Publication Ban Warning
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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;
(b) on application made by the victim, the prosecutor or any such witness, make the order; and
(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order;
(b) on application of the victim or the prosecutor, make the order; and
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(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.
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall
(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;
(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (3.2).
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have
(a) informed the witnesses and the victim who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(4) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and
(c) a warning to the individual is not appropriate.
(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.
Court of Appeal for Ontario
Date: 20240405 Docket: C69670
Before: Hourigan, Thorburn and Favreau JJ.A.
Between: His Majesty the King, Respondent And: Gabriel Da Silva, Appellant
Counsel: James Lockyer and Jeffery Couse, for the appellant Michelle Campbell, for the respondent
Heard: March 14, 2024
On appeal from the convictions entered by Justice Hugh K. Atwood of the Ontario Court of Justice on April 15, 2021. [1]
REASONS FOR DECISION
A. OVERVIEW
1On October 31, 2019, the appellant suffered a serious accident at work when he was pinched between the frame and an arm of an excavator. He suffered injuries including left and right shoulder traumatic impingement syndrome, carpal tunnel syndrome, disc bulges without nerve root compression, and a crush injury to his torso and upper extremities. At the time of trial, he was 53 years old.
2The appellant left the hospital on or about November 4, 2019. At the time, he was under a court order to keep the peace.
3On November 27, 2019, he arranged for a personal support worker to attend his home to help him with exercises and to take a shower. L.C., then a 70-year-old woman, was assigned to attend his home. This was her first and only visit with the appellant.
4The following day, L.C. went to her supervisor and gave her account of what had happened during the visit. The police were then contacted.
5On December 4, 2019, the appellant was arrested on charges of sexual assault and breach of a court order and gave a police statement.
6The trial was conducted over Zoom. L.C. testified that during the visit the appellant had put L.C.’s hand on his penis and held it there, that the appellant attempted to penetrate her vaginally and anally, and that he penetrated her vagina “a little bit.” L.C. later saw blood on her underwear.
7The appellant also testified. He admitted that there was sexual contact but testified that L.C. initiated the contact. He testified that L.C. put cream on his body, including on his penis, used both of her hands to stimulate his penis in the bathroom, pulled her pants down, climbed onto his bed, told him to “come here”, and reached through her legs to grab his penis.
8On April 15, 2021, the appellant was found guilty of sexually assaulting L.C. and failing to comply with a court order. On September 28, 2021, he was sentenced to 3 years’ imprisonment for the sexual assault and 30 days concurrent for the failure to comply with a court order.
9The appellant appeals his convictions on the grounds that the trial judge: (a) misapprehended the evidence regarding the complainant’s size and limp by inappropriately relying on his own assessment of L.C.’s physique when she testified on Zoom; and (b) erred in criticizing the defence submission that a trial judge must be "sure" of the appellant's guilt before convicting him. [2]
10For the reasons that follow, the appeal is dismissed.
B. ANALYSIS
(1) The First Issue: Misapprehension of Evidence Regarding L.C.’s Size and Limp
11The appellant submits that the trial judge inappropriately speculated about L.C.’s height and size and relied on her apparent limp at the time of her trial testimony as evidence of her frailty. The appellant submits that these errors played an essential part in the trial judge’s reasoning.
12We disagree.
13The appellant testified that he was a strong person, and that without his injuries, he could have overpowered L.C. (though he later disputed this). He testified however that he was severely injured at the time of the incident (although he said he did not need help to use crutches two or three weeks after the accident and, in the police statement, he said that the cane “is just basically a show”).
14The appellant also testified that L.C. was “a big person”, “pretty tall” and “pretty strong” and that she initiated the sexual contact during a time when he was injured. He said he was five foot three inches tall and that the complainant was “taller than” five feet. He said he did not recall L.C. walking with a limp when she came to his house and did not see that she walked with a limp when she walked out of the room after testifying.
15The trial judge reviewed all of the evidence adduced at trial, including his observations of the complainant over Zoom, and articulated the W.D. caution and the limited use that can be made of demeanour evidence in assessing credibility and reliability.
16After hearing the evidence, and observing L.C. testify and then leave the room, he held that the appellant’s evidence that L.C looked pretty tall and strong was “patently absurd.”
17The trial judge explained that the complainant looked like:
[A]n elderly, that is, 72 at the time of trial, woman with a noticeable limp. Not at all tall, unless the furniture in the room in which she testified was constructed for very large persons. [And] using that furniture and the door as a gauge, she was not tall, although I cannot estimate her height or agree with the question put to [the appellant] by [the Crown] that she is small.
18His common-sense conclusion that L.C. was a 72-year-old woman who seemed neither tall nor small fits within the range of possible inferences arising from the evidence.
19He also noted that L.C. “walked with a noticeable limp” at the time of trial but specifically cautioned himself against relying on the complainant’s apparent limp since he had, in his words, “no information” as to whether she had a limp at the time of the assault.
20After concluding that he did not believe the appellant’s evidence, and that the appellant’s evidence did not leave him with a reasonable doubt, the trial judge reminded himself that “[o]f course, my finding that I do not believe [the appellant] and that his evidence does not leave me in a state of reasonable doubt does not discharge the onus on the Crown to prove the matter beyond a reasonable doubt.”
21The trial judge found that L.C. “was at times confused as to how or why certain things happened, but she was consistent throughout as to what happened”, and on the central issue of whether the appellant sexually assaulted her, her evidence was credible and reliable.
22The trial judge noted that the:
[S]tatements to police, his return of the hospital bed [shortly after this incident], his lack of any support workers during the day, as opposed to the evening or the night, even without his inconsistencies and non-responsive answers when strongly pressed by [the Crown], all lead to the conclusion which I have formed, that [the appellant] was indeed exaggerating his injuries and, I add, overstating [L.C.]’s size and strength to overstate any difficulty he might have in subduing her .” [Emphasis added.]
23Absent an error of law, findings of fact and credibility should be overturned on appeal only where there are palpable and overriding errors. In R. v. Kruk, 2024 SCC 7, at para. 75, Martin J. explained that:
Trial judges are uniquely tasked with assessing the testimony they hear and interpreting the range of possible inferences arising from the evidence. They must be able to rely not only on their judicial experience as fact-finders, but also on their common sense and the generalized expectations it generates about human behaviour. Trial judges will naturally rely on “ungrounded” assumptions about human behaviour in their testimonial assessments and thereby draw on factors that lie outside the immediate record. The judicial function entitles them to do so without requiring extrinsic evidence to support each and every one of their conclusions.
24We see no misapprehension of the evidence or flawed reasoning as to “the substance of material parts of the evidence” which “play an essential part in the reasoning process resulting in a conviction”, such that the verdict should be overturned: R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1.
25The trial judge was entitled to draw a common-sense conclusion, after seeing L.C. sitting and walking over Zoom, that she was neither tall nor small. Moreover, this was only one of many reasons why the trial judge disbelieved the appellant that he could not have overpowered L.C. and that she had initiated the sexual activity. The trial judge noted that the complainant was 70 years old at the time of the offence and the appellant had told police that his cane was “just basically a show”. In short, there was ample evidence to support a conviction.
26As such, this ground of appeal fails.
(2) The Second Issue: The Burden of Proof Applied by the Trial Judge
27The appellant also claims that the trial judge erred in criticizing the defence submission that a trial judge must be "sure" of the appellant's guilt before convicting him. The appellant submits that this was an error of law which undermines the required confidence that a trial judge applied the correct burden of proof in convicting an accused.
28The trial judge in his reasons for conviction stated:
Mr. Paquette [defence counsel] has submitted that the trier of fact must be sure (I emphasize that word as he did) of the guilt of the accused or an acquittal must follow. He cites in support of that submission, both R. v. Lifchus, [1997] 3 SCR 320, and R. v. Starr, 2000 SCC 40, [2000] 2 SCR 144.
With the greatest of respect to Mr. Paquette, the use of the word sure is often, in my view, problematic. The English formulation of the trier of fact's duty may accept sure, but the Canadian approach is much more nuanced, in my view. A recourse to R. v. Lifchus itself provides that nuanced approach as applied to jury instructions.
In fact, I take the court in R. v. Lifchus to have cautioned against using sure. Proper instruction on reasonable doubt, of course, may obviate any problems arising because of the use of the word sure, but it is certainly not a straightforward term and, in my view, there is a very substantial caveat to that submission by Mr. Paquette.
29The appellant therefore claims that:
[T]he trial judge's error lies in his rejection of the need for him to be sure of guilt before entering a conviction; he was of the opinion that he did not need to be sure of guilt. Just as directing a jury that they need not be sure of guilt to enter a conviction would amount to reversible error, so a trial judge's self-direction that he need not be sure of guilt to enter a conviction amounts to reversible error.
30We disagree that the trial judge erred in outlining the burden of proof.
31The trial judge correctly noted that, when weighing and assessing the evidence, he had to be satisfied of the appellant’s guilt beyond a reasonable doubt. He also referred to R. v. Lifchus, [1997] 3 S.C.R. 320, where the Supreme Court set out a suggested jury instruction on the standard of proof. The trial judge, quoting from para. 36 of Lifchus, said:
A reasonable doubt is not a doubt based upon sympathy or prejudice. Rather, it is based upon reason and common sense. It is logically connected to the evidence or absence of evidence. It does not involve proof to an absolute certainty. It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt, and more is required than proof that the accused is probably guilty. A jury which concludes only that the accused is probably guilty must acquit. [Emphasis added.]
32In R. v. Norouzali (2003), 177 C.C.C. (3d) 383 (Ont. C.A.), Gillese J.A. for this court, specifically held that the failure to instruct a jury that they could convict only if they were sure of the accused’s guilt is not an omission that constitutes an error: at paras. 31-36. In so doing she quotes from para. 34 of Lifchus, where Cory J. stated:
It is only after proper instructions have been given as to the meaning of the expression “beyond a reasonable doubt” that a jury may be advised that they can convict if they are “certain” or “sure” that the accused is guilty. [Emphasis in original.]
33Justice Gillese therefore concluded, at paras. 34-35, that:
It is clear from the above passage that references to the word “sure” do not assist a jury in understanding the meaning of proof beyond a reasonable doubt. Rather, it is the meaning of reasonable doubt that a jury must consider before determining whether they are “sure” that the accused is guilty.
[W]hile Cory J. does include the reference [to “sure”] in his model charge, the introduction to that charge makes clear that a charge which is consistent with the principles set out will suffice regardless of the particular words used by the trial judge. [Citation omitted. Emphasis added.]
34This was a judge alone trial. The trial judge referred to the onus and burden on the Crown to prove the appellant’s guilt beyond a reasonable doubt and he correctly explained, quoting from Lifchus, what the term beyond a reasonable doubt meant. We see no error in his application of the burden of proof.
35As such, this ground of appeal fails.
C. CONCLUSION
36For the above reasons, the appeal is dismissed.
“C.W. Hourigan J.A.”
“Thorburn J.A.”
“L. Favreau J.A.”
Footnotes
1The appellant’s Amended Notice of Appeal, filed on September 29, 2021, indicated that the appellant was seeking leave to appeal sentence, and if leave were granted, was appealing his sentence. In March 2022, the appellant changed lawyers. In the appellant’s factum and supplemental factum there is no reference to a sentence appeal, and the order requested in those two factums is only for the appeal to be allowed, the convictions quashed, and a new trial ordered. Therefore, these reasons only address the appeal from convictions.
2A third ground of appeal was abandoned shortly before the oral hearing.