ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA 21-261
DATE: 2022-06-02
B E T W E E N:
HER MAJESTY THE QUEEN
A. Grady, for the Crown
Respondent
- and -
BASHAM SWABY
C. McKeown, for the Appellant
Appellant
HEARD: April 28, 2022
A.J. Goodman J.:
REASONS FOR JUDGMENT
(On Appeal from the Honourable Justice A. Camara)
[1] This is an appeal brought by the appellant against conviction imposed on December 15, 2020 by Camara J. of the Ontario Court of Justice at Hamilton, Ontario.
[2] Following a multi-day trial that took place between August and December 2020, the appellant, Basham Swaby (“Swaby”), was convicted of three counts of sexual assault, one count of assault, two counts of failing to comply with the terms of release and one count of criminal harassment as against his former domestic partner, K.H. The offences were particularized in the information as having occurred in two separate time frames.
[3] In the Notice of Appeal, the appellant raised several grounds of appeal against conviction. He appeals on the basis that the trial judge failed to consider evidence that corroborated the appellant’s account and was capable of raising a reasonable doubt. The trial judge also failed to address the complainant’s credibility on certain material issues and resolve material inconsistencies in the complainant’s evidence. Another error relates to the trial judge failing to distinguish her approach between the evidence of the accused and the evidence of non-accused witnesses. In oral argument the appellant postulates that the trial judge erred by applying stricter scrutiny to the appellant’s evidence than she applied to the complainant’s evidence.
[4] For the following reasons, the appeal is dismissed.
Evidence at Trial:
[5] According to the appellant:
The appellant and the complainant had an acrimonious relationship. They share two daughters and both the complainant and the appellant also have older sons from previous relationships.
In 2019, the complainant and the parties’ two daughters lived at a house on Latorre Court in Hamilton. As part of the resolution of his 2017 charges, the appellant was subject to a one-year probation order that said he could only be at the Latorre house with the complainant’s consent. In December 2018, the complainant gave her consent for the appellant to contact her and be at the house. She revoked her consent again on January 14, 2019. The appellant’s probation expired on March 13, 2019.
The complainant testified that her relationship with the appellant began to deteriorate after she rejected him on New Year’s Eve 2018. The appellant professed his love for her and the complainant told him that she did not want to be together. The appellant had never sexually violated her before the New Year’s Eve rejection. Things got “worse and worse and worse”. During this time, the appellant would touch the complainant “all the time”—over and under her clothes, on her breasts and her vagina (one count of sexual assault, January 1 to February 28, 2019). Saturday nights were especially bad. The complainant described two specific incidents. The first involved the appellant giving the complainant hickeys. She testified this happened around January 11, give or take a couple of days. She took photos a few days later, and those photos were made exhibits at trial. The second incident involved both forced oral sex and forced vaginal intercourse (offence dates: January 1 to February 28, 2019). The complainant testified that she was not good with dates and, in fact, tried not to remember these incidents. She thought that the forced intercourse might have been in January or early February. Each sexual assault occurred at the Latorre house.
The complainant was challenged in cross-examination about the timeframe in which she alleged the appellant was sexually assaulting her. The complainant did not remember being away the weekend of January 11 to 14—she was always home. She did not remember whether she had contact with the appellant that weekend. She ultimately remembered an incident in which the appellant accused her of swinging a garbage bag at him and agreed that, after that incident, she revoked her consent. While she did not independently remember the exact date, she believed this was “probably in January because things had escalated to a very high level”. The complainant also testified in both cross-examination and re-examination that, if the probation conditions were in place (i.e. she had not given (or had revoked) her consent to have contact), the appellant would not come to the house. The Crown submitted that the sexual assaults occurred between January 1 and January 15, 2019 and requested that the sexual assault count with offence dates in March 2019 be withdrawn.
The complainant testified that, on April 9, 2019, she and the appellant were arguing in the foyer of the Latorre Court house when he hit her in her throat. She did not see it coming and not know whether it was with a closed fist or open hand. Shortly after she was hit, the appellant started yelling “you hit me, you hit me”. She did not understand why at the time. Later, she learned that he had recorded a video on his phone. She took their daughter to daycare and then went to the police station. Officer Thomas did not observe any injuries to the complainant’s throat but said the complainant had to clear her throat and expressed discomfort. The complainant was shown the video recorded by the appellant during her cross- examination and it was suggested to her that she said on the video that the appellant had “pushed” her in the throat. She testified that she could have said the word “punch” but would not have said “push”. She heard “punch”. She agreed being hit in the throat (what she told police) was more serious than being pushed.
The appellant admitted that he had a difficult relationship with the complainant and that he would get carried away and act childishly at times. However, he denied professing his love for the complainant on New Year’s Eve, denied frequently visiting their shared home, and denied sexually assaulting the complainant. He testified that, after visiting the house on New Year’s Eve, he next visited between January 11 and 14, 2019. He disagreed that he was sleeping over at the house regularly in January 2019. After the confrontation on January 14, 2019, he did not return to the house until his probation was over, sometime in March.
The appellant denied hitting the complainant but testified that she punched or hit him in his left eye. He did not see it coming. That was why he started to record their interaction. He called the police, visited a walk-in clinic, and then went to the police station. He denied punching himself in the face or asking a friend to do so. When the appellant went to the police station, Officer Thomas observed the injuries to his eye. Photographs of the injury were also filed as an exhibit.
The two breach allegations and criminal harassment allegation stem from incidents on May 5, and May 9, 2019, in which the appellant was alleged to have been within 100 metres of the complainant, contrary to the conditions of his bail. On May 5, 2019, the complainant testified that she saw the appellant at a night club in Mississauga. Her friend, A.J., also saw and spoke to the appellant, who told her not to tell the complainant he was there. The complainant testified that the appellant took pictures of her as she left. The appellant agreed he was at the night club but testified that he did not know the complainant would be there and understood he needed to leave right away once he realized. The complainant and her friends blocked his truck and they each took pictures of each other. On May 9, 2019, the complainant testified that she saw him drive past her near her home. Both described the route taken by the appellant. An officer testified that this route took the appellant within 100 meters of the home. The complainant testified that she feared for her safety. The appellant testified that he was driving to a park (outside the 100 metre radius) when he saw the complainant’s truck behind him and called the police. He then drove to a local school because he knew there were cameras there. He thought he was far enough away from the house and agreed he should not have been in the area at all.
[6] The Crown accepts the facts as outlined by the appellant but adds the following:
K.H. testified that her life with him was very difficult as he wouldn’t take no for an answer. K.H. testified how she would remind him that they weren’t together and that he didn’t have a right to touch her. K.H. outlined the specific sexual assaults that occurred, namely repeated touching of her vagina and breasts over and under the clothes, attempted oral sex and forced intercourse in the bedroom.
K.H. testified how she couldn’t recall the exact dates as she didn’t make a point to know the specific dates. K.H. testified that she took the photographs of the hickeys on January 14, 2019 but explained that the assaults had occurred in the days before. At no point did trial counsel actually challenge K.H. on the date that the photographs were taken, nor the date that the appellant forcefully gave her hickeys. Instead on October 6, 2020 when the cross-examination resumed, without referencing the fact that K.H. had testified that the hickeys occurred in the days before the photographs taken on approximately January 14, 2019, counsel suggested that K.H. was away from the home January 11-14, and that she had no interaction with the appellant during that time period. K.H. struggled to recall the specific date but was confident that she was in her home. In re-examination after having an opportunity to review the occurrence report of January 14, K.H. testified about how the appellant’s behaviour on that particular night was a tipping point for her.
In the video of April 9, 2019, K.H. can be seen placing her hand on her throat referencing being punched and tells G, “your dad just punched me in the throat.” K.H. reports the incident to police that same morning describing how she is suddenly hit in the throat by the appellant. She cannot say whether it was a closed fist or open hand.
In cross-examination, the appellant was shown the videotaped statement that was taken on April 18, 2019 where he described K.H. saying the following before he was struck, “you’re going down. I’m not going to stop until you go to prison or get deported.” He was also shown the portion of the video statement where he described how he was hit with a closed fist and demonstrated how he was hit notwithstanding his evidence where he stated he was hit suddenly and felt it but didn’t see it. In cross-examination, the appellant acknowledged that on January 15, 2019, after he told the police that K.H. had struck him in the face with a garbage bag, the police examined his face for injuries. The appellant agreed that the police shone a flashlight on his face and advised him that he had no visible injuries.
Positions of the Parties:
[7] The appellant submits that the trial judge wrongly accepted the complainant’s evidence. With the exception of the “confused” testimony about the January 11 weekend, the trial judge did not address inconsistencies in the complainant’s testimony before concluding the evidence was internally and externally consistent. The trial judge erred in that she failed to explain why she rejected the defence position. More importantly, the appellant alleges that the trial judge failed to consider evidence capable of corroborating his account, and failed to distinguish her approach to the appellant’s evidence and the evidence called by the Crown.
[8] The appellant also contends that the trial judge’s reasons were insufficient and she failed to grapple in any way with the material evidence that significantly undermined K.H.’s credibility. Ultimately, each of the errors alleged relate to the credibility assessment by the trial judge and the process in which she articulated the reasons for her findings.
[9] The Crown attorney responds that the conviction was reasonable, supported by the evidence and free from legal error. There were no material inconsistencies in the complainant’s evidence and the trial judge thoroughly analyzed and considered all of the evidence.
Legal Principles:
[10] Pursuant to s. 686(1) (a) of the Criminal Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence; (b) there was a wrong decision of law; or (c) on any ground where there was a miscarriage of justice. It is settled law that when considering an unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, deference must be afforded. An appellate court is not entitled to re-try the case and substitute its view of the evidence.
[11] The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have convicted the respondent, rather, the court must thoroughly re-examine, and to an extent, at least, conduct a limited re-weighing and consider the effect of the evidence: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122.
[12] The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.
[13] Appellate courts may only interfere with verdicts if they can clearly articulate the basis upon which they conclude that the verdict is “inconsistent with the requirements of a judicial appreciation of the evidence.” Further, in deciding whether or not the trier of fact has exceeded the bounds of reasonableness in the verdict that was reached, an appellate court should show “great deference” to findings of credibility made at trial.
[14] The test for demonstrating an unreasonable verdict is an exacting one. To succeed, the appellant must demonstrate that the verdict is one that no judge or jury, properly instructed, could reasonably have rendered in the circumstances. A verdict may also be found unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the trial judge in support of the finding, or is shown to be incompatible with the evidence that has not otherwise been contradicted or rejected by the trial judge. As held by Doherty J.A. in R. v. Morrisey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), trial judges will commit a reversible error when they fail to take into account evidence that is “relevant to a material issue” at trial:
A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.
In my view, any error, including one involving a misapprehension of the evidence by the trial judge must be assessed by reference to its impact on the fairness of the trial. If the error renders the trial unfair, then s. 686(1)(a)(iii) requires that the conviction be quashed.
When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial.
If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
[15] While the standard for establishing a misapprehension of evidence does not require that an appellant demonstrate that a verdict is unsupported by the evidence, the Supreme Court of Canada in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 2, set out the stringent standards for this ground of appeal:
The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.
[16] In seeking to overturn a conviction based on credibility findings and inferences, I am mindful of the comments in R. v. Clark (2005), 2005 SCC 2, 193 C.C.C. (3d) 289 (S.C.C.) at para. 9:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: [citations omitted]
[17] A functional approach governs appellate review of the sufficiency of reasons. The relevant inquiry is “whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10. A failure “to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 18; R. v. Slatter, 2019 ONCA 807 at para. 58.
[18] A judge need not review and resolve every inconsistency or respond to every argument advanced by counsel. A.M. at para. 14. However, an accused is entitled to know why the trial judge had no reasonable doubt about his or her guilt: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21.
[19] The law with regards to palpable and overriding error was summarized by the Court of Appeal for Ontario in R. v. T. (D.), 2014 ONCA 44, 305 C.C.C. (3d) 526, as follows:
An appellate court may only intervene in a trial judge's credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman [citation omitted] this court described the palpable and overriding error standard:
The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: [citation omitted]. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: [citation omitted].
Application of the Legal Principles to this Case:
The trial judge failed to consider evidence that corroborated the appellant’s account and was capable of raising a reasonable doubt:
[20] The trial judge began her analysis by self-instructing on the issues of credibility and reliability. At the outset of her analysis, the trial judge specifically referred to reliable extrinsic evidence as a factor she would consider in assessing the testimony of the witnesses. She then moved to her assessment of the appellant’s evidence, which she described as flawed with internal and external inconsistencies, often illogical and neither credible nor reliable. She did not believe his evidence and did not find it left her with a reasonable doubt. In drawing this conclusion, the appellant says that on the first and second stages of R. v. D. (W). 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (“W.(D).”), the trial judge expressly considered only the testimony provided by the appellant.
[21] It is true that while a trial judge is not required to deal with every piece of evidence, where there is evidence that contradicts the complainant’s evidence and supports the evidence of the accused, the trial judge should demonstrate that they have taken such evidence into account in the W.(D). analysis.
[22] However, this is not a case akin to R. v. Smith, 2020 ONCA 782 or R. v. S.R., 2022 ONCA 192, - relied upon by the appellant, where the trial judge erred in failing to consider evidence beyond the accused’s testimony at this step. Moreover, I do not accept the appellant’s argument that the trial judge did not consider the evidence corroborating the appellant’s injuries at the second stage of W.(D.). She began by correctly instructing herself to consider not only the appellant’s evidence, but also other evidence the defence relied on, including evidence in the Crown’s case. Camara J. found corroboration, including in the photographs of the complainant’s injuries, the appellant’s medical records and Officer Thomas’ observations.
[23] The trial judge’s overall assessment included: “In summary, I do not accept Mr. Swaby’s evidence as either credible or reliable. I do not believe his evidence nor does it leave me with a reasonable doubt.” As is clear from the trial judge’s reasons and a fulsome review of the trial evidence, the appellant’s evidence was rejected entirely.
[24] The appellant says the evidence that the appellant (not the complainant) was assaulted was significant in the context of this trial. The trial judge addressed the issue, and contrary to the appellant’s assertions, it was not necessary for the judge to have found that the appellant’s injuries were self-inflicted. It was sufficient in the overall context to find that this evidence did not raise a reasonable doubt in her assessment at the second stage of W.(D.).
[25] The appellant also suggests that the photographs, which the appellant took of himself and the letter from his physician, corroborate his account and that the trial judge failed to take this evidence into account in assessing whether she accepted the appellant’s evidence or whether it raised a reasonable doubt.
[26] I agree with the Crown. The injury photographs and medical records are only corroborative if one accepts the witness’ account. In order for the items to have evidentiary value in this case, the court would have to accept that the appellant was assaulted in the April 9th incident. However, the court rejected the appellant’s evidence entirely as to what happened on April 9. The video, which the appellant started filming just after the physical interaction, contradicted his version as to what happened. The exhibit showed the position of the parties, various items on the floor, the angle of filming, and the proximity of the parties which the judge determined directly contradicted the appellant’s evidence and corroborated the complainant’s version; notwithstanding the fact that K.H. had neither viewed the video nor was aware she was being recorded.
[27] The appellant also acknowledged that on a prior occasion when police were involved, he had no visible injury, wasn’t believed, and no charges were laid. PC Thomas testified that it was the appellant’s position that he had injuries, so therefore the police should be charging K.H. PC Thomas testified that she found this suspicious, as the appellant seemed to be very aware of the charging process and had shown his injury as a clear tactic to have the complainant charged and possibly avoid being charged. On the entirety of the record, there was ample basis for the trial judge to reject the appellant’s evidence, which did not raise a reasonable doubt on either the first or second prong of W.(D).
The trial judge failed to resolve material inconsistencies in the complainant’s evidence
[28] It is trite law that a trial judge is entitled to believe all, some, or none of a witness’ evidence, and to afford different weight to different parts of the evidence that are accepted. The trial judge is best positioned to assess credibility, having heard all of the evidence, how it was said, and the submissions of counsel.
[29] Further, it is not an error where a trial judge fails to specifically articulate the test in W.(D.) as long as the principles are applied in each case where warranted.
[30] As mentioned, it is well-established that a trial judge’s findings on the credibility and reliability of a witness’ evidence is entitled to deference. What is crucial, however, is the requirement that a trial judge explain their reasons on credibility and reasonable doubt in a way that permits meaningful appellate review. This is especially crucial where an accused testifies and gives exculpatory testimony.
[31] This appeal essentially turns on an analysis of the trial judge's reasons for judgment in the context of the evidentiary record. The trial judge’s reasons were not intended to be, nor have I read them, “as a verbalization of the entire process engaged in by the trial judge in reaching [his] verdict.” (See Morrissey at p. 205.)
[32] The appellant faces a stringent standard of review in challenging the trial judge’s credibility findings given the high level of deference afforded. Appellate courts are directed to read the reasons as a whole in the context of the evidence, and the arguments at trial. The appellant must demonstrate that the error goes to the root of the credibility finding such that the finding cannot safely stand in the face of the error: Vuradin, at paras. 11-12.
[33] The trial judge recognized the important role internal and external inconsistencies play in assessing a witness’ testimony. She included “whether the account is internally consistent” and “whether the account is consistent with other accounts, that witness has provided in advance of his or her testimonial account before me”. The complainant’s testimony about the frequency and duration of the sexual assaults was clarified and assessed by Camara J. with the timeframe in which she ultimately agreed—and the Crown argued— they occurred. There was no circular reasoning implicated in her analysis.
[34] Moreover, the trial judge did not fail to resolve two important inconsistencies as alleged by the appellant, namely: (1) the inconsistency between the complainant’s description of the frequency and the timing of the sexual assaults; and (2) whether the complainant’s description of the April 9, 2019 assault was consistent with the language she used on the video.
[35] While it is true that the criminal offences occurred over a period of January to May 2019, K.H.’s testimony related as far back as 2017. Ultimately, the trial judge was directed by counsel to this particular issue of timing, yet the Court found as a fact, that the incidents described by the complainant occurred in January 2019.
[36] Essentially, because the timeframe was narrowed, K.H.’s evidence explained the context of the relationship between the parties. K.H. was asked about the frequency of the touching and she described how Saturday nights were particularly bad as the appellant would come home wanting to have sex. While it was K.H.’s evidence that the sexual assaults took place between January and April 2019, she could not be more specific and, eventually narrowed the timeframe as having occurred in January 2019 based on when she revoked consent with respect to the appellant’s probation conditions.
[37] There was evidence that the appellant continued to visit the home after the expiry of his probation in March, 2019. In any event, K.H. testified about the sexual assaults that started after her rejection of the appellant on December 31, 2018. I agree with the Crown that the frequency and duration of the sexual assaults as described by K.H. is not a material inconsistency. It is clear that the trial judge accepted K.H.’s evidence that the appellant touched her breast and vagina, forced intercourse and sucked on her chest leaving bruises. How often or the precise dates on which these incidents occurred was not a finding the trial judge was required to make in this case. On the record before her, the trial judge drew reasonable conclusions and accepted the evidence that the sexual assaults occurred in January 2019, the timeframe alleged in the information.
[38] The second alleged material inconsistency is where the trial judge failed to resolve related to the complainant’s description of the April 9, 2019 assault allegation at trial and in the video recorded by the appellant. When confronted with the video recording, she insisted that she used the word “punch” rather than “push”. She agreed that describing the assault as a “push” would not make sense in light of her evidence that she was hit in the throat. Defence counsel invited the court to listen carefully to the word the complainant used in the video.
[39] In her questions to defence counsel during his submissions and in her reasons for judgment, the trial judge noted that both a “push” and a “punch” would be an assault. In her reasons, the trial judge’s treatment of this inconsistency was addressed within her summary of the complainant’s evidence.
[40] The appellant concedes that while true, it still did not resolve the inconsistency: a “push” and a “punch” are different actions. The appellant suggests that the possible use of the word ‘push’ as opposed to punch in the video recorded by the appellant following the assault on April 9th somehow calls into question K.H.’s credibility.
[41] I respectfully disagree. As was clear from the evidence of K.H., she was unaware that the appellant was recording her. The appellant can be heard in the video accusing K.H. of hitting him. Her immediate response is to place her hand over her throat indicating she was struck. At some point, K.H. can be overheard telling her son what his dad just did to her.
[42] In her summary of the complainant’s evidence, the trial judge did refer to the inconsistency relied on by the defence: whether the complainant used the word “push” or “punch”. K.H. was adamant, that she did not say push in the video. However, whether she said “push” or “punch” is, as the trial judge noted, the distinction was immaterial as both a push and a punch would be a non-consensual application of force.
[43] In my opinion, the trial judge did not fail to resolve a material inconsistency in the complainant’s evidence and fully explained her approach to the issues raised in the evidence.
Failure to Distinguish the General Assessment of an Accused’s Evidence
[44] The appellant asserts that the trial judge failed to explain how she used Swaby’s prior finding of guilt and the fact that he had a stake in the proceedings in assessing his credibility and reliability. At the outset of her reasons, the trial judge listed twelve factors to consider in assessing the credibility and reliability of a witness’ evidence. The trial judge identified four specific areas which demonstrated how his evidence was inconsistent:
Mr. Swaby’s description about how he was assaulted on April 9th during his testimony was significantly different from how he described that same assault to the police following his arrest. In court he claimed to not know how he was hit by K.H. and that no words preceded the assault. During the videotape statement he identified a specific threat made by K.H., identified the hand he used to assault him and that she made a fist with her hand and was able to demonstrate to the police how he was assaulted. This is an example of an internal inconsistency on a very significant point of his testimony.
Mr. Swaby said during his testimony that he was not ever at Latorre Court house in January during the week. He was adamant and repeated he only attended Friday at 6:00 p.m. until Monday 6:00 a.m., except he acknowledged, in fact, he was in fact at the residence on Monday, January the 13th, 2019 in the evening when he had a significant argument with K.H. Those statements cannot be true. This is an example of his testimony being inconsistent with other external facts.
Mr. Swaby testified he would attend at the McQuesten Park four times a week as it was a level walking surface. He testified it was the only level walking surface he could walk on and denied ever being able to use a treadmill as a level walking surface. Despite not even living in Hamilton at the time, it defies logic that this was the only place he could go walking. Furthermore, he said he was going walking on May 9th, 2019, yet from the pictures the ground is wet and it had been raining fairly heavily from the photographs. He stated in his testimony that the rain had just started. This statement is inconsistent with the other facts seen in this case including the video captured by J.H.
The video that was marked as Exhibit Number 6 is a piece of evidence Mr. Swaby chose to create at the time of the incident on April 9th. When one looks at that video, compares it to Mr. Swaby’s account of what occurred on April 9th, further inconsistencies are revealed. Where Mr. Swaby says he was in relation to his daughter when he was assaulted, which was mere moments before the video starts, does not make sense. From the video it’s clear that his daughter was somewhat stationary during the incident. She isn’t moving around from one area to another. Where she was when the video is where she was likely moments before. Mr. Swaby would not have been able to kneel in front of her due to the very limited space in the front foyer. K.H. was there. G was there. There were numerous items on the floor there. Furthermore, when the video starts, K.H. is the one that’s holding the little girl’s jacket, not Mr. Swaby.
[45] In addition, the trial judge described the appellant’s evidence as illogical and defying common sense in many areas. The Court went on to cite numerous examples to explain her findings:
Mr. Swaby testified that he would obtain access to his children during his time on probation. The way he would obtain access to his time on probation would be to wait until he would receive a phone call from his probation officer who would tell him that K.H. was not home and he needed to go to Latorre Court and babysit his children. He testified that his attendance at the residence on December 29th was the result of such an instruction from his probation officer.
Only K.H. was home when he attended on December 29th. Mr. Swaby testified that she was threatening him and he was uncomfortable and therefore he left. He did not have access to his kids on December 29th nor December 30th, rather, he testified that he went to the house on December 31st after his daughters were asleep and stayed for a while until G returned. Mr. Swaby then testified he left before his daughters even awoke. It seems strange and illogical to me that he would choose to exercise his access during the night when he would not in fact be able to spend any time with his children. K.H. testified that Mr. Swaby attended the party that she was at that evening. Mr. Swaby denies that, but his version of how he spent his time on New Year’s Eve does not have a ring of truth.
[46] The trial judge also found the appellant’s evidence regarding the May 5th incident particularly troubling and explained it in the context of the other evidence:
Mr. Swaby testified on May 5th he was surprised to see K.H. at the Sugar Daddy’s Night Club. He testified that once he did see her, he told his friends he needed to leave right away. At that moment, he testified he saw that K.H. and her friends were heading toward the exit. He testified he waited two minutes for them to clear the exit and left promptly then as well. That testimony doesn’t make sense. If you’ve arrived at a location to spend time with a friend and no longer need to leave because K.H. has left, why rush out? Why wait only two minutes? Why not stay and visit with the friend you’d planned to meet? His rationale and testimony to the court on this point was nonsensical.
[47] Finally, the trial judge pointed to the appellant’s evidence regarding K.H. She found that he lacked credibility when making statements like he did not care where K.H. was or who she was with when, under cross-examination, he testified that he was still aware of K.H.’s menstrual cycles, despite by his account not living with her for a significant amount of time. He frequently accused K.H. of sleeping with another man but claimed to be disinterested in her whereabouts.
[48] In my opinion, upon a review of the reasons coupled with the trial record, the trial judge carefully scrutinized the appellant’s testimony evidence and applied the appropriate standard of review. All of this to say that this does not mean that the trial judge is required to enter into a detailed account of the conflicting evidence. In the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. The trial judge should not be found to have erred in law because he or she has failed to reconcile every frailty in the evidence or allude to every relevant principle of law.
[49] In this case, Camara J. delivered detailed and lengthy reasons as to why she found the appellant neither credible nor reliable. She provided her analysis as to her acceptance of the complainant’s testimony. It is clear that the trial judge considered the appellant’s testimony and related evidence and found that it was neither credible nor capable of raising a reasonable doubt.
The trial judge applied uneven standards of scrutiny to the evidence
[50] The appellant submits that it is an error of law for a trial judge to subject the evidence of the defence to a higher or stricter level of scrutiny than the evidence of the Crown. Even if the evidence is capable of supporting a conviction, where the trial judge has applied different standards of scrutiny, the appellant has not received a fair trial.
[51] I note that the Supreme Court of Canada has expressed doubt as to whether uneven scrutiny is a helpful or independent ground of appeal: See R. v. G.F., 2021 SCC 20, at para. 100. It is a “notoriously difficult” argument to succeed upon, and requires that it be clear that the trial judge applied different standards in assessing competing evidence: R. v. Kiss, 2018 ONCA 184, at para. 83.
[52] Nevertheless, my review of the transcripts and reasons for judgment does not sustain the appellant’s position on this point.
The trial judge failed to distinguish between the legal principles that apply to the evidence of the accused and the evidence of non-accused witnesses
[53] This final, related ground relates to what the trial judge expressed as the appropriate test when considering evidence and the testimony of witnesses. The appellant contends that the trial judge did not accurately or completely enunciate the requisite tests; for example, she related that “the outcome of the case or somehow otherwise motivated to give an account more favorable to one party then [sic] the other”. The appellant submits that the trial judge should have expanded this self-instruction by adding words to the effect that “…in the outcome of their trial, both innocent and guilty accused have an interest in not being convicted. Any assumption that an accused will lie to secure an acquittal ‘flies in the face of the presumption of the innocence’ as an innocent person would only need to tell the truth.” The applicant submits that the trial judge’s consideration of these factors without due attention to how they apply in the context of an accused witness, with additional cautions and limitations, was an error.
[54] I did not call on the Crown attorney to respond. It is mere speculation to suggest that the trial judge unfairly weighed the factor of the appellant’s prior finding of guilt or that he had a stake in the proceedings simply because she mentioned those factors. In the overall context of her reasons, Camara J. was merely making reference to some of the well-established principles for the assessment of credibility. It is settled law that a trial judge does not have to offer any special words or incantation of any legal test, as long as it is properly and reasonably applied in the circumstances of the case. Indeed the trial judge is presumed to know the law. There was no error by any alleged failure to expand on the prose in the list of factors to the extent suggested by the appellant. These and other factors that were properly considered and applied by the trial judge in assessing the witness’ evidence. This ground of appeal has no merit.
Conclusion:
[55] The reasons of the learned trial judge, as a whole, are fully considered and reasoned as to why the evidence did not leave her with a reasonable doubt. Camara J. explained why she accepted the evidence of the complainant in addressing the material credibility issues highlighted by defence counsel and the reasons for rejecting the appellant’s evidence entirely. The appellant has failed to demonstrate that the trial judge committed overriding and palpable error.
[56] The appeal is dismissed.[^1]
A.J. Goodman, J.
Released: June 2, 2022
COURT FILE NO.: SCA 21-261
DATE: 2022-06-02
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
BASHAM SWABY
Appellant
REASONS FOR JUDGMENT
(On Appeal from the Honourable
Justice A. Camara)
Released: June 2, 2022
[^1]: If applicable, the appellant is directed to surrender himself into custody at the Hamilton-Wentworth Detention Centre within 24 hours of release of this decision in order to serve any remaining portion of his custodial sentence.