R. v. Coxall, 2015 ONSC 709

COURT FILE NO.: CR-14-30000031-00AP

DATE: 20150130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEVIN COXALL

Luke Schwalm, for the Crown, Respondent

Bernadette Saad, for the Appellant

HEARD: January 12, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT

BACKGROUND

[1] The complainant and the Appellant have two children together. The Appellant is the father. He had full custody of the children. The complainant saw the children on weekends. Custody and access were regulated by a court order. On September 18 2013 the complainant was meeting the Appellant at a Tim Horton’s at Markham and Lawrence in the City of Toronto in order to transfer the children. The location was carefully chosen because it was very public, and near a police station. There is a considerable amount of acrimony between the two of them.

[2] The complainant’s evidence is that the Appellant threatened to harm her. She says that she fled into a nearby Money Mart. She says that she called 911, but then left the Money Mart when an employee told her that she could not stay. She says that she left, saw that the Appellant was not there, and jogged home. She filed a police statement a few days later.

[3] The Appellant’s evidence was that he called her the equivalent of a “voodoo woman”. He agreed that she fled into a Money Mart. He left.

[4] Madam Justice Hackett, the trial judge, found that the Appellant had, in fact uttered a threat to the complainant. She noted that the Appellant and the complainant had two very different versions of the events of that day. She accepted the evidence of the complainant. She gave detailed reasons for finding her credible. In fact, she enumerated seven reasons. She also found the Appellant not to be credible. She gave detailed reasons for that finding as well, listing eleven reasons. She found him guilty.

[5] In my respectful view, the trial judge made no errors requiring appellate intervention. For the reasons that follow, the appeal is dismissed.

ISSUES:

[6] The Appellant makes four arguments:

(1) The trial judge shifted the burden of proof to the Appellant;

(2) The trial judge failed to resolve inconsistencies in the evidence of the complainant:

(3) The trial judge made unjustified findings of credibility against the Appellant;

(4) The trial judge subjected the Appellant’s evidence to greater scrutiny than complainant’s evidence.

ANALYSIS:

[7] This was a classic credibility case. The complainant gave one version of events. The Appellant gave a different version of events. The trial judge resolved those differences by finding the complainant to be credible and the Appellant to be incredible.

[8] A trial judge has the advantage of hearing and seeing the witnesses. As appeal judgment after appeal judgment has pointed out, a lifeless transcript can never reflect the true dynamics of the trial process. That is why appellate courts are, rightly, so hesitant to second-guess the credibility findings of a trial judge. Trial judges enjoy a great deal of deference in this area. Appeal courts will not intervene unless a trial judge fails to articulate how he or she resolved credibility issues: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 26.

Did the trial judge shift the burden of proof to the accused?

[9] Ms. Saad, on behalf of the Appellant, argued that the trial judge did not consider the possibility that she could believe some of his evidence, or be left in a state of reasonable doubt despite not believing his evidence. In other words, according the Appellant, the trial judge failed to properly apply the second part of the test in R. v. W.D., 1991 93 (SCC), [1991], 1 S.C.R. 742:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony 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 that evidence of the guilt of the accused.

[10] Ms. Saad’s noted that the trial judge did not mention that she could believe some, none, or all of the Appellant’s evidence. In particular, Ms. Saad noted that the trial judge appeared to find the Appellant’s denial that he threatened the complainant somewhat equivocal. She referred to this paragraph of the trial judge’s reasons:

Fifthly, when asked twice about the threat, he never denied it until late in his testimony. The first time he was asked, his answer was, “the only thing I can remember was the voodoo term”, suggesting it was possible other things were said that he did not remember. When he was asked a second time, he said “I don’t remember threatening her.” There was no flat denial until later in his testimony.

[11] Ms. Saad argued, in effect, that this paragraph showed that the trial judge misunderstood the second part of W.D. The trial judge reversed the burden of proof because she required an explicit denial and made an adverse finding of credibility in the absence of one.

[12] I respectfully disagree. The trial judge is not required to advert to a particular formula, or follow a particular route, in assessing the credibility of the accused. The real question is whether, on the whole of the evidence, the trial judge was left with a reasonable doubt about the guilt of the accused: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paras. 6-8.

[13] Furthermore, the reasons of the trial judge must be read as a whole. An appellate judge should not place the reasons under microscopic analysis: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at paras. 19-20.

[14] Finally, the trial judge did, in fact, apply the second branch of W.D. After setting out twelve areas, point by point, where she had concerns about the Appellant’s crediblity, she said:

I find for all the reasons described, that I do not believe his evidence. I do not think that it is a situation where his evidence might reasonably be true. I reject his evidence. Having said that, that does not end the matter.

[15] In my respectful view, where the trial judge used the language of “might reasonably be true” she was adverting to the second part of the W.D. test. She was clearly alive to the principles of W.D. and applied them to the evidence of the Appellant.

Did the trial judge fail to resolve inconsistencies in the evidence of the complainant?

[16] The trial judge set out, in detail, all of the reasons that she found the complainant to be a credible witness. She noted that the complainant was not a sophisticated woman. The complainant herself mentioned that she spoke in broken English. These were important factors that the trial judge was entitled to consider. Ultimately, the Appellant’s argument is that the trial judge should have found the complainant not to be credible based on what the Appellant considers to be the inconsistencies in her evidence.

[17] A trial judge is not required to resolve all of the inconsistencies in a witness’s evidence, or advert to all of the evidence. A trial judge is required to justify and explain the result: Dinardo.

[18] There were some inconsistencies in the complainant’s evidence. Ms. Saad, in her detailed and thorough factum, set out several areas where she argued that the trial judge failed to resolve them.

[19] I am not, however, satisfied that the alleged inconsistencies were inconsistencies at all after reviewing the transcripts.

[20] For example, the Appellant’s counsel pointed to the fact that the complainant denied that there was a relationship between the Appellant and the complainant, despite the two of them having children together. She asked, rhetorically (and not unreasonably) how it is that a person can have two children with another person and still deny a relationship. A reading of the transcript, however, makes it reasonably clear that the complainant was simply pointing out that she and the father of her children did not have a current relationship. She was not denying a previous relationship. Furthermore, relationships, and how those relationships are characterized, are varied as people themselves. I do not think much can be read into that example. I do not see how the trial judge misapprehended that evidence.

[21] As another example, the Appellant’s counsel argued that in chief, the complainant explained the delay in reporting to the police on the basis that she might be over-reacting to the incident and concern about the family law proceedings. However, in cross-examination, she first said that she had difficulty expressing herself and then that she was concerned about her children. In fact, a reading of the transcript shows that the complainant was consistent – she simply used different language. In chief, she mentioned the family law proceedings. In cross, she accepted that she had told the police that she was concerned about access to her children. I see no substantive inconsistency.

[22] In any event, even if the trial judge failed to resolve the inconsistencies, that failure must amount to a misapprehension of the evidence. If there were errors, those errors must be central to the reasoning process. Otherwise, an appellate court is not justified in intervening: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, [1995] O.J. No. 639 (C.A.). The Appellant argued that the trial judge made errors, but did not make the link between the errors and the reasoning process. Even assuming that there were errors, without that link, the argument must fail.

Did the trial judge make unjustified findings of credibility against the Appellant?

[23] In her factum, Ms. Saad set out four critical findings made by the trial judge that, she argues, were not supported by the evidence. Notwithstanding her very full and comprehensive analysis of each alleged unsupported finding, I cannot accept her argument. In my respectful view, the Appellant simply disagrees with the trial judge’s interpretation of the evidence. I will set out two examples.

[24] Ms. Saad points to the trial judge’s comment that the Appellant had not been respectful to the complainant. Ms. Saad’s point is that the Appellant was not on trial for being disrespectful, he was on trial for uttering threats. On its face Ms. Saad’s point is valid, but I do not think that is what the trial judge did. The trial judge was pointing to the fact that the Appellant’s entire course of conduct was consistent with the uttering of the threat. When viewed in the overall context of her reasons, the trial judge’s finding was supported by the evidence and open to her to make. The actus reus of the offence is the speaking of words that constitute a threat. The trial judge was viewing those words in the context of the events. I do not find that she crossed the line by trying the Appellant for his attitude.

[25] Ms. Saad also argues that the trial judge erred when she pointed out that the Appellant had changed his evidence about being upset. I disagree. In examination-in-chief, the Appellant testified that he called the complainant a “voodoo woman” and explained what that meant. He testified that he was disappointed with her, rather than upset. However, in cross-examination, he pointed to the complainant’s “negative energy” and said this:

I will agree with you, upset to the point, meaning upset to me, would be more like I was disappointed. Upset, I think people would react or they would think negative. I was just like – that is why I always looked at her and say the voodoo thing because it comes back to that negative energy again.

[26] In my view, a reading of the transcript indicates that it was open to the trial judge to find that the Appellant had changed his evidence. The change must be seen in the context of the trial judge having had the advantage of hearing and seeing the witnesses. As well, changes of emphasis and demeanour cannot be fully captured on a transcript: R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480, [2005] O.J. No. 39 (C.A.) at para. 46

[27] Ultimately, the trial judge accepted the complainant’s evidence over the Appellant’s evidence. That is really what the Appellant’s appeal is about. A trial judge is entitled to do this, as long as she does not fall into the trap of making the trial a credibility contest – and since the trial judge properly applied W.D. she did not do that. A considered decision to accept the complainant’s evidence and reject the Appellant’s evidence does not convert a case into a credibility contest or amount to a violation of the principles in W.D.: R. v. (D.)J.J.R. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.)

Did the trial judge subject the Appellant’s evidence to greater scrutiny than the complainant’s?

[28] A trial judge must not subject the evidence of the accused to a greater level of scrutiny than the evidence of the complainant: R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53, 26 C.R. (5th) 319, 121 O.A.C. 355, [1999] O.J. No. 2357 (C.A.). At para. 17 of Gostick, Finlayson J.A. for the Court “warned against a process of reasoning that accepts the complainant’s credibility on the basis of demeanour, at the outset, and then proceeds to discredit the contrary evidence.” In Gostick the trial judge uncritically accepted the evidence of the complainant and conducted no analysis of contradictions or issues raised in cross-examination. The trial judge then conducted a cursory review of the defence evidence and discounted it based on the uncritically accepted Crown evidence.

[29] I agree that if the trial judge had done that, she would have erred. That is not, however, what happened. In order to succeed on this ground, the Appellant must be able to point to something more than a mere disagreement about the interpretation to be placed on a particular piece of evidence, or even a mere factual error. There must be something sufficiently significant that the “heavy door of deference is opened to the domain of the trial judge, where credibility is assessed”: R. v. Phan, 2013 ONCA 787, 313 O.A.C. 352, [2013] O.J. No. 5894 at paras. 31-34. It is not enough that the trial judge failed to point to a particular piece of evidence or emphasised a particular piece of evidence. As Doherty J.A. pointed out in J.H., it is also not enough that a different judge might have come to a different assessment of credibility. There must be something in the reasons or the record that “makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant”: J.H. at para. 59.

[30] I can see nothing in the reasons or the record that suggests the trial judge applied different levels of scrutiny to the evidence of the Appellant and the complainant – or even analyzed them differently. The trial judge analyzed the evidence of the Appellant, applied the principles in W.D., and then determined that based on the whole of the evidence she was satisfied of his guilt beyond a reasonable doubt. She listed multiple reasons why she accepted the evidence of the complainant, and listed multiple reasons why she rejected the evidence of the Appellant, and why his evidence did not leave her in a state of reasonable doubt.

DISPOSITION

[31] The appeal is dismissed.

R.F. Goldstein J.

Released: January 30, 2015

CITATION: R. v. Coxall, 2015 ONSC 709

COURT FILE NO.: CR-14-30000031-00AP

DATE: 20150130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEVIN COXALL

REASONS FOR JUDGMENT

R.F. Goldstein J.