CITATION: R. v. Stirbei, 2016 ONSC 1718

COURT FILE NO.: 153/15

DATE: 20160309

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

Jeremy Tatum, for the Respondent

Respondent

• and -

BOGDAN STIRBEI

Bogdan Stirbei, on his own behalf

Appellant

HEARD: March 2, 2016, at Milton

REASONS FOR JUDGMENT

[On appeal from the conviction of D.A. Harris J. dated October 5, 2015]

F. Dawson J.

1Bogdan Stirbei appeals from his conviction by Justice D.A. Harris on October 5, 2015 of one count of simple assault. The assault was alleged to have occurred on July 12, 2014. Justice Harris acquitted the appellant of a separate offence of assault with a weapon which was alleged to have occurred on July 13, 2014. Both of the charges were in relation to the appellant’s former spouse.

2Only two witnesses testified at trial: the complainant and the appellant. The issue at trial was credibility. The appellant was represented by counsel at trial. He is self-represented on the appeal.

3The appellant makes a series of arguments in relation to errors alleged by the trial judge in his application of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The trial judge quoted the well-known passage from that case at the beginning of his reasons.

4In his written material and in oral argument the appellant took each of the branches of the W.(D.) test and then made extensive reference to the evidence in support of his submissions about why the trial judge should have reached different conclusions than he did based on that evidence. For the most part, the appellant is asking this court to step into the shoes of the trial judge and to reweigh the evidence on the standard applicable at trial. He submits that different factual conclusions should have been reached and that the trial judge should have accepted his evidence under the first branch of W.(D.) or have had a reasonable doubt under either the second or third branches of W.(D.). In other words, the appellant is asking me to retry the case.

5As the respondent emphasizes in its factum, it is not the role of an appellate court to retry the case. Appellate courts owe considerable deference to trial judges’ findings on questions of fact and mixed fact and law. This is because it is the trial judge who has the incalculable advantage of seeing and hearing the witnesses. Factual findings will generally not be set aside on appeal unless the appellant can demonstrate that they are clearly wrong, in the sense that they are the product of palpable and overriding error, are unreasonable or are not supported by the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56, 110.

6Pressing the appellant’s submissions into the mold of the legal requirements that would have to be met for success on the appeal, they amount to a submission that the trial judge applied a more stringent standard of scrutiny to his evidence than to the complainant’s and that the verdict is unreasonable and unsupported by the evidence.

7Having reflected on all of the appellant’s submissions I have come to the conclusion that the appeal must be dismissed. I can find no indication that the trial judge applied different standards of scrutiny to the evidence of the complainant and the appellant having regard to the requirements of the governing cases: R. v. J.A., 2015 ONCA 754, at paras. 35-37.

8I have examined the evidence and engaged in the limited weighing that is required by the unreasonable verdict submission. See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. I am of the view that there was ample evidence in the record reasonably capable of supporting all of the trial judge’s findings, including his findings of credibility. The verdict is not unreasonable or unsupported by the evidence.

9The trial judge gave careful and completely logical reasons for why he found the complainant’s evidence to be credible and why he reached a different conclusion concerning the appellant’s evidence. Deciding who to believe and what the facts were was the trial judge’s job. The appellant has not demonstrated reviewable error in relation to those matters.

10In my view, it was the balance and even-handedness of the trial judge’s approach that led to the acquittal on the assault with a weapon charge. The trial judge was concerned about some slight uncertainty expressed in the complainant’s evidence regarding whether the appellant had intended to throw a water bottle at her. Based on that uncertainty, although the trial judge did not accept the evidence of the appellant that he directed the water bottle which hit the complainant at a table, the trial judge acquitted on the assault with a weapon count. This undermines any submission that different levels of scrutiny were applied to the evidence of the complainant and the appellant and demonstrates the trial judge’s adherence to the principles outlined in W.(D.).

11As no error has been demonstrated the appeal is dismissed.

F. Dawson J.

Released: March 9, 2016

CITATION: R. v. Stirbei, 2016 ONSC 1718

COURT FILE NO.: 153/15

DATE: 20160309

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT