ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-0009-AP
DATE: 2015-06-10
B E T W E E N:
Her Majesty The Queen,
Robert M. Kozak, for the Crown
Respondent
- and -
Kevin Kane Stadey,
Francis J. Thatcher, for the Appellant
Appellant
HEARD: May 12, 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons For Judgment On Summary Conviction Appeal
[1] This is an appeal by the accused, Kevin Kane Stadey, from his conviction for assault, contrary to s. 266 of the Criminal Code, and uttering a threat, contrary to s. 264.1(1)(a) of the Criminal Code.
Background
[2] The appellant and the complainant, Sheryl Lynn Watson, had known each other for approximately two years and were in a dating relationship at the time of the charges. They each had their own house and had keys for each other’s house.
[3] Ms. Watson testified that she believed that Mr. Stadey was coming for dinner at her home on Friday evening, October 18, 2013, and that he did not show up at the expected time. She said she attempted to text him to find out where he was but that he did not respond to the text.
[4] Mr. Stadey testified that they had no concrete dinner plans, but that they did spend a lot of time having dinners “so it’s not like it wouldn’t necessarily be understood but certainly there was no plans in place”.
[5] Mr. Stadey finished work that day and then went to a bar and had a “few drinks”. He said he anticipated that Ms. Watson might be angry with him, because “that was the kind of relationship sometimes that we have”.
[6] Ms. Watson testified that Mr. Stadey showed up very drunk and in a bad mood. He was angry with her, talking about other men. She said that he ended up pushing her into the cupboards of her small kitchen, squashing her and holding her hands behind her back. She said that he told her that he would kill her if she left him.
[7] When Mr. Stadey sat down, she telephoned the police.
[8] Ms. Watson said that she was not angry. She said that she did not have any alcohol to drink.
[9] Mr. Stadey testified that Ms. Watson was very upset when he arrived because of her belief that he was late for dinner and because he had not gone along with her plans to go to the Caribbean. He said that Ms. Watson had been drinking.
[10] Mr. Stadey said that he was trying to be friendly and to calm Ms. Watson down. She was standing with her back against the counter of her very small kitchen. He said he wrapped his arms around her, hugged her, tried to kid with her, and spoke a little baby talk to her. She continued to get more upset.
[11] Ms. Stadey said there was tension, that he did not remember everything he said to Ms. Watson, that their conversation became heated, in an argumentative tone, and that based on his experience when the two of them had heated conversations, he probably said things that he might not say when he was sober.
[12] The evidence of the police officer who testified was that when he arrived, Ms. Watson had an odour of alcohol on her breath. She stated to him that she had had a couple of glasses of wine. The officer said that Ms. Watson did not seem intoxicated.
[13] When the officer spoke to Mr. Stadey, he observed that Mr. Stadey had visibly been drinking. Mr. Stadey had bloodshot eyes, an odour of alcohol on his breath, and slurred his speech slightly but he seemed steady on his feet.
Grounds of Appeal
[14] First, the defence submits that the trial judge failed to apply the analysis required by R. v. W.(D.), [1991] 1 S.C.C. 742 (S.C.C.).
[15] The defence submits that the trial judge relied excessively on a finding of credibility of Ms. Watson in assessing Mr. Stadey’s credibility, and dismissed Mr. Stadey’s contrary evidence out of hand, shifting the burden of proof.
[16] The defence submits, as a second ground of appeal, that it was open to the trial judge to find that Mr. Stadey innocently attempted to calm Ms. Watson down and that if Mr. Stadey was found credible and his evidence was accepted, the trial judge could then have considered the maxim “de minims non curat lex” even though Mr. Steady did intentionally apply force to Ms. Watson.
The Test on a Summary Conviction Appeal
[17] Section 686(1)(a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court 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;
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or
(iii) on any ground there was a miscarriage of justice.
[18] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been expressed by the Supreme Court of Canada in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at p. 185 as follows:
… the test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
[19] The test in Yebes, although expressed in terms of a verdict reached by a jury, is equally applicable to the judgment of a judge sitting at trial without a jury. R. v. Biniaris (2000), 143 C.C.C. (3d) (S.C.C.) at para. 37.
[20] In determining whether a verdict is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s decision (R. v. B. (R.H.), 1994 127 (SCC), [1994] 1 S.C.R. 656). Provided this threshold is met, an appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact (Francis v. R., [1994] S.C.C.D. 5065-02; R. v. Yebes, supra). It is not entitled to retry the case.
[21] More recently, in R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at p. 10, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judge’s factual findings. He stated:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm.
Discussion
[22] In my view, the trial judge made no error in law nor did she make a palpable or overriding error of fact.
[23] In a case that turns on credibility the trial judge is in a unique position to see and assess the witnesses. She must direct her mind to the question of whether the evidence, as a whole, establishes the guilt of the accused beyond a reasonable doubt. See R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.) at para. 23.
[24] The trial judge found that Ms. Watson was trapped by Mr. Stadey against the cupboards in a small kitchen. Mr. Stadey is a large man. He then wrapped his arms around her, while she was angry and upset, allegedly to calm her.
[25] The trial judge explained, succinctly, the two paths of her reasoning in finding Mr. Stadey guilty of an assault.
[26] First, she found his explanation, that he was trying to calm Ms. Watson, was not credible. She said it made no sense that Mr. Stadey would actually believe that when Ms. Watson was angry with him it would help the situation to walk up to her, box her in and, without her consent, wrap his arms around her and try to calm her.
[27] Second, she went on to find that, in the unlikely case that Mr. Stadey actually believed that what he was doing was reasonable, what he did was nevertheless a non-consensual touching, which equated to an assault – a large man wrapped his arms around a woman, without her consent, in a situation where she was extremely upset with him.
[28] The trial judge directed herself, correctly, that she must consider the evidence as a whole. Having done so, she expressed herself as “satisfied beyond any reasonable doubt” that Mr. Stadey was guilty as charged of the assault.
[29] In my view, the trial judge did not simply reject the evidence of Mr. Stadey because she accepted the evidence of Ms. Watson. She explained that she did not accept his evidence because it was not in harmony with what was reasonable in that place and in those conditions. She then found that even if she accepted Mr. Stadey’s evidence, what he did constituted an assault.
[30] At trial, there had been no submission on the maxim of “de minimis non curat lex”. The maxim translates as “the law does not concern itself with trifles”. See Garner, A Dictionary of Modern Legal Usage, (Oxford: Oxford University Press, 1995), Second Edition.
[31] In my opinion, the maxim is not applicable to the facts of this case. The facts as found by the trial judge were not trifling. Ms. Watson was upset, boxed in a small, confined space, her back up against the kitchen cupboards, blocked by a large man who was under the influence of alcohol and who wrapped his arms around her without her consent.
[32] With respect to the conviction for uttering a threat, the trial judge adequately explained her finding of fact that Mr. Stadey had threatened Ms. Watson by saying: “If you leave me, I’ll kill you.”
[33] The trial judge noted that in the context of Ms. Watson’s testimony as to what Mr. Stadey said, Mr. Stadey’s evidence was that he was not sure what he said, that he just said things, that he was angry, and that he had been drinking. Mr. Stadey agreed in cross-examination that, based on his past experience when he had heated conversations with Ms. Watson, he probably said things that he might not say when he was sober.
[34] This evidence of Ms. Watson and Mr. Stadey reasonably supported the trial judge’s finding that Mr. Stadey uttered a threat. The trial judge expressly indicated that in coming to this conclusion she had considered the whole of the evidence.
Conclusion
[35] For the reasons given, the appeal is dismissed.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: June 10, 2015
COURT FILE NO.: CR-14-0009-AP
DATE: 2015-06-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Kevin Kane Stadey,
Appellant
REASONS FOR JUDGMENT
ON SUMMARY CONVICTION APPEAL
Shaw R.S.J.
Released: June 10, 2015
/mls