R. v. Sadikaj, 2016 ONSC 1994

CITATION: R. v. Sadikaj, 2016 ONSC 1994

COURT FILE NO.: CR-15-70000048-00AP

DATE: 20160405

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

KRESHNIK SADIKAJ

Appellant

Sunita Malik, for the Crown

Alan D. Gold, for the Appellant

HEARD: February 23, 2016

REASONS FOR DECISION (Summary Conviction Appeal)

b. p. o’marra, j.

OVERVIEW

[1] The appellant was tried by The Honourable Mr. Justice A. Lacavera of the Ontario Court of Justice and found guilty of assault causing bodily harm against the complainant. The offence was alleged to have occurred on December 28, 2013. The trial and final submissions proceeded on January 22 and 23, 2015. Judgment was rendered on March 24, 2015. The appellant was sentenced to sixty days in jail on June 8, 2015 based on a joint submission. On June 11, 2015, the appellant was granted bail pending appeal.

[2] The Crown alleged that the complainant and his girlfriend were assaulted by the appellant, the co-accused and an unidentified third man. The complainant’s girlfriend did not testify and the charge related to her was dismissed. The co-accused testified. The appellant did not testify. Security video footage from a nearby restaurant captured the critical events.

[3] The co-accused failed to appear for sentencing and was sentenced in absencia on July 15, 2015.

FACTS

[4] In the early evening of December 28, 2013, the complainant phoned the co-accused. The complainant wished to speak to the co-accused about a matter relating to the complainant’s sister. The co-accused had been dating the complainant’s sister for several months. The appellant was a close friend of the co-accused. The complainant had known the appellant for approximately eight months. The complainant testified that he had no issues with either the co-accused or the appellant prior to this incident. The co-accused testified, however, that the complainant was upset with him because of an incident that had arisen between the complainant’s sister and himself.

[5] When the co-accused did not answer his phone, the complainant phoned the appellant, who was often with the co-accused. The complainant testified that the phone call was friendly, and they arranged a meeting.

[6] By around 6:00 p.m., the complainant and his girlfriend were in a pub on the north side of Danforth Avenue. The complainant testified that they were there for approximately 2.5-3 hours, during which time the complainant ate and drank two beers. He told paramedics shortly after the incident that he had consumed five beers over the entire evening and two while at the pub. The complainant testified that around 9:00 p.m. he received a phone call from the appellant asking for his whereabouts. Around 9:10 p.m. the appellant called again to say that he and the co-accused were outside. The complainant testified that the appellant insulted him and swore at him over the phone. In contrast, the co-accused testified that he and the appellant arrived at the pub around 9:20 p.m. because that was where the complainant had said he would be, and that the complainant was waiting outside, agitated and drunk.

[7] The security video shows that the complainant and his girlfriend exited the pub at approximately 9:56 p.m. The appellant and co-accused approached from the south side of Danforth Avenue and interacted with the complainant and his girlfriend. The complainant described the interaction as “not talking friendly”. He said that his girlfriend put herself in the middle of the group because she did not want the parties to fight. He testified that he was trying to tell her to go back inside for her own safety.

[8] The complainant testified that an unknown third party approached from behind and held him while the appellant punched him repeatedly in the face. He testified that the co-accused hit him and pulled on him. The third person then threw the complainant to the ground and all three parties began to kick him in the head and body.

[9] In the video, it is clear that the first blow was struck by the third party who came from across Danforth Avenue. He hit the complainant in the face. The first punch knocked the complainant backwards into an alcove and off camera. The appellant and co-accused can be seen at the edge of the alcove. The appellant is clearly punching at someone, but it is unclear at whom he is throwing the punches. When the fight re-emerges onto the sidewalk, the complainant is thrown on to the ground. The scuffle that ensues is unclear.

[10] When asked why his version of the third party’s approach and the video evidence are inconsistent, the complainant stated, “I don’t remember the first punch. I remember somebody holding me and [the appellant] hitting me.”

[11] The co-accused testified that he and the appellant did not know the third party and tried to pull the third party away from the complainant or pull the complainant away from the third party. The co-accused explained that he walked towards two bystanders to seek help and then returned to the fight. The co-accused testified that they ultimately left because a bystander intervened and told them to “get out of here”.

[12] By contrast, the video shows the appellant and the third party walk a few paces away towards two bystanders. Behind them, the co-accused is clearly in a fistfight with the complainant. The appellant and third party return to the altercation. It is unclear if they spoke to the bystanders. It appears from the video that both the appellant and third party take a punch at the complainant, and then pull away the co-accused. The three depart. The complainant testified that the three left because they heard sirens.

The Trial Decision

[13] At trial, after hearing the testimony and reviewing the video footage, the trial judge found the appellant guilty of assault causing bodily harm. He succinctly addressed the inaccuracies in the complainant’s recollection of the assault by stating, “It is not surprising to me that having suffered the blow that the video shows he did suffer, that his memory as to exactly what took place thereafter is not totally reliable with respect to the details.” The trial judge found the co-accused’s version of events to be in direct conflict with the video and therefore incredible. The trial judge was left with no doubt that the appellant participated in the assault on the complainant.

Arguments on Appeal

[14] The appellant argues several grounds of appeal amounting, ultimately, to an assertion that the verdict was unreasonable. Specifically, the appellant contends:

(a) The learned trial judge failed to explain why the complainant’s general unreliability nevertheless allowed a reasonable conclusion that the complainant was reliable as to who was striking him, and erred in relying on the complainant’s testimony;

(b) The learned trial judge erred in relying on the complainant’s evidence in light of the multiple discrepancies throughout his police statements and trial testimony, and he failed to adequately resolve these discrepancies in his reasons;

(c) The learned trial judge appears to have reached the conclusion that the complainant is reliable as to who was striking him based on the complainant’s certainty, which is not rationally and reasonably connected to his reliability;

(d) The learned trial judge misapprehended material evidence and erred regarding what the video surveillance showed in its relevant portions; and

(e) The evidence at trial was insufficient to support a finding of guilt and the verdict is therefore unreasonable.

ASSESSMENT OF CREDIBILITY AND RELIABILITY

[15] In R. v. A. (A.), 2015 ONCA 558, 327 CCC (3d) 377, the court set out a helpful summary of the principles involved when reviewing reasons and credibility assessments at paras. 116-121:

Several basic principles govern our review of the sufficiency of the reasons delivered at the conclusion of proceedings in which the credibility and reliability of the testimony of the principal witnesses is the focal point.

First, our approach is functional. An appeal based on a claim of insufficient reasons will fail unless the reasons are so deficient that they foreclose meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 (S.C.C.), at para. 55; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.), at para. 25; and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 (S.C.C.), at para. 10.

Second, credibility determinations attract a high degree of deference on appellate review: Dinardo, at para. 26; Vuradin, at para. 11; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont. C.A.), at para. 66; and R. v. M. (O.), 2014 ONCA 503, 313 C.C.C. (3d) 5 (Ont. C.A.), at para. 19.

Third, to determine the sufficiency of reasons, we are to read those reasons as a whole in the context of the evidence adduced and the arguments and positions advanced at trial: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.), at para. 16; and Vuradin, at para. 12.

Fourth, in composing reasons for judgment, a trial judge is not required to discuss all the evidence or to answer every argument advanced by counsel: M. (R.E.), at paras. 32 and 64; Dinardo, at para. 30; Vuradin, at para. 17; and M. (O.), at para. 28.

Fifth, we accord significant deference to a trial judge’s appreciation of the evidence adduced at trial, as well as his or her findings on the credibility of witnesses and the reliability of their testimony. Absent palpable and overriding error, determinations of credibility and reliability made by the trial judge are to be respected on appeal: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 (S.C.C.), at para. 20; and M. (O.), at para. 19.

[16] Discrepancies and inconsistencies in the testimony of a witness, even significant ones, do not necessarily render the entire testimony unreliable or incredible. There may be explanations for the discrepancies or inconsistencies that are accepted by the trier of fact, see R. v. Francois, [1994] S.C.R. 827 at p. 839. A trial judge is not required to comment on every inconsistency, see R. v. C.R., 2010 ONCA 176, 260 O.A.C. 52 at para. 48.

[17] A finding on appeal that the evidence was reasonably capable of supporting a conviction does not foreclose examination of how the trial judge dealt with inconsistencies in the complainant’s evidence: see R. v. Howe, (2005), 2005 CanLII 253 (ON CA), 192 CCC (3d) 480 (Ont. C.A.).

[18] In R. v. Wigle, 2009 ONCA 604, 252 O.A.C. 209, at para. 41, the court stated the following:

While, of course, it was open to the trial judge to accept some parts of the complainant’s evidence and not others, it was incumbent upon him to explain what evidence he accepted and why he chose to do so.

[19] The trial judge accepted explanations for some of the inconsistences in the complainant’s evidence. These included how many beers he had consumed.

[20] The trial judgment referred to two major inconsistencies in the evidence of the complainant. However, there is no mention of the impact of those inconsistencies on the assessment of the reliability and credibility of the complainant. The two inconsistencies are the following:

(1) At trial, the complainant testified that he was assaulted by both of the accused and the unidentified third man. In his first statement to the police, he makes no reference to being assaulted by either accused. In a later statement, he referred to being assaulted by both accused; and

(2) At trial, the complainant testified that in a cell phone call shortly before the alleged assault, the appellant uttered an extremely course and explicit insult, specifically, “come outside so I can fuck the cunt of your mother”. There was no mention of any such insult in either statement to the police.

[21] In Howe, the trial judge implicitly or explicitly found that the complainant had a motive to falsely accuse Howe and that she lied on material matters. However, the trial judge failed to explain how he reconciled or dealt with those issues in assessing reliability and credibility. On appeal, that was held to be a seriously flawed analysis. A new trial was ordered.

[22] In this case, the impact of the failure to address the major inconsistences in this case must be assessed in light of the video evidence.

[23] I agree with the appellant’s assertion that the certainty of a witness does not increase his reliability. Contrary to the appellant’s submission, the trial judge did not find the complainant generally unreliable. The fact that the complainant was unsure or was in error as to who struck him first does not therefore render the rest of his evidence unreliable.

Video Evidence

[24] The Supreme Court of Canada dealt with the use a trier of fact may make video evidence in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 as follows, at para. 22:

22 So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself by cogent and convincing evidence on the issue of identity. Indeed, it may be the only evidence available. For example, in the course of a robbery, every eyewitness may be killed yet the video camera will steadfastly continue to impassively record the robbery and the actions of the robbers. Should a trier of fact be denied the use of the videotape because there is no intermediary in the form of a human witness to make some identification of the accused? Such a conclusion would be contrary to common sense and a totally unacceptable result. It would deny the trier of fact the use of clear, accurate and convincing evidence readily available by modern technology. The powerful and probative record provided by the videotape should not be excluded when it can provide such valuable assistance in the search for truth. In the course of their deliberations, triers of fact will make their assessment of the weight that should be accorded the evidence of the videotape just as they assess the weight of the evidence given by viva voce testimony.

[25] In Nikolovski, the victim of the robbery could not identify the accused in court as the assailant. However, the trial judge was satisfied that identity was proven beyond a reasonable doubt based on her review of the surveillance video. The Supreme Court of Canada affirmed that decision after viewing the video itself. The court stated, at para. 34:

“The fact that the store clerk could not identify the accused is not of great significance.”

[26] The Crown’s case here did not stand or fall based solely on the credibility and/or reliability of the complainant. The video of the moments before, during and after the assault was a critical piece of evidence.

[27] The trial judge carefully outlined how he considered the video evidence and what conclusions it led him to as follows:

(1) He reviewed the video many times, in motion, at normal speed and frame-by-frame;

(2) He found that the video showed some parts of the complainant’s recollection of events to be in error;

(3) By reference to the time stamp, he observed the following critical events on the video:

(i) At 9:56:10, the complainant and his girlfriend exit the bar. The two accused are in the centre of Danforth Avenue. The third man is on the south side of Danforth Avenue between two parked cars at the rear of a passing taxi.

(ii) At 9:56:12, the complainant, his girlfriend, the two accused and the third man are all visible on the video. The complainant and his girlfriend are on the north side of Danforth Avenue on the sidewalk. The two accused are just past the centre of Danforth moving north. The third man is on the south side of Danforth at the rear of a taxi.

(iii) At 9:56:15, the two accused are at the north curb of Danforth. The complainant and his girlfriend remain on the north sidewalk looking in the direction of the two accused. The third man has reached the centre of Danforth.

(iv) At 9:56:19, the complainant, his girlfriend and the two accused are seen in a close group on the north sidewalk of Danforth. The third man is held up in the centre of Danforth by a passing vehicle.

(v) By 9:56:22, a passerby and what appears to be a child are passing the group of four. The third man is still in the middle of Danforth waiting for a passing vehicle.

(vi) By 9:56:27, the complainant and his girlfriend are facing east between the two accused who are facing west towards the camera. The third man has just stepped onto the boulevard right at the north curb of Danforth Avenue. He is walking towards the group of four.

(vii) By 9:56:28, the third person is within a few paces of the group of four.

(viii) At 9:56:30, the third man can be seen cocking his right hand and stepping towards the complainant. He then strikes the complainant on the head. (The transcript of the judgment refers to this time as “9:50:30”. That would appear to be a typographic error since the next time referred to is “9:56:31”.) The video then shows almost the entire group has fallen into a doorway or alcove of a building.

(ix) At 9:56:31, the third man is pushing the complainant back towards the alcove. The two accused are moving towards the complainant, his girlfriend and the third man.

(x) At 9:56:33, the complainant and the third man are into the alcove as well as the girlfriend with the two accused moving towards the alcove.

(xi) By 9:57:02, the attack was over. A bystander had intervened. The third man was moving off towards the south side of Danforth Avenue. The two accused were walking west on the north side of Danforth Avenue on the sidewalk towards the video camera. The complainant and the bystander remained at the scene of the attack along with the complainant’s girlfriend.

(xii) By 9:57:04, the co-accused can be seen looking towards the third man as he crossed Danforth Avenue from the north to the south side.

(xiii) At 9:57:07, the appellant appears to be running faster than the co-accused who again looks toward the third man.

(xiv) At 9:57:08, the co-accused turns to look back in the direction of the complainant. The co-accused passed out of the view of the camera and appeared to be running west. The complainant is being restrained from pursuing the co-accused by his girlfriend.

[28] The video in this case has been reviewed on appeal. The following portions of the video were not specifically referred to by the trial judge in his reasons:

(1) At 9:56:51, based on the clothing worn by the various participants, it appears that the third man walks away and the co-accused remains fighting with the complainant. This is contrary to the claim by the co-accused that he walked away to get help.

(2) The third man and the appellant return to the fray. At 9:56:56, they both appear to swing at the complainant.

[29] It is not for this court to make findings of fact. However, the above portions of the video demonstrate a reasonable and objective basis for the trial judge to make the findings and his ultimate judgment.

[30] To the extent that the video provided the best evidence as to whether assaults were proven, the various inconsistencies in the complainant’s evidence become far less significant.

[31] In some cases involving alleged assaults, a video record of the critical events may virtually determine the outcome. In other cases, the video may only present part of the story. Where self-defence is in issue, the words and actions of the parties before and during the event will be important. Security videos often, as in this case, do not capture the words exchanged between the parties. Where an accused claims he acted in self defence in response to verbal face-to-face threats, there will be issues of credibility and reliability that cannot be assessed based on the video alone.

[32] In the current case, there was no issue of self defence raised at trial. Identity and bodily harm were not in dispute. The sole issue was whether the Crown had proven that the appellant and the co-accused had assaulted the complainant. The video evidence was virtually determinative of the outcome.

MISAPPREHENSION OF EVIDENCE

[33] The Court of Appeal in R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, summarized both the legal standard and applicable case law for appellate review based on a trial judge’s alleged misapprehension of evidence as follows, at para. 60:

A misapprehension of the evidence may relate to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. C.L.Y., 2008 SCC 2, [2008]1 S.C.R. 5, at para. 19; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. To set aside a conviction on the basis that the trial judge misapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge's reasoning and the alleged errors must play an essential part in the reasoning process, not just of the narrative. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error: Lohrer at para. 2; Morrissey at p. 541; R. v. T.(T.) (2009), 2009 ONCA 613, 68 C.R. (6th) 1 (Ont. C.A.), at para. 33.

[34] The appellant does not suggest that the trial judge failed to consider the highly relevant evidence of the video. Rather, he takes issue with the inferences and facts drawn from that evidence.

[35] The trial judge carefully reviewed the video, repeatedly and frame-by-frame. The inferences and facts drawn were reasonably open to the trial judge. The appellant has not met the stringent standard required for an alleged misapprehension of this evidence.

UNREASONABLE VERDICT

[36] A verdict is unreasonable or cannot be supported by the evidence when the verdict is one that a properly instructed jury acting judicially could not reasonably have rendered. This is equally applicable to the judgment of a judge sitting without a jury: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36 and 37, and R. v. An, 2015 ONCA 799 at para. 6.

[37] The appellant did not testify. When considering the reasonableness of a verdict, an appellate court is entitled to treat an appellant’s silence (failure to testify) as indicating that the appellant could not provide an innocent explanation of his conduct: see R. v. C.D. (2005), 2005 CanLII 5667 (ON CA), 194 C.C. C. (3d) 321 (Ont. C.A.). at para. 35; R. v. Brown, 2015 ONCA 220, at para. 10, and An, at para. 15.

[38] Nikolovski, citing R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, reiterated the test for an unreasonable verdict as follows, at para. 44:

The role of the Court of Appeal is to determine whether on the facts that were before the trier of fact a jury properly instructed and acting reasonably could convict. The court reviews the evidence that was before the trier of fact and after re-examining it and, to some extent, reweighing the evidence, determines whether it meets the test.

[39] The trial judge’s reasons provide a detailed, careful and accurate summary of the evidence. The complainant’s evidence in combination with the surveillance video was reasonably capable of supporting a conviction.

[40] RESULT: The appeal as to conviction is dismissed. The appellant is to surrender himself into custody to serve the remainder of his sentence on a date to be agreed upon by counsel.

B. P. O’Marra, J.

Released: April 5, 2016