Court File and Parties

Barrie Court File No.: CR-21-84-AP Date: 2022-05-12 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Thomy Baez-Eusebio, Appellant

Counsel: Jennifer Armenise, for the Crown Jassi Varmadevan, for the Appellant

Heard: March 21, 2022

Reasons for Decision

DE SA J.:

[1] The appellant was tried on an information alleging as follows:

(i) That he, on or about the 19th of May, 2018, at the Township of Springwater, in the Region of Central East, did commit an assault on Tiara Lynn Jones, contrary to s.266 of the Criminal Code;

(ii) Further, that he on or about the 19th of May, 2018, did have in his possession a weapon to wit: a metal pole for the purpose of committing an offence contrary to s.88 of the Criminal Code;

(iii) Further, that he on or about the 19th of May, 2018, did without lawful authority confine Tiara Lynn Jones, contrary to s.279(2) of the Criminal Code;

(iv) Further, that he on or about the 19th of May, 2018, did by words knowingly utter a threat to Tiara Lynn Jones to destroy the property of Tiara Lynn Jones, to wit: automobile windows, contrary to s.264.1(1)(a) of the Criminal Code.

[2] After trial, the appellant was found guilty on counts (i), (ii) and (iv). He was acquitted on count (iii).

[3] The trial judge provided “brief reasons”, spanning four pages of transcript. The trial judge rejected the evidence of the appellant and accepted the evidence called by the Crown.

[4] The appellant takes the position that the trial judge erred in his application of W.(D.).

[5] Given the trial judge’s brief reasons, the appellant argues that the trial judge failed to undertake any analysis of the inconsistent evidence offered by the Crown witnesses. The appellant also argues that the trial judge failed to appreciate that the video clips were largely corroborative of the appellant’s account. He did not provide an adequate explanation of why he viewed them as more corroborative of the complainant’s account.

[6] I disagree. In my view, the reasons are sufficient when considered in the context of the record. I see no basis to conclude the trial judge ignored or misapplied the requirements of W.(D.).

[7] The appeal is dismissed. The reasons for my decision are outlined below.

Summary of the Facts

The Evidence of Sharilyn Malins and Tiara Lynn Jones

[8] On May 19, 2018, Sharilyn Malins and Tiara Lynn Jones were out for the evening. They met up with other young people and eventually went back to a friend’s house around 3:00 a.m. They had all been drinking.

[9] Ms. Malins testified that throughout the whole time at the house, the appellant was trying to “hook up” with Ms. Jones. She described this behaviour as “annoying”. Ms. Malins testified that she personally observed this and heard about it as well.

[10] Ms. Jones made no reference to these advances in her testimony. According to Ms. Jones, she and the appellant did not have any issues throughout the course of the night. They were all hanging around and having a good time.

[11] In the morning, the appellant noticed that his phone was missing. He and some friends began to search throughout the house for his phone. As Ms. Malins and Ms. Jones were engaged in the search, they observed the appellant was not helping to look for his own phone. They decided to leave.

[12] The timing of their decision to leave seemed suspicious to the appellant and he believed they may have taken his phone.

[13] Ms. Jones and Ms. Malins testified that as they were trying to leave, the appellant was preventing them from leaving by standing in front of the door with his chest out. He was also yelling at them in a threatening manner. He was telling them they were not leaving until he had his phone. In the encounter, Ms. Jones damaged her nail when the appellant pushed the door closed as she was trying to exit.

[14] Another friend (Faithful) told the appellant to back away, and the girls managed to exit the house. Once outside the house, both Ms. Jones and Ms. Malins testified that the appellant was angry and followed them towards their car. The appellant picked up a brick and a metal rod in a threatening manner as he was approaching the car.

[15] Ms. Jones testified that she started the ignition and placed the vehicle in reverse. As she did, the appellant continued to approach the vehicle and was threatening to damage her mother’s car with the brick and pole in his hand. Ms. Jones testified that she was frightened that he would damage her mother’s car so she placed the car in park. She then rolled down the window and confronted him about it.

[16] Ms. Malins did not recall the vehicle being started and believed that the vehicle was stationary when the threat was made and the appellant grabbed the keys from Ms. Jones’ lap.

[17] Ms. Malins took photos and two video clips of some portions of the interactions. While there is no picture of the appellant holding the brick, there is a picture of the appellant holding the pole down at his side.

[18] The first video clip shows Ms. Jones in her vehicle. She rolls her window down and yells at the appellant:

Jones: Yeah. Yeah eh? Yeah eh? Yeah yeah. You think you’re gonna smash my moms fuckin’ car, she’s a real estate [unintelligible] watch your fuckin ass get killed my nigga.

Appellant: Watch my ass get killed?

Jones: Yeah.

Appellant: Who’s gonna kill me? Who’s gonna kill me?

Jones: You don’t [unintelligible]

Malins: You’re on video.

[19] After approaching the vehicle, both Ms. Jones and Ms. Malins testified that the appellant reached into the car and grabbed the keys. Ms. Jones exited her car to get the keys from the appellant.

[20] Ms. Jones and Ms. Malins testified the appellant would not give the keys back to Ms. Jones. After she exited the car, he dragged Ms. Jones towards the front of the house, and they were pushing and shoving each other. In the midst of this physical altercation, Ms. Malins called 911.

[21] The second video clip depicts the appellant and Ms. Jones outside as they are shoving each other. According to Ms. Jones, this video shows the moment just after she was dragged towards the house.

[22] Faithful came out of the house shortly after and told the appellant to give her the keys. The appellant and Faithful both went back inside the house and when the appellant came out, he had his phone again. Having his phone, he gave Ms. Jones back her keys. It was just then that the police arrived.

The Appellant’s Testimony

[23] The appellant testified that on the night in question he was hanging out with his friends. The appellant was not feeling great that night. He and his friends went to a club and met some girls and they decided to go to another friend’s house in Springwater. Two of the girls that they met were Ms. Jones and Ms. Malins.

[24] Later that morning, the appellant was unable to locate his cell phone. He testified that everyone began to look for it. After 5-10 minutes of searching, Ms. Jones and Ms. Malins “decided they wanted to leave”. The appellant found it strange that they didn’t seem to want to leave until after his phone was missing. He testified that he was asking for his phone back and “they were making threats” towards him. The appellant felt like he had been mugged and they had taken his phone.

[25] Ms. Jones and Ms. Malins made their way outside. According to the appellant, he did not block their exit but he followed them outside.

[26] After they got outside, they became more aggressive. According to the appellant, he noticed that they were being more aggressive, and he believed they took his phone. He felt threatened so he picked up a metal pole. He testified that at no time did he raise the pole at them.

[27] When questioned on why he felt threatened, the appellant testified that he “didn’t know what would happen next with all the threats they were making” towards him.

[28] The appellant testified that the girls got in the car. He simply wanted his phone back. Ms. Jones’ window was down and she was threatening to kill him. He began making his way back to the house and Ms. Jones followed. The appellant testified:

A. She’s trailing behind me. I’m walking away from her until some point where she swung at me, punched me in my face as I’m walking away. At that moment is when you could see in the video I’m trying to get her off me. I push her off me and…

[29] The appellant denied picking up a brick and threatening Ms. Jones or Ms. Malins.

[30] He denied threatening or swinging the metal pole towards them or the vehicle.

[31] He denied assaulting Ms. Jones. He also denied taking Ms. Jones’ keys.

[32] At trial, the defence invited the court to review the video arguing that the video did not support the claims of Ms. Jones or Ms. Malins.

The Reasons for Judgment

[33] The trial judge’s reasons are brief. In his reasons, the trial judge acknowledged the need to apply W.(D.) He explained:

…After applying the principles of W.(D.), I find the accused guilty on each and every one of these three counts. My brief reasons are this, first I reject the evidence of the accused and I find that it does not raise a reasonable doubt.

Second, or third, on the basis of the evidence of Ms. Jones and her partner at the time…I accept the evidence of Ms. Jones and find it credible, and supportive of even some of the descriptions given by the accused, but most importantly, consistent with the videos.

[34] The trial judge went on to conclude that he could clearly see the vehicle’s keys in the appellant’s hands and could clearly see that there was “a direct hands on the throat and the blow to Ms. Jones”. In commenting on the videos, the trial judge explained:

The video shows that for no reason whatsoever, the accused was in fact armed with a metal pole. I say that no reason, no lawful reason could prompt him being armed with a metal pole. The video shows clearly that he approaches the vehicle with this metal pole. The witnesses add to that that he was threatening to damage the vehicle, hence the vehicle was stopped.

The second video shows clearly that the accused is putting hands on, to use the vernacular, Tiara Lynn Jones, and indeed is holding in his hand her car keys. In my view, the totality of this shows an assault from the “hands on” activity, which seems to be a direct hands on the throat and the blow to Ms. Jones.

The pole is clearly a threat at the time when being by the door. He also seems to be dragging Ms. Jones with him as he goes back to the house…

[35] The trial judge found the appellant guilty of counts 1, 2 and 4.

Analysis

W.(D.) and the Sufficiency of Reasons

[36] An appeal based on insufficient reasons “will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R.E.M., 2008 SCC 51, [2008] 3 SCR 3, at para. 16; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55.

[37] Reasons for judgment must be examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced. The circumstances of the particular case will determine the adequacy of the reasons for judgment and the effect, if any, of the inadequacy of reasons or the outcome of the appeal: R. v. J.J.R.D., at para. 32.

[38] The core question in determining whether the trial judge’s reasons are sufficient is the following: Do the reasons, read in context, show why the judge decided as he or she did?: R. v. Vuradin, [2013] 2 SCR 639, 2013 SCC 38; R.E.M., at para 17.

[39] Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. In Dinardo, recognizing the various factors that go into a credibility assessment, Charron J. commented at para. 26:

Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. [Emphasis added.]

[40] The degree of detail required in explaining findings on credibility will also vary with the evidentiary record. The factors supporting or detracting from credibility may be clear from the record itself. In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors: R. v. Sheppard, supra. As the Supreme Court explained in R.E.M., supra, at para. 49:

While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. [Emphasis added.]

[41] In assessing the adequacy of reasons, appellate courts should not overestimate the complexity of most criminal litigation or underestimate the ability of those involved in the trial process to understand the reasons for the outcome: R. v. J.J.R.D., at para. 33. As explained by Binnie J. in Sheppard, supra, para. 60:

[I]n the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned. Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it.

Application to the Facts of the Case

[42] In this case, the appellant argues that the evidence elicited at trial demonstrated that Ms. Malins and Ms. Jones had issues with their credibility and reliability. He points to various inconsistencies in their evidence including:

i. Ms. Malins testified that she was not drinking at the club. Ms. Jones testified that Ms. Malins was drinking at the club. ii. Ms. Malins testified that the appellant was hitting on Ms. Jones all night and that it was consistent and annoying. Ms. Jones testified that the appellant was talking to some other girl and that she and the appellant had no issues between them until the cell phone disappeared. iii. Ms. Malins testified that the appellant was making sexual advances towards Ms. Jones including some incident in the bathroom that preceded him reporting that his phone was missing. Ms. Jones provided no support for this contention. iv. Ms. Malins testified that they were in the vehicle but they had not moved. Ms. Jones testified that the vehicle was turned on and that she had reversed.

[43] The appellant submits that these inconsistencies ought to have prompted a closer analysis of their evidence as a whole. According to the appellant, the failure of the trial judge to have explicitly undertaken this analysis renders it impossible to conclude that W.(D.) was actually applied. R. v. G.(M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 355.

[44] I disagree. While I agree the trial judge’s reasons are concise, they are clear, and his pathway to conviction is easily understood. The trial judge rejected the account of the accused. The reasons demonstrate the trial judge was satisfied beyond a reasonable doubt of the accused’s guilt on the basis of the evidence of the Crown witnesses, together with the video.

[45] I also disagree that the nature of the inconsistencies identified required more elaboration. The accounts of Ms. Jones and Ms. Malins were consistent in their material respects. The inconsistencies pointed out by the appellant are minor ones and were peripheral to the main issues to be decided. The reasons, read in context, demonstrate that the trial judge was aware of these inconsistencies, and properly considered them.

[46] In the context of a W.(D.) analysis, the appellant also argues that the trial judge did not explain why he rejected the appellant’s evidence and did not compare his evidence to the video snippets to assess whether it could be true.

[47] Where the video is incomplete, as it is here, the appellant argues that it cannot simply be used to corroborate one version of events when, in actuality, it is capable of also corroborating the other.

[48] I have reviewed the videos. In my view, it was open to the trial judge to interpret them in the manner that he did. I disagree with the suggestion that the videos are equally consistent with the appellant’s version of events.

[49] In the initial exchange at the car, it is evident that the appellant is approaching Ms. Jones in her car. It is also clear from the recorded exchange that Ms. Jones’ remarks about “killing” the appellant were in response to the threats made by the appellant to her mother’s vehicle. The video supports Ms. Jones’ account in this material respect.

[50] In the second clip, the video shows a portion of the physical altercation between the appellant and Ms. Jones. The appellant can be observed to have his “hands on” Ms. Jones as the trial judge described. It is also evident that the appellant has taken Ms. Jones’ keys and is preventing her from leaving.

[51] Neither video gives me concern as to the trial judge’s findings. He was entitled to make the findings that he did.

[52] Moreover, his findings of fact, together with his conclusions on the video provide a clear basis as to why he did not believe the accused. Nothing more by way of explanation was required. As explained by Doherty J.A. in R. v. J.J.R.D., supra, at para. 53:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence

[53] The appeal is dismissed.

Justice C.F. de Sa Released: May 12, 2022