ONTARIO SUPERIOR COURT OF JUSTICE

OSHAWA COURT FILE NO.: 12490/10
DATE: 2012-04-13

BETWEEN :

HER MAJESTY THE QUEEN

Respondent

— and —

BASIL ODEI

Appellant

COUNSEL:

Bernard O’Brien for the Appellant

David J. Thompson for the Respondent

HEARD: February 8, 2012

Shaughnessy J.

REASONS FOR JUDGMENT

(Summary Conviction Appeal)

[ 1 ] The appellant appeals his conviction for assault by Justice William Babe on August 27, 2010. At the commencement of this appeal counsel for the appellant advised that the appeal as to sentence is abandoned.

Background Circumstances

[ 2 ] The appellant is a police officer with the Durham Regional Police Service. The complainant is Charmaine Odei and she is the spouse of the appellant.

[ 3 ] For approximately one month, ending Thursday, August 21, 2008, the appellant, together with his two sons, was in St. John, New Brunswick visiting his terminally ill father. The appellant and his two sons arrived home unexpectedly. The complainant testified that shortly after his arrival the appellant went into the bathroom with her cell phone reading private text messages.

[ 4 ] The appellant’s testimony of the events is that upon his return home and upon borrowing the complainant’s cell phone, she accosted him wanting to erase certain text messages and thereafter started jumping on top and pushing the appellant in an effort to get the cell phone. The appellant’s version is that he then went to the bathroom with the complainant throwing her arms around him, trying to hold him back. The appellant states that he got to the bathroom and locked himself in and read the text messages.

[ 5 ] The two sons of the appellant and the complainant were present and they testified at trial.

[ 6 ] The appellant’s review of the text messages suggested in his view that there was a relationship between the complainant and another fellow police officer. The appellant’s testimony is that after reviewing the text messages he exited the bathroom and advised the complainant that he would be seeking a divorce.

[ 7 ] Both parties agree that over the course of the next three days the complainant repeatedly attempted to caress the appellant in an attempt at reconciliation. Both parties testified that these attempts included occasions where the appellant physically rebuffed the complainant, including grabbing, pushing and even kicking her, in an effort to repel her unwanted advances.

[ 8 ] The events of Sunday, August 24, 2008, form the subject matter of the charge of assault. An argument was precipitated by the appellant asking the complainant for his posters which she was unable to locate.

[ 9 ] The complainant’s testimony is that following an altercation in the downstairs area of the home, the appellant grabbed her in the hallway landing half way to the second floor. The complainant then made her way to the master bedroom and took her new cell phone from her purse. The appellant dragged her to the hallway, during the course of which, she handed the cell phone to her son Marshall. She states that Marshall then took the cell phone downstairs.

[ 10 ] The appellant testified that on that Sunday evening, the complainant was in the master bathroom and he saw her cell phone on the bed and he took it to see who she had been communicating with. He testified that the complainant exited the bathroom and came at him, pushing, grabbing, punching and scratching him, trying to get the cell phone away from him. The appellant testified that he handed the cell phone to his son Marshall, who took it and ran down the stairs.

[ 11 ] The son, Marshall, age 14 testified that he witnessed the altercation on the Sunday evening in his parent’s bedroom across the hall from his bedroom. His bedroom door and his parent’s bedroom doors were open. Marshall testified that the complainant was pushing the appellant, jumping up on and screaming at him (the appellant). He states that he received the cell phone from his father and took it downstairs followed by the appellant and the complainant. The complainant then exited the home. In examination-in- chief, Marshall Odei denied he ever saw his father try to grab or hold his mother. However, in cross-examination, he admitted that he gave a statement to the police on September 4, 2008 in which he admitted telling the police that he had seen his father put his hand over his mother’s mouth while they were in the computer room and telling her to be quiet lest the neighbours hear.

[ 12 ] The complainant testified that following the physical altercation with her husband, she fled the home, barefoot, dressed only in her pyjamas, and drove a short distance to the home of a friend, Maria Trovato.

[ 13 ] Maria Trovato testified that the complainant arrived at her home in her pyjamas, with no shoes, in a hysterical state. After being told what had happened, Ms. Trovato called the police. Ms. Trovato observed injuries and marks on the body of the complainant.

[ 14 ] Filed at trial were 13 photographs taken by the Durham Regional Police depicting injuries to the complainant.

[ 15 ] The complainant has two sisters. The appellant called one sister, Cheryl Cruz, who lives in Newfoundland, the evening of August 24, 2008. The appellant wanted Cheryl Cruz to speak to the complainant and persuade her not to call the police. This sister testified at trial that the appellant admitted that he had been angry with the complainant, had grabbed the phone from her, and that “he was a little rough on her….that he might have pushed her.”

[ 16 ] A second sister, Charina Cruz, also testified at trial. She called the complainant’s cell phone on August 24, 2008, and the appellant answered the phone. She testified that the appellant wanted her to persuade her sister not to call the police. She testified that the appellant told her that there was a “situation” and he admitted to having pushed the complainant and grabbed her cell phone.

[ 17 ] Sgt. Nicole Hamilton of the Durham Regional Police, is a mutual friend of the appellant and the complainant. Sgt. Hamilton testified that the complainant asked her to lie to police and tell them that they had met for lunch on a particular date. The complainant told Sgt. Hamilton that she required her assistance in order to deflect her involvement with another police officer.

[ 18 ] William Ing, a mutual friend of the appellant and the complainant, testified that the complainant called him after the appellant’s arrest; and in the course of that conversation stated to him that no assault had taken place.

Issues on Appeal

[ 19 ] The appellant submits that the Trial Judge’s Reasons demonstrate errors at law by reason of:

(a) a failure to conduct an analysis in accordance with R. v W(D) 1991 , [1991] 1 S.C.R. 742;

(b) a failure in the Reasons to address the “live issues” at trial and as a result forecloses meaningful appellate review;

(c) the sufficiency of the Reasons are challenged on the basis detailed in R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869.

[ 20 ] The Crown’s position as Respondent on this appeal is that appellate intervention is only justified where there is a functional failing in the Reasons by failing to disclose an intelligible basis for the verdict capable of permitting meaningful appellate review. It is submitted that an appellate court must proceed with deference to the trial judge. The task for the appellate court is to ask itself whether the Reasons, considered with the evidentiary record, the submissions of counsel, and the live issues at the trial, reveal the basis for the verdict reached. Where the functional test is met, as the Crown submits, is the case in Reasons of the Trial Judge, then the appeal should be dismissed.

Reasons of the Trial Judge

[ 21 ] The Trial Judge in his Reasons, first outlines background information relating to the troubled nature of the marriage and mutual distrust of the appellant and his spouse.

[ 22 ] The Reasons detail the events of Thursday, August 21, 2008, when the appellant unexpectedly arrived home from the east coast with his sons. It is stated that the appellant wanted to use the complainant’s cell phone, “the excuse being that for his cell phone the battery was rundown.” The appellant wanted to call a friend down east to tell him to call his mother to tell her that he had arrived home safely. The Trial Judge states that “he got it” (the cell phone) and the complainant “wanted it back to delete compromising messages.” The complainant did not get the cell phone back, and the appellant took the cell phone into the bathroom and read the messages “after which she [the complainant] was angry, announced that they were divorcing and so on. She was told to go to the bank and take out a loan for $100,000 to buy out his share of the house and so on.”

[ 23 ] The Trial Judge notes that the “charge doesn’t arise out of any events that took place on the 21 st of August. Although, she does testify as to some physical confrontation between them on that date.”

[ 24 ] The Reasons indicate that for the remainder of the weekend, the parties went their separate ways. The evidence of the complainant was that she had been trying to reconcile with the appellant, and he was rejecting her.

[ 25 ] The Reasons then address the events of Sunday, August 24 th . The Trial Judge states that “another confrontation” over the complainant’s “new” cell phone takes place as “he wanted to, again, read her text messages”. The Reasons state that the complainant testified that the appellant took the cell phone “from her purse, as she was trying to get it and he was pushing her, he was grabbing her by the arms and he was being violent with her. The end of that confrontation was that she left the house barefoot in her nightgown with only her wallet and car keys, leaving the cell phone behind and went to a friend and client, she being a personal trainer, who testified that she appeared on her front door extremely distraught, very upset and clad as I’ve described it. That friend has described marks on her arm, which appeared to be left by fingers and also other bruises.”

[ 26 ] The Reasons then state:

Now, the defendant has denied hitting her, using force against her. Although, he admits that there was some confrontation over her cell phone. He says that he was simply holding it away from her and she was coming after him. The young son was called to basically corroborate his father. Obviously the boy is in a difficult position when asked to testify between the parents, but I’m not satisfied that he saw the whole confrontation, and I think there’s other evidence to indicate that the defendant’s version is not really credible. For one thing, there’s the distraught condition of the complainant, how she left the house, how she was observed by her friend. There is the marks on her which he somewhat cavalierly said to the effect that she is clumsy and must have hurt herself on her exercise machines in the basement. I think that was a pretty facile remark, which I don’t accept.

[ 27 ] The Trial Judge refers to what he describes as other evidence which corroborates the complainant’s version of events. He references the fact that the appellant called the complainant’s two sisters so that they would tell the complainant “not to call the police.” The Trial Judge states that in the conversation with the sisters,

he used the words, ‘a little rough’ with her. I think he admits pushing her. That’s enough to constitute an assault regardless of the details---whether the details she has testified to are completely established and the fact that he’s admitted to being rough with her and pushing her. There is the fact that he was still angry. He was apparently angry over the missing posters. He was angry over the whole situation and he wanted, for simply curiosity, to read what she was texting on her new cell phone. It was he who wanted her cell phone, not the other way around.

I’m satisfied beyond a reasonable doubt that the force was applied to the complainant intentionally on the Sunday night without her consent, and accordingly he’s found guilty.

[ 28 ] Counsel for the Crown and the accused made extensive submissions to the Trial Judge on June 29, 2010. Both counsel stated that the application and analysis in R. v W.(D) was appropriate.

Principles of Law

[ 29 ] In R v R.E.M. 2008 SCC 51 , [2008] S.C.J. No. 52 (S.C.C.) paras 1 , 37-38, the Supreme Court states that Reasons for Judgment have three purposes: to tell the parties why the decision was made, provide public accountability for the decision, and permit effective appellate review. Reasons are not to be viewed in isolation; rather they must be assessed in the context of the record, the issues and the submissions of counsel at trial. The Supreme Court has stated that the functional purpose of reasons is fulfilled if, read in context they show why the judge decided as she or he did; they need not show how the judge arrived at the decision. Therefore, the analysis relates to whether the reasons reveal the basis for the verdict reached and whether the trial judge has seized the “substance” of the matter.

[ 30 ] The task for the appellate court is to determine whether the Reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveal the basis for the verdict. Appellate Judges are not to dissect, parse or microscopically examine the reasons of a Trial Judge. ( R v. R.E.M. supra (S.C.C.) paras. 53, 55-56; R. v Cresswell 2009 ONCA 95 , [2009] O.J. No. 363 (C.A.) para. 14 ; R. v. Sparrow 2008 ONCA 616 , [2008] O.J. No. 3465 (C.A.) para. 56 )

[ 31 ] Provided that the Trial Judge meets the functional test, the fact that the Trial Judge fails to articulate or follow the steps identified in R. v. W.(D). does not warrant appellate intervention ( R. v. C.F. 2010 ONCA 424 , [2010] O.J. No. 2499 (C.A.). Further the Trial Judge is not required to consider all the evidence or answer each and every argument of counsel ( R. v. Escobar [2010] O.J. No. 3153 para. 7-8 .)

[ 32 ] A failure to articulate each finding or conclusion in the process of arriving at a verdict does not necessarily warrant appellate intervention ( R. v. R.E.M. supra (S.C.C.) para. 18.

[ 33 ] Even if the Reasons for Judgment are inadequate, this does not automatically result in a new trial. The appellate court must go on to determine if the basis for the trial judge’s decision is apparent from the record, even without being articulated. ( R. v. El-Merhabi , 2008 ONCA 552 , [2008] O.J. No. 2735 (C.A.).

Analysis

[ 34 ] Counsel acknowledge that credibility was the central issue at trial.

[ 35 ] The appellant submits that the Reasons for Judgment contain statements that are not factually accurate to the trial record.

Events of Sunday August 24

(a) The appellant testified in relation to Sunday, August 24 th as follows (Transcript April 27, 2010 pg. 72)

Q. And before you went downstairs, at or about the time that you were struggling with the phone, and turning it over to Marshall, did you make any physical contact with Charmaine in terms of pushing her or doing anything physical with her?

A. I tried to push her away from me as she was pushing on me.

Q. Why were you doing that?

A. So she was –she was—she was attacking me.

Q. Did you attempt to put your hand on her mouth, or over her mouth, or in the vicinity of her mouth at any point?

A. No, I did not.

Q. Do you remember making any contact with her mouth area?

A. No. I remember trying to push her off me, that was it. And then I handed Marshall the phone.

(b) The complainant’s testimony is that following an altercation in the downstairs area of the home, the appellant grabbed her in the hallway landing half way to the second floor. She then made her way to the master bedroom and took her cell phone from her purse, following which she states the appellant dragged her to the hallway, during the course of which she handed the cell phone to her son Marshall, who was present and he took it downstairs.

(c) As previously summarized the appellant’s version of the events the Sunday evening is that the complainant was in the master bathroom, and he took her new cell phone from her purse on the bed to see who she had been communicating with. He testifies that the complainant came out of the bathroom and came at him pushing, grabbing, punching and scratching him. The appellant states that he handed the cell phone to his son Marshall who took it and ran downstairs.

(d) The son Marshall testified that he observed that his mother was pushing his father, jumping up on him and screaming at him. Marshall states that his father handed him the cell phone. He then took the phone downstairs followed by his mother and father. His mother then left the home.

(e) The complainant’s testimony on June 18, 2009 relating to the events of Sunday, August 24, is as follows: (Transcript Pg 93-94):

Q. And what happened?

A. He grabbed me.

Q. And where are you now?

A. In the hallway.

Q. And is this the hallway outside the boys’ shared bedroom and the master bedroom?

A. Yes

Q. And at this point do you remember where Marshall is?

A. Yes. He –the doorway

Q. I’m sorry?

A. His doorway. He can see in. So we have a hallway because it’s not a very big house so his doorway he can see the hallway.

Q. All right. And you believe he was in the bedroom?

A. I know he was in his bedroom

Q. All right. And where did Basil grab you?

A. From the steps almost to the landing of my hallway.

Q. All right. And what part of you was grabbed by Basil?

A. My whole body.

[ 36 ] The Trial Judge in his Reasons states that he is not satisfied that Marshall saw the whole confrontation. However, the testimony of the appellant and the complainant and indeed Marshall, is that he did witness the altercation between his parents, and his testimony corroborates his father’s account. Except for the comment made, it is not understandable how the Trial Judge came to the conclusion that Marshall did not observe the interaction between his parents. Further, as the transcript demonstrates, the appellant never denied using force against the complainant. Therefore, the Trial Judge’s statement that “the defendant has denied hitting her, using force against her” is not factually correct. He testified that he pushed the complainant away as she was pushing on him.

[ 37 ] In the context of considering “other evidence to indicate that the defendant’s version is not really credible”, the Trial Judge states that there are marks on the complainant’s body “which he somewhat cavalierly said to the effect that she is clumsy and must have hurt herself on her exercise machines in the basement. I think that was a pretty facile remark which I don’t accept.” The transcript of April 27, 2010 (pgs. 78-79 and 106) references the appellant’s testimony. In his examination-in-chief, the appellant was shown photographs marked collectively as exhibit # 2, and he was asked if any of the bruises were attributable to any physical contact between him and the complainant on that particular weekend. The appellant states in-chief, that the bruise or mark to the “left triceps” area was attributable to him as he physically resisted her advances while sitting on the couch prior to the Sunday evening. He testified that he did not know how she got the bruises on her legs. In cross-examination, the following exchange took place:

Q. And your evidence is that the bruises on her legs you think came from her walking into the weight equipment?

A. I don’t know where it came from. It could come from anything. It could probably come from anything. It could come from-how many times- the bruises on her arms are most likely from me because I had to physically remove her off me, and she fell on the ground and would bounce right back up. I could not –like a fly on a piece of bread, that’s correct

[ 38 ] The complainant testified that over the course of four days, (Thursday to Sunday), the appellant pushed her back dozens of times as he resisted her efforts to reconcile. (Transcript June 18, 2009 pg 138-140):

Q. Can you estimate for us as to how many times that you were pushed away over the course of that four- day weekend? Dozens?

A. Yes.

Q. The pushing that you’ve described, each time that there was a push, that is from him to you, that was in connection with your trying to embrace him, correct?

A. Correct.

Q. Right. Now let’s deal with this kicking incident. When did that take place?

A. I think the Saturday

Q. Is that when you knelt down and tried to put your head in his lap?

A. Yes

Q. So again, the kicking incident took place at the time you were trying to project yourself onto him, correct?

A. I was able to kneel so he couldn’t push me so then he was more-then he- I wasn’t prepared for him to kick me.

Q. Right. But you were trying to put your head in his lap?

A. Yes

Q. And what were you trying to do by putting your head in his lap?

A. I was saying I was sorry.

Q. And your head was in his lap and this was on Saturday afternoon, correct ma’am?

A. Yes

Q. And he had not asked you to put your head in his lap?

A. I didn’t ask him to kick me either.

Q. But he kicked you, if he did at all, but that motion was in response to getting you away from him correct?

A. He could have pushed me off.

Q. But that was in response to his getting you-his trying to get you away from him, correct?

A. He could have pushed me off with my shoulders.

Q. I’m going to suggest to you finally now, that whatever actions he took, it was in relation to trying to get you away from him, isn’t that right?

A. Right.

[ 39 ] The Trial Judge’s findings in relation to the marks on the body of the complainant do not accord with the complainant’s testimony, even if he did not believe or accept the appellant’s testimony. The Trial Judge’s findings relating to marks on the body do not accord with the trial record.

[ 40 ] The Trial Judge then considered the evidence of the phone calls made by the appellant to the complainant’s sisters.

[ 41 ] The sister Cheryl Cruz, testified in-chief (Transcript June 18, 2009 pg. 11 and 15), that in the course of the phone conversation, the appellant said that “he was a little rough on her.”

Q. He says he was a little bit rough on her?

A. Yes, when he was trying to get the phone.

Q. Okay. And what other information did he say?

A. I –really that was it.

Q. Okay. And did he tell you how he was a little bit rough on her?

A. I think – well, he was grabbing the phone you know he might have just pushed her.

Q. Okay. He pushed her?

A. Yeah

Q. And did he say anything further in that conversation?

A. Well he said that he’ll be spending the night in jail then so.

Q. Okay. And was there any further conversation with him?

A. After that, no

In cross examination

Q. And apparently there had been a struggle over the cell phone, you took that?

A. I guess, yes

Q. Correct?

A. Yup

Q. And in the course of that, I guess you related the push to the struggle? I assume you put two and two together?

A. Yeah, he told me he had-he pushed her.

Q. Right

A. Yup

Q. And he mentioned that in connection with the struggle for the telephone and the argument about the telephone, correct?

A. Yes

[ 42 ] The second sister Charina Cruz, testified in cross-examination (Transcript June 18, 2009 pgs. 34-35), that she received a “frantic phone call” from the appellant and he was “clearly looking for my sister.”

Q. But you didn’t get much about what the history had been or why he wanted……

A. Well he wanted me to get a hold of my sister so that she wouldn’t call the cops on him

Q. Right, but he wasn’t very clear about what it was that was the subject matter of the dispute?

A. He said that there was a situation…

Q. Right

A. …. and he pushed her, grabbed her cell phone and that’s about the extent of it.

Q. So you learned from him the detail that there had been a cell phone involved, correct?

A. Yes

Q. And that in the context of that, there had been a push correct?

A. Yes

[ 43 ] The Trial Judge’s finding that the appellant admits pushing the complainant, appears not to be understood in the context to which the appellant testified as summarized in para. 35-37 above. Further, if the Trial judge is referencing the sisters’ evidence, again the context is absent.

[ 44 ] Therefore, I find that on a number of central issues, the Trial Judge’s Reasons do not accord with the trial record.

Live Issues

[ 45 ] The appellant raises a number of “live issues” which relate to the credibility and reliability of the complainant’s testimony, but are never mentioned or resolved in the Reasons for Judgment. The Reasons disclose that the Trial Judge was considering evidence which corroborated the complainant’s version of events. Yet, the Trial Judge did not examine the veracity or accuracy of the complainant’s evidence. More particularly, the following “live issues” are not discussed or referred to in the Reasons.

(a) KGB Statement

[ 46 ] The complainant testified that she gave a statement to Sgt. L. Boggs on August 24, 2008 at # 18 Division in Whitby, Ontario. She suggested that in relation to the text messages on her cell phone, they were “just communications between girls.” In examination-in-chief, the complainant testified that she did not tell the police in two statements everything she testified to at trial. Her explanation was that she “didn’t want to air out the dirty laundry”, and she went on to state she didn’t want the appellant to lose his job.

[ 47 ] While the complainant’s testimony at trial was that she was grabbed forcefully on the stairwell and dragged upstairs to the bedroom, she never told this to Sgt. Valks in the KGB statement. In the KGB statement she was specifically asked about the conduct that gave rise to the assault charge, and the complainant stated that he put his hand over her mouth. When asked if he did anything else she responded “No.” Two days later she told Detective Bagg, (a Professional Standards Investigator), that the appellant followed her upstairs to the bedroom. Her testimony at trial then conflicts with statements given to two police investigators. While the case turned on credibility, these inconsistencies in the complainant’s testimony are not discussed or resolved.

(b) Testimony of Sgt. Nicole Hamilton

[ 48 ] Sgt. Hamilton was a mutual friend of the complainant and the appellant. She testified that after the appellant was charged with assault, she was contacted by the complainant. The complainant told Hamilton that she had told the appellant and the police that she had gone out for lunch with Hamilton, and that “Basil was upset about that when he was away.” Hamilton testified that the only time she was ever out to lunch with the complainant was in “July.” Sgt. Hamilton testified that she asked the complainant why she was getting her involved in the matter, and the complainant stated she wanted her to back her story and that she had to protect the police officer she was secretly seeing “because he was in a bad spot.” Sgt. Hamilton testified that she told the complainant that she was not going to lie to the police, and that would be a criminal offence. Following this conversation, Sgt. Hamilton testified that she received a number of text messages from the complainant, one of which stated that the complainant was trying to do “damage control” when she made the request.

[ 49 ] In her testimony of June 18, 2009, the complainant denied that she sent the text message referred to in Sgt. Hamilton’s testimony. Later, at the continuation of the trial on September 25, 2009, the complainant admits that she did send the text message. This rather serious attempt to involve another person to concoct evidence, and the inconsistency in the complainant’s testimony is not mentioned or resolved in the Reasons for Judgment.

(c) Testimony of William Ing

[ 50 ] The appellant seeks to have the evidence of William Ing apply on this appeal. However, I have concerns about the weight to be attached to his testimony, as it appears that Mr. Ing’s testimony was never put to the complainant when she testified, and accordingly it breaches the rule in Brown v. Dunn . I therefore will not consider his testimony in relation to the issues on this appeal.

Inadequacy of the Reasons for Judgment

[ 51 ] I find that the insufficiency of the Reasons for Judgment of the Trial Judge do not permit appellate review on the central issue and the “live issues”. Accordingly they amount to an error of law.

[ 52 ] I find that there are significant conflicts in the evidence concerning key issues that are not addressed in the Reasons. I also find that there are conflicting theories for why the Trial Judge might have decided as he did, some of which could constitute reversible error. In particular, the Trial Judge’s Reasons for rejecting the exculpatory evidence of the son Marshall, as well as that of the appellant, is not understandable based on the record. Here where the prosecution’s case is not strong, the complainant’s credibility is suspect and the accused’s testimony is not obviously incredible, then it was incumbent on the Trial Judge to provide a reasoned explanation for rejecting the appellant’s evidence. ( R. v. S.J.D. 2004 , [2004] O.J. No. 2142 at para. 30 (C.A.). In this case, the Trial Judge’s Reasons are not adequate.

[ 53 ] The appellant’s factum suggests that the Trial Judge did not consider the defence of self-defence. I have reviewed the submissions made to the Trial Judge, and this defence was not advanced at trial. Accordingly, I am not considering this issue on this appeal.

Conclusion

[53] In the result, the conviction is set aside and a new trial is ordered.

The Honourable Mr. Justice J. Bryan Shaughnessy

DATE RELEASED: April 13, 2012