ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 172/11
DATE: 20130627

RE: Her Majesty The Queen v. Stefan Costache

BEFORE: K.L. Campbell J.

COUNSEL: Stephania Fericean, for the Crown, respondent

Daniel F. Moore and G. Jenner, for the accused, appellant

HEARD: March 18, 2013

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Stefan Costache, was charged with assaulting the complainant, his former common law spouse, Ecaterina Corina Ivan, and threatening to set fire to her dwelling. Both offences were alleged to have take place in Toronto on September 25, 2010. The appellant was tried by the Honourable Madam Justice L. Favret of the Ontario Court of Justice.

[2] The complainant was the only Crown witness. Ms. Ivan testified about the details of the assault and the threat. She testified that she met the appellant at approximately 12:00 noon on September 25, 2010, on the street outside her apartment building. The appellant was bringing their two young children, aged five and seven years, back to her. This was the location they had agreed to exchange their children that day. The complainant was waiting in her car nearby.

[3] According to the complainant, when they met that day, the appellant smelled of alcohol and was not sober. In the previous weeks, they had been engaged in an ongoing dispute over the amount of the monthly child support payments the appellant was required to make to the complainant. The appellant wanted the complainant to agree to a reduced amount, and to provide him with a letter indicating her agreement to this reduction. Ms. Ivan testified that, when the appellant again asked her about the letter on September 25, 2010, she told him to contact her lawyer. At that point, according to the complainant, the appellant exploded and became upset and agitated. He pushed her on her shoulder and slapped her on the face with his right hand. The appellant then told her that he would “fix” her by setting her apartment on fire. The complainant fled back to her car.

[4] The appellant testified in his own defence and denied the use of any violence or threats against the complainant. In his testimony, the appellant described a typically innocuous meeting with the complainant wherein he delivered their two children and their back-packs to the complainant. According to the appellant, their conversation that day was amicable. He denied having consumed any alcohol that morning. The appellant testified that, after the complainant had returned to her vehicle, he realized that he had forgotten to ask her about the legal documents he had earlier requested. Accordingly, in a raised voice, the appellant asked her, twice, if she was going to give him the documents. While she did not turn around or respond, the appellant thought that she had heard him, but just did not want to answer. That was the end of their interaction that day.

[5] The appellant described the complainant’s allegations of assault and a threat as “totally untrue.” Indeed, in cross-examination the appellant described the complainant’s allegations as “a malicious false accusation” that had been “planned cold-heartedly” by the complainant to set him up. The appellant suggested that the complainant had intentionally organized the child exchange to take place on the street so that their innocuous meeting would not be captured by the surveillance camera in the lobby of the apartment building.

[6] The trial judge, in lengthy and detailed Reasons for Judgment released on September 2, 2011, found the appellant guilty of the offence of assault, but not guilty of the threatening offence. The key issue at trial was credibility, and the trial judge, essentially, accepted the key aspects of the testimony of the complainant, and rejected the key elements of the testimony of the accused. In this regard, the trial judge expressly applied the three-pronged analytical formula articulated in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. In the result, after engaging in a lengthy and detailed analysis of the evidence, the trial judge found that the appellant lost his temper, and pushed and slapped the complainant. The trial judge concluded that the Crown had met its onus of establishing the guilt of the appellant in relation to the alleged assault on the complainant. However, in relation to the charge of threatening, the trial judge expressed a reasonable doubt as to the guilt of the appellant.

[7] Subsequently, on October 17, 2011, the trial judge granted the appellant a conditional discharge and placed him on a 12 month term of probation. The trial judge also made a weapons prohibition order, pursuant to s. 110 of the Criminal Code, for a period of five years.

[8] The appellant has appealed against the verdict of guilty reached by the trial judge in relation to the charge of assault. The appellant contends that: (1) the trial judge significantly misapprehended the evidence; (2) the trial judge applied different standards of critical analysis to her assessment of the credibility of the appellant and the complainant; (3) the verdict of the trial judge finding the appellant guilty of the offence of assault is unreasonable and not supported by the evidence; and (4) the trial judge failed to provide adequate reasons explaining the result and permitting meaningful appellate review.

B. Analysis

1. The Alleged Misapprehensions of the Evidence

a. Introduction

[9] In his main ground of appeal, the appellant contends that the trial judge misapprehended the evidence in at least four critical respects. For the reasons outlined below, I reject these arguments. In my opinion, the trial judge neither misapprehended the evidence, nor committed any error of fact or law in drawing the inferences she did in relation to these issues. Indeed, the trial judge was entitled to draw the inferences which she did in relation to each of these four issues. See: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at pp. 538-541; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 79-81; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

b. The Appellant Exaggerated His Financial Difficulties

[10] First, the appellant argues that the trial judge placed too much weight on the evidence that, in an email message he sent to the complainant on August 26, 2010, he exaggerated the extent of his ongoing financial difficulties. I disagree.

[11] In this email message, the appellant proposed a significant reduction in his monthly child support payments and his extraordinary expenses to the complainant. The appellant told the complainant that he was currently incurring “increased child related expenses” over and above his child support obligations, but he described those increased expenses as “realistic, necessary and unavoidable.” The appellant also indicated that, for a “long time,” he had been “running a negative balance” between his income and his expenses, and had to live on credit. The appellant noted, however, that he had “exhausted” his credit. The appellant indicated that he was “still facing financial hardship.” The appellant expressed his hope that they could reach an amicable agreement, but he indicated that this issue was a “matter of urgency,” and so he sought her “prompt response.”

[12] In his trial testimony, the appellant admitted, in cross-examination, that this email message painted a “pretty dire” and “desperate” picture of his financial circumstances, and suggested that he was in “pretty desperate financial strife” at the time. The appellant also testified, however, that by the time he sent this email message to the complainant, he had “secured some private financing” which had permitted him to “get rid” of his mortgage, and which had allowed him to remain on a “breaking even” basis.

[13] In her Reasons for Judgment, the trial judge contrasted the appellant’s August 26, 2010 email message, with his trial testimony, about his financial circumstances at the time, and concluded that, in his email message to the complainant, the appellant had exaggerated his financial circumstances as urgent and desperate, when in fact he was making “ends meet.” More particularly, Favret J. stated:

In cross-examination the [appellant] acknowledged that because of the private financing he was able to make ends meet when he wrote that email. In this email he said the financial situation was a matter or “urgency”. I find that in his email of August 26th the [appellant] exaggerated his financial circumstances as desperate. I find this significantly undermines the reliability of his evidence. This representation is significantly inconsistent with his evidence that he had made financial arrangements, the result of which allowed him to make ends meet.

[14] There seems to be no question that, in his August 26, 2010 email message to the complainant, the appellant was exaggerating the difficulties he was experiencing in his financial circumstances. In trying to convince the complainant to accept his proposed reduction of his monthly child support and extraordinary expenses, he tried to make her believe that he was facing desperate and urgent financial hardship. The appellant described how he had been, for a long time, running a “negative balance” between his income and his expenses and had “exhausted” his credit. In fact, at the time he sent this email to the complainant, the appellant had already taken remedial steps to put him on a “break even” financial basis. In my view, the trial judge was entitled to view this email message as a prior inconsistent statement regarding his financial circumstances at the time, and conclude that this inconsistency significantly undermined his overall reliability as a witness. The precise evidentiary weight to be attributed to this exaggeration by the appellant was, of course, for the trial judge. I am not prepared to hold that she erred in drawing the conclusion that she did with respect to the significance of this evidence.

c. The Appellant Denied He Was Upset by the Evasive Actions of the Complainant

[15] Second, the appellant contends that the trial judge erred in concluding that his testimonial denial that he was not bothered or upset by the complainant’s delays in responding to his requests for information, made no sense. I disagree.

[16] The appellant testified that he had requested certain documents from the complainant in relation to her employment and financial status. While the complainant had provided him with some of the documentation he had requested, the materials she provided were incomplete, and he had requested clarifications. He also testified that the complainant seemed “evasive” in answering his inquiries and delayed in sending him documents. She would not give him a “straight-answer” about her employment status. In his August 26, 2010 email message to the complainant, the appellant proposed a significant reduction in his monthly payments to the complainant. In his September 15, 2010 email message to the complainant, the appellant suggested that they engage in an amicable telephone conversation about a topic of mutual interest. The appellant suggested that it was obvious that the support payments would have to change, and asked that they try to minimize their legal costs. Again, the appellant asked the complainant for a number of supporting documents. The appellant testified that while he had hoped that the complainant might reply, she did not respond to this email message, nor did they otherwise communicate again until the date of the alleged offence.

[17] The appellant testified that he asked the complainant about those documents again on September 25, 2010, twice, but the complainant did not respond. He had held out some hope that they would discuss the issue at that meeting. The appellant testified that he thought that the complainant heard his inquiries in this regard, but just did not want to answer him. In cross-examination, the Crown suggested that the complainant’s flat refusal to talk to him made him upset. In response, the appellant testified that he saw no reason to be upset. The fact that she ignored him did not bother him at all.

[18] In her Reasons for Judgment, the trial judge concluded that the appellant’s testimonial denial that he was not bothered or upset by the actions of the complainant on September 25, 2010 did not make any sense. More particularly, the trial judge stated:

By September 25th the [appellant] acknowledged that he had not received the information he requested in order to verify the complainant’s assertions. He denied he was upset by this. I find this makes no sense in the circumstances. The [appellant] wanted to move the matter forward promptly. He wanted the information to verify the information provided. I infer he did not believe he could move ahead without that information. I find timeliness was an issue for the [appellant]. His emails and evidence corroborate this. He wanted matters to move promptly. He did not believe the complainant was acting promptly. That he went to the exchange intending to remind the complainant about the documents he requested supports this conclusion. In the circumstances it does not make any sense that the [appellant] would not be bothered or upset by either the complainant’s failure to promptly respond to his request for the documentation or his email of September 15th.

[19] In my view, in all of the circumstances, it was open to the trial judge to find that the appellant’s evidence on this issue simply made no sense, in that it did coincide with common human experience or mesh with our general understanding of human nature. Moreover, these are the kinds of factual inferences that the trial judge was ideally suited to draw. I am not persuaded that the factual inference drawn by the trial judge on this issue was an unreasonable inference that was not open to her on the evidence.

d. The Complainant Had No Motive to Fabricate Her Criminal Allegations

[20] Third, the appellant contends that the trial judge misapprehended the evidence relating to the complainant’s alleged motive to fabricate evidence. I disagree.

[21] In denying the complainant’s allegations, the appellant testified not only that they were wholly untrue, he also accused the complainant of “cold-heartedly” planning this “malicious false accusation” against him and, in effect, setting him up for this manufactured allegation. The appellant speculated that the complainant had deliberately organized their meeting on September 25, 2010 to take place on the street so that their interaction, which she knew would be uneventful and innocuous, would not be recorded by any surveillance camera in the lobby of the complainant’s apartment building. Without any independent, objective evidence to the contrary, the complainant would be free to advance her manufactured allegations of criminality.

[22] In his testimony, the appellant did not offer any reason that might motivate the complainant to invent these allegations against him. However, in his closing submissions, defence counsel for the appellant speculated that the complainant had made up her allegations in order to try to “gain an advantage in the Family Court proceedings,” in that it would keep in place the original monthly support payments to the complainant without reduction.

[23] In her Reasons for Judgment, the trial judge accurately reviewed the evidence on this issue and: (1) concluded that there was no evidentiary basis upon which to conclude that there might have been a surveillance camera operating in the lobby of the complainant’s apartment building; and (2) rejected the appellant’s speculative suggestion that the complainant had “set him up” on the basis that it was not supported by the evidence. Further, the trial judge stated:

The [appellant] has suggested the complainant was motivated to manufacture her evidence and statement to the police in order to secure the child support payments she had been receiving. This makes no sense whatsoever based on the record here. The complainant was prepared to accept a child support payment that was lower than the amount the [appellant] paid in August when he made his formal proposal to vary the amount. She proposed about $500 less than the amount the [appellant] was paying in August pursuant to the order referred to above. The [appellant] had proposed paying about $500 per month less than the amount the complainant proposed he pay. The amo