COURT FILE NO.: 17-RD19595
DATE: 20201126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SOUFIANE CHANNANI
Appellant
Hart Shouldice, for the Respondent
Paolo Giancaterino, for the Appellant
HEARD: November 18, 2020
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
Aitken J.
Nature of the Proceedings
[1] The Appellant, Soufiane Channani, appeals his conviction for assault and assault causing bodily harm against the Complainant, Petra Decle.
[2] The three grounds advanced on the appeal are that: (1) the trial judge erred in her assessment of the reliability and credibility of the Complainant’s evidence; (2) the trial judge erred in using the evidence of the Complainant’s father regarding the Complainant’s injuries as corroboration of the Complainant’s testimony; and (3) the trial judge erred in applying a different standard of scrutiny when analyzing the evidence of the Complainant as compared to that of the Appellant.
[3] Following argument, I dismissed the appeal with written reasons to follow. These are those reasons.
Legal Principles
[4] An appeal court must afford a high degree of deference to a trial judge’s assessment of credibility and reliability. As stated in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 10 and 20:
There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference of opinion with the trial judge (Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 74). A succinct description of the overall approach appears in R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 4, where this Court stated that “it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can ... overturn the trial court’s verdict”. With respect to the credibility of witnesses, the same standard applies. In Lavoie v. R., [2003] Q.J. No. 1474 (QL), at para. 37, Nuss J.A. of the Quebec Court of Appeal stated that a trial judge's assessment of the credibility of witnesses “will not be disturbed unless it can be demonstrated that he committed a palpable and overriding error” (citing Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33).
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.
[5] In R. v. Kiss, 2018 ONCA 184, [2018] O.J. No. 1011, Paciocco J.A. offers guidance regarding how a trial judge should approach the task of assessing credibility and reliability. Three points are apt here.
[6] First, it is appropriate for a trial judge to consider the plausibility of a witness’s account of events. In this regard, Paciocco J.A., at para. 30, considered applicable the following statement from Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354, [1951] B.C.J. No. 152 (C.A.), at para. 10:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such cases must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
(See also R. v. Howe (2005), 192 C.C.C. (3d) 480, 2005 253 (Ont. C.A.), at para. 48, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at 24).
[7] In this case, as in Kiss, the trial judge considered the plausibility of each witness’s account of events as part of her consideration of the credibility of the witness and the reliability of his or her evidence. Her assessment in this regard informed her conclusion as to whether she was left in reasonable doubt.
[8] Second, what a trial judge must determine is whether the evidence as a whole leaves her with a reasonable doubt about the accused’s guilt. The question is not whether any particular credibility or reliability challenge raises a reasonable doubt. What must occur is a cumulative evaluation of all of the evidence (Kiss, at para. 33). Again, in my view, despite the trial judge’s review of particular inconsistencies, especially in the evidence of the Appellant, she came to a determination based on the cumulative impact of the evidence considered as a whole.
[9] Third, it is an error of law for a trial judge to use a higher degree of scrutiny in assessing the credibility or reliability of defence evidence than is used when assessing Crown evidence. Where this happens, a trial will be unfair to the accused (Kiss, at para. 82). Paciocco J.A. elaborated at para. 83:
This is a notoriously difficult ground of appeal to succeed upon because a trial judge’s credibility determinations are entitled to a high degree of deference, and courts are justifiably skeptical of what may be veiled attempts to have an appellate court re-evaluate credibility: R. v. D.T., 2014 ONCA 44, at paras. 71-73; and R. v. Aird, 2013 ONCA 447, at para. 39. An “uneven scrutiny” ground of appeal is made out only if it is clear that the trial judge has applied different standards in assessing the competing evidence: Howe, at para. 59. Where the imbalance is significant enough, “the deference normally owed to the trial judge’s credibility assessment is generally displaced”: R. v. Rhayel, 2015 ONCA 377, at para. 96; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19; and R. v. Phan, 2013 ONCA 787, at para. 34.
[10] In my view, for reasons explained below, the trial judge did not engage in this impermissible uneven approach to assessing credibility and reliability.
[11] The case of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 offers additional guidance, particularly in regard to circumstantial evidence.
[12] An inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense (Villaroman, at para. 30). If there are reasonable inferences other than guilt that can be drawn from all of the evidence or the lack of evidence considered in this context, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt (Villaroman, at paras. 35-36). When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theories’ and ‘other reasonable possibilities’ which are inconsistent with guilt. Other plausible theories and other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation (Villaroman, at para. 37). The line between a ‘plausible theory’ and ‘speculation’ is not always easy to draw, but the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty (Villaroman, at para. 38). Alternative inferences must be reasonable, not just possible (Villaroman, at para. 42).
[13] Strathy, C.J.O., in R. v. S.B., 2018 ONCA 807, 143 O.R. (3d) 81, at para. 139, in emphasizing that a high level of deference is owed to a trial judge’s conclusion that there are no reasonable alternative inferences other than guilt, quoted with approval the statement in R. v. Loor, 2017 ONCA 696, at para. 22, that: “[a]n appellate court is justified in interfering only if the trial judge’s conclusion that the evidence excluded any reasonable alternative was itself unreasonable.”
[14] A trial judge’s reasons must be “read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered’” (Villaroman, at para. 15, citing R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16). The issue in this trial was whether the injuries on the Complainant’s face observed by the Complainant’s father and by Constable Martin were caused by the Appellant during two assaults on the Complainant, as alleged by the Complainant. The Appellant advanced another version of events, namely, that the Complainant had suffered the injuries in question two days before she sought her father’s help during the course of an altercation with another woman, known as Millions, or as a result of her falling in the snow.
Analysis
[15] As the three grounds of appeal are highly interrelated, I will deal with them collectively.
[16] In her decision, the trial judge first instructed herself on some basic legal principles: (1) the burden of proof is always upon the Crown to prove guilt beyond a reasonable doubt; (2) reasonable doubt must be based on reason, logic, and common sense from the evidence or lack of evidence; (3) in assessing evidence, a trial judge is entitled to believe none, some, or all of a witness’s evidence; and (4) in analyzing the totality of the evidence, a trial judge must be guided by the principles in R. v. W.D. The trial judge was alive to the burden on the Crown and what was required before a conviction could be entered.
[17] The trial judge went on to set out accurately and fairly the testimony of the Appellant regarding his version of events on December 5, 2016, and his denial that he saw the Complainant at any time between December 5, 2016 and when her father picked her up from the Elgin Street Diner on or about the evening of December 7, 2016. The trial judge quite properly reviewed the numerous internal inconsistencies in the Appellant’s evidence which significantly undermined his credibility. For example, she pointed out that the Appellant’s evidence as to when and why his friend, Biz, had come to the Econolodge Motel, and what the Appellant and Biz did while at the motel, was full of contradictions and made no sense. Similarly, the Appellant’s evidence as to what happened on the trip from the Econolodge to the Rideau Centre was garbled and full of contradictions, as was the Appellant’s evidence regarding his observations of injuries sustained by the Complainant during the period between the group leaving the Econolodge and reaching the Rideau Centre. The Appellant provided no reason, such as intoxication or drug use, to explain why his memory would be foggy or to justify why the details in his narrative kept changing. As the trial judge aptly noted, the Appellant’s evidence evolved during the course of his testimony and gave the impression of being created on the fly.
[18] Further, the trial judge pointed out that the Appellant’s evidence was inconsistent with or offered no reasonable explanation for other unchallenged evidence, for example: (1) the Appellant’s evidence provided no reasonable explanation as to why the Complainant’s father had observed the Complainant’s blackened eyes and marks on the Complainant’s face consistent with someone having stomped on her face when he picked her up at the Elgin Street Diner; (2) the Appellant’s evidence provided no reasonable explanation as to why there would be three calls made by the Complainant to her father, the first two on her cell phone and the third on another phone, first asking him to pick her up right away, then revoking the request, and then again asking to be picked up from the Elgin Street Diner; (3) the Appellant’s evidence provided no reasonable explanation as to why the Complainant would have gone to the Elgin Street Diner when she did, scantily clad, in obvious distress, without any of her personal possessions, and seeking help, if the event during which she was supposedly injured happened one or two days earlier; and (4) the Appellant’s evidence provided no reasonable explanation as to why the Complainant seemed to be “scared” when her father met her at the Diner and when Constable Martin interviewed her on December 12, 2016.
[19] When considering what weight to assign to the Appellant’s contradictory evidence, in the context of all of the evidence, the trial judge also had a copy of the Appellant’s criminal record which included numerous offences for crimes of dishonesty.
[20] For these reasons, the trial judge, quite reasonably, did not find the Appellant to be a credible or reliable witness. What was significant to the trial judge was that there was no evidence to corroborate key portions of the Appellant’s evidence, namely, that the Complainant and Millions had been in a physical altercation on December 5, 2016 resulting in the Complainant’s injuries, that the Appellant had had no contact with the Complainant after December 5, 2016, and that the Appellant had not assaulted the Complainant. In fact, some statements made by the Appellant in his own testimony undermined these assertions.
[21] Finally, the trial judge brought to her assessment the benefit of logic, human experience, and common sense. Her conclusion that the Appellant’s version of events did not rise to the level of a plausible theory as to why the Complainant ended up at the Elgin Street Diner with obvious injuries to her face and in clear distress was reasonable on the basis of the totality of the evidence.
[22] When the trial judge pivoted to consider the Complainant’s evidence, she immediately commented that the Complainant’s testimony was not perfect either. She noted that the Complainant was not an easy witness. She did not always focus on the questions posed and the answers required, nor was she particularly responsive to the trial judge’s directions. As well, the Complainant was at times argumentative.
[23] The Complainant acknowledged that she did not have a clear memory of the days leading up to alleged assaults, including December 5, 2016, due to her consumption of alcohol and drugs. The Complainant did not purport to remember the exact sequence of events or many of the details regarding the events that occurred during this period. That was to be expected considering the Complainant had been drinking to excess and ingesting drugs in the days leading up to December 5 and was under the influence of both on December 5. In short, the way the Complainant presented her evidence was quite different from the way the Appellant presented his. This difference called for a different, though no less rigorous, approach when the trial judge was considering the Complainant’s credibility and reliability as a witness.
[24] Despite the Complainant not having a clear recollection of what had transpired in the days prior to December 7, 2016, the trial judge appeared to accept the Complainant’s evidence that she would not have fought with Millions at the time because she was scared of her. In accepting that evidence, the trial judge had the corroborative evidence of the Appellant that: (1) Millions was much larger and stronger than the Complainant; (2) the Complainant would not have wanted to take on Millions; and (3) the Complainant would not have been able to win any physical contest with Millions. Despite the Appellant saying different things at different times about the injuries he observed on the Complainant after she had been out in the snow with Millions, none of the Appellant’s descriptions included marks on the Complainant’s face consistent with someone having stomped on her face with a shoe or boot.
[25] The trial judge was clear that, considering the Complainant’s shortcomings as a witness and her gaps in memory, if the only evidence available was the Complainant’s testimony, that would have been insufficient for a finding of guilt beyond a reasonable doubt against the Appellant. But the trial judge did not have only the Complainant’s evidence. She had the evidence of the Complainant’s father, of Constable Martin, and of the Appellant himself. This additional evidence offered corroboration to many aspects of the Complainant’s version of events and rendered her key assertions plausible and in keeping with human experience and common sense.
[26] The trial judge also had the Complainant’s clear evidence as to the nature of the two assaults. That evidence did not deviate under intense cross-examination. It did not suffer from the same frailties as the Complainant’s evidence regarding earlier events. By December 7, 2016, the Complainant was not as intoxicated by alcohol and drugs as she had been on earlier days. This was corroborated by her father, who had seen the Complainant on many occasions in the past when she had been using drugs. He did not believe that the Complainant was impaired when he met her at the Elgin Street Diner.
[27] The Complainant’s version of events can be summarized as follows:
• Biz got into trouble for returning late to the Halfway House from the Econolodge (the Appellant’s evidence and the understanding of the Complainant from what the Appellant told her);
• Due to his failure to abide by the reporting conditions of his parole, Biz was unable to return to the motel with the Appellant (the Appellant’s evidence and the Complainant’s understanding based on statements of the Appellant);
• The Appellant was alone at the motel with the Complainant and Millions (the Complainant’s evidence);
• The Appellant blamed Biz’s predicament on the Complainant’s intoxicated behaviour which had delayed Biz’s return to the Halfway House and had made him miss his check-in time (the evidence of the Complainant and the Appellant);
• When Millions went outside the motel room for a cigarette, the Appellant stomped on the Complainant’s face in the motel bathroom (the Complainant’s evidence regarding the assault plus the corroborating evidence regarding the nature of the injuries provided by the Complainant’s father and Constable Martin);
• Upon subsequently checking out of the motel, the Appellant and the Complainant dropped off Millions before going to the Elgin Street apartment of the Appellant’s friend (the Complainant’s evidence) where they had been hanging out from time to time and where the Complainant kept “her stuff” (the Appellant’s evidence);
• The Complainant called her father on her cell phone, asking to be picked up (the evidence of the Complainant and her father);
• The Appellant overheard the call, became angry, and assaulted the Complainant (the Complainant’s evidence);
• The Appellant forced the Complainant to call back her father on her cell phone and cancel the drive (the Complainant’s evidence, corroborated as to the timing and nature of the call by the Complainant’s father);
• The Complainant persuaded the Appellant to let her go outside for some air (the Complainant’s evidence);
• The Complainant had nothing with her but the clothes on her back (the evidence of the Complainant and her father);
• The Complainant took the opportunity to flee to the Elgin Street Diner across the street from the apartment (the Complainant’s evidence);
• The Complainant used the Diner’s telephone to call her father for the third time (the evidence of the Complainant and her father); and
• The Complainant was in distress, was wearing minimal clothing, and had injuries on her face (evidence of the Complainant, corroborated as to her locale, state, and injuries by her father when he arrived at the Diner shortly thereafter).
[28] The trial judge identified frailties in the testimony of both the Complainant and the Appellant, though the nature of the frailties were different. The trial judge approached the Complainant’s evidence with caution because of her admitted intoxication and concomitant lack of memory regarding the events leading up to the alleged assaults, and because the manner in which she testified was difficult and frustrating. The Appellant, on the other hand, claimed not to have been impaired by liquor or drugs and claimed to have a clear memory of the events leading up to the Complainant’s injuries. The frailties in his evidence were different. They arose from the internal and external inconsistencies regarding many details he offered in his testimony. They also arose from the lack of plausibility of his explanation as to how the Complainant suffered the injuries she did, as to why she would have been in so much distress on December 7, 2016 that she ventured outdoors while scantily clad, and as to why she sought the assistance of strangers to reach her father and get his help.
[29] Thus, the trial judge embarked on a critical evaluation of the evidence of both the Appellant and the Complainant, but the focus of her critique differed in each case based on the particular frailties that the evidence of each presented. With the Complainant, the trial judge was able to employ a more global approach to her evidence as a result of her gaps in her memory and her demeanour while testifying. With the Appellant’s testimony, the trial judge was faced with numerous internal and external contradictions that undermined his credibility. For both, the trial judge wanted corroboration. She got that in regard to several aspects of the Complainant’s version of events regarding the two assaults. She got nothing to corroborate the Appellant’s version of events regarding the assaults and, indeed, much that rendered his version implausible. It is worthy of note that the trial judge acquitted the Appellant of the third count, criminal harassment, because of her unwillingness to rely solely on the Complainant’s evidence.
[30] Different types of testimony can call for different types of critical evaluation. Just because different analytical approaches are adopted does not necessarily mean that the trial judge has applied a higher level of scrutiny to one witness’s testimony when compared to that of another witness. Different types of frailties in the witnesses’ evidence call for different observations. One size does not fit all. The critical analysis of a witness’s testimony must be tailor-made for the particular testimony when considered in the context of all of the evidence. That is what the trial judge did here. She determined that what was most material with the Appellant’s evidence was that he could not get his story straight and kept massaging it to an extent that undermined his credibility. She determined that what was most material with the Complainant’s evidence was her state of intoxication prior to the events in question and the resulting gaps in her memory – both resulting in the trial judge not considering it safe to convict on the basis of the Complainant’s evidence without aspects of her version of events being confirmed by the corroborative evidence of others.
[31] In summary, there was no palpable and overriding error in the manner in which the trial judge assessed the evidence of the witnesses. Her conclusion that the Appellant was guilty of assault causing bodily harm and assault can reasonably be supported by the evidence at trial.
Disposition
[32] For these reasons, the appeal was dismissed.
Aitken J.
Released: November 26, 2020
COURT FILE NO.: 17-RD19595
DATE: 20201126
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
SOUFIANE CHANNANI
Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
Aitken J.
Released: November 26, 2020