ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 80/13 SCA
Date: 20150930

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

• and -

MELVIN RAMIREZ TEJEDA
Appellant

Luke Schwalm, for the Respondent
Nicholas A. Xynnis, for the Appellant

Heard: September 15, 2015

Forestell J.

reasons for JUDGMENT

Background

1The Appellant was tried in a summary conviction proceeding in the Ontario Court of Justice alleging two counts of assault and one count of threatening death. On May 6, 2013 the Appellant was found guilty of all charges. He appeals against those convictions.

2The Appellant raises two, related, grounds of appeal. He argues that the trial judge erred in improperly rejecting the evidence of the Appellant and accepting the evidence of the Crown witnesses and he argues that the trial judge provided insufficient reasons for doing so.

Summary of the Facts

3The evidence of the two Crown witnesses, Ms. Almonte and Ms. Scharbay, was that in the early morning hours of January 1, 2013, while they were leaving a discotheque, the appellant struck his then girlfriend, the complainant Ms. Almonte, repeatedly until she was unconscious. Ms. Scharbay testified that during the assault on Ms. Almonte, Ms. Scharbay tried to attend to Ms. Almonte and the Appellant grabbed Ms. Scharbay and flung her out of the way. Ms. Scharbay testified that the appellant continued to strike and to kick Ms. Almonte.

4Ms. Scharbay testified that she took Ms. Almonte to Ms. Almonte’s apartment by taxi. Neither Ms. Almonte nor Ms. Scharbay reported the matter to the police. They did not seek medical attention for Ms. Almonte.

5Ms. Scharbay testified that on February 15, 2013 she received a telephone call from the appellant in which he threatened Ms. Scharbay that she should not ‘fuck with him’. He threatened to punch her in the mouth and said that if he did not do it himself he had people who would do it for him. He also said that he had a gun that he would use. Ms. Scharbay took the threats to mean that the appellant was threatening to kill her.

6The Appellant testified and denied the assaults and the threatening. He testified that as he was leaving the discotheque with the two women, Ms. Almonte lit a cigarette. Because she was pregnant he took the cigarette from her. Ms. Almonte was upset and they argued, but the Appellant testified that he did not touch Ms. Almonte.

7Ms. Almonte fell to the ground. The Appellant testified that he did not know why she fell. She had consumed alcohol that night. The appellant saw that Ms. Almonte had foam at her mouth and believed that she may have had a seizure. The Appellant testified that he and Ms. Scharbay and a friend named Hilberto took Ms. Almonte home in his car. He did not take her to the hospital because Ms. Scharbay said not to do so. He testified that Ms. Scharbay had known Ms. Almonte longer than he had. The Appellant testified that he waited in the car with Ms. Almonte for about an hour and half so that she could sober up before seeing her children. Hilberto and Ms. Scharbay left.

8The Appellant denied phoning Ms. Scharbay on February 15, 2013.

9The accounts of Ms. Almonte and Ms. Scharbay as to how the assault on January 1, 2013 began were somewhat inconsistent. Ms. Almonte testified that the Appellant said that he wanted to leave the discotheque and Ms. Almonte told him that she would stay with her friend, Ms. Scharbay. She stayed with Ms. Scharbay and another friend Hilberto. She saw the Appellant leave. Later she, Ms. Scharbay and Hilberto left the disco. As they left the disco she met the Appellant. She said, ‘I thought you had gone’ and she laughed. The Appellant punched her on the right side of her neck and slapped her. She then lost consciousness.

10Ms. Scharbay testified that the Appellant wanted to leave the disco and they all left together. Ms. Scharbay testified that the Appellant and Ms. Almonte were arguing as they left the disco and that the Appellant punched Ms. Almonte when they were outside.

11There were also some inconsistencies in the accounts given by Ms. Almonte and Ms. Scharbay with respect to their contact with the Appellant after the alleged assaults.

12Ms. Scharbay testified that she took Ms. Almonte home in a taxi and put her to bed. She spoke to her through the day on January 1st, but did not see her until the late afternoon or early evening of January 2nd. Ms. Scharbay testified that she went to Ms. Almonte’s apartment on January 2nd to see how she was. While she was there the Appellant came to pick up clothes. The Appellant told Ms. Scharbay that he was sorry. Ms. Scharbay testified that Ms. Almonte was not really talking to the Appellant. The Appellant was moving his things out of the apartment.

13Ms. Almonte testified that the Appellant was in the apartment when she woke up on January 1st. He told her that he was very sorry and that he was jealous because she was dancing with another man. Ms. Almonte testified that later that same day Ms. Scharbay came to the apartment and Ms. Almonte asked Ms. Scharbay what had happened the night before. Ms. Almonte testified that Ms. Scharbay told her that the Appellant had been hitting and kicking her even after she was on the ground unconscious. Ms. Almonte testified that Ms. Scharbay said that the appellant also hit Ms. Scharbay. Ms. Almonte testified that the Appellant apologized for hitting Ms. Scharbay and said that it was not his intention. Ms. Almonte testified that she questioned the Appellant further on what he had done and he said that he thought she was faking and was not really unconscious. He said that he only kicked her once or twice. He asked Ms. Almonte to forgive him. Ms. Almonte testified that the Appellant moved out near the end of January, not on January 2nd as described by Ms. Scharbay.

14The Appellant denied assaulting either complainant. He testified that he moved out of Ms. Almonte’s home around January 7th or 8th. He continued to have some contact with Ms. Almonte after he moved out, but ended the relationship on January 15, 2013. On February 14, 2013 Ms. Almonte called him to ask if he was going to bring her flowers. He said ‘no’ because the relationship was over. Ms. Almonte then asked for $100 to buy a gift for her mother. He agreed to meet her the next day. He gave her the money the next day. She asked if his decision to end the relationship was final and he said that it was. Ms. Almonte said that he would regret it. The Appellant was arrested on February 15, 2013 following a complaint from Ms. Scharbay that he had threatened to kill her.

The Trial Judge’s Reasons

15The trial judge in his reasons for judgment summarized the evidence of the witnesses and set out the positions of the Crown and the defence. With respect to the Crown’s position, the trial judge stated that, “The Crown agrees that there may have been some inconsistencies in the evidence either by the witnesses themselves, individually, or between the two of them but the charges of assault have been proven by the Crown’s witnesses and they should be accepted. And the accused’s credibility is really in issue and the accused’s version shouldn’t be accepted.”

16The trial judge then gave his reasons for convicting the accused which I will set out in full:

Now, in these types of cases, of course, the Court has to be guided by what the Supreme Court of Canada said in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 and that is in particular the if you believe that evidence of the accused, you must acquit. Well I don’t believe what the accused has said in this case at all in relation to whether he assaulted the two persons or threatened Ms. Scharbay.

Secondly if you do not believe the testimony of the accused but you’re left in reasonable doubt by it, you must acquit. I have no reasonable doubt but that the accused assaulted Ms. Scharbay by grabbing her and then on February 15th, he threatened her if she Ms. Scharbay if she went to the police with what really happened here.

The complainant was prepared to forget about it, but for whatever reason Mr. Ramirez thought that he should speak to Ms. Scharbay about this and in the process he threatened her. And I accept her evidence that she thought he was going to kill her. And she said that in cross-examination when pressed about what she had said in examination in chief.

And the third branch of the W. (D.) case is if you are not left in doubt by the evidence of the accused you must ask yourself what on the basis of the evidence you accept and are convinced beyond a reasonable doubt of the evidence of the guilt of the accused.

Well this court found this case quite straightforward. The two women gave stories that were reasonable and were true, whereas the accused, I don’t believe him when he says he didn’t do the things that the women said he did.

So these three charges are proven beyond a reasonable doubt.

Legal Principles

17The trial judge’s findings were findings of fact based on his findings of credibility. Findings of fact and in particular, findings of fact based on the trial judge’s assessment of credibility are entitled to deference.¹ The degree of detail required in explaining findings of credibility may vary depending on the evidentiary record. As stated in R. v. R.E.M., “The factors supporting or detracting from credibility may be clear from the record. In such cases, the trial judge’s reasons will not be found to be deficient simply because the trial judge failed to recite these factors.”²

18While generally inadequacy of reasons will not be a free-standing ground of appeal, there are circumstances where inadequate reasons justify reversal. As set out in R. v. Sheppard,³ the sufficiency of reasons must be assessed in the context of the circumstances of the particular case. Binnie J. in Sheppard articulated the functional test to be applied on appellate review of the sufficiency of reasons, saying at paragraph 28:

It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge’s reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge’s decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.

19And at paragraph 46:

…Where it is plain from the record why an accused has been convicted or acquitted and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal the appeal court will not on that account intervene. On the other hand where the path taken by the trial judge through confused or conflicting evidence is not at all apparent or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. . . .

20In the case before me there were no difficult issues of law that needed to be confronted. However, there were significant inconsistencies or conflicts in the evidence which were not addressed in the reasons for judgment. The contradictory evidence related to key issues and the record does not otherwise explain the trial judge’s decision in a satisfactory manner. If the trial judge simply chose between the competing versions of events or applied a less demanding standard to the assessment of credibility of the two complainants than he did to the evidence of the accused he would have committed an error. There were certainly legitimate paths to conviction on the record. However, the path taken by the judge cannot be determined by these reasons. It is not apparent why the evidence of the Appellant was rejected, nor is it possible to determine how the inconsistencies in the Crown’s evidence were dealt with.

21The reasons in this case are not sufficient to permit any meaningful appellate review. This is an error of law and the appeal must be allowed.

Conclusion

22In conclusion, therefore, I allow the appeal.

Forestell J.

Released: September 30, 2015

Court File No.: 80/13 SCA
Date: 20150930

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -
  MELVIN RAMIREZ TEJEDA

reasons for decision

Forestell J.

Footnotes

1. 1R. v. W.(R.) (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 at 141-142 (S.C.C.)
2. 2R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No.52 at para. 51
3. 32002 SCC 26, [2002] S.C.J. No. 30