Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231214 DOCKET: COA-23-CR-0443

Paciocco, George and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Robert Casarsa Appellant

Counsel: Robert Casarsa, acting in person Chris Rudnicki, appearing as duty counsel Caitlin Sharawy, for the respondent

Heard: December 4, 2023

On appeal from the conviction entered on November 25, 2022 by Justice Andrew W. Brown of the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

OVERVIEW

[1] Robert Casarsa was convicted of two counts of sexual assault contrary to s. 271 of the Criminal Code, R.S.C., 1985 c. C-46, involving two adult women. The incidents were found to have occurred approximately two months apart. The women were linked closely to the family of Mr. Casarsa’s common law partner, with whom he cohabitated at the relevant time. Both assaults occurred while the women were visiting the home where Mr. Casarsa and his common law partner were living, when he was alone with them in the finished basement. Each of those assaults were found to have involved repeated acts of intimate, over-the-clothing sexual touching, despite clear objection, while Mr. Casarsa was making sexual remarks. The trial judge found with respect to one of the assaults that Mr. Casarsa had unsuccessfully attempted to grab the complainant’s vagina under her clothing. Mr. Casarsa was not in a position of trust to these women, but he was found to have used the trust gained through their close and friendly relationships to assault the women while they were separated from others during social gatherings at the home. He was sentenced to concurrent sentences of nine months’ imprisonment, followed by two-year probationary terms.

[2] Mr. Casarsa appeals his conviction as a self-represented appellant, and he seeks leave to appeal his sentence with the assistance of duty counsel. For the reasons that follow, we dismiss the conviction appeal, grant leave to appeal the sentence, but deny the sentence appeal.

THE CONVICTION APPEAL

Issues

[3] Mr. Casarsa pursued two grounds in appealing his convictions. First, he argued that the convictions should be set aside because the trial judge did not address the risk of collusion and tainting (“collusion”) between the complainants when ultimately deciding whether the Crown had proved the charges against him beyond a reasonable doubt. Second, he argued that the trial judge reversed the onus of proof by giving the Crown the benefit of the doubt, as demonstrated by features of the trial judge’s analysis, including his decision to treat facts as corroborating and supporting the credibility of the complainants when those same facts equally corroborated his testimony.

The Collusion Argument

[4] We see no merit in the collusion argument, even though we recognize that there was an air of reality to the risk of collusion, given that the complainants met together as a result of the assaults before going to the police. The trial judge released a blended decision, in which he first addressed the preliminary issue of the use of evidence cross-counts as similar fact evidence, before turning to the question of whether the Crown ultimately proved Mr. Casarsa’s guilt beyond a reasonable doubt. The trial judge addressed the risk of collusion between the complainants in the similar fact evidence portion of his decision. He found that there was an air of reality to the risk of collusion, but decided that the Crown had proved on the balance of probabilities that collusion had not occurred. On this basis, he found that the two complainants’ allegations had been made independently and not collaboratively, and that their complaints were “truly independent”. Given this finding, and the probative similarities he identified in the assaults, he permitted the cross-count similar fact evidence application.

[5] Before us, Mr. Casarsa argued against the trial judge’s finding that the complaints were “truly independent”, but the trial judge was entitled on the evidence to come to this conclusion. Both complainants testified that they did not discuss the details of the events when they met. The trial judge accepted this testimony. It is not our role to retry this issue as if we had been the trial judge. We must defer to his finding unless it is unreasonable, or it is based on an error of law or principle or a palpable and overriding factual error. We see no such errors.

[6] Given the trial judge’s finding during the similar fact evidence application that the accounts of the complainants were “truly independent”, it is obvious why he did not see the need to mention collusion again, in the same decision, when moving on to determine that the Crown had proved its case. We deny this ground of appeal.

The Reversal of Onus/Corroboration Argument

[7] Mr. Casarsa’s second ground of conviction appeal fares no better. His submissions in support of his contention that the trial judge reversed the onus of proof are, in substance, an attempt by him to reargue the case on its merits before us. The sole submission that may have merit is his argument that the trial judge erred by treating evidence that equally supported his testimony and the testimony of the complainants as evidence “corroborating” the complainants’ accounts, but, as we will explain, even this concern is not a basis for allowing the conviction appeal.

[8] The proper use of evidence that is equally supportive of competing versions, when assessing the credibility and reliability of those versions, was recently addressed by this court in R. v. Brown, 2022 ONCA 417, at para. 22. In Brown, the competing testimonial versions of the complainant and the accused both included the same sexual contact. Forensic evidence provided strong support for concluding that Mr. Brown had engaged in such sexual contact. The trial judge treated this forensic evidence as “corroborating” the complainant’s account. Mr. Brown appealed, arguing that the trial judged erred in doing so. Justice Miller denied this ground of appeal after finding that evidence that supports a complainant’s account does not cease to support that account because it also supports the account given by the accused. He reasoned that since judges are required to consider all of the evidence, the trial judge did not err in finding that this evidence provided some support for the complainant’s evidence.

[9] Notably, Miller J.A. qualified this holding by confirming that the forensic evidence “was neutral on the issue of consent”, which was the key issue in contest. This makes sense, given that the forensic evidence supported both competing versions, therefore providing no logical basis for preferring one of the competing versions over the other. It follows, in our view, that Brown does not hold that it is permissible to rely on evidence that equally supports competing accounts as a basis for accepting one of those accounts over the other, nor does it support the proposition that in a “he said/she said” case, a trier of fact is free to use evidence that supports both competing accounts selectively as supporting only the complainant’s account. If the Crown intended to suggest otherwise in oral submissions, we do not agree.

[10] We are accordingly persuaded that Brown does not answer Mr. Casarsa’s complaints, namely, that the trial judge acted unfairly in selectively using the confirming evidence as supporting the complainant’s evidence, but not his, and by using this evidence as a basis for ultimately choosing to believe the complainant’s account about the sexual assault over his denial.

[11] Nonetheless, it is unnecessary for us to determine whether the trial judge committed these errors. We are satisfied that even if he did, any such errors had no effect on the outcome. The trial judge gave multiple reasons for believing the complainants’ testimony and not believing Mr. Casarsa’s testimony. In accepting the complainants’ testimony, the trial judge relied heavily on the force of the cross-count evidence, the failure of cross-examination to materially shake the complainants’ testimony, and the confirmatory post-offence demeanour of the complainants. He also provided multiple reasons, including the implausibility of Mr. Casarsa’s testimony, for disbelieving him on the features of his testimony for which there was no confirmation. We deny this ground of appeal, and therefore dismiss the conviction appeal.

[12] We note that Mr. Casarsa did not appeal the trial judge’s reasoning on the basis that the evidence he relied upon was not capable in law of “corroborating” the complainant’s testimony. It is nonetheless worth pointing out that evidence is not “corroborative” simply because it confirms some of the testimony a witness provides. Technically, evidence is not corroborative unless it is independent proof that confirms a material feature of the criminal allegation: R. v. Baskerville, [1916] 2 K.B. 658 (Eng. C.A.). If all evidence does is provide some support for the credibility of a witness, it should not be described as “corroborative”. Doing so presents the risk that the impact of that evidence may be given exaggerated importance. In R. v. Brown, the court found the trial judge did not err by misusing the technical term “corroboration” after concluding, in context, that trial judge was using the term in its informal sense as evidence providing some support for the complainant’s testimony. Had Mr. Casarsa raised this issue in this appeal we would have disposed of it the same way. There is no basis for concluding that the trial judge did anything other than this in this case. Still, care should be taken in using the term “corroboration” to describe evidence that lends no more than incidental support to some feature of a witness’s testimony.

THE SENTENCE APPEAL

[13] In support of his application for leave to appeal his sentence, Mr. Casarsa seeks to admit fresh evidence, namely, that as a result of his convictions he lost his employment. He argues that this is a material change because evidence was presented at the trial, and accepted by the trial judge, that his job would still be there after he served his sentence.

[14] We are not satisfied that this evidence qualifies for admission as “fresh evidence”. In order to be admissible as fresh evidence 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”: R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 7, citing Palmer v. The Queen, [1980] 1 S.C.R. 759. In our view, proof of this collateral consequence – Mr. Casarsa’s job loss – could not reasonably have affected the result. As the Crown points out, the trial judge treated Mr. Casara’s work history as a “significant” mitigating circumstance and treated the evidence before him that Mr. Casarsa’s employment was secure as a mitigating factor. Removing evidence that his job was secure and replacing it with proof that he in fact lost his job would not have made a material difference in the sentence imposed, particularly in view of his evidence that he has now secured part-time employment. Put simply, one mitigating collateral fact would have been replaced by another mitigating collateral fact of comparable impact.

[15] More importantly, the trial judge made clear that the key drivers of the sentence he imposed were Mr. Casarsa’s high moral blameworthiness, his use of his relationship to the vulnerable complainants to exploit them, the significant impact the offences had on the complainants, and the need to impose the sentence he did to achieve the requisite denunciatory and deterrent impact of the sentence. This sentence imposed did not turn on collateral consequences.

[16] Mr. Casarsa also argues that the trial judge erred in denying him a conditional sentence by finding that he posed a continuing danger to the community. He emphasizes that he had no prior criminal record and complied with bail release terms for a long period of time pending sentencing. He therefore submits that the trial judge’s finding that he posed a continuing danger to the community was unreasonable. The trial judge’s finding that Mr. Casarsa posed a continuing danger to the community may indeed provide cause for concern on this record, even in the face of evidence of his inappropriate attitudes about sexuality and women, but once again, this finding did not have a material effect on the sentence imposed. The trial judge gave alternative reasons for denying a conditional sentence, including that a conditional sentence could not, in the circumstances of the case, satisfy the principles of denunciation and deterrence. That finding alone, which the trial judge was entitled to make, removed a conditional sentence as an option, even if Mr. Casarsa had been found not to have presented an ongoing danger. Similarly, we are not persuaded that the trial judge would have lowered the length of the custodial sentence imposed had he not found that Mr. Casarsa presented an ongoing risk to reoffend. We have listed the key foundations for the sentences the trial judge imposed in the prior paragraph. Any such error would have had no impact on that sentence and therefore does not provide a basis for interfering with the sentence.

[17] We therefore dismiss the sentence appeal. We would not exercise our discretion to impose a lesser sentence on the basis that it would be unduly harsh to re-incarcerate Mr. Casarsa after the passage of so much time, given how much of his sentence he has already served. We see no basis on this record for exercising that exceptional jurisdiction.

CONCLUSION

[18] The appeal of conviction and sentence are dismissed.

“David M. Paciocco J.A.”

“J. George J.A.”

“J. Dawe J.A.”