COURT OF APPEAL FOR ONTARIO
Lang, Juriansz and Watt JJ.A.
Her Majesty the Queen
Respondent
and
John Wigle
Appellant
Danielle Robitaille, for the appellant
Dena Bonnet, for the respondent
Heard: May 13, 2009
On appeal from the conviction entered by Justice S. Nosanchuk of the Ontario Court of Justice on August 7, 2007.
1The appellant, John Wigle, appeals his convictions for assault, choking, uttering a threat, and confining the complainant, Deborah Kenney, on May 26, 2007 and for sexually assaulting her on June 26, 2007.
2The central issue at the two-day trial was credibility. The central issue on this appeal is the sufficiency of the trial judge’s reasons when read in the context of the trial record.
3For the reasons that follow, I would allow the appeal, set aside the convictions and order a new trial.
Background
4As a result of an earlier incident, the appellant was subject to a probation order, a term of which prohibited him from contact with the complainant without her written consent. In February 2007, the complainant provided that (revocable) consent to the appellant’s probation officer. As a result, the appellant and the complainant began living together.
5On April 1, 2007, the appellant arranged to rent an apartment on a month-to-month tenancy. The appellant moved into the apartment. The complainant moved in the next day. They lived together in a spousal relationship. The appellant paid the rent. The complainant paid, or was to pay, other household expenses.
6In the early afternoon of June 26, 2007, the complainant revoked her consent to contact with the appellant. She notified the appellant’s probation officer of her revocation by telephone. The probation officer called the police. The police arrived about twenty to thirty minutes later and told the appellant to leave the apartment.
7The appellant became angry with the police. He testified that his anger was not a reaction to the reinstatement of the no contact order, but a reasonable reaction to what he considered to be an unreasonable police demand that he should leave what he saw as "his" apartment. He told the police, that since he paid the rent, he was the tenant and the complainant was not. In his view, she should be the one to leave. Despite the appellant’s protestations, the police removed him from the apartment. They did not lay any charges against him.
8The appellant telephoned his lawyer. Later in the afternoon, he also called two police staff sergeants. After those conversations, the appellant called the police asking them to remove the complainant from “his” apartment. He returned to the area outside the apartment where he waited for the police for about fifteen minutes. The police did not arrive. Since the complainant’s car was not at the apartment, and the appellant believed that meant that the complainant was not there, he entered the apartment. Sometime later, as the police were arriving at the apartment, the complainant returned.
9During the course of discussions about the appellant’s position that he was the tenant of the apartment, the complainant told the police for the first time that the appellant had sexually assaulted her earlier that day, June 26. As well, she alleged that he physically assaulted her on May 26, 2007. On the basis of those allegations, the police charged the appellant with the offences that were before the trial judge.
10At trial, the complainant testified that, the appellant told her on May 26, 2007, as he had on many earlier occasions, that he wanted her to leave the apartment. To that end, the appellant began gathering some of the complainant’s belongings and headed to the door with the apparent intention of putting them outside. The complainant grabbed the appellant’s shirt. She testified that the appellant then punched her and took her to the floor, at which point the appellant “put his foot on my head and he started kicking me and punching me and then, then I kicked him back”. The complainant testified that, during the assault, the appellant hit her several times on her right side with his closed right hand.
11The complainant said she was able to get up, but the assault resumed. She testified that the appellant threw her onto the bed and pressed his elbow “in the little V spot in [her] throat” so that she could not breathe. The complainant testified that, from this position, she bit the appellant on the chest. She said the appellant then backed off, but put both his hands over her mouth. Nonetheless, the complainant managed to break free.
12At that point, the complainant tried to leave the apartment. She said that the appellant told her she could not leave because she would tell the police about the assault and, if she did, he would put her into intensive care. The complainant testified that the appellant hit her again, this time with a hard forceful slap to the right side of her face. In describing the slap, the complainant pointed to the left side of her face.
13The complainant testified in-chief that, immediately after this altercation, she observed that she had a cut in her eye, a black eye, and the whole right side of her face was swollen. She also said that she suffered “a saucer pan size bruise on [her] right side” above her “right kidney”, her left ear was “all black and blue”, she had seven or eight bumps on the right side of her head (from the kicking), and bruises on her ribs. In cross-examination, the complainant said her injuries were more extensive, including bruises “everywhere”. However, she continued to maintain that the bruises were all on her right side, except for her bruised left ear. The complainant produced a photograph of herself that she said showed a “bump” or bruises. The photograph only showed the left side of the complainant’s face.
14The complainant testified that “couldn’t move for about a week” and she could not sleep on her right side as a result of her injuries. She said she did not seek medical attention because the appellant warned her against doing so.
15The complainant gave different statements about what she did after the May 26 incident. In her videotaped statement the day after the appellant’s arrest in June, the complainant told the police that she left the apartment after the incident and drove around. She also told the police that she telephoned her father the next morning and that her father gave her money, which she used to stay at the Budget Inn for the next two days.
16However, in examination-in-chief at trial, the complainant testified that she left the apartment after the appellant fell asleep. She said that she went out to her car and returned half an hour later when she realized she had “no place to go.”
17When cross-examined on the discrepancy between her videotaped statement and her evidence-in-chief, the complainant admitted that it was not true that she had stayed at the Budget Inn for the two days following the May incident. Instead, she testified that she went to the Budget Inn as soon as the appellant fell asleep. When she realized that she did not have enough money to rent a room, she returned to the apartment where she slept with the appellant. The complainant tried to reconcile this evidence with her evidence-in-chief by saying that she had gone out to the car, then gone to the Budget Inn, then returned home. She said she did call her father the next morning and that, while her father gave her money, she decided not to use it to stay at the Budget Inn. Instead, she returned to the apartment because “[she] wasn’t taking the chances of leaving and not being able to, to get back in.”
18The appellant testified. He agreed that he had persistently told the complainant that he wanted her to leave. He denied the May 26 assault.
19The second assault was alleged to have taken place on June 26, 2007. The complainant and appellant testified that they had barely spoken to each other for about four days. At that point, their relationship appeared, by all accounts, to be tenuous at best. The complainant testified that, when she called the appellant’s probation officer to revoke her consent to contact, she did so without the appellant’s knowledge while he was in the shower. The complainant testified that, after his shower, the appellant emerged naked from their bedroom and sat down cross-legged beside her on the living room couch; he then asked her to “play with” him. The complainant testified that, even though she responded by telling the appellant to leave her alone, he put his hands on her breasts and tried to put his hand up her shorts. She said that he continued to do so for about five minutes before desisting and returning to their bedroom.
20At trial, the appellant testified that on June 26, he told the complainant their relationship was over and he was leaving. She became agitated. He got into the shower. The appellant testified that, when he emerged from the shower and went into the living room, the complainant told him that she had called his probation officer to revoke her consent. Not believing her, the appellant called the probation officer, who gave no indication of having received such a call. The appellant obtained what he believed to be confirmation that the complainant had not tried to retract her consent. He then approached the complainant with the sexual invitation, “[d]o you want to play”. The appellant testified that, when the complainant responded in the negative, he returned to his bedroom to shave.
21The probation officer testified the appellant called him shortly after the probation officer had called the police and that he had kept the appellant on the telephone for 26 minutes to give the police time to arrive.
Trial Judge’s Reasons
22The trial judge began his reasons by observing that “[t]his is not an easy case to decide.” He stated that one of the real issues was “who rented the apartment” and whether, in wanting the complainant to leave the apartment, the appellant committed the offences alleged in the indictment.
23In brief reasons, the trial judge acknowledged the “he said/she said” nature of the evidence. He observed there “is really the evidence of the complainant” giving one version, and the evidence of the appellant “flatly denying what she said.” The trial judge set out the principles from R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. He acknowledged that there were inconsistencies in the complainant’s evidence. He identified one inconsistency, concerning whether the complainant had or had not rented a motel room on the night of May 26. The trial judge did not resolve that inconsistency. He concluded that all the inconsistencies “are collateral matters.”
24In stating that it was “difficult for the court to believe that the complainant manufactured this evidence”, the trial judge commented that it was “striking” that the complainant’s evidence was “graphic”. In addition to placing reliance on the complainant’s descriptors and demeanour, the trial judge concluded that the evidence of the neighbour, about seeing a bruise on the complainant’s body, and the photograph, alleged to depict bruising on the complainant’s face, supported the complainant’s evidence of an assault on May 26.
25In weighing the evidence of the appellant, the trial judge “[took] into account” the appellant’s “adamant” and “vehement” attitude and “anger” at the time the police removed him from his apartment. The trial judge decided that the “demeanour of the complainant” and “the angry conduct of the accused when he was dealing with the police” combined “to buttress the credibility of the complainant”.
26In convicting the appellant of sexual assault in relation to the June 26 incident, the trial judge again described the complainant’s evidence as “graphic”. He noted that the appellant conceded his “invitation to play” to the complainant and that the parties had “not had much to do with one another for some period of time” before that day. He concluded that “there was an invasion of the privacy of the complainant … without her consent”, and, accordingly, that the appellant was guilty of sexual assault.
27In the result, the trial judge convicted the appellant of the offences now under appeal. The trial judge expressed a reasonable doubt about the charge of breach of a probation order and acquitted the appellant on that count.
Issues
28The appellant raises two issues regarding the sufficiency of the trial judge’s reasons. First, he argues that the reasons do not adequately explain to him why he was convicted and, second, they do not allow for meaningful appellate review. He argues that the trial judge’s failure to give reasons for rejecting the evidence of the appellant and his failure to analyze the evidence of the complainant, inhibit these two functions of reasons for judgment.
Analysis
The Approach
29The Supreme Court of Canada has cautioned appellate courts about the limited parameters of appellate review based on a challenge to the sufficiency of a trial judge’s reasons.
30Insufficiency of reasons is not a stand-alone ground of appeal. In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3at para. 25, the Supreme Court quoted from R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, which, in turn, cited the principle from para. 33 of Sheppard, that “the appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case”.
31A trial judge’s reasons are sufficient if they explain to the parties why the decision was made, provide public accountability, and permit appellate review: see R.E.M., at paras. 11 and 15.
32In deciding whether reasons are sufficient, appellate courts are instructed to take a functional approach asking whether the trial reasons achieved the three purposes of explanation, accountability and reviewability. Even if the reasons, standing alone, do not satisfy their intended functions, the appellate court must turn to the trial record and its context to identify and attempt to communicate the basis for how and why the trial judge arrived at the decision. Only if that basis cannot be identified from the record will the appellate court order a new trial: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 28 and 50.
33In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, Charron J. underscored the importance of a trial judge’s credibility findings to the sufficiency of reasons. She observed at para. 26 that “[n]evertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error”. Further, at para. 29, Charron J. noted that, in the context of the focus on the complainant’s credibility and the testimony of the accused denying the allegations, “it was incumbent upon the trial judge to explain, even in succinct terms, how he resolved these difficulties to reach a verdict beyond a reasonable doubt.”
34In the circumstances of that case, the court reasoned at para. 31:
While it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused, it was not open him to do so without explaining how he reconciled the complainant’s inconsistent testimony, particularly in light of the accused’s own evidence denying her allegations.
35The court in R.E.M. also specifically commented about the approach to credibility findings in determining the sufficiency of reasons. The court noted at paras. 49 and 48 the “delicate” nature of credibility findings and the difficulties faced by trial judges in articulating and verbalizing the “complex intermingling of impressions” that underlie such determinations. R.E.M. referred to Dinardo regarding the sufficiency of credibility findings and noted at para. 50 that credibility findings, which “must be made with regard to the other evidence”, “may require at least some reference to the contradictory evidence.”
36Before coming to a conclusion about the sufficiency of reasons challenged on the basis of credibility issues, an appellate court will review the reasons in the context of the whole of the record and the circumstances of the case to determine from this review the basis for the trial judge’s credibility findings. As McLachlin C.J. explained the approach at para. 55 of R.E.M.:
The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions.
37However, the court also explained at para. 56 that the trial judge need not “describe every consideration leading to a finding of credibility” and that “[r]easonable inferences need not be spelled out.” Indeed, it is important to note that a trial judge is under no obligation to deal with every piece of evidence in arriving at his or her factual findings. Nonetheless, the court further observed, at para. 57, that to permit meaningful appellate review, reasons must disclose “the foundation of the conviction.”
Application to this Case
38The appellant has satisfied me that the application of the above principles leads to the conclusion that a new trial is necessary in this case. I arrive at this conclusion because, even after a consideration of the reasons and the entirety of the record considered in context, I am unable to explain how the trial judge resolved the challenges to the complainant’s credibility and reliability in order to convict the appellant. Further, in my view, even when considered in their full context, the reasons do not provide the foundation of factual findings necessary to permit appellate review.
39The record discloses significant inconsistencies and improbabilities raised by the complainant’s evidence. The trial judge identified only one inconsistency. That inconsistency concerned the night of May 26 and the complainant’s subsequent whereabouts. The trial judge did not explain how he resolved this inconsistency.
40Further, his reasons did not deal with the other inconsistencies and challenges to the complainant’s evidence. In particular, there was a significant conflict in the complainant’s evidence about what injuries she allegedly suffered on May 26. The complainant testified about highly visible injuries, including a black eye and a swollen face. She said her injuries were so extensive that they significantly affected her ability to move and sleep for a week. Yet her neighbour noticed nothing unusual about the complainant when she saw her two or three days after May 26. Specifically, the neighbour gave no evidence of any injuries to the complainant’s face. The neighbour supported the complainant’s evidence only to the extent of testifying that the complainant had shown her a large bruise on her right side. It was this piece of evidence that led the trial judge to believe “that the complainant indeed was telling the truth.” However, the trial judge came to this conclusion without either mentioning or resolving the significant inconsistencies between the complainant’s stated injuries and those observed by the neighbour.
41The trial judge also referred to the photographs. However, even assuming the trial judge was entitled to conclude that the photographs showed discolouration of the complainant’s skin, his reasons do not address the significant point that the photographs depict the left rather than her right side of the complainant’s body. The complainant’s evidence initially focused exclusively on injuries to her right side. She appeared to change her evidence to attest to left-sided injuries only when she realized that the photograph did not show her right side. While, of course, it was open to the trial judge to accept some parts of the complainant’s evidence and not others, it was incumbent upon him to explain what evidence he accepted and why he chose to do so.
42Further, the trial judge did not address inconsistencies between the complainant’s videotaped statement and her trial evidence, including the absence of reference in her earlier statement to the appellant having his hands over her mouth, or to the complainant biting the appellant. Nor did the reasons consider the logistical implausibility of the complainant’s testimony, particularly her testimony that the appellant kicked her several times while standing on her head. Indeed, the trial judge does not explain why the implausibility of certain aspects of the complainant’s evidence did not reflect on the reliability of the more plausible parts of her evidence.
43As well, the reasons did not resolve contradictions between the complainant’s police statement, in which she said that the May 26 incident began with the appellant dumping out her purse, and her trial testimony, in which she said that the incident began when the appellant headed to the door with some of her belongings. The reasons also did not address the reliability of the complainant’s evidence. The complainant denied asking the probation officer to have the appellant removed from the apartment. The probation officer testified that the complainant did ask that the appellant be removed from the apartment.
44In addition, the trial judge’s reasons characterized the rent issue as the “real” issue. While this may have given undue weight to the legal question of the tenancy, in my view the trial judge’s reasons ought to have at least explained his conclusion on the issue that he saw as significant.
45Moreover, regarding the issue of consent to the June 26 sexual conduct, the trial judge did not address the incident in the context of the spousal relationship, the telephone calls with the probation officer, and the timing of any sexual touching and objection.
46In view of the number and nature of the inconsistencies and other challenges to the complainant’s evidence, combined with the complainant’s admitted objective of securing occupation of the apartment and her possessions, the trial judge was obliged to explain how he arrived at his decision. This required some explanation of what he believed and, more importantly, what he did not believe or what did not raise a reasonable doubt about the appellant’s guilt. Where the credibility of the complainant was the central issue, it was insufficient to dismiss the numerous problems by labelling them “collateral”.
47In my view, even recognizing that there is no obligation on a trial judge to deal with every piece of evidence, without some explanation why the inconsistencies, contradictions and implausibility of the complainant’s testimony did not affect her credibility or reliability, the trial judge’s reasons do not adequately explain the appellant’s convictions, nor do they allow for appellate review. As Charron J. said in Dinardo at para. 34:
…the questions expose the very real obstacle to appellate review posed by the trial judge’s failure to state explicitly why he accepted the complainant's evidence despite its difficulties.... Without some explanation in his reasons for judgment, there is simply no way to know how the trial judge satisfied himself that the complainant was a credible witness.
48There are also problems with the trial judge’s rejection of the appellant’s evidence. He rejected his evidence largely because the appellant took a forceful position with the police when they asked him to leave the apartment. The trial judge does not explain how the appellant’s “adamant” belief in his tenancy negatively affected his credibility regarding the circumstances of the alleged assaults. The reasons do not disclose any consideration of the appellant’s explanation that he did not understand why he should be the one to leave the apartment when, in his view, he was the tenant of the premises. After reviewing the whole of the record, I am unable to explain the basis for the conclusion that the appellant’s evidence “could not reasonably be true”.
Result
49In conclusion, a consideration of the reasons and the trial record as a whole reviewed in context does not disclose an explanation for the appellant’s convictions and the absence of an explanation impedes the appellant’s ability to exercise his right to appeal.
50For these reasons, I would allow the appeal, set aside the convictions and order a new trial.
“S.E. Lang J.A.”
“I agree R.G. Juriansz J.A.”
“I agree David Watt J.A.”
RELEASED: August 4, 2009
