ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR135000001000AP
DATE: 20130930
BETWEEN:
HER MAJESTY THE QUEEN
– and –
VOLODIMIR STASYUK
Defendant/Appellant
Stefania Fericean, for the Crown
Michael Figol, for the Defendant/Appellant
HEARD: September 18, 2013
B. P. O’marra j.
judgment
overview
[1] This is an appeal from a conviction for assault rendered by Justice Budzinski of the Ontario Court on December 20, 2012.
[2] The complainant and the accused were the only witnesses at trial. Their marriage had disintegrated and they argued just before the alleged assault. Photos of an apparent injury to the complainant’s neck were filed. Credibility was the essential issue.
ground of appeal
[3] The appellant focused his submissions on whether the trial judge failed to properly apply the principles in R. v. W.D. 1991 93 (SCC), [1991] 1 S.C.R. 742. He also submits that the trial judge improperly considered the demeanor of the complainant as she testified in support her credibility.
comments by the trial judge in the course of submissions before judgment was rendered
[4] Certain comments by the trial judge in the course of submissions by counsel are relevant to this appeal. They were as follows:
The Court must carefully scrutinize the evidence of both witnesses.
The Court accepted as accurate some aspects of the evidence of the accused. This related to matters that the two witnesses agreed on, including:
(a) that the two contemplated a divorce; and
(b) there was an escalating argument about renovations before the alleged assault.
Even if the Court totally rejected the evidence of the accused on the disputed issues the Crown would have to prove the alleged offence beyond a reasonable doubt based on the evidence that remained.
There was no onus on the accused to prove anything.
There may be a strong argument that the Crown’s case was made out based on the mark left on the complainant’s neck by the alleged assault.
The evidence pointed to the accused grabbing her by the throat or exercising some physical threat to her.
The Court observed that the complainant’s hands were shaking as she testified about his hands on her throat. However, the Court went on to say that such demeanor observations are of little or no value.
the trial judgment
[5] This portion of the transcript extends for six pages. The comments of the Court included the following:
The onus was on the Crown to prove guilt beyond reasonable doubt. The onus never shifts.
The Supreme Court of Canada ruling in W.D. applied.
Even if the Court disbelieved all of the accused’s evidence he would have to be satisfied beyond a reasonable doubt based on the remaining evidence.
The Court could not convict on the complainant’s evidence alone without finding supportive evidence.
The Court made clear that the decision was not simply a choice between the evidence of either witness.
The Court was satisfied beyond a reasonable doubt that in a state of anger the accused grabbed her neck. This was supported by the photos filed that show an injury to her neck.
Proof beyond a reasonable doubt is substantially more than a balance of probabilities. The standard is just short of absolute certainty.
analysis
[6] The trial judge disbelieved the accused on the contentious issues. There was an evidential basis for him to find that the accused was angry and grabbed the victim by the throat. Photos of a mark on her neck confirmed her evidence. These were findings of fact the trial judge was entitled to make.
[7] The trial judge specifically and accurately referred to the following:
The onus of proof.
The accused did not have to be believed to be acquitted.
Even if the evidence of the accused was rejected the Crown must prove guilt beyond a reasonable doubt based on the remaining evidence.
[8] Thus the principles set out R. v. W.D. were enunciated and properly applied.
[9] The trial judge mentioned the demeanor of the complainant in the witness stand but made clear it was of little or no value in assessing her credibility. I see no error of law on this issue.
result
[10] Appeal dismissed.
B. P. O’Marra J.
Released: September 30, 2013
COURT FILE NO.: CR135000001000AP
DATE: 20130930
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
VOLODIMIR STASYUK
Defendant/Appellant
JUDGMENT
B. P. O’Marra J.
Released: September 30, 2013