Court File and Parties
Court File No.: SCA(P) 851/18 Date: 2019-07-16
Ontario Superior Court of Justice Summary Conviction Appeal Court
Between:
Her Majesty the Queen, Respondent (Daniel Galluzzo, for the Crown)
- and -
Howard Atkinson, Appellant (Self-Represented)
Heard: April 23, 2019
Summary Conviction Appeal Judgment (on Appeal from the verdict of Justice E.A. Ready of the Ontario Court of Justice, December 20, 2017)
Tzimas J.
The Appeal
[1] The appellant was found guilty on two counts of assault, against his son and his wife. Two other charges were dismissed and a fifth one was withdrawn. He received a suspended sentence and probation for a period of 18 months, concurrent.
[2] The appellant appeals the conviction and sentence. As a self-represented individual, the appellant’s legal reasons and explanations for why he brought the appeal were blended and not very clear. But practically speaking, the appellant was unhappy with the outcome and asked this court to overturn his convictions and his sentence.
[3] His complaints effectively come down to the following grounds of appeal:
a. the trial judge misapprehended the evidence;
b. the trial judge was biased;
c. the trial judge misapplied the applicable law as that related to her credibility findings; and
d. the sentence was disproportionately harsh and unreasonable in the all of the circumstances.
[4] The Crown opposed the appeal and asked that it be dismissed.
[5] For the reasons that follow, the summary conviction appeal is dismissed.
Summary of Facts and Findings of the Trial Judge
[6] The evidence before the court was not complicated. All of the witnesses who testified agreed to the contours of what transpired on November 15 and 18, 2016 between the Appellant, his son and his wife.
[7] Beginning with the incident related to the appellant’s wife, everyone agreed that the assault was preceded by a struggle over a purse and more particularly the Appellant’s attempt to obtain the keys to his car, which he thought were concealed in his wife’s purse. The trial judge concluded that on the totality of the evidence before her, at some point the struggle over the purse got out of control, it became “too physical”, the Appellant lost it, became angry and used his strength to push his wife into a corner and crush her. Specifically, the trial judge concluded at p.197 of the transcript:
I am satisfied that this went over the line, this business about the purse, and that he, in fact, used far too much force in order to try to get that purse off of his wife, and he did so by using his weight, using his force and his strength to literally, as she testified, crush her down in the corner of the house or hallway.
[8] With respect to the incident concerning the Appellant’s fourteen year old son, that began with a disagreement and with the Appellant feeling that his son disrespected him. The Appellant explained that he felt he had to discipline his son for his disrespectful conduct. The allegedly disrespectful comment by the appellant’s son quickly disintegrated into a physical altercation that had the Appellant hitting his son, the son then hitting back in self-defence, and then the son running round a kitchen island in an attempt to get away from his father. At some point, the chase intensified, the son threw water at the Appellant to slow him down and the Appellant either swung or banged a barbeque implement on the kitchen counter to scare his son. As in the incident between the Appellant and his wife, the trial judge concluded that the Appellant lost it completely when he felt disrespected by his son and he resorted to hitting him as a form of discipline.
[9] With respect to the Appellant’s credibility the trial judge found that she neither believed the Appellant nor was left with any reasonable doubt by the evidence that he gave. She rejected his evidence for 6 reasons: i. the Appellant was evasive in his answers to straightforward questions; ii. His mandate was to justify his action by finding fault in his wife’s conduct and by alleging that his son disrespected him; iii. his tone would rise when he spoke about certain topics, and in doing so revealed and demonstrated his inability to control his emotions; iv. his recounting of the purse incident and the accidental brandishing of the barbeque implement was incredible and lacked common sense; v. the Appellant did not put portions of his evidence to either his son or his wife to enable them to give their respective explanations; and finally, f) he refused to answer certain questions.
[10] In contrast to the Appellant’s testimony, the trial judge found both complainants to be forthright and credible. She concluded that they were not evasive in their answers. She also concluded that through their testimony, the mother and the son corroborated each other, and that their versions of what happened made sense.
[11] In reaching this conclusion, the trial judge was very much alive to the fact that the Appellant’s marriage to his wife was in disarray and that it was marked by various disagreements. She also considered the son’s apology note, which the Appellant suggested confirmed that it was his son who was the aggressor in the situation. The trial judge disagreed and found that the note was a reflection of his son’s maturity and his expression of regret for the entire incident.
Position of the Parties
[12] Despite the appeal and the Appellant’s complaints over the outcome, the Applicant very candidly admitted in both his written and his oral submissions that he took full responsibility for his actions and that he had apologized for them. But he then explained that he did not believe that he did anything wrong. In his son’s case all he was trying to do was to discipline him for his disrespectful behaviour. With his wife, he denied crushing or squeezing her. All he was after was the keys to his car, which she refused to give up.
[13] Ultimately what seemed to frustrate the Appellant the most was his recognition that his resulting criminal record would impact his ability to maintain his General Insurance license. A conditional discharge, which he had requested as an appropriate punishment would have prevented such an outcome. A suspended sentence, which incidentally was satisfied by the time of this hearing, left him with a criminal record and therefore would impact his ability to be gainfully employed.
[14] Against these overriding concerns, the Appellant submitted that the judge misinterpreted the facts, misapplied the law, and that the judge was effectively biased against him. He felt that the judge was impatient with him but very patient with his wife and his son. He also felt that the Crown was putting to him the same question over and over and he could not understand why. He denied trying to be evasive. As far as he was concerned he spoke the truth.
[15] The Appellant also questioned the ease with which the trial judge held that the testimony by the wife and the son was corroborative. He contended that the judge failed to consider that the two witnesses had over a year to put together “their story against him” or that they colluded in their efforts to go after him. The judge should have been alive to such a possibility and taken it into account when she evaluated their evidence. Having failed to do so, the ease with which she accepted their evidence as credible was flawed and therefore unjust, amounting to an error.
[16] Finally, the Appellant enumerated a number of inconsistencies in the judge’s recounting of the two altercations, suggesting that she misunderstood some of the sequencing of events that resulted in the two incidents. He seemed to imply that had the trial judge understood the sequence of events, she would have agreed with his contention that he did not actually hit his son or crush his wife.
[17] On the subject of the sentencing, the Appellant reiterated his concern that a suspended sentence left him with a criminal record that impacted his ability to be gainfully employed. In light of such a consequence, the Appellant considered the punishment to be harsh and excessive.
[18] The Crown disputed the Appellant’s grounds of appeal. He submitted that the trial judge followed the analysis outlined in R. v. W.(D.), [1991] 1 S.C.R. 742, and she was very much alive to the Crown’s obligations to prove each of the five charges against the Appellant beyond a reasonable doubt. Her dismissal of three out of the five charges demonstrated her ability to engage with the beyond a reasonable doubt standard and only made guilty findings where that standard was met.
[19] On sentencing, the trial judge gave a comprehensive consideration of the aggravating and mitigating factors. She rejected the Crown’s request for a custodial sentence. She also rejected the Appellants request for a conditional discharge. She recognized that the latter would be in the Appellant’s best interests but that it would also be contrary to the public interest.
Analysis
[20] Even if the Appellant’s grounds for the appeal were inelegantly stated, his concerns are captured in the following questions:
a) Did the trial judge misapprehend the evidence?
b) Was the trial judge biased against the Appellant?
c) Did the trial judge misapply the law as that related to her engagement with the issue of credibility?
d) Was her sentence harsh and excessive in all of the circumstances?
I will turn to my consideration of each of these questions.
a) Did the trial judge misapprehend the evidence?
[21] In my view, having reviewed the trial judge’s decision as well as the complete trial transcript, and having considered the submissions of the parties, both written and oral, I do not find that the trial judge misapprehended the evidence before her.
[22] I note that the standard of review of the trier of fact’s factual findings is stringent. The Court of Appeal for Ontario in R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 60 outlined the legal standard and applicable case law for appellate review based on a trial judge's alleged misapprehension of evidence as follows:
A misapprehension of the evidence may relate 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: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538. To set aside a conviction on the basis that the trial judge misapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge's reasoning and the alleged errors must play an essential part in the reasoning process, not just of the narrative. A mere misstatement or inaccuracy in the trial judge's treatment of the evidence does not constitute a reversible error: Lohrer at para. 2; Morrissey at p. 541; R. v. T.(T) (2009), 2009 ONCA 613, 68 C.R. (6th) 1 (Ont. C.A.), at para. 33.
[23] In this instance, the Appellant has failed to satisfy these requirements. To begin with, the Appellant did not deny that the two incidents occurred. He acknowledged both his wrongdoing and his apology. He took issue with some of the details over how the incidents unfolded but he did not deny that they occurred. His persistent denial that he hit his son or crushed his wife made no sense in the face of his stated acknowledgment that he took responsibility for his actions. If he did not hit or crush the complainants, why was he apologizing and for what was he taking responsibility?
[24] Perhaps most dramatically, embedded in the Appellant’s repeated attempts to justify his actions as a measure of discipline in his son’s case, and as a response to his wife’s unreasonable conduct were his admissions that he did assault both of the complainants. The trial judge was not wrong to take that into account as one of the reasons for which she could not find him credible
[25] Finally, to the extent that the trial judge’s summary of the details may have missed some particular nuances in the various descriptions given by the witnesses, they were not material to her reasoning and they did not result in any errors. Her findings of fact were grounded in the evidence before her.
b) Was the trial judge biased?
[26] The short answer to this question is no. It is perhaps trite that trials must be fair and must also appear to be fair to the reasonable observer. The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining the require information. The court must ask whether an informed person, viewing the matter realistically and practically – and having thought through the matter would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would decide fairly.
[27] The threshold for a finding of real or perceived bias is high and the onus rests with the party alleging it. Furthermore, the reasonable person must be informed, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background, and apprised also of the fact that impartiality is one of the duties the judges swear to uphold, see Committee of Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394 and R. v. R.D.S., [1997] 3 S.C.R. 484 at paras. 31, 111-115.
[28] When the alleged apprehension of bias is based on interjections from the bench, the standard is higher still. Appellate courts are often reluctant to interfere on the basis that a trial judge improperly intervened during the trial, as there is a strong presumption that a trial judge has not unduly intervened in a trial. There are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial, see R. v. Hamilton, 2011 ONCA 399, [2011] O.J. No. 2306 (ONCA) at paras. 29-33.
[29] I have considered the Appellant’s complaints. I have also reviewed the transcript carefully and thoroughly. It is evident that the Appellant tested the trial judge’s patience in more than one instance. However, she did not do anything or say anything to interfere with the appellant’s testimony or his submissions. In the very limited instances where she did interject, she did so to facilitate and clarify some of the Appellant’s answers. When the Appellant interrupted the trial judge’s giving of her oral reasons for her decision to express his disagreement, she was not wrong to react firmly and to resist the interruption.
[30] The Appellant’s concern that the trial judge’s bias was also reflected in her conclusion that the high volume of his voice and the changes in his tone confirmed his ability to lose control was unconvincing. In the trial judge’s reasoning, the Appellant’s demeanour was but one of six factors that informed the trial judge’s findings of fact. In contrast to the Appellant’s explanation that he always talks loud or that he is always animated in the way he talks, I cannot ignore his intense disagreements reflected in his trial transcript, and especially his angry eruption to hearing the conclusion that he was being found guilty on two of the five charges.
[31] Having regard for all of the above, this is exactly the situation where the trial judge is in the best position to evaluate a witness’ demeanour and engagement with the evidence and for which an appellate court should show deference. I recognize that what the Appellant may have been trying to get at, even if he did not use the specific expression was a suggestion that the judge’s reasoning demonstrated an unconscious bias. I might have been inclined to give that concern further consideration if the judge’s findings were based solely on the Appellant’s demeanour. But that was far from the case.
[32] The reality is that although the Appellant clearly did not like the outcome of the trial, there was nothing in the trial judge’s engagement with the case to suggest that she was biased against the Appellant. Clearly she was appalled by his conduct and grew increasingly impatient when in her view the Appellant was evading certain questions and insisted on a justification for his conduct. But those concerns did not cross any bias threshold.
[33] Arguably, if the judge were biased, she might not have been inclined to dismiss some of the other charges against the Appellant. In the same vein, she might have been inclined to accept the Crown’s request for a custodial sentence for the Appellant, something that she clearly rejected. Against that reality, the sensitivity with which the trial judge approached each of the charges, in my view, demonstrated her impartially and accordingly, I can find no basis for a finding that she was biased.
c) Did the trial judge misapply the law as that related to her credibility findings?
[34] Here again, in my view the trial judge did not misapply the law as that related to her credibility findings and her assessment of the evidence. I will not deny that her reasons might have been more tightly worded and clearer. But having regard for the fact that she gave oral reasons, under a very tight timetable, I can find no fault in the way she reached her findings or with her thought process. In her reasons, she provided a very clear and considered explanation for her findings and there is no reason to disturb them.
[35] It bears recognizing that when it comes to findings of credibility a trial judge is owed very high deference. In particular, having regard for the Appellants specific complaints, it is useful to remember the following principles. In R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377 at paras. 116-121, the Ontario Court of Appeal offered a very helpful summary of the principles involved when reviewing reasons and credibility assessments:
Several basic principles govern our review of the sufficiency of the reasons delivered at the conclusion of proceedings in which the credibility and reliability of the testimony of the principal witnesses is the focal point.
First, our approach is functional. An appeal based on a claim of insufficient reasons will fail unless the reasons are so deficient that they foreclose meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R. c. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10.
Second, credibility determinations attract a high degree of deference on appellate review: Dinardo, at para. 26; Vuradin, at para. 11; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66; and R. v. M.(O.), 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 19.
Third, to determine the sufficiency of reasons, we are to read those reasons as a whole in the context of the evidence adduced and the arguments and positions advanced at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16; and Vuradin, at para. 12.
Fourth, in composing reasons for judgment, a trial judge is not required to discuss all the evidence or to answer every argument advanced by counsel: R.E.M., at paras. 32 and 64; Dinardo, at para. 30; Vuradin, at para. 17; and M.(O.), at para. 28.
Fifth, we accord significant deference to a trial judge's appreciation of the evidence adduced at trial, as well as his or her findings on the credibility of witnesses and the reliability of their testimony. Absent palpable and overriding error, determinations of credibility and reliability made by the trial judge are to be respected on appeal: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; and M.(O.), at para. 19.
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm. [Citations omitted].
[37] In light of the Appellant’s failure to articulate with any precision the exact nature of the error in law by the judge, but in recognition that he pursued this appeal on his own and without necessarily a full appreciate for the finer points to the legal tests to be met before an appellate court will overturn a decision, I thought it appropriate to outline the above requirements. That said, when I consider the trial judge’s decision in light of these requirements, it only serves to underscore her diligence, her obligation and her entitlement to make the appropriate credibility findings. I would hasten to add that in making those findings, the trial judge took into account the totality of the evidence and did not reduce the analysis to a preference of one version of events over another.
[38] Insofar as the Appellant complained that his son and wife effectively colluded and manufactured a version of events that was designed to go after him, that allegation is simply unfounded. In any event, he did not put that allegation to either of the witnesses. In her assessment of the evidence, the trial judge gave due consideration to all of the evidence before she made her findings.
d) Was the sentence harsh or excessive?
[39] While I appreciate the impact that a criminal record can have on somebody’s employment prospects, I see nothing in the trial judge’s decision to permit such a finding. The judge’s analysis was measured and considered.
[40] Perhaps the greatest difficulty with the Appellant’s submission on this point is his continued view that he did nothing wrong, that he had to discipline his son for being disrespectful and that both he and his wife were pulling at the purse. His persistent attempts to justify his actions suggested that he did not learn from his errors. In the same vein, I suspect that but for the potential impact on his future employment, the Appellant would not be pursuing the appeal at all. But it does leave the court with the concern that apart from the implications on the Appellant’s employment prospects, the Appellant learned nothing from his suspended sentence and his probation. Ironically, that to some extent further underscores my finding that the penalty that the trial judge imposed was neither harsh nor excessive.
Conclusion
[41] In light of the foregoing, the appeal is dismissed in its entirety.
Tzimas J.
Released: July 16, 2019