



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2020 ONCA 632

DATE: 20201007

DOCKET: C58086

Lauwers, Huscroft and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Curtis Lee Smith

Appellant

Lindsay Daviau, for the appellant

Sean Horgan, for the respondent

Heard by videoconference: September 24, 2020

On appeal from the conviction entered on October 31, 2012
    by Justice Hugh K. OConnell of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of aggravated assault arising out of a fight
    he and his co-accused, Paul Gallant, were alleged to have started with several
    strangers on March 4, 2011. The appellant was found to have stabbed Enayat
    Thompson in the neck. The sole issue at trial was identity of the assailants.

[2]

There was no eyewitness identification nor were the victims able to
    identify their assailants, apart from in-dock identification upon which the
    trial judge did not rely. The Crowns case centred on the testimony of the
    appellants former girlfriend, Darlene McKoy, who testified that she overheard
    a conversation between the appellant and Gallant about the fight. Gallant gave
    a statement to the police and testified at trial. The appellant did not make a
    statement and did not testify at trial.

[3]

McKoy testified that she received text messages from the appellant on
    the evening of the fight telling her that he had done something bad, that he
    was taking a cab home, and that he would tell her more when he arrived. She
    testified that, after the appellant arrived, he told her to wash his clothes.
    He then shaved his head and beard. He told her that someone had thrown a beer
    bottle and nearly hit him in the head, that Gallant had hit someone over the
    head, and that he had swung at someone with his pocketknife. McKoy testified,
    further, that the appellant said he jumped a fence, ran to the hospital, and
    then called the cab. Gallant arrived at the apartment later that evening. McKoy
    testified that she heard the appellant and Gallant talking about the fight. She
    said that she heard the appellant say he thought that he struck someone in the
    face and that Gallant said he had hit a man over the head with a pole.

[4]

The appellant raises several grounds of appeal that focus on the trial
    judges treatment of McKoys evidence. In essence, the appellant renews the
    argument made before the trial judge that McKoy had a motive to fabricate and
    that her evidence was not credible: She was the appellants former girlfriend
    and the mother of his daughter. Shortly after the stabbing, she became involved
    in a custody battle with the appellant. The implication is that she concocted
    the story in order to buttress her custody claim.

[5]

The appellant argues that the trial judge erred by finding that McKoy
    was credible on the basis that she did not embellish her evidence, in violation
    of this courts recent decision in
R. v. Alisaleh
, 2020 ONCA 597. The
    appellant submits that the trial judges finding that she did not embellish her
    evidence taints his credibility finding and that it cannot stand as a result.
    We disagree.

[6]

It is well established that the fact that a witness does not embellish
    her testimony does not enhance her credibility. But it is also well established
    that the mere mention of the absence of embellishment does not undermine a
    credibility finding that is otherwise properly supported. These points are made
    clear in
Alisaleh
, at paras. 16-17, a case in which the Crown conceded
    that the trial judge had improperly relied on a witnesss lack of embellishment
    as an important factor to enhance her credibility, a concession this court accepted.

[7]

This is not a case in which a witnesss lack of embellishment was relied
    on or used as a makeweight to establish or enhance credibility: see
R. v.
    Kiss
, 2018 ONCA 184, 145 W.C.B. (2d) 666, at para. 53. It was not
    inappropriate for the trial judge to note that McKoy had not embellished her
    evidence in the context of addressing the appellants claim that she was merely
    reiterating press reports or that her testimony was led.

[8]

Nor did the trial judge err by considering McKoys testimonial
    demeanour. His credibility findings were not based on her demeanour; he simply
    referred to her candour and essential innocence in the manner she gave
    evidence. He cautioned himself not to rely on demeanour in determining the
    truth and stated specifically that he was not doing so.

[9]

Ultimately, the trial judge accepted that McKoy had a motive to go to
    the police but not a motive to fabricate her evidence. He found that she was
    credible after considering her evidence in the context of the evidence as a
    whole.

[10]

The
    trial judge did not use Gallants evidence impermissibly in finding that
    McKoys evidence was corroborated. He was aware of the limitations on the use
    of Gallants out-of-court police statement. He specifically stated that he had
    not used anything in the statement as direct evidence against the appellant or
    to corroborate McKoys testimony. However, the trial judge was not prohibited
    from using Gallants evidence
at trial
to
    corroborate McKoys evidence and his treatment of this evidence comports with
    the approach set out by this court in
R. v. Riley
,
    2017 ONCA 650, 137 O.R. (3d) 1, leave to appeal refused, [2018] S.C.C.A. No.
    216, [2019] S.C.C.A. No. 412.

[11]

The
    trial judge did not reject Gallants evidence in its entirety, such that he was
    precluded from relying on some of the details of that evidence to corroborate
    McKoys evidence. He rejected Gallants alibi evidence, finding that his claim
    that his police statement concerned a different, earlier, fight was implausible
    and contrived. But he was entitled to use elements of Gallants testimony at
    trial to find that there had been a fight, that the appellant was present, and
    that beer bottles were thrown. McKoys evidence was also corroborated by the
    cab dispatch records and phone records.

[12]

In
    summary, we are satisfied that the trial judge was alive to the issues
    concerning McKoys testimony, including her pending custody dispute with the
    appellant as well as her having read press reports  both of which she
    acknowledged. He fully and fairly considered the evidence, including the
    evidence on reopening, in determining that she was credible. His decision
    reveals no error and is entitled to deference.

[13]

Finally,
    we are satisfied that the trial judge properly considered the evidence as a
    whole and did not shift the burden to the appellant. He did not err in finding
    that the charge had been proven beyond a reasonable doubt.

[14]

The
    appeal is dismissed.

P. Lauwers J.A.

Grant Huscroft J.A.

Harvison Young J.A.


