ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

COURT FILE NO.: 11-0067 (Guelph)
DATE: 2013 04 18

B E T W E E N:

HER MAJESTY THE QUEEN

A. S. Hamilton, for the Crown
Respondent

— and —

SHANE KLOOSTER

J. Rosenthal, for the Appellant
Appellant

HEARD: February 21, 2013

REASONS FOR JUDGMENT

[on appeal from conviction by
Justice R. T. Weseloh on September 15, 2011]

Hill J.

INTRODUCTION

[1] Mr. Klooster was convicted of an assault causing bodily harm. At the relevant time, the appellant was a bouncer at a nightclub in Guelph, Ontario. The complainant, Thomas Landell, was a patron of the establishment on April 11, 2010 when he was injured on the premises

[2] The prosecution theory was that the appellant used excessive force causing injury in attempting to eject Landell from the club. The defence position was that the injury inflicted to the complainant was accidentally caused during a lawful eviction of Mr. Landell from the club.

[3] After a two-day trial, the appellant was convicted. He was sentenced to 30 days’ incarceration and 18 months’ probation.

[4] Mr. Klooster appeals against conviction and sentence.

[5] For the following reasons, the appeal against conviction must succeed.

FACTUAL CIRCUMSTANCES

Prior to the Club

[6] Mr. Landell recalled that he and his companions attended a friend’s house on Saturday, April 10, 2010 at about 10:00 p.m. They were enrolled at the University of Guelph. On the complainant’s evidence, he had three or four one-ounce drinks of alcohol but was feeling sober when the group departed to attend a downtown bar.

[7] Adam Mouland, one of Mr. Landell’s friends, variously testified at trial that he consumed a couple of drinks, or some quantity he could not recall, before heading downtown. Although he felt “cognizant” of what was going on around him, he considered that he, Landell and Casey Anderson to all be “about the same level of intoxication … you know, definitely tipsy”. To Casey Anderson’s recall, his alcohol consumption at their friend’s place was “minimal, maybe one drink”.

[8] According to Mr. Landell and Mr. Anderson, they next went with Mouland to the Diplomat, a hotel in Guelph across the street from the Palace Nightclub. After a brief stay there, during which no alcohol was consumed, the group attended the Palace. At trial, Mouland had no recall of being at the Diplomat.

Drinking at the Palace

[9] The Palace is a large establishment with a dance floor and a number of bars. On Saturday night, the Palace is very busy. Mr. Landell’s group arrived shortly before midnight. Mr. Landell was ejected from the premises shortly after 2:00 a.m.

[10] In this period slightly in excess of two hours, on his evidence, Mr. Landell consumed “[p]robably just two drinks”. In cross-examination, the witness related that he was not certain how much alcohol he consumed. To the complainant’s recall, his group ordered their drinks at the same time. Adam Mouland testified that he had about five alcoholic drinks during his time at the Palace. Mr. Anderson also believes he consumed about five drinks at the nightclub.

Fighting at the Palace

[11] On April 10/11 2010, there were a number of disturbances and fights in the Palace. Patrons were ejected by uniformed security staff who were kept busy

[12] Shane Klooster, an employee of the Palace for two and a half to three years as a shift supervisor, key carrier, beer runner or security, was working on April 10/11 2010. His primary duty on this shift was a beer runner and assisting with security as necessary.

[13] Jason Aramini, the security supervisor at the Palace, testified that all security personnel at the club are trained and licensed with the provincial government. Mr. Aramini described the expectations for the security personnel. Staff were to separate and restrain fighting patrons. Everyone engaged in a fight was to be ejected from the club. Optimally, patrons were to be escorted by two staff members with no more force than necessary to remove a patron. At times, a security staff member might work alone.

[14] The appellant testified that everyone involved in an altercation in the club was to be removed whenever there was a fight. The combatants, staff and innocent patrons were at risk of injury.

[15] Mr. Mouland testified at trial that at about 2:00 a.m., though he did not consider himself inebriated, he may have bumped into someone and spilt their drink. He was separated from his friends at this point. He was swarmed and punched by three or four males and knocked down. He didn’t fight back. He “escaped” the altercation and sought out his friends. After about 10 minutes or so, he located them.

Mr. Landell Becomes Involved in a Disturbance

[16] According to Mr. Mouland’s testimony, the group who had attacked him a few minutes earlier re-appeared. He was punched in the left side of his face and knocked to the floor where he was “stomped”. At trial, Mr. Mouland maintained that Mr. Landell tried to help him to his feet. In his statement to the police, the witness stated that he had no idea exactly how Landell “got involved in the situation”.

[17] Mr. Landell recalled that four or five guys rushed Adam Mouland. At this point he felt very sober. He and Anderson went to assist their friend and two separate Mouland. The complainant described the scene in these terms: “everything goes wild and it’s like a scrum”; “it was really insane”; “there were fists everywhere. There was punching and tackling.”

[18] Mr. Landell testified that he and Anderson tried to get in between and break up what was going on. When Mouland was knocked down, he “sort of” got up on his own. There was a brief pause of sorts. At first, the appellant informed the trial court that he was not punched. However, under further questioning, he acknowledged that he was punched but only randomly and insignificantly without injury. Mr. Lelland testified that he did not punch or tackle anyone although he engaged in shoving or pushing. It was like a bar fight scene out of a movie: “It seemed that everyone started fighting with everyone, like it was just chaos”.

[19] Casey Anderson considered that by 2:00 a.m. he was lucid and sober. He recalled that with Thomas Landell’s help he tried to intervene to assist Mouland by forming a physical barrier. But the four males on the other side began throwing punches some of which hit Lelland. One or two punches hit the witness’ torso. There was a shoving match. In his statement to the police, Mr. Anderson stated that “fighting” had erupted as security staff arrived.

[20] Jason Aramini testified that it was “a bad night” at the Palace. There were numerous fights and some security personnel were injured. The April 10/11, 2010 night was “extremely busy” and by 2:15 a.m. at least 300 patrons remained in the club. The appellant testified that the Palace “was like a sardine can”. It was packed. There was “a lot of chaos” and fighting. Casey Anderson recalled people still on the dance floor at 2:15 a.m. Dayna Hoogendam, who had resided in a Guelph University residence with Mr. Landell in her first year of college, worked as a bartender at the Palace in April 2010. She witnessed several fights on the dance floor.

Security Intervenes

[21] Shortly after Mr. Landell heard an announcement dispatching security to the dance floor, he was placed in a headlock from behind and pulled back from the melee on the dance floor. The complainant testified that he was unaware that it was a security staff member who had taken control of him. He didn’t think there was any reason justifying his ejection. As he was dragged toward an exit, Mr. Landell sought to loosen the appellant’s grip as he was having difficulty breathing. To this end, he grabbed the appellant’s bicep and forearm. He did not punch the appellant. Mr. Landell testified that: “I believe he was hitting my face along the way” – a punch or two.

[22] The appellant testified that shortly after 2:00 a.m. he was directed by a manager to deal with a fight on the dance floor. Other security personnel were dealing with a nearby fight when he turned his attention to an ongoing shoving and punching match. He was alone. The appellant observed with respect to Mr. Landell and another person, shoving and “fists going back and forth in hook motions”. The appellant yelled to other security members dealing with the separate fight. He then intervened to prevent fighting and injury.

[23] On the appellant’s evidence, as he arrived at the scene of the fight, a couple of persons had backed off. He saw Mr. Landell just get up from the floor and again advance toward another group of individuals. While he did not see the complainant land any punches he observed him trying to throw a “hook” toward another male. Because Mr. Landell was closest and easiest to get hold of, he elected to remove him from the fight.

[24] The appellant testified that, as Mr. Landell continued to push and shove, from behind he grabbed his upper arms and pulled him back. He yelled out that he was ‘Security’. The appellant acknowledged that the music was still playing. While it was possible that Mr. Landell did not hear him, he found it hard to believe that he would not. Immediately Mr. Landell began to squirm and struggle. While the appellant was somewhat successful in restraining Mr. Landell’s arms, Landell managed to free his right arm. In the ensuing struggle, the appellant caught one or more elbows. With Mr. Landell’s continued resistance, the two ended up on the floor. Mr. Landell was on his hands and knees. The appellant feared that a grappling match would follow.

[25] The appellant decided to use a headlock manoeuver, also described as a rear guillotine, to remove Mr. Landell from the premises without hurting the patron. Mr. Armani testified that generally only supervisors employed this removal technique. The witness described the technique as “an instant lock” enabling the staff member to exert pressure and maintain escort control without harming a patron. It keeps a patron’s arms low as he is bent over.

[26] At trial, the appellant testified as to why he believed the chokehold, which he had only used on one prior occasion, was the best option for removing Mr. Landell:

At the time it was the only available hold and in the spur of the moment, it seemed the most effective at the time due to the position we were in.

My primary response. It’s the best response in that sort of situation. You can keep the person away, cognizant and upright.

… It doesn’t require that much pressure around his neck … once you have control of the chin, generally a person can’t remove themselves from it as their neck is smaller than their head.

[27] The appellant testified that he applied the headlock from behind and raised Mr. Landell to his feet. The patron’s head was at the appellant’s left hip/waste area. The appellant informed the trial court that as he walked the complainant toward an exit, avoiding tables along their route, Mr. Landell was grasping at the appellant’s left arm as he attempted to pull and twist his body out of the headlock. On the appellant’s evidence, for a second or two he would increase the pressure of the hold to reduce Mr. Landell’s resistance – while this could be restrictive of breathing it was designed to be “de-motivational”. The appellant testified that he loudly told Mr. Landell to stop resisting. The appellant intermittently felt blows to his back. He did not punch the patron. Mr. Landell reluctantly came along with him toward the exit, trying to plant his feet as they proceeded.

[28] With respect to events leading to Mr. Landell’s removal, Mr. Mouland testified that “it was all very fast for me”. The witness acknowledged some memory difficulties: “I’m not sure”; “I can’t recall fully”; there was “slight” vagueness in his recall. According to Mr. Mouland, as the appellant motioned his friend toward the exit, the complainant was not resisting. Mouland described the headlock as on the appellant’s right side. The witness testified that he was initially about 25 feet behind the appellant and his friend. He followed them closing the distance and to his recall he called out “stop, stop, he’s not resisting”. He considered that the appellant was being very aggressive throughout with an inappropriate escalation in force.

[29] At trial, Mr. Mouland testified that he had an unobstructed view of what was happening. In cross-examination, the witness was confronted with his statement to the police:

I don’t know how exactly Tom got involved in this situation. Therefore I can’t confirm if he had the injuries prior to being grabbed by the bouncer or not. Also, my point of view was from behind the bouncer who is walking away from me with Tom in a headlock, therefore I couldn’t see Tom’s face.

The witness agreed that he was at all times behind the other two. He could not say whether the appellant delivered any punches to his friend. Casey Anderson testified that Mouland’s view of things was obstructed.

[30] Mr. Anderson testified that after the appellant applied the chokehold from behind with his left arm, he bent Mr. Landell over, holding him at the waist, and said, “Stop resisting”. Landell’s head was even or slightly higher than the bouncer’s stomach and a little ahead of the appellant. On Mr. Anderson’s evidence, he was at all times about 6 feet from the appellant and his friend as events “happened very quickly” – “[i]t was all very, very quick”.

[31] According to Mr. Anderson, soon after placing Landell in the headlock, the appellant punched the complainant about five times with his right fist. In cross-examination, the witness conceded that he never saw a punch connect with his friend. The witness saw his friend occasionally moving his arms to his neck area as the appellant walked him along. Mr. Anderson testified that while he “couldn’t see what happened”, and though he lost sight of Mr. Landell’s hands and arms as they moved toward the appellant, it appeared quite likely that the complainant grabbed the bouncer – “I just couldn’t see”. He did not actually observe Landell strike the appellant. At trial, Mr. Anderson accepted that from his angle of view he could not see the left side of Mr. Landell somebody – “[s]ome of it was obstructed”.

Mr. Landell is Injured

[32] Dayna Hoogendam testified that she observed the appellant restrain “a guy throwing punches”. As the appellant walked Mr. Landell toward an exit using a restraint hold, she saw Mr. Landell “flailing his arms” rapidly and strongly trying to fight his way out of the restraint.

[33] The complainant testified that as he remained in the headlock, his head powerfully struck a four-foot-high wooden table three or four times. The witness initially stated that it was his forehead that made contact while subsequently stating that it was his face and teeth. Mr. Landell testified that he was “pretty dazed” and bleeding. On the complainant’s account, he was not pushing the appellant, and there was no loss of balance when the incident occurred.

[34] Mr. Mouland informed the trial court that it seemed that the appellant pushed Mr. Landell’s face into the bar, grinding his face or sliding his face across the bar or repeatedly hitting his face into the bar. Mr. Anderson testified that the appellant grabbed Mr. Landell from behind the neck or by the shirt collar and smashed or drove his face with extreme force three times into the heavy oak bar. In his statement to the police, the witness stated that the appellant “struck Thomas’ face onto the table area surrounding the dance floor two or three times.” Under cross-examination, Mr. Anderson adopted this version of events. The witness testified that he did not see Landell pushing the appellant into the bar rail – “… That’s not possible … I mean insofar as from what I saw”.

[35] The appellant testified that as Mr. Landell continued to struggle with a grip on his arm, the complainant surged ahead when they were within about six feet of one of the bars. They were on a wet, slippery laminate floor where drinks and ice had been spilled during the night. This surge forward was an unexpected surprise. In his experience, no one had ever tried to push forward while in a headlock.

[36] On the appellant’s evidence, as he maintained the headlock, Mr. Landell’s actions propelled the two of them forward – in the appellant’s words: “I’m just along for the ride at that point” – “any chance I had of stopping was slim to none”. The appellant testified that as he moved to brace his feet from rushing forward with Mr. Landell, his footing gave out – he attempted to stop “but we both ended up colliding with the bar”. As his feet gave out, the appellant’s right hip hit the bar hard enough to cause bruising while Mr. Landell’s forward motion continued:

My right head hit the bar ledge, slid underneath as I lost my footing and then we both proceeded to turn as he still had momentum, so it swung him around face first into the bar.

The appellant recalled that the complainant’s head struck the bar once.

[37] Ms. Hoogendam observed the appellant and Mr. Landell both hit the bar. When the complainant collided with the bar once, the appellant was “against the bar” – it all seemed “just part of the struggle”.

The Complainant’s Injuries

[38] Mr. Landell sustained a cut over his right eye at the outside edge of his eyebrow. Six stitches were required to close the cut. The complainant also underwent dental surgery and treatment.

The Appellant’s Demeanour

[39] The appellant’s supervisor testified that: “I’ve always known Shane to be pretty smart about his actions”. The appellant testified that he never took a patron’s resistance to ejection personally – as a security member, one learned to control any frustration. In the appellant’s view, during the incident he remained “fairly calm”.

Post Event Discussions

[40] Mr. Landell testified that on Sunday, April 11, 2010, the date of his injury, he discussed with Mouland and Anderson what happened including who had done what. For example, his friends informed him that it was a security member who placed him in a headlock. Mr. Anderson recalled being at the hospital with Mr. Landell for three or four hours on April 11. They discussed back and forth what they had seen at the Palace. When statements were written some days later at the police station according to Mr. Anderson: “we went and sat in the front lobby area and wrote our statements there”.

THE REASONS FOR JUDGMENT

[41] These reasons for judgment were delivered orally after submissions were heard:

[1] Shane Klooster is charged under section 267 (b) of the Criminal Code of Canada. The evidence is that Thomas Landell suffered bodily harm when his face met a bar surface at a bar in downtown Guelph, April 11th, 2010. At the time his face met the bar surface, his head was held in an arm lock by Shane Klooster.

[2] The Crown witnesses: Mouland, Anderson and Landell, prior to the events had all consumed beverage alcohol in some quantity. And that is a fact which causes this court to be careful of their evidence. I considered how that might impact upon reliability of their evidence. I found that it accounts for some of the discrepancies in their evidence between the three witnesses I have mentioned and certainly between the statements that they gave police. And their evidence that they gave in court today, there are discrepancies.

[3] Alcohol may have impacted upon that but the consumption of alcohol is not such that it renders their evidence incapable of belief. Quite to the contrary, I found the witnesses; Mouland, Anderson and Landell to be credible witnesses and I believe much of their testimony.

[4] I do find the discrepancies between your evidence and the evidence by way of their statements that was examined upon, to be minor and not material. The Crown evidence is that Shane Klooster came up behind Thomas Landell, at that time Landell was security at the bar and there was an altercation taking place upon the dance floor. Mr. Klooster was security at the bar. Landell was on the dance floor area of the bar, and he and Landell were involved in an altercation on the bar dance floor.

[5] The defence evidence would be that Klooster came up to Landell and made mention of his being security. Klooster acknowledges that Landell might not have heard that. The evidence of Landell is that no such words were said to him, he has no recollection of that and did not hear him.

[6] What happened was that Klooster took Landell in a headlock and bent Landell to a 90-degree turn at the waist. Landell resisted, he struggled to breathe, as Klooster’s arm lock was choking him. The Crown evidence is that Klooster walked Landell to the edge of a bar where Klooster smashed Landell’s face into the bar edge, the rail part, three or four times, causing the injuries which have been testified to and which appear on Exhibit One in the photograph. And it is conceded that the injuries constitute bodily harm.

[7] Klooster gave evidence that when he came up behind Landell that there was a bit of a struggle. Landell ended up down on all fours and Klooster was down as well and he had to take Landell into the headlock because that was the restraining maneuver that was appropriate at the moment.

[8] I do not believe it happened the way Klooster said and I accept the evidence of Landell that he was taken from behind and put immediately into the headlock at 90-degrees.

[9] Klooster testified that Landell was resisting forcefully and that it culminated in Landell pushing them both into the bar over a slippery floor and that the slippery floor and the pushing by Landell caused Landell’s face to come into contact with the bar edge. What Klooster would have this Court believe is that Landell brought the facial injuries upon himself by Landell with his face up toward the bar and ran them both into the bar edge forcefully and that Klooster on the slippery bar floor, maneuvered himself to take the impact against the bar surface on his right hip but Landell’s face connected with the bar edge resulting in the injuries. Klooster would have us believe that it was by Landell’s actions that the misfortune occurred.

[10] That evidence on the part of Klooster is not capable of belief. I do not believe it. I reject that evidence and characterize it as a fabrication. In the event, Mr. Klooster’s evidence is to be cause of Landell’s injuries is not believed and his evidence does not give rise to a reasonable doubt.

[11] The court accepts that Mr. Klooster, in his role as security at the time had the right to endeavor to eject Landell and others who are involving themselves in altercations on the dance floor, that was part of his job.

[12] The problem arises when Klooster, using his chokehold on Landell, drove Landell’s face into the bar edge supported by a railing and did that several times, smashing Landell’s face into the bar edge causing the injuries as depicted in Exhibit One. That conduct is excessive, it is not justifiable and is not justified by removal from the bar of the person who had been involved in an altercation with others.

[13] In the event then, no doubt arises, the Crown’s case is fully made out and you are found guilty.

POSITIONS OF THE PARTIES

The Appellant

[42] The appellant essentially raised two grounds of appeal:

(1) the trial judge unfairly undertook cross-examination of the appellant

(2) the Reasons for Judgment were generally legally insufficient in articulating an appropriate path of reasoning and specifically:

(a) other than in conclusory language, the trial court did not state why the appellant’s evidence failed to raise a reasonable doubt

(b) the court ignored the material evidence of Ms. Hoogendam

(c) the trial judge employed a differential degree of scrutiny between the appellant’s testimony and that of the Crown witnesses

(d) the court erred in describing discrepancies in the evidence of the prosecution witnesses as “minor and not material”

(e) the trial court failed to take into account the very real prospect of collusion or tainting among Crown witnesses

(f) the court misapplied the W.(D.) test respecting the burden of proof in a case where the accused testified.

[43] The appellant submitted that in a trial in which a defence was called, and where the evidence disclosed competing versions of events, it was legally essential that the reasons for judgment address the material aspects of the evidence and explain why the defence evidence failed to raise a reasonable doubt.

The Respondent

[44] The Crown does not concede reversible error on the part of the trial judge.

[45] It was submitted that in this brief and uncomplicated case, while the trial judge’s reasons may have been short, the judgment was clear. It is not an appropriate ground of appeal to simply argue that the trial court ought to have said more.

[46] It was submitted that the trial judge, having heard and seen the witnesses’ evidence, is deserving of deference in his decision-making. The court was reasonably entitled to reject the appellant’s evidence.

[47] Mr. Hamilton submitted that the trial judge’s questions of the appellant were permissible as they were directed to issues of clarification.

[48] Counsel further argued that, whether discrepancies may have existed in and between the evidence of the principal Crown witnesses, their accounts were, at their core, substantially consistent as to how Mr. Landell came to be injured.

[49] The learned trial judge is presumed to know the law. A trial court is not obliged to repeat the W.(D.) formula word-for-word in its reasons. The W.(D.) formula respecting the burden of proof, including its third prong, was properly applied.

ANALYSIS

General Principles

[50] Appellant review of reasons for judgment mandates a functional and contextual approach having regard to the totality of the evidence and the critical issues in the case. In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 35, the court stated:

In summary, the cases confirm:

(1) Appellant courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639, at p. 524).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict in the basis for the verdict must be apparent. A detailed description of the judge’s process and arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerge during the trial.

This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.

[51] A decision-maker need not "expound on evidence which is uncontroversial": R. v. R.E.M., supra, at para. 20. Reasons "need not refer to every piece of evidence to be sufficient, but must simply provide an adequate explanation upon which the decision was reached": Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, [2009] O.J. No. 3900 (C.A.), at para. 40. The judgment need not "answer each and every argument of counsel": R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30. Similarly, a decision-maker "need not address every conflict in the evidence however peripheral": R. v. Antonatos, 2009 ONCA 884, at para. 3. Where a judgment summarizes the evidence, it may be difficult to say that the analytical component of the reasons failed to take into account an aspect of the evidence: R. v. K.M., 2012 ONCA 319, at paras. 31-6.

[52] Although a reviewing court does not assess reasons on a "stand-alone basis", where reasons for judgment prevent meaningful appellate review of the decision, error of law will have been demonstrated: R. v. Wadforth (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont. C.A.), at paras. 69, 73.

[53] What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. In some cases, it cannot be said that the decision-maker "seized the substance of the matter": R. v. R.E.M., supra, at paras. 46, 50, 55, 57. This will be so where the reasons are unresponsive "to the case's live issues and the parties' key arguments": R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20. What is generally objectionable is "generic and conclusory language of the omnibus finding" (R. v. Wadforth, supra, at paras. 59, 71) or "little or no explanation of the reasoning process": Gray v. Ontario (Director, Disability Support Program) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364 (C.A.), at para. 24. "The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion": Via Rail Canada Inc. v. Lemonde (2000), 2000 16275 (FCA), 193 D.L.R. (4th) 357 (Fed. C.A.), at para. 22; Northwestern Utilities Ltd. et al. v. Edmonton (City), 1978 17 (SCC), [1979] 1 S.C.R. 684 at p. 706.

[54] A summary of the trial evidence and one brief analytical paragraph will generally result in the conclusion that the trial court’s path of reasoning is conclusory or obscure and that the reasons hinder real appellate review: R. v. Burnie, 2013 ONCA 112, at paras. 20-36.

[55] "[I]nadequate reasons with respect to credibility may justify appellate intervention": R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23. While a decision-maker's reasons "do not need to meet a standard of perfection" (R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32, at para. 2), a "failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error": R. v. Dinardo, supra, at paras. 2, 26; R. v. Braich, supra, at para. 23; Sagl v. Cosburn, Griffiths & Brandham Insurance Brokers Ltd., 2009 ONCA 388, [2009] O.J. No. 1879 (C.A.), at paras. 99, 111. A decision-maker should "advert to ... critical matters" central to the issue of credibility: R. v. R.E.M., supra, at para. 33. "In some cases, the failure to explain or justify a credibility finding may disentitle a trial judge to the appellate deference ordinarily accorded these findings": R. v. Y.M. (2004), 2004 39045 (ON CA), 71 O.R. (3d) 388 (C.A.), at para. 20 (leave to appeal refused [2004] S.C.C.A. No. 340).

[56] As a general rule, more detail may be required in reasons where the trier is required "to resolve ... contradictory evidence on a key issue": R. v. R.E.M., supra, at para. 44; R. v. Dinardo, supra, at para. 27; R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291, at paras. 53-5; R. v. Wadforth, supra, at paras. 65, 67, 72. Where the evidence is contradictory, "the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions": R. v. R.E.M., supra, at para. 55. "Findings on credibility must be made with regard to the other evidence in the case, thus the need to make at least some reference to the contradictory evidence": R. v. Wadforth, supra, at para. 67. It is incumbent on the decision-maker "to explain, even in succinct terms, how he resolved ... difficulties" in a witness' testimony "to reach a verdict": R. v. Dinardo, supra, at paras. 29, 34.

[57] Appellate review of a trial judge’s decision is limited to deciding whether the court erred in its assessment of evidence, failed to consider relevant circumstances, or failed to apply the correct principles: R. v. M.D., 2012 ONCA 841, at paras. 59, 66.

[58] An error of law, often termed as a "misapprehension of evidence", can be documented where there is a rational basis for concluding that any of the following has occurred:

(1) error in appreciation of a relevant issue: R. v. R.E.M., supra, at para. 38; R. v. Macdonald, 1976 140 (SCC), [1977] 2 S.C.R. 665, at p. 673; R. v. Harper, 1982 11 (SCC), [1982] 1 S.C.R. 2, at pp. 14-5;

(2) error in appreciation of evidence that would affect the propriety of the verdict including failure to assign proper effect to the evidence: R. v. R.E.M., supra, at paras. 38, 56; R. v. Wadforth, supra, at para. 79; R. v. J.M.H., 2009 ONCA 834, [2009] O.J. No. 4963 (C.A.), at para. 34;

(3) a complete disregard of evidence relevant to a material issue capable of affecting the verdict: R. v. R.E.M., supra, at para. 56; R. v. Wadforth, supra, at para. 79; R. v. Lagace (2003), 2003 30886 (ON CA), 181 C.C.C. (3d) 12 (Ont. C.A.), at para. 44;

(4) a lack of "informed analysis of the impurities" of a witness' evidence leading to the conclusion that the trier of fact did not seize the substance of the critical issue in assessment of credibility: R. v. Wadforth, supra, at paras. 59, 72;

(5) "mistakes about the substance of evidence": R. v. Wadforth, supra, at para. 79; R. v. J.M.H., supra, at para. 34; R. v. Lagace, supra, at para. 41;

(6) failure "to direct her or himself to all the evidence relevant to a material issue" (emphasis of original): R. v. J.M.H., supra, at para. 37; R. v. Harper, supra at p. 14;

(7) "an omission ... to indicate an awareness of evidence that could affect the verdict": R. v. Macdonald, supra, at 673.

[59] Without a legally correct approach to the evidence, "the final step in the process of adjudication, weighing the evidence, may be flawed": R. v. Wadforth, supra, at para. 36. Establishing misapprehension of evidence does not of itself entitle appellate relief - "[w]hat is required is some link or nexus between the misapprehension and the core elements of the judge's reasoning resulting in a conviction": R. v. Wadforth, supra, at para. 80.

[60] Where the trial record discloses circumstances of a real opportunity for collusion among principal prosecution witnesses, including the prospect for innocent tainting or inadvertent contamination, an assessment of the credibility of such witnesses must take this factor into account: R. v. Burnie, supra, at paras. 37-42; R. v. Dorsey (2012), 2012 ONCA 185, 288 C.C.C. (3d) 62 (Ont. C.A.), at paras. 29-31.

The Current Appeal

[61] The trial court’s reasons were delivered orally. They were brief – 13 paragraphs with a total of 35 sentences. While, of course, the length of reasons for judgment is not itself a yardstick of legal sufficiency, this was not a brief provincial court trial lasting an hour or two. The trial lasted two days. There were a total of seven witnesses. The appellant and a second defence witness testified.

[62] The reasons for judgment reflect an admixture of the prosecution allegation, recitation of non-controversial evidence, bald statements of belief and disbelief, and an unsupported conclusion of how the complainant came to be injured.

[63] With reference to the paragraph numbers assigned to the trial court’s reasons for judgment as set out in para. 41 above, the trial judge identified facts about which there was really no dispute:

(1) the appellant, in his security role at the Palace, had the right to endeavour to eject anyone involved in an altercation on the dance floor [11]

(2) Mr. Landell was involved in an altercation on the nightclub’s dance floor [4] [11]

(3) the appellant placed Mr. Landell in a headlock and walked toward the exit door [1] [6]

(4) Mr. Landell resisted the appellant’s effort at ejection [6]

(5) while in the appellant’s headlock, Mr. Landell’s face hit the edge of a bar [1] [12]

(6) the contact injured Mr. Landell causing bodily harm. [1] [6]

[64] Apart from this common ground, the trial court made a critical factual finding, at para. 12, that:

… Klooster, using his chokehold on Landell, drove Landell’s face into the bar edge … And did that several times, smashing Landell’s face into the bar edge causing injuries … [t]hat conduct is excessive, it is not justifiable…

[65] But what of the “why?” Why did the court make this finding? What was the foundational route to this conclusion? What was the trial judge’s path of reasoning to liability? Resort to the reasons provides this answer:

(1) witnesses Lelland, Mouland and Anderson were credible and “much” of their evidence was believed [3]

(2) the appellant’s evidence as to an accidental impact with the bar was “not capable of belief” – “I reject that evidence and characterize it as a fabrication”. [10]

[66] The reasons for finding that no reasonable doubt existed as to guilt are entirely conclusory. The deficiency is not just about the absence of anything approaching a fulsome review of the material evidence, but more so the lack of analysis supporting the ultimate conclusion. Why were there Crown witnesses believed? Why was the appellant’s testimony disbelieved? Nothing is said about demeanour while testifying, performance under cross-examination, the logic and common sense of explanations and asserted observations, or how reasonable doubt was eliminated given the entirety of the trial record.

[67] Turning first to the trial court’s treatment of the testimony of Lelland, Mouland and Anderson, the court did note that the consumption of alcohol may have affected the reliability of their evidence and explain discrepancies in their testimonial accounts. That said, these observations are warranted:

(1) as noted by the trial court, the alcohol consumed could explain only “some” of the discrepancies in these witnesses’ evidence

(2) there were differences in the three witnesses’ testimony on matters which were not minor or immaterial, unexplored by the court’s reasons, for example:

(a) the extent of Mr. Lelland’s involvement in the dance floor altercation

(b) the degree of Mr. Lelland’s resistance to the headlock

(c) whether the complainant was restrained on the appellant’s left or right side

(d) the distinction between actual observation and assumption – for example, the extent to which Mouland’s view of events was obstructed and whether Anderson could see punches landing

(e) whether the appellant’s head struck a wooden table or a bar

(f) whether Mr. Landell was grabbed by the neck or shirt collar immediately before his head made contact with the bar

(3) to the extent that it could be said that there existed core consistency in the witnesses’ accounts, the trial court made no reference whatsoever to the very real opportunities at the hospital and the police station, for collusion, deliberate or inadvertent, in assessing the witnesses’ evidence.

[68] In rejecting the appellant’s evidence, review of the court’s reasons revealed the following:

(1) reference to “What Klooster would have this court believe…” and “Klooster would have us believe that…”, is suggestive of an onus on the defence to raise a reasonable doubt

(2) no reference was made to the appellant’s evidence as to the contribution of the slippery floor to an accidental strike against the bar edge surface – the appellant’s evidence of the floor condition was uncontradicted, not cross-examined upon and not inherently implausible

(3) no reference at all was made to the evidence of Ms. Hoogendam – her evidence strongly confirmed the appellant’s testimony that:

(a) Landell was “throwing punches” on the dance floor

(b) the complainant was actively trying to secure release from the headlock as the appellant walked him out

(c) the appellant and Mr. Landell struck the bar surface once only

(4) the court apparently did not consider respecting the likelihood of deliberate assaultive behaviour:

(a) the presence of many, many patrons remaining in the club available to witness the ejection of Mr. Landell

(b) the evidence as to the appellant having a history of being calm and smart about his actions when dealing with unruly patrons.

[69] The trial court’s reasons were not responsive to the live issues at trial or key arguments placed before the court. Significant evidence was ignored. The path of reasoning is conclusory and unanalytical, and in a case where the evidence was contradictory, it is entirely unclear, other than in the result, how the court resolved the contradictions. On this basis alone, a new trial is warranted.

[70] The trial judge asked five questions of the appellant (Tr. Vol. 2, p. 82). There is no reason to view this intervention by the court as improper considering that:

(1) on their face, the questions can be said to constitute an effort to clarify earlier evidence

(2) the court’s questions were asked at the conclusion of the appellant’s evidence and did not interfere with the examinations of counsel – counsel declined to ask further questions when invited to do so after the exchange between the trial judge and the appellant

(3) no objection was raised at trial to the trial judge’s intervention.

CONCLUSION

[71] The appeal is allowed, the conviction is set aside and a new trial is ordered.

[72] If the parties are unable to voluntarily arrange a court appearance to set a new trial date, the Crown may apply for compulsory process to secure the appellant’s attendance.

Hill J.

DATE: April 18, 2013

COURT FILE NO.: 11-0067 (Guelph)
DATE: 2013 04 18

ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)

RE: R. v. SHANE KLOOSTER

COUNSEL: S. HAMILTON, for the Crown
J. ROSENTHAL, for the Appellant

HEARD: April 2, 2013

REASONS FOR JUDGMENT
[on appeal from conviction by

Justice R. T. Weseloh on September 15, 2011]

Hill J.

DATE: April 18, 2013