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| John L. Hill |
The victim testified in the Ontario Court of Justice in St. Catharines to serious violent offences that occurred in January. The non-jury trial proceeded before Justice Fergus O’Donnell. J. F. denied the allegations. It was another instance where the trial judge had to decide guilt or innocence as a “he said/she said” case.
According to a report in the Jan. 20, 2020, edition of the Niagara Falls Review, J.F. and the complainant met in 2017, connecting through Facebook. It was a relationship the trial judge described as “very dysfunctional” with significant trust issues. During an argument that led to J.F.’s arrest, the victim said J.F. put his hands around her neck and choked her. She said he hit her a few times, once with her phone in her face. He then went to a closet and returned with a loaded handgun. The complainant
Elena Kalinicheva: ISTOCKPHOTO.COM
Sometime later, the complainant reported the assault to the police, who photographed her injuries. The news report described the injuries included a mark on her forehead, bruising on her nose and lip, petechiae on her eyelids, round bruises on her neck consistent with fingertips, marks on her jawline and an abrasion on her collar.
J.F. denied it all. He said he never struck her, never brandished a handgun at her or even showed it to her and did not sexually assault her. The trial judge accepted the complainant’s version and sentenced J.F. to 15 months in custody for assault, forcible confinement and uttering death threats. Additionally, he was sentenced to three months on each of four counts of careless storage of a firearm to be served consecutively. He appealed the conviction and sentence, but since the custodial sentence had been served, that aspect of the appeal was abandoned.
The Ontario Court of Appeal heard the case in January of this year and delivered its judgment on July 9, 2024 (R. v. J.F., 2024 ONCA 547). In its decision, the appeal court addressed four grounds raised by the defence.
The first ground, the defence argued, accused the trial judge of presuming J.F.’s guilt to explain gaps in the complainant’s memory about the assault. On examination of the trial record, the appeal court concluded there was no indication that the trial judge excused frailties in the complainant’s evidence resulting from trauma. “Where the complainant’s evidence was tentative, whether as a result of trauma or some other reason, the trial judge did not convict.” Much of her testimony was confirmed by photographs of her injury and by the weapons and ammunition found in J.F.’s home.
The following two grounds advanced by J.F.’s defence counsel acknowledged that while the photographs corroborated the assault with a weapon and choking charges, they could not corroborate the utter threats and sexual assault allegations. These arguments were not accepted. The appeal court held that the witness’s demeanour bore out corroboration of the charges. Although not corroborative in every detail, a trial judge can assess demeanour in assessing credibility (R. v. Primmer, 2021 ONCA 564; R, v. Demedeiros, 2018 ABCA 241). The trial judge’s acceptance of the complainant’s evidence concerning the sexual assault was informed by his observations that her evidence was “rational,” “compelling,” “logical and convincing.” And “powerfully consistent” with the police photographs.
Finally, the defence argued the trial judge gave insufficient reasons to convict J.F. This, too, was rejected by the appeal court. Although the trial judge found that J.F.’s explanation was plausible and not patently false, it was open to the trial judge to remain unconvinced by J.F.’s version of facts. He had set forth sufficient detail as to why he accepted the complainant’s testimony and how he concluded J.F. was less convincing.
Accordingly, J.F.’s appeal was dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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