COURT FILE NO.: SCA(P) 1319/18 DATE: 2019 12 18
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN Respondent Jelena Vlacic for the Respondent
- and –
FIAGO HERON SR. Appellant Androu Gerges for the Appellant
HEARD: September 13, 2019
REASONS FOR JUDGMENT
[On appeal from the judgment of Justice A.D. Dellandrea dated June 6, 2019 reported at R. v. Heron, 2018 ONCJ 395, 148 W.C.B. (2d) 174]
D.E HARRIS J.
[1] The appellant, Fiago Heron Sr., was found guilty of two counts of weapons dangerous to the public peace, one involving a machete and the other a metal baseball bat, and one count of assault with a weapon, the machete. He appeals conviction.
[2] The complainant, Fiago Heron Jr., known as Demar, is the appellant’s son. His evidence was that he verbally confronted his father, the appellant, in the basement of his parents’ home. Apparently, Demar had installed a basketball net close to the driveway for his little brother to use. However, the appellant was upset the net was placed on the lawn. He moved it off the lawn, scratching it in the process.
[3] In the basement, Demar asked his father why he had moved the net. According to Demar’s evidence, after an unpleasant exchange, the appellant reached under the couch and took hold of a machete. He swung at Demar and narrowly missed him, cutting off a necklace he was wearing. The appellant attacked again but Demar was able to avoid the second blow. He disarmed the appellant and punched him in the face. The two fell to the ground.
[4] Paula Heron, mother of Demar and wife of the appellant, was present for the attack. She removed the machete from the room. The appellant then armed himself with a metal baseball bat from under the couch. He swung again at Demar but Paula Heron was able to block it and take it from him. The appellant then called the police.
[5] Paula Heron’s evidence was very similar to Demar’s evidence and supported her son’s evidence that the appellant attacked him with the machete and then the baseball bat. There were some differences. The major difference was that from her vantage point, she did not see the machete strike Demar’s necklace.
[6] The appellant testified in his own defence. It was his evidence that a physical fight broke out between he and his son in the basement. His version was that Demar was the aggressor throughout. The appellant was able to break free and grabbed a machete from under the couch. He held the machete in a passive manner to ensure that Demar did not attack him. Once he put it down, Demar attacked again. The appellant retrieved a metal bat from under the couch and approached Demar with it. At this point, Paula entered the room and disarmed him. Neither weapon was used in an assaultive manner. Both were wielded to ensure that Demar did not attack.
[7] As is apparent from this brief summary, the decision in this trial depended virtually exclusively on credibility. Upon appeal, the appellant argues that the trial judge erred in her reasons for judgment in failing to examine and make findings with respect to Paula Heron’s credibility. I agree with the appellant’s argument and would order a new trial on this ground.
[8] The issue in this trial could be described as a variation on the W.(D.) theme. Instead of a one-on-one credibility contest, this trial pitted two Crown witnesses against the appellant’s evidence. All three witnesses testified to the same incident. Demar and his mother’s versions were directly juxtaposed against that of the appellant. In its basic configuration, there was no distinguishing this from a classic W.(D.) case. If there existed a reasonable doubt based on the appellant’s version, and/or if the two Crown witnesses’ evidence did not enable the trial judge to conclude that the case was proved beyond a reasonable doubt, the appellant was entitled to an acquittal.
[9] Much of the trial judge’s focus in her reasons for judgment was on self-defence. The appellant raised self-defence in passing in his final submissions. The Crown addressed it extensively in his argument at the end of the case. Although it was perhaps understandable that self-defence was addressed, in the pragmatics of this trial, self-defence functioned mainly as a distraction from the true issue: credibility.
[10] If the Crown’s version of events prevailed, self-defence had no chance of success. Attacking an unarmed person with a machete or a baseball bat is, at least in all but the most extraordinary circumstances, plainly disproportionate under the self-defence provisions in Section 34(2) of the Criminal Code. On the other hand, if the appellant’s version was accepted or raised a reasonable doubt, self-defence would inevitably apply. Passively holding a weapon to forestall an attack as the appellant testified he did was permissible force to repel an advancing physical threat. Besides self-defence, it could also be argued that on the appellant’s version, there was no offence committed of either assault or possession of a weapon dangerous to the public peace offence: R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371 at para. 38.
[11] While the trial judge explicitly recognized that the issue at trial was credibility, she added that it “overlapped” with self-defence (para. 19). She correctly recited the three step W.(D.) formulation (see paras. 12-18).
[12] It may well be that the injection of self-defence in final submissions steered the focus away from the credibility contest which was at the heart of this trial. It may have contributed to the error that was made in deciding this case. The error arose because the trial judge in her reasons for judgment simply accepted Paula Heron’s evidence without any critical analysis. Mrs. Heron’s evidence was too important to the Crown’s case and, as argued by appellant’s counsel at trial, her interest in the cause and her general credibility problems too nettlesome not to evaluate her evidence.
[13] The trial record leaves no doubt that the evidence of Paula Heron was pointedly attacked by counsel for the appellant both in evidence and in argument. It was attacked on the basis of internal inconsistencies, general implausibilities, inconsistencies between Demar’s evidence and the appellant’s evidence and, additionally, on the basis of a motive to fabricate.
[14] With respect to internal consistencies, for example, in cross-examination it was established that in her police statement, Mrs. Heron had said that she saw Demar get hit with the machete and the bat. However, in her testimony at trial, she had said that she did not see Demar struck with either weapon.
[15] Some of the inconsistencies elicited in Paula Heron’s cross-examination may have been insignificant in themselves but added cumulatively to the total picture. When asked by the defence in cross-examination whether Demar was employed, Mrs. Heron said that she did not know. To the question of whether she had asked him about it over the last 6 or 7 years, her only answer was that he was very secretive. When defence counsel pressed, Mrs. Heron said that Demar sold car parts.
[16] Demar’s testimony contradicted his mother in this admittedly collateral area. His testimony was that he had worked at a body shop for three to four years. His mother knew about his job and had in fact been to the shop herself for service while he was working there.
[17] In terms of a motive to fabricate, the defence generated substantial evidence in support. In chief, Mrs. Heron had said that she was currently married to the appellant. But it was elicited in cross-examination that she had filed for separation. The appellant stopped paying the mortgage after he was charged. In re-examination she said that the appellant hates Demar and always has. She said, “That’s why I need a divorce...I can’t live with this anymore.” This was direct evidence of Mrs. Heron’s animosity towards the appellant and the sympathy she held for her son.
[18] Furthermore, besides the central opposition in their evidence with respect to what happened during the altercation in the basement, there were other conflicts between the evidence of Mrs. Heron and the appellant. There was some focus during the trial on Demar’s drug use, it being said that appellant strongly disapproved. Paula Heron was asked whether the appellant had ever found Demar’s drugs in the home and she said that she did not know. Contrary to this, the appellant said that he had found a big grocery bag of marijuana in Demar’s room and had showed it to Paula. Paula called Demar to come get the bag. According to the appellant, Paula was covering for Demar all the time.
[19] Counsel for the appellant relied heavily on the issues with Mrs. Heron’s credibility in his closing submissions. Counsel argued that Paula Heron was not a credible witness, arguing that she was not forthright and was dishonest. There was the matter of Demar’s drugs alluded to above. Counsel then referred to the issue of Demar’s work and Mrs. Heron’s evidence that she did not know what he did. Demar’s evidence was not only was she fully aware where he worked but in fact, she had her car serviced at his body shop. This could not have been a simple mistake.
[20] Later in his submissions, counsel concentrated further argument against Mrs. Heron’s credibility. Mrs. Heron was “a bit dodgy” about details of the fight and was reluctant to agree in her testimony that her son was assaulting the appellant. This was an effort to protect her son. It was argued that Mrs. Heron and Demar’s version of events was not accurate.
[21] Counsel also argued a motive to fabricate arising out of Mrs. Heron’s evidence that the appellant hated Demar, that she was seeking a divorce from the appellant and that he was no longer paying the mortgage on their house.
[22] In her reasons for judgment, the trial judge fully reviewed Mrs. Heron’s evidence with respect to the fight in the basement at paragraphs 8-9, and 30 [R. v. Heron, 2018 ONCJ 395]. The trial judge ultimately concluded,
31 Demar and Paula’s evidence on the accused’s use of the machete is largely consistent, save for Demar’s description of the overhead swing, and of course the direct blow to his collarbone which landed on this chain. I find as a fact that the accused did take up the machete and charge at Demar while swinging it.
[23] As is evident from this passage, in making the critical finding against the appellant on the machete count, the trial judge relied on the consistency of Demar’s and Paula’s evidence. This was implicit with respect to the baseball bat count as well (see paras. 38-39).
[24] Aside from the acceptance of Demar and Mrs. Heron’s evidence, the other main reason which led the trial judge to find guilt was her rejection of the appellant’s evidence. She found it incredible that he could have broken away during the tussle with Demar and been able to grab the machete from under the couch. Demar was much younger and stronger than the appellant (see para. 27).
[25] However, the rejection of an accused’s evidence is an insufficient ground upon which to determine the outcome of a credibility trial. It is axiomatic that a trial judge, in applying the third step in W.(D.) or its functional equivalent, must weigh the credibility and strength of the Crown witnesses’ evidence. Here, the trial judge did not summarize or analyze the evidence or argument upon which the defence relied in impugning Paula Heron’s credibility.
[26] In the circumstances, the failure to assess Mrs. Heron’s credibility requires a new trial. First, where there are significant credibility concerns as there were here, it is error not to recognize the frailties and consider them critically: R. v. Wirkkunen, 2015 ONCA 140, [2015] O.J. No. 986, at para. 9, R. v. Hurley, [2006] O.J. No. 4338, 40 M.V.R. (5th) 61 (C.A.), at para. 5. The trial judge in this case “erred in [her] appreciation of the evidence” in a way that affected the outcome: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 at paras. 7-8. The problems with Paula Heron’s evidence were sufficiently serious that they required the trial judge’s attention.
[27] Second, it is incumbent on a trial judge to give reasons with respect to a specific witness where their evidence is troublesome and reliability and credibility issues are at the forefront. That was the case with Paula Heron’s evidence. In context, her testimony falls into the category described in the sufficiency of reasons cases as confused and contradictory evidence on a key issue: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 55; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23; Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101; R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 44; R. c. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 27; R. v. M.(A.), 2014 ONCA 769, [2014] O.J. No. 5241 at paras. 18-21.
[28] The lack of scrutiny and the failure to articulate why Paula Heron’s evidence was accepted require a new trial. This dual aspect echoes the Dinardo case in which Justice Charron said at para. 27,
…it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant’s testimony … I also conclude that the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal.
[29] For these reasons, the appeal must be allowed, the three convictions vacated and a new trial ordered.
D. E. HARRIS J
Released: January 31, 2020
COURT FILE NO.: SCA(P) 1319/18 DATE: 2019 12 18
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN Respondent - and – FIAGO HERON SR. Appellant
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: December 18, 2019