ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 59/15
DATE: 2015/12/04
BETWEEN:
HER MAJESTY THE QUEEN
Crown/ Respondent
– and –
Sonny Wassilyn
Defendant/Appellant
Tyler Koverko, for the Crown/respondent
Maija Martin and John Struthers, for the defendant/appellant
HEARD: November 9, 2015
M.A.Garson
[1] The Appellant, Sonny Wassilyn (“SW”) appeals his convictions in the Ontario Court of Justice on March 30, 2015 on two counts of uttering threats. The Appellant abandoned his sentence appeal at the conclusion of argument.
[2] SW advances two primary grounds of appeal:
i. that the trial judge failed to properly apply the third branch of the W. (D.) test which resulted in a reversal of the burden of proof; and
ii. that the trial judge applied a stricter standard to the evidence of defence witnesses and inappropriately preferred the evidence of Crown witnesses.
[3] For the reasons that follow, the appeal must fail.
Background
[4] Much of the evidence is not in dispute. On May 17, 2014, London police responded to a complaint of aggressive scalping near the Budweiser Gardens arena during the Memorial Cup. Both responding officers were working in an undercover capacity patrolling the area. They were approached by SW who offered to sell them two tickets at a reduced price. The officers declined the offer and carried on towards the area of the complaint.
[5] They were approached shortly thereafter by a second person who offered to sell them tickets. SW came over and advised the second ticket seller, who was working for SW, that these two weren’t interested in buying tickets.
[6] A discussion ensued between PC Comeau and SW with PC Comeau telling SW he was interrupting and SW telling PC Comeau that the ticket seller works for him. PC Comeau tells SW to walk away and SW responds by saying “what are you going to do, make me?”
[7] PC Comeau then repeats that it is time for SW to walk away at which point, according to the officer, SW takes off his sunglasses and rolls up his sleeves and says “I’m gonna knock you and your brother out”. The officer then rhetorically repeats back what SW said and SW replies “what are you gonna do, call the cops”.
[8] PC Comeau described SW as relatively calm at the point in time when he interrupted the conversation the officer was having with the second ticket seller. He also described the positioning of SW when he approached them as being in between himself and the second ticket seller.
[9] The second officer in attendance, PC Brown offered a slightly different version of the events with respect to the positioning of SW when he approached the officers during the second ticket selling opportunity and the demeanour of SW. More specifically,
i. PC Brown suggested SW approached from PC Comeau’s left side and remained there approximately three or four feet away while the second ticket seller was directly in front of PC Comeau - a triangular sort of formation; and
ii. PC Brown described SW as agitated throughout and that he was ticked off that the officers had wasted his time.
Positions of the Parties
SW
[10] SW argues that although the trial judge properly addressed and applied the first two branches of W. (D.), she failed to consider the requirement that if she was not left with a reasonable doubt based on the evidence of the accused, she nonetheless must still be satisfied beyond a reasonable doubt on the evidence of the Crown that the accused is guilty.
[11] SW further submits that the trial judge turned the trial into a credibility contest between witnesses and effectively reversed the burden of proof by:
i. glossing over inconsistencies in the officers’ evidence;
ii. preferring the evidence of the officer’s based on the facts that they took notes contemporaneous with the events; and
iii. assuming an absence of motive to lie on the part of the officers and presuming a motive to lie on behalf of the defence witnesses.
Crown
[12] The Crown argues that the trial judge is not required to expressly articulate the three branches of W. (D.) provided she understands and applies them as she did in this case.
[13] The Crown further contends that the inconsistencies in the officers’ evidence were minor in nature and insignificant and that the trial judge is not required to address every minor inconsistency in her reasons.
[14] The Crown submits that the trial judge did not misapprehend the evidence and was entitled on the evidence to make the findings of credibility and fact that she did.
Standard of Review
[15] A trial judge’s findings of facts attract significant deference from a reviewing court. Absent palpable and overriding error or otherwise being clearly wrong , unreasonable or unsupported by the evidence, they should not be disturbed: see General Motors of Canada Limited v. Johnson, 2014 ONCA 502; Housen v. Nikolaisen, 2002 SCC 33.
[16] A trial judge’s assessment of credibility is similarly entitled to a substantial degree of deference: see R. v. Horton, 2014 ONCA 616.
Discussion
[17] Appellate courts must adopt a substantive approach to reviewing the reasons for judgment and must read them as a whole in the context of the evidence and the arguments at trial. The reasons must reveal a logical connection between the verdict and the reasons for the verdict or the “why” for the verdict: see R. v. R.E.M., 2008 SCC 51 at paras. 35‑37.
[18] A trial judge sitting alone need not expressly state the finding on each piece of evidence or controverted fact, provided the findings as a whole logically link the evidence to the verdict.
The Third Branch of W. (D.)
[19] In the seminal decision of R. v. W. (D.), (1991). 1991 93 (SCC), 1 SCR 742, the Supreme Court of Canada set out a three part test outlining the relationship between the assessment of credibility and the burden on the Crown to prove guilt beyond a reasonable doubt.
[20] For the purposes of this appeal I need only focus on the third branch of the test which provides that if the exculpatory evidence of an accused and his witnesses does not leave the judge with a doubt, the judge must still determine whether on all of the evidence the Crown has proven guilt beyond a reasonable doubt. Simply put, the judge cannot turn the determination into a credibility contest between Crown and defence witnesses, or stated another way, disbelief of the defence evidence does not equate with proof of guilt.
[21] SW points to one portion of the trial judge’s reasons which state:
On all the evidence before me, I find as a fact that the accused did tell the officers he was going to knock them out. The evidence of the defence witnesses here does not raise any doubt in my mind that those words were uttered by Mr. Wassilyn.
[22] I agree with SW that read in isolation, these statements are concerning.
[23] As counsel for SW ably points out, this type of reasoning misstates the third branch of the W.(D.) test and suggests a reversal of the burden of proof to the accused to disprove the truth of the evidence of the officers.
[24] SW relies on the decision of R. v. Mortensen, (2004) 2004 4012 (ON CA), 188 O.A.C. 324 where in reversing the trial judge’s finding and allowing the appeal, the court relied on a specific comment in her reasons where she stated:
However, the evidence supporting the position of Mr. Mortensen does not give me a reasonable doubt that [the complainant’s] evidence is not true. Therefore, the burden is met and I find Mr. Mortensen guilty as charged.
[25] At no time in her reasons in the Mortensen case did the trial judge make an explicit finding that she accepted the complainant’s evidence or that the Crown’s case convinced her of the guilt of the accused beyond a reasonable doubt.
[26] Mortensen is distinguishable on the facts before me. More specifically, the trial judge found:
i. The testimony of the officers was trustworthy and made an explicit finding that she accepted their evidence; and
ii. When read as a whole, her reasons demonstrate that she understood and applied all three branches of W. (D.).
[27] In thorough and detailed reasons, the trial judge made considerable effort to examine all of the evidence, including the evidence called by the defence. Her reasons, viewed in totality, demonstrate that she accepted the evidence of the officers and rejected the evidence of the defence witnesses and based on the whole of the evidence was satisfied of guilt beyond a reasonable doubt.
[28] A trial judge need not fully articulate her analysis in her reasons. It is sufficient that a reviewing court, after reading the reasons as a whole, conclude that the trial judge understood and applied the three branches of W. (D.): see R. v. Stairs, 2007 ONCA 464 at para. 16.
[29] In my view, when read in their entirety, the trial judge’s reasons reflect the required W.(D.) analysis. This ground of appeal cannot succeed.
Applying Different Standards to the Assessment of Evidence
[30] The applicant makes three arguments under this ground of appeal:
i. glossing over inconsistencies in the officers’ evidence;
ii. preferring the evidence of the officer’s based on the facts that they took notes contemporaneous with the events; and
iii. assuming an absence of motive to lie on the part of the officers and presuming a motive to lie on behalf of the defence witnesses.
Glossing Over Inconsistencies
[31] I have earlier described the main inconsistencies raised by the appellant at para. 9 of my reasons. In addition to the location of the appellant and his initial demeanour when he approached, the appellant also outlines two further inconsistencies as follows:
i. That after the appellant threatened the officers, one officer testified that the appellant said “ why don’t you call the police” while the other officer said “ what are you going to do, call the police”; and
ii. That the officers differed on whether the appellant rolled or pushed his sleeves up during the event.
[32] There is little doubt that there are some discrepancies in the evidence of the officers. The trial judge, in her detailed reasons, recognizes many of these inconsistencies and concluded that they are “not significant” and do not detract from the otherwise trustworthiness of the testimony: see Reasons for Judgment at p.11-lines 18-21.
[33] I do not agree that she glossed over these inconsistencies. She addressed many of them in her reasons. She need not refer to them all.
Preferring the Evidence of the Officers Based on Note Taking
[34] The trial judge noted in her reasons for judgment that the defence witnesses did not have any notes to refresh their memories and that they spoke without the assistance of any notes. The trial judge further observed that the officers had contemporaneous notes that they referred to from time to time to refresh their memories, and that the officers were “clear and consistent” in their recollection of the words uttered: see Reasons for Judgment at p.10 lines 9-17 and p.11 at lines 17-25.
[35] The appellant argues that the trial judge reasons backwards by concluding that the officers were more credible because they had a clearer recall of the events, or in effect, saying that the appellant and his witnesses are lying because the officers are telling the truth: see R. v. Mah (2002), 2002 NSCA 99, 167 CCC (3d) 401 (NSCA) at para. 51.
[36] I do not agree.
[37] In the Mah case, the trial judge did not expressly instruct himself in the W. (D.) formula nor did he at any point in his reasons state that he had considered all of the evidence in light of the reasonable doubt standard. As well, Cromwell J. (as he then was) found serious misapprehensions of the evidence alongside noting that the trial judge relied on stereotypical views of how men and women react rather than applying the reasonable doubt standard to the available evidence.
[38] On the transcript of the proceedings and the reasons before me, the trial judge clearly instructs herself on and applies the formula set out in W. (D.), clearly considers the evidence as a whole and finds as a fact that the words that constitute a threat were uttered by the appellant to the officers. Rather than misapprehend the evidence the trial judge recognized from the outset that this was a case where the central issue was credibility and went on to give detailed reasons for her findings of fact.
[39] The presence of notes for the officers and absence of notes for the defence witnesses is one of many factors the trial judge considers in assessing credibility.
[40] Where credibility is a determinative issue, this court must show appropriate deference to the determinations of the trial judge and intervention will be rare.
[41] I am satisfied that the trial judge turned her mind to the evidence of the appellant and his witnesses and, looked at in the context of the entirety of the evidence, was not of the view that such evidence raised a reasonable doubt and was satisfied that on the evidence as a whole, the Crown had proven the essential elements of the offence beyond a reasonable doubt.
Assuming Absence of a Motive to Lie
[42] The appellant argues that the trial judge applied a more stringent standard to the defence evidence by presuming a motive to lie on behalf of the defence witnesses and assuming an absence of motive to lie on the part of the officers.
[43] All three defence witnesses were asked about their willingness to lie and whether they colluded with the appellant in cross-examination and all three denied both suggestions.
[44] The trial judge noted that there was no evidence of any particular malice toward the accused on the part of the officers.
[45] Although the appellant accepts that the trial judge is permitted to consider the absence of motive to lie in assessing the credibility of a witness, the appellant argues that there is no evidence upon which the trial judge could properly conclude the absence of a motive to lie on the part of the officers. In other words, the defence does not have to prove a motive to fabricate on the part of the officers as this would amount to a reversal of the burden of proof: see R. v. L. (L.) (2009), 2009 ONCA 413, 244 CCC (3d) 149 (OCA) at para. 42 and R. v. B. (M.) 2011 ONCA 76 at para. 32.
[46] I do not agree.
[47] It was open to the trial judge to find an absence of motive to lie on the part of the officers. She based this finding on a number of factors including:
i. The role of the officers on this day in keeping citizens happy at the Memorial Cup week;
ii. The notion that it was inconceivable that they would make any effort to initiate a fight in an alley or a parking lot; and
iii. The lack of any evidence that the officers knew the accused at any previous time:
See Reasons for Judgment at p.11, line 25-P.12 line 5.
[48] Read as a whole, the reasons of the trial judge do not demonstrate that she has applied a more stringent standard to the defence evidence or reversed the burden.
[49] It was also open to the trial judge to conclude that the defence witnesses were affected by their relationship to the appellant. Rather than conclude that they were lying, the trial judge found their evidence to be not particularly reliable and that they were “clearly mistaken”. She was entitled to do so.
[50] Trial judges are in a unique and preferred position to both see and hear witnesses. It is not for this court to substitute its’ views on assessments of credibility and findings of fact, absent palpable and overriding error.
[51] Trial judges are presumed to know the law that they deal with day in and day out in criminal courts.
[52] The trial judge, through her reasons, appears to have listened carefully to the evidence of the witnesses and to have observed them giving this evidence during the trial. She was alive to the issues as a result of the thorough submissions of defence counsel. A lifeless transcript cannot possibly simulate the actual unfolding of the narrative at trial: see R. v. J. H. 2005 253 (OCA) at para. 46.
Conclusion
[53] As I observed at the outset, an appellant, to succeed on an appeal on the basis misapprehension of the evidence, must recognize that this court starts from the stance of deference towards the trial judge’s finding of facts and credibility.
[54] Appellate interference is only warranted where the misapprehension is material and plays an essential part in the reasoning process that results in a conviction. On the whole, the reasons of the trial judge show that the judge has directed her mind to the decisive issue of whether the defence evidence, considered in the context of all of the evidence, raises a reasonable doubt.
[55] The trial judge need not describe every consideration leading to a finding of credibility. Reasonable inferences may be drawn from the findings. This court has neither the duty nor the right to reassess the evidence at trial. The reasons of the trial judge do not deprive the appellant of his right to a meaningful review and are sufficient to discern the foundation for the convictions.
Disposition
[56] In the result, the appeal against conviction is dismissed.
“Justice M. A. Garson”
Justice M.A.Garson
Released: December 4, 2015
COURT FILE NO.: 59/15
DATE: 20151204
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Sonny Wassilyn
REASONS FOR JUDGMENT
GARSON J.
Released: December 4, 2015