ONTARIO

SUPERIOR COURT OF JUSTICE

LINDSAY COURT FILE NO.: CR-09- 00001840-00AP

DATE: 20140317

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TAFADWANASHE MTENGWA

Appellant

Felicity Hawthorn, for the Respondent

Jessica Sickinger, for the Appellant

HEARD: February 3, 2014
Written submissions received and reviewed, dated Feb 21, 2014 and March 7, 2014.

gunsolus j.

reasons for judgment on a summary conviction appeal

[1] The Appellant seeks leave to appeal both his conviction and sentence. He stood charged with one count of assault on Wayne Routh, a correctional officer with the Central East Correction Centre, who was engaged in the execution of his duty on October 21st, 2009. He was further charged with two counts of assault in relation to the same incident in relation to Correctional Officers Shelly Patterson and Kim Dunlop; uttering a death threat to Shelly Patterson on October 21st, 2009; failing to comply with a probation order; and with one count of assault in relation to Michael Carson, also a correctional officer.

[2] At trial, the appellant was convicted in relation to the assaults on Correctional Officers Routh and Dunlop and the threat involving Correctional Officer Patterson. He was acquitted of all remaining counts. As to sentence, he received five months consecutive on each count of assault and a further three months consecutive for the threatening, totalling 13 months. In addition, he was placed on a period of probation for 2 years. He began serving his sentence on or about September 17, 2013.

Background Facts

[3] At or about 9:30 am on October 21st, 2009, the appellant had been the subject of a fight with a number of fellow inmates. At the time, he received injuries to his head, to the extent that he was bleeding profusely particularly in the area of his lips and mouth. Correctional Officers entered the area where the fight occurred in order to break it up. While trying to break up the fight and take the appellant out of the pod to get him medical attention, it is alleged that he assaulted several of the officers, namely Routh, Patterson and Dunlop, by spitting blood at them. Upon leaving the pod, it is also alleged that he uttered a death threat directed at Correctional Officer Patterson.

Trial Judge’s Decision

[4] In beginning his decision, the trial judge confirmed that the onus was on the Crown to prove each of the essential elements of each of the offences, beyond a reasonable doubt. He acknowledged that the appellant did not have to prove his innocence, relying upon R. v. Lifchus[1].

[5] The trial judge further instructed himself in relation to R. v. W.D.[2], R. v. H.(C.W.)[3], and R. v. Ay[4].

[6] In relying upon the above-cases, the trial judge confirmed that the tests and principles that he was required to apply to the case in question were as follows:

(i) If he believed the appellant, he was to acquit;

(ii) If he did not know whether or not to believe the appellant and/or each of the complainants, he was to acquit;

(iii) If he did not reject the appellant’s evidence, he was to acquit; and

(iv) Even if he disbelieved the appellant, (“in other words, I reject his evidence”), he acknowledged that he still had to be satisfied by the Crown of the appellant’s guilt beyond a reasonable doubt based on all of the evidence heard at the trial.

[7] The trial judge went on to review the appellant’s evidence and rejected most of it. He next reviewed the evidence of Correctional Officers Routh, Dunlop and Patterson and accepted their evidence, more or less.

[8] The trial judge’s decision was as follows:

I can accept some, none or all of a witness’s evidence. I thought Correctional Officer Patterson was quite fair in her evidence, admitting that the spit into her face could be unintentional. For that reason, I find that the Crown has not proven count number two, the assault on Shelly Patterson, beyond a reasonable doubt. That charge will be dismissed. However, I have accepted her evidence about the threat – that he was enraged when he said it – and it is corroborated by Correctional Officer Routh’s evidence. Accordingly, on that count, there will be a finding of guilty and a conviction registered.

With respect to count number one on Correctional Officer Routh, I accept Correctional Officer Routh’s evidence as corroborated in party by Correctional Officer Dunlop. I find the accused guilty of the assault on Correctional Officer Routh. There will be a finding of guilty and a conviction registered on that one as well.

With respect to Correctional Officer Kim Dunlop, I am satisfied the Crown has proven that one beyond a reasonable doubt as well. There will be a finding of guilty of assault on Correctional Officer Dunlop and a conviction be registered.

So, the assault on Shelly Patterson is dismissed.

Decision in relation to trial judge’s findings

[9] The appellant in this case has argued that the trial judge basically rejected his evidence; accepted the complainants’ evidence and then convicted. The appellant argues that the trial judge did not then address the issue of reasonable doubt in light of all the evidence, but rather only considered it in light of the respondent’s evidence. This would appear to have been the case, as can be seen from the trial judge’s reasons. The reasons, however, are scant, if not non-existent, as they relate to his explanation for the conclusions made.

[10] Counsel for the appellant conceded during argument that the conviction in relation the threat against Officer Patterson was indeed properly addressed and corroborated by the evidence. I agree. The appeal in relation to that charge will be dismissed.

[11] In this case, the appellant’s explanation of events was dismissed out of hand by the trial judge, based upon elements of evidence that did not go to either the acts complained of, or a determination of the accused’s intent. His explanation was dismissed out of hand because:

(a) In a prior, unrelated criminal matter his evidence as to credibility was not accepted; and

(b) His evidence in this case was not accepted. However, I note that the evidence of the Appellant that the trial judge rejected did not go to either the actus reus or mens rea of the offences before the court.

[12] Surely evidence that is dismissed by the trial judge and which is used to discredit the accused must be relevant to the charges before the court. Comparing irrelevant apples to the relevant oranges is ignoring the need to determine facts relevant to the actus reus and mens rea of the offence before the court.

[13] In relation to counts 1 and 3, which were the alleged assaults against Correctional Officer Routh and Correctional Officer Dunlop, the appellant argues that the trial judge never made a finding that the appellant’s spitting was intentional and this did not constitute a sufficient finding on the facts amounting to an assault. Rather, we have an injured inmate who, it was acknowledged by most witnesses, was accumulating large amounts of blood in his mouth who, according to Correctional Officer Patterson, may have been simply clearing the blood by spitting. Indeed, the appellant was acknowledged to be agitated, yelling, angry, shaking his head, and blood was flying in different directions. Nowhere in the reasons can it be determined that the trial judge found in relation to counts 1 and 3, that the appellant’s action of spitting was intentional, as opposed to being a reaction to his injuries and the clearing of blood from his injured mouth area.

[14] While there is no doubt that the trial judge indicated that he found the appellant’s version of events not to be credible and rather, found the various complainants’ evidence to be credible, he seems to have equated the issue of credibility with that of reliability.

[15] In the circumstances of this case, it is clear that the Correctional Officers were involved in a very highly emotional and violent situation, which they were desperately trying to bring order to. There is no doubt that blood was flying in many directions. As the appellant’s counsel argued, no one is questioning the officers’ credibility, but rather she pointed out that the trial judge did not determine whether or not their evidence, in the terrible circumstances which the correctional officers found themselves in, could be relied upon by the court as being a reliable reconstruction of what occurred.

[16] The trial judge’s findings of credibility are subject to the same frailties as those in Brown[5], in that “he does not indicate or illustrate the basis for his conclusion” for rejecting the appellant’s evidence or finding the complainants’ evidence reliable. His comments are “simply conclusory and generic”. Further, he relied upon as his primary ground for rejecting the appellant’s evidence, the fact that the appellant had previous convictions involving credibility and that this should therefore make him unworthy of belief in this matter.

[17] As stated in Sheppard[6] at para. 32, this is one of the more problematic situations where the trial judge rendered a decision and gave little or no reasons or, perhaps “generic reasons” that could apply with equal facility to almost any criminal case.

[18] A review of the trial judge’s reasons in relation to counts #1 and 3 in fairness, disclosed no reasons at all. There is simply an indication that in relation to Officer Routh, his evidence was accepted and therefore a conviction entered. In relation to Correctional Officer Dunlop, there is simply a statement that the Crown had satisfied its case beyond a reasonable doubt and a finding of guilt was entered.

[19] A careful review of the trial judge’s reasons discloses, again, that he did not accept the evidence of the appellant. He did accept most of the evidence of the complainants. He did find that there was spitting of blood by the appellant but nowhere does he indicate that he was satisfied that such spitting was intentional nor the basis for making such a finding. To that end, I agree with appellant’s counsel that the trial judge’s reasons were generic and conclusory, and, failed to appreciate the difference between credibility and reliability.

[20] Further, no thread was established as between the facts that were accepted by the trial judge and the essential elements of the offence of assault.

[21] Pages 6-11 of the Reasons for Judgment reveal that the trial judge found the appellant to not be credible because “firstly, Mr. Mtengwa has numerous convictions for crimes of dishonesty as a youth and as an adult.”

[22] The second ground for his finding that Mr. Mtengwa was not credible was based upon a review of the appellant’s evidence, found specifically at pages 8 through 11 of the Reasons for Judgment. A careful review of this portion of the judge’s reasons makes it clear that none of the appellant’s evidence as rejected by the trial judge, related to the actus reus of the offences. The trial judge never once refers to anything related to the spitting of blood, let alone the intentional spitting of blood. It is unclear how any of this evidence as reviewed by the trial judge related to the assault charges. Even if the trial judge did not believe the appellant in relation to this portion of the appellant’s evidence, it did not relate in any way to the substance of the charges of assault.

[23] The circumstances of this matter are extremely serious and concerning to this court. The correctional officers were clearly placed in jeopardy, given the fact that they were subjected to bodily substances, and in particular, the appellant’s blood. There is no doubt in my mind that this matter has had a devastating effect upon these correctional officers in relation to their own health and wellbeing. Having said that, it was essential that the evidence reviewed by the trial judge in relation to whether or not to believe the appellant, relate to the actus reus/mens rea of the charge. Unfortunately, one is left with:

(1) A finding that non-essential evidence from the appellant was not accepted by the trial judge; and

(2) A finding that essential and relevant evidence of the correctional officers was accepted by the trial judge.

[24] This is clearly an improper application of the evidence to the principles set out in W.D.[7]

Sentencing

[25] At the time of the occurrences, the appellant was serving a sentence in relation to an unrelated matter. He was not receiving treatment and of course had just been beaten by a group of inmates. The appellant apparently has suffered, over the course of his lifetime, severe and persistent mental health issues.

[26] As ably argued by Crown counsel, the presentence report relied upon at the time of the appellant’s sentencing indicated many aggravating factors. In the first instance, at page 8 of the presentence report, it is to be noted that the appellant has not necessarily dealt well with circumstances in the past when he has been the subject of community supervision.

[27] The spitting of blood in these circumstances included a real possibility of spreading disease to the correctional officers involved. The circumstances were most serious and clearly had a devastating effect on the lives of the correctional officers - in the very least until such time as they knew that they had not contracted any illness as a result of the blood that they encountered.

[28] The PSR disclosed the appellant’s long criminal record; severe mental health issues; lack of work history; lack of social and community supports; his failure to accept his mental health issues; his determination to not cooperate with authority and his acknowledgment that he likes to, when it comes to police figures, “mess with them”.

[29] What is of note is that the author of the presentence report recommended a sentence of at least 9 months in order to insure that the appellant could be appropriately classified and assigned to the St. Lawrence Valley Treatment Centre to obtain much needed assessment and counselling in relation to his many mental health issues.

[30] In the past, the appellant has received sentences of up to 6 months. It was argued by appellant’s counsel that a sentence of 13 months is excessive in the circumstances. I would suggest that the trial judge was attempting to make available to the appellant the recommended classification and mental health support that he needed at the St. Lawrence Centre. I was advised that the appellant is currently at the St. Lawrence Valley Treatment Centre. His counsel confirmed that he was not present in court for the purposes of this appeal as counsel did not want to interrupt the treatment programme.

[31] Given my decision, it is not necessary for me to address the sentences imposed in relation to Counts 1 and 3. As to the sentence in relation to Count 4, I would not disturb that sentence.

Findings

[32] The appeal is dismissed in relation to count 4. The appeal is granted in relation to counts 1 and 3 and a new trial is ordered.

“Mr. Justice D.S. Gunsolus”

Released: 20140317

[1] R. v. Lifchus, [1997] 3 S.C.R.

[2] R. v. W.D. (1991) 1991 93 (SCC), 1 S.C.R. 742

[3] R. v. H.(C.W.), (1991), 68 C.C.C. (3d) at 146

[4] R. v. Ay (1995), 93 C.C.C. (3d) at 456

[5] R. v. Brown (2003), 2002 41599 (ON CA), 170 C.C.C. (3d) 37 (Ont. C.A.) at para. 29

[6] R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.), para. 32

[7] R. v. W.D., supra