COURT FILE NO.: CR-17-3992-AP DATE: 20180924

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – DAVID MONZON Appellant

Counsel: Jane M. Magri, for the Crown Frank Miller, for the Appellant

HEARD: February 15, 2018

REASONS ON APPEAL

HOWARD J.:

Overview

[1] This is an appeal pursuant to s. 813(a)(i) of the Criminal Code by Mr. David Monzon from his conviction for assault contrary to s. 266 of the Code entered on May 16, 2017, by M. Rawlins J. of the Ontario Court of Justice in Windsor, Ontario, and his sentence imposed on June 20, 2017, by Rawlins J. in Windsor.

[2] In a two-count information, Mr. Monzon was charged that:

a. on or about January 1, 2017, he committed an assault upon Ms. Marlise Jahn, the complainant, contrary to s. 266 of the Code; and

b. on or about January 1, 2017, he stole jewelry of a value not exceeding $5,000, being the property of the said Ms. Jahn, contrary to s. 334(b) of the Code.

[3] Both charges involved the same complainant, Ms. Marlise Jahn, the former common law spouse of the appellant.

[4] The events giving rise to the counts in the information took place on New Year’s Eve of 2016. Mr. Monzon and Ms. Jahn attended a house party that night, and they each consumed alcohol and marijuana with other persons at the party. After midnight, they returned to their home, together with a friend of Mr. Monzon; another friend later joined them.

[5] The evidence of Ms. Jahn was that Mr. Monzon became obnoxious with his friends, and when she decided that she did not wish to listen to Mr. Monzon anymore, she went upstairs and went to bed.

[6] Mr. Monzon ultimately followed Ms. Jahn to the bedroom, and an argument ensued between the two. It escalated into a physical altercation, and the charge of assault arises out of that altercation.

[7] The trial was commenced and concluded in one day, on May 16, 2017, in the course of which the trial judge heard testimony from three witnesses, including the appellant and the complainant. The transcript of the entire evidence at trial is only 53 pages in length. Counsel made final submissions that same day, and following counsels’ submissions, Rawlins J. delivered oral reasons for judgment that same day, in which she found Mr. Monzon not guilty of the charge in count no. 2 but convicted Mr. Monzon of the charge of assaulting the complainant, contrary to s. 266 of the Criminal Code, on count no. 1. [2]

[8] On sentencing, for reasons delivered June 20, 2017, Rawlins J. sentenced Mr. Monzon to a term of imprisonment of 45 days, followed by a period of probation of 18 months, payment of a $100 victim fine surcharge, a five-year firearms prohibition under s. 110 of the Code, and a prohibition of all contact and communication with Ms. Jahn.

[9] By notice of appeal dated October 30, 2017, Mr. Monzon appealed from his conviction on count no. 1 and his sentence.

[10] For the reasons that follow, I would allow Mr. Monzon’s appeal.

Factual Background and Decision of the Trial Judge

[11] The parties agree on certain facts leading up to the altercation in dispute. It is common ground that Mr. Monzon and Ms. Jahn were in a long-term relationship and resided together at 2615 Lauzon Road in Windsor. On December 31, 2016, they both attended a New Year’s Eve party at about 7:00 p.m. The evidence indicated that Ms. Jahn drank a bottle of wine at the party, and Mr. Monzon drank a bottle of cognac; as well, they both smoked marijuana. Around midnight, they left the party and returned to their home, bringing one of Mr. Monzon’s friends with them. When they got home, they were joined by another friend from the neighbourhood.

[12] The parties also agree, as referenced above, that at some point in the night, Ms. Jahn left Mr. Monzon and his friends and went upstairs to their bedroom. The parties further agree that at some point in the night, Mr. Monzon went upstairs, entered the bedroom, asked Ms. Jahn if she wanted to come downstairs and smoke marijuana, Ms. Jahn declined, and then both an argument ensued and, eventually, the altercation in question.

[13] Beyond those basic facts, the evidence of the parties is in conflict.

[14] The parties disagree as to the reasons for, and the timing of, Ms. Jahn’s decision to leave the party downstairs and go up to bed.

[15] The evidence of Ms. Jahn was that at some point in the early morning, she became angry because of Mr. Monzon’s obnoxious conduct towards his friends. Wishing to avoid a dispute, she went upstairs to bed in order to remove herself from the situation, which, she said, occurred around 3:00 a.m. She said that about 45 minutes to an hour later, Mr. Monzon came upstairs, after his friends had left the house. Ms. Jahn was asleep.

[16] The evidence of Mr. Monzon was that Ms. Jahn became upset when his friends were using cocaine, and she went upstairs. He told the friends to leave the house because Ms. Jahn was already “heated up.” Mr. Monzon said that he went upstairs after his friends had left, and it was about 15 to 20 minutes after Ms. Jahn had gone upstairs.

[17] The parties disagree as to the circumstances surrounding Mr. Monzon’s entry into the bedroom and the argument that ensued.

[18] The evidence of Ms. Jahn was that she was already frustrated with Mr. Monzon when he went upstairs and entered the bedroom, where she was lying down in bed. Mr. Monzon asked her if she wanted to come downstairs to smoke marijuana. She declined, saying that she was done for the night and wanted to sleep. Ms. Jahn said that when she declined his suggestion, he turned on the lights to the bedroom and ripped the blankets off the bed. This made Ms. Jahn angry, and she then got up from lying in bed and jumped on to her knees to where Mr. Monzon was standing at the foot of the bed. She remained in that position, on her knees on the bed, with Mr. Monzon standing in front of her, as they both started to yell into each other’s faces, exchanging insults.

[19] The evidence of Mr. Monzon was that after his friends left the house, he went upstairs to ask Ms. Jahn if she wanted to smoke more marijuana. He entered the bedroom, stood at the foot of the bed, and asked her if she wanted to smoke. Ms. Jahn said no because she was already upset with him. Mr. Monzon said she was swearing at and insulting him, and he then responded in kind. He then turned on the light and pulled the blanket off her. He said she came at him in the same manner she described in her evidence, i.e., with her on her knees at the foot of the bed and him standing in front of her. They continued with the same kind of abusive language as before, but they were then face to face.

[20] The parties disagree as to how the physical altercation began.

[21] The evidence of Ms. Jahn was that she and Mr. Monzon were yelling in each other’s faces for about five seconds. She was still kneeling on the foot of the bed, and he was still standing in front of her. Ms. Jahn said that Mr. Monzon suddenly struck her face in the left eye with his open hand. [3] However, later in her testimony, Ms. Jahn seemed to suggest that the strike to the left eye occurred after the two had started to grapple. [4]

[22] The evidence of Mr. Monzon was that the two were arguing at the foot of the bed, and then Ms. Jahn began to hit him on his chest with the palms of her hands, and then the two grappled with each other. His evidence was to the effect that his strike to her face came after Ms. Jahn had already began to hit him.

[23] The parties disagree as to how the fight between them subsequently unfolded.

[24] The evidence of Ms. Jahn in examination-in-chief was that after being struck in the eye by Mr. Monzon, she bit him on the forehead and smacked him a few times to get him away from her. She told him that she hated him, and when she did so, he jumped on top of her. He then ripped off her earrings, her necklace, and her ring. The evidence of Ms. Jahn in cross-examination altered somewhat as to the particulars, as detailed in the factum of the appellant, but the basic chronology of events remained essentially the same. [5]

[25] The evidence of Mr. Monzon was that after Ms. Jahn struck him in the chest as they were arguing at the foot of the bed (as referenced above), Ms. Jahn then ripped his chain and his shirt. He admitted he then “backhanded her,” [6] i.e., he struck her around her left eye. He said she was still hitting him and they grappled with each other. At one point, Mr. Monzon had his arms around Ms. Jahn. His evidence was that her earrings came off as they were grappling on the bed. In particular, Mr. Monzon was asked what part of his body, if any, was touching her ears, and he replied that both of his arms were around her head, like, hugging her and grappling her, trying to restrain her, and she was moving around as he did that. [7] Mr. Monzon denied that he was ever on top of Ms. Jahn. While he admitted that he struck her in the eye, he asserted that he struck her only after she had hit him in the chest and ripped off his chain and shirt. [8] Mr. Monzon maintained that they both assaulted each other, [9] that is, that the fight was consensual.

[26] The parties also disagree as to how the altercation ended.

[27] The evidence of Ms. Jahn was that Mr. Monzon had taken her cell phone from her, but she got it back, and she then telephoned her mother first and subsequently the police. She said Mr. Monzon took her cell phone away again and hung up on the police but she was able to call the police again.

[28] The evidence of Mr. Monzon was that he and Ms. Jahn were still grappling, and she was “going wild” under his arms, and he then backed off and let her go. [10] Mr. Monzon maintained that he never once took Ms. Jahn’s cell phone [11] or interfered with her call to the police.

[29] It is fair to say, as Mr. Miller submitted on appeal, there is confusion in the evidence as to the sequence of events in the course of the altercation.

[30] In their closing submissions, counsel for both Mr. Monzon and the Crown focused their arguments on credibility and the familiar analysis of the Supreme Court of Canada in R. v. W.(D.). [12]

[31] In particular, counsel for the defence argued that Mr. Monzon’s evidence should be believed but, if not, it should leave the trial judge with a reasonable doubt as to the assault charge. [13] Trial counsel argued that there were certain problems with the evidence of the complainant, as a result of which, counsel submitted, that evidence could not convince the trier of fact beyond a reasonable doubt that an assault had taken place. [14] Trial counsel also submitted that the evidence before the court indicated that “this was a consensual fight or at the very least Mr. Monzon was acting in response to an assault that was happening on him.” [15]

[32] In her reasons for judgment, the trial judge addressed the charges in count no. 1 in the following manner:

Let us deal with count one. There is an old saying, children say, “Sticks and stones may break my bones, but words will never hurt me.” Why did we have this altercation? The complainant went upstairs and went to bed. She may have been upset, many spouses go to bed upset and they sleep and the next morning we talk it out. As a matter of fact, I always had a rule with my sons when they were caught for speeding or stopped by the police or whatever, they knew I would be waiting at home for them when they came home and we went to bed and talked about it the next morning because I was upset, they were upset, and nothing good comes out of it. So that was a rule, we will figure it out in the morning. The only difference would have been you would have had a good night’s sleep. But no, Ms. Jahn was not going to be allowed to have a good night’s sleep.

In an aggressive fashion the accused, Mr. Monzon, went upstairs, opened the door and said, come, let’s talk, let’s – whatever he said, and then she apparently started yelling and cursing at him. That was it, done. On come the lights, off come the sheets, how dare she do that and at that point he was the aggressor. She never stood up to face him or do anything, she was on her knees on the bed, may have been face-to-face and I do not really care if at that point she struck him to get away from him, because he had come over to the bed and I find anything she did at that point was in self-defence. And he slapped her as shown in the exhibit and left the eye looking the way it did. Then he ripped the earring out of her ear. That is the only way you get the pierced ears out like that and you get that mark. It does not happen by just brushing against it with your hand. It has to be forcibly pulled down through the skin of the ear to do that. That is how incensed this man was.

I do not take any issue with the fact that his friends stayed and they may have smoked cocaine – that is fine. People seem to be doing this in an escalating way in a social fashion. I do not pass any aspersions on him for that or what his friends may have done. He said he did not participate. Even if he did, it is negligible. That is not something I am taking into account. I am taking into account, sir, your actions and your aggression and your unwillingness to say “no.” And I asked you, at any point did you step back because she never stood up and never left the bed and you would have been out of harm’s way. She said “yes.” At any point you could have not only stepped back, you could have left the room, yes. But you were not having it. Whether it was disrespect you felt, whether it was confused by the alcohol, you had aggression fuelled – you were wrong. And she admitted everything she did to get you off her. She admitted you did not steal the earrings and then I have the fact that you left, sir. That is in law what we call “consciousness of guilt,” because guilty people are found to leave the scene so they do not have to confront the police.

And there is no rule of law that who calls the police first wins. There [are] many circumstances where women have called and then they have been arrested because they initiated the assault. They are the ones who go up into the room where the husband’s sleeping after a hard day’s work and want to have a confrontation and then when he will not talk they end up doing what you did, and so they get arrested. So it is not who calls the police first gets the charge laid.

So for all the reasons: finding you the aggressor, finding you started the situation, finding that anything Ms. Jahn did was in self-defence, and the slap, the pulling of the earrings, etcetera, that is the assault, sir, and you will be found guilty on count one. [16]

[33] On appeal, the appellant seeks an order quashing his conviction on count no. 1 and entering an acquittal therefor or, in the alternative, ordering a new trial.

Issues

[34] The appellant raises, inter alia, the following issues on this appeal:

a. Did the trial judge commit an error of law in failing to provide reasons for judgment that are sufficient for proper appellate review and properly inform the appellant of the reasons for his conviction? b. Did the trial judge misapprehend the evidence and err in law by, inter alia, purporting to make certain findings in the absence of any supporting evidence? c. Did the trial judge err in finding by way of judicial notice that the only manner in which the complainant’s earring could have been removed was by way of a downward tug on the earring while it was in the complainant’s ear lobe? d. Can the proviso be relied upon in the circumstances of the case at bar?

Standard of Review

[35] The limited powers of a summary conviction appeal court are set out in s. 822(1) of the Code, which incorporates by reference the powers of the Court of Appeal as set out in s. 686 of the Code. As such, on an appeal against conviction, a summary conviction appeal court may allow the appeal only where:

a. the verdict is unreasonable or cannot be supported by the evidence; b. the trial judge erred on a question of law; or c. there was a miscarriage of justice on any ground.

[36] The limited jurisdiction of a summary conviction appeal judge was described by the Ontario Court of Appeal in R. v. Smits, 2012 ONCA 524, where the Court held that:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[.] [17]

[37] Our Court of Appeal has said that the function of a summary conviction appeal judge is to determine whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt. [18]

[38] To the same effect is the very recent reiteration by our Court of Appeal in R. v. Polanco, 2018 ONCA 444, released May 11, 2018, where Nordheimer J.A. said on behalf of the unanimous court that:

The jurisdiction of a summary conviction appeal judge is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge is also not entitled to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[.] [19]

Analysis

Did the trial judge commit an error of law in failing to provide reasons for judgment that are sufficient for proper appellate review?

Legal principles

[39] In its seminal decision in R. v. Sheppard, [2002] 1 S.C.R. 869, the Supreme Court of Canada articulated the standard required of a trial judge in providing adequate reasons for judgment. Writing for the unanimous court, Binnie J. concluded that:

My reading of the cases suggests that the present state of the law on the duty of a trial judge to give reasons, viewed in the context of appellate intervention in a criminal case, can be summarized in the following propositions, which are intended to be helpful rather than exhaustive:

1. The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.
2. An accused person should not be left in doubt about why a conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met.
3. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record.
4. The statutory right of appeal, being directed to a conviction (or, in the case of the Crown, to a judgment or verdict of acquittal) rather than to the reasons for that result, not every failure or deficiency in the reasons provides a ground of appeal.
5. Reasons perform an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a miscarriage of justice within the scope of s. 686(1)(a) of the Criminal Code, depending on the circumstances of the case and the nature and importance of the trial decision being rendered.
6. 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.]
7. Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge’s reasons provide the equivalent of a jury instruction.
8. The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision.
9. While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.
10. Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso. [20]

[40] In its very recent decision in R. v. J.L., 2018 ONCA 756, the Ontario Court of Appeal dealt with a challenge to the adequacy of the trial judge’s reasons in the context of a sexual assault case where the case turned largely on the question of credibility. The court summarized the governing principles as follows:

Appellate courts are to take a functional approach to reviewing the sufficiency of reasons, keeping in mind that reasons do not have to meet a standard of perfection: R. v. Sheppard, [2002] 1 S.C.R. 869, at para. 55; R. v. R.E.M., [2008] 3 S.C.R. 3. An appeal based on insufficient reasons will only be allowed when the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25 and R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 25. As Chief Justice McLachlin stated in R. v. H.S.B., [2008] 3 S.C.R. 32, at para. 2:

So long as the trial judge fulfills the purpose of giving reasons – to explain the decision, to provide public accountability and to permit meaningful appellate review – a court of appeal is not justified in interfering with the verdict on the grounds of insufficiency of reasons. The purposes of giving reasons are fulfilled where the reasons for judgment, read in context, establish a logical connection between the verdict and the basis for it – in other words, the reasons must explain why the judge made his or her decision. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

As acknowledged by the trial Crown in his closing submissions, this case turned largely on credibility. In Dinardo, Charron J. addressed the approach to reviewing reasons rooted in credibility findings: “Where a case turns largely on credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”: Dinardo, at para. 26.

A trial judge need not resolve every inconsistency that may arise on the evidence: R. v. Dobson, 2009 ONCA 714, at para. 10. Even so, in the context of a case involving credibility findings:

Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55). Here, the complainant’s evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant’s testimony on the issue of whether she invented the allegations. I also conclude that the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal. [See: Dinardo, at para. 27]

At para. 8 of H.S.B., McLachlin C.J. described the appellate court’s task as being to ensure that read in the context of the entire record, the reasons demonstrate that the trial judge was alive to and resolved the central issues before the court.

As mentioned, the trial judge did not engage in any analysis of the complainant’s and appellant’s testimony save to say that there were “inconsistencies and many lapses of memory”. In essence, the trial judge relied on two facts to explain why he accepted that the complainant communicated a lack of consent to further sexual contact and that the appellant pressed on in an attempt at intercourse: (i) the complainant’s demeanour following the occurrence and, (ii) his finding that it “defies reason and common sense” that “a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity.” [21]

Application of the principles

[41] I agree with Mr. Miller’s submissions on appeal that the reasons of the trial judge are so deficient that they preclude meaningful appellate review. In particular, the trial judge’s reasons are problematic given the absence of any credibility findings and an analysis of the testimony of Ms. Jahn and Mr. Monzon based on the W.(D.) framework, given their failure to adequately explain the treatment or legal justification for the striking of the first blow by Ms. Jahn as self-defence, and given their failure to address the defences raised by trial counsel on behalf of Mr. Monzon.

[42] All counsel, both at trial and on appeal, agreed that the instant case turned largely on credibility. I have outlined above the many areas where there were significant inconsistencies in the evidence of the Mr. Monzon and Ms. Jahn. Generally speaking, the reasons of the trial judge failed to resolve – or, seemingly, even attempt to resolve – the material inconsistencies in the evidence of the parties.

[43] The central issues at trial included, inter alia, whether Mr. Monzon acted in self-defence or whether he initiated the incident by first assaulting Ms. Jahn such that her actions were taken in self-defence. These issues required a credibility analysis in accordance with the W.(D.) framework. [22] The credibility analysis would, in turn, largely drive the determination of the legal defences raised.

[44] However, the trial judge made no findings of credibility. The reasons of the trial judge provide no credibility analysis.

[45] In particular, the trial judge offered no reasons for why she, apparently, disbelieved Mr. Monzon. By equal measure, the trial judge also offered no reasons for why she, apparently, preferred the evidence of Ms. Jahn. Moreover, there is nothing in the reasons that indicates that the trial judge considered whether Mr. Monzon’s evidence, though not accepted, still raised a reasonable doubt about his guilt. [23] Indeed, there is little if any reference to the evidence of Mr. Monzon at all.

[46] As set out above in the quoted passages from our Court of Appeal’s decision in R. v. J.L., I appreciate the approach that is to be taken to reviewing reasons rooted in credibility findings, and I am mindful of the admonition in Dinardo that, “[r]arely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.” But here there is no credibility analysis expressed in the reasons for judgment at all. [24]

[47] Here, as in R. v. J.L., the trial judge “did not explain why [she] rejected the appellant’s evidence or, at a minimum, why it did not leave [her] with a reasonable doubt and did not address the features of the evidence that supported the appellant’s innocence.” [25]

[48] Further, in the circumstances of the instant case, proper appellate review requires not only findings of credibility but also clear findings of fact, especially given the confused and conflicting evidence at trial.

[49] Respectfully, the reasons of the trial judge are unclear as to certain critical findings of fact. It is true that the trial judge found as a fact that Mr. Monzon was the aggressor from the onset, in that, she found he went upstairs to the bedroom “[i]n an aggressive fashion” – a problematic finding given that, as I explain below, there was no evidence to support it – but the trial judge made no clear finding as to who struck the first blow or committed the first assault.

[50] Indeed, it would seem plain from a reading of the reasons that the trial judge accepted or allowed that it was Ms. Jahn who actually struck the first blow.

[51] That is, the trial judge described how when Mr. Monzon entered the bedroom and (as the evidence of both parties confirmed) he asked Ms. Jahn whether she wanted to go downstairs and smoke marijuana or “whatever he said, and then she apparently started yelling and cursing at him.” I pause to note that, leaving aside for the moment the trial judge’s characterization that Mr. Monzon went upstairs in an aggressive fashion, the first concrete acts of aggression – her “yelling and cursing at him” – actually come from Ms. Jahn, as found by the trial judge.

[52] The trial judge went on to describe how, in response to Ms. Jahn’s “yelling and cursing at him,” Mr. Monzon then turned on the lights and ripped off the blankets, “and at that point he was the aggressor. She never stood up to face him or do anything, she was on her knees on the bed, may have been face-to-face and I do not really care if at that point she struck him to get away from him, because he had come over to the bed and I find anything she did at that point was in self-defence.” [Emphasis supplied.]

[53] While it is certainly not a clear finding of fact, the reasons of the trial judge appear to allow that it was actually the complainant who struck the first blow. It is not clear why no clear finding of fact was made. Perhaps there was no perceived need to make a clear finding of fact in this regard because, at least insofar as the trial judge was concerned, it did not matter whether Ms. Jahn struck Mr. Monzon first because, in the trial judge’s view, “anything she did at that point was in self-defence.”

[54] However, it is instructive to consider what acts had been committed by Mr. Monzon at the point in time where the reasons appear to allow that Ms. Jahn struck him, at least insofar as the narrative of the trial judge’s reasons are concerned. It appears from the reasons that, again apart from the finding that Mr. Monzon had gone upstairs in an aggressive fashion, Mr. Monzon had asked Ms. Jahn if she wanted to go downstairs and smoke marijuana or “whatever he said,” he had been the object of her “yelling and cursing at him,” and in response he had then turned on the lights to the room and removed the blankets from the reclining Ms. Jahn. It is common ground that he was standing at the foot of the bed. But that appears to be the sum total of acts taken by Mr. Monzon, at least according to the trial judge’s reasons, at the point in time when those reasons appear to allow that Ms. Jahn struck him.

[55] Against that backdrop, the statement of the trial judge that “I do not really care if at that point she struck him” is problematic, particularly in the context of a trial where the defence had advanced claims that the accused was acting in self-defence and that, at the very least, both parties engaged in assaultive behaviour such that it was a consent fight.

[56] Quite contrary to the trial judge’s statement about not really caring if the complainant struck the first blow, I would have thought that it was critically important to determine that very question and make that critical finding of fact so that one could then properly determine the defences that had been raised. However, the reasons do not do that.

[57] This case was largely about self-defence. The question of who was the originator of the initial assault was critically important. The trial judge avoided making a definitive finding as to who struck the first blow by implicitly concluding that it was not essential to make that finding by cloaking all of the complainant’s conduct after the lights were flipped on and the blankets removed under the guise of self-defence.

[58] I am troubled by the trial judge’s conclusion that it did not matter whether Ms. Jahn struck Mr. Monzon first because “anything she did at that point was in self-defence.” The basis for the trial judge’s finding that the complainant was acting in self-defence is neither clear nor explained.

[59] The reasons assert that Ms. Jahn was acting in self-defence from the moment that Mr. Monzon turned on the bedroom lights and pulled the blankets off the bed. The trial judge’s reasons make no reference to s. 34 of the Code, which speaks of a person believing on reasonable grounds that force or threat of force is being used or made against them. The reasons make no finding that the turning on of the lights or the removal of the blankets constituted an assault in law, and one might think that would be a dubious conclusion on the facts of the instant case. The reasons make no finding that the turning on of the lights or the removal of the blankets was an application of force or threat of force. The reasons make no finding that there was apprehension of an assault or a threat of an assault by Mr. Monzon. The reasons make no finding that any belief Ms. Jahn may have had in that regard was reasonable in the circumstances. The reasons make no finding that the reaction of Ms. Jahn in apparently striking Mr. Monzon on the chest in reaction to him turning on the lights and removing the blanket was “reasonable in the circumstances,” as required by s. 34(1)(c) of the Code. In sum, I agree with Mr. Miller that the reasons for the basis of the finding that Ms. Jahn was acting in self-defence are quite “opaque,” to say the least.

[60] Rather, it is plain that, without any supporting analysis, the trial judge made a conclusory statement that anything that Ms. Jahn did after Mr. Monzon turned on the lights and removed the blankets – and, semble, after Ms. Jahn struck Mr. Monzon first – was done in self-defence.

[61] In the absence of any such supporting analysis or findings, this conclusory statement provides no basis for appellate review of the correctness of the trial judge’s legal conclusion.

[62] Moreover, if the difficulties facing the appellant were not so weighty, one might say that it is ironic that the reasons provide no explanation, guidance, or reconciliation as to why the trial judge should so readily come to a conclusory determination that the complainant was acting in self-defence after Mr. Monzon turned on the lights and removed the blankets, but yet – when trial counsel expressly raised the issue of self-defence on the part of Mr. Monzon – the trial judge did not even consider the claim of Mr. Monzon that he was acting in self-defence when he was grappling with her, which then put into motion the series of violent incidents. On the evidence of Mr. Monzon, this series of events all took place after he was struck by Ms. Jahn – a blow that the trial judge was, as appears from her reasons, prepared to accept preceded Mr. Monzon applying force to Ms. Jahn, but which the trial judge, inexplicably, did not regard as an assault upon Mr. Monzon.

[63] However, the trial judge made no findings of fact in the latter regard, and so, again, her reasons provide no basis or opportunity for meaningful appellate review.

[64] I am also concerned that the reasons of the trial judge did not address the affirmative defences that were advanced by trial counsel on behalf of Mr. Monzon, specifically, his claims of self-defence and consent fight.

[65] The Supreme Court of Canada has held that adequate reasons must address the live issues in the defence case. To this end, in R. v. Walker, [2008] 2 S.C.R. 245, Binnie J., writing for a unanimous court, held that:

Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue. [26]

[66] In the instant case, the trial judge failed to address the issues of self-defence or consensual fight, as had been raised by trial counsel in closing submissions. [27] In my view, on the evidence before the trial judge, there was an air of reality to both defences, but the trial judge dealt with neither defence.

[67] I have already touched upon, above, the failure of the trial judge to address Mr. Monzon’s claim of self-defence.

[68] The lack of clarity in the reasons of the trial judge do not allow this court to conduct meaningful appellate review. While the trial judge referred to Mr. Monzon’s blow to Ms. Jahn’s eye, there was no rejection of his claim that he struck this blow in self-defence, there was no wholesale rejection of Mr. Monzon’s evidence, nor any wholesale acceptance of Ms. Jahn’s evidence. Again, this failure to deal with the conflicting evidence makes proper appellate review impossible.

[69] As I understand it, the defence claim of consensual fight had particular relevance and application to the allegation that Mr. Monzon assaulted Ms. Jahn by, as the trial judge found, Mr. Monzon having “ripped the earring out of [Ms. Jahn’s] ear.”

[70] As I indicated above, the evidence of Mr. Monzon on this point is that he had his arms around Ms. Jahn at one point during the altercation. His evidence was that her earrings came off as they were grappling on the bed. In particular, Mr. Monzon was asked what part of his body, if any, was touching her ears, and he replied that both of his arms were around her head, like, hugging her and grappling her, trying to restrain her, and she was moving around as he did that. [28]

[71] Nowhere did the reasons of the trial judge address his explanation of the incident. His evidence on the point is not referenced, cited, addressed, analyzed, considered, or rejected in the trial judge’s reasons.

[72] Rather, the trial judge simply held, in another conclusory statement, that Mr. Monzon “ripped the earring out of her ear.” The trial judge went on to say, “[t]hat is the only way you get the pierced ears out like that and you get that mark. It does not happen by just brushing against it with your hand. It has to be forcibly pulled down through the skin of the ear to do that. That is how incensed this man was.”

[73] It is not clear what the trial judge meant by the reference in her reasons to “[i]t does not happen by just brushing against it with your hand.” On my review of the evidence, there was no suggestion by anyone that Ms. Jahn’s earring was ripped out of her ear by “just brushing against it with your hand.” That was not the evidence of Mr. Monzon or Ms. Jahn. As I have said, the evidence of Mr. Monzon is that Ms. Jahn’s earrings came off as they were grappling with each other, as his arms were around her head, and they were both struggling.

[74] The reasons of the trial judge do not acknowledge the explanation offered by Mr. Monzon or attempt to address or reconcile the conflicting evidence on point.

[75] I conclude that the absence of sufficient reasons by the trial judge in the instant case has prevented this appellate court from properly reviewing the correctness of the largely unknown, unexpressed pathway taken by the trial judge in reaching her various conclusory statements and from properly assessing whether the trial judge had properly addressed the principal issues in the case. In my view, the trial judge’s failure to deliver meaningful reasons for her decision was an error of law within the meaning of s. 686(1)(a)(ii) of the Criminal Code.

Did the trial judge misapprehend the evidence and err in law by, *inter alia*, purporting to make certain findings in the absence of any supporting evidence?

[76] As referenced above, it is clear that the trial judge found as a fact that Mr. Monzon was the aggressor from the onset of the altercation, in that, the trial judge expressly found that he went upstairs and entered the bedroom “[i]n an aggressive fashion.”

[77] As I have said, I regard that finding as a problematic given that there was no evidence to support it.

[78] Somewhat remarkably, the critical evidence on this particular point is something that the parties’ evidence seem to actually agree upon.

[79] The evidence of both parties was to the effect that, after Mr. Monzon’s friends had left their residence, Mr. Monzon went upstairs, opened the door to their bedroom, and he then asked Ms. Jahn if she wanted to come downstairs and smoke some marijuana.

[80] The trial judge made a clear finding that in response to that inquiry, the complainant “started yelling and cursing” at Mr. Monzon.

[81] In my view, there is nothing in the evidence of the parties that was before the trial judge that could support a finding that Mr. Monzon “in an aggressive fashion” went upstairs and opened the bedroom door to ask Ms. Jahn whether she wanted to go downstairs and smoke some marijuana. Even the evidence of Ms. Jahn does not support that finding.

[82] It is trite law that a finding of fact made in the absence of any supportive evidence is an error of law. [29]

[83] In my view, there was no evidence to support the trial judge’s finding of fact that Mr. Monzon went upstairs and entered the bedroom in “an aggressive fashion.”

[84] I conclude that while the trial judge found as a fact that Mr. Monzon was the aggressor from the onset, in that, she concluded, that he had gone upstairs in an aggressive fashion to ask the complainant if she would come back downstairs to smoke marijuana, that was a misapprehension of the evidence, in that, there was no evidence that Mr. Monzon went upstairs and entered the bedroom “in an aggressive fashion.”

Did the trial judge err in finding by way of judicial notice that the only manner in which the complainant’s earring could have been removed was by way of a downward tug on the earring while it was in the complainant’s ear lobe?

[85] While I do think there is some merit in the submissions of Mr. Miller on appeal, as set out in paras. 75-82 of the appellant’s factum, I regard the real gravamen of the deficiency in the trial judge’s reasons in this regard to be, as I have referenced above, the failure of the trial judge to consider the evidence of Mr. Monzon as to his explanation of how the complainant’s earrings were ripped out.

[86] That is, there was nothing in the evidence before the court to support the trial judge’s conclusion that “the only way” the complainant’s earrings could have been ripped out was in accordance with the complainant’s explanation. The trial judge failed to consider the possibility of Mr. Monzon’s explanation of the incident.

Can the proviso be relied upon in the circumstances of the case at bar?

[87] For the reasons developed in paras. 83 to 87 of the appellant’s factum, I agree that the curative proviso in s. 686(1)(b)(ii) of the Criminal Code can have no application to the circumstances of the case at bar. In my view, it cannot be said that errors of law committed in the instant case were harmless or minor in nature or that the evidence against the accused was so overwhelming that any verdict other than conviction would have been impossible to obtain.

Conclusion

[88] When taken with the other failures of the reasons of the trial judge to explain the critical conclusions, I conclude that, given the failure of the trial judge’s reasons to make clear findings of fact in respect of the conflicting evidence of the parties, the failure of the reasons to resolve the contradictory evidence of the parties on key issues of fact, the failure of the reasons to conduct or display any meaningful credibility assessment, the failure of the reasons to address the legal defences raised on behalf of Mr. Monzon, the failure of the reasons to consider factors that favoured Mr. Monzon’s innocence, the trial judge failed to give proper consideration to the question of whether, on the whole of the evidence, she had a reasonable doubt as to Mr. Monzon’s guilt.

[89] For all of these reasons, I would allow the appeal, quash the conviction on count no. 1, and remit the charge of assault to the Ontario Court of Justice for a new trial. It follows that the sentence imposed must also be set aside.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard Justice

Date: September 24, 2018

COURT FILE NO.: CR-17-3992-AP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – DAVID MONZON Appellant REASONS ON APPEAL Howard J. Released: September 24, 2018

Footnotes:

[1] Criminal Code, R.S.C. 1985, c. C-46. [2] Transcript of the Reasons for Judgment in R. v. David Monzon, of M. Rawlins J., Ontario Court of Justice, delivered May 16, 2017 [Reasons for Judgment]. [3] Transcript of the proceedings at trial, taken May 16, 2017, examination-in-chief of Ms. Marlise Jahn, at p. 6, ll. 20-24. [4] Ibid., at p. 8, ll. 5-6. [5] Appellant’s Factum, filed January 19, 2018, at para. 12. [6] Transcript of the proceedings at trial, taken May 16, 2017, examination-in-chief of Mr. David Monzon, at p. 37, ll. 20-22. [7] Ibid., at p. 38, ll.13-19; and, cross-examination of Mr. Monzon, at p. 42, ll. 9-12. [8] Ibid., cross-examination of Mr. Monzon, at p. 44, ll. 15-20. It was then suggested to Mr. Monzon that he could have struck her before she laid hands on him, and he replied, “[n]ot that I recall, no.” He then agreed, allowed, or speculated that, given how drunk he was, it could have happened as counsel suggested. [9] Ibid., at p. 45, ll. 4-5. [10] Ibid., cross-examination of Mr. Monzon, at p. 42, ll. 13-14; and p. 44, ll. 5-10. [11] Ibid., examination-in-chief of Mr. Monzon, at p. 38, ll. 26-30. [12] R. v. W.(D.), [1991] 1 S.C.R. 742. [13] Transcript of the proceedings at trial, taken May 16, 2017, closing submissions of Mr. Andrew Telford-Keogh for the defence, at p. 49, ll. 11-14. [14] Ibid., at p. 49, l. 15 to p. 50, l. 2. [15] Ibid., at p. 50, ll. 4-9. [16] Reasons for Judgment, pp. 1-3. [17] R. v. Smits, 2012 ONCA 524, 36 M.V.R. (6th) 217 (C.A.), at para. 67 [citations omitted], citing R. v. Grosse (1996), 29 O.R. (3d) 785 (C.A.), 107 C.C.C. (3d) 97 (C.A.), at pp. 791-792 [cited to O.R.]. [18] R. v. Grosse, at pp. 791-792, citing R. v. W. (R.), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134, at pp. 131-132 [cited to S.C.R.]. [19] R. v. Polanco, 2018 ONCA 444, at para. 20 [citations omitted], citing R. v. O’Meara, 2012 ONCA 420, 284 C.C.C. (3d) 567, at para. 36. [20] R. v. Sheppard, [2002] 1 S.C.R. 869, at pp. 896-898. [21] R. v. J.L., 2018 ONCA 756, at paras. 39-43. See also R. v. T.(D.), 2014 ONCA 44, 305 C.C.C. (3) 526, at para. 78. [22] That said, it goes without saying that express reference to the W.(D.) decision itself is not required. [23] See generally R. v. Y.M. or R. v. Maharaj (2004), 71 O.R. (3d) 388 (C.A.), 186 C.C.C. (3d) 247 (C.A.), at pp. 394-395 [cited to O.R.], leave to appeal to S.C.C. dismissed [2005] 1 S.C.R. xiv (note), 192 C.C.C. (3d) vi (note). [24] As such, the instant case is quite conceptually distinct from, for example, my recent decision in R. v. Baltzer, 2018 ONSC 4775, 2018 ONSC 8132, 2018 CarswellOnt 13331 (S.C.J.), at paras. 68-69, where, although the defence criticized the brevity of the trial judge’s credibility analysis, I found that the he trial judge explicitly demonstrated his understanding that he was not permitted to resolve the criminal charges before him simply on the basis of a “credibility contest” or whose version of the evidence he preferred. [25] R. v. J.L., at para. 51. [26] R. v. Walker, [2008] 2 S.C.R. 245, at para. 20. See also R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, 283 C.C.C. (3d) 3, at para. 56. [27] Ibid., at p. 50, ll. 4-9. [28] Ibid., at p. 38, ll.13-19; and, cross-examination of Mr. Monzon, at p. 42, ll. 9-12. [29] R. v. Schuldt, [1985] 2 S.C.R. 592, at p. 604. See also R. v. H. (J.M.), 2009 ONCA 834, 99 O.R. (3d) 761, 249 C.C.C. (3d) 140 (C.A.), at para. 38.