Court File No.: SCA(P) 879/18 Date: 2018-11-14

Ontario

Superior Court of Justice

Summary Conviction Appeal Court

Between:

Her Majesty The Queen D. Galluzzo, for the Respondent Respondent

• and -

Christopher Yong M. Halfyard, for the Appellant Appellant

Heard: September 21, 2018, at Brampton

Reasons for Judgment

[On appeal from the conviction of Kastner J. on January 9, 2018]

André J.

[1] Mr. Yong appeals his January 9, 2018 conviction of assault following a trial in the Ontario Court of Justice before Justice Nancy Kastner. He advances three grounds of appeal namely:

(1) The learned trial judge erred in taking judicial notice of the nature of a bruise on the complainant’s shoulder, (2) The learned trial judge erred in her assessment of the evidence of the investigating officer; and (3) The learned trial judge misapprehended the Crown’s evidence.

[2] The Crown submits that the trial judge did not commit any error in her decision.

Summary of Trial Evidence

[3] The complainant and Mr. Yong worked together in a machine shop in Brampton where roofing shingles from hot asphalt and rock granules were made. Given the hazardous nature of their work, the company’s employees were required to wear protective clothing, gloves and goggles during the course of their employment.

[4] On November 13, 2016, at approximately 1:45 a.m. Mr. Yong and Mr. Masongsong were working the same work shift. At one point, Mr. Yong contacted Mr. Masongsong over his two way radio and insinuated that the complainant had been sleeping on the job. The men came face to face and an argument ensued. Mr. Masongsong testified that Mr. Yong pushed him with his open hands and struck his lip causing a cut inside his mouth. Mr. Yong then pushed him in the chest, causing him to hit his right shoulder on a steel cylinder. He suffered swelling and bruising in his right shoulder as a result. Mr. Yong then pulled out his “sliding knife”, gestured Mr. Masongsong’s direction and then strode away.

[5] Mr. Masongsong testified that he showed his injuries to Cst. Vasquez, the investigating officer, on November 14, 2018. Cst. Vasquez, however, testified that he never observed any injuries on the complainant’s lip or shoulder nor did Mr. Masongsong show him any injuries. The officer testified that he made no note of the complainant mentioning a knife to him, contrary to Mr. Masongsong’s testimony to that effect.

[6] Mr. Masongsong’s wife testified that she photographed her husband’s injuries on November 15, 2016 and provided them to the police on January 8, 2018, on the first day of trial.

[7] Mr. Yong denied assaulting Mr. Masongsong or displaying a knife to him. He maintained that the complainant had fabricated the incident because of a prior verbal altercation between another worker and Mr. Yong. Mr. Yong testified that Mr. Masongsong and this worker were extremely close friends and that Mr. Masongsong was getting back at him because of this prior incident. Mr. Masongsong, under cross-examination, denied any knowledge of this prior incident.

Trial Judge’s Decision

[8] Justice Kastner found that the Crown has proven Mr. Yong’s guilt of assault beyond a reasonable doubt. Regarding Mr. Masongsong’s evidence, she concluded at page 17 of her “Reasons for Judgment” that:

I found the complainant believable in how he gave his evidence and the consistency of it. I observed him when it was suggested that an incident occurred on November 12 with another Filipino worker, Felipe, and his surprise appeared genuine. He said he did not know anything about it and it makes sense that he would not, given the fact that Felipe works in an entirely different area of the plant from him.

In cross-examination, I note it was suggested that he was there for the incident, which would be highly unlikely because he worked in the mixing room and Felipe works at the end of the line and he is not even in vision. Then when the defendant testified, he said that it was at the end of the shift and they were talking about it. It appears to a positional change as to when it would be that Mr. Masongsong would have any knowledge of this. In addition, the defendant has no idea what they do say to each other because they speak Tagalog.

It appears convenient to have this story about November the 12th to explain away why there was a confrontation on November 13th. Because otherwise it appeared that they got along together as workers for a significant period of time prior to this episode on November 13th.

[9] Justice Kastner further noted, at pages 18 and 19, that:

The complainant is also corroborated, in part, by the defendant, including the fact of their prior good relationship and importantly on the sarcastic and aggressive tone to the defendant’s conversation with him on the radio by telling him to wake up. Telling him “is it top secret?” the information. It is clear to me that he was either trying to provoke Mr. Masongsong or he was trying to make trouble on the air for all to hear, to make trouble for him for some reason.

[10] Regarding Cst. Vasquez’s testimony, Justice Kastner noted the following, at page 18 of her “Reasons for Judgment”:

I did not find the officer reliable on this point (i.e. whether Mr. Masongsong told him about a knife). He said there was a brief conversation and he jotted a few notes. He cannot remember, at this point, but he thinks it would be in his notes if it was said. But it is not an oral statement per se of the complainant, it is just the officer’s interpretation of what he was told. I accept that the explanation of the complainant that he did tell the officer and the officer failed to note it. Also, the officer never asked if he was injured to show him the injuries. He never offered to take photographs. The complainant told him of photos and the officer never asked to see them. It was clear that the officer approached this matter as a workplace scuffle and his investigation was not as thorough as it might otherwise be.

[11] Concerning Mr. Yong’s evidence, the trial judge concluded at page 19 of her “Reasons for Judgment” that Mr. Yong’s evidence “appeared rehearsed”, “contrived” and that some parts of his evidence “did not make sense”. She explained why she came to these conclusions at page 20 of her “Reasons for Judgment”:

I reject the defendant’s evidence. It does not leave the Court in a state of reasonable doubt. This is not a strictly he said/he said because there is corroboration of the injury. It is unexplained by any other cause, but there is no burden on Mr. Yong to establish that. But the only explanation for the injury that is likely is the evidence of the complainant. This is not a case of preferring one over the other. I am satisfied beyond a reasonable doubt on the evidence of Mr. Masongsong that Mr. Yong did push him in the lips and then pushed his shoulder which caused him to fall into a cylinder and caused him to fall to the floor.

Analysis

[12] This appeal raises the following issues:

1. What is the appropriate standard of review?
2. Did the trial judge err in taking judicial notice of the nature of the bruise on the complainant’s right shoulder?
3. Did the trial judge err in her analysis of Cst. Vasquez’s evidence concerning whether the complainant told him that Mr. Yong had brandished a knife following the alleged assault?
4. Did the trial judge misapprehend the evidence?

What is the appropriate standard of review?

[13] The standard of review for factual findings of a trial judge is deference absent palpable and overriding error: R. v. R.E.M., 2008 SCC 51, at para. 49; R. v. Cresswell, 2009 ONCA 95, at para. 14. The standard of review for a trial judge’s legal findings is one of correctness.

[14] In Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.), at paras. 296-297 (leave to appeal to the SCC refused [2004] S.C.C.A. No. 291), the Court of Appeal described a “palpable” error as one that is obvious, and plain to see. An “overriding” error is one that goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error.

Did the trial judge err in taking judicial notice of the nature of the bruise on Mr. Masongsong’s right shoulder?

[15] The appellant abandoned this ground of appeal based on the recent Court of Appeal decision in R. v. Theoret, 2018 ONCA 700, at paras. 8-9.

Did the trial judge err in her analysis of Cst. Vasquez’s evidence concerning whether the complainant advised him that the appellant had brandished a knife following the alleged assault?

[16] The appellant submits that there were major inconsistencies in the testimony of Mr. Masongsong and that of Cst. Vasquez. These include the following:

1. Mr. Masongsong testified that he showed the officer his injuries while the officer testified that Mr. Masongsong never showed him any injuries; and
2. Mr. Masongsong testified that he told Cst. Vasquez that Mr. Yong had brandished a knife while the officer testified that had that been the case, he would have made a note about it.

[17] It was open to the trial judge to find that Cst. Vasquez’s evidence regarding the knife and of being shown Mr. Masongsong’s injuries was unreliable. She partly based that conclusion on the fact that the officer did not record Mr. Masongsong’s statement verbatim. As a result, she could not rely on the officer’s testimony that he had not seen Mr. Masongsong’s injuries neither was he shown a knife. While I may have arrived at a different conclusion concerning the reliability of Cst. Vasquez’s evidence, the trial judge’s assessment of the officer’s evidence is entitled to deference. Accordingly, this ground of appeal fails.

Did the trial judge misapprehend the evidence?

[18] The appellant maintains that the trial judge misapprehended the evidence in two ways, namely:

(i) She erred in finding that the complainant showed Cst. Vasquez photographs of his shoulder and lip injuries that were entered into evidence; (ii) She erred in finding it very unlikely that the complainant would have gotten bruised on the job, because he worked in the mixing room that was not part of the line. In this regard, Kastner J. concluded that “there is no indication as to why it would be that Mr. Masongsong would be injured anywhere else when his job was in the mixing room which is cordoned off from the rest of the line.” The appellant submits that this conclusion is inconsistent with Mr. Masongsong’s testimony that during the course of his employment, he periodically suffered bruises. (Transcript of the Evidence, January 8, 2018, page 28)

Did the trial judge misapprehend the evidence that Mr. Masongsong showed Cst. Vasquez photographs of his injuries?

[19] It appears that she did. Mr. Masongsong testified that he showed the officer his injuries, rather than photographs of them. Indeed, the trial evidence indicates that photographs of the injuries were only disclosed to the Crown and defence on the very morning of the trial.

Did the trial judge misapprehend the evidence regarding the likelihood that Mr. Masongsong would have gotten bruised on the job given the area where he worked?

[20] Mr. Masongsong testified that during the course of his employment he suffered minor injuries such as asphalt burns, bumps and bruises. The trial evidence on this issue does not support the trial judge’s conclusion that it was very unlikely for Mr. Masongsong to have gotten bruised on the job because of the location where he worked.

[21] In what circumstances would a misapprehension of the evidence amount to reversible error? In R. v. Morrissey (1995), 97 C.C.C. (3d) (Ont. C.A.), at para. 93, the Court of Appeal noted that:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

(see also R. v. Campbell, 2018 ONCA 205, at para. 25; R. v. CB, 2017 ONCA 862, at paras. 42-44.)

Did the misapprehension of parts of the evidence play an essential part in the reasoning process, thereby constituting reversible error?

[22] It was open to the trial judge to reject the appellant’s evidence. However, the trial judge downplayed the fact that Cst. Vasquez’s evidence was in serious conflict with that of Mr. Masongsong. More problematic, she relied on a misapprehension of the evidence to conclude that Cst. Vasquez had conducted a shoddy investigation and to that extent, his testimony was unreliable. Additionally, the trial judge concluded that “the only explanation for the injury that is likely is the evidence of the complainant.” Significantly, Mr. Masongsong testified that he had suffered bruising in the workplace which was not caused by any assaultive behaviour by the appellant.

[23] The trial judge’s misapprehension of the evidence therefore played a role in her acceptance of Mr. Masongsong’s evidence and ultimately, in her decision to convict the appellant. To that extent, the appellant has not received a fair trial and was the victim of a miscarriage of justice.

Conclusion

[24] The appeal is allowed and the conviction is set aside. A new trial is ordered. The matter is remanded to December 4, 2018, at 9:00 a.m., courtroom 104 in the Ontario Court of Justice.

André J.

Released: November 14, 2018