OSHAWA COURT FILE NO.: 13472/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen (Respondent) v. George Corrie West (Appellant)
BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN
COUNSEL: M. Flagg, Counsel for the Crown
R. McKechney, Counsel for the Appellant
HEARD: December 10, 2014
On Appeal of the Judgment of The Hon. Mr. Justice J. De Filippis
Dated June 11, 2013 and Sentences Imposed on August 22, 2013
ENDORSEMENT
1At trial, the appellant faced a total of eight counts: six counts of assault from December 30, 2010 to May 9, 2011, two with a weapon; and two counts of threatening death during April 2011. He was convicted of the two assault-with-weapon counts, three assaults and one of the threatening counts. He was sentenced to 18 months in jail, two of which were deemed to have been served as pre-trial custody.
2I have read the facta and considered the submissions made on behalf of the Appellant and of the Crown as respondent. I have read, where necessary, the transcript of evidence from the trial and the reasons for judgment of the capable trial judge.
3The appellant submits, through counsel, that the trial judge misapprehended certain evidence, applied a different standard of scrutiny to the evidence based on whether it was called by defence or Crown, and misused the criminal record of the appellant to his prejudice. Counsel for the respondent argued strongly that the appellant’s counsel cherry-picked the judgment and the evidence in a lengthy trial by using three or four references that, when read as a whole, indicate a careful judgment following the W.(D.) analysis showing why the appellant’s evidence was rejected, why the defence evidence raised no reasonable doubt and why he accepted the complainant’s version.
4I find that the misapprehensions and use of bad character evidence became the combustible driving force which led the credibility findings to an unfair result that stems from an error in law. The appeal is allowed, the convictions and sentence based thereon are vacated, and the charges are remitted to the Ontario Court for a new trial. The following are my reasons for doing so.
5The evidence from the appellant and the complainant is in direct conflict on the material points of each count; therefore the trial judge quite rightly recognized that the credibility of witnesses, particularly that of the appellant and the complainant, was central to the case. He spent twenty paragraphs of the twenty-four leading to his findings of credibility on a careful summary in detail of the evidence.
6While the judgment must be read and understood as a whole, it is in para. 26 that the trial judge defined the central issue and in para. 27 where his critical finding against the appellant is made. The remainder of the judgment that follows is a series of eleven paragraphs adding further reasons for his central finding that the complainant was “a truthful and accurate witness” and that the appellant was a controlling, manipulative liar on all eight counts.
7The trial judge defined the issue as follows:
- There can be no doubt that by May 9, 2011, this marriage was in difficulty. The testimony of both spouses confirms this and points to previous months of acrimony. The complainant’s version of events is that what happened that day compelled her to go to the police and reveal all the abuse she had suffered. The defendant claims that his wife fabricated everything that day, believing him to be quitting the marriage and wanting to control the fallout, including the custody and access decisions to come.
8In para. 27, there are three reasons given for rejecting the appellant’s testimony.
(a) the “impact of his criminal record on credibility”;
(b) the defendant’s delay in surrendering to police while he knew they were waiting for him outside the home; and
(c) the mistaken attribution of the “Facebook profile dated July 22, 2011” to the appellant.
9The trial judge described the posting by the defendant as: “That action is further evidence of his manipulative nature.” The content of this posting is described earlier in para. 11 of the Reasons for Judgment:
- The complainant was confronted with a Facebook profile dated July 22, 2011 – more than two months after the defendant’s arrest — in which she declared the defendant to be her “significant other” and that her interests are “Being with my family, snuggling with my husband to a good movie, chocolate, enjoying life”.
10The trial judge said she denied posting this message. In describing this posting as “further evidence” of the defendant’s manipulative character, his primary reason was item (b) above.
11These findings drive the rest of the judgment. The problem is that in my view the “impact” of the criminal record which contains no offence of dishonesty, the assigning of the July 22, 2011 posting to the appellant despite the admission of the complainant to the contrary, and the sloughing off of evidence that could tend to undermine the credibility of the complainant indicate an error in law, relevant misapprehension of evidence, and a less critical standard for assessing the Crown’s evidence than the more critical approach to every aspect of the appellant’s case.
Criminal Record
12The trial judge began his decisive paragraph in his Reasons in this way:
- I disbelieve the defendant and reject his testimony about all the charges. In coming to this conclusion I take into account the impact of his criminal record on credibility. What is most significant, however, is the defendant’s delay in surrendering to police and the letter he left behind.
13The criminal record in this case consisted of fourteen convictions between 2004 and 2009 inclusive: eight prior assaults, with and without a weapon, including two with bodily harm; one for fail to provide a breath sample; and 5 for failing to comply with a recognizance or probation. Counsel for the Crown submitted that, in accordance with established case law, where a trial judge refers to a criminal record, he must be taken to know the law that where the issue is guilt or innocence, and the accused person testified, the criminal record is relevant only to the analysis by the trier of fact of the accused’s credibility. It is not to lead to the forbidden line of thinking that the accused is the type of person who would commit the offences before the court and so he did them. I agree. R v. Brooks (1998), 1998 5686 (ON CA), 129 CCC (3d) 227 at para. 72. The problem is that this criminal record has no offences on it relating to dishonesty such as fraud, theft or perjury. And it has 8 prior assault convictions on it, which have little to do with credibility of the witness but are the same type of offence with which the appellant was charged. And the trial judge expressly relates the appellant’s criminal record to credibility: “In coming to this conclusion (that he disbelieves the appellant’s evidence) I take into account the impact of his criminal record on credibility.” After this express linkage is made, some further limiting comment could have been forthcoming such as that he is referring to the record only to indicate that it has a slight effect on credibility due to the number and the lack of regard shown for the court’s process, not to infer in any way that he was using the assault convictions to mean he is the type of person who is more likely to have committed the offences in the indictment. No such limiting comment was made.
14It seems to me that when a trial judge expressly relates a criminal record of similar offences with no dishonesty-related offences on it, in the absence of any limiting statement, and given the use of the words “impact …on credibility” in relation to such a record, the reviewing court can only assume that there was an impact of this record on the finding of credibility beyond the fact of its existence. Properly, this criminal record adds little or nothing to the credibility analysis. That this record had any impact on the assessment of credibility of Mr. West is an error in law because the only impact it has to offer is one prohibited in law, that Mr. West is the type of person who committed the offences charged because of the numerous assault convictions.
The Groundless Attribution of the “Facebook” Posting
15There is no dispute that at para. 27 the trial judge erroneously stated that “I am confident the Facebook profile dated July 22, 2011 was posted by the defendant …” The complainant admitted twice during the trial that she had posted these messages.
At p. 106-7, Feb. 13, 2013 transcript:
The Court: Contains something that you know you wrote, “The love I have for my children, my husband, couldn’t be described in words…?
A. (Ms. Wolsey, the complainant): Right.
The Court: ...you wrote that?
A. Yes.
The Court: “Being with my family, snuggling with my husband to a good movie, chocolate, enjoying life,” … You wrote that?
A. Yes sir.
16To the extent that the trial judge attributed the writing of these words to the appellant, it was an error, a misapprehension of the evidence. To the extent that he meant to attribute the posting of these words, not the authorship, to the defendant by using something the complainant had written some time before and posting it on her site on July 22, 2011, there is no evidence to support it. All that was in evidence on that point was the complainant agreeing with a suggestion by counsel that the defendant could have, not that that is what he did. In addition, the complainant corrected the reference to her Facebook site being where these words appeared on July 24, not July 22. She stated at p.105 to a suggestion by counsel that those words were on her Facebook page on July 24, 2011:
A. (complainant): That’s not Facebook sir.
Q. (defence counsel): What is that?
A. That’s my Windows Live account which I hardly ever used.
Q. It was there on July 24th?
A. Right, I just hadn’t taken it down. It was old.
Q. Well wouldn’t that be an “Interests — being with my family, snuggling with my husband to a good movie, chocolate, enjoying life.
A. That was something that I wrote like years prior and it was up there.
(Feb. 13, 2013 transcript, at p.105.)
17The problem that now arises is that the trial judge, having erroneously attributed its posting to the defendant, concluded at p.8 of the Reasons for Judgment that the posting by the defendant of the wrongly described “Facebook profile” was further evidence of “his manipulative nature”. There was no evidence to support his assumption that the appellant had posted it and in fact the words were hers which she had left on her Windows Live site.
Different Treatment of Prosecution and Defence Evidence
18There are several examples of a different standard of scrutiny being exercised in the Reasons for Judgment of the trial judge, depending on whom the evidence favoured. First, in regard to the alleged assault on February 10, 2011 at 7:30 a.m. when the appellant is said to have given the complainant a back-handed slap, causing bleeding inside her mouth and discolouration on her face, the appellant’s mother Rosemary Brown testified that the complainant mentioned nothing to her of any assault on her that day despite being together for part of the day. Ms. Brown saw no evidence of a cut or bleeding, or facial bruises on the complainant. Ms. Brown recalled that it was that day that she and the complainant made lasagna together for a charity event to be held the following Saturday. Ms. Brown said she recalled that day because it was the same day as a snowmobile event at Port Perry and the confirmation of that event being on that day was provided to Ms. Brown by the Snowmobile Club and was made an exhibit. The complainant stated that she remembers that day because her nephew was born that day and she went to the hospital in Oshawa to provide support. When it was put to her that Ms. Brown saw her the day of the alleged assault, she remembered helping Ms. Brown on the weekend, not on the Thursday, February 10 as Ms. Brown stated.
19Both witnesses had a reason for remembering the same date and what each was doing. Yet the trial judge found that the complainant’s linkage to her nephew’s birth made sense whereas there was no reason for Ms. Brown to recall the exact day as Feb. 10 “so long after the fact”. Both anchored the date to a specific event each remembered and Ms. Brown provided documented evidence of the event.
20Second, the trial judge stated that he was not impressed by certain comments made about the complainant regarding the incident on December 30, 2010. That was the day she had gotten the children into the car, then the appellant said he would not go unless she “sucked his dick”. They were in the house at the time. She slapped the erect penis he pulled out and he is said to have kicked and punched her.
21The appellant gave evidence that he did not demand oral sex that day. He tried to explain why she said what she did about his demand by referring to an incident some time before when she made what to him was a surprising business proposition: that if he would massage her feet, she would perform oral sex. Another witness, a Mr. Stewart, a former tenant, said she made a similar remark to him if he would stay and not leave. The trial judge dismissed the appellant’s evidence as having nothing to do with the trial. “The defendant raised this irrelevant matter because he believed it would adversely affect the complainant’s credibility. As such, it reflects badly on him.” Yet the evidence, it seems to me, was given with an obvious relevant purpose in mind — to show that she is the one that made such suggestions and it would be more probable that she was using her own proposition but reversed it by putting in his mouth. In other words, it was relevant evidence to the defence argument that the complainant fabricated evidence to put herself in an advantageous position for support and custody/access issues to come, knowing that the appellant was about to leave her.
22Third, the defence produced a witness, Ms. Boncheff, who gave evidence that suggested that the complainant had attempted to have her provide a certain statement incriminating the appellant when Ms. Boncheff had not even been present when the alleged incident occurred. This evidence, while coming from a truthful witness according to the trial judge, was simply dismissed as nothing more than a request to provide evidence of an assault. It is interesting to note exactly what Ms. Boncheff’s evidence was and what the context was.
23Ms. Boncheff stated that the complainant appeared at her door after she had arrived home from giving a video statement to the police. This was about an earlier assault that the appellant had committed with a spatula. The reference to “Ariana” is to a daughter of the complainant and Mr. West. Ms. Boncheff’s evidence was the following:
Q. Were you ever approached by Erin West with respect to any aspect of that case?
A. Yes.
Q. In what way?
A. She asked me to provide — she came to my door at 124 Laidlaw…
(She was interrupted by two questions, then she was allowed to continue)
A. Yeah, and she asked me , after she got home from a video statement, if I could provide a piece of paper stating that I saw Corrie hit Ariana and also that that I saw bruises on her. And I told her I could not, because I never seen it happen and I never saw bruises.
24The trial judge dismissed the Crown’s attack on Ms. Boncheff, finding her a truthful person. He then commented that her evidence had nothing to do with the charges then before him “but it is obviously a serious matter if the complainant ever solicited false testimony. This is what the defence asserts but it is not what I find as fact. (Ms. Boncheff’s evidence) does not mean the (complainant) invited perjury. I am not troubled by Ms. Boncheff’s testimony.” (Reasons, Para. 30). Mr. Flagg suggested that the Boncheff evidence was a red herring. Yet this was not a simple request to give evidence. It was a direct attempt to have Ms. Boncheff give a specific account of an incident she was not even present to see. And the complainant would have known that at the time she made this approach. Again, a witness helpful to the defence theory that the complainant’s evidence was fabricated to put herself in an advantageous position for Family Court proceedings that were bound to come soon after the impending separation.
25It is interesting to note how the trial judge dealt with the defence position. At para. 33, he found:
Cases of domestic abuse often involve the intersection of criminal and family proceedings. In such cases, a judge must consider if evidence in one matter is tailored to affect the outcome in another. …In this case, there is simply no air of reality to the motive asserted. …In this regard, the defendant’s criminal record is relevant to the complainant’s state of mind. Most of his thirteen convictions are for assault. Whether the complainant was aware of the extent of the record is not clear…She is without a criminal record and the mother of three children under the age of five. In all the circumstances, why would the complainant be unduly concerned about losing custody of the children? If so, why invent a story about squirting baby bottles, hurling boiling water, and formula poured on her head?
26The reference to children under the age of five is an obvious reference to an outdated understanding that in family law today, there is still, as there was years ago, a presumption that children under five should remain with their mother. That presumption plays no part in custody and access decisions today. But beyond that, there are problems with the complainant’s story about the final assault. She said that the appellant is supposed to have thrown boiling water from a pot right off the stove at the complainant and her baby and it made contact with her arm. She said that he dumped baby formula over the back of her head. Strangely, the boiling water produced no heat blisters on the complainant’s exposed arm; it just looked red and raw, she said. Neither officer saw any wound nor did they see the formula in her hair. Again, the absence of any third party evidence other than her mother to back up the complainant’s story where such evidence should have been obvious to investigating officers, was simply dismissed as being due to one not looking for “these signs” and the other not conducting a careful examination.
27If the investigation was so lax, why was the complainant’s version of events so obvious to the trial judge that not even a reasonable doubt was raised by the appellant’s denials? The trial judge answered that by finding that she had no motive to fabricate because of his criminal record. But then he added that she may not have been aware of it beyond the one prior assault on her. And he found that there was no reason for her to be concerned about custody and access decisions to come. Yet, embedded in the lengthy summary of the evidence by the trial judge is one sentence which gives more than a hint that the complainant did in fact have concerns about what would happen to her and the children. The complainant admitted under cross-examination she was indeed concerned “that her delay (in reporting the alleged assaults) might cause the Children’s Aid Society to blame her for allowing her children to live in an abusive environment.” Whether this was the real reason for her concern is not particularly important; but the fact that she admitted to a concern about what the Society might recommend concerning the children is clear from her own evidence.
Conclusion
28For the foregoing reasons, I conclude, with respect, that the assessment of credibility is flawed by partiality and lack of critical scrutiny to the evidence pointing to conviction on material points while assuming a strictly critical approach to evidence pointing in the defence favour. The apparent misuse of the appellant’s criminal record has added to my finding that on this record, the trial became unfair. The appeal is allowed, the convictions and sentence are vacated, and the case is remitted to courtroom 108 at Oshawa on January 5, 2015 at 9:00 a.m. He shall keep the authorities aware of his residential address and contact details. A new trial is ordered before a different trial judge.
HOWDEN J.
Date: December 19, 2014