R. v. Tuitakalai, 2026 ONSC 1269

CITATION: R. v. Tuitakalai, 2026 ONSC 1269

COURT FILE NO.: CR-149/25AP

DATE: 20260302

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Douglas Tuitakalai

Appellant

Ms. S. Dosanjh, for the Crown

Mr. Douglas Tuitakalai, Self-represented

HEARD: March 2, 2026

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Conlan J.

I. Overview

1Douglas Tuitakalai was tried in the Ontario Court of Justice at Burlington on March 19, 2025. He was charged with two criminal offences stemming from an incident at his home in Burlington on November 2, 2023: (i) assault with a weapon, a baseball bat, contrary to section 267(a) of the Criminal Code, and (ii) mischief to property, the cell phone of the complainant, under $5000.00, contrary to section 430(4) of the Criminal Code.

2The allegation was that the complainant attended the home to serve some legal documents on the appellant. The complainant was a process server and property manager who was working for a mortgage enforcement company. The appellant, it was alleged, became irate and assaulted the complainant with a baseball bat and damaged the complainant’s cell phone.

3It was a very short and straightforward trial. Two witnesses testified – the complainant and the appellant. The entire trial, including submissions by counsel on both sides and the oral decision of the trial judge, was completed in less than one full day of court time. A few exhibits were filed including photographs of the complainant and his cell phone and an agreed statement of facts which stipulated that the police officer who responded to the scene observed a red welt injury on the left side of the complainant’s forehead and his smashed cell phone. It was that police officer who took the photographs that were entered as exhibits.

4At the conclusion of the trial, the justice took a brief recess and then gave his oral decision. The appellant was found guilty of and convicted on both counts. He was ultimately sentenced to a conditional sentence order to be followed by a period of probation, plus some ancillary orders.

5The appellant had legal counsel representing him at trial. On appeal, he represented himself. He appeals only the convictions (not the sentence). He asks that both convictions be set aside and a new trial ordered.

6The appeal hearing was held in Milton on March 2, 2026. It was completed in less than one-half day of court time.

7For the reasons that follow, the appeal is dismissed.

II. The Reasons of the Trial Judge

8In relatively brief oral reasons for judgment spanning about eight pages of transcript, the trial judge accomplished quite a bit in that he:

(i) cautioned himself against reversing the burden of proof;

(ii) cautioned himself against jumping to a finding of guilt just because the accused may be found to lack credibility;

(iii) referred to the W.(D.) decision and the three-step framework outlined therein;

(iv) referred to the burden (on the Crown) and the standard (beyond a reasonable doubt) of proof;

(v) cautioned himself against conflating a credibility finding with an overall assessment of whether the case has been proven beyond a reasonable doubt;

(vi) cautioned himself against treating the matter as being solely a credibility contest between the complainant and the accused;

(vii) quoted from other leading cases in terms of how to properly assess the evidence as a whole and how to properly apply the W.(D.) framework;

(viii) summarized the evidence of the complainant;

(ix) made a finding that the complainant was credible and reliable and gave reasons for that finding – his account was simple and straightforward, consistent and essentially unchallenged in cross-examination, and it was corroborated by the agreed statement of facts and the photographs;

(x) rejected the defence counsel’s argument about the complainant’s account being inconsistent with the injuries sustained, or lack thereof;

(xi) referred to the decision of the Court of Appeal for Ontario in R. v. J.J.R.D., 2006 40088, and concluded that the evidence of the accused, which the trial judge summarized very briefly, did not leave him with a reasonable doubt;

(xii) referred to the “salient factor” and “critical factor” of the complainant saying that he had been assaulted with an aluminum baseball bat and the accused’s admission that there was such a baseball bat inside the house at the time, about 10 to 15 feet away and in a closed bag, concluding that it “would be a ridiculous, fantastical consequence or coincidence for [the complainant] to invent the aluminum baseball bat that he never would have been able to see at the front door based on the accused’s testimony”; and then

(xiii) found the accused guilty on both counts.

III. Analysis

Jurisdiction

9This Court’s jurisdiction to hear the within appeal derives from section 812(1)(a) of the Criminal Code, under Part XVII, which provides that the Superior Court of Justice is the “appeal court” for summary conviction offences.

10The within appeal is brought under section 813(a) of the Criminal Code, which provides, in part, that the defendant may appeal (i) from conviction and/or (ii) against a sentence. As indicated above, there is no sentence appeal in this matter.

Grounds of Appeal

11The notice of appeal is not helpful in that it does not clearly delineate any recognized ground of appeal. The appellant’s factum is better, however, it does not refer at all to any transcript references.

12The appellant raises three arguments:

(i) the trial judge deprived him of a fair trial by improperly hampering his counsel’s cross-examination of the complainant, specifically on the issue of alleged prior inconsistencies in the complainant’s account of what happened;

(ii) the trial judge erred in failing to consider medical documentation that showed that the injuries sustained by the complainant were inconsistent with what the appellant was alleged to have done; and

(iii) the trial judge erred in the W.(D.) analysis and in his assessment of whether the case had been proven beyond a reasonable doubt.

13I agree with the Crown that the three grounds of appeal may be fairly described as follows: (i) unfairly limiting defence counsel’s cross-examination; (ii) misapprehension of the medical evidence; and (iii) the W.(D.) error.

14I would add that the third ground, as advanced by the appellant, also implicates the reasonableness of the verdicts.

Standard of Review

15There are three possible bases upon which the within appeal may be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence; (ii) there was a wrong decision made on a question of law; and/or (iii) there has been a miscarriage of justice. R. v. Hunt, 2024 ONSC 5454, at paragraph 11; R. v. McLean, 2021 ONSC 34, at paragraph 11.

16Though questions of law are generally reviewed on a standard of correctness, the jurisdiction of this Court to review a finding of fact made by the trial judge is limited. I am not entitled to retry the case or to substitute my own view of the evidence for that of the trial judge. This is not a retrial. This Court has no basis upon which to interfere with the trial judge’s findings unless they are unreasonable or unsupported by the evidence. R. v. Smits, 2012 ONCA 524, at paragraph 67, 294 O.A.C. 355, 102 W.C.B. (2d) 316 (Ont. C.A.), [2012] CarswellOnt 9437 (C.A.), [2012] O.J. No. 3629 (C.A.), 36 M.V.R. (6th) 217 (Ont. C.A.); R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785 (C.A.), at pages 791-792; R. v. Hunt, supra, at paragraph 12; R. v. McLean, supra, at paragraph 13; R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.

17Put another way, the factual findings of a trial judge are entitled to deference, and an appellate court may only interfere where there has been a palpable and overriding error. Findings of fact and factual inferences must be clearly wrong, unsupported by the evidence, or otherwise unreasonable before an appellate court can interfere. R. v. Hunt, supra, at paragraph 13; R. v. Clark, 2005 SCC 2, at paragraph 9, [2005] 1 S.C.R. 6 (S.C.C.), 249 D.L.R. (4th) 257 (S.C.C.), 193 C.C.C. (3d) 289 (S.C.C.), 25 C.R. (6th) 197 (S.C.C.), [2005] S.C.J. No. 4 (S.C.C.); R. v. Sheahan, 2017 ONCA 159, at paragraph 12, 8 M.V.R. (7th) 1 (Ont. C.A.); R. v. R.E.M., [2008] 3 S.C.R. 3 (S.C.C.), at paragraph 54, 2008 SCC 51; Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.), at paragraphs 10 and 23, 2002 SCC 33.

18Credibility is a question of fact, and an appellate court should afford due deference to the trial judge who actually saw and heard the witnesses. Further, it is wrong for an appellate court to dissect the trial judge’s reasons into small pieces without examining how those pieces affect the end result (the verdict) and/or without appreciating that reasons for judgment must be read as a whole. R. v. Morrisey (1995), 22 O.R. (3d) 514 (C.A.), at paragraph 28, 1995 3498 (ON CA), 38 C.R. (4th) 4 (Ont. C.A.), 97 C.C.C. (3d) 193 (Ont. C.A.), [1995] CarswellOnt 18 (C.A.), [1995] O.J. No. 639 (C.A.); R. v. C.R., [2010] O.J. No. 911 (C.A.), at paragraph 31, 2010 ONCA 176.

The First Ground of Appeal – the Trial Judge did Not Unduly Limit the Cross-Examination

19A review of the entire trial transcript reveals relatively few interventions on the part of the trial judge. He did intervene three times in defence counsel’s cross-examination of the complainant. That cross-examination spans pages 13 through 33 of the trial transcript.

20I see nothing improper about those interventions. They all amount to trial management decisions and not evidentiary rulings. As such, they are subject to deference on appeal. R. v. Samaniego, 2022 SCC 9, at paragraphs 25-26.

21With regard to the first intervention, beginning at page 24 of the transcript, when defence counsel was cross-examining the complainant about his injuries, although the trial judge expressed doubt that he could ultimately draw the inference that defence counsel would likely be asking him to draw at the conclusion of the trial, the trial judge did not prevent defence counsel from continuing to ask those questions. No questions were disallowed. The cross-examination was not limited in any way. No evidentiary ruling was made at that time. There was no prejudice to the appellant.

22Regarding the second intervention, at page 31 of the transcript, the trial judge properly asked defence to counsel clarify the question that was being asked. Respectfully, that question made no sense. Defence counsel asked whether, with regard to the complainant’s medical records, “I’m just hoping to confirm that that is an accurate reflection of your medical records to the best of your recollection”. The trial judge was confused about the question. So am I. The trial judge tried to help focus the question, saying to defence counsel, “[a]re you asking to confirm that this was his diagnosis?”, and then defence counsel apologized and refocused the enquiry. There was no prejudice to the appellant. There was no evidentiary ruling made. No questions were disallowed. The cross-examination was not limited in any way.

23With regard to the third and final intervention, at page 33 of the transcript, the trial judge did disallow the following question by defence counsel to the complainant, “if I would suggest to you that being struck by the manner, being struck by a bat in the manner that you described would result in some sort of bruising, what would you say?”. The trial judge intervened to observe that the question had already been asked and answered, and that is true. Preventing unduly repetitive questioning is a proper exercise of trial management powers. Besides, although the trial judge did not say this explicitly, the said question was really an argument that was better left for submissions, and it was a part of defence counsel’s closing submissions at trial. Most important, though, is that, immediately after that intervention by the trial judge, defence counsel was permitted to put to the complainant the crux of the defence argument, saying “I’m going to suggest to you that the reason that there is no visible injuries arising from this assault with a baseball bat is because the assault did not occur”. The complainant disagreed with that suggestion, but the point is that there was no unfairness to the appellant. There was no prejudice to the appellant. There was one improper question disallowed, but the cross-examination was not unduly limited overall and, in fact, was permitted to continue uninterrupted and with defence counsel being able to clearly put to the complainant the crucial theory of the defence.

24The first ground of appeal fails.

The Second Ground of Appeal – the Trial Judge did Not Misapprehend the Medical Evidence

25In R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250 (Ont. C.A.), Watt J.A. summarized the legal principles applicable to an appeal that is grounded on an alleged misapprehension of the evidence by the trial judge. Paragraphs 71-75 of that decision are set out below.

71A misapprehension of evidence may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. To succeed before an appellate court on a claim of misapprehension of evidence, an appellant must demonstrate not only a misapprehension of the evidence, but also a link or nexus between the misapprehension and the adverse result reached at trial.

72To determine whether an appellant has demonstrated that a misapprehension of evidence has rendered a trial unfair and resulted in a miscarriage of justice, an appellate court must examine the nature and extent of the misapprehension and its significance to the verdict rendered by the trial judge in light of the fundamental requirement of our law that a verdict must be based exclusively on the evidence adduced at trial. The misapprehension of evidence must be at once material and occupy an essential place in the reasoning process leading to the finding of guilt: Morrissey, at p. 221.

73The standard set for misapprehension of evidence to warrant appellate reversal is stringent. An error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

74Where an appellant alleges a misapprehension of evidence, an appellate court should first consider the unreasonableness of the verdict rendered at trial. A verdict may be unreasonable because it is one that could not have been reached by a properly instructed trier of fact acting reasonably, or because it can be seen from the reasons of the trial judge that the verdict was reached illogically or irrationally, in other words, due to fundamental flaws in the reasoning process: Sinclair, at paras. 4, 44.

75Where an appellant succeeds in establishing that a verdict is unreasonable, an appellate court will enter an acquittal. On the other hand, where the appellate court is satisfied that the verdict is not unreasonable, the court must determine whether the misapprehension of evidence occasioned a miscarriage of justice. An appellant who shows that the error resulted in a miscarriage of justice is entitled to a new trial: Morrissey, at p. 219.

26More recently, Zarnett J.A., for the Court of Appeal for Ontario, stated the following at paragraphs 53-55 of the decision in R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462.

53That a trial judge, in the course of convicting an accused, got some of the evidence wrong, does not necessarily equate to a miscarriage of justice.

54But a conviction that rests on a material misapprehension of the evidence will be reversed, and a new trial directed, if the misapprehension goes to substance, and is on a matter that is material to the trial judge’s reasoning process. To overturn a conviction, the misapprehension must have played an essential part of the reasoning process that resulted in it. If a misapprehension of evidence was essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred. This is a stringent standard. It does not apply to peripheral reasoning or matters of detail or narrative only: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; Morrissey, at p. 541.

55A misapprehension ground of appeal can succeed even if the conviction, based on all the evidence, was not unreasonable: Morrissey, at p. 541. If a conviction was unreasonable, it must be set aside and an acquittal entered. If evidence was misapprehended in a way that was essential to the trial judge’s finding of guilt, the misapprehension could have affected the outcome, and, accordingly, the verdict should be set aside, even if the evidence properly before the trial judge was capable of supporting a conviction.

27There is no merit whatsoever to this ground of appeal. It fails.

28First, contrary to the implication left by the appellant’s submissions before this Court, there was no medical documentation filed as an exhibit at trial. Second, the trial judge did not fail to consider the lack of any serious injuries suffered by the complainant; he simply refused to draw the inference from that fact that the defence wanted him to draw. As the trial judge stated at the bottom of page 76 of the transcript, as part of his oral reasons for judgment, “I do not accept the defence submissions, nor can I take judicial notice of the type of injuries that would have resulted from the hits from the baseball bat”.

29I see no error in that remark, and it is certainly not the product of any misapprehension of any medical evidence.

The Third and Final Ground of Appeal – there was No W.(D.) Error and No Unreasonable Verdict

30There is no merit to this ground of appeal. It fails.

31The W.(D.) analysis was done correctly by the trial judge. The verdicts were certainly not unreasonable.

32The appellant’s version of events was rejected, partly on the basis of what the Court of Appeal for Ontario expressly allowed for in J.J.R.D., at paragraph 55. Here, there was a considered and reasoned acceptance beyond a reasonable doubt of the truth of the evidence that conflicted with that of the appellant – that is, the evidence of the complainant.

33In summary, the evidence of the complainant was found by the trial judge to have been corroborated by other evidence at trial, including the agreed statement of facts and the photographs, and that evidence was further found to be credible and reliable because of its reference to the aluminum baseball bat as being the weapon involved, a weapon that just so happened to be inside the house and not far away from the front door, where the assault took place.

34Essentially, the appellant wants this Court to make its own assessment of the credibility of the complainant and his account of what happened. That is not the role of this Court.

IV. Disposition

35For all of the above reasons, the appeal is dismissed.

36As a final note, I commend Mr. Tuitakalai for filing a well-written factum and for his polite and respectful oral submissions in the courtroom on the hearing of the appeal. I know that he was somewhat thrown-off his plan when this Court informed him that he cannot simply file disclosure materials at the appeal hearing and that the medical documentation for the complainant was not even filed at trial. Nevertheless, he argued his points impressively.

37In the course of his oral submissions, Mr. Tuitakalai talked about some things that were not discussed anywhere in his notice of appeal or in his factum, such as alleged inconsistencies between the evidence of the complainant at trial and out-of-court before trial. As I told him, however, the appeal must be argued and decided based on the trial record. This is not a case involving any application to tender fresh evidence on appeal, and I very much doubt that such an application could pass the Palmer test hurdle in any event. This is also not a case involving any claim of ineffective assistance of trial counsel (nor am I suggesting that there is any reasonable basis for that claim to have been made).

38On what was properly before me, the appeal had to be dismissed.

39Ms. Dosanjh, for the Crown, did an excellent job on this appeal. She was very fair to the self-represented appellant. I am grateful for that.

Conlan J.

Released: March 2, 2026

CITATION: R. v. Tuitakalai, 2026 ONSC 1269