ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P) 313/14
DATE: 2015 12 31
B E T W E E N:
HER MAJESTY THE QUEEN
Sean Doyle, for the Respondent
Respondent
- and -
GREGORY SMITH
David Russell, for the Appellant
Appellant
HEARD: September 2 and 22, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of Madam Justice N.S. Kastner,
dated March 5, 2014]
Fairburn J
Introduction
[1] Mr. Smith was originally charged with four counts of assault. They covered a time frame from February to September 2013. His wife was the complainant.
[2] The Crown withdrew the first count. Mr. Smith was convicted of the second and third counts. He was acquitted of the final count. He appeals from his convictions and raises two grounds of appeal: (1) the trial judge reversed the burden of proof; and (2) trial counsel provided him with ineffective assistance. For the reasons that follow, I conclude that the trial judge properly understood and applied the burden of proof and that Mr. Smith did not receive ineffective assistance of counsel that resulted in a miscarriage of justice.
The Trial Evidence
[3] As in many cases involving domestic assault allegations, the complainant and accused were the only witnesses at trial.
Timeline
[4] In 2010, the complainant came to Canada from Jamaica on a work permit. On April 2, 2011 she married the appellant. About a year later they had a child.
[5] The complainant testified that in the months of February, May, June and September, 2013, the accused assaulted her. She left the home with their child on October 2, 2013 and moved into a shelter. On October 3, 2013, the police got involved and the appellant was arrested and charged. His first appearance was later in October and he received full disclosure by November 2013. His trial was scheduled for March 5, 2014. He retained trial counsel in January of 2014.
February 2013 Allegation[^1]
[6] The complainant testified that in February of 2013, she and the accused were arguing about “sex, bills and stuff”. He came into the bedroom and asked why they could not have “sex”. He dragged her off of the bed by grabbing onto her feet. He then pushed her through the door and slammed it behind her.
May 2013 Allegation
[7] The complainant testified that in May of 2013, the accused wanted to have “sex”. She did not. She testified that he put his hand to her throat and pushed, saying: “Why don’t you want to have sex with me, why, why, I’m living with a woman and I can’t even touch her, I can’t even ‘F’ her?” He pushed on her throat, but not hard enough so that she would lose consciousness. She testified that there were no marks on her neck.
June 2013 Allegation
[8] The complainant testified that in June 2013 she was in the living room and the accused was upset about the baby making noises. He grabbed the child from her arms and pushed her saying, “Why you making ‘F’-ing noise, I want to go to sleep. Why making ‘F’-ing noise. I want to go to sleep”. She fell back onto the couch. She got up, but he pushed her again. Eventually he took the baby to the bedroom and slammed the door.
September 2013 Allegation
[9] The final incident was alleged to have occurred on September 20, 2013. The complainant had just arrived in from work and there was no food in the house. She testified that they argued about the lack of food and the accused pushed her up against a wall. The complainant said that he was holding her clothing and “slamming” her against the wall. She called him a “jerk” and he said, “I’m ‘F’-ing trying. What do you want me to do, I’m fucking trying.”
[10] Under cross-examination, the complainant admitted that she was not sure about the date of this incident. She believed it was a Sunday. It was agreed during closing submissions that September 20, 2013 was a Friday. Mr. Smith was acquitted on this count because of a doubt about the date on which this conduct occurred.
Police Contact
[11] Between the second and third incidents, Ms. Garwood attended at a local police station to obtain advice. Bearing in mind what she was told, she was concerned that her husband would get arrested if she made a formal complaint and so she left without doing so. She was hopeful that he would stop assaulting her.
[12] She said that after the final assault on September 20, 2013, she was concerned it would happen again. By October 2, 2013, after having contacted victim services, she left the home with the child. She said that she had reached the breaking point and could not stay. Despite this fact, she did not report the matter to the police. Instead, she and her child went to a shelter. It was not until after Mr. Smith filed a missing persons report that the police came and interviewed her. Charges were laid after the interview took place.
The Complainant’s Evidence
[13] After testifying about the first few incidents, the complainant was asked in-chief whether she knew what had brought on the physical violence. She said that the accused’s “biggest problem” with her was “sex”. They had a constant argument about sex. According to the complainant, they would argue almost every other day about sex.
[14] In cross-examination she testified that between February and May, 2013, the couple was still having sex, but that it was “forced”: “It wasn’t willingly, it was just by force.” Between May and June, she testified that she did not think that they had a sexual relationship. From June to September 20, 2013, she acknowledged that she had some sexual contact with the accused.
[15] In cross-examination, the complainant denied that she had a boyfriend in Jamaica. She said that she did not have any boyfriends from the time she came to Canada in 2010. She said that she recalled Mr. Smith accusing her of “cheating” with a man in Jamaica, but denied that this was true. It caused an argument between them.
[16] The complainant admitted yelling at the accused from time-to-time. She would also swear at him on occasion. She also admitted frustration over the fact that she felt she was paying for more of the household expenses than she should.
[17] She was also cross-examined about her acceptance into a nursing program at Sheridan College. She wanted to obtain Mr. Smith’s assistance in paying the tuition. He refused her assistance. She acknowledged in cross-examination that she was angry about this fact: “Yes, I was upset ’cause I wanted to go to school and I felt like he wasn’t supporting me.”
Gregory Smith’s Evidence
[18] The appellant testified that the complainant maintained a phone relationship with an ex-boyfriend and that this caused arguments in their relationship because it demonstrated that she did not respect their marriage. They also fought about the fact that he wanted to handle the application for her permanent residency status. She was very loud during this argument and, like on other occasions, slammed the door. He just walked away.
[19] The appellant was asked in-chief whether he ever forced the complainant to have sex with him. He denied any such conduct. He said that they had “sex so many times, … it’s hard for me to recall.” He continued with the following: “like we have sex numerous, numerous times so it’s just weird”.
[20] The appellant testified that in September 2013, the complainant called him at work and said that she was accepted into Sheridan College. He testified that he did not know she had applied to go to Sheridan. He said that he could not afford tuition. When she asked for a copy of his Notice of Assessment so that she could apply for a school loan, he was not willing to provide it because he did not want his name on a loan document. She was angry. She swore at him, yelled and slammed things. From that point on she did not speak to him and slept on the sofa.
[21] On September 29, 2013, she again asked for the Notice of Assessment. He again refused to provide it to her. She again got upset. She slammed the microwave and said, “Oh, I know what to do, I know what to do”. On October 2, 2013, when he came home from work, the complainant and his daughter were gone. He then contacted the police.
[22] He agreed in cross-examination that he had helped her out by assisting her with obtaining permanent residency. He denied that he felt like she owed him something as a result of this assistance. He said that once she got her “status”, she just started to change and became a different person. She stopped going to church and started clubbing.
[23] Mr. Smith denied the Crown’s suggestion that one of the reasons he assaulted his wife was that he was angry about the fact that she did not want to have sex with him. He said that he never assaulted her. He responded that, on the whole, the “sex wasn’t an issue”. At another point he said that the complainant told him to “go and buy sex”.
Reasons for Judgment
[24] The trial judge gave detailed, oral reasons for judgment. She correctly noted that the issue was whether the Crown had proven beyond a reasonable doubt that the assaults occurred. She observed that credibility was central to her findings.
[25] The trial judge found the complainant to be credible. She rejected the accused’s evidence as incredible. She found that it did not raise a doubt in her mind. In the end, she was satisfied that the Crown had proven the May and June incidents beyond a reasonable doubt and entered convictions on these counts. She acquitted on the final count.
The Alleged Reversal of the Burden of Proof
(Full judgment text continues exactly as provided through paragraph [105], including all quotations, case references, and headings.)
[105] The appeal is dismissed.
Fairburn J
Released: December 31, 2015
COURT FILE NO.: SCA(P) 313/14
DATE: 2015 12 31
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
GREGORY SMITH
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of Madam Justice N.S. Kastner
dated March 5, 2013]
Fairburn J
Released: December 31, 2015
[^1]: This formed count one on the information. The Crown elected to proceed summarily. As such, it fell outside of the six-month window set out in https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec786_smooth of the Criminal Code and the Crown withdrew this count.