Court File and Parties

COURT FILE NO.: CR-20-74-00AP DATE: 20230502 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Patience Meadows Appellant – and – HIS MAJESTY THE KING Respondent

Counsel: Fady Mansour and Vanessa Garcia, for the Appellant Jennifer Armenise, for the Respondent

HEARD: January 30, 2023 Justice Alexander Sosna

[1] The Appellant, Patience Meadows (“Meadows”), appeals and seeks to set aside the November 19, 2019 conviction of Assault Causing Bodily Harm, contrary to section 267 (b) of the Criminal Code.

Summary of Facts

[2] On November 8, 2018, Corey Suter (“Suter”), discovered Meadows in his home, in the company of Amber Clough (“Clough”) with whom he believed he had relationship with. Suter had never met or seen Meadows before.

[3] Meadows advised Suter that he was Clough’s boyfriend. Sutter demanded that Meadows immediately leave his home. Suter then retrieved a knife and lunged at Meadows. Meadows attempted to disarm Suter and a vicious fight ensued in which both received injuries.

[4] Multiple punches were exchanged. Meadows was able to disarm Suter. Meadows sustained cuts to his hands from grabbing the knife.

[5] Suter then went to a bathroom to wash the blood off himself, and Meadows followed. The fight continued during which Meadows broke his hand or knuckle. Suter testified that Meadows severely beat him in the bathroom, causing him further injury.

[6] Meadows denied assaulting Suter in the bathroom. There were no witnesses to the bathroom assault.

[7] Chris Lamabe (“Lamabe”) lived in an apartment above Suter and Clough’s unit. He testified he heard banging downstairs. Shortly thereafter when answering the doorbell, Lamabe observed Suter at the door bleeding. He escorted Suter into his unit and called an ambulance. When the ambulance arrived, Suter left Lamabe’s unit.

[8] Sometime after Suter left, Lamabe heard a male voice say, “I’m not fucking done with you yet”. Lamabe did not see the speaker, did not know where the voice came from, but knew the voice was not Suter’s.

[9] At trial, Meadows testified that, he was acting in self-defence when he repelled Suter’s attacks. He denied making the statement, “I’m not fucking done with you yet”. Meadows was not challenged and not cross-examined by the Crown regarding his denial of the utterance.

[10] Meadows was found guilty of Assault Causing Bodily Harm.

The Position of the Parties

The Appellant

[11] The Appellant submits that the learned trial judge erred in finding that it was he who uttered to Suter; “I’m not fucking done with you yet”. The Appellant submits this finding is not borne out in the evidence.

[12] In the alternative, if no error was made, the learned trial judge erred by inferring that the utterance, as circumstantial evidence, was inconsistent with the Appellant’s assertion of self-defence, but determinative of his state of mind to “[exact] revenge and physical retribution for having been confronted and assaulted with a knife”.

[13] The Appellant submits that the error is significant, since the learned trial judge failed to consider any other reasonable inference that could arise from the utterance, including inferences inconsistent with the Appellant’s guilt.

[14] The Appellant relies on the test for unreasonable verdict as derived from s. 686(1)(a) of the Criminal Code, as well as the Yebes test as outlined in R. v. Binaris, 2000 SCC 15, 1 S.C.R. 381. Section 686(1)(a) of the Criminal Code holds in part:

686 (1) On the hearing of an appeal against a conviction … the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

[15] The Yebes test, as outlined in Binaris, holds, in part, at para. 37:

The Yebes test is expressed in terms of a verdict reached by a jury. It is however, equally applicable to the judgement of a judge sitting at trial without a jury…in trials by judge alone, the court of appeal often can show and should identify the defects of the analysis that led the trial of fact to an unreasonable conclusion. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle…

[16] Lastly, the Appellant argues that because the Crown elected not cross examine the Appellant on the utterance, the Crown breached the rule in Browne v. Dunn; depriving the Court of information relating to the Appellant’s credibility, an issue central to the final verdict. As a result, the trial judge was left with a vacuum of information that compromised the accuracy of the verdict.

[17] The Appellant submits that the appeal be allowed, and the conviction set aside.

The Crown

[18] The Crown submits that the standard of review for findings of fact calls for deference, and the Court should only intervene where there is a palpable and overriding error.

[19] Given the credibility findings and Suter’s injuries, the Crown contends there has been no substantial wrong or miscarriage of justice, and seeks the appeal be dismissed citing s. 686(1)(b) of the Criminal Code, which holds:

686 (1) On the hearing of an appeal against a conviction…the court of appeal (b) may dismiss the appeal where (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred…

[20] The Crown agrees that the court should only intervene where there is a palpable and overriding error but submits the learned trial judge made no error in his finding of fact when he held that it was the Appellant who made the disputed statement, “I’m not fucking done with you yet”.

[21] Further the learned trial judge did not err in his analysis of the utterance finding it inconsistent with the Appellant’s claim of self-defence, but determinative of his state of mind focused, “… on payback, an intention to exact revenge and physical retribution for having been confronted and assaulted with a knife”.

[22] In taking into consideration the rest of the evidence including the utterance, the trial judge further held:

It is Patience Meadows’ words “I’m not fucking done with you yet” along with the other evidence that I do accept, including the photographs, the evidence documenting Cory Suter’s injuries and Patience Meadow’s injuries that establish Mr Meadow’s guilt beyond a reasonable doubt.

[23] The Crown argues that, in electing not to cross-examine Meadows on the disputed statement, “I’m not fucking done with you yet”, the rule in Browne v. Dunn was not breached, as the Crown has no obligation to cross-examine any witness at trial.

[24] Lastly, an appellate court must assess all the evidence that was considered by the trier of fact prior to determining that a conviction cannot be reasonably supported and that the trial court’s verdict should be overturned.

[25] The Crown submits that the learned trial judge made no errors, and requests that the appeal be dismissed.

Issues to be Determined

(a) Did the learned trial judge err in admitting into evidence the utterance, “I’m not fucking done with you yet”, as being made by the Appellant?

[26] It is open for the trier of fact to accept some, none, or all the evidence of any witness. The test on appellate review is whether the factual findings made by the trial judge could have reasonably been reached based on the evidence: see R. v. Tat, [1997] O.J. No. 3579 (OCA).

[27] On issues of credibility, appellate deference is justified, and must be shown to the trier of fact given their advantage in seeing and hearing the witnesses’ evidence.

[28] The Appellant testified in chief and denied making the utterance. Lamabe testified the utterance was not voiced by Suter. The learned trial judge found Lamabe to be a credible and reliable witness, whose evidence was not undermined in cross examination.

[29] In accepting Lamabe’s testimony regarding the utterance, the learned trial judge rejected the Appellant’s denial of the utterance, finding that the only males present when the utterance was made were the attending ambulance personnel treating Suter for his injuries, and the Appellant who admitted he was in the immediate vicinity.

[30] I find that the trial judge made no palpable and overriding error in his analysis that would have this court interfere with the finding that “he was satisfied beyond a reasonable doubt that the utterance” were the words of Patience Meadows, and thus admissible into evidence.

(b) In not cross examining the Appellant regarding his denial of the utterance, did Crown counsel breach the rule in Browne v. Dunn rendering the trial unfair?

[31] The evidence of the utterance, as previously reviewed, was provided by Lamabe during the Crown’s case. In examination-in-chief, the Appellant denied making the utterance. The following questions were put to the Appellant by his counsel.

Q: Finally, there’s some remark heard by somebody, “I’m not done with you yet”. Did you make that remark? A: No, sir. Q: Do you know what they’re talking about? A: No. (Proceedings at trial October 25, 2019, page 108, lines 11-15).

[32] Crown counsel elected not to cross-examine the Appellant regarding his denial of the utterance.

[33] If counsel wishes to impeach a witness in cross-examination on any evidence, counsel must follow the rule in Browne v. Dunn, which stands for the proposition that the examiner give notice to the witness that is sufficient to alert the witness that impeachment is being sought, and that the witness be given opportunity to explain why contradictory evidence or inferences sought to be drawn should not be accepted: see R. v. Dexter, 2013 ONCA 744, at para. 17.

[34] There is no requirement that the Crown cross-examine a witness on any evidence. The Court of Appeal for British Columbia in R. v. Mette at p. 712 rejected the proposition that a witness’ testimony should not be considered because they were not subjected to cross-examination, stating:

I can see no reason or logic in any view that a judge may not reject evidence which he disbelieves merely because it has not been cross-examined upon.

[35] Further, as held in R. v. Quansah, 2015 ONCA 237, at para. 90, “a trial judge is best suited to take the temperature of a trial proceeding and to assess whether any unfairness has been visited on a party because of the failure to cross-examine.”

[36] A trial judge has the discretion to accept all, part, or none of the evidence of any witness.

[37] The learned trial judge was entitled to accept Lamabe’s evidence that he heard the utterance, “I’m not fucking done with you yet”, and reject the Appellant’s evidence denying the utterance, regardless of whether or not the Appellant was cross-examined on that specific point.

[38] Contrary to the Appellant’s submission, the failure of the Crown to cross examine the Appellant on the utterance, was not a breach of the rule in Browne v. Dunn, rendering the trial unfair, by depriving the Court of information regarding the Appellant’s credibility, a central issue to his plea of self-defence.

(c) Did the learned trial judge err in inferring that the utterance, “I’m not fucking done with you yet”, was inconsistent with Meadow’s assertion of self-defence, and determinative of Meadow’s intent to assault Sutter?

[39] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, and subsequently in R. v. Smart, 2022 ONSC 2991 both courts provided direction regarding the inferences capable of being drawn from circumstantial evidence.

[40] In Villaroman, at para. 35, the court held in part:

The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s case does not meet the standard of proof beyond a reasonable doubt.

[41] Further, in Smart, at paras. 162-163, the court held:

The trier of fact must consider other plausible theories and reasonable possibilities inconsistent with guilt that arise from the evidence or lack of evidence; Villaroman at paras 30, 35-37…

…the "basic question" for the trier of fact "is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty": Villaroman, at para. 38.

[42] In finding the Appellant guilty, the trial judge concluded,

…[The utterance] is the one piece of evidence that came out in this trial that speaks of no other reasonable inference other than as an expression of Patience Meadows’ mindset of pay back, of an intention to exact revenge and physical retribution for having been confronted and assaulted with a knife …There is no inference or interpretation to those words that I find are reasonably capable of being interpreted as being in keeping with Patience Meadows having assaulted Cory Suter in self-defence….

[43] As held in Smart, at para. 162,

The Crown's case must neutralize such alternative interpretations of the circumstantial evidence for the accused to be found guilty: Villaroman, at para. 37. However, the Crown is not required to negate "every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8, see also Villaroman, at para. 37.

[44] It is trite to observe that the Crown bears the burden of proving the Appellants guilt beyond a reasonable doubt. In electing not to cross-examine Meadows regarding the utterance and the surrounding circumstances, the Crown did not, as directed at para. 62 of Smart, “neutralize such alternative interpretations of the circumstantial evidence for the accused to be found guilty”.

[45] The available inferences to be drawn from circumstantial evidence may be multiple, may be consistent with innocence, and could raise a reasonable doubt. Those inferences may arise from the proven facts and from the lack of evidence: see R. v. Elmosri. A reasonable doubt is not rendered speculative by the mere fact that it arises from a lack of evidence: see R. v. Lifchus, [1997] 3 S.C.R. 320.

[46] As already reviewed, the learned trial judge held in part, “There is no inference or interpretation to those words [in the utterance] that I find are reasonably capable of being interpreted as being in keeping with Patience Meadows having assaulted Cory Suter in self-defence…”.

[47] It cannot be found that the learned trial judge’s interpretation of the utterance was an unreasonable one. To the contrary, in relation to the other evidence, the trial judge’s interpretation of the utterance was one of the reasonable inferences that could be drawn in finding Meadow’s guilty.

[48] However, the learned trial judge did not consider that the words spoken may not align with Meadow’s intent during the altercation.

[49] For example, Meadows could have acted in self-defence, and the utterance referred to retribution other than physical retribution. For instance, the utterance could have indicated that Meadows would seek criminal charges, or pursue a civil action, resulting from the injuries he sustained in the altercation including being attacked with a knife. Alternatively, Meadows could have made the utterance out of anger after the altercation ceased, and in that moment, the utterance was not representative of Meadow’s “payback” to assault Suter, as found by the trial judge.

[50] I find the above possible inferences, “… viewed logically and in light of human experience, [are] reasonably capable of supporting an inference other than that the accused is guilty”: see Smart, at paras. 162-163; Villaroman, at para. 38.

[51] None of the above inferences were neutralized by the Crown in the prosecution of its case. Again, as held at para. 162, in Smart:

The Crown's case must neutralize such alternative interpretations of the circumstantial evidence for the accused to be found guilty: Villaroman, at para. 37.

[52] As held at para. 35 of Villaroman,

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[53] In addition to the neutralization issue, there were no alternate inferences, as addressed above, or others considered and canvassed in the trial judge’s reasons when he found the Appellant guilty. The trial judge held, in part:

The utterance is the one piece of evidence that…speaks of no other reasonable inference other than an expression Patience Meadows’ mindset ….to exact revenge and physical retribution for having been confronted and assaulted with a knife…There is no inference or interpretation that I find are reasonably capable of being interpreted as being in keeping with Patience Meadows having assaulted Cory Suter in self-defence…

[54] In summary, as held in Villaroman, when a trier of fact analyzes other plausible theories from the circumstantial evidence, it is the Crown’s case that must neutralize such alternative interpretations to prove that there is only one reasonable inference that can be drawn. In the present matter, the issue is two-fold, the trier of fact failed to analyze any other plausible theories, and the Crown failed to neutralize any alternative interpretations: see Smart, at para. 162.

[55] For the above reasons, I find the trial judge erred in inferring that the utterance “I’m not done with you yet” was inconsistent with Meadow’s assertion of self-defence, and determinative of Meadow’s intent to assault Sutter.

Conclusion

[56] I have already found that the trial judge erred when he concluded,

The utterance, [I’m not fucking done with you yet”] is the one piece of evidence that…speaks of no other reasonable inference other than an expression Patience Meadows’ mindset ….to exact revenge and physical retribution for having been confronted and assaulted with a knife…There is no inference or interpretation that I find are reasonably capable of being interpreted as being in keeping with Patience Meadows having assaulted Cory Suter in self-defence…

[57] The learned trial judge also held:

But I have to say I do not believe that once the knife was out of Cory Suter’s hand that the altercation ended. That conclusion doesn’t rely on the credibility of Cory Suter or Amber Clough or Patience Meadows. If I only had that evidence before me, the Crown could not in my view, established beyond a reasonable doubt that Mr. Meadows was not acting in self-defence.

[58] In other words, without admission of the inference, drawn in error by the trial judge, and the rest of the evidence which included “…the photographs, the evidence documenting Cory Suter’s injuries and Patience Meadow’s injuries…” the learned trial judge would not have been satisfied beyond a reasonable doubt that Appellant was not acting in self-defence when Suter was assaulted.

[59] In finding that the trial judge erred in holding that the only reasonable inference to be drawn from the utterance was that the Appellant was not acting in self-defence, as well as the Crowns failure to negate other reasonable inferences, the appeal is allowed, and the conviction is set aside.

Justice Alexander Sosna Released: May 2, 2023