REASONS FOR DECISION

INTRODUCTION

[1] On April 13, 2016, the appellant Sean Crawford was found guilty after trial in the Ontario Court of Justice on two counts of domestic assault.

[2] The appellant and complainant entered into a romantic relationship in July 2010, married in March 2013, and had their first child in December 2013. Both parties described a problematic relationship that included arguing and violence. On January 28, 2015, the parties separated and the appellant moved out of the family home. In February 2015, the complainant reported to the police that the appellant had repeatedly assaulted her over the course of the marriage. The appellant was charged with three counts of domestic assault alleged to have occurred between August and October 2014 and January 22, 2015.

[3] At the conclusion of the trial, Crown counsel invited the trial judge to dismiss count five (October 2014 allegations) for want of evidence as there was no evidence elicited in relation to it. The trial judge complied and convicted the appellant on the two remaining counts of domestic violence.

[4] The appellant alleges three errors in the trial judge’s reasons for judgment that both individually and cumulatively resulted in a miscarriage of justice such that a new trial is ordered. The alleged errors are as follows:

(1) The trial judge erred by permitting the complainant to testify about extrinsic incidents of physical abuse by the appellant;

(2) The trial judge engaged in impermissible propensity reasoning to convict the appellant; and

(3) The trial judge applied a stricter level of scrutiny to the appellant’s evidence than that of the complainant.

Analysis

The Trial Judge Erred by Permitting the Complainant to Testify about Extrinsic Incidents of Physical Abuse by the Appellant.

[5] In examination-in-chief, the complainant was asked by the trial Crown about other altercations she had with the appellant. The trial judge was aware that the evidence of other altercations was admissible for the purpose of “historical background” and confirmed this explicitly with the trial Crown before allowing the complainant to give evidence.

(Transcript Vol. 2, March 11, 2016 at p. 12 lines 24 -30)

[6] It is important to note that no voir dire was held to determine the admissibility of the evidence. Moreover, there was no objection from defence counsel at the time the trial Crown sought to lead the evidence or at any point when the complainant was testifying.

[7] The failure of defence counsel to object at trial, although not fatal, does tend to undermine the strength of the argument. In the context of a sexual assault case where discreditable conduct evidence was admitted, the Court of Appeal stated:

The failure to object to the admissibility of evidence at trial is not fatal to an appeal. However, it is more difficult for this court to undertake the required analysis based on a record where the defend chose not to litigate the admissibility of the evidence at trial. In R. v. Bero (2000), 2000 16956 (ON CA), 137 O.A.C. 336, Doherty J.A. commented, at para. 12:

Absent any suggestion of ineffective representation at trial, or some other adequate explanation for the absence of any objection to admissibility at trial, I would not give effect to an argument that comes down to the contention that an accused should receive a new trial on the ground that had he chosen to challenge the admissibility of evidence at trial he might have been successful.

R v. R.O., 2015 ONCA 814, [2015] O.J. No. 6170, at para. 13. R. v. Bero (2000), 2000 16956 (ON CA), 137 O.A.C. 336 (Ont. C.A.) at para. 12.

[8] This is not to say that the Court is entitled to relinquish its gatekeeping function. In this case, despite there being no objection to the admissibility of the evidence, the trial judge inquired appropriately as to the basis for which it was being admitted. Moreover, the trial judge continued to be vigilant, despite the objections when Crown counsel tendered photographs of past injury. I find the trial judge was very much aware and alive to the issue attached to this type of evidence.

[9] This type of evidence is almost routinely admitted and, given the circumstances of this case, one would expect it. In this case, the evidence was admitted as part of the narrative to providing the trial judge with a contextual backdrop against which to assess the allegations.

[10] The appellant complains that the trial judge should have restricted or limited the amount of evidence on this point as the evidence unfolded.

[11] Absent a voir dire or objection followed by submissions, the trial judge has no idea what the evidence will be. They are very much in a wait and see position. Their ability to monitor the evidence is limited, and often, they rely and defer to counsel who know the case much better than they do.

[12] In this case, there was no way for the trial judge to anticipate how many questions and responses would be focused on the prior discreditable conduct. Moreover, this was not a completely one sided situation. The appellant also testified about the complainant’s prior discreditable conduct in the relationship and the trial judge acknowledged this in his reasons.

[13] The appellant submits that because a considerable amount of the complainant’s evidence was focused on acts of prior discreditable conduct, that prejudicial effect far outweighed the probative value. I disagree. The risk of using the evidence for an improper purpose is greatly reduced in a judge alone trial. I will examine this issue in more detail below.

[14] I find that the evidence was properly admitted.

1. Did the Trial Judge Engage in Impermissible Propensity Reasoning?

[15] Impermissible propensity reasoning occurs when the trier of fact uses general disposition evidence to infer that the accused committed the offence charged. It is the risk of this forbidden chain of reasoning that underpins the general exclusionary rule respecting discreditable conduct evidence.

R. v. Taweel 2015 NSCA 107, [2015] N.S.J. No. 503, at paras. 68- 73 R. v. Kayilasanathan, 2014 ONSC 5769, [2014] O.J. No. 4674, at paras. 5-7

[16] The appellant submits that the trial judge used the extrinsic evidence of violence to find the appellant guilty, based on the trial judge’s perception, that he was the kind of person who assaulted his spouse.

[17] The trial judge referred to the extrinsic evidence in the third final paragraph of his oral judgment:

Their relationship, of course wasn’t all bad. There was love and there were good times but when arguments happened, Mr. Crawford sometimes resorted to a physical solution. Even when dealing with the incidences not covered by the charges, his solution was not always appropriate. The black eye and the bruises on Ms. Embrett’s back are just two examples. And while I did not try Mr. Crawford on these, they do shed light on his behavior during their relationship.

The Crown is correct in saying that Ms. Embrett was not challenged or contradicted in cross-examination. The subject matter of the remaining charges, that is counts four and six, the choking when she said he fell or they both fell and the push against the door on the day before her birthday are all believable in the context of their relationship at the time. Unfortunately for Mr. Crawford his evidence, in the context of all the evidence, does not reach a reasonable doubt in my mind.

Ms. Embrett’s evidence, on the other hand, I find to be forthright, reasonable and tempered. I have no hesitation in accepting her evidence on the incidences in counts four and six and that the evidence satisfies me beyond a reasonable doubt; therefore I must find Mr. Crawford guilty of those two counts.

Reasons for Judgment at p. 58 line 31 – p. 59 line 27 [emphasis added]

[18] I find that the trial judge did not engage in improper propensity reasoning. While the trial judge did consider the extrinsic evidence, he was permitted to do so. It is entirely permissible for a trial judge to consider the evidence of guilt or innocence in the context of the relationship as a whole.

[19] In this case, the trial judge’s conviction was based on a rejection of the appellant’s evidence and an acceptance of the complainant’s evidence. While I appreciate that the reasons given by the trial judge are succinct, that does not amount to a basis for interference.

[20] In R.E.M., the Supreme Court of Canada commented on the role of appellate courts in assessing the sufficiency of reasons:

52 In Sheppard, the Court, per Binnie J. enunciated this “simple underlying rule”: “if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law [under s. 686 of the Criminal Code] has been committed” (para. 28).

53 However, the Court in Sheppard also stated: “The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26). To justify appellate intervention, the Court makes clear, there must be a functional failing in the reasons. More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focused, must fail to disclose and intelligible basis for the verdict, capable of permitting meaningful appellate review.

54 An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge’s perceptions of the facts. As decided in H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, and stated in Gagnon (para. 20), “in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected”. It is true that deficient reasons may cloak a palpable and overriding error, requiring appellate intervention. But the appellate court’s point of departure should be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law.

[R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 52, 53 and 54 – Tab 5 - Respondent’s Book of Authorities]

[21] The trial judge’s reason are entitled to deference upon review. When the reasons are read as a whole and in conjunction with the entire evidentiary record I find no overriding or palpable error.

[22] I find no error and no basis to interfere.

2. Did the Trial Jude Apply a Stricter Level of Scrutiny to the Appellant’s Evidence than to that of the Complainant?

[23] Although it is an error of law for a trial judge to apply a stricter standard of scrutiny to the evidence of an accused than that use to assess the evidence of the Crown witnesses, it is very much an uphill battle to prove.

[24] This ground of appeal requires satisfaction of an onerous standard: the appellant’s obligation is to clearly demonstrate through the decision record that the trial judge applied different standards of scrutiny in assessing the evidence.

This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

R. v. J.H., 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.) at para. 59. [Respondent’s Factum at para. 23]

[25] I find no merit to this ground of appeal. The trial judge was fair and balanced in his reasons. His findings of credibility were very much grounded in the evidence. In my view, this ground is nothing more than a complaint by the appellant that the trial judge rejected his evidence and accepted the evidence of the complainant.

[26] I find no error and no basis to interfere.

[27] For the reason stated, the appeal dismissed.

Byrne J.

Released: November 17, 2017

CITATION: R. v. Crawford, 2017 ONSC 6899 COURT FILE NO.: CR-16-5000096-00AP DATE: 20171117

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

SEAN CRAWFORD

Appellant

REASONS FOR DECISION

BYRNE, J.

Released: November 17, 2017

R. v. Crawford, 2017 ONSC 6899

Case Summary

REASONS FOR DECISION

INTRODUCTION

Analysis

The Trial Judge Erred by Permitting the Complainant to Testify about Extrinsic Incidents of Physical Abuse by the Appellant.

1. Did the Trial Judge Engage in Impermissible Propensity Reasoning?

2. Did the Trial Jude Apply a Stricter Level of Scrutiny to the Appellant’s Evidence than to that of the Complainant?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1