R. v. Vizza, 2021 ONSC 3003

COURT FILE NO.: CR-19-62-00AP

DATE: 2021/04/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ADAM VIZZA

Appellant

Adam G. Zegouras, for the Crown

Mark C. Halfyard, for the Appellant

HEARD: February 19, 2021

REASONS FOR JUDGMENT

m. smith j

1Mr. Adam Vizza (the “Appellant”) appeals his conviction of a single count of assault causing bodily harm by Justice E. Deluzio of the Ontario Court of Justice in Belleville.

2The Appellant raises one single ground of appeal, namely that the trial judge materially misapprehended the evidence. It is submitted that the trial judge’s misapprehension of the evidence was material and it resulted in a miscarriage of justice. The Appellant seeks that the conviction be quashed and a new trial be ordered.

3For the reasons that follow, the summary conviction appeal is dismissed.

BACKGROUND

4On March 17, 2018, Mr. Taylor Lefort-Cummings (the “complainant”) and a group of friends attended a bar called Little Texas (the “bar”) in the city of Belleville.

5The Appellant was hired by the owner of the bar to provide security. He arrived at the bar around 9:30pm along with two of his staff, one of whom was Mr. Brent Hazelwood.

6It is undisputed that the complainant was drunk and unruly. During the evening, the complainant had been ejected from the bar on more than one occasion because of his behaviour.

7At approximately 2:20 a.m. on March 18, 2018, after being forcefully removed by Mr. Hazelwood, the complainant punched Mr. Hazelwood in the face. The complainant was immediately taken to the ground by Mr. Hazelwood. The Appellant came to assist Mr. Hazelwood.

8The Appellant instructed Mr. Hazelwood to return to his post at the door. The Appellant picked up the complainant and attempted to get him in an over and under hold. This manoeuvre called for holding the individual with one arm over the shoulder and the other under the arm. The Appellant’s evidence was that the complainant was resisting, and the Appellant was punched or elbowed a couple of times during this struggle and was hit in the chin. Contrarily, the complainant testified that he was not fighting at this point. The complainant was then dropped hard on the concrete floor and he was heard crying.

9The Appellant dragged the complainant down the walkway towards the parking lot, off the bar’s property.

10The entire incident, which lasted only a few seconds, was caught on a black and white video recording, taken from a downward angle over the doorway. This video was captured at three frames per second.

11The incident took place under the awning in front of the bar towards the right side of the walkway. The video depicts the walkway and metal posts that support the awning. The metal posts are located at the steel archways that cross over top of the walkway. Also, on the right-hand side of the walkway, and away from the metal posts, there are cement pillars that are connected by a metal fence.

12The complainant suffered a serious injury to the femur. It was fractured in five places and surgery was required to repair his leg.

13The evidence regarding how the complainant ended up on the concrete floor diverged between the witnesses. They are briefly described below:

a. The Appellant testified that upon being hit in the chin by the complainant, he was dazed, let go of the hold and dropped the complainant to the ground.

b. Mr. Hazelwood was observing the struggle and testified that the complainant used his feet to push off a metal post that dislodged him from the Appellant’s hold and he fell to the ground.

c. The complainant said that he was picked up by the Appellant and slammed onto the concrete. It was at that point that he heard a pop or a crack in his leg.

d. Two of the complainant’s friends (Rebecca Hill and Bailey Maracle) were in close proximity to the struggle. They both testified that they saw the Appellant raise the complainant above his shoulders and body slam him on the ground.

14In considering all of the evidence, the trial judge concluded that the Appellant body slammed the complainant to the ground, causing immediate and serious injury. The Appellant was found guilty of assault causing bodily harm.

POSITION OF THE PARTIES

The Appellant

15The Appellant takes the position that the trial judge materially misapprehended the evidence in relation to Mr. Hazelwood’s testimony. It is argued that his evidence explained how the Appellant’s hold of the complainant shifted, resulting in the complainant falling to the ground as opposed to the alleged body-slam. Mr. Hazelwood testified that he observed the complainant kick off the metal post, which led to the complainant’s fall. The Appellant did not deliberately throw the complainant.

16In her Reasons for Sentence, the trial judge did not refer to the metal post as described by Mr. Hazelwood but rather used the words “cement pillar and/or cement post”. It is submitted by the Appellant that the trial judge misunderstood Mr. Hazelwood’s testimony, believing that he was referring to concrete pillars as opposed to metal posts.

17The Appellant says that the confusion between metal posts and cement pillars was displayed by the trial judge during Mr. Hazelwood’s evidence, the submissions with counsel and in her judgment.

18The Appellant states that the trial judge’s misapprehension of the evidence is material to her reasoning process for the following four reasons:

a. In believing that Mr. Hazelwood was referring to the cement post while describing the incident, this makes Mr. Hazelwood’s narrative implausible because the complainant’s foot was no where near the cement post.

b. The trial judge relied on a contradiction between the evidence of the Appellant and Mr. Hazelwood regarding the swinging off the post. Had the trial judge understood the evidence to be that the complainant pushed himself off the metal post, it would explain the Appellant’s version that he did not see it because of his body position and proximity to the metal post.

c. If the complainant pushed himself off the metal post as opposed to the cement pillar, this would provide a plausible explanation or at the very least, raised a doubt that the Appellant spontaneously committed an act of violence and intentionally slammed the complainant to the ground.

d. The civilian witnesses who had all been drinking during the evening of the incident did not see the complainant push off the post. It may have appeared to them that the Appellant had body slammed the complainant, but it was the complainant’s own actions that caused the incident.

The Crown

19The Crown says that the trial judge was entitled to make her own conclusions about what happened on March 18, 2018 based on the testimonies and what she observed on the video recording.

20The trial judge found that the complainant did not push off of anything. Moreover, it is argued that when the trial judge measured the evidence of the witnesses against what was viewed on the video recording, she used the best evidence to help determine the credibility of the evidence given by the witnesses.

21The trial judge rejected the evidence of the Appellant and Mr. Hazelwood. It is submitted by the Crown that this rejection was not based on a misapprehension of the evidence. Rather the trial judge found that their evidence did not accord with the video evidence or with each other.

22It was found by the trial judge that the evidence of the witnesses (Ms. Hill, Ms. Maracle and the complainant) regarding the Appellant hoisting the complainant up in the air above his torso and body-slamming him, was corroborated by the video evidence.

ANALYSIS

23The only issue raised in this appeal is the specific alleged material misapprehension of the evidence by the trial judge regarding the complainant pushing off a “metal post” versus a “cement post”. It is argued that this misapprehension of the evidence led the trial judge to improperly conclude that the Appellant and Mr. Hazelwood’s version of the events were irreconcilable because she did not believe that the complainant pushed off a “cement” post.

24The legal principles for the misapprehension of evidence have recently been rearticulated in the Court of Appeal decision of R. v. W.M., 2020 ONCA 236 at paras 21 and 22:

21 A new trial is required when the appellant has met the "stringent standard" for determining whether a misapprehension of evidence resulted in a miscarriage of justice, as set out in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at p. 541, see also R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. Specifically, the misapprehension of evidence must go to substance rather than detail, it must be material rather than peripheral to the reasoning, and the errors must play an essential part not just in the narrative of the judgment, but in the reasoning process resulting in a conviction: Lohrer, at para. 2. If the appellant can show that the conviction was based on a misapprehension of evidence, the appellant is entitled to a new trial "even if the evidence, as actually adduced at trial, was capable of supporting a conviction": Morrissey, at p. 541.

22 The impact of a misapprehension of evidence is particularly marked in cases where the principle issue is credibility. In such cases, "it is essential that the findings be based on a correct version of the actual evidence", as "wrong findings on what the evidence is destroy the basis of findings of credibility": Morrissey, at p. 541, citing Whitehouse v. Reimer (1980), 1980 ABCA 214, 116 D.L.R. (3d) 594 (Alta. C.A.).

25The threshold for a misapprehension of evidence is high and the test is divided into two parts: the first is the materiality of the evidence and the second is whether it played an essential part in the trial judge’s reasoning.

26The Appellant argues that the trial judge’s misapprehension of Mr. Hazelwood’s evidence regarding how the complainant pushed off the metal post as opposed to a concrete post is material and goes to the substance of the evidence. It is submitted that a new trial is required because the misapprehension not only impacted the trial judge’s interpretation of the video recording, but it impacted her analysis as set out in R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742 (“W.D.”).

27The Appellant points out that in the trial judge’s reasons, she refers to “cement post and/or cement pillar” five times as opposed to a metal post, as described by Mr. Hazelwood in his testimony. The Appellant states that the trial judge’s confusion is significant. More specifically, the Appellant points to the location of the concrete post and metal post. It is argued that because of the distance between the complainant’s feet and the cement post, he would not have been able to kick off the cement post. Importantly, the Appellant says that it would have been possible for the complainant to push off the metal post.

28Conversely, the Crown argues that despite the Appellant’s framing of the appeal as a misapprehension of evidence case, it is really about the Appellant’s dissatisfaction with the trial judge’s finding of fact that the complainant did not push off a post. The Crown says that the standard of review involving matters of fact or mixed fact and law requires great deference from an appellant court. The trial judge must have committed a palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, at paras. 24 and 25.

29The trial judge’s factual and credibility findings are entitled to deference, unless of course that her findings are clearly wrong and unsupported by the evidence, namely that a palpable and overriding error has been committed.

30I have reviewed the testimony of all witnesses that testified in the trial (Transcript Volumes 1, 2 and 3) and counsels’ submissions (Transcript Volume 4). I have also viewed the video recording that was seen multiple times by the trial judge at trial and during submissions.

31Throughout the testimonies of the Appellant and Mr. Hazelwood, the description of the “post” that was allegedly used by the complainant to push himself off the Appellant during the struggle, was inconsistent. The following words were interchangeably being used: “metal posts”, “post”, “stanchions”, “metal pillar”, “poles”, “cement” and “cement posts”: pages 48, 61, 62, 64, 77, 78, 79, 83 and 90 of the Evidence of Mr. Hazelwood, Transcript Volume 2; pages 43, 80 and 81 of the Evidence of the Appellant, Transcript Volume 3.

32In my opinion, despite the different words being used by the witnesses, the trial judge’s interjections and remarks during Mr. Hazelwood’s testimony demonstrates a good comprehension of his evidence:

a. First, at the completion of his examination-in-chief, Mr. Hazelwood carefully described the post in detail while viewing the video. He distinguishes the metal stanchion (also referred to as the metal post) from the cement post (also referred to as the cement pillar) in the following manner (at page 48 of the Evidence of Mr. Hazelwood, Transcript Volume 2):

MR. MACMILLAN: Q. Mr. Hazelwood, in the course of this incident did you see how Mr. Lefort-Cummings came to fall to the ground on the second occasion?

A. Yes. He was, Mr. Vizza attempted to stand him up to walk him to the end of the canopy when he pushed off of one of the stanchions for the canopy and tried to push and knock Mr. Vizza to the ground. At that time he became, became dislodged from Mr. Vizza and he fell to the ground.

Q. And, when you say a stanchion, do you, can you see it in the picture that’s up there?

A. Yes. So, it was the second one. So, I you are on the far right you see the brink pillar, the middle pillar there from the stanchion that is there, and then you have the second brick and then there is the next metal pillar that is very close to the third brick pillar.

[Emphasis added]

b. Second, after having heard Mr. Hazelwood testifying approximately six times that the complainant pushed himself off the metal post or the post (at pages 48, 61, 62, 65 and 77 of the Evidence of Mr. Hazelwood, Transcript Volume 2), the trial judge comments that the complainant’s feet “are nowhere near the post” (at page 78 of the Evidence of Mr. Hazelwood, Transcript Volume 2) [Emphasis added].

c. Third and referring again to the posts, the trial judge asks Mr. Hazelwood this question during his cross-examination: “Well, can you see them pushing off the post or not” (at page 79 of the Evidence of Mr. Hazelwood, Transcript Volume 2). Mr. Hazelwood concedes that it’s not in the video. Shortly thereafter, the trial judge repeats the question: “He is asking you whether when you look at the video you can see his feet connect with a post, as you described?” (at page 79 of the Evidence of Mr. Hazelwood, Transcript Volume 2). Mr. Hazelwood reiterates that the video evidence does not show it [Emphasis added].

33Later during Mr. Hazelwood’s cross-examination, the trial judge seeks a clarification and asks: “are you maintaining he fell to the ground by pushing his feet off the cement after having watched that again?”, to which Mr. Hazelwood responds that he does (at page 83 of the Evidence of Mr. Hazelwood, Transcript Volume 2) [Emphasis added]. I acknowledge the trial judge’s use to the word “cement”, but as noted above, various words were being utilized to describe the post.

34The exchange with counsel for the Appellant during final submissions further persuades me that the trial judge understood the Appellant and Mr. Hazelwood’s evidence. It demonstrates, in my opinion, that the trial judge was aware of the distinction between the metal posts and the cement post.

35While viewing the video (stopped at the time stamp 2:23:16), counsel for the Appellant describes to the trial judge the area of the incident: the complainant’s location, the walkway, the metal posts and concrete pillars (pages 38 and 39 of the Transcript Volume 4):

MR. MACMILLAN: Okay. That’s the first steel archway. That, those are the two posts. Then there’s another one further up right by the third concrete pillar, or third brick pillar. And Mr. Lefort-Cummings is now close enough to the edge of walkway that his head is actually, or some part of him, his head, his hand, is actually overlapping with the position of that post. Mr. Vizza’s foot is right on the edge of the walkway, his right foot. And they’re not in the middle. They’ve over by the edge. You can see Mr. Vizza’s “Security: across the back of his jacket. You can see his right foot just by the edge of the walkway where the concrete…

THE COURT: I see…

MR. MACMILLAN: …side is.

THE COURT: …it several feet from…

MR. MACMILLAN: Yes.

THE COURT: …the edge of the walkway.

[Emphasis added]

36Counsel for the Appellant continues with his description of the area and explicitly references the metal posts that are located on both sides of the walkway, as seen on the video. Although the trial judge disagrees as to what the video depicts, in my opinion, her response demonstrates her understanding of counsel’s submissions regarding the location of the metal posts in relation to the Appellant’s feet (page 40 of the Transcript Volume 4):

MR. MACMILLAN: …position indicator. What I’m saying, Your Honour, is this is the first steel archway. You can see a second one here. There is one post here. There is one post here. If I back it up one frame or two, it may be more obvious. Here we are at 2:23:15, and you can see that there is a post right here behind Mr. Vizza’s posterior. And there’s the matching post on the other side right here. And then if I advance it, hello? Hello? There we go. You will see at 2:23:16, Mr. Vizza’s right foot is right on the edge of the walkway by the…

THE COURT: You’re saying…

MR. MACMILLAN: …cement pad.

THE COURT: …right on the edge. It’s several feet. I can, I am seeing it. It’s not right on the edge. It’s several…

MR. MACMILLAN: Well…

THE COURT: …feet from there.

MR. MACMILLAN: By the edge of the walkway, I mean this…

THE COURT: You’re talking about that line in…

MR. MACMILLAN: Yes.

THE COURT: …the concrete?

[Emphasis added]

37A further exchange ensues as between the trial judge and counsel for the Appellant. Again, while reviewing the video, counsel points to the metal (or steel) posts are located “a few inches” from the interlocking brick. The trial judge accurately describes the location of the complainant and the Appellant as being between the “cement posts” (page 41 of the Transcript Volume 4):

MR. MACMILLAN: This line. What, there appears to be interlocking brick here and concrete on the side. And the post appears to be a few inches into the concrete from the interlocking brick. And I’d submit that this one is in line with it, and they are very nearly in line with that second archway.

THE COURT: I don’t, I don’t think that’s what the video shows. It shows them between those two cement posts in the middle.

MR. MACMILLAN: And if I advance it to here, you can, this is 2:23:17, you can see Mr. Vizza bent over at the waist. You can still see the white “Security” on the back of his jacket. And there right below Mr. Vizza’s jacket is the foot of that post.

If I advance it to, again, 2:23:17, you can see the footing of the, the foot of that steel post. And at this point it becomes difficult. There is someone standing in the way. You can see the white “Security” of Mr. Vizza’s, on the back of Mr. Vizza’s jacket just through the bars of that first steel arch. You can, I don’t think you can see Mr. Lefort-Cummings at all.

THE COURT: No, I can’t.

[Emphasis added]

38The trial judge’s comments and/or questions during the testimony of Mr. Hazelwood and the submissions of counsel for the Appellant convinces me that she was aware of the differences between the “metal post” and the “cement post”. Furthermore, I find that these exchanges demonstrate the trial judge’s true understanding of Mr. Hazelwood’s evidence that the complainant pushed off the “metal posts” but she chose to reject his evidence.

39It is worth mentioning at this juncture that no evidence was led at trial regarding the distance between the complainant’s feet and the metal post or the cement post. I find it difficult to accept the Appellant’s submission that the complainant could have kicked off the metal post when there is insufficient evidence to establish that the metal post was closer to the complainant’s feet as opposed to the cement pillar.

40The Appellant is accurate to state that in the trial judge’s decision, she referred to the words “cement pillar and/or “cement post” a total of five times. The trial judge used these words as follows:

a. He said he saw Mr. Lefort-Cummings use his legs to push up against a cement pillar: at page 8 of the Reasons for Sentence;

b. He said it was this movement initiated by Mr. Lefort-Cummings, who was trying to push off the cement post, that caused Mr. Lefort-Cummings to become, in his word, dislodged from Mr. Vizza and fall to the ground: at page 8 of the Reasons for Sentence;

c. Under cross-examination Mr. Hazelwood watched the video and at first was unwilling to even concede that Mr. Lefort-Cummings’ feet were off the ground at any point during his interaction with Mr. Vizza, even though according to his own description of what occurred, Mr. Lefort-Cummings’ feet would have had to have been off the ground for him to have pushed his feet against a cement post causing his own fall: page 8 of the Reasons for Sentence;

d. Mr. Vizza contradicted Mr. Hazelwood’s evidence about seeing Mr. Lefort-Cummings raise his legs and push off against a cement post: at page 11 of the Reasons for Sentence;

e. The video does not show Mr. Lefort-Cummings pushing off against a cement post with his feet, nor does it show Mr. Lefort-Cummings simply being dropped by Mr. Vizza: at page 13 of the Reasons for Sentence.

[Emphasis added]

41While it would have been preferable for the trial judge to not utilize the words “cement pillar and/or cement post” in her decision, I do not accept that her choice of words in the decision means that the trial judge was confused with the evidence. The Reasons for Sentence cannot be looked at in isolation. It is necessary to review and consider the totality of the trial judge’s interjections and comments throughout the trial. In doing so, I am satisfied that the trial judge comprehended the evidence and understood the theory being advanced at trial by the Appellant as to the complainant pushing off the metal post. The trial judge clearly found that the video footage did not corroborate this aspect of Mr. Hazelwood’s evidence.

42I cannot qualify the trial judge’s use of the words “cement pillar and/or cement post” as a material error or inconsistency. It is worth reiterating that, in the trial judge’s own observation of the video footage, the alleged pushing off the post was not visible on the video. In addition, she found that the complainant’s feet were nowhere near a post. In the absence of evidence as to the distance between the feet and the post, I cannot accept the Appellant’s submission that the trial judge’s remarks could only make sense if it referred to a “cement pillar”.

43The trial judge was, in my view, alert to the substance of Mr. Hazelwood’s evidence and no error has occurred. In the event that I am wrong, and it is assumed that the trial judge materially misapprehended Mr. Hazelwood’s evidence, I nonetheless find that it was not an essential part in the trial judge’s train of reasoning, resulting in the Appellant’s conviction.

44Mr. Hazelwood’s evidence regarding the post was not the only evidence of importance for the trial judge. There were significant findings of fact and credibility that formed the basis of her decision.

45There are important fact findings that were made by the trial judge in relation to what was observed by the Crown witnesses, as corroborated on the video recording. She found that the video showed the following:

a. Ms. Hill and Ms. Maracle saw the incident as they were both a few feet away from the Appellant and the complainant: page 2 of the Reasons for Sentence;

b. The complainant punches Mr. Hazelwood in the face. Mr. Hazelwood immediately responds and takes him to the ground. The complainant is lying face-first on his stomach with his hands behind his back: page 3 of the Reasons for Sentence;

c. The Appellant arrives at the scene, takes physical control of the complainant and pulls him up from the ground and onto his feet. He then drags the complainant several feet down the middle of the canopied walkway: page 5 of the Reasons for Sentence;

d. The Appellant then picks up the complainant and raises his body over his head to the point where the complainant’s torso and legs can be seen raised above the Appellant’s head: page 5 of the Reasons for Sentence;

e. The complainant is then seen laying on his back on the pavement, with the Appellant hunched over him: page 5 of the Reasons for Sentence; and

f. The complainant appears to be grabbing the fence, but he is then dragged by the Appellant, down the walkway: page 5 of the Reasons for Sentence.

46The trial judge was entitled to make these findings of fact, which are not contradicted by the evidence. There are no palpable and overriding errors in these findings. As such, they are owed considerable deference.

47The trial judge also makes credibility findings and explains the reasons for rejecting the evidence of Mr. Hazelwood and the Appellant:

a. Ms. Hill was a credible and reliable witness. Her testimony was clear, accurate, detailed, straightforward and unembellished. She had not seen the video before her testimony and her evidence was entirely consistent with the video footage: at page 6 of the Reasons for Sentence;

b. Ms. Maracle observed the Appellant body-slamming the complainant. The complainant described the Appellant hoisting him above his torso and body-slamming him on the cement. These testimonies are consistent with the video footage: page 6 of the Reasons for Sentence;

c. Mr. Hazelwood’s evidence was unclear, inconsistent and at times vague. His evidence is not corroborated by the video: at page 13 of the Reasons for Sentence;

d. The Appellant’s evidence is at odds with what is seen on the video. The complainant is not seen on the video striking the Appellant or falling out of his arms: at page 13 of the Reasons for Sentence;

e. The evidence of Ms. Hill, Ms. Maracle and the complainant supports a reasonable inference that the complainant suffered a fractured femur as a result of his interaction with the Appellant: page 14 of the Reasons for Sentence;

f. There was no legal justification for the Appellant to pick up the complainant, hoist him over his head and slam him onto the ground. The complainant’s drunken and disorderly conduct was no longer a threat: at page 15 of the Reasons for Sentence; and

g. Despite being confronted with the video footage showing that the complainant’s torso and feet were in the air above the Appellant’s head, both Mr. Hazelwood and the Appellant were unwilling to accept this evidence: at pages 15-16 of the Reasons for Sentence.

48Taken as a whole, the trial judge’s assessment of the evidence and the guilty verdict is not unreasonable. The trial judge was entitled to arrive at her conclusions on the reliability and credibility of the witnesses, and it was not, in my view tainted or impacted by the Appellant’s alleged misapprehension of evidence regarding the post. The evidence proffered by the Appellant and Mr. Hazelwood was not consistent with the trial judge’s own observations of the events that were shown on the video. As a result of these inconsistencies, the trial judge properly rejected their evidence.

49Having reviewed the trial judge’s reasons, the transcripts and the video recording, I find it appropriate to accord deference to the trial judge’s appreciation of the evidence and her findings of fact and credibility. These findings are supported by the evidence.

50In regard to the W.D. analysis, I find that the trial judge was clearly alive to these principles. She reviewed and looked at all of the evidence when deciding whether to accept the Appellant’s evidence and if it raised a reasonable doubt. It is my opinion that she also considered whether the Crown’s evidence of the witnesses proved guilt beyond a reasonable doubt and if the exculpatory evidence of the Appellant and Mr. Hazelwood must be rejected. The trial judge concluded that the video evidence did not accord with the evidence given by the Appellant and Mr. Hazelwood but rather corroborated the evidence of the Crown witnesses.

CONCLUSION

51For the reasons given, the Appellant’s appeal must be dismissed.