Court File and Parties
COURT FILE NO.: CR-17-126-00AP DATE: 2018 11 13
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
B E T W E E N:
HER MHER MAJESTY THE QUEEN ARISH KHOORSHED, for the Respondent/Crown Respondent
- and -
PAUL REDMOND R. CRAIG BOTTOMLEY, for the Appellant Appellant
[On appeal from the judgment of the Honourable S.T. Brown, dated August 16, 2017]
DURNO, J.
[1] The appellant was found guilty of assaulting David Gallagher and causing him bodily harm. They were long-term employees at the Ford plant in Oakville.
[2] Gallagher testified that they had a confrontation and the appellant punched him in the testicles. Steven Lavosky, a co-worker and friend of Gallagher, testified that he saw Gallagher return to the assembly line with a red face, bent over, moaning and holding his groin area. Gallagher told him the appellant punched him in the balls.
[3] The appellant testified and denied striking Gallagher or being at the location where he alleged the assault occurred. Two co-workers and friends of the appellant, Anthony Greco and Daren Chatten testified that the appellant was with them in a meeting when Gallagher said the assault occurred.
[4] The trial judge accepted the Crown’s evidence, found the appellant guilty and imposed a conditional discharge with two years probation.
[5] Mr. Redmond appeals contending the trial judge erred:
i) in assessing the evidence on the basis the appellant had the onus of proof in relation to alibis on a balance of probabilities,
ii) in providing inadequate reasons,
iii) in subjecting the defence evidence to an uneven level of scrutiny in comparison to his assessment of the Crown’s witnesses, and
iv) in misapprehending the content and use that could be made of medical records when His Honour found the records confirmed Gallagher’s injuries.
[6] For the following reasons, the appeal is allowed on grounds 1) or iv), the finding of guilt quashed and a new trial ordered.
The Evidence
[7] The appellant was a manager and Gallagher a quality control inspector at the Oakville Ford Plant. The appellant was not scheduled to work on Monday, April 25, 2016 but was filling in as Gallagher’s supervisor due to staff shortages.
[8] Gallagher said that during the day, the appellant yelled at him to stop “writing up the E6 headliner,” a car part Gallagher felt had been improperly installed during the assembly process. He also told Gallagher to stop getting his hair cut because it looked ugly.
[9] Later, Gallagher was returning from a break, approached the appellant and said, “The line’s running good.” The appellant said his hair looked ugly and to stop writing up the E6 headliners. Standing nose-to-nose with Gallagher, the appellant said he was going to “f’n flip” if he saw another E6 and punched him in the left testicle. [^1] Gallagher said that it would have been impossible for anyone to see the punch because of the position of an electrical panel and various lockers. Gallagher gave five written accounts of the incident, including one prepared by his daughter. None included any reference to the electrical panel. Gallagher testified that he always mentioned the panel to anyone taking his account but they omitted it.
[10] After the punch, Gallagher said he “kind of blacked out for a little bit” and his knees buckled. The appellant whispered in his ear that they should meet at the desk and discuss what happened. Gallagher returned to work after his break. He testified at one point that he was vomiting after the assault and at another point that he was not. He had blood in his urine and difficulty urinating after being struck. He testified that he went to the doctor at the end of the week of the incident.
[11] In cross-examination, Gallagher admitted he had stomach polyps, a pre-existing testicular cyst, prostrate issues, diverticulitis, and stomach, intestinal, bladder and urinary afflictions.
[12] The hospital records, dated May 2, 2016, a week after the incident, were filed during Gallagher’s examination-in-chief. He was told to follow-up with an urologist but despite having issues urinating he had not done so, having decided to take care of foot and dental issues. He had not gone to the police until he determined Ford was not going to deal with the incident. The company had moved him to a different part of the plant.
[13] Steve Lavosky, Gallagher’s friend and colleague, testified he observed tension between the men throughout the day. Around 2:32 pm, he saw Gallagher red-faced and in noticeable discomfort. While Gallagher testified he showed Lavosky his swollen testicle, Lavosky never mentioned being shown the testicle.
[14] The appellant testified that he had a scheduled meeting at 2:30 pm and was in a pre-meeting meeting and the meeting with Greco and Chatten from approximately 2:05 pm until the meeting ended after 4 pm.
[15] Anthony Greco testified the area described by Gallagher would have been in the sightlines of twelve to fifteen workers. He confirmed the appellant was in a meeting with him from “roughly two o’clock, five after two” where the two prepared for an upcoming meeting.
[16] Daren Chatten testified that the appellant was at a meeting with him at the time Gallagher alleged he was assaulted. He also said that all of the employees on line ten would be able to see the area where Gallagher testified that he was punched.
The Reasons for Judgment
[17] The trial judge heard submission and reserved for an unspecified time before delivering oral reasons for judgment on the same day.
[18] His Honour found in relation to the medical records:
They confirm that Mr. Gallagher suffered an injury to his left testicle, and that was the complaint. He was complaining of some blood in his urine, and complained of pain in the testicle, and the testicle was higher up than it should have been.
[19] After noting that Greco and Chatten said the appellant was with them and not at the location Gallagher said the assault occurred, His Honour continued:
The principles that I approach in the assessment of this case keep in mind that the central issue in this case is one of credibility. It is also whether or not I accept the alibis evidence on a balance of probabilities. Accordingly, in arriving at my decision I have analyzed the evidence presented in this case with the following principles in mind. One, the accused is presumed innocent, unless and until proven guilty beyond a reasonable doubt. The burden of proof remains on the prosecution throughout the trial. The accused has no burden to disprove any elements of the charge. The standard of proof that the Crown is required to meet in any criminal trial is a very high one indeed. The standard more closely approaches certainty than the standard of proof on a balance of probabilities.
[20] His Honour found Gallagher to be a straightforward and credible witness, not shaken in cross-examination. His story made sense. Lavosky’s evidence corroborated Gallagher’s as to the approximate time although he was “not the most unbiased of witnesses.” He testified to the appellant’s traits that were “thrown out” and painted a poor picture of the appellant. He had a degree of animosity and bias against the appellant. Notwithstanding the bias, His Honour accepted his evidence.
[21] The trial judge noted the confusing evidence about how many workers would have been in positions to see the assault but kept in mind that assembly line workers “are fixated to a large degree on the task at hand.” If they did not do that, there was the potential to hold up the assembly line that was a significant expense to the company. His Honour concluded it was not a crucial area in the trial.
[22] The trial judge found the appellant “somewhat evasive and non-responsive” when testifying. He tried to paint himself in the best possible light. He said Greco told him of Gallagher’s allegations, Greco had no recollection of doing that. This caused the trial judge “some concern.” Since the appellant, Greco and Chatten were all friends, it would be reasonable for one to inform the other at the very early stage and to have remembered it. There were also inconsistencies between the appellant’s police statement and his evidence.
[23] His Honour had some difficulty with Greco’s evidence because an email he sent to Gordon used remarkably similar first paragraphs. The “tombstone details [were] virtually identical.” The trial judge had some doubt with their evidence that they did not speak to or assist each other. His Honour found it was possible that the appellant could have gone out of Greco’s sight for the short period of time that was required to assault Gallagher.
[24] While Chatten seemed to testify in a direct and confident manner, he said he did not learn of the allegation until November, 2016, yet could say he was with the appellant at 2:05 pm because he was in another meeting until 2 pm and it took five minutes to walk to the second meeting.
[25] The trial judge found difficulty with the defence witnesses. Since the pre-meeting was 20 to 30 feet from where Gallagher said he was assaulted, the appellant could have briefly left the meeting. He did not believe the appellant, Greco or Chatten.
[26] His Honour found the appellant did not want the E6 headliners written up and Gallagher was going to continue to write them up. Even Chatten had told Gallagher to write them up. The E6 issue was one that incensed the appellant to the degree that he lost control of his temper and punched Gallagher in the testicles causing him more than transient and trifling injuries that lasted several days.
[27] The trial judge rejected the appellant’s evidence, and did not believe Greco and Chatten. Their evidence did not leave him with a reasonable doubt. His Honour found the appellant punched Gallagher and caused him bodily harm.
The Grounds of Appeal
Did the trial judge err in relation to alibis evidence?
[28] In trial submissions, defence counsel argued:
… The presentation of the defence evidence is one of an alibis, an alibis that starts at approximately 12:05, you could argue it starts at 12:08 – all the way up to 4:00 p.m. that Mr. Redmond was in meetings.
I understand that in regards to the standard of proof that needs to be raised, it’s not one of balance of probabilities but one of raising doubt in regards to beyond a reasonable doubt. But I submit to the court that it has been raised on a balance of probabilities in this case.
[29] The trial Crown referenced “the purported alibis” in urging the trial judge to reject the defence evidence.
[30] For ease of reference, the trial judge said:
The principles that I approach in the assessment of this case keep in mind that the central issue in this case is one of credibility. It is also whether or not I accept the alibis evidence on a balance of probabilities. …
[31] His Honour then addressed the presumption of innocence and burden of proof in relation to the elements of the offence as outlined at para. 19.
[32] The appellant submits the trial judge erred in finding the onus was on him to prove the alibis on a balance of probabilities.
[33] The Crown concedes the self-instruction was wrong in law. However, the respondent argues, first, that the error was harmless because there was no alibis evidence and second, that the comment was a slip of the tongue in an oral judgment by an experienced trial judge who is presumed to know the law.
[34] With regards to whether there was any alibis evidence, the respondent submits that “alibis” evidence must be determinative of the final issue of guilt or innocence. Here, the evidence was vague and imprecise. The timing of the assault was approximate. On all the evidence, the appellant was in the area of the assault. As such, the evidence was not capable of rendering it impossible for the appellant to commit the offence.
[35] With regards to whether the trial judge misspoke, later in the same paragraph he noted that the onus remained on the Crown throughout the trial and that the appellant bore no onus to disprove any element of the offence. He correctly cited and applied R. v. W.(D.), [1991] 1 S.C.R. 681. His Honour found the ‘alibis’ did not make it impossible for the assault to have occurred as the appellant could have left the meeting briefly and committed the assault. In summary, it was not alibis evidence. Even if it was, the ‘alibis’ evidence was only capable of affecting the result if the witnesses in support of it were believed or raised a reasonable doubt and they did not. The “momentary misstatement” had no effect on the verdict.
[36] The appellant counters that His Honour’s comments shortly after stating the onus was on the appellant were restricted to the Crown’s onus in regards to the elements of the offence – not to defences. While the trial judge rejected the defence evidence, he did so in the context that the onus was on the appellant in regards to the alibis. According, the rejection of their evidence was not determinative of the issue.
Analysis
Was there alibis evidence?
[37] In R. v. Rohde, 2009 ONCA 463, the Court of Appeal held at para. 17:
An alibi defence is a defence that says that the accused was elsewhere when the crime took place. If accepted, or if it raises a reasonable doubt, an alibi is determinative of the accused’s innocence.
[38] In R. v. Hill (1995), 25 O.R.(3d) 97, the Court of Appeal held:
Alibi is the Latin word for elsewhere and, as the Nova Scotia Court of Appeal observed in R. v. Gottschall (1983), 10 C.C.C. (3d) 447 at p. 455, 61 N.S.R. (2d) 86, it "has through the years come to mean the plea that when the alleged act took place one was elsewhere and therefore it was impossible for him to have committed the crime". In R. v. Sgambelluri (1978), 43 C.C.C. (2d) 496 at p. 500 (Ont. C.A.), MacKinnon A.C.J.O. succinctly stated: "Alibi evidence must be determinative of the final issue of guilt or innocence of the accused."
[39] In determining whether there was an air of reality to a defence in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53 and 54 the Supreme Court of Canada held:
In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. See Osolin, supra; Park, supra.
The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. See Finta, supra; R. v. Ewanchuk, [1999] 1 S.C.R. 330. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. See R. v. Bulmer, [1987] 1 S.C.R. 782; Park, supra. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.
[40] The defence evidence established an air of reality to an alibis defence. The appellant and two witnesses said he was in a meeting with them when Gallagher said the assault took place. The trial judge was required to assess that evidence applying the law correctly.
Did the trial judge apply the wrong onus in assessing of the alibis evidence?
[41] Counsel agree the trial judge erred when he said the onus was on the appellant to prove the alibis on a balance of probabilities. They differ as to the significance of the error.
[42] 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. Further, where a phrase in a trial judge’s reasons is open to two interpretations, the one that is consistent with the judge’s presumed knowledge of the law must be preferred over one that suggests an erroneous application of the law: R. v. Morrissey, [1995] O.J. No. 639 (C.A.), at para. 27.
[43] However, it is not an irrefutable presumption. First, the trial judge’s comments regarding the alibis are not open to two interpretations. They are clear. The appellant had the onus on a balance of probabilities to establish the alibis. Notwithstanding that the issue was raised in submissions and the law correctly stated by counsel, in articulating how he would assess the evidence, the trial judge reversed the onus in regards to the alibis. When there is a clear misstatement of the law reversing the onus, the presumption is misplaced. R. v. Chalmers, 2011 ONCA 433.
[44] Second, in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, Binnie J. wrote, at para. 51, number 10:
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.
[45] I am unable to find the comment was a slip of the tongue. There was no correction when it was said. It was not an “oops moment” in an oral judgment when as soon as the words are spoken the error is obvious. There was no correction later in the judgment nor any indication that His Honour assessed the alibis evidence applying the correct standard. While it was an oral judgment, the reasons were not delivered immediately after the submissions. His Honour had reserved for some period of time to prepare his reasons.
[46] Further, that the trial judge is experienced does not remove the clearly articulated error. Experienced trial judges are not immune from legal errors: Sheppard, supra Alibis defences are not an everyday occurrence in criminal trials.
[47] This was an alibis case and it was essential that the trial judge assess the witnesses’ evidence in the context of the proper onus. He did not do so. I agree with the appellant that if the trial judge approached the case with the appellant bearing the onus to prove an alibis on the balance of probabilities that it skewers the credibility assessment. Accordingly, the adverse credibility findings were made applying the wrong burden of proof.
[48] That His Honour referred to the Crown’s burden in relation to the elements of the offence is not determinative. I agree with the appellant that later in the same paragraph His Honour notes the onus on the ground in relation to the elements of the offence, not in relation to defences.
[49] I would allow the appeal on this ground.
Did the trial judge provide sufficient reasons?
[50] The appellant submits that the trial judge erred in failing to address two issues highlighted by the defence at trial. Since the second relates to the use of the medical records, I will deal with that issue later.
[51] The appellant first contends that His Honour did not resolve the issue of whether or not the location where Gallagher said the assault occurred was visible to other employees. The Crown witnesses said the area would not be visible to other employees. The defence witnesses said it would have been visible to numerous workers. Instead of resolving the issue, His Honour dismissed it as unimportant, providing an explanation that was not given in evidence or the Crown’s submissions - that anyone in the area would have been pre-occupied with their assembly line work.
[52] The Crown submits there is no need for reasons to go into excruciating detail or cover every piece of evidence. The reasons explained why the result was obtained. No more is required.
Analysis
[53] The Supreme Court of Canada provided the following guidance with regards to Reasons for Judgment in R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11- 13 and 17-18 as follows:
[11] The authorities establish that reasons for judgment in a criminal trial serve three main functions:
Reasons tell the parties affected by the decision why the decision was made. As Lord Denning remarked, on the desirability of giving reasons, "by so doing, [the judge] gives proof that he has heard and considered the evidence and arguments that have been adduced before him on each side: and also that he has not taken extraneous considerations into account": … In this way, they attend to the dignity interest of the accused, an interest at the heart of post-World War II jurisprudence: … No less important is the function of explaining to the Crown and to the victims of crime why a conviction was or was not entered.
Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. ….
Reasons permit effective appellate review. A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same time inhibiting appeal courts from making factual determinations "from the lifeless transcript of evidence, with the increased risk of factual error": … Likewise, appellate review for an error of law will be greatly aided where the trial judge has articulated her understanding of the legal principles governing the outcome of the case. Moreover, parties and lawyers rely on reasons in order to decide whether an appeal is warranted and, if so, on what grounds.
[12] In addition, reasons help ensure fair and accurate decision making; the task of articulating the reasons directs the judge's attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law. …
[13] … Sheppard acknowledged the constraints of time and the general press of business in criminal trial courts and affirmed that the degree of detail required may vary with the circumstances and the completeness of the record.
[17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. …
[18] Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. …
[54] Reasons are to be read as a whole, in the context of the trial evidence, issues and arguments on appeal together with an appreciation of the purposes and functions for which they are delivered, and not piecemeal: R. v. S.B.1, 2018 ONCA 807, at para. 48.
[55] I would not give effect to this ground on appeal for two reasons. First, in trial submissions defence counsel stated “In regards to who could be seen at the specific area, in regards to the box, obviously this is not a major issue in the case but the fact that both witnesses said zero, I would submit to the court is patently unreasonable …”
[56] Second, it was open to His Honour to find that people working on assembly lines would be preoccupied with their work instead of looking around the work area. The altercation was brief and the one punch was not an overhand one.
Did the trial judge subject the Crown and defence evidence to different levels of scrutiny?
[57] The appellant submits that His Honour applied different levels of scrutiny to the Crown and defence evidence. He was more forgiving of the Crown’s witnesses’ inconsistencies and manner of testifying than he was of the defence witnesses. In particular, the appellant contends that both Gallagher and Lavosky were evasive during cross-examination, Gallagher assessed time relative to the Ford plant’s daily cadence instead of date-specific recollections, Gallagher said he recovered in 5 to 10 minutes while Lavosky said it was 2 minutes, and despite noting Lavosky was biased against the appellant, His Honour accepted his evidence. He failed to consider Gallagher’s differing accounts for why he was stationed at his old post at the time. The trial judge accepted Gallagher’s explanation for providing different times in his initial statement and trial evidence. Finally, His Honour applied uneven scrutiny by failing to find the difference as to whether their noses touched was significant.
[58] On the other hand, when His Honour assessed the defence evidence, he drew an adverse inference because the appellant said Greco told him of the incident when Greco did not recall doing so. The trial judge found the appellant was evasive and drew an adverse inference in regards to his credibility, commented adversely on the three defence witnesses because they assessed time according to the Ford plant’s cadence when Gallagher did the same and drew an adverse inference because Greco, Chatten and the appellant were friends when Greco said he was a closer friend to Gallagher. He noted the defence witnesses were complimentary of Gallagher’s work, finding it bolstered his credibility. His Honour drew an adverse inference against Chatten because he told Gallagher to “let it go” rather than Chatten’s evidence that it would be in Gallagher’s best interest to move on. Finally, he drew an adverse inference against Chatten when there was a discrepancy between his police statement and his testimony and not accepting his explanation.
[59] The Crown submits that the Reasons do not reflect uneven scrutiny, contending the appellant seeks to have this court retry the case.
Analysis
[60] The Court of Appeal recently addressed this ground of appeal in R. v. Radcliffe, 2017 ONCA 176, as follows:
23 … this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.
24 Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.
25 Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.
26 Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.
[61] Further, in R. v. Gravesande, 2015 ONCA 774, the Court of Appeal held:
[19] For an appellant to successfully advance this ground of appeal, she must identify something clear in the trial judge's reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge's credibility assessments: R. v. Howe (2005), 192 C.C.C. (3d) 480 at para. 59 (Ont. C.A.); R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 98.
[43] Even if the evidence was capable of supporting a conviction, where the trial judge has applied different standards to the assessment of prosecution and defence evidence the appellant has not received a fair trial, and thus has been the victim of a miscarriage of justice: R. v. T. (T.), [2009] O.J. No. 3388, 2009 ONCA 613, 68 C.R. (6th) 1.
[62] There are portions of the reasons where it is arguable a different level of scrutiny was applied. For example, that a witness said Gallagher was a good worker enhanced Gallagher’s credibility is difficult to see. The comparison of Greco and Chatten’s opening email paragraphs shows that they had similarities but were not identical as the Crown suggested nor is it clear what they were told before they prepared their statements. The more relevant content would have been their accounts of the day which were never mentioned. It is difficult to see how Greco and Chatten could be criticized for references to the cadence at the plant when that is how Gallagher testified. Finally, that the three defence witnesses were friends had to be put in the context that Greco said he was better friends with Gallagher than the appellant.
[63] However, I find from reading the Reasons as a whole that this ground of appeal has not been established because the areas noted are not such as to displace the deference owed to credibility assessments. An appellate court cannot retry the case. His Honour had the advantage of seeing and hearing the witnesses. For example, His Honour identified the problem with Lavosky’s bias but found he was able to accept the critical portions of his evidence. A trier of fact can even accept all, part or none of Vetrovic witness’ evidence. That a witness exhibited bias does not preclude a trier of fact from accepting portions of their evidence. Individually or cumulatively, the areas advanced are not such as to displace deference.
Did the trial judge misapprehend the contents of the medical reports and misuse the contents in finding the records confirmed Gallagher’s injury?
[64] The Crown filed five pages of notes from the Niagara Health System, Emergency Department dated May 2, 2016. They include notes of what Gallagher said happened. There are largely illegible hand-written notes and a typed summary on the third page that states:
Was hit in left testicle on April 24th. Having difficulty urinating. Reports hematuria. Pt feels stressed, as this was an assault by a coworker. Pt states there is no swelling, but states testicle is “going back inside” reporting pain in left groin.
[65] Two pages were also filed from the Adult Emergency Nursing Record. They include hand-written notes summarizing what Gallagher told the nurse occurred.
[66] Finally, the records included a report of an ultrasound of Gallagher’s scrotal noting “testicles are symmetrical with respect to overall size and shape and have preserved vascularity. No solid intra or extra-testicular lesion identified. There is a one centimetre epididymal cyst. No hydrocele.”
[67] While the trial judge found the medical records confirmed Gallagher suffered an injury to his left testicle, the appellant submits the records did not do so. The trial judge misused the medical report by finding it supported Gallagher’s account.
[68] In addition, the appellant pointed to evidence whereby the appellant provided alternative explanations for the symptoms noted in the medical records. The other explanations cast doubt on the issue of bodily harm. The trial judge never addressed this issue.
[69] The Crown submits there was no error. He argues that there was never an issue that Gallagher had an injury to his testicle. The defence argument was that there were other explanations for the injury. The respondent argues that this is a new issue that was never raised at trial and ought not to be permitted on appeal.
[70] When asked to comment on His Honour’s finding the report was of “an injury” and that it confirmed Gallagher’s injury, Mr. Khoorshed replied he did not think he could assist further, it appeared “symptoms” and “injuries” were used interchangeably at the trial.
[71] The trial Crown argued that in assessing the evidence, “you have the medical records in support of Mr. Gallagher attending at the emergency room on May 2, 2016” and continued:
You have the testimony of him, with respect to the injury that he did not have prior to April 25, 2016. There was no expert evidence called to suggest that this could have been caused by another condition, and in my submission Your Honour can’t take judicial notice of these other conditions that Mr. Gallagher may have had, leading up to the incident. But Your Honour can draw the inference that Mr. Gallagher didn’t have blood in his urine, as he told you, prior to April 25, 2016, that he did have it for the days that followed, and eventually that did resolve itself, and he still has to address any potential lasting effects by seeking medical attention.
Analysis
[72] The appellant contends the trial judge misapprehended the medical evidence. 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 SCC 40, [2011] 3 S.C.R. 3, at para. 56.
[73] The trial judge was required to determine if the Crown had established beyond a reasonable doubt that:
- Gallagher had been assaulted,
- the appellant assaulted him, and
- the assault caused Gallagher bodily harm.
[74] If the medical records “confirmed the injury” they supported Gallagher’s evidence that he received bodily harm and that he was assaulted.
[75] I agree with the appellant that the trial judge misapprehended and misused the medical report by finding the records confirmed that Gallagher had an injury. The trial judge never referred to the records as showing symptoms. His references were to injuries. With regards to the inadequate reasons ground of appeal, the trial judge never addressed the alternative explanation for the symptoms.
[76] The records note symptoms, they do not confirm an injury. With one exception to which I will return, there is nothing in the notes from which it could be concluded Gallagher had an injury, let alone that the doctor confirmed an injury. That would have been very significant evidence, had there been independent evidence of an injury as opposed to another medical finding. It would have confirmed an assault and bodily harm, two of the three elements of the offence.
[77] Indeed, twice in the respondent’s factum, the same mistake was made when dealing with the uneven scrutiny and inadequacy of reasons issues – “Hospital records were filed by the Crown that confirmed that the complainant had suffered an injury to his left testicle” and “The fact of the testicular injury was corroborative of the Complainant’s version, but not the Appellant’s version.” The hospital records did neither.
[78] The trial judge noted the medical records confirm that Mr. Gallagher suffered and injury and that was his complaint. The only exception to the above analysis is if what Gallagher told the medical staff could confirm what occurred, that the notations of his account were admissible for their truth. They were not. As the Court of Appeal held in R. v. M.P., 2018 ONCA 608, at paras. 77 and 70:
As a general rule, prior consistent statements of a witness in a criminal case are inadmissible. They lack probative value. They are self-serving. They are easily fabricated. They are redundant. Their repetition before the trier of fact is capable of working significant prejudice: [citations omitted]
The prohibition is against use of the statement as proof of the truth of its contents: J.(M.A.), at para. 47; F(J.E.), at p. 476.
[79] A prior consistent statement is not admissible to enhance the credibility of a witness. That a witness told twenty people the same account is irrelevant, absent an allegation of recent fabrication that was not present here.
[80] The respondent misapprehends the issues at trial asserting that the fact Gallagher had an injury was never in dispute. It is difficult to see how it was conceded that Gallagher was injured from an assault when trial counsel cross-examined Gallagher about his medical conditions suggesting the symptoms noted on the medical report were from those conditions and not the result of an injury from an assault. Trial Crown counsel and the respondent on the appeal proceed on the basis the reports support Mr. Gallagher’s evidence and that he had an injury. They do not.
[81] I am persuaded that the trial judge erred in misapprehending the effect of the medical records. It was a significant finding that the records confirmed an injury because it also supported that he was assaulted.
[82] I would allow the appeal on this ground alone.
Conclusion
[83] The appeal is allowed, the finding of guilt quashed and a new trial ordered.
[84] The appellant is ordered to appear on Tuesday, November 27, 2018 at Milton Ontario Court of Justice, Courtroom #9 at 9:00 a.m.
DURNO, J. Released: November 13, 2018
Footnote
[^1]: In his police statement Gallagher said they were “almost nose-to-nose.”