ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

Editor’s Note: Corrigendum released on June 23, 2014. Original judgment has been corrected with text of corrigendum appended.

COURT FILE NO.: 814/13
DATE: 2014/06/20

B E T W E E N:

HER MAJESTY THE QUEEN

V. Decker, for the Crown

Respondent

• and -

KYLE FAIRWEATHER

F. Brennan, for the Appellant

Appellant

HEARD: June 9, 2014

REASONS FOR JUDGMENT

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

A.J. GOODMAN J.

1This is an appeal against conviction and the sentence imposed by Justice G. Pockele of the Ontario Court of Justice at London, Ontario.

2The events giving rise to these offences occurred on September 15, 2012 in the City of London. The trial proceeded with one count of assault simplicitor, contrary to s. 266 of the Criminal Code.

3In oral reasons delivered on the day of trial, the learned trial judge convicted the appellant. The appellant was sentenced to four months in jail along with a two year term of probation and various ancillary orders.

The Evidence at Trial

4The evidence in this case has been laid out in the appellant’s factum and the transcripts of the proceedings. For the sake of brevity, I will only refer to brief portions of the evidence in my analysis of the specific grounds of appeal, although all of the relevant evidence has been examined.

5On September 15, 2012, there was a party at the home of Derek Wheat “(Wheat”). All parties admitted to consuming alcohol to varying degrees on the evening in question. It was shortly after the arrival of various individuals at the house, that the victim, Mr. Steve McIntyre (“McIntyre”) was repeatedly struck and rendered unconscious. It is not disputed that while at the house, the appellant struck McIntyre in the face.

6The Crown witnesses included McIntyre, Amanda McCallum (“McCallum”) and Brianna Nimick (“Nimick”). The Crown witnesses testified that as Wheat and the appellant began to argue, McIntyre motioned to McCallum to leave and got out of the chair. Although no words were exchanged between the appellant and McIntyre, the appellant suddenly snapped and punched McIntyre several times in the face. The prosecution witnesses testified that the appellant struck Mr. McIntyre first and continued to hit McIntyre after he fell to the floor. They testified that the appellant threw a beer bottle during the argument. McIntyre and McCallum testified that the bottle was thrown against a wall, but Nimick testified that the appellant threw the bottle on the ground. McCallum stated that the appellant punched McIntyre twice and grabbed onto McIntyre’s shirt as he fell backwards. She testified that the appellant then stood over McIntyre and delivered five more punches.

7McIntyre claimed that he had no memory of what happened after he stood up from his chair. McIntyre also admitted under cross-examination that he had difficulties with his memory as a result of a head injury. He stated that he did not recall from his statement that he stood up to “calm Derek down” or that he was “somewhat upset because my wife was yelling, and there was name calling with my wife and Derek”. McIntyre testified that he had suffered a broken orbital bone, broken bones in his nose, and still experienced a loss of feeling in his upper teeth and gums and required reconstructive surgery as a result.

8The defence witnesses included the appellant, Wheat and Kyle Keddy. The defence witnesses testified that there was a disagreement between Wheat and the appellant. Wheat acknowledged the argument between himself and the appellant. All the defence witnesses said the disagreement between the two occurred because Wheat told everyone to leave and the appellant suggested that everyone but McIntyre should stay. The defence witness also stated there was no physical altercation between Wheat and the appellant that night. All defence witnesses categorically denied that the appellant threw a beer bottle on the night in question and disputed the prosecutions witnesses’ version of events.

9In particular, the defence witnesses all testified that McIntyre hit the appellant before the appellant punched McIntyre. The appellant testified that he punched McIntyre in the face once and then threw one or two more as McIntyre fell backwards. He was not sure whether the last two punches connected. Wheat testified at trial that he saw the appellant hit McIntyre once, but acknowledged he told the police there may have been “one or two” punches. Keddy testified that he saw the appellant hit McIntyre twice. The interaction between McIntyre and the appellant happened quickly and all defence witnesses described McIntyre falling back over the chair in which he had been sitting and falling onto a number of boxes, cartons and other items. There were somewhat different accounts as to how McIntyre struck the appellant and what may have lead up to the assaultive behaviour, but all defence witnesses’ testimony intimate that the defence of self-defence was at play.

Positions of the Parties

10The appellant submits that the trial judge erred in his assessment of the evidence in this case by shifting the burden of proof onto the defence, making findings of credibility and reliability not available on the evidence, and applying a much higher standard of scrutiny in assessing the defence evidence than that of the Crown. The trial judge essentially adopted and accepted the prosecution evidence before analysing and considering the defence evidence and thus, fell into error. The appellant submits that the conviction in this case is unreasonable and unsafe.

11The Crown disagrees with the appellant’s characterization of the trial judge’s assessment of the witnesses’ evidence. The trial judge did not shift the burden from the Crown to the defence and therefore he did not err in his application of the W.D. test in his analysis. Crown counsel submits that the trial judge did not err and applied the proper legal principles and the Reasons are particularly thorough and do not reflect any palpable or overriding error.

The Reasons for Judgment

12Justice Pockele accepted the testimony of the prosecution witnesses. At the conclusion of his Reasons, the trial Judge rejected the defence evidence as marked by major lies and omissions. He found that there were multiple blows inflicted by the appellant and rejected the defence of self-defence.

Legal Principles

13When considering unreasonable verdict or an error in an overall assessment of the evidence, an appellate court is not entitled to re-try the case and substitute its view of the evidence. Rather, the court must thoroughly re-examine and to an extent at least, re-weigh and consider the effect of the evidence: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122. The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have acquitted the appellant. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168.

14An appeal court ought to afford deference to findings of fact made by a trial judge who has had the opportunity to see the witnesses and assess their credibility. An appellate review takes the facts as found by the trial judge and upon a limited review can reject those findings only where it can be shown that the trial judge committed a palpable and overriding error, or made findings of fact that are clearly wrong, unreasonable and unsupported by the evidence.

15The standard of review on a question of law is correctness. A question of mixed fact and law is subject to a standard of palpable and overriding error unless the judge made some error in principle. The jurisprudence suggests that the standard of review depends on whether the issue is largely one of fact or law. In this case, I apply the standard of correctness as the issue is primarily one of a question of law.

16In R. v. Morrisey, (1995) 1995 3498 (ON CA), 97 C.C.C. (3d) 193, (Ont. C.A.) at para 83, Doherty J.A. discussed when a misapprehension of evidence may arise:

I will now address the effect of the trial judge's misapprehension of the evidence. Submissions premised on an alleged misapprehension of evidence are commonplace in cases tried by a judge sitting without a jury. A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. Where, as in the case of Crown appeals from acquittals (Criminal Code, R.S.C. 1985, c. C-46, s. 676(1)(a)) and appeals to the Supreme Court of Canada pursuant to s. 691, the court's jurisdiction is predicated on the existence of an error of law alone, characterization of the nature of the error arising out of the misapprehension of evidence becomes crucial. The jurisprudence from the Supreme Court of Canada demonstrates the difficulty in distinguishing between misapprehensions of the evidence which constitute an error of law alone and those which do not: Harper v. R., 1982 11 (SCC), [1982] 1 S.C.R. 2, 65 C.C.C. (2d) 193; Schuldt v. R., 1985 20 (SCC), [1985] 2 S.C.R. 592, 23 C.C.C. (3d) 225; R. v. Roman, 1989 113 (SCC), [1989] 1 S.C.R. 230, 46 C.C.C. (3d) 321; R. v. B.(G.) (No. 3), 1990 115 (SCC), [1990] 2 S.C.R. 57, 56 C.C.C. (3d) 181; R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286, 76 C.C.C. (3d) 193.

Application of the Legal Principles to this Case

17The events leading up to this assault, the nature of the physical confrontation including the physical force used by the appellant were very much in dispute. This case turned on evidence relating to self-defence. At page 119 of the transcripts, the learned trial judge identified the salient issues before him:

The issue at hand is whether he suffered these injuries from blows directed to him by Kyle Fairweather, and Mr. Fairweather does admit one or possibly two blows. The legal issue is whether Mr. Fairweather was acting in self-defence and whether his response to the threat and alleged assault by Mr. McIntyre was excessive.

The defendant, to be acquitted, only need raise a reasonable doubt. I am further directed not to examine the evidence on a piecemeal basis but to look at all of the evidence, that I do not have to impose a standard upon the defence that I look at their evidence and decide that it might reasonably be true. That is a higher standard than merely raising a reasonable doubt. All of the witnesses are going to have to be assessed with respect to the reliability and credibility of their evidence, and since the burden is upon the Crown to prove the case I begin with assessing the evidence of their witnesses.

18The appellant argues that the trial judge failed to consider important, material inconsistencies in the evidence of the Crown witnesses. The trial judge did not take into consideration that Nimick testified that the appellant threw the beer bottle on the floor, while McCallum and McIntyre testified he threw it at the wall. It is submitted that this inconsistency in the Crown evidence was significant in light of the defence evidence that no beer bottle was actually thrown. There were also inconsistences in the evidence of the Crown witnesses regarding the argument between the appellant and Wheat. McCallum testified that the appellant actually threw Wheat to the ground, whereas Nimick’s evidence was that they were starting to shove one another. This, too, is suggested to be a significant discrepancy in their evidence, particularly in light of the defence evidence that there was no physical contact between Wheat and the appellant.

19The appellant submits that there were also discrepancies between McCallum’s and Nimick's account on the central use of how the appellant struck McIntyre. McCallum testified that McCallum was struck twice while still standing and then struck several times on the ground. Nimick, however, testified that the appellant only punched McIntyre after he was on the ground. The appellant submits that the trial judge did not consider these inconsistencies before finding that the Crown evidence was credible, reliable and left no room for doubt.

20The Crown submits that the trial judge considered the level of intoxication of each witness, including McIntyre, in as much as was permissible. Despite his candid admission of alcohol consumption and his evidence regarding a head injury which may affect his memory, McIntyre’s account of the details up until the time he says he blacked out is supported by the testimony of other witnesses. The appellant points out much of minor differences in prosecution testimony regarding where the beer bottle was thrown: the wall or the floor.

21It must be recognized that with the frenzy of activity and consumption of alcohol, the trial judge recognized that when events are unfolding as quickly as they did in this case, inconsistencies on such a minor issues, in my view, do not amount to an error in the assessment of credibility or a misapprehension of evidence. Indeed, inconsistencies on minor matters of detail are to be expected.

22I am of the view that the trial judge assessed the evidence of all witnesses and dismissed the defence’s witnesses’ accounts on these points, as he was entitled to do. In his reasons, Pockele J. took into account these inconsistencies in assessing whether there was a reasonable doubt on the Crown’s evidence. The trial judge did not misapprehend the quality of testimony pertaining to the reliability of McIntyre’s evidence including evidence that tended to be corroborated by the other Crown’s witnesses’ accounts.

23The appellant argues that the trial judge erred in his assessment of McIntyre’s ability to recall evidence, and erred in his assessment of his reliability. The trial judge dismissed as a “minor matter” the inconsistency in McIntyre’s evidence at trial that he got out of the chair only to leave and his statement to the police that he got up to calm down Wheat. It seems that the trial judge assessed McIntyre’s recollection up until the time of black out in the context of other witness testimony, including the defence witnesses. I do not read that this inconsistency went directly to the issue of whether McIntyre was the aggressor and provided any corroboration for the defence evidence that McIntyre struck the appellant first.

24Similarly, I do not find support for the appellant’s argument that the trial judge applied a much higher level of scrutiny or standard to the defence evidence than he did when assessing the credibility of the witnesses for the Crown or that there collusion sufficient to raise an error. Justice Pockele held that the inconsistency in the complainant’s evidence regarding the amount of alcohol he had to drink on the night in question was minor and had no impact on his credibility. At pp.124-125, in referencing the Court of Appeal, he stated:

What is important is the significance of the inconsistency. If … a significant one then the trial judge must pay careful attention to it when assessing the reliability of the witness’s testimony.

Again, to what end would this be an intentional misstatement. The defence would argue that it shows casualness towards the truth. It is just a minor matter.

25In my opinion, the inconsistencies relied upon by the appellant in this appeal do not render the verdict of guilty unsafe. The Crown witnesses gave evidence that was chiefly consistent on the central factual issues. Differences in accounts are to be expected, as the judge found that some of the witnesses appeared to have observed more of the altercation than others. Although raised by the appellant for this first time on this appeal, there was no air of reality for an allegation of collusion of witnesses at trial and none arises on this review.

26A further complaint raised is about the trial judge’s finding that Keddy’s use of the word “react” to describe what the appellant did after he was struck by McIntyre demonstrating bias. I am satisfied that in using the word ”react” the learned trial judge was directly quoting Keddy from his testimony. The appellant also relies upon the trial judge’s use of the words “extravagant and hyperbolic” when discussing McCallum’s evidence. In using these words, I accept that the learned trial judge was simply describing how the complainant gave her testimony. I do not find that the trial judge put significant weight on relatively minor inconsistencies in the defence evidence and no significance on any of the inconsistencies in the Crown’s evidence or that he applied a stricter scrutiny of the defence witnesses than of the Crown witnesses.

27Fundamentally, the appellant argues that the Reasons provide for the reversible error as found in the Supreme Court of Canada decision in R. v. C.L.Y. 2008 SCC 2, 2008 1 SCR 5. The appellant submits that the trial judge erred in accepting the credibility of the complainant “before assessing the evidence of the accused.”

28In overturning the Manitoba Court of Appeal in CLY, the Supreme Court considered the trial judge’s reason at stated at paras. 25, 26, 27 and 30:

It seems to me, on the contrary, that this is precisely the kind of case where a departure from W. (D.) is fraught with particular danger. The very purpose of adhering to the procedure set out in W. (D.) is to foreclose an inadvertent shifting of the burden of proof where the complainant and the accused have both testified and the outcome of the trial turns on their credibility as witnesses.

That was the case here. And the risk of an inadvertent shift in the burden of proof materialized, as the reasons of the trial judge make plain. The trial judge accepted the evidence of the complainant without taking into account at all the contrary evidence of the appellant. Before even considering the appellant's evidence, the trial judge had concluded not only that the complainant's evidence was "credible", but that it was in fact true: "I believe the complainant", she stated (at para. 6).

This conclusion, premature at best, amounted to a finding that the appellant was guilty as charged. As a matter of law, the appellant was presumed innocent; as a matter of fact, his fate had [page19] been sealed without any consideration at all of his evidence under oath at trial.

Unfortunately, the appellant's presumption of innocence had by that point been displaced by a presumption -- indeed, a finding -- of guilt. The trial judge could hardly believe both the appellant and the complainant. Before even considering the appellant's evidence, she had already concluded that she believed the complainant. In effect, the trial judge had thus decided to convict the appellant unless his evidence persuaded her to do otherwise.

29In CLY, I note that the trial judge provided what can only be described as perfunctory and conclusory reasons for her decision. In fact there are a total of 13 short paragraphs of which only 8 sentences address any of the relevant issues with arguably scant reasons. In CLY, when the judge turned to the evidence of the accused, she did so in these terms, found at para. 8:

In assessing [the accused's] testimony, I am aware that I have already found [the complainant] to be credible, but I will explain why I disbelieve [the accused] and why his evidence does not raise a reasonable doubt in my mind.

30The Supreme Court’s guidance in CLY is instructive for trial judges, albeit it has been distinguished by several courts: R v. D.B. 2008 S.J. No. 727 (C.A.). Indeed, Pockele J.’s Reasons and analysis are distinguishable from those found at the trial level in CLY. After assessing the prosecution evidence the learned trial judge continues at p. 140:

But we have contradictory evidence, and that has to be assessed, and I have to assess the evidence of the accused and the defence witnesses using the same tests.

I do not believe the defence evidence, and I want to tell you why. On very many essential details, which I have just covered, they are not together, but the defence evidence is marked by what I would call three major lies and omissions. The defence all decided that there was no beer bottle thrown to the floor.

31In my opinion, Pockele J. did not fall into the CLY chasm, and just simply accepted the credibility of the complainant to sustain the finding of culpability without fully assessing the evidence of the accused and the defence witnesses. Rather, the trial judge assessed the evidence of the complainant and prosecution witnesses for the first half of the judgment and then turned to assess the evidence of the appellant and the defence witnesses in the secon