CITATION: R. v. Lindner-Henry, 2017 ONSC 6898

COURT FILE NO.: 17-10000015-00AP

DATE: 20171117

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

TORONTO REGION

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CARLA LINDNER-HENRY

Appellant

Danielle Carbonneau, for the Respondent

H. Michael Rosenberg, for the Appellant

HEARD: October 18, 2017

byrne J.

REASONS FOR DECISION

INTRODUCTION

1On October 18, 2016, following a trial in the Ontario Court of Justice, Ms. Lindner- Henry was acquitted on the charge of assault with a weapon but found guilty of the lesser included offence of assault simipliciter.

2In a nutshell, the evidence at trial was that on the evening of January 16, 2015, the appellant, complainant, and a witness Ms. Mathews, were in the appellant’s apartment drinking alcohol and singing. Following an altercation between Ms. Mathews and the complainant, the appellant asked the complainant to leave her apartment. After being asked several times, the complainant eventually left the apartment. The complainant testified that once in the hallway, he attempted to re-enter the apartment to retrieve his “stuff.” He testified that is when the appellant became angry, chased him out the apartment with a baseball bat and then hit him numerous times with it causing injury.

3Ms. Lindner-Henry appeals her conviction and submits that the trial judge erred in law and fact by:

(1) Reaching irreconcilable verdicts and providing insufficient reasons;

(2) Materially misapprehending the evidence;

(3) Drawing impermissible inferences.

ANALYSIS

Irreconcilable Verdicts/Insufficient Reasons

4The duty of an appellate court is limited to determining whether the verdict is one that could reasonably be rendered. The appellate court is entitled to review the evidence, but only for the purpose of determining if it is reasonably capable of supporting the conclusions of the trial judge. An appeal court must not merely substitute its own view for that of the trier of fact.

R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at paras. 21, 23, 25.

R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36 – 38.

5An appellate court may not interfere with a trial judge’s findings of fact unless they are clearly wrong, unsupported by the evidence, or otherwise unreasonable. It must be a palpable and overriding error to warrant appellate interference.

R. v. Clark, 2005 SCC 2, [2005] 1 SCR 6 S.C.R. at para. 9.

R. v. Sinclair , 2011 SCC 40, [2011] 3 S.C.R. 3 at paras. 22, 53, 54, 56.

R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 12.

6A trial judge’s findings of credibility attract a high level of deference from appellate courts.

R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26.

7In this case, the trial judge found that the Crown had failed to prove that the appellant assaulted the complainant with a baseball bat, but was satisfied beyond a reasonable doubt that the appellant applied force to the complainant without his consent and convicted the appellant of assault simpliciter.

8In a nutshell, the appellant argues that there was no basis on the evidence at trial to support a finding of any other assault outside of the offence charged, and in doing so, the trial judge fell into error.

9The appellant further submits that the trial judge’s reasons on this point are wholly inadequate. He failed to articulate and/or identify what the actual assaultive behavior was and is thereby insufficient for appellate review.

10I disagree. And here is why.

11In the trial judge’s detailed and comprehensive reasons, he stated that although he did not accept that the appellant hit the complainant with a baseball bat, he did find that the complainant was forcibly removed from the apartment by the appellant and that this constituted an assault.

12The relevant portions of the judgment are as follows:

I find, as a fact, that there was an obvious confrontation between the two parties and that Ms. Matthews wished to deliberately absent herself from witnessing it by staying in the apartment.

[Reasons for Judgment, pages 18-19]

I find as I consider the evidence of the complainant that it has the ring of truth to it, in terms of his being the one who was forcibly removed from the defendant’s apartment, where he had sought refuge to…..

…I’m satisfied beyond a reasonable doubt, on the totality of this evidence that the defendant, who wished to have the complainant removed from her apartment, assaulted him in the course of doing so. It is clear the defendant harboured by this juncture, some real animus towards her friend. She wished him to be removed from her apartment. He would not go on his own.

Accordingly, I find that that I’m satisfied beyond a reasonable doubt that the defendant applied force to him, without his consent, resulting in an assault.

[Reasons for Judgment, pages 20-21]

13I am mindful that the trial judge does not specify the exact nature of the assault but there are only two possibilities based on the evidence of the complainant. The first was that he was hit with the baseball bat. This evidence was clearly rejected by the trial judge. The second is when the complainant testified that the appellant was angry and chased him out of the apartment with a baseball bat.

[Transcript May 2, 2016, page 12, lines 10-17]

14Section 265(1)(b) of the Criminal Code defines as assault as follows:

A person commits an assault when he attempts or threatens by act or gesture, to apply force to another person, if he has, or causes that person to believe upon reasonable and probable grounds that he has, present ability to effect his purpose.

15The appellant argues that the trial judge’s findings do not fit into the definition of an assault by act or gesture. He argues that the trial judge’s finding of “applied force” is consistent with section 265(1)(a) and inconsistent with section 265(1)(b).

16I disagree. Section 265(1)(b) also requires an application of force by act or gesture. The evidence that the appellant chased the complainant out of the apartment with a baseball bat falls squarely within that definition.

17In my view, this case does not fall into that exceptional category where the reasoning of the trial judge is so irrational or at odds with the evidence that it vitiates the verdict

R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3

18I find that the evidence adduced at trial was capable of supporting a conviction for the lesser included offence of assault simpliciter.

19I find no deficiency in the Reasons and no basis to interfere.

Misapprehension of Evidence

20A misapprehension of the evidence may relate to a failure to consider the evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. To set aside a conviction on the basis that the trial judge misapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge’s reasoning, and the alleged errors must play an essential part in the reasoning process, not just the narrative. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error.

R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2.

R .v. Morrissey, 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at paras. 83, 93.

R. v. T(T), 2009 ONCA 613, [2009] O.J. No. 3388, at para. 33.

21The Supreme Court of Canada has noted that an appellate court cannot order a new trial on this basis unless the trial judge has committed a real error. The plain language of the reasons must disclose an actual mistake, as opposed to a speculative mistake. The review should focus on the overall thrust of the reasoning and should not be a microscopic examination of the trial judge’s reasons.

R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3 at paras. 53, 54, 56.

22Further, the inferences a trial judge draws from the evidence are accorded deference. 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. A trial judge’s findings with respect to credibility are accorded a high degree of deference.

23The appellant submits that the trial judge misapprehended the time the complainant left the apartment when he noted that it was a January evening after 2:30 in the morning.

24I disagree.

25There was no specific evidence about the timing of the complainant’s ejection from the apartment. There was, however, some other evidence, albeit vague and varied about the time he arrived, from the appellant, complainant and witness.

26Even if the trial judge was wrong about the specific timing of the ejection from the apartment, I don’t find it to be a material fact that had any significant impact on his overall findings.

27The appellant further submits that the trial judge misapprehended the evidence that the complainant was forced to leave the apartment without his gloves.

28In his Reasons, the trial judge stated:

His (the complainant) testimony that he needed to return to the apartment to retrieve his gloves and effects is also confirmed through the dealings that he had with Mr. Dinh.

[Reasons for Judgment, page 20, lines 26-29]

29Mr. Dinh was the security guard who worked in the appellant’s apartment building who testified that at the request of the complainant, he attended at the appellant’s apartment and asked for the complainant’s alcohol.

30It is arguable that alcohol falls into the category of “effects” as referred to by the trial judge and, in that way, Mr. Dinh’s evidence did confirm the complainant’s. Even if I am wrong on that interpretation, there was ample evidence from the complainant that he left without his gloves and other belongings and that he wanted them back.

31In my view, this not a material misapprehension or inconsistency that had any significant impact on the trial judge’s ultimate findings.

32I find no basis to interfere.

Unreasonable Inferences

33The appellant argues that the trial judge made unreasonable inferences without evidence to support his conclusion that the appellant demonstrated animus towards the complainant. I find no merit to this ground of appeal. There was, in my view, ample evidence before the court upon which to base his findings.

34I find no error and no basis to interfere.

CONCLUSION

35For reasons stated, appeal dismissed.

Byrne J.