ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
L. Bandini, for the Respondent
- and -
BROCK WARRINER
Appellant
J. DiLuca, for the Appellant
HEARD: January 13, 2016 in Milton
REASONS FOR JUDGMENT
[On appeal from the judgment of Wolder J. dated February 27, 2015]
André J.
1Mr. Brock Warriner (“Mr. Warriner”) appeals his conviction of Assault Causing Bodily Harm on the following grounds:
(1) The learned trial judge erred by reversing the burden of proof in his analysis of the defence evidence.
(2) The learned trial judge erred by misapprehending the law of self-defence.
(3) The learned trial judge applied an uneven standard of scrutiny to the evidence.
(4) The learned trial judge engaged in impermissible speculative reasoning.
2The Crown submits that when the trial judge’s reasons for judgment are read in their entirety, he did not commit any of the errors of which Mr. Warriner complains about.
SUMMARY OF THE EVIDENCE AT TRIAL
3Mr. Warriner co-owns a pub in Oakville. Mr. James Jack Phillips (“Mr. Phillips”) was a patron of the pub. Once or twice weekly, Mr. Phillips attended at the pub, sat in the same spot at the bar, and typically imbibed six to ten beers per visit.
4On November 13, 2013, the 350 pound Mr. Phillips attended the bar with his daughter, Stephanie Phillips (“Ms. Phillips”) and occupied his usual seat. Mr. Warriner’s fiancée, Nathalie Stevens (“Ms. Stevens”), tended the bar. Mr. Warriner was home at this point.
5Ms. Phillips apparently became upset at the pace of service that evening. She complained to Ms. Stevens who started to cry. Ms. Stevens contacted Mr. Warriner, who spoke to Mr. Phillips. There was a divergence in the evidence regarding this conversation. Mr. Warriner testified that he asked both Mr. Phillips and Ms. Phillips to leave the bar. Mr. Phillips however, testified that Mr. Warriner only asked his daughter to leave.
6Mr. Phillips remained in the bar. Mr. Warriner had then attended at the bar. He was visibly upset. He presented Mr. Phillips with his bill and ordered him to leave. One Crown’s witness testified that Mr. Warriner slammed the bill on the counter in front of Mr. Phillips.
7Mr. Phillips ignored Mr. Warriner, who had approached him. Mr. Phillips testified that, without warning, Mr. Warriner pushed him. The push caused him to fall backwards and hit his head on a bar stool as he fell. As a result, Mr. Phillips suffered a cut to the back of his head, which required fourteen staples to close. Mr. Phillips contacted the police about the incident. When the police arrived at the pub, Mr. Warriner and Ms. Stevens had already left. The police took a statement from Nathan Fidlin, who worked as a cook in the pub.
8Mr. Warriner testified that he pushed Mr. Phillips as a reflexive reaction. Mr. Warriner’s push was in response to Mr. Phillips allegedly pushing him with his left hand. He admitted that he was angry and that he had yelled at Mr. Phillips. He also testified that before the physical contact, he had walked over to Mr. Phillips and stood, in the words of the trial judge, “mere inches” from Mr. Phillips without touching him: Reasons for Judgment, page 7. Regarding the alleged assault, Mr. Warriner gave the following testimony at trial:
I was yelling, because I was so close to him. He just gave me a shove to push me back. He didn’t hit me or anything but he, like, hit my shoulder or pushed me away from him because, I guess, he felt I was too close. And, when he did that, I pushed back on his arm with my two hands and his chairs tittered and over he went.
9He further testified that “… it was like a reflex. I just – when I felt his hand on my – I just pushed it off. It was like swatting a mosquito or whatever, like, you just automatically.”
10During the trial, the defence called a number of witnesses. They all testified that Mr. Warriner had acted in self-defence or alternatively, that his action was merely a “reflex” action following a movement of Mr. Phillip’s hand.
TRIAL JUDGE’S DECISION
11The trial judge considered the Crown and defence’s theory. He concluded that Mr. Phillips did not push or strike Mr. Warriner with his right arm nor did Mr. Phillips attempt to do so. He noted that the movement the defence witnesses claimed to have observed was merely Mr. Phillips’ response to Mr. Warriner’s aggressive conduct. Mr Phillips’ response involved turning away from Mr. Warriner to reach for his beer. The trial judge made the following conclusion in his Reasons for Judgment at page 11:
The defendant is now trying to rationalize that particular motion on the part of Jim Phillips as being some form of apprehended assault which caused him to react reflexively in the manner that he did. I do not believe the evidence of the defendant on this issue.
12In his Reasons for Judgment, the trial judge also made the following conclusion at page 12:
I am satisfied beyond a reasonable doubt that the defendant’s two handed push which caused Jim Phillips to fall over and to be injured was made out of Brock Warriner’s sheer anger and frustration…
I find that the two-handed shove by the defendant against the complainant was extremely forceful in order to cause both the complainant, a 350 pound man who was seated on a barstool and leaning forward, together with the barstool, to fall over backwards.
13The trial judge then considered the evidence of two of the other Crown witnesses, Nathan Fidlin, and Helmut Kaatz.
14Regarding Mr. Fidlin’s testimony, the trial judge disagreed that Mr. Fidlin was not a credible witness because he conceded that he disliked Mr. Warriner. The trial judge found him to be a credible witness for the following reasons (Reasons for Judgment, page 12):
(1) he remained at the scene until the police arrived and gave an immediate account of his observations;
(2) he was not shaken in cross-examination;
(3) his testimony did not deviate from his original statement; and
(4) he was only twelve feet away from Mr. Phillips and was able to clearly observe the interaction between the two men.
15The trial judge also found that Mr. Fidlin’s testimony corroborated Mr. Phillips’ testimony in the following ways (Reasons for Judgment, page 13):
(1) he testified that Mr. Warriner was upset upon his arrival at the pub;
(2) Mr. Warriner prepared Mr. Phillips’ bill and slammed it on the counter before him;
(3) he testified that Mr. Warriner came up to Mr. Phillips;
(4) he saw Mr. Warriner place both hands on Mr. Phillips’ shoulder and push him back; and
(5) he testified that he did not see Mr. Phillips touch Mr. Warriner.
16Mr. Helmut Kaatz (“Mr. Kaatz”) also corroborated Mr. Phillips’ version of events. He was seated two seats away from Mr. Phillips. Despite having consumed several beers, he recalled Mr. Warriner becoming very angry and screaming at Mr. Phillips. He recalled Mr. Warriner walking over to Mr. Phillips while the latter was turning to reach his beer. He testified that he saw Mr. Warriner push Mr. Phillips on the upper part of his right arm with significant force. Mr. Kaatz was six to eight feet from Mr. Warriner when he observed the incident: Reasons for Judgment, pages 14-15.
17Regarding Mr. Warriner’s testimony that his action was merely a reflex action rather than an intentional assault, the trial judge made the following conclusion in his Reasons for Judgment: (Reasons for Judgment, page 19):
If the defendant had simply accidentally overreacted to a misperceived action on the part of the complainant as he claims and he, being the owner of the bar, I find that he would have immediately taken responsibility as the owner and would have assisted his customer to obtain the necessary medical help rather than immediately walking out and leaving others to deal with the consequences of his actions.
18He also concluded that Mr. Warriner’s fleeing was evidence of consciousness of guilt: Reasons for Judgment, page. 19.
19Following this analysis, the trial judge considered whether the evidence of the remaining defendant witnesses created a reasonable doubt in the Crown’s case.
20After reviewing the testimony of each defence witness other than Mr. Warriner, the trial judge made the following conclusion at page 28 of his judgment:
I am, therefore, satisfied that, after considering R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, none of the evidence that I have heard is capable of creating a reasonable doubt.
I, therefore, find Brock Warriner guilty of assault causing bodily harm as charged.
ANALYSIS
21This appeal raises the following issues:
(1) Did the trial judge err in law by reversing the burden of proof?
(2) Did the trial judge err in law by misstating and misapplying the law of self-defence?
(3) Did the trial judge err by applying an uneven standard of scrutiny to the defence evidence?
(4) Did the trial judge err by engaging in impermissible speculative reasoning?
ISSUE NO. ONE: Did the trial judge err in law by reversing the burden of proof in this case?
22Mr. Warriner’s counsel insists that he did. He submits that the trial judge found Mr. Warriner guilty beyond a reasonable doubt and then analyzed the defence evidence to determine if it was capable of raising a reasonable doubt. In so doing, defence counsel contends that he effectively reversed the burden of proof and placed it squarely on the shoulders of Mr. Warriner.
23Before analyzing whether or not the trial judge committed reversible error in his analysis of the evidence, I will summarize the applicable legal principles:
(1) A trial judge has considerable latitude in his or her findings of credibility. Absent palpable and overriding error, the factual findings of a trial judge must be accorded considerable deference: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 49; R. v. Cresswell, 2009 ONCA 95, [2009] O.J. No. 363, at para. 14; R. v. Biniaris, 2000 SCC 15, at paras. 32-33, 37 and 42.
(2) The standard of review of a question of law is correctness.
(3) In cases involving the assessment of credibility the court must consider the evidence in light of the Supreme Court of Canada tripartite test in R. v. W.(D.), 1991 93 (SCC), 3 C.R. (4th) 302, 63 C.C.C. (3d) 397. The test basically states that even if the trial judge disbelieves the accused or his or her witnesses, and find that the defence evidence is incapable of raising a reasonable doubt, the trial judge must nevertheless examine the totality of the evidence he or she accepts to determine whether or not the Crown has proven its case against the accused beyond a reasonable doubt.
(4) While a trial judge is not obligated to resolve every conflict in the evidence, at the very minimum, an accused is entitled to know “why the trial judge is left with no reasonable doubt”: R. c. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621.
24In this case, the trial judge initially analyzed the evidence of Mr. Phillips and Mr. Warriner. He provided cogent reasons why he found the former credible. Additionally, he provided cogent reasons why he disbelieved Mr. Warriner and found his evidence to be incapable of raising a reasonable doubt. The trial judge then considered the evidence of Mr. Fidlin and Mr. Kaatz. He provided reasons about why he found them credible. He also found that the testimony of these two witnesses significantly corroborated Mr. Phillips’ testimony.
25It was open to the trial judge to reject Mr. Warriner’s evidence and to accept that of the Crown’s witnesses. He did not commit any palpable or overriding error in so doing.
26After concluding that Mr. Warriner had intentionally pushed Mr. Phillips and that the latter had not made any contact with Mr. Warriner before being pushed, the trial judge then proceeded to consider whether the evidence of the remaining defendant witnesses raised a reasonable doubt in the Crown’s case.
27In my view, his decision to consider the defence witnesses’ evidence in this way did not reverse the burden of proof in this case. It is his analysis of all the evidence in light of the decision in R. v. W.(D.), rather than the order in which the witnesses’ testimony is analyzed, that is important. In analyzing the testimony of each defence witness, the trial judge gave reasons regarding why he disbelieved them and why he concluded that their evidence was incapable of raising a reasonable doubt. It was only after conducting the latter analysis that the trial judge found Mr. Warriner guilty beyond a reasonable doubt.
28In so doing, he clearly appreciated that Mr. Warriner did not have to prove his innocence; rather it was the Crown who had the burden of proving his guilt beyond a reasonable doubt. The trial judge did not merely reject the evidence of the defence witnesses because he accepted that of the Crown; he provided reasons about why he disbelieved the defence witnesses and why their evidence did not raise a reasonable doubt in the Crown’s case.
29As a result, this ground of appeal must fail.
ISSUE NO. TWO: Did the trial judge err in law by misstating and misapplying the law of self-defence?
30Mr. Warriner’s counsel submits that the trial judge was focused on whether Mr. Phillips assaulted Mr. Warriner to determine whether the latter’s use of force to repel Mr. Phillips was justified. Rather, the issue for trial should have been whether Mr. Warriner reasonably apprehended an assault, therefore justifying his actions. Mr. Warriner’s counsel submits that the trial judge’s failure to consider this latter point constitutes an error of law.
31In my view, the trial judge properly considered the latter question posed by Mr. Warriner’s counsel.
32Mr. Warriner gave two differing accounts of what transpired between Mr. Phillips and himself. In the first, he described his actions as having been retaliatory in nature (Transcript of the Evidence, dated November 19, 2014, at page 28, lines 24-30):
I was yelling… because I was so close to him, he just gave me a shove to push me back, he didn’t hit me or anything – but he, like, hit my shoulder to push me away from him, because, I guess he felt I was too close, and when he did that, I pushed back on his arm with my two hands…
33He later provided another account, different from the first (Transcript of the Evidence, November 19, 2014, at page 29, lines 9-13):
I just, it was like a, a reflex; I just, when I felt his hand on my, I just pushed it off – it was like swatting a mosquito, or whatever – like, you just automatically. I pushed away.
34The trial judge addressed both scenarios described by Mr. Warriner. He disbelieved Mr. Warriner’s evidence that his pushing of Mr. Phillips was a reflexive reaction to Mr. Phillips’ alleged push: Reasons for Judgment, page 17.
35The trial judge added that even if he accepted Mr. Warriner’s evidence that Mr. Phillips initially pushed him, he would find that Mr. Phillips’ push would have been “the truly defensive action”: Reasons for Judgment, pages 17-18.
36As for the suggestion that Mr. Warriner’s action was in self-defence, the trial judge concluded that Mr. Phillips “did not make any contact with Brock Warriner when he did so”. (i.e. when picking up his beer and turning his left arm towards the bar.) Based on the testimony of Mr. Phillips, Mr. Fidlin and Mr. Kaatz, this conclusion was open to the trial judge: Reasons for Judgment, page 18, lines 25-30.
37The trial judge dealt with the issue of whether Mr. Warriner reasonably apprehended an assault and therefore acted in self-defence. He concluded that he did not. He specifically noted that “the push by Brock Warriner was clearly not a reflexive reaction to an unexpected assault by the complainant and not a case of self-defence”: Reasons for Judgment, page 18, lines 5-8.
38As a result, this ground of appeal must fail.
ISSUE NO. THREE: Did the trial judge err by applying an uneven standard of scrutiny to the defence evidence?
39Mr. Warriner’s counsel insists that he did. He provides the following examples of the judge applying an uneven standard of scrutiny to the defence evidence:
(1) The trial judge found Mr. Fidlin to have been a credible witness despite his admitted dislike and antipathy towards Mr. Warriner. On the other hand, the trial judge rejected the testimony of Ms. Stevens largely because she was Mr. Warriner’s fiancée.
(2) Mr. Warriner left the bar following the incident without offering assistance to Mr. Phillips. The trial judge relied on this evidence as consciousness of guilt, despite the fact that Mr. Kaatz, one of the Crown’s witnesses, testified that he could not remember who left the bar first; whether it was Mr. Warriner or Mr. Phillips.
40Without doubt, the application of an uneven standard of scrutiny to the prosecution and defence evidence, even if the evidence was capable of supporting a conviction, constitutes a reversible error: R. v. T.(T.), 2009 ONCA 613, 68 C.R. (6th) 1, at para. 74; R. v. Gravesande, 2015 ONCA 774, [2015] O.J. No. 5882, at para. 43.
41Did the trial judge apply a different level of scrutiny to the testimony of Mr. Fidlin and Ms. Stevens? The trial judge found Mr. Fidlin to be a very reliable witness despite the fact that he did not like Mr. Warriner. This animus towards Mr. Warriner did not, in and of itself, warrant a rejection of Mr. Fidlin’s evidence. It was the trial judge’s prerogative to assess other factors to determine whether or not Mr. Fidlin was a credible witness.
42There is ample evidence that the trial judge did precisely that. First, he noted on page 9 of his Reasons for Judgment, that beside Mr. Warriner and Ms. Stevens, “the only witness who was present at the relevant time and who was in a sufficiently proximate position to observe what was happening and who had not been consuming alcohol that evening, was the cook, Nathan Fildin”.
43Second, the trial judge noted, at page 12 of his Reasons for Judgment, that Mr. Fidlin remained at the scene and gave an immediate account of his observations. Third, he noted that Mr. Fidlin was not shaken in cross-examination. Fourth, the trial judge found no suggestion that Mr. Fidlin’s testimony was inconsistent with his original statement. Fifth, he found that Mr. Fidlin was 12 feet away from Mr. Phillips and was therefore in a good position to clearly observe the interaction between Mr. Warriner and Mr. Phillips.
44The trial judge concluded, at page 21 of his Reasons for Judgment, that Ms. Steven’s evidence was “tainted by her close relationship with Brock Warriner and is not credible”. However, he did not simply rely on that relationship to determine that she was not credible. Just as he did with Mr. Fidlin, he assessed other factors to make that determination. He included the following factors in his Reasons for Judgment, page 20):
(1) she testified that she noticed no bleeding despite the fact that there was clear evidence that Mr. Phillips bled profusely after he fell from the barstool. She also claimed to have been three to four feet away from the men; in contrast, Mr. Tyson Ellis, a defence witness, testified that after Mr. Phillips fell, “Everyone else in the bar was helping, getting napkins and stuff for the blood on Mr. Phillips’ head”. Transcript of the Evidence, November 19, 2014, page 110;
(2) she contradicted Mr. Warriner’s evidence when she testified that Mr. Phillips pushed Mr. Warriner with such force that Mr. Warriner had to defend himself;
(3) although in charge of the bar, Ms. Stevens did not call the police and was not present when the police arrived; and
(4) she did not attribute Mr. Phillips’ fall to the fact that Mr. Warriner pushed him; rather, the fall occurred because he was too big for the stool and was not balanced properly on it.
45In my view, there is no evidence that the trial judge unevenly scrutinized these two witnesses’ testimonies. It was open to him to accept some, all or none of either witness’ evidence.
46The trial judge also gave cogent reasons for rejecting the other defence witnesses and finding that their evidence did not raise a reasonable doubt in the Crown’s case. Mr. Tyson Ellis (“Mr. Ellis”), a security guard at the bar, testified that Mr. Warriner did not shove Mr. Phillips; he merely defended himself and Mr. Phillips fell off his chair. The trial judge did not believe Mr. Ellis given that both Mr. Phillips and the stool “went down together”. Furthermore, contrary to Mr. Ellis’ testimony, Mr. Warriner testified that he shoved Mr. Phillips with both hands. Similarly, the trial judge rejected the testimony of Mr. Robert Mason because he claimed that he did not see any injuries on Mr. Phillips despite the fact that, given his location in the bar, he should have been able to see Mr. Phillips head strike the chair and the bleeding.
47Mr. Mitchell Manning (“Mr. Manning”) testified that he saw Mr. Phillips put out his arm and then saw Mr. Warriner push Mr. Phillips with both arms. The trial judge rejected his evidence because Mr. Manning admitted during cross-examination that he had discussed the incident with Mr. Ellis, Mr. Warriner and others. The trial judge rejected his testimony during re-examination, that he had not spoken to Mr. Warriner since the incident.
48Finally, the trial judge rejected Mr. Christopher Jean Nsereko’s testimony, that Mr. Warriner did not touch Mr. Phillips, for the following reasons:
(1) it was totally inconsistent with Mr. Warriner’s evidence and that of the other witnesses;
(2) by his own admission he was too drunk to know Mr. Phillips’ temperament; and
(3) he was too far away to remember what actually happened.
49Alison Rebecca and Martha de Silva, the defence’s other two witnesses, did not witness the incident.
50Based on the above, there is nothing in the trial judge’s Reasons for Judgment to support a conclusion that he gave unequal consideration to the Crown and defence evidence.
51What about the trial judge’s assessment of Mr. Warriner’s post offence conduct? He relied on Mr. Warriner’s failure to render assistance and his departure from the scene as evidence of a consciousness of guilt. He reasoned that had the incident been a reflex or accident, Mr. Warriner would have rendered assistance to Mr. Phillips.
52In my view, the trial judge’s decision regarding Mr. Warriner’s failure to render assistance and his departure from the scene does not constitute reversible error. It was open to him to draw that conclusion from the evidence. Even if he was wrong in doing so, the curative provision in s. 686(1)(b)(iii) of the Code, R.S.C. 1985, c. C-46, would apply, given that there was ample evidence to justify the guilty verdict in this case.
53For the above reasons, this ground of appeal fails.
ISSUE NO. FOUR: Did the trial judge engage in impermissible speculation?
54Mr. Warriner’s counsel maintains that the trial judge did, based on his conclusion that the push by Mr. Warriner was “extremely forceful”. He submits that there was an insufficient basis either by way of expert or circumstantial evidence to make a finding about the necessary degree of force.
55I would not give effect to this ground of appeal. It is simply a matter of common sense that a great amount of force was required to push this 350 pound man and the stool on which he sat, to the ground. Mr. Warriner, by his own admission, weighed 180 pounds at the time of the incident: Transcript of the Evidence, November 19, 2014, page 63. He testified that: “I got his arm and shoved it up in the air and off my shoulder”: Transcript of the Evidence, November 19, 2014, page 61. Helmut Kaatz, whose evidence the trial judge accepted, testified that Mr. Warriner ran up to Mr. Phillips and shoved him with two hands: Transcript of the Evidence, November 18, 2014, page 111. There is simply no evidentiary basis for the submission that the trial judge relied on impermissible speculative reasoning in finding that Mr. Warriner pushed Mr. Phillips with “extreme force”. Accordingly, this ground of appeal must fail.
DISPOSITION
56The appeal is dismissed.
André J.
Released: January 25, 2016
CITATION: R. v. Warriner, 2016 ONSC 533
COURT FILE NO.: 98/15
DATE: 20160125
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
BROCK WARRINER
Appellant
REASONS FOR JUDGMENT
André J.
Released: January 25, 2016