ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

Court File No.: SCA 788
Date: 2014/03/19

B E T W E E N:

HER MAJESTY THE QUEEN

B. White, for the Crown

Respondent

• and -

MICHAL FLOR

A. Prevost, for the Appellant

Appellant

HEARD: March 18, 2014

ENDORSEMENT

[On appeal from the judgment of the Honourable Justice G.A. Pockele]

A.J. GOODMAN J.

[1] This is an appeal against conviction rendered by Pockele J. on November 19, 2012. After trial, the appellant was found guilty of one count of failing to comply with a condition of recognizance, contrary to s. 145(3) of the Criminal Code.

[2] Notwithstanding the very able submissions of appellant’s counsel, I do not find any merit to the appeal.

Discussion

[3] The facts in this case have been laid out in appellant’s counsel’s factum and I have been provided with the transcripts of the proceedings.

[4] Justice Pockele laid out his extensive reasons for judgment during the course of the hearing. I have reviewed the materials filed and have been referred to and have considered the cases provided by both counsel.

[5] The issue in this appeal is the unreasonable verdict, inadequate reasons and the trial judges’ consideration and improper application of the test in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 in arriving at his findings.

[6] The appellant concedes that the trial judge was entitled to make findings of credibility – to which he did - and these findings are not challenged in this appeal. Further, the appellant concedes that the first branch of the three-pronged WD analysis had been properly considered and employed. The second branch had been partially considered by the judge but not fully or correctly applied. Having rejected the appellant’s evidence, there was no consideration of the third prong and whether the prosecution’s case had been made out on the evidence. The appellant also argues that the trial judge improperly shifted the burden of proof onto the appellant.

[7] The test for an unreasonable verdict is well established in the jurisprudence. The question to be addressed is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.”

[8] The appellant bears a heavy burden when seeking to establish that a verdict was unreasonable. In R. v. Kumric, [2006] O.J. No. 4886 (S.C.), Durno J. provides some direction for a reviewing court by stating:

There is a heavy burden on an appellant who seeks to establish that a verdict was unreasonable. R. v. F.(R.), [2006] O.J. No. 4458 (Ont.C.A.). In assessing an unreasonable verdict ground of appeal, an appellate court does not retry the case. Rather, I must examine the evidence, and to some extent, reweigh it and consider the effect of that evidence. The question is whether the verdict was one that a reasonable trier of fact could have reached: R. v. W.(R.) (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.). Where a verdict rests on findings of credibility, the same test applies, although great deference should be shown to the trier of fact unless the findings were not supportable by the evidence. In addition, the question is whether the verdict was a reasonable verdict, not whether it was the only reasonable verdict: R. v. Portillo (2003), 2003 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont.C.A.).

[9] Appellate courts are required to show great deference to the credibility assessments made by the trier of fact, with due regard to the immeasurable advantage of observing and hearing the evidence. In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, the Supreme Court provided the following guidance:

Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned.

[10] It is settled law that strict adherence to the W.(D.) formula is not required. What is required is that the “substance of the W.(D.) instruction be respected”. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt.

[11] While the jurisprudence provides that the failure to articulate the formula of W.(D.) is not fatal, the trial must provide a clear understanding of the relationship between reasonable doubt and the assessment of credibility to the case before him or her: W.(D.) at p. 758; R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 7 & 9; R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 46.

[12] I do not find support in the appellant’s assertion that Pockele J. failed to go the further step in his analysis and find on the evidence that the case had been made out. I do not agree that this case was purely or principally a circumstantial one. Nonetheless, the case of R. v. Liberatore 2010 NSCA 82, advanced by the appellant in support of his argument is not the authoritative law in Ontario. I prefer the submissions of Crown counsel on point and find that the authorities from the Court of Appeal, including R. v. D.R., 2012 ONCA 253, [2012] O.J. No. 1691 and R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 are instructive. I am also guided by the principles articulated by Watt J.A. in R v. Wadforth, 2009 ONCA 716, [2009] O.J. No. 4176 at paras. 64 to 69.

[13] The trial judge was entitled to accept some, none or all of the appellant’s testimony. Clearly, in making assessment of credibility, a trial judge is entitled to disbelieve a witness and yet not reject the entirety of his or her evidence. In this case, Pockele J. rejected the appellant’s explanations as to his intentions and actions on the day in question and found that the appellant’s evidence did not raise a reasonable doubt. The trial judge went further and held that the appellant fabricated his evidence and was “unbelievable”.

[14] My review of the reasons as a whole suggests that the trial judge’s rejection of the appellant’s explanation and the disbelief of his testimony goes to the root of the defence’s explanation that was offered to the court. The trial judge was entitled to reject that account, yet accept other parts of the appellant’s testimony, which he appeared to have considered, in finding that the self-described driving in question did not fall under the exception in the recognizance.

[15] I disagree with counsel’s submission that the impugned term in the recognizance was so vague that the trial judge could not or did not articulate his reasons in support of the conviction. Not only was the trial judge entitled to accept and rely on parts of the appellant’s version about the nature of the driving and how he conducted himself, but the judge also accepted the evidence proffered by the various Crown witnesses in support of the charge. On a reading of the whole of the judgment, it is clear that Pockele J. articulated his reasons based on evidence that he accepted and reasonably concluded that the driving did not fall under the exception for employment purposes as framed in the recognizance, and that the requisite elements of the offence had been made out.

[16] While certain comments made by the trial judge in isolation may give rise to a concern that the burden of proof may have shifted to the defence, on a review of the entirety of the reasons, in my opinion, the learned trial judge was alive to the issues at trial and the requisite onus and burden of proof remaining with the Crown.

[17] In conclusion, I do not find any overriding and palpable error. Justice Pockele assessed the evidence and properly applied the requisite W.(D.) principles in his reasons for judgment. The appeal is therefore dismissed.

A.J. GOODMAN J.

Released: March 19, 2014