
APPEAL by the Crown from the acquittals entered by S.R. Goodman J. of the Superior Court of Justice on March 11, 2016.
Karen Shai, for appellant.
Dirk Derstine, for respondent.
Decision
BY THE COURT:
I. Introduction
[1] The respondent was charged with several very serious assaults. On the evidence of the complainant, A.C., the respondent repeatedly, viciously physically and sexually assaulted her over many months when A.C. lived with the respondent. The respondent testified and denied all of the assaults. There was a nine-day trial before a judge, sitting without a jury. The trial judge acquitted the respondent on all charges.
[2] The Crown appeals, claiming that the trial judge gave no reasons for the acquittals and that her failure to give reasons constitutes reversible error in law. We agree.
II. Facts
[3] On the evening of March 1, 2014, A.C., who is Polish and speaks very little English, called 911 from the respondent's apartment. She was in obvious distress. For reasons beyond their control, the officers took about 50 minutes to get to the apartment. One of the officers spoke Polish. They knocked on the door for ten to 15 minutes before anyone answered. The officers could hear two people inside speaking Polish.
[4] A.C. eventually opened the door. She was wearing sunglasses and a hood over her head. The Polish speaking officer convinced her to step outside and remove her sunglasses. He was horrified by what he saw. A.C. had obviously been badly beaten and needed immediate medical assistance.
[5] The respondent followed A.C. into the hallway. He told her to be quiet and then tried to follow A.C. and the police into the elevator. The officers would not let the respondent into the elevator. Once A.C. was in the elevator with the police, she told them the respondent had beaten her.
[6] A.C. was taken to the hospital and treated for extensive injuries, including severe bruising, swelling, numerous cuts and bleeding to her face and head.
[7] The police laid eight charges against the respondent. Counts one to three related to the respondent's alleged attack on A.C. shortly before the 911 call on March 1, 2014. The other five charges alleged physical and sexual assaults in 2013 or early 2014.
[8] The trial proceeded in February 2016. A.C. described the abusive nature of the relationship she had with the respondent. She described numerous assaults, including two with a knife.
[9] A.C. testified that, on March 1, 2014, the respondent arrived home from work around 4:00 p.m. A.C. was in bed. They argued and eventually the respondent attacked her as he had many times in the past. A.C. testified that the respondent punched her in the face several times and struck her repeatedly in various parts of her body with a mop stick. He called her names as he beat her. A.C. indicated that she was covered in blood and the respondent put her in the bathtub to clean her up. He then took her into the bedroom and forced her to have sexual intercourse with him. The bed sheets were covered in blood. The respondent put the sheets in a tub full of water. Eventually, A.C. worked up the courage to call 911. The police arrived some time later.
[10] In his evidence, the respondent denied ever assaulting A.C. He indicated that he had known her for some time, but denied that they lived together. He referred to A.C. as an alcoholic who sometimes fell and hurt herself when she was drunk.
[11] The respondent testified that A.C. showed up at his apartment about three days before March 1, 2014. He described her as falling down drunk. On one occasion, she hit her head and was bleeding from the forehead. The respondent wiped the blood away and told her she could stay for the night.
[12] The respondent testified that when he arrived home the next day, now about two days before March 1, he found his apartment in disarray and apparently ransacked. A.C. was asleep in the bedroom. The respondent did not check on A.C., but instead slept on the floor. The next day he noticed that A.C. was covered in blood and bruises. She told him she had tripped. The respondent offered to take A.C. to the doctor, but she declined.
[13] The respondent testified that on March 1, the day of the 911 call, the respondent arrived home to find A.C. asleep. He noticed that the bed sheets were wet. The respondent tried to wake A.C. so that he could change the wet bed sheets. She begged for a drink. The respondent cleaned her up and they fell asleep together in the bed. They awoke to the sound of the police knocking on the door.
[14] The respondent testified that, about two days before the 911 call, he noticed that A.C. had very significant injuries. The respondent believed, based upon A.C.'s injuries and the ransacking of his apartment, that some unknown intruder had broken into the apartment, tore it apart and attacked A.C. The respondent indicated that it did not occur to him to call the police or do anything else about the apparent home invasion and assault of A.C.
[15] The respondent contradicted significant parts of the evidence given by the police officers who attended at the apartment in response to the 911 call. For example, he testified that A.C. was not wearing sunglasses or a hood when she answered the door. He said he was wearing pants during the interaction with the police; two of the officers said he was wearing Speedo shorts. Contrary to Officer Chahal's testimony, the respondent denied blowing kisses to A.C. in the hallway.
III. The Trial Judge's Reasons
[16] The evidence and arguments were completed on March 1, 2016. The trial judge adjourned to March 11, 2016 for judgment.
[17] On March 11, 2016, the trial judge acquitted the respondent on all charges. After briefly outlining the charges and the events of March 1, 2014, and noting that she had adjourned the matter to consider the evidence and the submissions, the trial judge said:
I have now had full opportunity to carefully consider the matter and to arrive at a decision on all of the counts. My detailed written reasons will be released on Monday, March 14th, 2016.
[18] The trial judge further stated that her acquittals should not be taken as an acceptance of the respondent's version of events, or an outright rejection of the complainant's version. She said:
I certainly do not accept all of [the accused's] evidence as true, but in the context of all of the other evidence before me, including but not limited to that of [the complainant], I am not satisfied beyond a reasonable doubt that he is guilty of any of the charges.
[19] The Crown commenced an appeal from the acquittals. The trial judge did not release "detailed written reasons" on March 14, 2016. Between April and September 2016, Crown counsel made repeated inquiries through the trial judge's assistant. Presumably acting on instructions from the trial judge, her assistant repeatedly advised the Crown that "comprehensive reasons" would be available on the date specified by the assistant. Each of those dates came and went. No reasons appeared.
[20] Finally, in September 2016, Crown counsel wrote directly to the trial judge, summarizing the efforts to obtain the reasons. Crown counsel advised the trial judge that, as no reasons had been produced, the Crown would argue that the appeal should proceed on the basis that no further reasons for judgment existed. In taking that position, the Crown no doubt had in mind the principles in R. v. Teskey, 2007 SCC 25.
[21] The trial judge did not respond to Crown counsel's letter. As of the argument of the appeal on May 9, 2017, no further reasons for judgment had been produced by the trial judge.
IV. Arguments on Appeal
[22] The Crown submits that there are no reasons for judgment in this case and that the failure to provide reasons for the acquittals amounts to an error in law, requiring the quashing of the acquittals and the order of a new trial on all counts. Crown counsel contends that the brief comments by the trial judge on March 11, 2016 reveal her decision, but do not constitute reasons for that decision. Crown counsel maintains that the trial judge's promise of detailed reasons is an acknowledgment, on her part, that her brief comments on March 11, 2016 were never intended as an adequate explanation of her acquittal of the respondent on all counts.
[23] Counsel for the respondent submits that the trial judge's comments on March 11, 2016, while brief and arguably less than can reasonably be expected from a trial judge, adequately explained the trial judge's reasons for acquitting the respondent. Counsel argues that the reasons can be properly subject to meaningful appeal by the Crown. Alternatively, counsel submits that, even if the reasons are deficient, a review of the trial record adequately reveals the basis upon which the trial judge acquitted. Counsel refers in some detail to the evidence and what he submits are significant inadequacies and deficiencies in the evidence of A.C. On this argument, the basis for the trial judge's reasonable doubt is evident from a perusal of A.C.'s evidence.
V. Analysis
A. The Duty to Give Reasons
[24] Trial judges must give reasons for their verdicts. Reasons that explain to the parties and the public the result arrived at by the trial judge are crucial to maintaining the proper level of transparency and accountability essential to the maintenance of the integrity of the trial process and public confidence in that process. Reasons for judgment allow the parties to know that their claims have been heard, understood and adjudicated upon in an objective and reasonable fashion that accords with the applicable legal principles: see R. v. Sheppard, 2002 SCC 26, at paras. 15, 22, 24.
[25] On an appeal based on the trial judge's failure to give reasons, the appellate court measures the adequacy of the reasons against the requirement that the reasons permit meaningful appellate review of the trial decision. If the reasons serve that function, any shortcomings from a due administration of justice perspective do not justify appellate intervention. However, reasons that frustrate meaningful appellate review constitute an error in law. That error requires the quashing of the verdict unless the trial record as a whole permits effective appellate review of the verdict: see Sheppard, at paras. 25-33, 46.
[26] R. v. Walker, 2008 SCC 34, at paras. 2, 19, makes the point that the trial judge's duty to give reasons applies to both convictions and acquittals: see, also, R. v. Kendall, 75 O.R. (3d) 565, leave to appeal to S.C.C. refused. Walker also holds that a functional inquiry is necessary when assessing the adequacy of a trial judge's reasons. That inquiry is driven in part by the scope of the appeal permitted and the nature of the decision under appeal.
[27] Reasons that may adequately explain why a judge had a reasonable doubt may be inadequate to explain why a judge was satisfied beyond a reasonable doubt. Similarly, reasons may be adequate if an appeal from those reasons is limited to a question of law, as in the case of Crown appeals from acquittals, but may be inadequate if the appeal extends to questions of fact, as in the case of appeals from convictions: R. v. Walker, at paras. 21-22.
B. Application to This Case
[28] This appeal comes down to whether the trial judge's comments on March 11, 2016 provide a meaningful basis for appellate review of the acquittals. In those comments, the trial judge demonstrated a proper appreciation of the burden of proof and the reasonable doubt standard. She made it clear that the acquittals flowed from an application of the reasonable doubt standard to the totality of the evidence. She also indicated that she neither accepted, nor rejected, the entirety of the evidence of A.C. or the respondent.
[29] The trial judge's comments on March 11, 2016 do not analyze any part of the evidence. The trial judge does not address the serious contradictions between A.C.'s evidence and the respondent's evidence. Nor does she examine the conflicts between the police officers' evidence and the respondent's evidence. The trial judge does not identify any specific part or parts of A.C.'s evidence that troubled her and adversely affected A.C.'s credibility. Nor does the trial judge refer to any specific part of the respondent's evidence in her brief comments. Specifically, she says nothing about the respondent's "intruder" explanation for the serious beating A.C. received some time shortly before the police saw her. Absent any analysis or explanation by the trial judge, it is difficult to understand how the "intruder" explanation had any credibility.
[30] We agree with Crown counsel that the March 11 comments are the "bottom line" or decision of the trial judge. They are not reasons that in any way explain that decision or expose it to proper appellate review: see R. v. Frost, 2010 ONCA 494, at para. 1.
[31] Counsel for the respondent relies on Walker in support of the submission that the trial judge's comments did provide adequate reasons. However, unlike the trial judge in Walker, this trial judge did not identify any specific part of the evidence, or gap in the evidence upon which she based her conclusion that the Crown had failed to prove any of the counts beyond a reasonable doubt: see Walker, at paras. 24-26.
[32] The trial judge did not address each of the eight counts separately. The absence of any explanation for the acquittals on counts one to three, relating to the alleged attack on March 1, 2014, is particularly troubling. In her brief comments, the trial judge acknowledged that A.C. had been "assaulted and wounded" on, or within a few days before, March 1. The identity of her assailant was the only issue. On the unchallenged evidence, that assault occurred in the respondent's apartment.
[33] The trial judge also indicated in her brief comments on March 11 that she found the police officers to be honest witnesses. On their evidence, A.C. was terrified and had been badly beaten when she appeared at the door of the respondent's apartment. She attempted to hide her injuries from the police and obviously did not want to speak to the police. She only told the police what had happened after they managed to move her away from the respondent and get her into the elevator. On the officers' evidence, the respondent attempted to interfere with the police officers' conversation with A.C.
[34] The officers' evidence offered significant support for A.C.'s allegations, at least as they related to the March 1 alleged assaults. Unfortunately, we have no idea what the trial judge did with the police officers' evidence.
[35] The police officers' evidence was important in a second respect. Their evidence was inconsistent with the respondent's testimony in several ways. The silence of the trial judge about these inconsistencies begs the question -- given that the trial judge found the officers to be honest witnesses, what did she make of the flat-out contradictory evidence given by the respondent?
[36] There is no way of knowing how the trial judge arrived at her verdicts. Without any semblance of a road map to those verdicts, the Crown's right of appeal from the acquittals is rendered illusory.
[37] This is not a case in which the trial record as a whole reveals the basis upon which the acquittals were entered and allows for a meaningful appeal. Counsel for the respondent has gone through A.C.'s evidence very carefully. There are clearly problems with parts of her evidence. Counsel's submissions go only so far as to demonstrate the need for careful reasons in this case. Unfortunately, the trial judge gave none.
VI. Conclusion
[38] The appeal is allowed, the acquittals are quashed and a new trial is ordered on all counts.
Postscript
[39] Our order directing a new trial is a terrible result for everyone involved in this proceeding. The trial judge's failure to give reasons, despite her repeated promises to do so, has frustrated the proper administration of justice. Nor is this the first time that this trial judge's failure to provide reasons has required this court to order a new trial. It must be the last time.
Appeal allowed.
End of Document
