ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 7637
DATE: 20130611
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Norman Shayne Parisien
Appellant
Melanie Sopinka, for the Respondent
Brian Grys, for the Appellant
HEARD: April 30, 2013
The Honurable Mr. justice C. S. glithero
[1] Mr. Parisien appeals his convictions on two counts of assault and two counts of assault causing bodily harm registered on April 18, 2012, and from the sentences imposed totalling 60 days to be served intermittently, and a period of probation, all of which was imposed on June 1, 2012. All offences occurred on April 29, 2011, and the victim of each was Patricia Sousa, with whom the appellant lived at the relevant time. All four charges were proceeded with summarily and tried together.
[2] The only witnesses to testify at the trial were the complainant and the appellant. Common to their evidence was the testimony that they had resided together for a little over a year at the time, that the complainant had two children of her own who lived with them, and the two parties had a youngster as between themselves who lived with them as well. Both agree the relationship was at times a stormy one with alternating periods of good times and periods of animosity between the two.
[3] Against that general backdrop, the evidence of each of these two witnesses detailed the events of the evening of April 28 and the day of April 29. The assaultive behaviour is said to have occurred during various incidents commencing in the early morning hours of the 29th and ending that evening.
[4] The evidence of the complainant spoke of four separate physical attacks by the appellant upon her. The appellant’s basic position was that while the complainant suffered the injuries claimed, they occurred while he was defending himself, or controlling her as she attacked him, or in the case of the more serious injury, to her eye, by unknown means.
[5] In the appellant’s factum it is argued that the trial judge misapprehended several portions of the evidence, favourably to the complainant and unfavourably to the appellant. In oral submissions the appellant’s counsel began by asking whether there were enough errors in the trial judge’s reasons so as to cumulatively show that an erroneous result was reached.
[6] In particular it is argued that the trial judge’s reliance on the rule in Browne and Dunn was misplaced and erroneous. In assessing the contradictory versions given by the two witnesses as to the events of the day in question, one area of consideration by the trial judge was that of the rule in Browne and Dunn. The trial judge indicated that the accused had testified to various events said to have occurred during the day which he found had not been put to the complainant as she testified, and accordingly the trial judge held that the accused’s evidence on those points “suffers in the weight, if any, to be given “ to such evidence (emphasis added). It is to be noted that it is only in respect of those items of evidence included in the list attracting consideration that the trial judge diminishes the weight of the appellant’s evidence by application of the rule.
[7] The appellant complains that the trial judge was wrong in finding that the complainant had not been cross examined on those points raised in the appellant’s evidence such as to violate the rule.
[8] Turning to the points relied upon, the first such issue related to whether they had had sexual relations early that morning and if so, the outcome of those relations. The appellant testified that they had sex, that he had finished quickly and had left the complainant sexually unsatisfied. The complainant denied there was any sexual activity between the two of them that morning. The impugned portion of the evidence arose in the following way. In cross examination of the complainant trial defence counsel put to her a statement given to an investigating police officer in which she said, in part “we started getting to it but he couldn’t.” When asked at trial what that meant she explained that they were trying to talk that morning but he couldn’t or wouldn’t converse and just wanted to go to work. That ties in with the evidence she had given in chief as being the starting point for their conflict that day. Defence counsel went on to suggest “that wasn’t anything about you to maybe getting romantic, physical with each other, starting with day some sex?” which the complainant denied. Defence counsel then suggested that perhaps she was upset because things hadn’t been going well physically that morning, which could have been referring to physically aggressive contact between the two according to the evidence she had given in chief. Finally defence counsel put to the complainant “I’m going to suggest when you say we started getting into it but he couldn’t: I’m going to say he couldn’t make you happy physically. And I was getting frustrated and I was not very sympathetic. That’s what was going through your mind when you said that?” The passage suffers from the obvious difficulty where counsel pose questions in a way that interchanges the questioner and the quote being relied upon. The complainant denied the suggestion of sexual activity and any frustration arising from lack of sexual fulfillment. As I read the transcript, several times, it is true that she was indirectly questioned about the alleged sexual contact and its effect on her, but in a very roundabout and somewhat confusing way. It was never clearly put to her in the terms that trial defence counsel must have known the accused would be testifying to in his evidence. The trial judge put it in terms that “firstly that she became frustrated and angry because their sex that morning, which she denies, was sexually unsatisfying to her.” – while it was referred to during her cross examination, in my opinion the trial judge is not in error by characterizing it as being an area that was not clearly put to the complainant so as to evoke a response from her that would directly address the position that was to follow from the appellant. The link between the alleged sexual act, and her frustration was never directly put to her.
[9] Secondly the trial judge refers to the failure to put to the complainant the allegation that she had accused the appellant of showering that morning so as to get her sexual smell off of him because he was intending to meet with a woman before work. She was asked whether she agreed that he went and had a shower and she testified that he may have, she didn’t know. She was never questioned about the important part which was whether she had accused him of showering so as to wash her smell off. The trial judge was accurate on this point. Thirdly the trial judge noted that the complainant was never asked about the appellant’s assertion that she had accused him of being a worse partner than her ex husband who had cheated on her. The trial judge was correct about that as it does not appear in the transcript.
[10] The trial judge was correct in noting that the complainant had not been asked about the appellant’s assertion that she had screamed at him that she would kill herself in front of the children if he went to work, and he was correct in noting that she was not asked about his assertion that she had swung at him on the landing and in the living room before going to work. He was further correct in listing that the complainant had not been asked about the appellant’s assertion that she told him to “get the hell away from her” or to “get the fuck away from her”.
[11] He was also accurate in noting that the complainant had not been asked about his assertion that she taunted him by saying “come on you fucking pussy, hit me”. While the trial judge indicated that she was not asked about his assertion that she jumped onto his back from an upstairs level of the home as he went down the stairs, which is not correct, he was accurate in pointing out that she was not asked about his allegation that she had chased him back upstairs to the bedroom, or his assertion that she had chased him “all over the house”.
[12] There were other instances where the complainant was asked something about a particular issue, in general terms, but not asked about the specifics that later emanated from the appellant. For instance, while he asserts that she called him a “dickhead’ that was not put to the complainant although she was asked whether she said anything “nasty”. Similarly, she was not asked whether she had called him “asshole”, as he asserts, although she again was asked whether they had exchanged nasty words and she denied profanity and name calling.
[13] While she was asked about having slapped or punched the appellant, it was not put to her that she took a few swings at him as was later testified to by the appellant.
[14] The appellant testified that the injury to the complainant’s head could have occurred in a struggle and could have been accidental. This was not put to her, although she was questioned about a struggle over some keys which she denied.
[15] In summary, of the fifteen instances cited by the trial judge as warranting Brown and Dunn consideration, he was correct in seven, and in another six he was correct that the specific allegation was not put to her although the general subject matter was the subject of questions to her.
[16] The only specific example in respect of which it appears the trial judge was incorrect was the suggestion that she had not been asked about jumping onto the appellant’s back from an upstairs level as he descended the stairs. She was asked about that, and denied it.
[17] As indicated in Regina v Paris (2000), 2000 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont.C.A.):
Where a witness is not cross examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party.
These items related to credibility which was the central issue in this case. The Court of appeal has held that the trial judge’s decision to take a breach of the Browne and Dunn rule into consideration is a matter of discretion and not to be interfered with lightly. Here the trial judge made it clear that he was only taking into account as a factor going to the weight of those portions of the accused’s evidence which had not been put to the complainant. He was entitled to do so. The fact that he appears to have been in error in one of the fifteen items listed is in my view quite insignificant in the overall approach taken in this case.
[18] The appellant further contends that the trial judge misapprehended the evidence by referring to a portion of the evidence wherein the accused talked of trying to pry the complainant’s fingers from his overalls. The appellant suggests that it was the trial judge who came up with the reference to fingers and that the appellant only agreed with the trial judge’s suggestion. That submission misses the fact that the trial judge was putting into words for purposes of the record what he was being shown by the actions of the appellant while testifying. Having so described the part of the body affected, the appellant then agreed with that description.
[19] On behalf of the appellant it is also contended that the trial judge misapprehended the evidence by commenting that the complainant’s denial that the appellant pinned her on the bed added to her overall credibility. He made that same observation while reviewing other parts of her evidence in which she could have said more damaging things about the appellant’s actions, but chose to speak fairly of them. Finding that a witness has stretched the truth or “gilded the lily” usually counts against a witnesses credibility. Conversely, as here, where it is observed by the trier of fact that the witness is being careful to be fair, and forgoes opportunities to exaggerate, it is appropriate to count that as favourable to her evidence and believability.
[20] It is further contended on behalf of the appellant that the trial judge misapprehended some evidence about when and where keys and coffee were put down and then picked up again. The evidence is not very clear on that and the trial judge was quite at liberty to count that as being careless evidence on the part of the accused. It could well have occurred as his counsel contends on appeal, but the appellant did not say so in his evidence. The trial judge recognised and said they were not serious points. Similarly with respect to the appellant’s evidence about a shirt being either ripped or torn off, in my opinion the trial judge’s comment was accurate, or at least one open to him in my opinion having read the transcript.
[21] In the same vein the trial judge mentions differing accounts by the appellant as to the amount of wine he consumed on the day in question. The trial judge was entitled to and in my estimation quite properly realized this was not critical evidence but rather an example of a lack of precision on the part of the appellant, which is a factor that can be taken into account.
[22] In order to demonstrate a misapprehension of the evidence by the trial judge such as to warrant a reversal on appeal, the misapprehensions must be of substance and be material to the judge’s reasoning and play an essential part in a determination at trial: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (C.A.): and R. v. T. (T.), 2009 ONCA 613, [2009] O.J. No. 3388 (C.A.).
[23] This is an experienced trial judge who on my reading of the transcript paid close attention and understood the evidence throughout with the exception of the on relatively minor misperception in respect of the one item listed in the treatment of the rule from Browne and Dunn. The trial judge realized the importance of credibility to the outcome. He reminded himself of W. (D.). He dealt with what he perceived to be strengths supporting the credibility of the complainant, and weaknesses undermining the credibility of the accused. These included the Browne and Dunn considerations which were open to the trial judge and which he restricted to those portions of the evidence relevant to the Browne and Dunn rule application.
[24] Moreover, and importantly, the trial judge looked for other evidence that was not dependant on credibility findings. The relative size of the two people belied the account given by the accused and supported that given by the complainant. As the trial judge observed, the injuries to the complainant, which were admitted, were more consistent with her account and inconsistent with that of the accused.
[25] A trial judge may usefully assess evidence on the basis of whether it is logical and reasonable as a matter of common sense. Here the trial judge commented on the implausibility of the appellant’s evidence that he dragged the complainant along the floor while she tightly clutched his testicles with both hands.
[26] The findings of fact at page nine of the Reasons were open to the trial judge and justified on the evidence.
[27] In my opinion the Reasons of the learned trial judge are more than adequate and are supportable and justify the result reached at trial.
[28] As to the sentence appeal, in my opinion the learned trial judge made no error in principle, recognized the mitigating and aggregating factors, and imposed a sentence that was within the permissible range for offence in these circumstances by an offender with this background.
[29] He recognized the letters filed in support of the appellant, but accurately observed that people sometimes appear differently to others outside the home than they do in terms of their actions in private within it. He recognized that the conduct appeared to be out of character, that there was no prior record, and the treatment voluntarily undertaken by the appellant as mitigating factors. He considered the fact that it was a prolonged incident, the serious nature of the injuries, and the fact that it involved a spousal partner as aggravating factors. He showed appropriate concern for the employment status of the appellant by granting an intermittent sentence.
[30] In my assessment, where a man is convicted of four assaults on a spousal partner on the same day, resulting in injuries as serious as a fractured orbital bone, it cannot be said that an intermittent sentence totalling 60 days is outside of a reasonable range of sentence or is such as to reflect any error in principle.
[31] For these reasons, the appeals as against the convictions and as against the sentences are both dismissed.
C. S. Glithero J.
Released: June 11, 2013.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
HER MAJESTY THE QUEEN
Respondent
– and –
Norman Shayne Parisien
Appellant
REASONS FOR JUDGMENT
C. S. Glithero J.
Released: June 11/13