Court File and Parties

COURT FILE NO.: 114/16 DATE: 2017/07/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Candice Lacey Lynn McFadden

BEFORE: Grace J.

COUNSEL: R. Sheppard, for the Appellant B. DiBiase, for the Respondent

HEARD: July 5, 2017

Endorsement

[1] For reasons given orally at the conclusion of trial by the Honourable Justice Wayne Rabley of the Ontario Court of Justice, Candice McFadden was found guilty of assaulting her common law spouse Michael McDonald with a weapon. Ms. McFadden appeals her conviction.

[2] The appellant and the alleged victim were the two principal witnesses at the August 18, 2016 trial. According to Mr. McDonald, an argument started almost immediately after Ms. McFadden awoke the morning of December 25, 2015.

[3] His failure to dispose of an unfinished cup of coffee was said to have been the subject of an exchange of words that escalated. Mr. McDonald’s version involved the throwing of the paper cup into the kitchen sink causing the contents to spill onto the backsplash and some clean dishes. That, he alleged, caused the appellant to kick him on the inner thigh while Mr. McDonald was holding the couple’s three month old son.

[4] The jolt was met with an extended arm that Mr. McDonald said connected with Ms. McFadden’s chest somewhere below her neck. Mr. McDonald said he then turned to descend the stairs to the basement. Just before starting his descent, he was struck on the back of the head with a porcelain coffee mug Ms. McFadden was holding. It shattered cutting the back of Mr. McDonald’s head and the front of his right shoulder. Photographs of the injuries taken by Mr. McDonald showed the damage.

[5] Ms. McFadden provided a very different account of the events leading up to the admitted physical encounter. She said her common law spouse initiated an argument as she sat in the kitchen eating breakfast. The couple’s son was sitting nearby in a car seat. Ms. McFadden said she asked Mr. McDonald to go downstairs and join their daughter. He refused to do so.

[6] As emotions began to spiral, Mr. McDonald threw a paper coffee cup against the wall causing its contents to “splash everywhere”. Ms. McFadden explained what happened next. She told the court she went “right up to him” and told Mr. McDonald to clean up the mess he had caused. The porcelain mug was in her hand. He responded. However, Mr. McDonald did not push her chest or extend his arm as he had said. Instead, he put “a cupped hand” to Ms. McFadden’s throat.

[7] In examination-in-chief she described what she did with the coffee mug in these terms:

Well, when he attacked me, I swung it around. I did get him in the head and then I fell to the ground and then after that he picked up [the parties’ son] and he went downstairs just to be alone and I was just there… [1]

[8] A short time later she was asked by her lawyer why she struck Mr. McDonald. She said:

He had me around the throat and he pushed me down. [2]

[9] The appellant’s account was tested in cross-examination. She told Crown counsel too that Mr. McDonald had used one hand to hold her throat. Ms. McFadden said there were no marks on her neck when asked why she had not taken photographs following the incident. The questioning then turned to the fall Ms. McFadden said she had taken. The exchange continued:

Q. So you fall on your bum. So – so laying down on the ground? A. Yes, like backwards, like this. Q. …so he grabs you by the neck, you go down on your bum – at what point do you hit him in the head with the cup? A. Upon contact with my neck. Q. So you’re saying, since he grabs you, you swing the cup and you hit him as you’re falling backwards? A. No, it can’t be done as the fall, it’s not like this. Q. You’re saying that his application of force caused you to fall down but you’re also saying it was his application of force to which you reacted by hitting him with the cup. Which…happened? A. It all happens really fast. Q. And so when you’re swinging the cup at him, you’re also being pushed backwards? A. Correct. [3]

[10] Later after an exchange concerning the height of each participant and Ms. McFadden’s use of her right hand to administer the blow:

Q. Okay. So how…is it, as you’re being pushed, he has extended his arm outright, you’re…able to actually extend your hand to the point where you can hit him in sort of the back of the head? A. We were in close quarters, so it wasn’t from arm’s length…away. Q. Well, except you’ve described to us that you’re responding to him and extending his hand out and cupping his hand around your neck. A. I’m not sure how to explain it ‘cause… Q. Okay. A. There seems to be some kind of miscommunication. [4]

[11] The concluding question soon followed. The Crown suggested and Ms. McFadden denied that Mr. McDonald’s description of the final stage of the incident was an accurate one.

[12] Officer Matthew Bradley of the London Police Service testified briefly for the Crown. He interacted with Mr. McDonald at the parties’ residence shortly after arriving sometime around 10:43 a.m. Officer Bradley observed the injuries I have described. Sometime later and after Ms. McFadden’s arrest, he examined the area she said Mr. McDonald had grasped. No marks were observed. The witness confirmed he had been told by Ms. McFadden that she was uninjured.

[13] The submissions of the appellant’s counsel (not counsel on the appeal) occupied only slightly more than a half page of the transcript. R. v. W. (D.), [1991] 1 S.C.R. 742 (“W.D.”) and self-defence were his focus. The Crown was told by the trial judge that a response was unnecessary.

[14] Oral reasons were given immediately. The trial judge found Mr. McDonald to be “completely truthful” and concluded that his testimony “made a lot of sense”. The trial judge expressed the view that the paper coffee cup and smashed porcelain mug found by the police and the injuries sustained corroborated Mr. McDonald’s version of events.

[15] On the other hand, the trial judge completely rejected the appellant’s evidence. In his view, her version was uncorroborated. The trial judge found it odd that she had not taken photographs on the morning in question despite having done so on other occasions during the parties’ problematic relationship. Of particular concern was Ms. McFadden’s description of the culminating event. The trial judge said:

What you did is, you said it was in response, which means that as you’re being propelled backwards with enough force to land on your bum that you’re somehow striking out at him. To be able to suggest that you could then reach around behind his head with sufficient force, not only to smash the cup but to have pieces of it then deflect onto the area of his shoulder where the glass actually ended up, is absolutely impossible.

[16] A finding of guilt was made after the trial judge concluded that Ms. McFadden’s evidence made “no sense” and did not create a reasonable doubt.

[17] That background allows me to turn to this appeal.

[18] The appellant submits the trial judge referred to but did not fully apply W.D. Further, the appellant argues, the trial judge relied on evidence that he misapprehended. As well, counsel for Ms. McFadden argues that the trial judge subjected her evidence to a different and higher level of scrutiny. The appellant argued these errors tainted the analysis that was undertaken and the conviction that followed.

[19] The Crown disagrees. Its counsel argued that significant errors in the trial judge’s analysis have not been identified. The Crown maintained there was no misapprehension of evidence that played an essential part in the trial judge’s reasoning. W.D. was correctly applied. All of the evidence was subjected to the same level of enquiry.

[20] The legal principles are undisputed. My task is not to retry the case. Fact findings are entitled to a high level of deference: R. v. J.H., [2005] O.J. No. 39 (C.A.), at paras. 46-47; R. v. Cloutier, 2011 ONCA 484, at para. 86. Intervention is not warranted simply because another trier of fact may reasonably have reached an opposite conclusion: R. v. C.P., [2001] O.J. No. 342 (C.A.), at paras. 12-14; R. v. J.H., supra at para. 59. Reasonable findings based on the evidence will not be disturbed: R. v. Mihalkov, [2009] O.J. No. 624 (C.A.), at paras. 33-34.

[21] The determination of whether a witness is credible is a question of fact: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10. A credibility and reliability assessment is a particularly difficult exercise.

[22] Even if the lower court misapprehends evidence, its decision will only be overturned if the mistake relates to something material that formed an integral part of the analysis leading to the conviction: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[23] Applying different standards to the assessment of the evidence of the alleged victim and the accused is an error in law, although a difficult one to establish: R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675 (C.A.), at paras. 95-98; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at para. 62; R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027 (C.A.), at para. 39.

[24] After considering the transcript of the trial proceedings, the decision and the authorities cited by the parties I have determined the conviction cannot stand. I say that for three reasons.

[25] First, the trial judge’s conclusion that Ms. McFadden’s description of the event was “absolutely impossible” rested on a misapprehension of evidence. The trial judge addressed Ms. McFadden while delivering his reasons. In part he said:

So that means that you’re an arm’s length from him on your own evidence. [5]

[26] With respect, that was not her evidence. As mentioned, the appellant said the parties were in close quarters. She said she lashed out “upon contact with my neck”. In cross-examination she said the blow “wasn’t from an arm’s length…away” and when the Crown persisted with that proposition, she told him they were miscommunicating.

[27] The misconception concerning the appellant’s evidence related to a fact that played a crucial role in the trial judge’s reasoning and in his complete rejection of Ms. McFadden’s account. It simply cannot stand: R. v. Burke, [1996] 1 S.C.R. 474, at para. 7.

[28] Second, that same finding dictated the outcome of the trial judge’s W.D. analysis. The reasons focused almost entirely on the final moments of a sequence of events that had, according to both participants, started earlier. This was not a case where a review of the entire reasons demonstrates that the trial judge considered but simply failed to mention other important parts of the evidence. Instead the trial judge seemed to conclude it was unnecessary to look further because of his understanding of the testimony given concerning the incident’s final moments. With respect, that approach was fatally flawed. The trial judge was required to consider all of the evidence, including that which provided context for the confrontation: R. v. Challice, [1979] O.J. No. 1301 (C.A.), at para. 38; R. v. Gostick, [1999] O.J. No. 2357 (C.A.), at paras. 14 and 18. He failed to do so. By way of example only, Mr. McDonald testified that the couple’s young son was in his arms at the time the coffee mug was wielded. Ms. McFadden placed the infant in another location entirely. That was one of many details that was not taken into account.

[29] Third, the evidence of the principal witnesses was subjected to a different standard of review. The accuracy of Mr. McDonald’s evidence was said to have been supported by the discovery of the paper coffee cup, the broken porcelain mug and the injuries sustained. However, none of those items was in issue. They featured in Ms. McFadden’s account too. None of those facts should have played a role in the credibility and reliability assessment. Further, Ms. McFadden fared poorly in that exercise in part because she had not taken photographs followed the incident. The trial judge seemed to disregard her volunteered acknowledgement that Mr. McDonald’s actions left no markings.

[30] Each error of law infects the conclusions that resulted in a finding of guilt. The decision cannot stand. The appeal is allowed and the conviction set aside. If the Crown decides to continue with the matter, a new trial in the Ontario Court of Justice is ordered.

“Justice A.D. Grace” Grace J. Date: July 17, 2017

[1] This excerpt is taken from pages 34 and 35 of the transcript of the trial proceedings (the “Trial Transcript”). [2] This excerpt is taken from page 35 of the Trial Transcript. [3] These excerpts are taken from page 38 of the Trial Transcript. [4] These excerpts are taken from page 39 of the Trial Transcript. [5] This excerpt is taken from page 45 of the Trial Transcript.