COURT FILE NO.: SCA(P) 1473/19
DATE: 2020 09 29
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
B E T W E E N:
HER MAJESTY THE QUEEN
Enoch Guimond, for the Crown Respondent
Respondent
- and -
CAROLYN JOHNSON
Mark Halfyard, for the Appellant
Applicant
HEARD: August 24, 2020
REASONS FOR JUDGMENT
[On Appeal from the Reasons for Judgment, dated September 21, 2018 and Reasons for sentence, dated January 30, 2019 of Madam Justice N.S. Kastner]
J.M. Woollcombe J.
A. Overview
[1] The appellant, Carolyn Johnson, was convicted of one count of assault arising from her altercation with Yamna Arif in the Bramalea City Centre shopping mall on December 15, 2016. There was no issue at trial that the appellant had grabbed the complainant from behind and pushed her to the ground. This was captured on surveillance videotape. The issue was whether the Crown had disproven beyond a reasonable doubt that the appellant acted in self defence.
[2] The trial proceeded over three days. The Crown adduced evidence from the complainant, her mother, and two independent witnesses who were at the shopping mall. The appellant called her husband as a witness and testified on her own behalf.
[3] After hearing submissions, the trial judge reserved her decision. She later provided lengthy oral reasons for judgment. She reviewed the relevant legal principles and carefully summarized the evidence.
[4] The trial judge rejected the appellant’s evidence that there had been a brawl between her, the complainant and the complainant’s mother. She accepted the defence position that the complainant had committed a form of assault when she got into the appellant’s personal space to try to photograph her assailant. But, the trial judge concluded that the complainant’s assault did not justify the appellant’s violent and aggressive response.
[5] The trial judge found that as the complainant tried to obtain the photograph, the appellant took her phone, threw it to the floor and kicked it down the hall. The complainant retrieved it. Neither she nor her mother was fighting with the appellant. After the complainant picked up the cell phone, the appellant came up to her, “semi-bearhugged” her, pulled her by the face and “grounded her”. The trial judge held that it was not a reciprocal event. The appellant’s actions were “punitive, not defensive”. She concluded that there was no air of reality to self-defence in all the circumstances, given the objective evidence of the video which supported the Crown’s case.
[6] As a result, the appellant was convicted of assault. Sentencing was adjourned. On sentence, it was the position of the appellant that she should receive an absolute discharge. The Crown sought a sentence of 30 days custody, followed by a period of probation.
[7] The trial judge concluded that any form of discharge would be contrary to the public interest and imposed a four month conditional sentence.
[8] The appellant advances three grounds of appeal:
[9] First, the appellant submits that the trial judge erred in either taking judicial notice or speculating from the photographs of the complainant’s injuries that they were caused by the appellant “gouging” her face. The appellant says that it may well be that the complainant’s face was injured by her glasses breaking when she hit the ground, rather than from the complainant’s nails on her face. It is submitted that this error led the trial judge to improperly reject self-defence.
[10] Second, the appellant submits that the trial judge misapprehended the evidence respecting whether the appellant used the word “disengaged” in her evidence, and that this misapprehension led to her making unfair credibility findings against the appellant. It is submitted that this misapprehension in evidence, which is conceded by the Crown, affected the fairness of the trial.
[11] Third, the appellant submits that in the circumstances of this case, the trial judge erred in finding as an aggravating factor that this was a stranger assault and that as a result, the sentence should be considered afresh. The appellant’s position is that she be granted a conditional discharge.
B. Analysis
i) Did the trial judge err in her use of the photographs of the complainant’s injuries?
[12] The appellant submits that the trial judge impermissibly speculated when she concluded that the appellant’s nails injured the complainant’s face. It is submitted that the trial judge then relied on her conclusion about the force used by the appellant to unfairly reject the appellant’s claim of self defence.
[13] There was considerable evidence that the appellant grabbed the complainant’s face and then threw her to the ground:
• The complainant described the appellant as having “grabbed my face and pushed me to the floor”;
• The complainant’s mother’s mother described the appellant grabbing her daughter’s face with her palm towards the face and her fingers out;
• Independent witness Daljit Chahal said, “the first thing I see was that lady, her grabbing the other lady and facing her, throwing her face down”, although he then acknowledged not having seen where on the complainant’s body the appellant touched her;
• Independent witness Tracy Gould said, “the coloured girl grabbed the young, younger girl by the face and threw her to the ground”. She demonstrated a motion with her hand and with the fingers spread out grabbing the complainant’s face and said that she could see that the complainant was in pain.
• The appellant herself acknowledged at one point that she had extended her arm out at the complainant and that her hand had contacted the complainant’s face.
[14] Moreover, the video evidence clearly depicts the appellant reaching around the complainant in an aggressive manner, grabbing her, wrapping her arm around her and throwing her to the ground. While the video does not depict the appellant’s hand on the complainant’s face, because the complainant is facing away from the camera, there is a clear image of the appellant’s hand going in the direction of the complainant’s face immediately before throwing the complainant down.
[15] The appellant submits that on the evidence, the injuries to the complainant’s face could have been caused by her glasses being broken when she was thrown to the ground, and that the trial judge was not permitted to find as a fact that the appellant’s nails caused the injuries that she saw.
[16] I disagree.
[17] The trial judge had before her the evidence of numerous witnesses who described the appellant grabbing the complainant’s face and throwing her to the ground. She also had the video, which depicted the appellant aggressively attacking the complainant, putting her arm around her, moving her hand in the direction of the complainant’s face and throwing her to the ground. Finally, she had the photographs of the injuries sustained by the complainant in this interaction. In light of this, I think it was open to the trial judge to conclude that the complainant’s injuries “bear the resemblance of nail marks”. It was common sense to infer that the appellant’s nails caused the injuries to the complainant’s face. The trial judge’s finding were not based on her taking judicial notice of matters that required an expert. In my view, her conclusion was reasonable and open to her on the basis of common sense and her life experience: R. v. Sadykov, 2018 ONCA 296 at paras. 2-4; R. v. Theoret, 2018 ONCA 700 at paras. 6-8.
[18] It is noteworthy that at trial, there was never a suggestion made to any witness, including the complainant, that the injuries to the complainant’s face were caused by her glasses breaking when she fell. Nor was any submission made by the agent who represented the appellant at trial that the complainant’s facial injuries were not caused by the appellant’s attack on her. Rather, the defence position was that the appellant was acting in self-defence in that she was repelling the complainant’s attack on her. It is hardly surprising, in these circumstances, that the trial judge did not weigh or consider an alternative cause of the injuries when none was suggested to her.
[19] Even if I am wrong and the appellant is correct that the trial judge should not have drawn the inference she did respecting the appellant’s nails having caused the injuries, I see no reversible error. The competing inference that was available to the trial judge, that the injuries were from the complainant’s glasses breaking as she fell, would have inevitably led the trial judge to the same conclusion respecting the appellant’s actions being inconsistent with self-defence. The critical components of the trial judge’s analysis were that the video depicts a “brutal act” and that the injuries the complainant sustained were incompatible with the “push” the appellant described. In my view, even had the submission been made that the injuries were caused by the complainant’s glasses, and had the trial judge accepted this position, she still would inevitably have found that the video depicted a brutal act and that the injuries were not compatible with the appellant’s evidence about a push. Accordingly, she would inevitably have rejected the self defence argument.
[20] I reject the appellant’s submission that the trial judge relied on her conclusions about how the injuries occurred as the “lynchpin” for why she rejected the appellant’s evidence. That is not a fair reading of the reasons as a whole.
[21] In her reasons, after carefully summarizing the evidence, the trial judge provided many reasons for finding that the Crown had disproven self-defence. She found that there were numerous internal inconsistencies in the appellant’s evidence. She also concluded that there were inconsistencies between the evidence of the appellant and other witnesses whose evidence she accepted. She found that the video contradicted the appellant’s evidence that she only pushed the complainant and that it depicted significantly more violence. She preferred the evidence of the complainant’s mother, Mrs. Arif, supported by the video, that the mother did not attack attacked the appellant. She also accepted the evidence of the complainant, finding her credible despite the inconsistencies between her evidence and the video. She wholly rejected the appellant’s claim of having been in a brawl with the complainant and her mother, a brawl that was not captured on any video.
[22] Instead, the trial judge found that the complainant assaulted the appellant by entering her personal space and trying to take a photograph of her. But the trial judge also found that the appellant saw the complainant’s phone, took it, threw it to the ground and kicked it. As the complainant went to retrieve it, she did not engage the appellant but went to get the phone. The appellant then came up from behind her, semi-bear-hugged her and “grounded her”, acting in a manner that was punitive and not defensive.
[23] Set in this context, it is my view that the trial judge’s reliance on the extent of the complainant’s injuries to reject her evidence, and to find that self-defence had been disproven was minimal. Accordingly, even if the trial judge made an error, such an error was harmless.
[24] This ground of appeal is dismissed.
ii) What is the significance of the trial judge’s misapprehension of the accused’s evidence?
[25] In her reasons for judgment, when referring to the evidence of the appellant, the trial judge referred to “abrupt changes in the two days of cross-examination” of the appellant as “a relevant consideration”, and noted that she had already outlined much of this when describing her evidence. She then stated:
So, too, is the insertion by the defendant of the word “disengaged” in relating to the absence of the Arif women. It is obviously not a word in her general lexicon of conversation and stands out as an artifice and either rehearsed or construed evidence.
[26] Counsel for the appellant and Crown counsel agree that the appellant never used the word “disengaged” in her evidence. Both agree that the trial judge misapprehended the appellant’s evidence.
[27] The misapprehension of evidence was a mistake as to the substance of the evidence. In R v Morrissey, 1995 3498 (ON CA), [1995] OJ No 639 (C.A.), Doherty J.A. explained that where a misapprehension of evidence is alleged, the court should first consider the reasonableness of the verdict. If the verdict is not unreasonable (it is not alleged to have been unreasonable in this case), the court must then determine whether the misapprehension of evidence occasioned a miscarriage of justice. Doherty J.A. provided the following guidance:
When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
[28] The Morrissey analysis was adopted by the Supreme Court of Canada in R. v. Lohrer, 2004 SCC 80 with Binnie J. stating, at para. 4:
Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction".
[29] Accordingly, accepting that the appellant has shown that the trial judge was mistaken about the substance of the evidence, the appellant can only succeed on appeal if she can demonstrate that the mistake went to the substance of the trial judge’s reasoning and was an essential part of her reasoning for convicting.
[30] In R. v. Alboukhari, 2013 ONCA 581, at paras. 36-39, Epstein J.A. acknowledged the difficulty that can arise when trying to determine the centrality of the misapprehension of evidence to the trial judge’s credibility assessment. She also provided some examples to guide the analysis, noting that when a trial judge misapprehends certain pieces of evidence that are not essential to credibility findings, there is no miscarriage of justice and that a credibility finding is not unfair “even when it is based on one or two dubious examples”. See also: R. v. C.B., 2017 ONCA 862 at paras. 42-45
[31] In my view, while the trial judge’s misapprehension of evidence was relevant to the issue of the appellant’s credibility, I think it was peripheral to her decision to reject the appellant’s claim of self defence. I come to that view for the following reasons.
[32] First, it seems to me that the trial judge’s credibility findings were based on her finding that the appellant’s evidence was internally inconsistent, inconsistent with the evidence of other witnesses whose evidence she accepted for reasons she gave, and inconsistent with the video surveillance evidence. I note, in particular:
• The trial judge provided a specific example of one such internal inconsistency in the appellant’s testimony. She explained that the appellant’s evidence changed from the first to second day of cross-examination in relation to whether she overheard the words spoken between her husband and the Arifs. A review of the transcript reveals that in her first day of cross-examination, the appellant she said that in the Aldo store, she was “completely ignoring” what was said, did not care, and did not know what the words used were. She could not say which Arif was speaking, but thought it was sarcastic. Under cross-examination the next day, the appellant said that she heard one of the Arif women say, “I don’t have to say sorry. We were walking” and then, “Stupid black people or you stupid black people”.
• The trial judge also provided examples of the appellant’s evidence having been inconsistent with other evidence. The appellant was unequivocal that she did not step over Ms. Arif’s body when it was on the ground and testified that she stepped around it. The trial judge observed that this was inconsistent with independent witness Daljit Chahal’s evidence, which she found credible, and whose evidence that this is what the appellant did was supported by the video. She also noted that the appellant denied having said told Ms. Arif that she had “messed with the wrong girl”, something that Mr Chahal testified he heard and testified about.
• In the course of reviewing the appellant’s evidence, the trial judge pointed to other aspects of her evidence that was inconsistent with other witnesses and provided a basis for rejecting it. For instance, she found the appellant’s assertion that she had been attacked by the older Ms. Arif was not to be credible because it not only conflicted with the older Ms. Arif’s evidence and demeanour as passive and submissive, but also with the evidence of the complainant and two other witnesses, as well as by the absence of any such assault on the video.
• In rejecting the appellant’s evidence that she had only pushed the complainant, the trial judge relied on the fact that the video evidence showed the appellant grabbing the complainant and pushing her to the ground, something very different from the push the appellant described.
[33] In my view, these examples demonstrate that the trial judge grounded her credibility findings against the appellant on the fact that in many significant areas it differed from multiple other witnesses, including those who had no interest in the trial, and on the fact that it was wholly inconsistent with what could be seen on the video.
[34] Second, I see the impugned comment as referable to an isolated aspect of the evidence and one that had little bearing on the trial judge’s credibility findings.
[35] The trial judge’s observation was that she found the appellant’s use of the word “disengaged” in relation to the “absence of the Arif women” rehearsed and constructed. It is hard to understand what exactly she meant because there does not seem to have been evidence about the “absence of the Arif women” during the trial. But, more importantly, the trial judge did not go further and say that this was a reason for her to find the appellant’s evidence, more generally, to be contrived or rehearsed. Her comment seems to have been limited to a view about the appellant’s use of that word in that context.
[36] Moreover, in her lengthy judgment, the trial judge set out detailed reasons for rejecting the appellant’s evidence as internally inconsistent, or inconsistent with multiple other witnesses or the video evidence. Nowhere did she express any view that the appellant’s evidence as a whole was rehearsed or constructed or that this earlier comment influenced her rejection of it. When the impugned passage is viewed in the context of the judgment as a whole, I cannot accept that she placed much weight at all on the appellant’s use of a single word.
[37] In sum, it is my view that the trial judge’s reasons reveal that her misapprehension of the evidence was not central to her credibility findings, as is required for this ground of appeal to succeed. To the contrary, the trial judge’s misapprehension of the appellant’s evidence appears to me to have played little, if any role in her decision to reject the appellant’s evidence. Certainly, it cannot be said to have been material and essential to the reasoning process undertaken by the trial judge. Striking this comment from the judgment would have no effect whatsoever on the trial judge’s analysis.
[38] This ground of appeal must be dismissed.
iii) Did the trial judge err in her analysis respecting sentence and, if so, should a discharge be granted?
[39] The appellant submits that the trial judge erred in principle in in concluding that the fact that the appellant and complainant were strangers was an aggravating factor on sentence. She submits that as a result, it falls to me to consider the sentence afresh. The appellant says that she should receive a conditional discharge.
[40] Recently, in R. v. Lis, 2020 ONCA 551, Watt J.A. reviewed, at paras. 42-44, the standard for appellate intervention on a sentence appeal:
42 An error in principle (the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor) can justify our intervention, permit us to inquire into the fitness of the sentence, and replace it with a sentence we consider appropriate. But not in all cases. It is only where it appears from the sentencing judge's decision that an error of the nature described impacted the sentence imposed that we are permitted to intervene: R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 (S.C.C.), at paras. 43-44; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1 (S.C.C.), at para. 26.
[41] The appellant’s argument about the sentencing judge’s error needs to be put into the context of the submissions that were made on sentencing.
[42] In his submissions seeking an absolute discharge, Mr. Rowe was asked by the trial judge what steps the appellant had taken to address the public interest. He responded that with respect to the complainant, they did not know each other and that the chance of them meeting again was nil.
[43] It was the Crown’s position that a fit sentence was 30 days of custody followed by 12 months of probation with counselling for anger management and a s. 110 order. In his submissions respecting aggravating factors, the Crown characterized the offence as an assault that was “seemingly unprovoked in a public context” and was “essentially an unprovoked attack”.
[44] In response, Mr. Rowe suggested that it was not an unprovoked attack in a public place because:
…as Your Honour starter [sic] this from the get-go, Ms. Johnson did not attack anyone. Ms. Johnson was attacked and was defending herself and then the court deemed that she went to far to defend herself, leading to the assault. So, Ms. Johnson was not the aggressor in the circumstances…
[45] The trial judge responded that the submission was “skewing the facts” as she found them and that at the time the altercation took place, it was unprovoked. Mr. Rowe persisted that his client had been defending herself and the trial judge responded that she had found that it was not a provoked assault. He also submitted that the situation was a “one-off” in that a person the appellant did not know had walked up to her and shoved something in her face and that she was understandably irritated.
[46] Finally, in his reply, when asked about ancillary orders, Mr. Rowe said, “Ms. Johnson and the complainant didn’t know each other, don’t know each other, don’t even know each other, where each other lives. The chances of them coming into contact with each other, Your Honour, is, is one in a million”.
[47] In her reasons for sentence, in the course of her consideration as to whether an absolute discharge was appropriate, the trial judge said:
Now, I consider the submission of Mr. Rowe that there should be an absolute discharge and a peace bond for a period of one year to protect the complainant and have no contact with her. They are strangers to one another, which Mr. Rowe submits is a mitigating factor here. In fact, that is an aggravating feature, that with no history between the parties that she sees fit to do this to another person.
[48] In my view, this passage of the trial judge’s reasons is a direct response to Mr. Rowe’s submission that because the complainant and appellant did not know each other, an absolute discharge and peace bond would be sufficient to protect the complainant. The trial judge’s view was that the fact that the complainant and appellant did not know each other was not a factor that pointed towards a peace bond, it was a factor that was aggravating because there was no history between the parties that could explain the appellant’s conduct.
[49] I do not see an error in the trial judge’s approach to this issue. She was correct that there was no history of animosity between the appellant and complainant that might justify the appellant’s reaction to having her photograph taken. Instead, there was, in a public place, a wholly unjustified response to an effective stranger. The trial judge held that reaction was excessive and punitive. I do not think the trial judge erred in mentioning this factor as one that, rather than mitigating the circumstances of the offence, aggravated it.
[50] In any event, having reviewed the reasons for sentence as a whole, it is my view that the trial judge really placed no reliance on this factor when she considered whether to grant a discharge. Instead, she turned her mind to, and fairly considered, all of the appropriate factors relating to the best interests of the offender and the public interest.
[51] More specifically, the trial judge recognized that the appellant had no criminal record and that a discharge would be in her best interests.
[52] At the same time, when weighing the public interest, the trial judge was troubled by the aggravated circumstances of the offence that she set out. These factors included that the appellant showed “extreme anger” in throwing the complainant to the ground rendering her briefly unconscious, that she then left with her husband, that she callously walked over Ms. Arif saying that she had “messed with the wrong girl”, which she found was demonstrative of an intention to show dominance over the complainant and the impact of the offence on the complainant including lasting scarring.
[53] In my view, even if the trial judge improperly referred to the fact that the complainant and appellant were strangers as an aggravating factor, her one reference to this factor, in view of her lengthy reasons for sentence, had no impact on the sentence she imposed, or on her decision not to grant a discharge. Accordingly, there is no authority to interfere with the sentence imposed.
[54] The appeal as to sentence must be dismissed.
C. Conclusion
[55] For the reasons given, the appeal is dismissed.
J.M. Woollcombe J.
Released: September 29, 2020
COURT FILE NO.: SCA(P) 1473/19
DATE: 2020 09 29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
CAROLYN JOHNSON
Appellant
REASONS FOR JUDGMENT
[On Appeal from the Reasons for Judgment of
Madam Justice N.S. Kastner,
dated September 21, 2018]
Justice Woollcombe
Released: September 29, 2020