COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2020 ONCA 632

DATE: 20201007

DOCKET: C58086

Lauwers, Huscroft and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Curtis Lee Smith

Appellant

Lindsay Daviau, for the appellant

Sean Horgan, for the respondent

Heard by videoconference: September 24, 2020

On appeal from the conviction entered on October 31, 2012 by Justice Hugh K. O’Connell of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of aggravated assault arising out of a fight he and his co-accused, Paul Gallant, were alleged to have started with several strangers on March 4, 2011. The appellant was found to have stabbed Enayat Thompson in the neck. The sole issue at trial was identity of the assailants.

[2] There was no eyewitness identification nor were the victims able to identify their assailants, apart from in-dock identification upon which the trial judge did not rely. The Crown’s case centred on the testimony of the appellant’s former girlfriend, Darlene McKoy, who testified that she overheard a conversation between the appellant and Gallant about the fight. Gallant gave a statement to the police and testified at trial. The appellant did not make a statement and did not testify at trial.

[3] McKoy testified that she received text messages from the appellant on the evening of the fight telling her that he had done something bad, that he was taking a cab home, and that he would tell her more when he arrived. She testified that, after the appellant arrived, he told her to wash his clothes. He then shaved his head and beard. He told her that someone had thrown a beer bottle and nearly hit him in the head, that Gallant had hit someone over the head, and that he had swung at someone with his pocketknife. McKoy testified, further, that the appellant said he jumped a fence, ran to the hospital, and then called the cab. Gallant arrived at the apartment later that evening. McKoy testified that she heard the appellant and Gallant talking about the fight. She said that she heard the appellant say he thought that he struck someone in the face and that Gallant said he had hit a man over the head with a pole.

[4] The appellant raises several grounds of appeal that focus on the trial judge’s treatment of McKoy’s evidence. In essence, the appellant renews the argument made before the trial judge that McKoy had a motive to fabricate and that her evidence was not credible: She was the appellant’s former girlfriend and the mother of his daughter. Shortly after the stabbing, she became involved in a custody battle with the appellant. The implication is that she concocted the story in order to buttress her custody claim.

[5] The appellant argues that the trial judge erred by finding that McKoy was credible on the basis that she did not embellish her evidence, in violation of this court’s recent decision in R. v. Alisaleh, 2020 ONCA 597. The appellant submits that the trial judge’s finding that she did not embellish her evidence taints his credibility finding and that it cannot stand as a result. We disagree.

[6] It is well established that the fact that a witness does not embellish her testimony does not enhance her credibility. But it is also well established that the mere mention of the absence of embellishment does not undermine a credibility finding that is otherwise properly supported. These points are made clear in Alisaleh, at paras. 16-17, a case in which the Crown conceded that the trial judge had improperly relied on a witness’s lack of embellishment as an “important” factor to “enhance” her credibility, a concession this court accepted.

[7] This is not a case in which a witness’s lack of embellishment was relied on or used as a “makeweight” to establish or enhance credibility: see R. v. Kiss, 2018 ONCA 184, 145 W.C.B. (2d) 666, at para. 53. It was not inappropriate for the trial judge to note that McKoy had not embellished her evidence in the context of addressing the appellant’s claim that she was merely reiterating press reports or that her testimony was led.

[8] Nor did the trial judge err by considering McKoy’s testimonial demeanour. His credibility findings were not based on her demeanour; he simply referred to her candour and essential innocence in the manner she gave evidence. He cautioned himself not to rely on demeanour in determining the truth and stated specifically that he was not doing so.

[9] Ultimately, the trial judge accepted that McKoy had a motive to go to the police but not a motive to fabricate her evidence. He found that she was credible after considering her evidence in the context of the evidence as a whole.

[10] The trial judge did not use Gallant’s evidence impermissibly in finding that McKoy’s evidence was corroborated. He was aware of the limitations on the use of Gallant’s out-of-court police statement. He specifically stated that he had not used anything in the statement as direct evidence against the appellant or to corroborate McKoy’s testimony. However, the trial judge was not prohibited from using Gallant’s evidence at trial to corroborate McKoy’s evidence and his treatment of this evidence comports with the approach set out by this court in R. v. Riley, 2017 ONCA 650, 137 O.R. (3d) 1, leave to appeal refused, [2018] S.C.C.A. No. 216, [2019] S.C.C.A. No. 412.

[11] The trial judge did not reject Gallant’s evidence in its entirety, such that he was precluded from relying on some of the details of that evidence to corroborate McKoy’s evidence. He rejected Gallant’s alibi evidence, finding that his claim that his police statement concerned a different, earlier, fight was implausible and contrived. But he was entitled to use elements of Gallant’s testimony at trial to find that there had been a fight, that the appellant was present, and that beer bottles were thrown. McKoy’s evidence was also corroborated by the cab dispatch records and phone records.

[12] In summary, we are satisfied that the trial judge was alive to the issues concerning McKoy’s testimony, including her pending custody dispute with the appellant as well as her having read press reports – both of which she acknowledged. He fully and fairly considered the evidence, including the evidence on reopening, in determining that she was credible. His decision reveals no error and is entitled to deference.

[13] Finally, we are satisfied that the trial judge properly considered the evidence as a whole and did not shift the burden to the appellant. He did not err in finding that the charge had been proven beyond a reasonable doubt.

[14] The appeal is dismissed.

“P. Lauwers J.A.”

“Grant Huscroft J.A.”

“Harvison Young J.A.”