Court File and Parties

Court File No.: 19-96 AP Date: 2020-02-12 Ontario Superior Court of Justice Summary Conviction Appeal Court

Between: Her Majesty the Queen M. Fahim, for the Crown Respondent

- and -

Guesly Gemelus A. Menchynski, for the Appellant Appellant

Heard: January 31, 2020

A.J. Goodman J.:

Reasons for Judgment

(On Appeal from the Honourable Justice B. Zabel)

[1] This is an appeal brought by the appellant against conviction imposed on April 16, 2019 by Zabel J. of the Ontario Court of Justice at Hamilton, Ontario.

[2] Following a two-day trial, the appellant, Guesly Gemelus (“Gemelus”) was convicted on a charge of threatening to cause death and disobey court order, contrary to their respective provisions of the Criminal Code. On April 16, 2019, the trial judge imposed a one day jail term with credit for time served of 90 days, along with a 36-month period of probation and various ancillary orders.

[3] In the Notice of Appeal and written materials, the appellant raised several grounds of appeal against conviction. Gemelus appeals his convictions on the basis that the trial judge failed to consider material evidence that impugned the complainant’s, Ms. O’s, credibility and the insufficiency of reasons.

Evidence at Trial:

[4] Ms. O explained that she met Gemelus in British Columbia in 2015. After spending some time together, Gemelus returned to his home in Ontario. Ms. O travelled to Ontario three times to visit him before discovering that he was unfaithful to her. She claimed that Gemelus was romantically involved with many different women and had been living with a girlfriend for about five years. After learning this information and attempting to leave Gemelus in June 2016, she says he held her hostage at his parent’s home in Ontario. Following this alleged incident, Gemelus was arrested and released on a condition to not contact her.

[5] Ms. O testified that following this first incident, she had unwanted contact with Gemelus on two occasions (once in British Columbia and once in Ontario) prior to the calls on March 7, 2018. She reported both of these incidents to the police.

[6] Ms. O’s telephone records from March 7, 2018 showed several incoming calls from an unknown number. She said she was taking a nap in the early evening of March 7, 2018 and awoke to her phone ringing; she had missed a call from an unknown number. A moment later, the unknown number called again, and she answered. She testified that Gemelus identified himself as the caller (by way of nickname) and that she recognized his voice. She asked why he was calling, and he told her not to worry about it. She hung up the phone. Maybe 15 or 20 minutes later, an unknown number contacted her again and she answered the call. She indicated that a male voice, which she recognized as being Gemelus, was yelling and calling her names; she hung up the phone. Right after this call, she received a fourth call from an unknown number, which she answered. The male voice said, in part, “You put me in jail, you fucking bitch. When I find you, I’ll fuck you up, I will kill you.” Again, she recognized the voice of the caller as that of Gemelus. She telephoned the police that evening.

[7] On cross-examination, Ms. O admitted she felt betrayed by Gemelus’ infidelity. Ms. O denied trial counsel’s suggestion that she “framed” Gemelus because she was angry at him for cheating on her. She was presented with 140 unanswered Whatsapp messages sent to Gemelus. The author of the messages called Gemelus “evil”, “sick”, “a piece of shit”, and “a fucking lire” (sic). The author also said that s/he wished for Gemelus to have a “handicap child” which would be his “punishment”. Ms. O admitted the telephone number was hers, the picture in the Whatsapp profile (from which the messages were sent) was her, and that she had sent at least some of the messages. She denied sending other messages or stated that she did not remember sending them. These messages were sent to Gemelus shortly after the first incident in June 2016.

[8] During cross-examination, defence counsel confronted Ms. O with the fact that her previous allegations against Gemelus had resulted in no convictions. Further, defence counsel suggested that, based on Ms. O’s postings on the internet, she was angry both at Gemelus and his lawyer for “getting him off” on previous charges. Ms. O denied seeking “revenge”, but admitted to making the following post on a “Google review page” for Gemelus’ trial lawyer: “Defence come (sic) like Guesly Gemelus, who is in Hamilton jail since June on the same charges with the same person that she has been advertising and bragging about getting him off. And shame on women who defence (sic) and protect scums like him. You should be in jail for your criminal work.”

[9] In his reasons for judgment, Zabel J. recited Ms. O’s evidence regarding the alleged calls on March 7, 2018. He found that the witness was, at times, confused about the timing of the calls and the subsequent statements she made to the police; however, he found her credible and reliable.

Positions of the Parties:

[10] The defence position at trial was that Ms. O fabricated the allegations because she discovered Gemelus was cheating on her. She wanted to get “vengeance, to make him feel the pain that she felt through being cheated on.” Defence counsel submitted that Ms. O was dishonest in court, particularly when she claimed that she just wanted Gemelus to leave her alone. Instead, she was obsessed with maintaining contact with Gemelus. Defence counsel emphasized the Whatsapp messages Ms. O sent to Gemelus as a key marker of her dishonesty and her animus towards his client. Counsel also pointed out that despite making a number of allegations against Gemelus over the course of multiple years, “the Crown rightfully and lawfully withdrew those charges.” Counsel argued that all of this frustration was strong motivation for Ms. O to continue making allegations against Gemelus until, finally, one resulted in a conviction.

[11] Mr. Menchynski submits that the trial judge erred in that he failed to explain why he rejected the defence position. Counsel submits that the learned trial judge did not apply the requisite test to determine the appellant’s intent for this offence. More importantly, the trial judge failed to fully address the critical issue of credibility as required in this case and on the evidence.

[12] Mr. Menchynski submits that the trial judge’s reasons were insufficient and he failed to grapple in any way with the material evidence that significantly undermined Ms. O’s credibility. Given the overwhelming evidence of the complainant’s animus towards his client, the trial judge needed to consider and explain why this evidence did not raise a reasonable doubt.

[13] Ms. Fahim, for the Crown, submits the conviction was reasonable, supported by the evidence and free from legal error. The trial judge appropriately found that the actus reus had been proven beyond a reasonable doubt. Furthermore, there was clear evidence from the victim that she was threatened by the contact. It was open to the trial judge to reach the verdict he did on the evidence presented at trial.

[14] The trial judge’s reasons for judgment and comments throughout the trial demonstrated that His Honour did in fact address the issues that defence counsel raised. In support of her position, she points to the following sentence in Zabel J.’s reasons: “I should point out that cross-examination was very extensive and intensive in regard to the prior relationship between the two parties, prior court proceedings, other collateral matters and the incident at hand.” The Crown says that this Court is limited to reviewing the findings of fact to determine whether there are clear and manifest errors on the record.

Legal Principles:

[15] Pursuant to s. 686(1)(a) of the Criminal Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence; (b) there was a wrong decision of law; or (c) on any ground where there was a miscarriage of justice. It is settled law that when considering an unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, deference must be afforded. An appellate court is not entitled to re-try the case and substitute its view of the evidence.

[16] The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have convicted the respondent. Rather, the court must thoroughly re-examine, and to an extent at least, conduct a limited re-weighing and consider the effect of the evidence: R. v. W.(R.), [1992] 2 S.C.R. 122. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, [1987] 2 S.C.R. 168.

[17] Appellate courts may only interfere with verdicts if they can clearly articulate the basis upon which they conclude that the verdict is “inconsistent with the requirements of a judicial appreciation of the evidence.” Further, in deciding whether or not the trier of fact has exceeded the bounds of reasonableness in the verdict that was reached, an appellate court should show “great deference” to findings of credibility made at trial.

[18] The test for demonstrating an unreasonable verdict is an exacting one. To succeed, the appellant must demonstrate that the verdict is one that no judge or jury, properly instructed, could reasonably have rendered in the circumstances. A verdict may also be found unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the trial judge in support of the finding, or is shown to be incompatible with the evidence that has not otherwise been contradicted or rejected by the trial judge. As held by Doherty J.A. in R. v. Morrisey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) trial judges will commit a reversible error when they fail to take into account evidence that is “relevant to a material issue” at trial:

A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.

In my view, any error, including one involving a misapprehension of the evidence by the trial judge must be assessed by reference to its impact on the fairness of the trial. If the error renders the trial unfair, then s. 686(1)(a)(iii) requires that the conviction be quashed.

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.

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.

[19] While the standard for establishing a misapprehension of evidence does not require that an appellant demonstrate that a verdict is unsupported by the evidence, the Supreme Court of Canada in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 2, set out the stringent standards for this ground of appeal:

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”.

[20] As the trial judge made findings of credibility in relation to the witnesses, in seeking to overturn a conviction based on credibility findings and inferences, the following law applies from R. v. Clark (2005), 2005 SCC 2, 193 C.C.C. (3d) 289 (S.C.C.) at para. 9:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: [citations omitted]

[21] The law with regards to palpable and overriding error was summarized by the Court of Appeal for Ontario in R. v. T. (D.), 2014 ONCA 44, 305 C.C.C. (3d) 526, as follows:

An appellate court may only intervene in a trial judge's credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman [citation omitted] this court described the palpable and overriding error standard:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: [citation omitted]. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: [citation omitted].

Application of the Legal Principles to this Case:

A) Unreasonable Verdict:

[22] It is trite law that a trial judge is entitled to believe all, some or none of a witness’ evidence, and to afford different weight to different parts of the evidence that are accepted. The trial judge is best positioned to assess credibility, having heard all of the evidence, how it was said, and the submissions of counsel.

[23] Further, it is not an error where a trial judge fails to specifically articulate the test in R. v. D. (W.), [1991] 1 S.C.R. 742, as long as the principles are applied in each case where warranted. It is settled law that a trial judge does not have to offer any special words or incantation of the test. In some cases, an assessment of credibility may not require adoption of the three distinct steps suggested by W.(D). Clearly, deference must be afforded to the trial judge as he or she is in a unique position to assess the credibility of witnesses.

[24] It is well-established that a trial judge’s findings on the credibility and reliability of a witness are entitled to deference. What is crucial, however, is the requirement that a trial judge explain their reasons on credibility and reasonable doubt in a way that permits meaningful appellate review: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621. This is especially crucial where an accused testifies and gives exculpatory testimony.

[25] This appeal essentially turns on an analysis of the trial judge's reasons for judgment in the context of the evidentiary record. I have considered the reasons for judgment as a whole, keeping in mind the purpose for which they were delivered. The trial judge’s reasons were not intended to be, nor have I read them, “as a verbalization of the entire process engaged in by the trial judge in reaching [his] verdict.” (See Morrissey at p. 205.)

[26] In his reasons for judgment, Zabel J. recited Ms. O’s testimony in-chief as she recalled the phone calls she received on March 7, 2018. Zabel J. noted Ms. O was “at times confused” during her cross-examination regarding the calls in question and her subsequent statement to the police. However, he found that she “satisfactorily explained this confusion”, without elaboration (at p. 7). He otherwise found the complainant to be “firm”, “frank”, and “compelling” in her testimony. He accepted her identification of Gemelus and her testimony of what the appellant said to her as being both credible and reliable.

[27] Comparatively, while Zabel J. acknowledged that there was an extensive cross-examination of Ms. O, he did not provide a summary of the defence evidence. I observe that the Supreme Court held in Morrissey, at p. 525, “[r]easons for judgment should offer assurance to the parties that their respective positions were understood and considered in arriving at his or her conclusion.”

[28] At trial, defence counsel confronted the witness with over 100 unreturned electronic messages she sent to Gemelus disparaging his character and wishing ill will upon him. Defence counsel confronted Ms. O with the fact that her numerous previous allegations against Gemelus had resulted in no convictions. Defence counsel also confronted the witness with her alleged animus towards, not only Mr. Gemelus, but also defence counsel. This evidence is not mentioned, let alone addressed, in the trial judge’s reasons.

[29] I agree with the appellant that the trial judge drew an inference or made a finding of fact essential to the verdict that appears to be relied on by him in support of his findings or is shown to be incompatible with the defence case. Having asked the appropriate question, I am persuaded that in the ultimate analysis, and considering the reasons as a whole, the learned trial judge failed to address the second and third prongs of the W.(D.) test as it applied to the requisite intent and reasonable doubt. The trial judge accepted the evidence of the complainant and found her to be a credible witness. However, the trial judge does not undertake an analysis to address his findings of credibility regarding Ms. O on the specific issue of alleged animus, the emails and/or discussions held with the appellant.

[30] It was incumbent on the trial judge to address the second and third prongs of W.(D.) and why he was not left with a reasonable doubt on the main issue advanced by the defence.

B) Sufficiency of Reasons:

[31] A functional approach governs appellate review of the sufficiency of reasons. The relevant inquiry is “whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10. “An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review”: Dinardo, at para. 25. A failure “to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 18; R. v. Slatter, 2019 ONCA 807 at para. 58. A judge need not review and resolve every inconsistency or respond to every argument advanced by counsel. A.M. at para. 14. However, an accused is entitled to know why the trial judge had no reasonable doubt about his or her guilt: Gagnon, at para. 21.

[32] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada elaborated on the general principles to be applied when considering the sufficiency of reasons: Sufficiency of reasons should be judged in their entire context by what the trial judge has stated in the context of the record, the issues, and the submissions of counsel at trial: at para. 37. At a minimum, it is required “that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the [trial] judge has seized the substance of the matter.”: at para. 43. In a case that turns on credibility, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt: at para. 50. However, this does not mean that the trial judge is required to enter into a detailed account of the conflicting evidence: at para. 50. An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge's perceptions of the facts: at para. 54. The trial judge is in the best position to determine matters of fact, and in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected: at para. 54.

[33] Thus, an appellate court, proceeding with deference, must ask itself whether the reasons, in their entire context, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached: at para. 55. If the answer to this question is affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. The trial judge should not be found to have erred in law because he or she has failed to reconcile every frailty in the evidence or allude to every relevant principle of law: at para. 56.

[34] Of course, a trial judge does not have to deal with every aspect of the evidence or express his views on each and every inconsistency in the testimony of a witness whose evidence he ultimately accepts.

[35] However, in my opinion, Zabel J. failed to address the material credibility and reliability issues highlighted by defence counsel in cross-examination and in submissions. The problem in this case is that there is nothing upon which to defer on the issue of motivation or animus. The trial judge made no findings. He may or may not have found this evidence to be inconsequential. The trial judge’s failure to explain why the defence evidence did not raise a reasonable doubt undermines appellate review. The trial judge's failure to address this evidence suggests that he may not have given sufficient consideration to the fundamental theory of the defence in this case.

Conclusion:

[36] With respect, the reasons of the learned trial judge as a whole are not fully considered and reasoned as to why the evidence did not leave him with a reasonable doubt. The brief analysis concludes but does not explain why the trial judge accepted the evidence of the complainant, despite live credibility issues. The reasons also do not address the defence’s theory, including animus or explain why it singularly or in tandem with other evidence did not raise a reasonable doubt. This in turn lead to an overriding or palpable error in regard to the application of the second and third prongs of W. (D.). While I do not wish to be overly critical, the combination of these errors was germane to the trial judge’s ultimate conclusion.

[37] The appeal is allowed, the convictions are set aside, and the matter is remitted back to the Ontario Court of Justice for a new trial.

A.J. Goodman, J. Released: February 12, 2020