COURT FILE NO.: 291/19

DATE: 2020/02/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

M.H.A.

Appellant

James Spangenberg, for the Respondent

Robert Sheppard, for the Appellant

HEARD: January 14, 2020

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

George J.

[1] On October 2, 2018 the Appellant was found guilty of assaulting his wife (“complainant”). On December 11, 2018 he was granted a conditional discharge with 18 months of probation. He appeals against conviction.

[2] The Appellant and complainant are originally from Sudan. They married in 1987 and immigrated to Canada in 1996. They have four children ranging in age from 14 to 29. They separated in 2008 and subsequently divorced in accordance with Islamic tradition.

[3] In March 2017 the two lived in apartment buildings adjacent to each other. These buildings share an underground parking garage. At trial the complainant testified that on March 15, 2017, as she was walking through the parking garage, she was approached by the Appellant who grabbed her arms, pulled them behind her back, and then spit in her eye. She testified that the next day her eye was sore and swollen. She attended at the hospital where she learned she had an infection. She called the police and the Appellant was charged.

[4] The Appellant testified in his own defence. He denied having a confrontation with the complainant. In fact, he denied having seen her at all that day.

[5] In finding the Appellant guilty the trial judge said the following:

I find [the complainant] was a credible and reliable witness. I accept her evidence regarding the assault by [the Appellant] and the prior phone call to [the complainant] which provided context for the assault. I do so because I observed [the complainant] to be doing her very best to tell the court what happened in very difficult circumstances. She testified about [the Appellant’s] actions in the presence of her two sons, her two adult sons, who attended the trial. [The Appellant] testified he asked them to attend, but denied doing it to intimidate [the complainant].

It was clear to me, however, she felt the pressure of their presence. At one point in her cross-examination, she spoke directly to them, saying frustratedly, “Do you want me to talk about your father or shall I keep silent?” She then said, “I am a liar, he didn’t do anything”. She did not, however, maintain that position much beyond that and almost immediately said, “I tell the truth.” Her sons then left the courtroom. It was clear to me she said she was a liar only because of her frustration and resignation in that moment, not because the statement was true.

I accept [the complainant’s] testimony for the additional following reasons:

1. [the complainant’s] evidence is confirmed in part by the medical report regarding the injury to her eye and soreness to her right arm;

2. I accept [the complainant’s] explanation for the inconsistency between her testimony at trial that [the Appellant] grabbed both her arms, and the medical records that reference only her right arm. Her explanations that she was focussed on the eye injury that led her to be at the hospital and that only her right arm hurt at the time, because a previous injury to that arm was aggravated by [the Appellant’s] actions are reasonable;

3. [The complainant’s] evidence is confirmed in part by the officer who saw swelling and redness to the eye;

4. [The complainant] did not have the benefit of an interpreter when she spoke to the police, which may explain the lack of a detailed accounting of the incident that led her to be at the hospital; and

5. I do not accept defence counsel’s suggestion [the complainant] had a motive to lie because a Family Court determination of financial support is not influenced by allegations of violence in the same way the determination of custody issues are potentially influenced by that type of allegation. I accept [the complainant’s] evidence that she did not want to speak to the police about this incident. I accept her explanation that she only did so because the hospital called them. I am mindful she called police about the alleged threat on the phone three days prior, but I accept her evidence that she did so because she wanted police to speak to him about how he spoke to her.

[6] As is apparent the trial judge believed the complainant. After completing her analysis of the complainant’s testimony, she said this:

I am mindful I cannot shift the burden of proof. I am mindful that I must consider whether I accept [the Appellant’s] evidence or whether it raises a reasonable doubt in my mind. I am further mindful that I am permitted to consider the evidence of [the complainant] that I accept, as a tool for evaluating [the Appellant’s] credibility.

When I do so in this case, I find [the Appellant] was not a credible witness. [The Appellant’s] denial is not believable in light of my acceptance of [the complainant’s] evidence for the reasons already noted in this decision. The medical records and admitted police evidence confirm [the complainant’s] evidence that her eye was injured.

[The Appellant’s] evidence regarding the prior phone call from [the complainant] defies common sense. If she simply asked to borrow the car and he agreed, there would be no reason for her to be upset and no reason for her to call police to have him charged with threatening her. I agree with the Crown, what makes sense is that [the Appellant] was upset she did so, and when he saw her in the parking garage a few days later, he expressed his anger verbally and also assaulted her. I reject [the Appellant’s] evidence. It does not raise a reasonable doubt in my mind. I am sure, based on the evidence I accept, [the Appellant] assaulted [the complainant], and for these reasons, I find him guilty.

[7] The trial judge disbelieved the Appellant and expressly found that his testimony did not raise a reasonable doubt.

[8] The Appellant says the trial judge erred in two respects. First, she erred in finding that the complainant’s credibility and acceptance of her evidence, in itself, renders the Appellant’s testimony – which was a complete denial – incapable of raising a reasonable doubt. In other words, a finding that the complainant is credible must not foreclose a fair assessment of the Appellant’s evidence. Second, she created at least an appearance of unfairness by making light of defence counsel’s submission that the Appellant could not possibly have simultaneously held the complainant’s arms behind her back and spit in her face. After defence counsel urged the trial judge to so find there was this exchange:

Court: But you didn’t cross-examine about the logistics.

Defence counsel: And she wasn’t able to provide details of it either.

Court: But you didn’t ask her to.

Defence counsel: Well that’s…

Court: You never said to her, ‘how could this possibly happen?’

Defence counsel: That’s what I say to you. I say reject her evidence, because what she’s describing could not possibly happen.

Court: What evidence do we have that it couldn’t possibly happen?

Defence counsel: The evidence that he’s twisting both her arms behind her back while simultaneously spitting in her face.

Court: Should I ask Mr. Spangenberg [the Crown Attorney] to do that to you? I just don’t have any evidence upon which I can reject it on that basis, do I? She was never given an opportunity to say, ‘well, this is how he accomplished that’.

[9] A high degree of deference must be afforded a trier of fact’s assessment of credibility. They are best positioned to assess a witness’s demeanour and to weigh their testimony in the context of all the other evidence. The question raised by the Appellant is whether the trial judge reduced her credibility assessment to a mere contest between competing accounts. The Appellant says she did as, while she was entitled to believe the complainant, she failed to then go on and assess the Appellant’s evidence and determine whether it raised a reasonable doubt.

[10] At para. 51 of his factum the Appellant puts it this way:

…in a case (such as ours) in which credibility is the determining factor, a faulty analysis by the trier of cannot be immunized by mere reference to the W.(D.) instruction: where the ultimate finding of guilt was achieved without due regard to the second leg of the W.(D.) direction, that finding is open to appellate review. In that review, while deference is to be accorded to the trier of fact on findings of credibility, where the Reasons reflect an ultimate unexplained overlooking of issues impacting against the credibility of the Crown’s witnesses or supportive of the evidence of the accused, the concern arises that differing levels of scrutiny were applied to the evidence of each of those key witnesses by the trial judge.

[11] Did the trial judge unevenly scrutinize the evidence of the two witnesses she heard from? This argument is a difficult one to successfully make, for two reasons. First, credibility findings are typically the exclusive province of a trial judge which means that, as already indicated, a very high degree of deference is owed. Second, appellate courts often view this as a veiled invitation to reassess credibility anew; see R. v. Aird, 2013 ONCA 447.

[12] While the passage I cite from the Appellant’s factum alleges uneven scrutiny, in oral argument Appellant counsel framed it as the trial judge essentially skipping the second step in W.(D.). He argues that she, after accepting the complainant’s testimony, simply rejected the Appellant’s testimony without independently determining whether it, on its own, was capable of raising a reasonable doubt.

[13] I disagree. First, the trial judge was alive to the fact that credibility was the main issue. Second, she accepted the complainant’s testimony. Third, she rejected the Appellant’s testimony, not as a rote reaction to her belief in the complainant, but after an assessment of it in the context of all the evidence, including obviously the complainant’s.

[14] I am not to inject my own impression of the evidence nor substitute my own findings. The credibility findings made by the trial judge were open to her and her reasons do not reveal uneven levels of scrutiny in arriving at those findings.

[15] Did the trial judge improperly apply the W.(D.) test? I say no. I come to this conclusion mindful of the Supreme Court’s comments in R. v. S.(J.H.) [2008] 2 S.C.R. 52 where the majority writes this at para. 13:

…the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them. W.(D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance.

[16] A restatement of the entire W.(D.) test is necessary with a jury as it is the best way to reinforce that there is no shift in burden. In our case, the trial judge clearly understood that. Furthermore, she did not cherry pick evidence. She considered all of it, made findings she was entitled to make, and thereafter applied the correct test to those findings. More importantly, and in direct response to the Appellant’s argument, a trial judge is entitled to reject an accused’s evidence based on a considered and reasoned acceptance of a complainant’s evidence. Consider Code J.’s comments in R. v. Edwards 2012 ONSC 3373, [2012] O.J. No. 2596:

…the so-called “second brand” of W.D. does not require a trier of fact to take evidence that has been completely rejected and use it as a basis for finding reasonable doubt. This is not rational. The middle ground in W.D. is an “alternative” to complete belief or complete rejection and arises where a trier cannot “resolve the conflicting evidence” and cannot find “exactly where the truth of the matter lay”, as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk. It refers to a state of indecision or uncertainty where the trier is not “able to select one version in preference to the other”, as Cory J. put it in W.D.S. In the case at bar, Budzinski J. completely rejected Edwards’ account and completely accepted T.B.’s account. In other words, he was able to resolve the conflict in the evidence and he was not left in a state of uncertainty. By stating definitively, “I disbelieve the defendant”, the trial judge could not have been left in reasonable doubt by that testimony.

[17] In our case, the trial judge had no difficulty resolving the conflicting evidence and it is abundantly clear, at least to her, where the truth lied. She referred to all of the evidence, applied the correct test, and arrived at a conclusion that was open to her, given her findings.

[18] That leaves this issue: Did the trial judge’s off-hand comment to counsel during submissions give rise to an appearance that she lacked objectivity? Appellant counsel characterizes this exchange as a “colloquial lapse in courtroom decorum”. He argues that the glib remark may have led his client to believe trial fairness had been compromised. I disagree.

[19] The trial judge allowed each counsel to tender whatever evidence they wished and to fully make their argument at the hearing’s conclusion. To the extent it was inappropriate – and I am not entirely convinced it was – this comment stands in stark contrast to the rest of the trial.

[20] To succeed on this ground the Appellant must establish that the trial judge exhibited a bias or created a reasonable apprehension of bias. In my view, neither has been established. Consider the Court of Appeal’s comments in R. v. Mills 2009 ONCA 940 where, at paras. 225 to 229, the majority writes:

225. Although we agree that on multiple occasions the trial judge’s remarks to defence counsel were critical, harsh, and at times belittling, having regard to the entire proceedings (trial and sentencing), we do not agree that there was a reasonable apprehension of bias. Nor do we agree that there was actual bias.

226. The test for establishing a reasonable apprehension of bias was recently summarized by this court in R. v. Ibrahim, 2019 ONCA 631, at paras. 83-84:

The test for establishing a reasonable apprehension of bias is well known – would a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly…

In Canadian law, judges are presumed to be impartial. As this court said in R. v. Dowholis, 2016 ONCA 801, at para 18: “There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption”…

227. It is accepted as a general rule that allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so…A timely application has two advantages. First, it can serve to alert the trial judge to the possible need for modification of his or her behaviour and/or for a corrective jury instruction, depending on the circumstances…Second, it creates an evidentiary record and ruling for purposes of appeal, if necessary. Although counsel to Mr. Williams complained about the trial judge’s conduct at certain points in the trial, there was no application for a mistrial in this case, and this issue arises for the first time on appeal. Accordingly, while it is apparent from the transcript that the trial judge’s interactions with defence counsel were at times inappropriate, we do not have the benefit of an evidentiary record and ruling arising from a mistrial application.

228. The question is whether the trial judge’s interactions with counsel to Mr. Williams evidenced actual bias on the part of the trial judge or gave rise to a reasonable apprehension of bias. Stated more specifically, would the cumulative effect of the exchanges, comments, and other behaviour, when examined in the context of the trial as a whole, lead a reasonable observe to conclude that the trial judge was not an adjudicator “disinterested in the outcome, and open to the persuasion by the evidence and submissions”.

229. As this court recently emphasized in Ibrahim, at para. 85, the inquiry is contextual:

When assessing whether the actions of a trial judge display a reasonable apprehension of bias, the conduct of the trial judge must be viewed in context. In R. v. Stewart (1991), 1991 CanLII 11753 (ON CA), 62 C.C.C. (3d) 289 Doherty J. said, at p. 320: “It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable and of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.

[21] The nature of the trial judge’s conduct in that case - which the Court of Appeal characterized as critical, harsh, and belittling - far exceeds the single off-hand comment made by the trial judge in ours. It does not come even close to reaching the standard set out in Mills and Ibrahim. The trial judge exhibited no bias, and did nothing to create an apprehension of bias.

[22] The appeal is, therefore, dismissed.

“Justice Jonathon C. George”

Justice Jonathon C. George

Released: February 6, 2020

COURT FILE NO.: 291/19

DATE: 2020/02/06

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

M.H.A.

Appellant

REASONS FOR decision on

summary conviction appeal

George J.

Released: February 6, 2020