ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA 176/08
DATE: 20120618

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – DOUGLAS PENNER Appellant

Elizabeth Stokes , for the Crown/Respondent
Leo Adler , for the Appellant

HEARD: June 13, 2012

KELLY J.

REASONS FOR DECISION

[ 1 ] The Appellant was charged and convicted of assaulting his 12 year-old daughter on November 5, 2008. The Appellant appeals against the conviction. He submits that the verdict was unreasonable as it was based on a misapprehension of the evidence. [1] I do not agree and for that reason, the appeal is dismissed.

Was the verdict unreasonable as it was based on a misapprehension of the evidence?

[ 2 ] The Appellant submits that the evidence of the complainant regarding the incident and the injuries she sustained were both internally consistent and inconsistent with the evidence of other witnesses. He submits that the evidence was simply too unreliable in order to sustain a conviction.

[ 3 ] The Appellant submits that due to the inconsistencies in the evidence, the photographs of the injuries could not be relied upon to secure a conviction. He submits that the Appellant did not receive a fair trial because the evidence was not scrutinized in a balanced fashion. I do not agree. The trial judge did not commit any reversible error in her treatment of the evidence.

The Credibility/Reliability Issues

[ 4 ] Counsel for the Appellant submits that the trial judge focussed solely on the credibility of the complainant rather than undertaking a proper reliability assessment as required and set out in the case of R. v. Sanichar . [2] I do not agree.

[ 5 ] The findings of the trial judge were made following a trial and an ability to observe the witnesses testify. She was in the best position to make findings with respect to the credibility and reliability of the witnesses. It is clear, from her reasons, that she was aware that reliability is not the same as credibility. The trial judge dealt with both and as such, great deference should be given to her credibility findings. [3] Absent a misapprehension of the evidence or an error in the manner in which the trial judge approached her consideration of the evidence, there is no basis for an appellate court to interfere.

[ 6 ] Further, I have reviewed the submissions of Counsel at trial (who was also Counsel on appeal). The reasons for judgment were responsive to the issues raised by counsel.

[ 7 ] The evidence of this trial was given over a four day period and was concluded in September, 2008. Over one month later, the trial judge provided her reasons in a thorough and thoughtful judgment. In her reasons, she addressed the inconsistencies in the evidence of the complainant both internally and with the evidence of the other witnesses. Notwithstanding any inconsistencies or any concerns about the complainant’s reliability, the trial judge found that her evidence could safely be relied upon to find that the charges were proven beyond a reasonable doubt.

[ 8 ] Examples of how the trial judge dealt with the inconsistencies in the evidence that were raised by Counsel at trial are as follows:

a. The Commencement of the Argument

[ 9 ] The trial judge addressed the inconsistencies in the evidence regarding the commencement of the assault and how the Appellant entered the room where the complainant was located:

a. The complainant testified that the Appellant came into the room because she slipped on her brother’s wet bathing suit, causing her brother to bump his head. This made him cry following which the Appellant entered the room.

b. The brother testified that he and his sister got into an argument about watching a television program. He says that they both went to change the channel, he was pushed into a pole, hitting his head and that he began to cry, causing his father to come into the room.

[ 10 ] The trial judge did not find that the reliability of the complainant’s evidence was affected (or that of her brother) as a result of the conflicting evidence as to the reason the Appellant entered the room. The fact is that there was a commotion that drew the Appellant’s attendance into the room. She found that any inconsistency concerning the reason for the Appellant coming into the room and assaulting his daughter could be explained by the intensity of the events that followed the Appellant entering the room.

[ 11 ] Even if the trial judge misapprehended the evidence as to “why” the Appellant entered the room, it was neither material nor consequential to her reasoning process and as such could not have affected the verdict.

b. The Assault Itself

[ 12 ] The trial judge addressed the evidence of both the complainant and her brother about the assault itself:

a. The complainant said that she was pushed, hit in the face about 10 times (according to her evidence at Court) and 20 times (as told to the police). She said that while her father was hitting her, he was also yelling. He was asking the complainant if she was telling him “bullshit”.

b. The brother did not witness any of the assaults because he was lying on the floor and crying. However, the brother said that he was watching the assault on and off and wanted to stick up for his sister but was too frightened to do so. He was about five feet from the Appellant and at times was curled up in a ball in the fetal position, crying. He did not actually see the Appellant hit the complainant.

The brother was able to see the Appellant’s shadow as his back went up and down and saw the shadow of his father’s hand over the bed. He testified that he heard the smacking sound of a hand and that he heard a “lot of smacks”. He heard his sister screaming “stop, stop” while the Appellant kept telling the complainant to “shut up”.

The brother also heard the Appellant ask the complainant if she was telling him “bullshit”.

[ 13 ] Counsel for the Appellant submits that the evidence of the complainant was not reliable. However, the evidence of the brother corroborates that of his sister. He saw the shadow of the Appellant which appears to have been consistent with the assault. He heard the smacking of a hand and in fact heard a lot of them. He heard his sister screaming at the Appellant to “stop” and heard the Appellant telling the complainant to “shut up”. Lastly, he echoed the words of his sister: the Appellant was asking the complainant if she was telling him “bullshit”. [4]

[ 14 ] Based upon the trial judge’s findings as set out above, she concluded that the evidence of the brother was compelling as it was detailed and descriptive. Put simply, she found the brother to be a credible witness who corroborated the evidence of his sister. Such a finding should be given great deference and is supported by the facts. [5]

c. The Photographs and the Bruising

[ 15 ] There were a number of photographs taken of the injuries that the complainant says she sustained as a result of the assault by the Appellant. The trial judge accepted that the photos are an accurate reflection of the injuries caused by the Appellant regardless of the inconsistencies in the evidence.

[ 16 ] Counsel for the Appellant submits that such photos are of little value and are not reliable evidence. Firstly, Counsel submits none of the injuries that the complainant says gave rise to these bruises were observed by the police when they attended at the scene and spent a number of hours with her. Secondly, he submits that the trial judge relied upon her own experience to reach a medical conclusion as opposed to a legal conclusion about the bruises and whether they were caused by the Appellant. Lastly, the evidence as to “when” the photos were taken is inconsistent.

[ 17 ] The trial judge dealt with the contentious issues of the photographs of the injuries. In her reasons for decision, she referred to the following:

a. The complainant testified that she had marks on her upper eyelid, a bruise to her left shoulder and the right side of her jaw and finger marks on her upper leg. She believed that the photos were taken that night upon arrival at her mother’s home and the next day, in the afternoon. She believes that she took at least one photograph herself that night.

b. The brother testified that he believed that a picture of the complainant’s eye was taken that night (when they got home).

c. The mother testified that she did not see any marks on the complainant until the next morning when she saw a bruise above her eye and a mark on her thigh. It was at that point that she took the photos.

d. All three police officers testified that notwithstanding observations and feeling the area on the complainant’s body where the assaults were alleged to have occurred, they did not observe any injuries, bruising or tenderness.

e. The photos were only provided to the police a number of days after the incident.

[ 18 ] After considering this evidence, the trial judge found that it is possible that the officers and the mother did not observe any bruising immediately after the occurrence. She found that bruising can worsen as time progresses. This is a position that was also expressed by one of the police officers who testified as a defence witness. Sgt. Sousa-Guthrie, with twenty years of experience, testified that: “most of the time, bruises don’t really show up for a day or two”.

[ 19 ] The trial judge also drew upon her own experience to conclude that bruising can worsen as time progresses. Accordingly, she found that the bruise shown in the photo might not have been evident immediately after the incident and perhaps was observed 12 to 15 hours later. There is a basis for such a finding as Sgt. Sousa-Guthrie stated this in her evidence. Further, bruising is a common experience and it is open to the trial judge to draw an inference of this nature. I do not find that she committed an error in doing so.

[ 20 ] I do not find that these facts give rise to the same result found by the Supreme Court of Canada in R. v. J.A.A. [6] as submitted by Counsel for the Appellant. In that case, the complainant alleged that she was sexually assaulted and that during the incident, she bit the Appellant’s finger as hard as she could. A police officer who interviewed J.A.A. shortly after the incident testified that he saw a cut on his finger that looked like a tooth mark. The trial judge accepted the lay opinion of the officer, amongst other things, and convicted J.A.A. It appears that the case was a “close one” as he found the complainant credible but the trial judge also commented favourably on the evidence of J.A.A.

[ 21 ] When the matter of J.A.A. reached the Supreme Court of Canada, it permitted the filing of fresh evidence. The fresh evidence was that of a forensic dentist who concluded that the mark on J.A.A.’s finger was not the result of a bite mark. The lay opinion of the officer was now challenged and accordingly, the trial judge’s reliance on the evidence of the bite mark was misplaced and of concern. That is not the case in this trial.

[ 22 ] There is no evidence before the Court in this case that demonstrates that the reliance by the trial judge on her finding that the bruises could have emerged well after the police had observed the complainant was faulty. In fact, the opposite is true: Sgt. Sousa-Guthrie, a witness called by the Appellant, supported such a view.

[ 23 ] There may have been conflicting evidence as to when the bruises emerged ( i.e. after the complainant arrived at her mother’s home at 3:10 in the morning as she said or, after she woke up, as said by her mother). However, the fact remains that the trial judge accepted the evidence that the bruises occurred due to the assault by the Appellant as described by the complainant who she found credible and reliable. Again, this is a finding that the trial judge is entitled to make and is supported by the evidence.

The Evidence of the Officers and the Sufficiency of Reasons

a. The Police Evidence

[ 24 ] Counsel submits that the trial judge did not consider the evidence of the officers in a comprehensive and detailed manner. For instance, he submits that if one were reading the reasons, one would not conclude that two of the three officers spent hours with the complainant and conducted a thorough review of the complainant to see if there were any marks on her body consistent with the assault. A third officer made similar observations, although he spent less time with the complainant: he saw no injuries.

[ 25 ] While the trial judge did not give a complete factual review of the evidence of the officers, she did refer to it in her reasons. Despite Counsel’s dissatisfaction with the attention given to this evidence by the trial judge, she accepted his submission: the police found no marks on the complainant while they were in her company.

[ 26 ] Counsel also submits that the trial judge either “misunderstood” or “misstated” the evidence of Officer Marks when she said in her reasons: “she could not see any marks on Chelsea, but that the lighting was very poor”. This finding was incorrect; it is submitted because in fact, the officer took the complainant to a better lit area where her observations were improved. Still, the officer observed no injuries. Again, this alleged “misstatement” is of no consequence because the trial judge accepted that in good light or in bad light, the officers observed no injuries consistent with the assault described.

[ 27 ] The reasons of the trial judge are not intended to be a “verbalization of the entire process engaged in by the trial judge in reaching a verdict”. [7] The trial judge heard the evidence of the officers and properly addressed it in her reasons.

b. Failure to Refer to Legal Principles

[ 28 ] Counsel for the Appellant submits that the reasons of the trial judge were insufficient because she failed to address “legal principles”. For instance, he submits that she did not review “the way that evidence of children should be assessed”. Perhaps she did not do so because Counsel submitted at trial that the complainant was a “very bright and articulate young lady”; that she is almost “14” and that she had an air of “sophistication beyond her age”. Based on this submission, it would not have been necessary to deal with legal principles regarding the evidence of child witnesses.

[ 29 ] Counsel made the submission that the only principle of law addressed specifically by the trial judge was that she found the Appellant guilty beyond a reasonable doubt. Again, perhaps she did not do so because in his submissions, Counsel did not refer to one legal case as precedent for any of the issues she had to address. The only time he did refer to a case was to respond to an issue raised by the Crown in regard to the “Spanking Reference” [8]

[ 30 ] This was a case where the result turns on fact-finding and not on the application of contested legal principles. The trial judge did what would be expected of her: the reasons focussed on telling the parties what evidence was believed and why it was believed. There is no need for the trial judge to “expound on matters that are well settled, uncontroversial or understood and accepted by the parties”. [9]

Conclusion

[ 31 ] Although this Court has jurisdiction to review findings of fact and credibility, this Court cannot retry the case. Counsel for the Appellant who was also Counsel at trial claims that this appeal is not simply a “repackaging” of the arguments he made at trial. I do not agree.

[ 32 ] I have reviewed the submissions of Counsel at trial and those submissions are similar to those that I heard in argument before me. The reasons given by the trial judge were responsive to the issues raised at trial and it appears that I am simply being asked to retry the case.

[ 33 ] In these circumstances, I find that the statement made by the Court of Appeal in R. v. Drabinsky [10] is applicable here:

¶39 This court cannot retry the case and substitute its opinion of the credibility of witnesses and the force to be given to fact-based arguments for the assessments made by the trial judge: R. v. W. (R.), 1992 , [1992] 2 S.C.R.122; R. v. Beaudry , 2007 SCC 5 , [2007] 1 S.C.R. 190.

¶40 Counsel for the appellants appreciate the significant limitations on fact-based appeals. They have framed their arguments in appellate review-friendly language, alleging various misapprehensions of the evidence, failures to consider relevant evidence, and failures to properly apply fundamental legal principles such as the presumption of innocence. However, stripped to their essentials, many of counsel's submissions invite and depend on a de novo evaluation of factual arguments raised at trial and considered and rejected by the trial judge in her reasons. Despite the language used to frame the submissions, many are, in reality, attempts to resurrect and reargue factual battles fought and lost at trial. Those arguments cannot succeed in this court.

[Emphasis added]

[ 34 ] For the abovementioned reasons, the appeal is dismissed.

Kelly J.

Released: June 18, 2012