



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Polanco, 2018 ONCA 444

DATE: 20180511

DOCKET: C64849

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Emark Polanco

Respondent

Davin Michael Garg, for the appellant

Matthew Gourlay, for the respondent

Heard: May 2, 2018

On appeal from the decision dated June 6, 2017 by Justice
    Kelly Wright of the Superior Court of Justice sitting as a Summary Convictions
    Appeal Court, with reasons reported at 2017 ONSC 3765, allowing an appeal from
    the convictions entered on November 18, 2015 by Justice Donna Hackett of the
    Ontario Court of Justice.

Nordheimer J.A.:

[1]

The Crown appeals, with leave,
[1]
from the decision of the Summary Conviction Appeal Judge (SCAJ) that allowed the
    respondents appeal from conviction and ordered a new trial.

[2]

The SCAJ held that the trial judge prejudiced the accuseds right to
    make full answer and defence by preventing defence counsel from cross-examining
    the complainant on the content of 45 photographs. As a result, the respondents
    convictions on five counts of assault, three counts of assault with a weapon,
    one count of assault causing bodily harm, and one count of theft under $5,000
    contrary to ss. 266, 267(a), 267(b), and 334(b) of the
Criminal Code
,
    R.S.C. 1985, c. C-46  all related to allegations of domestic assault  were
    set aside and a new trial was ordered.

[3]

In my view, the SCAJ improperly interfered with the trial judges
    discretion to control the trial process. I would allow the appeal and restore
    the convictions entered at trial.

Background Facts

[4]

The underlying charges stemmed from events that took place when the
    respondent and the complainant were in an intimate relationship during an eight
    month period from around March until November 2013. By August or September
    2013, the respondent had essentially moved into the complainants apartment.

[5]

The relationship started well but, over time, the complainant said that
    the respondent sought control over everything in her life. He took control of
    her cell phone, Facebook account, and computer passwords, permitting her only sporadic
    or supervised access. He also demanded her financial information.

[6]

Unbeknownst to the complainant, the respondent was engaged in another
    romantic relationship with a woman, V.H., while he was with the complainant. V.H.
    would stay over with the complainant and the respondent in the complainants apartment
    at times. Nevertheless, the complainant evidently did not know that the
    respondent was in a relationship with both of them.

[7]

The complainant described how the relationship degenerated. It began
    with the respondent controlling what she could say to others. It escalated to the
    respondent regularly punching and kicking her, pulling her hair, and throwing
    objects at her. The violence increased in frequency and degree over time. The
    complainant sustained physical injuries.

[8]

Eventually, the complainant revealed the abuse to a friend in November 2013,
    but asked her to refrain from contacting the police. However, the friend disobeyed
    the complainants wishes and contacted the police. Officers then attended at the
    complainants apartment when she was not expecting it. One officer described the
    complainant as appearing afraid. The complainant accompanied the police and gave
    a video-recorded statement. The respondent was arrested.

The Trial

[9]

The trial was initially scheduled for two days in the Ontario Court of
    Justice. The trial evidence and submissions ultimately consumed 12 days of
    court time over five months. Cross-examination of the complainant spanned four
    days. The respondent did not testify, but his other girlfriend, V.H., gave
    evidence for the defence. She testified that she never saw the respondent
    assault the complainant. The trial judge found her to be neither credible nor
    reliable.

[10]

During
    the final month of the relationship, the respondent was in a wheelchair
    following major reconstructive surgery on his leg. The defence called the
    respondents physician to testify about whether he could have moved around
    post-surgery as the complainant described. The trial judge found the doctors
    evidence unscientific and unreliable.

[11]

In
    lengthy reasons that involved a review of all the evidence, the trial judge
    rejected the defence position that the complainant had fabricated the
    allegations. The judge addressed and resolved several challenges to the
    complainants evidence before concluding that she was credible and reliable.
    She convicted the respondent on all counts.

[12]

The
    main issue involved in this appeal, and the one upon which leave was granted,
    arose during the cross-examination of the complainant. Defence counsel (not
    counsel on appeal) wished to put certain pictures to the complainant. Crown
    counsel objected on the ground of relevance. The defence said that the purpose
    of the pictures was to show two things: the absence of injuries on the complainant
    and the nature of their relationship. In response to a question from the trial
    judge, defence counsel advised that he had about 110 or 115 photographs that
    he intended to put to the complainant. In fact, it turned out that defence
    counsel had 173 photographs.

[13]

The
    trial judge directed that she would review each of the photographs and
    determine which of them she would permit defence counsel to use. The trial
    judge then spent the balance of the afternoon reviewing each of the photographs.
    In the end result, the trial judge precluded defence counsel from using 45
    photographs. In certain instances, defence counsel agreed that a photograph
    could be eliminated because it was a duplicate.

[14]

The
    trial then proceeded. Defence counsel eventually put only 96 of the 128
    remaining photographs to the complainant. On November 18, 2015, the trial judge
    gave lengthy reasons for concluding that the respondent was guilty of each of
    the charges.

The Summary Conviction Appeal

[15]

The
    respondent appealed to the Superior Court of Justice. He asserted that the
    trial judge had made three errors of law by:

(1)     Improperly pre-screening and curtailing
    cross-examination on photographs the defence intended to put to the
    complainant;

(2)     Subjecting the defence evidence to a more onerous level
    of scrutiny than the evidence of the Crown;

(3)     Improperly relying on the content of prior consistent
    statements of the complainant in order to find the complainants evidence had
    been corroborated.

[16]

For
    reasons given, the SCAJ allowed the appeal, set aside the convictions and ordered
    a new trial. In doing so, the SCAJ relied only on the first ground of appeal
    relating to the photographs. The SCAJ concluded, at para. 32:

Even without knowing the specific content of the excluded
    photographs, I am persuaded that the photographs were a key component of the
    defence and their exclusion limited the Appellants ability to make full answer
    and defence.

[17]

In
    reaching her conclusion, the SCAJ found that the vetting process adopted by the
    trial judge lacked consistency and was often confusing and that the trial
    judge failed to apply the correct test for excluding defence evidence as set
    out in
R. v. Seaboyer
, [1991] 2 S.C.R. 577, at p. 611. She also found
    that the trial judge applied different standards and tests to different
    photographs. In the end result, the SCAJ concluded that the trial judge had
    improperly interfered with the respondents right to make full answer and
    defence.

Issues on Appeal

[18]

The
    Crown was granted leave to appeal on the following issue:

(i)

Whether the SCAJ erred by substituting her view of the admissibility of
    the excluded photographs for the trial judges view, and whether the SCAJ erred
    by interfering with the trial judges exercise of trial management powers?

[19]

In
    the event that leave to appeal was granted, the respondent raised and the Crown
    responded to the following additional issues on appeal:

(ii)

Whether the SCAJ wrongfully relied on the complainants prior consistent
    statements as confirmation of credibility?

(iii)

Whether the SCAJ subjected the defences and Crowns evidence to differing
    standards of scrutiny?

Analysis

(1)

The main appeal

[20]

In
    my view, the SCAJ erred in exercising her appellate oversight. The jurisdiction
    of a summary conviction appeal judge is limited. A summary conviction appeal
    judge is not entitled to retry the case or to substitute his or her own view of
    the evidence for that of the trial judge. A summary conviction appeal judge is
    also not entitled to interfere with a trial judge's findings unless they are
    unreasonable or unsupported by the evidence:
R. v. O'Meara
,
2012 ONCA 420, 284 C.C.C. (3d) 567, at para. 36.

[21]

In
    this case, the SCAJ improperly interfered with the discretion of the trial
    judge to control the trial process. Trial judges must be concerned with the
    orderly progression of any proceeding. This is especially so in light of recent
    decisions of the Supreme Court of Canada, including
R. v. Jordan
, 2016
    SCC 27, [2016] 1 S.C.R. 631, and the increasing concern over the length of time
    that is being consumed in order to complete the prosecution of criminal
    offences. As the majority in
Jordan
said, at para. 139:

Trial judges should make reasonable efforts to control and
    manage the conduct of trials.
Appellate courts must support these efforts by
    affording deference to case management choices made by courts below
. All
    courts, including this Court, must be mindful of the impact of their decisions
    on the conduct of trials.

[Emphasis added.]

[22]

The
    right of a trial judge to control and manage the trial process is not a new
    one. It is well-established that trial judges have the authority to ensure that
    trials proceed not only fairly, but also efficiently. In exercising that
    authority, trial judges are entitled to take a number of steps, including
    restricting counsels questioning of witnesses to ensure that that questioning
    is not unduly repetitive. On that point, by way of example, in
R. v. Murray
,
    2017 ONCA 393, 138 O.R. (3d) 500, Watt J.A. said, at para. 92:

A trial judge may intervene to focus the evidence on issues
    material to a determination of the case. To clarify evidence as it has been
    given and is being given. To avoid admission of evidence that is irrelevant. To
    curtail the needless introduction of repetitive evidence. To dispense with
    proof of the obvious or uncontroversial. To ensure the way that a witness
    answers or fails to respond to questions does not unduly hamper the progress of
    the trial. And to prevent undue protraction of trial proceedings: [
Chippewas
    of Mnjikaning First Nation v. Ontario
, 2010 ONCA 47], at paras. 233-34.

[23]

There
    is no doubt that defence counsel was entitled to put photographs to the
    complainant for the purposes that he identified. That said, the defence was
    not, by the fact of relevance alone, entitled to put every such photograph to
    the complainant. At some point, such an exercise will become redundant and thus
    lose the probative value that must underlie the admission of any evidence.

[24]

The
    SCAJ found no fault with the trial judges decision to vet the photographs. However,
    she criticized the trial judges conduct of the vetting. The criticism levelled
    at the trial judge by the SCAJ in terms of her process for vetting the
    photographs (including that the trial judge did not give reasons for each and
    every photograph that she excluded) is, in my view, an unfair one. The trial
    judge made it perfectly clear the reason why she was reviewing all of the
    photographs. Further, she gave reasons, in many instances, regarding the
    photographs that she excluded. Given the nature of the exercise, it was neither
    necessary, nor was it to be expected, that the trial judge would give separate
    reasons for each individual photograph. Indeed, in some instances, defence
    counsel agreed that a particular photograph was repetitive.

[25]

In
    my view, the SCAJ erred when she concluded that the trial judges exclusion of
    some of the photographs constituted an interference with the respondents right
    to make full answer and defence. I would note, on this point, that the SCAJ did
    not have the 45 excluded photographs before her so it is especially difficult
    to see how she came to the view that they were of such importance as to rise to
    the level required for the conclusion that she reached.

[26]

Two
    other points should be made regarding how the trial proceeded after the trial
    judge ruled on the admissibility of the photographs. The first point is that
    defence counsel never asked the trial judge to revisit her rulings on the
    photographs as the cross-examination proceeded or at its conclusion. In other
    words, defence counsel never suggested to the trial judge that the course of
    the cross-examination brought to light issues that should have caused the trial
    judge to have a different view of the excluded photographs, from what she had
    at the time that she made her rulings. It is difficult to square this failure
    to seek to revisit this issue with the conclusion that the respondent was prohibited
    from making full answer and defence.

[27]

The
    second point arises from the exchange between defence counsel and the trial
    judge during closing submissions. Defence counsel was engaged in an exchange
    with the trial judge about the photographs when the following was said:

THE COURT: All I guess Im saying to you is I dont really
    think youre trying to say, are you, that I excluded evidence that you think
    was probative?

[Counsel]: No, what I 

THE COURT: Okay

[Counsel]: What Im saying 

THE COURT: Thats the way I heard it.

[Counsel]: No, no. No, no. What I am saying

[28]

Defence
    counsel then went on to make submissions about the significance of the
    photographs and what the trial judge should take from them. However, the
    exchange I have quoted strongly suggests that defence counsel did not believe
    that the trial judges ruling about the photographs had hampered the defence.
    These two contextual points taken from defence counsels conduct at trial
    indicate that the probative value of the 45 excluded photographs, in the face
    of the 128 that were admitted, was so marginal that the
Seaboyer
test
    was met in this case  regardless of whether the trial judge expressly adverted
    to it.

[29]

All
    of that said, there is no doubt that the right of a trial judge to control the
    trial process must be exercised cautiously. Counsel must generally be allowed
    to present their case as they see fit. Indeed, I accept the respondents point
    that, in this case, it might have been preferable for the trial judge to permit
    the cross-examination to proceed and leave her decision, on whether to curtail
    the number of photographs presented to the complainant, until the repetitive
    nature of the exercise, or the irrelevance of individual photographs, became
    clear. The fact that another judge might have approached the issue in a
    different fashion, however, did not warrant interference by the SCAJ in the
    trial judges discretion to proceed as she did. There is no set procedure for
    addressing these issues. As Morden A.C.J.O. said in
R. v. Darrach
(1998), 38 O.R. (3d) 1, at pp. 21-22:

In response to this it is worth observing that neither the
    common law nor the
Charter
require that any specific procedure be
    followed in determining the admissibility of evidence. The procedure followed
    may vary and may be adapted to protect any competing interests that may come
    into conflict when evidence is proffered at trial.

[30]

As
    I have said, trial judges have the authority to manage the trial process in
    order to ensure that trials proceed fairly but also efficiently. The decision
    of the SCAJ fundamentally undermines that authority. It stands in stark
    contrast to the point that was made by this court in
R. v. Hamilton
,
    2011 ONCA 399, 279 O.A.C. 199, at para. 49:

At a time when we are concerned about the increasing cost and
    length of criminal trials as well as their drain on resources and the pressures
    they bring to bear on the administration of justice, appropriate trial
    management is to be encouraged, not muted.

(2)

The other grounds of appeal

[31]

Because
    of the conclusion that she reached on the issue of the admissibility of the photographs,
    the SCAJ did not address the other two grounds of appeal raised by the
    respondent. In light of my conclusion on the issue of the photographs, it falls
    to this court to decide those two additional issues as well.

[32]

The
    first additional issue is the respondents assertion that the trial judge
    improperly used the complainants prior consistent statements. Specifically,
    concern is expressed with respect to text messages between the complainant and
    one of her friends. In her reasons, the trial judge said, at p. 27, that a
    specific text message was consistent with the complainants evidence that her
    communications were being monitored. I accept that, as stated, the trial
    judges reasons in this regard reveal an improper use of the text messages.
    However, I do not view that error as being material in this case. There was
    ample other evidence, upon which the trial judge also relied, to found her
    conclusion that the allegations made by the complainant were reliable. This isolated
    error cannot serve to undermine that essential finding. The impact of the error
    is also significantly reduced by the fact that this was a judge alone trial.

[33]

The
    other issue raised by the respondent is that the trial judge applied more
    stringent levels of scrutiny to the defence evidence than to that of the Crown.
    As this court has said on many occasions, this is an argument on which it is
    difficult to succeed. Specifically, this court said in
R. v. Chanmany
,
    2016 ONCA 576, 352 O.A.C. 121, at para. 26:

We begin with an observation repeatedly made in the
    jurisprudence of this court. This uneven scrutiny argument is one that is
    difficult to make successfully:
R. v. Howe
(2005), 192 C.C.C. (3d) 480
    (Ont. C.A.), at paras. 58-59. It is difficult because credibility findings are
    the province of the trial judge and attract a very high degree of deference on
    appeal. And it is difficult because appellate courts view this argument with
    scepticism, regarding it as little more than a thinly-veneered invitation to
    reassess on appeal the credibility determinations made at trial:
R. v. Aird
,
    2013 ONCA 447, 307 O.A.C. 183, at para. 39.

See also
R. v. Kiss
, 2018 ONCA 184, at paras.
    82-83.

[34]

The
    instances in the evidence that the respondent points to on this issue do not
    meet the high threshold for success on this ground. Essentially, the respondent
    argues that the trial judge drew certain inferences from the evidence whereas
    the respondent would have asked for different inferences to be drawn. It should
    also be noted, on this point, that the trial judge did identify some problems
    with the complainants evidence, but she also determined that those problems
    did not undermine the reliability of the complainants evidence viewed as
    whole. As this court also said in
Chanmany
, at para. 27, an appellant
    must do more than show that a different trial judge could have assessed
    credibility differently.

[35]

Neither
    of these issues is sufficient to undermine the central conclusions reached by
    the trial judge.

Conclusion

[36]

I
    would allow the appeal, set aside the decision of the SCAJ, and restore the
    convictions. I would remit the matter back to the Superior Court of Justice for
    the determination of the outstanding sentence appeal.

Released: DW MAY 11 2018

I.V.B. Nordheimer J.A.

I agree. H.S. LaForme J.A.

I agree. David Watt J.A.





[1]

Leave to appeal was granted by endorsement dated
    December 15, 2017 (Docket M48096).


