R. v. Landu, 2022 ONSC 171

minicounsel

COURT FILE NO.: CR-19-00001710-00AP DATE: 2022 01 14

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

R. Raeesi, for the Respondent

- and -

ROMAIN LANDU Appellant/Defendant

L. Ben-Eliezer, for the Appellant/Defendant

HEARD: October 20, 2021

REASONS FOR JUDGMENT

[On appeal from the Judgment of the Honourable Justice Paul F. Monahan of the Ontario Court of Justice in Brampton, Ontario dated April 24, 2019]

FRAGOMENI J.

1The Appellant, Romain Landu, appeals his conviction on one count of assault causing bodily harm, contrary to section 267 (b) of the Criminal Code of Canada, made by the Honourable Justice Paul F. Monahan of the Ontario Court of Justice, in Brampton, Ontario.

2The Appellant was convicted on April 24, 2019 and he was sentenced on July 19, 2019.

3In his Notice of Appeal, the Appellant sets out the following grounds of appeal:

i. The learned trial judge erred in his reasons by reversing the burden of proof;

ii. The learned trial judge erred in using two different standards of scrutiny in assessing the Appellant’s testimony and the complainant’s testimony;

iii. The learned trial judge erred in his analysis of the complainant’s credibility by failing to consider significant inconsistencies and failing to address the complainant’s reliability; and

iv. The learned trial judge erred in failing to appreciate certain evidence given at trial.

EVIDENCE AND FINDINGS MADE BY THE TRIAL JUDGE

4As set out in the trial judge’s reasons released on April 24, 2019, the Defendant, Romain Landu, was charged with assault causing bodily harm. He does not dispute that he punched the complainant, Ms. Shelby Riedeger, multiple times in the head. The Defendant asserted at trial that he was acting in self-defence to protect himself, his daughter and Ms. Riedeger from injury or death.

5It is important and informative to set out the facts and evidence as found by the learned trial judge as it provides the context and basis for the discussion that follows. Commencing at para. 6, the trial judge reviewed the facts that are not in dispute as follows:

Mr. Landu and Ms. Riedeger had been in an on and off again relationship for five years as of December 2017. They lived together in St. Catharines as of the December 23, 2017 events. As of December 23, 2017, they had one child together named “Kenzie”, a girl who was about 2 ½ years of age at that time. It is also common ground that Ms. Riedeger was about eight weeks pregnant with their second child as of December 23, 2017.
Ms. Riedeger and Mr. Landu were living separate and apart from about March 2017 to September 2017. They started seeing each other again from time to time in June 2017 and were back living together by September 2017.
On December 23, 2017, Mr. Landu took Kenzie to Toronto to visit his family including his mother and his brother and other relatives. Ms. Riedeger had to work so she came later that day. The winter weather was apparently poor that day and evening. When they were at Mr. Landu’s family’s home, Ms. Riedeger received a text or texts on her cell phone from someone that did not appear to have a “history” on her phone. Mr. Landu saw at least one text message but nothing much was said by him to Ms. Riedeger at that time.
Mr. Landu, Ms. Riedeger and Kenzie started to drive back home around 10 PM December 23, 2017. Ms. Riedeger was driving. She was the owner of the vehicle and Mr. Landu had a suspended licence at the time according to his testimony. They were apparently heading back to St. Catharines on a highway although Ms. Riedeger did not recall the name of it. The child was in the back seat watching YouTube on Ms. Riedeger’s phone. At some point when they were in the car, at least one further text message arrived on Ms. Riedeger’s phone apparently from the same person. This text message asked whether Ms. Riedeger still lived at a certain address in St. Catharines.

6Commencing at para. 11, the trial judge reviewed the facts that are in dispute as follows:

According to Ms. Riedeger, she says Mr. Landu saw the text message on her phone in the car and became upset and accused her of cheating. She said that she became upset. It is agreed that Ms. Riedeger pulled off the road on to Winston Churchill Boulevard, a major street in the City of Mississauga.
According to Ms. Riedeger, the argument escalated. She told him to get out the car and go back to his parents’ place by train and he refused. He grabbed her glasses off of her face. When she tried to grab them back, she said that Mr. Landu began to punch her in the head multiple times and to pull her hair. She said she managed to get out of the car and tried to flag down a passing motorist. She said that he also got out of the car and pulled her hair and got her down on the ground and kicked her. A passing motorist did stop and called 911. This was the second 911 call referred to above (introduced in cross-examination) where Ms. Riedeger can be heard speaking to the 911 operator. Prior to this 911 call, Mr. Landu got into Ms. Riedeger’s car and drove off with the child in the backseat leaving Ms. Riedeger by the side of the road. Ms. Riedeger was off work for a month due to her injuries. Photographs and medical records depict the extent of her injuries. Her right eye was swollen shut and her orbital bone broken. Her left eye was also injured as was her nose. Her lip was swollen and she needed a root canal as concerns the damages to a tooth or to teeth.
Mr. Landu’s evidence on how the injuries to Ms. Riedeger came about was different than the evidence of Ms. Riedeger. According to Mr. Landu, Ms. Riedeger suffers from anxiety and that on two separate occasions namely once in September 2017 and once in November 2017 she got upset while driving. In the September 2017 incident he said that she pulled over off the Highway unsafely (across a few lanes quickly) when the child was having a temper tantrum and she yelled at the child to be quiet. He said her tone was similar to how she was on the 911 call after he hit her and left her by the side of the road on December 23, 2017. According to Mr. Landu, the September incident caused him to say or to think “whoa…that is pretty serious”. He said that in the November 2017 incident she drove “50 miles an hour” in a parking lot and almost hit a pedestrian and that he was frightened by the experience. In addition, he said, in effect, that she had acted violently against him in the past by slapping him once in the face in 2014 and punching him twice in the head during a February 2017 incident.
Mr. Landu agrees that on December 23, 2017 he saw the text messages on Ms. Riedeger’s phone: one at his family’s home and the one in the car about her address as described above but he says that he was not the least bit upset or concerned by either or these text messages. According to Mr. Landu, Ms. Riedeger accused him of accusing her of cheating. He said she became very upset. He said she abruptly pulled across three lanes of traffic in an unsafe manner. (She denied driving in an unsafe manner). He said that they argued in the car by the side of the road on Winston Churchill Boulevard. She was upset but he was not according to him. He said she shoved him in the left shoulder and then grabbed his left earing. In order to protect himself, Mr. Landu said that he “horse collared” Ms. Riedeger meaning that he grabbed her by the back of the neck and pushed and held her away from him. He said she “revved” on the gas while the car was in park but still running. He said that she reached for or grabbed the gear shift apparently to try to put the car in gear which would have sent them into oncoming traffic he said. He said he had “flashbacks” to the September and November 2017 events of her bad/and unsafe driving on those occasions. He had to make a split-second decision. He said it was “lose lose” but he said he was acting to protect his daughter in the backseat. So he punched Ms. Riedeger with a closed fist three times in the head to “stun her”. He referred to each punch that he directed at her as a “haymaker”. He said that this was the kind of punch where the person striking the other person hits them with a closed fist but using the thumb side of the fist. He said that he then held her and climbed over the console in the middle of the front seat and took her out of the vehicle on the driver’s side. He said he left her by the side of the road. He got back in the car and locked the doors and drove away with the child in the backseat and he did not say where he was going. Ms. Riedeger banged on the window twice as he drove off.
Within about a minute after he drove off, Mr. Landu received a call from OnStar. It is common ground that OnStar is a type of emergency service provided by the manufacturer of the car. The OnStar operator put Mr. Landu in touch with a 911 operator. Ms. Riedeger had pressed the OnStar emergency button in the car during the interaction according to her testimony. Mr. Landu told multiple untrue statements to the 911 operator. He was arrested later that night at his parents’ home with the child.

7After reviewing the relevant case law relating to credibility, self-defence, and self-defence and W.D., the trial judge applied the law to the facts. It is this analysis that anchors the Appellant’s grounds of appeal.

8It is informative to set out portions of his analysis commencing at paras. 18 and 19 of his April 24, 2019 reasons,

18… In my view, there is no air of reality to the defence of self-defence in this case. …

19However, I do not rest my decision in this case on the view that there is no air of reality to the defence of self-defence. I prefer instead to approach this case on the assumption that the defence of self-defence is potentially available (i.e. that there is an air of reality to the defence) and then to ask the question as to whether or not the Crown has proven beyond a reasonable doubt that self-defence is not made out.

9The trial judge deals with the prior incidents commencing at paras. 21 and 23,

21… Even if I believed everything Mr. Landu said about the prior incidents and I don’t, they would provide very limited relevance to the determination of the facts concerning what happened on December 23, 2017. …

23… To be clear, Mr. Landu does not have to prove anything. Nevertheless, I make the general observation that I do not believe Ms. Riedeger to be a violent person nor do I believe that she is or was a reckless driver. … On the other hand, the evidence of her so-called bad driving comes from Mr. Landu who himself was not even licenced to drive at the time as his licence had been suspended for a number of years for some unstated reason.

10After reviewing the prior incidents, the trial judge deals with the December 23, 2017 events, commencing at para. 30:

30The central question in this case is whether the Crown has proved beyond a reasonable doubt that self-defence does not apply in this case. That turns on a determination of the facts concerning the December 23, 2017 incident. While a trial is not a credibility contest or a question of preferring one person’s evidence over the other, the Court must undertake a credibility assessment of the evidence of Mr. Landu and Ms. Riedeger in the context of the evidence as a whole. I make the following comments about the credibility of Mr. Landu considering his evidence in the context of the evidence as a whole and particularly his evidence concerning the December 23, 2017 events. I start with overall observation that I find most of what Mr. Landu had to say about the December 23, 2017 events in the car to be incredible and unworthy of belief. I don’t believe the essence of his story that he acted in self-defence nor am I left in a reasonable doubt about it. My reasons for these concussions are set out below. I will also address Ms. Riedeger’s credibility below.

11The trial judge’s conclusions are set out at paras. 46-48 as follows:

46For the foregoing reasons when I consider the evidence as a whole I don’t believe Mr. Landu nor am I left in a reasonable doubt when he says that he thought that Ms. Riedeger was about to drive the car into oncoming traffic on December 23 rd , 2017 and that he acted to protect his daughter, himself and Ms. Riedeger. I am satisfied that the Crown has established beyond a reasonable doubt that he was not acting in self-defence. In particular, the Crown has established beyond a reasonable doubt that Mr. Landu did not believe that force was being used or threatened against him or his daughter and he did not act to protect himself or his daughter from the alleged force. I also don’t believe that Ms. Riedeger assaulted him in any significant way beyond maybe be shoving his shoulder.

47Further, based on the evidence as a whole including the evidence of Ms. Riedeger, the photographs and the medical records, I am satisfied that the Crown has established beyond a reasonable doubt that the defendant assaulted Ms. Riedeger’s evidence substantially accords with what happened. Mr. Landu was jealous over the text messages she had received. She was upset with his jealousy and the circumstances generally and she told him to get out of the vehicle. He grabbed her glasses and when she tried to get them back, he beat her with multiple blows (more than three) to the head and injured her in the right eye, the left eye and her mouth as confirmed by the photographs and by her evidence. His blows broke or fractured her orbital bone. He also continued his assault outside of the car when he pulled her hair and kicked her in the hear area as she grabbed at his legs.

48Even if Mr. Landu’s story were true and I don’t believe it is for the reasons stated above, his actions in punching her multiple times in the head would have been a major overreaction. Even on his version of events, he could have just held her hands back from the gearshift. He was much bigger and stronger than she was. To be clear, I don’t believe Mr. Landu’s version of events for the reasons I have stated but even if they were true, it would not be reasonable to attack her as he did. Self-defence could not apply in this case in any event.

ISSUE #1: DID THE LEARNED TRIAL JUDGE ERR IN LAW BY SHIFTING THE BURDEN OF PROOF TO THE APPELLANT ON THE ISSUES OF SELF-DEFENCE?

POSITION OF THE APPELLANT

12The Appellant acknowledges that the trial judge properly set out that the Crown bears the onus, however, he then criticized the Appellant for failing to prove that Ms. Riedeger was a reckless driver and/or capable of physical violence as part of the self-defence analysis. The Appellant submits that this analytical framework constitutes reasonable error.

POSITION OF THE CROWN

13The Crown submits that the trial judge did not reverse the burden of proof. The trial judge did not fault the Appellant for failing to prove that the complainant was “a reckless driver and/or capable of physical violence.” The trial judge needed to grapple with the Appellant’s evidence about the complainant’s violent disposition. The Appellant repeatedly referred to the complainant’s demeanour to justify his “fear” when he punched the complainant multiple times in the face.

ANALYSIS AND CONCLUSION

14I agree with the position of the Crown on this issue. I am not satisfied that the trial judge reversed the burden of proof. He made it clear in his reasons that the Appellant bears no onus to prove anything. The trial judge reviewed the analytical framework of W.D. when reviewing the law with respect to credibility. He clearly states that there is no onus on the accused to prove anything and the burden of proof never shifts to the accused. He explained that the Court is not to treat the assessment of the evidence as a credibility contest by simply preferring the evidence of the Crown’s witness over the defence witnesses.

15The trial judge properly sets out that the Court is not prohibited from assessing the Appellant’s testimony in light of the evidence as a whole, including the complainant’s testimony.

16At para. 16 of his reasons he states that the Crown must disprove beyond a reasonable doubt that the Appellant acted in self-defence. The trial judge also made this point clear at paras. 46 and 47 of his reasons.

17The trial judge was entitled to make the findings of fact he did. In doing so he did not commit palpable and overriding error. The trial judge was well aware of his duties in assessing the evidence within the context of the W.D. analysis.

18The trial judge’s findings are entitled to deference.

19This ground of appeal fails.

ISSUE #2: DID THE LEARNED TRIAL JUDGE ERR IN LAW BY MISAPPREHENDING MATERIAL EVIDENCE?

POSITION OF THE APPELLANT

20The Appellant sets out the following factors on this issue:

The Appellant never suggested at trial that the complainant was a reckless or dangerous driver or generally violent;
The Appellant testified that the complainant’s anxiety had, on occasion, caused her to drive in an unsafe manner and caused her to assault him; and
The trial judge improperly based his findings on conclusions that the complainant was a nice person precluding any consideration of the Appellant’s evidence as to her driving or ability to assault him.

POSITION OF THE CROWN

21The Crown submits that when the Court considers this ground of appeal, any misapprehended evidence must be central to the trial judge’s reasoning.

22The reviewing Court must not substitute its own views of the evidence or intervene on the ground that the judge’s reasons ought to have been more fully or clearly expressed.

ANALYSIS AND CONCLUSION

23To set aside a conviction on the basis of misapprehension of the evidence, the misapprehension must:

Be of substance rather than detail;
Be material rather than peripheral to the judge’s reasoning; and
The alleged errors must play an essential part of the reasoning process.

See R v Lohrer, 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

24I agree with the Crown that it was necessary for the trial judge to deal with the Appellant’s testimony regarding the complainant’s reckless driving and violent tendencies. The Crown sets out references to the Appellant’s testimony in this regard at para. 46 of his factum:

Page #, March 13, 2019 transcript) Summary 58, 11. 10-25 The complainant had a “short fuse” which worsened after Kenzie was born. 59,11. 22-30 The complainant’s response to Kenzie’s tantrums was “very aggressive” 64, 11. 1-20 “After that I was kind of like okay, okay, you know, that something, something’s up here in terms of, in terms of like when she has those episodes and state of mind.” 66,11. 12-32 Her road rage was a major concern. 69,11. 5-20 Re 2014 incident: “Q. Okay. And can you describe her, sort of, her tone of voice, her body language, things like that in that situation? A: Yeah, it was, it was very aggressive and hostile.” 72,11. 1-32 Comparing her tone of voice – Feb 2017 to 911 91,11. 1-22 Pregnancy caused her to be more anxious, frustrated on a regular basis. She was “pretty aggressive”, “shouting and having breakdowns”. 104,11. 1-22 She was agitated by Kenzie crying, appellant comparing with 911 108,11. 20-32 She was in an “aggressive state of mind”, and again comparing with the complainant’s intensity during the 911 call 113,11. 7-13 Re December 2017 incident – “she had a lot of emotion all over the place” 115,11. 3-10 “Like she was still high pitch yelling”, and appellant again referred to the 911 call 130,11. 10-25 Agreement in cross-examination that the complainant would get aggressive. 132, 11. 1-5 Appellant described her as “high-strung and aggressive” 138,11. 17-32 “different ways of parenting, right. Some people want to sue aggression and, and I think, you know, when she is a little bit over aggressive when she is talking to her…” 159,11. 5-25 Before the complainant pulled over, she was the only one agitated between the two of them.

25It is not the role of the reviewing Court to substitute its own view of the evidence. The jurisprudence is clear that appellate intervention is available only where the trial judge commits a palpable and overriding error. Otherwise, deference is owed to the analysis and findings of the trial judge.

26I am not satisfied that the judge misapprehended the evidence. It was open to him to make the findings he did.

27This ground of appeal fails.

ISSUE #3: DID THE LEARNED TRIAL JUDGE ERR IN HIS ANALYSIS OF THE COMPLAINANT’S EVIDENCE BY FAILING TO CONSIDER SIGNIFICANT INCONSISTENCIES AND FAILING TO ADDRESS HER RELIABILITY?

POSITION OF THE APPELLANT

28This ground is succinctly set out at para. 54 of the Appellant’s factum, as follows:

That the learned trial judge erred in his analysis of Ms. Riedeger’s evidence by failing to mention, let alone consider, the fact that she had denied being kicked in the abdomen when she spoke to the ambulance attendant shortly after the incident. His conclusion that Ms. Riedeger was merely confused about that issue is contradicted by the fact that Ms. Riedeger continued to maintain that she had been kicked in the abdomen despite having denied such injuries to the ambulance attendant and made no mention of the same to the police or hospital personnel.

POSITION OF THE CROWN

29The Crown submits that the trial judge is not required to deal with every inconsistency in the evidence. Trial judges are required to explain how they resolve significant inconsistences. The Crown submits that in the case at bar, he accepted the complainant’s explanation regarding the inconsistency between her trial evidence and her police statement. At paras. 52 and 53 of the Crown’s factum, the Crown sets out the following:

The trial judge found (para. 38) that once outside the vehicle, the appellant kicked her in the head. It was open to him to make that finding. The appellant’s own evidence pointed to a struggle outside the vehicle when he “swiped” his left leg to free his leg from her grip, before he entered her vehicle and drove away [ sic ]. The trial judge carefully considered the complainant’s evidence at trial on this topic, assessed her emotional state and the surrounding factors to come to this conclusion.

Transcript, March 13,2019, p.100 11.10 – p.1011.15; p.1101.5 – p.1131.8

The trial judge’s finding that she was kicked in the head when resolving the inconsistency as to the kicking, or more accurately, lack of trauma to her abdomen makes sense: first, the appellant described a motion close to kicking her in the head; second, the complainant told the police, much closer to the event, that she was kicked in the head; and third, the complainant’s predicament while she was being treated for serious injuries was a proper factor for the trial judge to consider.

ANALYSIS AND CONCLUSION

30In his reasons, the trial judge set out the law on dealing with inconsistencies as follows:

(i) Inconsistencies on minor matters or matters of detail are to be expected. If there is an inconsistency on a material matter about which an honest witness is unlikely to be mistaken, it can demonstrate a carelessness with the truth: R. v. M.G., [1994] O.J. No. 2086 (C.A.) at para.27. The Court should consider the explanation for the inconsistency: R. v. M.(A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.) at para. 26.

31In R. v. L.O., 2015 ONCA 394, 324 CCC (3d) 562, the Court set out the following at para. 35:

35The trial judge correctly told the jury that prior inconsistencies were relevant to the reliability of L.F.’s testimony and to her credibility. She also told the jury, again correctly, that the significance of inconsistencies in the assessment of L.F.’s reliability and credibility could only be determined after an examination of the nature and extent of those inconsistencies. An isolated, minor inconsistency in a sea of otherwise consistent descriptions of the relevant events would have far less impact on L.F.’s credibility and reliability than would several material inconsistencies going to the heart of her allegations.

32The trial judge was entitled to accept the complainant’s explanation of her inconsistency, and it is not the role of the reviewing Court to substitute its views for that of the trial judge. It was open to the trial judge to make the assessment he did regarding the complainant’s reliability and what significance he attached to the inconsistency. In doing so he considered the total body of evidence called at trial, as he is obligated to do so.

33Again, short of committing a palpable and overriding error, a reviewing Court owes deference to the findings and assessment of the evidence.

34It is not the role of the reviewing Court to retry the case.

35This ground of appeal fails.

ISSUE #4: DID THE LEARNED TRIAL JUDGE ERR BY APPLYING DIFFERENT STANDARDS OF SCRUTINY TO ASSESS THE EVIDENCE CREDIBILITY AND RELIABILITY OF THE EVIDENCE OF THE COMPLAINANT AND THE APPELLANT?

POSITION OF THE APPELLANT

36The Appellant submits that the trial judge was forgiving of the complainant and harshly critical of the Appellant.

POSITION OF THE CROWN

37The Crown submits that the trial judge did not engage in an uneven scrutiny of the assessment of the evidence of the complainant and the Appellant.

38The Crown points to numerous examples of how the judge’s analysis of the Appellant’s credibility is reasonable at para. 59 of his factum:

The appellant tried hard to demonstrate just how “aggressive” the complainant was behind the wheel and in everyday life situations. He repeatedly referenced the 911 call. The trial judge found that during 911 call [ sic ] the complainant acted as “one might expect with the 911 operator but was understandable upset” [ sic ], at times screaming, and “panicked about the location of her child in particular.”: Reasons, paras. 32-33.
The appellant’s testimony was “illogical and inconsistent with the evidence as a whole”. The trial judge rejected the appellant’s evidence that he was calm and collected after observing the text message from the unknown person wanting to connect with the complainant. For instance, the text messages exchanged on August 3, 2017 between the parties showed the appellant repeatedly attempting to get the complainant “to admit she was involved with another man”: Reasons, para. 33.
The appellant’s account leading up to him punching the complainant made no sense. He said she shoved him and pulled his earring (not put to her in cross-examination); he then “horse collared” her; she revved the engine while in park; she was flailing around with her arms and legs even hitting her head against the wheel twice; and then she tried to put the car in gear, which would send the car into “oncoming traffic”: March 13, 2019 at p.100, 1.17. The appellant said he was acting to save all three of them from injury or death resulting from her putting the car into gear. The trial judge found that when assessed in the context of the evidence as a whole, it was improbably and incredible for the appellant to suggest any of them were in danger or that the complainant would launch the vehicle into traffic in the manner described and put her child, herself and the appellant at risk: Reasons, para.34.
The trial judge used the appellant’s post-offence conduct as part of the “ultimate weighing” of the evidence, finding that the only reasonable inference available was consistent with the conclusion of guilt: Reasons, para.41. He did not use his hasty flight from the scene to infer guilt but held that the appellant’s lies to the 911 operator were only consistent with guilt. The appellant’s explanation of why he lied was not believable: March 12, 2019, p.169 1.25 – p.1741.7 (cross). The post-offence conduct was not necessary to reach this conclusion, but it assisted in weighing the evidence: Reasons, paras. 39-54.

ANALYSIS AND CONCLUSION

39In R. v. Radcliffe, 2017 ONCA 176, 347 CCC (3d) 3, the Court states the following at paras. 23 to 25,

23First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

24Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.

25Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36. [Emphasized in original]

40In R. v. CAM, 2017 MBCA 70, 354 CCC (3d) 100, the Court noted the following at paras. 34-37,

34In order to succeed on a claim of uneven scrutiny, an appellant must meet the threshold of demonstrating “something sufficiently significant” (R v Phan, 2013 ONCA 787 at para 34) in the reasons or the record that establishes that the trial judge employed faulty methodology in deciding credibility. See also R v Radcliffe, 2017 ONCA 176 at para 25.

35The mere fact that a trial judge believes the evidence of a Crown witness over that of a witness for the defence does not establish or even suggest, by itself, that there has been an uneven scrutiny of the evidence (see R v Karas, 2006 CarswellOnt 3475 at para 9 (CA); and Radcliffe at para 28). Much more is required. An appellant’s burden to demonstrate the uneven scrutiny error is a heavy one, as Laskin JA explained in R v Aird, 2013 ONCA 447 (at para 39):

The “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations. Thus, as Doherty J.A. said in R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59: “[t]o 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.”

36In deciding whether the threshold has been met, an appellate court must take care to not overstep its role and retry the case. As the Ontario Court of Appeal explained in R v Chanmany, 2016 ONCA 576 (at para 27):

An appellant who advances an “uneven scrutiny” argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment: Howe, at para. 59.

ISSUE #5: DID THE LEARNED TRIAL JUDGE ERR IN CONCLUDING, WITHOUT EVIDENCE, THAT THE APPELLANT COULD NOT HAVE BEEN IN SHOCK GIVEN HIS CALM DEMEANOUR DURING THE 911 CALL?

POSITION OF THE APPELLANT

43The Appellant submits that the use of a common-sense approach to credibility assessment is dangerous and leads to stereotypical assumptions. The trial judge erred in rejecting the Appellant’s assertion that he was in a state of shock during the 911 call.

POSITION OF THE CROWN

44The Crown argues that triers of fact must use their common-sense when assessing evidence.

45The Crown submits that the trial judge rejected the Appellant’s explanation for the obvious untrue statements he made on the 911 call. The Appellant had no logical explanation other than to say he was upset and in a state of shock. The Crown submits further that the totality of the evidence establishes that the finding of the trial judge on this area of the evidence was not based on stereotypical thinking.

ANALYSIS AND CONCLUSION

46At paras. 42 and 43 of his reasons, the trial judge set out the following:

42I view the fact that Ms. Landu did not wait for the police and took an Uber to his parent’s place with the child to be capable of at least two reasonable interpretations. One is that he wanted to avoid the police because he knew he had broken the law. However, the other reasonable inference is that the child was upset as Mr. Landu said and he simply didn’t want to wait any longer for the police to get there. There is no evidence he phoned the police or the 911 operator to tell them that he was not going to remain there as the operator had told him to do. While I do view this conduct as highly suspicious I do not use it to infer guilt in this case because it is capable of competing reasonable interpretations.

43What is to be made of Mr. Landu’s other post offence conduct namely untrue statements to the 911 operator (i.e. that there were three people in the car; that his girlfriend was at Tim Horton’s and that the OnStar button had been pressed by accident as the child was “freaking out”). What was Mr. Landu’s explanation as to why he made these statements? Mr. Landu had no logical explanation at trial for these obvious untrue statements. He said that he was upset and was in no state to be driving and was in a state of shock. I reject all of these explanations. He was not in a state of shock. In fact, Mr. Landu sounds very clam on the 911 call. He also does not sound the least bit upset and there is no confusion evident in his conversation with the 911 operator. He has no trouble reciting his name, cell phone number, and the age of his daughter and identifying his location. He was clear that there were three people in the car (when there were only two) and that his girlfriend is at Tim Horton’s (hen he knew she was not).

47It was open to the trial judge to assess this evidence in the way that he did.

48He applied common sense to the factual matrix and within the context of the evidence as a whole. His findings and assessment were not grounded on stereotypical thinking and I cannot find that he engaged in stereotypical thinking. His findings and conclusions were based on the evidence and again, short of palpable and overriding error in that Court, deference is owed to the trial judge’s findings.

49This ground of appeal fails.

DISPOSITION

50In all of these circumstances, the appeal is hereby dismissed.

Fragomeni J.

Released: January 14, 2022