Court File and Parties

Court File No.: 16-DV6816 Date: 2018/11/13 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Warren Tremblay

Counsel: John Semenoff, for the Crown Tobias Okada-Phillips, for the Accused

Heard: April 11, 2018

Summary Conviction Appeal

On appeal from the decision of Justice D. Lahaie, Ontario Court of Justice, at Ottawa, dated March 1 and 9, 2017

Corthorn J.

Introduction

[1] Mr. Tremblay appeals his conviction on one count of assault causing bodily harm and one count of breach of probation. He also appeals the sentence imposed of 15 months custody and 3 years of reporting probation.

[2] The charges against the appellant arose from events that transpired at the apartment of Christine Bruce on the afternoon of August 28, 2016. Neither Ms. Bruce nor the appellant testified at trial.

[3] The witnesses called as part of the Crown’s case were the building superintendent for the building in which Ms. Bruce’s apartment is located, a painting contractor working at the building that afternoon, and the two police officers who responded to the 9-1-1 call made by the building superintendent. No evidence was called on behalf of the appellant.

[4] Central to the determination of guilt on the charge of assault causing bodily harm was “the single logical conclusion” reached by the trial judge based on the totality of the evidence: “[the appellant] beat Ms. Bruce and caused injury to her lip.” The appellant submits that (a) there are a number of reasonable alternative inferences that can be drawn from the evidence as a whole, and (b) the trial judge made a number of errors with respect to the evidence that was available to her to consider.

[5] With respect to the sentence imposed, the appellant submits that the trial judge erred in principle by imposing a sentence that exceeds the joint submission made of 8 months custody and 18 months’ probation.

[6] For the reasons that follow, I allow the appeal from the two convictions, set aside the two convictions, and order a new trial on both counts.

Background

a) The Evidence

[7] The first witness called by the Crown was Jordan Henderson, the building superintendent. In summary, Mr. Henderson’s evidence was that:

• He lived in the apartment building of which he was superintendent;
• He knew of both Ms. Bruce and the appellant prior to August 28, 2016 because:
  • Ms. Bruce lived in the apartment building; and
  • Multiple complaints were made about the appellant having arguments and fighting with Ms. Bruce. Mr. Henderson had ‘trespassed’ the appellant from the apartment building;
• Earlier in the day on August 28, 2016, Ms. Bruce asked Mr. Henderson for a garbage bag, which he gave her;
• From approximately 1:00 to 3:00 p.m., Mr. Henderson was working in the yard to the apartment building. From that location he could hear the appellant hitting Ms. Bruce and her being hit, the two individuals rustling around, Ms. Bruce going down, and Ms. Bruce hitting things and knocking things over as a result of being hit by the appellant;
• At one point, Mr. Henderson observed Ms. Bruce briefly appear at the window to the apartment. Mr. Henderson saw that Ms. Bruce had blood in the area of her nose and lips;
• Based on the sounds he heard coming from the apartment, Mr. Henderson believed that the appellant and Ms. Bruce were involved in a fist fight. He therefore called 9-1-1 and remained outside, pending the arrival of the police; and
• Mr. Henderson saw Ms. Bruce that evening. He noted that Ms. Bruce’s lip was swollen.

[8] The painting contractor, Mr. Bourdeau, testified that he spent part of the afternoon painting inside the apartment located immediately below Ms. Bruce’s apartment. Thereafter, he spent time outside with or near Mr. Henderson. Mr. Bourdeau testified as follows:

• While inside painting the apartment located below Ms. Bruce’s apartment, he heard “a huge thud coming from upstairs”. Mr. Bourdeau described the thud as hearing the ceiling shake above his head. Mr. Bourdeau also heard someone scream: “Get out. Get the F out of my home”;
• When he went outside, Mr. Bourdeau encountered Mr. Henderson in the yard of the building; they both remarked on the noise coming from Ms. Bruce’s apartment;
• While outside, Mr. Bourdeau heard Ms. Bruce scream: “Get out. You’re a goof. You’re a moron Warren” and “Don’t do that.” He then heard another bang, followed by someone saying: “Stop it. They’re going to call the police”;
• Immediately thereafter, Mr. Bourdeau observed Ms. Bruce for a few seconds, as she peeked out of a window to her apartment. Ms. Bruce pulled the drapes, saw that there were people outside, gave an eye roll, and closed the window. Mr. Bourdeau observed that Ms. Bruce had a bloody nose and lip;
• The male voice emanating from Ms. Bruce’s apartment while Mr. Bourdeau was outside sounded to him like a frustrated roar; and
• Based on what he heard and observed, Mr. Bourdeau believed that someone in the apartment (a) “seemed to have hit the floor”, (b) “seemed to be pushing through a door”, and (c) “seemed to be resisting on the other side of that door”. Mr. Bourdeau assumed that Ms. Bruce and the appellant were arguing.

[9] The two police officers testified as to what they heard from Ms. Bruce’s apartment immediately before entering it, their respective observations of the state of the apartment (i.e. in disarray, smelling of dog and cat urine, and the presence of dog feces), and their respective observations of the condition of one or both of Ms. Bruce and the appellant. Each officer observed that there was blood in the area of Ms. Bruce’s lips, a laceration to her upper lip (with one of the officers describing the laceration as “butterflied” open), and blood on the pink top Ms. Bruce was wearing. One of the officers made note of blood in the living room, on the mattress, and on the floor.

b) Decision at Trial - Convictions

[10] The trial judge gave oral reasons, finding the appellant guilty on both counts. The findings of fact made by the trial judge in support of the conviction and relied upon for the purpose of sentencing include:

• Ms. Bruce and the appellant were involved in a tumultuous relationship, with the appellant prohibited under the relevant provincial legislation from being on the premises of Ms. Bruce’s apartment;
• Ms. Bruce’s face was “covered in blood”; and
• The blood observed by one or both of the police officers was from the injury to Ms. Bruce’s lip.

[11] The appellant is critical of the trial judge’s findings with respect to (a) the observations made by Mr. Henderson and Mr. Bourdeau, including when Ms. Bruce appeared at the window of her apartment, and (b) the state of their respective knowledge as to what was transpiring inside Ms. Bruce’s apartment. Those findings are:

After she sustained the blow or blows which caused her lip to be split open with flesh flapping as she spoke and blood soaking her teeth, Ms. Bruce pulled back her curtain, which provided both Mr. Henderson and Mr. Bourdeau, who were both standing below her window outside, with a view of her blood-soaked face. Mr. Henderson called [9-1-1].

The Court finds that the voice on the 9-1-1 recording filed in evidence, is the voice of Mr. Henderson. Ms. Bruce can be heard screaming in the background on the call. Mr. Henderson did not see the physical altercation, but he described what both he and Mr. Bourdeau knew to be happening, which was that the accused was beating the victim and kicking Ms. Bruce’s dog. This recording was compelling evidence of what was transpiring.

Ms. Bruce’s screams offered a chilling view of what she was enduring.

[12] In her decision, the trial judge averted to Mr. Henderson’s criminal record, highlighting that the record is lengthy and replete with crimes of dishonesty. Regardless, the trial judge concluded that Mr. Henderson was a credible and candid witness. Her assessment was that Mr. Henderson was unshaken on cross-examination. She noted, however, that there were inconsistencies between Mr. Henderson’s statements to the police and his evidence at trial.

[13] The inconsistencies relate to Mr. Henderson’s observations of what transpired while Ms. Bruce was at the window of the apartment—specifically as to whether Mr. Henderson observed Ms. Bruce receive a blow to her face and, if so, whether the appellant struck the blow with an elbow or a fist. The trial judge concluded that Mr. Henderson was not intentionally deceitful in his testimony at trial; rather, he was an unreliable witness on this point. The trial judge ultimately concluded that there was no reliable evidence of Mr. Henderson having observed the appellant strike a blow with either his fist or his elbow.

[14] The trial judge described Mr. Bourdeau as clear and straightforward in his presentation. She concluded that Mr. Bourdeau’s evidence is reliable and that Mr. Bourdeau is very credible. The appellant does not take issue with the trial judge’s assessment of Mr. Bourdeau as a witness, or of the quality of his evidence. The appellant takes issue with the trial judge’s finding that Mr. Bourdeau’s evidence corroborates Mr. Henderson’s evidence that Ms. Bruce was “clearly the bloodied victim and [the appellant] was the aggressor who was being told to leave, and who was kicking the dog.”

[15] The trial judge considered and rejected the defence position that “the disturbance and thumps” emanating from Ms. Bruce’s apartment could have been the result of a fall or of self-defence. The appellant is critical of the trial judge’s description of the two alternative theories as “arguments raised by defence counsel.” The appellant relies on that description in support of his submission that the trial judge failed to properly apply, if apply at all, the law with respect to circumstantial evidence.

[16] The trial judge concluded her reasons with respect to the finding of guilt on the count of assault causing bodily harm by referring to the “totality of the evidence presented”. The conviction on the count of breach of probation flowed from the fact that the appellant had, at the outset of trial, admitted that he was subject to a probation order on August 28, 2016.

Positions of the Parties

a) The Appellant

[17] The appellant requests that the convictions be set aside because the verdict was unreasonable (s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46). The appellant submits that the trial judge misapprehended the evidence, such that her misapprehension amounts to an error of law (s. 686(1)(a)(ii)). The appellant highlights at least five specific concerns with respect to the trial judge’s assessment of, and findings with respect to, the evidence available to her. The appellant submits that the misapprehension of the evidence resulted in a miscarriage of justice (s. 686(1)(a)(iii)).

[18] With respect to the sentence, the appellant submits that the trial judge erred in law by (a) departing from a joint submission, and (b) imposing a sentence that is excessively harsh in the circumstances.

b) The Crown/Respondent

[19] The respondent’s position is that the oral reasons given by the trial judge demonstrate that she considered the totality of the evidence, applied the law with respect to circumstantial evidence, appropriately addressed the credibility and reliability of the witnesses, and applied the requisite evidentiary principles. Save and except for one finding of fact, the trial judge’s findings were reasonable and should not be disturbed.

[20] The respondent agrees with the appellant that the trial judge erred in finding that the appellant kicked the dog. That finding does not, however, go to any element of the offence of assault causing bodily harm. The respondent agrees with the appellant that the trial judge is in error to the extent that she relied on that finding as an aggravating factor when imposing the sentence.

[21] The respondent submits that the convictions should stand and the appeal against sentence be granted. The respondent’s position is that the sentence should be varied to 12 months’ custody (less pre-sentence custody) and 3 years’ probation.

Standard of Review

[22] The appellant and respondent agree that the onus to be met by the appellant is set out in s. 686(1)(a) of the Code. The appeal may be allowed if I find that the decision of the trial judge:

a) Is unreasonable or cannot be supported by the evidence; b) Is wrong on a question of law; or c) Results in a miscarriage of justice.

Appeal from Convictions

[23] The appeal from conviction raises the following issues:

1. Did the trial judge deliver an unreasonable verdict?
2. Did the trial judge misapprehend the evidence and, if so, did the misapprehension result in the miscarriage of justice?
3. If the trial judge misapprehended the evidence, does the misapprehension amount to an error in law??

Issue No. 1 - Did the trial judge render an unreasonable verdict?

[24] In R. v. Morrissey, 22 O.R. (3d) 514, at para. 89, Doherty J. summarizes what an appellate court is to consider when determining whether a verdict is unreasonable:

• For the appellant to succeed on this ground of appeal, they are not required to demonstrate errors of law in the proceedings below;
• A misapprehension of the evidence by the trial judge is not a condition precedent to the verdict being rendered unreasonable; and
• Misapprehension of the evidence is frequently a factor in appeals from cases tried without juries. An appellant is in a much better position to demonstrate that a verdict is unreasonable if they can demonstrate that the trial judge misapprehended significant evidence.

[25] I find that the trial judge failed to consider an element of the offence of assault causing bodily harm: that the appellant intended to apply force.

[26] The appellant relies on the decision of the Supreme Court of Canada in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190. At paragraph 54 of that decision, Charron J. highlights that the trial judge “correctly identified the constituent elements of the offence” and, by doing so, did not make an error of law. The appellant relies on a corollary to that statement: the failure to identify a constituent element of the offence with which the appellant was charged is an error of law on the part of the trial judge.

[27] The appellant submits that, regardless of its evidentiary frailties, the trial judge’s conclusion that the appellant was “beating” Ms. Bruce is insufficient to address the element of intentional application of force and is therefore an error of law. I agree.

[28] I find that the trial judge’s failure to consider an essential element of the offence of assault causing bodily harm renders her verdict on that count unreasonable.

[29] The appellant’s submission that the trial judge misapprehended the evidence resulting in a miscarriage of justice is addressed in the next section of this ruling. I find that the trial judge misapprehended the evidence. The extent of the misapprehension of the evidence is such that it contributes, independent of the error in law noted above, to the unreasonableness of the trial judge’s verdict on the count of assault causing bodily harm.

Issue No. 2 - Did the trial judge misapprehend the evidence resulting in a miscarriage of justice?

a) Circumstantial Evidence

[30] For a case based on circumstantial evidence, “the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence” (R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55). For the trier of fact to conclude something other than the accused’s guilt, “alternative inferences must be reasonable, not just possible” (Villaroman, at para. 42).

[31] The appellant submits that nowhere in the trial judge’s oral reasons does it appear that she applied the principles set out above. I disagree.

[32] After reviewing the evidence and making findings of fact, the trial judge concluded that the evidence “[led] to a single logical conclusion: [the appellant] beat Ms. Bruce and caused injury to her lip.” The trial judge’s use of the phrase “a single logical conclusion” in place of “the only reasonable conclusion” (with the latter phrase taken from Villaroman, at para. 55) supports a finding that she was alive to and applied the relevant principle.

[33] Similarly, the trial judge’s rejection of the alternative defence “arguments” (of self-defence or a fall) supports a finding that she was alive to the requirement to consider, and did consider, whether any other reasonable inference was available to her based on the evidence. The use of the noun, “argument” in place of the phrase, “other reasonable inference” is not sufficient to establish that the trial judge failed to apply the relevant principle.

[34] The trial judge made specific reference to “the totality of the evidence”, demonstrating once again that she was alive to and applied the relevant principle.

[35] I find that the trial judge was alive to and applied the principles with respect to a case based on circumstantial evidence; she did not make an error of law in that regard. What remains to be determined is whether the trial judge misapprehended the evidence available to her when she applied those principles.

b) Misapprehension of Evidence

[36] I find that the trial judge misapprehended the evidence in a number of ways and that her misapprehension resulted in a miscarriage of justice.

[37] First, I find that the trial judge erred by drawing an inference and finding that the appellant was “beating” Ms. Bruce.

[38] Mr. Henderson is the only witness who testified that he observed physical contact between the appellant and Ms. Bruce. At trial, Mr. Henderson testified that when Ms. Bruce was at the window he saw her struck in the face by an elbow. In his statement to the police on the day of the events, Mr. Henderson said that he saw Ms. Bruce receive a closed fist to her mouth.

[39] The trial judge acknowledged that there were inconsistencies between Mr. Henderson’s statements to the police and his evidence at trial. The trial judge concluded that Mr. Henderson was unreliable with respect to that aspect of his testimony.

[40] There is no finding by the trial judge that either Mr. Henderson or Mr. Bourdeau observed physical contact as between the appellant and Ms. Bruce. In addition, the trial judge described Mr. Bourdeau as being fair in not assigning blame as to who was being the aggressor.

[41] Second, the trial judge relied on an audio recording of the 9-1-1 call made by Mr. Henderson as “compelling evidence” of what was transpiring inside the apartment. The audio recording provides the conversation between Mr. Henderson and the individual on the receiving end of the call. In the background to that conversation a number of sounds can be heard.

[42] The admission of the audio recording as evidence of anything other than what Mr. Henderson said during the call is an error in law:

a) The statements made by Mr. Henderson during the call, that the appellant was “beating” and “hitting” Ms. Bruce, are inconsistent with the findings made by the trial judge that Mr. Henderson was not reliable with respect to whether or not there was physical contact between the appellant and Ms. Bruce; b) The sounds heard in the background are difficult to discern. Ms. Bruce did not testify. She did not confirm that the sounds heard on the 9-1-1 recording were made by her. In the absence of testimony from Ms. Bruce to identify the sounds as hers, the recordings in the background of the 9-1-1 call are hearsay and not admissible in the circumstances; and c) Even if those sounds were otherwise admissible as evidence and it were accepted that they were made by Ms. Bruce, there is no evidence as to what caused her to make the sounds. Mr. Bourdeau described hearing what sounded like furniture being moved about and force being applied to a door. It is possible that the sounds heard were in response to conduct other than the appellant assaulting Ms. Bruce;

[43] Third, the trial judge erred in concluding that Mr. Bourdeau’s evidence corroborates the evidence of Mr. Henderson that “Ms. Bruce was the clearly bloodied victim and [the appellant] was the aggressor who was being told to leave, and who was kicking the dog.” The appellant describes the trial judge’s finding of corroboration as “a phantom corroboration”.

[44] I agree with the appellant and find that Mr. Bourdeau’s evidence is not corroborative, in the manner described by the trial judge, of Mr. Henderson’s evidence:

• At no time did Mr. Bourdeau observe contact between the appellant and Ms. Bruce. Mr. Bourdeau’s visual observations of the two individuals is limited to his observation of blood on Ms. Bruce’s face when she came to the apartment window;
• Mr. Bourdeau did not identify the appellant as the aggressor. He described hearing sounds when he was inside the apartment building. Based on the sounds he heard, he assumed that the people in the apartment were arguing; and
• In her reasons, the trial judge noted that “Mr. Bourdeau fairly assigned no blame to who was being the aggressor”.

[45] The totality of the admissible evidence does not support the finding made by the trial judge that the appellant was “beating” Ms. Bruce; the trial judge misapprehended the evidence in that regard.

[46] Fourth, the trial judge erred in her application of the evidentiary principle with respect to an alternative reasonable inference that may be drawn from the totality of the evidence. Given the trial judge’s assessment of Mr. Bourdeau’s evidence, Mr. Bourdeau’s stated belief as to what was transpiring inside the apartment, and the lack of any evidence that the appellant was observed striking Ms. Bruce, alternative inferences could be drawn by the trial judge.

[47] The alternative inferences that could be drawn include two such inferences identified in the closing submissions on behalf of the appellant: the human sounds heard, noises emanating from the apartment, and injury to Ms. Bruce’s lip could reasonably have resulted from a fall or from the exercise by the appellant of self-defence. I find those alternative inferences to be reasonable, and not simply possible, in the circumstances.

[48] In summary, I find that the trial judge misapprehended the evidence in a number of ways.

c) Miscarriage of Justice

[49] Where, as in this case, a misapprehension of the evidence is established, then a miscarriage of justice is presumed and the onus shifts to the respondent to demonstrate that the error was of a harmless or minor nature not having any impact on the verdict (R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 23-26).

[50] If, however, the misapprehension of evidence is a serious error, a new trial will be justified unless the evidence properly adduced is so overwhelming that there was no substantial wrong or miscarriage of justice (Khan, at para. 26). The onus is on the respondent to demonstrate that “the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction” (R. v. S. (P.L.), [1991] 1 S.C.R. 909, at para. 8).

[51] As has already been noted, the finding that the appellant was kicking the dog cannot stand. The trial judge erred in finding that Mr. Bourdeau’s evidence is corroborative of other evidence with respect to the dog being kicked. That error does not go to an element of the offence and did not have an impact on the trial judge’s finding of guilt on the charge of assault causing bodily harm. That error did not result in a miscarriage of justice.

[52] The trial judge’s conclusion that the appellant was the aggressor is neither minor nor harmless in nature; it had an impact on the verdict. The respondent must therefore demonstrate that the evidence properly adduced is so overwhelming that a conviction is inevitable, or would invariably result, on a standard of more than beyond a reasonable doubt.

[53] The respondent submits that the evidence properly adduced includes:

• That with respect to the sounds heard emanating from Ms. Bruce’s apartment (a thud and a thump);
• The nature of the sounds Mr. Bourdeau heard the appellant making (a frustrated roar);
• The statements made by Ms. Bruce and the appellant (admitted not for the truth of their contents, but as evidence of the statements made); and
• The physical evidence of Ms. Bruce’s injury, including the butterflied laceration of her lip, and the blood on her face, on her top, and in the apartment.

[54] In light of the alternative reasonable inferences that I find were available to the trial judge, the evidence identified by the respondent, even if properly adduced, is not so overwhelming that a conviction is inevitable or would invariably result on a standard of proof of more than beyond a reasonable doubt. The respondent has not discharged the onus described in paragraph 50, above.

[55] I find that the trial judge’s misapprehension of the evidence resulted in a miscarriage of justice. The conviction on the second charged flowed from the conviction on the first charge (and the appellant’s admission, at the outset of trial, with respect to the probation order). I find that both convictions must be quashed.

Issue No. 3 - Did the errors in law, if any, made by the trial judge result in a miscarriage of justice?

[56] Having concluded that the trial judge’s misapprehension of the evidence resulted in a miscarriage of justice, it is not necessary for me to decide whether that misapprehension constituted an error of law.

Sentence Appeal

[57] With the convictions quashed and a new trial ordered, it is not necessary for me to address the issues raised on the sentence appeal.

Disposition

[58] The appeal from the decision of the trial judge is allowed. The convictions are quashed and a new trial is ordered on both counts.

Madam Justice Sylvia Corthorn Released: November 13, 2018

COURT FILE NO.: 16-DV6816 DATE: 2018/11/13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – WARREN TREMBLAY sUMMARY CONVICTION APPEAL Madam Justice S. Corthorn Released: November 13, 2018