Court of Appeal for Ontario

Date: 2023-08-02 Docket: C67076

Before: Hoy, Thorburn and Favreau JJ.A.

Between: His Majesty the King Respondent

And: Laura Coristine Appellant

Counsel: Howard L. Krongold and Michelle Psutka for the appellant Dana Achtemichuk, for the respondent

Heard: March 7, 2023

On appeal from the convictions entered on December 14, 2018 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting without a jury.

Favreau J.A.:

A. Overview

[1] The appellant, Laura Coristine, was convicted of six counts of assault on her ex-husband, Jim Quinn.

[2] The appellant and the complainant met in 1999 and were married in 2002. They had two children. In 2009, the appellant left the marital home near Kingston, Ontario, with the children to go live in Ottawa. The appellant returned to live with the complainant in 2011, and the couple finally separated in 2012. The appellant and the complainant were then involved in family law proceedings, in which the appellant obtained an order for custody and support. They were ultimately divorced in 2016.

[3] In September 2014, the complainant made a complaint to the police, alleging that the appellant physically abused him throughout their relationship, between 1999 and 2012. The appellant was charged with 14 counts, including 12 counts for specific assaults and threats and two global counts of assault that covered their entire relationship.

[4] At trial, besides testifying about the specific alleged assaults, the complainant gave evidence about other conduct by the appellant, including the appellant imposing a system of rules and punishments throughout the relationship. When testifying, the complainant used notes he had made since 2003 as an aide mémoire. The appellant testified in her own defence and denied that any of the assaults occurred.

[5] In his reasons for judgment, the trial judge found the appellant guilty of assault on six of the charges and dismissed the other eight charges. In assessing credibility, the trial judge said that he did not find that the appellant was credible and he found that the complainant’s evidence was credible and reliable.

[6] The appellant submits that the trial judge made several errors in assessing the appellant’s evidence and in assessing the complainant’s credibility.

[7] I find that the trial judge made no reversible errors and I would dismiss the appeal.

[8] The reasons below first address the trial judge’s alleged errors in assessing the appellant’s evidence and then address his alleged errors in assessing the complainant’s credibility.

B. The trial judge’s assessment of the appellant’s evidence

[9] The appellant argues that the trial judge made several misapprehensions of the evidence in assessing her credibility, and that this should lead to a finding that there has been a miscarriage of justice. While I agree that the trial judge misapprehended the evidence on which he based his credibility assessment in three respects, I do not agree that this amounts to a miscarriage of justice.

[10] In his decision, the trial judge first dealt with the eight counts on which he found the appellant not guilty. In dismissing those counts, the trial judge explained that the complainant had generally not provided sufficient details to support those counts. Before addressing the six other counts, the trial judge turned to his assessment of the credibility of the appellant and the complainant, stating that this was one of the “core aspects” of the trial.

[11] The trial judge started with the appellant’s evidence. He reviewed nine areas of the appellant’s evidence which he found affected her credibility. The appellant submits that the trial judge misapprehended her evidence in five of these areas, which she says undermines his overall assessment of her credibility. The Crown concedes that the trial judge misapprehended the evidence in three areas, but does not agree that this should lead to a finding that there was a miscarriage of justice. I agree with the Crown that the trial judge only misapprehended the appellant’s evidence in three respects and that this does not amount to a miscarriage of justice.

[12] I start with a review of the five areas in which the appellant says the trial judge misapprehended her evidence, followed by a discussion of whether the errors made by the trial judge amount to a miscarriage of justice.

(1) The scratches on the back incident

[13] The appellant submits that the trial judge misapprehended her evidence in relation to an incident involving scratches on the complainant’s back.

[14] The complainant gave evidence that the appellant occasionally scratched him when she was upset. He referred to an incident at a pool at a hotel in Ottawa when he had to wear a shirt to cover up scratches on his back. The trial judge found that the appellant changed her evidence in relation to this incident. He said that she initially testified that she had not seen the scratches on his back at the pool, and that she later said that she had seen the scratches, but they had been caused by consensual sexual activity. The trial judge said that this was an “unexplained change” in the appellant’s evidence that “compromise[d] her credibility at large” in the trial.

[15] The appellant points out that she did not change her evidence to say that she saw the scratches on the complainant’s back. Rather, in cross-examination, she maintained that she did not recall seeing scratches on the complainant’s back, but said it was possible there were scratches on his back if they had engaged in recent sexual activity.

[16] The Crown concedes that there was no unexplained change in the appellant’s evidence. I agree that the appellant did not change her evidence. Rather, she qualified her answer by providing an explanation for the scratches even if she did not recall seeing them.

(2) The baseball incident

[17] The appellant submits that the trial judge misapprehended her evidence regarding an incident when the complainant claimed she intentionally punched him in the ear, while the appellant claimed she accidentally hit the complainant with a baseball.

[18] The trial judge held that the appellant changed her evidence regarding this incident. He said that she initially testified that she did not recall the incident, but that she then “purported to clarify that she meant that she could not recall who was pitching and who was hitting” and that she never meant to say she did not recall the incident. The trial judge said that this did “not leave him with confidence in [the appellant’s] credibility”.

[19] The appellant submits that this was not a fair reading of her evidence, when looked at in the context of the question asked. The trial judge had asked the appellant, “[t]his is entirely you hitting? Or did you take turns”. To which the appellant responded “I don’t actually recall that specific incident. I know sometimes we would take turns but generally…”

[20] The Crown concedes that the trial judge misapprehended the evidence on this point. I agree. A fair reading of this exchange is that the appellant did not recall whether she was the only one hitting the ball or whether she and the complainant took turns hitting the ball.

(3) The “Sound of Music” tickets

[21] The appellant submits that the trial judge misapprehended her evidence in relation to the purchase of tickets to the musical, the “Sound of Music”.

[22] The complainant testified that he had purchased tickets to the “Sound of Music” as a surprise to see the musical with the appellant. The appellant testified that she had already purchased tickets to see the “Sound of Music” with one of their sons, and that the complainant knew this at the time he purchased his tickets. The trial judge found that the appellant refused to answer questions about when she had purchased the tickets, whether she had already seen the musical at the time the complainant purchased his tickets, and whether she had seen the musical in Toronto or Ottawa. The trial judge noted that the appellant’s cross-examination on this issue lasted over ten minutes and found that she was “evasive and unresponsive in her cross-examination for reasons that remain unclear”.

[23] The appellant argues that the trial judge mischaracterized her evidence. The incident had taken place ten years prior to her testimony, and a fair reading of the transcript shows that she had trouble remembering dates and the specific sequence of events rather than that she was being evasive.

[24] The Crown agrees that the appellant’s evidence regarding when the tickets were purchased and when she saw the musical do not show a refusal to answer questions. Rather, a more accurate description of the complainant’s testimony is that she could not answer them, as she could not recall the times. However, the Crown submits that the appellant’s evidence on this topic generally supports the trial judge’s finding of credibility, as she was being otherwise evasive and unresponsive to questions which were not related to the timing and dates.

[25] I agree with the Crown’s position. Reviewing the cross-examination transcript as a whole on this topic, the trial judge’s characterization of the appellant as evasive and unresponsive in answering questions was fair. For example, on several occasions, rather than directly answering the question she was asked, she focused on her view that the complainant’s purchase of the tickets was manipulative and that he had knowingly put her in a difficult position.

(4) The broken guitar incident

[26] The appellant submits that the trial judge misapprehended her evidence regarding an incident when she claims to have accidentally stepped on the complainant’s guitar. The Crown submits that this was not a misapprehension. I agree with the Crown.

[27] The complainant testified that the appellant intentionally destroyed one of his two guitars, which was a prized possession. The appellant testified that the complainant had left his guitar by her side of the bed and that she accidentally stepped on it. The trial judge did not accept her evidence that she broke the guitar by accident, in part because of her answers to questions regarding the importance of the guitar to the complainant. The trial judge said that the appellant initially acknowledged that she knew the guitar was important to the complainant, but that she then stated that it was no more important to him than any of his other possessions. On this basis, the trial judge said that he preferred the complainant’s evidence regarding the guitar incident, and that this led him to “at large” lose confidence in her evidence.

[28] The appellant argues that this amounted to a misapprehension of her evidence because she did acknowledge that the guitar was important to the complainant. I disagree. The trial judge accurately stated that her evidence was that the guitar had no more importance to the complainant than his other possessions, including possessions he allegedly stored in garbage bags in the basement. On the basis of this evidence, it was open to the trial judge to find that the appellant denied the importance of the guitar to the complainant.

[29] The trial judge did not misunderstand the appellant’s evidence. It was open to him to assess it as he did.

(5) The alleged sexual assault incident

[30] The appellant gave evidence about an incident with the complainant in which she claimed he sexually assaulted her. The incident occurred in 2007. When examined in chief, the appellant testified that she told the complainant that she did not want to be with him anymore, after which he pushed her up against a wall and ripped her shirt off in front of her son who was around three at the time. She said that she and her son screamed and that she slapped the complainant to get him away from her. In cross-examination, she added that the complainant tried to force her hand toward his bare penis and that he touched her bare breast.

[31] In his decision, the trial judge stated that the appellant was asked three to four times during cross-examination to provide details about the sequence of events but that she did not answer and that “[h]er answers, at best, were incoherent, disjointed and unresponsive”.

[32] The appellant argues that the trial judge misapprehended her evidence because she did not refuse to answer questions in cross-examination. In addition, the appellant argues that some of the Crown’s questions were improper because they engaged in improper myths and stereotypes about sexual assault victims. Specifically, the appellant argues that it was improper to suggest that the appellant was lying about the incident on the basis that her relationship with the complainant did not change after the incident. Finally, she submits that the trial judge’s assessment of her evidence fails to consider the appellant’s obvious emotional distress when she was testifying about this incident.

[33] I am not persuaded that the trial judge made any reviewable errors in his treatment of the appellant’s evidence of this incident.

[34] Reading the transcript as a whole on this issue, it was open to the trial judge to reach the conclusion that the appellant’s answers were incoherent, disjointed and unresponsive. On several occasions, rather than responding directly to Crown counsel’s question, the appellant provided an argumentative answer. As the Crown pointed out, this was consistent with how she answered questions throughout much of the trial.

[35] While there are some instances where the transcript indicates that the appellant’s answers were muffled and incoherent, this is a fairly lengthy cross-examination. There is no indication that the appellant was unable to answer questions due to her emotional distress or that the trial judge was only influenced by her demeanour rather than her answers in assessing her evidence on this point.

[36] Finally, I do not agree that this was an instance in which the Crown’s cross-examination was unfair or the Crown relied on improper myths and stereotypes. There was a significant inconsistency between the appellant’s description of the events during her examination in chief and her cross-examination; in chief, the appellant had not mentioned that the complainant touched her breasts or tried to get her to touch his penis, which were significant aspects of the alleged assault. The Crown was entitled to explore these inconsistencies and did not do so unfairly. In addition, the appellant did not report this assault to the police when she subsequently reported other issues involving the complainant to the police, which was again an issue the Crown was entitled to explore in cross-examination. Ultimately, the Crown did not rely on this discrepancy in closing argument to suggest that the incident did not occur.

(6) The trial judge’s assessment of the appellant’s evidence did not amount to a miscarriage of justice

[37] A miscarriage of justice occurs where “a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541. This is a stringent standard. The misapprehension must be about a substantial portion of the evidence and not a detail, and it must be material rather than peripheral to the trial judge’s reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[38] Where the misapprehended evidence is used to assess credibility, the issue of whether there has been a miscarriage of justice turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment. If the trial judge mischaracterized parts of the appellant’s evidence that were central to the trial judge’s assessment of her credibility, it is more likely that the appellate court will find a miscarriage of justice: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36-38; R. v. S.R., 2022 ONCA 192, at para. 15.

[39] As noted above, the trial judge in this case referred to nine areas of the appellant’s evidence as part of his analysis of her credibility. The appellant does not take issue with four of these areas, where the trial judge made the following findings:

a. The appellant was reluctant to agree that she was lonely while she was working in Owen Sound away from the complainant for a period of time, despite emails in which she expressed the contrary. The trial judge said that “it took five questions in cross-examination and over three minutes” for the appellant to agree that she had intended to express her love by signing off an email with the words “love, [the appellant’s name]”.

b. The appellant testified that a photograph of a bedroom in disarray was an example of how the complainant kept the house. However, the trial judge found that this evidence was inconsistent with the “room appear[ing] to have been purposefully disrupted”, which was the complainant’s evidence of what occurred.

c. The appellant initially testified that she was estranged from her mother for several years. However, in cross-examination, she acknowledged that it might have been one year. The trial judge observed that it “took more than 10 questions by the Crown and about 10 minutes for [the appellant] to respond.”

d. The trial judge also found that the appellant gave “an entirely contrived version unsupported by the facts” of an incident involving a pile of clothes belonging to the complainant the appellant’s mother found in the chicken coop.

[40] As discussed above, I do not accept that the trial judge misapprehended the evidence in relation to two of the other areas he relied on in finding that the appellant was not a credible witness. This leaves the trial judge’s treatment of the back scratch, baseball and “Sound of Music” incidents as misapprehensions of the appellant’s evidence.

[41] The back scratch and the baseball incidents were not central parts of the evidence at trial. There were other significant aspects of the appellant’s evidence that led the trial judge to find that she was not credible. In addition, the “Sound of Music” incident was also not central to the evidence at trial and, as discussed above, the trial judge’s overall characterization of the appellant’s evidence on this incident as evasive and unresponsive in answering questions was fair.

[42] Findings of credibility are not a mathematical exercise: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 81. There was no requirement that the trial judge point to a specific number of inconsistencies to find that the appellant’s evidence was not credible. It is evident that many factors, besides the back scratch and baseball incidents, and his characterization of some of the appellant’s evidence of the “Sound of Music” incident, supported his credibility assessment. He specifically noted that some of this evidence led him to question her credibility at large. I see no miscarriage of justice in this case despite the trial judge’s misapprehension of three relatively minor aspects of the appellant’s evidence.

C. The trial judge’s assessment of the complainant’s credibility

[43] The appellant argues that the trial judge made four errors in assessing the complainant’s credibility. I am not persuaded that these alleged errors amount to reversible errors.

[44] A trial judge’s findings of credibility are to be given significant deference and assessing credibility is not a scientific exercise: G.F., at para. 81. Appellate intervention will rarely be appropriate. It is not the role of an appellate court to parse the language used by the trial judge: G.F., at para. 69.

[45] In this case, the appellant points to isolated concerns over the trial judge’s assessment of the complainant’s credibility. However, in his reasons, the trial judge explained his overall impression that the complainant was credible because he gave his evidence in a “measured and generally understated fashion”. In going through the individual counts, the trial judge found that, where the complainant was unable to provide sufficient details, the counts were not made out. He only convicted on counts where the complainant’s evidence was sufficiently detailed or otherwise corroborated.

[46] Taking this context into consideration, I am not persuaded that the trial judge made any of the errors alleged in his assessment of the complainant’s credibility. Below, I review each of these alleged errors in turn.

(1) The push-ups incident

[47] The complainant’s evidence was that the appellant meted out various punishments when he did not follow her rules. One of those punishments was doing push-ups. He recounted that, on one occasion, the appellant required him to do 32,000 [1] push-ups, which he says he did over the course of 8 or 9 hours before and after work one day. The complainant said that “they’re not push ups as you would define them.” He was not asked to explain any further.

[48] The appellant argues that the trial judge erred in failing to take judicial notice that it is not possible for a person to do 32,000 push-ups and that this failure affected his credibility assessment of the complainant.

[49] In the trial judge’s review of the complainant’s evidence, after stating that he found that the complainant gave his evidence in a “measured and generally understated fashion”, he noted that the issue of the push-ups may be an “exception” to that observation. He then stated that the appellant’s counsel urged him to find that the complainant’s overall credibility should be affected by his exaggeration about the number of push-ups he said he completed in a day. The trial judge said he had no evidence about the number of push-ups a person could do in a day and that this was not something about which he could take judicial notice.

[50] As noted by the Crown, the complainant’s evidence was that these were not complete or well-formed push-ups. Moreover, the trial judge was aware of the frailties in this evidence. He acknowledged that the complainant may have been exaggerating and that this evidence contrasted with his generally straightforward and understated evidence. Whether or not the trial judge could or should have taken judicial notice, he was alive to the argued exaggeration. However, when seen in the context of the complainant’s overall testimony about many incidents, the trial judge did not find that this affected his overall credibility assessment. That conclusion is entitled to deference and I would not interfere with the trial judge’s assessment of the complainant’s credibility on this basis.

(2) The complainant’s motive to lie

[51] The appellant argues that the trial judge failed to sufficiently consider the complainant’s motive to fabricate the allegations made against the appellant. At the time the complainant went to the police, the parties were in the middle of an acrimonious divorce. There had been some prior police involvement. In addition, the complainant admitted making a false accusation about the appellant to her employer. The appellant argues that the trial judge should have considered this context in assessing the complainant’s credibility.

[52] The trial judge was evidently aware of this context, but he nevertheless believed the complainant. He was entitled to do so. Delay in reporting abuse is simply one circumstance to consider when assessing the credibility of a complainant: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; see also R. v. S.G., 2022 ONCA 727, at para. 43. The trial judge, having regard to all the circumstances, including the complainant’s detailed and measured testimony, found that the proximity in time between the complainant’s marital breakdown and the allegations did not make him less credible. I see no basis to disturb this finding.

[53] Furthermore, in regard to the false accusation made by the complainant about the appellant and a work colleague, the trial judge had found that the complainant “already apologized on an earlier occasion”, his actions were taken at a time when he had not seen his children in five months, and that standing alone, this did not make the complainant less believable. Consequently, the trial judge was not persuaded that this accusation undermined the complainant’s credibility. This finding is also entitled to deference.

[54] Finally, the appellant submits that the trial judge improperly relied on the complainant’s notes in finding that he had no motive to lie. For reasons which I shall explain further below, I am not persuaded by this argument. The trial judge did not look to the notes independently as a source of credibility. Rather, he properly recognized that these notes helped refresh the complainant’s testimony as an aide mémoire.

[55] Overall, the trial judge’s assessment of the complainant’s credibility in relation to a potential motive to lie is entitled to deference.

(3) The trial judge’s reliance on the “unusual” nature of the allegations

[56] The appellant argues that the trial judge erred in finding that the complainant’s allegations were more likely to be true because they were “odd”, “unusual” and “peculiar”. In making this argument, the appellant relies on two instances where the trial judge explained that he believed the complainant in part because of the unusual nature of the appellant’s behaviour. These two instances involved the appellant enforcing rules on how the complainant should drink water while eating, as well as how to give foot massages.

[57] I am not persuaded by the appellant’s argument. While the trial judge did refer to some allegations which he found peculiar, this was not his overall approach to the evidence. Importantly, the trial judge also discussed the detailed nature of the complainant’s evidence. In any event, it was open to the trial judge, as part of his credibility assessment, to consider that the complainant provided detailed evidence about what sounded like unusual events. In doing so, he did not find that the complainant’s evidence was more likely to be true because the events he described were implausible, but rather because, given the degree and uniqueness of the details provided, it was unlikely that he had fabricated the evidence. This was permitted reasoning.

(4) The complainant’s reliance on his notes

[58] The complainant’s evidence was that at some point during the relationship he started making notes to himself in the form of emails. He referred to the notes in giving evidence, but the notes were not put into evidence. The appellant argues that the trial judge improperly relied on the notes as prior consistent statements.

[59] I do not agree. As mentioned earlier, the trial judge commented on a few occasions that the complainant had made notes and relied on the notes as an aide mémoire. For instance, in determining whether the appellant had assaulted the complainant between June 2002 to January 2009, the trial judge noted that the complainant “had started to keep electronic notes from which he was able to refresh his recollection of events during that period.” As a result, the complainant was able to give detailed testimony about what occurred. In contrast, the appellant’s “bare evidence” failed to raise a reasonable doubt and hence, she was found guilty of that charge.

[60] Consequently, it would be unfair to characterize the trial judge’s reference to the complainant’s use of the notes as a finding that the notes themselves bolstered his credibility. Rather, the trial judge referred to the notes in his decision to explain the measured nature of the complainant’s testimony given at trial.

D. Conclusion and Disposition

[61] I see no reversible errors in the trial judge’s approach to assessing the credibility of the appellant and the complainant.

[62] I would dismiss the appeal.

Released: August 2, 2023 “A.H.” “L. Favreau J.A.” “I agree. Alexandra Hoy J.A.” “I agree. Thorburn J.A.”

Footnote:

[1] In his reasons, the trial judge referred to 30,000 push-ups. But the appellant and the Crown agree that the complainant’s evidence was that he was required to do 32,000 push-ups. The parties agree that nothing turns on this discrepancy.