COURT FILE NO.: CR-18-4224-AP DATE: 20190703 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER JOSEPH BATTISTI Appellant

Counsel: Carolyn Filgiano, for the Respondent Crown Daniel W. Scott, for the Appellant

HEARD: November 22, 2018

REASONS ON APPEAL

Overview

[1] This is an appeal pursuant to s. 813 (a)(i) and (ii) of the Criminal Code by Mr. Christopher Battisti from his conviction for uttering threats to cause death or bodily harm, contrary to s. 264.1(1)(a) of the Code, entered on January 10, 2018, by R. Marion J. of the Ontario Court of Justice in Windsor, Ontario, and his sentence imposed on March 26, 2018, by Marion J. in Windsor.

[2] In a three-count information, Mr. Battisti was charged that:

a. on or about April 27, 2017, in the City of Windsor, he did, by word of mouth, knowingly cause Tania Bonavia to receive a threat to cause death to Emma Battisti, contrary to s. 264.1(1)(a) of the Code;

b. on or about April 27, 2017, in the City of Windsor, he did, by word of mouth, knowingly utter a threat to cause death to Tania Bonavia, contrary to s. 264.1(1)(a) of the Code; and

c. on or about April 27, 2017, in the City of Windsor, he did, by word of mouth, knowingly utter a threat to cause bodily harm to Tania Bonavia, contrary to s. 264.1(1)(a) of the Code.

[3] It will be seen that all three charges involve the same complainant, Ms. Tania Bonavia, who is the former common law spouse of the appellant. Mr. Battisti and Ms. Bonavia had lived together since March 2014. There is one child of the relationship, Emma Battisti, who was two years of age at the time of the alleged incident.

[4] The trial judge found that Mr. Battisti and Ms. Bonavia met online in January 2014, and by March 2014, they were living together in Ottawa. The parties then moved from Ottawa to Windsor in 2015, and the trial judge observed that it was not disputed that “even prior to moving to Windsor, the relationship between the parties involved a great deal of arguing.”

[5] The trial judge further noted that there was also “some acrimony between the complainant and Mr. Battisti’s parents.” It appears that acrimony may have been fuelled, in part, by the families living in close quarters, in that, as the trial judge noted, Mr. Battisti and Ms. Bonavia “occupied the upper apartment of a duplex, while Mr. Battisti’s parents, who were the owners of the property, resided on the main level.”

[6] The events giving rise to the three counts in the information took place on Thursday, April 27, 2017. The trial judge noted that there was some disagreement between the parties as to even the reasons why the parties were arguing on that April 27th.

[7] However, it is clear that there were two incidents that same day, involving two separate statements allegedly made by Mr. Battisti to Ms. Bonavia: the first was said to have been made while Mr. Battisti was driving Ms. Bonavia and their daughter to Ms. Bonavia’s babysitting job, and the second, later that same day while he was driving them home.

[8] In the first instance, it was alleged that while Mr. Battisti was driving along Riverside Drive in Windsor, taking Ms. Bonavia to work, he said to her: “I could end all this. I could drive all three of us in the river.”

[9] The second utterance was alleged to have been made “at the roadside on the way home” – or, as the trial judge later clarified, in a parking lot of a marina – where Mr. Battisti stopped the car and told Ms. Bonavia, “get out of the car before I kick your fucking ass.”

[10] Mr. Battisti denied making both statements. He pled not guilty to all three counts.

[11] The trial was commenced and concluded in one day, on January 10, 2018, in the course of which the trial judge heard testimony from only the two witnesses, being the appellant, Mr. Battisti, and the complainant, Ms. Bonavia. Counsel made final submissions that same day in the afternoon, and following counsels’ submissions, the court rose and briefly retired to deliberate. Following the resumption of the proceedings, Marion J. delivered oral reasons for judgment from the bench that same day, in which he found Mr. Battisti guilty on all three counts.

[12] On sentencing, for reasons delivered March 26, 2018, Marion J. sentenced Mr. Battisti as follows:

a. payment of a fine of $400 on each count, for a total of $1,200, together with payment of a victim fine surcharge of $120, all of which was made payable within ten months;

b. a period of probation of three years on each count, with a reporting requirement for a period of 18 months;

c. a prohibition of all contact or communication, directly or indirectly, by physical, electronic, or other means with Ms. Bonavia or the child Emma, except that contact with the child Emma would be permitted pursuant to a family court order;

d. a non-attendance order in respect of any place where Mr. Battisti knows either Ms. Bonavia or the child Emma to be present or where he knows either of them to live, work, go to school, or frequent, except that contact with the child Emma would be permitted pursuant to a family court order;

e. a five-year weapons and firearms prohibition under s. 110 of the Code;

f. a DNA order on each count; and

g. a directive to notify the Windsor Police Services should Mr. Battisti leave Essex County during the three-year probation period and where he intends to go to Ottawa as one of his destinations.

[13] By notice of appeal dated April 24, 2018, Mr. Battisti appealed from his conviction on all three counts and his sentence.

[14] For the reasons that follow, I would dismiss Mr. Battisti’s appeal as to both conviction and sentence.

Factual Background and Decision of the Trial Judge

[15] The relevant factual background, including detailed summaries of the evidence of the witnesses at trial, is set out in paras. 1-7 of the appellant’s factum, with which the respondent Crown “agrees broadly” except for certain editorial comments in the appellant’s factum. There is no need to repeat all of that detail here. I will review below the evidence that was before the trial judge only to the extent necessary to determine the issues on appeal or to provide necessary background context.

[16] It is common ground that the relationship between the appellant and the complainant was, as Ms. Filgiano for the Crown put it, “incredibly acrimonious with a high level of toxicity.” Indeed, as Mr. Scott for the appellant observed, the ending of the relationship was “inevitable” given the degree of toxicity.

[17] Perhaps not surprisingly then, there were also sharp divisions in the evidence between the parties at trial. It is, as Mr. Scott put it, a classic “he said – she said” case.

[18] That point was certainly not lost on the trial judge, who observed at the outset of his reasons for judgment that:

The only evidence heard was from the complainant and defendant. Credibility is the only issue in this case. There is no witness or recording of the threats made. The only [other] person there was Emma Battisti, who was two years old at the time of the alleged incident.

[19] As the central issue was credibility, the trial judge correctly recognized – as was conceded by the appellant – that the case required analysis in accordance with the Supreme Court of Canada’s decision in R. v. W.(D.):

This is the classic case scenario to which the dicta of Justice Sopinka of the Supreme Court of Canada in R. v. W.(D.) … applies. The Crown bears the burden of proving the elements of this offence beyond a reasonable doubt. Firstly, if I believe Mr. Battisti, I should acquit. Secondly, if I don’t believe his testimony but I’m left in reasonable doubt by it, I must acquit. Thirdly, even if I am not left in doubt by the evidence of Mr. Battisti, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of his guilt. If not, I must acquit.

[20] The trial judge proceeded to summarize the evidence. In describing the nature or causes of the fractious relationship between the parties, the trial judge noted each party’s differing perspective, which, in my view, reflected the trial judge’s even-handed treatment of the conflicting evidence before him, as follows:

The bickering and arguing between the parties continued and possibly even increased as the relationship wore on. Generally, the complainant found issue with – and I do not, in expressing the areas where they had discord, wish to in any way limit the amount of discord between the parties, but the areas that they found issue with, that is the complainant with the defendant, was his excessive drinking habits, his daily smoking of marijuana and failure to contribute to the family’s finances, while the defendant found issue with the complainant with respect to her constant nagging – as he said, she was in his ear constantly – her possessive nature with their daughter and her inability to get along with his parents, particularly his mother.

[21] Following his summary of the evidence, the trial judge then related the evidence of the complainant, on the assumption that it was true, to the elements of the offences before the court, as follows:

The words alleged, as described in the evidence of the complainant, constitute a threat as described in all three charges before the court; that is, as to causing bodily harm in one case to Ms. Bonavia and causing death to Ms. Bonavia, and causing death to the parties’ child.

[22] Turning to the required mental element of the offence, the trial judge noted the following evidence:

It is clear from the evidence that the defendant was, by his own admission, flustered, frustrated and upset when he drove the complainant and her daughter to her workplace on the date in question. I have no doubt that if he spoke those words, he would have done so to intimidate and scare Ms. Bonavia.

[23] I pause to emphasize the trial judge’s important qualifying phrase “if he spoke those words.” Clearly, the trial judge was very much aware that the central feature of the evidence of Mr. Battisti was his blanket denial that he spoke the words in question.

[24] The trial judge then considered the credibility of the evidence of the complainant, as follows:

The complainant gave her evidence in a consistent, forthright manner. She admitted being angry and did not deny her participation in the arguments or the acrimony between the parties, and I do not consider the fact that she was unfamiliar with the exact location where, on the way to work, the defendant uttered the threat with respect to driving the car in the river. In my opinion, that does not negate the truth of her evidence or reduce her credibility. She described that she wasn’t familiar with the city and the streets and that she does not drive a car to explain why she was unfamiliar. The fact that she called Mr. Battisti to come and get her after she had finished working that day even though he had made the threat on the way to work, when she had no other options, in my opinion as well, does not diminish the truth of her evidence.

[25] Turning to the evidence of the appellant, the trial judge summarized his concerns regarding Mr. Battisti’s testimony as follows:

I do not accept Mr. Battisti’s evidence. Despite the beleaguered state he was in due to the constant calling, texting, bickering, as he described it, that she was in his ear at all times, requiring him at some point in time to lock himself in his parents’ apartment, he never admitted his role in this regard. He never admitted yelling, swearing or being verbally abusive. In fact, he resisted, despite questions being put to him, admitting being angry, which would have been a most likely response if his evidence was in fact true.

At roadside, at a point where he pulls off the road at the marina – I call it roadside, but it was in the parking lot of the marina – he said he had had enough, and yet he denied saying, “Get out or I’ll beat the fuck out of you.” He described also a point where he opens the door for her and tells her to get out of the car. Sometime later after he asked her to get in the car, she tells him to fuck off. He’s always polite, he says, and states, “Get in the car, please.” At this point he’s prepared to drive away, and does drive away and abandons the complainant and their daughter at roadside with no idea where they are going to go and how. In my opinion, it’s evidence that he must be so distraught that he’s abandoning a child for which he professes to bear a great deal of love, and he makes no effort to check on their well-being until one to two hours later. It is incredulous that Mr. Battisti is in such a state of mind that he would conduct himself this way, yet at the same time remain polite and asked her to please get into the car.

[26] Having reviewed his respective concerns regarding the credibility of the evidence before him, the trial judge then concluded as follows:

I am unable to accept the defendant’s evidence, and it does not leave me in reasonable doubt. I conclude that Mr. Battisti made the utterance alleged. He did so knowingly, in a state of mind to scare or intimidate Ms. Bonavia, or for her to take him seriously.

Considering the totality of the evidence, I am of the view that I am satisfied beyond a reasonable doubt, and the accused will be found guilty on all counts.

[27] Following delivery of the trial judge’s reasons for judgment, the matter was adjourned in order that a victim impact statement could be obtained from Ms. Bonavia. In due course, victim impact statements from both Ms. Bonavia and her father, both dated January 17, 2018, were received and considered by the trial judge in sentencing the appellant.

[28] I was advised by counsel that Ms. Bonavia and the daughter Emma currently reside in Ottawa, having relocated back to Ottawa shortly after the incident with the assistance of the complainant’s father.

[29] On appeal, the appellant seeks an order quashing the appellant’s conviction on the three counts and entering an acquittal therefor or, in the alternative, ordering a new trial.

Issues

[30] In his notice of appeal, the appellant raises six grounds of appeal, some of which overlap with each other to a degree, and not all of which were fully pursued in oral argument. I would summarize and recast the grounds as follows:

a. Did the trial judge misapprehend the evidence in rejecting the appellant’s denial of making the words as alleged and in finding the appellant guilty based upon the appellant’s “post-offence conduct”?

b. Did the trial judge misapprehend and misapply the evidence of the complainant in assessing her credibility?

c. Did the trial judge fail to provide sufficient reasons for judgment in support of his W.(D.) analysis and his rejection of the credibility of the appellant?

d. Did the trial judge incorrectly apply the burden of proof applicable in civil cases?

e. Did the trial judge impose a sentence that was unfit in the totality of the circumstances and unreasonably exceeded the period of probation requested by the Crown?

Standard of Review

[31] The limited powers of a summary conviction appeal court are set out in s. 822(1) of the Code, which incorporates by reference the powers of the Court of Appeal as set out in s. 686 of the Code. As such, on an appeal against conviction, a summary conviction appeal court may allow the appeal only where:

a. the verdict is unreasonable or cannot be supported by the evidence;

b. the trial judge erred on a question of law; or

c. there was a miscarriage of justice on any ground.

[32] The limited jurisdiction of a summary conviction appeal judge was described by the Ontario Court of Appeal in R. v. Smits, 2012 ONCA 524, where the court held that:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[.]

[33] Our Court of Appeal has said that the function of a summary conviction appeal judge is to determine whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt.

[34] To the same effect is the recent reiteration by our Court of Appeal in R. v. Polanco, 2018 ONCA 444, released May 11, 2018, where Nordheimer J.A. said on behalf of the unanimous court that:

The jurisdiction of a summary conviction appeal judge is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge is also not entitled to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[.]

[35] In the same vein is the explanation of the function and scope of a summary conviction appeal judge offered by Durno J. in R. v. Salerno, [2000] O.J. No. 3511 (S.C.J.):

Before examining those areas, the function and scope of a judge sitting on summary conviction appeals must be kept in mind. I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. I can examine the transcript and determine if there was evidence upon which the trial findings could reasonably have been made. I cannot substitute my own findings of fact when there was a basis for those reached by the trial judge. The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made I cannot interfere.

[36] Thus, in short, I agree with the Crown’s factum that a summary conviction appeal is not a rehearing in the hope of a better outcome.

[37] It is trite law that the factual findings made by the judge at first instance should not be overturned unless the appellant demonstrates “palpable and overriding error.” As the Supreme Court of Canada said in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, that is a “stringent standard,” requiring an appellate court to afford the trial judge a “high degree of deference.”

[38] Further, a question of mixed fact and law is also subject to the deferential “palpable and overriding error” standard, subject to the limited exception of whether an extricable error of pure law can be identified.

Analysis

[39] Before examining some of the specific grounds of appeal advanced by the appellant, I would make one general observation by way of overview on the various grounds alleged by the appellant that the trial judge misapprehended the evidence in one manner or another. Almost all of the grounds raised in the instant appeal seek to impugn either the trial judge’s assessment of credibility or the findings of fact made by the trial judge or the weight he assigned to various aspects of the evidence before him.

[40] I have already referenced the familiar standard, reiterated in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, that a trial judge’s findings of fact should be reversed only where the appellant demonstrates that the findings were infected with “palpable and overriding error.”

[41] To be clear, in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, the Supreme Court also held that the palpable and overriding error standard applies to the trial judge’s assignment of weight to the evidence before the court, as follow:

We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts.

[42] In a similar vein, it is well-settled that a trial judge’s findings on credibility are also due a high degree of deference. The Supreme Court of Canada has repeatedly held that a trial judge’s findings on credibility should be set aside only if they are unreasonable. In R. v. W. (R.), [1992] 2 S.C.R. 122, writing for a unanimous Supreme Court, McLachlin J. (as she then was) held that:

That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility... The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.

[43] Counsel for the appellant did not take issue with the authorities relied upon by the Crown in this regard and acknowledged in oral argument, quite fairly, that the appellant faces a “very high threshold.”

Did the trial judge misapprehend the evidence in rejecting the appellant’s denial of making the words as alleged and in finding the appellant guilty based upon the appellant’s “post-offence conduct”?

[44] As I have said, Mr. Battisti denied making both statements as alleged by the complainant. The trial judge was acutely aware of this. It lay at the crux of the credibility case before him. Indeed, the “he said – she said” quality to the instant case was very simply that the complainant testified that Mr. Battisti made the statements in issue, and he denied that he ever did.

[45] The appellant submitted on the appeal that the trial judge misapprehended the evidence and “improperly assessed” the evidence of the appellant “based upon the post offence conduct in which [the appellant] left the area where [the complainant] and [their] daughter had exited the vehicle leaving them to fend for themselves.” The appellant submitted that the trial judge “used this conduct as the primary focus in making [his] determination and subsequent findings.”

[46] It is trite to say that the trial judge was required to consider all of the evidence before him. As such, it was completely proper for the trial judge to consider the actions of Mr. Battisti, as well as what he (and the complainant) said took place.

[47] To the extent that the appellant’s argument appears to be that the trial judge somehow used the evidence of Mr. Battisti pulling over “roadside” in the parking lot of the marina and then “[driving] away and [abandoning] the complainant and their daughter at roadside with no idea where they are going to go and how” as evidence of post-offence conduct in the sense that a person who would do such a horrible thing is more likely to have committed the offences in question, I reject that suggestion. It is manifestly clear that is not how the trial judge used that evidence.

[48] Rather, the trial judge used that evidence as one factor in his credibility analysis. In that regard, the trial judge’s assessment of credibility on that point, in effect, started with the assumption that the appellant was telling the truth when he testified that at some point when they were at the parking lot of the marina, and the complainant having previously exited the vehicle, Mr. Battisti asked the complainant to get back in the car and, in particular, he maintained that he was always polite and he said to her, “get in the car, please.”

[49] The trial judge, having assuming that Mr. Battisti was telling the truth when he testified that he was always polite and asked the complainant to “get in the car, please,” then juxtaposed that self-description of Mr. Battisti’s demeanour with his objective actions of driving away and abandoning the complainant and their daughter “at roadside with no idea where they are going to go and how.” And the trial judge weighed the evidence of Mr. Battisti’s professed demeanour against his subsequent actions of driving off and abandoning his family, and he questioned what state of mind Mr. Battisti must have been in if he was prepared to take such actions and drive off, which in fact he did. And to paraphrase the reasoning of the trial judge, it was incomprehensible to the trial judge that a father who was so distraught so as to drive off and actually abandon “a child for which he professes to bear a great deal of love, and he makes no effort to check on their well-being until one to two hours later,” would be calm, collected, and polite. The trial judge reasoned that, in effect, only a father who was terribly distraught would do such a thing and abandon his beloved daughter – and that state of mind of being so distraught is inconsistent with someone who testified before the court that he was always calm, polite, and actually asked the complainant to “get in the car, please.”

[50] Thus, the trial judge did not accept Mr. Battisti’s evidence that he was calm and polite and proper in his dealings with the complainant. And in rejecting that evidence, the trial judge drew some adverse inference as to the credibility of Mr. Battisti in initially giving that evidence before the court as to his professed demeanour – as he was entitled to do.

[51] Therefore, in my view, it is abundantly clear that the trial judge did not use the evidence of Mr. Battisti’s post-offence conduct as something akin to “bad character” evidence. Rather, the trial judge used the evidence of that conduct as part of his credibility analysis, from which he drew certain inferences as to Mr. Battisti’s state of mind and his credibility as a witness – as he was entitled to do.

[52] In a somewhat similar vein, the appellant takes issue with the trial judge relying on what the appellant calls “bad character evidence” in reaching his decision. The appellant argues that it was improper for the trial judge to rely upon the “bad character” evidence of Mr. Battisti’s alleged excessive drinking, daily habit of smoking marijuana, and not contributing to the family’s finances.

[53] As I have recited above, the trial judge did mention these factors in the course of his reasons. However, contrary to the assertion in para. 21 of the Appellant’s Factum that the trial judge “focused on the excessive drinking habits, daily smoking of marihuana and a failure to contribute to the family finances,” the trial judge did not “focus” on these features of Mr. Battisti’s alleged behaviour at all. The one and only time that the trial judge mentioned the allegations was in his initial summary of the evidence given by both parties. At that point, the trial judge was simply listing certain alleged behaviours of Mr. Battisti that the complainant took issue with, just as he then proceeded to list certain aspects of the complainant’s alleged behaviour (e.g., her constant nagging, possessive nature with their daughter, her inability to get along with his parents, etc.) with which Mr. Battisti took issue. As I have said, his summary of that evidence was, to my mind, quite even-handed. The trial judge never mentioned or alluded to the behaviour again in his reasons. There is therefore no basis to suggest that the trial judge was “focused” on such evidence or that it played any central or significant role in his ultimate decision.

[54] In sum, there is no merit to this ground of appeal, and it must be dismissed.

Did the trial judge misapprehend and misapply the evidence of the complainant in assessing her credibility?

[55] Mr. Scott argued that in assessing the credibility of the complainant, and rejecting the evidence of the appellant, the trial judge did not fully consider the “flawed evidence of the complainant.”

[56] One of the concerns to which the appellant points is the conflicting evidence over the cause of the argument on April 27, 2017. The appellant submitted that:

… the nexus of the argument on the date alleged in the information related to an argument over payment made by [the complainant] to the appellant for driving her to her babysitting job. When assessing this evidence it defied logic that this was the cause of the argument as stated by [the complainant], which caused the court to reject the explanation by the appellant, arbitrarily, when in fact [the complainant] acquiesced to the fact that part of the argument was over the wedding. To do so the court failed to recall the evidence of [the complainant] who testified that it would ordinarily be $15 per day and she was working three days instead of 4 that week so she would have to give the appellant $45 that week but she had given him $25 and he wasn’t happy with that so she had to give him $15 more, referring to pulling over at Beachgrove.

[57] It is common ground that the argument that day was about money; however, each party had their own perspective as to the genesis of the argument. I agree with the submissions of the Crown that nothing much turns on the actual cause or genesis of the argument on the day in question.

[58] In any event, for what it is worth, the trial judge was alive to the differences in the evidence of the two parties as to the cause of the argument on that day. In his reasons for judgment, the trial judge noted that:

There’s some disagreement as to why the parties argued on April 27th. The defendant said it was due to the failure of the complainant to save her money to attend his friend’s wedding in Ottawa, and the complainant said it was over her argument that morning with his mother and the gas money that Mr. Battisti wanted her to pay him to drive her to work. Needless to say, it is evident from the evidence heard and the demeanour of both parties while giving their evidence that the relationship was at a level of toxicity that an eruption was inevitable.

[59] Secondly, there was concern expressed that the trial judge failed to consider the credibility of the complainant in light of her evidence that she was not actually certain of the exact words allegedly used by Mr. Battisti in making the alleged threats or the order of the words or phrases used in the alleged threat.

[60] Again, the trial judge was alive to this issue, and it is clear from the transcript that he turned his mind to the issue. Indeed, it was the trial judge who, in counsel’s closing argument, expressly raised the point with Crown trial counsel, as follows:

THE COURT: And maybe you can assist with this. If you don’t remember the words exactly how they were – the way they were said, does it impact whether or not those words constitute a – what one might reasonably think is a threat if – if it’s in a different order or if it’s said differently? In this case I’m thinking more the first one as opposed to the second one …

MR. PRATT: Yes.

THE COURT: … which – concerning the river, which is where she said she didn’t remember the order of the words. And so in terms of coming to a conclusion, if it was said differently does it affect or should it affect my decision as to whether or not it was said reasonably to create intimidation or fear?

MR. PRATT: Well, her – her – and I think it’s important to look at the specific words, because there may well be a situation where the context is such that if you re-arrange the sentence that maybe it does change it. But in my submission where he said, “I can just drive the car into the river with all three of us right now,” or “I could take all three of us and drive into the river,” in my submission it’s not relevant. And – and I’m paraphrasing. Your Honour will have her – her evidence on that point. But, in my submission, in this context, with these words, it’s not relevant because either one would have been taken seriously and were taken seriously by Ms. Bonavia. If – if someone says, “You’re a jerk. I’m going to kill you,” or says, “I’m going to kill you. You’re a jerk,” those are both threats, whether it’s said one way or the other, and in my submission this is tantamount to that example. Whether he said “the three of us” first or “drive into the river[“] first, either way, in my submission, objectively and subjectively that is a threat, and it was one taken seriously by the complainant.

[61] In my view, it cannot be said that the trial judge failed to consider the shortcomings in the complainant’s evidence in this regard. Indeed, I agree with the Crown on appeal that the exchange with Crown trial counsel evidently addressed the concern in the trial judge’s mind.

[62] The same analysis applies to the suggestion that the complainant’s evidence was not credible or reliable because she had difficulties relating or recalling the location of the parties when she claims the incidents occurred. Again, the trial judge was alive to this issue, and he expressly touched on the issue – and dismissed the concern – in his reasons.

[63] In sum, I would say that in dealing with the charges at hand, the trial judge was required to make findings of fact, and in the course of his analysis he made findings of credibility. A trial judge may accept some, all, or none of the evidence of a witness.

[64] As I have indicated above, a trial judge’s assessment of the evidence and findings of fact and credibility must be accorded substantial deference by the reviewing appellate court. It is not the role of this appellate court to retry the case and reverse findings of fact of credibility that were not favourable to Mr. Battisti. To the extent that Mr. Battisti seeks to have this court set aside these findings, he has not shown any palpable or overriding error that infected the findings made by the trial judge. The findings of fact and credibility made by the trial judge were available to him based on the evidence before the court at trial. I cannot say that the findings of credibility made by the trial judge were unreasonable in the circumstances. The appellant has shown no basis to interfere with those findings.

[65] This ground of appeal must be dismissed as well.

Did the trial judge fail to provide sufficient reasons for judgment in support of his W.(D.) analysis and his rejection of the credibility of the appellant?

[66] The central argument of the appellant on this point was that the trial judge was duty-bound to give more fulsome reasons on why the court decided to dismiss Mr. Battisti’s blanket denial of making the statements as alleged and his evidence concerning the so-called post-offence conduct.

[67] In its recent decision in R. v. J.L., 2018 ONCA 756, the Ontario Court of Appeal dealt with a challenge to the adequacy of the trial judge’s reasons in the context of a sexual assault case where the case turned largely on the question of credibility. The court summarized the governing principles as follows:

Appellate courts are to take a functional approach to reviewing the sufficiency of reasons, keeping in mind that reasons do not have to meet a standard of perfection: R. v. Sheppard, [2002] 1 S.C.R. 869, at para. 55; R. v. R.E.M., [2008] 3 S.C.R. 3. An appeal based on insufficient reasons will only be allowed when the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25 and R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 25. As Chief Justice McLachlin stated in R. v. H.S.B., [2008] 3 S.C.R. 32, at para. 2:

So long as the trial judge fulfills the purpose of giving reasons – to explain the decision, to provide public accountability and to permit meaningful appellate review – a court of appeal is not justified in interfering with the verdict on the grounds of insufficiency of reasons. The purposes of giving reasons are fulfilled where the reasons for judgment, read in context, establish a logical connection between the verdict and the basis for it – in other words, the reasons must explain why the judge made his or her decision. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

As acknowledged by the trial Crown in his closing submissions, this case turned largely on credibility. In Dinardo, Charron J. addressed the approach to reviewing reasons rooted in credibility findings: “Where a case turns largely on credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”: Dinardo, at para. 26.

[68] In my view, the instant appeal is not one of those rare cases where the alleged deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.

[69] This is a case where there was a blanket denial. As I have said, the trial judge noted the blanket denial. The trial judge conducted a credibility analysis in accordance with the W.(D.) framework. The trial judge gave reasons supporting his credibility analysis, which I have set out above. In the course of his reasons, the trial judge turned his mind to and addressed the alleged inconsistencies or frailties in the complainant’s evidence. He explained why he did not accept the appellant’s blanket denial.

[70] Among other concerns expressed by the trial judge over the so-called post-offence conduct, addressed above, the trial judge took issue with Mr. Battisti’s professed calm demeanour throughout his contact with the complainant. Despite the obvious ill-will and constant arguing between the parties, Mr. Battisti maintained that he never engaged in yelling, swearing, or being verbally abusive. Indeed, the evidence of Mr. Battisti was that he never even got angry. The trial judge noted the incongruity, which he took to be relevant for purposes of the credibility analysis. As such, again, the reasons given by the trial judge for rejecting the evidence of Mr. Battisti included the following:

I do not accept Mr. Battisti’s evidence. Despite the beleaguered state he was in due to the constant calling, texting, bickering, as he described it, that she was in his ear at all times, requiring him at some point in time to lock himself in his parents’ apartment, he never admitted his role in this regard. He never admitted yelling, swearing or being verbally abusive. In fact, he resisted, despite questions being put to him, admitting being angry, which would have been a most likely response if his evidence was in fact true.

[71] In sharp contrast to the trial judge’s finding that Mr. Battisti accepted no role in the acrimonious relationship, the trial judge expressly noted that the complainant “admitted being angry and did not deny her participation in the arguments or the acrimony between the parties.”

[72] I appreciate that the trial judge’s six-page reasons for judgment are somewhat brief; however, in my view, they explain why the trial judge made the decision that he did, and they are not so deficient as to foreclose meaningful appellate review. Again, as McLachlin C.J.C. said in R. v. H.S.B., in the passage quoted above, “[a] detailed description of the judge’s process in arriving at the verdict is unnecessary.”

[73] I therefore dismiss this ground of appeal.

Did the trial judge incorrectly apply the burden of proof applicable in civil cases?

[74] Although not expressly set out in the appellant’s notice of appeal, in two instances in his factum, the appellant submits that the trial judge “without quoting the civil standard of assessing credibility, perhaps unwittingly applied that standard” in conducting its W.(D.) analysis. As Mr. Scott submitted in oral argument, the court cannot simply prefer the evidence of the complainant over that of the defendant in the sense of what probably happened. Such an approach would effectively ignore the burden of proof in a criminal case and essentially shift the burden to the accused.

[75] I find no merit in this submission.

[76] Leaving aside the general proposition, which has been endorsed by the Supreme Court of Canada on more than one occasion, that “it is presumed that judges know the law with which they work day in and day out,” it is plain that the trial judge here was well aware that the applicable burden of proof on the Crown in a criminal case is proof beyond a reasonable doubt. This is abundantly clear from his express articulation at the outset of his reasons that the Crown “bears the burden of proving the elements of this offence beyond a reasonable doubt.”

[77] Further, it is clear that the trial judge well knew that in the context of a criminal case, he was not permitted to decide the case on the basis of a “credibility contest,” that is, on the basis that he simply preferred the evidence of the complainant.

[78] In my view, the trial judge clearly demonstrated his understanding that he was not permitted to resolve the criminal charges before him simply on the basis of whose version of the evidence he preferred. Again, at the outset of his reasons, he specifically cited the Supreme Court’s decision in W.(D.) and he went on to expressly lay out the applicable framework of analysis. The trial judge then proceeded to conduct a credibility analysis in accordance with the W.(D.) framework, as I have already found. At the end of his analysis, the trial judge, again, concluded that:

I am unable to accept the defendant’s evidence, and it does not leave me in reasonable doubt. I conclude that Mr. Battisti made the utterance alleged. He did so knowingly, in a state of mind to scare or intimidate Ms. Bonavia, or for her to take him seriously.

Considering the totality of the evidence, I am of the view that I am satisfied beyond a reasonable doubt, and the accused will be found guilty on all counts.

[79] Accordingly, in my view, there is absolutely no merit in the suggestion by the appellant that the trial judge, who, of course, deals with the criminal burden of proof beyond a reasonable doubt in his work day in and day out, and having plainly and expressly demonstrated his understanding of the burden of proof in a criminal context on the second page of his reasons for judgment, somehow “forgot” what the applicable burden of proof was in the course of the following four pages of his analysis and conclusion.

[80] The appellant’s submission must fail.

Did the trial judge impose a sentence that was unfit in the totality of the circumstances and unreasonably exceeded the period of probation requested by the Crown?

[81] As reflected in para. 24 of the Appellant’s Factum, the only aspect of the sentence imposed on Mr. Battisti that he challenges on appeal is the condition that reads:

In addition, you are to notify the Windsor Police Services should you leave Essex County during the three-year probation period and where he intends to go to Ottawa as one of his destinations.

[82] I understand that in the course of the sentencing submissions before the trial judge, Mr. Scott argued for a one-year probation term and the Crown at trial argued for a two-year probation term.

[83] The appellant argues that keeping the notification requirement if he intends to travel to Ottawa in place for three years is excessive, unfit, and not in keeping with the proportionality principle given that Mr. Battisti has only a very limited and dated criminal record.

[84] I approach the appeal as to sentence bearing in mind that, as the Crown submissions remind us, the sentences of trial judges should not be interfered with lightly. Indeed, it is well-settled that appellate courts should afford sentencing judges considerable deference when reviewing the fitness of a sentence. The Supreme Court of Canada has held that absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court should intervene to vary a sentence imposed at trial only if the sentence is demonstrably unfit.

[85] In R. v. M. (L.), [2008] 2 S.C.R. 163, the Supreme Court said that:

In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered a different one.

[86] In R. v. Lacasse, [2015] 3 S.C.R. 1089, the Supreme Court explained that consideration of the fitness of a sentence does not justify an appellate court taking an interventionist approach on appeal in the following terms:

An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.

[87] In the instant appeal, the appellant makes no suggestion that the trial judge committed some error in principle, failed to consider a relevant factor, or placed overemphasis on one or more of the appropriate factors. The appellant merely submits that the three-year notification condition is unfit.

[88] I appreciate that the three-year term of the probation imposed, and therefore the continuation of the travel notification requirement, goes beyond the two-year probation term that the Crown sought at trial. However, the Supreme Court has said that deviation from even an established sentencing range is not in itself a basis for appellate intervention unless the sentence is demonstrably unfit.

[89] A sentence is demonstrably unfit if it unreasonably departs from the fundamental principle of proportionality in light of the individual circumstances of the offence and offender, and the acceptable range of sentence for similar offences committed in similar circumstances by similar offenders.

[90] Courts have used a variety of expressions to describe a sentence that is demonstrably unfit, such as “demonstrably unfit,” “clearly unreasonable,” “clearly or manifestly excessive,” “clearly excessive or inadequate,” or representing a “substantial and marked departure.” “All these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence.”

[91] I appreciate Mr. Scott’s observation that probation conditions like the impugned restriction here are not common in his experience. I do not quarrel with that. However, restrictive “banishment” terms in probation orders that bar an offender from a specified geographic area are admittedly rare but permissible. They are protective rather than punitive. In making a banishment order, all the circumstances should be taken into account, including the impact on the victim and the wrongdoer; the nature of the wrongdoing; the presence or absence of violence; whether alternate measures are available; and whether there is some logical connection between the offensive conduct and the geographic area.

[92] However, it bears emphasizing that the impugned restriction here is not a banishment order. Rather, it is only a reporting condition. The restriction does not prohibit Mr. Battisti from travelling to Ottawa; it merely requires that he notify the Windsor Police Service if he is leaving Essex County and intending to travel to Ottawa. I do not regard such a reporting condition as giving rise to any particular undue hardship, and certainly there is no evidence or indication of that in the material before me.

[93] In the instant case, the proceedings before the trial judge were adjourned after the court delivered its reasons for judgment so that the court could receive a victim impact statement from the complainant. As I have said, eventually the court received victim impact statements from both the complainant and her father. I have reviewed both statements. The complainant’s statement speaks to the ongoing fear and anxiety that she continues to experience, and the concomitant physical, emotional, and financial repercussions. The statement indicates that the complainant remains very concerned that the appellant may come to Ottawa and engage in further harmful behaviour. It notes that all of the appellant’s family other than his parents and many of his friends continue to reside in the Ottawa area. It specifically requests that consideration be given to a sufficient restriction requiring the appellant to notify the police if he intends to travel to Ottawa.

[94] Having regard for the material before the trial judge, I cannot say that the condition in question is unreasonable. Again, it is a notification requirement only. It is clearly fashioned to be protective in nature and not punitive. It is triggered by the appellant’s intention to attend at a specific location that is not overly broad in geographic scope. Moreover, there is a clear rational connection between the geographic area and the complainant and the potential harm the condition seeks to avoid.

[95] I conclude that the appellant has failed to demonstrate that the impugned probation condition is demonstrably unfit, clearly unreasonable, or manifestly excessive. Considering all the circumstances of the offence and of the offender, and having regard for the contents of the victim impact statements, I would not interfere with the sentence imposed by the trial judge, nor would I disturb the probation condition on appeal.

Conclusion

[96] For the reasons above, I conclude that the appellant has failed to establish that the trial judge misapprehended the evidence before him at trial or that his findings of fact and credibility were unreasonable or unsupported by the evidence, that he erred on some question of law, or that there was otherwise a miscarriage of justice on any ground.

[97] I also must conclude that the appellant has failed to establish that the sentence imposed by the trial judge and, in particular, the probation condition requiring the appellant to notify the police should he travel to Ottawa, is demonstrably unfit or unreasonable.

[98] Accordingly, the appeal must be dismissed.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard Justice

Date: July 3, 2019