



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Short, 2020 ONCA 826

DATE: 20201218

DOCKET: C67591

Fairburn A.C.J.O., Watt and
    Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Short

Appellant

Erin Dann and Sarah Weinberger, for the
    appellant

Manasvin Goswami, for the respondent

Heard: December 8, 2020 by
    video conference

On appeal from the conviction entered by
    Justice Misener of the Ontario Court of Justice, dated August 14, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of aggravated assault. He appealed
    from conviction only. The appeal was dismissed with reasons to follow. These
    are those reasons.

[2]

The appellant and complainant were married. There is no dispute that
    they attended a party together or that the complainant consumed a large amount
    of alcohol at that party. It is what happened after the party  specifically,
    how the complainants jaw became broken  that formed the subject of the trial.

[3]

The appellant and complainants accounts as to how the injury was
    incurred differed wildly.

[4]

The appellant testified that after the complainant vomited on the floor
    of the upstairs hallway, she fell down the stairs. He said that he and a friend
    of his had to pick her up and put her into bed. It was not until the next day
    that the appellant said that he appreciated how seriously she had been injured
    in the fall, after which he encouraged her to get medical attention.

[5]

The complainant agreed that she was highly intoxicated when she returned
    from the party. She said that she vomited on the floor and then went to bed.
    She testified that she awoke to the appellant punching her in the face, while
    suggesting that she had been unfaithful to him. The complainant said that she
    knew how seriously injured she was, but that she delayed obtaining medical
    attention because she was, among other things, ashamed.

[6]

The complainant testified that, prior to attending at the hospital, she
    and the appellant spent some time developing an elaborate lie that they could
    tell the children and medical professionals about how the injury was incurred. Together,
    they came up with the story about her falling down the stairs.

[7]

Months after the broken jaw incident, the appellant and complainants
    marriage started to disintegrate. Almost a year after the incident, she
    reported the assault to the police.

[8]

The trial judge gave lengthy reasons for judgment. While the trial judge
    expressed concerns about the complainants credibility and reliability, she ultimately
    found that the complainant was telling the truth on the core allegation
    involving the appellant having punched her in the face. The trial judge also
    rejected the appellants version of events as a fabrication.

[9]

The appellant argues that the trial judges reasons reflect numerous errors.
    Most of the alleged errors relate to how the trial judge resolved credibility
    issues. The appellant takes issue with four of the trial judges reasons for
    accepting the complainants evidence about how her jaw became broken.

[10]

First,
    the appellant argues that the trial judge engaged in unacceptable speculation
    when rejecting the suggestion that the complainant was injured during a fall
    down the stairs. In particular, the appellant focuses upon two of the reasons
    given by the trial judge for why she did not believe that the complainant fell
    down the stairs: (a) there was no blood on the stairs; and (b) the complainant
    did not suffer any injuries to her body, other than to her face. In the absence
    of expert evidence, the appellant argues that it was inappropriate for the
    trial judge to rely upon these factors to reject the fall theory.

[11]

Considering
    the whole of the evidence, as the trial judge did, these were not findings upon
    which expert evidence was required.

[12]

The
    photos of the complainants bed, taken by her a few hours after the injuries
    were incurred, showed a pooling of blood on the linen. It was not unreasonable
    for the trial judge to infer, in light of the amount she bled, as reflected by
    the blood-soaked linen, that there would have been blood on the stairs if the
    injury had occurred there. This is particularly true given how the appellant
    described the position of the complainant when he said he found her slumped on
    her side at the bottom of the stairs. There was a solid evidentiary foundation
    upon which to come to this conclusion.

[13]

Nor was expert evidence required to draw inferences from the
    singular location of the complainants injury  her face. The impugned passage
    in the reasons reads:

Ms. Short had no injuries to any part of her body other than
    her lower face. I find it difficult to believe that she suffered no injuries to
    other parts of her body when she fell. I appreciate that she was significantly
    intoxicated so that she may not have reacted defensively when she fell.
    However, surely she would have hit some other part of her body at least causing
    soreness in a fall down the unfinished staircase. The only way for her to have
    fallen down the stairs and suffered the injuries she did and did not suffer was
    if she dove gracefully down the stairs leading with her chin. The physical
    evidence, therefore, does not support Mr. Shorts version.

[14]

This
    remark did not require expert evidence. It reflects nothing more than a
    commonsense observation that, if someone falls down a staircase, it is likely
    that she or he will experience some soreness or injury to a location of the
    body other than only her or his face. Moreover, both parties asked the trial
    judge to draw inferences from the injuries and lack of injuries. Neither
    suggested that an expert was necessary to do so because the subject matter was
    not outside the ken of a laypersons experience.

[15]

Next,
    the appellant raises a concern about the trial judges use of the delay in
    seeking medical attention to support the complainants credibility. The trial
    judge noted how obviously serious the injury was at 5:00 a.m., when the
    complainant took a photo of herself. Yet medical attention was not sought until
    10 hours later. We see no error in the trial judges conclusion that this delay
    in seeking medical attention, in the wake of such an obvious injury that cried
    out for medical attention, was consistent with the complainants version of
    events, that she and the appellant were involved in fabricating a story about
    what they would say happened.

[16]

The
    appellant also raises concerns about the trial judges conclusions about
    whether the complainants bedroom door was locked. Having regard to the whole
    of the evidence, it was open for the trial judge to come to the conclusion she
    did and we see no inconsistency in her approach.

[17]

This
    is equally true when it comes to the final piece of evidence that the appellant
    says was improperly used by the trial judge to support the complainants
    evidence. Once the marriage had dissolved and the parties had become embroiled
    in a heated custody dispute, the complainant sent a text message to the
    appellant, suggesting that he not punch his next partners face until you
    break it to which he responded I wont. The trial judge used this as an
    admission on the appellants part, one that supported the complainants version
    of events.

[18]

The
    appellant says that this admission was taken out of context by the trial judge and
    should have been considered against all of the appellants other text messages,
    suggesting a more benign picture.

[19]

We
    see no error in the trial judges approach. The appellants position is
    essentially rooted in a desire to relitigate this case and have this court draw
    different inferences from the evidence than the trial judge did. The trial
    judge had a good command over the evidence. All of the inferences drawn by her were
    available on the record. We see no error.

[20]

The
    appellant also claims that the trial judge erred in how she dealt with the
    complainants motive to fabricate. The trial judge accepted that the
    complainant had a strong motive to fabricate and that, in fact, she had
    threatened to blow up the [appellants] world, a threat made during the
    course of their heated separation and custody dispute.

[21]

In
    our view, the trial judge grappled with that motive to fabricate, acknowledging
    that it existed. As was open to her to do, though, she rejected the suggestion
    that the complainants motive to fabricate caused her to in fact fabricate  the
    core allegations. The trial judge gave detailed and careful reasons for why she
    believed the complainants core allegations. It was open to the trial judge to
    come to this conclusion. We see no error in her approach.

[22]

For
    these reasons, the appeal was dismissed.

Fairburn
    A.C.J.O.

David
    Watt J.A.

B.
    Zarnett J.A.


