R. v. Vlachos, 2015 ONSC 1700
COURT FILE NO.: 35-14
DATE: 20150316
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEMETRIOS JIMMY VLACHOS
Appellant
Lori Hamilton, for the Crown, Respondent
Peter Thorning, for Jimmy Vlachos, Appellant
HEARD: March 11, 2015
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
goldstein j.
[1] The complainant, Michael Day, is a cyclist. On December 10, 2012 he and Jimmy Vlachos, the Appellant, got into a fight. Mr. Vlachos was driving his car. He got out to confront Mr. Day. He chased Mr. Day down and either tried to apprehend him, or beat him up for damaging his car, depending on which version of events to believe.
[2] The altercation was caught, at least in part, on a surveillance camera. Mr. Vlachos was charged with assault with a weapon and simple assault. The trial judge acquitted Mr. Vlachos of assault with a weapon on the basis that he did not intend to strike Mr. Day with his car. He found Mr. Vlachos guilty of assault.
[3] In my respectful view, the trial judge improperly intervened, thus compromising the fairness of the proceedings. He usurped the function of Crown counsel. He intervened improperly in the cross-examination. Regrettably, he also failed to properly apply the appropriate principles for dealing with the evidence of an accused person. For the reasons that follow, the appeal is allowed and a new trial is ordered.
BACKGROUND
[4] On December 10, 2012 Mr. Day was on his bicycle in front of the World’s Biggest Bookstore on Edward Street in Toronto. He was inching his bicycle out into traffic in front of Mr. Vlachos’s car. He did not know that anyone was in the car. He testified at trial that Mr. Vlachos started up his car and then began to move forward. He says that Mr. Vlachos’s car touched him three times when he put his foot on the car to let him know he was there. He said “dude, what the fuck do you think you’re doing right now?” to Mr. Vlachos.
[5] Mr. Day testified that Mr. Vlachos looked angry and took off his seat belt. Mr. Day attempted to cycle away but Mr. Vlachos chased him, grabbed him, punched him, and kneed him in the head. He then called 911. In cross-examination, Mr. Day was confronted with various inconsistencies between his trial evidence and the call he made to 911.
[6] Mr. Vlachos’s evidence was much different from the complainant’s. He testified that Mr. Day positioned himself in front of his car. He backed up to or three feet so that he could pull out and then drove forward a bit and stopped without hitting Mr. Day. He testified that Mr. Day put his foot on the bumper. He then got on his bike, cut in front of Mr. Vlachos’s car, and kicked the door as he went by. Mr. Vlachos testified that he chased Mr. Day down the street in order to hold him for the police as he assumed that there was damage and that the cyclist would be charged. He testified that he was not angry. There was a struggle. He said that he kneed Mr. Day in the body twice in order to hold him but then decided he could not. He walked away, checked the damage to his car, decided it was minor, and then drove away. The bill to repair the damage came to $412.45. He denied punching or kneeing Mr. Day.
[7] The Crown called a second witness to corroborate Mr. Day’s evidence. The Crown also tendered a video into evidence. The video showed the chase and the struggle. I reviewed the video. It is certainly capable of supporting the conviction. That said, the trial judge did not mention it, other than to say that it was “not clear”. He did not mention the second Crown witness. He did not believe Mr. Vlachos and found him guilty of assault. He acquitted Mr. Vlachos of assault with a weapon. He found that Mr. Vlachos did not intend to touch Mr. Day with his car.
ANALYSIS
[8] Although Mr. Thorning, Mr. Vlachos’s counsel, made four submissions, in my view only two require analysis:
(a) Did the trial judge fail to properly apply the test in R. v. W.D.?
(b) Did the trial judge compromise the fairness of the trial by repeatedly intervening in the proceedings?
[9] Mr. Thorning also argues that the sentence, a $500 fine, was unfit. Given my conclusion that a new trial is required, it is unnecessary for me to deal with the sentence appeal.
(a) Did the trial judge failed to properly apply the test in R. v. W.D.?
[10] The trial judge said this about the framework for analysis:
My role here is to decide if the charges are proved beyond a reasonable doubt. My role is to try and see through the inconsistency if a case is made out beyond a reasonable doubt, and if there is a reasonable doubt, I have to acquit. That is R. v. W.D.
See: R. v. W.D. 1991 93 (SCC), [1991], 1 S.C.R. 742.
[11] Crown counsel, Ms. Hamilton, very fairly conceded that the trial judge mis-stated the W.D. test but argued that the whole of his reasons demonstrate that he properly applied the concepts.
[12] I respectfully disagree. It is true that a trial judge need not recite the W.D. formula in a ritual incantation: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499 at para. 59. A trial judge need not specifically cite W.D. or even overtly advert to the principles. That said, it must be clear that the trial judge applied those principles: R. v. Minuskin (2003), 2003 11604 (ON CA), 68 O.R. (3d) 577, 181 C.C.C. (3d) 542, [2003] O.J. No. 5253 at para. 22.
[13] It is not a trial judge’s function to see through the inconsistencies to determine if a case is made out. That language implies that a trial judge is required to determine if the Crown has proven the offences despite inconsistences. That is clearly different from the paramount task of a trial judge, which is to determine whether the evidence as a whole leaves him or her with a reasonable doubt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5.
[14] Unfortunately, the reasons as a whole suggest that what the trial judge did was indicate that he did not believe that Mr. Vlachos. He then went on to find Mr. Vlachos guilty without applying the second and third parts of W.D. He did not determine whether the evidence of Mr. Vlachos left him in a state of reasonable doubt despite disbelieving him; and he did not determine whether he was satisfied beyond a reasonable doubt that the Crown had proven the offence based on the evidence that he did accept.
[15] I therefore find that the trial judge erred in law by failing to properly apply the test in R. v. W.D.
(d) Did the trial judge compromise the fairness of the trial by repeatedly intervening in the proceedings?
[16] Mr. Thorning argued that the trial judge made three interventions that caused him to compromise the fairness of the proceedings: first, the trial judge conducted what amounted to a judicial pre-trial after the accused pleaded guilty; second, the trial judge, rather than Crown counsel, conducted the examination-in-chief of Mr. Day and elicited most of his evidence; and third, the trial judge impermissibly opened a line of questioning of the accused after Crown counsel had completed the cross-examination.
[17] There is a strong presumption that the trial judge has not unduly intervened in the trial process: R. v. Hamilton, 2011 ONCA 399; 271 C.C.C. (3d) 208; [2011] O.J. No. 2306.
[18] In R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207, 13 O.A.C. 89, [1986] O.J. No. 77 (C.A.) Martin J.A. set out the test:
The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial.
[19] The Court of Appeal has set out at least three types of interventions that could lead to unfairness or the appearance of unfairness:
Questioning an accused or a defence witness to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness;
Interventions that have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence; and,
Interventions that effectively preclude the accused from telling his or her story in his or her own way.
[20] See: Hamilton at para. 31; Valley at p. 231-232; and R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, 303 D.L.R. (4th) 1, [2009] O.J. No. 600. See also my colleague K. Campbell J.’s very helpful review of the principles in two recent cases involving this same trial judge: R. v. Lahouri, 2013 ONSC 2085, 280 C.R.R. (2d) 249, [2013] O.J. No. 1598; and R. v. Pletas, 2014 ONSC 1568, [2014] O.J. No. 1136.
[21] Did the trial judge cross the line? As the Court of appeal pointed out in Stucky, a contextual analysis is required. In my respectful view, the interventions, taken cumulatively, would have led a fair-minded observer to conclude that the accused had not had a fair trial.
[22] I start with what I would call an “encouragement” to the accused plead guilty. The trial judge himself conducted the arraignment and took Mr. Vlachos’s not guilty plea. This in itself is not objectionable, obviously. But he then said the following:
THE COURT: Yes sir. Mr. Day, please come up here, Mr. Day. Now, I always do this before we start. It makes me feel better to do this. If there is a chance to resolve it in a way that everybody’s kind of half happy, I’ll be happy to do it. If it’s a – recommendation, don’t worry, if there is a way to resolve it, now is the time to do it because you never know how it’s going to go. I always say this, not that I’m trying to get time off, because we help other courts but as a courtesy – because I know how the system works. You never know how it’s going to go. So, if there is a chance to resolve it, if you haven’t discussed it already but if you have its fine. But if there is a chance to work it out, now is the time to do it before we start because once we start, only God knows how it’s going to finish. You know what I mean?
[23] It is clear from the transcript that the trial judge was addressing himself to Mr. Vlachos, the accused, rather than the complainant, Mr. Day. I also point out that it is irrelevant whether or not canvassing the possibility of resolution makes the judge feel better.
[24] A judge must remain neutral and never give the impression that he or she has taken one side or the other: Lahouri at para. 8. This intervention was capable of being interpreted by the accused person that, notwithstanding his plea of “not guilty”, the trial judge assumed that he likely must have been guilty of something upon which a plea could be negotiated. This obviously compromised the appearance, if not the reality of fairness.
[25] As well, this intervention had the potential to undermine the relationship between the accused and his lawyer. In this case, both Crown and defence counsel were capable and experienced. Just prior to the trial judge’s intervention Crown counsel indicated that she and Mr. Brauti, Mr. Vlachos’s counsel, had had fruitful discussions with a view to shortening the trial and narrowing the issues. As a practical matter, the trial judge, himself highly experienced, should have assumed that counsel had already explored the possibility of resolution and rejected it. In effect, what the trial judge did was communicate to Mr. Vlachos that his lawyer’s efforts were somehow not effective in resolving the case to the mutual satisfaction of the parties and that he could do better if he pleaded guilty before him.
[26] Finally, these words were also capable of conveying the impression to the accused person that his case was just not that important, and that there were other cases in the system more deserving of the trial judge’s time.
[27] I turn to the issue of the trial judge’s examination of the complainant.
[28] Before Crown counsel asked a single question, the trial judge launched into what can only be called – and in fact was called on the transcript – an examination-in-chief of the complainant. When he was done, the following exchange occurred:
THE COURT: Okay, Crown, any questions of the witness?
MS. NEWHOUSE: Yes, thank you. I’ll just follow up on a few things to clarify…
[29] A trial judge need not sit silently and is certainly entitled to ask questions or intervene where necessary: Hamilton, at para. 47. In our adversarial system, however, counsel have their role and the Court has its role. See Lahouri, at para. 8.
[30] Our adversarial system is a tried and true method designed to promote fairness in the search for the truth. The Court should not usurp the role of counsel. There are good reasons for this: the trial judge, unlike the parties, does not have disclosure and does not know anything about the case. The Court has no access to the documents and other exhibits and has no way of knowing what exhibits may be relevant. Counsel know their case and structure their questions in a manner designed to bring out the evidence in a way that will either illuminate or discredit, depending on whether counsel is examining in chief or cross-examining.
[31] It is easy to see how things can go wrong when a trial judge takes over. What happens if either counsel wants to object to one of the judge’s questions? The judge then has to rule on the propriety of his or her own questions. If a defence counsel objects to a trial judge’s question, and the trial judge still requires the witness to answer, it very obviously risks undermining the appearance of fairness.
[32] I now turn to the trial judge’s questioning of the accused after his cross examination. It was at that point that the trial judge asked Mr. Vlachos the following questions:
THE COURT: Then you said, “I put the car in the reverse. I backed up and moved forward a bit and the cyclist was doing nothing at this point.” You said, then you said, I drive forward. There is no traffic. Is that so far, are we okay?
A: Yes, Your Honour.
THE COURT: And then you said, the cyclist says, turns to you, “dude, what the fuck?” right?
A: Yes, Your Honour.
THE COURT: Where do you think that came from? I mean, nothing happened, right?
A: No.
THE COURT: So where do you think, why do you think – to what do you attribute that expression, what the fuck?
A: My belief is that the cyclist feels I’ve gotten too close to him.
THE COURT: I see, okay. So, then he put his foot on the bumper?
A: Yes, Your Honour.
THE COURT: Okay, I see. Then you honk the horn?
A: Yes, Your Honour.
[33] There is certainly nothing wrong with a trial judge asking questions of a witness to clarify points after counsel have finished. These questions, however, were highly problematic. The trial judge asked the accused account for another witness’s comments. In my view, this is akin to asking a witness to comment on the testimony of another witness. A long line of cases prohibits such questions. See, for example: R. v. Logiacco (1984), 1984 3459 (ON CA), 11 C.C.C. (3d) 374, 2 O.A.C. 177, [1984] O.J. No. 15 (C.A.); R. v. A.J.R (1994), 1994 3447 (ON CA), 20 O.R. (3d) 405, 94 C.C.C. (3d) 168, [1994] O.J. No. 2309 (C.A.).
[34] As Cory J.A. (as he then was) said in Logiacco:
The opinion of a witness as to the truthfulness of another witness is irrelevant and can be of no help to a court in resolving the case before it.
[35] The same could be said of Mr. Vlachos’s view as to why Mr. Day used a particular phrase.
[36] Thus, it would have been an impermissible question if counsel had asked it. If Crown counsel had asked the question defence counsel would likely have objected, and the objection would ordinarily have been upheld. The fact that the trial judge asked it clearly compromised the fairness of the trial.
[37] The problem was compounded when the trial judge then linked the answer to his reasons for finding Mr. Vlachos not credible, at least in part:
When the cyclist said to the driver, “Dude, what the fuck you doing?” the context suggests that it was in response to the driver moving the car very close to the cyclist…
Mr. Vlachos has a right to stop the cyclist and call police. But I do not believe for a split second, that was his honest intention…
[38] In my respectful view, these interventions would cause a reasonable person to think that the accused had not received a fair trial.
DISPOSITION
[39] Although the fairness of the trial was compromised, there was evidence upon which a trial judge could have convicted Mr. Vlachos. As a result, a new trial is ordered rather than an acquittal.
[40] Given my decision, it is not necessary to address the sentence appeal.
Goldstein J.
Released: March 16, 2015
CITATION: R. v. Vlachos, 2015 ONSC 1700
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEMETRIOS JIMMY VLACHOS
Appellant
REASONS FOR JUDGMENT
Goldstein J.
Released: March 16, 2015