Her Majesty the Queen Respondent – v. –, 2017 ONSC 3698

CITATION : R. v.

Warford, 2017 ONSC 3698 COURT FILE NO. 1562/12 DATE : 20170614 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen Respondent – and – Marvin Warford Appellant Rebecca Griffin, for the Crown Mark Halfyard, for the appellant Heard: December 8, 2016 Bale J.: REASONS FOR DECISION [ 1 ] The appellant raises three grounds of appeal: • that the trial judge erred in relying upon the timing of the complainant’s call to police to corroborate her evidence; • that the trial judge erred in compartmentalizing his credibility analysis, as between the charge of assault with a weapon, and those of sexual assault; and • that the trial judge committed palpable and overriding errors of fact in his assessment of the complainant’s credibility.

Timing of complainant’s call to police [ 2 ] The passage in the trial judge’s reasons for judgment relied upon by the appellant reads as follows: These photographs and Constable Humphries’ observations of her demeanour upon his arrival, and his review of her injuries, corroborates to a great extent where he hit her and what happened in the bedroom. The alarm clock out of the socket, and the lamp having been knocked over, and that the call was made shortly after this event.

She provides the audio statement that same day confirming her description of the events and her injuries. [ 3 ] The appellant argues that the fact that a person makes an allegation, or contacts the authorities shortly after the event is not, in itself, corroborative of the truthfulness of the allegation. I agree that a prior consistent statement cannot be used to confirm the truthfulness of a witness’ evidence; however, a statement admitted as part of the narrative may be used to show the fact and timing of a complaint, which may help the trier of fact to assess the credibility of the witness: R. v.

T. (J.A.), 2012 ONCA 177 , at para. 99 . [ 4 ] The first ground of appeal therefore fails. Compartmentalization of credibility analysis [ 5 ] The appellant argues that in considering the complainant’s credibility, the trial judge compartmentalized his analysis as between the charges of sexual assault, upon which he acquitted the accused, and the charge of assault with a weapon , upon which he convicted the accused.

He argues that if the complainant was willing to lie about the sexual assaults, she could have been willing to lie about the assault with a weapon, and that the trial judge erred in failing to assess the assault with a weapon allegation in light of the negative credibility findings made in relation to the allegations of sexual assault. I disagree, for the following reasons. [ 6 ] First, the trial judge did not find that the complainant had lied about the sexual assaults.

In fact, he said that he was “highly suspicious that the [appellant] did sexually assault her”, but that a high degree of suspicion did not amount to being persuaded beyond a reasonable doubt. [ 7 ] Second, the trial judge did not compartmentalize his credibility analysis, and in fact, he compared the strength of the evidence on the two sets of charges.

In doing so, he found that the corroboration, which existed with respect to the charge of assault with a weapon, was missing in relation to the charges of sexual assault, and that without such corroboration, he was not satisfied, beyond a reasonable doubt, with respect to the latter charges. Whether the trial judge committed palpable and overriding errors of fact in his assessment of the complainant’s credibility

[ 8 ] The appellant argues that the trial judge made two palpable and overriding errors of fact in assessing the complainant’s credibility: (1) that the trial judge erred in finding that the complainant did not exaggerate her good points or the appellant’s bad points; and (2) that the complainant made admissions against her interest.

He argues that these findings of fact were contrary to the evidence, and that the trial judge used a more exacting standard in assessing the credibility of the appellant, than he did in assessing the credibility of the respondent. [ 9 ] However, the impugned findings of fact in relation to the complainant’s credibility were available to the trial judge on the evidence, and in any event, would have been unlikely to affect his disposition of the charge of assault with a weapon.

While there may have been inconsistencies in her evidence relating to other events, the trial judge was entitled to believe all, some or none of her evidence, and he believed her evidence in relation to the charge of assault with a weapon, in light of the corroborating evidence of Constable Humphries. Disposition [ 10 ] For the reasons given, the appeal is dismissed. “Bale J.” Released: June 14, 2017 CITATION : R. v. Warford, 2017 ONSC 3698 C OURT FILE NO. 1562/12 DATE : 20170614 ONTARIO SUPERIOR COURT OF JUSTICE Her Majesty the Queen – and – Marvin Warford REASONS FOR DECISION Bale J. Released: June 14, 2017