CITATION: R v. Dockery 2016 ONSC 1358

COURT FILE NO.: 277/14

DATE: 20150225

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

SEAN DOYLE, for the Respondent/Crown

Respondent

• and -

JASON DOCKERY

MAURICE MATTIS, for the Appellant

Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice R. Schwarzl, dated July 26, 2013]

DURNO, J.

1The appellant was convicted of assaulting Temisha Rose. At the trial, the Crown called one civilian witness, Fausto Ochoa. Ms. Rose did not testify. A defence application for a directed verdict based on the absence of identification evidence was dismissed. The appellant was the only defence witness. He admitted being with Ms. Rose at the time and place of the alleged assault but denied assaulting Ms. Rose. The trial judge rejected the appellant’s evidence, convicted him of assault, and imposed a 75 day conditional sentence, one year probation and a 3 year weapons prohibition.

2The appellant appeals against the conviction contending: first, the inconsistencies in the evidence and/or the limited observations of the civilian witness resulted in an unreasonable verdict; second, the trial judge misapprehended the evidence; third, His Honour erred in applying R. v. W.(D.) (1991), 1991 CanLII 85 (SCC), 63 C.C.C. (3d) 97 (S.C.C.), conflating credibility and reliability; and fourth, His Honour erred by using the civilian’s evidence as the yardstick by which to assess the appellant’s testimony with the effect that the trial judge regarded the case as a credibility contest between the civilian and the appellant.

3The Crown submits the verdict was reasonable, amply supported by the evidence and the trial judge’s findings of fact. Submitting that the trial judge misstated, not misapprehended the evidence. On that basis, Mr. Doyle contends the error was harmless. Finally, he contends the trial judge’s reasons reveal he did not decide the case on the basis that it was a credibility contest between the appellant and the civilian.

4For the following reasons the appeal is allowed, the convictions quashed and a new trial ordered.

The Evidence

5Fausto Ochoa testified that he was driving in close proximity to a BMW motor vehicle and saw the passenger in that car twice grab the female driver violently around her head and pulling her towards the passenger’s side. The struggle resulted in the BMW being driven erratically. It did not appear to Mr. Ochoa that the driver was defending herself.

6When the BMW stopped, Mr. Ochoa got out of his car, walked towards the BMW and shouted to the passenger, “Leave her alone.” The BMW drove away. When it stopped again, Mr. Ochoa drove by and heard the driver say, “Oh, I can’t take it anymore.” Mr. Ochoa called 9-1-1.

7The police investigated, found the appellant and Ms. Rose at a Toronto address about three and one half hours later and arrested the appellant. The officers noted that Ms. Rose seemed very upset, had a small laceration under her right eye and minor abrasions that cut the right side of her neck. There was blood on the shirt she was wearing and a little bit of dried blood on her face. Her nails were cracked and there was blood under them. She refused to answer any of the police officer’s questions. The officers heard the appellant tell her, “Don’t say anything to the police, don’t say anything.”

8The appellant testified that he had an argument with Ms. Rose and she assaulted him at her parents’ home. He packed up his belongings and told her that he was leaving. Having no vehicle or money for a cab, he asked her to drive him to his cousin’s home. Ms. Rose agreed and drove the car along Williams Parkway. In the vicinity of Kennedy Road, she threatened that if he left her, she would make his life a living hell. As he was attempting to leave the car, she punched him on the left side of his face. He tried to leave the car but Ms. Rose continued driving and punching him, wildly using her right hand while driving with her left hand on the steering wheel. He put up his right hand to shield her blows and put his left hand on the steering wheel to try to control the car. As a result, the car kept going from side to side.

9When she finally stopped and he got out, Ms. Rose threatened to break his belongings in the trunk just as she had broken her nails in the altercation. He got back in the car and she drove him to the Jane and Finch area of Toronto.

The Reasons for Judgment

10The trial judge found the appellant:

…seemed pretty sincere in chief in his evidence, but I found he often went off track in his testimony, and his evidence was frequently evasive or illusive in cross-examination. However, he was always internally consistent on the central issues, even in the face of vigorous and very thorough cross-examination.

The essence of Mr. Dockery’s evidence is that he was the victim of Ms. Rose’s verbal and physical abuse on the day in question, and that any blood on her body or clothes was caused when she broke her fingernail while she was hitting the accused or otherwise playing with the stick shift in the car while she was driving him around Brampton and into Toronto. (Emphasis added)

Mr. Dockery denied laying a hand on her in anger. He testified that her silence when the police arrived was an example of her control over him. He said he didn’t call the police about being abused because he didn’t want to get the mother of his child in trouble, lest he lose contact with his daughter.

The trouble with Mr. Dockery’s evidence is that it is utterly inconsistent with the evidence of Mr. Ochoa¹ who is a completely reliable and credible witness who impressed me as an honest, accurate and careful individual.

Mr. Ochoa was in a position to make clear observations over a significant time of the relevant events. Mr. Ochoa said that it was the male passenger, that is to say the accused, who was pulling the complainant’s head towards him while she drove.

The police saw injuries to Ms. Rose, being a laceration under her eye and abrasions to her neck. All those injuries were on the right side of her face and neck. These injuries confirm Mr. Ochoa’s observations of the violence inflicted upon her while she was driving. Constable Byford saw blood under a couple of Ms. Rose’s nails, but he never mentioned any broken nails. The notion of broken nails was never but to the officer. I am satisfied that if there were broken nails, Constable Byford would have noted it and told us about it. (Emphasis added)

Had the accused told Ms. Rose to please tell the police what really happened, I am certain the officers would have noted that instead of what they actually noted and testified about, which I believe is the truth of the matter, in that each of them testified that during the course of the arrest Mr. Dockery told Ms. Rose not to speak to the police.

Further, Mr. Ochoa testified that Ms. Rose was defending herself and that Mr. Ochoa yelled at the accused to “leave her alone.” All of this undermine Mr. Dockery’s evidence that he was the victim.

Mr. Ochoa’s evidence demonstrates that the accused was the aggressor and not Ms. Rose. This is confirmed by her calling out at the side of the road loud enough for Mr. Ochoa to hear that “she couldn’t take it anymore.”

11His Honour found that where there was conflicting evidence he preferred the prosecution witnesses’ evidence. He did not believe the appellant nor did his evidence leave him in a state of reasonable doubt. The trial judge concluded that he was “satisfied with the evidence of Mr. Ochoa, and rely on it completely.”

The Grounds of Appeal

12While the appellant argued that the trial judge erred in dismissing the directed verdict application, during submissions on the appeal counsel agreed that in light of the appellant’s evidence, there was no issue regarding the identity of the person who was in the car with Ms. Rose.

Was the Verdict Unreasonable?

13It is appropriate to address this ground first because should it succeed the result would be an acquittal and there would be no need to address the other grounds.

14The appellant argued that the verdict was unreasonable on several bases. The test is whether there was evidence upon which a reasonable trier of fact could convict. There was.

15The appellant submits that Mr. Ochoa could not say what happened right before his observations and that he could only give a snapshot of what occurred while he was able to see into the BMW. I agree. Clearly the witness did not and could not give a complete account of what occurred in the car. However, that was not essential. The question is whether from the total observations of that witness in the context of all of the evidence, it was unreasonable for the trial judge to draw the conclusion that the appellant assaulted Temisha Rose. It was not.

16That the injuries were observed four and one half hours after the incident, does not remove their relevance. Mr. Ochoa saw what he regarded as an assault. The woman who was driving the car had injuries several hours later, although for the reasons noted later His Honour misapprehended the evidence in regards to one aspect of the injuries.

17The appellant also argued that it would have been open to the trial judge to find that the appellant’s conduct amounted to a reflex action or that he was acting in self-defence. I agree. However, that is not the test on an unreasonable verdict ground of appeal. That another judge might have reached a different verdict is not the test. It is whether the verdict was unreasonable in that no trier of fact acting reasonably could have found guilt. The Court of Appeal has held that the test is whether it was a reasonable verdict, not that it was the only reasonable verdict. R. v. Portillo (2003, 2003 CanLII 5709 (ON CA), 176 C.C.C. (3d) 467

18The appellant also argued that the trial judge erred in failing to apply the many appellate decisions that have warned against reliance on identification evidence. The trial judge had some evidence upon which a reasonable trier of fact could find the appellant was the person the civilian saw in the car on the basis of the Crown’s evidence. Once the appellant testified there was no triable issue on identity. He was the passenger in the car the witness saw.

19As I understand the appellant’s further reliance on the frailties of identifications evidence, he contends that the fact Mr. Ochoa did not know the appellant or Ms. Rose and only made brief observations of their interactions in the car engages the cautions in regards to identification evidence. I disagree. The valid concerns with regards to identification evidence apply to who the witness says he or she saw, not to what he or she says the person did. No doubt what they say the person did is subject to credibility and reliability assessments. However, it is not subject to the dangers of identification evidence that have been noted for decades.

20The verdict was not unreasonable.

Did the trial judge err in approaching the case as a credibility contest between Mr. Ochoa and the appellant or fail to apply R. v. W.(D.)?

21I am not persuaded the trial judge approached the case as a credibility contest or misplaced the burden of proof. His Honour found Mr. Ochoa a credible and reliable witness and found the appellant’s testimony was not of the same quality. His Honour addressed the requirement of proof beyond a reasonable doubt and there is nothing in the reasons that would suggest otherwise. Finally, there is nothing in the reasons from which I could infer that the trial judge erred in his application of W.(D.). The test is not whether a trial judge accurately set out the test or even whether he or she mentioned W.(D.). Rather, the test is whether the reasons reflect that the trial judge approached the evidence as the Supreme Court of Canada directed. His Honour did.

Did the trial judge misapprehend the evidence?

22For convenience I will repeat the trial judge’s findings on these issues. First,

Constable Byford saw blood under a couple of Ms. Rose’s nails, but he never mentioned any broken nails. The notion of broken nails was never put to the officer. I am satisfied that if there were broken nails, Constable Byford would have noted it and told me.

23Constable Byford testified he saw Ms. Rose had two cracked nails and blood under them.

Second,

Further, Mr. Ochoa testified that Ms. Rose was defending herself and that Mr. Ochoa yelled at the accused to “leave her alone.” All of this undermine Mr. Dockery’s evidence that he was the victim.

24Mr. Ochoa testified that the driver was not defending herself.

25The appellant submits that the trial judge misapprehended the evidence in two areas: whether Ms. Rose had a broken fingernail and in finding she was defending herself when the civilian witness said that she was not defending herself. The Crown submits His Honour misstated the evidence in regards to the fingernail. He did not misapprehend it. As regards whether Ms. Rose was defending herself, the Crown contends that the trial judge’s finding was not inconsistent with the civilian’s evidence. What His Honour meant was that she was unable to defend herself.

26The law in regards to misapprehension of evidence grounds of appeal has been addressed by the Court of Appeal. A misapprehension of evidence includes a mistake about the substance of evidence and a failure to give proper effect to evidence. The nature and extent of the alleged misapprehension and its significance to the verdict requires consideration in light of the fundamental principles that a verdict be based exclusively on the trial evidence. R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at paras. 83 and 93

27The court must test the misapprehension against a stringent standard considering the entire reasons and evidence with those meriting reversal being misapprehensions that are material as they play an essential role in the trial judge’s reasoning process: R. v. Abdullahi, 2015 ONCA 549 at para. 6

28The misapprehension must be of substance, not detail, and material, not peripheral to the judge’s reasoning process, not just narrative. Mere misstatements or inaccuracies in the judge’s treatment of the evidence are not reversible errors. R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 60. Where it is shown that the conviction rests on a material misapprehension of substance, the appellant has not received a fair trial even if the actual evidence was capable of supporting a conviction. Morrissey, at p. 541.

29First, as regards whether the driver was defending herself, I am not persuaded His Honour misapprehended the evidence. Mr. Ochoa said the driver was not defending herself. That comment is equally consistent with the witness meaning that she was unable to defend herself.

30Turning next to the evidence regarding Ms. Rose having broken nails, I am not persuaded the trial judge mis-stated or wrongly stated the evidence in the sense that His Honour mis-spoke regarding whether there was evidence of a broken nail. Rather, I am persuaded the trial judge misunderstood the evidence. He found that the officer never mentioned any broken nail. The officer said Ms. Rose had cracked nails.

31His Honour made a further speculative finding that if the officer had seen the broken nail he would have said so. On those findings, His Honour misunderstood the officer’s evidence. It was not a slip of the tongue or a misstatement of the evidence.

32The question is whether the broken fingernail findings played an essential role in the reasoning process that led to the conviction. The appellant contends that the broken nails were consistent with the appellant’s evidence that Ms. Rose was the aggressor, that she punched him multiple times and said that she was going to break his belongings just as she had broken her nails punching him. The cracked nails could have explained some or all of the blood on Ms. Rose when the officer saw her instead of the only source of the blood was from the injuries to Ms. Rose’s head. Instead, the trial judge used the misapprehension of the evidence to reject the appellant’s evidence.

33While the Crown correctly submits that His Honour did not say that the only source of the blood was the injuries because there was no broken fingernail and that she had blood under her nails, it was integral to the appellant’s defence that Ms. Rose had broken her nails striking him. That would explain at least some of the blood observed on her. His Honour found that the appellant was lying when he said she broke her nails.

34I find the trial judge made a mistake about the substance of the evidence. By doing so, he failed to give proper affect to that evidence. This finding played a material and essential role in the trial judge rejecting his evidence and finding the appellant guilty. I reach that conclusion because the trial judge said in his that “the essence” of the appellant’s evidence was that he was the victim of Ms. Rose’s verbal and physical abuse “and that any blood on her body or clothes was caused when she broke her fingernail while she was hitting the accused or otherwise playing with the stick shift in the car while driving him around Brampton and Toronto.

35Part of the essence of the defence was rejected because the trial judge misapprehended the evidence. While there was clearly other evidence upon which the trial judge could have convicted, I find that the misapprehension played an essential role in His Honour’s reasoning process. A new trial is required on that basis.

36There is a further and related area of concern that supports the conclusion that a new trial must be ordered. In noting the misapprehended evidence, the trial judge said, “the notion of the broken nail was never put to the officer.” It appears the trial judge was referencing the Rule in Browne v. Dunn (1893) 1893 CanLII 65 (FOREP), 6 R. 67 (U.K.H.L.) and drew an inference against the appellant’s credibility because his counsel never asked the officer whether Ms. Rose had a broken fingernail when the officer testified that she had cracked fingernails.

Conclusion

37The appeal is allowed, the conviction quashed and a new trial ordered.

38Mr. Dockery is ordered to appear in Court 104 at 9:30 a.m. on March 11, 2016.

Footnotes

1. 1The witness’ name was spelled differently in the judgment that was given on a different date than the witness testified. I have changed the spelling to coincide with the spelling the witness gave when he testified.