CITATION: R. v. L.K., 2016 ONSC 2078

COURT FILE: SCA 142/15

DATE: 2016 03 23

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

B E T W E E N:

HER MAJESTY THE QUEEN

A. H. Apel, for the Respondent

Respondent

• and -

L.K.

Mr. L.K., self-represented

Appellant

HEARD: March 23, 2016 at Milton

ENDORSEMENT

[on appeal from conviction by

Justice S.D. Brown on September 20, 2014]

HILL J.

Introduction

[1] After a trial, the appellant was found guilty of assaulting his common law spouse, J.H.

[2] At trial, the prosecution called the complainant to testify, her father and two police officers. The appellant testified on his own behalf. The appellant was self-represented at trial with Ms. P. Anderson appearing as counsel appointed to cross-examine the complainant pursuant to s. 486.3 of the Criminal Code.

[3] Mr. L.K. appeals his conviction for assault.

Issues

[4] The Notice of Appeal raised these grounds of appeal:

(1) wrongful conviction

(2) defence witnesses presented at trial were not given the opportunity to speak

(3) some witnesses were not able to be present on the trial date

(4) the trial judge chose to ignore facts “in the other parties’ statements and disclosure”.

[5] In oral argument, the appellant added these grounds:

(5) the trial judge ignored significant inconsistencies within the complainant’s evidence and inconsistencies with her video and other statements to the police

(6) the verdict was unreasonable

(7) the trial judge’s findings adverse to the defence were in part as a result of his bias against the defendant who presented as a jerk in the s. 11(b) Charter argument.

[6] A thorough review of the entirety of the trial record discloses that there is no merit in these grounds of appeal.

Factual Overview

[7] In January 2015, the appellant and J.H. lived in a common law relationship with their infant son. They resided in a small bungalow in Georgetown.

[8] On the morning of January 17, 2013, the couple argued about family finances in particular monies owing to a neighbour/contractor for windows as well as the complainant’s spending habits. At a point, J.H. told the appellant that he was unable to provide for the family.

[9] The complainant testified that on hearing this, the appellant became enraged – it was like a switch turned on. The appellant screamed and yelled and used profanity calling her a slut, a cunt, and a whore. He pulled a small lattice with a flower pot and ivy from where it was nailed to the wall and threw it toward her and the baby. She turned away and was not struck (“I don’t think he cared whether it hit me or not”). She was scared.

[10] The argument escalated. On J.H.’s evidence, the following then occurred:

(1) when she ran to the livingroom to get a cellphone, the appellant chased her there, and around a couch and tried to prevent her from obtaining the phone

(2) the appellant yelled, “I hate you. You’re a whore. Give me the phone”

(3) she got to the phone and was pushed on to the couch as a struggle ensued over the phone

(4) when she made an effort to leave the room by running to the front door of the residence, the appellant said, “You’re not going anywhere”

(5) in the struggle, the door closed on her arm – “he knew it [her arm] was in the door and he slammed the door on it, because he didn’t care at that point”

(6) “… during the struggle, there was a lot of back and forth, and at some point the door hit me in the head while it was being opened and shut”

(7) eventually, without shoes or a jacket, she managed to get through the front door with the cellphone

(8) the appellant temporarily locked her out of the house

(9) she phoned her neighbour without getting an answer and then her parents who lived nearby hoping they might diffuse the situation without the police being called.

[11] J.H. testified that when her parents arrived, the appellant allowed her father, K.H., to enter the home. She heard the appellant telling her father what a terrible person she was and that she was having affairs. She was upset. The appellant was angry and hollering. According to J.H., she kept going into the house to say that she wanted the baby back. When the appellant refused, she phoned 9-1-1 – “I needed police involvement to get my child back”.

[12] When K.H. arrived, he saw his bare-footed daughter in the house. There was screaming and yelling between her and the appellant. When he spoke to the appellant he found him “[q]uite agitated”. The appellant spoke about J.H.’s affairs and called her a whore.

[13] Halton Regional Police Service (HRPS) Const. Ian Lynn testified that when he was dispatched to the scene he could hear an ongoing argument and shouting in the home. He found the complainant to be upset and emotional. At first, the appellant was adamant that the officer not enter the house – he was very agitated, angry, upset and shouting. HRPS Const. Amanda Bodin described J.H. as upset and shaking.

[14] The complainant described her injuries – a red and swollen arm and a goose egg on her head. Exhibit #7 at trial, a police photo, showed redness and bruising on J.H.’s forehead. K.H. testified that he saw “a large vertical welt” on J.H.’s forehead. On the witness’ evidence, a day or so later, J.H. showed him a bruise on her arm. Const. Lynn observed a bump on J.H.’s forehead. Const. Bodin observed “a large lump like a goose egg on the centre of [J.H.’s] forehead, and a pink oval mark on her arm”.

[15] Testifying on his own behalf, the appellant confirmed the argument about finances. He did not throw the lattice – in an effort to reach the radio, he miscalculated and accidentally knocked the lattice loose. On the appellant’s account:

(1) J.H. yelled and hollered at him and they exchanged words

(2) he got “a little irate” after being told that he was not providing for the family

(3) he told J.H. that he hated her

(4) there was no struggle over the cellphone – J.H. ripped the cellphone and charger out of the kitchen wall

(5) when J.H. said that she was calling her father, he encouraged her to do

(6) when J.H. went to the front door and opened it, he attempted to shut the door – he gave it “a little bit of a push” – at the same time, J.H. seemed to think that he was reaching for the phone so she stuck her arm through the door opening and the door “lightly hit” her arm – “[t]here was no struggle over the door”

(7) after J.H. left the house, he did not lock the doors – he remained calm

(8) the appellant believes that J.H. has mental health issues

(9) J.H. threatened that if he told her father about any affair she had had, she would phone the police and claim that he had assaulted her

(10) after he began to speak to her father, not yelling or angry as he did so, J.H. phoned the police.

Analysis

[16] At trial and before this Court, Mr. L.K. was self-represented with the exception of the s. 486.3 counsel. In both venues, he operated on the belief, from time to time, that the trier of fact or trier of law, as the case may be, could consider prosecution disclosure materials or such evidence as he might provide orally other than from the witness box.

[17] On a Part XXVII Criminal Code summary conviction appeal, the court exercises a limited review of the transcript of trial proceedings and the trial exhibits. This is a “4-corners” rule which is not supplemented by disclosure materials or other evidence not properly admitted at trial. In addition, most of the appellant’s submissions on appeal amounted to an invitation to make different credibility findings than the trial judge, to draw different inferences and to emphasize particular pieces of evidence in a different way. The appellant’s submissions were largely undertaken by going through pages of the complainant’s trial testimony with no reference to the trial court’s reasons for judgement.

[18] This court has limited authority to dislodge factual findings by a trier of fact or to assign different emphasis to the significance of facts as found. In R. v. Smith, 2016 ONCA 25, at paras. 71-75, 78, Watt J.A. stated:

[71] The test for an appellate court to apply when a verdict is impeached as unreasonable is to consider whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. The test imports not only an objective assessment, but also, to some extent at least, a subjective evaluation: Biniaris, at para. 36.

[72] The test requires us to determine what verdict a reasonable jury, properly instructed, could judicially have rendered. In doing so we are required to review, analyze and, within the limits of appellate disadvantage, weigh the evidence. We must examine the weight of the evidence, not its bare sufficiency: Biniaris, at para. 36. Our entitlement to review the evidence adduced at trial, to re-examine and reweigh it, is only to determine whether the evidence, as a whole, is reasonably capable of supporting the verdict rendered: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at p. 663.

[73] In deciding whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered, we must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28. We must ask whether a jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conviction: W.H., at para. 2.

[74] The test and inquiries described above are expressed in terms of a verdict reached by a jury. They are equally applicable to cases such as this where the verdict under review is that rendered by a judge sitting without a jury. That said, the review for unreasonableness is different when the verdict is that of a judge accompanied by reasons for judgment. In judge alone cases, an appellate court may be able to identify some flaw in the evaluation of the evidence, or in the judge’s analysis, that will serve to explain the unreasonable conclusion the judge has reached: Biniaris, at para. 37.

[75] In cases tried without a jury, the unreasonableness analysis required under R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, involves scrutiny of the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15, 44. Under this test, an appellate court can interfere where a trial judge draws an inference or makes a finding of fact that is:

i. plainly contradicted by the evidence relied upon by the judge for that purpose; or

ii. demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge: Sinclair, at para. 16.

[78] It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct. Among the inferences that may be available is that an accused’s conduct was culpable: Figueroa, at para. 35; Salah, at para. 227.

(emphasis of original)

[19] After a recess following the closing submissions of the parties, the trial judge delivered oral reasons finding the appellant guilty. The reasons for judgment occupy 27 pages of transcript. The court properly self-instructed on relevant legal principles including the burden of proof, credibility and W.D. issues, and the limits of demeanour evidence. The evidence was thoroughly reviewed and analyzed.

[20] Turning to the grounds of appeal, there is no evidence that defence witnesses were not given an opportunity to speak or that the defence was denied the opportunity to call witnesses. On the second day of trial, the appellant specifically informed the court that he was not seeking an adjournment to call defence witness (Transcript, Sept. 30, 2014, at pp. 50-53).

[21] There is no evidence whatsoever in the trial record or the reasons for judgment to suggest bias or a reasonable apprehension of bias on the part of the trial judge. The judge managed the trial with a self-represented litigant entirely in accord with common law and constitutional authorities respecting judicial assistance to accused persons representing themselves without counsel.

[22] As to the submission that the trial judge ignored or minimized inconsistencies in the complainant’s evidence, the record does not support this argument.

[23] Firstly, a trial court is not obliged to review all the trial evidence or every inconsistency in a witness’ testimony – see generally: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17 (“He was not obliged to discuss all of the evidence on any given point or answer each and every argument of counsel”); a judgment need not “answer each and every argument of counsel”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30; the trial court “need not address every conflict in the evidence however peripheral”: R. v. Antonatos, 2009 ONCA 884, at para. 3; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 46 (“no obligation in law on a trial judge to record all or any specific part of the process of deliberation of the facts”); R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20 (“…trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact”); R. v. T.S., 2012 ONCA 289, at para. 46 (“A trial judge is under no obligation to record and recite his or her findings on each and every item of evidence adduced at trial”), at para. 85 (“The trial judge was under no obligation to turn over every evidentiary leaf”); R. v. Wadforth (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont. C.A.), at para. 67 (“no detailed account of all conflicting evidence is mandated”); R. v. Spencer, 2008 ONCA 205, at para. 8 (“A trial judge is not bound to overturn every pebble dropped into the evidentiary pool in a criminal trial, nor to answer in his or her reasons for judgment, each and every argument advanced by counsel”).

[24] Secondly, the trial judge did avert in his reasons to a number of issues touching on the complainant’s credibility including changes over time respecting J.H.’s recall as to whether she had been pushed onto the couch, and, whether J.H. was inside or outside of the residence when her parents and the police arrived on scene. In the reasons, the trial judge noted:

She [J.H.] was questioned very competently and thoroughly by Ms. Anderson in cross-examination. Certain matters were brought out, such as, why didn’t she call the police initially? Why didn’t she run to a neighbour’s? And why she didn’t take other steps, and why indeed would she go back to the house when she was afraid of the defendant?

[25] The trial judge had the inestimable advantage of seeing and hearing the witnesses. As is apparent from the reasons for judgment, the trial judge was fully cognizant of the live issues in the case and the subjects which were of importance to the defence.

[26] The trial judge found the complainant to be a credible witness. Her observed demeanour and injuries confirmed in part her account of what occurred in the residence. J.H.’s explanations for inconsistencies and aspects of conduct on her part were not viewed by the trial court as detracting from her overall credibility. There was evidence reasonably supporting these findings and conclusions.

[27] The trial court concluded that the appellant was non-responsive in examination, exhibited an aggressive tone in cross-examination, was prone to rambling speeches, and evasive. In his testimony, the appellant sought to minimize his degree of anger at the scene despite other witnesses disputing his asserted calmness whose evidence the court accepted. The record supports these observations.

[28] After extensive analysis, the trial judge concluded that:

I find as a fact that the argument in this situation escalated. I also find as a fact, and I accept the evidence of [J.H.], that Mr. L.K. became enraged when she disparaged his ability to support his family; that he ripped the lattice from the wall; that she ran in to get the cell phone, which was on the coffee table, and that he struggled with her to get it, but as she was running to get the cell phone, he did push her and he held her down on the couch as he struggled with her. The evidence that she gave as to being at the door, I do accept. The fact that she put her arm through the door, and he closed it on the arm, can only be seen by me to be an intentional act, the application of force against her without her consent.

[29] These findings were not unreasonable and were supported by the evidence. There was no wrongful conviction.

Conclusion

[30] The appeal is dismissed. The stay of the probation order is set aside.

Hill J.

DATE: March 23, 2016

CITATION: R. v. L.K., 2016 ONSC 2078

COURT FILE: SCA 142/15

DATE: 2016 03 23

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

RE: R. v. L.K.

COUNSEL: H. Apel, for the Respondent

Mr. L.K., self-represented

ENDORSEMENT

[on appeal from conviction by Justice S.D. Brown on September 30, 2014]

Hill J.

DATE: March 23, 2016