Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240503 DOCKET: C68735

MacPherson, Copeland and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

Steven Fischer Appellant

Counsel: Mark C. Halfyard, for the appellant Owen Goddard, for the respondent

Heard: April 30, 2024

On appeal from the conviction entered on December 6, 2019 by Justice Eleanor M. Schnall of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction of assaulting his former intimate partner on three occasions between March 1 and August 8, 2018. He was also convicted of breaking and entering into the complainant’s home to commit two of these assaults, and of criminally harassing her.

[2] The appellant argues that the trial judge erred in finding the complainant’s evidence credible while rejecting the appellant’s version of events. The complainant testified that the appellant committed the offences after she ended their intimate relationship in late February or early March 2018. The appellant argues on this appeal, as he did at trial, that the complainant lied about when their intimate relationship ended and that her claim that she feared him was contradicted by text messages that they exchanged in October 2018 and photographs of the two of them on a trip to Niagara Falls in July 2018. He contends that the complainant’s lack of credibility on these issues should have led the trial judge to find reasonable doubt.

[3] The trial judge assessed the evidence using the framework set out in R. v. W.(D.), [1991] 1 S.C.R. 742. She did not believe the appellant’s denial of the acts giving rise to the charges, finding his testimony internally inconsistent as well as inconsistent with other evidence, including his statement to police on August 8, 2018. The trial judge further found that the appellant’s evidence as a whole did not give rise to reasonable doubt. She found the complainant’s testimony credible, candid, and internally consistent. It was also supported by other evidence. This evidence included photographs of bruises on the complainant’s arm from the first assault; audio recordings of the second assault on May 18, 2018, during which the appellant was heard verbally abusing the complainant and refusing to leave her residence; and the testimony of the appellant’s sister, who responded to the complainant’s request for help that evening.

[4] The trial judge’s findings of fact are entitled to significant deference: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 99; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11. She considered, and rejected, the defence’s argument that the text messages and photographs from October 2018 fatally undermined the complainant’s credibility.

[5] Although the trial judge expressed reservations about the reliability of some of the text messages produced by the defence, she acknowledged that a text message apparently sent by the complainant to the appellant in October 2018 suggested that they had engaged in sex around that time. She did not, however, find that this required her to reject the complainant’s evidence about the assaults, break-ins, and harassment:

[A]t its highest, even if that particular message had been sent by [the complainant], which she did not admit, it is not an essential element of the charges. The essential elements to which she testified and was thoroughly cross-examined on, remained unshaken.

As I have noted earlier, the court is entitled to accept all, some, or none of the evidence of a witness.

At its highest, if I did not believe [the complainant] on the issue of the sexual relationship which appears to be reflected in the impugned text of October, I am still entitled to consider the entirety of her evidence and I find her evidence credible and reliable on the essential elements of the charges, particularly as her evidence is corroborated by independent evidence.

[6] We do not accept the appellant’s argument that, if the complainant misrepresented the nature of her relationship with him in October 2018, this necessarily required the trial judge to reject her evidence with respect to the assaults, break-ins, and harassment. The trial judge was entitled to find that the complainant’s evidence about these events was credible and reliable based on her assessment of the evidence as a whole. That is what she did. We do not agree that the trial judge disregarded the contradiction between the complainant’s denial of sexual relations and the October text messages solely because the existence or absence of a sexual relationship was not an essential element of any of the charges.

[7] Nor do we agree that the possibility that the complainant and the appellant had sex in October 2018 undermined the complainant’s evidence that she feared him. The trial judge accepted the complainant’s evidence that, after the separation, “she felt safer knowing where [the appellant] was and what mood he was in, and that if he was happy, she felt safer”. The complainant also testified, and the trial judge accepted, that she resumed contact with the appellant in late 2018 because he was acting more nicely towards her, and she thought he was getting therapy. As the trial judge explained:

It is not unreasonable that [the complainant] would be fearful and afraid for her safety, and yet go to a movie with [the appellant] or on a trip to Buffalo, or Niagara Falls. While this may appear to be contradictory behaviour, or make her look less credible, it would be an error to assume that all victims react in a stereotypical way. As she said, if she knew where he was and she kept him happy by telling him things he wanted to hear, she felt safer. As noted in R. v. A.R.J.D., 2017 ABCA 237, affirmed 2018 SCR 6, a victim may continue to interact with her offender (abuser). This does not give rise to a presumptive adverse inference based on outdated stereotypical assumptions.

[8] The trial judge was correct in rejecting a defence based on stereotypes about the behaviour of a victim of assault and harassment by a former romantic partner.

[9] In his notice of appeal, the appellant also advanced the ground that the trial judge erred in rejecting his defence that he entered the complainant’s residence on August 8, 2018 under a mistaken belief that he had permission to do so. He abandoned this ground at the hearing, however.

[10] The appeal is accordingly dismissed.

“J.C. MacPherson J.A.” “J. Copeland J.A.” “S. Gomery J.A.”