Court of Appeal for Ontario
Between:
Her Majesty the Queen Respondent
and
James McNeil Applicant/Appellant
Before: Juriansz, MacFarland and Watt JJ.A.
Counsel: Christopher Hicks for the appellant Andreea Baiasu for the respondent
Heard: April 17, 2008
On appeal from the judgment of Justice William P. Bassel of the Ontario Court of Justice dated January 11, 2006.
Reasons for Decision
1The appellant was convicted by the trial judge of sexual assault and failing to comply with probation. The trial judge imposed a nine-month custodial sentence on the sexual assault offence and a 12-month conditional sentence on the fail to comply with probation offence. The trial judge further imposed an 18-month probation order, as well as an order to provide a DNA sample and an order to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10.
2The appellant appeals his conviction for sexual assault and, if leave is granted, his sentence on both offences. On the conviction appeal, the appellant submits that the trial judge misapprehended crucial aspects of the evidence in a way that resulted in a miscarriage of justice. For the reasons that follow, I agree with this submission and would allow the appeal.
Background
3The appellant, who was 19 years old at the time of the offences, and the complainant, then 15 years of age, were neighbours and platonic friends. The complainant testified that the sexual assault occurred when she spent the night at the appellant’s home sometime between July 15, 2004 and August 31, 2004, while his parents were out of town. She testified that he sexually imposed himself on her in a number of ways, including attempted vaginal intercourse. According to the complainant, the sexual assault took place on a sofa bed in the living room that was pulled out into the bed position.
4The appellant testified that the date of the complainant’s visit was August 16, 2004, while his parents were out of town on their honeymoon. He testified that there was no sexual interaction at all. The appellant also testified that the sofa bed referred to by the complainant had no mattress on it and that the sofa bed was not pulled out on that or any other night.
5The two-day trial was completed in late November 2005. Final submissions were made by the Crown and defence on January 11, 2006 and the trial judge delivered oral reasons the same day. The trial judge applied a proper W.D. analysis: R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). He disbelieved the appellant’s testimony and found that his testimony did not raise a reasonable doubt. He believed the complainant and concluded that her testimony, despite its inconsistencies, established the appellant’s guilt beyond a reasonable doubt.
6In his factum the appellant submitted that the trial judge misapprehended the evidence in several material ways. I discuss only the following two alleged misapprehensions, which were pressed in oral submissions:
(i) The trial judge was mistaken in his understanding that the appellant testified that he slept on the sofa bed in the bed position, when he specifically testified that he slept on it in the couch position.
(ii) The trial judge erroneously found that the appellant forgot his parents’ honeymoon.
7The appellant contends that these misapprehensions caused the trial judge to base his conclusions regarding the credibility of the witnesses on an erroneous understanding of the evidence. I deal with both of the alleged misapprehensions and then discuss why I am of the view that a new trial should be ordered.
Analysis
Did the trial judge misapprehend the evidence?
(i) Evidence on the position of the sofa bed
8The complainant testified that the sexual assault took place in the appellant’s living room on a sofa bed, which was pulled out. She said that the sofa bed had sheets and a mattress on it and the frame was intact.
9The appellant and his mother testified that the sofa bed had no mattress and that it could not be used in the bed position and never was. In cross-examination, the appellant indicated that on the night in question, he slept on the “couch/bed” in the couch position. The testimony was as follows:
Q. It was a couch/bed and you slept on the couch/bed?
A. Yes.
Q. Okay.
A. In the couch position.
10The appellant’s mother said the following when describing the sofa bed in the bed position:
You couldn’t lie on it. There is no way you could lay on it…It had springs and bars going across it and I think if you tried to lay on it the springs would separate because they were lengthwise and you would fall between them onto the floor.
11In the course of the trial judge’s analysis of the credibility of the defence evidence, he remarked that, although the appellant’s mother was emphatic that the sofa bed could not be used as a bed because one would fall through the springs, the accused had testified that he had slept on it:
Some issues that I have, some observations that I make about [the evidence of the appellant’s mother] include the following; she was very emphatic that the sofa was never used as a bed, too uncomfortable, you could fall through it, yet interestingly the accused said he slept on it.
12The appellant submits that his testimony that he slept on the sofa bed in the couch position should not have been used to undermine his mother’s testimony that the sofa had no mattress and could not be used as a bed. The appellant argues that this misapprehension was crucial because the lack of a mattress on the sofa bed was the only piece of independently verifiable evidence that the defence could point to in order to contradict the complainant’s allegations.
13The respondent contends that the trial judge noted earlier in his reasons that the appellant said “that the couch in question was never pulled out because it had no mattress, just bars and the springs.” The trial judge also noted that the appellant’s evidence in chief was “that he slept on the couch”. The passages relied on by the respondent are from the trial judge’s overall summary of the appellant’s testimony preceding his credibility analysis.
14The respondent submits that in the impugned passage from the trial judge’s reasons, he was not referring to the position the sofa bed was in. Rather, the trial judge was referring to the inconsistency between the appellant’s testimony that he slept on it and his mother’s testimony that one could not lie on it.
15I have difficulty understanding the respondent’s submission. The mother’s testimony related to the sofa bed in the bed position. The trial judge specifically drew a connection between the mother’s testimony that one would fall through the bedsprings and the appellant’s testimony that he said he slept on the sofa bed as a reason for rejecting her testimony. These two pieces of evidence can only be connected in the way the trial judge connected them if the appellant had testified that he slept on the sofa bed in the bed position.
16I have taken note that the trial judge delivered his reasons orally shortly after the close of submissions. Certainly, this court should recognize the workload of trial judges and should not expect oral reasons to be carefully crafted. Nevertheless, the substance of oral reasons does indicate the judge’s chain of reasoning in reaching the decision. The judge’s comment that the appellant slept on the sofa bed is a matter of substance, not mere structure or form. In my view, while the trial judge correctly recounted the appellant’s testimony during his general review of his evidence, he seems not to have kept in mind precisely what the appellant said when he later analysed the mother’s credibility.
17I am satisfied that the trial judge’s reasoning was affected by a misapprehension of the evidence.
(ii) Evidence on the honeymoon of the appellant’s parents
18In assessing the reliability of the appellant’s evidence, the trial judge observed that it was “odd that he would forget such an important event as his parents’ honeymoon”. I pause to note that, like the trial judge, I refer to the appellant’s parents’ “honeymoon”, even though the appellant sometimes referred to the event as their “anniversary”.
19Whether a “honeymoon” or an “anniversary”, the appellant’s testimony does not disclose a basis for concluding that he forgot the event. The appellant testified as follows in his examination in chief:
Q. How is it that you recall that date [of the night the complainant spent the night at his house], Mr. McNeil?
A. ‘Cause that’s the date that all these allegations take place on.
Q. Was there any significant event in your life or your family’s life around that time that would cause you to recall this date?
A. Not until I got charged.
Q. Let us talk about August the 16th, 2004 then. Did you see [J.C.] that day?
A. Yes sir.
Q. And do you recall where you first saw [J.C.] that day?
A. At her house.
Q. How had you come to be there?
A. My parents left to go up to the trailer for their honeymoon.
20The most that can be said is that the appellant did not refer to the honeymoon when it was apparent to the trial judge that examining counsel was seeking an explanation of how the appellant could identify the exact date of the complainant’s visit to his home. However, the appellant’s initial answers simply reflected that this date was significant to him because of the events leading to the allegations for which he was being tried for sexual assault. The date of these events was not his parents’ wedding date, as they were married three or four days earlier. After he was charged, he was able to identify the date when the alleged assault occurred because his parents had been away on their honeymoon on the night the complainant stayed over at his house.
21The appellant’s answers were responsive to the questions that were posed and provide no basis for inferring that he forgot his parents’ honeymoon. The trial judge specifically used this finding to diminish the reliability of his evidence. In my view, the trial judge’s conclusion was based upon a misapprehension of the evidence.
The effect of the trial judge’s misapprehension of the evidence
22On a conviction appeal where misapprehension of the evidence is alleged, it is not enough that the appellant demonstrate that the trial judge misapprehended portions of the evidence. The appellant bears the additional burden of showing that the misapprehension affected the reasonableness of the verdict, or occasioned a miscarriage of justice, or amounted to an error in law. As Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 at paragraph 88 (Ont. C.A.) explained:
In my opinion, on appeals from convictions in indictable proceedings where misapprehension of the evidence is alleged, this court should first consider the reasonableness of the verdict (s. 686(1)(a)(i)). If the appellant succeeds on this ground an acquittal will be entered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice (s. 686(1)(a)(iii)). If the appellant is able to show that the error resulted in a miscarriage of justice, then the conviction must be quashed and, in most cases, a new trial ordered. Finally, if the appellant cannot show that the verdict was unreasonable or that the error produced a miscarriage of justice, the court must consider the vexing question of whether the misapprehension of the evidence amounted to an error in law (s. 686(1)(a)(ii)).
23The appellant did not attempt to argue that the misapprehension of the evidence rendered the verdict unreasonable. The trial judge identified a number of other reasons for disbelieving the appellant’s testimony and for why it did not raise a reasonable doubt in his mind. The verdict cannot be said to be unreasonable.
24I would, however, find that the trial judge’s misapprehension of the evidence occasioned a miscarriage of justice in this case.
25The foundation of the defence at trial was that the testimony about the sofa bed undermined the complainant’s credibility. The defence’s position was that the complainant could not be believed that a sexual assault took place on the sofa bed because the sofa bed did not have a mattress and could not be used in the bed position. Besides relying on the appellant’s and his mother’s testimony about the sofa bed, defence counsel at trial stressed the inconsistencies in the complainant’s testimony related to the position of the sofa bed. He pointed out that in her video statement to police, which she adopted as her testimony in chief, the complainant initially said that when she and the appellant entered his home that evening, the sofa bed was already pulled out and she did not know why. Later on in the same video statement, she said that they pulled out the sofa bed together to watch movies on and described the furniture they had to move to make room for it. Defence counsel contrasted her inconsistency about the sofa bed with the appellant’s and his mother’s testimony that the sofa bed had no mattress.
26Defence counsel at trial went on to argue that on the complainant's own version of the events, any sexual activity that took place ended when the complainant told the appellant to stop as he was attempting to penetrate her. Her lack of consent to the sexual activity was not credible as she did not attempt to get off the sofa bed or attempt to close her legs when the appellant subjected her to prolonged oral sex. Defence counsel submitted her explanation for her lack of action at earlier stages fell “short of what common sense would expect of such a situation”.
27The trial judge’s misapprehension that the appellant forgot his parents’ honeymoon does not seem important when considered in isolation. However, the trial judge specifically indicated he relied on this as another reason for finding the appellant’s testimony unreliable.
28Having employed these misapprehensions to diminish the credibility of the defence evidence, the trial judge concluded that defence evidence was inadequate to raise a reasonable doubt and the complainant’s testimony was sufficiently credible to establish beyond a reasonable doubt there was sexual activity to which she did not consent.
29In Morrissey Doherty J.A. indicated at paragraph 96 that the appellant met the onus of showing a miscarriage of justice by demonstrating that there were “significant errors in the trial judge's understanding of the substance of the evidence” which “figured prominently in the reasoning process which led to crucial findings of credibility and reliability, and then to crucial findings of fact”. In R. v. Beaulieu, [2004] O.J. No. 4107, there was, apart from the misapprehended evidence, ample evidence to support rejection of the appellant's testimony and to sustain the conviction. Still, this court found there had been a miscarriage of justice because the conviction resulted from the trial judge’s disbelief of the appellant and the misapprehended evidence was “an essential part of the reasoning process he used” (at paragraph 7).
30In this case I am satisfied that the trial judge’s misapprehension of the evidence figured prominently in the trial judge’s reasoning process leading to a conviction and thus led to a miscarriage of justice.
31I would allow the appeal and order a new trial.
“R.G. Juriansz J.A.”
“I agree J. MacFarland J.A.”
“I agree David Watt J.A.”