Reasons for Judgment

COURT FILE NO.: 421/15 DATE: 2017-06-06

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN MARILYN DOBEY, for the Respondent/Crown Respondent

• and -

MATTHEW WOODHAM PAUL STERN, for the Appellant Appellant

[On appeal from the trial judgment of the Honourable N.S. Douglas, dated March 9, 2015 and sentence dated, May 4, 2015]

DURNO, J.

[1] During an early morning confrontation in a McDonald’s parking lot in Guelph, Mariuz (Mario) Stopyra was punched in the face and received a swollen eye, broken tooth and cracked nose. His best friend, Jeff Petelka’s girlfriend, Kaytlin Roberts and Petelka testified that the appellant pushed Ms. Roberts right before the punch.

[2] The appellant was charged with assault causing bodily harm and assault. At his trial, held 17 months after the incident, the issue was whether the Crown could establish beyond a reasonable doubt that the appellant punched Stopyra and pushed Ms. Roberts. Stopyra and Jeff Petelka testified the appellant threw the punch. Kaytlin Roberts and Jeff Petelka testified the appellant pushed Ms. Roberts. The appellant, his brother and three friends testified that he neither threw the punch nor pushed Ms. Roberts.

[3] The trial judge acquitted the appellant of assault and convicted of assault causing bodily harm, concluding three people could not be wrong in their identification and that one of the groups had to be lying. Three people could not be wrong in their identification. While finding he could not convict upon Kaytlin Robert’s evidence, and would not have convicted on Stopyra’s evidence, he concluded that Stopyra and Petelka were credible witnesses. His Honour rejected Matthew Woodham’s testimony and found the other defence witnesses were not credible.

[4] The appellant appeals submitting the trial judge erred in his assessment of the identification evidence, improperly enunciated and applied the test in R. v. W.(D.), [1991] 1 S.C.R. 745, viewed the case as “black and white,” applying a binary analysis consistent with omitting the second branch of W.(D.), misapprehended evidence, improperly rejected the defence evidence relying on inconsequential testimony and illogical reasoning, and failed to consider the reliability of the witnesses.

[5] In the alternative, he appeals against the sentence.

[6] For the following reasons, the appeal is allowed, the conviction quashed and a new trial ordered.

The Evidence

[7] On October 12, 2013, most of the witnesses started the evening drinking at the Stampede Ranch (the Ranch). After midnight they left the bar and went across the street to the McDonald’s to eat. While they were at McDonald’s a fight occurred in the parking lot in which a man, unconnected to this trial, was injured by a group of men. After or during that incident, Stopyra received his injuries and Roberts said the appellant pushed her. The two groups left McDonald’s and were driving home in several vehicles on the Hanlon Parkway (the Hanlon). A further incident occurred on the Hanlon.

[8] Kaytlin Roberts testified that she was at the Ranch with her fiancé, Jeff Petelka, his friend Mario, Troy, Claudio, and Kaytlin. She did not recall how long she was there but remembered having three or four shots of Tequila at the Ranch.

[9] Ms. Roberts knew the appellant through mutual friends. She had never been in a relationship with him. Four weeks previous he pushed her down the stairs at the Ranch, although she had no idea why he did that or why he did not like her. She did not see him at the Ranch that night. Of the people in her group, she was the only one who knew the appellant the night of the incident.

[10] Ms. Roberts and Mr. Petelka left the Ranch and went across the street to the McDonald’s drive-thru. There were quite a few people in the parking lot. A fight was ending as they were driving into the drive-thru. As they were at the window the appellant and nine of his friends were standing outside their trucks yelling at Ms. Roberts, saying she was a stupid whore and a dirty skank. She knew his brother, Ryan, but did not know if he was in the parking lot with the appellant.

[11] Ms. Roberts got out of the truck to confront the appellant, asking what his problem was with her and telling him she had done nothing to him. When she approached him, he pushed her backwards with both hands on her shoulders.

[12] Ms. Roberts did not remember anything after she started to run to the truck, it was all a blur, although she did recall going back to the truck because she was scared. As she was running she saw Mario and Troy [1] coming to help her.

[13] Her memory of the evening was a bit fuzzy; she saw the fight between “Mario and whoever” but did not really remember it. She was “somewhat intoxicated” at the time. Mario never told her who assaulted him.

[14] She left McDonald’s as a passenger in Jeff Petelka’s truck. As they were driving on the Hanlon, a truck approached their vehicle and tried to run them off the highway. She did not know if the appellant was in that truck. Petelka was trying to pull off the highway when they heard “bash” in the back of his truck rack. They continued driving and were pulled over by the police who were called by the appellant’s friends. Petelka failed a Roadside Screening Test but was not arrested or charged with any drinking and driving offence.

[15] Ms. Roberts, Mario and Jeff went to the police and gave statements two days later.

[16] Mario Stopyra testified that while at the Ranch from 11:00 p.m. to 2:00 a.m., he had four or five beers. He was at the bar with Kaytlin Roberts and Jeff Petelka, as well as Fred, Troy and Kaytlin’s friend, Kalie.

[17] They left the Ranch and went to the drive-thru at McDonald’s. Just before ordering, he noticed a scuffle in the parking lot next to the drive-thru. The altercation was between a few guys and a gentleman who was injured. The appellant and his friends were instigating it. Stopyra said there were no women in the appellant’s group.

[18] Kaytlin started yelling out of the truck to stop what they were doing. The appellant and Kaytlin were yelling at each other, with the appellant and his friends calling her a skank and a slut.

[19] Kaytlin hopped out of the truck, ran over to the appellant and was pushed by him. When he saw her pushed, Mario hopped out to get her, grabbed her and told her to get back in the truck, pushing her behind him. He recalled saying something to the appellant and his friends like they were ‘idiots’.

[20] When Mario turned around he was surrounded by five or six guys, who started punching him in the face. All he recalled was getting hit on the side of his face, trying to defend himself, and getting grabbed by a few people. He was getting punches from different angles, but could not say if everyone in the group struck him. While he was being held by two people he could not identify, the appellant came from behind and gave him a full force superman punch right in his nose. He fell back and lost consciousness. That was all he could remember.

[21] He saw the person who punched him for about two seconds when he came straight at him and threw the punch. He saw the person’s face, white t-shirt, and baseball hat. Others were hitting him at the same time.

[22] When he regained consciousness, he got up and saw everyone running. Petelka pulled up and told him to get in the truck and they left.

[23] Before that night he did not know the appellant. Crown counsel asked:

Q: So how do you know that his name was Matthew Woodham?

A: Well because afterwards Kaytlin said she knew the guys and I asked her “Who are those guys?” and she mentioned their names.

Q: I really need to know how you identified Matthew Woodham as the person who came in and … you when you were held.

A: Through Kaytlin Roberts.

THE COURT: Did she tell you who hit you?

A: I asked, “Who is the guy that hit me when I fell down …”

THE COURT: Okay, so you didn’t actually see who hit you?

A: No, no, I seen the punch coming and I seen him come straight at me like this …

THE COURT: But did you see who it was?

A: … and hit me in the face and I fell back.

THE COURT: Did you know who it was that punched you?

A: Yes.

THE COURT: Did you see the face of the person …

A: Yes

THE COURT: And did you know his name?

A: I went home and when I asked Kaytlin, right, because I saw the face … the colour of his shirt, white tee shirt and I asked her, “Who is the guy that knocked me down?” she said, “That’s Matthew Woodham.

THE COURT: Okay, and that is the question you asked her – “Who is the guy that knocked me down?

A: Yes

THE COURT: And did she say, “Matthew Woodham?”

A: That’s correct.

[24] In cross-examination, he was asked the following:

Q: And the person who punches you on the nose you had never seen that person before?

A: I seen him at the Ranch that night earlier but other than that I had not seen him before.

Q: All right, so it’s not a question of recognizing somebody you have known over a long period of time?

A: That’s correct.

Q: When you say you had seen him in the bar that night, Matthew Woodham in the bar that night where had you seen him?

A: At the bar.

Q: Where in the bar?

A: Where you would order drinks.

Q: And how far away were you from him?

A: No more than ten feet.

Q: And why were you watching him?

A: Well there goes the discrepancy between him and Kaytlin.

Q: I’m sorry.

A: There was a discrepancy between him and Kaytlin. Apparently … I don’t recollect completely but there was something said and then Kaytlin said, “You are such an asshole.” I looked over and looked to see who she was referring to as ass holes.

Q: So that was some exchange that night in the bar?

A: I wouldn’t even really say it was an exchange. It was just the comment was made – she called him an asshole and that’s it.

Q: Right, and before that you hadn’t seen him?

A: No.

[25] Stopyra received a swollen eye, broken tooth and a cracked nose, although he never received medical attention. He “pretty much knew his nose was broken” because it was bleeding and he could “grab the bone and move it back and forth.”

[26] While they were driving home two trucks followed them and tried to run them off the road, and throwing stuff at Jeff’s truck. Jeff pulled over and the trucks passed with someone yelling out from the red truck that they had called the cops on them.

[27] Jeffrey Petelka, Kaytlin Robert’s fiancé, when asked if he knew the appellant said, “Not really. I met him a few times just at the bar. I do not know him on a personal level.” When asked if he had met the appellant before the incident he said:

I had bumped into him a couple of times previously but did not know him by name or face. So, I mean, after I met him after the events of that night I knew his name. Previous to that I may have bumped into him at the bar once or twice at, you know, between getting a drink or being on the dance floor I had seen him around with some his friends there so …saw the appellant a few times at the bar but did not know him on a personal level. Before the incident, he had bumped into him a couple of times but did not know him “by name or face.

[28] Petelka learned the appellant’s name, after that evening. He had heard that Kaytlin and the appellant had had “a few runnings”, although he had not been there to witness them. He had also heard the appellant had pushed her down stairs, but had not seen it.

[29] Petelka had three beers while at the Ranch. He did not regard himself as intoxicated. He saw the appellant around midnight on the patio where he had gone for a cigarette. He said hello to the appellant and asked how things were going.

[30] When he got to the McDonald’s drive-thru, he noticed a fight breaking out about 30 feet from his truck. He did not know if the appellant was involved in the fight because he was moving in the drive-thru line. Kaytlin jumped out of the truck first because there were some words exchanged. Then Mario and Troy jumped out to try to break up the fight. He heard a lot of profanity, and some really mean gestures going back and forth. Kaytlin approached the truck that was in front of her. The appellant pushed her in the chest.

[31] Mario and Troy jumped out of Petelka’s truck to try to break up the fight. When Mario went to help a man who was lying on the ground, he was pushed aside and back. When he was picking up the guy off the ground, the appellant jumped through the air, came down and struck Mario right around the nose. The appellant was wearing a darker plaid shirt. Petelka thought it was red and black. It was hard to say, given the passage of time. He never really thought about what the appellant was wearing.

[32] The others struck Mario three or four times, but not in the face. They were pushing him, contacting him mostly in the arm and chest. It was more of a scuffle than a fight and ended with Troy helping Mario to his feet and back to the truck.

[33] On their way home, they were being chased by a white Chevrolet Silverado, with the occupants of that vehicle and his exchanging words and gestures. He pulled off to the side of the road. When the vehicle passed, the occupants threw something at his truck. The other truck slammed into his back rack breaking three bolts on the back of the vehicle. Shortly, thereafter, the police stopped him, he failed a roadside breath test, was taken to the station, given an Intoxilyzer test and was not over the legal limit.

[34] Matthew Woodham, the appellant, testified he had known Kaytlin Roberts for three or four months. They were just friends. He was unaware of any hard feelings between them and denied pushing her down a flight of stairs at the Ranch.

[35] While at the Ranch, he had five or six beers between around 11:00 p.m. and 2:00 a.m. He was wearing a black shirt with blue jeans and a baseball hat. His brother, Ryan, was wearing a t-shirt the night of the incident.

[36] He walked to McDonald’s with Ryan, Nathan Billings, Justine Boyles, Trevor Simkin and Brendan Arcand. While sitting with his friends eating their food, there was a fight beside the drive-thru. While someone was getting badly beaten, his group did nothing. The fight ended, they finished their food, got back in their trucks and drove home.

[37] While at McDonald’s, he neither pushed nor punched anyone. His group was not in any fights.

[38] He saw Kaytlin Roberts in Petelka’s truck at McDonald’s, but had no physical or verbal interaction with her.

[39] There were three vehicles on the Hanlon: a red Dodge truck driven by Trevor Simkin, a green Chevrolet truck driven by his brother Ryan, and a blue Toyota Highlander driven by Brendan Arcand. He was a passenger in the green truck, when a white vehicle came up out of nowhere, swerved at them, tried to push them off the road, flipped them off, passed at a high rate of speed and ran a red light. Kaytlin was a front seat passenger in that truck, gesturing to them as they passed.

[40] Brendan Arcand knew Jeff Petelka did not like the appellant because the appellant and her “kind of had a little bit of a thing.” She thought it was going to continue on to something else but the appellant said no, which upset Kaytlin.

[41] He testified he was a designated driver and had nothing to drink on October 13, 2013.

[42] He drove his Toyota Highlander from the Ranch to McDonald’s. While there, he heard no name calling and no one approached his group. While he saw Kaytlin Roberts, he never saw her get out of the truck she was in. She never approached his group. No one pushed her.

[43] He saw an altercation at McDonald’s, sat back and “thought we would get a front row seats to a great show.” When it was over, broken up and police showed up, they all got into their vehicles and left.

[44] As they were driving home on the Hanlon, a big white diesel truck was doing crazy things: cutting everybody off, and trying to push them off the road into the ditch. Kaytlin Roberts was in the front passenger seat of the white truck, yelling and hanging out the window. Trevor Simkin called the police to report the driving

[45] Ryan Woodham, the appellant’s brother, testified he had not consumed any alcohol because he was underage. He was not at the Ranch but was a designated driver that night, driving his green Chevrolet pick-up truck to pick up the appellant at McDonald’s. He arrived at McDonald’s before the appellant and joined them in the parking lot. While there, he heard no name calling and was not involved in any altercation, nor was his brother’s friends. He saw a fight while he was there but did not participate.

[46] As he was driving home on the Hanlon, a white pick-up truck followed him and tried to get him to stop. The other truck was driving all over the place, telling them to pull over. He did not do so. Kaytlin was yelling his brother’s name. While the appellant told him that she was mad at him, he did not ask him why she was angry; it was none of his business.

[47] Nathan Billings, a good friend of the appellant, knew the appellant and Kaytlin “had a little thing going on for a week or two but that was about it.” The appellant told him they had “hooked up” sexually.

[48] At McDonald’s, he heard no name calling directed at Kaytlin. He did not know her but had seen her around. While there was an altercation, he did not participate in it. He did not see the appellant in any struggle or fight.

[49] Justine Boyles, a first year student at Guelph University, went from the Ranch to McDonald’s with Brendan Arcand in his SUV. She was outside of the trucks with the appellant and his friends and heard no arguments involving Kaytlin. No one approached her group. The appellant was not in a fight with anyone.

[50] After the incident, when she asked the appellant about his history with Kaytlin, he said they had hung out a few times and nothing really happened. They just stopped talking.

[51] While driving home on the Hanlon, a white truck tried to run Ryan Woodham’s vehicle off the road. Kaytlin was in the front passenger seat of the white truck.

The Arguments at Trial

[52] The arguments of both counsel covered a total of five pages of transcripts. The appellant’s trial counsel (not Mr. Stern) conceded Stopyra received a broken tooth and “somebody did that.” He argued there was no good reason to reject the appellant’s evidence or the corroborating evidence from the other defence witnesses, which was highly consistent. While not identical, it was remarkably close.

[53] Defence counsel also argued that W.(D.) as well as that the assessment of credibility and reliability played roles. He conceded there was some evidence of bad blood between the appellant and Kaytlin Roberts. He concluded by submitting that “the considerable number of witnesses called by the defence corroborate Mr. Woodham and should place in doubt the evidence of the complainants and their other witnesses in this matter.”

[54] The Crown, Ms. Dolby, started her submissions by noting there was proof beyond a reasonable doubt “and we have diametrically opposed stories.” The trial judge interjected, “Somebody is not telling the truth.” When Crown counsel agreed, His Honour said he did not have to figure out who, “[y]ou have to prove to me …” [2]

[55] The Crown argued that the prosecution witnesses gave their evidence in a “fairly forthright manner, especially Mariusz and Jeff Petelka. They seemed like credible individuals.”

[56] With regards to the defence witnesses, the Crown argued that it was not reasonable to accept that nothing happened at McDonald’s, given the behavior on the Hanlon. Further, the appellant was not forthright about his relationship with Ms. Roberts. The trial judge noted that neither was Ms. Roberts.

[57] The trial judge concluded his exchange with Ms. Dolby at the end of her submissions noting:

But you are right, the other two witnesses for the Crown were credible people and I have to determine whether they were so credible that they are proof beyond a reasonable doubt over the evidence that was raised by the defence. That’s the issue, isn’t it?

The Crown responded:

It is the issue. It is the issue. They were strong witnesses for the Crown and at the end of the day it is Your Honour’s decision.

The Reasons for Judgment (Trial Judge's Findings)

[58] During submissions, the trial judge told counsel that if the case was Kaytlin’s word against the appellant’s, he would not convict. His Honour was not impressed with her attitude and would not convict anyone on her evidence. If it were “just her evidence he would be home free.” The other two Crown witnesses were credible people. He had to determine if they were so credible that there was proof beyond a reasonable doubt over the defence evidence.

[59] At the conclusion of submissions the trial judge said he would try to give his judgment that afternoon and adjourned until 3:30 p.m., when he gave his reasons.

[60] In assessing the evidence, His Honour found that someone sucker punched Stopyra in the face with a hard blow while he was being held by two other people. The second “known” was that there was an incident on the Hanlon. Thirdly, there was a relationship between the appellant and Kaytlin, although His Honour doubted they got to the bottom of it. It was not known until the second defence witness. His Honour was confused when he heard Kaytlin’s evidence.

[61] The trial judge found Mario Stopyra’s and Jeff Petelka’s evidence believable. He accepted that Kaytlin got out of the truck and confronted the appellant, asking what his problem was. If she was making up her evidence, she would have said something more than he pushed her.

[62] His Honour continued:

By the way, I am not going to find him guilty of an assault of pushing her because if that’s what she did and if she went up to them confronting them and he pushed her and other people say that he did too, I am not satisfied that a push, in those circumstances, amounts to an assault in law and so I find him not guilty of assaulting her …

[63] With respect to Mario Stopyra’s evidence, the frailty was that he asked Kaytlin who knocked him down. Had his been the only evidence, there might be a doubt. Stopyra said he saw the appellant at the Ranch earlier that night when Kaytlin had called him an asshole and that it was the same person who punched him. His Honour continued:

He didn’t know his name which is why he said to her, “Who is the guy who knocked me down? Not, “I don’t know who knocked me down? Who was it?” He specifically pointed out the accused in the courtroom and said he is the man who hit him in the face.

[64] His Honour found Jeff Petelka’s evidence even more convincing. He knew the appellant, having seen him a few times previously. He saw him at the Ranch earlier that night. The trial judge asked:

What do you do with that evidence? Did he make it up? Is there some diabolical reason why this man would commit perjury in the witness box against the accused or was he just simply mistaken as to who it was?

[65] Addressing the defence evidence the trial judge held:

Lo and behold the basic evidence is, “it wasn’t me. Nothing happened. I wasn’t involved at all.”

[66] The appellant said he had no contact with Kaytlin that night. They were friends. However, that is not what his own witnesses said. It was clear the appellant had an axe to grind with her.

[67] Brendan Arcand’s evidence was a straight denial. His Honour did not accept Arcand’s evidence.

[68] Ryan Woodham’s evidence was basically that nothing happened. Surely, he would have wanted to know why his brother and Kaytlin had a problem. He was at court to help his brother.

[69] Nathan Billing’s evidence contradicted Arcand’s evidence with regards to what happened afterwards.

[70] With regards to Justine Boyle’s evidence, she said nothing happened. His Honour thought that her evidence was “one of these, I didn’t see anything – I didn’t hear anything – I am not saying anything.”

[71] The trial judge continued:

That’s the impression I got from the defence evidence and because, therefore, I don’t accept their evidence as credible. It doesn’t raise a reasonable doubt on the strong evidence that the Crown presented.

The Grounds of Appeal

[72] Before addressing the grounds, some preliminary observations will place the analyses in context. First, the trial judge provided oral reasons after adjourning court for an unspecified time to prepare the judgment. They are not written reasons, prepared after reserving from the date of submissions. While all reasons must fulfill the essential requirements, those provided orally have to be considered in the context in which they are given.

[73] Second, oral reasons are to be assessed considering them as a whole, not focusing on individual segments: R. v. Mugabo, 2017 ONCA 323, at para. 17. The order in which judges address issues is not relevant to the adequacy or sufficiency of the reasons. The trial judge is explaining his or her conclusions, not setting out his or her thought processes.

[74] The Supreme Court of Canada has addressed the issue as follows in R. v. R.E.M., [2006] 3 S.C.R. 3, starting at para. 17:

17 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 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.

18 Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. …

[75] In R. v. Morrissey, 22 O.R. (3d) 514, Doherty J.A. wrote:

28 … it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole: [citations omitted] Furthermore, they must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.

30. A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [Emphasis added.]

[76] Third, with regards to allegations of misapprehension of evidence, it is not every misapprehension or misstatement of evidence that vitiates the verdict. The Court of Appeal explained the criteria in Morrissey as follows:

83. I will now address the effect of the trial judge's misapprehension of the evidence. Submissions premised on an alleged misapprehension of evidence are commonplace in cases tried by a judge sitting without a jury. A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. …

84. When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of Justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of Justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[77] Fourth, as the trial judge made findings of credibility in relation to all of the witnesses, in seeking to overturn a conviction based on credibility findings and inferences, the following law applies from R. v. Clark, (2005), 2005 SCC 2, 193 C.C.C. (3d) 289:

9. ... Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. " Palpable and overriding error" is a resonant and compendious expression of this well-established norm: [citations omitted]

[78] The law with regards to palpable and overriding error was summarized by the Court of Appeal in R. v. D.T., 2014 ONCA 44, as follows:

80. An appellate court may only intervene in a trial judge's credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman [citation omitted] this court described the palpable and overriding error standard:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: [citation omitted]. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: [citation omitted].

[79] I turn next to the specific grounds of appeal.

Did the trial judge err with respect to the identification evidence?

[80] In addressing identification evidence His Honour held:

The Court must be very, very careful and identity raises its head here but not in a classic sense because you have got three witnesses saying it was the accused and I find on all of this evidence that this cannot be a case of mistaken identity. It can’t. It can’t be that three people just happen to pick out the wrong guy in a group of people.

First of all, and I will get to this as I go through each person’s evidence – this was somebody known to at least two of them. Secondly, there was some evidence and I will get to that as well of motive.

The accused had an ax to grind with … Kaytlin Roberts and there is a confirmation that there was some driving incident afterwards involving the two groups of people and so this is not a case where I am all that concerned about the identity boogy man in our criminal law.

The Position of the Parties

[81] The appellant submits His Honour erred by misapprehending the evidence by finding three people identified Mr. Woodham when only two testified he was the one who struck Stopyra, in finding it was not an identification case in the classic sense, that it was a recognition case, and in relying on hearsay evidence. The only Crown witness who knew the appellant before the night of the incident was Kaytlin Roberts, who did not see the appellant interact with Stopyra. She did not remember who was involved with Mario and Mario had not told her who struck him. Contrary to the trial judge’s finding, no one ever picked the appellant “out of a group.” There was no lineup.

[82] Further, the trial judge erred in his characterization of Stopyra asking Ms. Roberts who punched him as a request for the name of the person who knocked him down. That was not Stopyra’s evidence.

[83] Further, His Honour erred in concluding he might have had a doubt after Stopyra’s evidence, but found Petelka’s evidence “even more convincing.” Petelka’s provided a “dock identification” that was of minimal weight. Further, the trial judge ignored the obvious animus between Petelka and the appellant.

[84] Further, His Honour erred in finding that the description of the assailant’s clothing was “not the issue” as it might be in some other identification cases.

[85] Finally, the trial judge erred in drawing a link to the identification issue from the later incident on the Hanlon. His Honour found there was “confirmation” of the animus between Ms. Roberts and the appellant from the driving allegations. This was one of the reasons the trial judge was not concerned about “the identity boogey man in our criminal law.” His Honour erred in conflating separate events and finding that bad driving by others removed the reliability and credibility concerns with respect to Stopyra’s and Petelka’s identification of the accused as the one who punched Stopyra.

[86] The respondent submits the trial judge made no errors with regards to identification, and properly applied the law to the facts and in making findings of fact and credibility.

[87] With regards to the misapprehension of how many witnesses identified the appellant, in the Crown’s factum (prepared by another Assistant Crown Attorney, not Ms. Dolby), the respondent wrote, “[n]otwithstanding the use of the word three, it is overwhelmingly evident that the judge was diligent in his review and assessment of the case.” His Honour relied on the identification evidence of Stopyra and Petelka. It was not a palpable and overriding error to say it was three witnesses. The trial judge found that considering “all of this evidence” he could make a finding beyond a reasonable doubt that the appellant punched Stopyra. The trial judge did not rely on Ms. Robert’s evidence to convict the appellant, nor to satisfy himself as to the appellant’s identity.

[88] In oral submissions Ms. Dolby argued there were three identification witnesses: Kaytlin Roberts, knew the appellant, Mario Stopyra had seen him at the bar shortly before the assault and Jeff Petelka had seen him a few times but did not know his name. He identified the appellant as the person who punched Stopyra at trial. When His Honour said three witnesses, there were three – Roberts, Stopyra and Petelka. The trial judge was not limiting himself to the identification on the assault causing bodily harm charge. The appellant was also charged with assaulting Ms. Roberts.

[89] Further, His Honour did not rely upon hearsay as all Stopyra required was the appellant’s name. He saw who assaulted him.

Analysis

[90] First, three witnesses testified the appellant engaged in assaultive conduct in the parking lot. Kaytlin Roberts and Jeff Petelka said the appellant pushed Ms. Roberts. Mario Stopyra and Jeff Petelka said the appellant struck Mario Stopyra. While His Honour said in the course of submissions that he would not convict on Ms. Robert’s word alone, that did not result in an effective acquittal on the assault count. All His Honour said was that he would not convict on her evidence alone. At the very least, the three witnesses comment was equally consistent with the Crown’s interpretation so that it cannot be concluded His Honour erred in regards to the number of identification witnesses.

[91] Second, the appellant raises several arguments that can conveniently be addressed as reliability concerns. His Honour acknowledged concerns with regards to identification evidence, but found the “identification boogey man” did not arise in this case because it was a recognition case, the animus between the appellant and Kaytlin Roberts and the incident on the Hanlon.

[92] I am not persuaded the trial judge erred in regarding the case being one of recognition, as opposed to a classic identity case, where the witness has only seen the perpetrator once and often for a brief period. The three Crown witnesses had seen the appellant previously, but for very different periods of time. Kaytlin Roberts knew the appellant. Jeff Petelka had “bumped into him a couple of times previously but did not know him by name or face [3] … “Previously … I may have bumped into him at the bar once or twice … between getting a drink or being on the dance floor I had seen him around with some of his friends there.” Mario Stopyra had never seen the appellant before that night but knew him as the person Ms. Roberts called an “asshole” at the Ranch that night.

[93] Labelling a case one of recognition does not end the concerns for identification evidence. The recent Court of Appeal judgment in R. v. Campbell, 2017 ONCA 65, outlined the approach to identification and recognition evidence as follows:

10 This court has confirmed that "recognition evidence is merely a form of identification evidence" and, as such, "[t]he same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence": R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501 (Ont. C.A.), at para. 39. This court also noted in that paragraph, however, that "[t]he level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence." Unlike cases involving the identification of a stranger, the reliability of recognition evidence depends heavily on the extent of the previous acquaintanceship and the opportunity for observation during the incident: R. v. Miaponoose (1996), 30 O.R. (3d) 419 (Ont. C.A.), at p. 424, citing R. v. Smierciak (1946), 87 C.C.C. 175 (Ont. C.A.), at p. 177. Recently, in R. v. Charles, 2016 ONCA 892 (Ont. C.A.), at paras. 50-51, this court noted the "critical difference" between recognition cases and cases involving identification by a witness of a complete stranger, and referred to the relevance of the "timeline of the identification narrative". See also R. v. P. (M.) (2001), 52 O.R. (3d) 631 (Ont. C.A.), at p. 638.

[94] His Honour also found the animus between the appellant and Kaytlin Roberts helped remove the concerns. That the appellant had a problem with Kaytlin Roberts was open to the trial judge to find. There was evidence from Ms. Roberts and Mario Stopyra that the appellant and his friends were calling her a slut and a skank. Stopyra said Ms. Roberts called him an asshole at the Ranch. While presumptively inadmissible “other disreputable conduct” evidence that was introduced without any application to do so by the Crown or objection from defence counsel, there was evidence the appellant had tripped Ms. Roberts causing her to fall down the stairs at the Ranch a few weeks before. However, the allegation to which the identification issue arose was the assault causing bodily harm of Stopyra. The evidence of animus was of minimal assistance on the identification issue.

[95] The final area that removed the identification concerns was the driving on the Hanlon. Other than accepting Stopyra and Petelka’s identification evidence, the trial judge made no findings what occurred on the Hanlon. The appellant was not driving a vehicle. Neither was Kaytlin Roberts nor Mario Stopyra. That there were competing allegations of bad driving, gesturing and yelling back and forth from the vehicles provided minimal assistance on the issue of who punched Stoypra.

[96] While none of the areas that removed the concerns for identification evidence when combined, I cannot conclude the trial judge erred in this area.

[97] Reliability concerns remained regarding the identification. All of the Crown’s witnesses had more than a couple of drinks. Stopyra’s identification of the appellant as the person who struck him was effectively based upon seeing the person Ms. Roberts called an asshole at the Ranch in the parking lot for a couple of minutes and a couple of seconds before the punch. That His Honour did not address these areas is not reversible error. This was a short trial, completed in less than a day. A trial judge is not required to address each and every area of evidence in his or her reasons. The test is whether reading the reasons as a whole, it is apparent what the trial judge found and why.

[98] Third, with respect to Mario Stopyra’s identification of the appellant by name, while it is somewhat ambiguous, his evidence was open to the interpretation the trial judge drew – that he saw the appellant at the Ranch, saw who struck him and asked Kaytlin who struck him, seeking only the name because he knew who struck him but not his name. Since Kaytlin Roberts was the first Crown witness she was never asked whether she supplied the name or other identification to Stopyra. Her evidence was that she saw the fight between Mario and whoever but no longer remembered it. Ms. Roberts testified she did not tell Stopyra who hit him.

[99] Fourth, with regards to His Honour’s comment that the appellant was picked out of a group when there was no line-up, I am not persuaded the trial judge was implying anyone selected the appellant out of a line-up. He was selected out of a group of people in the parking lot as the assailant.

[100] Fifth, with respect to the weight the trial judge attached to Petelka’s evidence, I am not persuaded this was a dock identification case. The concerns that arise where a witness sees an event, and months or years later purports to identify the person for the first time in the courtroom, were not present: R. v. Muir, 2013 ONCA 470. Petelka said he had seen the appellant around but did not know his “name or face.” It was implicit in his evidence that the person he had seen around a few times was the person who struck Stopyra.

[101] With regards to appellant’s submission that the trial judge ignored the animus between Petelka, Kaytlin’s boyfriend, and the appellant, I agree that His Honour did not mention Petelka being angry with the appellant. However, a trial judge is not required to set out each piece of evidence called or review every submission. I am not prepared to find that the trial judge failed to realize that Petelka would have animosity towards the appellant who tripped his girlfriend causing her to go down stairs at the Ranch.

[102] Sixth, with respect to the different descriptions of the assailant’s clothing, there was a basis upon which the trial judge could reach the conclusion that if there was a discrepancy, it was not material. Stopyra said the person who struck him was wearing a white t-shirt. Petelka said the person who struck Stopyra was wearing a dark plaid shirt. The appellant said he was wearing a dark shirt and his brother was wearing a t-shirt. He thought that maybe it was black although he was not too sure. His brother said he was wearing a t-shirt.

[103] While a dissimilarity can be an important factor in identification cases, it is not determinative. Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474, that dealt with one area of dissimilarity has been interpreted by our Court of Appeal as only applying in cases in which there is a clear dissimilarity in the witness’s identification coupled with a lack of supporting evidence: R. v. J.S.R. (2012), 2012 ONCA 568, 112 O.R. (3d) 81 at para. 92. That was not this case.

[104] I am not persuaded the trial judge erred in his assessment of the identification evidence.

Did the trial judge err with respect to R. v. W.(D.) ?

[105] The trial judge outlined the test in W.(D.) as follows:

… If I accept the accused’s evidence – his version of what happened – then I acquit him. I find him not guilty.

It goes further than that. If the accused gives evidence and puts his credibility at issue and I don’t believe him that doesn’t mean he is guilty. That just means that that’s one part of the evidence that I don’t accept I still look to the rest of it to see whether the Crown has proven his guilt.

It goes further than that. Even if an accused gets in the witness box and I am convinced that he is a liar and he is making it up – he is doing everything he can to avoid criminal responsibility for his actions that doesn’t mean he is guilty. It means he is a liar.

For the Crown still has to have evidence from credible people that proves his guilt beyond a reasonable doubt and so the Crown has a very high burden in any criminal case in Canada. …

[106] And later,

This is a case where one group of people is not being truthful with the Court. It cannot be anything else and that’s why my assessment of the witnesses is extremely important. …

The Position of the Parties

[107] The appellant submits the trial judge erred in stating and applying the test in W.(D.). The Crown agrees that His Honour misstated the test. However, Ms. Dolby contends that when read as a whole the trial judge’s reasons show he properly applied the correct analysis.

Analysis

[108] In W.(D.), Cory J. wrote:

27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, [1988] 2 S.C.R. 345 supra, at p. 357.

28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

29 Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply: R. v. Thatcher, [1987] 1 S.C.R. 652, supra. at p. 357.

[109] The trial judge misstated the test in W.(D.) by eliminating the second branch – that the appellant was entitled to an acquittal if the defence evidence, while not believed, was not rejected and left His Honour in a state of reasonable doubt. His Honour went from “accepting” in the first branch to not accepting the accused’s evidence and eliminating it from consideration.

[110] The recitation included what has become known as the ”Miller error” in jury instructions – telling juries that they look at all the evidence, any evidence they do not believe is discarded and their decision is only based on the evidence they accept: R. v. Miller (1991), 5 O.R. (3d) 678 (C.A.). In Miller, the Court of Appeal described the error as follows:

67 … it was misdirection to instruct the jury to proceed by separate stages, which had the effect of eliminating from their consideration evidence which was neither accepted nor rejected, upon which they entertained a reasonable doubt, and to consider only the residual evidence in arriving at their verdict.

[111] Of import in this case in addition, it is not just the accused’s evidence alone that invokes W.(D.). It is any defence evidence or Crown evidence favourable to the accused that invokes W.(D.). Here, five defence witnesses testified. Their evidence collectively and individually had to be assessed to determine if His Honour believed their evidence or while not believing their testimony, the evidence of one or more of the defence witnesses left him in a state of reasonable doubt.

[112] In R. v. B.D., 2011 ONCA 51, the Court of Appeal held:

114. … the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice. In that event, they must acquit.

[113] With respect to W.(D.), it is not necessary to set out the test nor to assess the evidence applying the three steps in the sequence provided by the Supreme Court of Canada: R. v. Cyl, 2008 SCC 2, [2008] S.C.J. 2; R. v. Minushkin, [2003] O.J. No. 5253 (C.A.) A judge can state the test correctly but commit reversible error by not applying the test. Similarly, a judge can misstate the test but the reasons reflect he or she appropriately applied the law so that there is no reversible error: R. v. D.T. 2014 ONCA 44. Even in jury trials the instruction is not sacrosanct: R. v. Cyr, 2012 ONCA 919, at para. 49 What is important is whether from reading the reasons in their entirety, it is apparent the trial judge applied the presumption of innocence, the correct burden and standard of proof, and applied reasonable doubt to his or her credibility analysis: R. v. Kuzyk, [2016] O.J. No. 2848 (S.C.J.) at para. 25.

[114] I turn next to the critical determination on this ground - whether from reading the Reasons as a whole, the appellant has shown the trial judge failed to apply the correct W.(D.) criteria.

[115] I do not agree with the appellant that the reasons would support an inference that the second branch was ignored, the evidence separated into “accepted” and “not accepted and not considered” evidence.

[116] First, as regards the appellant’s evidence, as the trial judge said that he rejected the appellant’s own testimony, it was not necessary to specifically address the second branch of W.(D.) for his own evidence: R. v. B.W., 2016 ONCA 96, at para. 11.

[117] Second, in the last few lines of the judgment, after assessing the defence witnesses’ evidence, His Honour said:

That’s the impression I got from the defence evidence and because, therefore, I don’t accept their evidence as credible. It doesn’t raise a reasonable doubt on the strong evidence that the defence has presented. I have no doubt at all in coming to the conclusion that the evidence proves beyond a reasonable doubt that Matthew Woodham struck Mariusz Stopyra in the face causing him to injure his nose.

[118] The first two lines are open to the interpretation that because His Honour did not believe the defence witnesses it did not raise a reasonable doubt without considering the second branch of W.(D.). They could also mean that His Honour rejected the defence evidence, so that it did not raise a reasonable doubt. Where Reasons are open to two interpretations, the presumption is that the trial judge properly applied the law. Judges are presumed to know the law. Where there is ambiguity in the Reasons, appellate courts should adopt the alternative that is consistent with the trial judge knowing the law. Doherty J.A. outlined the applicable law in Morrissey as follows:

27 Even if the passage set out above was ambiguous and could bear either the interpretation I place on it or the interpretation advanced on behalf of the appellant, I would adopt my interpretation. Trial judges are presumed to know the law: R. v. Burns, [1994] 1 S.C.R. 656 at pp. 664-65, 89 C.C.C. (3d) 193 at pp. 199-200. That presumption must apply with particular force to legal principles as elementary as the presumption of innocence. Where a phrase in a trial judge's reasons is open to two interpretations, the one which is consistent with the trial judge's presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law: R. v. Smith (D.A.) (1989), 1989 ABCA 187, 95 A.R. 304 (C.A.) at pp. 312-13, affirmed , [1990] 1 S.C.R. 991.

Did the trial judge err in assessing the witnesses’ evidence?

[119] The appellant submits that the trial judge’s assessment of the evidence was fundamentally flawed because of a series of errors in his credibility considerations. I will outline the appellant’s positions when examining each argument.

[120] The Crown submits the trial judge’s reasons reveal no such errors.

Analysis

[121] First, the appellant submits that instead of assessing the witnesses as individuals, His Honour erred in examining the witnesses as a group when he found:

This is a case where one group of people is not being truthful with the Court. It cannot be anything else and that’s why my assessment of the witnesses is extremely important.

[122] The appellant submits that by taking that approach, the trial judge failed to give each witness “due consideration.” This confirms that he ignored the second branch of W.(D.). It was all or nothing for the trial judge’s analysis of the Crown and defence groups. Mr. Stern submits that His Honour’s approach failed to consider the possibility that neither group was entirely truthful or that the truth lay somewhere between the polar opposites in the evidence.

[123] Further, five defence witnesses testified the appellant did not strike Stopyra. Once His Honour found Stopyra and Petelka’s evidence believable, he “painted all the defence witnesses with the same broad brush and dismissed their evidence en masse.” In effect, the trial judge reversed the onus in a criminal trial.

[124] I am not persuaded the trial judge viewed the evidence as a team contest. There is no doubt that portions of the Reasons, read in isolation, appear to show the trial judge grouping the witnesses instead of assessing their evidence individually, but in the context of all of the evidence. However, these were oral reasons after a short trial. When read in their entirety, I am not persuaded His Honour took a binary approach for the following reasons. First, he specifically said he would not act upon Kaytlin Robert’s evidence alone. Second, he did address each defence witness and made credibility findings. Whether those findings reflect errors will be addressed later.

[125] Second, the appellant contends the trial judge’s “mocking tone” in his opening remarks “foretold the conclusion the trial judge swiftly arrived at” by summarily dismissing the defence witnesses.

[126] The trial judge held:

Lo and behold the basic defence is, “it wasn’t me. Nothing happened. I wasn’t involved at all.

[127] Further, His Honour maintained his mocking treatment of the defence evidence when assessing Brendan Arcand’s evidence by saying he got in the witness stand “and again it’s a straight denial.” It was apparent His Honour had already made up his mind.

[128] I am not persuaded the trial judge erred in this area. If the Reasons were a “watch me think” approach or “these are the steps I took to reach the conclusions,” the appellant might be correct. However, Reasons reflect the “what” the trial judge found and explain “why” conclusions were reached, not the sequence of thinking. There is no error in foretelling the conclusion. The trial judge had reached his conclusion. He was explaining why he reached the conclusion he had already made.

[129] With regards to the “mocking” tone, different judges express themselves in different ways. Others would have used different terminology. Absent an allegation of bias or uneven scrutiny, the wording does not reflect reversible error in itself or in combination with other arguments.

[130] Third, the appellant submits the trial judge erred in his assessment of the defence witnesses. He contends “there is little to no explanation for the trial judge’s rejection of their evidence, let alone any explanation why none of the testimony of any defence witness raised a reasonable doubt.” The trial judge found Petelka and Stopyra credible and summarily dismissed the defence witnesses’ evidence.

[131] These arguments can be grouped under the use to which His Honour put the relationship between the appellant and Kaytlin Roberts’ evidence, the Hanlon incident evidence and other areas the trial judge used to reject the defence evidence.

Evidence Regarding Kaytlin Roberts and the Appellant

[132] In finding there were no concerns for the identification evidence and in rejecting the appellant’s evidence, the trial judge found there was a conflict between his testimony that Ms. Roberts and he were only friends and two defence witnesses’ evidence that they had some kind of brief short-term relationship in rejecting the appellant’s evidence. He also found the appellant has “a story” about having sex with Kaytlin Roberts that he told his brother and friends. His Honour considered that the appellant wanted to have intercourse but she rebuffed him.

[133] The appellant submits the trial judge misapprehended the evidence, engaged in speculation that was not based upon the evidence, applied an inappropriate moralistic analysis that is not supported by the evidence and relied upon inconsequential evidence in rejecting the appellant’s evidence.

[134] The appellant submits there was no conflict between what the appellant and what his witnesses said regarding his relationship with Kaytlin Roberts. The appellant never denied he had a sexual encounter or some short-term sexual or non-sexual relationship with Ms. Roberts. When asked the nature of their relationship he said, “Just friends.” He was never asked if they had sexual intercourse or a previous relationship. The other witnesses said they had had a short-lived relationship and Ms. Roberts wanted it to become something more. The appellant did not. One said the appellant and others told them they had had intercourse. There was no inconsistency.

[135] The Crown submits there was no misapprehension of the evidence or error in reaching the conclusion the trial judge reached.

The Evidence

[136] Several witnesses testified with regards to the relationship between Kaytlin Roberts and the appellant. Ms. Roberts was asked how she knew the appellant and said, “We had mutual friends.” Later, the Crown asked if she had an issue with him. Ms. Roberts testified that he had pushed her down the stairs at the Ranch two weeks earlier and that Petelka and Stopyra had witnessed it. She later testified that it was a month earlier. The trial judge interjected, asking what it was about. Ms. Roberts said she had no idea. He had put his foot out and pushed her with both hands. Later in the examination-in-chief, the trial judge asked her what the appellant’s beef was with her. She said she did not know. When the Crown continued her examination-in-chief, she asked if Ms. Roberts was ever in a relationship with him. She said she was not. She had never dated him.

[137] Mario Stopyra testified that there was a “discrepancy” between the appellant and Kaytlin Roberts at the Ranch that evening. That is when she called him an asshole. That is the extent to which he was asked about the appellant and Ms. Roberts. No one asked him about their past relationship.

[138] Jeff Petelka was asked in examination-in-chief if he was aware of any “connection” between the appellant and Petelka’s fiancé. He said he had heard in the past that Kaytlin Roberts and the appellant “had had a few runnings.” He was not there to witness them but he had heard that he pushed her downstairs. That was the extent that he was asked about the appellant and Ms. Robert’s connection. No one asked him about their past relationship.

[139] The appellant testified as follows in examination-in-chief:

Q: And for how long had you known her?

A: Three or four months.

Q: And when … during what time period had you known her? Was it three or four months before this event or was it some other point?

A: Before the event.

Q: And what had been the nature of your relationship with her, if any?

A: Just friends.

Q: To your knowledge was there any hard feelings between you?

A: Not that I know of.

Q: Did you bear any hard feelings to her?

A: No.

Q: We heard some evidence from her that you shoved her or kicked her – whatever. She had had some trouble with a flight of stairs at the Stampede Ranch. Did you have some interaction on that issue?

A: No.

Q: Do you know what she was talking about?

A: No idea.

[140] In cross-examination, he was asked:

Q: Okay, so how do you know her?

A: I met her through the Ranch.

Q: You met her …

A: At the Ranch …at the Ranch, yes.

Q: Okay, three or four months prior to this occasion?

A: That’s right.

Q: And how did you end up meeting her?

A: Through a mutual friend.

Q: Okay, through what friend?

A: A friend that I actually met at the Ranch. They are not here today.

Q: Okay, so you met somebody at the Ranch and they ended up introducing you to Kaytlin Roberts, is that right?

A: That’s right.

Q: And so had you seen … when was the last time you had seen Kaytlin prior to this case?

A: That night at the Ranch.

Q: Okay, but prior to that night at the Ranch.

A: Over three or four weeks I would think.

Q: And did you see her at the Terminals? [4]

A: Yes.

[141] Later in cross-examination, after the appellant testified that Kaytlin Roberts was gesturing towards the three vehicles as they passed them, he was asked:

Q: But you told me that Kaytlin has no axe …there was no axe to grind between you and Kaytlin?

A: No.

Q: So what do you think was going on?

A: I don’t know.

Q: No idea. This woman that you know is just giving you the finger for no reason?

A: yeah.

[142] Brendan Arcand testified that he was unaware of any issues between the groups but knew that some people did not like others. Jeff Petelka did not like the appellant, “because I guess Matthew and Kaytlin kind of had a little bit of a thing. Kaytlin thought it was going to continue on to something else and Matthew just said, “No,” so that kind of upset her a bit. That was quite a while before the altercation. Arcand inferred Petelka had a problem with the appellant because he tried to run them off the road.

[143] The trial judge interjected in the examination-in-chief, asking, “So you must have been getting this information from Matthew then, were you?” Arcand said that he was. His Honour asked, “and he said that he and Kaytlin had a thing going and he wanted to break it off and she didn’t, is that …” Arcand said, “Pretty much, yeah. It wasn’t really a dating thing. It was just kind of they were seeing each other and she thought it was going to be boyfriend and girlfriend and he said that was not what he wanted.

[144] Ryan Woodham knew his brother and Kaytlin Roberts were friends. That was it. He saw her once when he picked up his brother. The night of the incident, the appellant told him Kaytlin was mad at him. Ryan never asked his brother why she was mad at him, thinking it was none of his business.

[145] Nathan Billings knew that the appellant and Kaytlin Roberts “had a little thing going on there for a week or two.” The trial judge asked Billings what he meant by “a little thing for a week or two.” He said, “They hooked up, I guess.” His Honour asked if he was telling him sexually and he said he was. The appellant and others told him the appellant had a sexual relationship with Kaytlin.

[146] Justine Boyles said she was aware the appellant and Kaytlin Roberts hung out a few times although she really did not know. She did not know “the major relationship between the two of them.” After the incident, she asked the appellant and he told her they hung out a few times, nothing really happened. They just stopped talking.

[147] The trial judge in finding the identity boogey man did not arise in this case found:

… we know, although I doubt that we got to the bottom of it, we know there was a relationship between Matthew Woodham and Kaytlin Roberts. We didn’t know this by the way until the second witness for the defence. It didn’t come from the Crown ’ s evidence. It didn’t come in cross-examination of any of the witnesses on the Crown’s evidence.

All of a sudden in this trial we heard that apparently there was a sexual relationship between these two. Nowadays they call it ‘hooking up.’ Now that seems to be the underlying reason for whatever happened because when I listened to her evidence – that is Kaytlin Robert’s evidence – I was confused. It didn’t fit. Why would someone that she says she only knew casually call her a skank and a whore. Who does that? Well maybe a jilted boyfriend. Maybe someone who wanted to have a sexual relationship with her but was rebuffed. I don’t know but clearly from her evidence there wasn’t anything going on between the two of them. She didn’t tell any of her friends apparently because they didn’t know anything about it but he told his friends and his brother.

What did he tell them? “There was a thing – didn’t last very long. She wanted to be his girlfriend but he said “No” so she was mad at him.

So now the picture starts to get a little clearer. It show that this just didn’t happen out of the blue between two people who only casually knew each other. There was something going on.

That makes sense … if this accused was involved in the incident it makes sense. He just didn’t like her at all so those things we know as facts. They are not disputed so that gives a little bit of light on the murky things that happened in that parking lot.

[148] Later when examining the appellant’s evidence, His Honour found:

… the accused’s evidence was simply that what he said about Kaytlin was he had no contact with her that night. He only knew her for about three or four months prior to that and had no hard feelings. They were friends.

Well that’s not what his own witnesses said but that’s what he said. …

I find on what he told his friends and his brother that he had this story about him having sex with her and her wanting to be his girlfriend and him saying, “No” and … so he bragged about something that, in my view, based on what I heard and it doesn’t really make any difference to my findings because, as I say it was her word against his I wouldn’t find him guilty of anything, but based on what the evidence is it is clear that there was an axe to grind that he had with her.

It’s clear because both sides of the story – that is from the Crown’s view and from the defence view, it’s there so I have no hesitation in finding that and so the question is why would he not volunteer that and I conclude that he didn’t want the Court to know that there was some bad blood and that’s why we have witnesses not hearing other witnesses talk….

He didn’t know that the people who were going to come after him were going to talk about this relationship. Maybe Mr. Doney [5] didn’t know either. I don’t know but all I am saying is the Court sure didn’t know and once it came out it put a whole new different light on things and so I don’t accept the evidence of the accused. I reject it.

[149] I agree with the appellant that the trial judge erred by misapprehending the evidence, speculating and drawing inferences on no evidentiary basis, and creating a scenario as to what had occurred between Kaytlin Roberts and the appellant that involved the appellant spreading lies about her when there was no factual basis for the speculation.

[150] First, the trial judge found the appellant lied in court when he said he was never in a relationship with Ms. Roberts. The appellant was never asked if he was in a relationship with Ms. Roberts. There is nothing in his evidence inconsistent with either the trial judge’s scenario that he wanted to have intercourse with her and she rebuffed him or that they had intercourse but he did not want to be her boyfriend. It is possible to have intercourse with someone with whom the person is not in a relationship. There was no inconsistency.

[151] Second, the trial judge at point appears to have found His Honour found there was a sexual relationship when he found that was “the underlying reason for whatever happened.” In the same paragraph, he went on to speculate that anyone who would call a woman a skank and a whore might be a jilted boyfriend who wanted to have sexual relations but was rebuffed. His Honour found confirmation of that theory finding "clearly from her evidence there wasn’t anything going on between the two of them.” Ms. Roberts evidence was the same as the appellant’s they knew each other. Neither said they ever had a relationship.

[152] His Honour found Ms. Roberts didn’t tell her friends “because they didn’t know anything about it but he told his friends and brother.” There are several problems with this analysis. The only friends of Ms. Roberts who testified were Petelka, her fiancé, and Stoypra, Petelka’s friend. His Honour’s conclusion had to be based on their evidence and an assumption that if she had intercourse with the appellant she would have told her fiancé and his friends. Neither witness was asked about their relationship. Petelka said the two had some “runnings” and he was told the appellant pushed Ms. Roberts down the stairs. There was no evidence upon which the trial judge could conclude that Ms. Roberts had not told her friends anything.

[153] His Honour used that erroneous finding to speculate that the appellant had wanted to have sex with Ms. Roberts but was rebuffed. He then concluded shortly thereafter that the appellant told his friends and brother “a story.” There was no evidence he told his brother he had intercourse with Ms. Roberts or that they had a relationship.

[154] The trial judge proceeded on a theory that was never raised by or with counsel in submissions. No one had an opportunity to address the theory that the appellant never had intercourse with Ms. Roberts and lied about it to his friends that would be used to reject his evidence.

[155] Further, in rejecting the appellant’s evidence, the trial judge found that it was not disputed that there were bad feelings between the appellant and Ms. Roberts. While it was open to His Honour to find that there were hard feelings, the appellant’s evidence disputed that conclusion.

[156] In addition, the trial judge speculated by saying that the appellant did not know what the defence witnesses who testified after him were going to say about his relationship with Ms. Roberts and speculating that trial counsel did not know what the witnesses would say. That would assume on no evidentiary basis that the appellant simply forgot what he told the others.

[157] I agree that the trial judge erred in rejecting the appellant’s evidence by misapprehending the evidence and making findings with no logical connection between the “what” and the “why.” His Honour drew conclusions that were “entirely unsupported by the evidence.” It is an error to make base findings of fact based on speculation: R. v. Knevic, 2016 ONCA 914, at para. 26. They reflect palpable and overriding errors. They include findings based upon a misapprehension of the evidence and findings of fact drawn from primary facts by speculation and not inferences. These errors were significant as they were essential to the rejection of the appellant’s testimony.

The Hanlon Evidence and Findings Based Upon That Evidence

[158] The appellant submits His Honour erred in basically blanketing all the defence witnesses as liars with inadequate analysis, assessing their evidence focusing on trivial variations in their evidence on a secondary issue, while ignoring Crown evidence on the same issue and significant variations in the Crown’s evidence about how the punching incident occurred. He also contends the trial judge erred in his assessment of the Crown witnesses by misapprehending the evidence and relying on improper considerations.

[159] The Crown contends the trial judge did not err in his assessment of the defence witnesses.

[160] The focus in this area is the use the trial judge made of the Hanlon incident. The three Crown witnesses said three vehicles tried to run them off the road while the defence witnesses said it was Petelka who tried to run two or three of their vehicles off of the road. The trial judge made no findings of fact as to what occurred on the Hanlon but repeatedly returned to that evidence in his assessment of the witnesses as follows:

[161] With respect to Brendan Arcand, the trial judge noted his evidence was a straight denial. Later he found:

… and he is the one, I think, or at least somebody that he knew who called the police on Mr. Petelka and he is the one who had Kaytlin Roberts hanging out the window and the car had been driven by whoever was driving that white truck harassing all three vehicles.

That’s not what Justine said. It’s not what Nathan said and so I don’t accept that evidence of Brendan Arcand.

[162] While unstated, the variations appear to be whether Kaytlin Roberts was hanging out of the window and how many vehicles were involved. Jeff Petelka said that words and gestures were exchanged while they drove on the Hanlon.

[163] With respect to Nathan Billings, a witness the trial judge used as a comparator in rejecting Brendan Arcand’s evidence, the trial judge said:

… a friend of the accused for five or six years – again nothing happened but his evidence contradicts Brandon Arcand’s evidence with regards to what happened afterwards.

[164] That was the total analysis of Billing’s evidence. The trial judge rejected a witness’ evidence based upon a witness whose evidence he also rejected.

[165] With regards to Justine Boyle’s evidence, His Honour’s only comment was:

… well she says nothing happened I just think it was one of these, “I didn’t see anything – I didn’t hear anything – I am not saying anything.”

That’s the impression I got from the defence evidence and because, therefore, I don’t accept their evidence as credible. It doesn’t raise a reasonable doubt on the strong evidence the Crown presented.

[166] First, before addressing the witnesses’ evidence, the reasoning is fundamentally flawed. His Honour rejected Brendan Arcand’s evidence because it conflicted with Justine Boyle’s evidence and Nathan Billings. Then he rejected Nathan Billings’ evidence because it conflicted with Brendan Arcand’s evidence. The trial judge did not base these credibility findings on a comparison between the Crown and defence evidence. He did not reject their evidence because he accepted the Crown witnesses’ version of the Hanlon incident. He rejected two witnesses’ evidence because they gave inconsistent accounts. That two witnesses give different evidence does not mean both are lying: R. v. Okash, 2009 ONCA 37. This was a fundamental error in an assessment of the witnesses. If either witness’s evidence was accepted by itself or raised a reasonable doubt, the appellant was entitled to an acquittal.

[167] Second, that a witness’ evidence is a complete denial is not a basis upon which to reject his or her evidence: R. v. R.M., 2014 ONCA 785. Every witness in the trial said that there was a fight taking place in the McDonald’s parking lot before Kaytlin got out of the truck. No one said nothing happened in the parking lot. The reasons reflect the trial judge’s view that either the witnesses saw no altercations, which was a misapprehension of the evidence, or that a denial the appellant was involved could not be accepted because it was a “straight denial.” The first involves a misapprehension of the evidence, the second a mistake of law.

[168] Turning next to the evidence, Brendan Arcand said he was driving a blue Toyota Highlander on the Hanlon when a white pick-up truck driven by Petelka tried to run his friends off the road. Arcand was behind the other two vehicles that left McDonald’s driving a little SUV. Everything was happening in front of him. The white truck ran a red light, was putting them off, tried to push everybody off the road into the ditches and was just doing crazy things. He thought the driving could be described as “owning the road.” Trevor Simkin who was in Arcand’s vehicle called the police to report Petelka’s driving.

[169] Arcand saw Kaytlin Roberts was sitting in the front passenger seat yelling, hanging out the window. She put the window down and tried yelling at everybody at any given time – trying to stop at the stop light or pulling up next to somebody else’s vehicle. He saw her when they stopped at a red light, they pulled up, she put the window down and started trying to egg on.

[170] Nathan Billings was in Ryan Woodham’s vehicle with the appellant and Ryan. He saw a white truck try to run them off the road. The white truck had run a red light at Laird, “creased the hell between Laird Road or Clair Road and Malti,” pulled over and waited for them. They did not stop. He did not know who was driving the white truck. He was never asked about Kaytlin Roberts in the truck on the Hanlon.

[171] Justine Boyle was in Brendan Arcand’s vehicle and saw a white truck try to run the green truck off the road. The green truck was ahead of them. At the end of her evidence, the trial judge asked if the white truck had done anything to the blue SUV. Ms. Boyle said it did not. His Honour asked if she saw anyone hanging out the window of the white truck and she said she did not.

[172] The trial judge misapprehended the evidence. Arcand and Boyle were in the last of three vehicles in which the appellant and his friends were travelling. Arcand never said the white truck tried to run him off the road. He said it tried to run his friends off the road. Justine Boyle said she did not see anyone hanging out of a window. The trial judge rejected Justine’s Boyle’s evidence that she saw nothing in the parking lot as “I didn’t see anything, I didn’t hear anything, I am not saying anything” yet used her evidence that she did not see anyone hanging out the window to conclude Brendon Arcand was lying.

[173] I agree with the appellant that the trial judge erred in his assessment of the defence witnesses in regards to the Hanlon incident. Given the brief reasons for rejecting the appellant’s four witnesses, these findings played a significant role in the trial judge’s decision. While he was not required to make findings of fact in regards to that incident, when the only basis for rejecting witnesses’ evidence is based upon a misapprehension of evidence, the trial judge commits reversible error. Any of the three witnesses who were rejected on this basis, could have raised a reasonable doubt.

[174] Further, the appellant submits that with regards to misapprehending evidence, His Honour erred in rejecting the appellant’s brother’s evidence because “surely he would want to know why his brother and Ms. Roberts had a problem,” and he was there to help his brother.

[175] The Crown submits the trial judge made no errors in his assessment of the witnesses.

[176] When the witness said his brother told him she was mad at him, the Crown asked if he asked the appellant why she was mad. He replied, “It wasn’t my business.” Later, he was asked, “But you thought that was none of our business so you didn’t pursue that? He said, “Yes, that was none of my business.”

[177] It is difficult to see how those answers provided a reason for rejecting his evidence. The witness was never asked if he wanted to know the reason. There is nothing inconsistent with wanting to know something but believing it was none of his business.

[178] The second reason for rejecting Ryan Woodham’s evidence was that he was there to help his brother. While a witness’ interest in the outcome of a trial is a relevant consideration, that a witness is the brother of the accused does not provide a free standing reason to reject his evidence without more. The two reasons provided for rejecting Ryan Woodham’s evidence

The Crown Witnesses

[179] With respect to the Crown’s witnesses, the appellant submits the trial judge ignored significant inconsistencies in the Crown witnesses’ evidence. For example, His Honour accepted the evidence of Jeff Petelka and Mario Stopyra. However, they gave conflicting evidence with regards to what was occurring when Stopyra was struck. Stopyra said that in addition to yelling at the appellant’s group, Kaytlin Roberts was yelling at those involved in the first beating to stop. Stopyra said the appellant’s group was surrounding another person who was being beaten. Stopyra was struck when he went to assist Ms. Roberts after she was pushed. He was being held by two people when the appellant punched him.

[180] Jeff Petelka said Stopyra went out and was helping the person who was being assaulted to his feet. While he was helping the man up, the appellant struck him, not when he was being held by two people. On some basis that was not explained, the trial judge accepted both witnesses’ evidence yet concluded Stopyra was punched while being held by two people.

[181] A trial judge is not required to unravel every instance of conflicting evidence is reaching his or her decision although particularly troubling inconsistencies must be addressed. While the resolution of this conflict is puzzling, I am not persuaded it was of a nature as to require a reasoned resolution.

[182] Further, His Honour found that Stopyra had ‘volunteered’ that he had told the appellant and his friends in the McDonald’s parking lot that they were idiots. It was “not the smartest thing to do on a night at two o’clock in the morning at the McDonald’s parking lot right across from the Ranch to go up to a group of people” and say that. His Honour continued:

But he said he did that. Nobody even asked him. He just volunteered that. That spoke to me about his truthfulness …:

[183] Ms. Dolby asked Stopyra whether he had any conversation with the appellant when he got out of the truck. Stopyra did not volunteer that he spoke to the appellant.

[184] Finally, I agree that His Honour erred in concluding that if Ms. Roberts was making up her allegations, it would make more sense if she was out to get the appellant she would have said he did something more than a push. The trial judge found her credibility was enhanced because she said he only pushed her. As the Court of Appeal has held, it is difficult to see how the lack of embellishment enhances a witness’ credibility: R. v. L.L., 2014 ONCA 892. I agree with the appellant that this reasoning is problematic.

Conclusion

[185] I am persuaded the trial judge erred in relation to his assessment of the witnesses. While a reasoned basis for accepting the Crown’s witnesses in itself can be a reason for disbelieving the defence witnesses that is not why the trial judge convicted. The reasons for accepting the Crown’s witnesses’ evidence and rejecting the defence witnesses’ reflect palpable and overriding errors. The errors go to the root of the findings.

[186] The appeal is allowed, the conviction quashed and a new trial ordered.

[187] Mr. Woodham shall appear Friday, June 23, 2017, at 9:30 a.m. in Courtroom #, Ontario Court of Justice, Guelph.

DURNO, J.

Released: June 6, 2017

Footnotes

[1] Troy had not given a statement to the police and was not subpoenaed for the trial.

[2] The transcript does not reflect the end of His Honour’s comment

[3] While ambiguous, the phrase “by name or face” could mean he could not put a name to the face.

[4] This is the only reference to the Terminals.

[5] Trial counsel