Court File and Parties

COURT FILE NO.: CR-18-0047-AP DATE: 2019-01-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN T. Boisvert, for the Crown (Respondent) Respondent

- and -

NEIL ROBERT KEEFE J. Lisowski, for the Accused (Appellant) Accused (Appellant)

HEARD: November 20, 2018, at Thunder Bay, Ontario Mr. Justice T. A. Platana

Decision on Summary Conviction Appeal

1The appellant, Neil Robert Keefe, was charged on one count of assault and two counts of theft under $5,000. After a one-day trial, the appellant was acquitted of both theft counts and convicted for the one count of assault.

2The Crown’s case consisted of the evidence of the complainant, Rebecca Cooke. She alleged that the appellant had assaulted her during the course of a heated argument on October 2, 2017, in the house they both shared. The complainant further alleged that, when the appellant exited the house, he took a cell phone and a bicycle, both of which the complainant claimed she owned. The appellant denied the various allegations of assault and raised self-defence as it related to any contact made by him. The appellant also denied stealing the bicycle or cell phone, claiming colour of right to those items.

Issues on Appeal

3The appellant appeals the conviction of assault. The Notice of Appeal states two grounds of appeal:

1. The learned trial judge failed to properly apply the three part test as set out in R. v. W.(D.), [1991] 1 S.C.R. 742, by failing to address step two and three of the test and making a finding of guilt based on accepting the testimony of the complainant over the appellant; and,

2. The trial judge committed an error in law by declining/failing to engage in a proper analysis of self-defence despite an air of reality being established.

Summary of the Evidence

The Complainant

4The complainant testified that an argument developed between her and the appellant when she found messages on his cellphone related to drug use. She was yelling at him and telling him to leave. She states that at this time they were upstairs in their residence. They went downstairs, and she continued to tell him to leave. He then went upstairs, and she followed from behind. She went to get by him on the stairs. He pushed her, and she fell down the stairs.

5The incident continued in the downstairs area, and she stated that, at one time, the appellant pushed his fingers into her eyes. She disagreed that this may have been accidental.

6He then went back upstairs and left the residence.

The Appellant

7The appellant stated that he remembers different parts of the incident, but not the order in which they occurred.

8The appellant’s evidence is that he had been downstairs on the morning of the incident. He went into the bedroom and picked up his and the complaint’s child. The complainant had been sleeping, but woke up and eventually went upstairs. As the appellant went upstairs, the complainant was angry and yelling at him while reading his phone. She was yelling at him to “get out.”

9While the appellant was going upstairs, his evidence is that the complainant punched him in the face. He testified that, at the landing area of the steps, she tried to pull the child away from him, stumbled backwards, but did not fall down the stairs. He stated that he put the child down and went to find his shoes to leave. The complainant was still screaming at him to get out.

10The appellant also described an incident outside. While he was trying to take a bicycle, the complainant was pulling it from him, scratching and pulling at his face and neck. He stated that, he let go of the bicycle, and she fell back.

11He testified that, when they were both downstairs, he tried to lock himself in the laundry room. He stated that at one point he opened the door and she “kinda yanked on my hair.” He says he tried to get her off and held his hands out in front of him at shoulder to head height. She said, “you poked my eyes,” and then she punched him. In cross-examination, he stated this was the first punch. He could not relate when in the sequence of the incident this happened.

12His evidence is that both he and the complainant had been using Ritalin. He did not see her using it that day, but said he saw her using the night before. He stated in cross-examination that he knew she was using on the day this incident happened “by the way she wouldn’t sleep for days.” She denies using Ritalin that day.

13He acknowledged in cross-examination that he does not know if he touched her at any time. He thinks she may have been poked in the eye when he was trying to prevent her from pulling his hair in the laundry room. He stated that he “didn’t lay a hand on her,” and “at no time did I hit her.” When the Crown suggested to him that he lost control and pushed her down the stairs when she was yelling at him because of the phone message, he testified that he “doesn’t recall her going down the stairs at all.”

The Trial Judge’s Reasons

14In reasons given orally, the trial judge stated:

With respect to the assault I do find that the Crown has met its onus of proving beyond a reasonable doubt that the assault occurred. [The] Crown has not met its onus of proving beyond a reasonable doubt that the phone was in fact stolen.

In this case when I consider the R. v. (W.) D factors given the fact that I find that I have to consider the evidence that was provided by Mr. Keefe. The step one if I believe his testimony of the accused that he did not commit the offence then I must find him not guilty. In this case I do not accept his testimony and mainly the reasons for not accepting his testimony is more in dealing with the reliability aspect versus credibility. Mr. Keefe admitted that he was under the influence of drugs on the day in question. His memory was hazy. He could not recall exactly the sequence of events. That effects the reliability of the evidence he had to offer however, by indicating that he could not remember the sequence of events but yet could remember very clearly some other events I believe goes to his credibility in that respect.

I do find that Ms. Cooke offered her testimony in a straightforward fashion. I agree with the comments made by the Crown that she was not here to bolster her evidence at all.

Even in cross-examination Ms. Cooke was quite adamant with respect to the sequence of events and I think part of the, she offered additional information and clarification in cross-examination and nothing in the court’s view that contradicted what she gave in chief to the Crown.

In light of the fact that the court has accepted the evidence of Ms. Cooke it has found that the Crown has proven beyond a reasonable doubt all the elements that is required with respect to the assault.

15In considering the charges of theft of the cell phone and bike, the judge stated:

With respect to the theft when you look at the evidence as a whole I am not satisfied beyond a reasonable doubt that the accused took the cell phone without colour [of] right and as a result I must find him not guilty with respect to that theft.

[W]hen looking at the entire evidence as a whole it does leave me with a reasonable doubt with respect to that offence.

Appellant’s Position

16The appellant concedes that the trial judge specifically mentions W.(D.) and directed herself to the first step of the W.(D.) analysis. He argues that she did not consider the other two steps and stated in her decision: “In light of the fact that the court has accepted the evidence of Ms. Cooke it has found that the Crown has proven beyond a reasonable doubt all the elements that [are] required with respect to the assault.”

17The appellant submits that the learned trial judge clearly misdirected herself by preferring the testimony of the complainant over the testimony of the appellant in support of satisfying all the elements of the offence. By finding concerns with the credibility and reliability of the appellant and finding no concerns with the credibility and reliability of the complainant, the learned trial judge inferred the appellant’s guilt for the assault: W.(D.); R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152. Counsel submits that, even if the trial judge did not accept the appellant’s testimony, the trial judge did not address the question of whether she was left with a reasonable doubt by the evidence of Mr. Keefe viewed in context. Counsel argues that this step is crucial, particularly where credibility was the only issue and there was conflicting evidence: W.(D.); R. v. Chartrand (2002), 62 O.R. (3d) 514 (ONCA).

18The appellant’s submission is that the trial judge failed to consider the totality of the evidence. She decided guilt directly from her rejection of the appellant’s evidence and her acceptance of Ms. Cooke’s evidence. The appellant submits that the trial judge did not test the appellant’s evidence in light of all the other evidence presented: R. v. Gostick (1999), 137 C.C.C. (3d) 53 (ONCA); R. v. Maharaj (2004), 186 C.C.C (3d) 247 (ONCA).

19The appellant’s fundamental submission is that the entirety of the decision was decided on the basis of the testimony and the version of events provided by the complainant with little or no reference to the appellant’s version.

20With respect to the second ground of appeal, the appellant submits that the trial judge erred in law by declining/failing to engage in a proper analysis of self-defence despite an air of reality being established. He relies on the appellant’s evidence at trial that Ms. Cooke was the first to become physical during an argument between the two and that his evidence was that she punched him and then she stumbled back but did not fall down the stairs. When asked about the initial push down the stairs, which was the first alleged contact, the appellant denied not only the push, but stated that he could not recall Ms. Cooke even falling down the stairs. The appellant submits that the evidence provided by him clearly characterized Ms. Cooke as the initial aggressor. The appellant submits that the learned trial judge failed to consider this issue or make findings of fact that the appellant believed force was being used against him, that his reactions were for the purposes of defending himself, and that the act was reasonable in the circumstances: s. 34(1)(a)(b)(c) of the Criminal Code, R.S.C., 1985, c. C-46; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22.

21The appellant relies on other parts of the evidence where, in cross-examination, he described the incident in the laundry room; Ms. Cooke yanked on his hair, and he tried to pull away from her. Counsel relies on the appellant’s evidence that the appellant tried to get her off, but, “I just kinda had my, my hand out like this. She was pulling and then I kinda was just like holding her forehead kind of like tryin’ get her to stop you know, stop clawing me.”

22Counsel notes that, with respect to any assault that occurred outside over the bicycle, the appellant gave evidence that they were both pulling at the same bicycle and that Ms. Cooke was scratching at him.

23The question on appeal is whether the totality of the evidence at trial contained some evidence on which the elements of self-defence could be inferred. The appellant argues that whether or not there is an air of reality to a defence is a question of law: R. v. Brisson, [1982] 2 S.C.R. 227. Counsel notes that the trial judge’s reasons state:

However, it seemed pretty clear when she was offering her testimony that she recalled exactly how this occurred and the sequence of [events] had occurred. She was clear on the fact that Mr. Keefe pushed her in the stairs. She was also clear to the fact that he poked her in the eyes with his thumb. Whether this was in self-defence or not in self-defence I think that it is a moot point given the fact that the pushing and the altercation that occurred itself is sufficient for the assault and I do not think that the court needs to delve into detailed analysis of whether there is self-defence. However, given the finding on credibility and reliability the court accepts the evidence of Ms. Cooke in that respect.

24Counsel argues that, if the acceptance of Ms. Cooke’s evidence was the basis for the rejection of self-defence as being applicable, the learned trial judge engaged a standard greater than an air of reality. If the comments were meant as the actual analysis, then they are far too sparse to be considered a reasoned analysis of self-defence and whether a reasonable doubt exists as a result. Counsel submits that the trial judge did not engage in even a limited weighing of the evidence and based her rejection of self-defence as being applicable solely on the basis of Ms. Cooke’s evidence.

25Counsel submits that, by not engaging in a formal analysis of self-defence despite an air of reality being clear on the record, the learned trial judge committed an error of law.

Respondent’s Position

26The respondent notes that, at the commencement of the reasons for judgment, the trial judge states, “With respect to the assault, I do find that the Crown has met its onus of proving beyond a doubt that the assault occurred,” which shows that she was alive to the onus from the beginning. She repeated the finding of proof beyond a reasonable doubt at the end of her reasons relating to the assault charge. The judge went on to note that the evidence of what occurred came only from the appellant and Ms. Cooke. She stated that she accepted Ms. Cooke’s evidence and rejected the evidence of the appellant on the basis of it being neither reliable nor credible. Counsel argues that this is a factual determination which the judge was entitled to make.

27The respondent argues that it is clear from the trial judge’s reasons that she registers a conviction not simply because she finds the evidence of the appellant to be neither reliable nor credible, nor because she prefers the evidence of Ms. Cooke over that of the appellant, but because she believes the evidence of Ms. Cooke beyond a reasonable doubt.

28The respondent argues that it is not necessary for a judge to engage in a step by step analysis as outlined in W.(D.). The respondent cites W.(D.) and submits that the failure to use the language in W.(D.) outlining the three part test “is not fatal,” provided it is clear that there has not been a “misapprehension as to the correct burden and standard of proof to apply.” The respondent argues that the trial judge begins and ends her decision with a reference to onus and the appropriate standard of proof and that that decision is made in the context of whether reasonable doubt exists. The respondent argues that the trial judge does not find the appellant guilty because she finds his evidence not to be credible; she finds him guilty because she believes the evidence of Ms. Cooke beyond a reasonable doubt when considered within the context of all the evidence.

29The respondent distinguishes this from the decisions in R. v. Chartrand (2002), 62 O.R. (3d) 514 (ONCA), where the trial judge made no reference to proof beyond a reasonable doubt, and in Maharaj, relied on by the appellant. In Maharaj, the Ontario Court of Appeal determined that, in some cases, the failure of a trial judge to explain or justify a credibility finding may disentitle the trial judge “ to the appellate deference ordinarily accorded these findings”: at para. 20.

30With respect to the appellant’s position that the judge failed to consider the defence of self-defence, the respondent argues that it is implicit in the consideration of that defence that the trial judge found the air of reality threshold test was not met. The respondent references the appellant’s testimony that Ms. Cooke was the initial aggressor having punched him. Counsel notes that the appellant acknowledged in cross-examination that he was not sure if the first punch occurred in the laundry room or in the stairwell. In his evidence in-chief, the appellant testified that Ms. Cooke pulled his hair and was “clawing at” him when he was in the laundry room. He tried to “get her off of” him, holding her forehead with his arms extended and head down. At this time, he heard Ms. Cooke say, “You poked my eyes.” She then punched him.

31Counsel references the cross-examination where the appellant demonstrated the manner in which he held out his arms and hands. Counsel noted that he was extending his thumbs from the rest of his fingers, consistent with Ms. Cooke’s testimony that it was the appellant’s thumbs that went in her eyes.

32Counsel notes the appellant’s testimony in cross-examination where he stated that, when he extended his arms and placed his hands on the complainant’s head, this was the only time he touched her in the altercation. His testimony in chief was that he did not push Ms. Cooke in the stairwell; she fell as a result of her own actions. No arguments of self-defence were raised there. The appellant instead relied upon denial of any physical contact with Ms. Cooke.

33The respondent argues that the trial judge, in her reasons, notes that, having believed the evidence of Ms. Cooke, she is satisfied beyond a reasonable doubt that the appellant pushed Ms. Cooke in the stairwell and poked her in the eyes with his thumbs. This makes out the count of assault. Either of these actions on their own would have made out the count before the court. As such, the judge commented that an assessment of the defence of self-defence is not necessary to make the finding of guilt on the assault. No such defence was raised with respect to the push; the conduct was simply denied altogether. Nevertheless, she finds that, with respect to the poke in the eyes, where the self-defence was raised, the criteria to make out that defence are not met given the trial judge’s previous assessment of reliability and credibility.

34Counsel submits that the appellant has suggested that the trial judge erred in considering the two assaultive actions separately and that the argument of self-defence applies to both despite the appellant not having raised self-defence with respect to the push. The respondent argues that this is an incorrect interpretation of the law, and while it is true that where self-defence is raised, the physical contact alleged must be viewed in the context of the interaction as a whole, in order to assess the reasonableness of the appellant’s belief that he needed to defend himself, it is not the case that the judge must infer self-defence where it is not raised and physical contact is outright denied: R. v. Pétel, [1994] 1 S.C.R. 3, at para. 23.

35The respondent’s position is that, on both grounds of appeal, the appellant has mischaracterized undesirable findings of fact as errors of law. The respondent argues that the trial judge’s findings of fact were not unreasonable and should be given deference. It is well established that the trial judge, who hears the evidence of the witnesses viva voce and is able to observe their mannerisms, is best placed to make assessments of credibility and reliability, which were central to both issues in this appeal: R. v. Colbeck (1978), 42 C.C.C. (2d) 117 (ONCA) at para. 3; R. v. Saikaley (1979), 52 C.C.C. (2d) 191, at para. 2.

Legal Principles

36In W.(D.), Cory J. outlined the governing principles in regard to credibility as follows, at para. 11:

11 Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. A trial Judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

37The Ontario Court of Appeal expanded on these governing principles in R. v. Fogah, 2018 ONCA 564, 362 C.C.C. (3d) 4, at paras. 44-47, as follows:

44 Where credibility is a central issue in a jury trial, a W.(D.) instruction explains to the jury “the relationship between the assessment of credibility and the Crown’s ultimate burden to prove the guilt of the accused to the criminal standard”: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para 8.

45 The message of W.(D.) is that “it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt … The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt”: J.H.S., at para. 13 (emphasis in original, citations removed).

46 A trial judge must direct the jury’s mind “to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23. The focus of the instruction remains on the principle of reasonable doubt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6.

47 How the trial judge conveys that message is not confined to the words of “some magic incantation”: R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 533. As observed by this court in R. v. Moore, 2017 ONCA 947, 357 C.C.C. (3d) 500, at para. 30, while there is a legal obligation on a trial judge to properly instruct the jury on reasonable doubt, “[t]here is no legal obligation on a trial judge to recite the language in W.(D.) .” The W.(D.) form of instruction is “a helpful map, not the only route”: C.L.Y., at para. 8. The substance of the message is what matters; not the precise form: J.H.S., at para. 13.

Application of Principles

Issue 1: The W.(D.) Analysis

38Although the theft charges were dismissed, the wording the trial judge used in relation to these charges satisfies me that she was alive to the necessity of looking at the evidence as a whole and the burden of proof. Her thinking on these charges satisfies me that she applied the same consideration to the assault charge.

39This is not a case where the trial judge failed to recognize that W.(D.) applied. The case turned on credibility as between the complainant and the appellant. The trial judge at the beginning of her reasons recognized the test to be applied. The fact that she gave her finding on the assault at the beginning with reasons to follow is of no consequence considering she immediately referenced the onus on the Crown to prove the assault beyond a reasonable doubt.

40She then specifically noted that she must consider the testimony of the appellant. She did not accept his testimony and gave specific reasons why she did not accept it. She then noted that she found the complainant to have testified in a straight forward fashion with no attempt to embellish her evidence. She noted specifically that she found nothing in the complainant’s evidence that would have or may have affected her credibility or reliability. She noted that the appellant’s evidence was unspecific and vague.

41The trial judge’s reasons must be read in context. The significance of the application of W.(D.) is not an examination of specific words used, but rather an examination of whether, in the context of the evidence as a whole, the trial judge has properly recognized the onus and has not placed, even if inadvertently, the onus on the appellant. Whether it be in the context of a charge to the jury or in the case of a judge sitting alone, it must be clear that the burden of proof lies on the Crown. Failure to use the specific language in W.(D.) is not fatal if, when read as a whole, the reasons are clear that the judge is not under any misapprehension as to the correct burden and standard of proof to apply: W.(D.), para. 12.

42In this case, the trial judge did not accept the appellant’s evidence. The trial judge specifically considered the evidence of the complainant and found nothing in that evidence that affected the complainant’s credibility or reliability. I am satisfied that, although she did not use the wording of steps two and three in the W.(D.) analysis, it is clear that she was addressing the issue of reasonable doubt in the context of the evidence overall. The language used demonstrates that she found no reasonable doubt in the evidence of the accused or the complainant at trial.

43While it would have been preferable for the trial judge to have more carefully mirrored the wording of the W.(D.) test, the judge’s reasons satisfy me that she never shifted the burden from the Crown to prove the essential elements of the assault beyond a reasonable doubt.

Issue 2: Self-Defence

44With respect to the second ground of appeal, which concerns the trial judge declining or failing to properly consider self-defence despite an air of reality being established, the basis for this defence lies in the appellant’s argument that his evidence was that the complainant punched him first and he then responded. The trial judge found that, as she had not accepted his evidence and had found that the appellant was guilty of assault, there was “no need to delve into any detailed analysis of whether there is a self-defence. However, given the finding on credibility and reliability the court accepts the evidence of Ms. Cooke in that respect.”

45Although the trial judge makes no specific reference to the necessity of an “air of reality” for this defence to apply, her reasons suggest that, because she found Mr. Keefe to have been the aggressor, there was no air of reality to the appellant’s assertion that he was acting in self-defence.

46I find no error in law.

Conclusion

47This appeal is essentially one based on the facts as determined by the trial judge. Her factual findings are entitled to deference.

48This appeal is dismissed.

The Hon. Mr. Justice T. A. Platana