ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-6663
DATE: 20130327
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
PATRICK PHILIPPEAUX
Appellant
Riad Tallim, for the Crown
Diane Condo, for the Appellant
HEARD: February 27, 2013
Summary Conviction Appeal Decision
JUSTICE L. RATUSHNY
[1] The appellant appeals his conviction of one count of assault against his spouse. He was granted a conditional discharge that was served without incident and ordered to provide a sample of his DNA.
[2] The Crown agrees the DNA Order should be quashed in the circumstances of the case including the relatively minor nature of the assault, the absence of a prior criminal record or contact with the police, assault simpliciter being a secondary designated offence and the absence of reasons from the trial judge for the DNA Order. I also agree and for these reasons quash the DNA Order made on October 13, 2011.
[3] The remaining grounds of appeal are that the trial judge,
misapprehended the appellant’s evidence and failed in his assessment of the essential elements of the offence;
failed to apply the principle of reasonable doubt to issues of credibility;
improperly shifted the burden of proof onto the appellant.
[4] These three grounds of appeal all hinge on the issue of whether the trial judge correctly applied the principles in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 in assessing the credibility of the evidence from the complainant and the appellant who were the only trial witnesses.
[5] The appellant submits the trial judge fell into error when he assessed and accepted the evidence from the complainant and then assessed the appellant’s evidence by comparing it to the complainant’s evidence that he believed. In doing this, the appellant alleges, the trial judge turned the two-witness case into a contest between them that required the appellant to explain away the complainant’s evidence. This resulted, the appellant argues, in the improper application of W. (D.), the improper shifting of the burden of proof to the appellant and the unwarranted rejection of the appellant’s evidence that his actions had amounted to an unintentional application of force against the complainant or, at the very least, an intentional application of minimum force against her in the context of their relationship.
[6] I have reviewed the trial evidence as well as the trial judge’s decision. While his decision is thoughtful and careful, it does provide grounds for the appellant’s contention that he was required to explain away the complainant’s testimony.
[7] The trial judge first reviewed the complainant’s evidence and then turned to a consideration of the appellant’s evidence. He commented that the appellant had agreed with large portions of the complainant’s evidence and, importantly, that the appellant agreed he had applied physical force to the complainant without her consent. The trial judge then instructed himself on the definition of assault in s. 265 (1) of the Criminal Code and the proper assessment of credibility as set out in W. (D.) and said,
As I already stated, I found the evidence of [the complainant] to be clear and convincing. I accept her evidence; she was a credible witness. I must, then, consider the evidence of [the appellant]. He, essentially, acknowledged the assault in his evidence although he did not term it or see it that way. His evidence does not, therefore, raise a reasonable doubt in the Court’s mind. While, as already indicated, I also have concerns with respect to his credibility regarding portions of his evidence, particularly in cross-examination, I do not need to further analyze and apply R. v. W. (D.) in the circumstances of this case. He acknowledged the assault in his evidence. (October 13, 2011 Decision of the Trial Judge, at p. 9)
[8] As I understand the trial judge’s process of analysis it was the following. First, he reviewed, assessed and stated he believed the complainant’s evidence. Second, he reviewed, assessed and accepted that portion of the appellant’s evidence that confirmed the presence of the essential elements of the offence of assault. Third, because the appellant had effectively acknowledged an assault, this led him to conclude that the appellant’s evidence did not raise a reasonable doubt as to whether the Crown had proved the assault beyond a reasonable doubt and that he did not need to further apply W. (D.) and consider whether the appellant’s evidence as a whole did raise a reasonable doubt. Fourth, he went on to express concerns as to the credibility of some of the appellant’s evidence, especially regarding the issues of the removal of the complainant’s bathrobe and underwear.
[9] I find the trial judge did fall into legal error in his analysis of the witnesses’ credibility. The error occurred subtly and seems to have been propelled at least in part by what the trial judge found to be the appellant’s acknowledgement that an assault had occurred. This caused the trial judge to pull up short of a full W. (D.) analysis so that it is not clear whether he allowed for the possibilities that the appellant’s evidence could be believed in part or whole or not at all without having to compete with the complainant’s evidence and, whether the whole of the appellant’s evidence raised a reasonable doubt as to his guilt. This, in turn, does not seem to have allowed for the consideration of the scenario advanced by the appellant that the three-minute incident with the complainant was a loving attempt by him to try to “fix” their marriage rather than an intentional application of force.
[10] I fully recognize that W. (D.) is not and should not be applied as a “ritual incantation” or “sacrosanct formula”: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499 (SCC), at paras. 29 and 59; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (SCC), at para. 23. The trial judge, however, did not indicate why he believed the part of the appellant’s evidence that supported the complainant’s testimony and why he rejected the part that did not support her testimony. He did seem to have turned the trial into a contest of credibility between the two witnesses with the result that the burden of proof was shifted onto the appellant and there was no indication whether the appellant’s evidence, considered in the context of the evidence as a whole, raised a reasonable doubt as to his guilt.
[11] It is for these reasons that I allow the appeal, quash the conviction and the DNA Order, and order a new trial.
Justice. L. Ratushny
Released: March 27, 2013
COURT FILE NO.: 10-6663
DATE: 20130327
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Riad Tallim, for the Crown
– and –
PATRICK PHILIPPEAUX
Diane Condo, for the Appellant
Summary Conviction appeal decision
Ratushny J.
Released: March 27, 2013