COURT OF APPEAL FOR ONTARIO DATE: 20210429 DOCKET: C66406 & C66665

Tulloch, Paciocco and Harvison Young JJ.A.

DOCKET: C66406

BETWEEN

Her Majesty the Queen Respondent

and

Joshua Powell Appellant

DOCKET: C66665

AND BETWEEN

Her Majesty the Queen Respondent

and

Jordan Powell Appellant

Counsel: Jon Doody, for the appellant Joshua Powell Fady Mansour and Vanessa Garcia, for the appellant Jordan Powell Tanya M. Kranjc, for the respondent

Heard: in writing

On appeal from the conviction entered on April 19, 2018 and the sentence imposed on December 20, 2018 by Justice Richard T. Knott of the Ontario Court of Justice (C66406).

On appeal from the conviction entered on April 19, 2018 and the sentence imposed on February 20, 2019 by Justice Richard T. Knott of the Ontario Court of Justice (C66665).

Tulloch J.A.:

A. Introduction

[1] The appellants are brothers. On August 12, 2016, they attended a gathering at a friend’s house in North Grenville, Ontario. At some point during the night, someone knocked over a beer bottle, causing a fight to break out. In the physical altercation that followed, the Crown alleged that four individuals – Jordan and Joshua Powell (the two appellants), as well as Bradley Fumerton, and Quincy O’Shea – collectively assaulted Quinn Millson. Quinn suffered serious bodily harm as a result, including a skull fracture. The Crown also alleged that Jordan and Quincy damaged Quinn’s vehicle after the altercation.

[2] There was no dispute that Quinn sustained severe bodily injuries from the assault and that his vehicle was subsequently damaged. Rather, the only issue at trial was who caused the injuries and the damage to Quinn’s car.

[3] The trial judge convicted Joshua, Jordan, Bradley and Quincy of assault causing bodily harm, contrary to s. 267(b) of the Criminal Code, R.S.C., 1985 c. C-46. He also found Jordan and Quincy guilty of mischief for damaging Quinn’s car, contrary to s. 430(4) of the Criminal Code. Lastly, he convicted Joshua of failure to comply with his probation order, contrary to s. 733.1(1) of the Criminal Code.

[4] Both appellants were sentenced separately. Jordan was sentenced on February 20, 2019 to 60 days intermittent custody followed by 3 years probation. Joshua was sentenced on December 20, 2018 to seven months custody, followed by three years probation. Both Jordan and Joshua initially filed notices of appeal for both conviction and sentence. Joshua has since abandoned his sentence appeal. Jordan, however, has not.

[5] Joshua and Jordan appeal their convictions on five grounds. They argue:

1. the trial judge entered unreasonable verdicts because the evidence tendered at trial was unable to support their convictions;
2. the trial judge misunderstood the mens rea for assault causing bodily harm;
3. the trial judge provided insufficient reasons for the assault convictions;
4. the trial judge erred in relying on his disbelief in the appellants’ exculpatory statements to ground a finding of guilt; and
5. the trial judge erred in rejecting the testimony of Zachary Powell (the appellants’ cousin) on the basis of bias when this was not raised by either party.

[6] For the following reasons, I would dismiss both conviction appeals.

B. Overview of the Facts

[7] As noted above, the events took place at a small house party in rural Ontario, on August 12, 2016. Five people who attended the party testified at trial: Quinn (the victim), Kayla Boisvert, Ben Huton, Zachary Powell, and Lindsay Fumerton. Each gave their own account of how the altercation arose and who was involved. Accordingly, the following sections summarize the narrative of each witness with respect to the events that unfolded.

(i) Quinn Millson’s Evidence

[8] The incident started as a friendly debate with Samuel Huton over a beer bottle that had been knocked over. Quinn was thinking about leaving the party when this debate arose. Samuel and Quinn were still going back and forth when Quinn approached his girlfriend, Kayla. She was standing with Vicky Holland-Dube, Joshua’s girlfriend. Vicky told him to stop yelling and calm down. Quinn tried to reassure her that he was not fighting with Samuel – they were having a friendly discussion. Vicky stepped towards Quinn and told him to get out of her face.

[9] Bradley and Jordan stepped forward and joined the conversation, in support of Vicky. As Quinn stepped back to leave the garage, Joshua blocked his exit. Joshua grabbed Quinn’s shirt and demanded that he apologize to Vicky otherwise he would suffer “some sort of repercussion.” Bradley stepped forward and grabbed Quinn’s shirt as well. Quinn tried to de-escalate the situation when Joshua punched him in the face. A second punch by Bradley soon followed. Quinn turned around and covered his face. He was hit in the back of the head and then pulled to the ground. Bradley and Joshua went down to the ground with him.

[10] Quinn saw Jordan and Quincy come towards him and join in with the other two. By that point, Quinn described the altercation as “a melee of getting punched and kicked and stomped on.” When Quinn looked up, he saw the four of them – Joshua, Jordan, Bradley, and Quincy – towering over him. Eventually, he managed to make his way to his car. He went inside the vehicle and waited for his girlfriend so that he could leave the party. As he waited, he saw Jordan and Quincy banging on the hood of his car.

(ii) Kayla’s Boisvert’s Evidence

[11] Kayla, Quinn’s girlfriend, spoke to police following the incident and provided a videotaped statement on August 21, 2016. She also testified at trial. Kayla saw Bradley punch Quinn. She identified Jordan, Joshua, and Quincy as being on top of Quinn, kicking and punching him. She attempted to pull the men off Quinn but was thrown to the floor. She was eventually picked up from behind and pulled outside the garage. Upset by what she witnessed, she went into the house and vomited. She heard that Quinn was leaving, so she went looking for his car. She then saw Jordan and Quincy banging on the hood of Quinn’s car. Quinn was sitting inside the car, waiting for her. He had a bloodied face.

(iii) Ben Huton’s Evidence

[12] Ben testified that he and his brother, Samuel, got into a discussion with Quinn regarding a broken beer bottle. Quinn was standing closest to the broken bottle, and Ben and Samuel told him to clean it up. Quinn expressed a desire to leave. He went over to where Kayla and Vicky were standing. Ben then saw Joshua engage with Quinn. When Quinn refused to apologize to Vicky, Joshua pushed Quinn. He then saw Joshua swing at Quinn; he was uncertain whether he actually made contact. He also thought he saw Bradley and Jordan push and swing at Quinn a couple of times. Quinn was suddenly on the ground, and “there was just, kind of, a melee of people everywhere.”

(iv) Zachary Powell’s Evidence

[13] Zachary, the appellants’ cousin, testified that he went outside after the fight had started. He saw Quincy on top of Quinn and believed there were others on top of him. He did not see Jordan nor Joshua in the pile of people. The fight was broken up, and he saw Quinn leave to his car. He began to follow Quinn, but Jordan intercepted him and led him inside. He observed Jordan searching for ice; his hand was slightly swollen.

(v) Lindsay Fumerton’s Evidence

[14] Lindsay, Bradley’s sister, testified that she heard an argument involving Bradley, Joshua and Quinn. She later saw six or seven people in a circle, including: Bradley, Joshua, Quinn, and possibly Jordan and Quincy. She could not say what the people were doing. She followed Kayla inside when Kayla indicated that she felt sick. She observed Jordan icing his hand.

(vi) The Appellants’ Police Statements

[15] The Crown also admitted the police interviews of Jordan and Joshua. In his statement, Jordan claimed that he was not involved in the altercation. His only role was to pull Vicky out of the commotion. He did admit that he threw one punch after he saw someone hit his cousin, Zachary. He said he missed and a hit a van, hurting his hand. He denied damaging Quinn’s car.

[16] In his statement, Joshua admitted that he got in a verbal disagreement with Quinn after he witnessed Quinn acting aggressively towards his girlfriend, Vicky. He said that Quinn pushed him and when Bradley got involved, he was pushed back. He stated that he stood and watched as the fight unfolded. He pulled people off Quinn and told him to leave.

(vii) Defence Evidence

[17] None of the accused testified at trial and the defence called no evidence.

C. Decision Below

[18] The trial judge concluded that this could not be a consensual fight, given the extent of the injuries. He further noted that there was no evidence of self-defence or defence of person or property, as all the accused denied involvement in the altercation. The trial judge convicted the appellants without evidence that they had directly caused Quinn’s injuries. He convicted them based on their participation in a group assault in which Quinn suffered bodily harm. He cited R. v. Wood, [1989] 51 C.C.C. (3d) 201, at p. 220, (Ont. C.A.), for the following proposition:

Where evidence of concerted action in the commission of the offence exists, as in the present case, then it is open to a jury to convict all of the accused either as principals, under s. 229(a), or as aiders or abettors, pursuant to s. 21 of the Code, even though the extent of the individual participation in the violence is unclear.

Accordingly, the trial judge observed that “[i]f a person participated in the melee, I will find them guilty of assault causing bodily harm.”

[19] With respect to the witnesses’ testimony, the trial judge stated that Quinn’s evidence in chief was straightforward and clear. Quinn identified all the co-accused as participating in the attack. However, after a “withering cross-examination", Quinn’s testimony was less clear. The trial judge made the following observation: “Were [Quinn] the only witness in this matter, I am not certain I could find a conviction on his evidence alone, due to his unreliability. He was credible, but parts of his evidence was unreliable.”

[20] The trial judge noted that Kayla was not a witness to the entire altercation, as she left the area to vomit. However, he found her credible and reliable. Kayla’s testimony confirmed that all the accused were involved in the altercation. He accepted her evidence that Bradley punched Quinn and that there was a pile of people on Quinn, including Joshua, Jordan, Quincy, and Bradley. He also accepted her evidence that it was Jordan and Quincy who were damaging Quinn’s vehicle.

[21] The trial judge also appeared to accept the evidence of Ben and Lindsay. Ben confirmed that Joshua, Jordan, and Bradley were involved in a violent altercation. Lindsay saw Bradley, Joshua, Jordan, Quincy and Quinn in a circle around the time of the altercation.

[22] The trial judge rejected the evidence of Zachary because he did not view him as an independent witness. As noted above, Zachary is the appellants’ cousin. He is also friends with the other accused. He had testified that he did not see his cousins participate in the fight.

[23] The trial judge rejected the exculpatory statements that Jordan and Joshua made to police.

[24] With respect to Joshua Powell’s statement, the trial judge noted that his denial of any involvement was inconsistent with the other witnesses’ evidence. Joshua’s evidence provided significant detail about the argument leading up to the altercation, yet it provided no details about the fight that supposedly occurred right in front of him. While recognizing that an accused has the absolute right to remain silent, the trial judge observed that “if you choose to make a statement to police, then you must try to be accurate and tell the truth to the best of your ability.” He noted that “[Joshua’s] denial of any involvement in the altercation is rejected and does not raise a reasonable doubt in my mind.” The trial judge concluded that Joshua was “involved in the melee as one of the principal actors.”

[25] The trial judge also rejected the evidence of Jordan. Similar to his brother, Jordan made a statement but provided no details as to what went on in the fight. The trial judge rejected Jordan’s excuse for needing ice for his hand after the fight. As noted above, Jordan had admitted that he took a swing but missed and hit a van. However, the trial judge noted that no one saw him punch a van. Rather, witnesses saw him involved in the fight and then attacking Quinn’s car.

[26] The evidence against Quincy and Bradley was also clear. They had participated in the altercation.

[27] With respect to the car, Quinn and Kayla’s evidence was clear that Quincy and Jordan were the ones who intentionally damaged it.

[28] As noted above, all four co-accused – Joshua, Jordan, Bradley and Quincy – were convicted of assault causing bodily harm. Joshua was also convicted of a breach of probation as a result of his assault conviction. Jordan and Quincy were convicted of mischief.

D. Issues on Appeal

[29] The appellants challenge their convictions on five grounds:

1. the verdict was unreasonable as there was insufficient evidence to ground convictions on the assault count;
2. the trial judge misunderstood the mens rea for assault causing bodily harm;
3. the trial judge’s reasons were deficient;
4. the trial judge erred by grounding a finding of guilt in his disbelief of the appellants’ exculpatory statements to the police; and
5. the trial judge erred by rejecting Zachary Powell’s evidence on the basis of bias when the Crown did not impeach his credibility, contrary to the rule in Browne v. Dunn (1893), 6 R. 87 (H.L.) (Eng.).

E. Analysis

(i) The Verdict Was Reasonable

[30] For an appellate court to conclude that a verdict is unreasonable, it must either:

1. determine that the verdict is one that a properly instructed jury or judge could not reasonably have rendered; or
2. determine that the trial judge drew an inference or made a finding of fact essential to the verdict that (a) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or (b) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9.

[31] This standard requires an appellate court to re-examine, and to some extent, re-weigh evidence and consider the effect of that evidence: Villaroman, at para. 55; R. v. W.(R.), 1992 SCC 56, [1992] 2 S.C.R. 122, at p. 131; R. v. Yebes, 1987 SCC 17, [1987] 2 S.C.R. 168, at p. 186. Where the verdict is not unreasonable, an appellate court will not interfere with a trial judge’s factual findings unless the trial judge has committed a palpable and overriding error in making those findings: R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9.

[32] Each of the appellants argue that the verdicts finding them guilty of assault causing bodily harm were unreasonable. Both appellants submit that the evidence relied upon by the trial judge could do no more than place them in the pile of people. More was needed to ground findings of guilt on the assault counts.

[33] For his part, Jordan submits that no witnesses said that he punched or kicked Quinn. Rather, according to Jordan, the evidence only placed him at the scene of the altercation. He argues that, absent a finding of fact about the role he played in the assault, the verdict was unreasonable.

[34] Joshua argues that there was insufficient evidence to support a finding that he assaulted Quinn. Although Quinn testified that Joshua punched him, the trial judge made the following observation qualifying the extent to which he could rely upon Quinn’s evidence:

Were [Quinn] the only witness in this matter, I am not certain I could found a conviction on his evidence alone, due to his unreliability. He was credible, but parts of his evidence was unreliable.

[35] Joshua also submits that the evidence of Ben, Kayla, and Lindsay do not support the trial judge’s findings. In particular, while Ben testified that he saw Joshua throw a punch, he could not say with certainty that Joshua made contact. Additionally, both Kayla and Lindsay testified that Joshua was involved in the altercation, but neither provided any specific details about his participation. According to Joshua, since the trial judge made no finding of fact about whether he did in fact punch Quinn, there was insufficient evidence about his involvement in the assault.

[36] The respondent submits that the verdict was reasonable and founded in the evidence. The trial judge was entitled to make reasonable inferences on the basis of compelling evidence about who was actively involved in the assault against Quinn, and these inferences should be afforded deference on appeal. Moreover, the findings of guilt were well founded on the evidence of multiple witnesses.

[37] I would not give any effect to this ground of appeal. As indicated, the appellants bear a very heavy burden in seeking to displace a verdict on the basis that it was unreasonable. The direct evidence at trial implicating both appellants in the assault was overwhelming.

[38] Quinn, the victim of the assault, identified Joshua as first blocking him from exiting the garage, then grabbing him by the shirt, and punching him in the face, after which he fell to the ground. Quinn saw Jordan come towards him and join in on the assault against him. Quinn described being kicked, stomped, and punched while on the ground by all four assailants, including both appellants. He specifically identified both appellants as being involved in the melee. Quinn also testified that he clearly saw Jordan and Quincy banging on the hood of his car.

[39] The trial judge noted that while Quinn’s evidence was credible, portions were not reliable. As such, the trial judge correctly looked for other corroborative evidence to satisfy him beyond a reasonable doubt of the veracity of the material portions of Quinn’s evidence.

[40] There was an abundance of evidence at trial that substantiated Quinn’s version of events. In her evidence, Kayla identified both appellants as being on top of Quinn when he was on the ground. She observed Jordan and Joshua punching and kicking him. She also observed Jordan and Quincy banging on the hood of Quinn’s car. The trial judge found her evidence credible and consistent. Additionally, Ben testified that he saw Joshua push Quinn at the start of the assault. As well, Ben testified that he saw Joshua push and swing at Quinn. He was “fairly certain” that Joshua hit him in the head. He also noted that, subsequently, Jordan and Bradley swung at Quinn “a couple of times”, but was unsure if they hit him. Finally, both Zachary and Lindsay testified that they observed Jordan icing his hand, which was slightly swollen. The trial judge was entitled to accept some, none, or all, of each witnesses’ evidence.

[41] It is clear from the trial judge’s reasons that he considered all the evidence. In light of the evidence and all available inferences, it was certainly open to the trial judge to make the findings that he did, including that both appellants were active participants in the group assault, resulting in bodily harm to Quinn.

[42] In his supplementary factum, Jordan also argues that his police statement, which contained an exculpatory version of events (namely, admitting to being part of the altercation but only throwing a punch in defence of his cousin), was entirely consistent with the evidence of all Crown witnesses. According to Jordan, it follows that there remained a reasonable doubt as to his guilt.

[43] I do not agree. The trial judge’s findings of fact are entitled to deference, unless the appellant can establish that he has committed a palpable and overriding error. I see no error in the trial judge’s findings of fact that warrants judicial interference. As indicated, it was open to the trial judge to accept some, none, or all of a witnesses’ evidence, including Jordan’s evidence that he injured his hand by striking a van, as opposed to injuring it when he was striking Quinn during the assault.

[44] I am satisfied that the verdicts were reasonable. I would dismiss this ground of appeal.

(ii) Did the Trial Judge Err in His Understanding of the Mens Rea for Assault Causing Bodily Harm?

[45] While the appellants do not explicitly argue this issue as a separate ground of appeal, they include this issue as an argument within their submissions on the reasonableness of the verdict. The appellants argue that the trial judge erred in his self-instruction on the mens rea required for assault causing bodily harm. The appellants point to the trial judge’s reasons, which state: “If a person participated in the melee [that caused the injuries to Quinn], I will find them guilty of assault causing bodily harm.” The appellant says this is an incorrect statement of the law, as the crime charged required both participating in the melee and an intention to participate.

[46] I would not give effect to this ground of appeal. The trial judge’s reasons, when read as a whole, suggest that he understood the requisite elements of the offence that the Crown had to prove beyond a reasonable doubt.

[47] Technically, the appellants are correct that mere participation in a melee in which the complainant suffered bodily harm will not support a conviction of assault causing bodily harm unless the accused person had the requisite mens rea. The accused person’s own act of participation must be intentional as opposed to accidental. Moreover, before he can be held responsible for bodily harm that may have been caused by another person involved in the group assault, it must be found that the accused knew that the others were engaging in an assault, and intended to assist in that assault: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 16-17. In the specific circumstances of this case, there was no need for the trial judge to address those mens rea requirements expressly.

[48] The trial judge found that the appellants joined in the assault. No suggestion was available on the evidence that this could have been accidental or unintended.

[49] Moreover, the trial judge understood that the appellants’ convictions depended upon his finding that they acted in concert with others. Acting in concert is inherently purposeful conduct. Unless there is a live and realistic mens rea issue, it is implicit in finding that an accused person actively participated in a group assault by joining in the assault that the accused person did so intentionally and for the purpose of assisting in that group assault. The trial judge found that both appellants actively participated in the non-consensual assault on Quinn in which Quinn was kicked, punched and stomped.

[50] Although the trial judge did not explicitly address the mens rea issues, in my view, he did not err in finding that the Crown discharged its burden of proof.

[51] Finally, an accused who is involved in an intentional assault that results in bodily harm cannot argue that he only intended the assault and not the bodily harm that resulted, provided that a reasonable person, in the circumstances, would realize that the force intentionally applied would put the victim at risk of suffering some kind of bodily harm: R. v. Palombi, 2007 ONCA 486, 222 C.C.C. (3d) 528, at paras. 38-39. This principle applies equally in group assaults. Where a reasonable person would realize that the group assault would put the victim at risk of suffering some kind of bodily harm, an accused person who has joined in a group assault cannot avoid responsibility by arguing that they did not intend to cause bodily harm. Although the trial judge did not explicitly address the objective foreseeability aspect of this offence, I am satisfied that he was cognizant of the legal test to be applied. Indeed, it was patently obvious from the evidence in this case that a reasonable person in the appellants’ shoes would realize that bodily harm could result from their actions.

[52] The mens rea requirement was therefore satisfied, and the trial judge was correct in finding both appellants guilty of the charge. Accordingly, this ground of appeal is also dismissed.

(iii) The Trial Judge’s Reasons Were Sufficient

[53] The appellants submit that the reasons are deficient because the trial judge did not make sufficient findings of fact regarding party liability and the nature of their participation in the assault. Joshua submits that although the trial judge found him to be involved as “one of the principle actors,” the reasons do not explain what his involvement in the altercation consisted of. Likewise, Jordan argues that the trial judge did not make any findings of fact regarding his role in the fight. Jordan points to the fact that he was scarcely mentioned in this portion of the trial judge’s reasons.

[54] An appeal based on insufficient reasons can only succeed if the appellants establish that the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: R. v. Vlaski, 2019 ONCA 927, at para. 9, leave to appeal refused, [2020] S.C.C.A. No. 78; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10.

[55] Appellate courts considering the sufficiency of reasons “should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. These purposes “are fulfilled if the reasons, read in context, show why the judge decided as he or she did”: R.E.M., at para. 17.

[56] The key question is whether the reasons demonstrate that the trial judge seized upon the substance of the critical issues at trial in a way that permits meaningful appellate review: R.E.M., at para. 55.

[57] The main issues in this case were whether the accused individuals intentionally assaulted Quinn, and whether, as a result of the assault, Quinn sustained bodily harm. In his reasons, the trial judge carefully assessed all the evidence, including the evidence of the two appellants, and gave very clear and cogent reasons why he accepted and rejected the evidence that he did.

[58] In the reasons, it is clear that the trial judge found both appellants guilty of the offence of assault causing bodily harm based on being parties to the offence. In so doing, the reasons of the trial judge demonstrate that he was satisfied beyond a reasonable doubt that both appellants were parties to punching, stomping, and kicking Quinn on numerous occasions, and these assaultive acts resulted in the serious injuries that Quinn sustained.

[59] The trial judge’s reasons are not deficient simply because he did not identify the precise actions of each appellant in the assault. It is clear when his decision is read as a whole that he accepted testimony that the appellants participated in a group assault in which everyone was punching and kicking Quinn. A trial judge is not held to a standard of perfection: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55. The trial judge need not detail their findings on each piece of evidence, so long as the findings linking the evidence to the verdict can be logically discerned: R.E.M., at paras. 16-29 and 43.

[60] When the reasons are read as a whole, within the context of the evidence and the arguments at trial, they are more than sufficient and fulfill the purpose for which they were intended. Accordingly, I would not give effect to this ground of appeal.

(iv) Exculpatory Statements and the Right to Silence

[61] The appellants argue that the trial judge erred in the manner in which he rejected their exculpatory police statements. Jordan argues that the rejection of his statement appeared to stem from his decision not to provide details about the fight and this runs counter to his constitutional right to silence. Meanwhile, Joshua argues that the trial judge erred in using a disbelief in his exculpatory statement to ground the conviction. He also argues that the trial judge subtly reversed the burden of proof when he made the following comment: “Had Joshua Powell stated he was protecting his girlfriend from the argument with [Quinn] and a fight between the two had ensued, it may have been believable.” According to Joshua, failing to consider this alternative explanation was an error, notwithstanding that Joshua did not raise it himself as he did not bear the burden of proof.

[62] I cannot accede to these arguments. I am satisfied that the trial judge did not err in the manner suggested by the appellants.

[63] It is without a doubt that an accused has a constitutional right to remain silent during any part of a police interview. This right remains intact even if the accused opts to speak to police about certain matters: R. v. G.L., 2009 ONCA 501, 67 C.R. (6th) 278, at para. 39. As the Supreme Court explained in R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at para. 52:

An individual can provide some, none, or all of the information he or she has. A voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence. The right to choose whether to speak is retained throughout the interaction.

[64] The right to silence prevents jurists from drawing adverse inferences from an accused person’s decision not to say more: see Turcotte; David Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at pp. 420-421. It is an error of law for a trial judge to draw an adverse inference on an accused’s credibility from their silence during a police interview: G.L., at paras. 38-39.

[65] At first glance, the trial judge’s reasons appear to place some significance on Joshua’s choice not to say more in the police interview. Specifically, in assessing Joshua’s statement, the trial judge made the following comment: “There was no question a significant altercation occurred, but Joshua provided little or no details about who was involved.” The trial judge returned to this theme later in his reasons, noting that Joshua did not give “details about the fight that occurred right at his feet.” However, he then went on to comment: “[w]hat evidence [Joshua] did give about the altercation was inconsistent with the other witnesses’ evidence.” The trial judge then detailed the contradictory evidence of said witnesses, making clear that Joshua’s statement simply did not have the ring of truth to it. On this issue, he concluded: “…Mr. Powell’s denial of any involvement in the altercation is rejected and does not raise a reasonable doubt in my mind.”

[66] A cursory review of the trial judge’s assessment of Jordan’s statement also appears to give weight to Jordan’s choice not to remain silent about particular details. Specifically, the trial judge commented: “He chose to make a statement, and yet provided no details as to what went on in the fight.” However, in the sentences that followed, the trial judge explained why Jordan’s statement did not raise a reasonable doubt. For example, he noted that Jordan’s excuse for needing ice for his hand was contradicted by the testimony of other witnesses, which confirmed that he was involved in the fight and had attacked Quinn’s car.

[67] Certainly, the paucity of detail in the appellants’ police statements cannot give rise to an inference of guilt in these circumstances. But I am not convinced that the trial judge’s comments were significant or reflective of why the trial judge rejected the appellants’ exculpatory statements. In both cases, the trial judge followed these comments by providing a detailed analysis of why the appellants’ versions of events were blatantly contradicted by the other evidence. After considering the totality of the evidence before him, he was entitled to disbelieve the appellants’ version of events and find that they did not raise a reasonable doubt.

[68] This, in my view, was a proper use of both statements and in no way infringed their Charter right to remain silent. Essentially, all the trial judge was saying was that the appellants chose to speak, as was their right, and in speaking, they lied to police. That is a factor that he could and should consider in assessing their credibility. After all, a right to silence is not a right to lie without impunity.

[69] Had the trial judge drawn an inference of guilt from the fact that neither appellant testified nor called evidence in their defence, there would have been a breach of the appellants’ right to silence. Likewise, a breach would have occurred if the appellants had not provided a statement to the police and the trial judge had drawn an inference of guilt on that basis. In both circumstances, such comments would imply that an accused person is obliged to speak in their own defence, thus reversing the burden of proof, which firmly rests with the Crown.

[70] However, in the case before us, I am satisfied that the trial judge did not improperly draw any adverse inferences from the appellants’ silence in their police interviews. Rather, the trial judge was aware of the appellants’ rights and instead rejected their statements due to a reasoned and considered assessment of all of the evidence. He was entitled to determine what weight, if any, he should afford to individual pieces of evidence, including the appellants’ police statements.

[71] That being said, a trial judge must be careful not to equate disbelief of an accused’s version of events with guilt as that would displace the Crown’s burden to prove an accused’s guilt beyond a reasonable doubt: R. v. Coutts, 1998 ONCA 4212, [1998] 40 O.R. (3d) 198 (Ont. C.A.), at p. 203. I am satisfied that this did not occur in this case. While the trial judge disbelieved the evidence of the accused, he was mindful of the burden of proof on the Crown. For example, in his reasons, he noted:

If I accept the statement of the accused, then I must acquit. If the statement raises a reasonable doubt, I also must acquit. It is only if the Crown has proven all the elements of the case beyond a reasonable doubt that I can convict an accused.

[72] As noted above, Joshua also takes issue with the following statement by the trial judge: “Had Joshua Powell stated he was protecting his girlfriend from the argument with [Quinn] and a fight between the two had ensued, it may have been believable.” This statement must be taken in its proper context. It is evident that the trial judge was using this illustration to make the point that there was no suggestion on the evidence before him that self-defence was in play. Both Joshua and Jordan denied involvement in the altercation. There was no air of reality to self-defence as there was no evidence upon which a reasonable jury could acquit on that basis.

[73] When all is considered, I am not satisfied that the trial judge committed the legal error alleged by the appellants. As such, I would not give effect to this ground of appeal.

(v) The Rejection of Zachary Powell’s Statement

[74] The appellants argue that the trial judge’s rejection of Zachary’s evidence was based on an unfounded inference of bias. They contend that the Crown did not raise the issue of bias in accordance with the rule in Browne v. Dunn (1893), 6 R. 87 (H.L.) (Eng.), and it would be unfair to reject such evidence without any effort to impeach the witness or without any factual foundation to suggest bias.

[75] I disagree. The appellants are essentially asking this court to interfere with the trial judge’s factual findings as to the credibility of Zachary. There is no basis for this court to interfere with the trial judge’s factual findings. A trial judge’s credibility findings are entitled to deference. An appeal court may only interfere with a trial judge’s factual findings – such as a finding of bias – where the error is palpable and overriding: Clark, at para. 9. I see no such error here. There was evidence before the trial judge about Zachary’s relationship with the appellants and one of their co-accused. The trial judge was entitled to consider it in deciding whether to rely on Zachary’s evidence.

[76] I also do not agree that the rule in Browne v. Dunn was violated. The rule in Browne v. Dunn is a rule of trial fairness that applies where a cross-examiner intends to impeach a witness with contradictory evidence on a matter of substance. It is meant to ensure that the witness is given a fair opportunity to challenge contradictory evidence that the witness might have been able to explain away: R. v. Quansah, 2015 ONCA 237, 323 C.C.C. (3d) 191, at paras. 75, 81. The relationship between Zachary and the appellants is not contradictory evidence that challenged anything Zachary said. It was biographical information relevant to his general credibility as a witness. Nor can there be any suggestion that the Crown conducted the cross-examination in a way that deprived Zachary or defence counsel from addressing this concern, had they chosen to do so. The rule in Browne v. Dunn was not offended.

[77] The Crown is not precluded from inviting a trier of fact to be selective as to what part or parts of any witnesses’ evidence they should believe: R. v. Walker, 1994 ONCA 8725, [1994] 18 O.R. (3d) 184 (Ont. C.A.), at pp. 156-157. Similarly, as noted above, a trier of fact or a trial judge may choose to believe some, none, or all of a witness’ evidence. In this case, the trial judge used Zachary’s evidence in the manner suggested by the Crown, and this was permissible.

[78] In all the circumstances, I would also dismiss this ground of appeal.

F. Disposition

[79] Both conviction appeals are dismissed. I would also not grant leave to appeal Jordan’s sentence.

Released: April 29, 2021 “M.T.” “M. Tulloch J.A.” “I agree. David M. Paciocco J.A.” “I agree. Harvison Young J.A.”