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(1), (2), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(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) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; and
(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .
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
DATE: 20210621 DOCKET: C64900
Miller, Jamal and Coroza JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
S.A. Appellant
Counsel: Riaz Sayani, for the appellant Katie Doherty, for the respondent
Heard: October 27, 2020 by video conference
On appeal from the conviction entered on May 24, 2017 by Justice Beth A. Allen of the Superior Court of Justice.
By the Court:
Overview
[1] The appellant was convicted of multiple offences arising from a lengthy history of sexual and physical abuse against his step-daughter.
[2] On appeal from conviction, he argues that the language interpretation services he received at trial were substandard, infringing his right under s. 14 of the Canadian Charter of Rights and Freedoms. He seeks to introduce fresh evidence in support of this argument, comprised of an affidavit sworn by an interpreter providing an alternative translation of parts of his testimony provided in Tamil. He also argues that the trial judge: (i) misapprehended evidence; (ii) erred in assessing his credibility, in part due to the allegedly inadequate interpretation of his trial evidence; (iii) erred in assessing the complainant’s credibility; (iv) erred in assessing the credibility of a witness to the final sexual assault; and (v) erred by convicting the appellant of an invitation to sexual touching, where there was no finding and no evidence of any invitation to touch. The appellant abandoned his appeal of sentence.
[3] For the reasons that follow, leave to admit the fresh evidence in support of the s. 14 Charter argument is granted and the appeal against conviction is allowed with respect to the conviction for invitation to sexual touching. In every other respect, the appeal against conviction is dismissed.
Background
[4] The complainant immigrated to Canada when she was in the first grade. Her mother obtained employment with the appellant. The appellant also rented out rooms in his house and the complainant and her mother became the appellant’s tenants.
[5] The appellant’s relationship with the complainant’s mother was multifaceted. He was the mother’s employer and landlord, and later became her husband, although the marriage was said to be for immigration purposes and the complainant was unaware of it for many years.
[6] Eventually, the complainant and her mother moved to their own apartment, but the appellant remained involved in their lives.
[7] The complainant testified to many years of sexual and physical abuse by the appellant. The abuse started with a sexual assault on the complainant’s eighth birthday. In addition to frequent sexual assaults, the complainant also testified to an instance of physical abuse in which the appellant struck the complainant with a television cable wire. The period of abuse ended in early 2014 with a sexual assault that was witnessed, in part, by a woman who had been renting a room from the complainant’s mother. The 2014 sexual assault was interrupted by the arrival of the complainant’s mother, to whom the complainant then confided the on-going history of abuse.
[8] According to the complainant, her mother was fearful of what might happen if the complainant reported the assaults. She told the complainant not to go to the police. The complainant followed her mother’s instructions.
[9] Subsequently, however, one of the complainant’s teachers noticed a change in the complainant’s demeanour and told a school guidance counsellor. The guidance counsellor approached the complainant, who told the guidance counsellor of the abuse. The guidance counsellor told the school social worker, who contacted the police without advising the complainant. The complainant was therefore surprised when the police approached her. She told the police of the history of abuse.
[10] The appellant was found guilty of: (i) sexual assault; (ii) sexual touching; (iii) invitation to sexual touching; (iv) threatening bodily harm; (v) assault; and (vi) assault with a weapon. The conviction for sexual touching was stayed under the principle established in Kienapple v. R., [1975] 1 S.C.R. 729. The appellant was sentenced to eight years in custody.
Issues on Appeal
[11] At the oral hearing of the appeal, the appellant advanced four grounds of appeal: (i) the poor quality of the interpretation services provided to the appellant at trial resulted in an infringement of his right under s. 14 of the Charter; (ii) the trial judge erred in weighing the interpreted evidence; (iii) the trial judge erred in analyzing the appellant’s demeanour; and (iv) the trial judge erred in her credibility assessment of the tenant who witnessed the 2014 assault.
[12] Although counsel for the appellant expressly stated that he was relying on the many other grounds of appeal advanced in his factum, for the most part these are either a repackaging of the grounds advanced orally or are entirely without merit. They were not seriously pursued and there is no need to address them in these reasons.
[13] The exception is the ground of appeal concerning the conviction for invitation to sexual touching, which was advanced in the appellant’s factum. There was no evidence at trial of an invitation to touch the appellant and no mention of an invitation to touch in the reasons for judgment. We therefore agree that the appeal should be allowed in that respect.
(1) Interpretation Deficiencies and s. 14 of the Charter
[14] The appellant argues that the precision of the interpretation services he received fell below the minimum standard guaranteed by s. 14 of the Charter. He argues he was in part unable either to understand the proceedings or to be understood. He seeks a new trial.
[15] The appellant specifically contests the adequacy of the interpretations of answers he gave to three questions. Through an application to adduce fresh evidence, the appellant provided the court with a set of alternative interpretations made by an interpreter working from the trial transcripts. In response, the respondent filed an agreed statement of facts concerning a review of the complaints contained in the appellant’s fresh evidence materials by an independent evaluator retained by the Interpretation Unit, Court Services Division, Ministry of the Attorney General.
[16] As explained below, in the three discrete exchanges where the appellant contests the precision of the interpretation, the interpretation provided at trial neither impaired the appellant in his ability to understand the proceedings nor significantly impeded him in conveying his testimony. The s. 14 guarantee was therefore not infringed.
(a) The Impugned Trial Interpretation
[17] Two of the three contested interpretations are part of the appellant’s narrative of what transpired between him and the complainant at the Ellesmere Road apartment in 2014, at the time of the final assault. The third relates to the appellant’s explanation of what transpired during a separate event, when he hit the complainant with a cable wire.
(i) Ellesmere Road - The Keys
[18] The final sexual assault took place when the complainant was in grade ten, when she lived with her mother at an apartment on Ellesmere Road. One day, when the complainant came home from school, the appellant was there with the complainant’s mother. Her mother asked the complainant to go with her downstairs to take a parking permit to the appellant’s van. When they arrived downstairs, her mother realized she did not have the keys to the van and asked the complainant to return to the apartment to get them from the appellant.
[19] On the complainant’s evidence, she returned to the apartment and asked the appellant for his keys, who held them away from her and touched her body in various places when she reached out for them. Eventually, she got the keys, started to run from the appellant, and made it outside the door of the apartment, but the appellant pulled her back inside and held his hand over her mouth. She said he pushed her onto the floor, tried to remove her clothes, and attempted to stop her from moving and screaming. He stopped when her mother came and knocked on the door, which someone – presumably the appellant – had locked.
[20] On the appellant’s account, the complainant returned to the apartment for the keys and he tossed them to her at her request. The appellant’s evidence thereafter is in some respects ambiguous, but in any event is markedly different from that of the complainant and the tenant.
[21] In outline, the appellant’s evidence was that the complainant had a pre-existing knee injury that was aggravated when he threw the keys to her. This is what caused her to call out and him to immediately go to her to console her and massage her knee.
[22] The ambiguity attributed to the imprecision of the interpretation concerns whether the appellant stated that the keys that he threw to the complainant struck her knee, causing her to yell out in pain and fall to the floor, or that the complainant somehow injured her knee trying to catch the keys, and then yelled out in pain and fell to the floor.
(ii) Ellesmere Road - The Doorway
[23] There was also some question as to whether there was a misinterpretation of the appellant’s evidence about where the complainant fell when she tried to catch the keys – whether she was outside the door to the apartment, or just outside an internal door in the apartment (in the internal hallway).
(iii) The Cable Wire
[24] Finally, with respect to the cable wire incident, the appellant raises concerns over whether the best interpretation of his description of the event was that he had slapped the complainant with the cable wire hard or tapped her lightly, as well as whether he had done so only once or a number of times.
(iv) The Appellant’s Argument
[25] The appellant argues that the imprecise interpretation of his testimony in these three instances violated his Charter right under s. 14. He argues both that his evidence was not understood, and that he failed to understand that the follow-up questions put to him by opposing counsel were premised on misinterpretations of his earlier answers. These misinterpretations, he argues, resulted in the appearance of him having given inconsistent answers, which examining counsel exploited to undermine his credibility. This caused the trial judge to find that he was unable to keep his story straight with respect to these three details. In reality, he says, his answers were consistent in the original, and the sometimes combative exchanges between him and examining counsel were the result of his incredulity at counsel telling him he had just said something he knew he had not said.
(v) Analysis
[26] The burden is on the appellant to establish a breach of s. 14: R. v. Tran, [1994] 2 S.C.R. 951, at pp. 979-80. The analysis does not proceed from an assumption that an uninterpreted answer is itself coherent or free of ambiguity. Furthermore, as the court noted in Tran, “[e]ven the best interpretation is not “perfect”, in that the interpreter can never convey the evidence with a sense and nuance identical to the original speech”: Tran, at p. 987, citing Graham J. Steele, “Court Interpreters in Canadian Criminal Law” (1992) 34 Crim. L.Q. 218, at p. 242.
[27] Section 14 provides that any party in a proceeding “who does not understand or speak the language in which the proceedings are conducted … has the right to the assistance of an interpreter.” The Supreme Court’s construction of this right guarantees that the interpretation provided will be sufficient to enable an accused to understand the proceedings and to be understood. The quality of an interpretation is to be assessed according to its continuity, precision, impartiality, competency, and contemporaneity: Tran, at pp. 978-80, 985-92, and 994-95.
[28] The standard is not perfection, which is unattainable given the real time demands of the court room, the inherent difficulty of rendering words and phrases from or into a language without an exact corresponding expression, and the possibility of ambiguity and other imprecision inherent in the original testimony: Tran, at pp. 987-88. To establish a breach, the appellant must demonstrate that there is a real possibility that the appellant either did not understand or was misunderstood. This must be assessed in the overall context of the trial and not on a piecemeal basis.
[29] Accordingly, an appellant cannot establish a constitutional violation by simply showing that another, perhaps better, interpretation was open to a subsequent interpreter working in an environment some distance from the real-time pressure of simultaneous interpretation. Tran allows that “the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for”: Tran, at pp. 987-88.
[30] After comparing the different interpretations in the passages reproduced by the parties, we conclude that the interpretation provided at trial did not fall below the standard guaranteed by s. 14. The differences were comparatively minor. There is no question that the appellant understood what was alleged against him, that his answers were responsive to the Crown’s evidence, and that the substance of his evidence was conveyed with sufficient accuracy to allow the trial judge to understand the nature of the appellant’s account.
[31] The appellant’s position is not materially improved, for example, depending on which doorway the complainant was understood to be near, or whether the appellant was understood to have stated that the complainant ended up on the floor because she was hit on the knee by the keys, or fell trying to catch them. Similarly, whether there is any genuine controversy over whether the appellant’s evidence was that he ‘tapped’ the complainant with the cable wire or ‘was tapping’ the complainant does not assist him. Either way, the offence of assault is made out.
[32] The three impugned interpretations were, at worst, minor imperfections that did not impact the ultimate standard against which the trial must be measured: was the appellant’s evidence understood? The trial judge clearly understood the appellant’s denial of the sexual assault at Ellesmere Road, as well as his explanation that what the tenant misperceived as an assault was in fact a compassionate effort to relieve the pain of her injury. With respect to the cable wire incident, the trial judge understood that the appellant was angry with the complainant for bringing a friend over and punished her by hitting her with the cable wire. These were the salient aspects of the evidence.
[33] Accordingly, the appellant has failed to demonstrate that his right under s. 14 was violated.
(2) Error in Weighing the Evidence
[34] The appellant argues that the trial judge further erred in her overall approach to his evidence. He claims that the trial judge ignored the admonition from Tran that because real time interpretation is inherently less precise than translation, a trial judge must not examine interpreted evidence “microscopically for inconsistencies”: Tran, at p. 987, citing Steele, at p. 242.
(i) Ellesmere Road
[35] The trial judge found internal inconsistencies in certain details of the appellant’s account of the Ellesmere Road incident. Again, these inconsistencies were on comparatively minor matters. There was an enormous gulf between the complainant and tenant’s accounts, and the account provided by the appellant. That aspects of the appellant’s account appeared unstable certainly did not help the appellant’s defence. But there were many reasons why the trial judge disbelieved the appellant’s evidence
[36] She found the entirety of his story unbelievable, in no small measure because it was contradicted by the evidence of the tenant who heard the altercation, saw the appellant straddling the complainant on the floor, and became so profoundly fearful for her own safety that she hid in her room before fleeing to the bathroom to lock the door. When the mother returned, the tenant told her what happened and that, consequently, she did not want to live in that apartment anymore. The trial judge was impressed by this evidence, which was flatly inconsistent with the appellant’s account of compassionately attending to the complainant and nursing her injured knee. The apparent inconsistencies identified by the appellant – whether these were amplified by misinterpretation or not – were not central to her reasoning.
(ii) The Cable Wire
[37] With respect to the discrepancy in the appellant’s evidence as to whether or how many times he hit the complainant with a cable wire, it was open to the trial judge to conclude that the appellant’s answers were contradictory. He appeared to state that the complainant’s mother prevented him from hitting her; that he hit her once before the complainant’s mother stopped him; and that he hit her multiple times before the complainant’s mother stopped him.
[38] Again, however, the inconsistency in the evidence is of little moment. The trial judge found that the appellant admitted to hitting the complainant with the cable wire, and the appellant testified that he was angry when he hit her. This was sufficient to establish the offence of assault with a weapon, and it was immaterial that the appellant may have been inconsistent about the number of times he hit her, how hard he hit her, and whether the complainant’s mother prevented him from hitting her more than once.
[39] The trial judge therefore had ample reason to disbelieve the appellant’s account of the incidents at the core of the allegations against him, separate from how his narrative appeared unstable in comparatively minor detail.
(3) Error Concerning the Appellant’s Demeanour
[40] The appellant argues that the inaccuracy in interpretation, even if it did not fall below the constitutional standard, nevertheless unfairly contributed to the trial judge’s negative assessment of the appellant’s demeanour and resulted in an unfair trial. As explained below, we do not agree.
[41] The appellant first argues that because of the faulty interpretation, his evidence appeared to be internally inconsistent when it was not, compromising his credibility. Further, the inaccuracy of the interpretation resulted in cross-talk between the appellant and examining counsel, making him frustrated and combative with counsel. Thus, the misinterpretation, even if it was with respect to fairly minor details that may not have been important in themselves, impacted his demeanor and contributed to the trial judge’s negative impression of his evidence.
[42] The appellant also argues that the trial judge erred in criticizing the appellant’s demeanour when he denied sexually assaulting the complainant on her eighth birthday. When asked if he had committed sexual acts against the complainant on her eighth birthday, his answers appeared either non-responsive or tangentially related to the question, such as listing things he remembered doing that day. The trial judge also observed that the appellant did not respond with the “expected disgust” that should accompany a denial of allegations of this nature, and that “his late and tepid denial” was not “capable of persuading” her that he did not commit the assault. In any event, the appellant argues, the trial judge placed too much reliance on demeanour.
[43] Counsel on appeal suggests that the answers were responsive to the questions. They were intended to illustrate how devoted he was to the complainant and therefore how preposterous it was to suggest that he could have sexually assaulted her. We note that the trial judge did not understand the appellant’s answers in that way, nor were they presented that way by trial counsel. Accordingly, we do not accept this argument.
[44] We acknowledge that the trial judge’s comment that she expected that the appellant would “fervently” repudiate the allegation or express disgust at it was misplaced. However, she was entitled to reject the appellant’s evidence and the appellant has no basis to complain that his statement was not found to be compelling. The trial judge clearly misspoke when she stated that the “late and tepid denial” was not capable of “persuading me that he did not commit the assault”. Her reasons read as a whole convey clearly that she understood that the burden of proof was on the Crown, and that she found the appellant’s testimony did not raise a reasonable doubt.
[45] Although a witness’s demeanour when testifying is of limited probative value, a trial judge is entitled to make use of it in assessing the witness’s credibility: R. v. Boyce, 2005 ONCA 36440, at para. 3. We agree with the Crown, however, that although the trial judge was clearly unimpressed with the appellant’s demeanour, and added it to the reasons she had for not believing his evidence, it did not play a central role in her reasoning.
[46] The trial judge’s credibility assessment was multilayered, summarized by the conclusion that his evidence was “too difficult to be believed”. She accepted the tenant’s evidence concerning the Ellesmere Road allegation and was particularly impressed by the level of fear she experienced when hearing the complainant scream and seeing the struggle between her and the appellant. The trial judge was also impressed by the testimony of the complainant and the tenant more generally, which “stood essentially unchallenged in any meaningful way.” She also disbelieved the appellant’s evidence that, although he treated the complainant as though she was his own daughter, he was never alone with her in the eight years they resided together and would never even hug her unless her mother was present. The trial judge’s reference to the appellant’s demeanour, while arguably misplaced, had little impact on her overall conclusion that the appellant lacked credibility.
(4) Error in Assessing the Ellesmere Tenant’s Credibility
[47] At the hearing of the appeal, we permitted the appellant to raise a new ground of appeal not contained in his factum: that the trial judge erred in her assessment of the tenant’s credibility, by speculating as to an absence of motive to fabricate.
[48] The trial judge stated in her reasons that she was impressed with the fact that the tenant did not know the complainant or her mother well, had not lived with them for long, and had not kept in close contact with them. She had, the trial judge noted, “nothing to gain from testifying as she did” and concluded that “this lends credibility to her evidence.”
[49] The appellant argues that the trial judge erred by speculating that the tenant had no motive to fabricate when there was no evidence one way or the other. The appellant further argues that it was an error to use an absence of motive to fabricate as a positive reason to believe the tenant.
[50] We do not agree. In context, the trial judge was doing nothing more than noting that the tenant was a disinterested witness and that her account was not seriously challenged. The trial judge made no error in her credibility assessment.
(5) Error Concerning the Conviction for Invitation to Sexual Touching
[51] As stated above, we accept the appellant’s submission that the conviction for invitation to sexual touching was an error. Although the appellant was charged with this offence, the trial judge mistakenly stated in her reasons that the appellant was charged with the offence of “sexual exploitation” and was guilty of this offence beyond a reasonable doubt. The trial judge then went on to enter a conviction on the indictment for the offence of invitation to sexual touching.
[52] We do not agree with the Crown’s submission that, because invitation to sexual touching is a mode of committing the broader offence of sexual exploitation, no substantial wrong or miscarriage of justice has occurred. In our view, the trial judge did not specifically consider the elements of the offence of invitation to sexual touching and there was no evidence of any invitation. Each incident of sexual abuse involved the appellant forcing himself upon the complainant, without there being an invitation. The conviction is therefore without factual foundation. Accordingly, we quash the conviction for invitation to sexual touching and enter an acquittal on that count.
(6) The Remaining Grounds of Appeal
[53] The appellant advanced several other grounds of appeal in his factum, which were neither argued nor abandoned at the oral hearing. These were primarily disagreements with the trial judge’s findings of fact. It suffices to say that none of the findings of fact challenged on appeal amount to an overriding error. The appellant has not identified a factual error warranting appellate interference.
Disposition
[54] The motion for fresh evidence is allowed. The appeal is granted with respect to count three, invitation to sexual touching, that conviction is quashed, and an acquittal is entered. The appeal is dismissed in all other respects.
Released: June 21, 2021 “B.W.M.” “B.W. Miller J.A.” “M. Jamal J.A.” “S. Coroza J.A.”