COURT FILE NO.: 123/19
DATE: 2020 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Stephano Fava
Appellant
Arish Khoorshed, for the Crown
Richard Posner/Riaz Sayani, for Mr. Fava
HEARD: September 11, 2020
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] This is a summary conviction appeal brought by Mr. Stephano Fava (“Fava”).
The Proceeding in the Ontario Court of Justice
[2] In the Ontario Court of Justice sitting in Burlington, over four days – December 10, 11, 12 and 17, 2018, Fava was tried on two counts, namely, that he assaulted a peace officer contrary to section 270(1)(a) of the Criminal Code, and further that he attempted to disarm a peace officer contrary to section 270.1(1) of the Criminal Code.
[3] The charges stemmed from an incident that occurred at Fava’s residence in Oakville on January 27, 2018.
[4] At trial, the Crown called four witnesses – three police officers, surnames Froom, Dick (the alleged victim of the offences) and Lynch, plus a civilian named Kimberly Tilley (“Tilley”), Fava’s former live-in partner. Fava testified in his own defence.
The Undisputed Facts
[5] Very succinctly put, the undisputed facts at trial were that, on the date in question, Fava, Tilley and three others who were there to support Tilley all attended at the Oakville residence. The purpose of the encounter was for Tilley to retrieve and remove her personal belongings, as the relationship between her and Fava had ended, and Tilley was no longer living at or staying over at the said residence. Things escalated and resulted in at least a verbal altercation between Fava and Tilley. Tilley’s friend telephoned the police. Three officers attended and ended up inside the home, contrary to the expressed protestations of Fava. A fourth officer, Sergeant Dick, later arrived on scene and also entered the home. Fava was ultimately arrested for the two offences that he was tried on, having allegedly touched Dick without consent and attempted to take his taser during a confrontation that occurred inside the home.
The Trial Judgment
[6] In typed Reasons for Judgment (“Reasons”) dated April 18, 2019, Fava was found guilty of both offences. He was not convicted but rather was ultimately conditionally discharged at the time of sentencing.
The Appeal
[7] Fava’s counsel argue that the trial judge erred in her assessment of the two live issues at trial: (i) whether the police were acting in the lawful execution of their duties when they entered and then remained inside the residence, and (ii) whether the Crown had proven beyond a reasonable doubt that Fava had assaulted Dick and/or tried to take his taser.
[8] The specific arguments advanced on appeal, all opposed by the Crown, are dealt with, in turn, below, under part II of this decision.
The Standard of Review and the Basic Legal Principles
[9] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.
[10] The burden is on the appellant, Fava.
[11] Factual findings made by the trial judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. After all, an appeal is not a retrial. R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.
[12] Very recently, in the context of a Crown appeal from acquittal on a charge of dangerous driving causing death, the Supreme Court of Canada had occasion to clarify what constitutes an error of law. Where the trial judge’s application of the legal principles to the evidence demonstrates an erroneous understanding of the law, that is an error of law. R. v. Chung, 2020 SCC 8, at paragraph 11. “Applying a wrong legal principle and failing to apply the correct legal test are two sides of the same coin”, and both constitute an error of law. Chung, supra, at paragraph 18.
[13] The above is important because errors of law are reviewable on a standard of correctness.
II. Analysis
[14] For the reasons that follow, the appeal is allowed, the findings of guilt on both counts are quashed, and acquittals are substituted therefor.
Whether the Police Were Acting in the Lawful Execution of Their Duties
[15] Both sides agree that Fava could not have been found guilty of either offence if the police were not acting in the lawful execution of their duties at the time of the alleged assault and the attempt to disarm Sergeant Dick.
[16] I am not certain that I would put it quite that way; rather I prefer to say that Fava could not have been found guilty of either offence if the police, at the time, were unlawfully interfering with Fava’s liberty or property. R. v. Stenning, 1970 CanLII 12 (SCC), [1970] S.C.R. 631.
[17] The trial judge, when discussing the positions of the parties (paragraphs 123 through 129 of the Reasons), properly recognized that it was key whether the police were acting unlawfully at the time of the alleged offences.
[18] At paragraph 124 of the Reasons, the trial judge properly identified the leading case as being R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, and then the trial judge set out in her Reasons, verbatim, the headnote from that decision.
[19] At paragraph 139 of the Reasons, the trial judge concluded as follows, in bold print: “I find as a fact that the police were acting in the lawful execution of their duty when they entered the Stewart Street house”.
[20] Between paragraphs 130 and 138 of the Reasons, under the heading “Findings of Fact”, we find the trial judge’s explanation for the said conclusion expressed at paragraph 139 and quoted immediately above. The entirety of paragraphs 130 through 138 are set out below.
[130] I have of course applied the 3-pronged test established in R. v. WD in assessing the evidence in this case.
[131] I agree with and adopt the Crown’s submissions as part of my reasons for judgment in this case.
[132] I find as a fact that Mr. Fava was behaving in a difficult and controlling manner with Ms. Tilley right from the moment she tried to move all of her belongings out of the home they had lived in together just a week prior to the events in question.
[133] Mr. Fava was the insulting and belligerent one. Mr. Fava was physically aggressive with Ms. Tilley’s sister and was demanding that those there to help Ms. Tilley move faster and get out of his house.
[134] It was the friend Anita who called 911 not just once, but twice, because of Mr. Fava’s aggressive and abusive behaviour.
[135] It was one of the responding Officer’s who called for Sergeant Dick’s attendance at Mr. Fava’s insistence.
[136] This is a more aggravated situation than that before the Supreme Court of Canada in Godoy (supra) where the police entered the home against the wishes of the accused on a 911 hang-up call.
[137] At the tail end of her testimony Ms. Tilley said she did not feel under threat by Mr. Fava that day. That statement must be put into the context that others were there with her – her friend and relatives and then the police. I have no doubt that if she had been alone with Mr. Fava she would have called the police herself as she testified to at the beginning of her evidence.
[138] Mr. Fava was oblivious to her distress. He did not even notice that she was crying. Four Officers testified that she was upset and crying throughout. Mr. Fava’s aggressive behaviour was apparent throughout.
[21] With much respect for the trial judge, I find that she erred in law in coming to the conclusion expressed at paragraph 139 of the Reasons. Specifically, either the trial judge applied the wrong legal principle, or she misapplied the correct legal test as expressed by the Supreme Court of Canada in Godoy, supra.
[22] Why is this Court confident in that determination? For two reasons, first, there is no indication that the trial judge gave due consideration to the severity of the test for the police to forcibly, without a warrant, enter a private dwelling in response to a 911 call. Second, nor is there any indication that the trial judge gave due consideration to whether a reasonable alternative was available to the police that would have obviated the need to enter the home with force and without a warrant. Both of these principles are set out nicely at paragraph 22 of the decision in Godoy, supra, reproduced below.
22 Thus in my view, the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident’s privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property. In Dedman, supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable. A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances. (I specifically refrain from pronouncing on whether an entry in response to a 911 call affects the applicability of the “plain view” doctrine as it is not at issue on the facts of the case at bar.)
[23] The legal principle emanating from Godoy, supra with regard to the obligation on the part of the police to consider, even fleetingly, reasonable alternatives before forcibly entering a home without a warrant has been reiterated by various appellate Courts across Canada countless times since, a mere sampling of which is found below.
[24] In R. v. Timmons, 2011 NSCA 39, the Nova Scotia Court of Appeal said the following at paragraphs 38 through 48 of its decision.
[38] In his voir dire decision, the trial judge stated that in the circumstances, including the perceived scream, the police had a responsibility to enter the residence, whether invited or not, and that their warrantless entry, search of Mr. Timmons’ person, and search of his house did not breach his s. 8 Charter right against unreasonable search and seizure.
[39] With respect, I disagree with the judge’s analysis of the police entry.
[40] Four R.C.M.P. officers, with their firearms or Taser out of their holsters and at the low ready position, were at the scene. So was an unarmed auxiliary constable. They had positioned themselves at two entrances to the house. When the police demanded, Nadine came and opened the door. She was the person who had been reported as having been abused by Mr. Timmons.
[41] If the police were concerned that her assurances that all was well might not be genuine or made of her own free will, they could have asked Nadine to step outside the house. The police could then have questioned her face to face and away from any possible influence by Mr. Timmons.
[42] If she had been in any danger, Nadine then could have simply left with the five officers. She had been located and was safe with them. There would have been no reason or need to enter the residence.
[43] The police had no information that there was anyone in the house other than Mr. Timmons and Nadine Shaw. However if, because of the perceived scream or otherwise, they were concerned that there might be anyone else in the house who was in trouble, they could have obtained that information from Nadine Shaw, outside the house. They could also have asked whether there were any firearms or weapons there. If she said that there was someone who needed assistance, the officers would have reasonable grounds to believe that that person’s safety was a risk. They then would have been justified in entering the house to locate and protect him or her.
[44] If Nadine refused to step outside the house when asked, the police might have suspected that Mr. Timmons was threatening her from behind the door or farther away, and that he was armed. In that case, they would have had to decide how next to proceed. Depending on the circumstances, one reasonable option might well be a warrantless entry with the object of protecting Nadine’s safety.
[45] But the police did not ask Nadine to step outside the house. Instead three officers entered. Nadine Shaw told them that she was fine. There was no one nearby or who was interfering with their conversation. The only person in view was a man lying on a bed in a bedroom. There was no evidence that he either moved or reached for something suddenly, or indeed at all. Nevertheless the police went straight into the bedroom, had him get up, did a pat-down search to which the man cooperated, and then proceeded to search his house.
[46] In my view, the trial judge erred in principle by failing to consider alternatives to the warrantless entry of Mr. Timmons’ home and bedroom, and the search of his home.
[47] In fulfilling their duties to prevent death and serious injury, the police are often required to make rapid assessments and decisions in potentially dangerous situations. However, they must always include in their considerations the rights set out in the Charter. Chief Justice Lamer’s statements in ¶ 22 of Godoy, where he emphasized that the intrusion into a dwelling to ascertain the safety of a caller was limited to the protection of life and safety, are instructive and clear. I repeat:
The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property.
[48] In his submissions to the trial judge, counsel for Mr. Timmons emphasized and quoted this passage from Godoy. While the judge referred to Godoy in his reasons, he made no mention of this principle. It does not appear that he considered it in deciding that the police entry without a warrant was justified.
[25] Note, in particular, at paragraph 41, the Court’s commentary about reasonable alternatives, and then the Court’s conclusion that the trial judge erred by failing to consider alternatives to the warrantless entry (paragraph 46), and the Court’s observation of the fatal absence of any mention in the trial judge’s reasons of the reasonable alternatives principle (paragraph 48).
[26] In our case, there was no evidence adduced at trial that any of the police officers considered any reasonable alternative to forcibly entering the home without a warrant and in the face of Fava’s expressed protestations, for example simply asking Tilley (who was at the open door) to step outside.
[27] In addition, in our case, there is no mention anywhere in the trial judge’s Reasons of the reasonable alternatives principle.
[28] In R. v. Jones, 2013 BCCA 345, at paragraphs 28 through 31, the British Columbia Court of Appeal stated the following (particular attention should be paid to paragraph 29, on the issue of reasonable alternatives).
[28] At paras. 87 and 88 of her reasons for judgment the trial judge found the sole purpose of Cst. Abram’s search was to protect life and prevent injury in a manifestly grave and “potentially volatile mental health situation” about which he had only vague information. She was satisfied he entered the residence “with the subjective and reasonably-held belief” that he was required to investigate the mental health issues, ensure no one else was involved, and determine if there were any public safety concerns regarding Ms. Jones, Rachelle, or anyone else.
[29] For the following reasons, I am unable to agree. In my view, the facts as found by the trial judge do not provide the required objective basis to support her conclusion that Cst. Abram’s search was reasonable. Further, I am persuaded the trial judge erred in principle by failing to consider the alternatives that were available to Cst. Abrams before he decided a search was necessary.
[30] It is common ground there was no suggestion of criminal activity in the 9-1-1 call, which requested an ambulance rather than police. Nor did the call reveal any precise safety threat or risk. The information provided ‒ that this was a “mental health issue” and Rachelle was “freaking out” ‒ was nebulous. Moreover, it is evident there was nothing on Cst. Abram’s arrival to indicate exigent circumstances, as he waited several minutes for back-up to arrive and during that time, neither saw nor heard anything to indicate immediate action was required.
[31] When Cst. Abram approached the house to locate Rachelle, the ambulance personnel were evidently present or en route to deal with any mental health risk she presented. No such risk emerged. He located her immediately just inside the front door, and observed nothing else of concern in the house. Rachelle was passive and cooperative, came out without protest, answered his questions lucidly, and told him her mother would not want him to search the house.
[29] In R. v. Davidson, 2017 ONCA 257, the Court of Appeal for Ontario said the following at paragraphs 25 through 29 of its decision (special attention should be paid to paragraph 27, on the issue of reasonable alternatives).
[25] Chief Justice Lamer, writing for the court, held that when the police receive a 911 call they have authority to investigate the call. A 911 call is a call for help. The call may be triggered by criminal activity but it may not be. A person having a heart attack may call 911 for assistance but be unable to speak. Godoy confirms that the police have the duty, and thus the authority, to investigate all 911 calls.
[26] But Godoy also narrowly limits when the police can enter a person’s home without a warrant in response to a 911 call. The police must reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, their authority is limited to ascertaining the reason for the call and providing any needed assistance. They do not have any further authority to search the home or intrude on a resident’s privacy or property.
[27] In Godoy itself, these limits were easily met. Much like what is now codified under s. 529.3 of the Criminal Code, the police were facing exigent circumstances, an unknown emergency. They had good reason to believe the life or safety of a person inside the home was at risk and their only course of action to immediately find out about the 911 caller’s health or safety was to force their way into the home. Thus the warrantless entry was justified.
[28] In the case before us, as in Godoy, the police responded to a 911 call. But there the similarity ends. In Godoy, when the police arrived at the apartment, the emergency was not resolved – the police did not know whether the 911 caller was still in danger. Here, by the time the police arrived at the intersection, any emergency that had existed had ended since the boy was safely in his mother’s arms. In Godoy, the victim was inside the home; here the boy was outside the home, 50 metres away.
[29] In summary, in the case before us by the time the police arrived at the intersection, no exigent circumstances existed. There was no reason to believe the life or safety of any person inside the Davidson home was at risk. They could see for themselves that the boy was safe and not in any immediate danger. Moreover, after the police had ascertained the reason for the 911 call, they were not entitled to search the Davidson house.
[30] In R. v. Wilhelm, 2014 ONSC 1637, Justice Hill, sitting as a summary conviction appeal Court, at paragraphs 143 through 145 of his decision, stated the following (once again, on the issue of reasonable alternatives, note in particular the comments of Justice Hill at paragraph 145).
[143] On the totality of the evidence, the actions of the police in remaining on the Appellant’s property, including at his front door, exceeded the bounds of any implied invitation to communicate with the Appellant and were not justified in furtherance of investigating a Godoy-like emergency. Accordingly, Const. Boshold, though undoubtedly well-intentioned, was not in the lawful execution of his duty and, in turn, the Appellant was justified in using reasonable force to attempt to remove him from his dwelling. In these circumstances, he could not be found guilty of the s. 129(a) and s. 270(1)(a) crimes.
[144] While these conclusions are determinative of the result in this appeal, a final observation is warranted in light of a second submission advanced by the Appellant.
[145] There is a consistent line of authority discussing the availability of reasonable alternatives as an aspect of the reasonable necessity analysis in the context of the constitutionality, and in turn the lawfulness, of exceptional police conduct to exercise warrantless powers respecting real and personal property: Godoy, at para. 18; MacDonald, at para. 48; Kelsy, at paras. 36-7, 42; R. v. Timmons (2011), 2011 NSCA 39, 275 C.C.C. (3d) 59 (N.S.C.A.), at paras. 41-6, 50; Jones, at paras. 29, 37-8, 41; Larson, at paras. 50, 53.
[31] Remember, in our case, despite the fact that the trial judge described it as worse than what confronted the police in Godoy, supra (paragraph 136 of the Reasons), which comment I find perplexing, the police acknowledged at trial that the 911 call pertained to a “verbal argument in the house” (see the Appellant’s Compendium, tab 1, an excerpt from the in-chief testimony of officer Froom).
[32] Further, in our case, the police could plainly see the suspected person in danger (Tilley), just inside the open door, and presumably within earshot of a potential request by the police to simply step outside for a moment, all of this before Fava tried to shut the door (see the Appellant’s Compendium, tab 3, an excerpt from the in-chief testimony of officer Froom).
[33] Policing is a very tough business. This Court should not be taken as attributing any bad faith to or impugning the motives of any of the responding police officers.
[34] Domestic violence is a scourge on our society. It most often occurs in private, behind closed doors, where the perpetrators behave like cowards and bully and denigrate their supposed partners. The police need to be equipped to deal with this scourge.
[35] Having said that, this Court cannot ignore that, on the totality of the evidence adduced at trial, the police undoubtedly could have spoken to Tilley at the open door and/or asked her to step outside, before Fava attempted to close the door on them, but the police failed to turn their minds, however so briefly, to those reasonable alternatives before they forced the door open and entered the home without a warrant, and then remained there for several minutes, with zero indication of any emergency situation but rather an upset and frustrated lady who simply wanted to get her stuff and leave.
[36] This Court cannot ignore, further, that the trial judge appears to have applied a grossly watered-down test, ostensibly from Godoy, supra, without any regard at all for the reasonable alternatives principle, to ground her conclusion that the police acted lawfully in entering the home (and, presumably, although the trial judge in her Reasons does not deal with this issue at all, in remaining inside the home for a significant period of time thereafter).
[37] Respectfully, the trial judge’s conclusion cannot stand as it is tainted by errors of law.
[38] There is no point ordering a new trial. Like the situation in Justice Hill’s Wilhelm, supra case, the findings of guilt must be quashed and acquittals entered on both counts.
[39] Given the evidentiary record that presents itself, this Court is in as good of a position as any future re-trial Court would be to determine the lawfulness of the police entry into the home, without a warrant and with force, and then remaining inside the home for a significant period of time thereafter.
[40] On a proper application of the Godoy, supra principles, the police acted unlawfully and interfered with the liberty and property of Fava. Consequently, Fava could not have been found guilty of either offence.
[41] Before leaving this area, I should address two of the significant submissions made by Mr. Khoorshed on behalf of the Crown.
[42] First, the Crown relies on the decision of the Court of Appeal for Ontario in R. v. Sanderson, 2003 CanLII 20263 (ON CA), 64 O.R. (3d) 257. It is argued by the Crown that the said decision provides authority for the police officers in our case to have entered the home and stayed inside the residence in order to preserve the peace and to protect the victim’s property.
[43] I take no issue with that common law authority of the police in certain situations. Certainly not this one, however.
[44] In Sanderson, supra, unlike in our case, before entering the house or even attempting to do so, the police met with and spoke with the victim of domestic violence at the hands of her partner, and she told the police unequivocally that she had just been assaulted by her boyfriend, who was inside the house, and that he had made imminent threats about destroying her belongings and hurting her dog, all still inside the house. The woman was very distraught and had escaped the home to take refuge elsewhere, at which time she called 911 in the middle of the night.
[45] With respect, that picture bears no resemblance to our facts.
[46] Second, the Crown submits that our case could have been decided on the basis of Tilley having had a proprietary interest in the home and having consented to the police entering the home without a warrant.
[47] Respectfully, the evidentiary record belies that argument. Tilley, a Crown witness, estranged from Fava and in no way aligned with him, testified in direct examination at trial, at its highest, that she “went to open the door”, which allowed the female officer to place her foot in the doorway, and then a commotion ensued with Fava and the police officers in the threshold of the doorway, culminating in the door being broken and forced open by the police entry into the home (see tab 2 of the Appellant’s Compendium, an excerpt from the direct examination testimony of Tilley).
[48] There was no clear and unequivocal consent by Tilley for the police to enter the home without a warrant, even if she was capable of giving that consent, and even if this Court allows that argument to be entertained on appeal despite it never having been argued, or even referred to, by counsel, or mentioned or decided by the trial judge in the Court below.
Whether Other Errors Were Committed by the Trial Judge
[49] Although this Court has already decided enough to sufficiently dispose of the appeal in favour of Fava, in the event that I have erred in doing so, I will deal briefly with the other submissions made by counsel.
The Trial Judge’s Adoption of the Crown’s Submissions
[50] This Court, like many other appellate Courts, has, in prior decisions, cautioned against this practice – a trial judge exclusively, or even primarily, adopting the submissions of Crown or defence counsel in order to explain the verdict.
[51] It is a practice that should generally be avoided because of the legitimate miscarriage of justice concerns that it raises. R. v. Gaudet, 1998 CarswellOnt 2149 (C.A.), at paragraph 55.
[52] It is a practice that can lead inexorably to a successful insufficiency of reasons argument on appeal. R. v. Dastous, 2004 CarswellOnt 319 (C.A.), at paragraphs 4-5.
[53] It is a practice that is especially dangerous in cases where there are serious issues concerning the credibility of witnesses. Canada (Attorney General) v. Ni-Met Resources Inc., 2005 CarswellOnt 1178 (C.A.), at paragraphs 26-27.
[54] In a very short analysis section of her Reasons (pages 12-13), the trial judge expressly adopted (presumably all) of the Crown’s submissions (paragraph 131 of the Reasons).
[55] In the context of this case, the trial judge erred in doing so.
[56] This was a case where credibility of the witnesses was crucial to the verdict on each count. Fava testified and denied the actus reus of either offence. Neither offence was made out on the evidence of Tilley, a Crown witness at trial. In fact, she was present yet did not see any assault, as she said repeatedly to defence counsel at trial in cross-examination (see tab 10 of the Appellant’s Compendium, pages 75-76 of the transcript of Tilley’s evidence).
[57] This was a case where even the police officers who were present gave different accounts of what act constituted the alleged assault, whether a full shove to Dick’s chest (Dick), or a poke (Froom), or some other hand gesture (Lynch).
[58] This was a case where the trial judge did not make any express finding of fact as to what the actus reus of the assault was.
[59] This was a case where at least one of the two reasons given by the trial judge for having rejected the evidence of Fava, the two reasons being found at paragraphs 142 and 143 of the Reasons, was patently wrong on the evidence.
[60] It is not correct that Fava’s evidence “conflicts on every level with all others present in the house that day” (paragraph 142 of the Reasons). It certainly did not conflict on material points with that of Tilley, a Crown witness.
[61] Mr. Khoorshed, eloquent and gracious, described that remark by the trial judge as being an exaggeration or hyperbole. Perhaps. Definitely plain wrong.
[62] Thus, on this ground, I would grant the appeal and, at a minimum, order a new trial on the basis that the trial judge delivered insufficient reasons that amounted to a miscarriage of justice.
[63] In the context of this case, having regard to the ten principles set out by the Supreme Court of Canada in its seminal decision in R. v. Sheppard, 2002 SCC 26, these Reasons were clearly insufficient.
The Trial Judge’s Alleged Reversal of the Burden of Proof
[64] The second and final reason for the trial judge having rejected the evidence of Fava was because he had failed to produce medical records and/or lodge a formal complaint against the police as a result of the supposed physical beating that he endured at the hands of the police while inside the home, which Fava testified about at trial (paragraphs 75 and 143 of the Reasons).
[65] I would not give effect to this argument on behalf of Fava. I am troubled by the comments of the trial judge, however.
[66] First, it is factually incorrect that nobody present inside the home corroborated any injury sustained by Fava, as officer Lynch testified to having observed, in the aftermath of the physical confrontation between Fava and the police, a cut, albeit a small one, on Fava’s nose (see page 238, starting at line 20, of volume I of the trial transcript).
[67] Second, it would have been preferable for the trial judge to have expressly recognized and then rejected as implausible the explanation offered by Fava for not having provided the sought-after corroborative evidence, that is that his lawyer advised him not to (see tab 16 of the Appellant’s Compendium, at pages 373-374 of the transcript of Fava’s evidence in cross-examination by the Crown). The trial judge did not do so in her Reasons.
[68] In any event, despite those concerns, I am not prepared to conclude that the trial judge went so far as to reverse the burden of proof. This ground was not pressed as vigorously by appellate counsel as the others, and I think for good reason. It has merit but would not have, on its own, caused this Court to intervene on appeal.
III. Conclusion
[69] For all of the foregoing reasons, the appeal is allowed, the findings of guilt are quashed, and acquittals are entered on both counts.
[70] I thank all counsel for their very able assistance in this matter.
(“Original signed by”)
Conlan J.
Released: September 14, 2020
COURT FILE NO.: 123/19
DATE: 2020 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
HER MAJESTY THE QUEEN
– and –
Stephano Fava
REASONS FOR JUDGMENT
Conlan J.
Released: September 14, 2020