ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Andrew T.G. Sadler, for the Crown
Respondent
- and -
Spruce Schintz,
David Kiesman, for the Appellant
Appellant
HEARD: February 12, 2016, at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons On Summary Conviction Appeal
1This is an appeal by the accused, Spruce Schintz, from his conviction after trial on a charge of assault on his common law spouse, Paula Dodd.
2There were only two witnesses at trial – Ms. Dodd and Mr. Schintz. The conviction turned on the trial judge’s assessment of the credibility of the two witnesses.
3On the evening of August 2nd/3rd, 2016, Mr. Schintz and Ms. Dodd each drank about four beer before they went to an outdoors party. There they consumed more alcohol. They returned home and drank another beer. An argument began after Ms. Dodd lit a cigarette.
4Mr. Schintz went inside the house while Ms. Dodd stayed outside. Mr. Schintz testified that he locked the doors on Ms. Dodd because when Ms. Dodd got angry she would get destructive and abusive. Ms. Dodd testified that she walked into the residence through the door, which was not locked. She agreed that there was a time when she was locked out of the house and climbed in through the window, although she said she believed it occurred the following weekend, August 9th/10th.
5Ms. Dodd said that she went into the bathroom. Mr. Schintz came in. They argued. Then Mr. Schintz got really mad and pushed her. She flew three or four feet across the bathroom and landed on a towel rack which broke.
6Mr. Schintz said that after Ms. Dodd was able to get into the house, she went into the bathroom. He decided to go downstairs to sleep. As he left their bedroom and headed towards downstairs, Ms. Dodd “came at” him out of the bathroom. He said he did not touch or push her. He said the towel rack was still intact when he was there but it was broken the next morning. He did not know how it came to be broken because he was downstairs. He said that after he went downstairs everything was fine. “She didn’t bother me again.”
7On the following weekend, August 9th/10th, the parties had another argument at home after returning from a volunteer firefighters’ social. Ms. Dodd called 911. She said that Mr. Schintz was yelling at her so she hung up, knowing there would be a call back. The police arrived. At that time, Ms. Dodd reported the incident of August 2nd/3rd. Photographs were taken by the police of bruising to her arms that she said she suffered when she was pushed into the towel rack by Mr. Schintz on August 2nd/3rd. The police charged Mr. Schintz with assault in relation to the alleged incident of August 2nd/3rd.
8The trial judge accepted the evidence of Ms. Dodd and rejected the evidence of Mr. Schintz.
9On this appeal, the appellant argues that in assessing credibility, the trial judge:
(1) misapprehended the evidence;
(2) rejected the appellant’s testimony on points that went unchallenged in cross-examination; and
(3) subjected Mr. Schintz’s testimony to a different level of scrutiny than the testimony of Ms. Dodd.
10I agree that the trial judge’s rejection of the appellant’s evidence is tainted by legal error. I would, therefore, allow the appeal and order a new trial.
Discussion
11In assessing credibility, the trial judge focused on what each of Mr. Schintz and Ms. Dodd’s said about drinking on the evening of August 2nd/3rd:
They disagree with respect to how much they consumed. They do agree that they both drank approximately the same amount as the other. She puts the number of drinks higher than he does. She says that they were in a similar condition. She describes herself as “not sober” or “intoxicated” but he says he was not intoxicated. This type of evidence from Mr. Schintz continues throughout the evidence. Always when there is a contest between her behaviour and his, she is the one who is at fault or wrong when he is not. She admits her failings as well as her strengths whereas in his mind she is all wrong and he is not.
12This was Mr. Schintz’s evidence on that point:
Q: And how many beers would you say that Paula consumed that night?
A: I would say she had the same amount as I did.
Q: Would you say that you were intoxicated?
A: Not overly, no.
Q: Okay. Where would you put yourself in the scale of intoxication?
A: Four out of 10, possibly.
Q: And could you observe to see if Paula was intoxicated?
A: She was intoxicated, yes.
Q: And what level of intoxication would you say she’s at?
A: Slightly higher than myself. Maybe a six or seven.
13The trial judge’s reasons also focused on Mr. Schintz’s testimony that there was no contact between him and Ms. Dodd in the area of the bathroom:
So there was no contact according to him, yet she came at him, whatever that might mean. And then he testified that “She did not bother me again.” So how was she coming at him without touching him or doing anything would amount to “after that she didn’t bother me again”. I don’t know what the bothering was.
14Later the trial judge stated:
This evidence, her evidence is believable. He is vague and inconsistent. It does not explain anything that happened. He says things that are not supported by any of the evidence nor any explanation from him. According to him, she comes at him but did not touch him. Nothing happens. He went downstairs and after that she does not bother him, whatever bother there is in her stepping towards him. His evidence is unbelievable and does not make any sense.
15Mr. Schintz was asked in direct examination to explain what he meant when he said that Ms. Dodd “came at him”. He replied:
She was coming towards me. The way the hallway goes, the bathroom has a short, perpendicular hallway. And she was coming out that direction at me.
16In cross-examination, the following exchange took place between the Crown and Mr. Schintz:
Q: Now, you mentioned in the, that she was in the bathroom and came out of the bathroom towards you?
A: Yes, sir.
Q: How far away were you from her?
A: Well, there was about six feet between the hallway and where I said that small, perpendicular hallway heading into the bathroom. And the bathroom door is about six feet away from where the main hallway crosses paths with that bathroom hallway.
Q: How close to you did she get?
A: No closer than the door by the time I was gone past her.
Q: I’m going to suggest that you went into the bathroom while she was in the bathroom?
A: I did not.
17In cross-examination, Ms. Dodd was asked the following questions and gave the following answers:
Q: Do you remember, I’m going to suggest to you that at this point in this confrontation you were actually moving towards Mr. Schintz?
A: I might have been trying to get out of the bathroom.
Q: So you might have been coming towards him?
A: M’hmm.
18In my opinion, these paragraphs indicate that the trial judge misapprehended evidence that she found critical in dismissing Mr. Schintz’s credibility.
19First, the trial judge commented on what she saw as Ms. Dodd’s candour compared to Mr. Schintz’s lack of candour. As an example of this, she contrasted the willingness of Ms. Dodd to admit that she was intoxicated on the evening in question, while finding that Mr. Schintz said that he was not intoxicated, even though they had the same amount to drink. In fact, Mr. Schintz said only that he was not “overly” intoxicated. He put himself at a level of four on a scale of ten of intoxication. He said that Ms. Dodd’s level of intoxication was slightly higher than his, six or seven out of ten. That, in my view, is far from Mr. Schintz saying that Ms. Dodd was intoxicated while denying that he, himself, was intoxicated.
20Second, the trial judge was critical of Mr. Schintz’s evidence that Ms. Dodd “came at him”. She dismissed this evidence with the comment “whatever that might mean”. Mr. Schintz did, in fact, explain what he meant by that phrase, namely that Ms. Dodd was coming toward him while she was inside the bathroom and he was outside in the hallway. Ms. Dodd, herself, agreed in cross-examination that she “might have been coming towards him”.
21The trial judge also dismissed this evidence of Mr. Schintz on the grounds that after Ms. Dodd allegedly “came at him”, there were no “results” and she did not bother him again. I am unable to understand how the absence of “results” after Ms. Dodd came towards Mr. Schintz or the fact that she no longer bothered him after he went downstairs made Mr. Schintz’s evidence less credible.
22I also am unable to determine how Mr. Schintz’s testimony could reasonably be said to be “vague” and “inconsistent” because of his evidence on intoxication and what happened at the bathroom. Although his evidence as to whether or not he pushed Ms. Dodd was inconsistent with what Ms. Dodd said, it was not inherently inconsistent, nor inconsistent with objective facts. He acknowledged that he saw bruising on Ms. Dodd’s arms the next morning and that the next morning he saw that the towel rack was broken. He explained that Ms. Dodd often had bruises from work. He readily agreed that it was possible that she got the bruises from coming into contact with the towel rack that resulted in the towel rack being broken. He simply denied that his actions lead to the bruising or the breaking of the towel rack. That does not make his evidence “vague” or “inconsistent”.
23In my view, the misapprehension was material because the trial judge relied on those misapprehensions as key factors in rejecting the appellant’s evidence.
24I also find that the trial judge subjected the appellant’s evidence to a higher level of scrutiny than that of Ms. Dodd.
25Having determined that the appellant’s evidence was “vague” and “inconsistent”, the trial judge failed to comment on why Ms. Dodd’s confusion in her recollection of events was not a factor to be considered.
26Ms. Dodd admitted that she was “drunk” and “intoxicated”. She was confused as to whether Mr. Schintz had locked the doors on August 2nd/3rd or August 9th/10th.
27Early in her evidence Ms. Dodd said she had tried to lock herself in the bathroom because she did not want to argue with Mr. Schintz and she knew things were going to go bad. She said, “we hadn’t been getting along all week since the assault had happened. And so I was just trying to avoid the situation”. When the Crown asked her what assault she was referring to, she corrected herself to say that she put herself in the bathroom on the night of the alleged assault.
28These inconsistencies were not critically examined by the trial judge. There was no comment on the possible effects of Ms. Dodd’s admitted drunkenness on her ability to accurately recall what had happened.
29The trial judge repeatedly referred to the fact that Mr. Schintz had locked Ms. Dodd out of the house and that “he did not care whether she got in or not …”. The frequent reference to the locking out appears to have led to an adverse inference about Mr. Schintz’s credibility. Immediately after the final reference to locking Ms. Dodd out of the house, the trial judge stated:
When I consider the whole of the evidence, I am satisfied beyond a reasonable doubt that the accused pushed the complainant as she described and that his mental state was such that he would be aggressive in that way given the way he treated her with respect to locking her out of her own home and making the demands on her that he did.
30I assume that in her use of the word “demands” the trial judge was referring to Mr. Schintz’s objection to Ms. Dodd smoking.
31In effect, the trial judge found that by locking Ms. Dodd out of the house, Mr. Schintz demonstrated aggressiveness that explained his mental state leading to the assaults.
32However, the trial judge made no reference to the fact that Mr. Schintz testified that he locked Ms. Dodd out because in the past, when she was angry, she became “destructive” and “abusive”.
33Although the trial judge stated that she was satisfied beyond a reasonable doubt of the guilt of the appellant, I am unable to determine that she applied the principles of R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The trial judge appears to have decided the case on the basis of whether the evidence of the appellant was credible and not whether the Crown had proved the case against the appellant beyond a reasonable doubt on all the evidence which the trial judge did accept.
34The Crown submits that if I find an error in law, then the remedy should be a new trial rather than an acquittal. I agree.
Conclusion
35For the reasons given, I find that the trial judge misapprehended the evidence and subjected the appellant’s evidence to a different and stricter scrutiny than that of the complainant. These errors constitute an error in law or, minimally an error of fact and law. The appeal is allowed and a new trial is ordered.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: February 19, 2016
CITATION: R. v. Schintz, 2016 ONSC 1245
COURT FILE NO.: CR-15-0033-AP
DATE: 2016-02-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Spruce Schintz,
Appellant
REASONS ON
SUMMARY CONVICTION APPEAL
Shaw R.S.J.
Released: February 19, 2016
/mls