Comment: Credibility Assessment, an Enigmatic but Deferential Process

Trial judges are often deferred to on various rulings and findings including credibility findings. This trite statement of the law is logical and easy to accept. Trial judges watch witnesses testify, they see their demeanour, observe their body language and observe them reacting and answering questions under the friendly atmosphere of examination in chief and under the less friendly atmosphere of cross-examination.
In the recent decision of R v BA, 2011 ONCA 603, that deference does not appear to have been offered.
The appellant was convicted after trial having taken the stand in his own defence. In convicting the appellant the trial judge, De Filippis J, listed four reasons why he rejected the accused’s evidence. One of those reasons was the fact that the appellant was not “totally forthright about the extent of his criminal record” [para 1]. In fact the trial judge found that “the appellant deliberately failed to disclose his complete record” [para 1].
Defence counsel put the appellant's record to him in chief. The record presented, however, did not include the appellant's three most recent convictions. Defence counsel asked the appellant whether the record “accurately reflects your criminal record” to which the appellant replied “yes it does” [para 2].
During cross-examination the appellant volunteered that he was waiting for his license suspension to end; this prompted the Crown to ask whether the suspension was as a result of a criminal conviction and the appellant replied that he had recently been convicted of impaired driving. The appellant later testified under cross-examination that he had also been found guilty of two breaches of recognizance.
On appeal the appellant argued that the trial judge erred in relying on this part of his evidence as a basis to reject his evidence.  The Court Appeal found that in “neither of these instances was the appellant being evasive or deliberately trying to hide his record” [para 3] and that "the trial judge was not justified in using it to make an adverse credibility finding” [para 4].
In allowing the appeal on that ground alone the Court of Appeal held that the "error in finding that the appellant’s initial mistake and acknowledgement of his record was not 'innocent' irretrievably tainted his credibility finding" [para 4].
With respect, this conclusion appears to have failed to pay appropriate deference to De Filippis J in the circumstances.
First, even if the appellant "offered" the additions to his criminal record during cross-examination it could be open to the trial judge, based on the way in which he offered them and the manner in which it unfolded to find that it was not as forthcoming as it appeared on the transcripts. 
Second, the accused having looked at the record produced answered that it the document “accurately reflects [his] criminal record.” Nothing in the evidence reveals that the accused did not understand the question. Thus, having observed the accused testify, the trial judge’s finding that the accused was not forthcoming and in fact was being deceitful should be owed far greater deference. This is especially so where this was but one of four reasons that the trial judge rejected the accused’s evidence.

Third, as held by Charron J in R v Dinardo, 2008 SCC 24 at para 26 it will be rare for an appeal court to intervene in these circumstances:
Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal [emphasis added].
While the Court of Appeal may have fairly disagreed about the impact of this aspect of the appellant's evidence, with respect, the deference owed to the trial judge was not properly considered.

 
DG Mack

New & Notable: Affirming the Castle Doctrine

Cedric Forde killed Clive McNabb.  He stabbed him.  At trial he admitted he had done so.  The question that was left for consideration by the jury, however, was whether he was justified in doing so.  Forde alleged that he acted in self-defence when McNabb came at him on his property with a knife.  In charging the jury on the claim of self-defence the trial judge noted that the jury should consider "the availability of other options for Cedric Forde to extricate him from the confrontation with Clive McNabb" [para 30]. 
Forde was convicted and appealed.  On appeal he argued that the trial judge erred in charging the jury that retreat was a relevant consideration.  The Ontario Court of Appeal agreed: R v Forde, 2011 ONCA 592.

McNabb was the former spouse of Forde's common law partner.  Both were also involved in drugs.  On the date of killing McNabb had attended at Forde's place; he apparently had done so as he understood that Joe Grasso was there - Grasso owed McNabb some money for a drug debt.
Ultimately McNabb ended up in Forde's bedroom and an argument ensued between he and Allamby (the common law partner of Forde).  Forde then entered the bedroom and an argument ensued between them.  McNabb came at Forde with a knife and Forde retrieved a knife from the closet and stabbed McNabb once.
Forde was convicted of manslaughter by a jury.  He appealed.
On appeal the central issue was whether retreat was a relevant consideration under section 34(2).  After a review of English, American and Canadian authorities the court offered the following conclusion:
Having regard to these authorities, I reject the Crown's position that while retreat from one’s own home is not a necessary element to claiming self-defence, it may nonetheless be a factor for the jury to consider. By giving an instruction along the lines the Crown suggests, the danger would always remain that the jury would all too quickly leap from the factor of retreat to the inference that there is no entitlement to self-defence. As the case law referred to above establishes, a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence under s. 34(2).  [Emphasis added].
 
DG Mack

New & Notable: Apparently, What you Want and What you Need is not always the Same

Antonio Jones was a drug dealer. Scott Larriviere was a client and owed Jones some money. On 18 September 2004 the two met. Larriviere was to pay Jones the money owed and then drive him to some other customers in exchange for some more drugs.

Things did not go as planned. While sitting in Larriviere's truck Jones struck Larriviere in the head with a metal bar. Larriviere suffered irreversible brain damage and ultimately died after spending a year in hospital.

Jones was charged with second-degree murder. He was convicted of manslaughter after a jury trial. He appealed. The appeal was dismissed: R v Jones, 2011 ONCA 584.
On appeal the apppellant raised two grounds of appeal. First, the appellant alleged that the trial judge erred by failing to correct a misstatement by the Crown (which was then amplified by the trial judge) about when or where two photographs of the truck were taken - the photographs were relevant to a claim of self-defence which was obviously rejected. Second, the appellant alleged the trial judge erred by not insisting the jury hear the answer to their question about when the photos were taken - the jury returned their verdict without hearing the answer.
 

With resepct to the first ground of appeal, Laskin JA, for the court, first considered if in fact there was a misstatement. After reviewing the comments of the Crown and judge, Laskin JA accepted that the comments of the Crown could have been misleading and that this might have been reinforced by the trial judge [paras 26-37]. Despite this, Laskin JA held that the initial misstatement, "at its highest" was "quite modest" [para 40]. In doing so Laskin JA noted that a trial judge is not required to correct every misstatement of fact by counsel. Moreover, he pointed out that no objection was made by counsel at the time and the trial judge instructed the jury that it is their collective memories which form the basis of their deliberations not counsel's submissions. Finally, Laskin JA noted that the jury apparently appreciated this misstatement as they asked for clarification.
With respect to the second ground or appeal, Laskin JA noted the jury question as follows: "Could you please confirm that exhibits/photographs 10(a) and 24 were taken at the crime scene?" [para 47]. The photographs in question include a photograph which showed an open ashtray with ashes in it (no ashes were strewn about the interior - offering evidence to rebut the self-defence claim) and the other photograph was a picture that showed a pair of scissors sitting precariously on the dash.
Prior to providing an answer (which would have been "I cannot confirm that the photographs were taken at teh crime scene) the jury returned with a verdict. Before accepting the verdict (something both counsel agreed could be done) the trial judge offered the following to the jury:
Okay. Thank you. Have a seat. Thank you, members of the jury. We understand you have reached a verdict. By that e also understand that you no longer needed the answer to the question that you had sent us. We were prepared with an answer just as we were getting your note. If we are wrong in that assumption, you should advise us. If you want some time to think about that, you may step outside and think about it. If we are not wrong in that assumption that you no longer needed the answer to the question in order to reach your verdict, then the foreperson should give the verdict to the CSO. Okay. Poll the jury. Okay. The Registrar will poll you now [para 52].
Laskin JA dismissed this ground as well. In doing so, he held as follows:
Indeed, I find it hard to see what the trial judge did wrong. She gave counsel an opportunity to consider what to do. She proceeded in the manner she did with their agreement. She gave the jury an opportunity to have its question answered before delivering its verdict. And, although the jury did not explicitly advise the trial judge it no longer needed its question answered – as the jury in Sit did – it did so implicitly by giving its verdict [para 56].
Laskin JA went on to expressly agree with the Crown’s submission that “It would not have been appropriate for the trial judge to question why the jury no longer wanted its question answered or to require the jury members to hear an answer when they had indicated that it was not needed” [para 57].

 
DG Mack

New & Notable: Deterring Commercial Fraud

Garth Drabinsky and Myron Gottlieb are headed to jail; the Ontario Court of Appeal today dismissed their conviction appeals: R v Drabinsky, 2011 ONCA 582.  They wont be spending as much time there as was originally thought however. 

Drabinsky and Gottlieb established Cineplex in the 80s.  The two quickly built that business to great success and in 1989 left Cineplex after acquiring its live entertainment division.  The two then formed a partnership called MyGar.  This company operated until the sprint of 1993 when it made a public offering and became a public company known as Livent. 

Drabinsky and Gottlieb were large shareholders in Livent and fully controlled its operations.  The business was a notable success.  In 1998 there was a significant change in the management of Livent when new investors came in to run the financial side of the business. 

The new accountants began to ask some questions.  It turned out that the books of Livent had been fraudulently altered and did not reflect the true financial state of the company.  Drabinsky and Gottlieb were immediately locked out of the company and the new investors began to pursue them in relation to the fraud. 
Livent declared bankruptcy five months later. 

Drabinsky and Gottlieb were ultimately charged and convicted.  Drabinsky was sentenced to seven years jail and Gottlieb to six years [para 154].  They appealed.

After dismissing the conviction appeal the court turned to consider the sentence appeal.  In doing so the court considered, inter alia, the argument advanced that the judge erred in principle by focusing on general deterrence; the appellants argued that there was "little concrete evidence to support the contention that longer sentences provide more effective general deterrence than shorter jail terms" [para 158].  In response thereto the court held:
[T]his court and all other provincial appellate courts have repeatedly held that denunciation and general deterrence must dominate sentencing for large scale commercial frauds. Denunciation and general deterrence most often find expression in the length of the jail term imposed [para 160]; [emphasis added].    
The court then considered the range of available sentences and offered the following comments in relation to the suitability of the sentence: 
 
First, the investigation and prosecution of crimes like these is difficult and expensive. It places significant stress on the limited resources available to the police and the prosecution. An early guilty plea coupled with full cooperation with the police and regulators and bona fide efforts to compensate those harmed by the frauds has considerable value to the administration of justice. The presence of those factors, depending of course on the other circumstances, may merit sentences outside of the range.

Second, individuals who perpetrate frauds like these are usually seen in the community as solid, responsible and law-abiding citizens. Often, they suffer personal and financial ruin as a result of the exposure of their frauds. Those factors cannot, however, alone justify any departure from the range. The offender’s prior good character and standing in the community are to some extent the tools by which they commit and sustain frauds over lengthy time periods. Considerable personal hardship, if not ruin, is virtually inevitable upon exposure of one’s involvement in these kinds of frauds. It cannot be regarded as the kind of unusual circumstance meriting departure from the range [paras 166-167]. 
 Nonetheless, the Court of Appeal held that the failure of Livent could not be attributed solely to the appellants.  The causes of the failure were "numerous and complex"; the losses caused by the bankruptcy cannot be laid "entirely at the feet of Drabinsky and Gottlieb" [para 182].  In the absence of proof of the actual financial loss a sentence lower than that imposed was appropriate.  
 

Based on this finding - one which was not made by the trial judge - the Court intervened and reduced the sentences to five years for Drabinsky and four years for Gottlieb.

 
DG Mack

New & Notable: Addressing the Scourge of Guns and Drugs

Tyler Batson shot and killed Paul Marcelus in an Ottawa apartment on 17 December 2008. Batson testified at his trial that he shot Marcelus during a struggle that had erupted when he attended the apartment to buy drugs. The Crown had alleged that the shooting was an execution. 
Batson was convicted of second-degree murder – apparently the jury had not found, beyond a reasonable doubt, that the shooting was an execution.
Last week Justice Roy sentenced Batson to life imprison (the mandatory sentence) with an order that he serve 12 years before being eligible for parole. As reported by Andrew Seymour in a 9 September 2011 Ottawa Citizen article, Judge condemns guns, drugs before sentencing Batson to life Justice Roy offered the following comments in support of increasing the parole ineligibility period above the minimum 10 years: “The combination of guns and drugs result in very tragic and serious, deadly consequences”.

The concern over the carrying and use of guns in the community has also recently been noted in the case of R v Chevers, 2011 CarswellOnt 8844, 2011 ONCA 569. Chevers was convicted of attempted murder. The trial judge described the aggravating circumstances in that case as follows:
The facts here are alarming. It calls for, because of the nature of the event and specifically the use of a handgun, greater sanctions for the benefit and welfare of our community and for the public interest.

Here we have a situation where Mr. Chevers, in an unprovoked, premeditated, cold-blooded manner, attempted to murder [the victim], and by mere chance, he missed: probably because he was using a 22 calibre weapon [para 4].

Chevers was sentenced to 15 years jail. He appealed.
The Court of Appeal held that sentences for “planned executions involving the use of loaded firearms” warrants double digit sentences. In upholding the sentence the court noted that the premeditation, use of a prohibited handgun, the appellant’s criminal record and the impact on the community justify such a sentence [paras 8-9].
 
DG Mack

New & Notable: Judges are Presumed to Know the Law Even if they Don't Tell us

In the recent case of R v Chevers, 2011 ONCA 570 the Ontario Court of Appeal, for the second time this year, has unequivocally rejected the notion that trial judge's must articulate the law upon which they rely in rendering their judgements.  
Christopher Chevers was convicted by Scott J, sitting without a jury, of attempted murder and two other firearm offences.  The central issue at trial was identity and that issue relied almost entirely on the victim; the victim's credibility was hotly contested by the defence who pointed out many of lies told by the victim under oath.  
Chevers was convicted and appealed.
On appeal Chevers argued that the "trial judge was mandated to give himself a Vetrovec warning of the danger of acting on the victim's evidence without other evidence of confirmation" [para 2].  In rejecting this argument a unanimous Court of Appeal explained that a Vetrovec warning "is intended to alert juries to the dangers of relying on the evidence of certain witnesses" [para 4]; [emphasis added].  The court continued:
Judges know the risks in relying on the testimony of witnesses like this victim; thus there is no requirement that a judge sitting alone recite a Vetrovec caution in his or her reasons for judgment [para 4]; [references omitted]. 
Earlier this year in R v Snyder, 2011 ONCA 445 the Court of Appeal rejected the same argument holding that to require that "judges articulate those dangers in their reasons...would be pure formalism" [para 24].

 
DG Mack

New & Notable: Fighting an Intractable Problem?

Impaired driving has proven to be an intractable problem.  Society's abhorrence of it is palpable.  According to MADD Canada, in 2007 at least 1,239 of the 3,045 motor vehicle fatalities in Canada were alcohol related.  It is not surprising, therefore, that the Ontario Court of Appeal recently recognized the reality that there are - and needs to be - increases in the sentences being imposed in impaired driving causing death cases: R v Kummer, 2011 ONCA 39.
As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased [para 15]; [emphasis added].
In a decision released August 31 Jack Tobin was sentenced to three years for impaired driving causing death: R v Tobin, August 31, 2011 (see copy of judgement at Ottawa Citizen). 
Tobin had been out drinking with friends including the victim, Alex Zolpis.  Eventually the group made their way back to Tobin's truck which was parked in a parking garage in downtown Ottawa.  The group continued to drink in the truck and one of them said "a couple of times to Mr Tobin 'you are not driving' and he replied 'no'" [para 4].  He did drive however.  He first drove his truck up a couple of levels to the top of the parking garage which was uncovered and had two foot wall surrounding it.  Tobin then began doing donuts.  Somehow his friend Zolpis fell out.  He was caught under the truck and was killed.
Tobin pleaded guilty. 
Andrew Seymour (reporter for the Ottawa Citizen) reported Tobin's comments in court at the sentencing hearing:
Jack Tobin said he hoped his "unforgivable" and deadly mistake while driving drunk would be a lesson to others during an emotional apology in court Friday to the family of the friend he killed. 
Others likely had hoped that not only his mistake but also the sentence imposed for it would be a lesson to others.  Some are disappointed at the sentence imposed and feel it will not serve as a lesson.  Zolpis' fiancé offered the following in this regard: "Jack Tobin gets one year in jail [referring to the fact that he will likely be out on parole in one year] and Alex gets his life lost".  (See similar discontent expressed in comments on the CBC).
The discontent with the sentence is understandable perhaps.  A review of recent cases from the Ontario Court of Appeal might have lead some to believe more jail time would have been imposed.
In Her ruling Judge Maisonneuve reviewed some of those cases: R v Ramage, 2010 ONCA 488 and R v Junkert, 2010 ONCA 549.  In those cases the Court of Appeal upheld sentences of four and five years respectively for impaired driving. 
More recently the Court of Appeal upheld a sentence of five years in R v Niganobe, 2010 ONCA 508, four and a half years in R v Turnbull, 2011 ONCA 121. 
While each case will turn on its own facts and there is an almost infinite range of mitigating and aggravating factors, it is apparent that the Court of Appeal is recognizing by upholding an increase in sentencing for impaired driving causing death cases.  
Kumm  er is another example of this trend.  In that case the Court of Appeal upheld a sentence of eight years.  Kummer had no criminal record but other factors weighed heavily in imposing and upholding that sentence:
The appellant did not have a criminal record and he cannot be treated as having one. His driving record, however, is significant. In October of 2007, the appellant was convicted of careless driving and failing to report an accident in relation to an incident in which, after consuming three drinks and allergy medication, he drove onto the runway at the London airport and jumped approximately 60 metres through airport antennas. He then left his car, walked through the airport terminal, and took a cab home. The incident caused $127, 000 in damage to the vehicle and the airport.
The 2007 incident should have served as a "wake-up call" to the appellant. It should have impressed upon him the danger he posed to himself and others when driving in an altered state. Clearly it did not. Following the 2007 incident, the appellant's parents spoke with him about the dangers of drinking and driving. This also obviously had little effect on him. The appellant received one final warning just minutes before the fatal crash. His friend and passenger, Randy Psaila, warned him to slow down. Again, tragically, this warning had no impact on the appellant. While it would be difficult to believe that any person in Canada could be ignorant of the dangers of drinking and driving, the appellant had particular reason to be aware of the risk he posed in doing so. His decision to disregard that risk is an important factor that can and should be considered in determining an appropriate sentence [paras 25-26]; [emphasis added].
The similarities with the Tobin case are notable.  Tobin too had a driving record - 11 speeding convictions and 3 driving suspensions [para 18].  Tobin too had a "wake up call" - another incident of doing donuts after some drinking this time with someone holding onto the roof racks of his car and falling off [para 17].  Tobin also had a brush with the law in regard to impaired driving - on August 29, 2009 he blew 84 and 80 (legal limit is 80) but was not charged [para 17].  Tobin too had warnings just before the fatal incident when one of the passengers said "you are not driving".  Tobin too should have been acutely aware of the dangers of drinking and driving.
Despite these similarities and background the judge imposed a sentence of three years.  In doing so, Her Honour ruled that the "paramount principles of general deterrence and denunciation can be satisfied with a lesser penitentiary sentence" [para 69].
If sentences of four, four and a half, five and eight years have been imposed recently in an attempt to deter and denounce this abhorrent conduct, one might reasonably wonder how a sentence of three years will achieve these objectives.
 
 
DG Mack