



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Zaba, 2016 ONCA 167

DATE: 20160411

DOCKET: C60486

Watt, Lauwers and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Zaba

Appellant

Erec Rolfe, for the appellant

Dena Bonnet, for the respondent

Heard:  January 8, 2016

On appeal from the conviction entered on September 26,
    2014 and the sentence imposed on October 14, 2014 by Justice J.J. Douglas of
    the Ontario Court of Justice.

Huscroft J.A.:

[1]

The appellant appeals his conviction for several offences against his
    wife including assault causing bodily harm, assault, unlawful confinement, use
    of a firearm in the commission of an indictable offence, dangerous driving, and
    possession of a firearm while prohibited. Charges of assault, threatening, and
    careless use of a firearm were stayed under the principle set out by the
    Supreme Court in
R. v. Kienapple
,
[1975] 1 S.C.R. 729.

[2]

The appellant was sentenced to a term of imprisonment totalling 52 months
    for four separate incidents. This was reduced to 42 months and 15 days
    imprisonment after the appellant received credit of 9.5 months for pre-trial
    custody.

A.

Background

[3]

On March 17, 2014 the complainant attended at the police station with
    her sister and gave a detailed statement alleging that the appellant had abused
    her mentally and physically on several occasions. The complainants statement
    was made under oath and she was warned of the legal consequences of making a
    false statement. Her statement was videotaped by the police. Unusually, the
    complainants sister was with her while she made her statement.

[4]

The complainants statement detailed four separate events of domestic
    abuse at the hands of the appellant:

1. On November 14, 2013,
    the appellant punched her in the head several times, resulting in a ruptured
    eardrum.

2. On February 4, 2014, the
    appellant hit, elbowed, and punched the complainant, shoved a firearm in her face,
    and threatened to use a gun to kill her ex-boyfriend, who had custody of their
    children.

3. On February 14, 2014,
    the appellant hit the complainant in the head several times, spit in her face,
    and chased her as she ran away. He then followed her in his truck as she escaped
    in the truck of a stranger who stopped to help her.

4. On March 14, 2014, the
    appellant grabbed the complainant, hit and bit her in the face, and threw her
    in the back seat of his truck. When she tried to escape, he dragged her back to
    their trailer.

[5]

The complainant did not want to testify at trial and she did so only following
    her arrest on a warrant issued by the trial judge. During her the first day of
    her testimony, the complainant sat on the floor of the witness box and cried or
    appeared to cry. She said that she wanted to get back together with the
    appellant and denied having any memory concerning many of the events outlined
    in her statement. The complainant did not repeat this behaviour on the second
    day of her testimony, but maintained that she had little memory of the relevant
    events.

[6]

The trial judge admitted the complainants March 17, 2014 statement to
    the police into evidence for the truth of its contents, in accordance with the
    decision of the Supreme Court in
R. v. B. (K.G.)
, [1993] 1 S.C.R. 740
(K.G.B.)
.
    The other evidence against the appellant included photographs of the
    complainants injuries, taken March 17, 2014, and testimony from Mr. Valiquette,
    a neighbour of the complainants ex-boyfriend, who witnessed the February 4,
    2014 events and called 911.

[7]

The appellant did not testify at his trial.

B.

Issues

[8]

The appellant raises the following issues on appeal:

1.

Did the trial judge err in
    admitting the complainants March 17, 2014 statement to the police under the
    principled exception to the hearsay rule?

2.

Did the trial judge improperly
    assess the credibility and reliability of the complainant?

3.

Did the trial judge provide
    sufficient reasons for convicting the appellant of assault causing bodily harm
    (Nov. 14, 2013), assault (Feb. 14, 2014),
[1]
and
unlawful confinement (March 14, 2014)
?

4.

Did the trial judge render an
    unreasonable verdict in convicting the appellant of assault causing bodily harm
    (Nov. 14, 2013) and dangerous driving (February 14, 2014)?

I address each of these issues in turn.

(1)

The admissibility of the complainants statement

[9]

The admissibility of hearsay under the principled exception depends on
    whether the requirements of necessity and reliability are met. The appellant
    concedes that necessity is established.

That leaves the requirement of
    reliability.

[10]

In
K.G.B.
,
the Supreme Court set out three criteria relevant to determining
    the threshold reliability of a statement
at
    pp. 795-96
:


i.

the statement is made under oath or solemn affirmation after a warning
    about the consequences of an untruthful account;


ii.

the statement is videotaped in its entirety; and


iii.

the opposite party has a full opportunity to cross-examine the witness
    on the statement.

[11]

Absent
    an error in principle, the trial judges decision on the question of threshold
    reliability  whether the hearsay ought to be admitted, not whether it ought to
    be relied on  is entitled to deference: see

R. v. Chretien
,
    2014 ONCA 403, 309 C.C.C. (3d) 418, at paras. 43-55.

[12]

There
    is no dispute concerning the satisfaction of the first two criteria in
K.G.B
.
    The complainants statement to police was sworn and videotaped. However, the appellant
    submits that the trial judge made two errors in principle in admitting the
    complainants statement. First, the trial judge erred in finding that the appellant
    had a full opportunity to cross-examine the complainant on her
K.G.B.
statement.
    Second, the trial judge erred in finding that the complainant had no motive to
    fabricate evidence.

Cross-examination

[13]

The
    appellant submits that he was deprived of a
meaningful
opportunity to cross-examine the complainant as a result of her memory loss.
    The appellant argues that it does not matter whether the complainants memory
    loss was real or feigned; the consequence is that his ability to cross-examine
    was rendered illusory and the complainants
K.G.B
.
statement is
    unreliable as a result. The appellant cites
R. v. Conway
(1997)
, 36 O.R. (3d) 579 (C.A.) and
R.
    v. Diu
(2000)
, 49 O.R.
    (3d) 40 (C.A.) as support for this proposition.

[14]

I
    would reject this ground of appeal.

[15]

Plainly,
    the appellant did not get everything he wanted from cross-examination. In
    particular, the complainant did not recant her allegations of abuse. Her memory
    was selective. But cross-examination was not rendered meaningless on this
    account. A considerable amount of information was elicited from the
    complainant, who agreed with many of defence counsels suggestions. The trial
    judge carefully considered the impact of the complainants professed memory
    lapses and concluded that they did not have the effect of rendering the right
    to cross-examination illusory so as to bar admission of her statement. This
    conclusion was open to the trial judge on the record.

[16]

Neither

Conway
nor
Diu
is authority for the proposition that
    difficulties in cross-examination render an out-of-court statement inadmissible
in all
circumstances. In
Conway
,
    unlike this case, the other
K.G.B.

criteria were not satisfied
     that is, the statement was not made under oath or affirmation and was not
    videotaped. In
Diu
, although the statement was videotaped it was not made
    under oath or affirmation. Not only were the other
K.G.B
.
criteria satisfied in this case, but there were additional indicia of
    reliability including photographs of the complainants injuries and the
    evidence of Mr. Valiquette.

Motive

[17]

The
    appellant submits that the complainant had a motive to fabricate her evidence: she
    wanted out of her relationship with the appellant and wanted him out of their
    residence in order to obtain unrestricted access to the appellants drugs. The
    appellant submits that the trial judge erred in finding, at the threshold
    reliability stage, that the complainant did not act on this motive, as this
    issue was relevant only to the ultimate reliability of the
K.G.B
.
statement. He argues that the threshold inquiry should have been limited to
    determining whether the witness had a motive to fabricate and should not have
    included an evaluation of that alleged motive.

[18]

This
    argument is without merit.

[19]

The
    trial judge was not limited to considering the mere existence a possible motive
    at the threshold reliability stage. Moreover, given the trial judges view that
    it was irrelevant  a red herring, as he described it  it could not
    undermine the complainants
K.G.B
.
statement at the threshold
    reliability stage.

(2)

The complainants credibility and reliability

[20]

The
    appellant submits that the trial judge made several errors in assessing the
    complainants credibility and reliability. In particular, the appellant submits
    that the trial judge failed to consider the complainants
K.G.B.

statement
    in regard to each count on the information, and wrongly treated the
    complainants reliability as an all-or-nothing proposition. The appellant submits,
    further, that the trial judge failed to give adequate weight to the finding
    that the complainant lied about her memory loss at trial when assessing her credibility.
    The appellant points to several statements made by the complainant under
    cross-examination that were not considered by the trial judge.

[21]

I
    would reject this ground of appeal.

[22]

The
    trial judges finding that the complainant was lying about her memory loss is
    key to his decision. It reinforces his conclusion as to the complainants
    credibility and reliability in making the
K.G.B
.
statement
    because he found that she lied in her trial testimony out of a desire not to
    incriminate the appellant. The trial judge found that the fundamental
    truthfulness of the complainants
K.G.B.
statement came out at various points,
    for example, when she said that her husband never hit me in the back of the
    head all that day. The trial judge interpreted this as hinting at the
    frequency of her abuse, even while exonerating the appellant for abuse on the
    relevant day.

[23]

The
    trial judge also referenced confirmatory evidence in several respects. For
    example, the trial judge referred to photographs of the complainants face taken
    March 17, 2014, which record injuries consistent with those that the
    complainant said occurred on March 14
th
. In addition, the trial
    judge found that Mr. Valiquette, who witnessed the incident on February 4th, was
    both credible and reliable.

[24]

The
    trial judge did not treat the complainants reliability as an all-or-nothing
    proposition, as the appellant submits. Although the trial judges reasons do not
    address all of the matters raised by the appellants counsel, this does not
    undermine the trial judges findings on the complainants credibility and
    reliability. Furthermore, although the complainant agreed with defence
    counsels suggestions as to what might have happened at several points in her
    testimony  for example, the possibility that her injuries were caused by the
    appellant grabbing her to prevent her from falling from the vehicle, or that
    the appellant may have disabled their vehicle to prevent her from driving while
    intoxicated rather than to prevent her escape  this is consistent with the
    trial judges finding that the complainant lied in her testimony at trial in
    order to protect the appellant. Shortcomings in the complainants evidence on
    cross-examination, such as unanswered questions as to when the injury to her
    eardrum occurred, are not fatal to a finding that her evidence was otherwise
    credible and reliable.

The sisters role in the interview

[25]

The
    appellant characterized the trial judges reliance on exchanges between the
    complainant and her sister, who was present when the complainant made her
    statement to the police, as constituting oath helping.

[26]

I
    would reject this ground of appeal.

[27]

The
    trial judge was alive to the problem posed by the sisters role in the
    complainants
K.G.B
.
statement. The complainants sister
    accompanied her to the police station to support her and sat with her while she
    made her statement. Given the appellants suggestion that the complainants
    sister goaded her into making her statement, the trial judge was entitled to
    consider the conversation between them on the basis that it formed part of the
    narrative of the complainants statement.

[28]

I
    see no error in the trial judges approach. He found that the sister did not
    interfere significantly in the statement-taking process. He also made clear
    that although he was admitting the complainants statement in its entirety, her
    sisters utterances could not be relied on for the truth of their contents.

(3)

The sufficiency of reasons for the convictions

[29]

The
    appellant submits that the reasons were insufficient in several respects. For
    example, the trial judge provided no analysis supporting the conviction of
    assault causing bodily harm (November 14, 2013); for rejecting the
    complainants evidence at trial that she was only repeating what others told
    her about the allegations (February 4, 2014); for finding the appellant guilty
    of assault (February 14, 2014); and for finding the appellant guilty of
    unlawful confinement (March 14, 2014).

[30]

I
    would reject this ground of appeal.

[31]

Watt
    J.A. summarized the principles governing review of the sufficiency of reasons
    in cases in which the credibility and reliability of principal witnesses is at
    issue in
R. v. A.A
.
, 2015 ONCA 558, 327 C.C.C. (3d) 377, at
    paras. 116-121. The ultimate question is whether the reasons, read as a whole
    in the context of the evidence and the arguments at trial, are so deficient as
    to foreclose meaningful appellate review. Reasons need not be perfect; they
    need not address all of the evidence or answer every argument made at trial in
    order to be sufficient. The trial judge is in the best position to assess the
    evidence and his or her findings are to be accorded significant deference.

[32]

In
    my view, read as a whole in the context of the complainants statement, the
    arguments at trial, the photographs of her injuries, and the evidence of Mr. Valiquette,
    the trial judges reasons are sufficient to support the convictions. It is
    clear from the trial judges decision that he accepted the complainants evidence
    in her
K.G.B
.
statement in relation to each of the four
    incidents that provided the basis of each of the counts and relied on it. It
    was open to him to do so. The trial judge canvassed the possibilities
    concerning the reliability of the complainants statement and considered and
    rejected the appellants arguments.

(4)

Are the verdicts unreasonable?

[33]

The
    appellant submits that there is no evidence upon which the trial judge could
    have concluded that the complainant sustained her ear injury on November 14,
    2013 and that there was no evidence that the appellant was guilty of dangerous
    driving.

[34]

There
    was ample evidence in the complainants
K.G.B.
statement to support the
    appellants conviction for assault causing bodily harm. The complainant
    described punches to her head by the appellant and said that her eardrum was
    ruptured as a result. She did not remember the date but placed it as around
    Christmas. That is sufficient to sustain the conviction for assault causing
    bodily harm, despite the uncertainty surrounding the date that the assault
    occurred.

[35]

However,
    in my view the appellants conviction for dangerous driving is unreasonable.

[36]

Section
249(1)(a) of the

Criminal Code
,
R.C.S. 1985, c. C-46,
describes dangerous driving as operating a motor vehicle:

in a manner that is dangerous to the public, having regard to all
    the circumstances, including the nature, condition and use of the place at
    which the motor vehicle is being operated and the amount of traffic that at the
    time is or might reasonably be expected to be at that place.

[37]

In
R. v. Roy
, 2012 SCC 26, [2012] 2
    S.C.R. 60, at para. 34,
Cromwell J. said:

In considering whether the
actus reus
has been
    established, the question is whether the driving, viewed objectively, was
    dangerous to the public in all of the circumstances. The focus of this inquiry
    must be on the risks created by the accuseds manner of driving, not the
    consequences,
such as an accident in which he or she was
    involved.  As Charron J. put it, at para. 46 of

[
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49], The court must not leap to its
    conclusion about the manner of driving based on the consequence.
There must be a meaningful inquiry into the manner of driving
. [Emphasis in original.]

[38]

The
    problem, in short, is that there is insufficient evidence concerning the manner
    of the appellants driving in this case. The only evidence came from the
    complainants
K.G.B
.
statement, in which the complainant described
    attempting to drive away from the appellant in a strangers truck:

[T]he guy went to pull away and [the appellant] pulled up to
    the side and kept pulling over to the side and the guy was trying to leave and
    he kept going, trying to get him off the road.

[39]

After
    the complainant left the strangers truck briefly, she returned to it and then
    left the scene with the stranger. The complainant said that the appellant kept
    following them, saying he was calling the cops on the guy for taking his
    wife.

[40]

The
    complainants
K.G.B
.
statement concerning the appellants
    driving is vague and is capable of supporting a number of possible
    interpretations. The appellant may well have intended to stop the complainant
    from driving off in the strangers truck, but that is not sufficient to support
    the trial judges finding that the accused was using his motor vehicle as a
    weapon.

[41]

There
    was no evidence as to the way in which the appellant was driving or the context
    in which his driving occurred. For example, there was no evidence as to the
    speed at which the appellant was driving, the traffic conditions, the nature of
    the road or weather conditions, among other things that might properly be
    considered in determining whether, in all the circumstances, his driving was
    dangerous in the requisite sense.

[42]

Accordingly,
    I would quash the appellants conviction for dangerous driving and enter an
    acquittal.

Disposition

[43]

I
    would allow the appeal in part, quash the conviction for dangerous driving and
    enter an acquittal on that count. I would dismiss the appeal from the remaining
    convictions.

[44]

As a result of this disposition, the sentence imposed on the
    dangerous driving count and the driving suspension are set aside. The other
    aspects of the sentence remain unchanged.

Released:  April 11, 2016
    DW

Grant
    Huscroft J.A.

I
    agree David Watt J.A.

I
    agree P. Lauwers J.A.





[1]
The counts relating to unlawful confinement on February 14, 2014 were
    withdrawn. The trial judges reasons for judgement inadvertently refer to these
    counts, but the error was corrected in his reasons for sentence.


