ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-117-AP
DATE: 20150225
BETWEEN:
Her Majesty the Queen
Victoria Reid, for the Crown
Respondent
- and -
Edward Lucy
Alison Craig, for the Appellant
Appellant
HEARD: November 28, 2014
The Honourable Mr. Justice R.J. Nightingale
[1] Mr. Lucy appeals his conviction and sentence on one count of assault in the Ontario Court of Justice on April 6, 2011. He was sentenced on April 29, 2011 to one year of probation and a $500 fine.
[2] The incident relating to the charge took place on June 18, 2010. The complainant was Mr. Lucy’s wife, Joni Smith. Both the complainant and Mr. Lucy testified at trial along with the investigating police officer PC Allchin.
COMPLAINANT’S EVIDENCE
[3] The complainant’s evidence was that on that evening, she and the appellant were at home in their bedroom seated on the bed having a heated discussion about their proposed separation and custody of their children. She stated she stood up to go to the washroom and the appellant followed, hitting her with a closed fist two or three times on the right side of her face without warning. She doesn’t remember any words spoken by either her or appellant just prior to her being struck. She admitted that the appellant was right-handed and although initially she stated he hit her on the right side of her face while facing her, she did not believe their bodies were fully face-to-face at the time of the assault.
[4] Her evidence was that after she was struck, the appellant opened the bedroom window and started screaming for help alleging that the complainant was attacking him. The appellant called the police. She testified she did not call the police to report the assault on her because she was in shock. She admitted that some of her memories that evening were a blur including the number of times she was struck, whether she scratched the accused defending herself and her inability to recall any specific comments made by either of them immediately before she was struck.
[5] She said she suffered a black right eye, a large bruise to her right cheek and possibly a third bruise on her right temple.
[6] She was frustrated and angry that evening because she said that the appellant kept changing his mind about the type of custody he wanted for the children. She admitted in the past she had wished him gone and dead.
PC ALLCHIN’S EVIDENCE
[7] The evidence of PC Allchin was that when he arrived, the appellant was sitting on the front porch of the house. He said that the appellant told him that he and the complainant had been arguing and that the complainant had attacked him while sitting on their bed during an argument by pulling his hair and scratching the back of his neck. He threw no punches and he called the police as a result.
[8] The police officer examined the appellant’s head and neck for injuries but found none and when he commented on this to the accused, he said that the appellant volunteered that perhaps the lack of injury was because the complainant didn’t have any fingernails.
[9] The police officer when he spoke with the complainant observed two bruises near her right eye and that she had some fingernails.
APPELLANT’S EVIDENCE
[10] The appellant testified that when he returned to the residence on June 18, he told the complainant that he was not agreeable to her having full custody of the children and would not be signing the separation agreement she had provided to him earlier. He said that the complainant was very upset and later that evening when she was downstairs, he said he heard loud bangs there which sounded suspicious. He testified he believed the complainant was injuring herself at that time.
[11] He said the complainant then came upstairs and came into the master bedroom and said “why did you hit me” pointing at her face. He saw no injury or damage there at that time and they resumed their argument over custody with her threatening and antagonizing him, telling him she was going to ruin his life and that she wished he was dead.
[12] After hours of arguing in the bedroom, he said that the complainant became red in the face, jumped on the appellant, spat on him, grabbed his neck and tried to pull his hair and he pushed her off. He said he couldn’t recall telling the police officer he had been scratched on his neck and that he actually said to him that she was either scratching or grabbing him around the neck or attempting to scratch him. He said he could tell there were no marks there.
[13] He tried to get a neighbour’s attention by yelling out the window and then called 911 on his cell phone. He adamantly denied having ever hit or punched the complainant.
COUNSEL’S SUBMISSIONS
[14] In submissions, counsel for the appellant asked the court to accept the appellant’s evidence, pointing out that he was unshaken during cross examination and that unlike the complainant he was forthright and non-confrontational. In contrast, he submitted that the complainant’s evidence was unreliable, incredible and ought to be rejected and emphasized the complainant’s motive to fabricate her allegations given the ongoing custody dispute.
[15] The Trial Judge did not call on the Crown for submissions.
DECISION OF THE TRIAL JUDGE
[16] The trial judge indicated that in deciding whether the Crown had proven the offense beyond a reasonable doubt, he considered the evidence of all three witnesses. He noted that the complainant had a less than perfect recall of the events but didn’t pretend she had a terrific memory of everything. He acknowledged her testimony that some of the events were a blur to her and that she was somewhat mistaken on times. However, he stated she was completely certain on some things anyone would be expected to remember, i.e., her being punched more than once in the face.
[17] He stated there was no dispute of the complainant’s face being significantly marked which was corroborated by the police officer’s evidence and that there was certainly no doubt she was hurt in the manner she described with the only issue being whether there was sufficient evidence that the appellant did it.
[18] However, the trial judge then went on and specifically acknowledged that people sometimes do hurt themselves and probably most often because of depression or related psychiatric difficulties. He said it was an unlikely scenario that someone would inflict pain on herself in order to accuse her spouse falsely. What is significant is the trial judge’s next statement that despite the unlikelihood of that, he stated that he still would have had a reasonable doubt about the appellant’s guilt were it not for the evidence of the police officer and the appellant’s evidence on matters of overlap with the officer’s evidence. This was even though that suggestion of the complainant injuring herself was not put to the complainant either in her examination in chief or in cross examination.
[19] The significance of that reasoning is that the trial judge must or at least could have meant that either he did not then accept the evidence of the complainant or at least had a reasonable doubt of the accused’s guilt because of the suggestion that she injured herself.
[20] The trial judge did not articulate the applicable test in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.). at that point nor did he state why he would have found reasonable doubt at that point before considering the evidence of the police officer and the appellant’s evidence in order to convict him.
[21] The trial judge then said he considered and accepted the evidence of the police officer who stated the appellant told him that the claimant scratched the back of his neck whereas the appellant initially said he stated to the officer that the complainant grabbed his neck and then said he believed she scratched or grabbed it which statement the trial judge said seemed unlikely as one he would have made. He also accepted the police officer’s evidence that the appellant gave a possible explanation that the lack of marking on his neck was because of her having no fingernails while his examination of her confirmed she had fingernails. It struck the trial judge as being patently false that the appellant would not know if he was scratched or grabbed by the complainant.
[22] The trial judge then stated that “the appellant’s evidence did contain other serious improbabilities put to him by the Crown in cross examination”. However, he gave no specifics of those “other serious improbabilities” on which he relied to reject the appellant’s evidence and a review of the transcript of the evidence does not reveal anything of significance in that regard.
[23] The trial judge then stated that it was the evidence of the police officer and the appellant’s own evidence about his dealings with him that caused the trial judge to disbelieve the appellant and that extended to his disbelieving him when he testified that he did not punch the complainant and that her injury must have been self-inflicted.
[24] He accordingly convicted the appellant of assault.
APPLICABLE LAW
[25] The following principles apply with respect to the power of this court to overturn the conviction of the trial judge.
[26] The verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, on a wrong decision on a question of law or on any ground where there is a miscarriage of justice. (s. 686 (1) Criminal Code).
[27] With respect to the unreasonable verdict ground, the test is whether on the whole of the evidence, the verdict could reasonably have been rendered by a judge acting judicially. R. v. Biniaris (2000) 2000 SCC 15, 143 C.C.C. (3d) 1 (SCC).
[28] This court has no right to retry the case but may review the evidence by re-examining and re-weighing it. However, while assessing the reasonableness of the verdict, this court must not substitute its own view of the evidence especially in matters involving findings of credibility. R. v. Quercia (1990) 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.)
[29] This court must consider all the evidence to determine that the trial judge’s conclusion is unreasonable. R. v. Beaudry (2007) 2007 SCC 5, 216 C.C.C. (3d) 353 (SCC).
[30] A misapprehension of the evidence does not render a verdict unreasonable but is a significant factor in determining whether the resulting verdict was unreasonable.
[31] An appellate court may substitute its own view of the evidence and draw its own inferences of fact only where the trial judge has made a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence. L.H. v. Canada (Atty. Gen.) (2005) 2005 SCC 25, 1 SCR 401.
[32] The trial judge is entitled to great deference regarding his findings of credibility when entering a conviction given his advantageous position in assessing the credibility of the witnesses and the accused. However, an appellate court may determine that the trial judge arrived at an unreasonable verdict on the grounds that the trial judge’s assessments of credibility cannot be supported on any reasonable view of the evidence. R. v. Burke (1996) 105 C.C.C. (3d) 2005 (SCC).
ANALYSIS
[33] In this case, the trial judge rejected the appellant’s evidence in part because of alleged “other serious improbabilities” in his evidence about what happened that evening. However, he did not articulate or provide any details or explanation of what those improbabilities were or why they were serious and why that resulted in his rejection of his evidence.
[34] Moreover, there does not appear to be any such other serious improbabilities in his evidence in the transcript. In fact, his evidence that he and the complainant were having a heated discussion over custody of their children that evening, that the complainant was very upset and threatening and that she said she wished him dead appears to be confirmed by the complainant’s own evidence. She did not deny his evidence that the heated discussions took place over a period of hours and that appears to be more likely than just a very short period of time. She confirmed the appellant’s evidence that he opened the bedroom window yelling to get a neighbor’s attention and that he called the police not her. Her evidence was that she did not call the police to report the assault on her by the appellant because she was in shock.
[35] The trial judge accepted the police officer’s evidence in order to reject the evidence of the appellant. However, the police officer’s evidence that he saw bruises on the complainant’s face when he arrived does not confirm either that the accused caused them or that the complainant caused them herself. The appellant’s evidence was simply that he saw no marks on her immediately after she came back to the bedroom from downstairs where he had heard loud bangs and accused him of hitting her. She did not call the police then and the argument continued for a few hours later before the police officer arrived.
[36] It appears that the trial judge rejected the appellant’s evidence because of what he viewed as a “change” in his evidence saying he told the investigating police officer that the complainant “grabbed” him compared to saying that she “scratched or grabbed” him. He acknowledged the appellant could not see the back of his neck without a mirror but stated that it would be patently false that he would not know if he was scratched or grabbed but gave no reasons why. The appellant explained why he may have said scratched or grabbed but the trial judge gave no reasons for finding that to be an unlikely statement.
[37] The trial judge essentially found that this evidence detracted from the appellant’s credibility. He rejected it because of that and “other serious improbabilities” in his evidence which were not articulated and which do not appear to be contained the transcript.
[38] The appellant’s evidence in the transcript does not appear to be inherently unbelievable nor inconsistent and he was not shaken in cross examination. He is entitled to know what the details of the “other serious improbabilities” were in his evidence and why they resulted in his evidence not being accepted or at least if not accepted, why they did not raise a reasonable doubt with respect to his guilt. This was particularly so as the trial judge indicated at the beginning of his reasons of having reasonable doubt of the accused’s guilt even before considering the evidence of the investigating police officer and the appellant.
[39] In my view, as this court is not able to explain the results to the parties on that issue, the trial judge’s failure to explain why he rejected the appellant’s evidence based on these “other serious improbabilities” in his evidence amounts to an error in law that justifies the granting of a new trial. R. v. Maharaj (2004) 2004 CanLII 39045 (ON CA), 186 C.C.C. (3d) 247 (Ont. C.A.).
[40] This is even more so as even though the trial judge is not necessarily required to precisely state the test as enunciated in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.),which he did not, his reasons for finding no reasonable doubt based on these other serious improbabilities should have been made clear to the appellant.
[41] Lastly, it appears the trial judge did not provide the same level of scrutiny of the complainant’s evidence notwithstanding it was problematic because of her failing memory as he provided regarding the appellant’s evidence. The complainant acknowledged her mistaken memory and more than once indicated she could not recall things because they were a blur including which hand the appellant used to hit her.
[42] While the trial judge provided a meticulous scrutiny of the appellant’s evidence of his memory of whether he said he told the officer that the complainant grabbed his neck and his saying in court he believed he was “scratched or grabbed” by the complainant, he simply acknowledged the complainant’s evidence that she was somewhat mistaken on times, had a less than perfect recall of the events and that some of the events were a blur to her.
[43] He then concluded that she was completely certain that the appellant punched her more than once in the face which was something that anyone would be expected to remember. The trial judge provided little critical analysis of the vagueness and weaknesses in her testimony regarding the events that evening notwithstanding her admitted significant animosity towards the appellant before the alleged assault and her mistaken and blurred memory.
[44] Subjecting the evidence of the appellant to a different level of scrutiny than the evidence of the complainant is an error in law. R. v. T.(T.) 2009 CarswellOnt 4751 (Ont. C.A.); R. v. T.(D.) 2014 CarswellOnt 552 (Ont. C.A.).
CONCLUSION
[45] As in my view the conviction and sentence must be set aside and a new trial ordered, it is not necessary to consider the other ground of appeal raised by the appellant of ineffective assistance of counsel at trial and I decline to do so.
Nightingale J.
Released: February 25, 2015
CITATION: Her Majesty the Queen v. Lucy, 2015 ONSC 1225
COURT FILE NO.: CR-11-117-AP
DATE: 20150225
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
- and -
Edward Lucy
Appellant
REASONS FOR JUDGMENT
Nightingale J.
Released: February 25, 2015