COURT FILE NO.: CR-22-0106-00AP DATE: 2024 02 28
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: His Majesty the King M. McGuigan, counsel for the Crown
– and – D.R. C. Levien, counsel for D.R.
HEARD: February 20, 2024
REASONS FOR JUDGMENT
Conlan J.
[1] This is a summary conviction appeal brought by the Crown.
I. The Proceeding in the Ontario Court of Justice
[2] The accused, D.R., was charged that he, on or about the 23rd day of June in the year 2020, at the Town of Oakville, did,
(i) in committing an assault against his spouse, T., choke her, contrary to section 267 (c) of the Criminal Code;
(ii) commit an assault on T., contrary to section 266 of the Criminal Code;
(iii) without lawful authority, confine T., contrary to section 279(2) of the Criminal Code; and
(iv) by verbal means knowingly utter a threat to T., to cause death to T., contrary to section 264.1(1) (a) of the Criminal Code.
[3] The trial was held in Milton and in Burlington, Ontario on January 31, 2022 (very briefly – no evidence was called), February 1, 2022, February 2, 2022, June 1, 2022, and June 2, 2022.
[4] On February 1, 2022, T., the complainant, testified for the Crown. Two exhibits were entered during her evidence – (i) a drawing that she made showing where she was in the couple’s bedroom when she was talking to D.R., shortly before he allegedly grabbed her and choked her, and (ii) 17 photos of injuries allegedly sustained by T. during the course of the attack on her by D.R.
[5] On February 2, 2022, T.’s evidence was thought to have been completed, and D.R.’s evidence was commenced.
[6] On June 1, 2022, the defence re-called T. to give further evidence. An additional exhibit was entered during the questioning of T. by defence counsel – two pages, heavily redacted, of typed case notes from a child protection worker.
[7] On June 1, 2022, after the evidence of T. was finally completed, D.R. testified, and his cross- examination by the Crown continued on June 2, 2022. During the evidence of D.R., one further exhibit was entered – the bedroom drawing referred to above as amended by D.R.
[8] The final witness to testify at trial was called by the defence on June 2, 2022 – a lady named J. That witness was a neighbour of D.R. and T. and had an encounter with T. that took place not long after the alleged attack committed against her by D.R.
[9] When the evidence concluded on June 2, 2022, after the lunch recess, counsel delivered their oral closing submissions. At the conclusion of the closing submissions of counsel, the trial judge gave oral reasons for judgment, rendering verdicts of not guilty on all four counts against the accused.
[10] In summary, although heard on multiple days, the trial was relatively simple and straightforward. The complainant testified and gave evidence that, if accepted, supported all four counts. The accused testified and gave evidence that, if accepted, denied all four counts. A third witness testified, J., who did not see or hear the alleged altercation but who offered evidence about T.’s condition and her demeanour in the immediate aftermath of the incident.
[11] The submissions of both trial counsel focused on the credibility and reliability of the witnesses, mainly T. and D.R. The Crown urged the trial judge to find that D.R. was neither a reliable nor a credible witness (page 93 of the trial transcript from June 2, 2022) and to accept the evidence of T. Defence counsel, on the other hand, urged the trial judge to prefer the evidence of D.R. over that of T. (pages 78-79 of the trial transcript from June 2, 2022).
II. The Decision of the Trial Judge
[12] The trial judge’s oral reasons for judgment were undoubtedly brief, comprising less than three full pages of transcript.
[13] Of course, sufficiency of reasons is not measured by their length. The Crown has not appealed on the basis of insufficient reasons.
[14] The evidence being very fresh in the mind of the trial judge, the court structured its decision in the following manner.
[15] First, the charges were reviewed. The Crown takes no issue with that portion of the decision.
[16] Second, the basic legal principles were explained – (i) the onus of proof (on the Crown), (ii) the standard of proof (beyond a reasonable doubt), and (iii) W.D. The Crown, likewise, takes no issue with that portion of the decision.
[17] Third, several frailties in the evidence of T. were then summarized by the trial judge:
(i) she had denied hitting D.R. in the head in 2019 when it was clear that she did;
(ii) she denied being interviewed by the child welfare agency about that same incident when clearly she had been interviewed;
(iii) her evidence about why, on the alleged offence date but before the alleged attack had occurred, she stopped the motor vehicle in the middle of the road, causing D.R. to have to take over the driving of the couple and their two children, was unbelievable;
(iv) her evidence about her alleged injuries sustained from the attack by D.R. was unbelievable, given the evidence of the neighbour, J.; and
(v) her evidence about her demeanour and her steadiness/balance, or lack thereof, immediately after the attack by D.R. was also unbelievable, given the evidence of J.
[18] The Crown takes issue with some of these findings made by the trial judge.
[19] Fourth, the trial judge concluded that both T. and D.R. were relatively “convincing witnesses”; that it was difficult to believe one over the other; and that the evidence of D.R. had left the court in a state of reasonable doubt (page 101 of the trial transcript from June 2, 2022).
III. The Arguments on Appeal
[20] Ms. McGuigan, not the trial Crown, helpfully focused the appeal on just two points, effectively abandoning the other grounds of appeal advanced in the Notice of Appeal and in the Crown’s factum.
[21] Those two points are that:
(i) the trial judge allowed the defence to introduce inadmissible and irrelevant collateral evidence and then improperly relied upon that evidence as a basis for doubting the complainant’s credibility [page 3 of the Crown’s factum, paragraph 2(a)]; and
(ii) the trial judge allowed the defence to adduce bad character and propensity evidence against the complainant while denying the Crown the opportunity to introduce bad character evidence about the accused, or even to bring the application [page 3 of the Crown’s factum, paragraph 2(b)].
[22] The remedy sought by the Crown is an order for a new trial.
IV. The Jurisdiction of this Court, and the Burden and the Standard of Review
[23] This appeal is governed by Part XXVII of the Criminal Code. The appeal is advanced under subsection 813 (b)(i) of the Criminal Code. In that subsection, the expression “dismisses an information” includes a verdict of acquittal.
[24] The powers of this Court are set out in section 822(1) of the Criminal Code, incorporating by reference the powers of a court hearing an indictable appeal as set out in section 686 of the Criminal Code. Under section 822(2) of the Criminal Code, this Court may order a new trial which, if ordered, by presumption, shall take place before the summary conviction court but not before the same trial judge.
[25] The Crown’s appeal to this Court may be based on an error in law, an error in mixed fact and law, and/or an error in fact. The burden is on the Crown, the appellant, to persuade this Court that there is a basis for its intervention.
[26] Questions of law are generally reviewed on a standard of correctness. Factual findings made by the trial judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. An appeal is not a retrial. R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6. In assessing the sufficiency of the evidence in support of a finding made by the trial judge, the jurisdiction of the summary conviction appeal court is limited. This Court has no basis to interfere unless the trial judge’s finding is unreasonable or unsupported by the evidence. R. v. Smits, 2012 ONCA 524, at paragraph 67; R. v. Polcano, 2018 ONCA 444, at paragraph 20; R. v. O’Meara, 2012 ONCA 420, at paragraph 36. The function of this Court is to determine whether the trial judge could reasonably have reached the conclusion that he did. R. v. Grosse (1996), 29 O.R. (3d) 785 (C.A.), 1996 ONCA 6643, at pages 791-792; R. v. W.(R.), [1992] 2 S.C.R. 122, 1992 SCC 56, at pages 131-132. It must be recognized that the trial judge had the advantage of seeing and hearing the witnesses. This Court can examine the trial transcript, but I cannot substitute my own findings of fact where there was a basis for those reached by the trial judge. Put another way, if there was an evidentiary basis upon which the findings could reasonably have been made, this Court cannot interfere. R. v. Salerno, [2000] O.J. No. 3511 (S.C.J.), at paragraph 7; R. v. Reid, 2019 ONSC 2165, at paragraph 29.
[27] A palpable and overriding error in fact may arise where it can be said that the finding is clearly wrong in that it is unsupported by the evidence or otherwise unreasonable. R. v. Clark, 2005 SCC 2, at paragraph 9.
[28] Credibility findings are particularly within the purview of the trial judge. Credibility is usually assessed on the bases of factual findings, and the trial judge, unlike the appellate court, has the advantage of having seen and heard the witnesses. “Appellate deference on issues of credibility is justified”, therefore. R. v. Giannakopolous, 2022 ONSC 3826, at paragraph 24.
[29] A trial judge’s misapprehension of evidence is either an error in fact or an error in mixed fact and law, depending on the circumstances. R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (ONCA), 1995 ONCA 3498, at page 221. “Not all misapprehensions of evidence constitute a reversible error or necessitate appellate intervention”, however – it must be found that the misapprehension played an essential part in the reasoning process that resulted in the verdict. Giannakopolous, supra, at paragraph 26; R. v. Lohrer, [2004] 3 S.C.R. 732, 2004 SCC 80, at paragraph 2.
[30] In my role, before making a finding that there was an error committed by the trial judge, I must resist the temptation to examine each piece of the reasons for judgment in isolation. Rather, I must consider all of the evidence that was considered by the trial judge before making a finding that an error was committed. Giannakopolous, supra, at paragraph 29; R. v. Burke, [1996] 1 S.C.R. 474, 1996 SCC 229, at paragraph 4; Morrissey, supra, at the fifth full paragraph under the heading E. of Justice Doherty’s decision.
[31] In a case where the Crown alleges a misapprehension of the evidence, which is part of the Crown’s argument in our case, and where the alleged misapprehension of the evidence goes to the credibility and reliability findings of the trial judge, which is the case in our appeal, it is necessary for the appellate court to analyze the degree of importance of the alleged misapprehension of the evidence in terms of why the trial judge made the credibility findings that were made.
[32] In R. v. Yang, 2023 ONCA 526, for example, the accused appealed his conviction for possession of a controlled substance for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. The focus of the appeal was on the trial judge’s analysis of the credibility of the sole defence witness, which witness had offered exculpatory evidence on the accused’s behalf. The trial judge concluded that the said witness’ evidence was unbelievable and, thus, the trial judge rejected it. On appeal, Mr. Yang took issue with two of the explanations given by the trial judge as to why the trial judge concluded that the evidence of the said witness was totally incredible. The Court of Appeal agreed that the trial judge had committed both errors alleged by the appellant, one of which was found by the Court of Appeal to lie on the periphery of an error of law. The Crown argued that the errors committed by the trial judge were not essential to his credibility analysis, as there were other compelling bases for the trial judge having rejected the witness’ account, quite apart from the two reasoning errors in question. The Court of Appeal disagreed with the Crown’s argument and allowed the appeal, ordering a new trial for the accused. At paragraph 16 of the Court of Appeal’s decision, there is a useful summary of how an appellate court should examine an alleged misapprehension of evidence error. That paragraph is set out below:
[16] We do not agree. The question for us is not whether Mr. Xu’s evidence warrants disbelief, either based on the record as a whole, or based on the remaining problems identified by the trial judge. The focus must be on the role these errors played in the trial judge’s decision. The relevant inquiry for the misapprehension of evidence error is whether the material representation was essential to the trial judge’s reasoning: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36, 39. The inquiry relating to illogical or irrational reasoning, such as the “failure to admit error”, is functionally identical, namely, whether the error is “essential to the verdict”, such that the verdict “ rests on a mistake as to the substance of the evidence”: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 19, per Fish J. (dissenting, but not on this point), and paras. 44,45, per Lebel J. (emphasis added); R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 97-98, per Fish J. (dissenting, but not on this point). In both cases we are inquiring whether the trial judge would have rejected Mr. Xu’s evidence beyond a reasonable doubt even had he not made either or both of these errors in his credibility assessment. In the circumstances, we can have no confidence that he would have done so. The “available half-ton truck misapprehension” played a prominent role in the trial judge’s explanations for his finding. Indeed, on its own, his belief that Mr. Xu had no reason to borrow or take Mr. Yang’s car completely undercuts Mr. Xu’s entire account. Even the “failure to admit error” was featured in the trial judge’s explanation. Although the trial judge’s reasons for judgment make clear that he rejected Mr. Xu’s account in its entirety, he explained this conclusion by particularizing several reasons, among which the two reasoning errors we have identified arguably received the greatest attention. In the circumstances, we find that these errors formed an essential part of the trial judge’s reasoning.
[33] Finally, it must be remembered that this is a Crown appeal. Even if the Crown persuades this Court that the trial judge committed an error, even an error in law, it does not necessarily follow that the appeal ought to be allowed. In R. v. Palmer, 2021 ONCA 348, at paragraph 62, Tulloch J.A., as the Chief Justice then was, stated this, which statements are equally applicable to a summary conviction appeal.
[62] In the event that the Crown is successful in showing an error of law, it does not necessarily follow that this court is obliged to set aside an acquittal. The onus on the Crown is a heavy one. To overturn an acquittal, the Crown must satisfy the court, with a reasonable degree of certainty, that the legal error “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16; R. v. Goldfinch, 2019 SCC 38, 435 D.L.R. (4th) 1, at para. 135; Button, at para. 15.
[34] A very recent example of a case, one that bears similarities to ours, where a Crown appeal was dismissed even assuming that the trial judge had committed a legal error in how he handled and used the complainant’s prior inconsistent statements, which error then contributed to the trial judge’s doubts about the credibility of the complainant on the offence of choking, is the relatively brief decision of the Court of Appeal for Ontario in R. v. Lawe, 2024 ONCA 144. In dismissing the Crown’s appeal, the Court of Appeal stated this, at paragraphs 8-9 of its reasons for decision.
[8] In any event, even if the trial judge’s handling and use of the complainant’s prior inconsistent statements regarding the choking incident rose to the level of legal error, we are not persuaded that the error could reasonably be thought to have had a material bearing on the acquittal. Reading the trial judge’s reasons as a whole, he gave a number of reasons for having doubts about the complainant’s reliability on the choking count. At least three of them were not tied to his concern about the complainant’s prior inconsistent statements.
[9] First, he had concerns about her memory based on aspects of her evidence other than the prior inconsistent statements. Second, he had concerns about the impact on the complainant’s reliability of her consumption of alcohol and illegal drugs in the timeframe of the alleged choking. Third, he had concerns about the inconsistency of the complainant alleging a visible injury to her eye as a result of the choking, which was not observed by the officer who took her statement the next day. He described this as “a material difference” between the evidence of the complainant and the officer. We are not satisfied that the Crown has met the threshold for appellate intervention set out in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.
V. Analysis
[35] For the reasons that follow, despite the very able submissions of Ms. McGuigan, the Crown’s appeal is dismissed.
[36] Respectfully, once the trial judge held that the two main trial witnesses, T. and D.R., were both “ convincing ”, and that the trial judge was, therefore, struggling to determine whether to believe the account of T. or the account of D.R., where they had described quite different versions of what had occurred at their house on the date in question, the only result that the trial judge could reasonably have reached was the one that he did – verdicts of acquittal.
[37] In fact, our case is an example of the very type of situation where we regularly instruct juries that they should find a reasonable doubt.
[38] The Crown takes no issue with the trial judge’s conclusion that the accused was a convincing witness.
[39] The Crown does take issue with the trial judge’s finding that there were several problems with the evidence of the complainant. The difficulty that the Crown has with its argument, however, stems from the following incontrovertible observations:
(i) each and every one of the problems that the trial judge identified with the evidence of the complainant, and there were five of them as summarized in Part II, above, of the within reasons, was unnecessary to the result, as the trial judge’s conclusion that the accused was a convincing witness, coupled with the total absence of any credibility or reliability concerns about the accused’s evidence as expressed by the trial judge, inevitably had to lead to acquittals, even if the trial judge had found no problems at all with the evidence of the complainant;
(ii) the Crown is probably correct, in my view, that the trial judge misapprehended trial Exhibit 3, the heavily redacted records from the child welfare agency, in that, contrary to what the trial judge stated in the oral reasons for judgment, the said records do not support a finding that the complainant had in fact struck D.R. in 2019 and, further, the said records do not support a finding that the complainant had in fact been interviewed, about the alleged striking, by someone with the child welfare agency, but those misapprehensions of the evidence had no material bearing on the acquittals because (a) as stated immediately above, the acquittals would have necessarily followed even if the trial judge had found no problems at all with the evidence of the complainant and, further, (b) the trial judge gave three other significant reasons, none maligned by the Crown on appeal, as to why he had some concern about the evidence of the complainant, all three of which had nothing at all to do with Exhibit 3 – the unbelievability of T.’s evidence about why she stopped the motor vehicle in the middle of the road, and the inconsistencies between the evidence of the complainant and that of J. (whose evidence was accepted by the trial judge, without complaint by the Crown on appeal) regarding both the complainant’s alleged injuries and her demeanour and her physical balance in the immediate aftermath of the incident; and
(iii) the Crown is also likely correct, in my view, in its most pressing submission that was made repeatedly by Ms. McGuigan during her oral argument on the appeal – that the trial judge erred in summarily disallowing the Crown at trial to apply to adduce other discreditable conduct evidence about the accused in order to respond to the Scopelliti evidence tendered by the defence, but such error had no material bearing on the acquittals because the verdicts had absolutely nothing to do with the basis upon which the Scopelliti evidence was received, self-defence; in fact, self-defence never materialized as something advanced by counsel for the accused in closing submissions at trial, or as something relied upon by the trial judge in the reasons for judgment; simply put, the complainant’s alleged prior propensity for violence (the bad character evidence) was immaterial to the trial judge’s reasoning process and irrelevant to the verdicts of acquittal.
[40] With respect, I do not agree with the Crown’s assertion, even if by implication, that the trial judge’s verdicts of acquittal were the result of an unfair trial.
[41] To repeat, the grounds of appeal being pursued by the Crown are the following: (i) that the trial judge allowed the defence to introduce inadmissible and irrelevant collateral evidence and then improperly relied upon that evidence as a basis for doubting the complainant’s credibility [page 3 of the Crown’s factum, paragraph 2(a)], and (ii) that the trial judge allowed the defence to adduce bad character and propensity evidence against the complainant while denying the Crown the opportunity to introduce bad character evidence about the accused, or even to bring the application [page 3 of the Crown’s factum, paragraph 2(b)].
[42] On the first ground of appeal, I disagree with the premise that the issue of whether the complainant had been violent with the accused in the past was a collateral issue. At the time in the trial that it was raised by the defence, it was not a collateral issue as defence counsel was asserting a claim of self-defence, something conceded by Ms. McGuigan in her oral submissions on the appeal.
[43] Further, also on the first ground of appeal, for the same reason, I disagree that the evidence adduced by the defence in cross-examination of the complainant, including trial Exhibit 3, was irrelevant. T.’s alleged prior propensity for violence against the accused was relevant to the issue of self-defence. That self-defence never materialized as a focus of defence counsel’s closing submissions or as any basis at all for the trial judge’s verdicts of acquittal misses the point. A trial judge’s mid-trial evidentiary ruling is to be assessed on the basis of what led up to that ruling, not on what happened afterwards.
[44] In addition, also on the first ground of appeal, assuming without deciding that trial Exhibit 3 was improperly admitted into evidence, and assuming without deciding that it was, therefore, an error for the trial judge to have relied upon Exhibit 3 as a basis for having a concern about the evidence of the complainant, it matters not because, as stated above, that basis was immaterial to the verdicts of acquittal.
[45] On the second ground of appeal, even if the trial judge erred in not permitting the Crown to apply to adduce other discreditable conduct evidence about the accused in light of the bad character evidence elicited by the defence regarding the complainant, if matters not because the character of the complainant, as well as the character of the accused, played no part in the reasoning process of the trial judge or in the verdicts of acquittal.
[46] Character evidence is not necessarily the same thing as evidence that goes to one’s credibility. The trial judge used Exhibit 3 on the issue of credibility. I think that the learned trial judge erred in concluding that Exhibit 3 was a basis for finding that the complainant was not credible in saying that she did not intentionally strike the accused previously and in saying that she was not interviewed by the child welfare agency in that regard. But that error had no material impact on the verdicts of acquittal.
VI. Conclusion
[47] With respect, there were errors made by the trial judge. In the end, however, those errors had no material impact on the verdicts of acquittal.
[48] In assessing whether the errors made by the trial judge were an essential part of the trial judge’s reasoning, this case is more similar to Lawe, supra than it is to Yang, supra, as just two analogous cases. In our case, I have concluded that the errors committed by the trial judge were not essential to his reasoning and had no material bearing on the result.
[49] The accused testified and denied having committed the offences. He was found by the trial judge to have been a convincing witness. The trial judge expressed no credibility or reliability concerns about the evidence of the accused. That, alone, meant that the accused had to be found not guilty of the offences.
[50] The trial judge also found that the complainant was a convincing witness, notwithstanding some problems with her evidence as identified by the trial judge in the reasons for judgment. Acquittals would have necessarily and inevitably followed regardless of any errors made by the trial judge in terms of arriving at just two of the five of those problems identified with the evidence of the complainant.
[51] Finally, it is likely that the trial judge ought to have permitted the Crown to apply for and to properly argue its request to adduce other discreditable conduct evidence regarding the accused, but the entire issue that the said evidence would have been aimed at addressing had nothing at all to do with the trial judge’s reasons for judgment or to the verdicts of acquittal.
[52] The Crown’s appeal is, therefore, dismissed.
Conlan J.
Released: February 28, 2024