ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: YC-14-0050-AP
DATE: 2015-07-14
B E T W E E N:
Her Majesty The Queen,
Célia Jutras, for the Crown
Respondent
- and -
Z.L.,
Michael A. Hargadon, for the Appellant
Appellant
HEARD: May 13 , 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
RESTRICTION ON PUBLICATION
Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related a young person, if it would identify the young person as having been dealt with under this Act. This judgment complies with this restriction so that it can be published.
Reasons For Judgment On Summary Conviction Appeal
[1] This is an appeal by Z.L., a young person within the meaning of the Youth Criminal Justice Act, from his conviction for uttering a threat to cause death to M.J., contrary to s. 264.1(1)(a) of the Criminal Code.
Background
[2] The appellant was 16 years of age at the time of the alleged offence. He lived with his father, M.L. At the time, Mr. L. and Ms. J. were in a romantic relationship. She and her daughter resided with Mr. L. and the appellant.
[3] On or about October 11, 2013, the appellant took some of his father’s tools. The police brought the appellant back to his father’s house with the tools. The appellant was not charged.
[4] On October 13, 2013, the appellant, his father and Ms. J. went to the home of the appellant’s paternal grandparents for Thanksgiving dinner. During the course of the Thanksgiving dinner, Ms. J. got into a heated discussion with the appellant’s grandmother. Ms. J. felt that it would have been best for the appellant to have been charged with the theft of his father’s tools so that the appellant would get the help Ms. J. thought he needed. The appellant’s grandmother responded that the matter should stay within the family. Ms. J. told the grandmother that if the grandmother thought she could control the appellant, she should take him.
[5] Ms. J. then grabbed her keys and cigarettes and went outside to leave.
[6] According to Ms. J., the appellant came flying out of the house, and said:
“You fuckin’ cunt, I’m going to kill you. Stay away from my family, you’re gonna die, you’re gonna fuckin’ die, you’re gonna die.”
[7] Ms. J. testified that Mr. L. was holding the appellant back because the appellant was trying to get her. She said Mr. L. was pushing the appellant back and telling him to stop it.
[8] Ms. J. got in her car and left.
[9] Ms. J. testified that the appellant’s family was angry with her. She said that she did not want to testify because the L.’s were the only family she had.
[10] In cross-examination, the defence suggested to Ms. J. that she had made up the threats against the appellant so that she could lay a charge against the appellant and that she had always tried to get the appellant out of his father’s house. Ms. J. denied those suggestions.
[11] Mr. L. testified that he was outside his parents’ house when Ms. J. left the house to get in her car. He said that he heard no threats by the appellant toward Ms. J. He said that the appellant came to the door and yelled:
“Why did you have to start something like this on Thanksgiving?”
[12] Mr. L. said that he ended up pushing the appellant back in the door and told him “to shut up”. Mr. L. said that he did this because there were neighbours out in their front yards and Mr. L. did not want them to hear the appellant yelling.
[13] He said that Ms. J. had walked by him and had gone through the front gate of the yard, about 25 to 30 steps from the house, when the appellant suddenly opened the door and came out of the house.
[14] Mr. L. testified that the appellant was angry.
[15] In cross-examination by the Crown, Mr. L. agreed that Ms. J. had been helpful when he had gained custody of the appellant and that Ms. J. cared about the appellant. He agreed that the appellant had taken his tools without permission and that the appellant could have been charged with theft but that he chose not to lay a charge.
[16] Mr. L. said that Ms. J. should not have brought the matter up on Thanksgiving because everyone was there to be together and to have a good time.
[17] Mr. L. agreed that as a result of the incident it was either Ms. J. or the appellant who then had to leave the home. He agreed that his loyalty was with his son vis-à-vis Ms. J. He testified “… she pretty much dug her own grave. She had to go because of what happened by her pressing charges.”
[18] Mr. L. agreed that it was his philosophy not to involve the police in the situations because they were family matters.
[19] Mr. L. testified that he only became aware of what the appellant was alleged to have done two days after the event when the appellant was released from custody. He also said that it was not until he saw the Crown’s disclosure that he knew the specific words allegedly uttered. Moreover, he had previously thought that the confrontation between Ms. J. and the appellant had taken place in the grandparents’ house. It was only on the morning of the trial he learned that the threats in question had allegedly been made outside the home.
Reasons of the Trial Judge
[20] The trial judge focused on what was said while the appellant was yelling and screaming, to the point where his father had to push him back into the house and tell him to stop it.
[21] The trial judge observed that it appeared that Mr. L.’s recollection of what happened had occurred on the morning of the trial. She also observed that Mr. L.’s evidence as to what his son said, namely, “Why did you have to start something like this on Thanksgiving Day?” did not sound like something that a youth would scream about in his backyard.
[22] The trial judge found Ms. J. to be “forthright, candid, believable” and that “obviously she found herself in a difficult place having advised the authorities as to what Z.L. (the appellant) said to her”.
[23] The trial judge stated that it was clear from Ms. J.’s testimony and her demeanour that the charge and the trial had cost her a lot in that she had been part of the L. family at the time and, as a result of the steps that were taken, she and Mr. L. had separated.
[24] The trial judge noted that Ms. J. testified under subpoena. She found that Ms. J. had testified to the best of her ability.
[25] The trial judge was satisfied that the allegation of defence counsel that she had made up the story to get the appellant in trouble was “preposterous”.
[26] She concluded her short reasons by stating, “Upon consideration of the whole of the evidence, I am satisfied beyond any reasonable doubt that the accused is guilty as charged.”
The Grounds of Appeal
[27] The appellant submits that the trial judge failed to properly apply the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742 when she addressed the conflicting evidence of what was said in the confrontation between the appellant and Ms. J.
[28] The appellant submits that the trial judge was required to state why she disbelieved the evidence of Mr. L. as to what was said and, even if she did not accept that evidence, why she was not left in doubt.
[29] The appellant submits that although the trial judge rejected the theory of the defence, she did not expressly reject the evidence of the defence and that the theory of the defence and the evidence of the defence should not be conflated.
[30] The appellant submits that the trial judge improperly relied on the demeanour of Ms. J. alone to find that her evidence was credible
[31] The appellant submits that the fact that the relationship between Ms. J. and Mr. L. ended after she reported the allegation to the police cannot be proof that what she alleged actually happened. The appellant says that this is a “post hoc ergo propter hoc” fallacy and is equally consistent with Mr. L. retaliating against her for reporting the incident or the relationship breaking down for other reasons.
[32] The appellant submits that the trial judge’s observation, that it was unlikely that a youth would say what Mr. L. testified his son said, is pure speculation.
The Test on a Summary Conviction Appeal
[33] 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.
[34] 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] 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.
[35] 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.
[36] 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] 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.
[37] 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
[38] In my view, the trial judge did not make an error in law nor did she make a palpable or overriding error of fact.
[39] The appellate court must show deference to findings of credibility by a trial judge. However, the trial judge must explain his or her reasons for rejecting evidence that favours the accused. The accused is entitled to some analysis of the evidence and is entitled to know why the evidence is not believed. In assessing credibility, the trial judge must apply the principles of R. v. W.(D.), as outlined at para. 28:
First, if you believe the evidence of the accused, you must acquit.
Secondly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.
[40] Although the principles in W.(D.) must be applied, the court is not required to slavishly recite the formula articulated by Cory J. in reviewing credibility issues as long as the court is alive to the issues raised by W.(D.) when evaluating evidence.
[41] The trial judge did explain why she rejected the evidence of Mr. L. and accepted the evidence of Ms. J. Her decision was supported by the record.
[42] The trial judge referred to the fact that Mr. L.’s recollection of what was said only occurred on the morning of the trial. It was not until the morning of the trial, after defence counsel had shown him certain paperwork, that Mr. L. understood that the incident complained of had occurred outside the house. He was, until defence counsel showed him otherwise, unaware of the fact that the incident, which occurred six months previous, was alleged to have occurred in his presence.
[43] Further, the trial judge found that the evidence of Mr. L. as to what his son said did not accord with what one would expect a young person would scream about in his backyard. She was entitled to draw this conclusion.
[44] The trial judge had the distinct advantage of being able to observe and assess Mr. L. and Ms. J. as they testified.
[45] She found Ms. J.’ evidence to be forthright, candid and believable. The trial judge found, in effect, that Ms. J. had no motive to fabricate her version of what happened. The trial judge found that the court proceedings had cost Ms. J. her relationship with Mr. L. and her place in the only family she had. Ms. J. was testifying under subpoena. In concluding that Ms. J. had no reason to fabricate her evidence, the trial judge did not engage in a post hoc fallacy. This was a reasonable conclusion to draw, on the evidence.
[46] It is clear from the record that it was central to the position of the defence at trial that Ms. J. was motivated to make a false allegation against the appellant because (a) Mr. L. had refused to charge his son with theft of his tools and; (b) Ms. J. wanted the appellant out of Mr. L’s house. This allegation was made so as to put the issue of Ms. J’s credibility squarely before the court. Questions directed to show that a witness has a motive to fabricate evidence are admissible. When the court or a jury is assessing credibility, a motive to fabricate evidence is a factor. However, as noted by the Court of Appeal in R. v. W.B., 2000 ONCA 5751, [2000] O.J. No. 2184 (C.A.), at para. 120, “Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility.” At para. 121, the Court of Appeal continued with this caveat:
What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.
[47] In my view, the trial judge made no error in addressing the allegation of fabrication that the defence put before her. She did not error in taking into account absence of motive as a factor in assessing credibility. Further, she did not offend the caveat set out above.
[48] The trial judge did not, in my view, “conflate” rejection of the theory of the defence with rejection of the evidence of Mr. L. Although she rejected the defence suggestion that Ms. J. had laid the threatening charge because Mr. L. had refused to charge his son with theft of the tools, she rejected Mr. L.’s evidence because, in essence, she found it unreliable. His evidence was assessed as part of the totality of the evidence which included finding that Mr. L. had only addressed in his own mind the alleged events of six months previous on the morning of trial, finding that what Mr. L. said his son yelled did not ring true and finding that the evidence of Ms. J. was credible and consistent with the probabilities of the circumstances of the case. On the totality of the evidence, she was left with no reasonable doubt.
[49] With respect to the objection of the appellant to the trial judge’s comment on the demeanour of Ms. J. and the use of demeanour as a factor in assessing credibility, the Court of Appeal in R. v. Boyce, 2005 ONCA 36440, [2005] O.J. No. 4313, observed that it is appropriate for a trial judge to take demeanour into account as one fact in assessing credibility. At para. 3, the Court stated:
“… trial judges are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all of the evidence and in the full context of the trial.”
[50] In this case, the trial judge did not rely exclusively, nor even centrally, on Ms. J.’s demeanour. It was one factor out of several to which she referred in her decision.
[51] The trial judge provided a path to show how she came to her decision. That path, albeit short, was sufficient for appellate review.
Conclusion
[52] For the reasons given, the appeal is dismissed.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
[53]
Released: July 14, 2015
COURT FILE NO.: YC-14-0050-AP
DATE: 2015-07-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Z.L.,
Appellant
REASONS FOR JUDGMENT
ON SUMMARY CONVICTION APPEAL
Shaw R.S.J.
Released: July 14, 2015
/mls