COURT FILE NO.: CR-18-159-00AP

DATE: 20190913

ONTARIO

SUPERIOR COURT OF JUSTICE

(SUMMARY CONVICTION APPEAL COURT)

BETWEEN:

Her Majesty The Queen

Andrea Camilletti, for the Crown/Respondent

• and -

Jeffrey Loucks

Chris Sewrattan, for the Defence/Appellant

HEARD: August 15, 2019

REASONS FOR JUDGMENT

Sproat J.

I. Introduction

1Jeffrey Loucks was convicted of assault on his father Kenneth Loucks and assault causing bodily harm on his sister Carolyn Loucks. As they have a common surname I will refer to them by their first name.

2Jeffrey and Carolyn had a strained relationship. Kenneth is a retired business professor who lives at Sauble Beach. On the August long weekend in 2016 Carolyn came from Los Angeles for a visit. Jeffrey also came to Kenneth’s home with his two daughters, ages 4 and 6. Jeffrey and his daughters slept in a tent in the back yard. There were differences between Jeffrey and Carolyn as to the safety of the girls handling sparklers around an open fire and Carolyn offered unsolicited advice as to the treatment of a bug bite.

3Carolyn’s evidence was that Jeffrey was next door speaking with the residents when he noticed his daughters out of the tent and Carolyn told him she was taking the girls to the washroom. Jeffrey came over and he took the girls to the washroom and Carolyn went to her bedroom. Jeffrey then entered the bedroom, was angry and when she told him to back-off he pushed her and started to punch her. Kenneth came in and grabbed Jeffrey. Carolyn saw Kenneth and Jeffrey punch at one another.

4Paula Pimental was visiting friends at the cottage next door to the Loucks. She did not know any of the Loucks family. Pimental testified that Jeffrey had come over earlier in the evening with an alcoholic drink in his hand. Pimental heard a female voice call to Jeffrey at which point he appeared agitated, put down his drink forcefully. Immediately after that Pimental heard Jeffrey say words to the effect “those are my kids” and “you can’t tell me how”. Pimental called 9-1-1.

5Jessica Davies was also visiting at the neighbouring cottage. She testified that when a woman, obviously Carolyn, got the girls and took them inside the cottage Jeffrey became angry and left abruptly. She heard Jeffrey say words to the effect, “they are not your children – you have been undermining me all weekend.”

6Kenneth’s evidence was that he heard a commotion, went to Carolyn’s bedroom, and saw Jeffrey on top of Carolyn punching her several times in the face. He tried to pull Jeffrey off at which time Jeffrey attempted to punch him and Kenneth in turn tried to punch Jeffrey. Kenneth then ended up on the floor with Jeffrey on his back.

7Jeffrey’s evidence that:

1. He was not visiting with Pimental and Davies that evening but on an earlier occasion.

2. He went to Carolyn’s bedroom to talk to her. She was the aggressor and punched him in the face and kneed him in the groin.

3. Kenneth came in and held his arms and Carolyn punched him repeatedly in the face.

4. He struggled to get free from Kenneth’s grip and in doing so accidentally hit Carolyn in the face.

II. GROUNDS OF APPEAL

Browne v. Dunn Errors

8At no point during the calling of evidence or during submissions did the Crown raise any issue with respect to a breach of the rule in Browne v. Dunn. The trial judge, however, in her written reasons made six references to the failure of the defence to cross-examine on certain points. These references were made in the course of the trial judge’s analysis of the evidence and her findings of fact adverse to Jeffrey. While the trial judge did not refer to the rule in Browne v. Dunn, I conclude that she was identifying what she regarded as breaches of the rule in Browne v. Dunn. This was also the interpretation of the Crown.

9Jeffrey submits that the trial judge erred by, in two instances, finding a breach of the rule based upon the failure of the defence to put to a Crown witness evidence that the Crown elicited when cross-examining the accused.

10Jeffrey relies upon R. v. Graziano, 2015 ONCA 491. In that case the accused, a school teacher, was alleged to have sexually assaulted a student. After one of the alleged assaults, the accused was confronted by Hogan who was the Vice-Principal of the school. Hogan testified as a Crown witness. The accused testified in his defence. In direct examination, the accused did not lead any evidence about his confrontation with Hogan. In cross-examination, the accused provided testimony that contradicted Hogan’s testimony about the confrontation.

11The Court of Appeal held that Browne v. Dunn did not apply because the Crown elicited the contradictory evidence:

36 Here, however, defence counsel did not call contradictory evidence from his client. Quite the contrary. He did not wish to lead evidence from his client about any conversation between the appellant and Hogan. Had he done so, without first putting the contradictory evidence to Hogan on cross-examination, then depending on the significance of the evidence, the rule in Browne v. Dunn might well have been breached.

37 But the evidence the Crown wanted to address by calling Hogan in reply came from the appellant almost entirely during his cross-examination. Thus, to the extent the trial judge relied on the rule in Browne v. Dunn to permit the Crown to call Hogan in reply, she erred.

12The Crown concedes that the trial judge erred in finding these two instances to be a breach of the rule in Browne v. Dunn.

13Jeffrey submits that the judge further erred by finding a breach of the rule of Browne v. Dunn based upon a failure by the defence to suggest to Kenneth in cross-examination that Carolyn was struck by Jeffrey as he struggled to get his arm free from the grip of Kenneth. The Crown concedes that the trial judge was in error on this point because, in fact, this suggestion was put to Kenneth in cross-examination. The Appellant first cross-examined Kenneth about the Appellant accidently hitting Carolyn in the face at page 143 of the transcript:

Q. I’m going to suggest that he tried to loosen his arm and successfully did so, and at that point, connected fairly violently with your daughter?

A. No, not at that point. He was trying to flail at me.

14The Appellant further cross-examined Kenneth on this issue at page 155 of the transcript:

Q. And I’m going to suggest to you that that’s the point at which he broke free with one arm and connected very significantly with your daughter in and around the area of her nose?

A. Quite possible.

15Given the conceded Browne v. Dunn errors I do not find it necessary to analyze whether the trial judge was correct in finding additional Browne v. Dunn errors based upon her view that defence counsel at trial, not Mr. Sewrattan, had not put certain aspects of Jeffrey’s version of events to the Crown witnesses in sufficient detail.

Right to Remain Silent

16In R. v. Corbett, 2013 ONCA 431 the court held that the trial judge did not draw an adverse inference from the Appellant’s exercise of his right to silence by considering an inconsistency between the appellant’s statement to police and his evidence at trial.

17Mr. Sewrattan, however, submits that the trial judge went beyond a consideration of inconsistencies and in fact drew an adverse inference from the failure of Jeffrey to offer additional information to Officer Woods. I, therefore, now turn to the evidence at trial.

18After the altercation with Carolyn, Jeffrey went to the Sauble Beach O.P.P. Station, which was not staffed at the time, and made a 911 call which was admitted into evidence which included the following exchange:

Dispatcher: Okay. So do you need an ambulance?

What type of injuries do you have?

Jeffrey Loucks: I have, uh, I’m not sure what injuries…

19Officer Woods testified that as he was responding to the 911 call he was advised there were reasonable and probable grounds to arrest Jeffrey. Officer Woods arrested Jeffrey and read him his rights to counsel and police caution.

20At trial the Crown indicated that she intended to elicit from Officer Woods one specific utterance by Mr. Loucks being “I was assaulted first by my sister. I defended myself”.

21In re-examination Officer Woods was asked if he had observed any injuries to Jeffrey and he replied that he had not. Officer Woods then went beyond the question asked and added:

No. I believe at the time I asked him if he was injured at all and he advised me that he did not require medical attention.

22It appears that when this utterance was introduced it did not occur to counsel, or the trial judge, that there had been no admission as to the voluntariness of this statement. Having said that, it appears this statement was made after Mr. Loucks had been advised of his right to counsel and cautioned so there is no reason to believe it would not have been admitted into evidence if the issue had been raised.

23The Crown then cross-examined Jeffrey, as to why he did not tell Officer Woods about the pain he was in, as follows:

Q. And so, I would suggest that when, if you were still in pain – earlier it was excruciating pain, but if you were still in pain and the officer asked you, Do you have any injuries, I’m going to suggest it – it would make the most sense to say, you know what, I got, I, I got kicked in the groin or I’m having some pain in my groin. That would, that would make some sense to, to say something along lines?

A. Had it, you know, had he not proceeded with another question right afterwards, I probably would have. You know, I said I’m not sure, and he asked me another question. It was – you know, there wasn’t time to – he didn’t give me time to, to make a full answer.

Q. Okay.

24The trial judge stated in her reasons:

[85] I reject the defendant’s explanation for not telling Woods about the injuries he described at trial – that Woods did not give him sufficient time to answer the question. That suggestion was never put to Woods.

[86] The defendant testified that he suffered a concussion. He did not mention that in chief. In cross examination he brought this up. He did not know the doctor’s name who made the diagnosis. When questioned about this he told Ms. Camilletti that he told Woods about this. This was not put to Woods, he [Woods] having explicitly testified that the defendant did not report he had injuries.

[87] When the defendant spoke to the 911 dispatcher he was asked if he had any injuries and the defendant said he was unsure. He testified that he was in excruciating pain at the time from the groin “blasts” and still suffers the pain. I reject that evidence.

25As quoted above, Jeffrey told the 911 operator, after being asked if he needed an ambulance, that he was not sure of his injuries. Officer Wood asked Jeffrey if he was “injured at all”. Jeffrey did not answer that specific question but stated that he did not require medical attention. As a matter of common sense and experience many persons involved in fights or accidents suffer pain but decline an ambulance or medical attention.

26In my opinion the analysis of the trial judge went beyond taking into account inconsistencies between the original statement to the police and the evidence at trial. As I have explained, the statements to the 911 operator and Officer Wood did not indicate that Jeffrey was not in pain. Jeffrey simply indicated that he did not need an ambulance or medical attention.

27To then go on and question Jeffrey as to why he did not tell the officer about his level of pain, and then to attach adverse significance to his failure to do so and his explanation for that failure, constitutes an impermissible use and infringement of Jeffrey’s right to silence.

The Curative Proviso

28The Crown submits that despite these errors I should apply the curative proviso. In R. v. Brown, [2018] OJ No. 2756 the Court of Appeal explained the governing principles as follows:

[74] Section 686(1)(b)(iii) of the Criminal Code allows an appellate court to dismiss an appeal notwithstanding a legal error in the decision below if the court “is of the opinion that no substantial wrong or miscarriage of justice has occurred.” The proviso, as interpreted by the Supreme Court, applies where there is no “reasonable possibility that the verdict would have been different had the error in issue not been made”: R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599 (S.C.C.), at p. 617; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28. That test is satisfied in two situations.

[75] First, use of the curative proviso is appropriate where the error at first instance is “harmless or trivial”: Sekhon, at para. 53. The overriding question guiding this inquiry is whether the error “on its face or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a different verdict if the error had not been made”: R. v. Van, 2009 SCC 22, [2009] S.C.R. 22, at para. 35. When a case involves multiple errors at first instance, the cumulative impact of those errors can be relevant to determining whether the “harmless or trivial” test is satisfied: R. v. Bomberry, 2010 ONCA 542, 258 C.C.C. (3d) 117, at para. 79; R. v. Hill, 2015 ONCA 616, 23 C.R. (7th) 224, at para. 102.

[76] The curative proviso may also be applied in cases involving more serious errors, where the evidence is “so overwhelming” that a reasonable and properly instructed jury would inevitably convict: Sekhon, at para. 53; Van, at para. 36. This inquiry does not turn on the gravity of the trial judge’s errors, but on the strength of the Crown’s case. “Overwhelming evidence” has been described as a high standard, and “substantially higher than the requirement that the Crown prove its case ‘beyond a reasonable doubt’ at trial”: R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82. These onerous thresholds flow from the difficulties appellate courts inevitably face in “evaluating the strength of the Crown's case retroactively, without the benefit of hearing the witnesses' testimony and experiencing the trial as it unfolded”: Van, at para. 36. Accordingly, any measure of doubt concerning the strength of the Crown’s case should enure to the benefit of the appellant.

[77] The Crown bears the burden of establishing one, or both, of the preconditions to applying the proviso: Van, at para. 34. The two preconditions are not assessed in conjunction with one another – the seriousness of a trial judge’s error(s) is not balanced against the strength of the Crown’s case: R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at paras. 22-28.

29I cannot say that the errors of the trial judge were “harmless or trivial”. They related directly to the assessment of the evidence of the accused in a case in which credibility was extremely important.

30The fact that the trial judge resorted to identifying Browne v. Dunn errors also suggests to me that they were significant to the result. Put differently, if the trial judge was satisfied that the Crown evidence on its face proved Jeffrey’s guilt beyond a reasonable doubt, there was no need to go on and resort to Browne v. Dunn which had not even been mentioned during the trial.

31I do agree this was a very strong Crown case. There were, however, areas of frailty including the following:

a) There was long standing animus between Carolyn and Jeffrey so both had some motive to initiate a confrontation and blame the other.

b) Davies and Pimental did not give their statements to police until approximately 14 months after the fact. Pimental testified that she never discussed her evidence with anyone prior to attending court while Davies testified that she had discussed the events of that evening with family members, and people that were there, including Pimental.

c) Davies and Pimental testified that Jeffrey saw his daughters outside the tent with Carolyn and became agitated, went over and an altercation began immediately. Carolyn, however, testified that the altercation began when Jeffrey barged into her bedroom approximately 15 minutes after she had gone outside intending to take the girls to the washroom.

32I fully appreciate that the Crown had some persuasive arguments that these frailties should be discounted or were inconsequential based on the totality of the evidence. The totality of the evidence, of course, includes that Jeffrey’s evidence had been improperly discounted and discredited by virtue of the legal errors I have identified.

33As such, I cannot find that the evidence was so overwhelming (a standard higher than proof beyond a reasonable doubt) that a trier of fact would inevitably convict.

Conclusion

34The appeal is allowed and a new trial ordered.

Sproat J.