COURT FILE NO.: 15304-20AP
DATE: 20210812
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KYLE JINKS
Appellant
Bryan Guertin, for the Crown
Jeffrey Fisher and Marianne Salih, for the Appellant
HEARD: July 23, 2021
JUSTICE VERNER
[1] The Appellant Kyle Jinks and his co-accused Kiet Nguyen both admittedly hit the complainant in the face, breaking his jaw, at a bush party. The only issue at trial with respect to the Appellant was whether he acted in self defence. Justice Frazer found that he was not defending himself and on November 1, 2019, convicted the Appellant of assault causing bodily harm. On January 6, 2020, he was sentenced to 60 days in custody followed by three years probation. He is now seeking to appeal conviction and sentence.
Background
[2] On June 8, 2018, the Appellant attended a bush party centered around a bonfire. At one point, the Appellant walked away from the fire with a friend to get a sweater from a car. On route, they passed by a two-door vehicle parked approximately 75 metres away from the fire. The car had three occupants; Ivan Pasatetchii in the driver’s seat, Ivy Martland in the passenger’s seat and the complainant Aria Ghabeli, in the back seat. The Appellant did not know any of the occupants. Ghabeli said something that got the Appellant’s attention. The Appellant responded with “screw you” and “fuck you”. He then put his head through the passenger door window to talk to Ghabeli. The exchange became heated and Ghabeli, who was a larger man than the Appellant, pushed (or slapped) the Appellant’s face.
[3] According to Ghabeli, after he pushed the Appellant’s face, the Appellant initially goaded him into getting out of the car, but when he did not comply, the Appellant walked away. It was not until later that he – Ghabeli - got out of the vehicle to go to the washroom. When he got out, he did not notice that the Appellant was standing nearby. The Appellant punched him in the face as he was getting out and knocked him to the ground. The Appellant punched him once more after he was down. Due to memory issues, he is unsure if he was punched more than once on the ground. He remembers that as he was standing up, Nguyen punched him in the jaw.
[4] According to the Appellant’s version, there was no gap in time between his face being slapped out of the vehicle window and the physical encounter outside the car. He said that after he got slapped in the face, Pasatetchii immediately got out of the driver’s seat and the complainant got out of the rear seat. Ghabeli then shoved the Appellant. At that point, Pasatetchii attempted to hold the complainant back to prevent him from attacking the Appellant. The Appellant turned to a friend, namely Brett Coombs, and asked him to go get a friend who was a boxer. When Pasatetchii was unsuccessful in holding the complainant back, the Appellant punched the complainant in the face knocking him to the ground. They then scuffled on the ground, he ended up on top of Ghabeli and punched him one more time. He could not say whether he was straddling Ghabeli at the time of the second punch. He then walked away and socialized with his friends.
[5] Martland testified for the Crown. Similar to the Appellant, she testified that there was no gap in time between the Appellant’s face being pushed out of the window and the subsequent physical encounter outside the car. And similar to the Appellant she testified that Pasatetchii got out of the car first to calm the situation down and that she prevented Ghabeli from getting out of the back seat because she feared he was going to escalate the situation. Ghabeli eventually got out of the car. Thereafter she saw the Appellant grab the complainant, knock him to the ground, straddle him and punch him numerous times in the face. She admitted that she may have missed parts of the encounter as she was distracted by her phone.
[6] Coombs testified for the defence. Much of his story was inconsistent with the Appellant’s, and he did not see the ultimate physical encounter. However, his testimony corroborated the Appellant’s evidence in that he too said that the complainant was aggressive as he approached the Appellant, such that the Appellant was fearful and asked him – Coombs - to go get back up support.
[7] The trial judge approached this case on the basis that the Appellant’s version of events supported a finding he acted in self defence. However, he ultimately rejected the Appellant’s testimony, and at the same time, found Martland was both reliable and credible. On the basis of those findings, he convicted the Appellant of assault causing bodily harm.
The Grounds of Appeal
[8] The Appellant raises the following grounds of appeal:
(1) The trial judge erroneously rejected the Appellant’s testimony on the basis he believed Martland and thereby violated the principles in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.);
(2) The trial judge erroneously applied uneven scrutiny;
(3) The trial judge erred in finding that Martland corroborated the complainant’s testimony;
(4) The trial judge erroneously found that the Appellant’s evidence was fabricated when there was no independent evidence of fabrication;
(5) The trial judge erred in rejecting the Appellant’s testimony in three ways:
(I) He relied on assumptions about human behaviour to find the Appellant’s story implausible;
(II) He rejected the Appellant’s testimony without considering Coombs’ evidence; and,
(III) He failed to consider how Martland’s testimony corroborated the Appellant in several aspects;
and,
(6) The trial judge erred in imposing a sentence of 60 days followed by 3 years probation.
[9] I dismiss the first four grounds of appeal. However, I find that the trial judge did, as alleged, err in his approach to the Appellant’s testimony and a new trial must be ordered on that basis. I therefore do not need to consider the sentence appeal.
(1) The trial judge did not violate the principles of W.(D.)
[10] The trial judge explicitly set out the test for R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and he provided cogent and thorough reasons for believing Martland. He emphasized that Martland “was the least interested in the outcome”. In fact, as highlighted by the trial judge she provided significant evidence that harmed the Crown’s case, as well as significant evidence that harmed the defence. This factor in itself went a long way to support Martland’s credibility. The trial judge went on to find that she was consistent and detailed in her evidence, which supported a finding that she was reliable. The trial judge was not surprisingly “impressed” with her evidence. It was open to him to reject the Appellant’s testimony solely on a finding that he believed Martland. (R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.)).
[11] However, he did not do so. Instead, in a separate analysis, he noted the reasons he found the Appellant’s testimony in itself implausible. I do not find that in the circumstances of this case, he erred in considering Martland’s testimony in ultimately finding that the Appellant’s evidence did not raise a reasonable doubt. He did not violate the principles from W.(D.) in this way.
(2) The trial judge did not apply uneven scrutiny
[12] With respect to the issue of uneven scrutiny, the trial judge found four aspects of the Appellant’s version of events defied common sense and did not acknowledge some of the implausible aspects of the Crown’s case. This aspect of his reasons may imply he applied uneven scrutiny, which I note has a difficult threshold to meet (Pham, 2013 ONCA 787). However, the reason the trial judge noted the implausible aspects of the Appellant’s testimony, was because the Crown relied on those aspects in their submissions and in their cross-examination of the Appellant. In contrast, the defence did not ask the trial judge to find the version put forward by Crown witnesses was implausible. The reasons were therefore responding to the positions of counsel and did not reflect uneven scrutiny.
(3) The trial judge did not find that Martland corroborated Ghabeli at large
[13] Moving to the third issue, the trial judge did not find as alleged, that Martland corroborated Ghabeli’s evidence at large. Instead, he found that Martland corroborated Ghabeli’s evidence “as to how these assaults occurred”, which involved an unprovoked attack by the Appellant, such that the Appellant knocked Ghabeli to the ground, and then straddled him and hit him. The trial judge was accurate in so finding.
[14] In the same passage within his reasons, the trial judge cautioned himself that Martland assisted Ghabeli in remembering what happened. He therefore appropriately recognized that there was some consistency between their evidence, but ultimately put little, if any weight, on that consistency due to the possibility of Martland tainting Ghabeli’s memory.
(4) The trial judge did not rely on a finding that the Appellant “fabricated” his testimony
[15] The Appellant argues that the trial judge erred in finding that the Appellant “fabricated” his testimony. In order for a trier of fact to rely on evidence being fabricated, there must be independent evidence of fabrication. Therefore, the trial judge in this case could only rely on the Appellant’s testimony as positive evidence of guilt, if there was independent evidence it was not true. The Appellant points to the first sentence in the following passage in the reasons as being problematic:
It is apparent Mr. Jinks has reconstructed events to his advantage to distance himself from responsibility. But given the Court’s difficulties with his evidence and given the clarity and weight that the Court ascribes to Ms. Martland’s evidence, Mr. Jinks’ evidence is rejected.
[16] When that first statement is read in the context of the paragraph, it is clear that even if the trial judge found the Appellant was fabricating, he did not rely upon his finding of fabrication as positive evidence of guilt. He did not use the Appellant’s testimony to support the conviction, he did no more than reject the Appellant’s testimony based on the “difficulties” he identified in earlier paragraphs. I dismiss this ground of appeal.
(5) The trial judge erred in his approach to the Appellant’s testimony
[17] Finally, the Appellant alleges that the trial judge erred in his approach to the Appellant’s testimony, and more specifically erroneously relied on assumptions about human behaviour to reject his evidence, and failed to consider how Coombs or Martland corroborated his testimony before rejecting it.
(I) Reliance on assumptions about human behaviour to reject the Appellant’s testimony
[18] The Appellant submits that the “difficulties” that the trial judge had with the Appellant’s credibility were erroneously founded on assumptions about human behaviour.
(i) The Appellant’s testimony
[19] According to the Appellant’s version of events, as he passed by a parked vehicle on the way to get a sweater from his car, he heard Ghabeli (a stranger) ask him for alcohol. He responded with “screw off”. There was a further exchange, in which he told Ghabeli to “fuck off” and directed him to “get the fuck out of here, you don’t belong”. Ghabeli aggressively responded with a warning “not to fuck with him” since he was from Scarborough. The Appellant did not suggest that he was scared or passive. If anything, he described himself as verbally aggressive as he approached the vehicle.
[20] The Appellant then put his head through the window-well by the passenger’s seat and continued to be verbally aggressive, which resulted in Ghabeli slapping his face. He stepped back and, as he did so, the driver Pastetchii and Ghabeli got out of the vehicle. In fact, Ghabeli got out “as fast as he could” and then shoved the Appellant. In that moment, Pastetchii “attempted” to hold Ghabeli back and, at the same time, the Appellant directed Coombs to go get their mutual friend, who was a boxer. The Appellant did not run at that moment, as he did not want to have his back to Ghabeli. When Pastetchii as unable to hold Ghabeli back, the Appellant could see he was about to be attacked and struck Ghabeli once, knocking him to the ground and hit him a second time after he was on the ground. The Appellant then got up and returned to the party 75 metres away, where he continued to socialize.
(ii) The Trial judge’s findings
[21] The trial judge provided the following reasons for finding that the Appellant was incredible:
(1) Approaching the vehicle after being threatened
Mr. Jinks described Mr. Ghabeli as a little aggressive saying, “I’m from Scarborough. Don’t fuck with me…”, “…or disrespect me”. Neither Ms. Martland or Mr. Ghabeli agree that those things were said. He testified that Mr. Ghabeli gestured for him to come to the car, and having done so put his head in a window. Given the language he attributes to Mr. Ghabeli, that action was not only foolish but defies common sense.
(2) Hanging around the vehicle after being assaulted
He testified that when struck by Mr. Ghabeli he backed away from the car and walked to the front passenger side headlight and stood there, a curious response, when there was nothing preventing him from carrying onto Mr. Coomb’s car where he had initially been headed or from retaliating, which the Court finds he actually did.
(3) Failure to retreat when the complainant was attempting to attack him
He testified that Mr. Ghabeli kept coming at him. He testified he was afraid that if he walked away he would be attacked. Neither does that evidence make any sense when he has testified that the driver was now holding Mr. Ghabeli.
(4) Failure to leave the party after being attacked
He testified he remained at the party for another 45 minutes. He then left for home, a curious response given that he testified he had been attacked, and much of this portion of Mr. Jinks’ evidence is problematic….Having just assaulted Mr. Ghabeli, he fled, met up with Mr. Nguyen, and stood around for another 15 minutes just talking to friends. Having just been in an altercation with a man Mr. Jinks described as the aggressor, it makes no sense to simply remain and stand around at a party, talking with friends, rather than seeking help or a place of safety.
[22] These were the “difficulties” the trial judge had with the Appellant’s credibility. He also noted that a couple of aspects of the Appellant’s testimony were not put to Crown witnesses, and accordingly it was open to him not to rely on those areas of the Appellant’s testimony (Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L)). However, a failure by counsel to put certain aspects of the Appellant’s version of events to other witnesses could not amount to a reason to reject the Appellant’s testimony as incredible, only on the basis of being unreliable.
[23] To summarize, trial judge provided four “difficulties” with the Appellant’s credibility. They were based on the following premises:
(1) The Appellant would not have approached the vehicle after being threatened by an occupant, who was a stranger to him;
(2) The Appellant would not have hung around the vehicle after being assaulted by a stranger sitting in that vehicle, if he did not want to fight;
(3) The Appellant would have run away if he did not want to fight, when a stranger who was trying to attack him was being held back by a third party; and
(4) The Appellant would not have stayed and socialized at the party after being assaulted.
(iii) The Legal Principles
[24] In the recent case of R v. J.C., 2021 ONCA 131, Paccioco J.A. noted that it was an error to rely on “common-sense” assumptions about human behaviour. He said:
58 The first such rule is that judges must avoid speculative reasoning that invokes "common-sense" assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. Roth, 2020 BCCA 240, at para. 65; R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286, at paras. 19-27; R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289, at paras. 35-36. For clarity, I will call this "the rule against ungrounded common-sense assumptions".
59 To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence. Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn.
60 Nor is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence. If there was, after-the-fact conduct evidence about things such as flight or the destruction of evidence would not be allowed. Such evidence is relevant because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt. An absolute bar on using human experience of human behaviour to draw inferences would also mean that evidence that an accused drove a protesting sexual assault complainant to a secluded location could not be used as proof of his intention or her lack of consent. The inferences to be drawn from that evidence depend on common-sense conclusions about what a person acting in a particular manner is likely to be thinking.
61 Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about human behaviour to interpret evidence. It prohibits judges from using "common-sense" or human experience to introduce new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour.
62 It was therefore an error in R. v. J.L., 2018 ONCA 756, 143 O.R. (3d) 170, at paras. 46-47, for the trial judge to infer that a complainant would not have consented to sex outside on the dirt, gravel and wet grass where the sexual act occurred, in mid-December. This conclusion was not a permissible logical inference drawn from the evidence. It was, instead, an additional factor for consideration introduced impermissibly into the deliberation process based on an untethered generalization about human behaviour. Had there been evidence from the complainant that she was careful or concerned about her appearance, her clothing, or her physical comfort, the impugned inference would have been grounded in evidence and would have been permissible.
[25] Later in his judgment, Paccioco J.A. discussed what he labeled “the rule against stereotypical inferences”, in which he found (amongst other things) that it was improper to assume that a sexual assault complainant would “change their behaviour towards their assailant after being sexually assaulted”.
[26] In the subsequent case of R. v. Pastro, 2021 BCCA 149 Fitch J.A. added:
Where it is apparent from a review of the reasons as a whole that a credibility assessment is rooted in the evidence, and is the product of a case-specific determination about what the complainant and accused did or did not do, there will be no basis for appellate intervention, absent palpable and overriding error in fact: see R. v. Mann, 2020 BCCA 353 at paras. 72-76; R. v. Quartey, 2018 ABCA 12 at paras. 21, 34-35, aff'd 2018 SCC 59.
[27] Then in R. v. Greif, 2021 BCCA 187 MacKenzie J.A. summarized the key principles as follows:
… it is an error of law to draw an adverse inference about a witness's credibility based on stereotypes, generalizations, or assumptions about how individuals would behave in a particular circumstance that are not (a) grounded in the evidence, or (b) so uncontroversial that they could properly be the subject of judicial notice: Roth at paras. 64-65, 73, 132; R. v. J.C., 2021 ONCA 131 at paras. 58, 63; R. v. Pastro, 2021 BCCA 149 at paras. 40-48, 52.
[28] Thus, a trial judge may rely on behaviour to assess guilt if there is case-specific evidence to find that the behaviour was probative, or if the trial judge is able to take judicial notice as to how an individual would act in the circumstances. Otherwise, the trial judge may be violating the rule against ungrounded common-sense assumptions, and if the trial judge makes “a material factual conclusion based on such reasoning”, then the violation amounts to reversible error (J.C., supra at paras. 71-74).
(iv) Application to the case at bar
[29] The issue now before me is whether the trial judge violated the rule against ungrounded common-sense assumptions, or otherwise erred, when he found that the Appellant’s four actions, as listed above, were implausible.
(1) Approaching the vehicle after being threatened
[30] The first action the trial judge found was implausible was the Appellant’s decision to put his head through the car window after he had been threatened by one of the occupants. I agree with the trial judge that this act may have been “foolish”, but I cannot see how it could be rejected as implausible.
[31] There was nothing grounded in the evidence to suggest his reaction “defied common sense”. His evidence that he put his head through the window even after being threatened was, in fact, consistent with his evidence that he was being verbally aggressive at that point in saying “screw you”, “fuck you”, “get the fuck out of here, you don’t belong”. And there is nothing inconsistent with the Appellant being verbally aggressive while Ghabeli was still seated in the back seat of a two-door vehicle and then being defensive as soon as Ghabeli, who was larger than him, got out of the vehicle and became physical with him.
[32] Not only was the trial judge’s conclusion on human behaviour not grounded in the evidence, but it could not be supported by judicial notice. Although the Appellant’s reported reaction to being threatened would not be everyone’s reaction, there is no support for finding that his response “defied common sense”.
(2) Approaching the vehicle after being threatened
[33] The second issue the trial judge had with the Appellant’s testimony was with his evidence he did not run away as Ghabeli got out of the vehicle. The Appellant testified that after he was slapped in the face, Ghabeli got out of the car “as fast as he could”, and that during those, no more than 30 seconds, he did not move.
[34] The trial judge could have reasoned back from the evidence of the other witnesses that the reason the Appellant did not move was because he wanted to fight. In other words, there was a basis in the evidence to find that his reaction at that point was a “curious response”. However, the trial judge could not rely on that finding alone to conclude the Appellant was not credible, since it was quite possible that in those 30 seconds the Appellant wanted to keep his eyes on Ghabeli, that the Appellant froze in fear or that the Appellant did not move out of a fear he would be outrun. Thus, although I do not find that the trial judge erred in finding Appellant’s actions in those seconds were “curious”, the trial judge could not have relied on those findings to conclude the Appellant was not credible.
(3) Failure to retreat when the complainant was attempting to attack him
[35] The third issue the trial judge had with the Appellant’s testimony was that the Appellant did not run when Pastetchii was attempting or trying to hold Ghabeli back. The trial judge’s difficulty with this evidence was not grounded in the evidence, nor supported by judicial notice. Notably, the Appellant did not suggest that there was a period during which Pastetchii had control over an enraged Ghabeli. Instead, he said that Pastetchii “attempted” or “tried” to hold Ghabeli back. If anything, the evidence supported a finding that the Appellant would not have wanted to turn his back to Ghabeli. The trial judge therefore erred in finding that that portion of his testimony did not “make any sense”.
(4) Failure to leave the party after being attacked
[36] The fourth and final specific issue the trial judge had with the Appellant’s version of events related to the Appellant’s testimony that he socialized at the party, which was 75 metres away, after the encounter. I find that the trial judge’s problem was not founded in either the evidence or judicial notice. In fact, the trial judge’s problem was arguably premised on a stereotype as to how victims of an assault behave.
[37] The Appellant’s testimony was that he was momentarily scared as Ghabeli was approaching him, but that he managed to defend himself through a couple of punches. It was at best unclear on his evidence whether Ghabeli suffered any injury from the force that he asserted. He did not suggest that this incident was traumatic or significant for him. Even if he had so suggested, there was no evidence to support a finding that he was the type of person who – after being assaulted – would immediately leave a party.
(v) Conclusion that the trial judge erred in relying on assumptions about human behaviour
[38] The trial judge erred in coming to three of these four conclusions, which were the key “difficulties” the trial judge had with the Appellant’s credibility. In other words, the trial judge made “material factual conclusions” based on erroneous reasoning. The trial judge thereby erred.
(II) Failure to consider how Coomb’s testimony corroborated the Appellant’s
[39] I find that the trial judge further erred in rejecting the Appellant’s testimony before even considering the other defence evidence, namely Coomb’s testimony. The trial judge should have considered Coomb’s testimony together with the Appellant’s in assessing whether the defence raised a reasonable doubt. Instead, the trial judge concluded as follows:
…given the clarity and weight that the Court ascribes to Ms. Martland’s evidence, Mr. Jinks’ evidence is rejected.
The evidence of Mr. Coombs does not assist the defence. Mr. Coombs says he spoke with Ms. Martland at the car window, a proposition not put to Ms. Martland, as memory of any words spoken to or by whom is lacking, yet he testified he was present at the car window. He testified he was not present for what the Court has concluded was an attack on Mr. Ghabeli. It is to be remembered that Mr. Coombs and Mr. Jinks have been “great friends” for about 15 years. He too describes Mr. Ghabeli returning to confront Mr. Nguyen and being struck. Mr. Jinks’ evidence, having been found by the Court to be reconstructed, Mr. Coombs’ evidence goes no distance to bolster a description of events that the Court has rejected. [Emphasis added.]
[40] The passages I emphasized in this excerpt reveal that the trial judge concluded that the Appellant had not acted in self-defence before even considering Coombs’ testimony. He thereby erred in his approach to the evidence.
(III) Failure to consider how Martland’s testimony corroborated the Appellant’s
[41] Finally, I find that the trial judge erred in failing to acknowledge that Martland’s evidence was not completely inconsistent with that of the Appellant.
[42] The trial judge was thoroughly impressed with Martland’s testimony. In fact, it was based on his acceptance of Martland’s testimony – and not his acceptance of the testimony of Ghabeli – that he found the offence was proven beyond a reasonable doubt. However, in so doing, he did not even acknowledge that in several ways Martland’s testimony corroborated that of the Appellant.
[43] In particular, Martland’s evidence corroborated the Appellant’s evidence in that she testified:
• At one point, the Appellant directed the occupants of the vehicle to leave the area;
• The Appellant was verbally aggressive as he approached the vehicle;
• After the Appellant put his head through the window, Ghabeli hit him in the face;
• There was no time gap between that initial assault and Pastetchii getting out of the front seat and Ghabeli wanting to get out of the back;
• Pastetchii was trying to de-escalate the situation;
• Ghabeli was acting such that she feared he would escalate the situation; and,
• The Appellant hit Ghabeli once while standing up and then again after Ghabeli was on the ground.
[44] It is also significant that Martland admittedly missed some of the encounter as she was distracted by her phone. At the very least, the trial judge should have acknowledged the corroborative aspects of Martland’s testimony before finding that the Appellant’s testimony did not raise a reasonable doubt.
Conclusion
[45] I find that the trial judge made serious errors in his approach to the defence evidence. As a result of the cumulative impact of these errors, the appeal is allowed, the conviction is quashed and a new trial is ordered.
JUSTICE VERNER
Released: August 12, 2021
COURT FILE NO.: 15304-20AP
DATE: 20210812
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Kyle Jinks
REASONS FOR JUDGMENT
Justice C. J. Verner
Released: August 12, 2021