Court File and Parties

Haight v. R.B., CITATION: 2017 ONSC 5359

COURT FILE NO.: DC 11583/17

DATE: 2017-09-11

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: John Haight, Plaintiff, Respondent

AND: R. B., Defendant, Appellant

BEFORE: Mr Justice Ramsay

COUNSEL: Jonathan P.M. Collings for Appellant; Respondent self-represented

HEARD: September 8, 2017 at Welland

Publication ban: an order has been made under s. 486.4(2) of the Criminal Code prohibiting the publication or transmission in any way of the identity of the Appellant or any information that could identify her. Section 486.6 (1) of the Code provides: 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.

ENDORSEMENT

[1] The defendant appeals the judgment for defamation given to the plaintiff by Deputy Judge David Black of the Small Claims Court on September 29, 2016.

[2] On July 21, 2011 the Appellant complained to the Niagara Regional Police that the Respondent had committed a sexual assault on her the previous March 27. The police laid a charge of sexual assault against the plaintiff. He was held in custody from July 21 to July 24, 2011, when he was released on bail. At the preliminary inquiry, the Appellant testified in chief. At the end of her examination in chief the inquiry was adjourned. On March 18, 2013 the charge was withdrawn by the Crown.

The complaint to the police

[3] The Appellant and the Respondent dated on and off for some months preceding the event that gave rise to the litigation. On July 21, 2011 the Appellant reported to the police that on March 27, 2011 she met the Respondent at Tim Horton’s and went to his residence with him. They had not seen each other for some weeks. She went to the bathroom and when she came out he began to maul her sexually. Initially she agreed to the advances and proceeded to disrobe and sit on the bed. She noticed some lipstick on the bedclothes and asked the Respondent if he had been seeing other women. The defendant said no and then held her down while he violently rubbed his mouth and chin into her vaginal region. This caused her extreme pain because of the Respondent’s rough facial hair. She begged him to stop but she could not break free of his hold. The Respondent then had sexual intercourse with her against her expressed will. He also rubbed his face violently into her chest and bit her nipples. When it was over he drove her back to the Tim Horton’s.

The testimony at the preliminary inquiry

[4] The preliminary inquiry commenced on July 24, 2012 at Fort Erie. Crown counsel interviewed the Appellant’s doctor that day. The Appellant was called to testify. In her testimony the Appellant added more detail to the account she had given the police. She also said that she went to see her doctor a day after the assault.

[5] She said, “I had bites and bruises and scratches on my chest and just all over me. He’d really banged me up on my legs and everywhere. He’d grabbed me and held me and bitten me and he just savaged me.” According to the Appellant, the bite marks lasted a few weeks. The bruises didn’t come out for 12 hours. They were there when she saw the doctor but the doctor did not give her a proper examination. She just patted her down. She did not disrobe for the doctor above the waist.

[6] When the complainant’s testimony in chief was finished, the court took a break. After the break, late in the afternoon, the following transpired:

[DEFENCE COUNSEL]: Thank you, Your Honour, for that brief recess. Your Honour may not appreciate what happened today on the stand. I can indicate that from the defence point of view, I think the Crown agreed somewhat, it’s a very markedly different story that gives the defence grave cause for concern. I’ve spoken to my friend. There is medical evidence that completely contradicts the witness, a number of other factors. As a result, my friend and I have spoken and before I start my cross-examination the Crown would like an opportunity, with the investigating officer, to speak to the complainant about the prosecution and so, consequently, this matter has to go over anyway …

[7] Crown counsel replied:

I agree with what my friend said in broad strokes.

[8] The inquiry was adjourned. On March 18, 2013 the Crown withdrew the charge. The record does not contain a transcript of Crown counsel’s remarks on that date.

The trial of the action in small claims court

[9] The trial of the action took eight days. Three witnesses testified – the Respondent, the Appellant’s doctor and the Appellant. In addition, the judge had a number of exhibits including transcripts of the preliminary inquiry into the criminal charge, the doctor’s notes and copies of communications between the parties.

[10] At the trial the Respondent called the Appellant’s doctor. The doctor testified that the Respondent presented for a routine physical examination complaining of vaginal irritation. The doctor testified that she examined the Appellant. The Appellant completely disrobed and then gowned. She looked at every quadrant and at the genitals and rectum. She saw no bruises, scratches or bite marks. The only abnormal finding was redness in the entroitus and labia. The doctor took blood to test for STI’s at the Appellant’s request. After putting her clothes back on, the Appellant mentioned that a confrontation with a man she had met in Niagara-on-the-Lake had led to non-consensual sex, but not in a way that the doctor got the idea that this had happened the day before. Accordingly, no rape kit was ordered. In the doctor’s notes she wrote “breasts no masses” and “abdomen NAD” in addition to her other findings.

[11] The Respondent testified that on March 27, 2011 he and the Appellant had consensual sexual relations. Afterwards he went to the kitchen to make a snack and he heard the Appellant scream from the bedroom. He went back to see the Appellant pointing to a jam stain on the duvet. She accused him of having had a woman there who left peach lipstick. The Respondent denied it and took the Appellant home at her request. In the next few months the Appellant sent him a number of messages accusing him of infidelity. In July the police arrested him.

[12] At the trial the Appellant testified to much the same effect as at the preliminary inquiry including the bites and scratch marks, although she said on this occasion that the bruises did not come out for some weeks. The Appellant reiterated that the doctor did not have her disrobe above the waist.

[13] The self-represented Respondent’s statement of claim was essentially a statement of facts. The trial judge interpreted the pleadings as a claim for relief on the basis of three torts: malicious prosecution, intentional infliction of emotional injury and defamation.

[14] He rejected malicious prosecution on the ground that the defendant had not commenced the prosecution. He did find that the allegation of sexual assault was false and was made with malice. The judge also rejected intentional infliction of emotional injury on the basis that the Respondent plaintiff had not suffered a visible and provable illness.

[15] The judge found for the Respondent plaintiff on defamation. He recognized a qualified privilege in a person reporting an offence to the police, but he found that the complaint was made with malice.

[16] The Appellant raises three ground of appeal:

a. The decision of the Criminal Injuries Compensation Board finding that the Appellant was injured by a sexual assault should be admitted as fresh evidence.

b. The trial judge erred in relying on gender related stereotypes.

c. The trial judge misstated the elements of the tort of malicious prosecution in that he did not require the Respondent to find that to constitute malice, the improper purpose in making the complaint had to be the Appellant’s predominant purpose.

Fresh evidence

[17] The evidence at trial was concluded on February 8, 2016. On April 5, 2016 the Criminal Injuries Compensation Board released its decision on the Appellant’s application for compensation. The trial resumed on June 13, 2016, at which time both parties made oral argument to the trial judge. The Appellant did not mention the Board’s decision or ask to re-open her case. In the motion to admit fresh evidence she deposes essentially that she did not know enough to do so.

[18] I received, without admitting, the fresh evidence in order to assess whether it met the test for admission on appeal. The test is set out in R. v. Palmer, 1959 64 (SCC), [1959] SCR 401:

a. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

c. The evidence must be credible in the sense that it is reasonably capable of belief, and

d. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[19] I doubt whether the proposed evidence meets any of these criteria but it certainly does not meet the fourth criterion. It could not reasonably be expected to have affected the result.

[20] The Appellant has not put forward the evidence that was before the Board. The proposed fresh evidence is the decision of the Board. The proposed evidence, then is the opinion of another tribunal. That fact by itself does not bar admissibility: R. v. Jesse, 2012 SCC 21, [2012] 1 SCR 716. In Jesse, the Supreme Court held that the Crown could use a conviction of an offence to prove a link between the accused and an extrinsic event said to constitute similar fact evidence. The decision of a judge or jury in a criminal matter is a well-considered opinion arrived at after consideration of evidence in proceedings in which both parties are heard. The doctrine associated with Hollington v. F. Hewthorn & Co., [1943] 1 K.B. 587 was doubted. Rather it was held that whether or not a prior civil or criminal decision is admissible in trials on the merits will depend on the purpose for which the prior decision is put forward and the use sought to be made of its findings and conclusions. The weight and significance to be given to it will depend on the circumstances of each case. See Jesse, paragraphs 43 – 44.

[21] In the present case, the purpose for which the prior decision is put forward is not, as in Jesse and most other cases on the point, to prove an extrinsic relevant fact. It is offered as an opinion on the very issue to be decided by the trial judge, which, according to counsel for the Appellant, is the credibility of the complainant.

[22] Under the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 the Board has authority to award compensation to someone who has been injured by the commission of a crime, whether the offender has been convicted or not. In the absence of a conviction the Board is required to make the finding that a crime has been committed before awarding compensation. Under section 9 of the Act, the alleged offender is a party to the proceeding.

[23] The Board’s hearing was held in camera. The evidence that was called before it is not contained in the record before me. It is, however, summarized in the Board’s decision. The Board heard from the Appellant and by teleconference from the Respondent and the investigating officer. The Appellant and the Respondent apparently testified to much the same effect as at the trial. The investigating officer testified that in his opinion the medical records of the Appellant were consistent with her complaint. The Board accepted the Appellant’s evidence, rejected the Respondent’s evidence and found that the Appellant had been injured by the sexual assault she alleged.

[24] I do not doubt that the evidence given by the investigating officer was appropriately heard by the Board for its purposes, but in the civil trial better evidence was available. The judge had the notes themselves and the doctor who made them. The judge was in a position to see that the medical evidence not support the Appellant’s claim in one very important respect: The notes and the doctor say that the doctor examined the Appellant’s breasts and abdomen. The doctor said that she examined the unclothed Appellant and saw no bruises or abrasions. The trial judge was entitled to consider this to be an important contradiction of the Appellant because her bruises and scratches were central to her account of the assault.

[25] The Board, not having had the benefit of the doctor’s entire evidence, cannot be faulted for the decision it made, but in the circumstances I doubt whether the Board’s decision is sufficiently reliable to have been admissible at first instance. It certainly cannot reasonably be expected to have affected the verdict.

Reliance on gender related stereotypes

[26] It is long established that gender related myths and outdated stereotypes cannot be used to found a finding of credibility. They impair the fact finding process and undermine the right of the parties to a fair trial: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 SCR 577. Resort to these misconceptions amounts to a serious error of law, reviewable on the standard of correctness.

[27] The Appellant submits that the judge resorted to such stereotypes and points to paragraphs 73, 76 and 78 of the reasons for judgment. It is submitted that the judge held it against the Appellant’s credibility that she was passive, that she did not raise the hue and cry and “the mere fact that the Appellant mentioned [to the doctor] a peach lipstick smear.”

[28] I agree that resort to any gender related misconceptions would have been erroneous, but I do not think that the judge made any such resort. The judge did not draw conclusions about the Appellant’s credibility from any omissions on her part or from her mention to the doctor of peach lipstick. Rather he pointed to what the complainant actually did say, in the emails, to the doctor and at trial. He used the contradictions in her own statements and the contradiction between her evidence and her doctor’s evidence to assess her credibility as a witness. The roughly contemporaneous mention of the lipstick smear was consistent with the Respondent’s testimony that the Appellant was concerned about his fidelity from the outset. That was a point which could reasonably be thought to have enough relevance to merit mention. It may not have been worth a great deal of weight, but neither does it appear to have been given too much.

[29] I conclude that the judge made no improper use of these aspects of the evidence. He decided to believe the Respondent and not the Appellant because the Appellant’s evidence was internally inconsistent and was seriously inconsistent on a material point with the evidence of her own doctor, a credible and impartial professional. He was entitled to do so.

Definition of defamation

[30] The Appellant submits that the judge did not adequately charge himself on the proof of malice in the context of the qualified privilege in defamation.

[31] The judge recognized that the Appellant had the benefit of qualified privilege as a person reporting a crime to the police. He said that she could not be held liable in the absence of malice. He concluded:

95. At paragraphs 65 and 82 above, I indicated that I was satisfied that [the Appellant] provided false information to the police and lied to the police about the sexual assault knowing that a criminal prosecution was likely to follow against Mr. Haight. As a result, I make a finding that [the Appellant] made the defamatory statement with ‘actual or express malice’ for the purposes of the tort of defamation.

[32] The Divisional Court dealt authoritatively with defamation and qualified privilege in Whitehead v. Sarachman, [2012] ONSC 6641:

34 In Prud'homme v. Prud'homme, the Supreme Court of Canada summarized the law in this area as follows:

In the common law, malice is presumed once the plaintiff establishes that the defendant spoke the offensive words about him or her. The defendant may try to rebut that presumption by citing qualified privilege. If the defendant succeeds in establishing the criteria for that defence have been met, the presumption of malice will fall and give way to a presumption of good faith. The plaintiff must then establish that the defendant acted in bad faith or had malicious intent.

35 Thus in the context of the defence of qualified privilege, malice must be proved by the plaintiff to defeat the presumption of good faith. And in this context "malice" means:

(a) lack of honest belief in the truth of the libelous statements; or

(b) use of the privileged occasion for an improper purpose.

36 "In this context, the word "malice" is used to connote malice in fact, actual malice, or express malice which goes beyond the malice ordinarily presumed upon the mere publication of libelous words."

37 Evidence of malice may be extrinsic or intrinsic.

Extrinsic evidence is evidence of surrounding circumstances. Intrinsic evidence is the wording of the document itself. The wording must be so violent, outrageous or disproportionate to the facts that it furnishes strong evidence of malice.

[33] To defeat qualified privilege, the plaintiff must establish that malice was the predominant motive: Whitehead, paragraph 59. The Appellant argues that the judge made no finding that an improper purpose was the predominant motive. I disagree for two reasons.

[34] First, in the context of the decision on malicious prosecution, the judge said that to prove malicious intent, the plaintiff had to prove that the prosecution was motivated by “malice or a primary purpose other than that of carrying the law into effect.” Given the structure of the reasons, this finding of fact must be taken to have been meant to apply to defamation as well. The use of the word “primary” demonstrates that the judge was aware of the correct test. In the same context he also referred to case law that expands on the concept and emphasizes the high threshold that the plaintiff has to meet.

[35] Second, the judge found that the complaint was false and that it was made out of anger at the Respondent’s perceived infidelity, knowing that the police would likely charge the Respondent. He found that the Appellant “lied”, which means deliberately misleading the police, that is, knowing that she was not telling the truth. In these circumstances it is difficult to conceive any subsidiary purpose that would not be malicious. Indeed, on the judge’s view of the facts it is difficult to conceive any other motive than the one he found. This was not a case like Whitehead in which the defendant made comments about public figures in the context of policy debates. A knowingly false complaint of sexual assault made to the authority responsible for instituting prosecutions does not raise considerations involving freedom of expression.

Conclusion

[36] The appeal is dismissed. As the Respondent is self-represented there will be no order as to costs.

J.A. Ramsay J.

Date: 2017-09-11