ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: 12-0115
DATE: 2014-08-25

B E T W E E N:

HER MAJESTY THE QUEEN

Stephanie Turner, for the Respondent

Respondent

• and -

WILFRED KANE

W. Gerald Punnett, for the Defendant (Appellant)

Defendant (Appellant)

HEARD: August 21, 2014

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice N.S. Douglas
dated May 28, 2012]

FRAGOMENI J.

1The Appellant was charged and convicted of the following three counts:

1. Between July 1 and 31, 2003 did commit an assault on Melissa Miller;

2. Between July 1 and July 31, 2009 did commit an assault on Melissa Miller;

3. On or about August 7, 2010 did without lawful authority confine Melissa Miller.

2The grounds for appeal as set out in the Notice of Appeal are as follows:

1. The learned trial judge did not consider each count separately;

2. The learned trial judge misdirected himself as to the analysis in W.D.

OVERVIEW OF THE FACTS

3This case involved two witnesses, the complainant Melissa Miller and the Appellant, Wilfred Kane.

The Testimony of Melissa Miller

4The only witness called by the Crown was Melissa Miller, the spouse of the Appellant. Ms. Miller testified that she had been in a common law relationship with Wilfred Kane for ten and a half years. She testified that they had three children together aged 9, 8 and 5. Mr. Kane was a major alcoholic and the relationship was abusive.

5On Saturday August 7th, 2010, Ms. Miller testified that she woke up and Mr. Kane freaked out because he had been up drinking the night before and was late for work. She told him that she “couldn’t continue living this way.” He flipped over the kitchen table and smashed two telephones. She had to piece together a telephone to call her brother for him to come and get her niece and nephew who had stayed the night because she was scared for them.

6Between 10:00 and 11:00 that morning Ms. Miller went to have a shower and Mr. Kane came into the washroom after her. He was refusing to let her end the relationship and would not let her out of the washroom. She begged him to let her out and started to hyperventilate due to claustrophobia. She called out of the window to her children for assistance. She testified that she asked Mr. Kane seven or eight times to let her out. He finally did after ten to fifteen minutes.

7On August 8, 2010, Ms. Miller testified that she contacted the police for advice on how to leave her relationship and whether she could take her children. She only wanted information and testified that she did not tell them about the washroom incident that had happened the previous day because she “didn’t know how bad of a thing that was.”

8On Wednesday August 11, 2010, at approximately 3:00 a.m., Ms. Miller woke up to Mr. Kane screaming at her to get out of the house. She left for work and finished at 11:00 a.m. She then drove to Guelph and went to the Family Court to find out what to do. There was no one there she could talk to so she returned to Palmerston and spoke to another woman she knew who had been in an abusive relationship and was advised to go to the police. At about 2:30 that afternoon she went to the police station and spoke to an officer.

9The first assault occurred in 2003 when they lived on Prospect Street in Palmerston. She was one and a half to two months pregnant with their second child. Mr. Kane came home in the evening extremely intoxicated. She told him he had to stop drinking. They had a “screaming match” and were face to face. He cocked his head back and smashed his forehead into her nose. Her nose started bleeding. She did not call the police. When asked by the Court, Ms. Miller recalled this incident happening in the summertime of 2003. She guessed August or early September.

10Ms. Miller testified that there was more physical violence in August 2009. The couple were packing to move into a new house, she had brought boxes up from the basement and was standing at the front door. Mr. Kane was drinking. They were arguing, he had a beer glass in his hand which he threw at her. It struck her in the calf area of her leg. She had a “huge bruise” which lasted two weeks. She did not report this assault at the time it occurred.

The Testimony of Wilfred Kane

11Mr. Kane testified in his defence. He stated that there was currently a Family Court Order in place with respect to access to the couple’s children. He acknowledged that he had a criminal record involving two assaults – that one involved Ms. Miller’s brother and cousin in 2003. The other assault was in 1992 when he did not know Ms. Miller. He was sentenced in 2007 to a Conditional Sentence, which he successfully completed.

12Mr. Kane testified he had an argument with Ms. Miller in a washroom that occurred on August 11, 2010, the same day that Ms. Miller went to the police. He stated that the argument was about her cheating and committing adultery. He denies confining Ms. Miller to the bathroom.

13In cross-examination Mr. Kane agreed he had a long standing issue with alcohol. He claimed that the only times he did not drink were when he was bound by a Conditional Sentence and when he was on Probation, although he acknowledged he “slipped once or twice.” Mr. Kane further admitted that there were some drug issues he was trying to deal with and clarified the drug to be marijuana. When asked if he used marijuana he answered that “we both have used marijuana.”

14Mr. Kane further clarified his criminal record to add a Possession of Stolen Property over $1000 in Kitchener on July 30, 1991.

REASONS FOR JUDGMENT

15In his reasons for judgment the learned trial judge sets out the following guiding legal principles that he is required to follow in his analysis of this case:

This is a classic W.(D.) situation in that the Supreme Court of Canada, in a case called W.(D.), outlined the responsibility of a Trial Court where credibility is the issue and, basically, you have one person’s word against another. It is not whose evidence I prefer. It is not anything except has the Crown proven this case beyond a reasonable doubt. The accused walks into this room today presumed to be innocent of all charges. That is called the presumption of innocence. He does not have to prove his innocence. He does not have to prove a thing. It is the Crown who must prove his guilt beyond a reasonable doubt, and that is a heavy onus. It is not that he is probably guilty. It is not even that I feel that he is probably guilty and I am almost sure of it. It is simply proof beyond a reasonable doubt. The Crown bears that onus throughout.

There is also a situation where, in dealing with a case such as this, if there is a Family Court involvement then the court must be very careful to determine that there is not any hidden agenda on the part of the complainant; in other words, is there really a wish to have some advantage in a Family Court situation and thereby embellish things or exaggerate things in a Criminal Court in order to help her or assist her in the Family Court situation.

16The learned trial judge then reviews the testimony of the two witnesses called at trial.

17At page 47 of the Transcript of his reasons for judgment the trial judge states:

She was not cross-examined at all about the adultery issue. This was something that arose only in the accused’s examination in-chief, and so she has not had an opportunity to tell her side of that particular allegation.

18The trial judge explains why he believed the complainant as follows:

I believed the complainant, and there are a couple of reasons why I did believe her. One of them is that she gave her evidence in a manner that was almost resignation. If I could describe it, that was the word that came to mind. She did not appear to me to be embellishing, exaggerating, minimizing. She answered all questions directly. She answered the questions put to her by Mr. Matson directly. There was not anything about her evidence that struck me that she was here to lie, and this is a case where someone is lying. There is no two ways about it. There is no grey here; she described these things that happened, he denies them and says they did not happen.

It is in the telling of the incidents, which is the other reason why I believe her. In other words, she does not describe with great detail an assault that caused her untold grief. She does not go into painting him as a person who has done terrible things to her, and, if she was going to lie, she could have told us that he beat her up a hundred times. She could have told us that he head butted her and broke her nose. She could have told us a lot of things that happened, if she was making it all up. The very fact that she describes these things relatively short and sweet tells me that she was not lying in the witness box. If she was going to lie in the witness box and commit perjury, I am sure she could have told about more grievous things that had happened to her. What she describes is a lifelong, or at least a relationship long relationship where she was working, having to help in looking after the kids, dealing with an alcoholic husband who was abusive to her for all those years, and I believe her.

19The learned trial judge rejects the Appellant’s evidence on the following basis:

• The Appellant simply denied it
• It is difficult to cross-examine someone when he says it did not happen
• The trial judge just watched the Appellant and did not believe him
• On the issue of credibility the trial judge states:

I should say, on the issue of credibility, where the accused has a criminal record, that only is used in a very limited way, and particularly it is with crimes of deceit and dishonesty. There is one thing that he said in his evidence that caused me to disbelieve his description of it, and that is when he said that he had a drinking problem and he had been assaulted by her family over the years, and yet he admits that he has to convictions for assault and one of them, at least, is one the member of her family. That does not really stack up that if he has been assaulted by them why would he be convicted of an assault. In any event, I was not in a position to say that I reject his evidence for several reasons, but I can say that I did reject his evidence when he denied that he assaulted her or confined her. I thought her evidence rung true, and I therefore find him guilty of all three counts.

ANALYSIS AND CONCLUSION

20In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, McLachlin J. set out the following at paras. 15 to 18:

15 This Court in Sheppard and subsequent cases has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.

16 It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524).

17 These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge's reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" -- the verdict -- and the "why" -- the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

18 Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. Doherty J.A. in Morrissey, at p. 525, states:

A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [Emphasis added.]

21In R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 the Court stated the following at para. 20:

20 Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

22In R.E.M. Justice McLachlin gave the following summary at para. 35:

35 In summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of [page19] the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial.

This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.

23The Appellant submits the following at page 4 of his Factum:

1. The question of Ms. Miller’s adultery only arose in Mr. Kane’s examination in chief. It appears that Justice Douglas disregarded that evidence as Ms. Miller had not been asked about it in chief. The question of marijuana came up in Mr. Kane’s cross examination. Ms. Miller was not asked about that. The proper way of dealing with both questions would be to have Ms. Miller put back on the stand to answer both questions if it had been a concern to the Crown or the Court.

2. Justice Douglas applied W.D. However, after rejecting the evidence given by Mr. Kane, he did not question as to whether the Crown had proven its case beyond a reasonable doubt.

3. It is further argued that the dates of the first assault offence was not proved, nor did the Crown ask for an amendment.

24The difficulty with the first issue is that it was the defence who chose not to cross-examine the complainant on the adultery issue or the marijuana issue. It was incumbent on the defence to put that version of events to the complainant and in not doing so it was open to the trial judge to comment on him not doing so. It was not up to the Crown to then recall the witness. With this in mind there is no ground of appeal dealing with the ineffective assistance of counsel and counsel for the Appellant may have had good reason not to cross-examine the complainant in this area.

25In Regina v. J.K., [1997] O.J. No. 1559 (S.C.) Hill J. stated the following with respect to the failure to cross-examine at paragraph 70:

A failure to cross-examine a witness, for example, the complainant, on matters material to the case may result in the assignment of diminished weight to subsequent evidence. As a general rule, where a party seed to impeach the credibility of a witness by independent or extrinsic evidence, the witness should be given notice of that intention, ordinarily through cross-examination on the relevant point. The rule accords with fairness to the witness and in turn to the parties. On important evidentiary points, it is unsatisfactory to be left with an absence of an explanation by a witness as to subject matter first raised after the witness has completed his/her testimony. In this case, the complainant was not cross-examined as to matters raised in the accused's testimony, for example, the extent of the agreement between the parties as to the second cleaning assignment at the Lakeshore Road apartment, and, the state of the unwashed dishes ad the angry outburst of the accused toward the complainant regarding her failure to clean the dirty dishes at the restaurant on July 27th, 1994.

26In any event the fact that no cross-examination took place in these areas was not significantly material to the reasoning of the trial judge. When the trial judge reviews why he believed the complainant this lack of cross-examination in these areas is not mentioned. As I indicated, however, it would have been the defence who would have cross-examined the complainant on these areas and by not doing so the trial judge was correct in making a comment about it.

27In R. v. C.R., 2010 ONCA 176, [2010] O.J. No. 911 E.A. Cronk J.A. stated the following at paras. 29 and 31:

29 At the outset, I observe that an appellant faces an up-hill battle to succeed on appeal with a misapprehension of evidence argument. A material misapprehension of the evidence by a trial judge compromises trial fairness, thereby justifying appellate intervention. However, a stringent standard applies to appellate reversal on this basis. In R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19, and in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1, the Supreme Court cited with approval the applicable test formulated by Doherty J.A. of this court in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at p. 541:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. ... If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [Emphasis added.]

See also R. v. H.C., 2009 ONCA 56, at para. 51 and R. v. T.T., 2009 ONCA 613, at para. 33.

31 Moreover, credibility is a question of fact. On factual matters, it is a reviewing court's responsibility to afford due deference to the advantageous position of the trial judge who actually saw and heard the witnesses: R. v. Cresswell, 2009 ONCA 95, at para. 14; R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46.

28In R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639, Doherty, J.A. stated the following at paras. 28-30:

In any event, it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole: R. v. C.(R.) (1993), 1993 142 (SCC), 81 C.C.C. (3d) 417 at p. 418 (Que. C.A.), per Rothman J.A. in dissent at p. 419; dissenting reasons adopted by the Supreme Court of Canada [1993] 2 S.C.R. 226, 81 C.C.C. (3d) 417; R. v. Telmosse (1945), 1944 401 (SCC), 83 C.C.C. 133 at p. 138, [1945] 1 D.L.R. 779 (S.C.C.). Furthermore, they must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.

In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision. The reasons should be responsive to issues raised at trial and must be read in the context of the entire trial. Reasons for judgment should offer assurance to the parties that their respective positions were understood and considered by the trial judge in arriving at his or her conclusion: R. v. Smith, supra, at pp. 313-14; M. Taggartt, "Should Canadian Judges be Legally Required to Give Reasoned Decisions in Civil Cases" (1983), 33 U.T.L.J. 1 at pp. 5-6; A. Hooper, "Criminal Procedure -- Trial Without Jury -- Obligation to Give Reasons for Judgment" (1970), 48 Can. Bar Rev. 584. In cases like this, where the result turns on fact-finding and not on the application of contested legal principles, it is appropriate that the reasons should focus on telling the parties what evidence was believed and why it was believed.

A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.

29The Appellant takes issue with the trial judge stating that the Appellant’s evidence was a simple and blanket denial of those events taking place thereby making cross-examination of the Appellant difficult. In doing so the trial judge did not deal with and analyze each count separately as he is mandated to do.

30In reviewing his testimony in that the Appellant gave the following testimony in part:

Q. Okay. And Ms. Miller’s indicating that, at one time, you head butted her. Did that every happen?

A. No sir, it did not.

Q. And she’s also alleging that you threw a bottle at her once.

A. No, sir…

Q. That never happened?

A. No sir.

Q. Okay. Did you ever – I asked about those dates, but did you ever head butt her, ever?

A. No sir.

Q. Did you ever, ever throw a bottle at her?

A. No sir.

Q. Now, Ms. Miller is alleging that in August of 2010 that there was an incident in a washroom.

A. Mm-hm.

Q. You heard her testify about that today?

A. Yes.

Q. She tells us that it happened on a Saturday, August 7th and then on a Wednesday she goes to the police. Do you remember what day you were arrested?

A. Yes, the same day we had the argument in the washroom is the same day I was arrested.

Q. Okay, so she’s telling us that was Wednesday, August the 11th. Do you recall that being the day you were arrested?

A. Yes.

Q. Okay, and what do you say happened in the morning of August the 11th in relationship to a washroom incident?

A. We had an argument about her cheating and committing adultery.

Q. Right, and when did that start?

A. Probably about 9 in the morning. I was making sure she was in agreement that she was leaving for a bit…

Mr. Matson: Right.

A. …to let me digest what just happened, because we were together for 11 years and she had slept with somebody else and it really hit me hard.

Q. Can you tell us what you recall about that incident?

A. I stood – she had to go to work that day and she went and had a shower, and I asked her if I could talk to her, if I could, you know, have some answers to some questions, and she was showering and were talking and then she got out of the shower and, as she was drying off, I stood in the doorway, and, when she was done drying off, she went to the room, proceeded to the bedroom. I followed to the bedroom and still asked questions why, after 11 years, she would cheat. She proceeded to get dressed and stuff. She – we both came to an agreement that she would leave for a bit for, you know, however long it took for me to digest what just happened, and I was the primary caregiver at the time with no licence and she was working and had a licence. So it just turned out to be the best idea for her to – to leave for a bit, and she came and agreed with that. So I followed to the dining room, we said our goodbyes and she left and she went to work.

Q. Okay. Did you, at any time, close the door in the bathroom so she couldn’t get out?

A. No sir.

Q. Did she ever attempt to get out of the bathroom and you blocked her from getting out?

A. No, and every time she moved towards me, I moved out of the way.

31I agree with the defence that with respect to the unlawful confinement count the Appellant did provide more than a denial as he gave details about the incident. In essence however, his defence was a denial that he confined her. The Crown was able to cross-examine that Appellant on this count.

32I am not satisfied however, that the trial judge’s reasons when read as a whole fail to address each incident. Isolating one sentence stating that the Appellant simply denied the allegations is not a reasonable review of his reasons.

33I am satisfied that when read as a whole the trial judge’s reasons demonstrate the following:

• a proper articulation of the appropriate legal principles;

• the trial applied W.D. and was aware of the onus and burden of proof on the Crown to prove those charges beyond a reasonable doubt;

• the verdict is reasonable and supported by the evidence. It was open to the trial judge to make the findings he did.

34When W.(D.) is read in light of the above propositions from Morin, it becomes apparent what Cory J. meant when he limited the W.(D.) instruction to “a case where credibility is important”. It is submitted that the W.(D.) instruction applies only to the elements of the offences charged, which must be proved by the Crown beyond reasonable doubt, and to the elements of defences raised by the evidence, which must be negatived by the Crown beyond reasonable doubt.

35The obligation of W.(D.) analysis was summarized in Regina v. Minuskin (2004), 2003 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

36Feldman J.A. explained the following in R. v. Hoohing (2007), 74 W.C.B.) (2d) 676 at para. 15 (Ont. C.A.), in relation to a trial judge who had elaborated on steps 1 and 2 in the manner suggested herein:

He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence. See: R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.). The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt. [Emphasis added.]

37In all of these circumstances therefore, I am not satisfied that the trial judge made any errors and as such the appeal is hereby dismissed.

Fragomeni J.