R. v. Francis, 2020 NLCA 4

John Joseph Francis (appellant) v. Her Majesty the Queen (respondent) (19/81) Indexed As: R. v. Francis 2020 NLCA 4 5 C.A.N.L.R. 335 Court of Appeal of Newfoundland and Labrador Welsh, O’Brien and Butler JJ.A. February 4, 2020

Summary: Mr. Francis was convicted of assaulting a police officer following an altercation with three police officers who responded to a complaint that Mr. Francis had left a store with items he did not pay for. One of the officers, Constable Barker, testified that Mr. Francis spit at her while she attempted to arrest him. Mr. Francis appealed his conviction on the basis that the trial judge erred by failing to give sufficient reasons for convicting him of the offence, in particular, the judge did not address what Mr.

Francis characterized as inconsistent or contradictory evidence by a witness who observed the altercation. Held: Appeal dismissed. Welsh J.A. (O’Brien and Butler JJ.A. concurring): In considering whether reasons are sufficient, the judge’s decision should be read in the context of the evidentiary record, submissions of counsel, and the issues on which the trial focused. The reasons should disclose an intelligible basis for the verdict, capable of permitting appellate review (paragraphs 5-8).

It is not necessary that the trial judge refer to all the testimony, though the appellate court may look to the evidentiary record to provide context and assist in assessing the judge’s reasons (paragraphs 9-14). The evidence of the three police officers was sufficient to establish the assault charge against Mr. Francis. Constable Barker’s testimony that Mr. Francis had spit at her face provided the foundation for the charge. Her evidence was supported by the evidence of the two other officers who testified that they heard Constable Barker say to Mr. Francis that he had spit at her.

This evidence was not contradicted by the eyewitness. There was no basis on which to conclude that the judge erred (paragraphs 15-22). Cases cited: R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3 R. v. Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869 R. v. Dinardo , 2008 SCC 24 , [2008] 1 S.C.R. 788 Counsel: Derek Hogan, for the appellant; Sheldon Steeves, for the respondent. The appeal was heard on January 15, 2020 before Welsh, O’Brien and Butler JJ.A.

The following judgment was filed on February 4, 2020 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] John Joseph Francis was convicted of assaulting two police officers, resisting arrest, uttering threats, causing a disturbance, theft of property with a value under $5,000, and breach of an undertaking. He appeals only his conviction for assault by spitting in the face of a police officer. The focus of the appeal is whether the trial judge gave sufficient reasons for that conviction.

BACKGROUND [ 2 ] The incident leading to the convictions arose from an altercation Mr. Francis had with three police officers who responded to a complaint that Mr. Francis had left a store with merchandise without paying. The altercation took place just outside the store. Mr. Francis, who was known to the police, was described by witnesses as being angry and belligerent. Constable Barker testified that, when she tried to handcuff Mr. Francis, he turned and spit at her, with spittle hitting her in the face. As the altercation escalated and Mr.

Francis refused to comply with the officers’ directions, one of the officers fired his taser twice and another employed pepper spray, after which Mr. Francis was subdued and handcuffed. [ 3 ] Mr. Francis submits that the judge did not give sufficient reasons for convicting him of assaulting Constable Barker by spitting at her, thereby preventing meaningful appellate review. In particular, he submits, the judge did not address what Mr. Francis characterizes as inconsistent or contradictory evidence by a witness who observed the confrontation from behind a glass partition located in the entrance to the mall.

ISSUES [ 4 ] At issue is whether the trial judge erred by failing to give sufficient reasons for convicting Mr. Francis of the assault against Constable Barker on the basis that he failed to resolve confusing or contradictory evidence regarding that charge. ANALYSIS [ 5 ] In R. v.

R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 , McLachlin C.J.C., for the Court, addressed the role of an appellate court in assessing the sufficiency of reasons: [52] In Sheppard [2002 SCC 26 , [2002] 1 S.C.R. 869 ], the Court, per Binnie J. enunciated this “simple underlying rule”: “[I]f, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law [under s. 686 of the Criminal Code ] has been committed” (para. 28). [53] However, the Court in Sheppard also stated: “The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26).

To justify appellate intervention, the Court makes clear, there must be a functional failing in the reasons.

More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focused, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review. [54] … [T]he 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. [55] The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached.

It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial.

If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. … [56] If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. … [57] Appellate courts must ask themselves the critical question set out in Sheppard : Do the trial judge’s reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?

To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. … If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case …, then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law. (Emphasis added.) See also: R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869 , at paragraph 55 ; R. v.

Dinardo , 2008 SCC 24 , [2008] 1 S.C.R. 788 , at paragraph 27 . [ 6 ] As applied to this appeal, it is clear from his oral decision that the trial judge found as a fact that Mr. Francis had spit in Constable Barker’s face: [10] Cst. Barker moved in to handcuff the accused. As she took his right hand, he turned, and spit in her face. There was saliva on her forehead, and on her cheek. She said, “John, you spit on me!”

The judge concluded: [24] … However, when Cst. Barker moved in to handcuff him, he turned and spat in her face. She was on duty as a police officer, and it was an intentional application of the use of force. I am satisfied beyond a reasonable doubt of the guilt of the accused for the assault of a police officer, that officer being Cst. Barker. [ 7 ] Mr. Francis submits that the evidence of Ms. Spencer, who watched from behind a glass partition, contradicted, or was inconsistent with the testimony of Constable Barker. He submits that the judge’s failure to refer to Ms.

Spencer’s testimony resulted in error. [ 8 ] In assessing the sufficiency of the reasons on this point, it is open to the Court on the appeal to consider the judge’s reasons as a whole in the context of the evidentiary record in relation to the several charges and, in particular, the charge of assault against Constable Barker. [ 9 ] In finding that Mr. Francis had spit in Constable Barker’s face and was, therefore, guilty of assault, the judge referred only to the evidence of Constable Barker who testified that Mr. Francis had spit at her, resulting in spittle on her face.

The judge did not refer to the evidence of the other two police officers or Ms. Spencer or any alleged inconsistencies. Given that omission, it is necessary to refer to the trial record to determine whether the reasons for the conviction were so deficient as to amount to error.

In passing, I would emphasize the value of comprehensive reasons for decision by the trial judge particularly where there are several witnesses and a comment as to the judge’s rationale in reaching his or her conclusion would assist the offender in understanding the basis for the result and would reduce the need for an appeal based on a review of the record. [ 10 ] The transcript discloses that the two other police officers at the scene did not see Mr. Francis spit at Constable Barker. Both said they heard Constable Barker say that Mr. Francis had spit on her. Constable Tulk testified on examination-in-chief: A.

At that point, I didn’t know exactly at that point he spit in her face, but shortly after, I did hear her say that, “He spit in my face.” [ 11 ] The other officer, Constable Young, testified: A. At that point, Constable Barker moved in to secure handcuffs. She reached for his – would have been Mr. Francis’ left hand, and at that point, Mr. Francis pulled away and looked towards her. I heard Constable Barker say, “You just spit on me,” or, “You just spit in my face.” … [ 12 ] The civilian witness, Ms.

Spencer, testified that she was watching the altercation as she entered the mall and, then, from behind a glass partition where she was approximately five feet from the activity. In describing what she had seen, she made no mention of Mr. Francis spitting in Constable Barker’s face. While her testimony was largely consistent with that of the police officers, there were some discrepancies. For example, she was ninety-nine percent certain that Constables Tulk and Young had each fired a taser. This was clearly in error since only Constable Tulk deployed a taser. Constable Young employed pepper spray.

Under cross-examination, Ms. Spencer testified: Q. Could you tell if the officer who shot him [with the taser] the second time was the same one who shot him the first time? A. I know it wasn’t the same one. Q. It was not the same one? A. Nope. Q. You’re sure? A. I’m 99 percent sure. [ 13 ] Regarding Constable Barker’s interaction with Mr. Francis, Ms. Spencer testified in cross-examination: Q. Alright. But I wanted to ask you now about the young female officer, alright? Constable Barker is her name. Did you see her have any interaction with Mr. Francis? A. I cannot say that I – because it was such a commotion.

When the pepper spray came out is when the interaction happened with Constable Barker. Q. Alright, but that was after he was shot with the taser in the jacket? A. Yes. Q. Alright, but before the male officer shot him with the taser in the jacket – A. Yeah. Q. – you did not see Constable Barker have interaction with Mr. Francis? A. I did in terms of speaking to him. Q. Just speaking to him? A. Just speaking to him.

Q. But she never, for example, attempted to handcuff him? A. No, they couldn’t. How could they? They couldn’t. Q. Did you see Mr. Francis at any point turn around and put his hands on the wall of the mall? A. No. He wouldn’t. ... Q. … But they were also directing him to turn around and put his hands on the wall, is that right? A. I really don’t know. Q. You don’t remember that? A. I don’t know if they were directing him to turn around. I don’t remember that part. [ 14 ] And further: Q. So you did not see Constable Barker grab him by the arm before he was shot with the taser? A. The second time? Or the first – Q.

No, the first time. A. Oh, she certainly – no, nobody did. Nobody touched him. Q. No one touched him at all before he was shot with the taser? A. Nope. … [ 15 ] It is apparent from reading Ms. Spencer’s testimony that she viewed the altercation as “such a commotion”, and that she focused on the tasering and pepper spray incidents. When asked in examination-in-chief to describe what she had witnessed, she focused on Mr.

Francis’ shouting and swearing and on the officer’s use of the taser, with no details as to what had occurred prior to the tasering. [ 16 ] Constable Barker testified: A. … So at that point, he had stopped yelling, he had turned around from us, he had put his hands on the wall like we had asked. So at that point, I moved in to handcuff him.

As I moved in, I grabbed him by the left forearm, and as soon as I put my hand on him, he pushed from the wall, hauling himself away from me, and spit directly in my face to the point that I said to him, “John, you just spit in my face.” And at that point, he got very, very aggressive. … [ 17 ] Constable Barker specifically testified during examination-in-chief that she had been hit with spittle on her face: A. … I took a few moments to wipe my face, and at that time, I noticed, between the time it took me to realize that I had spit in my face, to tell that to the other members, let them know, announce it verbally, wipe it, and look again, [Mr.

Francis] had already grabbed on to Constable Tulk [after the first tasering]. Q. Where were you struck in the face with the saliva? A. It was top of my forehead and on my cheek. [ 18 ] In the result, Constable Barker’s testimony that Mr. Francis had spit at her face and that she had spittle on her forehead and cheek, which she wiped off, provided the foundation for the charge. That evidence was supported by the evidence of the two officers who testified that, while they did not see the spitting, they did hear Constable Barker say to Mr. Francis that he had spit at her. That evidence was not contradicted by Ms.

Spencer; that is, she did not say that the spitting incident did not happen. Rather, she testified, contrary to the evidence of the three officers, that Constable Barker was not involved in the altercation until after Mr. Francis had been tasered. Ms. Spencer also testified that she could not hear everything. [ 19 ] In

summary, none of these three witnesses saw Mr. Francis spit in Constable Barker’s face, but two heard her say that this had happened. Ms. Spencer did not contradict their evidence. Nor was her evidence inconsistent with the conclusion that Mr. Francis had spit at Constable Barker. The fact that Ms. Spencer neither saw the spitting nor heard Constable Barker does not derogate from the comprehensive evidence of the police officers who were active participants in the disturbance, and who were in a position to hear what Constable Barker said to Mr.

Francis. [ 20 ] It is clear from the record that the evidence of the three officers was sufficient to establish the assault against Constable Barker, and the lack of evidence on the point from Ms. Spencer could not be said to raise a reasonable doubt. The evidence was not contradictory or confused. In the circumstances, I am satisfied that the basis for the trial judge’s finding of fact and the conviction for the assault against Constable Barker is apparent from the record. Accordingly, there is no basis on which to conclude that the judge erred.

SUMMARY AND DISPOSITION [ 21 ] Based on a review of the record together with the trial judge’s decision, I am satisfied that the requirement for sufficient reasons

to ground the conviction for assault against Constable Barker was met. [ 22 ] Accordingly, I would dismiss the appeal. Appeal dismissed.