CITATION: R. v. Dimou, 2015 ONSC 2225

COURT FILE NO.: 147/13

DATE: 20150420

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

GEORGE DIMOU

Appellant

Harutyun Apel, for the Respondent

Robert Lepore, for the Appellant

HEARD: August 15, 2014 and on February 10, 2015

REASONS FOR JUDGMENT

Coats J.

[1] The Appellant’s appeal of his conviction was argued in large part before me on August 15, 2014. Near the end of the argument the Appellant’s counsel indicated he intended to bring a fresh evidence application. The appeal was adjourned. On November 24, 2014, the Appellant filed an Amended Notice of Appeal adding an additional claim of relief sought - “2. Leave of this Honourable Court allowing the applicant to adduce fresh evidence.” I will deal first with the fresh evidence application and then second with the appeal itself.

Background

[2] The Appellant, George Dimou, was charged by Halton Regional Police on July 29, 2012, with two counts of assault and one count of assault with a weapon.

[3] The Appellant was tried on those charges on June 19, 2013 before Justice R. J. LeDressay in the Ontario Court of Justice.

[4] On June 19, 2013, after hearing the evidence, Justice LeDressay acquitted the Appellant of the one count of assault with a weapon and found the Appellant guilty on the two counts of assault.

[5] On September 23, 2013, Justice LeDressay granted the Appellant conditional discharges with respect to both counts of assault.

[6] The Appellant appeals from Justice LeDressay’s findings of guilt on the two charges of assault.

[7] The complainants at the trial were Pelagia Perioris, Mr. Dimou’s wife, and Nicole Dimou, Mr. Dimou and Ms. Perioris’ daughter. There were three witnesses at the trial – Pelagia Perioris, Nicole Dimou and the Appellant.

Fresh Evidence Application

[8] At paras 2 to 4 of his Affidavit sworn November 24, 2014, Mr. Dimou sets out the rationale behind his fresh evidence application. In paras 2 to 4 Mr. Dimou attests to the following:

2. At the trial of this matter before Justice LeDressay, I was questioned by the Crown with respect to family finances. At that time, I did not have my banking records with me. I did not have the banking records with me as I did not know they would be important and I was not told by my then counsel that those records would be important or that they would be required.

3. I believe that those banking records corroborate my testimony at the trial and contradict the evidence of both complainants with respect to the uses that the money was being put to and as such speak to the issue of the reliability and credibility of the parties. Attached to this my affidavit and marked as EXHIBIT A” is a true copy of the banking records that I am seeking to have admitted.

4. Further, at my trial, I was questioned by the Crown with having driven my wife and daughter to the airport in Buffalo, New York for the purposes of travelling to Las Vegas, United States in September or October of 2011. I denied having done so but had no documentation to corroborate my evidence. Subsequent to the trial I corresponded with Canada Border Services and obtained documentation with respect to my travels to the United States. The said documentation establishes that I only travelled to the United Stated in 2011 and 2012 on December 4, 2011 and February 19, 2012. Attached to this my affidavit and marked as EXHIBIT “B” is a true copy of the CBSA records that I am seeking to have admitted. I did not present these records at my trial as I did not have them, did not know they would be important and was not told by my then counsel that I should obtain these records.

[9] The fresh evidence consists two items. The first is a Deposit Account History for bank account number 6361713 MBA – STU showing transactions from 04/09/2012 to 06/08/12. The second is a letter from Canada Border Services Agency to Mr. Dimou stamped February 20, 2014 with enclosures.

[10] In R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193 at para. 23, the Supreme Court of Canada, summarized the following principles applicable to a fresh evidence application:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ 1964 CanLII 43 (SCC), [1964] S.C.R. 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[11] Both counsel agree that these principles govern the approach to a fresh evidence application. The applicable section of the Criminal Code of Canada is s. 683 (1)(d). The Appellant’s counsel provided two additional cases, R. v. Kowall, 1996 CanLII 411 (ON CA), [1996] O.J. No. 271, 108 C.C.C. (3d) 481 (C.A.) and R. v. Warsing, 1998 CanLII 775 (SCC), [1998] S.C.J. No. 91, 130 C.C.C. (3d) 259.

[12] The Appellant’s counsel specifically referenced para. 32 of R. v. Kowall which provides as follows:

32. These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.

[13] With respect to the due diligence principle the Appellant’s counsel referred to paras 50 and 51 of R. v. Warsing which provide as follows:

50 The rule for the admission of fresh evidence on appeal has been set out in Palmer, supra, at p. 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The parties agree that the evidence tendered meets the second test in Palmer, the relevance criterion, but the appellant submitted that the first, third and fourth criteria were not satisfied.

51 In this case the psychiatric evidence was undoubtedly available upon the exercise of due diligence. The respondent's counsel at the Court of Appeal, hampered by solicitor-client privilege, was unable to provide an explanation as to why the evidence of NCRMD was not led. This privilege could have been waived by the respondent and his failure to do so would usually weigh against admitting the fresh evidence, however that is only one factor. See McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484, per Ritchie J., at p. 491:

In all the circumstances, if the evidence is considered to be of sufficient strength that it might reasonably affect the verdict of the jury, I do not think it should be excluded on the ground that reasonable diligence was not exercised to obtain it at or before the trial.

In R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501, the Court rejected fresh evidence on the appeal that was available at the sentencing portion of the trial; see Sopinka J. at pp. 502-3:

[W]e are of the opinion that the respondent failed to satisfy the criterion of due diligence. While this factor is not applied strictly in criminal cases and is not to be considered in isolation, the strength of the other factors is not such that failure to satisfy the due diligence requirement in this case is overborne by the other factors. [Emphasis in original.]

It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.

[14] With this caselaw as a backdrop, it is the Appellant’s position that both the bank records and the evidence from Canada Border Services Agency with respect to his travel to the United States are relevant to the issue of credibility, both his and that of the complainants’. His position is that the evidence is credible and could have affected the outcome of the trial. He submits that the evidence was not adduced at the trial because the Appellant was not aware of its importance, nor could he have reasonably anticipated its importance. The Appellant submits that the evidence was not, not adduced at trial for tactical or strategic reasons.

[15] The Crown’s position is that the application with respect to both the bank records and travel documents fails under branches 1, 2, and 4 of the principles in R. v. Palmer. The Crown submits that the proposed evidence is not relevant to a decisive issue, the evidence would, if believed, not reasonably be expected to affect the result of the trial and the evidence was available at trial.

[16] I turn first to the bank records. These records appear to be for the account that the daughter, Nicole, withdrew money from and are from the period just before the charges. I infer this as Mr. Dimou’s Affidavit of November 24, 2014 does not clearly say this. The bank records appear to show frequent expenditures for food related expenses and at food establishments. How do the principles in R. v. Palmer apply to this evidence?

[17] The Appellant submits this evidence is relevant to the credibility of the Appellant and both complainants. I will examine this submission first in light of the evidence of Nicole Dimou, then of Pelagia Perioris, then of the Appellant.

[18] Nicole Dimou acknowledged in her examination in-chief that she and her dad would have discussions and she would end up crying and that, in particular, they would have disagreements about her bank account that was joined with her dad. The account was for her to use for her schooling. She said she was spending the money as she was supposed to; nothing in excess and that she needed food at the end of the year during her finals and that’s where some of the money was being spent, not the majority. She said a large sum had been taken from the account to be put into another account for rent and that other than that, the money was used to pay for food. She acknowledged they used to fight about certain transactions.

[19] In cross-examination, Nicole Dimou acknowledged that she and her dad were having disagreements about finances and that her dad had expressed concern about her misusing funds. She said she didn’t take issue with her father’s concerns over how she was spending money, she took issue with how he was approaching her over his concerns. She acknowledged telling her dad he was invading her privacy when he tried to curb her spending and that this was not too long before July 29, 2012. She denied resenting her dad. She felt the approach he took in discussing her spending with her was inappropriate. She referred to his aggressive manner.

[20] With respect to the evidence of Pelagia Perioris, the bank account was raised in cross-examination. Ms. Perioris testified she did not remember discord about Mr. Dimou’s concern about the misuse of funds that had been set aside for Nicole’s university. She denied that any of the funds had been used for a trip to the Bahamas and stated she paid for the trip on her Visa and she had no discussion about the trip being paid for with money destined for Nicole’s education. She acknowledged that Nicole used money for Tim Hortons and necessities when she was away, but none of it was used for the trip to the Bahamas.

[21] With respect to Mr. Dimou, in-chief he testified that he and Nicole had started to have a little bit of arguments over money. He had deposited money into Nicole’s account, $8,900, and Nicole had started to use the money to go out on the May 24th weekend and had started to go to restaurants and enjoy herself. Mr. Dimou said they needed the funds for her third year of university. He was monitoring the account. This caused problems between them. Nicole told him he was impeding upon her privacy. He was concerned about the use of the money designated for university. In cross-examination, Mr. Dimou acknowledged his relationship with both his daughter and his wife was rocky. He stated that the joint account that had been opened with Nicole, this second account, was to be used for her rent and tuition and Nicole knew it was not to be used for any other purpose and this caused friction between he and Nicole.

[22] Applying the R. v. Palmer principles I decline to admit the fresh evidence of the bank records for the following reasons:

1. The bank records are credible evidence; however, the records are not relevant to a decisive or potentially decisive issue and the records, if accepted into evidence, could not reasonably have been expected to have affected the outcome of the case.

2. The Appellant argues the records are relevant to the credibility of Nicole Dimou, Pelagia Perioris and his own evidence. He says that since the credibility of the witnesses was the key issue in the trial the bank records were relevant to a decisive issue. In my view, the records do not negatively affect Nicole Dimou’s credibility. Nicole admitted she and her dad had discussions over the account that would leave her crying. She acknowledged she used the money for food and that they fought about certain transactions. There was a large sum transferred as she testified there was [$2,625 on May 11, 2012]. Nothing in the bank records touches on the credibility of her statement that she took issue with her dad’s approach and not with his concerns. I have carefully reviewed the bank records. I can find nothing in the bank records that negatively affects Nicole’s credibility. There were some cash withdraws. There was no indication that the funds were used other than Nicole testified. I do not think that the bank records, if accepted, demonstrate that Nicole minimized her spending habits. She testified that her discussions on this topic reduced her to tears. With respect to Ms. Perioris’ credibility nothing in the bank records reveals that the money was used for or withdrawn as part of the trip to the Bahamas – the central theme in this aspect of her cross-examination. With respect to Mr. Dimou’s credibility, the bank records do not make his testimony more credible. He and Nicole essentially said the same thing. Nicole was using the money to go to restaurants. They had arguments about it. She told him he was invading her privacy. They agreed there was conflict between them.

3. The bank records do not prove that Nicole was misusing the funds or not misusing the funds and, in any event, that was not a decisive or potentially decisive issue. The issue was whether Nicole had an animus toward her dad which may have affected her credibility. Whether or not she was actually misusing the funds was not relevant. She acknowledged she told her dad he was invading her privacy and that she and her dad were having disagreements about finances. The accuracy of Mr. Dimou’s concerns was not the issue on credibility, it was whether Mr. Dimou had expressed concerns and whether Nicole had animus. This is entirely consistent with the defence counsel’s questioning of Nicole in cross-examination wherein at page 83 of the Transcript of the Proceeding he asked “...Regardless of the accuracy of the concerns, he expressed that concern to you, didn’t he?” Nicole answered, “Yeah”. Whether, the concerns were accurate was not relevant. It was the expression by Mr. Dimou of the concerns and Nicole’s reaction. Nicole admitted the expression of concerns and testified as to her reaction. The bank records in no way affect the credibility of her testimony about her reaction. She testified that she didn’t take issue with his concern but with how he approached her over the concern. It is this part of her testimony that is relevant to animus and the bank records have no relevance to this issue.

4. The bank records, could not have affected the result of the case. Justice LeDressay addressed the issue of animus on page 144 of the Transcript of Proceedings. He accepted there was tension and discussions between Mr. Dimou and Nicole over how money was spent. He accepted Nicole’s evidence that it was Mr. Dimou’s manner that she did not appreciate, not the topic of her spending. The bank records are not relevant to this finding. Mr. Dimou in his evidence never denied he took an aggressive approach with Nicole over spending.

5. Mr. Dimou’s counsel argued the bank records show such misuse of the money by Nicole, that if accepted the court could find a basis for animus by Nicole toward her dad and that her evidence that she did not resent him not credible. I disagree. The bank records are consistent with her description of her use of the bank records and do not touch on the credibility of her evidence that she did not resent her father. Mr. Dimou did not testify as to any resentment or animus Nicole exhibited toward him.

6. The bank records would have been available by due diligence before trial. This is particularly so given that a defence theory at trial appears to have been that Nicole and her mother had animus toward Mr. Dimou arising from his concerns about Nicole’s spending and that this affected Nicole’s and Ms. Perioris’ credibility. Mr. Dimou certainty knew their evidence before he testified and he could have sought a brief adjournment to get the records before he testified.

[23] For the reasons set out above, the bank records are not of sufficient strength that they could have affected the result of the case, and as such the failure to satisfy the due diligence requirement is not overborne by the other factors (R. v. Warsing).

[24] With respect to the Canada Border Services Agency letter, the attachments appear to show that Mr. Dimou travelled to the United States on December 4, 2011 and February 19, 2012. In the cross-examination of Mr. Dimou, he testified as to Ms. Perioris travelling to Las Vegas in the context of his concern that they needed money for Nicole’s university. He was asked if he dropped Ms. Perioris off at the airport for this trip and he said he did not. He asked if he was sure and he said, “...no, I did not drop her off at the Las Vegas – they boarded in Buffalo, New York.” They was no further questioning in this regard. Neither Nicole nor Ms. Perioris were asked any questions about how Ms. Perioris got to the airport for this trip.

[25] Applying the R. v. Palmer principles I decline to admit the fresh evidence of the letter from Canada Border Services Agency with enclosures for the following reasons:

1. Even if the evidence is credible, it is not relevant to Mr. Dimou’s credibility. He testified he did not drive Ms. Perioris to the airport and there is no indication his evidence in this regard was not accepted. There is no mention of this in the trial judge’s analysis.

2. This is a very peripheral issue as to whether he drove her to the airport or not.

3. There is no indication that Mr. Dimou was not believed on this point. The letter would add nothing, There is no way this minor point could have affected the result of the case.

4. This was a collateral fact. The Crown was left with Mr. Dimou’s answer. The Crown moved on after receiving Mr. Dimou’s answer.

[26] In conclusion, the Appellant’s fresh evidence application is dismissed.

The Appeal

[27] The Appellant raised four grounds of appeal in his Amended Notice of Appeal as follows:

1. The trial judge misapprehended and failed to appreciate the evidence and thereby erred;

2. The trial judge misapprehended and failed to appreciate the law and thereby erred;

3. The trial judge subjected the evidence of the accused to a higher level of scrutiny than the evidence of the Crown witnesses, amounting to further legal error;

4. The trial judge further misdirected himself in law. In particular, the trial judge failed to consider whether, on the evidence as a whole, he was left in a state of reasonable doubt.

[28] In these reasons, I will focus on the grounds for appeal relied on in oral argument of this appeal by the Appellant’s counsel and the Crown’s response to these submissions.

[29] There is agreement between counsel as to the standard of review on this appeal. The Appellant submitted the following cases: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.J. No. 51, [1987] 2 S.C.R. 168; R. v. W. (R), 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56, [1992] 2 S.C.R. 122; R. v. Francois, 1994 CanLII 52 (SCC), [1994] S.C.J. No. 66, [1994] 2 S.C.R. 827; R. v. Burke, 1996 CanLII 229 (SCC), [1996] S.C.J. No. 27, [1996] 1 S.C.R. 474; and R. v. Davis, 1995 ABCA 188, [1995] A. J. No. 427, 165 A.R. 243, (C.A.). All of these cases deal with the court’s function on appellate review for unreasonableness. The law is summarized at paras. 10-16 in R. v. Davis as follows:

10 The court's function on review for unreasonableness was recently canvassed in R. v. Francois, 1994 CanLII 52 (SCC), [1994], 2 S.C.R. 827 (S.C.C.). Madam Justice McLachlin discussed a number of principles and authorities in this area, which we will attempt to paraphrase. To begin with, the function of an appellate court is not to substitute itself for the jury. Rather, it is to ask whether a properly instructed jury could have reasonably reached the verdict rendered. In determining the answer, the court must re-examine, and to some extent reweigh and consider the effect of the evidence (at p. 247). See R. v. R.W., 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168 at p. 186; and R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275.

11 This reviewing function also applies to cases where credibility is the main area of contention. Having said this, it is important to show great deference to findings of credibility made at trial, given the advantages a trial judge or jury has in hearing witnesses in person. While the demeanour of a witness and common sense of the jury cannot be assessed by the Court of Appeal, the Court can assess the significance of any alleged inconsistencies and motives for concoction (see Francois, supra, at p. 837).

12 An appellate court must be aware that the jury can deal in a variety of ways with inconsistencies and motives in arriving at a reasonable and lawful verdict. These range from accepting all or some of a witness's evidence, including any explanations for the inconsistencies and denials of motive, to rejecting that evidence in whole or in part. The mere presence of inconsistencies or motives to concoct do not necessarily equate to an unreasonable verdict (Francois at p. 837).

13 In stressing the advantages the fact finder has over the appellate court, McLachlin J. made special reference to sexual assault cases where small details related to the credibility of witnesses are important (see Francois at p. 837-8; and R. v. Warkentin, 1976 CanLII 190 (SCC), [1977] 2 S.C. R. 355 at p. 381).

14 In assessing the significance of inconsistencies in the Crown case, the appellate court must carefully attend all explanations offered that may explain them in a way consistent with the guilt. This review, of course, must encompass any explanations offered by a witness, or arguments made by the Crown, or, in the case of a judge sitting alone, any reasons the judge offers. In the end, moreover, we cannot say a verdict is unreasonable merely because we disagree with it, or because, if we were the judge, we would have come to a different conclusion. We must interfere with a guilty verdict on this ground of appeal only when we are persuaded that no jury acting reasonably could fail to have a doubt. It is for the trier to decide that any inconsistency has been effectively neutralized. Our function is only to assess whether that decision is a rational one.

15 In Francois, at p. 839, Madam Justice McLachlin stated:

The important point is this. The complainant offered an explanation for each of the alleged inconsistencies. It was open to the jury to accept those explanations. If they did, the inconsistencies lost their power to raise a reasonable doubt with respect to the accused's guilt. These explanations provided a means of reasonably resolving such doubt as may have been created by the inconsistencies themselves. It was for the jury to weigh both the significance of the alleged contradictions and whether such significance as they might have, had been neutralized by explanations as to why they occurred. The jury might have concluded that the contradictions were significant and had not been neutralized by the proffered explanations. That result would have been reasonable. But it was equally open to the jury to conclude that the alleged contradictions had been neutralized by the explanations. That alternative too was "reasonable".

16 Similarly, we are aware that an appeal court cannot judge the demeanour of a witness, and is in no position in the ordinary course to question a decision by a trier about that. But not every case is about demeanour, and not every problem about credibility can be rationally resolved by reference to demeanour. In this case, demeanour obviously must have played a role - although the trial judge made no reference to it. But while assessment of witnesses' demeanour by trial judges is important, it does not provide an absolute answer to their ultimate decision whether to convict. There can be a frailty in a finding based upon demeanour, and demeanour, while very essential, is not, in fact, everything. For example, irreconcilable contradictions by other credible witnesses cannot be ignored just because the trier is impressed by the manner of testimony. This is a case primarily about contradictions by other witnesses, not just demeanour or internal inconsistency or implausibility.

[30] With specific references to cases where the alleged unreasonableness is based on the trial judge’s assessment of credibility see paras 3 – 7 of R. v. Burke which provide as follows:

3 Under s. 686(1)(a)(i) of the Criminal Code, a court of appeal may allow an appeal against conviction where the court is of the view that the verdict reached below was unreasonable in that it cannot be supported on the evidence. Section 686(1)(a)(i) of the Criminal Code provides as follows:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. . . .

The standard of review under s. 686(1)(a)(i) was first established by this Court in Corbett v. The Queen, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275. At p. 282 of that decision, a majority of this Court determined that the question to be asked in reviewing the "reasonableness" of a verdict is

whether the verdict is unreasonable, not whether it is unjustified. The function of the court is not to substitute itself for the jury, but to decide whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.

Following this Court's decision in Corbett, some degree of confusion arose as to the appropriate standard of review where the "reasonableness" of a verdict was in question. One possible interpretation of Corbett was that the court of appeal could only intervene where it took the view that no jury acting judicially could have possibly reached the verdict rendered at trial. Clearly, this interpretation of the Corbett decision set the standard of review so high that it was virtually unattainable. Another view of the Corbett decision was that a court of appeal could intervene in any case where no jury acting judicially could reasonably have reached the verdict rendered at trial. The confusion concerning the standard of review was finally settled by the unanimous Court in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168. In that case, McIntyre J. settled the issue as follows, at p. 185:

... to adopt literally the proposition that the appellate court could only consider whether the impugned verdict could possibly have been reached would render review on appeal under the subsection almost impossible. "Reasonably could have reached" must be the test, and from a reading of the whole of Pigeon J.'s judgment [in Corbett] I am of the view that it was what was intended. [Emphasis in original.]

As a result, the Court in Yebes concluded (at p. 185) that "curial review is invited whenever a jury goes beyond a reasonable standard".

4 In undertaking a review under s. 686(1)(a)(i) of the Criminal Code, the appellate court must carefully consider all of the evidence that was before the trier of fact. As I stated for a majority of this Court in R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, at p. 915:

In an appeal founded on s. 686(1)(a)(i) the court is engaged in a review of the facts. The role of the Court of Appeal is to determine whether on the facts that were before the trier of fact a jury properly instructed and acting reasonably could convict. The court reviews the evidence that was before the trier of fact and after re-examining and, to some extent, reweighing the evidence, determines whether it meets the test.

As a result, it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can invoke s. 686(1)(a)(i) and overturn the trial court's verdict.

5 According to this Court in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, special concerns arise in cases such as this where the alleged "unreasonableness" of the trial court's decision rests upon the trial judge's assessment of credibility. In these cases, the court of appeal must bear in mind the advantageous position of a trial judge in assessing the credibility of witnesses and the accused. As McLachlin J. stated in W. (R.), at p. 131:

...in applying the test [under s. 686(1)(a)(i)] the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King, 1947 CanLII 1 (SCC), [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), 1989 CanLII 31 (SCC), [1989] 2 S.C.R. 446, at pp. 465-66.

Despite the "special position" of the trial court in assessing credibility, however, the court of appeal retains the power, pursuant to s. 686(1)(a)(i), to reverse the trial court's verdict where the assessment of credibility made at trial is not supported by the evidence. As McLachlin J. stated in W. (R.), at pp. 131-32:

... as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.

Thus, although the appellate court must be conscious of the advantages enjoyed by the trier of fact, reversal for unreasonableness remains available under s. 686(1)(a)(i) of the Criminal Code where the "unreasonableness" of the verdict rests on a question of credibility.

6 I acknowledge that this is a power which an appellate court will exercise sparingly. This is not to say that an appellate court should shrink from exercising the power when, after carrying out its statutory duty, it concludes that the conviction rests on shaky ground and that it would be unsafe to maintain it. In conferring this power on appellate courts to be applied only in appeals by the accused, it was intended as an additional and salutary safeguard against the conviction of the innocent.

7 Having carefully considered the above principles and reviewed the evidence, I have concluded that this is one of those rare instances where the trial court's assessments of credibility cannot be supported on any reasonable view of the evidence. While I am fully aware of the advantages enjoyed by the trier of fact, I am nonetheless persuaded that the trial court in the case arrived at an unreasonable verdict by accepting the evidence of the complainants E. and C. In my view, no properly instructed jury acting in a judicial manner could reasonably have accepted the claims of these complainants. My reasons for arriving at this conclusion are discussed at length below. The nature of review under s. 686(1)(a)(i) demands that I undertake a thorough review of the evidence of the complainants.

[31] Within this context, Mr. Dimou’s counsel argued that Justice LeDressay fell into “the credibility trap”, as Mr. Lepore referred to it. Mr. Lepore’s position is that on pages 143 to 145 of the Transcript of Proceeding, in his Reasons for Judgment, Justice LeDressay goes through three topics – possible collusion between the Crown witnesses, possible animus on behalf of the witnesses, and a consideration of some inconsistencies in the evidence of the two Crown witnesses – and in doing so improperly considers the credibility of the complainants versus the credibility of the accused. It is Mr. Lepore’s position that Justice LeDressay, on the basis of the three considerations, concludes that the complainants are more credible and as a result rejects the evidence of Mr. Dimou. It is the Appellant’s position that the trial judge by falling into the credibility trap failed to assess the evidence in the manner set out in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26. The Appellant submits that the trial judge completed his assessment of credibility prior to any consideration of reasonable doubt or the Crown’s burden of proof (see R. v. Chartrand, 2002 CanLII 6331 (ON CA), [2002] O.J. No. 4791, 62 O.R. (3d) 514 (C.A.) at para. 22 and R. v. J. (M.), 2002 CanLII 49364 (ON CA), [2002] O.J. No. 1211, 157 O.A.C. 177 (C.A.) at para. 7.

[32] In my view, in these pages of his Reasons (143 to 145) Justice LeDressay was dealing with preliminary matters after having considered the burden of proof and the principles in R. v. W.D. After dealing with these preliminary issues – collusion, animus and inconsistencies – the trial judge went on to apply the R. v. W.D. principles.

[33] This was not a situation of Justice LeDressay falling into a credibility trap, believing one witness over the other, without applying the R. v. W(D). In this regard I refer to para 53 of R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749, 215 C.C.C. (3d) 252 (C.A.) which provides as follows:

53 The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

This is exactly the type of analysis Justice LeDressay did.

[34] Mr. Lepore specifically argued that Justice LeDressay in dealing with issues of credibility, misapprehended the evidence. This argument is specifically in reference to the paragraph at page 144, Line 29 of Justice LeDressay’s Reasons for Judgment which provides as follows:

Third, I have considered there are some inconsistencies in the evidence of the two Crown witnesses. I note, however, that on the main points that are directly related to the charge, with one exception I am going to mention in a moment, they were corroborative of each other. They were particularly corroborative of the fact that Mr. Dimou in anger placed his hand on Nicole’s throat. Most inconsistencies between these two witnesses were, in my view, on peripheral and somewhat minor issues. I’m talking about whether the tables, in fact, were upstairs or had been taken downstairs and whether Nicole was escorted to the door by her mother or not. I view those as being periphery issues. They are clearly explainable by different witnesses having different vantage points, different perceptions and different recollections.

[35] Mr. Lepore’s position is that Justice LeDressay misapprehended the evidence when he concluded that with “one exception”, the Crown witnesses were corroborative of each other. Mr. Lepore argues that the one exception Justice LeDressay refers to is significant and cannot be isolated. He submits that it is a significant inconsistency that is so key to the alleged assaultive behaviour of the Appellant that His Honour didn’t place sufficient importance on it in assessing the overall reliability and credibility of the two Crown witnesses.

[36] Justice LeDressay addresses the one inconsistency between the evidence of the Crown witnesses as concerning the “involvement of the binder which is the subject of count number three, the assault with a weapon charge.” He indicated that he has three different versions, one from each of the three witnesses – Ms. Perioris, Nicole Dimou and Mr. Dimou - as to exactly what took place with the binder. These different versions are the basis for the acquittal on this count.

[37] Mr. Lepore argues that a review of the evidence of Ms. Perioris and Nicole Dimou with respect to the allegations concerning the binder shows such significant inconsistencies that this cannot be ignored in assessing their credibility on the remaining counts and cannot lead to the conclusion that “with one exception, ..., they were corroborative of each other.”

[38] Ms. Perioris testified that when she, Nicole and Mr. Dimou were all on the main floor Mr. Dimou started to pull and shove and push Ms. Perioris in front of Nicole and that Mr. Dimou had picked up his portfolio and that “he didn’t throw it over his head, but he swung it like kind of at me and threw it at me...” and Nicole saw that. Ms. Perioris testified Mr. Dimou swung the binder at her and it left his hand and hit her and that Nicole was present and Nicole told her dad to leave her mother alone. Ms. Perioris testified that Mr. Dimou started to push and shove her again and that Nicole came between Ms. Perioris and Mr. Dimou to protect Ms. Perioris and make it stop. In cross-examination, Ms. Perioris refers to Mr. Dimou picking up the portfolio, saying “he went to swing it and threw it at me.” Defence counsel made reference to Ms. Perioris “demonstrating a two-handed throw of the portfolio.”

[39] Nicole Dimou in her examination in-chief testified as to what she observed. She makes no reference to Mr. Dimou pushing and shoving Ms. Perioris in her presence before the alleged incident with the portfolio. She says Mr. Dimou was yelling at her mother and then he took the portfolio and hit Ms. Perioris with it. When asked if Mr. Dimou threw the portfolio at her mom, Nicole said no. She said Mr. Dimou had it in both of his hands and that he struck Ms. Perioris with it in her arm and chest. He held it and she guesses he must have set it down on the counter after. Nicole agreed with the suggestion that Mr. Dimou made a whacking motion with the portfolio. She described that Mr. Dimou started to yell at Ms. Perioris again and Nicole got in between her parents, using her arm to motion her way between them. She makes no reference to witnessing Mr. Dimou push or shove Ms. Perioris either before or after the alleged portfolio incident.

[40] Mr. Lepore argues that Justice LeDressay erred in limiting his assessment of the inconsistency between the Crown witnesses to exactly what took place with the portfolio. Mr. Lepore points to the inconsistency between the witnesses as to whether pushing and shoving happened before and after the alleged incident with the binder and the fact that Justice LeDressay makes no reference to these inconsistencies. Justice LeDressay obviously had sufficient concerns about the evidence specific to the portfolio as he acquitted Mr. Dimou of the count of assault with a weapon. He considered Mr. Dimou’s evidence that with respect to the portfolio in this regard as well. Of concern to Mr. Lepore is that the contradictory evidence as to what happened with the portfolio, combined with the discrepancies between the two Crown witnesses as to what happened before and after the alleged assault with a weapon, ought to have raised concerns with respect to the credibility and reliability of both Crown witnesses with respect to the assault allegations, not just the assault with a weapon charge. The Appellant argues that the inconsistencies went beyond what happened with the binder.

[41] A related argument raised by the Appellant arising from this same paragraph of the Reasons of the trial judge is that Nicole’s evidence could not be corroborate of Ms. Perioris’ evidence of Mr. Dimou’s allegedly assaulting her, as Nicole was not present when Mr. Dimou is alleged to have pushed Ms. Perioris into a table. Neither Ms. Perioris nor Nicole testified that Nicole was present when this is alleged to have happened. Both state that Nicole was upstairs at the time. The Appellant argues that Justice LeDressay having found that Nicole had no animus toward her father and she was merely telling the truth and doing her absolute best to tell the truth, could not provide corroborating evidence to her mother regarding the incident alleged to have occurred when Nicole was upstairs and gave contradictory and inconsistent evidence to her mother with respect to events before, during and immediately after the alleged incident with the portfolio.

[42] I will focus firstly on these concerns in the context of Justice LeDressay’s finding that Mr. Dimou “at the very least, pushed his wife into a coffee table.” This finding supported one conviction for assault. It is clear that Nicole was upstairs when this happened. The Appellant argues that Justice LeDressay erred in his determination that Nicole’s evidence corroborated Ms. Perioris’ evidence in this regard – because she was not present.

[43] Further, the Appellant argues that the broader inconsistencies between the Crown witnesses as to what happened before, during and after the alleged portfolio event calls into the question the credibility of both Crown witnesses and particularly the evidence of Ms. Perioris with regard to this pushing incident.

[44] A careful review of the Reasons of Justice LeDressay do not support the Appellant’s submission with respect to his finding that Mr. Dimou pushed Ms. Perioris into a coffee table. Justice LeDressay relied on the corroborating evidence of the photographs of the bruising on Ms. Perioris’ leg, consistent with her version of events. The Appellant’s argument ignored this evidence. Justice LeDressay’s finding that Nicole’s evidence corroborated Ms. Perioris’ with regard to this incident was not based on Nicole observing the incident but from her testimony that she could overhear her parents while they were upstairs and Mr. Dimou appeared to be very hateful toward Ms. Perioris – swearing at her, calling her a bitch, getting really angry and very fired up and that her mother wasn’t yelling back and was more submissive. Further, Nicole testified that Ms. Perioris showed her the bruising that Nicole had not observed earlier that day on her mother. Again, this was corroborative of Ms. Perioris’ evidence. A properly instructed jury acting reasonably could have reached this verdict on the evidence.

[45] The second assault conviction was based on Justice LeDressay’s finding of fact that Mr. Dimou placed his hand on Nicole’s neck in anger. Ms. Perioris testified in-chief that after the alleged portfolio incident, Mr. Dimou put his hand on Nicole’s neck and called her an

asshole. The way the questions were asked and answered it is not clear to me that Ms. Perioris claimed that Mr. Dimou grabbed Nicole’s neck. She initially said “put his hand on her neck.” In cross-examination Ms. Perioris repeated that Mr. Dimou put his hand on Nicole’s neck and stated he wasn’t trying to choke Nicole and that she didn’t know how tight he squeezed. Nicole Dimou testified initially in-chief that Mr. Dimou grabbed her throat with his right hand. She said he didn’t grip, there was no gripping, but it did hurt and did startle her. In cross-examination, Nicole testified Mr. Dimou grabbed her throat. She denied that he put his arm on her upper shoulder to tell her to calm down. Mr. Dimou testified that Nicole started arguing and he reached forward and told Nicole to stop, to calm down and he placed his hands on her shoulder and said calm down. He denied putting his hands on her neck. In cross-examination, he said his hand “could be” on her shoulder and he had a big hand and Nicole has a small body. He said his hand was not on her throat.

[46] In my view, the finding of guilt for assaulting Nicole was not an unreasonable verdict. Nicole’s evidence and Ms. Perioris’ evidence were very consistent on this incident.

[47] Mr. Dimou admitted to touching Nicole. The essential elements of assault were made out beyond a reasonable doubt by his own testimony.

[48] With respect to the assault against Ms. Perioris, Justice LeDressay rejected the evidence of Mr. Dimou that they had no physical contact accepting Ms. Perioris’ evidence because of the corroborating evidence of the bruises and of Nicole’s evidence of Mr. Dimou’s aggressive verbal barrage against Ms. Perioris. The inconsistencies in the testimony between Ms. Perioris and Nicole concerning the alleged portfolio incident, including what happened just before and after, do not make this verdict unreasonable. Further, Mr. Dimou admitted the essential elements of an assault on Nicole - he intentionally applied force to Nicole, she did not consent to the force and Mr. Dimou knew that Nicole did not consent to the force.

[49] I agree with the Crown that just because Justice LeDressay found inconsistencies in the evidence of the Crown witnesses on the alleged portfolio incident (including before and after) does not mean he could not find the witnesses credible overall and specifically therefore with respect to the assault counts. A trial judge can accept all or part of a witness’ evidence. The mere presence of inconsistencies in some of the evidence does not necessarily mean there is an unreasonable verdict.

[50] Justice LeDressay gave clear reasons for his finding that Nicole was a credible and reliable witness. The inconsistencies with respect to the alleged portfolio incident did not make her evidence less credible or reliable. Her evidence was clear with respect to the assault on her. Her evidence was not exaggerated. Her evidence was corroborated by the similar evidence of Ms. Perioris with respect to the assault on Nicole and to some extent by the evidence of Mr. Dimou with respect to his touching Nicole on the shoulder.

[51] The Appellant argues that the trial justice conflated the concepts of reliability and credibility. It is clear that these are two different concepts (see R. v. Norman, 1993 CanLII 3387 (ON CA), [1993] O.J. No. 2802, 87 C.C.C. (3d) 153 (C.A.); R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639, 97 C.C.C. (3d) 193 (C.A.); R. v. Nicholson, 1995 CanLII 424 (ON CA), [1995], O.J No 3152, 86 O.A.C. 68 (C.A.); and R. v. S. (W.), 1994 CanLII 7208 (ON CA), [1994] O.J. No. 811, 90 C.C.C. (3d) 242 (C.A). This concept was not really developed in the Appellant’s Factum or oral argument. I believe the Appellant’s position was that Nicole may have been a credible witness but that her evidence was unreliable in that 1) she did not see her father push her mother into a table, 2) there were inconsistences in the description of the portfolio incident (including before and after) as compared with Ms. Perioris’ evidence and 3) she modified her evidence with respect to the assault on her. I disagree. Her evidence while she was upstairs as to the argument she heard was consistent with Ms. Perioris’ and Mr. Dimou’s evidence. I found her evidence with respect to the assault on her to be consistent and not overstated or modified. In fact, she clarified her evidence in her examination in-chief. Similarly, the reliability of Ms. Perioris’ evidence was supported by the photographs of the bruising to her leg. Justice LeDressay did address reliability issues in his finding of fact.

[52] Upon review of Justice LeDressay’s Reasons, I am not of the view that his Reasons indicated a failure to appreciate relevant evidence or that he ignored evidence. Justice LeDressay’s Reasons reflect that he was alert to all the evidence.

[53] For these reasons, the appeal is dismissed.

Coats J.

Released: April 20, 2015

CITATION: R. v. Dimou, 2015 ONSC 2225

COURT FILE NO.: 147/13

DATE: 20150420

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GEORGE DIMOU

Appellant

REASONS FOR JUDGMENT

Coats J.

Released: April 20, 2015