COURT FILE NO.: CR-21-70000017-00AP
DATE: 20220624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CLIVE HALL
Patrick Travers, for the Crown, Respondent
Theresa Donkor and Chris Rudnicki, for the Appellant
HEARD: June 10, 2022
R.F. GOLDSTEIN J.
[1] Clive Hall, the appellant, and Kasheka Wallace-Hall, the complainant, were domestic partners. They had something of a stormy relationship, having separated and then reconciled. On November 25, 2018 they had a physical encounter. The complainant said that the appellant assaulted her after a dispute over breakfast. The appellant, said that she, in fact, assaulted him out of nowhere. The police charged the appellant with assault. The trial turned on credibility. The trial judge, Mr. Justice Chamberlain of the Ontario Court of Justice, convicted the appellant. He alleges that the trial judge made fundamental errors in assessing the credibility of the appellant and the complainant. He says that a new trial is warranted.
[2] Respectfully, I do not agree. The trial judge’s credibility findings are owed deference on appeal. For the reasons that follow, the appeal is dismissed.
THE TRIAL
[3] The trial took place over the course of two non-consecutive days in November 2019. The trial judge rendered judgment on February 11, 2020. There were two information before the court: one information charged the accused with assaults by the appellant on the complainant in 2017. The second information charged the appellant with a 2018 assault on the complainant. The 2017 information was withdrawn prior to arraignment. The appellant was arraigned solely on the information charging the 2018 assault. The complainant and the accused both testified and were cross-examined. A police officer who took photographs of the complainant’s injuries from the 2018 assault also testified.
[4] The complainant testified that she married the accused in 2016. in approximately March 2017 the appellant alleged that she was having an affair with a former boyfriend. He kicked her in the back. She had vaginal bleeding and abdominal pain. He took her to the hospital and then to a walk-in clinic. A doctor told her she was pregnant and had suffered a miscarriage. About a month or two later they had an argument in the car. She testified that the appellant assaulted her in the car and then kicked her out of their shared apartment. She testified that there was an incident at work where the accused had a confrontation with corporate security. Later the head of HR at her company took her to the police, and she made a statement. Defence counsel cross-examined her on that statement. In 2018 they decided to reconcile. She moved back in with him. After the reconciliation things were initially good. She became pregnant again after fertility treatments. Unfortunately, they began to bicker again. On November 25, 2018 the complainant was up doing laundry because she couldn’t sleep. The accused came home at 4 or 5 in the morning. They ended up having an argument about breakfast and running errands. He was being disrespectful to her. She was in the bedroom and trying to block him from entering. He forced his way in and held her by the throat and asked her if she knew who he was playing with. He had a knife in his hand but he did not use it to threaten or harm her – he had been chopping vegetables. She believed he didn’t realize he still had it in his hand. He tried to grab her and she tried to get away. He pulled her hoodie off as he grabbed at her. He unsuccessfully tried to punch her stomach. She called 911 and the police and an ambulance came. The police took her to the hospital. She was treated for a laceration on her shoulder. Her clothing was torn. Photographs of her laceration were entered into evidence.
[5] The appellant testified that he was a self-employed truck driver. He met the complainant in Jamaica when he was there for a funeral. He testified that their marriage was great. She seemed to be a nice person in the beginning. His version of events was very different from the complainant’s version. He did not kick her in 2017. They went to see the doctor about a pain in her hands. On November 25, 2018 he arrived home at about 6 am. He went straight to sleep. The complainant woke him up. They had a disagreement about breakfast and he went to make his own breakfast. She was in the bedroom. He thought she said something so he went closer to the bedroom to ask what she said. Without warning, she told him to get out and slammed the door on his hand. He sustained a cut to his right hand. Photographs of his injury were entered into evidence. He eventually pushed his way into the bedroom. The complainant started to throw things at him. She kicked and punched at him. He tried to defend himself and grabbed her up close to restrain her. He grabbed her sweater. He never touched her body because she was pregnant. He testified that there was no argument. He did not choke her. In cross-examination the accused testified that he was “just trying to figure out why she left right now. I’m not quite sure exactly.” After a year she contacted him and said she wanted him to be a sperm donor. Then it transpired that she wanted to come home and have children with him. The following exchange occurred:
Q: Okay. Did you have a discussion when she called after a year, first, to ask you to be a donor, and secondly, to indicate that she actually wanted to com home? Did she indicate in any of those conversations as to why she had left?
A: We never spoke about why she left. She just call me and said she just want to – you know what to me to be a donor.
Q: And did you ask her why she had left.
A: No, I didn’t ask her that.
[6] The accused testified that he never asked her why she left even after she came back to live with him in mid-2018. He testified that he didn’t want to go back to a negative state, so he just stayed positive. The trial judge remarked on the long pauses after he was asked questions on that topic.
[7] The accused was also cross-examined about the alleged assault. He denied taking the knife with him into the bedroom. He testified that she told him to leave but did not give him a reason for it. He did not know why she began kicking and punching him.
[8] The trial judge, in his reasons, instructed himself in accordance with the principles in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. He found that the complainant was a credible witness. He accepted her version of events. In contrast, he did not believe the appellant, and he was not left with a reasonable doubt.
ISSUES AND ANALYSIS
[9] Ms. Donkor and Mr. Rudnicki, counsel for the appellant, say that the trial judge made three errors relating to the credibility of the witnesses:
(a) The trial judge made improper use of discreditable conduct evidence;
(b) The trial judge found that the complainant’s lack of exaggeration buttressed her credibility; and,
(c) The trial judge relied on his own experience of human relationships, and used that experience to draw “common sense” conclusions not grounded in the evidence.
[10] As I will explain, the trial judge made none of these alleged errors. The case turned on credibility. Trial judges are entitled to deference when assessing credibility. Credibility is a question of fact: R. v. R.(C.), 2010 ONCA 176 at para. 31. An appellate court should not interfere with a finding of fact in the absence of a palpable and overriding error: R. v. R.E.M. 2008 SCC 51 at para. 54. As the Supreme Court of Canada said in that case:
An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge's perceptions of the facts… "in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected". It is true that deficient reasons may cloak a palpable and overriding error, requiring appellate intervention. But the appellate court's point of departure should be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law.
[11] It is incredibly difficult to judge credibility. Some people are excellent liars. Some people are terrible liars. Some people are famously confident while making mistakes; others are accurate and yet lack confidence. Some people are honest but mistaken; some people routinely lie but in a particular case may recount evidence accurately. There is sometimes extrinsic evidence that can cast a light on credibility; but in many cases, like this one, there might be little or no extrinsic evidence. That is why the Court of Appeal in R. v. Cresswell, 2009 ONCA 95 stated:
Moreover, credibility findings are often difficult to explain and are the paradigm case for deference. The Supreme Court of Canada has directed that intervention by appellate courts will be "rare" and that reasons for credibility findings need not consider or answer each and every argument or each and every piece of evidence: R. v. R.E.M.
[12] It is for this reason that the Supreme Court of Canada has consistently reminded appellate courts that the trial judge is owed deference – something that this Court, despite being uniquely both a trial court and an appellate court, must also keep in mind. As Karakatsanis J. stated for the majority in R. v. G.F., 2021 SCC 20 at para. 5:
I would also take this opportunity to discourage the technical search for error and to re-affirm the importance of approaching a trial judge's reasons with sensitivity to the trial judge's role and advantage in making findings of fact and credibility.
[13] Karakatsanis J. later stated in G.F. at para. 76:
Despite this Court's clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged.
[14] Moreover, a trial judge’s reasons must be read as a whole. As Doherty J.A. stated in R. v. Morrissey (1995) 1995 3498 (ON CA), 97 C.C.C. (3d) 193, 222 O.R. (3d) 514 at para. 28:
… it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe a legal principle applied by the trial judge. Reasons for judgment must be read as a whole… Furthermore, they must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.
[15] Both counsel for the appellant articulated their arguments with clarity and skill. Respectfully, however, in effect they urge this Court to do what cases like G.F. and Morrissey discourage: going on a hunt for technical errors that require dissecting the reasons of the trial judge into small pieces and analyzing those pieces in isolation. The Crown concedes that some aspects of the reasons could have been phrased better. When read as a whole, however, the reasons disclose a considered and reasonable evaluation of the credibility of the complainant and the appellant.
[16] I turn to each of the alleged errors.
(a) Did the trial judge make improper use of discreditable conduct evidence?
[17] The Crown introduced evidence of the alleged 2017 assaults. The defence did not contest admissibility and, indeed, cross-examined the complainant on those alleged assaults. Ms. Donkor, the appellant’s counsel, does not criticize the admission of this evidence. Rather, she argues that the trial judge drew impermissible inferences from the prior discreditable conduct evidence without recognizing the associated dangers. She notes that there was no voir dire to discuss the limitations of the evidence. As this error constituted an error of law, it is reviewable on a standard of correctness. The trial judge’s main reference to the 2017 incidents was this:
In reviewing the evidence of Ms. Kasheka Wallace-Hall, I remind myself that this trial is about the events on November 25, 2018, though the previous events were significant and provided for much needed background with respect to the nature of their relationship and of the events leading up to their first separation and reconciliation. It did also provide the context and tools to assist me in the analysis of the witness’s credibility and reliability.
[18] It is the underlined portion that the appellant points to as problematic. The trial judge also referred to the complainant’s credibility when discussing the events of 2017.
[19] I agree that there were problems with the admission of the 2017 incidents. No voir dire was held. A voir dire is commonly held to determine the admissibility and use of discreditable conduct evidence. As this was a judge-alone trial, the voir dire could have been held in a blended fashion, and if admitted the evidence need not have been called twice. The benefit of a voir dire would have been that it would have at least set out the parameters for the use of the evidence. That said, defence counsel did not object to the calling of the evidence, and indeed cross-examined the complainant about it as part of advancing the defence theory. It would have been better if there had been a voir dire, or at least some discussion of the purpose and limits of the evidence prior to calling it. Because there was no voir dire, no similar fact application, no balancing of probative value and prejudicial effect (and no request to balance) the obvious inference is that everyone assumed that the evidence was called for the purpose of narrative only.
[20] Respectfully, however, I cannot agree that the trial judge drew impermissible inferences from the 2017 incidents. The trial judge was not required to state how he was instructing himself regarding every point of law that came up in the trial. Trial judges are presumed to know the law and do not need to expound on every legal point: see R. v. Morrissey at para. 28. Prior discreditable conduct evidence is presumptively inadmissible. That is because, as counsel for the appellant correctly points out, it carries the risk of moral prejudice (“the accused is a bad person and therefore more likely to have committed the crime”) and reasoning prejudice (“the accused has done bad things in the past and is therefore more likely to have committed the crime”): R. v. Handy, 2002 SCC 56 at para. 31. There is no suggestion that the trial judge fell into the error of either moral or reasoning prejudice. The error identified by the appellant is the use of the 2017 incident to judge credibility.
[21] Notwithstanding the rule, discreditable conduct evidence is often introduced in cases involving alleged domestic violence: R. v. J.H., 2020 ONCA 165. Watt J.A. listed some of those purposes at para. 55 of that case:
i. as part of the narrative of relevant events;
ii. to provide context for other evidence;
iii. to facilitate understanding of the nature of the relationship between the principals;
iv. to demonstrate motive or animus on the part of the accused for committing the offences;
v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and
vi. to rebut a claim of fabrication.
[22] The connection of the complainant’s credibility with the prior discreditable conduct was problematic but not fatal. As Cronk J.A. in R. v. R.(B.S.) (2006), 2006 29082 (ON CA), 81 O.R. (3d) 641 at para. 38:
In view of Handy, it would have been preferable had the trial judge not identified M.R.'s credibility generally as one of the issues in respect of which the discreditable conduct evidence was admissible. But the admission of this evidence was firmly anchored in its relevance to the other issues identified by the trial judge and outlined by the Crown in its factum. The evidence was admissible to explain the nature and dynamic of the relationship between the appellant and M.R., to demonstrate the appellant's animus toward M.R., to assist in explaining M.R.'s delay in fully disclosing the assaultive acts of her husband, and to rebut the appellant's claim of fabrication by M.R…
[23] It is true that R.(B.S.) dealt with the admissibility of the discreditable conduct evidence, rather than its use. That said, Cronk J.A. pointed out that the trial judge was entitled to use the evidence for multiple purposes. The real risk of the 2017 incidents was that the trial judge would, as the appellant suggests, use them to improperly burnish the complainant’s credibility. That is not what the trial judge did. The trial judge – as he stated in his reasons – used the evidence to give context to the allegations, as he was entitled to do. Moreover, as in R.(B.S.) the trial judge’s assessment of the complainant’s credibility was grounded in the totality of the evidence.
[24] The appellant relies on two appellate decisions as examples of error: R. v. Z.W.C., 2021 ONCA 116 and R. v. Fierro, 2013 BCCA 436. In Z.W.C., the Crown sought to introduce prior discreditable conduct evidence to give the jury necessary context to the relationship between the parties. The trial judge permitted the Crown to introduce evidence of the prior relationship between the parties, including detailed evidence of uncharged sexual and other assaults. Much of that evidence went well beyond that contemplated in the original admissibility ruling. The trial judge cautioned the jury regarding the moral prejudice of this evidence but said nothing about reasoning prejudice. Strathy C.J.O., for the Court of Appeal, found that the trial judge did not properly balance prejudicial effect and probative value regarding the potential reasoning prejudice of the evidence. As well, the admission of the evidence called for a much stronger instruction to the jury.
[25] In Fierro, the accused was a massage therapist who improperly touched the complainant. The Crown introduced, without objection or a voir dire, much discreditable conduct evidence. The evidence included accused’s supposed propensity to “use his profession to satisfy his sexual needs” in a “predatory manner”. The evidence also included – again, without a voir dire – uncharged instances of alleged sexual touching. Court of Appeal allowed the appeal on the grounds that the trial judge failed “recognize the potential prejudice of the evidence going to bad character and propensity, and by relying on it in his assessment of credibility without cautioning himself as to its dangers”: see para. 21.
[26] With respect, Z.W.C. and Fierro are distinguishable from this case. Z.W.C. involved a large volume of uncharged conduct – much admitted without a voir dire – without a proper jury instruction. That was very different from the one, limited incident in this case. As well, in a judge-alone trial the dangers of moral prejudice and reasoning prejudice are much reduced: R. v. M.(J.), 2010 ONCA 117. In any event, there is no suggestion, as I have already pointed out, that the trial judge fell into that error regarding the 2017 incidents. Fierro is also distinguishable. It was not a domestic case where the disreputable conduct evidence could be received to give nature and context to the relationship: see J.H. at para. 55. As well, the trial judge in that case gave virtual licence to the Crown to cross-examine on prior discreditable conduct without any limitation or instruction. That is not what happened here.
[27] Furthermore, analyzing the trial judge’s single comment in this manner risks taking the approach that Doherty J.A. warned against in Morrissey and the Supreme Court has reiterated in G.F. The reasons do not suggest that the trial judge used the discreditable conduct evidence to improperly buttress the complainant’s credibility. I agree it would have been better if the trial judge had not referred to the complainant’s credibility in relation to the 2017 incidents, but the entirety of the trial judge’s reasons disclose that he accepted the complainant’s evidence based on the whole of the evidence, which he was entitled to do.
(b) Did the the trial judge improperly find that the complainant’s lack of exaggeration buttressed her credibility?
[28] The trial judge commented that the complainant had several opportunities to embellish her evidence, exaggerate, or make things sound worse than they were. He gave an example: the complainant testified that the appellant was holding a knife when he approached her. He had been chopping vegetables. The complainant testified that he did not use it or threaten her with it. In fact, she believed he did not realize he was still holding the knife.
[29] The appellant argues that the trial judge used the complainant’s lack of exaggeration to burnish her credibility. Respectfully, I disagree. The trial judge did not use the lack of exaggeration to “enhance” the complainant’s credibility: R. v. Alisaleh, 2020 ONCA 597 at para. 17. What the trial judge did was to comment on it as part of an assessment of what he called her measured and careful testimony. He went no further.
[30] It is an error of law to use the lack of embellishment as a “makeweight in favour of credibility”: R. v. Kiss, 2018 ONCA 184 at para. 53. That would amount to an error of law: R. v. G.(R.), 2008 ONCA 829 at para. 52. As Paciocco J.A. stated in Kiss at paras. 52-53:
The trial judge would have erred if he treated the absence of embellishment as adding to the credibility of K.S.’s testimony. It is wrong to reason that because an allegation could have been worse, it is more likely to be true… While identified exaggeration or embellishment is evidence of incredibility, the apparent absence of exaggeration or embellishment is not proof of credibility. This is because both truthful and dishonest accounts can appear to be without exaggeration or embellishment… On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible.
[31] I do not interpret the trial judge’s single comment as falling into the error of embellishment. The trial judge never said that he found the complainant’s lack of embellishment enhanced her credibility. He made as part of a comment that she was measured and careful in her testimony. That is not the same thing as embellishment. As Ms. Donkor herself very fairly commented, this alleged error is not as clear as the other errors alleged by the appellant. In my respectful view, it was not an error at all.
(c) Did the trial judge improperly rely on “common sense”?
[32] Mr. Rudnicki argued this point on behalf of the appellant. He argued that the trial judge erred in two respects when evaluating the credibility of both the complainant and the appellant: first, he relied on ungrounded common sense assumptions. And second, he relied on stereotypical inferences about human behaviour. These are overlapping errors. He points to five specific examples that he says show the trial judge erred in law.
[33] Respectfully, I do not agree that the trial judge made the errors identified by the appellant. In my view, when the reasons are read as a whole it is clear that the trial judge’s credibility findings and references to common sense were grounded in the evidence.
[34] A trial judge is permitted to use common sense and personal experience when evaluating evidence. On the one hand judges may use common sense and wisdom gained from personal experience to observe and judge credibility. On the other hand, judges must avoid judging credibility based on generalizations or matters not in evidence: R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484 at paras. 129-130.
[35] There are two overlapping legal rules that flow. These are the rule against ungrounded common sense assumptions, and the rule against stereotypical inferences: R. v. J.C., 2021 ONCA 131. The first means that judges may not use “common sense” or human experiences “to introduce new considerations, not arising from the evidence, into the decision making process, including considerations about human behaviour”: see J.C. at para. 61. The second means that judges cannot make determinations of credibility based on stereotypical inferences about human behaviour: see J.C. para. 63.
[36] But what is meant by common sense? The Merriman-Webster dictionary defines “common sense” as:
Sound and prudent judgment based on a simple perception of the situation or facts.
[37] People often confuse common sense with conventional wisdom. Common sense is not the same thing as conventional wisdom. The Merriman-Webster dictionary defines “conventional wisdom” as:
The generally accepted belief, opinion, judgment, or prediction about a particular matter.
[38] Conventional wisdom may be a stereotypical assumption about human behaviour. People often assume that the conventional wisdom is just common sense, but conventional wisdom obviously shifts as times change. The former conventional wisdom about the behaviour of sexual assault victims is now considered myth and stereotype. Parliament has prohibited the use of those myths and stereotypes in sexual assault cases.
[39] I think it is also important to point out that trial judges routinely tell juries to use common sense in their approach to their deliberations. Trial judges do not, however, typically instruct juries about the difference between “common sense” based on stereotypical assumptions or conventional wisdom, and common sense grounded in the evidence. And yet, the most salient feature of the jury system is that it depends on the collective common sense of the jurors.
[40] For example, Justice Watt’s model jury instructions on Duties of Judge and Jury state:
You are entitled to come to common sense conclusions based on the evidence that you accept.
[41] As another example, the Canadian Judicial Council model jury instructions on Presumption of Innocence, Burden of Proof, and Reasonable Doubt state:
Now what does the expression “beyond a reasonable doubt” mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.
[42] The Canadian Judicial Council model jury instructions on Assessment of Evidence state:
When you go to the jury room to consider the case, use your collective common sense to decide whether the witnesses know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’s testimony or how much to rely on it in deciding this case. But here are a few questions you might keep in mind during your discussions.
[43] In his model jury instruction on Assessment of Evidence, Justice Watt advises instructing juries that:
When you go to your jury room to consider the case, use the same common sense that you use every day in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’ testimony or how much to rely on it in deciding this case.
[44] In his model jury instruction on Prior Inconsistent Statements of Non-Accused Witness (Impeachment/Credibility), Justice Watt advises instructing juries that:
When a witness says one thing in the witness box, but has said something (you find to be) quite different about the same event(s) (thing) on an earlier occasion, your common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe of or rely upon the witness’ testimony.
[45] The Canadian Judicial Council model jury instructions on prior inconsistent statements say much the same thing.
[46] Finally, both Justice Watt and the Canadian Judicial Council urge juries to use their common sense in assessing the credibility of witnesses. Both use very similar language. In his model jury instruction on Assessment of Evidence, Justice Watt advises instructing juries that:
When you go to your jury room to consider the case, use the same common sense that you use every day in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’ testimony or how much to rely on it in deciding this case.
[47] That said, there may be no bright line between common sense grounded in the evidence and drawing inferences from stereotypes. The Supreme Court recognized this point in R.D.S. at para. 128:
It is, of course, true that the assessment of the credibility of a witness is more of an “art than a science”. The task of assessing credibility can be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed. It has been held that “[t]he issue of credibility is one of fact and cannot be determined by following a set of rules . . .”: White v. The King, 1947 1 (SCC), [1947] S.C.R. 268, at p. 272. It is the highly individualistic nature of a determination of credibility, and its dependence on intangibles such as demeanour and the manner of testifying, that leads to the well-established principle that appellate courts will generally defer to the trial judge’s factual findings, particularly those pertaining to credibility.
[48] The Court of Appeal very recently dealt with the issue of a common sense instruction. In R. v. J.A., 2022 ONCA 445, a father had killed one child and attempted to kill another using intoxicating and noxious substances. The main issue was the father’s intent. The trial judge had instructed the jury:
To help you determine whether Crown counsel has proven beyond a reasonable doubt that [the accused] meant to kill [his son] when he gave him the sleep medication and alcohol drink, you may conclude, as a matter of common sense, that a person usually knows that [sic] the predictable consequences of his conduct are, and means to bring them about.
[49] The appellant had argued that the instruction was erroneous because death or bodily harm were not a predictable consequence of administering the noxious substances to the children. The Court of Appeal rejected that point at paras. 12-14:
It is important to remember that the purpose of such an instruction is simply to give a jury but one tool that they could use to assist them in understanding how an accused's actions may support an inference of subjective intent… Before a jury can be told that they may draw a common-sense inference about subjective intent, a trial judge must be satisfied, having regard to the applicable evidence (i.e., toxicology) and common human experience, that it is reasonably open to the jury to conclude that death or bodily harm likely to cause death is a predictable or probable consequence of the accused's actions. Here, the trial judge was satisfied that that inference was available to the jury. Again, he did not tell them they had to draw that inference, just that they could, which was appropriate in the circumstances.
[50] In my respectful view, the lesson to be drawn from both J.A. and J.C. for an appellate court reviewing a trial judge’s credibility findings is simply this: an inference about credibility, based on the evidence and not tainted by unfounded stereotypical assumptions (in other words, common sense) is entitled to deference.
[51] Bearing these points in mind, I turn back to the five examples of alleged error. Respectfully, they amount to another microscopic examination of the trial judge’s reasons, without examining the larger context. In my view, each comment is plainly understandable when placed in context. When the reasons are read as a whole, they do not reflect error. I will deal with each comment in the order set out in the appellant’s factum.
[52] First, the appellant argues that the trial judge erred by finding that the appellant’s recounting of events early in the relationship with the complainant “defied common sense”. I do not agree that this was an error. The appellant testified that his relationship with the complainant was idyllic and involved no conflict at all. The complainant testified to the opposite – that there had been significant conflict. The trial judge contrasted the complainant’s version of events – he found it was believable and corroborated by extrinsic evidence – with the appellant’s idyllic view. A proper reading of the reasons is that the trial judge found that the appellant’s evidence defied common sense when contrasted with the other evidence – a perfectly legitimate finding that was open to him, as it was grounded in the evidence.
[53] Second, the appellant argues that trial judge erred by finding that it “stretched the bounds of credibility” that the appellant did not try to understand the complainant’s motivation to separate from him. I do not agree that this was an error. The appellant testified in both chief and cross-examination that he did not know why the complainant left him. He also testified that he never asked her. When the reasons are read as a whole, it is clear that the trial judge simply did not believe the appellant when set against the totality of the evidence. The trial referenced common human experiences such as death, divorce, and other difficult experiences but it is clear that he had regard to the whole of the evidence.
[54] Third, the appellant argues that trial judge erred by finding that the complainant’s explanation of why she did not report prior allegations to the police was consistent with “the experiences of newcomers that are not uncommon in our society.” She was new to Canada and the appellant had sponsored her immigration. Frankly, if a trial judge sitting in a busy provincial court in Canada’s largest and most diverse city is not qualified to make that observation, I’m not sure who is.
[55] Fourth, the trial judge found that the complainant’s version of events was more “plausible because it is reflective of the experience of human relationships and arguments.” The appellant argues that this was also an error. Again, this comment must be seen in the context of the reasons as a whole. The trial judge was explaining why he found the complainant’s version of events to have an air of reality and plausibility – how their argument escalated from a dispute over breakfast to a physical confrontation. The trial judge said:
It’s a serious [sic] of events that is plausible because it is reflective of the experience of human relationships and arguments. The allegations of arguments that rises to the level of name calling and escalates to violence, as she testifies in this case, was believable and I accept her testimony on that basis.
[56] The trial judge, in my view, was making what Paccioco J.A. in J.C. as a common sense conclusion grounded in the evidence given by the complainant, and not on inferences drawn from stereotypes.
[57] Fifth, and finally, the appellant argues that trial judge erred when he found that the appellant’s version of events was “beyond the experience of human affairs and therefore lacked an air of reality.” Again, this comment must be seen in the overall context of the reasons and the trial. The trial judge gave a very comprehensive set of reasons for finding that the appellant lacked credibility. This comment came at the end of that long list. It was one reason among many. While perhaps not phrased as elegantly as it could have been, it was certainly grounded in the evidence. The trial judge related his conclusion to the evidence. In my view, the trial judge made no error, especially when the reasons are read as a whole.
DISPOSITION
[58] I think it is important to make some observations about the position of the trial judge in this case. This case was heard at the College Park courthouse in downtown Toronto. College Park is a very busy urban courthouse. Judges of the Ontario Court of Justice who sit in that court experience a high volume of these types of cases. Notwithstanding the demands on the time of the judges of that Court, the trial judge took the time to listen to the audio of this routine, simple domestic assault trial to be sure of his findings. It will not do for an appellate court to shred the notion of deference by second guessing routine credibility findings made after fair trials or by isolating comments from the whole of the reasons. One can usually find things that can be phrased better. An appellate court ought not to shy away from finding an error of law where a trial judge makes one. A comment that is merely phrased poorly, could have been expressed better, or is simply something upon which reasonable people can disagree is not an error of law.
[59] The appeal is dismissed.
Released: June 24, 2022
COURT FILE NO.: CR-21-70000017-00AP
DATE: 20220624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CLIVE HALL
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.