R. v. Robinson, 2015 ONSC 1684
COURT FILE NO.: SCA #64-14
DATE: 20150316
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ISHMAEL ROBINSON
Appellant
Darren J. Hogan, for the Crown
Mark Halfyard, for the Appellant
HEARD: March 12, 2015
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
goldstein j.
[1] Ishmael Robinson, the Appellant, and Julie Divito, the complainant, became involved in an altercation. That altercation resulted in a conviction for mischief under $5000 and breach of recognizance. Mr. Robinson appeals on the ground that the trial judge, Mr. Justice O’Donnell of the Ontario Court of Justice, misapprehended the evidence. Mr. Halfyard, his counsel, argued before me that this misapprehension was central to the conviction. The conviction, he said, cannot stand.
[2] I dismissed the appeal without calling on the Crown and indicated that my reasons would follow. These are my reasons.
BACKGROUND
[3] It was December 21, 2013. Mr. Robinson and Ms. Divito were driving in the area of Jane Street and Maple Leaf Avenue. Mr. Robinson’s car cut off the car in front of Ms. Divito’s car. She pulled up beside him and mouthed “what the fuck”, and honked her horn. She spit at him and missed. He spit back and did not miss. He hit her on the arm. He braked hard – twice – and she intentionally struck his back bumper. He apparently got out of his car at that point. He banged on her car and drove away. Ms. Divito then followed him in order to get his licence plate. They had a second confrontation where the Mr. Robinson again got out of his car. It was at this point, said Ms. DiVito, that her door handle and mirror were broken. When the police arrived they took pictures.
[4] Mr. Robinson was charged with assault in relation to the spitting incident. He was also charged with mischief in relation to the breaking of the door handle and the mirror. Mr. Robinson was on bail at the time. His recognizance required him to keep the peace and be of good behaviour. His lawyer agreed that if he were convicted of either mischief or assault, or both, then he would have been in violation of his recognizance.
TRIAL AND JUDGMENT
[5] The trial was simple. Ms. Divito was the sole Crown witness. Photographs of the damage were entered into evidence. Mr. Robinson did not testify. Justice O’Donnell acquitted Mr. Robinson of the assault charge on the grounds that the mutual exchange of spit was a consensual fight.
[6] Regarding the mischief, the Crown theory was that Mr. Robinson had damaged Ms. Divito’s car when he emerged from his car to confront her the second time. The defence theory was that Ms. Divito’s evidence was not credible and the damage to her car was pre-existing. Defence counsel pointed to the fact that Ms. Robinson did not repair the damage for over a year after the incident. There was no other independent evidence suggesting that the damage was pre-existing.
[7] Justice O’Donnell found Ms. Divito to be a credible witness, despite some problems with her testimony. He was satisfied beyond a reasonable doubt that Mr. Robinson had caused the damage to Ms. Divito’s car.
ANALYSIS
[8] Mr. Halfyard argued that Justice O’Donnell misapprehended a key piece of evidence. He says that Justice O’Donnell excused the contradictions between Ms. Divito’s trial testimony and her earlier statements to the police on the grounds that she had not reviewed them. This was Justice O’Donnell’s comment:
I accept her as an imperfect witness in some respects, in a sense that she did not testify initially today about having honked her horn at Mr. Robinson, and did not testify initially about having mild vulgarity in his direction after the initial incident. However, I note that those items were not concealed from the police and that, as I recall her evidence, she said that she had not reviewed her written statement before testifying. They only had a video statement given a month after the event almost, and that video statement did not include those details.
[9] Notwithstanding Mr. Halfyard’s very skilful argument, I disagree. The trial judge did not misapprehend the evidence. Even if he did, the misapprehension was not central to the reasoning process and did not impact on the conviction.
[10] Ms. Divito gave a statement to the police on the day of the incident, December 21, 2013. The statement was written in the officer’s notebook. This was her testimony in cross-examination (at p. 38 of the transcript):
Q. Okay. You were truthful in your statement, correct?
A. Yeah.
Q. And you were as accurate as possible? And sorry, that was a yes?
A. Yes, sorry.
Q. And you had a chance to review it on December 21st, 2013?
A. No.
Q. You didn't - you didn’t – you didn’t review it before you – well, let me ask you this first, did you sign the statement?
A. Yes.
Q. Did you have a chance to review that statement prior to you signing it?
A. I kind of just went over it with the officer and signed her notepad, and that was it.
Q. So, of course, when you signed it, you were signing to say that you agree with everything that was in that statement, correct?
A. Yeah, because she was writing what I was saying, so…
[11] Ms. Divito was questioned again in cross-examination about the statement (at page 52 of the transcript):
Q. Okay. So, your evidence today is that you gave a statement to the police, you put your name to it, you signed the paper, but you have no idea if what was written down was actually –
A. Well, she was writing word for word what I was saying, I mean it took a while for her to write everything down anyway, so – so, made me under the assumption that I would think she had everything correct, unless she wrote her own words.
[12] Defense counsel also questioned Ms. Divito about the video statement. She also mentioned, for the third time, the written statement (at page 82 of the transcript):
Q. Now, you had also given a statement to the police on January 16th, 2014, correct? It was a video statement. And of course you were truthful in that – in that statement as well?
A. Yeah.
Q. And you wouldn’t have left anything out, you were as accurate as possible, correct?
A. To my knowledge, yeah.
Q. And you told them everything that you could remember at the time, correct?
A. Yeah.
Q. And you had a chance to review that statement as well today, correct?
A. Yes.
Q. Now, the – written statement from December 21st, had you reviewed that one prior to today?
A. Yeah.
Q. So, when – before you would sign it, officer didn’t read the statement to you?
A. No.
[13] It could be argued, at best, that there was an ambiguity in Ms. Divito’s answer the third time the question was asked about the written statement. As I read the transcript, however, there was no misapprehension by the trial judge. The written statement was raised three times in cross-examination. Ms. Divito said on the first two occasions, that, to use her words, she “kind of went over it” on December 21, 2013. On the third occasion it is not at all clear that she meant that she reviewed her statement on the day of testimony – unlike the video statement. Ms. Divito could easily have been referring to her review of the statement when the officer wrote it down in her notebook. That interpretation was certainly available to the trial judge.
[14] The trial judge clearly distinguished between the video statement, which Ms. Divito did say she reviewed on the day of trial, and the written statement. That distinction was important, because there were differences between the facts that Ms. Divito gave during each statement. He did not, as Mr. Halfyard argues, “excuse” the contradictions. He analyzed them and determined that they did not undermine her credibility. Whether she reviewed her statement on the day of the trial could not have made any real difference in the trial judge’s credibility analysis.
[15] The trial judge delivered oral reasons at the end of the evidence without the benefit of a transcript. The prior written and video statements were not entered into evidence but only the subject of cross-examination. In my respectful view, not only did the trial judge not misapprehend the evidence, he demonstrated a very firm grasp of the details. Indeed, Mr. Halfyard does not suggest that the trial judge got any of the other facts wrong.
[16] Even if I am incorrect, and the trial judge did misapprehend this evidence, I simply cannot see how it played a central role in the trial judge’s reasoning process: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 97 C.C.C. (3d) 193, [1995] O.J. No. 639 at para. 93 (C.A.). The trial judge analyzed Ms. Divito’s evidence extensively and provided detailed reasons as to why he found her to be credible. He was alive to the contradictions between her earlier statements and her testimony at trial. Given the trial judge’s “singular perch” his credibility findings are entitled to deference: R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363, [2008] O.J. No. 955 at para. 8.
[17] The trial judge accepted Ms. Divito’s evidence. There being no evidence whatsoever to support the defence theory, guilt was the only rational conclusion, as the trial judge found. The appeal is therefore dismissed.
Goldstein J.
Released: March 16, 2015
CITATION: R. v. Robinson, 2015 ONSC 1684
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
ISHMAEL ROBINSON
Appellant
REASONS FOR JUDGMENT
Goldstein J.
Released: March 16, 2015