R. v. N.S.
Her Majesty the Queen, and
 O.J. No. 2472
Court File No. 68/98
Ontario Superior Court of Justice
June 30, 1999.
Attorney General for Ontario, for the respondent.
T. Pain, for the appellant.
¶ 1 WREN J.: The appellant was tried in the Ontario Court of Justice (Provincial Division) at the City of Toronto by the Honourable Judge Hogan, on December 5, 1997, January 7 and 28, 1998 and February 2, 17, and 19, 1998 on a charge of having assaulted his son, E.S. [Ed. note: hereafter referred to as E.S.(1)], on August 30, 1997 and upon a charge of having assaulted his wife, E.S. [Ed. note: hereafter referred to as E.S.(2)], sometime between June 30 and August 15, 1997.
¶ 2 He was found guilty and convicted on both charges on February 17, 1998 and on February 19, 1998 sentence was suspended, the appellant having spent some 5 months in pretrial custody and he was placed on a period of Probation of 2 years.
¶ 3 The Appellant appeals against both convictions.
The Undisputed Facts
¶ 4 On the evening of August 30, 1997, the appellant returned home in a drunken state. He took E., the relatively newborn baby from E.S.(1) and held and attempted to feed him. Both E.S.(1) and E.S.(2), out of fear that the appellant, in his drunken state would drop or otherwise injure the baby, attempted to persuade him to give it over and to take it from him. A long, noisy and wild argument ensued. It was overheard by the neighbour, D.T., to whom E.S.(2), in a frightened, upset and tearful state, came for assistance. D.T. called the police. The family was taken to a shelter and later the children came into the care of the Children’s Aid Society.
¶ 5 In statements to police given separately on September 3, 1997, the son complained that the appellant had kicked him in the leg as he took the baby from him, and the wife, in relating a history of spousal abuse, complained that the appellant had assaulted her, principally by kicking her about her body, about 2 or 3 weeks prior to August 30, 1997.
¶ 6 At trial, the son confirmed his allegation and confirmed the wife’s history of verbal and physical abuse. The wife, however, recanted her earlier complaint given in her audio-recorded statement of September 3, 1997. On a KGB application the court admitted the previous statement for the truth of its contents.
¶ 7 The appellant testified and admitted returning home in a drunken state on the evening of August 30, admitted that an argument took place, but ascribed it to reasons other than his handling of the baby. He denied kicking his son on that evening and denied assaulting his wife some 2 to 3 weeks previously.
¶ 8 In neither case did a third person witness the assault. However, a police officer who attended in response to the telephoned complaint on August 30, noted what appeared to be a mark on E.S.(1)’s leg.
Grounds of Appeal
¶ 9 The appellant appeals from his convictions upon the following grounds.
That the learned trial judge erred in law in respect of both convictions by failing to consider whether the Appellant’s testimony raised a reasonable doubt.
That the trial judge erred in law in determining the reliability of the prior inconsistent statement by failing to apply the correct test in the KGB voir dire.
That the trial judge erred in law by relying on irrelevant and inadmissible evidence on the KGB application.
The Burden of Proof and The Credibility Issue
A. As To The Conviction For An Assault Upon E.S.(1)
¶ 10 In her reasons for judgment, after reviewing the indicia which persuaded her to believe that E.S.(1) was telling the truth and that, in details other than the actual assault, his testimony is supported by that of the neighbour, D.T., and by the KGB statement of his mother, the learned trial judge states:
“So with regard to E.S.(1)’s account, I do believe him, and this really comes down to a situation of credibility, sir. Do I believe that it happened, and therefore believe E.S.(1), or do I believe your version? And given what I heard about your physical condition that evening, at least from the others, of the effect of your drinking, it is very clear that you had been drinking and maybe, sir, you don’t remember exactly what happened. I am not going to speculate on that, but it was certainly very clear that you had been drinking and that when you drink people are afraid of you.”
“So with regard to the assault on E.S.(1), for all the reasons I have said, it does come down to credibility and I believe E.S.(1)’s version of the story and, therefore, there will be a finding of guilt.”
¶ 11 The Appellant submits that this passage therefore demonstrates that the trial judge erred, in that:
She failed to appreciate the issue before her was whether upon a totality of the evidence the Crown had discharged its onus of proof beyond a reasonable doubt.
Fell into the trap of merely choosing between the evidence of the complainant and the accused without giving consideration to whether the accused’s evidence could reasonably be true or whether it raised a reasonable doubt.
If the accused’s evidence failed to raise a reasonable doubt, the trial judge erred in not stating that she rejected it and giving reasons for rejecting it.
¶ 12 In dealing with these submissions, I am content that though the it may well be argued with merit that the wording of the judgment leaves something to be desired, it must be remembered that the accused had dismissed his counsel at the end of the evidence, had made his own submissions on the case, and that the trial judge, in her reasons for judgment was not addressing a jury, nor a counsel representing the accused, but was addressing the accused directly. Her reasons must also be taken in the context of the accused’s somewhat bizarre conduct, evidence and submissions, characterized by rampant and obviously paranoid accusations and explanations. Coupled with the accused’s difficulties with his own experienced and capable counsel, and a long trial marked by adjournments, the trial judge showed remarkable and extraordinary patience with particular and careful concern for the accused’s right to a fair trial.
¶ 13 Additionally, in fairness to the learned trial judge, she was absolutely correct when she advised the accused that the point of the trial was whether or not he had assaulted his son and his wife, and that the evidence distilled the central issue to one of determining credibility.
¶ 14 As well, the learned trial judge did refer to the evidence of the accused at Page 33 of the February 17th and 19th transcript at line 18 where she stated:
It wasn’t easy for E.S.(1), and I didn’t get the feeling that it was a story of a manipulative child, which is what you would have me believe, nor that it was a story that he had been coached in by foster parents or the Children’s Aid Society. (My emphasis)
¶ 15 In this regard, the accused had admitted to being drunk and angry that night but testified copiously and maintained in his submissions that the son’s evidence was untrue because he had been manipulated and that the wife had testified falsely out of anger over his drinking, telling her he wanted to take his son back to Ecuador, and also out of jealousy and vindictiveness.
¶ 16 Again at page 34, in stating that she believed E.S.(1) the trial judge referred to the accused’s physical condition and state of drunkenness as a reason why he perhaps did not remember exactly what happened. In cross-examination he admitted that he couldn’t quite remember how he came to hold the baby and that it was not clear to him what happened, not step by step and not wholly. For all the reasons she had stated, the trial judge therefore believed E.S.(1)’s version of the story and not the accused’s.
B. As To The Conviction For An Assault Upon E.S.(2)
¶ 17 Similarly, the learned trial judge explained to the accused that the issue upon the evidence of the alleged assault upon the wife boiled down to one of credibility.
¶ 18 The trial judge stated in her Reasons for Sentence at page 34:
With regard to the assault upon your wife, we have two different versions. We have the version of what happened that was given in her statement, which I ultimately allowed into evidence, and we have her evidence that she gave on the witness stand, which was very different.
¶ 19 The appellant argues that this passage indicates that the trial judge thereby ignoered the accused’s version of events.
¶ 20 In my opinion, when taken in the full context of her Reasons, she is but stating that the wife gave two different versions, and is at pains in this section of her reasons to explain to the accused why she chose to believe the statement as being true over the sworn version at trial. At page 35 she does make an implied reference to the accused’s evidence when she states at line 17 that she does not believe the statement was coerced from the wife. The evidence of the accused at page 12 of the February 17th an 19th, 1998 transcript was that his wife’s statement was coerced in that the purpose of the police was to destroy the family, that his wife was placed into fear in the shelter, and that the police and the Children’s Aid Society clearly planned to give sole custody of the baby to the wife, keep E.S.(1) in a foster home and send the accused to jail. The trial judge mentions further in the bottom paragraph of page 35 that the wife’s and the son’s evidence was importantly supported by the evidence of D.T. She also refers once more to the accused’s drunken state and the fear it had raised in his wife.
¶ 21 In my view, the reasons of the Ontario Court of Appeal in R. v. Morrisey, (1995) 22 O.R. (3d) 514, from the paragraph commencing at letter d on page 524 to and including the paragraph ending at letter g on page 525, are apposite to the case at hand. In summary, the Court stated that:
That trial judges are presumed to know the law.
That where a phrase in a trial judge’s reasons is open to 2 interpretations, the one which is consistent with the trial judge’s presumed knowledge of the law must be preferred.
That it is wrong to analyze a trial judge’s reasons by dissecting them into small pieces and examining each piece in isolation.
That where a case turned on the application of well-settled principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to demonstrate to the parties or to the Court of Appeal that he or she was aware of and applied those principles.
In cases where the result turns on fact-finding and not on the application of contested legal principles, it is appropriate that the reasons should focus on telling the parties what evidence was believed and why it was believed.
A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Reasons for judgment are given after a trial judge has reached the end of the journey toward a verdict and explain why he or she arrived at a particular conclusion. They are not intended, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.
Although reasons for judgment are not required as a matter of law in criminal cases, they ought to be encouraged, but should not be viewed by appellate courts as a dissertation on the applicable law or a comprehensive catalogue of the evidence, but rather as an attempt by the trial judge to articulate the conclusions reached and the bases for those conclusions.
¶ 22 Accordingly, I am content that both of the convictions of the accused should stand on the “Credibility” issue, or to put it another way, on the trial judge’s alleged failure to consider whether the accused’s testimony raised a reasonable doubt.
The Trial Judge’s Failure To Apply The Correct Threshold Test Of Reliability In The KGB Voir Dire
¶ 23 The trial judge, in her reasons upon the voir dire, specifically referred to her awareness of the test set out in the case of KGB. She recognized that, for the statement to be admissible in evidence, the Crown had the onus to satisfy the court on a balance of probability as to the reliability of the statement to meet the threshold test set out in KGB. She heard the evidence of the two policewomen and the social worker from the Children’s Aid Society as to the circumstances surrounding the making of the statement, and listened to an extensive portion of the audio tape in order to adequately assess the demeanour of and manner of answering questions by the maker, and she read the remainder of the transcript. She was satisfied with the reliability, of the statement despite being aware of the fact that it was audio taped rather than video taped, and that it was not given under oath or affirmation, nor preceded by a warning of the necessity to be truthful. The trial judge property exercised her discretion in this regard. She also specifically found that the statement was not made under coercion, confusion nor falsely given out of hostility to the accused. Clearly, necessity was not a live issue and the complainant was available for cross-examination during the trial, and indeed was called on the voir dire by the defence.
¶ 24 I am then content that the trial judge applied the correct threshold test for the reliability of the prior inconsistent statement.
The Trial Judge’s Reliance on Irrelevant And Inadmissible Evidence On The KGB Application
¶ 25 It is clear from the learned trial judges reasons on the voir dire that in addition to hearing the evidence of E.S.(2) relative to her making the prior inconsistent statement, and the evidence of the 3 persons present at its making, she relied on the evidence of D.T., who testified during the trialproper and on the voir dire, and the evidence of E.S.(1), who only testified in the trial proper.
¶ 26 Had trial judge only relied on the evidence of D.T. given on the voir dire as to the demeanour and state of mind of the wife on the night of the 30th of August, it could reasonably be argued that it was relevant and admissible on the voir dire because the demeanour and state of mind, or the wife’s state of “upset”, as it was described could reasonably have continued to the time of the giving of the statement. However, it is clear from the trial judge’s reasons, beginning at the bottom paragraph of page 6 of the January 28, 1998 transcript, and further, from the last paragraph on page 7, that she put the cart before the horse. She used their evidence in the trial at large as being “certainly” corroborative of the statement of E.S.(2). Again, at page 9 she states:
… Given, as I say, that I had the opportunity to hear the evidence of E.S.(1) and D.T., they really corroborated to a very large extent what was going on that evening, and her statement was not at odds with that.
¶ 27 This would have been appropriately admitted as evidence supporting the truth of the statement, after it had been admitted as reliable. The trial judge was in error in having admitted the statement on the threshold issue of reliability.
¶ 28 In R. v. Conway (1998), 121 C.C.C (3d) 397 (Ont. C.A.) at 414, Labrosse J. in referring to the judgment of Chief Justice Lamer in R. v. Smith, (1992), 75 C.C.C. (3d) 257 (S.C.C.) stated:
The Chief Justice specifically referred to the “circumstances under which the statement was made”.
And at page 415, he adds:
… is in the voir dire, which addresses the new rule, that the trial judge must satisfy himself on the threshold issue of reliability, not in the part of the trial preceding the voir dire … it follows from the pronouncements of the Supreme Court that it is on the evidence taken on the voir dire that the trial judge must make the threshold decision of the reliability of the statement.
¶ 29 In these circumstances I am unable to conclude that the trial judge would have found that the evidence of the complainant and of the 3 witnesses to the statement, together with the statement itself, would, standing alone, have been sufficient to establish reliability. I cannot then conclude that, pursuant to s. 686(1)(b)(iii) of the Criminal Code, there was no substantial wrong or miscarriage of justice in the decision to admit the statement.
¶ 30 For these reasons, I would dismiss the appeal from conviction for the assault upon E.S.(1), and I would allow the appeal from conviction for the assault upon E.S.(2), quash the conviction, and order a new trial, for which a date is to be fixed in courtroom 3, Old City Hall, on August 11th, next.