Court File and Parties
Court File No.: CR-18-10000020-00AP Date: 2019-02-14 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Afeez Fagbola, Appellant
Counsel: K. Lockhart, for the Respondent P. Balasundaram, for the Appellant
Heard: February 12, 2019.
Reasons for Decision
On appeal from the convictions entered by the Honourable Justice L. Chapin of the Ontario Court of Justice on October 4, 2017.
SCHRECK J.:
[1] Afeez Fagbola’s common law spouse alleged that he assaulted her twice. He denied this. Following a three-day trial in the Ontario Court of Justice at which Mr. Fagbola and his spouse both testified, he was found guilty on two counts of assault. He appeals his convictions on three grounds: (1) the numerous interventions by the trial judge rendered the trial unfair; (2) the trial judge failed to give adequate reasons; and (3) the trial judge subjected the appellant’s evidence to a greater degree of scrutiny than she did the evidence of the complainant.
[2] For the following reasons, the appeal is dismissed. The interventions by the trial judge, while numerous, were necessary to ensure that she understood the appellant’s evidence. The trial judge’s reasons were more than sufficiently detailed to enable appellate review. The appellant’s real complaint appears to be that the trial judge’s reasons for rejecting his evidence were flawed. I was able to and did review the reasons to assess the validity of these complaints. Apart from two minor issues which had no effect on the verdict, the trial judge’s findings are amply supported by the evidence. Finally, there is nothing in the reasons to indicate that the trial judge gave uneven scrutiny to the appellant’s and the complainant’s evidence.
I. Evidence
A. The Complainant’s Account
[3] The appellant and the complainant were in a common law relationship and had three children together. In the period leading up to the alleged assaults, the relationship had begun to deteriorate, at least partly because the complainant suspected that the appellant had been romantically involved with other women.
[4] The complainant testified that on March 9, 2016, she looked at the appellant’s phone without his knowledge and discovered a text message from a woman in Nigeria. The complainant communicated with the woman while pretending to be the appellant, and as a result became suspicious that the appellant had a child with her.
[5] The complainant confronted the appellant with her suspicions and an argument ensued. According to the complainant, the appellant slapped her on the side of her face and then dragged her off the couch she had been lying on. The complainant then packed a bag and left the house. As she did so, the appellant followed her and attempted to drag her back into the house. A passerby intervened, at which point the complainant ran away. From there, she went to a shelter.
B. The Appellant’s Account
[6] The appellant testified to a different version of events. According to him, earlier that evening the complainant had approached him while holding a broom and had accused him of having AIDS. He did not respond to the allegation and went to bed. He was woken up at around 2:00 a.m. to find the complainant hitting him on the back. She accused him of having secret children with another woman.
[7] The appellant and the complainant both went downstairs, where he asked her what she was talking about. She stood on the couch, jumping up and down and yelling at him. At this point, the appellant picked up his phone and noticed that the complainant had been having a text conversation with a family friend in Nigeria. The complainant continued to yell at him and tried to jump on him. Eventually, she left the house. The appellant went after her, but then returned home as he did not want to leave the children alone in the house. He denied assaulting the complainant in any way.
II. Analysis
A. Interventions by the Trial Judge
(i) Overview
[8] According to the appellant, the trial judge interrupted his testimony approximately 496 times. While he accepts that the trial judge was well-meaning, he submits that these interventions compromised the fairness of the trial by interfering with his right to be heard and preventing him from meaningfully expressing himself.
[9] I have reviewed the trial transcript. While I did not count the interventions, I have no reason to doubt the appellant’s assertion that there were approximately 496 of them. It is clear that the trial judge, the court reporter and, to a lesser extent, both counsel interrupted the appellant on numerous occasions to express concern about an inability to understand what he was saying and to ask him to repeat himself or slow down his speech. It would appear from the transcript that the appellant, who is from Nigeria, speaks English with an accent and stammers. The possibility of a Yoruba interpreter was discussed, however, the appellant advised the court that while he speaks Yoruba, he does not understand it properly. There was no indication that the appellant was able to speak or understand any other language.
(ii) The Law
[10] That interventions by a trial judge can compromise the fairness of a trial is well established: R. v. Hungwe, 2018 ONCA 456, 142 O.R. (3d) 22, at paras. 39-46; R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at paras. 61-72; R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at pp. 230-232. In most cases, however, the concern is whether the trial judge’s interventions create an appearance that he or she has placed his or her authority on the side of the prosecution: Hungwe, at para. 49; Stucky, at para. 84; Valley, at p. 231; Stucky, at para. 84; R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at para. 105.
[11] A review of the caselaw in this area reveals that while the number of interventions is relevant, the central focus on appellate review will be on the nature of the interventions. As was recently explained in Hungwe, at para. 40, some types of questions are entirely appropriate while others are not:
There is no doubt that a trial judge is entitled to ask a witness questions. However, the right to ask questions must be exercised with great caution, especially in a jury trial. Questions to clarify a point, or to ask that an answer be repeated, or the like, are all proper questions. Questions that suggest that the judge favours one side or the other are not.
(iii) Application to This Case
[12] All of the interventions in this case fall into the former category identified in Hungwe. At no point did the trial judge say anything that would suggest that she favoured one side over the other. The appellant accepts this, but submits that the sheer number of the interventions compromised the appearance of fairness. In support of this submission, he points to several authorities which suggest that interventions which prevent an accused from “telling his story in his own way” can compromise the fairness of the trial: Valley, at p. 231; R. v. Lahouri, 2013 ONSC 2085, 280 C.R.R. (2d) 249, at para. 9; [R. v. Adano, [2008] O.J. No. 1995 (S.C.J.), at para. 24](R. v. Adano, [2008] O.J. No. 1995 (S.C.J.)).
[13] I do not read the cases the appellant relies on as supporting the proposition that the sheer number of interventions by a trial judge can result in an unfair trial where those interventions are otherwise unobjectionable. Rather, fairness will be compromised only where the trial judge’s interference with the accused’s ability to “tell his story” leads to the appearance that the judge has aligned him or herself with the prosecution. For example, in Adano, the trial judge not only interrupted the accused’s evidence, he effectively took over both the examination-in-chief and the cross-examination: Adano, at paras. 31-32.
[14] I do not see how the trial judge could have conducted the trial differently. It was imperative that she properly understand the appellant’s evidence, and she took the steps she felt were necessary to ensure that she did. While it was unfortunate that this resulted in numerous interruptions, there was no other alternative. I would not give effect to this ground of appeal.
B. Sufficiency of Reasons
(i) Overview – The Real Complaint
[15] The appellant submits that the trial judge’s reasons were insufficient in that the she failed to explain why she did not find the appellant to be a credible witness. I do not agree. The trial judge explained in considerable detail her reasons for rejecting his evidence. Her reasons allowed for appellate review and as will be seen, were subjected to such review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 57.
[16] During oral argument, it became clear that the appellant’s real complaint was not that the trial judge’s reasons for rejecting his evidence were insufficient, but that they were flawed and based on misapprehensions of the evidence. The trial judge gave several reasons why she did not believe the appellant, all of which made reference to the evidence. In some cases, she referenced particular pages in the transcript. As a result, I was able to and did review the record in order to assess whether her reasons were supported by the record and whether they reflected any misapprehension of the evidence.
[17] The trial judge gave seven reasons for why she did not believe the appellant’s evidence and why it did not leave her with a reasonable doubt. To evaluate the appellant’s submissions, I will consider each in turn.
(ii) The Trial Judge’s Reasons for Rejecting the Appellant’s Evidence
(a) The Appellant’s Evidence Respecting the Peace Bond
[18] The first reason the trial judge gave for rejecting the appellant’s evidence was in relation to his evidence about a peace bond he had signed when an earlier assault charge against him was withdrawn. He testified that he did not understand what the peace bond was and would not have signed it if he had. The trial judge stated (at p. 14):
Mr. Fagbola’s claim that he wasn’t aware of what a peace bond was is not credible in my view. He was represented by counsel and the matter was before the court. He is obviously an intelligent person who has completed a number of different training courses and to suggest that he would sign a peace bond without understanding what it was doesn’t make sense.
[19] The trial judge observed the appellant testify and was aware of his background and based on that, concluded that he was not the type of person who would sign a peace bond without understanding what it was. It was open to the trial judge to come to this conclusion.
(b) Unresponsiveness
[20] The second reason for rejecting the appellant’s testimony given by the trial judge was her view that he was unresponsive to questions in cross-examination. She provided examples, together with page references from the trial transcript. I have reviewed those portions of the transcript and in my view, the trial judge’s characterization of the appellant’s testimony is not inaccurate.
(c) The Appellant’s Denial of Anger
[21] The trial judge also referred to the appellant’s evidence that he was never angry with the complainant because he understood her state of mind. In the trial judge’s view, this assertion was contrary to common sense. I agree.
(d) The Appellant’s Evidence About His Children
[22] The next reason given by the trial judge related to the appellant’s evidence about his children. He had suggested in his testimony that the children had been injured while in the care of the complainant. The trial judge stated (at p. 16):
His evidence that the children were unsafe when they were with Ms. Mighty was also not credible. When the Crown suggested that children sometimes fell down after he testified about the cut his middle child had suggested when he was with Ms. Mighty, he went to great lengths to say that they had never fallen down when he was with them, at Page 66 of the transcript. Anyone who has children would know that this is not a reasonable assertion.
[23] It appears that the trial judge may have misapprehended the appellant’s evidence on this point. While he initially said that his children had never fallen down, he quickly qualified this:
Q. Well, sometimes children fall down, don’t they? They play, they fall down, they cut themselves?
A. I’ve been (unintelligible) from day one of their life, of their life, and they never fall down, if they fall down I make sure I clear all the paths, all the toys, or all the dangerous thing that can actually dangerous them – endanger them in their life in their house. I cleared, I cleared the (unintelligible) away from them.
The appellant was undoubtedly trying to portray himself as a better parent than the complainant, and his answer was somewhat unresponsive. However, it cannot be said that “he went to great lengths to say that they had never fallen down”, only that he cleared away their toys when they fell and that he attempted to create a safe environment. The impact of this misapprehension, if such it was, is discussed below.
(e) The Appellant’s Claim of Forced Sex
[24] The appellant had testified that the complainant had forced him to have sex with her. The trial judge found this claim not to be believable in light of their relative sizes. It was open to her to reach that conclusion.
(f) The Appellant’s Testimony That the Complainant Stood on the Couch
[25] The trial judge also gave the following reason for disbelieving the appellant (at p. 16):
Mr. Fagbola’s account of the events on March 9th, 2016 were also not credible in my view. In denying that he ever dragged Ms. Mighty off the couch he said that she was never lying down on the couch but was standing on it. This evidence doesn’t make sense.
[26] With respect, I am not sure what about this evidence does not make sense. Counsel for the respondent submitted that based on her experience, it was open to the trial judge to conclude that people do not stand on couches. I do not agree. While it may be unusual for a person to stand on a couch, it is not so inherently unlikely that it can be said to “not make sense”. To be clear, it was open to the trial judge to disbelieve this part of the appellant’s evidence, but not solely on the basis that it did not “make sense”. In my view, saying that evidence is rejected because it “does not make sense” without further explanation is a practice best avoided.
(g) The Complainant’s Motive to Fabricate
[27] The last reason given by the trial judge for disbelieving the appellant was as follows (at pp. 16-17):
I also found that his suggestion that her motive to fabricate a story doesn’t make sense. He claimed that she was making up the entire incident in an attempt to secure government housing. This doesn’t make sense given that they already had a three-bedroom apartment and she was on the lease.
[28] In his final submissions, defence counsel at trial (not Mr. Balasundaram) spent considerable time developing the theory that the complainant fabricated her allegations in order to obtain government housing. While not entirely clear, counsel’s position appears to have been that the complainant wanted to obtain some type of low-cost housing, so the fact that she already had housing would not necessarily have meant that she did not have such a motive. However, considering all of the evidence, it was in my view open to the trial judge to conclude that the appellant’s suggestion that the complainant had such a motive was not credible.
(iii) Conclusion
[29] Aside from some minor concerns about the appellant’s testimony about whether his children had ever fallen and whether the complainant had stood on the couch, the trial judge’s reasons for rejecting the appellant’s evidence were supported by the evidence. If there was any misapprehension of evidence, in my view it had no impact on the verdict: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2.
[30] As can be seen, the trial judge’s reasons were amply sufficient to allow for appellate review. I would not give effect to this ground of appeal.
C. Uneven Scrutiny
[31] The appellant submits that the trial judge applied his evidence to greater scrutiny than she did the evidence of the complainant. As has been observed, this is a difficult argument to make successfully: R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at para. 26: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39. What an appellant must show to succeed on such an argument was outlined in Chanmany, at paras. 27-28:
An appellant who advances an “uneven scrutiny” argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment: Howe, at para. 59.
See also R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at par. 19.
[32] In this case, the appellant points to the trial judge’s finding that his testimony was often unresponsive to questions in cross-examination and submits that the complainant was also unresponsive at times. In support of this submission, the appellant points to a portion of the transcript where the complainant initially refused to read out loud from an anniversary card she had given to the appellant, although she did so when ordered to by the trial judge.
[33] In my view, it was open to the trial judge on this record to conclude that the appellant was “often unresponsive” while the complainant was not. It is not at all clear to me what utility there was in having the complainant read out loud from a card that had already been tendered in evidence. The fact that the trial judge did not draw an adverse inference from her understandable reluctance to do so does not demonstrate that she subjected the appellant’s and the complainant’s testimony to differing levels of scrutiny. I would not give effect to this ground of appeal.
III. Disposition
[34] The appeal is dismissed.
Justice P.A. Schreck