CITATION: R. v. Schiefer, 2015 ONSC 2373
DATE: 20150413
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANTONY SCHIEFER
Appellant
Megan Petrie, for the Crown
Peter Brauti and Lawrence Gridin for Mr. Schiefer
HEARD: November 18, 2014
trotter j.
INTRODUCTION
[1] On January 24, 2014, after a trial before the Honourable Lloyd Budzinski of the Ontario Court of Justice, Mr. Schiefer was found guilty of one count of assault. He received a 12-month conditional discharge, which has now been served.
[2] Mr. Schiefer was charged with eight offences relating to the alleged abuse of his wife over the preceding two years. The Crown withdrew Counts #1 to #6. The trial proceeded on Count #7 and #8. At the time of the trial, Mr. Schiefer and his wife were in the throes of matrimonial litigation. The complainant was also seeking $1.25 million in damages for ongoing abuse.
[3] The trial proceeded over the course of nine days, after which Mr. Schiefer found guilty on Count #7, but not guilty on Count #8.
SUMMARY OF RELEVANT FACTS
[4] The finding of guilt related to what became known at trial as “the garbage bag incident.” On September 14, 2011, Mr. Schiefer was attending a conference at a Toronto hotel. He received an email from his wife concerning their relationship. He went home to discuss the situation, in the absence of their children.
[5] The complainant testified that, during the course of an emotional discussion in the kitchen, Mr. Schiefer picked up a garbage bag and rubbed it in her face and said demeaning things to her. He then threw it onto her lap. The complainant testified that she threw the bag at her husband, causing liquid to spill on him. According to her, this enraged Mr. Schiefer. He spat upon her, grabbed her by the hair and forced her to the ground, causing injury to her head. The complainant said the attack continued as Mr. Schiefer kicked her body.
[6] Mr. Schiefer admitted that he picked up a garbage bag, put it in his wife’s lap and said: “This is all that you’re able to do, is take out the garbage.” He said that his wife then threw the bag at him, causing the contents to spill on him and his suit. Mr. Schiefer denied any assaultive behaviour afterwards.
[7] Count #8 alleged an assault on November 10, 2011. Mr. Schiefer was found not guilty on this count.
THE TRIAL JUDGE’S REASONS
[8] The learned trial judge justifiably expressed concern with the credibility of both Mr. Schiefer and the complainant. As he said in his Reasons for Judgment:
This history indicates that both parties had very strong motives to corrupt or bias their observations of the evidence. And even if I disbelieved the accused completely I would not find the complainant’s evidence consistent or reliable enough to convict without some supportive evidence.
I am not saying that anyone is lying. I am saying that the hostilities and the animus that developed over the years in this relationship would lead to a bias at the very least, or a motive, as to colour or to corrupt the ability to give evidence in a competent manner in which the Court could make strong findings of credibility and facts.
But there is one exception. I am going back to the garbage bag incident. [emphasis added]
[9] As noted above, the “garbage bag incident” was a small part of a broader allegation of what happened that day. The trial judge was required to determine whether the complainant’s version, in the context of all of the evidence, could be accepted beyond a reasonable doubt. However, given Mr. Schiefer’s evidence, the trial judge was also required to determine whether that version amounted to an assault. This gave rise to the question of whether the de minimis doctrine applied. As the trial judge said:
It is more probable that he pushed the garbage bag in her face with the insulting comment rather than placing in on her lap. Pushing the bag with comment, and I will find that he did push the bag with the comment, constitutes the offence of assault. I am satisfied beyond a reasonable doubt that the offence has been made out.
Even if I accept that the defendant’s description of placing it on her lap during an argument coupled with the words he used, which are not in dispute, de minimis would not apply. There was force applied without her consent, with the intent not to recover a piece of property as the cases presented would indicate, or to move her aside so he could leave or carry on his normal business, or even gain her attention for further legitimate dialogue. The force was used to demean and insult her in a physical and abusive manner.
However, I need not go further on that point since I have found that it is a fact beyond a reasonable doubt that he pushed the garbage bag in her face. As far as the other charges or circumstances that flow from that point on, I have indicated that bias and inconsistencies on the part of all parties, not necessarily lies as such, that although they may reflect on a balance of probabilities they fall short of reasonable doubt without further supportive evidence. As a result of that, those charges will be dismissed, but the accused will be convicted of common assault…. [emphasis added]
[10] The learned trial judge immediately moved to questions about the on-going family law dispute and said “[m]y concern is to avoid anything that may avoid on-going conflict.” He imposed a conditional discharge, with very few conditions.
ANALYSIS
[11] This appeal is allowed for three interrelated reasons. First, I am troubled by the trial judge’s application of the standard of proof in paragraph 9 above. In the same paragraph, the trial judge refers to both proof on a balance of probabilities and proof beyond a reasonable doubt. Of course, this extremely experienced trial judge was well aware of all of the relevant principles. However, I am concerned that the trial judge’s initial statement that proof of the complainant’s account of this incident never rose above a balance of probabilities was an authentic conclusion.
[12] Secondly, the trial judge concluded that he could not be satisfied beyond a reasonable doubt of the rest of the complainant’s allegations in the absence of “supportive evidence.” I am unable to understand how he was able to distinguish the “garbage bag incident” from the aftermath on this basis. The complainant described a far more serious assault that was alleged to have occurred within minutes, if not seconds, of the “garbage bag incident.” The trial judge was not prepared to find proof beyond a reasonable doubt without evidence to corroborate the complainant’s account of this subsequent conduct. Considerations of de minimis aside, the trial judge did not explain why it was safe to find guilt on the first part of the incident, but not on the latter.
[13] Lastly, and related to the previous point, trial judge failed to adequately explain why he rejected Mr. Schiefer’s evidence on the initial “garbage back incident,” but not his denial of the far more serious assault that is alleged to have occurred afterwards. The trial judge alluded to the fact that Mr. Schiefer had never left work early in these circumstances before. There was no evidence to support that conclusion. The trial judge was also concerned about Mr. Schiefer’s insistence on being “upset” rather than “angry”, even though he revealed no concern with the complainant’s similar use of semantics in parts of her evidence.
[14] It is open to a trier of fact to accept some, none or all of the evidence of a witness. However, in the context of this judge alone trial, the trial judge should have explained why his findings permitted him to have a reasonable doubt on the more serious aspects of the incident, but not on the “garbage bag incident.”
CONCLUSION
[15] In all of the circumstances, the finding of guilt against Mr. Schiefer must be set aside. Typically, the proper remedy in these circumstances is a new trial. However, it is not in the interests of justice to subject Mr. Schiefer to a second trial given the amount of time that has passed since the incident, the length and expense of the first trial, the nature of the only incident left in dispute (the “garbage bag incident”) and the fact that Mr. Schiefer has served the original sentence (that was not appealed by the Crown). Accordingly, while I set aside the finding of guilt, I decline to order a new trial on this information: Criminal Code, ss. 686(8) and 822(1). See R. v. P.L., [1995] O.J. No. 854 (C.A.), R. v. Wright (2013), 2013 MBCA 109, 305 C.C.C. (3d) 556 (Man. C.A.) and R. v. Farry (2010), 95 M.V.R. (5th) 246 (Ont. S.C.J.).
[16] I wish to thank both counsel for their excellent written and oral submissions.
Trotter J.
Released: April 13, 2015
CITATION: R. v. Schiefer, 2015 ONSC 2373
DATE: 20150413
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANTONY SCHIEFER
Appellant
REASONS FOR JUDGMENT
Trotter J.
Released: April 13, 2015