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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 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) 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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.
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.
(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: 20240119 DOCKET: COA-22-CR-0069
Fairburn A.C.J.O., Doherty and Trotter JJ.A.
BETWEEN
His Majesty the King Respondent
and
D.A. Appellant
Counsel: Kamran Sajid, for the appellant Jennifer Epstein, for the respondent
Heard: December 22, 2023
On appeal from the conviction entered by Justice Michael N. Varpio of the Superior Court of Justice on April 11, 2022, with reasons reported at 2022 ONSC 1920.
REASONS FOR DECISION
Overview
1This is an appeal from conviction for sexual assault. The appeal rests on two grounds, specifically that the trial judge: (1) misapprehended the evidence on material issues; and (2) erroneously treated the complainant as a child witness.
2The appellant and complainant were next door neighbours. There is no dispute that they had a consensual sexual relationship in 2018 and 2019 while the appellant was 56 and 57 years of age and the complainant was 16 and 17 years of age. [1]
3This was a two-witness trial. The complainant testified that the appellant had worked with her father cutting firewood. She said he was a controlling and jealous man. The complainant was open about having experienced significant mental health difficulties and the fact that the appellant was someone she could speak to about her challenges.
4According to the complainant, her relationship with the appellant eventually developed into a sexual one. They would speak frequently on the phone. He was “physically, mentally, [and] verbally” abusive. The appellant denied that this was the case, saying he did not act in a controlling or jealous manner to the complainant. He was, though, concerned about her drug use and would express this concern to her.
5The relationship ended on poor terms.
6According to the complainant, she was feeling “trapped” in the relationship. The complainant said that after her hospitalization for a suicide attempt, she told her mother about her relationship with the appellant. Her mother gave her an ultimatum: either stay with the appellant and leave the family home, or “stay at home and be happy”. She testified that she decided that it was time to end the relationship. As a result, she called the appellant and said the relationship was over.
7In contrast, the appellant said that the relationship ended on his terms, because he suspected that the complainant was using and selling drugs.
8In the wake of the relationship ending, the complainant gave a police statement where she alleged numerous incidents of sexual assault, including: (1) a “brief” attempt at anal intercourse that followed upon a consensual act of vaginal intercourse; (2) an incident of non-consensual vaginal intercourse; (3) multiple acts of choking during otherwise consensual vaginal intercourse; (4) anal intercourse in the shower at the appellant’s home; and (5) an incident of forced fellatio.
9The appellant denied each of these allegations. Although he acknowledged that he and the complainant engaged in multiple sexual acts throughout their relationship, he maintained that every incident was consensual in nature. He says he never pinned the complainant down or attempted to have anal sex with her.
10This was a judge alone trial. The trial judge started by explaining why he rejected the appellant’s evidence. He said that he “[did] not find the accused to be credible in the slightest” and that he “reject[ed] his evidence entirely” based on seven factors.
11The appellant maintains that the trial judge materially misapprehended the appellant’s evidence such that the verdict must be set aside. The respondent argues that while there were misapprehensions of evidence, they were not material to the result and the verdict should stand.
Analysis
12A misapprehension of evidence will warrant appellate intervention only where the misapprehensions go to substance and not detail, where they are material and not peripheral to the judge’s reasoning and where they play an essential role in the reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, quoting R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 221.
13As will be explained below, the trial judge misapprehended the evidence on some points and those misapprehensions were material in nature because they formed a substantial part of the basis upon which the trial judge rejected the appellant’s evidence as lacking in any credibility. Given that the appellant’s credibility was central to the verdict, these misapprehensions played an essential role in the reasoning process.
(1) The trial judge misapprehended some of the evidence
14The trial judge made three factual errors that led to erroneous conclusions: (1) concluding that the appellant had been inconsistent with his testimony regarding who initiated the breakup; (2) concluding that the appellant had been inconsistent in respect to the number of times that he had seen the complainant in 2018; and (3) concluding that the appellant was controlling in nature partially because he had told the complainant to paint her window black.
(a) The appellant was not inconsistent about who initiated the breakup
15The trial judge said that the appellant had been “inconsistent with his testimony regarding who initiated the break-up.” The trial judge thought that the appellant had initially told the police that the complainant had broken up with him and that it was only at trial that he had changed his story to suggest that he had initiated the break-up. The trial judge went on: “The fact that the accused gave specifics and rationales for each story means that the differences are not attributable to simple forgetfulness. Instead, the differences appear to suggest that the accused is tailoring his evidence to the situation that surrounds him.”
16The respondent agrees that the trial judge misapprehended these facts. The appellant did not tell the police that the complainant had broken up with him and, indeed, never suggested that to anyone. Rather, he was always consistent that he had broken up with the complainant.
(b) The appellant was not inconsistent about the number of times he had seen the complainant in 2018
17The trial judge also said that the appellant was inconsistent regarding the number of times that he had seen the complainant in 2018. The trial judge suggested that the “disparity was not insignificant” as the appellant’s version had “changed from five times a month to three or four times a week.” To the trial judge, “[t]his difference [was] meaningful and suggest[ed] that the accused d[id] not remember how many times he saw the complainant and that he [was] guessing as to what actually happened, or [was] tailoring his evidence to suit his purposes.”
18Again, the respondent agrees that the trial judge misapprehended these facts. The appellant did not tell the police that the complainant would visit his home only five times per month. While the trial Crown erroneously introduced this idea into the cross-examination, by suggesting to the appellant that he had told the police this fact, it simply was not true. He never told the police that.
(c) The trial judge misapprehended some of the evidence used to conclude that the appellant was controlling in nature
19Finally, the trial judge said that the appellant was controlling in nature. One of the indications of that control was the fact that the trial judge thought he had admitted to asking the complainant to cover her bedroom window by painting it black. While the appellant admitted to asking the complainant to cover her bedroom window by hanging a curtain, he never admitted to asking her to paint her window black.
20The respondent also agrees that the trial judge misapprehended this evidence.
(2) The misapprehensions of evidence were material to rejecting the appellant’s credibility
21While the respondent acknowledges the three misapprehensions of evidence relied upon by the appellant, the respondent says that, when they are understood in their proper context, the misapprehensions of evidence are not material in nature.
22For instance, the respondent emphasizes that while the trial judge misunderstood the appellant to have told the police that the complainant broke up with him, when he had in fact told the police that he had broken up with the complainant, he had also told the police that the relationship was not over. At trial, the appellant explained that when he told the police that the relationship was not over, it was because the complainant had left her ring at his residence and he interpreted this to mean that she wanted the relationship to continue. Accordingly, even though the appellant was not inconsistent as to who broke up with who, the respondent emphasizes that there was still an inconsistency between his police statement and his testimony at trial.
23In addition, the respondent underscores that while the trial judge was wrong that the appellant had told the police that the complainant only visited him five times per month, the appellant seems to have accepted that he told police that when the trial Crown erroneously suggested it to him. Therefore, the respondent emphasizes that the material point for the trial judge remained the same: that the appellant did not have a good idea as to how many times the complainant visited him per month.
24Finally, the respondent emphasizes that while the trial judge was wrong that the appellant had admitted to telling the complainant to paint her bedroom window black, he had still told the complainant to hang a curtain on her bedroom window. Whether painting the window black or putting up a curtain matters not, says the respondent. The point for the trial judge was that the appellant was attempting to control the complainant.
25Respectfully, the trial judge’s misapprehensions of the evidence are not as benign as suggested. When approached in their proper context, they were fundamental to the rejection of the appellant’s credibility.
26The trial judge’s reasons make clear that he was leaning on seven factors in total to reject the appellant’s credibility and to find that he had made every effort to “put himself in the best light” possible.
27Yet two of the most critical factors for rejecting the appellant’s credibility rested on misapprehensions of the evidence: who broke up with who and the number of times that the appellant and complainant would meet each month. These were, in fact, not inconsistencies, and certainly not ones that, to use the trial judge’s words, reflected a “tailoring [of the appellant’s] evidence to suit his purposes” or to the “situation that surrounds him”. Of course, there was also the misapprehension of evidence involving telling the complainant to paint her window black, which the appellant simply did not do.
28The other factors relied upon by the trial judge to reject the appellant’s evidence were less significant. For instance, the trial judge found that the appellant made a somewhat fantastical claim that he had 35 children and had slept with around 750 women. But even the trial judge acknowledged that this evidence may have demonstrated that the appellant did not understand math or that he lived in a fantasy world. The fact is that there was evidence at trial that the appellant was significantly intellectually challenged, even having difficulty spelling his own name at the outset of his testimony. He also testified that he was on ODSP for, among other reasons, a disability involving numbers.
29In his own words, the trial judge “based” his credibility finding upon seven issues he had identified. Only two of them involved true inconsistencies between the appellant’s police statement and his evidence at trial. The trial judge misapprehended the evidence on both of those matters.
30His rejection of the appellant’s evidence relied on what he called a “mass of inconsistent and/or incredible evidence” that could “only be explained as an attempt by the accused to put himself in the best possible light”. Both factors that rested on factual errors were also explained as an attempt by the accused to tailor his evidence. Without relying on those two examples, and without relying on the misapprehension of evidence about having told the complainant to paint her window black, one is left wondering whether the balance of the evidence would have led the trial judge to conclude that the appellant was tailoring his evidence.
31This is particularly true considering the trial judge’s observation that, taken individually, some of the difficulties with the appellant’s evidence “may not adversely affect the accused’s credibility in any meaningful way”. He did not specify what difficulties he was referring to.
32Nothing was more central to the trial judge’s reasoning than his credibility findings. The only way in which a conviction could have flowed was by way of first rejecting the appellant’s evidence. This was central to the verdict and anything but peripheral to the trial judge’s reasoning. Undoubtedly, the errors played an essential part in the reasoning process resulting in the rejection of the appellant’s evidence.
33While the appellant also suggests that the trial judge erred by treating the complainant as a child witness – indeed, devoting a section of his reasons to reviewing jurisprudence about the correct analytical approach to “childhood recollections” – we need not address this issue. While there is some merit to the suggestion that the complainant’s credibility was erroneously viewed through the lens of a child witness, when in fact she was 20 years of age at the time she testified and was recounting events from only a few years earlier, there is no need to analyze this issue in light of the conclusion we have reached on the first ground of appeal.
Conclusion
34The appeal is allowed, the conviction is set aside and a new trial is ordered.
“Fairburn A.C.J.O.” “Doherty J.A.” “G.T. Trotter J.A.”
1In his reasons for judgment, the trial judge notes that the trial Crown conceded at trial that no sexual activity occurred while the complaint was 16 years of age. Although the respondent disputes that this concession was made at trial, the respondent concedes that nothing turns on whether the complainant was 16 years of age when the consensual sexual relationship commenced.
