ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-0078
DATE: 2012-06-13

B E T W E E N:

HER MAJESTY THE QUEEN

Alex Hardiejowski for The Crown

Respondent

• and -

KEVIN NOWEGEJICK,

Leon A. Nicol , for the Appellant

Appellant

HEARD: April 18, 2012, at Thunder Bay, Ontario

Mr. Justice J.S. Fregeau

Reasons On Appeal

[ 1 ] On June 27, 2011, the Honourable Justice D. Pettit Baig of the Ontario Court of Justice (the “learned trial judge”), found the appellant guilty of the offence of assault causing bodily harm contrary to s. 267 (b) of the Criminal Code of Canada . The appellant was sentenced to sixty days incarceration, to be served intermittently. Corollary orders, including a ten year weapons prohibition and a one year probation order, were also made.

[ 2 ] The appellant has appealed both his conviction and sentence. The grounds for appeal are as follows:

1. That the learned trial judge erred in law in failing to consider the test to be used by trial courts to resolve credibility issues as set out in the Supreme Court of Canada case of R . v. W.(D.), 1991 93 (SCC) , [1991] 1 S.C.R. 742 ;

2. That the learned trial judge erred in law in arriving at her verdict that the assaultive actions of the appellant continued after the immediate response to the bite without addressing contradictory evidence of the appellant, Sammi King and the appellant’s mother;

3. In the alternative, the appellant appeals the sentence of sixty days incarceration to be served intermittently.

[ 3 ] The appellant requests an order allowing the appeal, setting aside the conviction and ordering an acquittal. In the alternative, the appellant requests an order allowing the appeal and ordering a new trial. In the further alternative, the appellant requests an order varying the sentence imposed to a non-custodial sentence.

Background

[ 4 ] The appellant and his spouse, Ms. King, reside adjacent to the complainant and his spouse, Ms. Miller in an attached duplex in Thunder Bay, Ontario.

[ 5 ] On March 8, 2011, the complainant attended the appellant’s home immediately after the appellant had left for work. The complainant confronted Ms. King in regard to a noise complaint either she or the appellant had apparently made.

[ 6 ] Ms. King, upset as a result of this encounter, telephoned the appellant, advised him of the incident and told the appellant that the complainant had threatened her. The appellant returned home and immediately attended at the complainant’s door, accompanied by his spouse.

[ 7 ] The door was answered by Ms. Miller who had the complainant come to the door. The appellant invited the complainant outside. The complainant refused. The appellant pushed the complainant. The complainant then went outside and he and the appellant confronted one another. The two engaged in an altercation and exchanged blows. At one point, the complainant kicked the appellant in the stomach, lost his balance and was taken to the ground by the appellant.

[ 8 ] The complainant was straddled by the appellant and punched in the face. In response, the complainant grabbed at the appellant’s face and hair and put his thumb in the appellant’s eye. The complainant was then able to turn over onto his stomach while the appellant was still sitting on him.

[ 9 ] The appellant then put his arm under the complainant’s neck and the complainant bit the appellant’s forearm. The appellant then pushed the complainant’s face into the ground, breaking the complainant’s nose.

[ 10 ] The appellant’s mother, Stella Nowegejick, arrived part way through the altercation. Ms. Nowegejick testified that the appellant was sitting on the complainant when she arrived. Ms. Nowegejick testified that she saw no blows thrown by either the complainant or the appellant.

Positions of the Parties

The Appellant

[ 11 ] The appellant submits that the learned trial judge did not make it clear from her reasons that she had based her decision on the whole of the evidence of all witnesses, rather than on a weighing of some of the evidence.

[ 12 ] The appellant concedes that it is not necessary for a trial judge to articulate the exact words of R. v. W.(D.) , nor to follow the formula rigidly. However, the appellant submits that where, as in the case at bar, the outcome of the trial turns on the credibility of the complainant and appellant, the trial judge’s reasons must make it clear that, in departing from the R. v. W.(D.) formula, she has not inadvertently shifted the burden of proof.

[ 13 ] The appellant submits that the trial judge accepted the evidence of the complainant and failed to take into account the contrary evidence of the appellant.

[ 14 ] The appellant further submits that the reasons of the learned trial judge were insufficient and failed to expressly address legal issues raised or contradictory evidence, thus leaving an inadequate record for appellate review. It is submitted that this is an error of law necessitating a new trial.

[ 15 ] In regard to sentence, the appellant submits that the learned trial judge erred in law in sentencing the accused without any consideration being given to the fact that the accused is an Aboriginal offender. It is submitted that the learned trial judge, because the accused is an Aboriginal offender, was required to conduct a Gladue analysis and consider s. 718.2 (e) of the Criminal Code , regardless of the seriousness of the offence.

[ 16 ] The appellant submits that the failure to do so is an error in law.

The Respondent

[ 17 ] The respondent submits that the purpose of the procedure and script set out in R. v. W.(D.) is to ensure that the trier of fact does not inadvertently shift the burden of proof to the accused or apply the wrong standard of proof. A failure of a trial judge to repeat the exact text of R. v. W.(D.) verbatim in a case in which a complainant and accused testify and which turns on credibility is not an error in law, as long as the reasons confirm that the burden of proof has remained on the Crown throughout and that the correct standard of proof has been applied.

[ 18 ] The respondent submits that the reasons of the learned trial judge confirm she did neither. The respondent submits that a reading of the entire transcript of evidence, together with the reasons of the learned trial judge, confirm that she considered all of the evidence and was satisfied beyond a reasonable doubt that this was not a consensual altercation. The respondent submits that this finding is fully supported by the evidence.

[ 19 ] The respondent submits that a trial judge’s obligation to provide adequate reasons depends on the circumstances and context of each case. It is submitted that where the record as a whole, including the reasons, plainly indicates the basis for a trial judge’s decision, deficiencies in the reasons will not support appellate intervention.

[ 20 ] The respondent submits that to succeed on an appeal based on the insufficiency of a trial judge’s reasons it must be shown that the reasons are deficient and that the deficiency has caused prejudice to the exercise of the appellant’s right of appeal.

[ 21 ] The respondent submits that a trial judge’s failure to expressly mention relevant evidence or the evidence of one or more witnesses is not reversible error per se . What must be clear from the reasons, in the respondent’s submission, is that the trial judge heard and considered all of the evidence in coming to her conclusion.

[ 22 ] The respondent submits that trial counsel made no reference to the appellant’s Aboriginal status during the sentencing phase of the trial and that the requirements of s. 718.2 (e) were therefore not triggered. The respondent candidly acknowledged, during oral submissions on this appeal hearing, that the appellant’s Aboriginal ancestry would have been patently obvious to the trial judge.

Discussion

[ 23 ] The grounds of appeal as to conviction are dismissed.

[ 24 ] The purpose of adhering to the procedure set out in R. v. W.(D.) is to avoid an inadvertent shifting of the burden of proof in a case where a complainant and an accused have both testified and the outcome of the trial turns on their credibility as witnesses.

[ 25 ] My review of the transcript of the evidence and the reasons of the learned trial judge indicate that the learned trial judge did consider the whole of the evidence and did not inadvertently shift the burden of proof to the complainant. The entire record also makes clear the basis for the decision of the learned trial judge.

[ 26 ] The learned trial judge found as a fact that this was not a consensual fight. It was found that the accused initiated the altercation by confronting the complainant in his own home and then continuing the altercation outside of the home. Once the complainant was put to the ground by the accused, the learned trial judge found that the accused, at approximately 310 lbs., had total control over the complainant and continued to assault him.

[ 27 ] When the complainant bit the arm of the accused, the learned trial judge found that “the accused then grabbed (the complainant) by the hair, pulled him off his arm, and pushed his face into the driveway. He did this because he was angry with (the complainant).”

[ 28 ] These findings are fully supported by the evidence. The appellant admitted in cross- examination that he attended at the complainant’s home for the purpose of fighting him. The appellant also acknowledged in cross-examination that he pushed the complainant’s face into the driveway because he was angry with him. The appellant acknowledged that the complainant suffered bodily harm.

[ 29 ] The trial judge expressly stated that she had considered the whole of the evidence in coming to a conclusion that all elements of the offence had been proven beyond a reasonable doubt. In my opinion, the conclusion is supported by the evidence. The record as a whole plainly indicates the basis for the learned trial judge’s decision.

[ 30 ] The appeal as to sentence is granted. Counsel for the appellant, who was also trial counsel, conceded that he had not informed the learned trial judge of the appellant’s Aboriginal status, ordered a Gladue report or made any submissions during the sentencing hearing as to s. 718.2 (e) of the Criminal Code . However, Crown counsel acknowledged that the appellant’s Aboriginal status was obvious due to the appellant’s name and physical appearance.

[ 31 ] The law in Ontario requires that the Gladue analysis take place in all cases involving an Aboriginal offender. This is regardless of both the seriousness of the offence and whether defence counsel has raised the issue. Failure to do so amounts to an error in law. This is clearly set out by the Ontario Court of Appeal in R. v. Kakakagamick , 2006 28549 (ON CA) , [2006] O.J. No. 3346 at paragraphs 31 and 38 :

“31. This Court recently held that the failure to give adequate weight to an offender’s Aboriginal status in accordance with s. 718.2 (e) of the Criminal Code and Gladue amounts to an error of law: R. v. Brizard, [2006] O.J. No. 729, para. 3 . In my view, the absence of any reference at trial to the requirements of s. 718.2(e) of the Criminal Code and what I view as insufficient reference to the principles in Gladue in this case amounts to such an error of law. These inadequate references at trial, and the absence of any reference on appeal, unfortunately reveal to me a lack of understanding of the requirements of s. 718.2 (e) and Gladue.

38. It is important to emphasize, as this Court held in R. v. Jensen (2005), 2005 7649 (ON CA) , 74 O.R. (3d) 561 at para. 27 , that the law in Ontario requires that the Gladue analysis be performed in all cases involving an Aboriginal offender, regardless of the seriousness of the offence. I would note that this is also the law in Alberta: see R. v. Abraham (2000), 261 .A.R 192 (C.A.)> See also Gladue , para. 79.”

[ 32 ] The appellant is an Aboriginal offender. This was, or should have been, apparent to the trial judge. The trial judge’s reasons on sentence make no reference to the appellant’s Aboriginal status and therefore also did not address s. 718.2 (e) of the Criminal Code or the principles of Gladue . This was an error in law.

[ 33 ] The appeal as to sentence is allowed. The sentence imposed by the trial judge is set aside. Pursuant to the provisions of s. 687(1) (a) of the Criminal Code , this matter shall be placed before this court for a sentencing hearing on a date to be arranged by counsel in consultation with the trial coordinator. The presiding justice shall then decide what evidence is required to fully address s. 718.2 (e) of the Criminal Code and the principles of Gladue .

_______ ”original signed by”_ ___

The Hon. Mr. Justice J.S. Fregeau

Released: June 13, 2012

COURT FILE NO.: CR-11-0078
DATE: 2012-06-13

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN, Respondent - and – KEVIN NOWEGEJICK, Appellant REASONS ON APPEAL Fregeau J.

Released: June 13, 2012

/mls