COURT FILE NO.: CR-17-522-00AP DATE: 20180925

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

RADU EPURE Appellant

REASONS FOR JUDGMENT

[On appeal from the convictions imposed by the Honourable P. Hardman, dated January 26, 2017]

DURNO J.

[1] On October 17, 2014, an altercation occurred between a group of young people at a Guelph Transit platform on the University of Guelph campus. The physical aspects of the incident took roughly 13 seconds after which Brett Nicholson was unconscious on the ground and his girlfriend, Rachel Figueira, had been struck. The appellant was charged with assault causing bodily harm on Nicholson and with assaulting Figueira.

[2] At his trial, the issues were identity and causation in relation to Nicholson and consent/self-defence in regards to Figueira. After a two-day trial, the appellant was found guilty of both counts and sentenced to one year served concurrently and conditionally on both counts.

[3] He appeals against the convictions and, while not raised in the Notice of Appeal, appeals against the sentence if only one of the two convictions is quashed. With respect to the convictions, he submits that on both counts the trial judge:

i.) erred in applying the burden of proof,

ii.) provided insufficient reasons by failing to explain how divergent evidence was reconciled, and

iii.) misapprehended the evidence.

[4] On the assault causing bodily harm conviction, the trial judge:

i.) erred in finding the appellant jointly liable for causing bodily harm

[5] On the assault conviction, the trial judge:

i.) erred in failing to consider the issues of consent and self-defence

[6] The appellant is not alleging either verdict was unreasonable.

[7] For the following reasons, the appeal is allowed in relation to the count of assault, and dismissed in regards to the assault causing bodily harm conviction.

[8] As both parties agreed during submissions, in the event of a split result, the appellant appeals against the sentence on the charge of assault.

The Evidence

[9] The University of Guelph provides a shuttle service for students returning to campus from downtown Guelph. At the time of the incidents, three buses were parked at an angle to the sidewalk at the university bus stop: the shuttle bus was first, and Guelph Transit buses second and third. The second and third take students from the bus on their respective routes. Brett Nicholson and Rachel Figueira arrived on the shuttle bus, got off that bus and onto the second in line. Nicholson then got off that bus and Figueira followed him off shortly thereafter.

[10] Brett Nicholson, who was six foot four and weighed two hundred and twenty pounds, testified that he recalled drinking at Ms. Figueira’s home and downtown, taking the bus back to campus, speaking to a hockey friend on the bus, and then waking up in hospital. He awoke with a cut to his upper lip that required stitches, a concussion, a swollen eye and multiple scratches to his head and arms. It was admitted at trial that he suffered a concussion from a “very significant punch.”

[11] Rachel Figueira testified that she really did not remember the evening apart from drinking, being downtown, going on the bus, and then seeing Nicholson unconscious and unresponsive on the sidewalk.

[12] Figueira had no injuries and no physical discomfort. She told the police that she had not been assaulted. While she knew the appellant from class and identified him in a photo lineup, she testified that she identified him as a fellow student and not as being involved in the altercation. She could not identify the appellant as being present for the incident.

[13] Tamara Dunn was the driver of the third of the three buses in line. She was parked directly behind the second bus when she saw Figueira arguing with the appellant [1] as they got off of the shuttle bus. He was with two or three other males. The argument continued as Figueira and Nicholson made their way towards the second bus.

[14] After Nicholson boarded the second bus, the argument continued near the front door of that bus. The appellant [2] told Figueira to “shut the fuck up,” and told Nicholson that he knew how he could shut Figueira up - by sticking his cock in her mouth, and asked Nicholson if he would rather have him stick his cock in Nicholson’s mouth. The comments upset Figueira who initiated physical contact with the appellant by grabbing and pushing his face, telling him to “shut the fuck up.”

[15] In examination-in-chief, Ms. Dunn said the appellant responded by punching Figueira in the face with a closed fist, and they began fighting. When confronted in cross-examination with her police statement, she agreed she told the police the male slapped Figueira really hard with an open hand, and that her statement would be more reliable as she was testifying two years after the incident.

[16] Nicholson, who was quite intoxicated, got off the bus and tried to hit the appellant but missed. Ms. Dunn agreed that Nicholson appeared to be looking for a physical confrontation. When he heard the appellant’s comments he “lost it.”

[17] At the time of the second confrontation between the appellant and Figueira, Dunn focused on the couple who had moved and were fighting on the left side of her bus, three feet from where she was seated in the driver’s seat. They were moving, talking and hitting each other. At one point, the appellant punched Figueira in the head and kicked her in the stomach. The fist fight continued for five minutes with the couple yelling and hitting each other. At one point, the appellant briefly fell to the ground. It was a fist fight, a physical fight that ended when Dunn’s supervisor became involved, the appellant ran behind a nearby GO bus shelter and Figueira went back to Nicholson who was unconscious on the ground after being beaten by the appellant’s friends.

[18] When Ms. Dunn noticed Nicholson lying on the ground unconscious, she grabbed her first aid kit and helped Nicholson. She explained that it was a very busy night with hundreds of students. She had roughly 75 students on her bus and was responsible for them. She was trying to keep them on the bus so it did not become a fifty-person brawl. However, two passengers told her they were CPR-trained lifeguards and were permitted to leave the bus with her to help Nicholson. They stayed with Nicholson when Dunn returned to her bus.

[19] A few minutes later, while Nicholson was unconscious on the ground, the appellant came from the back of the shelter, approached Nicholson, kneed him in the chest and punched him multiple times in the face for two to three minutes. The appellant’s friends “had to just step to the side.” They backed up maybe two or three feet and were just yelling. No one intervened when the appellant started punching and hitting Nicholson. Ms. Dunn did not know what the lifeguards, who were with Nicholson, were doing when the male was assaulting Nicholson. When police sirens were heard, the appellant and his three friends fled across the field behind the bus shelters with Jason Simmons, a Guelph Transit Supervisor, in pursuit.

[20] Ms. Dunn initially said that the punches to Figueira and kick to the stomach were before the appellant jumped on Nicholson’s stomach. Later, she said that it was after.

[19] Ms. Dunn was cross-examined on a statement she had given to police on December 5, 2014, in which she said that the appellant came out from behind the GO bus shelter, ran and jumped with his knee to the unconscious man’s chest and began punching him in the head. The statement continued : “The girlfriend then began yelling and attacked the young man.”

[21] Ms. Dunn said that when she read the statement it was not exactly what she remembered while testifying. The statement is what she remembered on December 5, 2014 when her memory of the fights “would be a lot more clear than it was almost two years later.”

[22] Jason Simmons was on the platform and saw a group of people yelling as they exited the downtown shuttle bus. Six men and one woman were involved. A man wearing a leather jacket and jeans tried to punch Figueira but missed. While Simmons was calling the campus police, he saw three men standing over Nicholson who was on the ground unconscious. One of the men took off his shirt to celebrate and said, “One punch motherfucker.” The others gathered around Nicholson.

[23] The man who tried to punch Figueira joined the men and for a few seconds all of them kicked Nicholson. Simmons saw the male kicking and kneeing Nicholson. He never saw the appellant jump on Nicholson’s chest or knee him although in cross-examination he said he saw knees and kicks before Figueira came over and pushed or pulled the appellant off of Nicholson.

[24] Simmons admitted in cross-examination that his statement given to police on November 28, 2014, did not include anything about Figueira pulling the male off Nicholson. He said there were things he must have left out of the statement.

[25] Figueira went over to the group, pushed the appellant off of Nicholson and moved him between the two buses where they had a verbal altercation during which the appellant punched her in the face and kicked her in the stomach.

[26] Still on his phone, Simmons approached the appellant and told him to stop. The appellant and his friends took off running. Simmons chased the appellant, keeping him within 15 metres. As the appellant ran, he separated from the others. Simmons saw Constable Deschamp apprehend the appellant, although he could not identify that man as being in court.

[27] Simmons said that his attention was focused on Figueira and the appellant after he heard them arguing. He was concerned that it could get physical. In neither incident between the two did Figueira hit the appellant.

[28] Constable Deschamp, of the University of Guelph Police, was dispatched to the incident and flagged down by Simmons, who identified the appellant as the man who assaulted Figueira. The officer drove across the street and arrested the appellant, who was wearing a brown leather coat. The knuckles on his right hand were bleeding. Because the appellant was hyperventilating in the back of the cruiser, he was taken to hospital.

[29] At the hospital, after learning from another officer that Figueira did not want to press charges, the appellant was released unconditionally. At that time, it appears the officer was only aware of an allegation the appellant had assaulted Figueira. After he released the appellant, he became aware of Nicholson being treated at the hospital.

The Video Evidence

[30] There are two key video recordings, both from the middle of the three buses. The videos were of front door from the area of the driver’s seat and of the back door from the driver’s side of the bus. Assuming the clocks on the two video cameras were synchronized, the total physical confrontation took 13 seconds. The recordings were not working in Dunn’s bus.

[31] The relevant segments run between 1:27:32 and 1:28:29. The front door video starts with Figueira standing on the sidewalk by the front door, facing into the bus and talking to someone in the bus. She appears to be smiling. She walks to the right and off camera and then comes back in the opposite direction as if going to the confrontation.

[32] Nicholson was off the bus before the video starts and comes from the area of the verbal altercation between the groups. He is first seen being walked to the bus entrance by a male wearing a white shirt. Nicholson tries to move around the man who was trying to hold him back. The white-shirted male pushes Nicholson back onto the second bus.

[33] Figueira appears, walking backwards towards the back of the second bus, arguing with men in dark shirts who are walking frontwards towards her. The appellant walks towards Figueira, who shoves him back with both hands. The appellant swings at Figueira but misses. Figueira slaps and hits the appellant with both hands. Two men in dark shirts separate the appellant and Figueira and it appears that the physical confrontation ends at that point.

[34] Nicholson pushes past his friend in the bus doorway and goes onto the sidewalk. A third man wearing a dark shirt runs to the right on the video towards the back of the second bus. Nicholson does not remain in the area where Figueira and the appellant are in a confrontation. He rushes off to the right behind the man in the dark shirt towards the back of the bus as if he was going after someone.

[35] Figueira is outside the front door facing the direction of the front of the bus, motioning with her arms and yelling in the appellant’s direction. A number of people, including Nicholson’s white shirted friend, go across the screen towards the back of the bus.

[36] The rear door video starts with Nicholson being knocked to the ground at 1:28:27 and a man in the dark shirt continuing to punch him roughly three times as he lay on the ground. One second later, two men in dark shirts run from the left to the right on the video, past Nicholson and to the rear of the bus. At least one person, and perhaps Figueira, go past the rear door.

[37] A man in a white shirt goes to Nicholson and bends down. Figueira and silhouettes appear in a melee towards the back of the bus. Figueira walks from the rear of the bus to Nicholson and kneels beside him. Figueira and Nicholson’s white-shirted friend continue to kneel over Nicholson talking to a silhouette standing nearby. The relevant portion ends at 1:29:42.

[38] The appellant called no evidence.

The Positions of Counsel at Trial

The Crown

[39] The Crown, not Ms. MacDonald, urged the trial judge to accept Simmons’ evidence, describing it as the “best and strongest evidence.” He was present on the ground, a fairly close distance from where the events were occurring. If Her Honour accepted his evidence, the Crown had established identity. While there were differences in the descriptions of the events between Simmons and Dunn, the discrepancies were explained by their different distances and vantage points, meaning dissimilarities would be expected.

[40] The Crown noted the errors Constable Deschamp made in trying to identify who was who, and that he had corrected himself. The prosecutor asked Her Honour not to give any weight to his evidence. When the trial judge queried whether she was to “instead view [the video] herself”, the Crown agreed, noting “the video would show the parts that are obvious and the parts that are not obvious.”

The Appellant

[41] Defence counsel, not Mr. Lockyer, did not suggest any Crown witnesses were not credible. Rather, the issue was their reliability. He submitted that the discrepancies between Simmons’ and Dunn’s evidence could not be explained by their different positions. The discrepancies were so significant that they could not be describing the same incident. Counsel urged the trial judge to rely upon her notes and viewing the videos to conclude the Crown had not established either count beyond a reasonable doubt.

[42] Counsel noted that Figueira had no memory of the incident, that from the video it could not be determined precisely what was “going down” but it was possible to determine that it was “a back and forth, to and fro.” Because there was no evidence from Figueira, the court could not rule out reasonable use of force. It was not possible to determine beyond a reasonable doubt that either “use of force in self-defence, a consensual fight took place, or something in between.” Her Honour had to allow for a self-defence or a reasonable use of force defence.

[43] With regards to the “bodily harm” element in regards to Nicholson, counsel submitted that it was “as likely as not that whatever harm was occasioned to Mr. Nicholson was caused by the gentleman who punched him out and yelled, “One punch, motherfucker.” There was no way to find the appellant was a party to the injuries. The most that the appellant could be convicted of in relation to Nicholson was assault.

[44] In submissions, the trial judge said she did not want to comment on the videos because “obviously I’m going to have to have another look at the video.”

The Reasons for Judgment

[45] The trial judge heard counsels’ submissions on January 26, 2017, reserved and provided oral reasons for judgment on March 2, 2017.

[46] Her Honour began by identifying the issue as “the identification of the accused as the perpetrator.” She outlined the evidence and acknowledged the importance of carefully scrutinizing identification evidence, regardless of how credible the witnesses appeared.

[47] Her Honour noted that Figueira did not want anyone charged and found her lack of recollection to be “quite contrived.”

[48] The trial judge found Simmons a “very credible and independent witness,” remaining consistent despite being carefully cross-examined. He said a group of males, including the appellant, took part in assaulting Nicholson. He followed the interaction between the appellant and Figueira, and from ten feet away saw the appellant punch her in the head and kick her in the stomach. When he tried to touch the appellant’s shoulder, he ran away. Simmons followed the appellant. He never lost sight of the male and it was that male the officer arrested.

[49] The trial judge continued that the clothing described as being worn at the time of arrest appeared similar to that worn by the person identified as the accused on the video and in his description. Further, Simmons said the male who was in the fight with the woman went over and joined his cheering friends and kicked and kneed Nicholson.

[50] The strength of Simmons’ evidence was not that the appellant was the person he was chasing. Rather, it was in his focus on the male who hit the female and tracking him without losing sight of him. He was in a position not to lose sight of the male and did not.

[51] The trial judge found Dunn’s evidence had differences from Simmons’, but there were also similarities. It was difficult to sequence her observations. Like Simmons, she saw two incidents between the male and female but saw the female as the aggressor in the first. Her Honour found Dunn left, returned to her bus, and “turned her attention back to the fight between the young male and female.” At this point, she saw the young man kick the female in the stomach and punch her in the head, the same action witnessed by Jason Simmons. She also witnessed the same young man come over after being behind the GO bus shelter to knee and hit Nicholson in the head while he was unconscious from the beating by the appellant’s friends. Both witnesses testified that the appellant’s friends were around the unconscious Mr. Nicholson assaulting him.

[52] With regards to the differences between Simmons’ and Dunn’s evidence Her Honour found “there was a lot happening in a short period of time,” and the witnesses had different vantage points and levels of involvement. Noting that “cherry picking” bits and pieces of the evidence can compromise the notion of credible witnesses, a court can accept some but not all of a witness’ evidence.

[53] The trial judge then examined the defence argument that the court could not rule out “reasonable use of force in the assault on Ms. Figueira.” She found that while it appeared the first physical contact was made by Ms. Figueira in the initial confrontation, the punch and kick occurred in the second confrontation. Her continued:

Ms. Figueira’s only aggression at that point seems to be trying to pull the accused off the boyfriend.

[54] Her Honour concluded the identification segment of her Reasons as follows:

Given the evidence I am prepared to find that the young man, identified as the person who kicked and hit the female identified as Ms. Figueira on the video, is indeed the young man chased by Jason Simmons and arrested.

Further, it appears that the assault occurred on Ms. Figueira as she was pulling him away from assaulting her unconscious boyfriend. [emphasis added]

[55] The trial judge turned next to the issue of “assault causing bodily harm,” addressing the appellant’s argument that if he assaulted Nicholson it was after he was injured and beaten unconscious by others. There was no evidence that his blows caused any injuries. In these circumstances, the appellant should be convicted of assault and was not a party to the assault causing bodily harm.

Her Honour noted:

Where two or more people are involved in an assault causing bodily harm, the court does not need to determine which of the perpetrators struck the damaging blows. Certainly, the accused was aware that an assault was taking place at the time he joined in. It also appeared obvious to everyone that the victim of the beating was unable to protect himself and injured already.

[56] After referencing R. v. L.P., [2003] O.J. No. 251 (C.A.); R. v. Smithers, [1978] 1 S.C.R. 506; R. v. Meiler, [1999] O.J. No. 1506; R. v. Saraj, 2012 ONSC 253; and R. v. Vang (1999), 118 O.A.C. 75, the trial judge found the appellant:

… certainly joined the assault. There was no time gap as the others were still kicking the victim. He should have known that kneeing or otherwise being involved with the victim could cause bodily harm.

[57] It was not necessary to assign individual blows to individual injuries. Any differences in participation were for sentencing.

The Grounds of Appeal

Did the trial judge err in considering the burden of proof?

[58] While conceding that trial judges are presumed to know the law, the appellant contends that Her Honour’s failure to mention the burden and standard of proof, coupled with Her Honour’s indefinite and indecisive findings of fact, belie that presumption. The appellant contends that a review of the Reasons for Judgment show Her Honour failed to require the Crown to meet the proof beyond a reasonable doubt standard.

[59] The appellant focuses on the following excepts from the Reasons at p. 13, and in particular the underlined comments:

Counsel for the accused states that the court cannot rule out reasonable use of force in the assault on Ms. Figueira. While it appeared that the first physical contact was made by Ms. Figueira in the initial confrontation, the punch and kick occurred in the second interaction. Ms. Figueira’s only aggression at that point seems to be trying to pull the accused off the boyfriend.

Given the evidence I am prepared to find that the young man, identified as the person who kicked and hit the female identified as Ms. Figueira on the video, is indeed the young man chased by Jason Simmons and arrested.

Further, it appears that the assault occurred on Ms. Figueira as she was pulling him away from assaulting her unconscious boyfriend. [emphasis added]

[60] The Crown agrees that the Reasons contained no reference to proof beyond a reasonable doubt, but submits that when read in their entirety, the Reasons show the appropriate standard was applied and met.

Analysis

[61] There is no reference to proof beyond a reasonable doubt in the Reasons for Judgment. As the appellant concedes, that in itself is not fatal to the conviction. Judges are presumed to know the law with which they work on a daily basis: R. v. Burns, [1994] 1 S.C.R. 656, at p. 664.

[62] The test is not whether the judge properly articulated a legal test. Rather, it is whether, when read as a whole, the reasons show the trial judge correctly applied the law. The test can be stated properly and applied improperly. It is the application that is determinative.

[63] Here, the appellant relies upon the trial judge’s use of “it appeared that the first physical contact,” “Ms. Figueira’s only aggression at the point seems to me to be …,” “I am prepared to find,” and “it appears that the assault occurred”.

[64] I am not persuaded the references reflect a misapplication of the burden of proof. While perhaps not phrased as others would have done, it is clear that the requisite findings were made and include nothing from which I can conclude that a lower standard or proof was applied.

[65] The first reference to ‘appeared’ refers to Figueira throwing the first punch. While Simmons did not see that occur, it is clear in the video that she made the first physical contact. Dunn said Figueira was the aggressor. It was Her Honour’s manner of saying “this is a fact.”

[66] Subject to the accuracy of the comment that will be addressed later, the “seems to be trying” and last “appears that” are references to the evidence. If there was evidence that Figueira was pulling the male away from Nicholson, a finding that it appeared that was occurring, reflects a finding of fact. Simmons, in his trial evidence, and Dunn, in her police statement adopted at trial, said Figueira pulled or pushed the male off of Nicholson. Finally, being “prepared to find” does not detract from the standard or burden of proof. It is prefaced with “[g]iven the evidence.” I see nothing wrong with saying something akin to “having regard to all the circumstances and evidence, I am prepared to find X, Y and Z.”

[67] Before addressing the remaining grounds of appeal and to place the grounds in context, I agree with Mr. Lockyer’s submission that to an extent the grounds of appeal blend together. In these circumstances, I will first address the law in relation to three issues common to the grounds on both convictions. The first is the requirement for reasons, the second is reconciling divergent evidence, and the third is the misapprehension of evidence.

Reasons for Judgment

[68] In R. v. Doodnaught, 2017 ONCA 781, at paras. 76-79, Watt J.A. held:

A trial judge's reasons rendered at the end of a criminal trial must be sufficient to fulfil their functions of:

i. explaining why an accused was convicted or acquitted;

ii. providing public accountability; and

iii. permitting meaningful appellate review.

See, R. v. R.E.M., [2008] 3 S.C.R. 3, at para. 15.

Our approach to an assessment of the sufficiency of reasons is both functional and substantive. We are to read them as a whole, in the context of the evidence, the arguments and the trial, with the appreciation of the purposes or functions for which they are delivered: R.E.M., at para. 35. We do not view them on a stand-alone, self-contained basis or analyze them as if they were instructions to a jury. To the extent the "why" for the verdict is discernible in this way, the reasons are sufficient: R.E.M., at paras. 17-18, 37.

The purposes of reasons are fulfilled where the reasons, read in context, show why the judge decided as he or she did. The object of reasons is not to show how the judge arrived at his stated conclusion in a "watch me think" fashion. Rather, reasons show why the judge decided as he or she did: R.E.M., at paras. 17-18.

A trial judge is not bound to expound upon the uncontroversial or elucidate what is understood and accepted by the parties, whether the subject-matter be legal principle or evidence. Nor is the trial judge required to detail his or her finding on each piece of evidence or controverted fact, provided an appellate court can logically discern the findings linking the evidence to the verdict: R.E.M., at paras. 19-20. [emphasis original]

[69] A deficiency in the reasons in itself does not result in a new trial. Rather, “[t]he appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case.” R. v. Sheppard, [2002] 1 S.C.R. 869, at para. 31.

[70] In Sheppard, the Supreme Court found, at para. 28:

It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge's reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge's decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that 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 has been committed.

Resolving Inconsistencies in the Evidence

[71] In Sheppard, the Supreme Court held, at para. 55:

Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated. [emphasis added]

[72] In R. v. R.A., 2017 ONCA 714, at para. 45, aff’d 2018 SCC 13, the majority of the Court of Appeal held:

[S]ignificant testimonial inconsistencies should be addressed because, as the Supreme Court noted in R. v. Gagnon, [2006] 1 S.C.R. 621, at para. 21, the accused is entitled to know "why the trial judge is left with no reasonable doubt". However, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons: R. v. R.(C.), 260 O.A.C. 52, at para. 48.

[73] In R. v. A.M., 123 O.R. (3d) 536, at paras. 17-18, the Court of Appeal held:

[W]here a case turns largely on determinations of credibility, the sufficiency of reasons must be considered in light of the deference generally afforded to trial judges on credibility findings. It is rare for deficiencies in a trial judge’s credibility analysis, as expressed in the reasons for judgment, to warrant appellate intervention: R. v. Vuradin, [2013] 2 S.C.R. 639, at para. 11; R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 26. [citations added]

Nevertheless, the failure of a trial judge to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error: Vuradin, at para. 11; Dinardo, at para. 26; R. v. Braich, [2002] 1 S.C.R. 903, at para. 23. After all, an accused is entitled to know why the trial judge had no reasonable doubt about his or her guilt: Gagnon, at para. 21. [emphasis added]

Misapprehension of Evidence

[74] In Doodnaught, the Court of Appeal held, at paras. 71-73:

A misapprehension of evidence may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. To succeed before an appellate court on a claim of misapprehension of evidence, an appellant must demonstrate not only a misapprehension of the evidence, but also a link or nexus between the misapprehension and the adverse result reached at trial.

To determine whether an appellant has demonstrated that a misapprehension of evidence has rendered a trial unfair and resulted in a miscarriage of justice, an appellate court must examine the nature and extent of the misapprehension and its significance to the verdict rendered by the trial judge in light of the fundamental requirement of our law that a verdict must be based exclusively on the evidence adduced at trial. The misapprehension of evidence must be at once material and occupy an essential place in the reasoning process leading to the finding of guilt: Morrissey, at p. 221.

The standard set for misapprehension of evidence to warrant appellate reversal is stringent. An error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge's reasoning on which the conviction is based on unsteady ground: R. v. Sinclair, [2011] 3 S.C.R. 3, at para. 56.

[75] Finally, it is an error in law to make a finding of fact upon which there is no supporting evidence: R. v. J.M.H., [2011] 3 S.C.R. 198, at para. 25.

Did the Trial Judge fail to resolve the inconsistencies between Dunn and Simmons’ evidence and between the video evidence and their evidence?

[76] The appellant submits that the trial judge was required to resolve the significant inconsistencies between Dunn’s and Simmons’ evidence and between their evidence and the video evidence. He argues that the failure to do so precludes effective appellate review and a new trial must be ordered on both counts.

[77] Regarding the video evidence, the appellant submits the trial judge ignored relevant evidence. [3] He contends that there are only two references to the video in the Reasons and both involve what witnesses said about the videos in their trial evidence. Mr. Lockyer submits that when the officer’s evidence regarding the video was confusing and problematic, it lead the Crown to ask the trial judge to ignore his evidence. However, Her Honour ignored the video evidence. While it takes repeated watching of each segment, there are important areas of the video that either confirm or raise issues regarding Dunn’s and Simmons’ evidence.

[78] The Crown submits that the quality of the video evidence was not such that significant inconsistencies existed and that trial judge could believe all, part of none of either witnesses’ evidence. There was an evidentiary basis for each conclusion reached. Further, the trial judge resolved the inconsistencies between the witnesses’ evidence by preferring Simmons’ evidence and providing reasons for so doing. Her Honour found Simmons was a credible and independent witness, that there was a lot happening during a short period of time, and each witness had a different vantage point and different involvement. Those reasons provided an appropriate basis upon which to act on Simmons’ evidence where conflicts existed.

Analysis

[79] To place this issue in context, I will briefly outline the consistent and inconsistent aspects of Dunn’s and Simmons’ evidence. First, the consistencies. The witnesses were consistent in saying that whoever knocked out Nicholson it was not the appellant. They both had the first altercation occurring at the front of the second bus in line and Nicholson knocked out at the rear of that bus.

[80] Both witnesses drew diagrams when interviewed by the police, Dunn on December 5, 2014 (1 month and 19 days after the incident – Exhibit #4), and Simmons on November 28, 2014 (1 month and 12 days after the incident – Exhibit #5). The diagrams are similar [4] with regards to the locations of the events and the route the appellant took before being arrested. They testified roughly two years and one half month after the incident. Before testifying, no one had shown them the video recordings.

[81] Both witnesses said there were two physical confrontations between Figueira and the appellant. Both identified the person arrested by the police as the person who assaulted Nicholson while he was unconscious on the ground. Both said Figueira had physical contact with the appellant while he was assaulting Nicholson, either by attacking him, pulling or pushing him off.

[82] With regards to the inconsistencies, Simmons said he did not see Figueira start the first physical confrontation with the appellant. Dunn said she did. Simmons said the appellant kicked and kneed Nicholson when he was unconscious. He made no mention of the appellant going behind the GO bus shelter and coming back to assault Nicholson, as Dunn testified. Dunn said that after Figueira pulled or pushed the male off Nicholson and went with the male between the second and third buses, a verbal confrontation occurred during which they struck each other, including the appellant kicking and punching Figueira. Simmons said Figueira was not striking the appellant at that time.

[83] Dunn initially said the appellant kicked and punched Figueira before he kneed Nicholson in the stomach, but later said it was after. Simmons said the assault on Nicholson was before the kick and punch to Figueira.

[84] Dunn said that when the appellant assaulted Nicholson the appellant’s friends had backed up a few feet and were yelling. Simmons said that the male joined in and they were all kicking and assaulting Nicholson at the same time. Dunn said the appellant kneed Nicholson in the stomach and punched him in the head many times. She did not see anyone kicking him.

[85] Turning next to the video recordings outlined above. The recordings do not provide a complete picture of everything that happened. Far from it. However, the front door view shows the start of the first confrontation between Figueira and the appellant. This is in close proximity to Simmons’ location, yet he did not see Figueira strike the appellant. That same recording shows Nicholson being held back by his friend, breaking through and going off the bus and into the fray. He then quickly goes towards the back of the bus, leaving Figueira and the appellant at the front of the bus.

[86] The rear door recording is of some limited assistance, in part because the view of Nicholson being assaulted is through a closed door. Not all of Nicholson is visible. The images are not particularly clear, although Figueira is seen at his side, leaving twice and returning. There are others around him that could be the CPR-trained lifeguards. While the video shows the initial assault that sends Nicholson to the ground, further blows from the same male while he is on the ground, and the victory celebration by that male, it is difficult to see where the appellant returns to either join in the altercation or where he assaults Nicholson while he is on the ground with the appellant’s associates standing back a few feet. While there is nothing on the video to confirm Nicholson was ever kicked, that he was kicked cannot be eliminated from viewing the video. Nicholson goes down to the ground at 1:28:27 and remains in roughly the same location until that video ends at 1:35:04.

[87] In relation to the two transit employees’ evidence, the first issue is whether Her Honour reconciled their evidence by accepting Simmons’ evidence where it conflicted with Dunn’s. I agree with the Crown that Her Honour’s comments about Simmons being credible and independent when coupled with her comments about problems with Dunn’s sequencing, are some indication that Her Honour preferred Simmons’ evidence when it conflicted with Dunn’s. There is no dispute that Dunn was confused about to the sequence of events. When confronted with her police statement accepted it would be more accurate.

[88] However, the basis for preferring Simons’ over Dunn’s evidence is flawed. A finding that Simmons was a very credible and independent witness did not advance the analysis. No one suggested Simmons or Dunn was providing untruthful evidence. Both were independent. The issue was their reliability, not their credibility or that they were independent: see R. v. Tweneboah-Koduah, 2018 ONCA 570, at para. 23.

[89] I am unable to see how Her Honour’s reasoning explains how the two witnesses could be so divergent in regards to the second altercation between Figueira and the appellant. Dunn was seated in her driver’s seat and the altercation was right outside her front window. On her evidence, the altercation was three feet in front of her. Nicholson was on the platform roughly ten feet away. Dunn saw a physical fight between two people, while Simmons saw a verbal argument in which the only physical contact was one punch and one kick by the appellant.

[90] Second, while a lot was happening in a short period of time and the witnesses were at different locations, Simmons was on his phone for part of the time and Dunn went from her bus to Nicholson and back to her bus. At no time does Her Honour say that she rejected Dunn’s evidence on any issue. Indeed, some of Her Honour’s findings apply Dunn’s evidence over Simmons’. For example, Her Honour accepted that Figueira started the physical confrontation outside the front door of the bus from which the video was taken. Simmons never saw Figueira hit the male.

[91] Third, with regard to reconciling the witnesses’ evidence with each other and with the video recordings, assuming the times on the videos are synchronized, 13 seconds pass from the time Figueira starts the physical confrontation with the appellant until Nicholson is unconscious on the ground and the silhouettes go past him to the back of the bus. While far from clear, there is no indication on the video that anything further occurred to Nicholson after that 13 seconds. The video confirms that these events occurred over a very short timeframe.

[92] Fourth, there was one further reference to the video in the Reasons beyond those cited in submissions on the appeal. Her Honour found, “One of the videos filed shows [Simmons] less than five seconds behind the male as he was running:” Reasons, at p. 11, line 3. While I do not believe the transcript notes the five second gap, from my review of the trial transcripts and the third video it was played during Constable Deschamp’s evidence.

[93] There are no references in the Reasons from which it could be concluded that the trial judge independently looked at the video recordings after reserving judgment. There is no finding in relation to the videos such as they were of no or limited assistance in making the factual determinations. No doubt it would have been helpful if the trial judge said she had watched the videos again and to what, if any, use she put them. However, the fact Her Honour made no reference to watching the videos when preparing her judgment does not mean she ignored the videos and did not watch them.

[94] Fifth, a trial judge is not required to reference every piece of evidence in the Reasons nor reconcile every conflict in the evidence. A trial judge is required to examine all the evidence, and to use the evidence to determine essential facts. That the trial judge did not resolve each inconsistency is not a reversible error. The video evidence is of some assistance, but is not the answer to every issue in this case. As the appellant fairly concedes, while the video does not confirm either witnesses’ account of the assault on Nicholson, neither can it be said that it disproves their evidence.

[95] Returning to the law, it is important to determine if the conflicting evidence related to a key issue. In relation to the charge involving Nicholson, I am not persuaded that is so looking at the inconsistencies alone. The rear door view video is of minimal assistance because it provides a limited view of Nicholson on the ground and those who were around him. Nor am I persuaded that the failure to reconcile every inconsistency between the witnesses impacted on the decision, given the significant consistencies.

[96] With respect to the assault on Figueira, the videos are of limited assistance. The evidence was consistent that there were two physical confrontations between the appellant and Figueira. The first incident is on video. But the finding of guilt is in relation to the second incident, for which there is no video. However, I am persuaded that the failure to reconcile the evidence of Dunn and Simons on the assault on Figueira does relate to a key issue – had the Crown established beyond a reasonable doubt that the appellant was not acting in self-defence and that it was not a consent fight. I will return to this issue.

Did the Trial Judge Misapprehend the Evidence?

[97] The appellant submits the trial judge misapprehended the evidence in relation to the assault on Figueira. He submits that Her Honour’s findings are not supported by the evidence. In doing so, he relies on Her Honour’s findings at two parts of the Reasons dealing with the assault charge. The trial judge found, “… the punch and kick occurred in the second interaction. Ms. Figueira’s only aggression seems to be trying to pull the accused off the boyfriend” and “… it appears that the assault occurred on Ms. Figueira as she was pulling him away from assaulting her unconscious boyfriend.” [emphasis added]

[98] In his factum, the appellant submitted that Her Honour also misapprehended Dunn’s evidence in relation to the sequence of events and in finding that Dunn said Figueira pulled or pushed the appellant off of Nicholson.

[99] The Crown submits the trial judge did not misapprehend significant evidence. Further, there was an evidentiary basis upon which the trial judge could reach the conclusions she did.

Analysis

[100] I agree that the trial judge misapprehended the evidence in relation to how and when the second confrontation between Figueira and the appellant occurred. The finding that the assault occurred when Figueira was pulling the appellant off of Nicholson had no evidentiary basis.

[101] Simmons said:

And then the female went over to there; got the male off. And then they kind of went around in between the two parked buses and then they started talking about again. I couldn’t hear what they were talking about. … I was still on the phone with ... the police …. And then I saw that same male actually take a swing at the face of the female and then he kicked her.

[102] That evidence does not support the trial judge’s conclusion.

[103] Dunn said:

So once the female came over and kind of grabbed that male and moved him towards the rear of the one bus and in front of the other bus, that’s kind of where my focus was.

[104] And later:

… the female follows, pushes the male off the male that got knocked out. And then at that time, they both go south onto the roadway in between the two buses.

[105] That evidence does not support the trial judge’s conclusion.

[106] Her Honour’s finding that the appellant kicked and punched Figueira as she was pulling him off of Nicholson is not supported by the evidence. Both witnesses said she got the appellant off Nicholson either by “attacking;” pushing or pulling him. Both said the appellant and Figueira then went between two of the buses, where both saw the appellant kick and punch Figueira. The conflict was whether Figueira struck the appellant.

[107] As noted earlier, a misapprehension of evidence in itself is not reversible error. The essential second component to the analysis is whether the misapprehension played a significant role in the trial judge’s findings and whether there was a link between the misapprehension and the adverse finding.

[108] I am not persuaded that there was a material misapprehension of the facts in regards to the assault on Nicholson that was material to the findings of fact. In particular, subject to the party liability issue to be addressed later, whether the appellant kicked Nicholson while others were kicking him, or kneed him in the chest and punched him in the face, were not conflicts that Her Honour was required to determine. Both witnesses said the appellant assaulted Nicholson. Given the factual situation there was a significant misapprehension of the evidence.

[109] With regards to the assault conviction, to prove any assault, “the absence of consent is an essential element.” The mens rea is an “intent to apply force intentionally or recklessly or being willfully blind to the fact that the victim does not consent:” R. v. Williams, [2003] S.C.R. 41, at paras. 36 and 22. A person is not guilty of an offence if the act that constitutes the offence is committed for the purpose of defending or protecting themselves, and the act committed was reasonable in the circumstances. In determining whether the act was reasonable, s. 34(2) of the Criminal Code, R.S.C., 1985, c. C-46, provides a non-exhaustive series of factors to be considered.

[110] I agree with the appellant that by finding the appellant kicked and punched Figueira when she was pulling him off Nicholson, Her Honour precluded any consideration of self-defence or that the confrontation was a consent fight. As the appellant submitted, if the assault occurred as she was stopping the appellant from assaulting an unconscious person, there was no air of reality to self-defence or consent fight.

[111] I do not agree with the appellant that if the finding of misapprehension is made in relation to the assault conviction, I could nevertheless acquit the appellant because the evidence was such that the Crown could never establish beyond a reasonable doubt that self-defence did not apply. The insurmountable problem with that analysis is the conflicting evidence as to whether Figueira was striking the appellant in the second incident. Simmons testified he had clear view and that never occurred. Dunn, who also had a clear view, said they were both hitting the other. While there is an air of reality to self-defence and consent fight unless Simmons’ evidence is rejected, I cannot conclude that an acquittal was inevitable. A new trial is the appropriate disposition.

[112] Accordingly, the misapprehension of evidence was critical to the trial judge’s findings of fact. If that misapprehension of evidence is removed from the Reasons, the finding of assault would be on very shaky ground.

[113] I have considered the appellant’s argument that if I were to find a misapprehension of the evidence and/or failure to reconcile divergent evidence in relation to one count that one or both of those findings could have impacted on the other findings. I do not agree in the circumstances of this case. While there are divergent aspects of their evidence on the assault causing bodily harm count, they are of a different extent and significance than those in relation to the assault. The two main witnesses were generally consistent in relation to the more serious offence. That there were inconsistencies is hardly surprising given the time between the incident and the witnesses testifying and the fast-paced and brief nature of the events. Unlike those in relation to the assault, they do not cause concerns regarding the validity of the finding.

[114] With regards to the appellant’s submission in his factum regarding Dunn’s sequence of events, there was a conflict between her evidence during examination-in-chief and cross-examination regarding whether the kick and punches to Figueira were before or after the assault on Nicholson. However, when her initial statement was put to her she said that her memory would have been better in the statement. The statement included a sequence that was consistent with Simmons’ evidence.

[115] Further, I agree that Dunn never said in examination-in-chief, that Figueira pulled or pushed the appellant off of Nicholson. However, in cross-examination, her police statement was read to her in which she said Figueira began yelling and attacked the young man when he was assaulting Nicholson.

Did the trial judge err in finding the appellant participated in a common unlawful conduct with the others who assaulted Nicholson?

[116] The trial judge found that when the appellant assaulted Nicholson, he was engaged in a common unlawful purpose with the person who knocked Nicholson out and the persons who continued to assault him. At trial and on appeal, there is no dispute that the Crown could not prove beyond a reasonable doubt the appellant’s conduct caused any of Nicholson’s injuries.

[117] The evidence on this issue is as follows: Dunn said that once Nicholson was unconscious the appellant ran from behind the GO bus shelter, kneed Nicholson and began hitting him in the head. The others who had assaulted Nicholson initially “had to step to the side” and were about two or three feet away. They were just yelling at the time. Later, she had the others were behind her when the appellant assaulted Nicholson.

[118] Simmons said, “…the other males were hovered over a male that appeared to be passed out. And then the male that took the swing at the female kind of run over, over to that male and got involved in that.” Later, he said that after Nicholson was knocked out and the other males were celebrating, the appellant “went over and kind of joined in.” By “joining in” he meant that others were assaulting the unconscious male, giving him “a couple of extra kicks.” The whole group of males participated. While Nicholson was down, the appellant kicked and kneed him.

[119] The appellant renews his trial argument that there was a gap between the initial assault on Nicholson by others and his own conduct. When he assaulted Nicholson the others had stopped so that his conduct was not part of a common unlawful purpose. He should only have been convicted of assault.

[120] The Crown submits that there was a sound evidentiary basis upon which the trial judge could reach the conclusion she did. There was no gap between the others’ assaults and the appellant’s that would separate his assault.

Analysis

The Law

[121] In R. v. McMaster, [1996] 1 S.C.R. 740, the Supreme Court of Canada held, at para 33:

It is a well-established principle that where a trier of fact is satisfied that multiple accused acted in concert, there is no requirement that the trier of fact decide which accused actually struck the fatal blow. See R. v. Isaac, [1984] 1 S.C.R. 74, at pp. 80-81, and R. v. Thatcher, [1987] 1 S.C.R. 652.

[122] In R. v. L.P. (2003), 172 C.C.C. (3d) 195 (Ont. C.A.), the following occurred, at para. 2:

The appellants, K.J. and two others decided to look for [J.W.] and eventually confronted him in a yard in a nearby house. That confrontation became violent. L.P. punched [J.W.] in the head area, knocking him toward the ground. As [J.W.] was falling L.P. struck him with his fist in the head area two more times. [J.W.] was lying on the ground in a fetal position with his hands covering his head when R.B. directed a kick at [J.W.]'s head using a motion akin to that used when punting a football.

[123] The Court of Appeal addressed a similar ground of appeal as in the present case and held, at para. 18:

It was open to the trial judge to find that the appellants acted together as joint perpetrators of the assault. They went after [J.W.] together and confronted him together. In the course of the same series of events which occurred in a short time span both appellants assaulted [J.W.] We cannot agree that the brief interval between the punches and the kick rendered the conclusion that the appellants acted together unreasonable. To the contrary, we think the attempt to portray the two assaults as discrete and unconnected events is a strained and unrealistic interpretation of the events.

[124] While not framed as such, the argument here is that Her Honour’s finding that the appellant was engaged in a common unlawful conduct was unreasonable. It was not. There was ample evidence that any gap was so brief that it was the same series of events. There were only 13 seconds from Figueira’s first physical contact with the appellant and the group of people going by Nicholson on the ground. The video shows no confrontations involving him thereafter.

[125] The witnesses said the appellant joined the others in assaulting Nicholson at the same time or that the others “had to step back” and continued to yell during the appellant’s assault. Either provides an ample basis upon which to conclude that the appellant’s assault on Nicholson was part of the same assault or series of events during which the injuries were caused.

Conclusion

[126] The appeal against the assault causing bodily harm conviction is dismissed. The appeal against the assault conviction is allowed and a new trial ordered.

[127] In relation to the assault charge, the appellant is ordered to appear at the Ontario Court, Courtroom #2, 36 Wyndham St. South, Guelph at 9:30 a.m. on October 16, 2018.

[128] In relation to the sentence appeal on the assault bodily harm charge, counsel are to contact the trial coordinator in Guelph to determine a mutually agreeable date to hear their submissions.

[129] The bail pending appeal order remains in effect until the final ruling.

DURNO J. Released: September 25, 2018

COURT FILE NO.: CR-17-522-00AP DATE: 20180925 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - RADU EPURE Appellant REASONS FOR JUDGMENT [On appeal from the convictions imposed by the Honourable P. Hardman, dated January 26, 2017] Durno J

Released: September 25, 2018

[1] While none of the civilian witnesses identified the appellant at trial, for ease of reference I will use ‘the appellant’ in reference to trial evidence that used “the male” unless it is a quotation.

[3] The failure to consider the significance of evidence can be viewed as a misapprehension of the evidence.

[4] Simmons’ sketch is drawn looking from the first bus in the line towards the second and third while Dunn’s is drawn from her bus (the second) looking forwards towards the first bus. Inverting Simmons’ drawing shows significant similarities.