WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 04 26 COURT FILE No.: Brampton 3111 998 23 31100921

BETWEEN:

HIS MAJESTY THE KING

— AND —

ELDAN KRCIC

Before: Justice G.P. Renwick

Heard on: 24, 25, and 26 April 2024 Reasons for Judgment Released on: 26 April 2024

Counsel: J. Graham................................................................................... counsel for the prosecution C. Yazbeck............................................................. counsel for the Defendant Eldan Krcic

Reasons for Judgment Following a Trial

RENWICK J.:

Introduction

[1] The Defendant was charged with seven counts arising from allegations of intimate partner violence involving the complainant. The prosecution conceded that there was no evidence and invited the court to dismiss four counts. The Defendant faces the following remaining counts: #1 (theft), #3 (assault) and #4 (assault w a weapon).

[2] The brief trial was heard over parts of the past three days. Only the complainant and the Defendant testified. Nine photographs allegedly depicting the complainant’s injuries were also introduced into evidence as exhibits.

[3] Given the Defendant’s testimony and the frailties in the complainant’s testimony, the Defendant submitted that the complainant was not a reliable or credible witness and the remaining charges were not proven to the required standard in a criminal trial.

[4] At issue is whether the prosecution has proven the remaining allegations beyond a reasonable doubt.

[5] Determination of the matter entails a consideration of witness credibility and reliability, the probative value of the evidence, and whether the prosecution’s high burden has been met.

Governing Legal Principles

[6] The Supreme Court of Canada has recently reiterated the legal principles that govern the fact-finding process engaged during a trial. [1]

[7] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an alleged offence beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed any of the charges, he will be acquitted.

[8] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during a trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. [2] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence and I am not left with any reasonable doubt, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or some reasonable doubt remains, then the charge has not been proven to the required degree and an acquittal must follow.

[9] This case involves credibility and reliability assessments. In assessing credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify and communicate their recollections. It is also important to determine whether the witness was trying to tell the truth and whether the witness was sincere, candid, biased, reticent, or evasive. A court may accept some, none, or all of what a witness says while testifying.

[10] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said throughout their testimony. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are significant or inconsequential to the case. If an inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[11] Given the Defendant’s evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 - 22 Canadian Criminal Law Review 31.

[12] Justice Paciocco breaks down the W.(D.) principles into five propositions:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict him;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[13] Also, I have reminded myself to treat the evidence of both witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of their role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.

[14] Admissibility and the weight attached to evidence are two distinct considerations. In addition to the testimony received, there are photographs to consider. The probative value of evidence is not presumed. In all cases, a trier of fact must determine the appropriate weight to give each piece of evidence and what, if anything, is established or proven by the evidence.

The Evidence and Findings of Fact

[15] In this part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, motive, and the witness’ ability to recall and communicate.

[16] I will not recapitulate all of the evidence received during this trial. Suffice it to note that I have used several opportunities during the trial and subsequent to the completion of the submissions to review my notes and to listen to parts of the digital audio recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, despite any verbal exchanges during the evidentiary phase of the trial or submissions, I came to no conclusions about any of the evidence received until all of the closing submissions were made and my review of the evidence, submissions, and the law was complete.

The Testimony of the Complainant

[17] The complainant testified about having met the Defendant in Quebec, keeping in touch by texting for a couple of weeks and then re-connecting with him directly when she came to Toronto for a visit. Shortly after, she moved in with the Defendant and they shared his condominium for about two months before the alleged assaults. Over the course of two to three days they began to argue about messages she had received from a male on her Instagram. This led to the assaults she described: slapping, punching, and the use of a belt to strike her legs.

[18] The assaults caused her to have blood in one of her ears and some leg tendon issues for which she will soon begin physiotherapy, some 15 months later.

[19] At times while testifying, the complainant appeared to wipe her eyes as if she were crying. However, I could not tell if she had actually shed any tears while watching her testify remotely by video. Her voice was shaking during parts of her testimony.

[20] Overall, the complainant was mostly credible. Her narrative was compelling. Her demeanor while testifying did not add to nor detract from my assessment of her credibility.

[21] In the end, I do not accept as completely truthful, the testimony of the complainant. I am troubled by the following:

i. The complainant never knew the Defendant’s first or last name. She knew him only as “Fastlane.” This defies credulity. She lived with him. She had met his mother. I do not accept that the complainant did not even know the Defendant’s first name. This indicated untruthfulness on her part;

ii. The complainant testified that they lived together for approximately two months yet she could not indicate the address, much less a street name or a condo unit number, or even an area for where she had been living; and

iii. The vicious attack ended when the Defendant generously had his brother bring her to a waiting Uber that the Defendant had arranged (paid for) with all of her belongings (minus her cell phone allegedly thrown onto a nearby roof) and even money he had given her to return by train to Montreal.

The Testimony of the Defendant

[22] The Defendant testified and was vigorously cross-examined. His testimony was especially unlikely and largely untruthful.

[23] I find that the Defendant lied in several areas while testifying:

i. He initially indicated to the prosecutor that he had “planned the vacation with the other lady while [the complainant] was living with [him].” This evidence was entirely contradicted by subsequent testimony (he had only decided to go on vacation after the complainant had left);

ii. He also testified that he had purchased his plane fare before 11 January 2023 (the day the complainant had left), but he later testified that it was purchased days after her departure (on 15 January 2023); and

iii. He was not at all upset with a man writing to the complainant because “this was truly just the beginning of [their] relationship.” The Defendant was quite clear that he had permitted the complainant to move into his place with him. They had been living together for two months. In my view, this could hardly be described as the beginning of their relationship. I find that the Defendant lied to camouflage his concern with the messages sent by another of the complainant’s potential suitors.

[24] Also, the Defendant was not an agreeable witness: During the first question in cross-examination he disagreed that “there was a bad ending to this relationship.” Further, he could not agree that when they lived together, the condo was their “home.”

Analysis of the Evidence

Credibility and Reliability Generally

[25] Triers of fact must consider both credibility and reliability in determining whether the allegations are proven beyond a reasonable doubt. Credibility is shorthand for truthfulness and believability. Reliability is the lens through which we evaluate the accuracy of evidence. Trial judges must be careful not to conflate credibility with reliability otherwise the fact-finding net might entangle even the least reliable piece of evidence.

[26] It is important to remember that in some cases credibility takes a back-seat to reliability. For example, there are prosecutions where the suspect is unknown to the complainant and the latter may be honestly mistaken about the identity of the perpetrator. In such a case, reliability concerns govern the analysis because credibility does not guarantee accuracy.

[27] While credibility is not a proxy for reliability, [3] where the evidence is highly credible, consistent, plausible, not inconsistent with other evidence, largely undisturbed upon a vigorous cross-examination, and not found to be otherwise unreliable, truth and accuracy are likely established.

[28] Assessments of credibility and reliability can be the most important and challenging judicial determinations in a criminal trial. Our highest court has reminded us:

Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’.” With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’ testimony. [4]

[29] Judicial fact-finding is often based on inductive reasoning and evaluations of “probable interpretations of the evidence.” [5] It necessarily depends on common-sense inference-drawing. [6] To again quote the Supreme Court:

Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment. [7]

Circumstantial Evidence

[30] This case involves some circumstantial evidence: there are photographs of apparent injuries suffered by the complainant.

[31] The Defendant is alleged to have struck the complainant about her head and face many times before tiring and using a belt to whip her on one of her legs.

[32] In order to be satisfied that the circumstantial evidence corroborates the complainant’s testimony, I must be satisfied that the only reasonable inference available in respect of the circumstantial evidence is that the Defendant caused the injuries depicted in the manner described.

[33] The photographs are clear and show multiple injuries to the complainant. I am not satisfied that it is proven that the complainant’s injuries came from this event on 11 January 2023. Unfortunately, the photographs were not authenticated by any police testimony respecting their observations or the exact timing (date) of the photographs.

Was there a Motive to Fabricate

[34] I have also considered the fact that the complainant may have had a motive to fabricate her allegations: She had been living with the Defendant and their argument caused the breakdown of their relationship and her return to Quebec.

[35] I am unable to draw any conclusions about this potential motive to fabricate these allegations for the following reasons:

i. The complainant was not entirely candid and truthful during her evidence, but it is not clear to what extent or why;

ii. The Defendant was a poor historian; and

iii. There are some questions left unanswered by the totality of the evidence.

[36] In the end, I am truly left with reasonable doubts about what actually happened on 11 January 2023 and the cause of the bruising and other injuries apparent on the complainant in the photographs taken by the Quebec police.

[37] If I had to hazard a guess, I would say that the Defendant likely assaulted the complainant many times and caused her injuries. He then arranged a ride for her and paid for her to leave town. Then, he hastily left the country for several months to avoid apprehension for what he had done. This speculation on my part does not meet the level of proof required to find someone guilty of anything.

[38] Although I am not left in doubt by the Defendant’s evidence, which I thoroughly reject as self-serving and unreliable, the questions that remain about the complainant’s testimony and my suspicions that there were many things that she was hiding from me cause me to have reasonable doubts about the exact cause of her injuries.

Conclusion

[39] I have considered all of the evidence in this case. I have several residual doubts about what took place on 11 January 2023. I cannot resolve those doubts. They are not unreasonable in light of the unsatisfactory nature of the complainant’s testimony.

[40] The remaining charges are dismissed. I find Eldan Krcic not guilty on all counts on the Information before the court.

Released: 26 April 2024 Justice G. Paul Renwick