BRACEBRIDGE COURT FILE NO.: CR-18-008-AP DATE: 20190531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DAVID LOUCKS Appellant

Counsel: M. MacDonald, for the Crown M. Azevedo, for the Appellant

HEARD: April 26, 2019

REASONS FOR DECISION

On appeal from the decision of The Hon. Mr. Justice J.D. Evans dated June 23, 2017

CASULLO J.:

Introduction

[1] This is an appeal against the conviction rendered by Evans J. of the Ontario Court of Justice at Bracebridge, Ontario.

[2] The events giving rise to the offence occurred on February 24, 2016. The trial proceeded on four separate days, involving the testimony of ten Crown witnesses and the Appellant, who testified in his own defence. The Appellant was convicted of assault causing bodily harm.

The Evidence at Trial

[3] I have been provided with a copy of the transcripts concerning this matter. The evidence is also contained in each party’s factum. Only those portions of evidence relevant to the specific grounds of appeal will be referenced, although I have reviewed all of the evidence before me.

[4] The Appellant and the complainant were husband and wife. On February 24, 2016, they began fighting after consuming alcohol. It appears the fight started in the living room, and then the complainant went into the bedroom. Sometime thereafter, the complainant’s nose was broken.

[5] The complainant ran out of the house, got into the car, and crashed into a snowbank on their street. She then walked to her neighbour’s home, the Fitchetts. Mrs. Fitchett called the police for the complainant, who spoke with them on the phone. Paramedics and police arrived, after which the complainant was taken to Hospital.

[6] While the complainant recalls telling the Fitchetts that the Appellant hurt her, she does not recall what she told the 911 dispatchers, the paramedics, the officer who attended at the Fitchetts’ home, or the medical personnel at the hospital.

[7] The 911 call was played at trial, during which the complainant is heard to say, inter alia, that her face was smashed in and that her husband beat her up. She acknowledged they had both been drinking and that the Appellant choked her.

[8] Mrs. Fitchett testified that when the complainant came to their door she was very distraught and crying. She had her hands covering her face and her nose was bleeding. The complainant told Mrs. Fitchett that she and the Appellant had been drinking and she went to bed because he was agitated. He then came into the bedroom, started choking her, pulled her from the bed by her hair and smashed her face on the floor. She also said she believed she may have bit his finger.

[9] Mr. Fitchett testified that the complainant repeatedly said “he beat her.” He suspected she meant the Appellant.

[10] Both Mr. and Mrs. Fitchett said they had no trouble understanding the complainant that night.

[11] The paramedics testified that they found the complainant to be distraught, with an injury to her nose and blood on her face. She told them that her husband pulled her to the floor by her hair and smashed her head on the floor. She repeated this on the way to the hospital. The paramedics did not notice signs of impairment and Mr. Lovold stated the complainant was alert and oriented.

[12] When Cst. Forrest arrived at the Fitchett residence, he observed the complainant to be crying and visibly upset. She was holding her nose and had blood on her face. She told him that she and her husband had been drinking and then they argued. Her husband got angry so she went to bed. He came in, grabbed her hair, and pulled her onto the floor. She bit his finger and he smashed her face on the floor. Cst. Forrest noted that the complainant was coherent and not impaired, although she admitted to drinking. He also stated that the complainant vividly recalled her nose being broken on the floor.

[13] A couple of hours later, Cst. Jeffery spoke to the complainant at the hospital. Her nose was red and swollen. She told him she and the Appellant had been drinking, there was an argument, and she went to bed. The Appellant came in, pulled her hair, and dragged her to the floor. She bit his finger and he smashed her head on the floor. Cst. Jeffery described the complainant as fairly calm and a bit upset. She admitted to drinking, and he could smell alcohol, but he had no concern with respect to impairment.

[14] The complainant did not mention a stick to anyone she spoke with on February 24, 2016.

[15] Beginning at about 5:30 a.m. the next morning (February 25, 2016) the Appellant and the complainant communicated through a series of text and telephone calls.

[16] Later that same day (February 25, 2016) the complainant gave a KGB statement. Prior to taking the statement, Cst. McRoberts cautioned the complainant of the consequences of making a false statement. The complainant indicated she understood. The complainant had a cloudy memory but did not appear intoxicated. The complainant did advise that she had had a few drinks before arriving at the detachment to give her statement.

[17] During her KGB statement, the complainant indicated that after arguing with the Appellant, she went to bed, and then remembered waking up to the accused yelling and screaming at her. She said the Appellant told her she hit him with a stick but she did not recall that. He woke her up a second time and a physical altercation ensued, with him grabbing her by the hair. She grabbed his hair back and then she was thrown to the ground. She thought he had her by the scruff of the neck but she could not say for sure. She ran out the house, got the car stuck, and walked to the Fitchetts’ home. She said the Appellant stood at the door laughing at her.

[18] She also said she had spoken with the Appellant before coming to the station. He said he was scared and that he was not going back to jail – he would rather kill himself. She did not want him charged; she just wanted to get her stuff and get out. Cst. McRoberts said that the complainant was concerned about the well-being of the Appellant.

[19] A short time after giving her KGB statement, the complainant called police to report that the Appellant had taken 50 pills and was suicidal. At trial, she explained that the Appellant had called her and said he had taken a bunch of pills.

[20] Cst. Wicket attended at the Appellant’s residence. The Appellant told him he had ingested 50 pills, although he later changed the number to 30. The Appellant was apprehended under the Mental Health Act, and kept in hospital on a Form 1. He was arrested while at Hospital.

[21] On March 1, 2016, Cst. McRoberts again spoke with the complainant, who said she was beginning to remember more details, and that her KGB statement was not as accurate as she thought.

Complainant’s Testimony at Trial

[22] The complainant’s version of events at trial differed from what she said the night in question, and her KGB statement, in the following ways:

• She hit the Appellant with a stick before going into the bedroom;
• She called him into the bedroom and hit him again with a stick, and then went back to bed;
• When the Appellant woke her up she was afraid and tried to get away, but her feet got tangled in the blankets and she fell on her face on the floor;
• The Appellant did not hurt her the night in question; and
• She told her neighbours the Appellant hurt her because she was embarrassed at being drunk, and was angry at him for kicking her out of the home.

[23] The complainant testified that she realized her KGB statement was inaccurate three or four days after the incident. Despite testifying that she only learned her statement was false after the assault, she also testified that when she spoke to her neighbours the night of the assault, she was lying when she alleged that the Appellant hurt her.

[24] When confronted with the inconsistency, the complainant admitted that when she spoke with her neighbours, she was telling the truth. Later, in her testimony, the complainant confirmed that what she told the 911 dispatchers, the paramedics, Cst. Forrest, and the medical staff, was also the truth. She also testified that she told the truth in her KGB statement.

Appellant’s Testimony at Trial

[25] The Appellant took the stand in his own defence and testified that when he got home the night of February 24, 2016, the complainant was already drunk. He initially denied drinking, but then admitted the complainant had made him two drinks. They had an argument and she hit him with a stick on his left arm, his legs, and his left side. He got the stick away from her and told her stop, following which she went into the bedroom.

[26] The complainant then called and asked him to come into the bedroom, where she again started hitting him; this time with a piece of wood trim. He grabbed the trim in one hand and her hair in the other, and she grabbed his hair back. He told her to stop and they let each other go. He took the stick, left the bedroom, and fell asleep on a chair in the living room.

[27] When he awoke, the house was cold and the front door was wide open. He went to the door, saw that the complainant’s car was gone, closed and locked the door. He did not see the complainant’s car in the snowbank, as it was about 1000 feet away, and there was no lighting on their road. He said he did not stand at the door and laugh at her as she drove away.

[28] He agreed that he and the complainant began communicating the next morning. He states that she told him he had better not go anywhere, as the police were looking for him, and she told them he broke her nose. The Appellant did not believe the police were coming, or that he had broken the complainant’s nose. He told the complainant, both that morning, and on the night of the incident, that she had hit him with a stick.

[29] The Appellant said he was not suicidal on February 25, 2016, and he did not tell the complainant he was. Finally, despite the allegation that the complainant’s injury took place in the home’s bedroom, the Appellant testified to the lack of blood in the home.

Positions of the Parties

The Appellant

[30] The Appellant appeals his conviction on the following grounds:

(i) The trial judge misapprehended relevant evidence with respect to the Appellant’s testimony and relied on such errors in his assessment of the Appellant’s credibility; (ii) The trial judge erred in failing to allow the Appellant’s counsel to tender photographic evidence and prejudiced the Appellant’s right to make full answer and defence; (iii) The trial judge failed to appreciate relevant evidence as to the complainant’s intoxication at the time of her statements on February 24, 2016, and therefore, failed to properly scrutinize the reliability of those statements; and (iv) The trial judge erred in failing to appreciate the significance of the lack of blood in the Appellant’s home where the complainant’s injury allegedly occurred.

The Crown

[31] Counsel for the Crown submits that none of the grounds of appeal raised by the Appellant rise to the level of a miscarriage of justice when viewed through the lens of the stringent summary conviction appeal test. If the trial judge misapprehended the evidence, it did not play a part in the reasoning process which led to the conviction.

The Reasons for Judgment

[32] The trial judge reviewed the evidence and considered the credibility of the witnesses who testified at trial.

[33] While he found some of the complainant’s evidence to be credible and reliable, the trial judge specifically did not believe her testimony in respect of how her nose was broken.

[34] In concluding it was the Appellant who broke her nose, the trial judge relied not only on the statements made by the complainant on the night in question (to the neighbours, 911, the paramedics, and the police), and her KGB statement the following day, but also the testimony of the neighbours, the paramedics, and the police, all of whom he found to be credible and generally reliable.

[35] With respect to the Appellant, the trial judge found him to be evasive. His testimony was described variously as inconsistent, improbable, and defying credulity. The trial judge held that the Appellant’s testimony was not credible, and it did not raise any reasonable doubt in the court’s mind. Accordingly, the Crown’s case had been made out and the Appellant was convicted.

Legal Principles

[36] Section 686(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides an appellate judge with wide authority to allow an appeal where she determines either a) the verdict is unreasonable and unsupported by the evidence; b) the decision is wrong on a question of law; or c) there has been a miscarriage of justice.

[37] Significant deference is given to a trial judge’s findings of fact and credibility assessments. Given the trial judge’s unique position to see and hear witnesses, these findings and assessments should not be disturbed unless there has been a palpable and overriding error: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[38] An appellate judge is not free to re-try the case and substitute her view of the evidence. Instead, the appellate judge should re-examine, and to a certain extent at least, re-weigh and consider the effect of the evidence: see R. v. W.(R.), [1992] 2 S.C.R. 122, at para. 20.

[39] I will address each ground of appeal separately.

(i) Misapprehension of Evidence

[40] What is a misapprehension of evidence? In cases R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), the Court of Appeal held that a “misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.”

[41] The Supreme Court approved this approach in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732: see paras. 2 and 6.

[42] The Appellant submits the trial judge misapprehended three areas of his testimony:

a) injury to his thumb; b) his knowledge of when the complainant had gone to police, and when he told the complainant she hit him with a stick; and c) his knowledge of what he knew of the complainant’s injury, and when.

Thumb

[43] Mrs. Fitchett, as well as Constables Jeffery and Forrest, testified that the complainant told them she bit the Appellant’s finger on the night in question. In his Reasons for Judgment, the trial judge stated that in cross-examination, the Appellant said the complainant “bit his thumb and hit him with a stick.” However, during cross-examination, the Appellant actually denied any injury to his thumb.

[44] In attributing a statement to him that was not made at trial, the Appellant submits that the misapprehended evidence improperly bolstered the credibility and reliability of the complainant’s statements to the various trial witnesses, as well as her KGB statement, which the trial judge ultimately accepted. In so doing, the Appellant states that the thumb injury became a corroborating detail of the complainant’s statement to the police and to the various witnesses who testified at trial.

[45] I find that the mistake as to the thumb injury is a detail that was periphery to the reasoning of the trial judge. The thumb injury is mentioned only during the trial judge’s summary of the evidence, and did not factor into his assessment of either parties’ credibility or reliability. The bite did not play a role in the trial judge’s decision to reject the Appellant’s evidence and accept part of the complainant’s evidence.

Timing

[46] With respect to when he knew the complainant spoke to police, the trial judge stated “[t]he next morning Sherry told him she was going to the police and he acknowledged that he told her she hit him with a stick before she went to the police.” However, during his testimony, the Appellant denied knowing the complainant was going to speak to the police on February 25, 2016, and stated that he believed she was lying when she told him police were looking for him.

[47] In re-examination, the Appellant testified that he only determined the complainant had, or was going to, speak to police, when they attended his home later that day.

[48] The Appellant submits that the trial judge erred by attributing statements to him that were never made at trial, and he compounded the error by improperly finding that he told the complainant that she hit him with a stick before she went to police. The Appellant submits this misapprehension lent support to the inference that he only told the complainant she hit him with a stick before she gave her KGB statement as a means to influence the content of that statement.

[49] However, there were inconsistencies in the Appellant’s evidence that the trial judge accurately picked up on. It was the Appellant’s evidence that he told the complainant, both the night of and the morning after, that she hit him with the stick. He also said that when he spoke with her the morning of February 25, 2016, she told him the police were looking for him. This does not accord with his evidence that he did not know she had, or was going to speak with the police until they arrived on the afternoon of February 25, 2016.

[50] I do not find the trial judge misapprehended the evidence in this regard.

Knowledge of Complainant’s Injury

[51] The Supreme Court of Canada addressed evidentiary inconsistencies in Lohrer, at paras. 5 and 6:

In the course of his argument, the appellant mentioned a number of other alleged errors and inconsistencies in the trial judgment including his view that the trial judge had not adequately recognized the inconsistencies in the complainants' evidence. However, what the trial judge said was that there were no "major" inconsistencies in their evidence, a conclusion with which we agree. In any event he evidently did not consider the inconsistencies, which he recognized, to be fatal to the complainants' credibility on the material issues in dispute.

In our view, none of the errors urged by the appellant goes to "the substance of material parts" of the evidence that bears on an "essential part in the reasoning process" of the trial judge leading to the convictions.

[52] The trial judge found it inconsistent that the Appellant testified that he did not know what the complainant told police, and also that she and the police informed him that she alleged he had broken her nose. In examination in-chief, the Appellant testified that he texted the complainant when he awoke the morning of February 25, 2016. He stated “she texted me back. And says, you better be careful. You better not go anywhere, the police are looking for you.”

[53] After this text, the Appellant called the complainant and she told him that her nose was broken, and that the police were watching for him. The Appellant then testified (about the same phone call) that the complainant, in fact, did not tell him about her broken nose, “she just said she hurt herself at that point.”

[54] On the evidence before him, it was open to the trial judge to find the Appellant’s evidence was inconsistent. I do not find that the trial judge misapprehended the evidence with respect to the Appellant’s testimony on material issues. The Crown acceded that the trial judge was wrong about the bite injury to the thumb, but that mistake does not rise to the level of misapprehension envisioned in Morrisey. In other words, this error did not play an essential part in the trial judge’s reasoning process behind convicting the Appellant – it was peripheral to his reasons.

(ii) Failure to Admit Defence Evidence

[55] Subject to certain conditions, all relevant evidence is admissible and “counsel must generally be permitted to present their case as they see fit”: see R. v. Polanco, 2018 ONCA 44, at para. 29. Evidence should only be excluded where its probative value is substantially outweighed by its prejudicial effect: see R. v. Seaboyer, [1991] 2 S.C.R. 577, at paras. 42-45, 48-49.

[56] Defence counsel wanted to tender 14 photographs, taken a year after the incident, during her cross-examination of the complainant. The Crown objected to the pictures on the basis that if they were being tendered to show the amount of snow, or what one could see on the night in question, photos taken a year after the incident were not relevant. The Crown further objected that these photos were not relevant to the issue of whether the Appellant assaulted the complainant in the home.

[57] The trial judge asked for clarification as to the relevance of the photographs. Defence counsel replied they would show what could and could not be seen; whether the Appellant could or could not see outside on the night in question, whether he could see outside to see the police [1], and the basic configuration of the house in terms of blinds and lights. In essence, the photographs were being tendered to show what the Appellant could see. The trial judge did not allow the photographs to be tendered, given that the complainant could not speak to what the Appellant saw.

[58] Defence counsel again tried to tender the photographs when the Appellant took the stand, to establish “distances, light, and what’s visible and not visible.” By this time, the Appellant had already testified that he did not see the police outside of the home and, as such, the distance and light outside of the home were of no relevance.

[59] When the Crown was cross-examining the Appellant, defence counsel made a third attempt to have the photographs tendered, but they were again disallowed.

[60] The Appellant submits that the failure of the trial judge to admit the photographs into evidence prevented defence counsel from presenting the case as she saw fit. On appeal it is submitted that the photographic evidence would have aided trial counsel in her cross-examination of the complainant as to whether it was possible to actually see the Appellant laughing at her from the front door of their home. In his reasons, the trial judge accepted this specific allegation as credible and consistent with the portrayal of the Appellant as “cold and uncaring towards his wife.”

[61] The Appellant states that the complete exclusion of the photographs without any review by the trial judge was improper and significantly limited the Appellant’s ability to fully examine the evidence, make fulsome submissions, and his right to make full answer and defence.

[62] In Polanco the Court of Appeal reviewed a summary conviction appeal court’s decision to allow a new trial after the trial judge had declined to admit all photographs that defence counsel wanted to tender. Along with confirming that the jurisdiction of a summary conviction appeal judge is limited, the Court also held that trial judges must be concerned with the orderly progression of the proceeding before them (at paras. 20-22).

[63] There were 173 pictures at issue in Polanco. The trial judge vetted all of them, and excluded 45, thus allowing 128 pictures to be put to the complainant. In the case at bar, the Appellant sought to introduce only 14 photographs.

[64] I find the trial judge erred in excluding the photographs. By not allowing them in, he prevented the complainant from being questioned about her KGB statement, in which she said the Appellant was standing at the front door and laughing at her as she drove away. The Appellant states the pictures would have demonstrated this was not possible.

[65] Following the Court of Appeal’s ratio in Polanco, it would have been preferable for the trial judge to admit the photographs and then determine whether they were relevant or not.

[66] That said, I do not believe the trial judge’s determination that the Appellant assaulted the complainant was grounded upon his acceptance of the assertion that the Appellant was standing at the door, laughing. Instead, the trial judge relied on the credibility and reliability of the complainant’s statements to others on the night in question, the portion of the complainant’s evidence under oath that was held to be credible, and the credibility and reliability of the witnesses at trial. The refusal to admit the photographs does not rise to the level of a miscarriage of justice.

(iii) Complainant’s Intoxication

[67] The complainant admitted she had been drinking on the night of the incident. She also admitted she had had a couple of drinks before giving her KGB statement. In her statement, the complainant said she needed to stop being an alcoholic. At trial, the complainant testified that during the incident, she had blacked out and was “totally plastered.” She said she lied to everyone she spoke with the night of the incident, because she was embarrassed that she was drunk. Hospital records indicate the complainant said she had drank three-quarters of a mickey.

[68] The Appellant submits that the trial judge omitted any reference to the complainant’s admitted intoxication on February 24, 2016. And, in finding that the complainant was not drunk or impaired at the time of the assault, or during her statements to the relevant witnesses, the trial judge failed to properly scrutinize the reliability of the complainant’s statements, gave undue weight to the statements provided by witnesses who saw her after she had smashed her car into the snowbank, and improperly rejected the direct evidence of the complainant herself.

[69] However, I find that the trial judge appropriately dealt with the issue of the complainant’s intoxication on the night in question. He noted that she drank at least a half a mickey, had a car accident, and testified she was embarrassed at being drunk when she spoke to the Fitchetts. He found there was ample independent evidence that the complainant was not impaired or drunk, and concluded she was tailoring her evidence to exculpate the Appellant.

[70] The trial judge also found that the KGB statement was consistent with what the complainant told others the night of the assault.

[71] I do not find the trial judge failed to appreciate the complainant’s intoxication.

(iv) Lack of Blood in the Home

[72] Both the Appellant and the complainant testified that there was no blood in the house. The complainant testified that after her nose was broken, she fled the house in her housecoat and a coat, and blood ended up on both.

[73] Mrs. Fitchett testified that she saw blood when the complainant lowered her hands from her face.

[74] The presence or absence of blood in the home is irrelevant. The complainant said her nose was broken in the bedroom. She told her neighbours, the paramedics, and the police that it happened when the Appellant smashed her face into the floor. She said the same thing in her KGB statement. At trial, she said her nose was broken when she got tripped up in some blankets and fell.

[75] A finding that there was no blood in the home does not discount the evidence that the complainant’s nose was broken in their home on the night of February 24, 2016. I do not give effect to this ground of appeal.

Conclusion

[76] The trial judge found that during the course of the complainant’s testimony, it became “clearly and painfully obvious” that the she was purposefully recanting from the statements she gave on the night in question, as well as in her KGB statement.

[77] Add to this the independent testimony from witnesses the complainant spoke with in the immediate aftermath of the assault, as well as her KGB statement, and it was reasonable for the trial judge to conclude, on the evidence before him, that the Appellant assaulted the complainant. That conclusion does not warrant appellate intervention and the appeal is dismissed.

CASULLO J. Released: May 31, 2019

[1] There was evidence at trial that the police attended at the Appellant’s house on the night in question, after the complainant had left. They could see the Appellant through the door, so they knocked, but the Appellant either did not see them, or ignored them. The police then left. I do not find this evidence to be relevant to the issues before me, hence, its mention in a footnote only.