COURT FILE NO.: 42/12
DATE: 20140213
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen v. Garth Da Costa
BEFORE: K.L. Campbell J.
COUNSEL: Lori Hamilton, for the Crown, respondent
William Thompson, for the accused, appellant
HEARD: December 20, 2013
REASONS FOR DECISION
[Summary Conviction Appeal]
A. Overview
[1] The appellant, Garth Da Costa, was tried by the Honourable Mr. Justice Weisman of the Ontario Court of Justice on a charge of assaulting his spouse, Julett Thomas. The offence was alleged to have been committed in Toronto on or about March 14, 2011, at a time when the appellant and the complainant were having marital problems.
[2] Essentially, the complainant testified that, after the appellant confronted her with allegations of infidelity, he assaulted her by punching her in the face, head and upper body, and by strangling her. She was only able to escape his firm grasp on her neck by squeezing his testicles. When she tried to run from their bedroom, the appellant jammed the door shut on her left wrist and forearm area. Ultimately, the complainant was able to escape. She eventually went to the police and complained of this assault a couple of days later.
[3] The appellant, on the other hand, testified that the only force he used on the complainant was in self-defence. According to the appellant, when he showed the complainant email messages that suggested she was having an affair with another man, the complainant threw the computer on the floor and came at him angrily, brandishing her fingernails. The complainant then assaulted him by grabbing him by the testicles. According to the appellant, he only placed his hands on her neck briefly to get the complainant to let go of his testicles. When this proved unsuccessful, he grabbed a plastic ruler and used it to strike the complainant several times on her wrist. The appellant denied ever punching the complainant or closing a door on her arm.
[4] In reasons for judgment delivered on March 2, 2012 at the conclusion of the trial, Weisman J. found the appellant guilty of the alleged assault. The trial judge rejected the testimony of the appellant and concluded that he was not left in any reasonable doubt by his evidence. Further, while acknowledging imperfections in the testimony of the complainant, Weisman J. accepted her evidence that the appellant initiated the assault and was not acting in self-defence. The trial judge described the testimony of the complainant as having the "ring of truth." The trial judge also noted that the wrist injuries suffered by the complainant, as depicted in the photographs taken when the complainant went to the police, were more consistent with the testimony of the complainant as to how that injury was caused.
[5] Subsequently, on April 23, 2012, the trial judge sentenced the appellant to 28 days imprisonment (after giving him two days credit for his brief pre-sentence custody at the time of his arrest), and a 12-month term of probation. The trial judge also imposed a weapons prohibition order on the appellant for a term of five years.
[6] The appellant appeals against his conviction on four grounds. The appellant argues: (1) that the trial judge applied different standards of scrutiny to his evidence and that of the complainant; (2) that the trial judge wrongly took judicial notice of medical evidence regarding the cause of the complainant's wrist injuries in the absence of any expert evidence on the subject; (3) that the trial judge failed to properly apply the "reasonable doubt" analysis required by R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-758; and (4) that the reasons for judgment provided by the trial judge are not legally sufficient in that they do not allow for meaningful appellate review.
[7] For the following reasons, I am not satisfied that the trial judge committed any of these alleged errors. Indeed, I see no proper basis to disturb the appellant's conviction for assault. Accordingly, the appeal must be dismissed.
B. Applying Different Levels of Scrutiny to the Evidence
1. Introduction
[8] The appellant contends that the trial judge applied a "more favourable evidentiary standard" to the testimony of the complainant than he did to the evidence of the appellant. More particularly, the appellant argues that the trial judge found that aspects of the complainant's evidence had the "ring of truth" without any objective or logical basis, whereas the trial judge rejected the testimony of the appellant on the same subjective basis.
2. The Governing Legal Threshold
[9] Where an accused alleges, on appeal, that a trial judge has erroneously employed different levels of scrutiny in his or her analysis of the evidence, the appellant must meet a legal threshold that courts have described as "very high." See: R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at paras. 86, 93-94; R. v. Jones, 2013 ONCA 245, at para. 8; R. v. Schell, 2013 ABCA 4, 542 A.R. 1, at paras. 34-35. Such arguments are difficult to make successfully. As Doherty J.A. stated in R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont.C.A.), at para. 59, to advance such arguments persuasively, it is not enough for the appellant simply to show that a different trial judge might have made a different assessment of credibility, or that the trial judge failed to make some comment that might have been made in assessing the credibility of the complainant and/or the accused. Rather, to succeed in making this kind of argument, the appellant must be able to point to something in the reasons for judgment of the trial judge, or potentially elsewhere in the trial record, that "make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant." See also: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39; R. v. Phan, 2013 ONCA 787, [2013] O.J. No. 5894, at paras. 30-34.
3. The Reasons for Judgment of the Trial Judge
[10] In his reasons for judgment the trial judge recognized that the complainant was not a perfect witness, and that there were "some problems" with her version of the events. He expressly reviewed all of those perceived frailties. The trial judge similarly recognized that the appellant was not a perfect witness either, and that aspects of his evidence were also "problematic." The trial judge also expressly reviewed those perceived frailties.
[11] The trial judge concluded, however, that there were important aspects of the complainant's testimony that had the "ring of truth." Weisman J. outlined four points about the complainant's testimony that had that "ring of truth." The points highlighted in this way by the trial judge did, in my view, logically contribute to the overall credibility of the complainant. The trial judge also found that the physical injury the complainant suffered to her wrist was more consistent with the complainant's version of events. Weisman J. also noted that the complainant's testimony was consistent through examination-in-chief and cross-examination.
[12] In contrast, the trial judge concluded that he did not find the ring of truth in "anything" the appellant said in his evidence. Indeed, the trial judge found that the appellant had lied in one important aspect of his testimony, and that other portions of his evidence were simply "not believable." Again, the factors highlighted by the trial judge in this regard, in my view, served effectively to undermine the appellant's testimony.
[13] At the conclusion of his reasons, Weisman J. concluded that he did not believe the accused, and was not left in any doubt by his evidence. Further, the trial judge concluded that, based upon the evidence he did accept, he was satisfied beyond a reasonable doubt as to the guilt of the appellant.
4. Evidentiary Analysis – Two Examples
[14] As I have indicated, the trial judge highlighted a number of points about the complainant's testimony that had the "ring of truth." For example, he noted that the complainant testified that, as the appellant was strangling her, she felt "dizzy." Weisman J. stated that her testimony in this regard "did not sound fabricated at all" but rather possessed that ring of truth. On appeal, the appellant argued that this was not an evidentiary issue that bolstered the credibility of the complainant, as the fact that the appellant had strangled the complainant, and caused her to be dizzy, was not a contested issue at trial. I disagree.
[15] The complainant testified that, at one point during the assault, the appellant began choking her, by squeezing really hard around her neck with both of his hands. The complainant explained how, after approximately a minute, her head began getting dizzy. It was at that point that she grabbed his testicles. She explained that she thought the appellant was trying to kill her. Indeed, she testified that at one point, she told the appellant: "kill me." The appellant, on the other hand, testified that he only "placed" his hands around her neck for "two to three seconds." He explained that he did not intend to harm her, but just wanted her to stop squeezing his testicles. When that proved unsuccessful, he reached for a nearby plastic ruler and used it to strike her several times on her left wrist. That caused the complainant to ease her grip and permit him to escape. Initially, in cross-examination, the appellant denied that he "choked" the complainant at all, but after admitting that he had "squeezed her neck" he agreed that he had eventually choked her.
[16] In my view, given this divergent evidence as to the severity and duration of the choking of the complainant, it was open to the trial judge to find that the complainant's evidence about becoming "dizzy" and saying "kill me" possessed the "ring of truth." After all, according to the complainant, the appellant strangled her for approximately a minute, squeezing his hands hard around her neck to the extent that she thought he was trying to kill her. According to the appellant, however, his hands were only "placed" around her neck for a matter of a few brief seconds, so any choking was but momentary. In these circumstances, it was open to the trial judge to conclude that the complainant's testimony about becoming "dizzy" and thinking that the appellant was trying to kill her had the "ring of truth."
[17] The trial judge also concluded that he did not find the "ring of truth" in any aspect of the testimony of the appellant. In reaching this conclusion, Weisman J. highlighted some of his testimony as simply "not believable" and concluded that he had "lied" in one important respect. For example, in this latter regard, the trial judge concluded that the appellant lied in his testimony about the interchange between himself and the 911 operator following the alleged assault. The appellant contends that this conclusion by the trial judge is not supported by the evidence. Again, I disagree.
[18] The complainant testified that after she was able to escape from the appellant she grabbed the phone and dialed the 911 emergency number. But, before she could speak to the operator, the appellant ripped the phone plug from the wall. She then tried to escape from the bedroom, but the appellant pushed the door shut on her left wrist and forearm area. Subsequently, after some degree of calm prevailed, the appellant plugged the phone back into the wall outlet, and they then realized there was a message from the police. According to the complainant, when the appellant returned the call to the 911 operator, he told the operator that his daughter had placed the earlier call by mistake.
[19] In contrast, the appellant testified that after he escaped from the complainant's grasp he went to the phone and placed a 911 call for emergency medical assistance. However, he quickly changed his mind and terminated the call. He thought it would be embarrassing to be taken to the hospital and have people examining his "private parts." Subsequently, there was a message on the phone about the aborted 911 call, so he called back. The appellant admitted that he lied to the operator when he told her that he had not placed the terminated 911 call. The appellant also testified that the operator asked him if there was a child in the house, and when he responded affirmatively, the operator suggested that it may have been the child that placed the terminated 911 call. The appellant agreed with this suggestion and the conversation concluded. The appellant denied that it was him who suggested that it may have been his daughter that mistakenly placed the aborted 911 call, but he ultimately agreed that this too was a "lie" as he knew his daughter had not placed the aborted 911 call. Indeed, he agreed that his daughter was not even in the bedroom at the time the aborted 911 call was placed.
[20] Based upon this conflicting evidence, the trial judge stated that he believed the testimony of the complainant, as there was no other sensible explanation for how she could have testified about the appellant suggesting that their daughter was the one who placed the aborted 911 call. According to the testimony of the appellant, during his conversation with the operator, all he did was agree with her suggestion that the call might have been made by his daughter. But the complainant testified that she heard the appellant tell the 911 operator that his daughter had placed the call by mistake. In my view, it was open to the trial judge to reasonably draw this factual conclusion.
[21] Counsel for the appellant raised a number of other specific complaints about the way in which the trial judge reviewed the testimony of the complainant and the appellant, and about the conclusions reached by Weisman J. in relation to their comparative credibility. I have considered all of these other complaints. Without expressly conducting a similarly detailed evidentiary analysis of each of these other individual complaints, I have determined that the conclusions reached by the trial judge were similarly reasonably open to the trial judge in all of the circumstances of this case.
5. Conclusions
[22] After reviewing the reasons for judgment delivered by the trial judge, against the entire background of the evidence adduced by the parties at trial, I see no basis to conclude that the trial judge assessed the testimony of the appellant with a greater or different level of critical scrutiny than he employed in assessing the testimony of the complainant. In my view, Weisman J. carefully examined all of the evidence in this case in a fair and balanced fashion, and with the same degree of scrutiny. See: R v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont.C.A.) at paras. 13-15, 39; R v. C.(J.) (2000), 145 C.C.C. (3d) 197 (Ont.C.A.) at para. 13; R. v. Owen (2001), 150 O.A.C. 378, at paras. 2-3; R v. F.(J.) (2003), 177 C.C.C. (3d) 1 (Ont.C.A.) at para. 90; R. v. C.(H.), 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62.
[23] The appellant has not met the "very high" legal threshold necessary to show that the trial judge committed the analytical error alleged. While Weisman J. clearly accepted all of the key aspects of the complainant's testimony, and rejected the evidence of the appellant, there is nothing in his reasons for judgment, or elsewhere in the trial record of this case, that supports the argument that he applied different standards of scrutiny in assessing the evidence of the complainant and the appellant. The trial judge simply did not judge the testimony of the appellant more harshly and/or the testimony of the complainant more forgivingly.
[24] In this regard it is perhaps important to recall that assessing credibility is not a science or a purely intellectual exercise, but rather is a difficult and delicate task, often defying precise and comprehensive verbalization, especially given the "complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events." See: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 49; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66; R. v. H.(W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 39-40.
C. Judicial Notice – Photographs of Injuries
1. Introduction
[25] The appellant argues that the trial judge took judicial notice of medical evidence in the absence of any expert witness and wrongly used his own evaluation of the complainant's physical injuries, as depicted in the photographs entered as exhibits, as a reason for rejecting the testimony of the appellant. The appellant argues that the trial judge should have viewed the photographic evidence as neutral. I disagree with this characterization of the conclusions of the trial judge in relation to the significance of the complainant's physical injuries to her wrist. Moreover, in my opinion it was open to the trial judge to reasonably conclude that the photographic evidence supported the evidence of the complainant as to how her wrist and forearm injuries were caused.
2. The Development of the Issue at Trial
[26] At trial, the Crown tendered a number of photographs depicting the complainant's physical injuries from the alleged assault, and these photographs were entered as exhibits without any objection on behalf of the appellant. Two of these photographs were close-up images of the complainant's left wrist and forearm area, revealing some marks on the complainant's skin in that area. As I have indicated, the complainant testified that she suffered these visible injuries to her wrist and forearm area when, in trying to escape from the appellant during the assault, the appellant closed the bedroom door on her wrist and forearm area. The appellant, on the other hand, testified that he struck the complainant in this area with a ruler several times in an effort to get her to release her grip on his testicles.
[27] In his closing arguments, defence counsel argued that the trial judge should rely upon these photographs as showing some "healed cuts in parallel lines" that "may very well have been made by the edge of a ruler" and as being "entirely consistent" with the testimony of the appellant. Defence counsel also argued that these injuries were not what you would expect to see if the complainant's wrist were jammed in a doorway. Such a method of injury would not leave "clearly distinct parallel lines" like the lines seen in the photographs of the complainant's wrist and forearm area. Defence counsel argued that, accordingly, these photographs were consistent with the evidence of the appellant but inconsistent with the evidence of the complainant. In contrast, in his closing arguments, Crown counsel argued that the photographs of the complainant's arm were "clearly consistent" with the complainant's evidence as to "what she says happened" and "clearly inconsistent" with the testimony of the appellant as to the cause of the injuries to her wrist and forearm area. In short, both parties sought to rely upon the photographic evidence in support of their respective positions, and expressly asked the trial judge to draw factual inferences from that photographic evidence as to how the complainant's injuries were suffered.
3. The Factual Conclusion Reached by the Trial Judge
[28] In his reasons for judgment the trial judge addressed these arguments, concluding that"upon examination of the abrasions, [defence] counsel is incorrect. Not all are perfectly parallel. I can see some right angles, which is more consistent with her version of events." Recalling the testimony of the complainant, as to how the appellant closed the door on her forearm as she tried to escape from the room, the trial judge noted that there "had to be some motion involved which was consistent with the direction of the scratches" photographically depicted.
4. Analysis and Conclusions
[29] In my view the trial judge did not take judicial notice of absent expert medical evidence. Rather, as is frequently required of triers of fact in criminal cases, the trial judge was simply examining the photographic evidence of the injuries allegedly suffered by the complainant in order to assess the extent to which, if any, that evidence assisted in establishing the credibility and/or reliability of the complainant or the accused. The trial judge was expressly asked to engage in this exercise by both of the parties.
[30] Sometimes such photographic evidence will provide probative corroborative evidence in support of one of the conflicting versions of events, or will undermine the truthfulness or reliability of one of the conflicting versions of events. Counsel at the trial of this matter, for the appellant and for the Crown, recognized this common sense evidentiary value inherent in photographic evidence, and sought to rely upon it in advancing their respective theories in the case. It was, accordingly, up to the trial judge to draw the appropriate factual inference from the evidence.
[31] By concluding that the photographic evidence did not, in fact, support the version of events provided by the appellant, but rather was "more consistent" with the complainant's version of events, the trial judge did not take judicial notice of anything, and did not commit any legal error in connection with the evidence. Further, the factual inference drawn by the trial judge as to the evidentiary significance of the photographs was a reasonable inference that was open to him to draw in all of the circumstances of this case. See: R. v. Robinson, 2009 ONCA 626, 254 O.A.C. 171, at paras. 37-41; R. v. Getachew, 2013 ONSC 2107, at paras. 71-73.
D. Proof Beyond a Reasonable Doubt – Applying R. v. W.(D.)
[32] The appellant argues that the trial judge failed to apply the "reasonable doubt" analysis required by the Supreme Court of Canada decision in R. v. W.(D.), at pp. 757-758. In that case, Cory J., on behalf of the majority of the court, held that, ideally, in cases tried by a jury where credibility is important, the trial judge should instruct the jury to apply a three-pronged analysis to ensure that the burden of proof on the Crown is properly applied. More specifically, Cory J. indicated that the jury should be instructed: (1) that if they believe the evidence of the accused, then the accused must be acquitted; (2) that even if they do not believe the testimony of the accused, if they are left in reasonable doubt by the evidence of the accused, they must acquit the accused; and (3) even if they are not left in any reasonable doubt by the evidence of the accused, they must still determine whether, on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt of the guilt of the accused. The appellant contends that, since this case involved the evidence of only two witnesses, who provided conflicting versions of the relevant events, the trial judge was required to properly apply this analysis.
[33] A review of the reasons for judgment by Weisman J. in the present case shows that the trial judge fully understood and properly applied this three-part analysis, ensuring that the burden of proof remained at all times on the Crown. At the very outset of his reasons, the trial judge, after noting that the accused was charged with the offence of assault, observed that there were "two distinct versions" of events in this case and that, as "credibility" was an important issue"therefore as everyone recognizes the case fits squarely within R. v. W.(D.) (1991), 63 C.C.C. (3d) 397, in the Supreme Court of Canada." Further, in the final paragraph of his reasons, after completing his analysis of the evidence in this case, the trial judge returned to the "three tests in R. v. W.(D.)" and concluded that he did not "not believe the accused" was "not left in doubt by his evidence" and that based on the evidence he did accept he was "convinced beyond a reasonable doubt of the guilt of the accused."
[34] Contrary to the argument advanced on behalf of the appellant, there is no basis to conclude that the trial judge "erroneously shifted the burden of proof" onto the appellant, and "failed to assess the totality of the evidence according to the reasonable doubt standard." Simply because the trial judge fairly recognized that there were "some problems" with the testimony of the complainant, did not require him to conclude that he had a reasonable doubt as to the alleged guilt of the appellant. There are few "perfect" witnesses. Indeed, being a "perfect" witness may itself cause a trier of fact to suspiciously view their flawless testimony as more of a well-rehearsed and practiced script than a truthful account of honestly remembered events. In any event, in my view it was open to the trial judge to conclude that, notwithstanding the recognized imperfections in her testimony, the complainant was a credible witness whose key evidence was honest and reliable, and that her testimony convinced him beyond a reasonable doubt as to the guilt of the appellant. Moreover, in so concluding, the trial judge did not shift the burden of proof to the appellant. Rather, in finding the appellant guilty, Weisman J. properly applied the three-pronged analysis outlined by the Supreme Court of Canada in R. v. W.(D.).
E. The Adequacy of the Trial Judge's Reasons
[35] Finally, the appellant argues that the trial judge did not provide sufficient reasons for judgment to permit meaningful appellate court review of the verdict. The appellant seems to argue that because the credibility conclusions reached by the trial judge (i.e. accepting the testimony of the complainant and rejecting the testimony of the appellant), were not based upon some objectively verifiable analysis, that the appellant cannot properly be convicted. I disagree.
[36] The authorities are clear that the conviction of an accused may, in appropriate cases, be properly based upon an outright rejection of the testimony of the accused based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence. The existence of objective corroborative evidence is not legally required. See: R. v. D.(J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont.C.A.) at para. 53, leave denied: [2007] S.C.C.A. No. 69; R. v. M.(R.E.), at paras. 31-32, 48-51, 64-68; R. v. Dinardo, at paras. 23-24, 30; R. v. Hull, [2006] O.J. No. 3177 (C.A.), at paras. 3-9; R. v. Hoohing, 2007 ONCA 577, [2007] O.J. No. 3224, at paras. 11-16; R. v. Mends, 2007 ONCA 669, [2007] O.J. No. 3735, at para. 18; R. v. Vuradin, 2013 SCC 38, at paras. 13, 19; R. v. Menow, 2013 MBCA 72, 300 C.C.C. (3d) 415, at paras. 16-28.
[37] Moreover, in my opinion the reasons for judgment provided by the trial judge are legally adequate. Viewed from a functional and context-specific approach, and read in their entirety, against the background of the evidence and the live issues in this case, the reasons of Weisman J. adequately explain why the appellant was convicted of assault, provide public accountability for the verdict, and permitted effective appellate review of the decision. See: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24-28, 46-52, 55; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 31; R. v. Gagnon, at paras. 12-16, 19; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at paras. 19-23; R. v. M.(R.E.), at paras. 15-57; R. v. Dinardo, at paras. 24-35; R. v. S.(A.J.), 2011 ONCA 566, 106 O.R. (3d) 586, at paras. 12-13; R. v. S.(T.), 2012 ONCA 289, 284 C.C.C. (3d) 394, at paras. 45-46, 75-80.
F. Conclusion
[38] In the result, the appeal against conviction must be dismissed. An order shall issue accordingly.
Kenneth L. Campbell J.
Released: February 13, 2014