CITATION: HER MAJESTY THE QUEEN vs. ERIN NOLASCO-RAMIREZ, 2017 ONSC 5858
COURT FILE NO.:CR-17-171-AP
DATE: 2017/10/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ERIN NOLASCO-RAMIREZ
Appellant
G. Laarhuis, for the Crown ( Respondent)
Robert F. Goddard, for the Accused (Appellant)
HEARD: September 22, 2017
REASONS FOR JUDGMENT
CHARBONNEAU, J.
[1] The appellant appeals his conviction of assault causing bodily harm on Victor Sousa,
a decision rendered by Masse O.C.J. in October 31, 2016.
Background Facts
[2] The appellant and Mr. Sousa were co-workers who attended their mutual employer’s Christmas party on December 13, 2016. After the party they separately went to drinking establishments on Princess Street in the City of Kingston. At one point they met again on Princess Street. Mr. Sousa took exception to what Mr. Ramirez said to his two female companions and a fight ensued. They were separated by a third man and again went on their separate ways. Later a second confrontation took place. The appellant admits that during the second fight he kicked Mr. Sousa in the face and mouth area. Mr. Sousa suffered multiple injuries including a broken jaw, broken teeth and fractures to several facial bones. The injuries required reconstructive surgery.
The Trial
[3] The Crown called to testify Mr. Sousa, his two female companions Tammy Boddy and Nicky Rose, Tyler Stuper a co-worker who separated them when the first fight occurred and Constable Jason Hughes who responded to the 911 call after the second fight.
[4] The accused admitted that he kicked Mr. Sousa in the face and caused him bodily harm. He submitted that his actions were justified on the basis of self-defence, more particularly pursuant to the provisions of section 34 of the Criminal Code.
[5] In support of its position, the defence called the appellant and Jack Troughton.
[6] The main factual issue was what happened during the second altercation between the appellant and the complainant. The only three witnesses who offered direct evidence of the second fight were the appellant, Mr. Sousa, Tammy Boddy and Nicky Rose.
The grounds of appeal
[7] The appellant submits that his conviction is an unreasonable verdict for one or all of the following grounds:
The trial judge erred in his assessment of Jack Troughton’s evidence who testified there was a substantial interval between the beginning of the second fight and the screaming he heard one of the two female companions made.
In accepting the evidence of Tammy Boddy over the evidence of Jack Troughton, to the effect that only seconds elapsed between the start of the second fight and when she witnessed the fight but the trial judge applied less scrutiny to the evidence of Tammy than to the evidence of Jack.
The trial judge failed to resolve a critical issue at trial, namely whether the appellant received his black eyes, observed by Constable Dupuis on December 18, during the first or the second fight.
The trial judge’s decision
[8] The trial judge accepted the evidence of Tammy Boddy who testified that she saw the second fight. She saw the appellant walk-up to the complainant and give him a kick to the head. She saw Mr. Sousa fall and the appellant giving him several more kicks to the body.
[9] The trial judge, applying the principles in R. v. W. D., found that the evidence of the accused did not raise a reasonable doubt as to his guilt and that the rest of the evidence convinced him beyond a reasonable doubt of the guilt of the accused.
[10] The trial judge provided lengthy and well thought-out reasons to explain his conclusion and his findings of facts. He reviewed the testimony of each witness and gave exhaustive reasons for his findings of credibility and/or reliability for each one of the witnesses. .
[11] The trial judge summarizes his findings of fact as follows:
On considering the entirety of the evidence, I reject the accused’s
evidence. It is inconsistent with the evidence that I do accept and
particularly the evidence of Tammy Boddy, whose evidence I find to
be reliable. Based upon the entirety of the evidence and in particular,
accepting the evidence of Tammy Boddy, I make the following findings
of fact.
Victor was quite drunk. Victor and Erin met on Princess Street and
Erin said something regarding Victor’s female companions. Whatever it
was, it was likely that Erin was only joking. Victor found this objectionable
and attacked Erin and the two men fought and exchanged punches. Some of
these punches landed. Injuries were not immediately observable, but it
cannot be disputed that Erin had black eyes when police arrested him
four days later. The two men were separated by Tyler Stuper.
Erin, Tyler and Tyler’s girlfriend walked up Princess Street and then
crossed Princess Street to the Metro lot to catch a cab. Erin was still very
upset at what had happened. Erin again crossed Princess Street and again
came across Victor who had just walked around the corner onto Barrie Street in
and before the attack. Erin gave Victor a roundhouse kick to the face causing these injuries.
Victor fell and hit the back of his head on the concrete. This is corroborated
by the evidence of Tammy and also the goose egg observed by police.
While Victor was on the ground Erin gave him two more kicks to the lower
body. He then left.
Having made those findings of fact, I come to the conclusion that the defence
of self-defence is not available to the accused on these facts since the
kick administered was not for the purpose of defending himself.
Analysis
[12] As indicated earlier the main issue to be decided by the trial judge was what happened during the second confrontation when the appellant kicked the complainant.
Grounds No. 1 and 2
[13] The appellant submits the trial judge erred in his assessment of Jack Troughton’s evidence and applied a lesser scrutiny to Tammy Boddy’s evidence than he did to the evidence of Jack.
[14] The appellant contends the trial judge erroneously relied on the fact that Jack was filling in the blanks based on what Craig McEwen had told him and was wrong in rejecting Jack’s evidence because his evidence was at variance with other witnesses’ versions.
[15] The issue of credibility and reliability of a witness’s evidence is the main task of the trial judge. An appeal court will not interfere lightly with findings of credibility and reliability.
The appellant must show the trial judge made a palpable and overriding error.
[16] The trial judge provided multiple reasons to explain why he decided to reject the evidence of Jack Troughton. The trial judge was entitled to come to the conclusion he did. The reference to filling in the blanks based on what McEwen told Troughton was just one small element of the total reasons for the rejection. It is clear on the totality of the evidence that Mr. Troughton failed to see many things which most witnesses agreed upon. On the basis of the overall evidence, the trial judge was entitled to reject Mr. Troughton’s evidence that two to three minutes elapsed between the time the appellant turned the street corner and the time one of the women screamed. His findings in these regards are entitled to substantial deference. It is noteworthy that the appellant indicated Tammy and Nicky were close-by when the second fight started:
Q. And had they been around – did you know whether they were
around when you and Victor had first come together the second time?
A. Yes.
Q. When the fight was…. .
A. Yes. They were there.
Q. And when this fight was happening with this going to the ground that you’ve described and the punches leading up to the kick, were they nearby you?
A. Yes. They were just like they were in the first confrontation. (Trial transcript of June 10, 2016 p.42)
[17] I do not agree that the trial judge applied lesser scrutiny to Tammy’s evidence than Jack’s evidence. The trial judge very carefully reviewed both of their evidence before coming to the conclusion that he was rejecting Jack’s evidence and accepting Tammy’s evidence. He was not comparing the credibility or reliability of Tammy’s evidence to Jack’s evidence and preferring the evidence of Tammy. For all kind of reasons well set out in his Reasons for Judgement he concluded the evidence of Tammy was credible and reliable in relation to the findings of fact he had to make. On the totality of the evidence he was certainly entitled to come to that conclusion.
Ground 3
[18] The appellant submits the trial judge did not resolve a critical issue namely whether the Appellant received the black eyes during the first or the second fight.
[19] First of all, I disagree that this was an issue that the trial judge had to explicitly resolve. The issue arose from defence counsel’s submissions that the court should accept the accused version that no punches were thrown in the first fight and that therefore his version was the only version that could explain the existence of the black eyes. The accused testified that he sustained them in the second fight during the initial punching described by the appellant before he kicked the complainant.
[20] There was evidence from Tammy and Nicky of punching by the complainant that landed on the appellant’s head area during the first fight. The trial judge dealt with the issue. He was alert to the issue raised and the submissions by the defence that the black eyes could not have been suffered in the second fight. At page 28 he found:
“Victor found this objectionable and attacked Erin and the two men fought
and exchanged punches. Injuries were not immediately observable, but
it cannot be disputed that Erin had black eyes when police arrested him four
days later.”
[21] He rejected the defence submissions and on the evidence he was entitled to do so.
[22] I find there is no reason for this court to interfere with the trial judge’s findings of facts and conclusion. The appeal is dismissed.
The Honourable Justice M.Z. Charbonneau
Released: October 4, 2017
ERIN NOLASCO-RAMIREZ, 2017 ONSC 5858
COURT FILE NO.:CR-17-171-AP
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
ERIN NOLASCO-RAMIREZ
Appellant
REASONS FOR JUDGMENT
Charbonneau, J.
Released: October 4, 2017