COURT FILE NO.: CR-18-30000016-00AP
DATE: 20191024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KEFIM LEGALL
Appellant
Scott Clarke, for the Crown
Ricardo Golec, for the Defendant
HEARD: September 26, 2019
Davies J.
REASONS FOR JUDGMENT
A. Introduction
[1] Kefim Legall was in a long‑term relationship with Brianna Thompson but by late 2016 or early 2017, they started having problems. In August 2017, Mr. Legall was arrested and charged with two counts of assault, one count assault with a weapon, one count of forcible confinement and one count of criminal harassment. Mr. Legall was convicted of all counts by Justice Cleary of the Ontario Court of Justice. Mr. Legall appeals his convictions on the basis that the trial judge’s reasons are insufficient.
[2] Mr. Legall was sentenced to 12 months in custody minus credit for pre‑trial custody. The trial judge rejected a joint recommendation put forward by the Crown and defence for a sentence of one day in custody (in addition to the five and a half of pre‑sentence custody). The joint recommendation would have allowed Mr. Legall to avoid negative immigration consequences that would arise if he received a sentence of six months or more. Mr. Legall appeals his sentence on the basis that the trial judge erred in rejecting the joint recommendation and the sentence was unfit.
[3] For the reasons that follow, I allow the conviction appeal. As a result, I do not have to address the sentence appeal.
B. Are the trial judge’s reasons for conviction insufficient?
[4] Mr. Legall testified at trial. He and Ms. Thompson gave conflicting evidence on most of the important factual issues, including whether an offence occurred at all.
[5] Ms. Thompson testified that Mr. Legall assaulted her on three separate occasions between April and August 2017. The first time, Mr. Legall pushed her into a cement barrier outside his barber’s shop. She testified that someone on the street called the police. She told the police that Mr. Legall pushed her, but Mr. Legall was not charged.
[6] According to Ms. Thompson, the second incident occurred in mid-April 2017 at Mr. Legall’s apartment. She testified that he punched her in the face, causing bruising and swelling. Ms. Thompson did not report this assault to the police at the time but took photographs of her injuries.
[7] The third assault took place in mid-July 2017. Ms. Thompson testified that Mr. Legall hit her repeatedly with a belt and blocked her from leaving his apartment when she said she wanted to go home. Again, Ms. Thompson did not report this assault to the police right away but took photographs of her injures.
[8] Finally, Ms. Thompson testified that Mr. Legall repeatedly texted her, visited her at work and showed up at her house in August 2017 after she told him she did not want to have anything more to do with him.
[9] Mr. Legall denied that he ever shoved, punched or hit Ms. Thompson. In fact, Mr. Legall testified that Ms. Thompson was the one who caused problems in their relationship. He testified that his neighbour called the police once because Ms. Thompson was making so much noise. He also testified that he called the police on another occasion to ask about getting a restraining order against Ms. Thompson. Ms. Thompson agreed that the police were called over a noise complaint and that Mr. Legall called the police about a restraining order.
[10] In terms of the specific allegations, Mr. Legall agreed that he had an argument with Ms. Thompson on the street outside the barber shop in April 2017 but denied he shoved her. He also denied assaulting her in mid-April at his apartment. In relation to the July 2017 incident, Mr. Legall testified that he kicked Ms. Thompson out of his apartment because she got upset and was yelling at him. He denied hitting her with a belt or forcing her to stay at his apartment.
[11] Mr. Legall admitted that he went to the grocery store where Ms. Thompson worked a few times in August 2017. He said he went there to buy groceries and to see Ms. Thompson. He denied that he was told not to come back to the store until the very last time he was there. He also admitted he went to her house twice in August and texted her often but denied that Ms. Thompson ever asked him to stop.
[12] There is no doubt that trial judge understood that credibility was the issue in this case. He accurately set out the legal principles that apply when credibility is the central issue and when exculpatory evidence is adduced by the accused.
[13] The trial judge then summarized the evidence of each witness very briefly. He noted the two main inconsistencies between Ms. Thompson’s trial testimony and her statement to the police in relation to the first and third assaults.[^1] The trial judge also noted some of the complainant’s testimony was corroborated by the other Crown witnesses[^2] and by the photographs she took of the injuries she says Mr. Legall caused during the second and third assault. The trial judge then found that the Crown had proven all the charges beyond a reasonable doubt.
[14] It can be inferred from the result that the trial judge accepted Ms. Thompson’s evidence and rejected Mr. Legall’s evidence. The issue on appeal is whether the trial judge’s reasons adequately explain why he did so, and why he was not left with a reasonable doubt.
[15] The Crown acknowledges that the trial judge did not explicitly state that he rejected Mr. Legall’s evidence or explain why he rejected his evidence. Nonetheless, the Crown argues that the sufficiency of the reasons must be assessed in light of the deference owed to trial judges on credibility findings. The Crown also argued that the trial judge is not required to set out every conclusion on each piece of evidence in arriving at his verdict. As a matter of legal principle, both those submissions are correct: R. v. R.E.M, 2008 SCC 51 at paras. 37 and 49, R. v. Dinardo, 2008 SCC 24 at para. 26. It is also true that a “considered and reasoned acceptance” of Ms. Thompson’s evidence beyond a reasonable doubt could be enough to explain why Mr. Legall’s evidence was rejected; J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (CA) at para. 35.
[16] The problem in this case is that trial judge did not make any specific findings of fact or explain why he accepted Ms. Thompson’s evidence despite the significant inconsistencies noted. Nor did he address Mr. Legall’s credibility at all.
[17] In a case where the accused and complainant give conflicting evidence on the issue of whether an offence even occurred, it is not enough for a trial judge to briefly summarize the evidence, note some inconsistencies and corroborating evidence and then declare he is satisfied beyond a reasonable doubt that all the charges have been proven. This does not satisfy the requirements to give reasons that allow the reviewing court to determine the correctness of the decision: R. v. Sheppard, 2002 SCC 26 at para. 28. Nor does it amount to a “considered and reasoned acceptance” of the complainant’s evidence that explains why the defence evidence was rejected and why it does not raise a reasonable doubt.
[18] It may be that the trial judge assessed the inconsistences in Ms. Thompson’s evidence and decided that they were inconsequential because of the corroborating evidence. However, it may also be that the trial judge failed to assess the impact of those inconsistences on her overall credibility or on the reliability of her evidence in relation to each offence, which would be an error. As a result, it is not possible to determine whether the trial judge properly considered the inconsistencies in Ms. Thompson’s evidence or not.
[19] Similarly, it is not clear from the reasons that the trial judge considered the possibility that some of Mr. Legall’s evidence, alone or coupled with the concerns with Ms. Thompson’s evidence, raised a reasonable doubt on some counts, even if he did not accept his evidence in its entirety. It is also not clear that the trial judge considered the possibility of being left with a reasonable doubt on some charges, even if he completely rejected Mr. Legall’s evidence. These are crucial steps in deciding whether the Crown has met its burden
[20] in a case involving exculpatory evidence: R. v. W.(D.), (1991) 1991 CanLII 93 (SCC), 63 C.C.C (3d) 397 (S.C.C.).
[21] The Crown argued that this Court can look to the reasons for sentence to supplement the trial judge’s reasons for convicting Mr. Legall. Again, as a legal proposition that is true. However, the trial judge did not say anything in his reasons for sentence that supplement his reasons in relation to the credibility of Ms. Thompson or Mr. Legall. He simply reiterated that he found that Ms. Thompson was assaulted on the three occasions
[22] The fact that it is not possible to ascertain from the reasons why the trial judge discounted the inconsistencies in Ms. Thompson’s evidence, why he rejected Mr. Legall’s evidence and why he was not left with a reasonable doubt on some or all counts based on the evidence he accepted demonstrates that the trial judge’s reasons do allow for meaningful review on appeal. The conviction appeal is therefore allowed, and a new trial ordered.
Davies J.
Released: October 24, 2019
COURT FILE NO.: CR-18-30000016-00AP
DATE: 20191024
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KEFIM LEGALL
Appellant
REASONS FOR JUDGMENT
Davies J.
Released: October 24, 2019
[^1]: In relation to the first incident, Ms. Thompson testified that the police drove her to a subway station close to her house and she took the bus home. She testified that Mr. Legall got on the same bus and was acting in a threatening way towards her. She did not say anything about seeing Mr. Legall on the bus after the alleged assault in her police statement. Similarly, Ms. Thompson testified that during the third assault in mid-July, she bit Mr. Legall’s finger. She did not say anything about this in her police statement.
[^2]: The Crown called Ms. Thompson’s manager to confirmed that Mr. Legall came to the store to several times in mid-August 2017. The manager told Mr. Legall to leave and that he was not welcome back in the store. The manager testified that Mr. Legall came back a few days later and that Ms. Thompson was terrified. The Crown also called Ms. Thompson’s sister who testified that she repeatedly told Mr. Legall not to come to their house and called the police about Mr. Legall.