COURT FILE NO.: SCA (P) 130/20
DATE: 2021 03 22
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Paul Renwick, for the Respondent
Respondent
- and -
DARLINGTON EDOWEN
Wayne Cunningham, for the Appellant
Appellant
HEARD: January 29, 2021, by video conference
REASONS FOR JUDGMENT
[On appeal from the conviction by Justice J. Freeman dated August 28, 2019 at Brampton]
F. Dawson J.
[1] Darlington Edowen appeals from his conviction for simple assault upon his former common law spouse, Faith Daniels, contrary to s. 266 of the Criminal Code. The conviction was registered by Justice J. Freeman of the Ontario Court of Justice following a two-day trial.
[2] The alleged assault consisted of a kick to Ms. Daniels’ ankle which she testified the appellant administered as he tried to sweep her off her feet. The appellant testified and denied that he kicked Ms. Daniels. The only defence advanced at trial was that the act constituting the alleged assault never happened. The appellant, through his counsel at trial, alleged that both Ms. Daniels and their teenaged son Derrick, were untruthful in testifying that the appellant kicked the complainant.
[3] The trial judge found that the appellant lacked credibility and that nothing in his evidence raised a reasonable doubt as to his guilt. Her Honour accepted the testimony of the complainant concerning the alleged assault and relied on the testimony of the couple’s son, Derrick, whom she found to be “incredibly credible”. Derrick confirmed that his father kicked his mother. He also confirmed the evidence of Ms. Daniels and of a police officer that Ms. Daniels had an observable injury to her ankle.
The Grounds of Appeal
[4] The appellant submits that the trial judge erred by failing to consider that the kick, denied by the appellant, may have been administered in self-defence in the form of defence of property, as provided for in s. 35(1) of the Criminal Code. Although both self-defence and defence of property were advanced in the appellant’s written material, at the hearing of the appeal counsel for the appellant confined his submissions to defence of property. The appellant contends that there was an “air of reality” to that defence and submits that the trial judge erred in failing to consider it.
[5] The appellant further submits that the trial judge erred by misapprehending important aspects of the evidence and by applying uneven scrutiny to the evidence of the appellant and complainant.
[6] For the reasons that follow, I am unable to accept these submissions. I will deal with each of them in turn. I will first review the evidence to the extent necessary to provide the context for my decision.
The Evidence and Factual Background
[7] The appellant and complainant were in a common law relationship for 25 years and had three children together. They were separated at the time of the incident. However, the appellant would attend at the family home to see the children or to take them on outings. The appellant had a young child with a new partner and the complainant was against her children having contact with the appellant’s new partner or their new half-sister.
[8] The incident in question took place one evening when the appellant was returning the couple’s eight-year-old daughter home. The appellant testified that he had to use the washroom badly and upon arrival at the home he went directly to a main floor powder room to urinate. As the trial judge found, by some means the complainant learned that during the evening the appellant had taken their daughter to the home of his new partner because their daughter wanted to see her “baby sister”. This made the complainant very angry.
[9] Before the appellant entered the home, he had prepared his cell phone to make an audio and video recording. He said he did so because in the past the complainant had made false allegations against him. He activated that recording capability when the complainant burst through the powder room door and angrily accused him of taking their daughter to his new partner’s home in contravention of her wishes.
[10] Three video clips recorded on the appellant’s phone were presented in evidence at the trial. They show that the complainant was indeed angry and upset. She entered the powder room while the appellant was still urinating. However, as the trial judge noted, the recordings had somewhat limited value. Much of the dialogue on the recordings is in a foreign language for which no translation was provided. In addition, the video portion of the recording goes black on occasion leaving only the audio. The alleged assault occurred during a period when the video had gone black. The alleged assault is not captured on video.
[11] What is captured on the video and audio portions of the recording is a chaotic situation about which there was conflicting viva voce testimony at the trial. The appellant testified that the complainant was slapping at him and hitting him. The complainant denied that she was striking the appellant. That was confirmed by the couple’s son, Derrick, in his testimony. The complainant did say that she was swatting at the appellant’s cell phone because he was putting it in her face. She denied that she kicked the cell phone out of the appellant’s hand, as he testified, although she said that she would have thrown the appellant’s cell phone in the toilet if she had gotten a hold of it.
[12] Some comments made in English by both the appellant and the complainant were captured on the recording. Counsel on each side at trial referred to those comments to advance their submissions at the end of the trial. Trial counsel for the appellant (not Mr. Cunningham) used those comments to support his submission that the kick alleged by the complainant never occurred. Crown counsel at trial (not Mr. Renwick) referred to both the audio and video portions of the recording to submit that the appellant was putting his cell phone into the complainant’s face, which explained why she was swatting at it, and that the appellant’s words and demeanour as captured on the recording showed that he was deliberately egging the complainant on.
[13] As already mentioned, the couple’s son Derrick witnessed what occurred between his parents. During the incident he attempted to run interference between his parents. He testified that his mother was angry and that his father “kind of backed up” because his mother “kind of” got in his father’s face. However, he contradicted his father’s testimony that he (the appellant) was being struck by his mother. Derrick also confirmed that his father became annoyed and struck his mother in the ankle with a “sweeping kick”. In cross-examination he said he could not say whether the kick was intentional.
[14] The appellant testified that after the complainant entered the powder room all he could do was try to defend himself. However, he was steadfast in asserting that he did not touch or kick the complainant at any time. For example, in examination-in-chief he said, “There was no touching, there was no hitting. All I did was to defend myself.” (August 28, 2019, p. 13, l. 23-25.) He asserted repeatedly during his testimony that the sweeping kick described by the complainant and Derrick never happened. He testified that the complainant’s evidence about the kick was “made up” and that his son Derrick had been “manipulated” to give false testimony concerning the kick.
[15] The trial judge was faced with conflicting testimony about what occurred. She provided fulsome and careful reasons addressing the material conflicts in the evidence and making factual findings. At no time was the trial judge presented with a submission that if, contrary to the evidence of the appellant, the kick occurred, it was a justifiable application of force by the appellant based on self-defence or defence of property. A review of a transcript of the submissions made by counsel at the conclusion of the trial confirms that the defence argued that the kick never happened.
Did the Trial Judge Err in Failing to Consider Whether the Appellant was Acting in Defence of Property?
[16] It is well established that a trial judge must instruct a jury on all defences that arise on the facts whether they have been raised by the defence or not: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 51. A defence will arise on the facts where there is an air of reality to the defence. The test for an air of reality is “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit”: Cinous, at para. 49. Whether there is an air of reality to a defence is a question of law: Cinous, at para. 55. It is as much an error of law to put a defence to a jury for which there is no air of reality as it is to keep one from them for which there is: Cinous, at para. 55. The trial judge has a duty not to put defences which are speculative or unfounded in the sense that they have no air of reality on the record in question: Cinous, at para. 56.
[17] It is also settled that the air of reality test applies equally to a judge alone trial: R. v. Meadows, 2020 BCSC 1388, at para. 28; R. v. Wolff, 2019 SKCA 103, at para. 129; R. v. A.D.H., 2015 ONCA 690, at para. 9. Consequently, the principles outlined above apply to the trial under review here.
[18] “The air of reality test must be applied to each element of the defence at issue in a case, both subjective and objective”: Cinous, at para. 95; Wolff, at para. 132. The defence of property provided for in s. 35(1) of the Criminal Code, insofar as it applies in the circumstances of this case, stipulates that an accused is not guilty of an offence if: (1) they reasonably believe they are in peaceable possession of property; (2) they believe on reasonable grounds that another person is about to take, damage or destroy that property; (3) they commit the act which constitutes the offence “for the purpose of” preventing the other person from taking, damaging or destroying the property; and (4) the act committed is reasonable in the circumstances: see s. 35(1) of the Criminal Code, R.S.C. 1985, c. C-46 (as amended).
[19] The appellant submits that there was some evidence to support each of the elements of this defence. While I agree that is so for the first, second and fourth elements of the defence described above, I am of the view that, when the air of reality test is applied taking all of the evidence into account, there is no evidential foundation for the third element of the defence. I will elaborate.
[20] I turn first to the elements for which I conclude there is some evidence. It is apparent that there is some evidence that the appellant was in peaceable possession of a cell phone. He testified that it was his, that he brought it into the house and that he was using it to record events for his own protection.
[21] In terms of the second element, that he believed on reasonable grounds that the complainant was trying to take or damage the property, the appellant testified that the complainant was hitting him and swatting at his cell phone. While he denied touching the complainant, he did say that he was acting in self-defence, although he did not relate that to his cell phone. Nonetheless, on this record it would be open to a trier of fact to draw the inference that the appellant had formed a subjective belief that his cell phone was about to be taken or damaged.
[22] There is also an objective component to the second element of the defence. In my view there was an abundance of evidence before the trial judge which could support an inference that the appellant’s subjective belief that his cell phone was in peril was objectively reasonable. The audio and video recordings show that the complainant was angry. There was evidence of her swatting at the cell phone and she told the appellant that she would take his phone and drop it in the toilet. (August 27, p. 76, l. 27-30.)
[23] The fourth element requires some evidence capable of supporting an inference that the act of kicking the complainant was reasonable in the circumstances. As this is an entirely objective requirement, there can be no direct evidence and the focus is on whether the required inference might reasonably be drawn from the evidence as a whole: R. v. Paul, 2020 ONCA 259, at para. 29, citing Cinous, at para. 89. In my view, much of the evidence which could support an inference of the reasonableness of the appellant’s belief under the second element is also capable of supporting the inferences required to satisfy this element of the defence. The complainant was obviously angry. It could be inferred not only that she was after the appellant’s cell phone, but that she was also blocking the appellant’s path. It must be remembered that at this stage the question is not whether the appellant’s conduct was reasonable, but only whether there is some evidence upon which a trier of fact could conclude that it was.
[24] I turn now to the more problematic issue raised by the third element of the defence: can it be said that on a consideration of the evidence as a whole a reasonable trier of fact could conclude that the act which constitutes the offence was done “for the purpose” of preventing the complainant from taking or damaging the appellant’s cell phone?
[25] The respondent submits that the appellant’s own testimony is completely inconsistent with a conclusion that there is an air of reality to this element of the defence. Counsel for the appellant disagrees that the appellant’s testimony is determinative, submitting that a trier of fact would be free to disbelieve the appellant’s evidence and then sew together other parts of the record in a manner leading to the acquittal of the accused on the basis of the defence of property provisions of the Criminal Code.
[26] The resolution of this dispute requires a consideration of how the testimony of an accused figures into the application of the air of reality test. A canvass of the leading appellate authorities reveals that this has come up most frequently in the context of determining whether there is an air of reality to the defence of mistaken belief in communicated consent in sexual assault cases. For example, should the defence be left with the jury where the accused has testified that the complainant consented or that there was no sexual activity?
[27] An exposition of the relevant case law on this issue would be lengthy. However, a helpful and concise summary of this entire question can be found in the Alberta Court of Appeal’s judgment in R. v. Flaviano, 2013 ABCA 219, 309 C.C.C. (3d) 163; aff’d 2014 SCC 14, at paras. 46-47:
[46] …, we accept that the law does not currently require the accused’s testimony to establish an air of reality to the defence – that it may be found in the evidence of other witnesses. However, as the ultimate issue requires an assessment of whether the accused honestly held, or may have held, such a belief, it obviously may be negated by the testimony of the accused. For example, where an accused asserts he had no sexual contact of any kind with the complainant, it would be fantasy to speculate that he was lying on that point, but to then attribute to him a defence completely incompatible with his evidence, namely that he was the assailant but he may have been operating on a mistaken belief: see R. v. Pugh, [1994] A.J. No. 509 (CA) (QL), leave to appeal to SCC denied: [1994] 3 S.C.R. ix.
[47] The Supreme Court in R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, 109 D.L.R. (4th) 478 debated whether logic would allow mistaken belief to be considered in cases where the evidence conflicted diametrically as to whether the complainant did, in fact, consent. In other words, where the complainant said she communicated her lack of consent and the accused claims that she did express her consent: at 683 - 86 (per Cory J.), 652 (per McLachlin J., as she then was, in dissent), 654 - 56 (per Sopinka J.), and 609 - 10 (per L’Heureux-Dubé J.). On that issue, the court was divided; the predominant view, since accepted in R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836 at paras. 25-26, 34-35 and 59, 99 CCC (3d) 1, is that a trier of fact may accept portions of the complainant’s evidence, and portions of the accused’s evidence, and find a scenario that could give rise to the defence of mistaken belief. See also R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777 at paras 71-88, 116 C.C.C. (3d) 289; and Ewanchuk [1999 CanLII 711 (SCC), [1999] S.C.J. No.10] at paras. 41-52. But that task must still be guided by common sense and logic. One might wonder how a trier of fact could dismiss as completely false an accused’s assertion that there was express consent, and yet construct another, equally conclusive, defence premised on the accused having had an honest but mistaken belief. How that result could be achieved without resorting to speculation and conjecture is not immediately apparent.
[28] I observe that para. 46 of Flaviano, quoted above, was cited and relied upon by the Ontario Court of Appeal in A.D.H., at para. 15, where the same issue arose. I conclude that this is, therefore, the law in Ontario.
[29] Applying this approach here, I conclude that there is no air of reality to the third essential element of defence of property. While the evidence of the appellant is not determinative, it cannot be ignored. At trial the appellant testified that at no time did he kick the complainant. He was adamant. Although he said that he acted to defend himself he insisted that he never touched the complainant. It must be remembered that self-defence and defence of property are justifications for acts which would otherwise constitute an assault or a more serious crime: R. v. Khill, 2020 ONCA 151. Here, based on the appellant’s own testimony, there was no act which needed to be justified.
[30] More significantly, and in my view determinative of whether there was an air of reality to the third element of the defence, is that there is no evidence in the record capable of supporting the inference that the appellant was acting “for the purpose” of protecting himself or his property. The appellant testified in a manner incompatible with his having kicked the complainant “for the purpose” of protecting his property. The words “for the purpose” which appear in s. 35(1) of the Criminal Code denote a motive, a specific intent, that must accompany the act alleged to constitute the offence: Khill, at para. 54, and see generally R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 16.
[31] Here the appellant denies the act, leaving no possibility on this record of drawing an inference that when he kicked the complainant, he did so intentionally for the purpose of protecting his property. As in Flaviano and A.D.H., on the record in this case it is very difficult to see how the findings required to support the defence “could be achieved without resorting to speculation and conjecture”.
[32] Although not essential for my conclusion I also note the following. In Cinous the court stressed the obligation of courts not to consider defences for which there is no foundation. Both generally and while expressing that concern, the Supreme Court of Canada said in Cinous that the air of reality test is to be applied assuming that the evidence is true: see paras. 81-82, 84-87, 92, 98. In this case, if the accused’s evidence that he did not kick the complainant were to be believed, it is not possible that he could have kicked the complainant for the purpose of defending himself or his property.
[33] As to the appellant’s statement that everything was in self-defence, this is a bald assertion. In R. v Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, the Supreme Court of Canada extensively considered the relationship between an accused’s testimony and the application of the air of reality test, albeit in the context of a sexual assault case. L’Heureux-Dube J., in a portion of her judgment which the majority of the court agreed with, held at para. 35, that “an air of reality cannot spring from what amounts to be a bare, unsupported assertion by the accused”.
[34] While in the present case there are surrounding circumstances capable of supporting the inferences required by the first, second and fourth elements of defence of property, those circumstances tell us nothing about the subjective purpose of the appellant when he kicked the complainant, an act which he denied. This is akin to what was said in Park at para. 59: “In effect, the accused denied that any intercourse occurred but alternatively argues that if it did occur, he thought there was consent. Under these circumstances it makes no sense to apply the air of reality defence to such an inconsistent position.”
[35] I am not persuaded that the trial judge erred in failing to consider whether the appellant was acting in self-defence or defence of his property. This ground of appeal fails.
Should the Appeal be Allowed on the Basis that the Trial Judge Misapprehended Material Evidence?
[36] A misapprehension of evidence may arise from a failure to consider relevant evidence, a mistake about the substance of evidence or a failure to give proper effect to evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at pp. 217-218. A misapprehension of evidence will be the basis for allowing an appeal when it goes to “substance rather than detail” and is “material rather than peripheral to the reasoning of the trial judge”. In addition, the error must “play an essential part” in the reasoning process of the trial judge which led to the conviction: R. v. Lohrer, [2004] 3 S.C.R. 732, 2004 SCC 80, at para. 2. Once this is demonstrated an appellant need not show that the verdict cannot otherwise be supported by the evidence: Lohrer, at para. 1.
[37] The appellant’s submissions focus on the trial judge’s references to parts of the first and third video clips of the incident which she referred to in her reasons for judgment. The references to the first video clip relate to the timing of the alleged kick, whether it occurred, and to the trial judge’s assessment of the appellant’s credibility. The reference to the third video clip relates to the trial judge’s conclusion that the appellant did not leave the complainant’s home when he had an opportunity to do so after the kick, which contributed to the trial judge’s conclusion that the appellant was untruthful when he testified that he was not aggressive and wanted to deescalate the situation.
[38] The appellant’s submissions with respect to the first video clip relate to the trial judge’s findings about when the kick occurred in relation to words to the effect of, “If you touch me, I’ll call the police”, which were spoken by the complainant after the first video clip went black at the 40 second mark. The first video clip is one minute and 26 seconds in length and it remains black from the 40 second mark to the end of the clip. However, the audio recording can still be heard.
[39] The complainant testified that she was kicked by the appellant after the screen went black. However, some seconds after the screen goes black the complainant can be heard saying, “If you touch me, I’ll call the police”, or words to that effect. In cross-examination, and in closing submissions, it was suggested that the saying of those words was inconsistent with the complainant’s testimony that she was kicked after the screen went black. This was an important issue for the trial judge to deal with.
[40] In her reasons the trial judge referred to the defence submission I have just described. She then said the following in her oral reasons:
But I listened to the video three times after the screen goes black and after – that is never said again by Ms. Daniels. So, although Mr. Edowen testified sometimes that that is what was said, unless it was in a language that I cannot understand and certainly never in the English language after the time the Crown identifies as the kick occurring did she ever say again “If you touch me, I’ll call the police” or any words to that effect.
[41] Counsel for the appellant submits that the trial judge is clearly incorrect when she says that the words “If you touch me, I’ll call the police” were never spoken after the first video went black. He wonders how the trial judge could reach such a conclusion after watching and listening to the video three times. The respondent agrees that the phrase beginning “if you touch me” can clearly be heard being spoken by the complainant at the 45 second mark of the first video clip. This is five seconds after the screen goes black. I have also watched and listened to the recording and I agree.
[42] The respondent points out, however, and I agree, that at the 47 second point of the recording the complainant is heard making a loud noise, which the respondent submits is consistent with the complainant being kicked. To me it sounds like the complainant may be saying: “ow!”. Of greater significance is that the trial judge found as a fact that it was at that point that the complainant was kicked. The trial judge based her conclusion in large measure on the exclamatory noise made by the complainant. I observe that after that point in the video the complainant is never again heard to say, “If you touch me…”.
[43] Counsel for the respondent submits that while the complainant testified that she was kicked after the video went black, she at no time said exactly when that was. I agree. The audio and video recordings reflect the unfolding of a chaotic set of circumstances. The loud exclamation by the complainant during the first video clip is heard just seven seconds after the screen goes black. I am of the view that the trial judge’s finding of fact as to when the complainant was kicked was open to her, is entirely reasonable and is supported by the evidence.
[44] I return now to the portion of the trial judge’s reasons, quoted above, which the appellant relies upon in connection with his submission that the trial judge misapprehended the evidence. I am not satisfied that, when the trial judge’s reasons (or even the quoted paragraph) are read as a whole, this quotation reflects that the trial judge was proceeding on the mistaken basis that the words “if you touch me” were never spoken after the screen went black. These were oral reasons. I observe that the passage quoted has an incomplete phrase in the first sentence, denoted in the transcript by the court reporter inserting a dash. It seems to me that in that sentence the trial judge does not complete her thought. Later in the quoted passage the trial judge refers to the words “if you touch me” not being heard again after the point which the Crown identifies as the point where the complainant is being struck. Furthermore, just two paragraphs later the trial judge articulates that she has found that the kick coincided with the complainant’s exclamation, consistent with her experiencing pain. As I have said, the words “if you touch me” are not heard again after that point.
[45] Given that the trial judge had no doubt determined when the kick occurred before she commenced giving her oral reasons, it is difficult to see the quoted passage, with its incomplete phraseology and something seemingly missing from the trial judge’s thoughts at the critical point indicated by the dash, as demonstrating that she truly misapprehended the evidence as submitted. This is particularly so given that the phrase beginning “if you touch me” can be very clearly heard at the 45 second mark, five seconds after the screen went black. When the trial judge’s reasons are read as a whole, it seems to me that the trial judge meant to convey that she listened to the recording three times and that the words were never said again after the point where the kick occurred. She may have hesitated at that point in her oral reasons realizing that she had not yet explained her finding about when that was.
[46] Alternatively, as already mentioned, after the point where the trial judge concluded the complainant was kicked, the words “if you touch me” are never heard again. Even if the trial judge did misapprehend the evidence as submitted, given the trial judge’s finding as to when the kick occurred, such a misapprehension could not have played an essential role in the process of the trial judge’s reasoning which led to the conviction.
[47] The appellant further submits that the complainant never said that she was kicked at the point when she made the loud noise, although she had the opportunity to do so. The appellant submits that this amounts to an inconsistency and that the trial judge erred in treating the noise as confirmation “without grappling with the inconsistency in her evidence”. I disagree that this was an inconsistency. The complainant said that the kick occurred after the screen went black. Beyond saying that it was after she tried to get the appellant’s phone out of her face, she did not say precisely when it was after the screen went black that she was kicked. She was not asked by anyone about the kick in relation to the noise. However, the noise was part of the evidence for the trial judge to consider and the noise does sound like one of surprise, consistent with experiencing pain. The situation reflected on the recording was fluid and chaotic and the noise is consistent with the complainant being struck at that point.
[48] The appellant also submits that the trial judge misapprehended the evidence in the third video clip in a manner which “played a crucial role” in the trial judge’s rejection of the appellant’s evidence. The appellant submits that the trial judge concluded that he was untruthful because, as she said in her reasons: “[I]n clip 3, we did see Ms. Daniels at one point walking down the hallway, yet again Mr. Edowen does not leave.” (Reasons, August 28, 2019, p. 112, l. 4-6) This was said by the trial judge in reference to assessing the appellant’s testimony that he was not being aggressive and was trying to deescalate the situation.
[49] The appellant submits that the third video clip shows that when the complainant was walking down the hallway she remained between the appellant and the front door, making it “unclear, on the evidence presented how he was supposed to leave without pushing past the complainant”. He submits that the trial judge misapprehended the evidence by failing to take this aspect of the evidence into account.
[50] The first thing I would point out is that there were many reasons given by the trial judge for rejecting the appellant’s evidence. This was but one reason for rejecting his assertion that he was trying to deescalate. The trial judge also pointed out that the appellant had his phone in the complainant’s face and that he was egging her on. It is difficult to see how the alleged misapprehension, even if it were established, could meet the test described in Morrissey and Lohrer.
[51] Quite apart from that, however, having watched the video clip I conclude that the alleged misapprehension is not clearly established. The phone is moving as the recording is made. Those present are moving. What is depicted is not always entirely clear. While at points the complainant is between the appellant and the door it is not clear that she is always obstructing the appellant’s way out. Having viewed the video, I cannot conclude that the trial judge was mistaken in what she said, which is that “at one point” the appellant had the opportunity to leave as the complainant walked down the hallway.
[52] For these reasons I do not accept the appellant’s submissions that the appeal should be allowed on the basis that the trial judge misapprehended the evidence.
Did the Trial Judge Err by Applying Uneven Scrutiny to the Evidence of the Appellant and the Complainant?
[53] In R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39, 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, the Court of Appeal commented that some version of the “uneven scrutiny” argument is common in appeals from judge alone trials which turn, as this one did, on the trial judge’s credibility findings. The court noted that it is a difficult argument to make successfully because it is not enough to demonstrate that another judge might have reached a different credibility assessment. “To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record, that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant”: J.H., at para. 59.
[54] Several cases have emphasized that this is a difficult ground of appeal to succeed on due to the high degree of deference owed to credibility assessments made by a trial judge who has had the benefit of seeing and hearing the witnesses: R. v. Ukumu, 2021 ONCA 91, at para. 11; R. v. Kiss, 2018 ONCA 184, at para. 83; R. v. Radcliffe, 2017 ONCA 176, at paras. 20-26; R. v. George, 2016 ONCA 464. This argument is often viewed as a “veiled invitation to reassess the trial judge’s credibility determinations”: R. v. Aird, 2013 ONCA 447, at para. 39.
[55] As credibility assessments are factual findings, they are not subject to interference on appeal absent a demonstrated palpable and overriding error. As held in J.H., at para. 47, in the absence of such an error the submission should be treated as “an assertion that the verdict is unreasonable”.
[56] Counsel for the appellant attempts to meet the high standard for success on this ground of appeal by pointing to the paragraphs of the trial judge’s reasons where she explains why she does not find the appellant credible. For example, the trial judge found that the appellant “was both confrontational and avoidant when testifying.” (August 28, 2019 at p. 110.) Her Honour then referred to specific parts of the appellant’s testimony to support her conclusion. In those parts of his testimony the appellant was unresponsive to the questions asked or was argumentative or diversionary.
[57] Later the trial judge said of the complainant’s testimony, “Her evidence I found did unfold naturally in response to questioning.” (August 28, 2019 at p.113.) The appellant then points to parts of the transcript of the complainant’s evidence where she appears, at least from the printed words of the transcript, to have been unresponsive, avoidant or argumentative in response to some questions.
[58] The first thing I would observe is that it is impossible to assess from the printed transcript how the appellant and the complainant presented during these portions of their evidence. The trial judge had that benefit, but I do not.
[59] The second point I would make is that the assessment of the credibility of a witness is made by considering all the evidence in the case. In this case there was a considerable body of other evidence which supported the credibility of the complainant on the main point in controversy; whether the appellant kicked her. The couple’s son, Derrick, who had a good relationship with both of his parents and who did not give evidence entirely favourable to one side or the other, was steadfast in confirming that his father made a sweeping kick striking his mother in the ankle. The trial judge found Derrick to be credible and that finding is not challenged on appeal. Derrick also observed bruising on his mother’s ankle, as did a police officer whose evidence the trial judge also accepted. The officer testified that the swelling observed on the complainant’s ankle was increasing. The trial judge relied on that evidence to conclude that the injury to the complainant’s ankle was fresh.
[60] If this other cogent evidence relied upon by the trial judge to support her conclusion that the complainant was credible did not exist, the appellant’s carefully crafted submissions might have more force. However, when the trial judge’s reasons are read against the backdrop of the record, her credibility assessments appear to be reasonable and well supported by the evidence.
[61] I also observe that the trial judge’s oral reasons are thorough. They deal with and dispose of each of the arguments raised at trial. As stated by the Court of Appeal in Ukumu, at para. 12: “This is the opposite of uneven scrutiny.”
[62] For these reasons I am of the view that the appellant has failed to satisfy the significant standard required to succeed on this argument. This ground of appeal also fails.
Conclusion
[63] The appeal is dismissed.
F. Dawson J.
Released: March 22, 2021
COURT FILE NO.: SCA (P) 130/20
DATE: 2021 03 22
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
DARLINGTON EDOWEN
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: March 22, 2021