



WARNING

The President of the panel hearing this appeal directs that the following
    should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1),
    (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. 
    These sections of the
Criminal Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210,
    211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection
    146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse
    with a female between 14 and 16) or section 151 (seduction of a female between
    16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or
    bestiality), 157 (gross indecency), 166 (parent or guardian procuring
    defilement) or 167 (householder permitting defilement) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)      In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the
    complainant of the right to make an application for the order; and

(b)      on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Sliwka, 2017 ONCA 426

DATE: 20170525

DOCKET: C61954

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Stanislaw Sliwka

Respondent

Karen Shai, for the appellant

Dirk Derstine, for the respondent

Heard:  May 9, 2017

On appeal from the acquittals entered by Justice Susanne
    R. Goodman of the Superior Court of Justice on March 11, 2016.

By the Court:


I



[1]

The respondent was charged with several very serious assaults.  On the
    evidence of the complainant, A.C., the respondent repeatedly, viciously
    physically and sexually assaulted her over many months when A.C. lived with the
    respondent.  The respondent testified and denied all of the assaults.  There
    was a nine-day trial before a judge, sitting without a jury.  The trial judge
    acquitted the respondent on all charges.

[2]

The Crown appeals, claiming that the trial judge gave no reasons for the
    acquittals and that her failure to give reasons constitutes reversible error in
    law.  We agree.


II



[3]

On the evening of March 1, 2014, A.C., who is Polish and speaks very
    little English, called 9-1-1 from the respondents apartment.  She was in
    obvious distress.  For reasons beyond their control, the officers took about 50
    minutes to get to the apartment.  One of the officers spoke Polish.  They
    knocked on the door for 10 to 15 minutes before anyone answered.  The officers
    could hear two people inside speaking Polish.

[4]

A.C. eventually opened the door.  She was wearing sunglasses and a hood
    over her head.  The Polish speaking officer convinced her to step outside and
    remove her sunglasses.  He was horrified by what he saw.  A.C. had obviously
    been badly beaten and needed immediate medical assistance.

[5]

The respondent followed A.C. into the hallway.  He told her to be quiet
    and then tried to follow A.C. and the police into the elevator.  The officers
    would not let the respondent into the elevator.  Once A.C. was in the elevator
    with the police, she told them the respondent had beaten her.

[6]

A.C. was taken to the hospital and treated for extensive injuries,
    including severe bruising, swelling, numerous cuts and bleeding to her face and
    head.

[7]

The police laid eight charges against the respondent.  Counts one to
    three related to the respondents alleged attack on A.C. shortly before the 9-1-1
    call on March 1, 2014.  The other five charges alleged physical and sexual assaults
    in 2013 or early 2014.

[8]

The trial proceeded in February 2016.  A.C. described the abusive nature
    of the relationship she had with the respondent.  She described numerous
    assaults, including two with a knife.

[9]

A.C. testified that, on March 1, 2014, the respondent arrived home from
    work around 4:00 p.m.  A.C. was in bed.  They argued and eventually the
    respondent attacked her as he had many times in the past.  A.C. testified that
    the respondent punched her in the face several times and struck her repeatedly in
    various parts of her body with a mop stick.  He called her names as he beat
    her.  A.C. indicated that she was covered in blood and the respondent put her
    in the bathtub to clean her up.  He then took her into the bedroom and forced
    her to have sexual intercourse with him.  The bed sheets were covered in
    blood.  The respondent put the sheets in a tub full of water.  Eventually, A.C.
    worked up the courage to call 9-1-1.  The police arrived some time later.

[10]

In his evidence, the respondent denied ever assaulting A.C.  He
    indicated that he had known her for some time, but denied that they lived
    together.  He referred to A.C. as an alcoholic who sometimes fell and hurt
    herself when she was drunk.

[11]

The respondent testified that A.C. showed up at his apartment about three
    days before March 1, 2014.  He described her as falling down drunk.  On one
    occasion, she hit her head and was bleeding from the forehead.  The respondent
    wiped the blood away and told her she could stay for the night.

[12]

The respondent testified that when he arrived home the next day, now
    about two days before March 1, he found his apartment in disarray and
    apparently ransacked.  A.C. was asleep in the bedroom.  The respondent did not
    check on A.C., but instead slept on the floor.  The next day he noticed that
    A.C. was covered in blood and bruises.  She told him she had tripped.  The
    respondent offered to take A.C. to the doctor, but she declined.

[13]

The respondent testified that on March 1, the day of the 9-1-1 call, the
    respondent arrived home to find A.C. asleep.  He noticed that the bed sheets
    were wet.  The respondent tried to wake A.C. so that he could change the wet bed
    sheets.  She begged for a drink.  The respondent cleaned her up and they fell
    asleep together in the bed.  They awoke to the sound of the police knocking on
    the door.

[14]

The respondent testified that, about two days before the 9-1-1 call, he
    noticed that A.C. had very significant injuries.  The respondent believed,
    based upon A.C.s injuries and the ransacking of his apartment, that some
    unknown intruder had broken into the apartment, tore it apart and attacked
    A.C.  The respondent indicated that it did not occur to him to call the police
    or do anything else about the apparent home invasion and assault of A.C.

[15]

The respondent contradicted significant parts of the evidence given by
    the police officers who attended at the apartment in response to the 9-1-1
    call.  For example, he testified that A.C. was not wearing sunglasses or a hood
    when she answered the door.  He said he was wearing pants during the
    interaction with the police; two of the officers said he was wearing Speedo
    shorts.  Contrary to Officer Chahals testimony, the respondent denied blowing
    kisses to A.C. in the hallway.


III



[16]

The evidence and arguments were completed on March 1, 2016.  The trial
    judge adjourned to March 11, 2016 for judgment.

[17]

On March 11, 2016, the trial judge acquitted the respondent on all
    charges.  After briefly outlining the charges and the events of March 1, 2014,
    and noting that she had adjourned the matter to consider the evidence and the
    submissions, the trial judge said:

I have now had full opportunity to carefully consider the
    matter and to arrive at a decision on all of the counts.  My detailed written
    reasons will be released on Monday, March 14
th
, 2016.

[18]

The trial judge further stated that her acquittals should not be taken
    as an acceptance of the respondents version of events, or an outright
    rejection of the complainants version.  She said:

I certainly do not accept all of [the accuseds] evidence as
    true, but in the context of all of the other evidence before me, including but
    not limited to that of [the complainant], I am not satisfied beyond a
    reasonable doubt that he is guilty of any of the charges.

[19]

The Crown commenced an appeal from the acquittals.  The trial judge did
    not release detailed written reasons on March 14, 2016.  Between April and
    September 2016, Crown counsel made repeated inquiries through the trial judges
    assistant.  Presumably acting on instructions from the trial judge, her
    assistant repeatedly advised the Crown that comprehensive reasons would be
    available on the date specified by the assistant.  Each of those dates came and
    went.  No reasons appeared.

[20]

Finally, in September 2016, Crown counsel wrote directly to the trial
    judge, summarizing the efforts to obtain the reasons.  Crown counsel advised the
    trial judge that, as no reasons had been produced, the Crown would argue that
    the appeal should proceed on the basis that no further reasons for judgment
    existed.  In taking that position, the Crown no doubt had in mind the
    principles in
R. v. Teskey
, 2007 SCC 25, [2007] 2 S.C.R. 267.

[21]

The trial judge did not respond to Crown counsels letter.  As of the
    argument of the appeal on May 9, 2017, no further reasons for judgment had been
    produced by the trial judge.


IV



[22]

The Crown submits that there are no reasons for judgment in this case
    and that the failure to provide reasons for the acquittals amounts to an error
    in law, requiring the quashing of the acquittals and the order of a new trial
    on all counts.  Crown counsel contends that the brief comments by the trial
    judge on March 11, 2016, reveal her decision, but do not constitute reasons for
    that decision.  Crown counsel maintains that the trial judges promise of detailed
    reasons is an acknowledgment, on her part, that her brief comments on March 11,
    2016, were never intended as an adequate explanation of her acquittal of the
    respondent on all counts.

[23]

Counsel for the respondent submits that the trial judges comments on
    March 11, 2016, while brief and arguably less than can reasonably be expected
    from a trial judge, adequately explained the trial judges reasons for acquitting
    the respondent.  Counsel argues that the reasons can be properly subject to
    meaningful appeal by the Crown.  Alternatively, counsel submits that, even if
    the reasons are deficient, a review of the trial record adequately reveals the
    basis upon which the trial judge acquitted.  Counsel refers in some detail to
    the evidence and what he submits are significant inadequacies and deficiencies
    in the evidence of A.C.  On this argument, the basis for the trial judges
    reasonable doubt is evident from a perusal of A.C.s evidence.


V



[24]

Trial judges must give reasons for their verdicts.  Reasons that explain
    to the parties and the public the result arrived at by the trial judge are crucial
    to maintaining the proper level of transparency and accountability essential to
    the maintenance of the integrity of the trial process and public confidence in
    that process.  Reasons for judgment allow the parties to know that their claims
    have been heard, understood and adjudicated upon in an objective and reasonable
    fashion that accords with the applicable legal principles:  see
R. v.
    Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15, 22, 24.

[25]

On an appeal based on the trial judges failure to give reasons, the
    appellate court measures the adequacy of the reasons against the requirement
    that the reasons permit meaningful appellate review of the trial decision.  If
    the reasons serve that function, any shortcomings from a due administration of
    justice perspective, do not justify appellate intervention.  However, reasons
    that frustrate meaningful appellate review constitute an error in law.  That
    error requires the quashing of the verdict unless the trial record as a whole
    permits effective appellate review of the verdict:  see
Sheppard
, at
    paras. 25-33, 46.

[26]

R. v. Walker
, [2008] 2 S.C.R. 245, at paras. 2, 19, makes the
    point that the trial judges duty to give reasons applies to both convictions
    and acquittals:  see also
R. v. Kendall
, [2005] O.J. No. 2457, leave
    to appeal refused, [2005] S.C.C.A. No. 387.
Walker
also holds that a
    functional inquiry is necessary when assessing the adequacy of a trial judges reasons. 
    That inquiry is driven in part by the scope of the appeal permitted and the
    nature of the decision under appeal.

[27]

Reasons that may adequately explain why a judge had a reasonable doubt,
    may be inadequate to explain why a judge was satisfied beyond a reasonable
    doubt.  Similarly, reasons may be adequate if an appeal from those reasons is limited
    to a question of law, as in the case of Crown appeals from acquittals, but may
    be inadequate if the appeal extends to questions of fact, as in the case of
    appeals from convictions:
R. v. Walker
, at paras. 21-22.

[28]

This appeal comes down to whether the trial judges
comments on March 11, 2016 provide a meaningful
    basis for appellate review of the acquittals.  In those comments, the trial
    judge demonstrated a proper appreciation of the
burden of proof and
    the reasonable doubt standard.  She made it clear that the acquittals flowed
    from an application of the reasonable doubt standard to the totality of the
    evidence.  She also indicated that she neither accepted, nor rejected, the
    entirety of the evidence of A.C. or the respondent.

[29]

The trial judges comments on March 11, 2016 do not analyze any part of
    the evidence.  The trial judge does not address the serious contradictions
    between A.C.s evidence and the respondents evidence.  Nor does she examine
    the conflicts between the police officers evidence and the respondents
    evidence.  The trial judge does not identify any specific part or parts of A.C.s
    evidence that troubled her and adversely affected A.C.s credibility.  Nor does
    the trial judge refer to any specific part of the respondents evidence in her
    brief comments.  Specifically, she says nothing about the respondents
    intruder explanation for the serious beating A.C. received some time shortly
    before the police saw her.  Absent any analysis or explanation by the trial
    judge, it is difficult to understand how the intruder explanation had any
    credibility.

[30]

We agree with Crown counsel that the March 11 comments are the bottom line
    or decision of the trial judge.  They are not reasons that in any way explain
    that decision or expose it to proper appellate review:  see
R. v. Frost
,
    2010 ONCA 494, at para. 1.

[31]

Counsel for the respondent relies on
Walker
in support of the
    submission that the trial judges comments did provide adequate reasons.  However,
    unlike the trial judge in
Walker
, this trial judge did not identify
    any specific part of the evidence, or gap in the evidence upon which she based
    her conclusion that the Crown had failed to prove any of the counts beyond a
    reasonable doubt:  see
Walker
, at paras. 24-26.

[32]

The trial judge did not address each of the eight counts separately. 
    The absence of any explanation for the acquittals on counts one to three,
    relating to the alleged attack on March 1, 2014, is particularly troubling.  In
    her brief comments, the trial judge acknowledged that A.C. had been assaulted
    and wounded on, or within a few days before, March 1.  The identity of her
    assailant was the only issue.  On the unchallenged evidence, that assault
    occurred in the respondents apartment.

[33]

The trial judge also indicated in her brief comments on March 11 that
    she found the police officers to be honest witnesses.  On their evidence, A.C.
    was terrified and had been badly beaten when she appeared at the door of the
    respondents apartment.  She attempted to hide her injuries from the police and
    obviously did not want to speak to the police.  She only told the police what
    had happened after they managed to move her away from the respondent and get
    her into the elevator.  On the officers evidence, the respondent attempted to
    interfere with the police officers conversation with A.C.

[34]

The officers evidence offered significant support for A.C.s
    allegations, at least as they related to the March 1 alleged assaults. 
    Unfortunately, we have no idea what the trial judge did with the police
    officers evidence.

[35]

The police officers evidence was important in a second respect.  Their
    evidence was inconsistent with the respondents testimony in several ways.  The
    silence of the trial judge about these inconsistencies begs the question  given
    that the trial judge found the officers to be honest witnesses, what did she
    make of the flat-out contradictory evidence given by the respondent?

[36]

There is no way of knowing how the trial judge arrived at her verdicts. 
    Without any semblance of a road map to those verdicts, the Crowns right of
    appeal from the acquittals is rendered illusory.

[37]

This is not a case in which the trial record as a whole reveals the
    basis upon which the acquittals were entered and allows for a meaningful appeal. 
    Counsel for the respondent has gone through A.C.s evidence very carefully.  There
    are clearly problems with parts of her evidence.  Counsels submissions go only
    so far as to demonstrate the need for careful reasons in this case.  Unfortunately,
    the trial judge gave none.


VI



[38]

The appeal is allowed, the acquittals are quashed, and a new trial is
    ordered on all counts.

postscript

[39]

Our order directing a new trial is a terrible result for everyone
    involved in this proceeding.  The trial judges failure to give reasons,
    despite her repeated promises to do so, has frustrated the proper
    administration of justice.  Nor is this the first time that this trial judges
    failure to provide reasons has required this court to order a new trial.  It
    must be the last time.

Released: DD  MAY 25
    2017

Doherty J.A.

J. MacFarland J.A.

D.M. Paciocco J.A.


