Court File and Parties
Court File No.: 15-DV6659 Date: 2018/09/06 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Stephane Lafontaine, Appellant
Counsel: Anya Kortenaar, for the Crown Meaghan McMahon, for the Appellant
Heard: August 1, 2018
Reasons for Judgment On appeal from the decision of Justice Lahaie of the Ontario Court of Justice at Ottawa dated February 3, 2017.
Maranger J.
[1] This is an appeal from convictions on two counts of assault and one count of mischief contrary to sections 266 and 430 (4) of the Criminal Code, R.S.C. 1985, c. C-46, registered by Justice D. Lahaie of the Ontario Court of Justice, on February 3, 2017.
[2] The appellant advanced two grounds of appeal: (1) That the trial judge applied unequal scrutiny to the evidence of the appellant and the complainant; and (2) That the trial judge erred by improperly using evidence of the appellant’s bad character and prior discreditable conduct to support the May 2015 assault conviction.
[3] While the trial judge’s reasons certainly disclose a strong preference for the testimony of the complainant over that of the accused; the judge’s decision and the record of the proceedings on the whole, particularly the corroborating evidence presented at trial, act in concert to dispel the proposition that she applied unequal scrutiny to the evidence of the parties.
[4] With respect to the argument that the trial judge improperly used bad character evidence; the judge’s comment concerning the behavior of the accused while intoxicated was supported by the evidence heard concerning the allegations proper, and that of past discreditable conduct of that same behavior. When considering the reasons as a whole, it does not amount to the improper use of this evidence.
[5] Thus, as a result of these two conclusions, I would dismiss the appeal. The conclusions were arrived at on the basis of the analysis that follows.
The Nature of the Trial and Evidence Presented
[6] This was a case where the accused was charged with two counts of physically assaulting the complainant Christine McNulty, mischief to her property, and with uttering death threats in the context of a domestic relationship. The trial ultimately turned on findings of fact, and on findings of credibility.
[7] Following a blended voir dire at the outset of the complainant’s testimony, the trial judge allowed evidence of prior discreditable conduct in the form of past assaultive and abusive behaviour by the accused towards the complainant. She also allowed evidence of substance and alcohol abuse on the part of the accused.
[8] The Crown called the following witnesses: the complainant’s daughter, Cynthia St-Amour; the complainant, Christine McNulty; and Detective Sarah Lawson. The accused testified on his own behalf and called the complainant’s son, Jean-Luc St-Amour, and her mother Mireille McNulty.
[9] The essential findings of fact resulting in the three convictions can be summarised as follows:
i. The complainant and the accused were involved in a 3 ½ year on and off again relationship. ii. The complainant and the accused knew each other when they were teenagers. They both had problems with alcohol. The complainant suffered from schizophrenia and PTSD but responded well to medication. iii. The accused lived at a number of different places from 2012 to 2015, including various shelters. The accused was a drug addict and an alcoholic. iv. The accused had anger management problems and was abusive to the complainant when he was impaired by drugs or alcohol. v. The complainant and the accused reconnected in early 2015 and decided that they were going to get married in July 2015. vi. In May 2015 the couple argued and the accused grabbed the complainant by the throat and pushed her up against a calendar on the wall. vii. On the night of June 3 to June 4, 2015, the accused was intoxicated and an argument erupted over searches the complainant had been performing on her computer. It was sufficiently troubling to the complainant’s 19-year-old daughter, Cynthia St-Amour that she decided to audio record the incident on her mobile phone. viii. During the course of this argument the accused slapped the complainant, broke her computer, and grabbed her by the arm with sufficient force so as to cause a bruise to the arm. ix. The allegation of death threats could not be proven as the evidence in that regard was found to be insufficiently reliable by the trial judge. x. The trial judge convicted the accused of two counts of common assault, one count of mischief to property, and acquitted on the charge of uttering death threats.
Ground 1: Uneven Scrutiny of the Crown and Defence Evidence
[10] In R v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, the Ontario Court of Appeal set out the approach or framework to be applied when considering an allegation of “uneven scrutiny” on the part of a trial judge in assessing the credibility of different witnesses. The following guiding principles can be extracted from that decision:
- The uneven scrutiny argument is a difficult one to make successfully, because credibility findings attract a high degree of deference on appeal. (at para. 26)
- The argument can only succeed if an appellant can point out something in the trial judge’s reasons, or to something on the record that demonstrate that the trial judge applied different standards in assessing competing versions of facts. (at para. 28)
- It fails if the overall basis of the argument is simply that the trial judge rejected the appellant’s testimony and accepted the evidence of the complainant or police. (at para. 29)
[11] The appellant in this case points to the reasons of the trial judge, and in particular, points out the trial judge’s analysis of the complainant’s testimony as juxtaposed to the testimony of the accused. Some of the key complaints were the following:
- The trial judge was unconcerned with the complainant’s evidence that she would lie to the Children’s Aid Society and the Family Court when it suited her.
- The trial judge was not concerned about the complainant’s reasons for how the argument started and how those reasons changed at, and even during trial.
- The trial judge did not consider that the complainant’s initial version of events told to the police was rejected; and that they only followed through on the charges after a second more detailed version of events was presented.
- The trial judge failed to consider the possibility that the bruise on the arm was caused by moving a sofa and not a physical assault.
[12] It seems to me that the trial judge’s decision, and the record of the trial reflected that each of these issues were dealt with to some extent. Furthermore, her preference for the version of events proffered by the complainant seemed grounded in corroborating evidence. In the transcript of the proceedings at trial, which include the trial judge’s reasons for judgment, the trial judge indicated the following:
[13] At pages 327 to 332 of the transcript, the trial judge clearly discounts the accused evidence based upon the following: The accused denied that he assaulted the complainant, broke her computer monitor, or he had an alcohol problem. The audio recording of the argument played in court disclose the following: his speech was severely slurred; he was behaving completely inappropriately; screaming at the complainant; using abusive language and profanity; and being physically aggressive. In part, the accused screamed:
You’re a cunt. You’re a cunt. You’re a fucking cunt. Here’s your computer fuck, okay. I’m sick of it, okay, I’m sick of it. It’s yours. I’m sick of it. [A]nd later, that’s all you do is spend your time on the computer, fuck. I’m done with it. Mark Mark Mark Mark Mark Mark Mark Mark. Yeah, that’s your excuse. All right, all right. Get a laptop, I’m tired of your fucking bullshit.” The only voice heard screaming on the recording is the accused’s voice. The complainant can be heard crying in the background.
[14] At page 330 of the transcript, the trial judge offers the following commentary on the recording which occurred after the accused struck the complainant:
It’s exactly why you get punched out. You’re lucky I’m patient. No wonder Ron fucking did to you what he did to you and Mark hit you. Fuck. Keep testing me. You keep testing me. Fuck. I ask politely, hello. Fucking five times...”. Mr. Lafontaine’s tone in the circumstances surrounding the tirade corroborate the evidence of the complainant and her daughter. I find that the evidence overwhelmingly supports the conclusion that Mr. Lafontaine was jealous, struck Ms. McNulty who was crying and then tried to justify his violence by blaming the complainant…
[15] At page 332 of the transcript, the trial judge ultimately comments of the accused that “[h]is evidence in regards to the events of June 3 and his consumption is externally inconsistent as the recording captured the essence of his tirade and his condition. This was very compelling evidence.”
[16] At pages 330 to 331 of the transcript, the trial judge “…found the complainant to be a credible witness. She had her challenges, specifically in regards to her mental illnesses. However, she readily admitted that she suffered from schizophrenia and PTSD she described her medication in detail.”
[17] At page 337 of transcript the trial judge stated that:
Defence counsel argued that because Ms. McNulty was prepared to lie to the CAS when it suited her purposes the court could not place any weight on her evidence. The court disagrees. Ms. McNulty explained what she was going through when dealing with the CAS. Her explanation was logical. Her approach to the Children’s Aid Society in the circumstances did not raise a doubt in regards to what occurred on the offence dates.
Defence counsel pointed to the complainant’s evidence about the starting point of the argument being the words spoken by the accused in Jean-Luc’s presence during an episode of big brother, and how this fact was not brought up until the complainant testified at trial…I was not troubled that the starting point to a much more serious incident was not revealed until the complainant testified.
[18] And finally, at page 330 of the transcript, the trial judge also made note of the bruise on the complainant’s arm that was photographed by the police.
[19] Absent the corroboration, particularly the audio recording of the argument, the uneven scrutiny of the evidence analysis/argument of the two competing versions of events may have had some traction. However, reading the reasons as a whole, the rejection of the accused’s evidence and acceptance of the complainant’s evidence seem inextricably linked to the audio recording of the argument. The trial judge’s reasons demonstrate that this is the case.
[20] Furthermore, it seems to me that this is a classic case where the trial judge’s perception of a given witnesses testimony ought to be afforded a great deal of deference. As Justice Doherty commented in R. v. J.H. (2005), 192 C.C.C. (3d) 480 (ONCA), at para. 46, “[a] lifeless transcript of the testimony cannot possibly replicate the unfolding of the narrative at trial. Nor can oral argument in a selective review of the trial record possibly put an appellate court in as good a position as the trial judge when it comes to credibility determinations”.
[21] Therefore, I reject the argument that the trial judge in this case scrutinized the evidence of the accused juxtaposed to the complainant in an uneven our unfair manner. She was entitled based on the totality of the evidence to reject the accused’s testimony and accept the version of events as testified to by the complainant.
Ground 2: The Trial Judge’s Improper Use of Bad Character or Discreditable Conduct Evidence
[22] The argument raised by the appellant is that the trial judge improperly used extrinsic evidence of the accused’s bad character and prior discreditable conduct to support a conviction on the assault count from May 2015 by engaging in propensity reasoning.
[23] The appellant relied upon the following extract from the trial judge’s reasons in support of this proposition:
The previous month as the couple argued, Mr. Lafontaine grabbed the complainant by the throat and pushed her up against a calendar on the wall. I am convinced beyond a reasonable doubt this also occurred as the complaint described. Ms. McNulty did not initiate the violence on this occasion nor did she defend herself. Mr. Lafontaine was not the same person when he was intoxicated. He was abusive towards Ms. McNulty when impaired by drugs or alcohol.
[24] I agree with the respondent’s analysis of this segment of the judge’s decision. It was a finding of fact that was open for the trial judge to make. She found that all violence perpetrated on the complainant by the accused took place while he was in the state of intoxication. The audio recording evidence supported that he was intoxicated on that occasion. It was not a case of propensity reasoning, but more a finding of fact based on the totality of the evidence presented at trial.
[25] The trial judge’s ruling on the admissibility of the discreditable conduct evidence shows that she was keenly aware of what use could be made of it. In her ruling, on page 319 of the transcript, she indicated:
i. The evidence of prior discreditable conduct will not be used to demonstrate that Mr. Lafontaine is a bad person, or to support any claim that the accused had a propensity for violence. ii. The prejudicial effect of this evidence is minimized by the fact that this is a judge alone trial. iii. The court will not use the evidence improperly.
[26] I reject this ground of appeal on the basis that when reading and considering the decision and the record of the trial as a whole, the finding that the accused was abusive to the complainant when intoxicated is supported by the totality of the evidence presented at trial.
[27] The appeal is therefore dismissed.