



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boston, 2013 ONCA 498

DATE: 20130729

DOCKET: C51713

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renagi Boston

Appellant

Russell Silverstein, for the appellant

Michael Medeiros, for the respondent

Heard: May 16, 2013

On appeal from the convictions entered by Justice S. Gail
    Dobney of the Ontario Court of Justice on July 22, 2009.

Tulloch J.A.:

A.

OVERVIEW

[1]

Following a chase by police, the appellant was arrested on an
    outstanding warrant. During the officers attempt to effect the arrest, a
    scuffle ensued and injuries were occasioned to one of the officers, PC
    Steffler. The appellant also suffered significant injuries including a broken
    nose and a hematoma in his scrotal area.

[2]

The appellant was charged with assault causing bodily harm to PC
    Steffler and assault of PC Steffler with the intent to resist arrest. At trial,
    the appellant brought a
Charter
application for a stay of proceedings and
    alleged that his s. 7 rights were infringed because of the excessive force used
    by police during his arrest.

[3]

In her reasons for judgment, the trial judge preferred the version of
    the events given by the officers, dismissed the appellants
Charter
application,
    and convicted the appellant of both offences.

[4]

The appellant appeals from his convictions. Although the appellant
    raises a number of issues in his factum, the appellants principal submission
    is that the trial judge erred by misconstruing the burdens on the
Charter
application
    and the trial proper.

[5]

For the reasons that follow, I have concluded that the convictions
    should be set aside and a new trial ordered on the basis of the appellants
    principal submission. In these circumstances, it is not necessary that I
    address the balance of the issues raised by the appellant.

B.

BACKGROUND

(1)

Ms. Braithwaites
    version of events

[6]

The trial proceeded as a blended
voir dire
and trial. The
    testimony from the officers, and the evidence from the defence witness, Ms.
    Braithwaite, was largely uniform. In essence, the appellant fled from the
    police, was tackled by one officer and then tasered as he attempted to scale a
    fence. Ms. Braithwaites account of what happened after the police subdued the
    appellant differed from the officers accounts. Ms. Braithwaite testified that,
    after the police had subdued the appellant, she observed an officer elbow the
    appellant repeatedly in the face and kick him in the groin. Immediately after,
    Ms. Braithwaite heard the appellant yell, he kicked me in my balls.

(2)

The officers version
    of events

[7]

PC Steffler and two other officers testified that on July 3, 2008, they
    were on uniformed bike patrol and were looking for the appellant to arrest him
    on an outstanding warrant for assault.

[8]

The officers testified that after they approached the appellant and
    touched his forearm, he fled on foot. They gave chase on bicycles, eventually
    tackling the appellant to the ground.

[9]

The appellant freed himself and continued running. When he tried to get
    over a fence, an officer fired a taser gun at him. The officers pulled the
    appellant to the ground, but he continued to struggle and thrash and tried to
    slip his lower body under the fence.

[10]

One
    of the officers, Sgt. Tobin, observed the other officers punching the appellant
    while he was on the ground. Another officer again fired the taser gun and the
    officers eventually subdued the appellant and handcuffed him.

(3)

The trial judges
    reasons

[11]

The
    trial judge identified at the outset of her reasons that two of the major
    issues before her were whether the appellants
Charter
rights had been
    breached and whether the offences were proven beyond a reasonable doubt. The
    issue of excessive police force was relevant to both these inquiries.

[12]

The
    trial judge noted that as between the testimony of the officers and that of Ms.
    Braithwaite, there was a live controversy about the use of force applied in
    effecting the arrest of the appellant.

[13]

In
    making her credibility findings, the trial judge reasoned that any
    inconsistencies in the officers testimony could be explained by the fact that their
    observations were made in the context of an intense physical struggle. The
    trial judge concluded that Ms. Braithwaite, on the other hand, had been less
    than candid with the court. Accordingly, the trial judge preferred the evidence
    of the officers and, where there was any inconsistency between the officers
    evidence and Ms. Braithwaites, she preferred the former.

[14]

As
    a result, the trial judge rejected the assertion that the officers kicked the
    appellant in the testicles while he was handcuffed on the ground. Instead, she
    found that the injury to the appellants testicle was consistent with being
    pulled off the fence. The trial judge concluded that the appellant deliberately
    grabbed PC Stefflers finger and snapped it back, thereby assaulting him with
    the intent to resist arrest and causing the officer bodily harm. She further
    found that the appellant bit PC Stefflers finger, causing the officer to
    reflexively strike back in self-defence by hitting the appellant in the head.
    In the circumstances, the trial judge found that the appellants s. 7
Charter
rights were not breached.

[15]

Turning
    to the charges themselves, the trial judge then stated:

Since I do not find a
Charter
breach, and pursuant to
    the findings of fact that I made above, it follows that I find the accused
    guilty of both charges as laid.

(4)

Submissions of the
    parties

[16]

The
    appellant submits first, that the trial judge treated the defence witness Ms. Braithwaites
    evidence as unworthy of belief simply because it differed from that of the
    police officers. The appellant points to specific instances to demonstrate that
    the trial judge misapprehended or, at the very least, did not take a robust or
    thoughtful approach to considering Ms. Braithwaites evidence.

[17]

The
    appellants second and principal submission is that the trial judge
    misconstrued the burdens of proof applicable to her conclusions on the
Charter
application and the findings of guilt on the offences for which the
    appellant was tried.

[18]

The
    respondent, on the other hand, argues that the appellant has not demonstrated
    that the trial judge misapprehended any of Ms. Braithwaites evidence to such
    an extent that would warrant appellate intervention.

[19]

With
    respect to the issue of misconstruing the burdens in the blended
voir dire
and
    trial, the respondent notes that the trial judge heard the submissions of
    counsel on both the
Charter
application and the trial at the same
    time. Accordingly, her reasons must be read as a whole and in the context of
    the entire record. In the Crowns submission, the trial judges reasons
    demonstrate that she knew exactly how and to what standard the Crown would have
    to prove its case.

C.

ANALYSIS

(1)

The
    applicable burdens of proof

[20]

As
    I indicated earlier in these reasons, the trial proceeded as a blended
voir
    dire
and trial. Accordingly, the Crown and defence made submissions on
    both the
Charter
application and the trial proper contemporaneously.

[21]

The
    trial judge rejected Ms. Braithwaites evidence and reached her ultimate
    conclusion on the guilt of the appellant in one paragraph:

Since I do not find a
Charter
breach, and pursuant to
    the findings of fact that I made above, it follows that I find the accused
    guilty of both charges as laid.

[22]

In
    my view, the trial judge erred by finding the guilt of the appellant in this
    manner. The trial judges ultimate conclusion gives no indication that she
    applied the proper standard of proof.

[23]

In
    a
Charter
application, the burden of proof is on the defence to
    establish a breach on a balance of probabilities.  In a criminal trial, the
    burden of proof is on the Crown to establish the guilt of the accused beyond a
    reasonable doubt.

[24]

In
    a trial with a blended
voir dire
, the trial judge is still required to
    separate the burdens and apply the appropriate onus in disposing of both the
Charter
application and the trial proper.

[25]

To
    determine whether the appellants guilt had been established, the trial judge
    was still required to consider whether, on all of the evidence, the elements of
    the offences charged had been proven beyond a reasonable doubt. From the
    paragraph quoted above and the balance of her reasons, I am not satisfied that
    this is the approach the trial judge took. As this court stated in
R. v.
    Bucik
, 2011 ONCA 546, 87 C.R. (6th) 309, at para. 33: [t]he lesson from
R.
    v. W. (D.)
, [1991] 1 S.C.R. 742, is that assessments of the credibility or
    reliability of exculpatory evidence in a criminal case do not raise either/or
    choices, but
must reflect the application of the burden of proof placed on
    the Crown to prove its case beyond a reasonable doubt
 (emphasis added).

[26]

Even
    though she completely rejected Ms. Braithwaites evidence on the
voir dire
,
    the trial judge should have made it clear that, at the
voir dire
stage
    of the proceedings, the defence had not discharged its onus in establishing a
Charter
breach.

[27]

Having
    found that there was no
Charter
breach, in applying the evidence from
    the
voir dire
to the trial proper, the trial judge was then required
    to ask herself whether, on all the evidence, she was satisfied that the Crown
    had discharged its onus in establishing the guilt of the accused on the
    offences charged, beyond a reasonable doubt. In failing to do so, the trial
    judge committed a legal error.

[28]

I
    cannot conclude from her reasons that she properly undertook this exercise and
    applied the correct burden of proof in order to convict the appellant of the
    offences charged.

[29]

Accordingly,
    the appellants convictions cannot stand. I would allow the appeal, set aside
    the convictions and order a new trial.

Released: DW  July 29, 2013

M.H. Tulloch J.A.

I agree. D. Watt J.A.

I agree. P.D. Lauwers
    J.A.


