) ) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2516

CITATION: R. v. Podstatzky, 2013 ONSC 2516 COURT FILE NO.: 11-03994 DATE: 20130522 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) ) HER MAJESTY THE QUEEN – and – JAMIE PODSTATZKY Appellant ) ) ) ) ) ) ) ) ) Jeffrey Costain, for the Crown/RespondentRichard A. Fedorowicz, for the Appellant ) ) HEARD: April 26, 2013 Ruling on

summary conviction appeal boswell j. Overview [1] On December 1, 2011 the appellant was convicted by Collins J., of the Ontario Court of Justice, of assaulting Kenneth Oateswith a weapon, namely a blade. He was granted a conditional discharge with one year’s probation. He appeals the conviction. Thesentence has been served. [2] This was a two witness case: the complainant testified for the Crown; the appellant testified in his own defence. Eachdescribed an altercation taking place outside the Newmarket Public Library on April 8, 2011, but their descriptions had little in common.

The trial judge rejected the appellant’s evidence and found the essential elements of the offence were established beyond a reasonabledoubt on the evidence of the complainant. Positions of the Parties [3] The appellant raised four grounds of appeal in his Notice of Appeal: (

i) The trial judge misapprehended certain evidence that played an important role in his reasoning process; (ii) The trial judge misapplied the principles enunciated in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; (iii) The trial judge misapplied the burden of proof; and, (iv) The verdict was unreasonable. [4] The fourth ground of appeal was abandoned in oral argument. The other three grounds of appeal were articulated in a moreor less rolled-up fashion, the essence of which amounted to the following assertions:

(

i) The trial judge appears to have rejected the entirety of the appellant’s testimony on the basis of one piece of evidence, which was misapprehended; (ii) Even if that one, significant piece of evidence was not misapprehended, its rejection provided an insufficient basis upon which to reject the whole of the appellant’s evidence. The trial judge failed to provide an adequate reason for rejecting the entirety of the appellant’s evidence; and, (iii) Even if the trial judge was justified in rejecting the appellant’s evidence, he failed to properly apply the principles in W.(D.) and failed to articulate reasons that (

i) sufficiently explained to the appellant why his evidence did not even raise a reasonable doubt about his guilt; and (ii) allow for appellate review. [ 5 ] In my view, the appellant’s arguments may fairly be further distilled into two main thrusts. First, that the trial judge improperly rejected the appellant’s evidence because the rejection was based on a misapprehension of his testimony.

Second, that the trial judge’s reasons are inadequate and demonstrate, in their inadequacy, a misapplication of the reasonable doubt standard to the trial judge’s credibility determination. [ 6 ] The Crown concedes that the trial judge’s reasons were brief and might have been more expansive in an ideal world. But the Crown argues that there was no misapprehension of evidence. The trial judge was entitled to and did make credibility findings. Those findings were supported by the evidence and articulated in his reasons in a fashion that, while brief, met the standard set by the Supreme Court in R. v.

Sheppard, 2002 SCC 26 and correctly applied the principles of W.(D.) . Issues [ 7 ] The positions of the parties raise the following issues for determination: (

i) Did the trial judge misapprehend the appellant’s evidence in a material respect? (ii) Did the trial judge have an adequate basis for rejecting the appellant’s evidence trial and did he adequately articulate his findings on credibility? (iii) Did the trial judge properly apply the principles in W.(D.) ? The Facts [ 8 ] The trial took less than a day from arraignment to sentence. There were only two witnesses and the facts are pretty straightforward. [ 9 ] The complainant is Kenneth Oates. The record is clear that Mr.

Oates and the appellant had an acrimonious relationship of some sort prior to the alleged offence. The history of their relationship was not canvassed in any detail at the trial given a concern about prior disreputable conduct evidence, which is prima facie inadmissible. The Crown elected to stay clear of any such evidence and essentially elicited a narrative from the complainant that began and ended with the altercation at the library. [ 10 ] The appellant and Mr. Oates, on the day in question, appear to have met by coincidence at the entranceway to the library.

Their evidence converged on that point, and little else. The Complainant’s Evidence [ 11 ] Mr. Oates testified that the appellant blocked him from entering the library. When he turned to leave, the appellant began to follow him. Mr. Oates said he asked the appellant to stop following him to which the appellant replied, “no”, together with a string of profanities. The appellant had a friend with him who attempted to block Mr. Oates’ path and who said to the appellant, about Mr. Oates, “I’m going to kick his ass”. Mr. Oates said he then jumped a small fence and began to walk quickly across a parking lot.

The appellant followed him. Mr. Oates asked him to return to the library and stop following him, to which the appellant purportedly replied, “no”, saying that he was going to fight Mr. Oates. Eventually the appellant looked to his right and left and then took a swing at Mr. Oates with his right hand. Mr. Oates saw a blade in the appellant’s hand. The appellant’s swing failed to connect. At about that same time a car door slammed nearby and that distracted the appellant. Mr. Oates said he turned and quickly left and went straight to the police station.

The Appellant’s Evidence [ 12 ] The appellant testified in his own defence. He said that he was exiting the public library and, through a window, witnessed the complainant spit on his motorcycle. He walked up to the complainant and asked, “Why did you spit on my bike?” He told the complainant to clean it up. He said the complainant responded, “no”, and walked away, mumbling something about going to get some friends. That was the entirety of their interaction.

The appellant denied that he followed the complainant, or that he waived a knife or blade at him. [ 13 ] In cross-examination, Crown counsel suggested to the appellant that he must have been angry with the complainant for spitting on his motorcycle. He said he wasn’t angry, but rather concerned. The following exchange is critical to the appeal and was critical in the trial judge’s reasons: Crown: You said, “Clean up my bike.”? Appellant: Yes.

Crown: And you said it angrily? Appellant: I did not say it angry, I said it concerned. I didn’t use – I wasn’t polite because I don’t believe politeness should beused with something like that. He spit on my bike so I said, “Clean it up.” Crown: You had no reason to be polite to him? Appellant: Not when he spit on my motorcycle. Crown: Right, because you were angry with him? Appellant: No, I was not. Crown: You were upset with him? Appellant: I was concerned with my motorcycle. Crown: Right. How would spit damage your motorcycle?

Appellant: Well, it could damage the paint, and overall that it’s not really the paint it’s the sticker over top of it, it’s a decal. The Reasons of the Trial Judge [14] The trial judge’s reasons comprise about 2.5 pages of double-spaced transcript. They are brief to be sure. They consist of asummary of the evidence of each party, followed by three paragraphs of analysis.

In the end, the appellant’s evidence was rejected anda finding made that the Crown had proven the charge beyond a reasonable doubt based on the evidence of the complainant. [15] The following four sentences make up the substance of the trial judge’s findings: It was interesting when cross-examined [the appellant] kept insisting that he wasn’t angry, and he said that he was just concerned, mostunrealistic… On the subject of whether his motorcycle was spat upon or not, I can’t make any particular finding, but when he says that he was notangry it’s apparent that there was a great deal more happened than he let on.

When I combine that with the detail and realistic unfoldingof the story as presented by Mr. Oates, I have to reject the testimony of the accused, and I’m not left in any reasonable doubt on thismatter. I follow all three levels of R. v. W.D., and I still am convinced beyond a reasonable doubt that the defendant is guilty as charged. Analysis [16] I will review the issues raised in argument in turn. Issue One: The Alleged Misapprehension [17] The first ground of appeal can be easily dealt with. There was no misapprehension of evidence.

The appellant argued that thetrial judge focused too closely on the appellant’s denial of anger and failed to consider carefully enough his evidence that he wasconcerned and “not polite”. [18] There was a known history of acrimony between these two parties. The appellant said the complainant spit on hismotorcycle. He said that made him concerned about the integrity of a decal on his bike and so he asked the complainant, in a less thanpolite way, to clean it up. No reasonable person is likely to believe that he was not angry in the circumstances.

I wholeheartedly agreewith the trial judge’s assessment of that aspect of the appellant’s evidence as “most unrealistic”. Issue Two: The Rejection of the Appellant’s Evidence [19] The appellant urges the Court to conclude that the trial judge did not articulate a sufficient basis for rejecting his evidence. The argument embraces two connected issues: whether the reasons were sufficient; and the level of deference to be paid to a trial judge’scredibility findings. The Court of Appeal very recently addressed these connected issues. In R. v.

J.J.B., 2013 ONCA 268, released threedays after the argument of this appeal, Jurianz J.A. set out the general principles that apply in the circumstances where credibility reasonsare impugned (paras. 20-24): Reasons are reviewed for their functionality, not their eloquence. As stated in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, atparas. 25-26, an appeal will only be allowed where the reasons are so deficient as to foreclose meaningful appellate review.

Further, reasons for judgment cannot be assessed standing alone: “reasons for judgment must be examined in the context of the entireproceeding, especially the nature of the evidence heard and the arguments advanced”: R. v. J.J.R.D. (2006), (ONCA), 215 C.C.C. (3d) 252, at para. 32 (Ont. C.A.). See also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. Where the reasons relate to the assessment of credibility, the sufficiency of reasons must be assessed in light of the deference accorded totrial judges’ credibility findings: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R., at para. 26.

An appeal court must defer to the trialjudge on findings of credibility, absent palpable and overriding error: see H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1S.C.R. 401, at para. 53. Thus, “[r]arely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons forjudgment, merit intervention on appeal”: Dinardo, at para. 26.

The trial judge has the significant advantage of seeing and hearing the evidence of witnesses: see R. v. W.(R.), (SCC),[1992] 2 S.C.R. 122, at p. 131. This deference acknowledges the difficulties both in assessing credibility and articulating the reasons aperson is believable. As the court said in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. It is only where the reviewing court has considered all of the evidence before the trier of fact, and determined that the credibilitydetermination cannot be reasonably supported by that evidence, that the court can overturn it: see R. v. Gagnon, at para. 10. [20] I can find no palpable or overriding error in the trial judge’s assessment of credibility.

While his analysis is brief, the trialevidence was brief as well. In other words, while brief, it was proportionate. The trial judge identified three main points to support hisfindings of credibility: (

i) The appellant’s wholly unrealistic insistence that he was not angry about the alleged spit on his motorcycle. The trial judgefound that the appellant was clearly not being forthright in his evidence; (ii) The significant detail in the complainant’s evidence and, more generally, the realistic unfolding of Mr. Oates’ narrative – it’sinherent plausibility; and, (iii) The acceptance, beyond a reasonable doubt, of Mr. Oates’ evidence – which directly conflicted with that of the appellant –inevitably meant the rejection of the appellant’s evidence. As Doherty J.A. held in R. v. J.J.R.D., (ON CA), [2006]O.J.

No. 4749, 215 C.C.C. (3d) 252, at para. 53, “An outright rejection of an accused’s evidence based on a considered and reasonedacceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of anaccused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’sevidence.” [21] After having carefully considered the trial evidence, I am not in a position to find that the trial judge’s credibility findingscannot be supported by the evidentiary record.

I must, in the circumstances, defer to his findings. He, not I, saw and heard all of theevidence as it unfolded at trial. Issue Three: The Application of W.(D.) [22] The Supreme Court’s ruling in W.(D.) reminds trial courts to apply the reasonable doubt standard to the assessment ofcredibility. Where an accused has testified, as was the case here, the trial judge must first determine if he or she believed the evidence ofthe accused. If the evidence of the accused was exculpatory and believed, then the accused must be acquitted.

Even if the trial judgedid not believe the evidence of the accused, however, if it raised a reasonable doubt about the guilt of the accused, then an acquittal mustbe entered. Finally, even if the evidence of the accused did not raise a reasonable doubt, the accused could only be convicted if theevidence that the trial judge chose to believe and rely upon satisfied him or her of the guilt of the accused beyond a reasonable doubt. While there is no magic to the wording of the formula set out in R. v. W.(D.), it is important that its principles be applied: R. v.

Paul,2010 ONCA 151. [23] Here, the trial judge clearly cited W.(D.). But referencing the name of the case is not a proxy for applying its principles. Theappellant argues, essentially, that the trial judge treated this case as a credibility contest and ultimately preferred the evidence of thecomplainant to that of the appellant. He argues that the trial judge failed to adequately articulate why his evidence did not raise areasonable doubt. [24] The trial judge did comment on the “three levels” of W.(D.).

Clearly he was alive to the fact that there is a middle tier – thematter of whether the evidence of an accused, even though rejected, may yet raise a reasonable doubt. [25] I agree with the appellant’s counsel that the reasons on the middle branch of W.(D.) could have been more fully articulated. But I also accept that it is a very difficult task at times to articulate just why someone’s evidence does not even raise a reasonable doubt. Here, the trial judge essentially wholly rejected the appellant’s version of events, though to be fair, he did find that he could not saywhether the motorcycle was ever spat upon.

A trier of fact may of course accept and rely upon some, all or none of what a givenwitness had to say. Even where all of the evidence of an accused is rejected, however, it may yet raise a reasonable doubt. Here it didnot. The trial judge said as much. Though the reasons are brief, they do not, in my view, demonstrate a failure to apply the reasonabledoubt standard to the issue of credibility. Indeed, the trial judge not only said he was rejecting the appellant’s evidence about whathappened during the altercation, he expressly said that the evidence did not raise a reasonable doubt.

The testimony of the complainant,on the other hand, was evidence he chose to accept and rely upon and he was satisfied that it established the guilt of the accused to thereasonable doubt standard. I can find no flaw in the application of the principles of W.(D.). [26] In the result, the appeal is dismissed. Boswell J.

Released: May 22, 2013