CITATION: R. v. Kang, 2017 ONSC 6297
COURT FILE NO.: SCA(P) 1542/16
DATE: 2017 10 20
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
B E T W E E N:
HER MAJESTY THE QUEEN
Robin Prihar, for the Respondent
Respondent
- and -
AJMER KANG
Cate Martell, for the Appellant
Appellant
HEARD: November 18, 2016
REASONS FOR JUDGMENT
[On appeal from a Decision of the Ontario Court of Justice at Brampton, ON, delivered January 14, 2016]
BARNES J.
INTRODUCTION
[1] On January 14, 2016, Mr. Justice P.R. Currie of the Ontario Court of Justice, in a judge alone trial, convicted the Appellant of one count of assault and one count of assault with a weapon. The trial judge found the Appellant guilty on both charges. The trial judge, however, stayed the conviction on the charge of assault on the basis that it was an included offence of the charge of assault with a weapon.
[2] The Appellant appeals the convictions. I have concluded that there must be a new trial. These are my reasons.
ISSUES
[3] The Appellant submits that the trial judge committed the following errors: (1) applied a lesser standard of proof on the charge of assault with a weapon; (2) failed to resolve material inconsistencies and difficulties with the complainant’s evidence; (3) made conclusory determinations of credibility; and (4) failed to apply the second and third branches of the W.D. test.
Did the Trial Judge apply a lesser standard of proof on the charge of assault with a weapon?
LAW
[4] To obtain a conviction on the charge of assault with a weapon, the Crown must prove four essential elements beyond a reasonable doubt: (1) that the Appellant applied force to the complainant intentionally; (2) that the complainant did not consent to the Appellant’s intentional application of force; (3) that the Appellant knew the complainant did not consent to this application of force; and (4) that the weapon, in this case a doll, was used in the assault on the complainant: see section 267 (a), Criminal Code, R.S.C., 1985, c. C-46.
POSITION OF THE PARTIES
[5] The Appellant submits that the trial judge applied a standard less than proof beyond a reasonable doubt. The trial judge could not be satisfied beyond a reasonable doubt that the Appellant caused the injuries to the complainant with a doll. The trial judge found there was no evidence that the Appellant assaulted the complainant with any other item. Therefore, the Appellant argues, the trial judge could not have been satisfied beyond a reasonable doubt that the Appellant committed the offense of assault with a weapon.
[6] The Crown, on the other hand, submits that the trial judge did not apply a lesser standard of proof. The Crown argues that the trial judge’s analysis of the doll, when read in context, was an attempt to independently confirm whether the doll caused the complainant’s injuries. The trial judge examined the physical properties of the doll but was unable to reach an independent conclusion on this point. Therefore, the trial judge had to determine whether the charge had been proven beyond a reasonable doubt on the basis of the viva voce evidence. The Crown argues that the trial judge was correct in finding the accused guilty beyond a reasonable doubt on the totality of this evidence.
ANALYSIS
[7] The complainant testified that the Appellant pushed her onto a bed and scratched her chest with part of a doll. The trial judge rejected the accused’s evidence denying the assault and accepted the complainant’s version of events.
[8] The complainant testified that the Appellant struck her with the doll by making one continuous motion across her chest. Photographs of the injuries indicated two scratches across her chest. The doll, however, seemed to have only one sharp edge. To the trial judge, this appeared to suggest that two motions across the chest were required for the complainant to sustain the alleged injuries.
[9] The trial judge stated the following:
In examining Exhibit 2, which is, I’m told, the top of that doll, there is a sharp edge, if you will, where the wires which form the supports, I presume, for jewelry [to] come to an end at the bottom and presumably where, at some point, held in place in ceramic or whatever other material this item was made of. There is an edge of two or three wires together at the bottom of this item. Approximately ½ inch above that, there is a flange of sorts, which again appears to have been seated on top of the doll itself. This flange is small and circular in shape and has an edge to it. As I say, that edge is about ½ inch away from the bottom of Exhibit 2.
I have no medical evidence before me. I have heard from no witnesses who testify that this particular item could or could not have caused the injuries depicted in exhibits 1 a to d.
On the evidence before me, including an inspection of Exhibit 2, and a comparison to the marks shown on the photographs in Exhibit 1, I cannot find one way or the other whether this particular item did or did not cause the injuries, but I cannot exclude it as a possibility: Reasons for decision, at p. 11-12
[10] The learned trial judge concluded that he was not satisfied beyond a reasonable doubt that the doll was used to assault the complainant upon physical examination of the doll alone. However, when he considered this evidence together with the viva voce evidence heard, his assessment of the accused’s guilt was raised from a mere possibility to guilt beyond a reasonable doubt.
[11] After analyzing the doll, the trial judge went on to state that he did not accept the Appellant’s evidence. The trial judge did not find the accused’s description of events to be believable. The accused’s testimony did not raise a reasonable doubt in his mind.
[12] On the other hand, the trial judge accepted the complainant’s evidence that the Appellant struck her with the doll which caused the injuries. Upon accepting the complainant’s evidence, the trial was satisfied beyond a reasonable doubt of the following essential elements of the offense: first, that the Appellant intentionally applied force to the complainant; second, that the complainant did not consent to the force the Appellant applied; and third, that the Appellant knew the complainant did not consent to the application of the force. The trial judge then determined that the charge of assault with a weapon had been proven beyond a reasonable doubt.
[13] The trial judge did not apply a lesser standard of proof. The Appellant’s request to overturn the conviction, on this basis, is dismissed.
Did the Trial Judge provide sufficient reasons for his decision?
[14] The Appellant submits that the trial judge failed to provide sufficient reasons for convicting the Appellant. Specifically, he argues that the trial judge failed to resolve material inconsistencies and difficulties with the complainant’s evidence; made conclusory determinations of credibility; and failed to apply the second and third steps of the test in R. v. W.D., 1991 CanLII 93 (SCC), [1991] S.C.J. No.26, at para. 28.
[15] These grounds of appeal together raise the broader question of whether the trial judge provided sufficient reasons for the decision. In addition, on these facts, the remaining issues on appeal are resolved by addressing the W.D. test. Therefore, I will first review the legal principles that apply in assessing whether reasons for a decision are sufficient. Subsequently, I will address the question of whether the trial judge failed to apply the second and third steps of the W.D. test.
LAW
[16] A trial judge sitting without a jury has a duty to provide sufficient reasons for his or her decision: R. v. Sheppard, 2002 SCC 26, [2002] S.C.J. No. 30. Sufficient reasons are necessary to: (1) inform the parties why the particular decision was made; (2) provide public accountability; (3) permit appellate review; and (4) show fair and adequate decision-making: R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52, at para. 15.
[17] I take judicial notice of the heavy and busy workload in criminal courts. Trial judges cannot be expected to provide extensive reasons akin to detailed jury instructions. Nor can trial judges be held to a standard of perfection in preparing reasons. Instead, trial judges are expected to give sufficient reasons.
[18] Reasons are “sufficient” when they meet the following criteria:
Tell the parties what has been decided (the verdict) and why the decision was made (the basis for the verdict): R. v R.E.M., at paras. 17 and 18.
Provide a logical connection between the verdict and the decision. This link must be logically discernible from the reasons: R.E.M., at para. 18.
The reasons must satisfy the obligation to demonstrate that the law was applied correctly in the particular case: R.E.M., at para. 47.
In some instances, credibility findings may be “purely intellectual and involve factors difficult to verbalize”: R.E.M., at para. 49. In a case that turns on credibility, it should be apparent from the reasons that the trial judge recognized that credibility was a live issue in the trial. This is achieved when the reasons demonstrate that the trial judge resolved the issue of whether the burden of proof has been discharged by assessing the accused’s or a witness’ evidence in the context of the whole of the evidence: R.E.M., at paras. 48-49
Unless the basis for a trial judge’s conclusion on key or essential confusing or contradictory evidence is apparent from the record, the reasons must contain reference to key conflicting evidence and how the conflict was resolved. This is essential where the resolution of such evidence is essential to the trial judge’s ability to resolve the central question of whether the charge has been proven beyond a reasonable doubt: R. v. Dinardo, 2008 SCC 24, [2008] S.C.J. No. 24, at para. 27.
If the previous criteria are satisfied, it is not necessary for the reasons to provide: (1) a recitation of settled, uncontroversial, or undisputed matters of law or fact or matters understood by the parties; (2) a verbalization of the entire road map utilized by the trial judge in reaching the decision; (3) details of the resolution of every conflicting piece of evidence; or (4) an answer to each and every argument made by counsel: R.E.M., at paras. 18 to 20; R. v. Dinardo, at paras. 30-31.
[19] A functional approach must be taken in assessing the sufficiency of a trial judge’s reasons. This means that the reasons must be assessed as a whole, taking into account the context of the evidence and the arguments at the trial. This includes what the trial judge has stated “in the context of the record, the issues and the submissions of counsel at trial”: R. v. R.E.M., paras. 16 and 37.
[20] In assessing an accused’s evidence, a trial judge must be instructed by the principles articulated in W.D.:
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 a 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 evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused: R. v. W.D., at para. 28.
POSITION OF THE PARTIES
[21] The Appellant submits that the trial judge correctly applied the W.D. test at the outset of his reasons but failed to apply the second and third steps. Specifically, the Appellant argues the trial judge failed to ask himself whether, although he did not believe the appellant’s evidence, the appellant’s evidence nonetheless raised a reasonable doubt; and, whether the evidence the trial judge did accept satisfied him of the Appellant’s guilt beyond a reasonable doubt.
[22] According to the Appellant, in his analysis, the trial judge treated the accused’s testimony as a credibility contest. The trial judge jumped directly from his rejection of the Appellant’s evidence to a finding of guilt.
[23] The Respondent conceded that the trial judge did not fully explain how certain matters factored into his credibility findings. However, the Respondent argued that the trial judge recounted the Appellant’s evidence and concluded that it did not “accord with human experience and common sense”: Reasons for decision at p. 11. The Respondent explained that when the trial judge’s reasons are read in context, it is very clear that the trial judge rejected the accused’s evidence as unbelievable.
[24] The Respondent submits that the trial judge referenced the presumption of innocence; accurately stated the principles from W.D. that governed his credibility analysis; expressly rejected the Appellant’s evidence; and found that the accused’s evidence did not raise a reasonable doubt.
[25] According to the Respondent, the trial judge expressly accepted the evidence of the complainant, including the evidence of how the assault occurred. The Respondent submits that it is implicit in the trial judge’s acceptance of the complainant’s evidence that he found she had no motive to fabricate the allegation and that her evidence was corroborated by Officer Saini.
[26] The Respondent further submits that the convictions on their own raise a reasonable inference that the Appellant’s denial failed to raise a reasonable doubt. In effect, the Crown argues the trial judge applied all three branches of the W.D. test.
ANALYSIS
[27] The trial judge conducted an extensive review of the evidence of the complainant and the Appellant. The trial judge concluded that the location, existence, and origin of the recording device was of no probative value. He came to the same conclusion with respect to the allegations of infidelity by the complainant. However, he observed that this was relevant to the defense suggestion that the complainant fabricated the allegations in order to leave the marriage and resume a relationship with another person.
[28] The trial judge explained that he examined the doll. He concluded that in the absence of medical evidence, he could not find “one way or the other whether this particular item did or did not cause the injuries” but he could not exclude it as a possibility: Reasons for decision at p. 12.
[29] The trial judge rejected the evidence of the Appellant. The trial judge stated that his reason for doing so was that the accused’s evidence did not “accord with human experience and common sense”: Reasons for decision at p. 11. It would have been preferable for the trial judge to have been more explicit in his reasons for rejecting the Appellant’s evidence. However, the trial judge did provide a detailed account the sequence of the events as described by the Appellant before stating his conclusion that this description did not accord with human experience.
[30] The trial judge accepted the complainant’s evidence that the Appellant was angry and upset with the complainant. He accepted that the Applicant was controlling in terms of the complainant’s movements and pursued an argument with her into the bedroom. He accepted that during the course of the argument, the Appellant pushed the complainant onto the bed, grabbed the doll that belonged to their daughter, removed the top of the doll and struck the complainant by dragging the doll across her upper chest, thereby causing the injuries depicted in Exhibits 1a to d.
[31] In oral reasons, the trial judge stated that on all the evidence before the court, he was satisfied that the Crown had proved the charges of assault and assault with a weapon beyond a reasonable doubt.
[32] The trial judge found that what transpired in the bedroom, involving the push and the scratching with the doll used as a weapon, amounted to one continuous assault. As a result, the trial judge entered a finding of guilt on both charges. However, he conditionally stayed the assault charge, as in his view, it was an included offence of assault with a weapon.
[33] The trial judge’s analysis applied the first and second branches of the W.D. test. When the trial judge’s reasons are read, as a whole, it is apparent that the reason for his rejection of the Appellant’s evidence is his finding that the sequence of events the Appellant described did not accord with human experience. It is also implicit in his reasons that he reached this conclusion in the context of the whole evidence, which in effect was that of the accused compared to that of the complainant. On this basis, the trial judge rejected the Appellant’s evidence and concluded that his evidence did not raise a reasonable doubt: Reasons for Decision, at p. 2-13.
[34] The trial judge had the opportunity to observe the witnesses and make an educated assessment of their credibility. The trial judge’s credibility assessments are entitled to deference.
[35] However, there were discrepancies and limitations in the accused and complainant’s testimonies. The trial judge’s reasons fail to explain why he accepted the complainant’s evidence or how the discrepancies in the evidence were resolved such that guilt could be found beyond a reasonable doubt.
[36] There were a number of discrepancies in the evidence that remained unresolved. For instance, the trial judge rejected the complainant’s time estimate for being out of the house:
[The complainant] testified that on the date in question, that is, January the 10th, 2015, she told the defendant she was going out. My recollection is that she said she was going to see a friend. [The complainant] testified that the defendant then said to her words to the effect: “be back in 15 minutes”. [The complainant] testified that that was the usual course of events in their household, that is, [the accused] would allow her to leave the residence for very limited periods of time. The [complainant] testified that on the date in question, she came back, in her evidence, some 5 to 10 minutes late, which in my view might be in an underestimation given that she testified it took perhaps 10 minutes to drive to their friend’s house: Reasons for Decision, at p. 2-3.
[37] Furthermore, the trial judge was not satisfied that the physical characteristics of the doll were such that it could cause two scratches in a single continuous motion. He accepted this result as a possibility.
[38] Despite the incongruence between the use of the doll and the injuries, the trial judge accepted the complainant’s evidence, and therefore, effectively accepted that the two scratches across the complainant’s neck were caused by a single continuous motion using the doll. For the trial judge, the complainant’s credibility on this issue was sufficient to reach the conclusion that the charges had been proven beyond a reasonable doubt.
[39] The trial judge may have believed that the discrepancies I have described above were insignificant, or that after assessing the complainant’s evidence in the context of all of the other evidence, there were salient reasons for accepting her evidence irrespective of the discrepancies. The trial judge is not required to resolve every inconsistency in his reasons. However, the reasons for the decision do not explain why the complainant’s testimony on this essential piece of confusing and contradictory evidence was accepted, nor does it explain how this contradiction was resolved. The trial judge’s reasons for accepting the complainant’s account of the events is not apparent from the decision when considered as a whole, or from a review of the entire record.
[40] In his oral reasons, the trial judge said:
On all of the evidence before the court, including that of…the defendant, and the evidence of [the complainant], I do find beyond a reasonable doubt that the charges are made out: Reasons for Decision, at p. 12-13.
[41] The above reasons fail to articulate why, upon a review of all of evidence, the trial judge accepted the complainant’s testimony. The complainant’s testimony was a significant and central piece of the evidence before the court. Because the reasons do not indicate why the complainant’s evidence was accepted, by this omission, the trial judge, though alive to the W.D. test, inadvertently, treated the credibility assessments as a contest between the accused and the complainant. Therefore, the trial judge failed to apply the third step of the W.D. test. This is a significant error warranting a new trial.
[42] I shall set aside the convictions and stay on the assault charges. The matter is remanded to the Ontario Court of Justice for a new trial.
Barnes J.
Released: October 20, 2017
CITATION: R. v. Kang, 2017 ONSC 6297
COURT FILE NO.: SCA(P) 1542/16
DATE: 2017 10 20
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
AJMER KANG
Appellant
REASONS FOR JUDGMENT
Barnes J.
Released: October 20, 2017