COURT FILE NO.: 70/15 DATE: 20170331 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N : HER MAJESTY THE QUEEN Respondent – and – SHERWIN BARNES Appellant
Robert Wright for the Respondent Lori Ann Thomas for the appellant HEARD: December 13, 2016
THEN j. :
OVERVIEW
[1] The appellant was convicted of one count of assault on August 11, 2015, following a one day trial before a judge of the Ontario Court of Justice and sentenced to a conditional discharge with 18 months’ probation and a DNA order. The appellant appeals only the conviction.
[2] The conviction was based entirely upon the assessment by the trial judge of the credibility of the only two witnesses, the complainant and of the accused who was her common law spouse, in accordance with the approach outlined in the decision of the Supreme Court in R. v. W.D., [1991] 1 S.C.R. 742.
[3] The complainant testified that she was awakened by the appellant at approximately 1:00 am on November 11, 2014, accusing her of infidelity based on a text on her cell phone and that he pulled her from her bed by her clothes and shoulder and struck her “strongly” with his fist in the back of her head, neck and back. The appellant testified he woke her gently and that no assault occurred but that they had a conversation about her infidelity which she admitted but refused to take any responsibility for it.
[4] Upon the conclusion of the evidence the trial judge rendered his decision shortly after submissions were made indicating that he disbelieved the evidence of the appellant, nor did his evidence raise a reasonable doubt. The trial judge indicated that he believed the evidence of the complainant and that he was satisfied, based on her evidence, that the Crown had proved the essential ingredients of the offence of assault beyond a reasonable doubt.
[5] The appellant submits that in assessing the evidence of the appellant the trial judge applied a different level of scrutiny to that applied to the complainant’s evidence. It is contended that the trial judge did not take a balanced approach to the evidence of the witnesses as he held the appellant strictly accountable for perceived deficiencies in his evidence but that he glossed over or excused the deficiencies in the evidence of the complainant in particular with respect to evidence surrounding the commission of the offence, but also with respect to deficiencies that were common to the evidence of both witnesses. In addition, it is submitted that the trial judge misapprehended the evidence of both the appellant and the complainant at least in one important respect involving the removal of clothing by the appellant and the accused. The appellant contends that the cumulative effect of these errors renders the conviction unfair and unsafe and requires either a quashing of the conviction or a new trial.
[6] In the particular circumstances of this case I would order a new trial for reasons which I shall elaborate.
The Facts
[7] Since 2004 the appellant was the common law spouse of the complainant with whom he shared a ten year old daughter who resided with them in an apartment in Scarborough.
[8] In August 2012, a woman contacted the appellant alleging that the complainant was having an affair with her husband. The complainant denied the allegation but the two agreed to attend marriage counselling.
[9] However, the appellant remained suspicious of her infidelity and had on earlier occasions indicated he would leave her if he obtained proof of her infidelity.
[10] In 2013 the appellant had an affair, which produced a child in January 2014. While this was disclosed to the complainant the marriage became increasingly dysfunctional, although both made efforts to reconcile for the sake of their child.
[11] On November 11, 2014, the couple had what the complainant described as a nice conversation earlier in the day in which the appellant indicated he wanted to give the relationship another try and in which the complainant told him that he would need to change and stop seeing other women. After the complainant had gone to sleep, the appellant began studying for an exam in the living room and subsequently began to hear messages being recorded on the complainant’s cell phone which was charging nearby. The appellant used the complainant’s password which he had surreptitiously obtained earlier in the day to access the complainant’s cell phone and saw messages which he believed to be proof of her infidelity.
[12] The complainant testified that she was awakened by the appellant shouting at her. She testified that he forcibly pulled her out of bed either by her clothing or her shoulder and began striking her “strongly” and repeatedly in the back and head with a closed fist. It should be noted that in cross-examination she conceded that she told the police in her statement that he pulled her out of bed by her hair and that the statement was correct as the incident would have been fresh in her mind. She also told the police that although she felt some swelling she had suffered no visible injuries. According to the complainant the assault ended when she agreed to discuss her infidelity with the appellant.
[13] The appellant testified that he entered the bedroom to confront her with the evidence on the cell phone. He testified that when he saw the messages on the complainant’s cell phone he felt a mixture of being upset and relief.
[14] He denied shouting at her but gently patted her on the leg to wake her. He denied assaulting the complainant. The appellant testified that he asked the complainant how she was going to deny the affair and that after pleading with him to return her phone she broke into tears and began discussing her infidelity. The appellant testified that when she stated she had been manipulated and refused to take responsibility for the affair he and she knew that the marriage was over. However, on cross-examination he stated that he still held out hope, even then, that the marriage could be saved.
[15] Shortly after the discussion the appellant indicated he was going out of the apartment to clear his head. The complainant testified that if he was going to leave that he should take his clothes with him. When he refused to do so, she testified that she placed his clothes outside the apartment door but took them back inside the door before he left the apartment. She made no mention of her actions with respect to the appellant’s clothes in her statement to the police explaining that she found her actions with regard to the appellant’s clothes embarrassing.
[16] By way of contrast, the appellant confirmed that the complainant had asked him to take his clothes with him before he left the apartment and that he refused to do so. However, he testified that prior to leaving the apartment the complainant had not placed his clothes either inside or outside the apartment. He testified that before he left he asked the complainant not to destroy his clothes as she had on one prior occasion by pouring bleach on his clothes. The complainant confirmed in her evidence that she had done this in the past. The appellant testified that upon his return to the apartment he found his clothes in the hallway outside the apartment and that it was he who gathered up his clothes and placed them inside the apartment at the door.
[17] The complainant testified that upon the appellant’s return, he began shouting when he saw his clothes on the floor and that he entered her bedroom removing her clothes from the closet and throwing them around the room. He also knocked over her shoe stand. The appellant testified that he was upset about her treatment of his clothes. The appellant told the complainant that his actions in the bedroom with her clothes was a response in kind. The complainant confirmed his evidence. The appellant then left the apartment a second time at which point the complainant called the police.
[18] The issues for determination on this appeal are as follows:
- Did the trial judge apply different standards of scrutiny to the evidence of the appellant and the complainant?
- Did the trial judge misapprehend the evidence in a material particular affecting the reasoning leading to conviction?
Different Standards of Scrutiny
[19] The Court of Appeal in R. v. Gravesande, 2015 ONCA 774 has recently reiterated the approach that must be taken to assessing whether a higher level of scrutiny has been taken to the evidence of the defence than to the evidence of the Crown. At paragraphs 18-19 the Court stated:
18 This court has repeatedly stated that it is an error of law for a trial judge to apply a higher or stricter level of scrutiny to the evidence of the defence than to the evidence of the Crown: R. v. Owen (2001), 150 O.A.C. 378, at para. 3; R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62; R. v. Phan, 2013 ONCA 787, 313 O.A.C. 352 at para. 30. However, as noted by Laskin J.A. in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39:
The "different standards of scrutiny" argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations.
19 For an appellant to successfully advance this ground of appeal, she must identify something clear in the trial judge's reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge's credibility assessments: R. v. Howe (2005), 192 C.C.C. (3d) 480 at para. 59 (Ont. C.A.); R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 98.
[20] In my view, the reasons of the trial judge reveal that he applied a different standard of scrutiny in assessing the evidence of the appellant and of the complainant in determining their credibility or lack thereof so as to render the resultant conviction both unfair and unsafe.
[21] The trial judge based his general conclusion that the appellant was not “an honest or truthful witness” on essentially negative findings as to the “plausibility” of his evidence and on his demeanour.
[22] With respect to the factors that he took into account in assessing the credibility of the appellant the trial judge identified, plausibility, or the likelihood that events happened the way the witness described them as the most important. The aspects of the appellant’s evidence which the trial judge found implausible are:
- The implausibility of the appellant’s assertion on cross-examination that his attendance at university had aroused suspicion and jealousy from the complainant;
- The implausibility of the appellant being able at trial to quote verbatim the words of the complainant and himself with respect to a conversation between them in 2012 and 2013 concerning an allegation by a woman who stated that the complainant had cheated with her husband.
- The implausibility of the appellant becoming concerned for his clothes as he was leaving the apartment and telling her not to destroy his clothes.
[23] With respect to the first of these examples of implausibility, i.e., his attendance at university, the appellant testified in chief and not as the trial judge stated in cross-examination, that because of his contact with female students and because of his participation in study groups and his borrowing of notes that the complainant became jealous and suspicious. The trial judge viewed this evidence as farfetched. While I agree that the complainant had far more reason to be jealous and suspicious based, as she testified, on his habitually staying out all night and his admitted fathering of a child with another woman, it is nevertheless entirely possible that his contact with female students could be a source of jealousy and suspicion in view of the perceived opportunities for infidelity which those contacts presented. In my view, this is a relatively minor matter and it is difficult to see how a finding by the trial judge that this evidence was implausible could greatly assist in determining the resolution of the relative credibility of the witnesses on the issue of whether an assault took place.
[24] Secondly, the trial judge did not believe the evidence of the appellant with respect to a conversation with the complainant which he purported to quote verbatim in which he acknowledged his own shortcomings and begged the complainant to acknowledge hers on the basis that people do not quote themselves nor remember precise words in emotionally stressful situations some two or three years later. While it is clear from the record that the appellant on several occasions appeared either to quote or to paraphrase what was said either by him or by the complainant, neither counsel attempted to clarify whether he was quoting or paraphrasing. It is also clear, as counsel for the appellant has submitted, that the complainant on several occasions in her evidence also purported either to quote or paraphrase the conversations that they had. However, because the complainant’s evidence in this regard did not attract adverse comments on the part of the trial judge, I agree that the treatment of the evidence of the appellant and the complainant was somewhat unbalanced on this issue.
[25] According to the trial judge the third implausible aspect of the appellant’s evidence was the implausibility of the appellant asking the complainant not to destroy his clothing as he left the apartment for the first time. The trial judge dealt with this issue as follows:
It was also, in my view, an implausible and dubious part of his evidence when for no particular reason, it seems to me, he anticipated that there would be some problem with his clothes. According to his evidence in-chief, before he left the apartment in this very upset, disturbed state that he described, he said "please don 't do anything to my clothes." Why he would be focusing on that at that particular moment is a bit of a mystery. The complainant acknowledged that something similar had happened on an earlier occasion, but why, in the middle of this dramatic breakup, he would be contemplating that she had some intent to damage his property is simply not believable.
She made some unnecessary admissions concerning, for example, throwing the clothes on a prior occasion and pouring bleach at that point. I do not think she could have been contradicted by any evidence, but she struck me as somebody who was testifying truthfully and answered the questions that were put to her by defendant 's agent in cross-examination in an honest way, even if earlier actions did not reflect on her very well.
(emphasis added)
[26] The respondent submits that in finding that the evidence of the appellant’s concern about damage to his clothes was unbelievable the trial judge has approached this issue in an unbalanced way, focusing on the emotional state of the appellant and ignoring the evidence on the record that would suggest that his concern about damage to his clothes was highly justified.
[27] First, in answer to the trial judge’s suggestion that there was no particular reason for him to have concern for his clothes in his emotional state the evidence of the complainant, who was also in an emotional state, is that she raised the issue of his clothes as he was about to leave. The complainant stated if he was going to leave to go to his girlfriend that he should take his clothes with him, but that he refused to do so.
[28] In the face of uncontroverted evidence of a refusal to take his clothes and evidence that in a prior emotional situation the complainant destroyed his clothes with bleach it is difficult to see why his concern was not plausible. Indeed, the complainant testified that when he refused to take his clothes, she threw his clothes into the hallway but because of her embarrassment retrieved the clothes and piled them on the floor inside the apartment door even before the appellant left the room. If that were true, given the emotional state of the appellant, as described by the trial judge, it would seem logical for the appellant to have thrown her clothes on the floor of the bedroom at that point, rather than doing so upon his return to the apartment, as both he and the complainant confirmed. In my view, the trial judge did not take a balanced approach to the evidence of the appellant and of the complainant on the issue of his concern with respect to the destruction of his clothes. In the context of all of the evidence on the issue the corroborative potential of her admission to destroying his clothes in the past was minimized while her truthfulness in making a declaration against interest, which normally would corroborate his credibility, was used by the trial judge to enhance her credibility.
[29] Finally, in cross-examination, the appellant’s agent put the following question and received the following answer:
Q . And I'm going to suggest to you Ms. Urdaneta Dominquez that he begged you not to destroy his clothes?
A No that happened after he say he had to – I said to him -- after we argued and he said to him that's all I needed to know then I'm going to my girlfriend so I said if you leaving, if you're going to your girlfriend then you have to leave today and pick up all your clothes then he said that he's not leaving there, he's only leaving there whenever he feels to leave the house or whenever he wanted or something like that.
(emphasis added)
[30] It would appear clear that the complainant in her evidence has corroborated the appellant’s evidence with respect to his concern for his clothes, albeit that the timing of the utterance remains unclear. In these circumstances, in my view, the trial judge in making a significant adverse finding of credibility against the appellant, misapprehended the evidence supporting his finding.
[31] The treatment by the trial judge of the appellant’s evidence that he begged her not to destroy his clothes is significant. The trial judge found that the appellant’s actions in scattering the complainant’s clothes demonstrated that he was “out of control” and in a “state of rage” not just upon his return to the apartment but also when he learned of the complainant’s infidelity and accordingly, rendering it more likely that he committed the assault. The appellant’s position was that his actions with respect to the complainant’s clothes were an immature response to the emotional or immature actions of the complainant with respect to his clothes in circumstances where he had begged her to refrain, and not a continuation of a state of rage which precipitated the assault.
[32] In this regard the trial judge ignored the evidence of the appellant that he told the complainant that he was going to throw her clothes in retaliation to her having thrown his clothes. This was evidence confirmed by the complainant.
[33] By glossing over the actions of the complainant with respect to the appellant’s clothes both on the night in question and on a prior occasion and by misapprehending the evidence of both the appellant and the complainant as to the reason for the appellant throwing her clothes, the trial judge has applied a different standard of scrutiny to the evidence of the two witnesses on this issue.
The Complainant’s Evidence
[34] The trial judge accepted the complainant’s evidence stating that he was left without a reasonable doubt regarding the accuracy of her account of the assault. With respect to her credibility he found that she “appeared to be a completely reasonable witness, a perfectly honest person.”
[35] In my view, however, the trial judge took an unbalanced view of the complainant’s evidence by glossing over the weaknesses in her evidence in two significant areas:
- The lack of visible injuries;
- The corroborative effect of the torn camisole.
[36] On the subject of visible injuries which is crucial evidence on the central issue in this case as to whether an assault occurred, the trial judge stated the following:
She admitted that there were some inconsistencies, ones that I regard as minor, but it is significant in my view that she gave a very matter-of-fact account of the event. She seemed fair. She did not exaggerate or embellish. She did not say she suffered any injuries. She said that she could feel the swelling at the back of her head, but there was no visible injury and she did not make it sound as though she had been the victim of a more severe beating than she described in her evidence, consisting of some blows, apparently with his closed fist because that is what it felt like to the back of her head.
She appeared to be a completely reasonable witness, a perfectly honest person, who obviously has regrets about how the situation developed and the predicament that both parties find themselves in having to air this dirty laundry in a courtroom like this, but I am satisfied that events occurred as she described.
… That there were no visible injuries, in my view, does not contradict her evidence that she was hit how and where she testified she was hit. So, I do accept her evidence. I do not have any reasonable doubt in this case. So, I do accept her evidence. I do not have any reasonable doubt in this case.
[37] In my view, if the evidence of the complainant concerning the assault were accurate, it would be reasonable, as the respondent submits, for there to be visible injuries. The complainant testified that she was struck “repeatedly” and “strongly” on the back of the head, neck and back with a closed fist causing her considerable pain. Not only did this evidence not raise a concern by the trial judge as to the plausibility of her evidence as to whether or not an assault occurred, given the lack of visible injuries, but rather affirmed her credibility on the basis that she described her injuries, or lack of injury, accurately.
[38] With respect, the trial judge has converted a significant weakness in her evidence into a positive reason to find her account of assault credible and accurate simply because she has stated what would be obvious to the police in any event. Moreover, it is simply not available on the evidence for the trial judge to have reasonably concluded that the lack of visible injuries do not contradict her evidence of how and where she was hit. Evidence that she was repeatedly struck by hard blows with a closed fist would reasonably at the very least raise a concern as to her credibility in a critical area, but instead was excused or glossed over. In my view, on this central issue the trial judge has subjected the evidence of the complainant to a lesser standard of scrutiny than that applied to the appellant’s evidence.
[39] With respect to the corroborative effect of the torn camisole, the trial judge stated the following:
The photograph of her torn camisole or tank top - I think it was referred to as a camisole - is confirmatory of her account. I appreciate the point that was made about her statement to the police not saying she had been dragged out of bed by by his grabbing that part of the clothing she was wearing, but somebody obviously directed the attention of the SOCO officer to the ripped camisole, no doubt suggesting that it had some evidentiary significance to the case and the picture was taken. It seems to me that that is not only consistent with her evidence, but her acknowledgement that having told the police initially that she was grabbed by the hair was probably a more accurate description since it was closer in time, but it does not rule out that likelihood that both things happened. She was left with a torn camisole, and there is a photograph of it.
[40] In dealing with the issue of the torn camisole the trial judge was obviously aware that the complainant had testified in her evidence at trial that she had been grabbed by her shoulder and her clothing and forced to the ground before the assault with the appellant’s fist commenced. However, on cross-examination she acknowledged that in her statement to the police the complainant stated that she was grabbed by her hair and forced to the ground. Notwithstanding this stark inconsistency, the trial judge did not consider whether the complainant had tailored her evidence at trial to conform with the photo introduced by the Crown of the torn camisole but instead assigned corroborative value to the torn camisole on the basis that the torn clothing could have been caused by the actions of the appellant.
[41] In my view, it is difficult to see how the evidence of the torn camisole can be “confirmatory of her account” when her account with respect to the actions of the appellant, which may have caused the torn camisole, are starkly inconsistent. The trial judge’s conclusion that the evidence of the torn camisole has corroborative value is based on speculation resulting in an unwarranted enhancement of the complainant’s credibility in a significant area.
[42] When read as a whole, the reasons of the trial judge demonstrate that after subjecting the evidence of the appellant to rather intense scrutiny, he rejected the evidence of the appellant as implausible and incredible for tenuous reasons with respect to matters which were collateral to the crucial issue of whether an assault occurred. On the other hand the trial judge in accepting the evidence of the complainant beyond a reasonable doubt glossed over the implausibility of her account of how or if the assault took place given the absence of visible injury and further engaged in speculation in considering evidence he found corroborative of her account of the assault.
[43] I would apply the conclusion reached by the Court of Appeal in Gravesande, supra, at para. 43 as appropriate to the facts of this case:
43 Even if the evidence was capable of supporting a conviction, where the trial judge has applied different standards to the assessment of prosecution and defence evidence the appellant has not received a fair trial, and thus has been the victim of a miscarriage of justice: R. v. T.T., 2009 ONCA 613, 68 C.R. (6th) 1, at para. 74.
[44] I would allow the appeal and order a new trial. I would also invite the Crown to consider whether a new trial is appropriate in the circumstances of this case.
THEN J.