COURT FILE NO.: CR-17-115

DATE: August 9, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

Ed Slater, for the Crown Attorney

• and -

STANLEY OBIORA

Appellant

Laurence Cohen, counsel for Stanley Obiora

HEARD: July 30, 2019

JUDGMENT

The Honourable Mr. Justice H. S. Arrell

INTRODUCTION:

1The appellant appeals his convictions before Baker, J. of the Ontario Court for assault, uttering threats, and mischief under $5000.00.

2After hearing submissions and reviewing the record, I dismissed the appeal with written reasons to follow. These are those written reasons.

GROUNDS OF APPEAL:

3The appellant’s factum and application set out the following grounds of appeal:

a. That the trial judge erred with respect to her analysis of W. D.;

b. That the trial judge failed to resolve material inconsistencies and difficulties with the complainant’s evidence;

c. That the trial judge made conclusory determinations of credibility; and

d. That the trial judge failed to apply the second and third branches of the W. D. test.

4Counsel for the appellant in the oral submission before me, however, indicated there was only one issue he was advancing, that being an error in applying the second branch of the W. D. test by the trial judge. The other grounds of appeal were abandoned.

POSITION OF THE PARTIES:

5In essence the argument advanced by the appellant is that the learned trial judge made no analysis of the second prong of the W. D. test. He argues that the trial judge simply indicated she believed the complainant and disbelieved the appellant, and that he says, is not a sufficient analysis of the second prong of the W. D. test.

6The crown argues that the trial judge was alive to the all aspects of W.D. as reflected in her lengthy and full reasons.

FACTS:

7The facts of this incident are well set out in the trial judge’s decision and need not be canvassed in detail for the purpose of this appeal. The charges revolve around a domestic dispute in a parking lot.

8The complainant was a former domestic partner of the appellant. She was in her vehicle with the children parked in a parking lot. She was to meet the appellant who was to give her some money for the children. He arrived, and while delivering the money to her, a verbal dispute occurred which she testified escalated into a physical altercation and her being punched on three occasions through the open window of her vehicle.

9The appellant denied the assault completely and testified that the car window was broken when the complainant rolled it up and drove off while his hand was caught in it as he spoke to her through the driver’s window.

10There were several witnesses who saw various aspects of this interchange.

11The appellant, as well as the complainant, and the three independent witnesses, gave evidence over the course of three days.

12The trial judge gave a 19-page decision outlining the facts as she found them and applied them to the law.

ANALYSIS:

13The trial judge was clear in reminding herself on several occasions that the appellant was presumed innocent and that the Crown had the burden of proof beyond a reasonable doubt. At some length she analyzed the evidence of the appellant and found it not to be credible. She also analyzed the evidence of the complainant which she accepted. In analyzing the evidence of both the appellant and the complainant, she compared it to the evidence of the three independent witnesses and pointed out inconsistencies between the appellant’s evidence and theirs, and corroboration between the complainant’s evidence and the evidence of the independent witnesses.

14The trial judge reminded herself at the beginning of her judgment of the test of W. D. She clearly rejected the evidence of the appellant, satisfying the first prong of the W. D. test.

15The trial judge also clearly satisfied the second prong of the W. D. test by pointing out that the evidence of the appellant did not raise any reasonable doubt in her mind. She did that at some length when she rejected his evidence and again analyzed his evidence in comparison to the independent witnesses and the various inconsistencies between the appellant’s evidence and theirs, as well as the evidence of the complainant of which she accepted. She stated her conclusions regarding the second prong of W.D. very clearly at page 17 “I am not left in any reasonable doubt by the evidence of the accused.” Prior to that she had already analyzed why she had no reasonable doubt, as a result of the evidence of the appellant, based on his credibility and the independent witnesses’ evidence.

16The trial judge was clear to point out that the independent witnesses did not see everything but what they did see corroborated the evidence of the complainant and was inconsistent with the evidence of the appellant.

17At the end of the judgement the trial judge properly set out the third branch of the W. D. test by indicating that she was satisfied on a totality of the evidence that the Crown had proven all three offences beyond any reasonable doubt.

18The trial judge, in my view, never turned the case into preferring the evidence of the complainant over the evidence of the appellant as a direct evidentiary contest. She analyzed the evidence of both and determined which was most credible in conjunction with the independent witnesses’ evidence.

19The trial judge must be afforded great difference in her assessment of the witnesses’ credibility. She saw them give evidence, she heard their evidence, and she heard the inconsistencies. See; R v. H(W), 2013 SCC 22.

20An appellate court that reviews a trial court’s assessment of credibility in order to determine whether the verdict is reasonable, cannot interfere with those assessments unless it is established that they cannot be supported on any reasonable view of the evidence. R v. H(W) supra. at para 10; see also R v. Magno, 2015 ONCA 111 at para. 72-73.

21The trial judge gave fulsome and detailed reasons for her findings of credibility. There was ample evidence before her to make the determinations of credibility that she did. She was well aware of the three tests in W. D. and applied them at length in her reasons, based on the facts as she found them. Her conclusions were fully supportable based upon the record before her and the evidence that she heard.

CONCLUSION:

22For the above reasons, the appeal is dismissed.

Arrell, J.