COURT FILE NO.: CR-20-10000055-00AP DATE: 20220422 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ENUMAH ODUBU

Counsel: Joanne Bruno, for the Crown Enumah Odubu, self-represented

HEARD: February 23, 2022

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

R. MAXWELL J.

[1] The appellant, Mr. Odubu, appeals from the conviction entered on February 28, 2020 by Justice R. Shandler of the Ontario Court of Justice.

Factual Background

[2] The appellant was charged with uttering a threat to cause death, assault with a weapon, and failing to comply with an undertaking, arising from an incident which occurred on January 8, 2019. The appellant was residing in a room at 2871A Dufferin Street. The complainant, John Morris, resided in another room at the same address.

[3] The trial took place over one day, February 27, 2020. At trial, there was no dispute that an incident occurred between the appellant and Mr. Morris on January 8, 2019. Mr. Morris testified at the trial that the appellant came to his room, threatened to kill him, and then attacked him by punching him, putting him in a headlock, and delivering strikes to his arms and face, leaving him with razor-thin cuts on his arms and face (Transcript of Proceedings, February 27, 2020, pgs. 10-13). The Crown also filed photographs of Mr. Morris’ injuries, taken by a police officer following the incident, as exhibits on the trial.

[4] The appellant, who was represented at the trial by counsel, testified on his own behalf. The appellant testified that on the evening in question, he found himself in front of Mr. Morris’ door after awaking feeling a “heavy presence”. The appellant had some ongoing concerns about Mr. Morris’ conduct in the unit related mainly to noise and he had a feeling that Mr. Morris was racist. He testified that he wished to speak with Mr. Morris and “bury the hatchet” between them. He denied threatening Mr. Morris and testified that Mr. Morris attacked him first using his cane to hit him in the forehead, causing him injuries. He testified that he used some force with his hands in response to Mr. Morris’ attack, in self-defence. He testified that the razor-thin cuts which can be seen in photographs of Mr. Morris’ arms and face were caused by his fingernails and he denied using any sort of weapon (Transcript of Proceedings, February 27, 2020, pgs. 28-33).

[5] The appellant’s criminal record was filed as an exhibit during cross-examination. No other exhibits were filed during the defence case.

[6] In his reasons for judgment delivered on February 28, 2020, the trial judge rejected the appellant’s evidence that he acted in self-defence. He found that the appellant was the aggressor in the incident and that his evidence did not raise a reasonable doubt that he acted in self-defence. The trial judge found that the appellant’s evidence suffered from reliability and credibility issues and was inconsistent and implausible. The trial judge accepted Mr. Morris’ evidence that the appellant initiated the physical confrontation and injured him with something sharp to cause razor thin cuts to Mr. Morris’ face and arms (Reasons for Judgment, February 28, 2020, pgs. 5-9). He found that Mr. Morris’ evidence about his injuries was consistent with the photos introduced as exhibits. He accepted Mr. Morris’ evidence that the appellant made threats to kill him. The trial judge concluded that the Crown had proven the appellant’s guilt on the counts of assault with a weapon and threatening death beyond a reasonable doubt (Reasons for Judgment, February 28, 2020, pgs. 9-11).

[7] There was no dispute that the appellant was subject to an undertaking at the time of the incident, which included a term that he not possess any weapons as defined by the Criminal Code. The trial judge concluded, based on his findings about what happened, that the appellant had breached his undertaking. The trial judge therefore convicted the appellant on all three counts on the information.

[8] On October 27, 2020, the Crown and defence counsel presented a joint submission for a 60-day conditional sentence, to run concurrently on each count. The trial judge sentenced the appellant to a 60-day sentence, to be served in the community, followed by 12 months of probation. He also made an order for the appellant to provide a sample of his DNA.

Grounds of Appeal

[9] The appellant represented himself on this appeal. I thank him for his effort in putting together his material and submissions before this court. He argues that the trial judge failed to properly consider his claim of self-defence in that he failed to consider the evidence presented by the defence. He argues that had his evidence been given proper consideration, the defence of self-defence would have succeeded. In failing to give effect to his argument that he acted in self-defence, the appellant alleges that the trial judge breached his right to be presumed innocent under s. 11(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 and his right to equal protection and equal benefit of the law without discrimination under s. 15 of the Charter.

Application to Admit Fresh Evidence

[10] In support of his argument that the trial judge erred in rejecting his claim of self-defence, the appellant seeks to introduce, as fresh evidence, four items: (1) photos of his head and body, which he argues show redness and swelling on his forehead and other marks on his body; (2) his school schedule at the time of the incident; (3) a video recording from a month before the incident in which the appellant recorded Mr. Morris doing dishes in the communal kitchen; and (4) an undated audio file entitled by the appellant as “Audio1-proposed fresh evidence re: toaster” which appears to be a conversation between three men regarding a short circuit of the outlet for the toaster.

[11] The test for the admission of fresh evidence is set out in Palmer v. The Queen, at pg. 775:

i. The evidence will generally not be admitted if it could have been adduced by duly diligent counsel at trial; ii. The evidence must be relevant in that it bears upon a potentially decisive issue at trial; iii. The evidence must be reasonably capable of belief; and iv. In light of all the evidence, the evidence must reasonably be expected to have affected the trial’s result (i.e. it must be cogent).

[12] Ms. Bruno for the Crown argues that all of the appellant’s proposed fresh evidence could have been introduced at trial. In his Notice of Application, the appellant asserts that the phone which contained the photos, video recording, and audio recording was lost at the time of trial, but that he found the phone after the trial.

[13] In challenging the appellant’s credibility on this point, Ms. Bruno points out that during the appellant’s testimony at the trial, he stated that he had a video of Mr. Morris cooking in the kitchen at 4:00am. The appellant made a similar reference during his testimony at trial to having a photo of his injury. She also points out that the appellant attempted to introduce at least some of the photos at the sentencing hearing in October of 2020 which the trial judge did not accept. There is no indication in the record of either the appellant or trial counsel stating that material they wished to introduce was on a lost cell phone, or was otherwise unavailable. She also notes that the appellant did not file an affidavit explaining when the phone was lost, when it was found, or why the issue was not raised at the trial, to substantiate his claim that these materials could not have been produced at trial. She submits all of this suggests that the appellant had these materials at the time of the trial, and that his counsel was aware of the material.

[14] With respect to the remaining item of proposed fresh evidence, the school schedule, no specific explanation was provided by the appellant for why this piece of evidence could not have been introduced at the trial.

[15] I agree with the Crown that the proposed fresh evidence could have been introduced a trial. The appellant had counsel at the trial who presented the defence case of self-defence. There is nothing in the transcript or in the appeal materials to substantiate the claim that the materials were not available at the trial. Indeed, the record suggests the contrary – that at least the video and some or all of the photos were available at the time of the trial. On this basis alone, the application to introduce fresh evidence does not succeed.

[16] I am mindful that courts have characterized this first consideration – whether the material could have been adduced by duly diligent counsel at trial - as a factor, but not a precondition, in determining whether the interests of justice warrant the admission of the evidence: R. v. M. (P.S.), 77 C.C.C. (3d) 402 (Ont. C.A.), at pg. 409. As such, even though the appellant has not satisfied the due diligence criteria, I will consider whether, in the totality of the circumstances, the other Palmer factors are sufficiently compelling that, on balance, the interests of justice require the admission of the evidence.

[17] Having regard to the other Palmer factors, I am not satisfied that any of the proposed fresh evidence on appeal meets the test for admissibility. None of these items, in light of all the evidence, could reasonably have been expected to have affected the trial judge’s findings on the key issues – whether the appellant’s evidence raised a reasonable doubt about self-defence and whether Mr. Morris’ evidence was credible and reliable.

[18] I will turn first to the school schedule which the appellant says supports his position that he approached Mr. Morris on the evening in question because he was concerned about being unable to sleep and therefore, unable to be ready for his early morning start.

[19] In my view, this evidence does not bear on a decisive issue at trial and could not reasonably be expected to have affected the trial judge’s decision.

[20] I come to this conclusion because, although in his factum and oral submissions, the appellant described being concerned about getting up in time for school, this did not form part of his evidence at the trial. Rather, the appellant testified that what precipitated the confrontation was his feeling of a “heavy presence” on top of him during his sleep and a feeling that something “strange” was going on. He testified that while he was in the hall talking to a friend on his phone about the possibility of renting a room at another location, Mr. Morris opened his door and a confrontation ensued (Transcript of Proceedings, February 27, 2020, pgs. 28-29, 42-43).

[21] In any event, there was no dispute at the trial that, before the confrontation, the appellant was bothered by things related to Mr. Morris’ presence in the apartment. In his findings, the trial judge recognized that there was tension between the appellant and Mr. Morris and that the relationship had “soured” between them (Reasons for Judgment, February 28, 2020, pgs. 3-4). That part of the appellant’s frustration with Mr. Morris related to his concern of being kept awake when he had early morning classes would not have affected the trial judge’s characterization of the relationship, his evaluation of the appellant’s credibility, or his evaluation of Mr. Morris’ credibility.

[22] Turning to the video recording of Mr. Morris cleaning dishes, this evidence also does not bear on a decisive issue, nor could the evidence reasonably be expected to have impacted the outcome of the trial. First, the video appears to be dated a month before the incident. Second, it captures an unremarkable event in which Mr. Morris appears to be washing a dish in the communal kitchen while wearing headphones. The evidence would not have supported the appellant’s claim that, leading up to the incident, Mr. Morris had been creating excessive noise, causing him distress.

[23] For similar reasons, the third piece of proposed fresh evidence, an audio recording capturing three men discussing the short-circuiting of an outlet used to operate a toaster, does not meet the test for admissibility. In his factum and in oral submissions, the appellant argued that Mr. Morris became upset with him because he turned off the circuit breaker to Mr. Morris’ room in an attempt to figure out which circuit breaker corresponded with an outlet used to operate a toaster.

[24] The audio recording captures an unremarkable conversation between three unknown male voices. It does not provide evidence that, leading up to the incident, Mr. Morris was upset with the appellant about the circuit breaker, nor does it provide any evidence that relates to the trial judge’s assessment of the appellant’s credibility. Moreover, there was no evidence called at trial of any such encounter.

[25] The final item tendered as part of the fresh evidence application is a compilation of photographs of the appellant’s face and head, shoulders, and back. The photos of the appellant’s face appear to show redness and a bump on his forehead. The photos are undated and are generally of poor quality. There was no affidavit evidence filed to explain the timing or circumstances surrounding the taking of the photos.

[26] While the photos of the appellant’s face bear some relevance to the issues the trial judge had to decide (assuming they were taken contemporaneous with the events), I am not persuaded that the photos could reasonably be expected to have impacted the trial’s result.

[27] The pivotal issue for the trial judge was whether Mr. Morris was the aggressor in the altercation, as the appellant testified. The trial judge considered the appellant’s evidence that Mr. Morris hit him first with his cane and that he acted in response. He heard evidence during the cross-examination of the appellant that the police prepared an injury report to document his injuries (although no injury report was introduced at the trial). The appellant testified in cross-examination that he believed he had a concussion and that an officer slapped the area where he had swelling in a mocking fashion (Transcript of Proceedings, February 27, 2020, pgs. 35-41).

[28] Ultimately, the trial judge considered the appellant’s evidence and rejected his testimony that Mr. Morris was the aggressor. The photograph does not assist on the issue of who the aggressor was in the confrontation. The trial judge also rejected the appellant’s evidence that Mr. Morris struck him with his cane. The photograph does not shed light on how and when the appellant came to be injured during the altercation. As such, it does not materially impact the analysis of the appellant’s credibility on whether Mr. Morris attacked him first, nor would it have impacted significantly on the trial judge’s assessment of Mr. Morris’ evidence that the appellant attacked him first and that he did not hit him with his cane. The photos, if they are contemporaneous with the events, tend to support the uncontroversial fact that the appellant and Mr. Morris were engaged in a physical altercation. However, the photos do not assist on the essential question of who was the aggressor in the altercation.

[29] For all these reasons, the application to introduce fresh evidence is dismissed.

The Appeal Proper

[30] On a summary conviction appeal, the standard of review is one of deference. The question is whether, based on the evidence, the decision of the trial judge could have been reasonably reached. An appeal should only be allowed where the decision is not supported by the evidence, is based on a misapprehension of the evidence, is clearly wrong in law, is clearly unreasonable, or there is a miscarriage of justice: R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233 (Ont. C.A.), at para. 32.

[31] To interfere with a finding of fact, the trial judge must have failed to consider relevant evidence to a material issue, erred in the substance of the evidence, or failed to give proper effect to the evidence: R. v. C.R., 2015 ONCA 9, [2015] O.J. No. 9-1-1 (Ont. C.A.), at paras. 29-32; R. v. Morrissey, [1995] O.J. No. 639 (Ont. C.A.), at para. 83.

[32] On credibility and on factual matters, a reviewing court must give due deference to the trial judge who is in the more advantageous position to assess credibility and make findings of fact, having heard and seen the evidence: C.R., at para. 31; R. v. J.H., [2005] O.J. No. 39 (Ont. C.A.), at para. 46; R. v. Cresswell, 2009 ONCA 95, at para. 14.

Did the Trial Judge Err in Failing to Consider the Defence Evidence in Support of his Position that he Acted in Self-Defence?

[33] The appellant argues that the trial judge unfairly discredited his evidence that he was attacked first by Mr. Morris and applied unequal scrutiny to the defence and Crown evidence. He argues that the trial judge ignored his evidence that Mr. Morris struck him in the head with a cane, causing swelling.

[34] I do not accept the appellant’s argument that the trial judge failed to consider the defence evidence, or that the trial judge applied uneven scrutiny to the evidence before him. Reading the trial judge’s reasons, he properly applied the framework of R. v. W.D., [1991] 1 SCR 742 and, in doing so, fairly reviewed all the defence evidence before concluding that the evidence did not raise a reasonable doubt.

[35] That the trial judge was alive to the proper analysis of how to weigh the evidence is evident at the beginning of his analysis, where he stated, at pg. 2 of his Reasons for Judgment:

The Supreme Court has given the following framework when making determinations of reliability and credibility. If I believe Mr. Odubu or the evidence favouring the defence, or even if I don’t believe that evidence but I am left in a reasonable doubt by it, then I must acquit. Further, even if I’m not left in a reasonable doubt by the evidence favouring the defence, I must ask myself whether on the evidence I do accept I am convinced beyond a reasonable doubt.

[36] He was also alive to the fundamental principles of the presumption of innocence and the burden of proof on the Crown to prove its case beyond a reasonable doubt, stating at pg. 2 of his Reasons for Judgment:

Mr. Odubu is presumed to be innocent of the criminal allegations made against him. He has nothing to prove. The Crown must prove the charges beyond a reasonable doubt, and a reasonable doubt requires more than a belief that Mr. Odubu is possibly or even probably guilty. As a standard it lies far closer to an absolute certainty than it does to a balance of probabilities.

[37] With those fundamental principles in mind, the trial judge then concluded that the appellant’s evidence was not credible. He provided several reasons for this conclusion. He found the appellant’s evidence that he spoke with Mr. Morris with the intention to “bury the hatchet” to be implausible and inconsistent with his evidence that he was outside Mr. Morris’ door making a panicked phone call to a friend because Mr. Morris was making him feel “strange. He noted that the appellant acknowledged in his evidence that he said to his friend on the phone, “I can’t live with this guy, it is unbearable”, and his evidence that he had confronted Mr. Morris in the past for doing “weird things”. Finally, the trial judge noted the appellant’s evidence that on the evening in question, he felt “this energy coming from Mr. Morris”. The trial judge concluded that the evidence did not support the appellant’s assertion that he was there to patch things up with Mr. Morris. Rather, he was there to confront Mr. Morris about the unpleasantness in the household, which he attributed to Mr. Morris (Reasons for Judgment, February 28, 2020, pg. 6).

[38] He found other parts of the appellant’s evidence to be internally inconsistent and detailed specific examples of the inconsistencies at pgs. 6-7 of his Reasons for Judgment. He noted, for example, that in examination in chief, the appellant testified that Mr. Morris opened the door and they began to talk, but in cross-examination, he stated that Mr. Morris got up from his futon using his cane then walked toward the door where he bumped the appellant, pushing him with his body (Reasons for Judgment, February 28, 2020, pgs. 6-7).

[39] The trial judge found other aspects of the appellant’s evidence to be implausible. He found the appellant’s description of Mr. Morris bringing his hand, which held his cane, up to his face as if to scratch his face, then swinging the cane down onto the appellant’s forehead to be “completely contrived” (Reasons for Judgment, February 28, 2020, pg. 7). He did not accept that the appellant had to use force to avoid being struck by Mr. Morris, finding that the appellant was considerably younger and fitter than Mr. Morris. He also found that Mr. Morris suffered from a host of physical ailments including arthritis, high blood pressure and being overweight, which he found had a “physically crippling affect” on Mr. Morris. As such, he did not accept that Mr. Morris would attack the appellant, who was younger and fitter (Reasons for Judgment, February 28, 2020, pgs. 7-8).

[40] In his written and oral submissions, the appellant took exception to the trial judge’s finding that, if Mr. Morris was holding a cane, the appellant could have avoided being struck by it and/or that the appellant could have disarmed Mr. Morris of his cane, given that he was physically fitter and younger than Mr. Morris. He argues that the trial judge failed to consider the fact that Mr. Morris’ strike with the cane came as a surprise to him and was not something he could guard against.

[41] I accept the appellant’s argument that it would be hard to guard against an unexpected swing of a cane. However, the trial judge’s comments about the appellant’s ability to disarm Mr. Morris have to be read in the context of his findings. First, as noted above, he did not accept the evidence that Mr. Morris struck the appellant first with his cane. Second, he stated, at pg. 7 of the Reasons for Judgment:

It is clear from all of the evidence that he could have easily avoided being hit by a cane if Mr. Morris was indeed holding one, which I don’t accept that he was…. (emphasis added)

[42] When read in the context of the rest of the reasons, the comments do not suggest a lack of impartiality or unfairness on the part of the trial judge, as the appellant argues. The trial judge did not find that the appellant should have been able to anticipate and protect himself from an unexpected attack. He found that there was no unexpected attack and that, even if Mr. Morris was holding a cane at any point during the altercation, the appellant had the advantage of youth and fitness to allow him to prevent Mr. Morris from hitting him with it. These were findings which were open to the trial judge to make.

[43] The trial judge went on to consider and reject the appellant’s evidence that he used only his hands in the altercation, finding that his evidence was inconsistent with the razor-thin cuts Mr. Morris had on his forearms. He found that the photos of Mr. Morris’ injuries did not support the appellant’s evidence that he scratched Mr. Morris with his fingernails, finding the injuries were consistent with Mr. Morris being cut with a sharp-edged object. He also found that the appellant’s evidence that he punched Mr. Morris several times in the face was inconsistent with the photographic evidence showing Mr. Morris to have a thin cut on his face (Reasons for Judgment, February 28, 2020, pgs. 8-9).

[44] Therefore, I do not agree that the trial judge did not consider the defence evidence. Rather, he carefully considered the appellant’s evidence on its own, and in the context of the rest of the evidence, and found it to be unreliable and incredible.

[45] Having found that the appellant’s evidence did not raise doubt on self-defence, the trial judge went on to consider the evidence of Mr. Morris. It is clear that the trial judge was alive to the fact that there had been tension between the men leading up to the incident. He stated, at pg. 3 of the Reasons for Judgment, that both parties acknowledged that things had “soured” between them in the period leading up to the incident. It would have been helpful had the trial judge expressly indicated that Mr. Morris’ credibility, like the appellant’s credibility, had to be assessed through this contextual lens. With that said, it is clear that the trial judge kept this context in mind. He stated, at pg. 10 of the Reasons for Judgment:

I accept Mr. Morris’ testimony that he went to his door in order to ask Mr. Odubu why he was outside making these claims, not to physically confront him but, as he said, to say ‘what are you talking about, I did not do anything to you’.

[46] Ultimately, he found that Mr. Morris’ evidence was “consistent, straight forward, and did not involve unaccounted for or unexplained inconsistencies” (Reasons for Judgment, February 28, 2020, pg. 9). He also found that Mr. Morris’ account of his injuries was supported by the photographs and that Mr. Morris, with his medical issues, would not have initiated a physical confrontation (Reasons for Judgment, February 28, 2020, pgs. 9-10). In my view, it cannot be said that the trial judge applied unequal scrutiny to Mr. Morris’ evidence.

[47] Accordingly, I find that the trial judge considered all the defence evidence and provided cogent reasons for rejecting the appellant’s evidence and accepting the evidence of Mr. Morris. The judgment provided the appellant with reasons for why he was convicted. Further, the record demonstrates that the trial judge engaged in a proper analysis of all the evidence under the W.D. framework and applied equal scrutiny to the defence evidence and the Crown evidence.

[48] This ground of appeal is dismissed.

Was the Trial Judge’s Conclusion that the Crown had Disproved Self-Defence Unreasonable?

[49] As I understand the appellant’s argument, he asserts that the trial judge should have accepted his evidence and acquitted him of the charges. In failing to do so, he asserts that the trial judge denied him his rights under ss. 11(d) and 15 of the Charter to be presumed innocent and to be protected equally by the law.

[50] There is no basis to suggest that the trial judge misapprehended the relevant legal test for self-defence. While he did not specifically address each element of s. 34 of the Criminal Code, it is clear from his reasons that he concluded that the defence failed on all three parts of the self-defence requirements. On the whole of the evidence, the trial judge was satisfied that the Crown had disproved that (1) the appellant reasonably believed that force was being used or threatened against him or any other person; (2) that the force he used was for the purpose of protecting himself; and (3) that the force used was reasonable: R. v. Khill, 2021 SCC 37, 2021 CarswellOnt 14156.

[51] The appellant did not succeed in utilizing the defence of self defence, not because the trial judge improperly shifted the burden onto him, or because he was not given equal opportunity to avail himself of the defence. He did not succeed because the evidence, when taken as a whole, did not leave the trial judge in reasonable doubt as to his guilt. Through this appeal, the appellant seeks to re-litigate the matters decided by the trial judge. It is not open to me to do so and, absent a legal error, misapprehension of the evidence, or a miscarriage of justice, there is no basis to interfere with the trial judge’s decision.

Conclusion

[52] For all of the reasons set out, the appeal is dismissed.

R. Maxwell J.

Released: April 22, 2022