R. v. Jossa, 2015 ONSC 3656

CITATION: R. v. Jossa, 2015 ONSC 3656

COURT FILE NO.: CR-14-50000095-00AP

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

GREGORY JOSSA

Respondent

Luke Schwalm, for the Crown

Martin Goose, for the Respondent

HEARD: April 17, 2015

REASONS FOR JUDGMENT

[ON APPEAL FROM THE JUDGMENT OF JUSTICE S. MERENDA OF THE ONTARIO COURT OF JUSTICE DATED JULY 21, 2014]

B. P. o’marra, J.

OVERVIEW

[1] On April 7, 2013, the respondent, Gregory Jossa, was charged with assault contrary to s. 266 of the Criminal Code. His wife, the complainant, alleged that following an argument in their apartment the respondent punched her, pulled her hair, and spat on her in the presence of their one year-old daughter.

[2] The two-day trial was completed on July 21, 2014. The Crown called the complainant and her father, Roman Kujawa, as witnesses. Mr. Kujawa testified that he spoke to the complainant several times on the morning of April 7, 2013. In the course of those phone calls, the complainant asked him to attend at her apartment as the respondent was getting violent. At the apartment, Mr. Kujawa made observations of the complainant, the respondent, and the respondent’s parents.

[3] The trial judge ruled that significant portions of Mr. Kujawa’s evidence were inadmissible hearsay. The trial judge found the complainant credible. He found that the respondent was not credible. However, he was not satisfied beyond a reasonable doubt that the alleged assault occurred. He therefore acquitted the respondent.

[4] The Crown appeals the acquittal on the following grounds:

(i) that the learned trial judge failed to consider the evidence of Roman Kujawa and ruled portions of it inadmissible;

(ii) that the evidence of Roman Kujawa was relevant, material, and admissible; and

(iii) that the verdict would not necessarily have been the same but for the trial judge’s failure to consider this evidence.

SUMMARY OF THE EVIDENCE

EVIDENCE OF THE COMPLAINANT

[5] Katarzyna Kujawa testified that she had been in a relationship with the respondent for approximately 18 years and had been married to him since October 2011. She testified that the respondent was both physically and emotionally abusive and provided specific examples of the abuse, including an assault allegation from October 15, 2012. She stated that at the time of the current allegations the respondent was bound by the terms of a recognizance related to the October 2012 incident. She had asked for a bail variation to allow the respondent to have contact with her. She wanted him to attend counseling and to be a father to their child.

[6] On the morning of April 7, 2013, the complainant’s parents called her soon after she woke up. The complainant had planned to attend church with her parents. The respondent was too ill to attend and had planned to stay home with their daughter. The complainant testified that the respondent was already agitated. She spoke with her parents again and decided to take her child to church since it was her parents’ 33rd wedding anniversary.

[7] The respondent indicated to her that he would go to his parents’ home to fix his car. She asked him to go through some bins and to get some items for the baby. He seemed agitated and said “What the fuck you need to go and get any of these things for? What the fuck do you want? You don’t need that shit…. Ask them yourself.” This conversation occurred between 10 and 10:30 a.m.

[8] The complainant stopped asking about the bins because the respondent was agitated. Instead, she asked him to speak to his parents about getting her bed back. She wanted to sell a more valuable bed she owned. The respondent became very angry and said “You fucking Indian giver, you fucking bitch. You fucking give things and you think that you own everything.” She asked him to stop being so aggressive and yelling in front of the baby.

[9] The complainant called the respondent’s father, who was also upset about her request. The respondent continued to swear and call her names. She took her baby and walked away from him towards the bathroom. As she entered the bathroom, the respondent punched her in the rib cage on the left side of her back. He was swearing and calling her names. He told her she should die. The phone conversation with the respondent’s father ended at the time of the punch.

[10] The respondent then ripped the baby away from her and sat on the couch. He was still aggressive. She was telling him to calm down in front of the baby. As she approached the couch to take the baby, the respondent spat on her. She was approximately three feet away and the spit hit her neck, chest, and face. The parties continued to argue. When she turned away, the respondent followed her with the baby in his left arm. He caught up with her, grabbed her hair and pulled it, ripping out some strands. She managed to take the baby and threatened to call the police or her father.

[11] The complainant did call her father. As she was speaking with him on the phone, she begged the respondent to go away. She asked her father to come to the apartment because she did not feel safe. The respondent left the apartment and returned with his parents. The complainant was in a state of undress and told them to stop. They ignored her request and acted in an aggressive manner, telling her that she would be in trouble with the police, that she was crazy, and that she would lose her baby.

[12] The complainant called her father again. She told him about the dispute involving her in-laws and asked him to hurry to the apartment. Her parents arrived soon after. The respondent’s parents continued to make accusations. They said the respondent would take the baby. In the presence of the complainant’s parents, the respondent’s mother threatened that the complainant would go to jail. The respondent took his possessions and left with his parents.

[13] The complainant reported the assault to the police on April 11, 2013 after speaking to a person she believed to be a former police officer. She testified that she had not reported the incident earlier because she was concerned about her child losing contact with the respondent, lack of proof to back up her allegations, and her mother-in-law’s threat that she would lose custody if she went to the police. She decided to report the incident as she realized that the respondent had abused her for too long and that the abuse was now affecting her child.

[14] In cross-examination, the complainant explained that, despite the constant abuse, she continued to reconcile with the respondent because he was good at apologizing. She stated that she had never assaulted the respondent.

[15] At seven points during his cross-examination of the complainant, defence counsel asked why she had waited three days to report the matter to the police. Defence counsel suggested that she had waited three days to see if the respondent would come back.

EVIDENCE OF MR. KUJAWA

[16] Mr. Kujawa testified that he spoke to the complainant several times on the telephone on April 7, 2013. At approximately 10:00 a.m., she told him that she would attend church with him and his wife as it was their 33rd wedding anniversary. She called back approximately 10 minutes later to tell him that the respondent would not join them as he was too ill. She called back a third time after 10 to 15 minutes. She was crying on the phone and asked him to come to her apartment because the respondent was getting violent.

[17] Mr. Kujawa testified that he drove over to the complainant’s apartment with his wife. On their way to the apartment, they received another phone call from the complainant. The phone was set on speaker. He testified that the complainant “was asking, ‘Greg. Stay away. Don’t come close,’ and stuff like that.”

[18] At the apartment, Mr. Kujawa observed that the complainant was holding her child. Both of them were crying and shaking. The respondent and his parents were present. The respondent’s father was yelling and screaming at the complainant. The respondent grabbed the baby from the complainant’s hands. He also yelled at Mr. Kujawa’s wife and called her names.

EVIDENCE OF THE RESPONDENT

[19] The respondent testified that his marriage had been healthy with the exception of the complainant’s mood swings. He stated that he would usually leave the situation if he could not calm her down.

[20] He testified that he had never been violent with the complainant. He had been on bail leading up to April 7, 2013, but the bail was varied on December 27, 2012 to allow contact with the complainant. He testified that it was the complainant’s idea to vary the bail. He agreed to “give it a shot” and attend marriage counseling. He agreed that she had never made threats or been violent.

[21] The respondent testified that the argument began when the complainant told him that she wanted to take back the bed that she had given to his parents. She denied that she had agreed that his parents could keep the bed and set it up in their guest room. She began getting more and more angry. The respondent suggested that they could discuss the issue later or she could call his father. The complainant went to the bedroom and called his father. He could not hear the conversation. When the complainant returned from the bedroom, she was “even more furious.” She was yelling and screaming about the bed.

[22] The respondent agreed that both sets of parents were in the apartment at the same time. He was packing up his belongings quietly at the time. He had gone downstairs to talk to his parents and did not hear the complainant calling her father and asking him to come to the apartment quickly. He did not know that the complainant’s parents were there for any reason other than taking her to church.

[23] The respondent testified that he wanted to go downstairs to call his parents and ask them to come over to pick up his belongings. He said he planned on leaving the complainant because she was always having temper tantrums and was doing it in front of the baby too often. He moved out that afternoon and did not hear about the allegations until he was arrested by the police four days later.

[24] In cross-examination, the respondent testified that he was not annoyed or angry that the complainant wanted her bed back, but was sad that she could not control her temper in front of their baby. He explained that he “just wanted to go to church and have a good day.” He stated that he “could see the mood she was in. It was just getting more aggressive, so I tried to leave it as that, and hopefully after a day of church, we could come back and discuss it.” He stated that he decided to move out after the complainant finished speaking with his father on the phone.

TRIAL RULINGS ON THE ADMISSIBILITY OF MR. KUJAWA’S EVIDENCE

[25] In examination-in-chief, the Crown asked Mr. Kujawa questions about his phone conversations with the complainant on April 7, 2013. Mr. Kujawa testified that when she called him a third time, she was crying and saying “Daddy, daddy, come over because Greg is getting violent, and he’s like acting very weird, and I don’t feel – I don’t feel safe. Could you come over?” At this time, the trial judge told the Crown:

“get to the point without the hearsay, and without leading the witness,” adding “If you called this witness simply to try to embellish the credibility of the complainant, well, don’t do that. Ask – I asked you before whether anyone -- or I suggested that perhaps if no one was a witness here, that was the purpose, and you assured me that there was great purpose in calling this evidence. Get to the point.”

[26] The trial judge permitted the Crown to ask Mr. Kujawa questions about the complainant’s demeanour and how she sounded on the phone. Mr. Kujawa testified that “she were (sic) crying, and then she wants to be as soon as possible with my wife at the apartment.” At this point, the Crown stated that his purpose in calling the evidence was to counter the allegation of recent fabrication suggested by defence counsel during the complainant’s cross-examination. He stated that the complainant’s statements to her father, as well as the timing of that disclosure, were both important and relevant.

[27] Defence counsel stated that the cross-examination was aimed at credibility and testing memory. Further, he stated that the complainant’s statements to her father would not explain why she waited three days or whether the incident happened. The trial judge agreed with defence counsel and ruled that the line of questioning was irrelevant. He stated “what she may have told her father is, in my view, hearsay, and there’s no exception to that point of hearsay.” When defence counsel brought up the possibility of calling the respondent’s father as a witness, the trial judge responded “Well, I suppose the same comments would apply,” adding “that’s up to you… but the allegations are between your client and the complainant in regards to punching her from behind, spitting at her, and pulling her hair.”

REASONS FOR JUDGMENT AT TRIAL

[28] The trial judge found that the respondent was evasive and almost flippant in cross-examination, causing “serious concerns as to his veracity in his version of events.” On the other hand, he found that the complainant was “credible, precise, and very careful in giving her evidence.” Between the two of them, he found the complainant credible.

[29] Noting that he was faced with two versions of the events, the trial judge stated that he had considered the principles in R. v. W. (D.). He explained that he had “serious suspicions” about the accused’s credibility. He referred to the respondent’s testimony that he was not upset about the complainant wanting her bed back as an example of a statement that he disbelieved. However, he found that he was not able to reject the respondent’s evidence to the point of believing that he assaulted the complainant. The trial judge reasoned that while he was “very suspicious of [the respondent’s] denials” that he assaulted his wife, he could not reject that evidence and was left with a reasonable doubt.

ANALYSIS

[30] On appeal from an acquittal, it is not enough for the Crown to show that the trial judge committed an error of law. The Crown must satisfy the court that the trial judge’s error might reasonably be thought to have a material bearing on the acquittal. The Crown is not required to demonstrate that the verdict would necessarily have been different. See R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368 at para. 106; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609 at para. 14; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595 at para. 2; R. v. Tatton 2015 SCC 13 at para. 60.

[31] The standard of review of hearsay evidence is correctness. An out-of-court statement offered simply as proof that the statement was made is not hearsay and is admissible as long as it has some probative value. See R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591 at para. 593; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 35.

[32] The Supreme Court of Canada in R. v. Stirling, [2008] S.C.J. 10, 2008 SCC 10 at paras. 5-11 has addressed the admissibility of prior consistent statements to rebut an allegation of recent fabrication. The court referred to the following principles:

(1) Prior consistent statements are generally inadmissible.

(2) There are several exceptions to this general exclusionary rule. One of those exceptions is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence.

(3) Admission on the basis of this exception does not require that the allegation of recent fabrication he expressly made. It is sufficient that the circumstances of the case reveal that the apparent position of the opposing party is that there has been a prior contrivance.

(4) It is not necessary that the fabrication be particularly “recent”. The issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred.

(5) Prior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose.

(6) A prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack probative value beyond showing that the witness’s story did not change as a result of a new motive to fabricate. It is not permissible to assume that because a witness has made the same statement in the past, he or she is more likely telling the truth, and any admitted prior consistent should not be assessed for the truth of their contents.

(7) Prior consistent statements have the impact of removing a potential motive to lie, and the trial judge is entitled to consider removal of this motive when assessing the witness’s credibility.

(8) Credibility is necessarily impacted – in a positive way – where admission of prior consistent statements removes a motive for fabrication. (underline added)

(9) Although it would be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.

[33] The trial judge in the case at bar found the complainant to be credible. He expressed concerns about the veracity of the respondent. Based on the principles set out by the Supreme Court of Canada in R. v. W.(D)., 1991 CanLII 93 (SCC), [1991], 1 S.C.R. 742 a trial judge must acquit even where he accepts the evidence of a complainant and does not accept the evidence of the accused if he is nonetheless left in a state of reasonable doubt. A judgment based on such findings is entitled to significant appellate deference. See. R. v. Cloutier, 2011 ONCA 484 at para. 86.

[34] The complainant was cross-examined on why she waited three days to report the alleged assault to the police. Counsel for the respondent declared that those questions were directed at her credibility. On appeal, counsel for the respondent submits that the trial judge found the complainant credible. Thus, he claims there was “no harm, no foul” (my words) in not admitting the prior consistent statements.

[35] In my view the trial judge erred in excluding Mr. Kujawa’s evidence of what the complainant told him on the phone. That evidence could refute the explicit allegation of recent fabrication or motive to lie.

[36] The trial judge failed to engage in a nuanced assessment of the admissibility of this evidence based on a principled approach to hearsay. The basis for excluding hearsay evidence is the difficulty in testing the reliability of the declarant’s assertions. At trial the complainant and Mr. Kujawa were examined and cross-examined. The concerns that typically underlie the declarant’s utterances were not significant in this case. Instead of applying the principled approach, the trial judge treated the rule against hearsay as a blanket exclusion and failed to explain why concerns about reliability were not sufficiently overcome to justify the admission of Mr. Kujawa’s evidence. See Khelawon at paras. 35 and 61.

[37] The Supreme Court of Canada in Stirling held that evidence of a prior consistent statement to rebut recent fabrication impacts credibility in a positive way.

[38] 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. See R. v. D. (J.J.R.), 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (Ont.C.A.) at para. 53 and R. v. R.E.M., 2008 SCC 51 at para. 66.

[39] If this evidence had been admitted and properly considered by the trial judge it could have impacted positively on the credibility of the complainant. That in turn could have further impacted in a negative way on the credibility of the respondent. The failure to receive and consider this evidence led to a flawed application of the principles in W.D. On that basis there must be a new trial.

RESULT

[40] The appeal is allowed and a new trial is ordered before a different judge.

B. P. O’Marra, J.

Released: June 5, 2015

CITATION: R. v. Jossa, 2015 ONSC 3656

COURT FILE NO.: CR-14-50000095-00AP

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Appellant

– and –

GREGORY JOSSA

Respondent

REASONS FOR JUDGMENT

B. P. O’Marra, J.

Released: June 5, 2015