Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2023-02-14 Docket: C69928

Judges: Doherty, van Rensburg and Roberts JJ.A.

Between: His Majesty the King, Respondent And: J.C., Appellant

Counsel: Marianne Salih, for the appellant Manasvin Goswami, for the respondent

Heard: February 3, 2023

On appeal from: the convictions entered by Justice Joseph M. Donohue of the Superior Court of Justice on February 7, 2020.

Reasons for Decision

[1] The appellant was charged with 20 offences and convicted of 7, all involving his former domestic partner, BOH. The offences the appellant was convicted of arise out of the parties’ tumultuous relationship during the period of October 2017 to October 2018. The appellant appeals from his convictions on two charges of assault (counts 5 and 9) and three charges of assault with a weapon (count 2 – a drill; count 15 – a frying pan; and count 18 – a knife) against BOH. He pleaded guilty at trial to a failure to comply with his probation order that prohibited him from communicating with or seeing BOH (count 3) and admitted to assaulting BOH with hot water (count 12). He does not contest the convictions on counts 3 and 12. [1]

[2] The appellant raises one ground of appeal: he submits that the trial judge’s reasons for conviction are insufficient in that they fail to resolve inconsistencies and defects in BOH’s evidence, leave the appellant in the dark as to the reasons for his convictions, and prevent meaningful appellate review. He asks that the five impugned convictions be set aside, and a new trial ordered.

[3] We agree, as the Crown concedes, that the trial judge’s reasons are deficient. However, that is not the end of the inquiry. We must be persuaded that the reasons’ deficiencies rise to the high threshold that would permit appellate intervention.

[4] An appeal lies from the judgment, not the reasons for judgment. Poor articulation of reasons, by itself, does not provide a ground for appellate intervention. As the Supreme Court cautioned in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 26: “The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.”

[5] Appellate intervention is justified where deficiencies in the reasons amount to an error of law because they foreclose meaningful appellate review: Sheppard, at paras. 25, 28. Appellate review of the sufficiency of reasons follows a functional approach and, proceeding with deference, requires the reading of the reasons in the context of the evidence, the submissions of counsel and the live issues at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55.

[6] Turning first to the convictions on counts 5, 9, 15 and 18, we are not persuaded that the deficiencies in the trial judge’s reasons rise to the high threshold that would permit appellate intervention. Having applied the mandated functional approach, we conclude that the appellant’s convictions on these four counts are clearly supported and explained by the entire record that was before the trial judge.

[7] The convictions on these four counts pertain to incidents that occurred on three different days – September 22, October 23 and 24, 2018 – culminating in the appellant’s arrest. Both the appellant and BOH testified that on those dates, they engaged in loud, heated, and physical arguments. Contemporaneous photographs and medical evidence that were entered as exhibits at trial showed that BOH sustained extensive bruising, scratches and other injuries to her face and all over her body, including a knife wound to her left shoulder. BOH’s injuries were also confirmed by the testimony of her teacher who observed the complainant crying and holding a visibly red arm on the day of the October 23 incident, two police officers who observed her injuries and emotional distress in respect of the September 22 (P.C. Hessel) and October 24 incidents (P.C. Aitken), and the hospital nurse who met with BOH on October 24 and observed her emotional state and her injuries, which the nurse detailed on a body map that became an exhibit at trial. BOH testified that the appellant caused her injuries by, among other actions, dragging her by her hair, pushing her over a stool, punching, scratching, and biting her. Apart from his admissions of throwing the knife and hot water that injured BOH, which he claimed was accidental, the appellant denied that he caused any other injury to BOH. The appellant admitted BOH sustained injuries on the offence dates but claimed BOH was hurt by accident or by her own actions.

[8] While we do not endorse the brevity of the trial judge’s reasons, his failure to provide a detailed review of the evidence does not preclude meaningful appellate review of the convictions on these four counts. Importantly, the trial judge’s very brief reasons demonstrate that he was alive to and grappled with the key issues of credibility and reliability in relation to the different versions of events given by the appellant and BOH. He stated clearly that he did not believe the appellant, finding his evidence “incredible and not worthy of reliance”. Nor was he prepared to accept all of BOH’s testimony. While he found her credible, he expressed concerns about the reliability of some of her testimony with respect to certain of the counts and appeared to accept her version of events only when it was confirmed by other evidence, such as the medical evidence and exhibits, and the appellant’s admissions.

[9] We have considered the trial judge’s reasons in the context of the entire record. [2] This includes the significant context of the parties’ closing submissions about what they understood the live issues to be at the end of the trial. In our view, there can be no doubt of the basis for the appellant’s convictions nor of the path taken by the trial judge to the verdicts reached on these four counts, which are patent in the record. We see no reversible error that justifies appellate intervention with respect to counts 5, 9, 15 and 18, which relate to the events of September 22, October 23 and October 24, 2018.

[10] We reach a different conclusion, however, with respect to count 2 – assault with a drill. Unlike the convictions on counts 5, 9, 15 and 18, it is not possible for us to discern the trial judge’s path to the conviction on count 2. Even in the context of the entire record, including the parties’ closing submissions, the basis for the conviction on count 2 is not clear without further explanation from the trial judge.

[11] Count 2 alleged that between October and December 2017, the appellant assaulted BOH by injuring her left armpit and lower leg with a rotating, spiral drill bit. BOH testified that the appellant drilled her arm and leg for a few seconds, that the injuries did not require more than first aid and bandages and healed into the small scars that she identified in photographs taken months later, in January 2019. BOH did not mention the alleged assault during her hospital visits, nor to any police officer until her statement to police in January 2019. The appellant vehemently denied that he had ever assaulted the BOH with a drill and that he even owned a drill in the fall of 2017. He testified that BOH had received the armpit scar before he met her and the leg scar from her bicycle. He argued that, in any event, the scars in the photographs in no way resembled the kind of damage that would have resulted from an assault with a drill.

[12] The difficulty with the trial judge’s absence of reasons with respect to the conviction on count 2 is that it is not supported by the kind of unambiguous, independent and contemporaneous confirmatory evidence that he appeared to require to allay his stated reliability concerns with BOH’s evidence and persuade him of the appellant’s guilt beyond a reasonable doubt on the other counts. For example, there was no admission by the appellant that the injury arose out of a particular incident nor do the photographs necessarily and clearly demonstrate drill injuries. While a conviction on count 2 was not impossible, it was incumbent on the trial judge to resolve in his reasons the live issues on this count and show how he reached his verdict.

[13] The resolution of the live issues on count 2 would require us to go beyond a review of the entire record. It would require us to step into the shoes of the trial judge, weigh the evidence, and redo his assessments of credibility and reliability. That is not our task in determining the sufficiency of his reasons.

[14] As a result, we conclude that the trial judge’s reasons for the conviction on count 2 reach the high threshold of deficiency that requires appellate intervention. Count 2 is therefore set aside and a new trial on this count is ordered.

Disposition

[15] Accordingly, the appellant’s appeal from his convictions is allowed in part. We set aside his conviction on count 2 and order a new trial on that count. The appeal is otherwise dismissed.

"Doherty J.A."

"K. van Rensburg J.A."

"L.B. Roberts J.A."

Footnotes

[1] The appellant’s appeal from his 6.5-year custodial sentence, dangerous offender designation and 10-year supervision order was bifurcated and will be heard by another panel.

[2] We have not considered the “Crown Evidence Chart” and the Crown’s written trial submissions to which the trial judge made brief reference in his reasons as exhibits on his deliberations. As the trial judge stated, with respect to the “Crown Evidence Chart”, he did not “[adopt] as fact every entry on this chart” and treated it as “merely an aid to reviewing the evidence”. His use of the Crown’s written submissions appears similar. As a result, although invited by the Crown to do so, we are not prepared to treat these aids as supplementing the trial judge’s reasons for the purpose of considering their sufficiency.