Case Summary

The appellant, William Matheuszik, appealed convictions for two counts of assault and one count of uttering a threat. The appeal court found that the trial judge made several errors, including unsupported factual findings regarding the dates of incidents, a failure to properly undertake a W.D. analysis, and an improper application of the rule in Browne and Dunn. As a result, the appeal was granted. The convictions for assault and uttering a threat involving Charmaine Matheuszik were set aside, and acquittals were entered. The conviction for assault involving Robbin MacDonald was set aside, and a new trial was ordered before a different judge. interesting_citations_summary: > This decision provides a comprehensive review of appellate principles concerning the sufficiency of a trial judge's reasons, the standard for overturning an unreasonable verdict, and the correct application of the W.D. analysis and the rule in Browne and Dunn. It underscores the necessity for trial judges to explicitly address inconsistencies in witness testimony and to ensure factual findings are supported by evidence. The court clarifies that objections under Browne and Dunn must be raised contemporaneously to allow for potential remedies and uphold trial fairness, thereby preventing "trial by ambush." final_judgement: > The appeal was granted. The convictions for assault (Charmaine Matheuszik) and uttering a threat were set aside, and acquittals were entered. The conviction for assault (Robbin MacDonald) was set aside, and a new trial was ordered before a different judge. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2016 decision_number: 4116 file_number: "SCA 15-84" source: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4116/2016onsc4116.html" cited_cases: legislation: [] case_law: - title: "R. v. W.(R.), [1992] 2 S.C.R. 122" url: "https://www.canlii.org/en/ca/scc/doc/1992/1992canlii56/1992canlii56.html" - title: "R. v. Biniaris, [2000] 1 S.C.R. 381" url: "https://www.canlii.org/en/ca/scc/doc/2000/2000scc15/2000scc15.html" - title: "R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2003/2003canlii5709/2003canlii5709.html" - title: "R. v. Clark, [2005] 1 S.C.R. 6" url: "https://www.canlii.org/en/ca/scc/doc/2005/2005scc2/2005scc2.html" - title: "R. v. Sinclair (2011), 270 C.C.C. (3d) 421 (S.C.C.)" url: "https://www.canlii.org/en/ca/scc/doc/2011/2011scc40/2011scc40.html" - title: "R. v. Quansah, 2015 ONCA 237" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca237/2015onca237.html" - title: "R. v. P.F., 2012 ONCA 807" url: "https://www.canlii.org/en/on/onca/doc/2012/2012onca807/2012onca807.html" - title: "R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1995/1995canlii3498/1995canlii3498.html" keywords: - Criminal law - Appeal - Assault - Uttering a threat - Reasons for judgment - Unreasonable verdict - W.D. analysis - Browne and Dunn rule - Credibility - Trial fairness areas_of_law: - Criminal Law - Evidence - Appellate Procedure --- # Court File and Parties **COURT FILE:** SCA 15-84 **DATE:** 2016 06 22 **ONTARIO SUPERIOR COURT OF JUSTICE** (Summary Conviction Appeal Court) **B E T W E E N:** **HER MAJESTY THE QUEEN** A. Mary Ward, for the Respondent Respondent - and - **WILLIAM MATHEUSZIK** Keith Wright, for the Appellant Appellant **HEARD:** June 8, 2016 at Milton # REASONS FOR JUDGMENT [on appeal from judgment imposed by Baldwin J. on April 27, 2015] **EDWARDS J.** ## Overview [1] The appellant, William Matheuszik, was convicted of assault (x2) and uttering a threat. In appealing these convictions, he raises many issues. He also appeals the sentence. [2] For the following reasons I: a) Grant the appeal with respect to the assault conviction involving MacDonald, set aside the conviction, and return the matter to the Ontario Court of Justice for a new trial before a different judge; and b) Grant the appeal with respect to the assault conviction and utter threat involving Charmaine Matheuszik, set aside the convictions and grant acquittals. ## The Facts [3] The Appellant and Charmaine are married and live together. At the time of the alleged incidents the appellant was an Air Canada pilot and often away from the home. Robbin McDonald was a tenant in their home. On July 30, 2014 Ross Dion moved into the home as an additional tenant. [4] The Appellant was convicted of assaulting Robbin McDonald on July 8, 2014. [5] Based upon the evidence of Robbin MacDonald, the appellant was convicted of uttering a threat to Charmaine during the month of June 2014 and of assaulting her on or about June 29, 2014. [6] The Appellant and Charmaine denied that the appellant had ever assaulted or threatened her. [7] The trial judge imposed a conditional sentence composed of 24 months of probation with respect to all counts. [8] First, I will examine the grounds of appeal advanced with respect to the assault and uttering charges involving Charmaine. ## Utter Threat and Assault on Charmaine ### Reasons for Judgment [9] With respect to the Uttering Threat charge the trial judge states: The question becomes if I believe beyond a reasonable doubt that Bill uttered this death threat to Charmaine at the end of June 2014 when, according to Robbin, things between the two of them were escalating. Because I accept Robbin’s evidence as accurate, reliable and true in this regard, I am satisfied that one early morning in the month of June 2014 the death threat was uttered. [10] The trial judge deals with the assault against Charmaine under the heading “Re: June 29th/14 Garbage Bag Assault”. The trial judge accepts Robbin’s testimony that he found Charmaine sitting with a garbage bag over her head and that the appellant “hit the top of the bag with his hand” and then left. On that basis she found the appellant guilty of assault. ### Analysis #### Dates [11] In oral submissions the appellant’s counsel stressed the importance of reviewing the evidence with respect to the dates upon which these two incidents were alleged to occur. [12] He submitted that the only evidence with respect to these counts came from Robbin and his evidence indicates that the first incident occurred on June 28, 2014 and the second occurred after the first incident, on a different day and before the end of June. That meant that the second incident was alleged to have occurred on June 29 or June 30. [13] The Crown argued that the exact dates were not material due to the manner in which the charges were laid. Further, she disagreed that Robbin definitively stated the order of the dates or the exact date of either incident. [14] The defence argue that the dates are critical: The Crown put forth its case and then the appellant met that case based upon the evidence. The defence case included its alibi evidence and the dates of the alleged events are critical to the alibi defence. [15] I am satisfied that it is clear from Robbin’s evidence in examination in chief that he accepted that the alleged assault occurred on June 28, 2014, and that it was the first incident. The Crown put a leading question to Robbin and this exchanged ensued: Q. All right. All right. Now you told police that the first incident happened on June 28th, 2014. How do you know it was June 28th, 2014? A. Right this moment I can’t totally recall how I remembered that back then. Q. Ok. A. I know that it was for me a really definitive point of something bad, really bad’s got to happen. Q. So you believe it to be June 29th, 2014. What did you observe that day? [16] Following that question there are several exchanges in which Robbin describes what the trial judge has referred to as the garbage bag assault. [17] I am satisfied that it is clear that Robbin accepted that the garbage bag assault was the first incident and that it occurred on June 28, 2014. [18] Later, in cross examination, Robbin was asked whether there were dates before June 28, 2014 that he recalled: Q. Now this incident, June 28, 2014, that you clearly stated was a definite point, you remember that June 28th date. No other date before, that was the date you remember, correct, June…. A. That’s the date I remember. Q. Correct. That’s the date you mentioned to police on the statement. That’s a definite date, correct. A. That’s and I had said to them from what I recall it was that day. [19] I am satisfied that it is clear that at this stage in the trial that Robbin is confirming that the assault occurred on June 28. It is also clear that Robbin recalls no date prior to June 28th. One can infer from that both incidents occurred on or after June 28th. [20] Robbin was further pressed in cross examination and asked if he would be surprised that the appellant was working for an entire two weeks during that time period and was away from home. It appears that Robbin began answering before the entire question was asked so I have slightly edited the question and answer to allow for a clearer understanding: Q. Okay, So if he was in Manitoba on a flight and on June 28th, are you still going to say that June 28th is the date? A. I still know the event happened and it was as I recalled it, it was on the 28th. [21] Thus far Robbin is consistent in his evidence that the assault happened, and his recollection is that it occurred on June 28th, and the threat occurred subsequently. [22] When Robbin was advised in examination in chief, by way of another leading question, that he told police something happened the following day (meaning the day after June 28th), Robbin responded that he would like to review his statement. Following which, he stated that the incident occurred at the “end of June”. He is clearly referring to the second incident. [23] In re-examination Robbin acknowledged that the incidents were on two separate days. However, he reversed the order of the events and stated that the threat occurred first. In response to a leading question he confirmed that the threat occurred on the 28th in the morning: A. Those were two separate days. Q. Which incident occurred first? A. The threat. Q. The threat, okay. And it’s the threat that you believed occurred on June 28th? A. Yes. Q. All right. Do you recall what time of day? A. Morning. [24] In summary, Robbin testified in examination in chief and in cross-examination that the assault occurred on June 28th, and the threat happened after the assault, and prior to the end of June. In re-examination he testified that the threat occurred first, and on June 28th. In re-examination he makes no further clarification as to when the assault occurred. #### Assault [25] When the trial judge deals with the garbage bag assault she does so under the heading “Re June 29, 2014 ‘Garbage Bag Assault’”. Although she does not specifically state that she finds that the assault occurred on June 29, 2014, it is a logical inference from her heading that is her finding. [26] The trial judge rejects the appellant’s evidence that he went to church before going to the airport that day. She accepts Robbin’s evidence that the appellant hit the top of the garbage bag and concludes that this assault is why Charmaine was not at the home on the 30th when Ross moved in. Finally, she convicts on this count. [27] The only specific evidence as to the exact date this assault occurred can be found during Robbin’s examination in chief when he agreed in response to a leading question that the assault incident occurred on June 28 2014, and in cross examination when he agreed that he remembered that the incident occurred on June 28, 2014. [28] Until re-examination, Robbin stated that the assault occurred first and on June 28th. It is only in re-examination that Robbin switches the order of the incidents and stated that the threat was first. In response to a leading question from Crown, he concurs that the threat occurred on June 28, 2014. Robin does not clarify, following his reversal in the order of the incidents, when the assault is alleged to occur. [29] Although the judge does not specifically find what date the assault occurred, we can infer that she concluded it was on June 29th from the use of the heading in her reasons. However, there is no evidence upon which to base that conclusion. This finding is unsupported on the evidence. The only evidence regarding a specific date of the assault is that it occurred on June 28, 2014. There is no other evidence on this point. [30] When considering the unreasonableness of a verdict ground of appeal, an appellate court is not entitled to re-try the case and substitute its own view of the evidence. Rather, the court must thoroughly re-examine and to an extent at least, reweigh and consider the effect of the evidence: [R. v. W.(R.), [1992] 2 S.C.R. 122](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii56/1992canlii56.html). The test is whether the verdict was one that a properly instructed jury acting reasonably could have reached: [R. v. Biniaris, [2000] 1 S.C.R. 381](https://www.canlii.org/en/ca/scc/doc/2000/2000scc15/2000scc15.html). The question is not whether it was the only reasonable verdict, but whether it was a reasonable verdict: [R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.)](https://www.canlii.org/en/on/onca/doc/2003/2003canlii5709/2003canlii5709.html). [31] The Supreme Court of Canada has re-iterated the test on appeal, where the appellant seeks to overturn a conviction by having the appellate court interfere with findings of fact or inferences drawn in [R. v. Clark, [2005] 1 S.C.R. 6](https://www.canlii.org/en/ca/scc/doc/2005/2005scc2/2005scc2.html) at para. 9. Findings of fact and factual inferences drawn by the trial judge must be clearly wrong or unsupported by the evidence for an appellate body to interfere. [32] There is no evidence that the assault occurred on the date that the trial judge appeared to find that it occurred, namely June 29, 2014. [33] On that basis alone the conviction cannot stand. The question is whether an acquittal should be entered or a new trial ordered. [34] As noted in [R. v. Sinclair (2011), 270 C.C.C. (3d) 421 (S.C.C.)](https://www.canlii.org/en/ca/scc/doc/2011/2011scc40/2011scc40.html) at paragraph 23: The remedy will depend on the circumstances of the case. Where the verdict is found to be unreasonable under Beaudry and, in any event, unavailable on the record, an acquittal will ensure pursuant to Biniaris. But where the verdict is found to be unreasonable under Beaudry and the record discloses “evidence capable of supporting a conviction, a new trial will be ordered. [35] I am satisfied that the verdict is unreasonable, and is unavailable on the record. The appeal with respect to that conviction is successful, the conviction is set aside, and an acquittal is entered on that charge. [36] Further, nowhere does the trial judge explain that she was alive to the inconsistencies in Robbin’s evidence or how she reconciles them. The reasons are insufficient on this issue. This is an error of law which would entitle the appellant to a new trial, had I not found that there was no evidence upon which to base the judge’s finding of guilt. [37] In the alternative, if the trial judge’s use of the heading is not a finding of fact, then nowhere does she explicitly find the date when the alleged assault occurred. [38] The appellant is entitled that finding. [39] The failure to make a finding regarding the date on which the alleged assault occurred is an error that would entitle the appellant to a new trial had I not determined that an acquittal was in order. #### Threat [40] Turning to the threat conviction, the trial judge found that the threat occurred in the morning during the month of June 2014. However, she does not deal with the inconsistencies in Robbin’s evidence regarding when it occurred. She appears to eliminate June 28th as the day that the threat could have been uttered because the appellant’s flight schedule shows the appellant away from the house on that day. She concludes that there were other days in June that he and Charmaine were both at home and therefore says: The question becomes if I believe beyond a reasonable doubt that Bill uttered this death threat to Charmaine at the end of June 2014 when, according to Robbin, things between the two of them were escalating. Because I accept Robbin’s evidence as accurate, reliable and true in this regard, I am satisfied that one early morning in the month of June 2014 this death threat was uttered. [41] This finding, in addition to raising a concern about a W.D. analysis to which I will refer later, shows a failure to analyze and deal with the inconsistencies in the evidence of the witness upon whom the trial judge relied in making a finding of guilt. This is a clear error of law. [42] Further, if one accepts Robin’s last position that the threat occurred on June 28th, then the trial judge’s finding is inconsistent with the only evidence upon which she relies as she has eliminated June 28th as a possible date: see paragraph 229. [43] Alternatively, if the earlier position of Robbin is relied upon, the threat had to have occurred on June 29 or 30 since Robbin testified that it occurred on a separate day, after June 28. However, that is problematic, as the trial judge appears to find that the garbage bag assault occurred on June 29 and she finds as a fact that Charmaine was not in the home on June 30. [44] I am satisfied that the trial judge’s conclusion that the threat was uttered one early morning in the month of June is clearly wrong and unsupported by the evidence. [45] As the verdict is unreasonable and not available on the record, the conviction of utter death threats cannot stand: The appeal on this count is granted, the conviction is set aside, and an acquittal on this charge is granted. #### W.D. Analysis [46] The appellant has raised the issue as to whether the trial judge properly undertook a W.D. analysis. The trial judge is clearly aware of that test as she refers to it in paragraph 210 of her reasons. However, I am satisfied that she in fact did not undertake that analysis. [47] There is no obligation to parrot the words or slavishly follow a certain procedure. The entire judgment should be examined to determine with the W.D. analysis has been followed. [48] However, nowhere in the judgment does the trial judge analyze whether the evidence of the appellant and/or Charmaine raise a doubt in her mind. She simply states that she finds “their evidence to be not credible” for reasons, some of which I will discuss later. [49] It is clear that the trial became a credibility contest when the trial judge concludes with respect to the threat charge: “[b]ecause I accept Robbin’s evidence as accurate, reliable and true in this regard, I am satisfied that one early morning in the month of June 2014, this death threat was uttered”. [50] The trial judge erred in not undertaking the W.D. analysis for all three charges. #### Browne and Dunn [51] In analyzing the appellant’s testimony, the trial judge lessens the weight “attributable to almost all of Bill’s account”, on the basis of violations of the rule in Browne and Dunn. In paragraph 217 she adds further matters that, in her view, violated the Rule. [52] Two issues arise on this point. Were there violations of the rule and second, was it appropriate in these circumstances for the trial judge to utilize this rule with respect to a significant portion of the appellant’s testimony. [53] The Crown submits that this issue was raised once during the trial and there was no further need for the Crown to object during the appellant’s testimony. The trial judge had the right to treat the other violations in the same manner as she treated the one to which Crown objected. In other words, the defence was on notice and should govern itself accordingly. [54] Defence submits that the Crown must object to each instance at the time so that the issue can be canvassed and remedies considered. [55] During the trial, questions were put to the appellant about Robbin’s education. The Crown objected on the basis that this had not been put to Robbin. A discussion about this issue by counsel ensued. The court discussed options and left to the defence counsel the option as to whether Robbin would be re-called, or whether the trial judge would disregard that testimony. Counsel elected to not recall Robbin: Volume II, page 109 to 110 of the trial. [56] Justice Watt in [R. v. Quansah, 2015 ONCA 237](https://www.canlii.org/en/on/onca/doc/2015/2015onca237/2015onca237.html) at paragraph 130 stated that “…the Browne and Dunn objection crystallizes when an accused gives evidence on a point of substance about which a relevant Crown witness was not cross-examined. The time is ripe for an objection…” [57] In [R. v. P.F., 2012 ONCA 807](https://www.canlii.org/en/on/onca/doc/2012/2012onca807/2012onca807.html), the Ontario Court of Appeal dealt with a situation where the trial judge in closing submissions asked the effect, if any, of the failure to cross-examine A. P. on written consents allegedly given by her to the accused to have sex. The Crown urged the judge to draw an adverse inference because the defence failed to cross-examine A.P. about these consents. The Defence submitted that no such adverse inference be drawn. No one suggested recalling A. P. [58] The Court of Appeal held that it was open to the trial judge to draw an adverse inference and denied that any unfairness flowed from the drawing an adverse inference, despite the fact that the Crown did not object when the accused was testifying about the consents in his examination in chief. [59] The court held that there could have been strategic reasons for the Crown to not object, and founded its decision on the concept of trial fairness. [60] I am satisfied that the instant case can be distinguished from P.F. In that case, the trial judge raised the issue during submissions and allowed counsel to canvass the situation. In our case the trial judge did not raise the issue. The parties had no opportunity to discuss remedies: remedies that could have included recalling Robbin. [61] I do not accept the Crown’s argument that once a Browne and Dunn objection is made, there is no further need to raise the objection with respect to other evidence. Trial fairness is the basis for the rule and to accept the Crown’s position would create trial by ambush, and create the opposite of trial fairness. [62] As J. Watt stated, the objection crystalizes when the evidence is given. The time to make the objection is then. [63] It was an error for the trial judge to identify potential Browne and Dunn breaches, and then, without receiving submissions from counsel on remedies, impose her own remedy, the effect of which was to seriously undercut the credibility of the appellant. [64] I need not therefore analyze whether the matters raised as breaches were in fact breaches. ## Other Grounds of Appeal [65] The appellant raised a number of other grounds for appeal, many of which have merit; however, in light of my findings, I need not deal with them. [66] I will now turn to the appeal with respect to the assault charge against MacDonald. ## Assault against McDonald ### Reasons for Judgment [67] At the end of the trial on March 27, 2015 the trial judge found the appellant guilty of assaulting Robbin MacDonald with reasons to follow. Those reasons were dated April 27, 2015. [68] The trial judge states at paragraph 213 that “Robbin gave a consistent account of the incident. His account was not shaken in cross-examination.” In the next paragraph she refers to Ross Dion who she states is the only independent witness. [69] The trial judge also found that “Robbin and Bill gave diametrically opposed accounts of the incident”. ### Analysis [70] The appellant raises a number of grounds of appeal with respect to this assault. I will deal first with the issue of the duty of the trial judge to give reasons. [71] In R.E.M, McLachlin C.J. set out on behalf of the court the functions of a trial judge’s reasons in a criminal case. At para. 11, she wrote: The authorities establish that reasons for judgment in a criminal trial serve three main functions: 1. Reasons tell the parties affected by the decision why the decision was made. As Lord Denning remarked, on the desirability of giving reasons, “by so doing, [the judge] gives proof that he has heard and considered the evidence and arguments that have been adduced before him on each side: and also that he has not taken extraneous considerations into account”: The Road to Justice (1955), at p. 29. In this way, they attend to the dignity interest of the accused, an interest at the heart of post-World War II jurisprudence: M. Liston, “‘Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law”, in D. Dyzenhaus, ed., The Unity of Public Law (2004), 113, at p. 121. No less important is the function of explaining to the Crown and to the victims of crime why a conviction was or was not entered. 2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Thus, it has been said that the main object of a judgment “is not only to do but to seem to do justice”: Lord Macmillan, “The Writing of Judgments” (1948), 26 Can. Bar Rev. 491, at p. 491. 3. Reasons permit effective appellate review. A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same time inhibiting appeal courts from making factual determinations “from the lifeless transcript of evidence, with the increased risk of factual error”: M. Taggart, “Should Canadian judges be legally required to give reasoned decisions in civil cases” (1983), 33 U.T.L.J. 1, at p. 7. Likewise, appellate review for an error of law will be greatly aided where the trial judge has articulated her understanding of the legal principles governing the outcome of the case. Moreover, parties and lawyers rely on reasons in order to decide whether an appeal is warranted and, if so, on what grounds. [Emphasis added.] [72] At paras. 15-17, McLachlin C.J. set out the test for sufficient reasons: This Court in Sheppard and subsequent cases has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review. It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; [R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.)](https://www.canlii.org/en/on/onca/doc/1995/1995canlii3498/1995canlii3498.html), at p. 524). These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” - the verdict - and the “why” - the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. [Italics in original.] [73] Finally, at para. 35 of the decision, McLachlin C.J. summarized the law regarding the sufficiency of the trial judge’s reasons as follows: In summary, the cases confirm: (1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at p. 524). (2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary. (3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial. [74] An error of law may arise where deficiencies in a trial judge’s reasons prevent meaningful appellate review of the correctness of the trial judge’s decision. An error of law also arises where the trial judge fails to appreciate or consider relevant evidence based on a misdirection concerning an applicable legal principle. [75] A careful review of the trial judge’s reasons reveals that she found Robbin to be credible and she found the appellant to not be credible. One can infer therefore that she accepts Robbin’s account of the incident. Unfortunately, nowhere does she explicitly find as a fact exactly what occurred. More damaging, nowhere does she state what actions she found to constitute the assault. [76] The appellant is entitled to those findings of fact and findings as to what actions the trial judge determined constituted an assault. [77] On that basis alone the appeal on this count is allowed and a new trial ordered. [78] I am satisfied that my conclusion regarding the trial judge’s use of the rule in Browne and Dunn to undermine the credibility of the appellant is equally applicable to this charge as many of the items mentioned by the trial judge relate to the appellant’s account of his interaction with MacDonald. This error would entitle the appellant to a new trial. [79] Also, I am satisfied that the trial judge failed to undertake a W.D. analysis of the appellant’s evidence on this charge. This error would entitle the appellant to a new trial. [80] The appellant raised numerous other grounds for appealing this conviction. However, in light of my decision on this ground of appeal, I need not deal with the balance of grounds. ## Summary [81] In summary, I grant the appeal and order that the convictions of assault (2x) and uttering a threat be set aside; and, a) as to the assault charge against Charmaine and the utter threat charge, I grant an acquittal on each charge. b) as to the assault charge against Robbin, I return this matter to the Ontario Court of Justice for a new trial with a different judge. --- Edwards J. **DATE:** June 22, 2016