COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Short, 2020 ONCA 826

DATE: 20201218

DOCKET: C67591

Fairburn A.C.J.O., Watt and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Short

Appellant

Erin Dann and Sarah Weinberger, for the appellant

Manasvin Goswami, for the respondent

Heard: December 8, 2020 by video conference

On appeal from the conviction entered by Justice Misener of the Ontario Court of Justice, dated August 14, 2019.

REASONS FOR DECISION

[1] The appellant was convicted of aggravated assault. He appealed from conviction only. The appeal was dismissed with reasons to follow. These are those reasons.

[2] The appellant and complainant were married. There is no dispute that they attended a party together or that the complainant consumed a large amount of alcohol at that party. It is what happened after the party – specifically, how the complainant’s jaw became broken – that formed the subject of the trial.

[3] The appellant and complainant’s accounts as to how the injury was incurred differed wildly.

[4] The appellant testified that after the complainant vomited on the floor of the upstairs hallway, she fell down the stairs. He said that he and a friend of his had to pick her up and put her into bed. It was not until the next day that the appellant said that he appreciated how seriously she had been injured in the fall, after which he encouraged her to get medical attention.

[5] The complainant agreed that she was highly intoxicated when she returned from the party. She said that she vomited on the floor and then went to bed. She testified that she awoke to the appellant punching her in the face, while suggesting that she had been unfaithful to him. The complainant said that she knew how seriously injured she was, but that she delayed obtaining medical attention because she was, among other things, “ashamed”.

[6] The complainant testified that, prior to attending at the hospital, she and the appellant spent some time developing an elaborate lie that they could tell the children and medical professionals about how the injury was incurred. Together, they came up with the story about her falling down the stairs.

[7] Months after the broken jaw incident, the appellant and complainant’s marriage started to disintegrate. Almost a year after the incident, she reported the assault to the police.

[8] The trial judge gave lengthy reasons for judgment. While the trial judge expressed concerns about the complainant’s credibility and reliability, she ultimately found that the complainant was telling the truth on the core allegation involving the appellant having punched her in the face. The trial judge also rejected the appellant’s version of events as a fabrication.

[9] The appellant argues that the trial judge’s reasons reflect numerous errors. Most of the alleged errors relate to how the trial judge resolved credibility issues. The appellant takes issue with four of the trial judge’s reasons for accepting the complainant’s evidence about how her jaw became broken.

[10] First, the appellant argues that the trial judge engaged in unacceptable speculation when rejecting the suggestion that the complainant was injured during a fall down the stairs. In particular, the appellant focuses upon two of the reasons given by the trial judge for why she did not believe that the complainant fell down the stairs: (a) there was no blood on the stairs; and (b) the complainant did not suffer any injuries to her body, other than to her face. In the absence of expert evidence, the appellant argues that it was inappropriate for the trial judge to rely upon these factors to reject the fall theory.

[11] Considering the whole of the evidence, as the trial judge did, these were not findings upon which expert evidence was required.

[12] The photos of the complainant’s bed, taken by her a few hours after the injuries were incurred, showed a pooling of blood on the linen. It was not unreasonable for the trial judge to infer, in light of the amount she bled, as reflected by the blood-soaked linen, that there would have been blood on the stairs if the injury had occurred there. This is particularly true given how the appellant described the position of the complainant when he said he found her slumped on her side at the bottom of the stairs. There was a solid evidentiary foundation upon which to come to this conclusion.

[13] Nor was expert evidence required to draw inferences from the singular location of the complainant’s injury – her face. The impugned passage in the reasons reads:

Ms. Short had no injuries to any part of her body other than her lower face. I find it difficult to believe that she suffered no injuries to other parts of her body when she fell. I appreciate that she was significantly intoxicated so that she may not have reacted defensively when she fell. However, surely she would have hit some other part of her body at least causing soreness in a fall down the unfinished staircase. The only way for her to have fallen down the stairs and suffered the injuries she did and did not suffer was if she dove gracefully down the stairs leading with her chin. The physical evidence, therefore, does not support Mr. Short’s version.

[14] This remark did not require expert evidence. It reflects nothing more than a commonsense observation that, if someone falls down a staircase, it is likely that she or he will experience some soreness or injury to a location of the body other than only her or his face. Moreover, both parties asked the trial judge to draw inferences from the injuries and lack of injuries. Neither suggested that an expert was necessary to do so because the subject matter was not outside the ken of a layperson’s experience.

[15] Next, the appellant raises a concern about the trial judge’s use of the delay in seeking medical attention to support the complainant’s credibility. The trial judge noted how obviously serious the injury was at 5:00 a.m., when the complainant took a photo of herself. Yet medical attention was not sought until 10 hours later. We see no error in the trial judge’s conclusion that this delay in seeking medical attention, in the wake of such an obvious injury that cried out for medical attention, was consistent with the complainant’s version of events, that she and the appellant were involved in fabricating a story about what they would say happened.

[16] The appellant also raises concerns about the trial judge’s conclusions about whether the complainant’s bedroom door was locked. Having regard to the whole of the evidence, it was open for the trial judge to come to the conclusion she did and we see no inconsistency in her approach.

[17] This is equally true when it comes to the final piece of evidence that the appellant says was improperly used by the trial judge to support the complainant’s evidence. Once the marriage had dissolved and the parties had become embroiled in a heated custody dispute, the complainant sent a text message to the appellant, suggesting that he not punch his next partner’s “face until you break it” to which he responded “I won’t.” The trial judge used this as an admission on the appellant’s part, one that supported the complainant’s version of events.

[18] The appellant says that this admission was taken out of context by the trial judge and should have been considered against all of the appellant’s other text messages, suggesting a more benign picture.

[19] We see no error in the trial judge’s approach. The appellant’s position is essentially rooted in a desire to relitigate this case and have this court draw different inferences from the evidence than the trial judge did. The trial judge had a good command over the evidence. All of the inferences drawn by her were available on the record. We see no error.

[20] The appellant also claims that the trial judge erred in how she dealt with the complainant’s motive to fabricate. The trial judge accepted that the complainant had a “strong motive” to fabricate and that, in fact, she had threatened to “blow up the [appellant’s] world”, a threat made during the course of their heated separation and custody dispute.

[21] In our view, the trial judge grappled with that motive to fabricate, acknowledging that it existed. As was open to her to do, though, she rejected the suggestion that the complainant’s motive to fabricate caused her to in fact fabricate the core allegations. The trial judge gave detailed and careful reasons for why she believed the complainant’s core allegations. It was open to the trial judge to come to this conclusion. We see no error in her approach.

[22] For these reasons, the appeal was dismissed.

“Fairburn A.C.J.O.”

“David Watt J.A.”

“B. Zarnett J.A.”