R. v. S. (A.), 2002 CanLII 44934 (ON CA)

COURT OF APPEAL FOR ONTARIO

DATE: 20020517 DOCKET: C33917

MOLDAVER, FELDMAN and MacPHERSON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Michael Lacy and Melanie Dunn for the appellant

Respondent

• and -

Christine Tier

for the respondent

A. S.

Appellant

HEARD: January 29, 2002

On appeal from conviction and sentence by Justice Alan Whitten on January 13, 2000, and March 9, 2000, respectively.

FELDMAN J.A.:

1[1] The appellant appeals his conviction by the trial judge for sexual assault of his daughter C. He also appeals his sentence of 3 ½ years imprisonment. The grounds of appeal in relation to conviction are interconnected and relate to the trial judge’s alleged failure to assess the credibility of the complainant critically in light of acknowledged inconsistencies and improbabilities in her evidence, failure to properly approach the presumption of innocence in the context of assessing the credibility of the three critical witnesses, and misapprehension of certain elements of the evidence as reflected in his findings. The appellant claims that these errors by the trial judge resulted in an unreasonable verdict.

2[2] For the reasons which follow, I would dismiss the appeal as to conviction and as to sentence.

FACTS

3[3] The complainant was 16 years old at the time of the trial. The appellant was 41. The complainant testified that from the time she was 9 until she was 14, the appellant sexually assaulted her, first with touching, then with full intercourse 20 to 30 times. She could only specifically remember the first three occasions and the last one. She said that all of the incidents happened either in her bedroom, which she shared with her younger sister W., or in the living room of the family's ground floor apartment before they moved upstairs in the building.

4[4] The first assault occurred at about 4:00 p.m. one afternoon in November 1993. The complainant was in her pyjamas in her room and not feeling well. The appellant touched her legs over her pyjamas, then her stomach and chest underneath. He told her not to tell anyone. At the time, the complainant's five year-old sister was in the bath.

5[5] The second incident took place on the living room couch about one week later. The appellant asked the complainant if she told anyone what happened the first time and she said she had not. He rubbed her vagina over her clothing, then underneath for one minute. She then pulled away and went into her room. The time was around 5:00 or 6:00 p.m. when her mother and sister were at the grocery store.

6[6] The third assault occurred one month later. The appellant entered the complainant’s room and asked if she had told anyone. She said no and he said that was good because he could get into a lot of trouble. He then said he was going to do something that might hurt and proceeded to have intercourse with her. She began to cry, told him it hurt and he stopped. He told her the pain would go away. She thought her mother was at work and her sister was in the shower at the time.

7[7] The last assault occurred in December, 1997. He asked again if she had told anyone and said to make sure she did not because otherwise something would happen to her mother and sister and no one would believe her. Then he had intercourse with her. She then told him not to come near her anymore and that she was going to tell her mother what was going on. He stopped but told her again to remember what would happen if she told anyone.

8[8] Although the complainant could not remember details of any other incidents, in terms of timing, she said that the penultimate assault took place in her room about one week before the final incident.

9[9] The complainant described how she feared and hated her father and that when she told him on earlier occasions that she did not want him to touch her anymore, he called her names such as “bitch” and “slut” and told her not to tell anyone or something bad would happen to her mother and sister.

10[10] The complainant said that the appellant sometimes used condoms when he had intercourse with her. She told him she was concerned about pregnancy. He told her that it probably would not happen, but if it did, she should say it was someone else.

11[11] The appellant testified and denied any sexual assaults on the complainant.

12[12] The complainant did not tell anyone about the alleged assaults until March 30, 1998. During the winter of 1998, the complainant, who was 14 years old at the time, was acting out against her parents, and in particular she was going out with her friends against her parents’ wishes, smoking, drinking and not coming home in the evening when she was supposed to. In January 1998, the appellant’s mother began working nights from 10:00 p.m. until 6:00 a.m. as a baker at Tim Horton’s. If her daughter was not home by the time she had to leave for work, she would call the police. During that time period the police were called many times.

13[13] On March 13, when the mother tried to stop the complainant from going out to a dance or to play laser-tag, the complainant hit her mother and threw objects around the apartment. She threatened to break her mother’s crystal. She then went out. Her mother called the police before going to work. In the morning the police arrived. The complainant was home and the police had a conversation with the whole family. The police told the complainant that she could be charged with assault and sent to a detention home.

14[14] There was a further incident on March 29. The parents had withdrawn the complainant’s key so that she would not be able to come and go as she pleased. The complainant had obtained another key from a neighbour. When she tried to enter the apartment late with that key, there was a shoving match with her father. He called the police that night as well.

15[15] The next morning, March 30, the mother told the complainant she could not go out with her friends after school. The complainant returned home at lunch time which was unusual. The mother, after calling the school in the afternoon, believed the complainant had not returned to school. The complainant returned home at 4:00 p.m. The mother attempted to stop the complainant from going out and a physical altercation ensued, but the mother was not able to stop the complainant from leaving. The complainant threatened her mother that with one call she could have her younger sister taken away from her.

16[16] The complainant’s version of the balance of the events of that afternoon was that she told her mother that she wanted to leave before her father got home, her mother asked why she always fought with her father, and it was at that point that she disclosed the sexual assaults to her mother, who called her a “lying bitch” and accused her of saying that only because of the trouble she was in.

17[17] The mother said that this conversation did not take place and that when the complainant left, she sent her younger daughter to her neighbour to come and watch the younger daughter while she called the police at the neighbour’s apartment. This was necessary because the family did not have a phone. The mother, who was very upset, also called the appellant at work. She told him about the fight, that their daughter had gone out, and that she had called the police again, and she asked the appellant to come home. He left work early and came home.

18[18] The complainant went to the home of some friends. She said that she disclosed the sexual assault to two friends while at the house, then she left for the mall with one of these friends and another girl. On the way, she was observed by a police officer who knew that her mother had called the police again after she went out without permission. The complainant told the police officer that her father had sexually assaulted her. They then went to the station where the police called the mother and asked her to bring the whole family down to the station. The police sent a car to pick them up as the family had no car. At the station the police told the parents that they had found the complainant, and that the appellant was under arrest for sexual assault.

ISSUES

19[19] The appellant submits that the verdict of guilty is an unreasonable verdict essentially because the trial judge made errors of law in his determination of the credibility of the witnesses.

(1) Reversal of the Burden of Proof

20[20] The trial judge gave lengthy and comprehensive reasons for decision. He began by referring to the burden of proof including the test by the Supreme Court of Canada in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320. He identified the key issue as the credibility of the complainant, because for a conviction, the complainant’s evidence had to be accepted beyond a reasonable doubt. In relation to the burden of proof, the trial judge also referred to the formula articulated by Cory J. in R. v. W.(D.)., 1991 93 (SCC), [1991] 1 S.C.R 742 at 758 for assessing the impact of evidence given by an accused, and said that in reviewing the evidence he would be adopting the W.(D.) formula as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

He said he was proceeding in the order of that formulation. He turned first to whether he believed the evidence of the appellant.

21[21] The trial judge first reviewed the evidence of the appellant and how it fit with the theories of the defence that the appellant would not have had the opportunity to commit the offences given his and his spouse’s work schedules, the unpredictability of the mother’s return at any time from the grocery store, the unlikelihood that the young five year-old sister would have been alone in the bath or be taking showers each time, and the complainant’s motive to fabricate in order to get back at her parents or to extricate herself from their control. The only portion of the appellant’s testimony that the trial judge explicitly questioned was the appellant's statement that he did not have the impression that his daughter did not want to be at home. The trial judge found it obvious from the complainant’s conduct in coming home late and wanting to go out all the time that she did not want to be at home.

22[22] After his review of the evidence of the appellant, the trial judge concluded:

All in all, with respect to his base assertion of the denial of the alleged activity which brings him before the court I simply do not believe him.

23[23] The trial judge then proceeded to the second step in the W.(D.) analysis:

Having rejected his evidence with respect to the base denial, I am not in the face of this evidence left with a reasonable doubt, but some of what he raises, for example, errors with respect to the whereabouts of the sister [W.], the improbability of acts given the possibility of detection by others or by [the mother], or possible motivation by [C.] carries on to be part of the third part of the analysis… There are themes that when one looks at the evidence of [C.] and her mother that one must question whether or not they are of such a magnitude that there is a reasonable doubt with respect to what [C.] asserts.

24[24] The trial judge then turned to a review of the evidence of the mother, Ms. S. The trial judge conceded the force of much of the evidence dealing with the improbability in terms of timing of the alleged assaults, the whereabouts of the sister, and the openness of the living room given its location on the ground floor with only sheer curtains at least some of the time, to cover the glass patio doors. On the issue of the availability of the condoms, the appellant had stated that he did not have condoms because his spouse had had her tubes tied. The mother testified that she was always searching through her family's possessions because she was "nosy" and wanted to be aware of what was going on, and that she had never found any condoms. The trial judge rejected that assertion as contrived and not credible.

25[25] The trial judge then focused on the key issue on which he made the finding that the mother was lying. This was the discrepancy between the complainant's testimony that she told her mother about her father’s sexual assaults on March 30 before she left the house, and her mother’s contrary assertion that the first she heard of the allegation was when the appellant was charged at the police station. The trial judge made the following finding:

[Ms. S.] says that there was no allegation of a sexual assault made to her by [C.] on March the 30, 1998. She was unaware of any such allegation until her attendance at the police station. Yet, according to her husband’s evidence she phoned him at work, upset, and requesting that he come home. It was obviously more than [C.] walking out. It was not a violent event of the magnitude of the 13^th^ of March, 1998, where amazingly enough she did not call her husband.

It only makes sense that on this particular occasion there had been an allegation of sexual assault, and obviously if the child is not lying then the mother is. [Emphasis added]

26[26] The appellant submits that having accepted that the complainant was telling the truth about disclosing her allegations to her mother that day, the trial judge reversed the onus of proof and the W.(D.) formula by concluding that because the complainant was telling the truth, the mother, a defence witness, must be lying.

27[27] However, the trier of fact is not required to apply the W.(D.) formula to each piece of evidence, but rather to the evidence as a whole. Furthermore, the trial judge clearly turned his mind to the burden of proof and its application through the W.(D.) analysis. Later in his reasons, the trial judge explained why he believed and accepted the evidence of the complainant in spite of some inconsistencies and frailties in her evidence. Although the order in which he set out his reasoning and findings, beginning with the defence and ending with the complainant, could suggest that the trial judge did not consider the evidence as a whole when applying the W.(D.) test, a trial judge does not necessarily reflect his or her reasoning process in the order in which the analysis is delivered in the reasons themselves. In the result, it cannot be said that the trial judge has reversed the burden of proof.

(2) Misuse of Prior Inconsistent Statement

28[28] One of the arguments made by the Crown at trial was that the complainant's mother was biased in favour of her husband and therefore against her daughter, and that she was angry with her daughter. The Crown submitted that the mother's evidence should be viewed skeptically because of that bias.

29[29] Ms. S. was cross-examined about an earlier incident raised by the complainant as an example of her mother taking her father’s side. The incident involved an allegation by the complainant's younger sister that the appellant had assaulted her. In her evidence, Ms. S. denied that she told the police on that occasion that she did not want any charges laid, or that she expressed deep anxiety about losing her husband, or that she said to her younger daughter “Daddy is gone forever” when the police were opposing his bail. The officer involved was then called in reply. He referred to his notes and confirmed that Ms. S. did make the statements that she denied.

30[30] In his reasons, the trial judge found that Ms. S. did make the statements she denied and drew the conclusion from them that:

This raises grave concerns about where the loyalty of this particular person is.

31[31] The appellant’s objection is that the trial judge did not merely use the prior inconsistent statement as a factor in assessing the mother’s credibility, but also used it for the truth of its contents and concluded that Ms. S. was in fact biased in favour of her husband.

32[32] I would not give effect to this ground of appeal. "Facts to establish bias on the part of a witness may be elicited on cross-examination and, if denied, may be independently proved": McDonald v. The Queen, 1959 25 (SCC), [1960] S.C.R. 186 at 191. The trial judge treated the contrary evidence of the police officer as independent proof of the facts that entitled him to infer bias on the part of the mother.

(3) Rejection of Appellant’s Evidence

33[33] The appellant objects that the trial judge gave no basis for rejecting the appellant’s evidence or for concluding that it did not raise a reasonable doubt.

34[34] Again, this observation is a function of the order in which the trial judge set out his findings in his reasons. Based on the totality of the evidence, the trial judge is entitled to believe the complainant and to reject the denial of the accused. Here the trial judge first set out his rejection of the evidence of the accused without a clear explanation for that rejection. However, later in his reasons he explained why he accepted the evidence of the complainant as being true. Nothing in the evidence of the appellant raised a doubt in the mind of the trial judge. He was entitled to make that assessment and those findings based on all the evidence viewed in its totality.

(4) Acceptance of the Evidence of the Complainant

35[35] The appellant submits that the trial judge failed to critically assess the evidence of the complainant and accepted her evidence in the face of inconsistencies and improbabilities coupled with her motive to fabricate.

36[36] In his review of the complainant’s evidence, the trial judge acknowledged areas which he found problematic, including the whereabouts of her sister during the incidents and the discrepancy in her evidence as to whether all of the incidents, including the final one, took place in their ground floor apartment as opposed to the one the family moved to upstairs, this move having in fact occurred prior to the final December 1997 assault.

37[37] However, the trial judge addressed and discounted each of the issues raised by the defence respecting both the credibility and the reliability of the complainant’s evidence. He dealt with:

(1) the whereabouts of the sister;

(2) the apartment move;

(3) the living room curtains;

(4) risk of detection including the possible return of the mother at any time;

(5) prior inconsistent testimony from the preliminary hearing regarding which room the attacks occurred in, which apartment, and the location of the sister on each occasion;

(6) the alleged use of condoms;

(7) failure to disclose to anyone before March 30, 1998;

(8) motivation to fabricate;

(9) her admission of lying to her parents and foster parents.

He concluded that he accepted her evidence on the core issue of the occurrence of the offences:

In my opinion, there is considerable detail provided by [C.] as to what the accused did and said to her, and it stands out in stark contrast with the inconsistencies in her evidence with respect to peripheral matters, for example, the whereabouts of her sister. There is a progression in what she says. There is an expression of emotions which would be entirely appropriate to a person of her age experiencing these events. There is a reality to what she states. She may be mistaken or commits an error on such matters as to the whereabouts of her sister or mother, or to the actual location of the apartments, or within the actual apartment. Indeed, there may be confusion, but it does not, to use the words of the Crown, translate into a critical inconsistency. All in all, she presents in an honest forthright fashion. A girl caught up in a family life in which she is extremely vulnerable. I accept her bare assertions in their entirety.

38[38] The appellant objects that the trial judge effectively accepted the complainant’s evidence uncritically based on her demeanor: R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.) at 59, and R. v. G.G. (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 at 15. However, the trial judge did not refer only to demeanor, but treated it as confirmatory of his conclusion that the complainant’s story reflected appropriate emotions and progression in her feelings. The trial judge was clearly prepared to overlook some of the problems with the complainant’s evidence, essentially for the reasons set out in the quotation above, namely, that he accepted her evidence on the actual assaults, and because he accepted that her conduct was consistent with her predicament in the house with her mother being disposed to favour her father over her. In R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 at pp. 134-6, the Supreme Court of Canada stated that inconsistencies in the evidence of a child or regarding events that occurred in childhood, particularly on peripheral matters such as time and place, should be considered in the context of the age of the witness, and that an appellate court errs in reevaluating the evidence of such a witness without due regard to the fact that the trial judge was alive to the inconsistencies and dealt with them.

(5) Misapprehension of the Evidence

39[39] The appellant raises two key issues in relation to which he submits that the trial judge misapprehended the evidence.

40[40] One submission of the defence at trial was that the complainant’s motive to fabricate her allegations of sexual assault was her desire to be removed from her parents’ home and authority, against which she was actively rebelling.

41[41] The trial judge discounted that theory. He dealt with the point in two places in his reasons. He first said:

If the revelation was a device to get out of the house or to gain her freedom it was unnecessary. She had already been told by the police she would be removed if her behaviour kept up, specifically the running away. She did not, in my opinion, have to tell the story in order to get what she wanted.

Later, when dealing specifically with motive to fabricate, he says:

As I have indicated before that even without this accusation she was on the way to achieving her objective of freedom. She had been warned by the police that if she had continued in her behaviour she would be removed.

42[42] The appellant submits that the complainant had been warned by the police, not that she would be removed from her home if she continued to run away, but that she could be charged with assault of her mother and put into a detention home, and the complainant acknowledged in her evidence that she did not want that to happen. Consequently, the trial judge’s conclusion that she had a way to achieve her “freedom” from her parents without making the allegations of sexual assault was an improper conclusion which was based on a misapprehension of the evidence.

43[43] The second issue on which the trial judge put much emphasis was whether the complainant made the allegation of her father’s sexual assaults to her mother on March 30 before leaving the house, as she said, or whether she did not, as her mother said. As discussed above, the trial judge believed the complainant on this issue and it weighed heavily in his mind against the credibility of the mother.

44[44] I will set out again, for convenience, the portion of the reasons where the trial judge finds that he disbelieves the mother on this issue:

Ms. [S.] says that there was no allegation of a sexual assault made to her by [C.] on March the 30, 1998. She was unaware of any such allegation until her attendance at the police station. Yet, according to her husband’s evidence she phoned him at work, upset, and requesting that he come home. It was obviously more than [C.] walking out. It was not a violent event of the magnitude of the 13^th^ of March, 1998, where amazingly enough she did not call her husband.

It only makes sense that on this particular occasion there had been an allegation of sexual assault, and obviously if the child is not lying then the mother is.

And further on in the reasons the trial judge again emphasized the issue of calling the appellant at work:

If the mother is going to lie about whether or not the sexual impropriety was revealed to her on this occasion, in my opinion it is a telling comment about how much the child can rely on her. She even admits in cross-examination that this was the first time she had ever called her husband home from work. She also indicates that there was no hesitation when the police arrested him for sexual abuse in her embracing him. This is particularly telling as to the mother's bias, especially if she had already heard from the child herself.

45[45] The appellant submits that the trial judge placed great significance on the fact that the mother called the appellant at work only on this occasion, and that therefore it must have been to tell him about the allegations of sexual assault. The mother testified however, that the appellant would have been at home on these other occasions, so that there was no need to call him.

46[46] The issue of the appellant’s whereabouts during the March 13 incident and whether the mother did try to contact him on that occasion was not specifically explored with the witnesses by counsel at trial. The appellant did not testify about the incident but he did say that he was not present when the police were called. Although the reason for that could have been because the telephone was not in the appellant’s apartment, given the fact that he did not give direct testimony about the incident, it is more likely that he was not home at the time. Whether he was at work or out somewhere else, the trial judge was entitled to conclude that the mother did not attempt to contact the appellant on that occasion when the complainant was acting in a violent manner, and to draw the inference that the reason she did attempt to contact the appellant on March 30, for the first time, was because the complainant had just made the allegation that the appellant had sexually assaulted her.

47[47] The trial judge did not misapprehend the evidence on this issue or on the issue of the complainant being able to achieve “freedom” from her parents without making a sexual assault allegation. The trial judge’s reference to “freedom” was to freedom from her parents’ control and not to freedom in a general sense.

(6) Unreasonable Verdict

48[48] As with many cases involving the sexual assault of a child by a family member, where there is no corroboration and credibility determinations are crucial, the trial judge had the unique opportunity to hear and see the witnesses and to make the critical findings based on his appreciation of the evidence as a whole. This was a difficult case, but the trial judge addressed every issue and weighed the evidence carefully. This is not a verdict that a properly instructed jury, acting judicially, could not reasonably have rendered: R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1. (S.C.C.).

49[49] In the result, I would dismiss the appeal as to conviction.

50[50] Although the appellant appealed the sentence, no submissions were made in the factum or in oral argument on this issue. I see no basis upon which to interfere with the sentence imposed. I would also dismiss the appeal as to sentence.

Signed: "K. Feldman J.A."