ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-19-70000027/00AP
DATE: 20191104
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GIANCARLO FRANCINELLI
Appellant
Laurie Gonet, for the Respondent
Enzo Battigaglia, for the Appellant
HEARD: October 24, 2019
Justice J. Copeland
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
[1] The appellant appeals from conviction on one count of assault. He raises two grounds of appeal. The first ground of appeal is that the verdict is unreasonable. The second ground of appeal is that the trial judge erred in his application of the reasonable doubt standard to his assessment of credibility in count #4, that is, erred in his application of the principles from R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 CanLII 93.
[2] For reasons I will explain, I reject the appellant’s argument that the verdict was unreasonable. However, I agree with the appellant that the trial judge erred in his application of the principles from W.(D.). In the result, I allow the appeal, and order a new trial on count #4 (the only count at issue in this appeal).
Unreasonable Verdict
[3] The law in relation to the standard to be met to show that a verdict is unreasonable is well-established. To succeed, an appellant must establish is that the verdict is one that a properly instructed jury, acting judicially, could not reasonably have rendered: R. v. Yebes, [1987] 2 S.C.R. 168, 1987 CanLII 17; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15 at paras 36-37.
[4] Where unreasonable verdict is raised in relation to credibility findings, an appellate court must bear in mind the primacy of the trial judge’s role in assessing credibility. An appellate court should not intervene in a trial judge’s assessments of credibility unless it is shown that they cannot be supported on any reasonable view of the evidence: R. v. R.P., [2012] 1 S.C.R. 746, 2012 SCC 22.
[5] The appellant bases his argument that the conviction on count #4 was unreasonable on three points (counsel for the appellant categorized them as four points, but I group together the two points about alleged failure to address inconsistencies in the complainant’s evidence).
[6] The appellant’s first point is based on the trial judge’s statement early in his reasons, before turning to his analysis of each count, that the complainant’s evidence about significant consumption of marijuana in the general time frame of the offences charged gave him concerns regarding her memory that affected her credibility in a negative way (para. 91 of reasons for judgment). The appellant argues that although the trial judge made this comment about the impact of the complainant’s marijuana use giving him concerns about her memory and credibility, he did not carry this concern about the complainant’s marijuana use through into his analysis of count #4.
[7] I disagree with the appellant that the trial judge did not consider the complainant’s marijuana use in his assessment of the evidence on count #4. At the start of his reasons on count #4, the trial judge expressly considered the consumption of alcohol by both the appellant and the complainant on the evening of the count #4 events (para. 116 of reasons for judgment). In addition, in the same paragraph he expressly referred to the complainant’s consumption of marijuana “earlier that day”.
[8] The trial judge gave further consideration to the issue of possible intoxication of both the appellant and the complainant at paras. 117 and 123 of his reasons. He concluded in relation to the issue of the complainant’s possible intoxication: “I find that although [the complainant] was under the influence of alcohol, according to Mr. Francinelli they finished drinking approximately 3 to 3 ½ hours before the incident occurred. Therefore, I find that her level of intoxication was not such that it would cause me to suspect her account of the events.” Given the trial judge’s finding that the complainant’s marijuana use was “earlier that day”, in my view he was not required to make an express finding that the complainant was not impaired by marijuana consumption.
[9] Thus, in my view the trial judge did consider whether the complainant’s marijuana use on the day of the count #4 events had an impact on her credibility.
[10] The appellant’s second point is that he argues that the trial judge failed to consider what the appellant argues are two significant inconsistencies in the complainant’s evidence in relation to count #4.
[11] I have reviewed the two asserted inconsistencies. In my view they are not particularly inconsistent, and in any event are not so inconsistent as to require express consideration by the trial judge.
[12] The first alleged inconsistency is that the appellant asserts that in examination in chief, the complainant said she was injured in the incident in count #4, but in cross-examination, she said she did not have any injuries from the incident (transcript, p. 47, ll. 3-6; p. 131, ll. 5-10).
[13] Respectfully, the complainant’s answer in examination in chief is so attenuated that I do not see it as inconsistent with her answer in cross-examination. In examination in chief, when asked if she was injured in the incident at issue in count #4, she replied: “Not that I recall. I might’ve had a bit of a bruise on my bum, but . . . ” (and then she was cut off by another question).
[14] The second alleged inconsistency is that the appellant argues that the complainant was inconsistent about whether she was dragged or pulled into the car, or got into the car of her own free will.
[15] I have reviewed the various transcript references to the complainant’s evidence on this issue that I was referred to in the written and oral arguments of both parties. I agree with Crown counsel that read fairly as a whole, the complainant’s evidence was that she was dragged or pulled to the car, but got into the car of her own free will. While portions of her evidence could possibly be viewed as having minor inconsistencies on this point, I do not see any inconsistency is of sufficient magnitude that it required the trial judge to expressly address the issue in his reasons. A trial judge is not required to make express findings on every piece of evidence or controverted fact. What is required of a trial judge is that the factual findings linking the evidence to the verdict can be logically discerned: R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51 at paras. 15-21.
[16] The appellant’s third point in relation to the unreasonable verdict argument is that the trial judge failed to consider the lack of corroboration for the complainant’s version of events. In particular, the appellant points to indirect evidence that there were one or more civilians who observed the incident. But no independent witnesses were called at trial.
[17] I agree with Crown counsel that the apparent failure of the police to investigate or take statements from observers, or of the Crown at trial (not Crown counsel on appeal) to lead any evidence from independent witnesses, does not, in itself, detract from the complainant’s credibility.
[18] Absence of corroboration is a factor that a trier of fact may consider in assessing whether charges are proven beyond a reasonable doubt. However, corroboration is not required for a trial judge to find guilt on an offence where the charge is based on the evidence of one witness. The trial judge was not required to expressly consider in his reasons the absence of corroboration for the complainant’s evidence.
[19] For these reasons, I am not persuaded that the trial judge’s verdict on count #4 was unreasonable.
Error in application of W.(D.), and application of reasonable standard
[20] The appellant argues that the trial judge erred in his application of the reasonable doubt standard to the assessment of credibility. In particular, the appellant argues that the trial judge failed to consider the second branch of R. v. W.(D.), whether even though the trial judge did not believe the evidence of the appellant, did it leave him with a reasonable doubt.
[21] The applicable law is not in dispute between the parties. Both parties agree that W.(D.) sets out the framework for applying the reasonable doubt standard to the assessment of credibility. Both parties agree that a central aspect of W.(D.) is that a trial judge must not treat the assessment of credibility as between a complainant and a defendant as a credibility contest. Both parties agree that even if a trial judge does not believe a defendant’s evidence, the defendant must be acquitted if the defence evidence leaves the trial judge with a reasonable doubt (or if the evidence as a whole does not persuade the judge of the defendant’s guilty beyond a reasonable doubt).
[22] The law is clear that the formula in W.(D.) is not a “magic incantation” that must be slavishly followed. Rather, what is important is that trial judges properly apply the reasonable doubt standard to their assessment of issues of credibility, and in particular, that even where a trial judge does not believe a defendant’s evidence, if the defendant’s evidence leaves the trial judge with a reasonable doubt, then the trial judge must find the defendant not guilty: R. v. S. (W.D.), [1994] 3 S.C.R. 521, 1994 CanLII 76; R. v. Minuskin (2003), 68 O.R. (3d) 577, 2003 CanLII 11604 at paras. 21-22 (ONCA); R. v. Vlachos, 2015 ONSC 1700 at paras. 10-15.
[23] Crown counsel on appeal does not contest the legal principle that a trial judge must not only state the law correctly, but must also apply it correctly. However, Crown counsel argues that the trial judge’s reasons do not demonstrate the error that the appellant argues.
[24] There are a number of factors that lead me to be cautious in intervening based on this ground of appeal. The trial judge in this matter is very experienced. In general terms, I am prepared to accept that he knows and understands the law in relation to how the reasonable doubt standard applies to the assessment of credibility. In addition, there are a number of positive aspects to his reasons on count #4, which I will outline in a moment. However, even when a trial judge knows the applicable law, we all make mistakes from time to time.
[25] Respectfully, I find that paras. 122-124 of the trial judge’s reasons lead me to conclude that he misapplied W.(D.) to count #4, by treating the assessment of the evidence of the defendant and the complainant as a credibility contest. He failed to consider whether, although he clearly did not believe the defendant’s evidence, the defendant’s evidence left him with a reasonable doubt.
[26] I turn then to a functional review of the trial judges reasons.
[27] At the outset of his analysis, the trial judge correctly states the applicable law regarding the burden of proof, and how the reasonable doubt standard applies to assessments of credibility (at paras. 87-90 of reasons for judgment).
[28] At paragraphs 118-124 of his reasons, the trial judge gives detailed reasons in relation to why he believes the complainant’s evidence on count #4, and does not believe the defendant’s evidence on that count.
[29] However, in paragraphs 122-124, there are several aspects of his reasons that lead me to conclude that the trial judge erred in his application of the reasonable doubt standard to assessment of credibility by failing to consider whether the defence evidence left him with a reasonable doubt on count #4, even if he did not believe it.
[30] At paragraph 122, after summarizing an aspect of the appellant’s evidence that he says he finds “hard to believe”, the trial judge concludes: “I find the way she [the complainant] recounted it is more believable” [emphasis added].
[31] Further, although the trial judge says repeatedly in paras. 122-124 that he does not believe the appellant’s evidence (“I find this hard to believe….”; “I do not believe Mr. Francinelli when he says . . .”; “Mr. Francinelli’s account . . . is unbelievable”), he never says whether the appellant’s evidence leaves him with a reasonable doubt. I want to underline, there is no error in a trial judge saying that he does not believe some (or all) of a defendant’s evidence. What concerns me, particularly in the context of a comment that the complainant’s evidence is “more believable”, is that the repeated references to not believing the appellant are made in a context where there is no express reference to whether the evidence of the appellant left the trial judge with a reasonable doubt.
[32] Further, at para. 124, after stating that the complainant’s evidence was “reasonable in all the circumstances”, and that he believed the complainant, the trial judge then states: “On the contrary, I find that considering all of the circumstances, Mr. Francinelli’s account of lightly tapping her on the shoulder while she was running trying to get away from him, and her immediately turning around to face him, and then willingly returning to the car with him is unbelievable” [emphasis added]. This language again sounds like a credibility contest. If this language stood in context with other language considering and rejecting the proposition that the appellant’s evidence left the trial judge with a reasonable doubt, I would not find that this language showed error. But as I have noted, there is no express reference in the trial judge’s reasons to considering and rejecting the possibility that the appellant’s evidence could leave him with a reasonable doubt.
[33] In fairness to the trial judge, his reasons on the other four counts show that he did give the appellant the benefit of having a reasonable doubt on those counts. However, the analysis the trial judge engaged in on count #4 was qualitatively different than his analysis on the other four counts. On count #4, unlike the other counts, the appellant agreed in his evidence that he had physically touched the complainant. But his version of the nature of the touching was different than the complainants (and on his version would not have amounted to an assault). For this reason, on count #4, the trial judge then proceeded to consider compare the two versions of the physical touch given by the complainant and the appellant. It was in this context that the trial judge found the complainant’s version of the altercation to be “more believable” than the appellant’s. But as I have outlined, in my view he did not consider whether the appellant’s version of events left him with a reasonable doubt. Based on this qualitative difference to how the trial judge approached count #4, although he correctly applied the burden of proof to the other counts, considering his reasons as a whole, I find that he inadvertently misapplied the burden of proof on count #4.
[34] I acknowledge that at paragraph 125 of his reasons, the trial judge states that he found that the Crown had proven count #4 beyond a reasonable doubt. But in light the portions of the reasons I have just discussed at paragraphs 122-124, I do not find the reference to the reasonable doubt standard in his final conclusion at para. 125 dissuades me from finding that he erred.
[35] Crown counsel argued that the trial judge “subsumed” his consideration of the second branch of W.(D.) into his consideration of the first branch. I have two difficulties with this argument. One is based on a reading of the trial judge’s reasons, and the other on principle.
[36] First, in my view, while the trial judge’s reasons on count #4 clearly deal with the first branch of W.(D.), in that he does not believe the defendant, I do not see him deal with the second branch. I do not accept that his comment that he found the defendant’s evidence “unbelievable” is a finding that the defendant’s evidence did not leave him with a reasonable doubt. Belief of a defendant’s evidence and being left in a reasonable doubt by a defendant’s evidence are different things. It is for that reason that the W.(D.) formulation separates out the first and second branches of the analysis.
[37] This brings me to my second concern. In my view, subsuming consideration of belief of a defendant’s evidence and being left in a reasonable doubt by a defendant’s evidence is inconsistent with W.(D.), because it risks engaging in a credibility contest and missing the second branch. Even for experienced trial judges, it can be deceptively easy to slip into the credibility contest of, “who do I believe” in a case where the evidence is essentially one witness’ word against the defendant’s word.
[38] For these reasons, reviewing the trial judge’s reasons as a whole, I find that the reasons show that the trial judge erred in his application of the burden of proof to credibility assessment on count #4, in particular in failing to consider whether the defendant’s evidence left him with a reasonable doubt, even though the trial judge did not believe the defendant’s evidence.
[39] The appeal is allowed, and a new trial ordered on count #4.
[40] I direct that the appellant appear in the Ontario Court of Justice, College Park, 444 Yonge Street in courtroom #505 on December 2, 2019, at 10:00 a.m. to set a new trial date.
[41] I thank both counsel for their helpful and focused submissions.
Justice J. Copeland
Released: November 4, 2019
COURT FILE NO.: CR-19-70000027/00AP
DATE: 20191104
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GIANCARLO FRANCINELLI
Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVCTION APPEAL
Justice J. Copeland
Released: November 4, 2019