Court of Appeal for Ontario

Date: 2023-12-13 Docket: COA-22-CR-0093

Before: Tulloch C.J.O., Feldman and Monahan JJ.A.

Between:

His Majesty the King Respondent

And

Cory Joseph Marsh Appellant

Counsel: Maija Martin and Salematou Camara, for the appellant Eunwoo Lee, for the respondent

Heard: November 6, 2023

On appeal from the conviction entered on November 25, 2020 by Justice Jon-Jo Douglas of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] Following a judge-alone trial, the appellant was convicted of one count of assault causing bodily harm. The complainant suffered a broken arm. The appellant appealed his conviction and sentence, but subsequently abandoned his sentence appeal. He appeals his conviction on two grounds:

1. That the trial judge erred by placing undue emphasis on the complainant’s out of court demeanor evidence, and
2. That the trial judge’s reasons for conviction were insufficient.

[2] We do not agree. Accordingly, the appeal is dismissed for the following reasons.

[3] The trial proceeded by way of an agreed statement of facts in which the statements of four witnesses were tendered into evidence. It also included an agreement that the complainant sustained an “undisplaced fracture to her left wrist” during the incident between her and the appellant. The agreed statement of facts further stated that the injury sustained by the complainant constituted bodily harm within the meaning of s. 2 of the Criminal Code, R.S.C., 1985, c. C-46.

[4] The four witness statements tendered within the agreed statement of facts consisted of statements from two civilian witnesses, one of whom was a personal support worker, and the other, a paramedic. The other two witness statements were from two police officers who attended at the scene and dealt with both the complainant and the appellant. According to the agreed statement of facts, the personal support worker was working in an apartment, directly above the apartment where the complainant and the appellant resided with their 11-year-old son, when she overheard yelling and screaming from within the appellant’s and complainant’s apartment. Out of concern, she called the police. The two police officers and the paramedic subsequently attended at the complainant’s and appellant’s apartment, and they made observations of the demeanor of both parties, as well as of their respective states of sobriety, or intoxication.

[5] In addition to the agreed statement of facts tendered into evidence, several exhibits were also tendered, which included photographs of a laptop with a broken screen, as well as photographs of the complainant’s face depicting a bruised nose.

[6] During the trial, the complainant was the only witness who testified and provided viva voce evidence. The appellant chose not to testify.

The Facts

[7] The facts, as they unfolded at trial, are as follows. The complainant and the appellant were in an on-and-off relationship and were the parents of an 11-year‑old son who was present at the time of the altercation.

[8] During the altercation, both parties were drinking alcohol and smoking crack. Earlier in the evening, the parties argued about whether the appellant had flushed the complainant’s crack down the toilet. The complainant’s evidence was that, as the evening progressed, the argument escalated and culminated into a physical altercation, during which the appellant assaulted the complainant.

[9] The complainant also testified that, just prior to the assault, the complainant slammed closed the appellant’s laptop screen. The appellant became irate, and slammed the complainant’s face into the kitchen counter and began beating her over the head with the laptop.

[10] During the altercation, a personal support worker in a nearby apartment heard banging, screaming, and crying, and called the police.

[11] The police arrived and observed that the appellant was extremely intoxicated. The complainant was also intoxicated, but not to the same degree as the appellant. A paramedic also arrived at the scene and noted that the complainant was visibly distressed and protecting her arm.

[12] Her arm was, in fact, broken; she testified that she believed it broke when she was attempting to protect her face while the appellant was slamming her face into the kitchen counter.

[13] During the trial judge’s deliberation, he noted that there were credibility issues with respect to the complainant’s evidence.

[14] After the complainant gave her testimony in chief, cellphone videos of the evening were put to her in cross-examination. These videos were taken prior to the assault. At times, the content of the videos contradicted some of the evidence the complainant gave in her testimony about the events leading up to the assault.

[15] In light of the issues with the complainant’s testimony, the trial judge found that the complainant was of “unsavoury” character and instructed himself in accordance with Vetrovec v. The Queen, [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1. He acknowledged that it would be dangerous to convict on the evidence of the complainant without first canvassing whether there was independent confirmatory evidence.

[16] The trial judge identified several pieces of evidence that he found to be confirmatory of the complainant’s account of the assault. One of the pieces of confirmatory evidence was the contrast between the complainant’s demeanor prior to the assault (as captured on the cellphone videos) and after the assault (as captured by the accounts of the responding police officer and paramedic in the agreed statement of facts). The trial judge characterized the complainant’s demeanor prior to the assault as “forceful and crude”; whereas after the assault, she appeared to be “scared and shaken.” [^1]

[17] The trial judge also identified numerous other pieces of confirmatory evidence, including the presence and pattern of the complainant’s physical injuries, the degree of damage to the laptop screen, photos of the scene that showed the kitchen counter in disarray, and the account of the personal support worker who called the police after hearing the altercation. In the trial judge’s view, all of these pieces of evidence tended to confirm that the complainant was truthful in her account of the assault.

Analysis

[18] The reasons of the trial judge must be considered as a whole and within the context of the evidence adduced at trial. It is clear on a full reading of the reasons that the trial judge did not give undue weight to the demeanor evidence. He canvassed numerous pieces of evidence he found to be confirmatory of the complainant’s account, only one of which related to her out-of-court demeanor. In assessing that piece of evidence, he correctly noted that demeanor evidence must be approached cautiously, but that it can still be of assistance. We see no error in this approach.

[19] The word “demeanor” may be used in two contexts. One is the demeanor of a witness when testifying in court. A trial judge may consider the complainant’s demeanor when testifying, when assessing credibility, provided the judge does not place undue emphasis on it: R. v. J.M., 2023 ONCA 472, at para. 3.

[20] However, in this case, the relevant evidence was the complainant’s emotional state following the alleged incident, her out-of-court demeanor at the time. That is properly admissible circumstantial evidence that a trial judge is entitled to consider. The weight to be given to it is in the discretion of the trial judge: R. v. Varcoe, 2007 ONCA 194, at para. 33; R. v. J.A., 2020 ONCA 491, at paras. 16-17; R. v. Rose, 2021 ONCA 408, at para. 22; R. v. Vansnick, 2022 ONCA 822, at para. 5. In this case, the trial judge committed no error in considering this evidence in addition to other confirmatory evidence.

[21] We would also give no effect to the submission that the reasons are insufficient to ground appellate review. To be sufficient, reasons must satisfy both a functional and a contextual requirement: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1. In other words, the aggrieved party must be able to understand what the trial judge decided and why, and the reasons must permit meaningful appellate review. In our view, the reasons in this case satisfy both requirements.

[22] Although the reasons are brief, this was a relatively straightforward case involving the testimony of only one witness. Many facts were not in dispute because the parties provided an agreed statement of facts. The trial judge explained how each piece of evidence contributed to his conclusion that he was satisfied that the Crown had proved the elements of the offence beyond a reasonable doubt. Therefore, the reasons provide a sufficient basis for appellate review.

[23] Accordingly, the appeal against conviction is dismissed.

“M. Tulloch C.J.O.”

“K. Feldman J.A.”

“P.J. Monahan J.A.”

Footnotes

[^1]: There was a minor misapprehension of the evidence with respect to the trial judge’s description of the complainant’s demeanor after the assault. A responding police officer noted that it was the 11-year-old son who was “scared and shaken,” not the complainant. It was the paramedic who observed that the complainant was “very emotionally upset and crying.” Neither party argues that this misapprehension was material in the sense that it could have affected the result.