



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Powell,
    2021 ONCA 271

DATE: 20210429

DOCKET: C66406 &
    C66665

Tulloch,
    Paciocco and Harvison Young JJ.A.

DOCKET:
C66406

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua
    Powell

Appellant

DOCKET:
C66665

AND BETWEEN

Her
    Majesty the Queen

Respondent

and

Jordan
    Powell

Appellant

Jon Doody, for the appellant Joshua Powell

Fady Mansour and Vanessa Garcia, for the appellant
    Jordan Powell

Tanya M. Kranjc, for the respondent

Heard: in writing

On appeal from the conviction entered on April 19, 2018
    and the sentence imposed on December 20, 2018 by Justice Richard T. Knott of
    the Ontario Court of Justice (C66406).

On appeal from the conviction entered on April 19, 2018
    and the sentence imposed on February 20, 2019 by Justice Richard T. Knott of
    the Ontario Court of Justice (C66665).

Tulloch J.A.:

A.

INTRODUCTION

[1]

The appellants are brothers. On August 12, 2016, they attended a
    gathering at a friends house in North Grenville, Ontario. At some point during
    the night, someone knocked over a beer bottle, causing a fight to break out. In
    the physical altercation that followed, the Crown alleged that four individuals
     Jordan and Joshua Powell (the two appellants), as well as Bradley Fumerton,
    and Quincy OShea  collectively assaulted Quinn Millson. Quinn suffered
    serious bodily harm as a result, including a skull fracture. The Crown also
    alleged that Jordan and Quincy damaged Quinns vehicle after the altercation.

[2]

There was no dispute that Quinn sustained severe bodily injuries from
    the assault and that his vehicle was subsequently damaged. Rather, the only
    issue at trial was who caused the injuries and the damage to Quinns car.

[3]

The trial judge convicted Joshua, Jordan, Bradley and Quincy of assault
    causing bodily harm, contrary to s. 267(b) of the
Criminal Code
,
    R.S.C., 1985 c. C-46. He also found Jordan and Quincy guilty of mischief for
    damaging Quinns car, contrary to s. 430(4) of the
Criminal Code
.
    Lastly, he convicted Joshua of failure to comply with his probation order,
    contrary to s. 733.1(1) of the
Criminal Code
.

[4]

Both appellants were sentenced separately. Jordan was sentenced on
    February 20, 2019 to 60 days intermittent custody followed by 3 years
    probation. Joshua was sentenced on December 20, 2018 to seven months custody,
    followed by three years probation. Both Jordan and Joshua initially filed
    notices of appeal for both conviction and sentence. Joshua has since abandoned
    his sentence appeal. Jordan, however, has not.

[5]

Joshua and Jordan appeal their convictions on five grounds. They argue:

1.

the trial judge entered unreasonable verdicts because the evidence
    tendered at trial was unable to support their convictions;

2.

the trial judge misunderstood the
mens rea
for assault causing
    bodily harm;

3.

the trial judge provided insufficient reasons for the assault
    convictions;

4.

the trial judge erred in relying on his disbelief in the appellants
    exculpatory statements to ground a finding of guilt; and

5.

the trial judge erred in rejecting the testimony of Zachary Powell (the
    appellants cousin) on the basis of bias when this was not raised by either
    party.

[6]

For the following reasons, I would dismiss both conviction appeals.

B.

OVERVIEW OF THE FACTS

[7]

As noted above, the events took place at a small house party in rural
    Ontario, on August 12, 2016. Five people who attended the party testified at
    trial: Quinn (the victim), Kayla Boisvert, Ben Huton, Zachary Powell, and
    Lindsay Fumerton. Each gave their own account of how the altercation arose and
    who was involved. Accordingly, the following sections summarize the narrative
    of each witness with respect to the events that unfolded.

(i)

Quinn Millsons Evidence

[8]

The incident started as a friendly debate with Samuel Huton over a beer
    bottle that had been knocked over. Quinn was thinking about leaving the party
    when this debate arose. Samuel and Quinn were still going back and forth when
    Quinn approached his girlfriend, Kayla. She was standing with Vicky Holland-Dube,
    Joshuas girlfriend. Vicky told him to stop yelling and calm down. Quinn tried
    to reassure her that he was not fighting with Samuel  they were having a
    friendly discussion. Vicky stepped towards Quinn and told him to get out of her
    face.

[9]

Bradley and Jordan stepped forward and joined the conversation, in
    support of Vicky. As Quinn stepped back to leave the garage, Joshua blocked his
    exit. Joshua grabbed Quinns shirt and demanded that he apologize to Vicky
    otherwise he would suffer some sort of repercussion. Bradley stepped forward
    and grabbed Quinns shirt as well. Quinn tried to de-escalate the situation
    when Joshua punched him in the face. A second punch by Bradley soon followed.
    Quinn turned around and covered his face. He was hit in the back of the head
    and then pulled to the ground. Bradley and Joshua went down to the ground with
    him.

[10]

Quinn
    saw Jordan and Quincy come towards him and join in with the other two. By that
    point, Quinn described the altercation as a melee of getting punched and kicked
    and stomped on. When Quinn looked up, he saw the four of them  Joshua,
    Jordan, Bradley, and Quincy  towering over him. Eventually, he managed to make
    his way to his car. He went inside the vehicle and waited for his girlfriend so
    that he could leave the party. As he waited, he saw Jordan and Quincy banging
    on the hood of his car.

(ii)

Kaylas Boisverts Evidence

[11]

Kayla,
    Quinns girlfriend, spoke to police following the incident and provided a
    videotaped statement on August 21, 2016. She also testified at trial. Kayla saw
    Bradley punch Quinn. She identified Jordan, Joshua, and Quincy as being on top
    of Quinn, kicking and punching him. She attempted to pull the men off Quinn but
    was thrown to the floor. She was eventually picked up from behind and pulled
    outside the garage. Upset by what she witnessed, she went into the house and
    vomited. She heard that Quinn was leaving, so she went looking for his car. She
    then saw Jordan and Quincy banging on the hood of Quinns car. Quinn was
    sitting inside the car, waiting for her. He had a bloodied face.

(iii)

Ben Hutons Evidence

[12]

Ben
    testified that he and his brother, Samuel, got into a discussion with Quinn
    regarding a broken beer bottle. Quinn was standing closest to the broken
    bottle, and Ben and Samuel told him to clean it up. Quinn expressed a desire to
    leave. He went over to where Kayla and Vicky were standing. Ben then saw Joshua
    engage with Quinn. When Quinn refused to apologize to Vicky, Joshua pushed
    Quinn. He then saw Joshua swing at Quinn; he was uncertain whether he actually
    made contact. He also thought he saw Bradley and Jordan push and swing at Quinn
    a couple of times. Quinn was suddenly on the ground, and there was just, kind
    of, a melee of people everywhere.

(iv)

Zachary Powells Evidence

[13]

Zachary,
    the appellants cousin, testified that he went outside after the fight had
    started. He saw Quincy on top of Quinn and believed there were others on top of
    him. He did not see Jordan nor Joshua in the pile of people. The fight was
    broken up, and he saw Quinn leave to his car. He began to follow Quinn, but
    Jordan intercepted him and led him inside. He observed Jordan searching for
    ice; his hand was slightly swollen.

(v)

Lindsay Fumertons Evidence

[14]

Lindsay,
    Bradleys sister, testified that she heard an argument involving Bradley,
    Joshua and Quinn. She later saw six or seven people in a circle, including:
    Bradley, Joshua, Quinn, and possibly Jordan and Quincy. She could not say what
    the people were doing. She followed Kayla inside when Kayla indicated that she
    felt sick. She observed Jordan icing his hand.

(vi)

The Appellants Police Statements

[15]

The
    Crown also admitted the police interviews of Jordan and Joshua. In his
    statement, Jordan claimed that he was not involved in the altercation. His only
    role was to pull Vicky out of the commotion. He did admit that he threw one
    punch after he saw someone hit his cousin, Zachary. He said he missed and hit a
    van, hurting his hand. He denied damaging Quinns car.

[16]

In
    his statement, Joshua admitted that he got in a verbal disagreement with Quinn
    after he witnessed Quinn acting aggressively towards his girlfriend, Vicky. He
    said that Quinn pushed him and when Bradley got involved, he was pushed back.
    He stated that he stood and watched as the fight unfolded. He pulled people off
    Quinn and told him to leave.

(vii)

Defence Evidence

[17]

None
    of the accused testified at trial and the defence called no evidence.

C.

DECISION BELOW

[18]

The
    trial judge concluded that this could not be a consensual fight, given the
    extent of the injuries. He further noted that there was no evidence of
    self-defence or defence of person or property, as all the accused denied
    involvement in the altercation. The trial judge convicted the appellants without
    evidence that they had directly caused Quinns injuries. He convicted them
    based on their participation in a group assault in which Quinn suffered bodily
    harm. He cited
R. v. Wood
, [1989] 51 C.C.C. (3d) 201, at p. 220, (Ont.
    C.A.), for the following proposition:

Where evidence of concerted action in the commission of the
    offence exists, as in the present case, then it is open to a jury to convict
    all of the accused either as principals, under s. 229(a), or as aiders or
    abettors, pursuant to s. 21 of the Code, even though the extent of the
    individual participation in the violence is unclear.

Accordingly, the trial judge observed that [i]f a
    person participated in the melee, I will find them guilty of assault causing
    bodily harm.

[19]

With
    respect to the witnesses testimony, the trial judge stated that Quinns
    evidence in chief was straightforward and clear. Quinn identified all the
    co-accused as participating in the attack. However, after a withering
    cross-examination", Quinns testimony was less clear. The trial judge made
    the following observation: Were [Quinn] the only witness in this matter, I am
    not certain I could find a conviction on his evidence alone, due to his unreliability.
    He was credible, but parts of his evidence was unreliable.

[20]

The
    trial judge noted that Kayla was not a witness to the entire altercation, as
    she left the area to vomit. However, he found her credible and reliable.
    Kaylas testimony confirmed that all the accused were involved in the
    altercation. He accepted her evidence that Bradley punched Quinn and that there
    was a pile of people on Quinn, including Joshua, Jordan, Quincy, and Bradley.
    He also accepted her evidence that it was Jordan and Quincy who were damaging
    Quinns vehicle.

[21]

The
    trial judge also appeared to accept the evidence of Ben and Lindsay. Ben
    confirmed that Joshua, Jordan, and Bradley were involved in a violent
    altercation. Lindsay saw Bradley, Joshua, Jordan, Quincy and Quinn in a circle
    around the time of the altercation.

[22]

The
    trial judge rejected the evidence of Zachary because he did not view him as an
    independent witness. As noted above, Zachary is the appellants cousin. He is
    also friends with the other accused. He had testified that he did not see his
    cousins participate in the fight.

[23]

The
    trial judge rejected the exculpatory statements that Jordan and Joshua made to
    police.

[24]

With
    respect to Joshua Powells statement, the trial judge noted that his denial of
    any involvement was inconsistent with the other witnesses evidence. Joshuas
    evidence provided significant detail about the argument leading up to the
    altercation, yet it provided no details about the fight that supposedly
    occurred right in front of him. While recognizing that an accused has the
    absolute right to remain silent, the trial judge observed that if you choose
    to make a statement to police, then you must try to be accurate and tell the
    truth to the best of your ability. He noted that [Joshuas] denial of any
    involvement in the altercation is rejected and does not raise a reasonable
    doubt in my mind. The trial judge concluded that Joshua was involved in the
    melee as one of the principal actors.

[25]

The
    trial judge also rejected the evidence of Jordan. Similar to his brother,
    Jordan made a statement but provided no details as to what went on in the
    fight. The trial judge rejected Jordans excuse for needing ice for his hand
    after the fight. As noted above, Jordan had admitted that he took a swing but
    missed and hit a van. However, the trial judge noted that no one saw him punch
    a van. Rather, witnesses saw him involved in the fight and then attacking
    Quinns car.

[26]

The
    evidence against Quincy and Bradley was also clear. They had participated in
    the altercation.

[27]

With
    respect to the car, Quinn and Kaylas evidence was clear that Quincy and Jordan
    were the ones who intentionally damaged it.

[28]

As
    noted above, all four co-accused  Joshua, Jordan, Bradley and Quincy  were
    convicted of assault causing bodily harm. Joshua was also convicted of a breach
    of probation as a result of his assault conviction. Jordan and Quincy were
    convicted of mischief.

D.

ISSUES ON APPEAL

[29]

The
    appellants challenge their convictions on five grounds:

1.

the verdict was
    unreasonable as there was insufficient evidence to ground convictions on the
    assault count;

2.

the trial judge misunderstood the
mens rea
for assault causing
    bodily harm;

3.

the trial judges reasons were deficient;

4.

the trial judge erred by grounding a finding of guilt in his disbelief
    of the appellants exculpatory statements to the police; and

5.

the trial judge erred by rejecting Zachary Powells evidence on the
    basis of bias when the Crown did not impeach his credibility, contrary to the
    rule in
Browne v. Dunn
, (1893), 6 R. 87 (H.L.) (Eng.).

E.

ANALYSIS

(i)

The Verdict Was Reasonable

[30]

For
    an appellate court to conclude that a verdict is unreasonable, it must either:

1.

determine that
    the verdict is one that a properly instructed jury or judge could not
    reasonably have rendered; or

2.

determine that
    the trial judge drew an inference or made a finding of fact essential to the
    verdict that (a) is plainly contradicted by the evidence relied on by the
    trial judge in support of that inference or finding; or (b) is shown to be
    incompatible with evidence that has not otherwise been contradicted or rejected
    by the trial judge:
R. v. Villaroman,
2016 SCC 33, [2016] 1 S.C.R.
    1000, at para. 55;
R. v. R.P.,
2012 SCC 22, [2012] 1 S.C.R.
    746, at para. 9.

[31]

This
    standard requires an appellate court to re-examine, and to some extent,
    re-weigh evidence and consider the effect of that evidence:
Villaroman,
at
    para. 55;
R. v. W.(R.),
[1992] 2 S.C.R. 122, at p. 131;
R. v.
    Yebes,
[1987] 2 S.C.R. 168, at p. 186. Where the verdict is not
    unreasonable, an appellate court will not interfere with a trial judges
    factual findings unless the trial judge has committed a palpable and overriding
    error in making those findings:
R. v. Clark,
2005 SCC 2, [2005] 1
    S.C.R. 6, at para. 9.

[32]

Each
    of the appellants argue that the verdicts finding them guilty of assault causing
    bodily harm were unreasonable. Both appellants submit that the evidence relied
    upon by the trial judge could do no more than place them in the pile of people.
    More was needed to ground findings of guilt on the assault counts.

[33]

For
    his part, Jordan submits that no witnesses said that he punched or kicked
    Quinn. Rather, according to Jordan, the evidence only placed him at the scene
    of the altercation. He argues that, absent a finding of fact about the role he
    played in the assault, the verdict was unreasonable.

[34]

Joshua
    argues that there was insufficient evidence to support a finding that he
    assaulted Quinn. Although Quinn testified that Joshua punched him, the trial
    judge made the following observation qualifying the extent to which he could
    rely upon Quinns evidence:

Were [Quinn] the only witness in this matter, I am not certain
    I could found a conviction on his evidence alone, due to his unreliability. He
    was credible, but parts of his evidence was unreliable.

[35]

Joshua
    also submits that the evidence of Ben, Kayla, and Lindsay do not support the
    trial judges findings. In particular, while Ben testified that he saw Joshua
    throw a punch, he could not say with certainty that Joshua made contact.
    Additionally, both Kayla and Lindsay testified that Joshua was involved in the
    altercation, but neither provided any specific details about his participation.
    According to Joshua, since the trial judge made no finding of fact about
    whether he did in fact punch Quinn, there was insufficient evidence about his
    involvement in the assault.

[36]

The
    respondent submits that the verdict was reasonable and founded in the evidence.
    The trial judge was entitled to make reasonable inferences on the basis of
    compelling evidence about who was actively involved in the assault against
    Quinn, and these inferences should be afforded deference on appeal. Moreover,
    the findings of guilt were well founded on the evidence of multiple witnesses.

[37]

I
    would not give any effect to this ground of appeal. As indicated, the
    appellants bear a very heavy burden in seeking to displace a verdict on the
    basis that it was unreasonable. The direct evidence at trial implicating both
    appellants in the assault was overwhelming.

[38]

Quinn,
    the victim of the assault, identified Joshua as first blocking him from exiting
    the garage, then grabbing him by the shirt, and punching him in the face, after
    which he fell to the ground. Quinn saw Jordan come towards him and join in on
    the assault against him. Quinn described being kicked, stomped, and punched
    while on the ground by all four assailants, including both appellants. He
    specifically identified both appellants as being involved in the melee. Quinn
    also testified that he clearly saw Jordan and Quincy banging on the hood of his
    car.

[39]

The
    trial judge noted that while Quinns evidence was credible, portions were not
    reliable. As such, the trial judge correctly looked for other corroborative
    evidence to satisfy him beyond a reasonable doubt of the veracity of the
    material portions of Quinns evidence.

[40]

There
    was an abundance of evidence at trial that substantiated Quinns version of
    events. In her evidence, Kayla identified both appellants as being on top of
    Quinn when he was on the ground. She observed Jordan and Joshua punching and
    kicking him. She also observed Jordan and Quincy banging on the hood of Quinns
    car. The trial judge found her evidence credible and consistent. Additionally,
    Ben testified that he saw Joshua push Quinn at the start of the assault. As
    well, Ben testified that he saw Joshua push and swing at Quinn. He was fairly
    certain that Joshua hit him in the head. He also noted that, subsequently,
    Jordan and Bradley swung at Quinn a couple of times, but was unsure if they
    hit him. Finally, both Zachary and Lindsay testified that they observed Jordan
    icing his hand, which was slightly swollen. The trial judge was entitled to
    accept some, none, or all, of each witnesses evidence.

[41]

It
    is clear from the trial judges reasons that he considered all the evidence. In
    light of the evidence and all available inferences, it was certainly open to
    the trial judge to make the findings that he did, including that both
    appellants were active participants in the group assault, resulting in bodily
    harm to Quinn.

[42]

In
    his supplementary factum, Jordan also argues that his police statement, which
    contained an exculpatory version of events (namely, admitting to being part of
    the altercation but only throwing a punch in defence of his cousin), was
    entirely consistent with the evidence of all Crown witnesses. According to
    Jordan, it follows that there remained a reasonable doubt as to his guilt.

[43]

I
    do not agree. The trial judges findings of fact are entitled to deference,
    unless the appellant can establish that he has committed a palpable and
    overriding error. I see no error in the trial judges findings of fact that
    warrants judicial interference. As indicated, it was open to the trial judge to
    accept some, none, or all of a witnesses evidence, including Jordans evidence
    that he injured his hand by striking a van, as opposed to injuring it when he
    was striking Quinn during the assault.

[44]

I
    am satisfied that the verdicts were reasonable. I would dismiss this ground of
    appeal.

(ii)

Did the Trial Judge Err in His Understanding of the
Mens Rea
for Assault Causing Bodily Harm?

[45]

While
    the appellants do not explicitly argue this issue as a separate ground of
    appeal, they include this issue as an argument within their submissions on the
    reasonableness of the verdict. The appellants argue that the trial judge erred
    in his self-instruction on the
mens rea
required for assault causing
    bodily harm. The appellants point to the trial judges reasons, which state:
    If a person participated in the melee [that caused the injuries to Quinn], I
    will find them guilty of assault causing bodily harm. The appellant says this
    is an incorrect statement of the law, as the crime charged required both
    participating in the melee and an intention to participate.

[46]

I
    would not give effect to this ground of appeal. The trial judges reasons, when
    read as a whole, suggest that he understood the requisite elements of the
    offence that the Crown had to prove beyond a reasonable doubt.

[47]

Technically,
    the appellants are correct that mere participation in a melee in which the
    complainant suffered bodily harm will not support a conviction of assault
    causing bodily harm unless the accused person had the requisite
mens rea
.
    The accused persons own act of participation must be intentional as opposed to
    accidental. Moreover, before he can be held responsible for bodily harm that
    may have been caused by another person involved in the group assault, it must
    be found that the accused knew that the others were engaging in an assault, and
    intended to assist in that assault:
R. v. Briscoe
, 2010 SCC 13, [2010]
    1 S.C.R. 411, at paras. 16-17. In the specific circumstances of this case, there
    was no need for the trial judge to address those
mens rea
requirements
    expressly.

[48]

The
    trial judge found that the appellants joined in the assault. No suggestion was
    available on the evidence that this could have been accidental or unintended.

[49]

Moreover,
    the trial judge understood that the appellants convictions depended upon his
    finding that they acted in concert with others. Acting in concert is inherently
    purposeful conduct. Unless there is a live and realistic
mens rea
issue,
    it is implicit in finding that an accused person actively participated in a
    group assault by joining in the assault that the accused person did so
    intentionally and for the purpose of assisting in that group assault. The trial
    judge found that both appellants actively participated in the non-consensual
    assault on Quinn in which Quinn was kicked, punched and stomped.

[50]

Although
    the trial judge did not explicitly address the
mens rea
issues, in my
    view, he did not err in finding that the Crown discharged its burden of proof.

[51]

Finally,
    an accused who is involved in an intentional assault that results in bodily
    harm cannot argue that he only intended the assault and not the bodily harm
    that resulted, provided that a reasonable person, in the circumstances, would
    realize that the force intentionally applied would put the victim at risk of
    suffering some kind of bodily harm:
R. v. Palombi,
2007 ONCA 486, 222
    C.C.C. (3d) 528, at paras. 38-39. This principle applies equally in group
    assaults. Where a reasonable person would realize that the group assault would
    put the victim at risk of suffering some kind of bodily harm, an accused person
    who has joined in a group assault cannot avoid responsibility by arguing that
    they did not intend to cause bodily harm. Although the trial judge did not
    explicitly address the objective foreseeability aspect of this offence, I am
    satisfied that he was cognizant of the legal test to be applied. Indeed, it was
    patently obvious from the evidence in this case that a reasonable person in the
    appellants shoes would realize that bodily harm could result from their
    actions.

[52]

The
mens rea
requirement was therefore satisfied, and the trial judge was
    correct in finding both appellants guilty of the charge. Accordingly, this
    ground of appeal is also dismissed.

(iii)

The Trial Judges Reasons Were Sufficient

[53]

The
    appellants submit that the reasons are deficient because the trial judge did
    not make sufficient findings of fact regarding party liability and the nature
    of their participation in the assault. Joshua submits that although the trial
    judge found him to be involved as one of the principle actors, the reasons do
    not explain what his involvement in the altercation consisted of. Likewise,
    Jordan argues that the trial judge did not make any findings of fact regarding
    his role in the fight. Jordan points to the fact that he was scarcely mentioned
    in this portion of the trial judges reasons.

[54]

An
    appeal based on insufficient reasons can only succeed if the appellants
    establish that the trial judges reasons are so deficient that they foreclose
    meaningful appellate review:
R. v. Vlaski
, 2019 ONCA 927, at para. 9,
    leave to appeal refused, [2020] S.C.C.A. No. 78;
R. v. Vuradin
2013
    SCC 38, [2013] 2 S.C.R. 639, at para. 10.

[55]

Appellate
    courts considering the sufficiency of reasons should read them as a whole, in
    the context of the evidence, the arguments and the trial, with an appreciation
    of the purposes or functions for which they are delivered:
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. These purposes are fulfilled if
    the reasons, read in context, show why the judge decided as he or she did:
R.E.M.,
at para. 17.

[56]

The
    key question is whether the reasons demonstrate that the trial judge seized
    upon the substance of the critical issues at trial in a way that permits
    meaningful appellate review:
R.E.M.
, at para. 55.

[57]

The
    main issues in this case were whether the accused individuals intentionally
    assaulted Quinn, and whether, as a result of the assault, Quinn sustained
    bodily harm.  In his reasons, the trial judge carefully assessed all the
    evidence, including the evidence of the two appellants, and gave very clear and
    cogent reasons why he accepted and rejected the evidence that he did.

[58]

In
    the reasons, it is clear that the trial judge found both appellants guilty of
    the offence of assault causing bodily harm based on being parties to the
    offence. In so doing, the reasons of the trial judge demonstrate that he was
    satisfied beyond a reasonable doubt that both appellants were parties to
    punching, stomping, and kicking Quinn on numerous occasions, and these
    assaultive acts resulted in the serious injuries that Quinn sustained.

[59]

The
    trial judges reasons are not deficient simply because he did not identify the
    precise actions of each appellant in the assault. It is clear when his decision
    is read as a whole that he accepted testimony that the appellants participated
    in a group assault in which everyone was punching and kicking Quinn. A trial
    judge is not held to a standard of perfection:
R. v. Sheppard,
2002
    SCC 26, [2002] 1 S.C.R. 869, at para. 55. The trial judge need not detail their
    findings on each piece of evidence, so long as the findings linking the
    evidence to the verdict can be logically discerned:
R.E.M,
at paras.
    16-29 and 43.

[60]

When
    the reasons are read as a whole, within the context of the evidence and the
    arguments at trial, they are more than sufficient and fulfill the purpose for
    which they were intended. Accordingly, I would not give effect to this ground
    of appeal.

(iv)

Exculpatory Statements and the Right to Silence

[61]

The
    appellants argue that the trial judge erred in the manner in which he rejected
    their exculpatory police statements. Jordan argues that the rejection of his
    statement appeared to stem from his decision not to provide details about the
    fight and this runs counter to his constitutional right to silence. Meanwhile,
    Joshua argues that the trial judge erred in using a disbelief in his
    exculpatory statement to ground the conviction. He also argues that the trial
    judge subtly reversed the burden of proof when he made the following comment:
    Had Joshua Powell stated he was protecting his girlfriend from the argument
    with [Quinn] and a fight between the two had ensued, it may have been
    believable. According to Joshua, failing to consider this alternative
    explanation was an error, notwithstanding that Joshua did not raise it himself
    as he did not bear the burden of proof.

[62]

I
    cannot accede to these arguments. I am satisfied that the trial judge did not
    err in the manner suggested by the appellants.

[63]

It
    is without a doubt that an accused has a constitutional right to remain silent
    during any part of a police interview. This right remains intact even if the
    accused opts to speak to police about certain matters:

R. v. G.L.
,
    2009 ONCA 501, 67 C.R. (6th) 278, at para. 39. As the Supreme Court explained
    in
R. v. Turcotte
, 2005 SCC 50, [2005] 2 S.C.R. 519, at para. 52:

An individual can provide some, none, or all of the information
    he or she has. A voluntary interaction with the police, even one initiated by
    an individual, does not constitute a waiver of the right to silence. The right
    to choose whether to speak is retained throughout the interaction.

[64]

The
    right to silence prevents jurists from drawing adverse inferences from an
    accused persons decision not to say more: see
Turcotte
; David
    Paciocco, Palma Paciocco and Lee Stuesser,
The Law of Evidence
, 8th
    ed. (Toronto: Irwin Law, 2020), at pp. 420-421. It is an error of law for a
    trial judge to draw an adverse inference on an accuseds credibility from their
    silence during a police interview:
G.L.
, at paras. 38-39.

[65]

At
    first glance, the trial judges reasons appear to place some significance on
    Joshuas choice not to say more in the police interview. Specifically, in
    assessing Joshuas statement, the trial judge made the following comment:
    There was no question a significant altercation occurred, but Joshua provided
    little or no details about who was involved. The trial judge returned to this
    theme later in his reasons, noting that Joshua did not give details about the
    fight that occurred right at his feet. However, he then went on to comment:
    [w]hat evidence [Joshua] did give about the altercation was inconsistent with
    the other witnesses evidence. The trial judge then detailed the contradictory
    evidence of said witnesses, making clear that Joshuas statement simply did not
    have the ring of truth to it. On this issue, he concluded: Mr. Powells
    denial of any involvement in the altercation is rejected and does not raise a
    reasonable doubt in my mind.

[66]

A
    cursory review of the trial judges assessment of Jordans statement also
    appears to give weight to Jordans choice not to remain silent about particular
    details. Specifically, the trial judge commented: He chose to make a
    statement, and yet provided no details as to what went on in the fight.
    However, in the sentences that followed, the trial judge explained why Jordans
    statement did not raise a reasonable doubt. For example, he noted that Jordans
    excuse for needing ice for his hand was contradicted by the testimony of other
    witnesses, which confirmed that he was involved in the fight and had attacked
    Quinns car.

[67]

Certainly,
    the paucity of detail in the appellants police statements cannot give rise to
    an inference of guilt in these circumstances. But I am not convinced that the
    trial judges comments were significant or reflective of why the trial judge
    rejected the appellants exculpatory statements. In both cases, the trial judge
    followed these comments by providing a detailed analysis of why the appellants
    versions of events were blatantly contradicted by the other evidence. After
    considering the totality of the evidence before him, he was entitled to
    disbelieve the appellants version of events and find that they did not raise a
    reasonable doubt.

[68]

This,
    in my view, was a proper use of both statements and in no way infringed their
Charter
right to remain silent. Essentially, all the trial judge was saying was
    that the appellants chose to speak, as was their right, and in speaking, they
    lied to police. That is a factor that he could and should consider in assessing
    their credibility. After all, a right to silence is not a right to lie without
    impunity.

[69]

Had
    the trial judge drawn an inference of guilt from the fact that neither
    appellant testified nor called evidence in their defence, there would have been
    a breach of the appellants right to silence. Likewise, a breach would have
    occurred if the appellants had not provided a statement to the police and the
    trial judge had drawn an inference of guilt on that basis. In both
    circumstances, such comments would imply that an accused person is obliged to
    speak in their own defence, thus reversing the burden of proof, which firmly
    rests with the Crown.

[70]

However,
    in the case before us, I am satisfied that the trial judge did not improperly
    draw any adverse inferences from the appellants silence in their police
    interviews. Rather, the trial judge was aware of the appellants rights and
    instead rejected their statements due to a reasoned and considered assessment
    of all of the evidence. He was entitled to determine what weight, if any, he
    should afford to individual pieces of evidence, including the appellants
    police statements.

[71]

That
    being said, a trial judge must be careful not to equate disbelief of an
    accuseds version of events with guilt as that would displace the Crowns
    burden to prove an accuseds guilt beyond a reasonable doubt:
R. v. Coutts,
[1998] 40 O.R. (3d) 198 (Ont. C.A.),

at p. 203. I am satisfied
    that this did not occur in this case. While the trial judge disbelieved the
    evidence of the accused, he was mindful of the burden of proof on the Crown.
    For example, in his reasons, he noted:

If I accept the statement of the accused, then I must acquit.
    If the statement raises a reasonable doubt, I also must acquit. It is only if
    the Crown has proven all the elements of the case beyond a reasonable doubt
    that I can convict an accused.

[72]

As
    noted above, Joshua also takes issue with the following statement by the trial
    judge: Had Joshua Powell stated he was protecting his girlfriend from the
    argument with [Quinn] and a fight between the two had ensued, it may have been
    believable. This statement must be taken in its proper context. It is evident
    that the trial judge was using this illustration to make the point that there
    was no suggestion on the evidence before him that self-defence was in play. Both
    Joshua and Jordan denied involvement in the altercation. There was no air of
    reality to self-defence as there was no evidence upon which a reasonable jury
    could acquit on that basis.

[73]

When
    all is considered, I am not satisfied that the trial judge committed the legal
    error alleged by the appellants. As such, I would not give effect to this
    ground of appeal.

(v)

The Rejection of Zachary Powells Statement

[74]

The
    appellants argue that the trial judges rejection of Zacharys evidence was
    based on an unfounded inference of bias. They contend that the Crown did not
    raise the issue of bias in accordance with the rule in
Browne v. Dunn,
and
    it would be unfair to reject such evidence without any effort to impeach the
    witness or without any factual foundation to suggest bias.

[75]

I
    disagree. The appellants are essentially asking this court to interfere with
    the trial judges factual findings as to the credibility of Zachary. There is
    no basis for this court to interfere with the trial judges factual findings. A
    trial judges credibility findings are entitled to deference. An appeal court
    may only interfere with a trial judges factual findings  such as a finding of
    bias  where the error is palpable and overriding:
Clark,
at para. 9.
    I see no such error here. There was evidence before the trial judge about
    Zacharys relationship with the appellants and one of their co-accused. The
    trial judge was entitled to consider it in deciding whether to rely on
    Zacharys evidence.

[76]

I
    also do not agree that the rule in
Browne v. Dunn
was violated. The
    rule in
Browne v. Dunn
is a rule of trial fairness that applies where
    a cross-examiner intends to impeach a witness with contradictory evidence on a
    matter of substance. It is meant to ensure that the witness is given a fair
    opportunity to challenge contradictory evidence that the witness might have
    been able to explain away:
R. v. Quansah
, 2015 ONCA 237, 323
    C.C.C. (3d) 191, at paras. 75, 81. The relationship between Zachary and the
    appellants is not contradictory evidence that challenged  anything Zachary
    said. It was biographical information relevant to his general credibility as a
    witness. Nor can there be any suggestion that the Crown conducted the
    cross-examination in a way that deprived Zachary or defence counsel from addressing
    this concern, had they chosen to do so. The rule in
Browne v. Dunn
was
    not offended.

[77]

The
    Crown is not precluded from inviting a trier of fact to be selective as to what
    part or parts of any witnesses evidence they should believe:
R. v. Walker,
[1994] 18 O.R. (3d) 184 (Ont. C.A.), at pp. 156-157. Similarly, as noted
    above, a trier of fact or a trial judge may choose to believe some, none, or
    all of a witness evidence. In this case, the trial judge used Zacharys
    evidence in the manner suggested by the Crown, and this was permissible.

[78]

In
    all the circumstances, I would also dismiss this ground of appeal.

F.

DISPOSITION

[79]

Both
    conviction appeals are dismissed. I would also not grant leave to appeal
    Jordans sentence.

Released: April 29, 2021 M.T.

M. Tulloch J.A.

I agree. David M. Paciocco J.A.

I agree. Harvison Young J.A.


