W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Doherty, Armstrong and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
T.L.
Appellant
Delmar Doucette, for the appellant
Alexandra Campbell, for the respondent
Heard: March 11, 2010
On appeal from the convictions entered on May 14, 2008 by Justice Peter Howden of the Superior Court of Justice and the sentence imposed by Justice Howden on July 2, 2008.
INTRODUCTION
1The appellant appeals his convictions for sexual assault (two counts) and utter a threat (one count) after a trial before Justice Peter Howden of the Superior Court of Justice. The appellant was sentenced to a one year conditional sentence and two years probation.
2The appellant was a part owner of the M[…] Restaurant and Wine Bar (the “M[…]”) in R[…]. M[…] occupied a large premises which was licensed for 390 patrons. In the late evening (after 10:00 p.m.) it attracted a party crowd and a party atmosphere, which was encouraged by the owners. The female bartenders and female servers dressed provocatively. The staff in the restaurant would engage in conversation of a sexual nature with the patrons. Lewd comments and the telling of off-colour jokes were prevalent among staff and patrons and there was a fair amount of physical touching including hugging, waist and hip squeezing and bottom slapping.
3The appellant was one of the promoters of the party atmosphere. He was known for his jokes and ribald toasts: “to chicks with clits the size of my big toe”. The appellant and patrons engaged in hugging and similar kinds of physical contact with the female staff.
4The complainants in this case were employees at the M[…], F.D., a server, and S.P., a bartender. Two other servers, H.H. and G.H., also made complaints of sexual assault against the appellant. He was acquitted on those latter charges.
F.D.
5F.D. alleged that the appellant sexually assaulted her at the M[…] on October 6, 2006 and that the appellant threatened her life a week later on October 13, 2006.
6F.D. testified that on the evening of October 6, 2006, the appellant poured complimentary shots for some customers and gave his usual ribald toast. During the toast, he was squeezing one of her hips and looking directly at her. About an hour later, in full view of people in the bar, which was filled to capacity, the appellant came up behind her while she carried a tray of empty glasses and touched her bottom with both hands and slid one of his hands through her legs to touch her vagina through her pants. She said to the appellant, “Are you kidding?” He responded, “what, what” and appeared to be surprised at her reaction. She testified that the appellant had never touched her in the vaginal area prior to this occasion.
7The appellant denied that he touched F.D.’s vagina. He said that he squeezed her hips as he had done on other occasions and she had flared up and gave him a look that he interpreted as saying, “what’s going on” or “what are you doing?” She had not reacted that way in the past.
8O.T., a M[…] bartender, testified that she had a conversation with F.D. shortly after the alleged assault. F.D. told O.T. that the appellant had “smacked” or “grabbed her ass”. F.D. rolled her eyes as she related the incident to O.T.. F.D. did not appear to be all that upset according to O.T..
9F.D. stopped talking to the appellant after this incident. During the week that followed, the appellant asked F.D. several times what was wrong. The appellant testified that he thought that she was unhappy because her work location had been changed recently to a less lucrative tipping area of the establishment. The appellant was also concerned because he thought that her unhappiness might have an adverse effect on a potential business deal he was negotiating with a regular patron whose favourite server was F.D..
10On the evening of October 13, 2006, the appellant approached F.D. in the kitchen and again asked her what was wrong. She replied: “I don’t want you to touch me. I want you to leave me alone.” She then walked away into the public area of the establishment. According to F.D.’s evidence, the appellant was completely silent, taken aback and almost shocked. About an hour later, the appellant approached F.D. in the bar and the following conversation took place:
The Appellant: I guess I’m going to jail for murder.
F.D.: Whose murder, Tommy?
The Appellant: Yours.
F.D. testified that she felt afraid. She quit her job the next day.
11While the appellant admitted that he spoke the words attributed to him by F.D., he testified that he was joking. In fact, the appellant had on previous occasions told this so-called standard joke to others. A former events manager at the M[…] testified that she had heard him tell this joke more than once. O.T. gave similar evidence. Although F.D. testified that the appellant spoke in a very serious tone, she admitted in cross-examination that when she spoke to the police, she described his comments as being made “nonchalantly”. She also told the police that she quit a job she liked “for this idiot who could just be joking”. In cross-examination, she said the reference to joking was a reference to previous touching and not to the death threat.
12Counsel for the appellant led evidence in defence, which suggested that F.D. had colluded with others and pressured other employees to make complaints about the appellant to the police:
(i) H.H. testified that she was at work on both the nights of October 6 and October 13, 2006. In respect of October 13, 2006, she said that F.D. told her about the alleged threat. The employment records show that H.H. was not at work on the night of October 13;
(ii) F.D. accompanied H.H. to the police station when H.H. made her complaint against the appellant;
(iii) F.D. encouraged O.T. to make a complaint to the police. O.T. testified that she had no basis upon which to make a complaint and that F.D. did not suggest any particular incident that could form the basis of a complaint;
(iv) F.D. gave O.T.’s telephone number to the police. O.T. made an appointment to see the police. However, O.T. was advised by her boyfriend (a law student) to confirm with the police that she was under no obligation to speak to them. When the police confirmed that there was no legal obligation to make a statement, she cancelled the appointment. When F.D. learned that the appointment was cancelled, she telephoned O.T. and yelled at her. F.D. told O.T. that she had no self-respect and was a disgrace.
(v) F.D. gave the police the names and telephone numbers of seven other M[…] employees. Apparently, based on the advice O.T. had received from her boyfriend and the police, she told the seven women that they were under no obligation to speak to the police. At a later date, F.D. told O.T. that she could have her boyfriend disbarred.
(vi) In August 2007, F.D. learned that O.T. had advised the appellant where his lawyer could locate H.H.. F.D. called O.T. and berated her and told her, “If I hear your name connected to this case again, I’m coming after you personally, I’m coming to get you, I’m going to get the police after you.”
13In response to an application by defence counsel to exclude F.D. from sitting in the courtroom while H.H. testified, the trial judge said: “I think there is a compelling reason not to have any of these people sitting in while they’re being examined.” He further stated, “I was very concerned by the evidence yesterday [from F.D.] about the communication between these complainants, especially the kind of, if not threat, sort of implicit [threat to O.T.], I’ll do something if you don’t do what I want.”
S.P.
14S.P. worked as a bartender at the M[…]. She alleged that on the night of October 6, 2006, she was standing behind the bar when the appellant came up behind her and put his arm tightly around her waist for three to four seconds and said, “I want to feel myself inside you, I want to lick your pussy.” She had to pry his arm off herself. He had not spoken to her in that way before. The appellant admitted in his evidence that he had done exactly what S.P. described. On the following night, S.P. asked to speak to the appellant outside the restaurant. The appellant responded by asking if he was in trouble and then employed his standard joke about having to kill her, which caused her to chuckle. S.P. told the appellant, “Everybody has a line and you crossed my line” and “What you said to me last night was way over the line.” The appellant said he felt silly and stupid and apologized. She testified that she accepted the apology and thought everything was fine.
15Subsequent to the night of October 6, 2006, S.P. testified that she received a telephone call from another M[…] employee, whose name she could not remember. The employee advised S.P. that the appellant had told a customer that S.P. was a “bitch” and that if she caused trouble, he would have her killed. She also testified that she held a belief that the appellant was part of the mafia. According to S.P., these concerns led her to quit her job. S.P. testified that, “If he would have apologized and just not told anybody, I would have been happy with that”. As a result of a conversation with F.D., she decided to make a complaint to the police: “I wanted the police to have a record of the threat, if something did happen to me.”
16In his testimony, the appellant explained his actions on the night of October 6. He said that two weeks earlier, S.P. and another female employee had “sandwiched” him between themselves while S.P. squeezed his “butt”. The appellant testified that he was attracted to S.P. and her actions led him to question whether S.P. might be interested in him. The appellant testified that on October 6 he and S.P. were in a corridor at the back of the restaurant and they exchanged a romantic kiss, which suggested to him that S.P. was interested in him. Later that evening, the appellant hugged S.P. and made the crude and suggestive comments that she described.
17S.P. denied that she and another employee had sandwiched the appellant two weeks earlier and that she and the appellant had exchanged a romantic kiss on the evening of October 6, 2006. S.P. did agree that on another occasion, the appellant suggested that he would like to date her.
THE REASONS OF THE TRIAL JUDGE
18The trial judge reviewed the evidence concerning the party atmosphere that existed at the M[…] and, in particular, the kind of lewd comments, ribald jokes and physical contact that were part of that atmosphere. After summarizing the evidence on each of the charges related to the four complainants, he referred to the burden of proof and the three-step analysis in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). He then proceeded to his analysis in respect of each of the four complainants. It is only necessary to deal with the reasons in respect of F.D. and S.P..
19The trial judge found F.D. to be a credible witness. He found that her unhappiness after October 6 was because of the alleged sexual assault. He concluded that the appellant was pursuing F.D. with questions as to what was wrong because he recognized that he had gone over the line. According to the trial judge, this confirmed that the appellant had touched F.D.’s vagina.
20In respect of the threatening count involving F.D., the trial judge said:
I find that T.L., by October 13th, was angry with F.D. and used his usual joking dialogue as an attempt to intimidate her as she said by the casual but serious tone he used with her. At first T.L. said he was simply wanting answers on October 13th. He said he just wanted to know what was going on as he was concerned. Under cross-examination he admitted it was more than concern, it was anger with her that drove what he did. He used what he had used in the past as a joke with Ms. E. and others to try and intimidate F.D. into telling him what he wanted to know. F.D. said she was afraid as a result and she acted by quitting the next day.
21In respect of the appellant’s allegation of animus on the part of F.D., the trial judge said, “I appreciate [defence counsel’s] points about F.D.’s agenda with others after these events…” The trial judge rejected the submission that the alleged threat was simply another rendition of the appellant’s standard joke. Finally, in respect of the defence of collusion among the complainants, the trial judge rejected it on the basis that the contact between the complainants was not important as neither F.D. nor S.P. were witnesses to what happened to each other.
22His findings in respect of the complaint of S.P. are as follows:
As to count one involving S.P., T.L. admitted that he grabbed her from behind and made the sexual suggestion to her as she stated. He did not say that she resisted and had to pry his fingers off her and I accept her evidence in that regard. S.P. I found to be a frank, forthright witness and I accept her evidence that she and T.L. never kissed in the back hall prior to the assault on her. As to whether she engaged in the playful sandwiching of T.L. in the milieu of M[…]’s, that would hardly be a memorable incident. Whether it happened or not is, to me, a red herring. I accept her evidence.
T.L.’s evidence of the kiss and the sandwich incident is self-serving in attempting to set the stage for his claim as a jilted lover. I find that he had no reason to expect S.P. to consent to his grabbing her and whispering what he did. He simply felt that he could do as he pleased, made no effort to ascertain if she would consent and knew perfect well he did not have any consent from her. He just did it as something he felt entitled to do in M[…]’s. I find no air of reality to his claim of honest mistaken belief in consent. The criminal law and the offence of sexual assault do not end at M[…]’s door. T.L. is found guilty on count one.
THE GROUNDS OF APPEAL
23The appellant raises several overlapping grounds of appeal. I have attempted to separate them as follows:
F.D.
(i) The trial judge erred in failing to find collusion between F.D., H.H. and others.
(ii) The trial judge erred in failing to determine whether F.D.’s interaction with other complainants and witnesses demonstrated animus toward the appellant.
(iii) The trial judge misapprehended the evidence in respect of the so-called standard joke.
(iv) The trial judge failed to consider the evidence of O.T. that F.D. told her that the appellant “smacked” or “grabbed her ass”.
(v) The trial judge erred in questioning the appellant as to why F.D. would make a false complaint of sexual assault against him.
(vi) The trial judge failed to consider contradictory statements in F.D.’s evidence.
S.P.
(i) The trial judge misapprehended the evidence in regard to the duration of the alleged assault on S.P..
(ii) The trial judge erroneously rejected evidence leading up to the incident with S.P..
(iii) The trial judge misapprehended the evidence of the appellant as to what the appellant considered to be sexual touching.
ANALYSIS
(i) The F.D. Counts
24In my view, the first three grounds of appeal in respect of the F.D. Counts call for our intervention.
25There was an abundance of evidence from which a trier of fact could draw an inference that there was collusion between the complainants, with F.D. apparently involved in a central role. Similarly, there was evidence from which a trier of fact could infer that F.D. possessed a strong animus towards the appellant. The evidence related to collusion and animus is set out in paragraph 12 of these reasons.
26The trial judge, at the outset of the trial, appeared to be concerned about collusion. Defence counsel requested an exclusion order. The trial judge expressed the view that there is “a compelling reason not to have any of these people sitting in while they’re being examined”. He also said that he was concerned by F.D.’s evidence of communication between the complainants. However, in his reasons for judgment, he dismissed the collusion argument solely as it related to F.D. and S.P. in one sentence: “As well, the contact between these complainants before trial is not important here, where neither F.D. nor S.P. are witnesses to what happened to the other.”
27In my view, the trial judge erred in concluding that the evidence of collusion was not important. The fact that neither F.D. nor S.P. were witnesses to what happened to each other is not decisive of the issue and also ignores the contact between H.H. and F.D. as well as the other complainants.
28This court has said in R. v. F.(J.) (2003), 2003 52166 (ON CA), 177, C.C.C. (3d) 1, not (2003), 177, C.C.C. (3d).at paras. 87 and 88, that evidence of this nature requires special care:
87In R. v. Burke (1996), 1996 229 (SCC), 105 C.C.C. (3d) 205, the Supreme Court discussed concocted evidence outside the context of similar fact evidence. The court held that a trial court must scrutinize crucial evidence with special care, and must consider any circumstances which could affect its reliability, including the possibility of collusion. In that case, the failure of the trial judge to consider that possibility led the Supreme Court to declare the verdict unreasonable.
88In this case, the trial judge was not only alive to the potential for E.T.’s involvement to taint the evidence of the complainants, he dismissed several of the charges in part because of the potential for tainting. However, the trial judge discounted the same possible tainting effect on the evidence of three of the complainants. Instead, he fully accepted their evidence without a critical analysis either of the discrepancies and changes in their views and actions over the years or of the possible intentional and unintentional effects of the numerous meetings among the complainants led by E.T., who was motivated by her personal animus against the appellant. This failure by the trial judge constitutes a serious error of law, which affects his appreciation of all the Crown evidence he relied on, as well as his basis for rejecting the evidence of the appellant and the appellant’s witnesses. By itself this failure requires the court to set aside the convictions.
29The evidence of animus towards the appellant, as indicated by F.D.’s communications with O.T., is significant. The trial judge said he appreciated the points made by defence counsel concerning “F.D.’s agenda”. As indicated in R. v. J.F. at para. 88, supra, this evidence requires the same critical analysis as the evidence of collusion.
30I turn to the trial judge’s treatment of F.D.’s allegation that the appellant threatened her when confronted about his behaviour. The trial judge concluded that the appellant “was angry with F.D. and used his usual joking dialogue as an attempt to intimidate her as she said by the casual but serious tone he used with her”. Given the abundance of evidence that the words the appellant used were part of his repertoire of bad jokes, it was, in my view, incumbent on the trial judge to consider the so-called standard joke in the context that others had heard it on previous occasions, including F.D.. It is significant that she told the police that the appellant “could just be joking”. Also, the fact that F.D. said that she thought a serious threat had been made has to be viewed together with the evidence of her animus towards the appellant. There appears to be an inconsistency between her evidence in respect of the threat and what it was she told the police, which needed to be addressed. I believe the trial judge erred in not addressing this inconsistency as well as the other evidence concerning the appellant’s standard joke.
31I find it unnecessary to deal with the other grounds of appeal in respect of the F.D. counts.
(ii) The S.P. Count
32It is clear that the trial judge was mistaken in his recollection of S.P.’ evidence concerning the duration of the alleged assault. The trial judge described S.P. as saying “‘Let me go’, trying to pry his fingers from her waist, he let her go after about 30 seconds.” S.P. testified that the incident lasted “only about 3 seconds” or “no more than maybe 4 seconds”.
33Counsel for the appellant submits that if the appellant had continued to hug S.P. for 30 seconds, after she made it clear that the appellant’s conduct was unwelcome, this would have taken the conduct outside the boundary of consensual touching that was prevalent at the M[…]. The fact that the conduct stopped after 3 or 4 seconds brings it within what was regarded as acceptable at the M[…].
34Counsel for the appellant relies upon the following statement of Doherty J.A. in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 321:
When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
See also R. v. Lohrer (2004), 193 (C.C.C. (3d) 1 (S.C.C.) at pp. 25-26.
35I am unable to conclude that the trial judge’s mistake in the duration of the alleged assault played an essential part in the reasoning process of the trial judge, which resulted in a conviction. His reference to the 30 seconds is contained in that part of his reasons dealing with the facts. There is no reference to the 30 seconds in his analysis in the ultimate finding of guilt. Further, the duration of the incident, whether 3 seconds or 30 seconds, would not change the trial judge’s conclusions that S.P. had not consented to the contact and that the appellant had no reason to believe that she would.
36Counsel for the appellant submits that the trial judge erred in rejecting the appellant’s evidence concerning the “sandwiching” incident and the “romantic kiss”, which he said led the appellant to believe that S.P. was interested in him. The evidence, if accepted, goes to the issue of whether the appellant reasonably believed that S.P. consented to being hugged about the waist.
37The trial judge accepted S.P.’ evidence that she and the appellant never kissed in the back hall. He was entitled to come to that conclusion and I see no error in his doing so.
38The trial judge made no finding in respect of the “sandwiching” incident:
I accept her evidence that she and T.L. never kissed in the back hall prior to the assault on her. As to whether she engaged in the playful sandwiching of T.L. in the milieu of M[…]’s, that would hardly be a memorable incident. Whether it happened or not is, to me, a red herring. I accept her evidence.
The trial judge was entitled to find that the “sandwiching” incident in the party atmosphere of the M[…] was of no consequence and I see no basis to interfere with that finding. The above passage indicates that the trial judge acknowledged that the atmosphere at the M[…] may have included such contact in this case. However, he found that even, if it did, the appellant, “had no reason to expect S.P. to consent to his grabbing her and whispering what he did.”
39Finally, counsel for the appellant submits that the trial judge misapprehended the appellant’s evidence as to what the appellant considered as consensual touching. The trial judge said:
Under cross-examination, T.L. gave evidence which provided some insight into his behaviour and informed much of his evidence. He said that he felt if a woman did not complain when he touched her it was mutual, it was okay. If she does not object, it’s okay.
The evidence referred to by the trial judge is as follows:
Q. Now when you were testifying in chief, you mentioned on a couple of occasions, one, in relation to F.D. [F.D.], that when you touched her [on the hip] she never complained, she never said anything that gave you an idea that it was unwelcome, you mentioned it a couple of times. My question to you is, are you of the mind that if the girl who you touch doesn’t complain that it’s all right?
A. Am I of the mindset if she doesn’t complaint it’s all right?
Q. Yes.
A. I would think so yes.
Q. It’s not your personal philosophy to see if you actually, see if it’s okay to touch her first? You touch, if there’s [no] complaint, it’s all right, is that fair.
A. When it’s mutual.
40Based on the above, counsel for the appellant submits the following:
Thus, the appellant did not say that if a woman did not complain when he touched her it was mutual. Rather, he said that it was okay to touch a woman when it was mutual and she did not complain. This clearly made sense in the context of the questions asked, where there was uncontroverted evidence that the appellant and F.D. had for months been touching in the manner in which the staff regularly touched each other. In regard to its application to the touching of S.P., the evidence of the appellant as to their earlier touching … was erroneously rejected [and] became crucial.
I am not persuaded that the trial judge’s description of the cross-examination of the appellant represents a material misrepresentation of his evidence.
41In my view, the S.P. complaint turns largely on the admission of the appellant that he did and said exactly what S.P. described in her evidence. The trial judge took a hard look at the evidence of S.P. and the appellant as well as the context in which the incident occurred. He decided that in this case, the conduct was not consensual as he was entitled to decide.
DISPOSITION
42In the result, I would set aside the convictions for sexual assault and threatening in respect of F.D. and order a new trial. I would dismiss the appeal in respect of the conviction for sexual assault of S.P..
RELEASED:
“JUL 27 2010” “Robert P. Armstrong J.A.”
“DD” “I agree Doherty J.A.”
“I agree David Watt J.A.”