Court File and Parties

COURT FILE NO.: CR-14-50000132-00AP DATE: 20160812

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – STEPHEN ALEXANIAN Appellant

Counsel: Luke Schwalm, for the Crown Paul Burstein, for the Appellant

HEARD: April 21, 2016

REASONS FOR JUDGMENT [On appeal from the conviction dated August 29, 2014 and the sentence imposed on October 21, 2014 by Justice G. Lapkin of the Ontario Court of Justice]

B. P. O’Marra J.

OVERVIEW

[1] The appellant was convicted of assaulting his wife. He now advances several grounds of appeal including ineffective assistance of counsel.

The Facts

[2] In December 2013, the complainant and the appellant had been married for seven years. On December 26, 2013, the complainant’s mother and sister were at her home and the appellant was out. The complainant told her sister about one or more assaults that had occurred at the hands of the appellant. Her sister phoned the police. Constable Joanne Day attended the residence at around 2:30 a.m. The complainant provided a statement describing an incident that had occurred on December 18 or 19, 2013. In cross-examination, the complainant testified that there were assaults happening on different days and that she told Constable Day about several incidents. Constable Day chose to focus on the December 18 incident in her notes.

[3] In relation to the December 18/19 incident, the complainant testified that the appellant arrived home at around 7:30p.m. The complainant confronted him about contacting his ex-girlfriend. She testified that he got very upset, grabbed her by the collar and pushed her against the wall and said, “You want to see the devil? I'll show you the devil” and called her a “fucking bitch.” The complainant testified that he also told her, “You can sleep with a hundred guys, but you fuck with my career, then you’re fucking with me.” This was in relation to the complainant contacting a friend of the appellant’s from acting class. The appellant then dragged the complainant and threw her to the floor. He put his knee on her collarbone, leaning his weight into her and jumping on her. Eventually he got off and the pair went to the bedroom. The appellant brought the complainant icepacks for her bruises and they slept apart. The complainant testified that the altercation lasted for 30-45 minutes in total. Photographs of the complainant’s bruises were taken by police and filed at trial.

[4] A further incident of December 23 was elicited in cross-examination. The complainant testified that she confronted the appellant about his “double life” which she described as lying and cheating. They argued. The appellant pushed her onto the bathroom tiles then took her to the bedroom and put his weight onto her neck.

[5] The appellant testified that he was not home on December 18. In cross-examination he said, “I don’t recall if I was there” and that “[T]he last I recall was watching a DVD at home [his parent’s house], and that’s as far as my memory goes of that day.” He had an early morning class, or else was celebrating finishing that class in the early morning. He attended work and then went Christmas shopping with his mother. After shopping, he went to his mother’s home in Mississauga and watched a TV show on DVD. He specifically recalled it was “Beastmaster.” He denied assaulting the complainant. He admitted that he could not recall what he had said to her. The appellant said the complainant slapped him.

[6] The appellant testified that on December 23 he finished work at 5:30p.m. He met the complainant at Square One for an appointment with a psychotherapist for marriage counselling. They later went home. The complainant became upset and was yelling at the appellant. She took a bottle of liquor into the bedroom. The appellant lay down on the couch and put on a movie. He fell asleep there. He denied assaulting the complainant.

[7] The appellant said the bruise on the complainant’s buttocks was caused when she slipped and fell in the bedroom. In cross-examination, he testified that she told him he had grabbed her wrists at one point to calm her down and had bruised her, and that could explain the bruises on her arms. He did not know how the complainant bruised her hip. He did not know how she bruised her leg but testified that the complainant had been drinking and he had seen her fall a number of times. He testified that other than the bruise on the complainant’s buttocks he did not notice any of the other bruises.

[8] Constable Day testified that the complainant was frazzled and upset when she gave her statement. She said the complainant described multiple incidents occurring over months and years. She decided to narrow in on the December 18 incident because the complainant had a very clear, fresh recollection of when and how it happened. It was also the most reflective of the injuries on the complainant. Constable Day agreed that the only assault allegation by the complainant that she noted referred to December 18 or 19, 2013.

FIRST GROUND OF APPEAL

The trial judge improperly relied on uncharged allegations as “similar act” evidence to bolster the complainant’s credibility.

[9] In examination in chief, the complainant did not say that the appellant assaulted her on December 23, 2013. The first reference to that was in cross-examination. Counsel for the appellant suggested to the complainant that on December 26, 2013 she told the police about an incident on December 23, 2013 but then changed the date to December 19, 2013. In response, the complainant said she told the police about more than one assault, including one on December 18 or 19, 2013 (which was the alleged incident before the court).

[10] Counsel for the appellant later called the officer who interviewed the complainant to testify in chief. The officer agreed that there was only one incident of assault referred to in her notes. However, the officer testified that the complainant described “several assaults…ongoing for a long period of time – months, years.” The officer chose to record specific reference to only one specific allegation of assault that led to the charge before the court.

[11] The tactical purpose for raising the issue of other assaults in cross-examination of the complainant was to challenge her credibility. The trial judge referred to this evidence in his reasons for judgment as relevant to what was said to the officer. He specifically stated that he was not using reference to other assaults for the truth of what was said to the police.

[12] The reference to assaults on other occasions was at the instance of counsel for the respondent. I do not agree that the trial judge erroneously considered this as “similar act” as referred to in R. v. Handy, 2002 SCC 56, [2002] S.C.J. 57.

[13] This ground of appeal is dismissed.

SECOND GROUND OF APPEAL

The trial judge’s reasons do not provide a reasonably-intelligible demonstration that the central issues were fairly and fully-decided.

[14] The information alleged an assault on December 18, 2013. This ground of appeal relates specifically to the basis upon which the trial judge found that an assault had occurred on that date.

[15] The complainant testified that the assault occurred on December 18 or 19, 2013. In her statement to the police on December 26, 2013, the complainant referred to two assaultive incidents and said one happened “last week”. That would reasonably place the incident on December 18 or 19, 2013.

[16] The appellant submits that the specific date of the alleged assault is very significant in this case since he testified that he was not home that night. His evidence was in fact more equivocal. In reference to December 18, 2013, he said “I don’t recall if I was there. I was watching a DVD. That’s all I remember”. That was a rather vague alibi.

[17] The evidence at trial included photos of bruises to the complainant’s arms, legs, chest and buttocks. The photos were taken on December 26, 2013. The police observed other bruises that did not show well in the photos. The injuries did not appear to be fresh. Whether or not the crown had proven that the appellant caused those injuries depended on the credibility of the complainant and the appellant. In the particular circumstances of this case, it was reasonable for the trial judge to find that the injuries were caused on either December 18 or 19, 2013. It was not an essential element that the crown prove that the offence occurred on December 18th rather than December 19th. See R. v. B. (G.), [1990] S.C.J. No. 58 at para. 44.

[18] This ground of appeal is dismissed.

INEFFECTIVE ASSISTANCE OF COUNSEL

[19] The appellant submits that the performance of trial counsel fell below the requisite standard of competence in three areas. I find there is one aspect that requires that a new trial be ordered.

[20] The well-established principles to be applied where there is a claim of ineffective assistance of counsel were recently referred to in R. v. Al-Shammari, 2016 ONCA 614, at paras. 74 – 78:

(1) The test for ineffective assistance of counsel claims is a stringent one that proceeds on the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. There is to be a deferential assessment that does not involve asking whether counsel could have done a better job. (2) Incompetence must be demonstrated on a balance of probabilities. (3) To overturn a conviction on the basis of ineffective assistance, counsel’s conduct must have undermined the appearance of the fairness of the trial or the reliability of the verdict. (4) There are three aspects to be considered: (i) The factual component; (ii) The performance assessment; and (iii) The prejudice analysis. (5) The prejudice analysis is considered before considering the adequacy of trial counsel’s performance. The appellant must demonstrate that had the trial counsel conducted the case differently, there is a reasonable probability that the verdict could have been different. (6) A reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability. (7) The court will not accept allegations of ineffective representation arising out of a tactical decision made on the express instructions of the client. See R. v. L.O., 2015 ONCA 394 at para. 22. (8) The appellant has the burden of showing facts said to support the ineffective representation claim. He does not meet that burden by asserting facts for which there is no evidence, nor by asking the court in the absence of evidence to draw inferences against trial counsel’s conduct of the defence.

[21] Trial counsel had access to two sets of text messages sent by the complainant. The first set were extracted from the appellant’s cell phone. The second set were messages sent by the complainant to the appellant’s sister. Trial counsel did not cross-examine the complainant about any of the text messages sent in the six-week period ending December 26, 2013 (the “precharge texts”). That was the first date that the complainant ever claimed that the appellant had been assaulting her.

[22] The appellant submits the following in regard to the failure to cross-examine the complainant related to those precharge texts:

• There is no mention of physical abuse by the appellant in the precharge texts. The complainant was critical of the appellant but did not allege any assaults.
• In a text message sent twelve hours before first alleging that the appellant had been assaulting her, the complainant claimed to have “sliced (her) wrist and cut (her) vein”, seriously enough to call 911 for help. The only call that followed was to the police who attended thirteen hours later. Photos were taken of the complainant that do not show any cuts that required emergency assistance.
• In text messages in the days surrounding December 26, 2013, the complainant indicated a strong desire for the appellant to return home with her. This was contrary to her testimony that she was very frightened of him at that time.
• Trial counsel limited his cross-examination of the complainant on the text messages to those she sent many months after she first alleged that the appellant ever assaulted her.

[23] The respondent submits that trial counsel made a reasonable tactical decision not to confront the complainant with the precharge texts. Trial counsel claims that the complainant admitted in cross-examination that she was angry with the appellant for various reasons when she made the assault allegations. He felt that the precharge texts would add little to the argument that her motive to fabricate was anger. Trial counsel was also concerned that those texts would expose that the appellant was leading a deceptive double life. This could make the complainant appear more sympathetic.

[24] Trial counsel did not seek or obtain express instructions to not refer to the precharge texts in cross-examination of the complainant. He was not required to do so. However, it must also be said that the appellant had no control or input as to how his trial counsel would deal with this available evidence.

[25] The fact that the complainant did not report any assaults by the appellant in text messages preceding December 26, 2013 does not mean she was not assaulted. If she had been cross-examined on those messages, the court would have to consider any explanation she might have for not reporting any assaults. Evidence in the text messages that she wanted to resume living with the appellant despite being afraid of him does not mean he did not assault her. Again, her explanation for this would have to be assessed by the court in light of all other evidence. In a case hinging on credibility, the responses to such questions could reasonably have affected the overall assessment of her credibility and reliability. See R. v. D.D., 2000 SCC 43 at paras. 63 and 65.

[26] Trial counsel chose not to refer to the precharge text messages for the following reasons:

(i) They refer to the conduct and lifestyle of the appellant in a negative way that would constitute evidence of bad character; and (ii) They could elicit sympathy for the complainant.

[27] These concerns were seriously misplaced. The complainant had already testified in chief and in cross-examination that the appellant was unfaithful in the marriage. Such evidence could not be considered by the trial judge as bad character of the appellant. The precharge text messages were only relevant and admissible related to the credibility of the complainant. In addition, it would have been improper for the trial judge to assess the credibility of the complainant or reach his final verdict based on sympathy for the complainant. The permissible use of this evidence far outweighed any possible misuse by the trial judge.

[28] Trial counsel acknowledged that a motive to fabricate based on anger was relevant to the attack on the complainant’s evidence. The failure to put further precharge text messages in this regard to the complainant was an important missed opportunity to reinforce the alleged motive to fabricate. The appellant had no obligation to prove such a motive. However, to the extent it was demonstrated, it could have been significant in assessing her credibility and reliability.

[29] Cross-examination of the complainant on the precharge text messages could reasonably have impacted negatively on her credibility. The failure to cross-examine her on that readily available evidence fell below the standard of competence for counsel. In this case that hinged on credibility, there is a reasonable probability that but for the conduct of counsel, the result would have been different. This requires that there be a new trial.

OTHER GROUNDS OF APPEAL

[30] The further grounds of appeal relate to uneven scrutiny of the evidence of the two key witnesses and misapprehension of evidence. Both of those grounds relate significantly to the assessment of the complainant’s evidence. Since the appeal must be allowed based on ineffective assistance of counsel (specifically related to the cross-examination of the complainant), it is not necessary to deal with those issues.

[31] RESULT: the appeal is allowed and a new trial is ordered before a different judge of the Ontario Court of Justice.

[32] I am grateful to both counsel for their thorough and helpful submissions.

B. P. O’Marra J. Released: August 12, 2016