R. v Reslan, 2016 ONSC 6311

Court File and Parties

COURT FILE NO.: 155/15 DATE: 2016/10/07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) And: FAOUZI RESLAN (Appellant)

BEFORE: Justice I. F. Leach

COUNSEL: James Zegers, for the appellant Vanessa E. Decker, for the respondent

HEARD: September 15, 2016

Endorsement

1After trial in the court below, the appellant Mr Reslan was convicted of sexual assault, contrary to section 271 of the Criminal Code.

2The trial judge imposed a sentence of three months in custody, to be followed by two years of probation on indicated terms and conditions. That was accompanied by ancillary orders compelling provision of a DNA sample, imposing a weapons prohibition for 10 years, and requiring the appellant to comply with the Sex Offender Information Registration Act (SOIRA).

3Mr Reslan appeals in relation to his conviction and his sentence.

4Relying on the principles emphasized in authorities such as R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, the appellant argues, in relation to his conviction, that the trial judge failed to give adequate reasons for judgment, thereby preventing meaningful appellate review and/or effectively denying Mr Reslan an explanation as to why he was convicted. In particular, the appellant submits that the trial judge failed to consider or address what are said to be significant inconsistencies in the underlying evidence.

5The appellant also says that the trial judge misapprehended evidence in a material way, and allowed that misapprehension to play an essential role in her reasoning process.

6In relation to his sentence, the appellant submits that the trial judge erred by focusing on denunciation and deterrence, without due regard to rehabilitation and the goal of not depriving offenders of liberty if less restrictive sanctions are appropriate.

7In particular, it is said that the sentence imposed was unnecessarily harsh, (having regard to concerns such as Mr Reslan’s medical condition), and that the objectives of sentencing could and should have been met in this case by a conditional sentence of six months, to be followed by a period of probation and community service.

Background

8The criminal proceeding against the appellant focused on events of the evening of Friday, November 1, and the early morning hours of Saturday, November 2, in 2013. Undisputed aspects of those events included the following:

• At all relevant times, the appellant was in his mid-fifties, and working an evening-night shift as a taxi driver here in the City of London.
• During the course of that shift, the appellant was called upon to drive three young women, including the complainant, (an 18-year-old college student who had grown up in a much smaller community and had little experience with taxis), to and from various destinations in and around the city. The three young women were friends, and were attending a number of Halloween-related house parties where underage drinking would be possible. At least two of the women, (including the complainant), were dressed in “bunny” costumes. All three consumed numerous alcoholic drinks over the course of the evening.
• The complainant had not met the appellant prior to that evening. However, her two friends had used the appellant’s taxi service on many earlier occasions. They did so because the appellant frequently made a practice of charging the young women nothing for the rides he provided.
• The appellant’s taxi was equipped with a surveillance system designed to record events in the interior of the vehicle, as well as the exterior path it was travelling; i.e., the area to the front of the vehicle. In the result, that system provided photos and recordings, with date and time indications, (the accuracy of which was not disputed), depicting portions of what happened on the evening in question. However, the record of events the surveillance system depicted for that evening was incomplete for at least two reasons. First, the device apparently was programmed to activate its cameras and audio recording for no more than approximately five minutes upon the opening and closing of the vehicle’s doors. Second, the camera lens inside the vehicle was obstructed during a number of the recordings, although the vehicle’s interior microphone continued to function.
• The complainant and her friends were not the only passengers the appellant had over the course of his shift. However, four of the taxi drives provided by the appellant that evening involved the complainant. In particular:
  • During the first such drive, the appellant drove the complainant and her two friends from the complainant’s residence in east London to a house party in central London. He dropped them there at approximately 9:30pm, but they did not stay long.
  • During the second such drive, approximately 22 minutes later, the appellant drove the three young women from that first house party to a second house party, back near F[…] College in east London. Before parting company, at approximately 10:10pm, the appellant provided the complainant with his phone number, in case she needed or wanted to call for his services again in the future.
  • During the third drive involving the complainant, (which began at 10:32pm and lasted only a few minutes), the appellant drove the three women from the second house party to a convenience store, where they were going to be met by friends, and were met by friends. The friends, (rather than the appellant), then transported all three young women to a third house party located in a rural area on the northern outskirts of London.
  • Several hours later, the appellant was asked to come to that rural residence by the complainant, who wanted to leave the party there and have the appellant drive her home. (The complainant’s friends did not share her initial desire to leave the party, and were going to be traveling in a quite different direction when they left the rural residence.) The appellant arrived at the rural residence at approximately 1:30am, and the appellant got into the front passenger seat of the taxi. The appellant dropped the complainant at her residence approximately 25 minutes later, at 1:55am.

9The complainant says that she was sexually assaulted by the appellant during that fourth and final taxi ride.

10In particular, in her testimony at trial, the complainant said that, because she was not paying sufficient attention, and because of language difficulties between her and the appellant, (whose first language is Arabic), she misunderstood and/or paid insufficient attention to initial indications from the appellant that he wanted to touch her. She also testified that, despite subsequent repeated and various indications from her that she did not want to be touched, the appellant persisted with physical contact that included repeatedly reaching over to feel and grope her breasts, kissing her on the lips, and at one point pulling the vehicle to the side of the road in order to put his hands down her pants and insert the fingers of his right hand into her vagina for approximately one minute. The complainant acknowledged that the appellant did not strike her, raise his voice or make any overt threats. However, the complainant emphasized that she felt threatened when the appellant made statements emphasizing that nobody was around, and that he would continue driving if she permitted the appellant to keep touching her. She testified that she was scared, worried about being hurt, and felt unable to exit the vehicle safely. She also said that she was concerned about the appellant’s reaction to resistance, and how she would get home safely from her unknown rural location. She indicated that, in the circumstances, she resigned herself to letting the appellant do what he wanted, in the hope that doing so might let her get home to safety.

11As noted above, it was not disputed that the appellant did indeed take the appellant to her home.

12It also was not disputed that, almost immediately after being returned to her residence, and donning additional clothing, the complainant ran next door where she was met outside by neighbours. She told them of the alleged sexual assault. In the course of doing so, she was seen crying by passing campus security, who stopped to make inquiries and then contacted the police. Approximately 15 minutes after being dropped at her residence by the appellant, the complainant was providing a statement to the police, indicating that she had been sexually assaulted by the appellant, in the manner alleged, during the course of that fourth and final 25 minute taxi ride.

13At trial, the Crown led evidence not only from the complainant, but also from the two female friends who were with the complainant that evening, as well as a police expert, (Officer Christopher Liscombe), who conducted a forensic examination of the appellant’s cellular phone to retrieve deleted text messages, and to look for any images of the complainant. (According to the complainant, there was a point where the appellant leaned back and aimed the camera on his phone at her, but she did not know if he ended up actually taking a photo. In the result, Officer Liscombe retrieved a number of deleted texts, but no photo of the complainant.)

14Exhibits tendered during the course of the Crown’s case included the following:

• available pictures and audio recordings generated, over the course of the evening in question, by the surveillance system in the appellant’s taxi;
• a brief record confirming a call made to the cellular phone the complainant was using that evening; and
• a forensic report prepared by Officer Liscombe outlining the content of deleted texts the officer was able to retrieve from the appellant’s cellular phone.

15Defence counsel cross-examined the Crown witnesses, and during the course of cross-examining the complainant, introduced an “enhanced recording” of the final taxi ride interactions between the appellant and the complainant, as well as a suggested “draft transcript” of the last two recordings which the trial judge proceeded to edit and annotate according to her perception of what was said, after hearing the recordings and the testimony of the complainant. That edited and annotated “draft transcript” was also then made a formal exhibit.

16More generally, however, the defence elected not to call any evidence.

17The matter then proceeded to oral submissions, in the course of which the trial judge actively engaged by directing questions, comments and observations to both counsel.

18Argument from Crown counsel included indications that the prosecution was relying primarily on the testimony of the complainant. That testimony was said to be supported in large measure by numerous aspects of the available recordings, including their content and undisputed timeline indications, and by the complainant providing a statement to the police almost immediately after the alleged sexual assault, before the complainant was aware that such recordings were available.

19In particular, Crown counsel argued that the available recordings corroborated and otherwise supported the complainant’s testimony of contemporaneous indications to the appellant that she wanted him to stop what he was doing, thereby vitiating any consent by the complainant, or any honest but mistaken belief in consent on the part of the appellant.

20Defence counsel submissions initially focused on countering an implicit if not explicit Crown suggestion that the appellant’s covering and uncovering of the vehicle’s interior camera at certain times supported a nefarious inference; i.e., that the appellant was contemplating sexual misconduct with his female passengers. In that regard, defence counsel emphasized competing considerations, including the evidence of recordings where the interior camera was covered for rides given to male passengers.

21However, defence counsel’s remaining submissions focused primarily on argument that the evidence indicated consent of the complainant to sexual touching by the appellant, and/or that the appellant had an honest but mistaken belief in such consent.

22Defence argument in that regard included submissions that recorded statements by the complainant during the final taxi ride indicated a “green light” to physical contact by the appellant, and that the same recording contained no clear or sufficient indication by the complainant that she then wanted the appellant to stop.

23It was also argued that the trial judge should have had reasonable doubt about the complainant’s assertion that she made further unrecorded requests, during that final taxi ride, for the appellant to stop what he was doing. In that regard, defence counsel relied on suggested inaccuracies in the complainant’s testimony about other aspects of the evening’s events, as well as the content and tone of the parting exchange between the complainant and the appellant, recorded as the complainant was exiting the vehicle after the alleged sexual assault.

24After receiving submissions from counsel, the trial judge reserved her decision for approximately three months. In reasons delivered orally on May 15, 2015, (addressed in more detail below), she found the appellant guilty of sexual assault.

25The matter then was adjourned for approximately three more months, for reasons that included the ordering of a pre-sentence report, as well as the filing of a victim impact statement and authorities.

26The trial judge received sentencing submissions on August 12 and September 30, 2015.

27In the course of those submissions, Crown counsel sought a custodial sentence of 3-6 months in a formal institution, to be followed by 24 months of probation, as well as ancillary DNA and SOIRA orders.

28The availability of a conditional sentence was acknowledged, but Crown counsel opposed such an outcome. In particular, it was argued that a conditional sentence in this case would endanger community safety, and be inconsistent with the fundamental purpose and principles of sentencing insofar as the circumstances called for greater denunciation and deterrence. In that regard, Crown counsel relied in particular on the serious impact which the appellant’s conduct had on the complainant, as well as authorities emphasizing the position of trust held by taxi drivers in our society, which had been breached and undermined by the appellant’s misconduct. Crown counsel also noted that, to the extent the appellant had health difficulties, he would be able to see medical staff and obtain medication while in custody.

29In the course of his sentencing submissions, defence counsel’s requests included imposition of a conditional sentence of 6-8 months, to be served in the community. In the alternative, it was suggested that a sentence of 90 days incarceration, to be served intermittently in a formal institution, would be appropriate.

30In addition to the appellant’s positive work history, family supports and lack of a prior criminal record, considerations relied upon by defence counsel included the health of the appellant, whose ailments include diabetes and a distending bladder, (in respect of which medical documents were filed with the court). It was said that the appellant had accepted moral if not criminal culpability for his conduct towards the complainant. Moreover, it was emphasized that the appellant already had lost his taxi licence because of these criminal proceedings, which in turn had led to a loss of employment and inability to support his family.

31The matter then was adjourned again, to allow the defence an opportunity to file a technological report demonstrating the availability of an electronic supervision program, in support of the request for imposition of a conditional sentence.

32In reasons delivered orally on November 9, 2015, the judge imposed the sentence noted at the outset of these reasons, including three months incarceration, (to be served in an institution), followed by two years of probation on indicated terms and conditions.

Analysis – Appeal from conviction

33The appeal from conviction is based primarily on a suggested inadequacy of reasons by the trial judge, thereby preventing the accused from knowing why he was convicted as well as meaningful appellate review. In particular, it is said that the trial judge failed to consider and/or properly address suggested issues of credibility and consistency in relation to the complainant’s evidence.

34General principles in relation to sufficiency of reasons have been outlined in cases such as R. v. Sheppard, supra, and R. v. Maharaj, 2004 ONCA 39045, [2004] O.J. No. 2001 (C.A.).

35Such authorities confirm that trial judges have a duty to give reasoned reasons for their decisions.

36However, the requirement of reasons is tied to their purpose, and the purpose varies with the context. Adequacy of reasons therefore is determined by a functional test. At the trial level, the reasons generally are sufficient if they justify and explain the result, such that the losing party knows why he or she lost, informed consideration can be given to grounds for appeal, and interested members of the public can satisfy themselves as to whether justice has or has not been done. [1]

37There is no specified or definite limit to the circumstances in which the reasons of a trial judge may be inadequate, having regard to the above concerns. Relevant factors and situations may include the following:

• the presence of significant inconsistencies or conflicts of evidence which are not addressed in the reasons for judgment, where that confused and contradictory evidence relates to a key issue on an appeal, and the record does not otherwise explain the trial judge’s decision in a satisfactory manner; [2]
• a record disclosing a lack of appreciation of relevant evidence and/or the complete disregard of such evidence; [3] and
• a failure to grasp or pay regard to an important point. [4]

38In some cases, non-existent or inadequate reasons with respect to credibility also may justify appellate intervention. [5]

39However, our appellate courts also have emphasized that application of the principles emphasized in cases such as R. v. Sheppard, supra, must not place an impossible burden on busy trial courts. An accused is entitled to adequate reasons, not perfect reasons.

40Moreover, as desirable as it is to give adequate reasons, and avoid stating conclusions without express explanations, a failure to do so to do so does not automatically amount to “a free-standing right of appeal”, “entitlement to appellate intervention”, or reversible error. This reflects the rationales underlying the duty to give reasons, and the reality that, in some cases, inadequate reasons do not preclude meaningful appellate review or prevent an accused from knowing why he or she was convicted. For example, defence evidence may be obviously incredible, or the prosecution’s evidence may be overwhelming and unchallenged, such that the basis for conviction may be clear from the record. The fundamental question is whether, in all the circumstances, the functional need to know has been met. Again, in assessing whether the pathway taken by the trial judge is clear, accountability seeks basic fairness, not perfection. [6]

41Similarly, in considering appeals based on a suggested inadequacy of reasons, one must have regard to the general principle, emphasized repeated by the Supreme Court of Canada, that a trial judge does not err in a manner warranting appellate intervention simply because his or her reasons fail to address, comprehensively, all aspects of the evidence led at trial. In that regard:

Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s.686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points [citations omitted]. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused’s guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict.

The rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case. [7]

42The mere failure to mention relevant evidence, by itself, therefore does not constitute an error of law. [8] Similarly, there is no obligation on the trial judge to answer each and every argument made by counsel in reasons for judgment. [9]

43It is a “trial judge’s failure to articulate reasons in relation to a key issue in circumstances which require an explanation” which may be characterized as an error of law, warranting appellate intervention. [10]

44In short, as emphasized by the Supreme Court in R. v. Sheppard, supra, the purpose and adequacy of reasons varies with context, and it is not every failure or deficiency in the reasons that provides a ground of appeal. The question is whether, having regard to all the particular circumstances of the case, the functional “need to know” has been met by the reasons. A trial judge’s duty to provide reasons is satisfied by reasons which are sufficient to serve the purpose; i.e., to explain, to the parties and the appellate court, in that particular case, why the trial judge arrived at that particular result. [11]

45With such principles in mind, I turn now to consideration of the suggested inadequacy of the reasons for conviction delivered by the trial judge in this particular case.

46In this case, after several months of reflection, the trial judge delivered oral reasons for conviction that fill approximately 14 pages of transcript. The trial judge also expressly indicated that, for the sake of brevity in her oral decision, her revised and edited version of the draft transcript of the recordings made at the beginning and end of the last taxi ride, marked as Exhibit 4 in the proceedings, was to form part of her final decision.

47As emphasized by authorities such as R. v. Lagace, 2003 ONCA 30886, [2003] O.J. No. 4328 (C.A.), “the adequacy of reasons is not measured by the inch or the pound, but rather by the extent to which those reasons allow meaningful exercise of the rights of appeal”. On any view, however, the case before me was not a case of boilerplate reasons or a generic “one size fits all” judicial disposition, as was found in R. v. Sheppard, supra, so as to be no reasons at all. Nor was it a situation involving mere recitation of the charges, evidence and adoption of one party’s submissions, or a couple of operative sentences that lack any discernible indication of the reasoning process adopted by the trial judge; cf. R. v. Kendall, supra.

48The real question is whether the extended substantive reasons provided by the trial judge were adequate, in the circumstances, to explain “the pathway taken” to conviction.

49In my view, they were.

50In coming to that conclusion, I have reviewed and considered the trial judge’s reasons in their entirety. However, for present purposes I believe they may be summarized as including the following:

• A review of the essential elements of the s.271 offence of sexual assault, confirmed by the Supreme Court in R. v. Chase, 1987 SCC 23, [1987] 2 S.C.R. 293.
• A review of other relevant Criminal Code provisions, including: 265(4), dealing with honest but mistaken belief in consent; s.273.1(2)(d) negating consent where a complainant expresses by words or conduct a lack of consent; s.273.1(2)(e), negating consent where a complainant actively expresses by words or conduct a lack of agreement to continue engaging in sexual activity after prior consent; and s.273.2(c), which provides that belief in consent to sexual activity is not a defence to a charge of sexual assault where the accused fails to take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
• Confirmation that there was no question that the appellant touched the complainant in circumstances of a sexual nature such that her sexual integrity was violated.
• Indications that the trial was focused on the issue of whether the Crown had proven the absence of consent beyond a reasonable doubt, or whether the accused could rely on the defence of honest but mistaken belief in consent.
• A review of the evidence concerning the events of the evening leading up to the sexual touching during the fourth taxi ride. This included a review of such matters as the amount of alcohol consumed by the complainant that evening; where the complainant sat in the vehicle during prior taxi rides, (i.e., in the rear or in the front passenger seat next to the accused); the manner in which the three young women and the accused were speaking with each other, (including evidence of the complainant’s two friends telling the accused they “loved” him and vice versa, and the complainant’s testimony that she followed the lead of her friends in that regard and joined in such comments because the conduct of her friends suggested it was friendly and innocent interaction with the accused); and physical interaction between the accused and the three young women, (including alleged repeated efforts by the accused to hold the hand of females sitting in the front passenger seat, and the accused possibly getting out of the vehicle to hug or be hugged by one of the three young women).
• A review of the circumstances in which the complainant left the final house party and contacted the accused for a taxi ride home, including reference to the evidence that the complainant’s friends took other proffered transport home because they were going in the opposite direction from the complainant.
• A review of the complainant’s testimony as to what was said and done during and at the end of the fourth taxi ride, during which the sexual assault was said to have occurred.
• Decisions by the trial judge indicating her view as to what definitely was said by the accused and the complainant during the available recordings relating to that fourth taxi ride. Again, these were set out in the revised and edited “draft transcript” of those recordings, initially marked as Exhibit 4 in the trial, but expressly incorporated into the reasons for decision of the trial judge. As noted by the trial judge and confirmed by the trial transcript, the judge made her decisions in that regard in conjunction with counsel, after listening to the enhanced version of the relevant recordings, and the complainant’s testimony concerning the content of those recordings.
• An overview of the submissions made by counsel. This included reference to Crown counsel’s submission that protests by the complainant vitiated any initial consent to sexual touching. It also included reference to defence counsel’s submissions that the complainant provided actual consent; that the accused had an honest but mistaken belief in such consent; that the complainant subsequently never indicated a lack of consent but instead engaged in confusing behaviour; and that the complainant’s testimony to the contrary should not be believed because of other suggested inconsistencies between her evidence and that of her friends, (in relation to such matters as the particular seats occupied by the three young women during the taxi rides, whether the complainant participated in hugging the accused, and whether the complainant went into a hot tub while at the last house party).
• Acceptance of the complainant’s testimony that she initially did not understand the accused’s repeated requests for permission to touch the complainant, or what she was agreeing to, in giving affirmative answers to the appellant’s questions in that regard.
• A finding that those affirmative answers given by the complainant nevertheless gave rise to the appellant having an honest belief in the complainant’s consent.
• A finding, (supported by references to complainant comments such as “I can’t” and “I’m tired”), that the complainant’s affirmative answers to the accused’s request for touching nevertheless changed to negative ones once she realized what was happening.
• A finding that the accused then realized and understood that the complainant was not interested in participating in the sexual touching; (a finding supported by reference to efforts made by the accused to convince the complainant that she was or should be interested in continued sexual touching).
• A conclusion that the circumstances therefore engaged the provisions of s.273.1(2)(d) and s.273.1(e) of the Criminal Code, coupled with findings that the complainant therefore had not given consent; that the accused had failed to take reasonable steps to ascertain that the complainant clearly was consenting, beyond his attempts to persuade her; and that the accused thereafter could not honestly believe that the complainant was consenting to the sexual activity.
• Acceptance of the complainant’s “unchallenged” evidence that the accused nevertheless then continued to touch her in a sexual way.
• A general finding that any inconsistencies in the complainant’s testimony raised by the defence were “minor”, “did not touch on the elements of the offence”, and did not undermine the complainant’s credibility as a witness.
• An indication that the trial judge was not using covering of the vehicle’s interior camera as anything more than neutral evidence, (after earlier reference to defence submissions noting similar covering during rides given to male passengers and a possible desire to avoid recording of the accused providing free taxi rides), but that the trial judge nevertheless found the audio recording to be “persuasive and helpful evidence” in reaching her conclusion that the accused was guilty of the offence charged.

51In my view, this is not a case where the trial judge failed to outline a clearly identifiable and intelligible path to her conclusion.

52With indications of the evidence she considered significant and was relying upon, the trial judge found that:

a. there was touching of a sexual nature without the complainant’s consent, thereby establishing the essential elements of the alleged s.271 offence, subject to the suggested defence of honest but mistaken belief in consent;

b. that the accused initially did have an honest belief in the existence of such consent, based on the complainant’s answers to his repeated questions; and

c. that the defence nevertheless became unavailable, pursuant to s.273.2 of the Criminal Code, when the accused pressed on with sexual contact, and failed to take reasonable steps in the known circumstances to ascertain continued consent, despite the complainant making clear protests and indications of disinclination that were sufficiently effective to register with the accused.

53In the course of written and oral submissions, appellate counsel submitted that the reasons of the trial judge were inadequate, and/or reflected a misapprehension of evidence, insofar as the trial judge failed to articulate substantial reasons for finding that the alleged sexual touching had occurred in the manner alleged by the complainant, failed to address evidence relating to the alleged sexual touching, and/or viewed the complainant’s testimony in that regard as “unchallenged”.

54I disagree.

55As noted above, the authorities emphasize that adequacy of reasons, and satisfaction of the functional “need to know” requirement, must be approached in context and with proper regard to the record. In this case, there were numerous indications, making it abundantly clear to all participants in the trial, (and to any appellate court provided with a transcript of the proceedings), that the occurrence and general nature of the sexual touching alleged by the complainant was not in dispute. For example:

• During the course of the complainant’s examination-in-chief, defence counsel formalized admissions, including an admission of the accused’s “identity as the person who is alleged to have been the person who had the physical contact with the complainant”. [12] (Emphasis added.)
• During the course of the complainant’s cross-examination, defence counsel sought to introduce an enhanced recording of the fourth and final taxi ride, characterizing it as “the key piece of evidence in the trial because it’s the most relevant timeframe where the events occurred”. [13] (Emphasis added.)
• At no point during defence counsel’s cross-examination of the complainant was it ever suggested or put to her that the sexual touching described in her examination-in-chief did not take place, or take place when she said it occurred. To the contrary, further references by the complainant, during testimony under her cross-examination, to the fondling of her breasts and fingering of her vagina by the accused passed without being challenged by defence counsel. [14] Moreover, some questions posed by defence counsel indicated implicit or express acceptance of the complainant’s allegations and testimony in that regard. [15]
• In the course of closing submissions, defence counsel did not ask the judge to find that the sexual touching alleged by the complainant did not occur, or argue that the trial judge should have reasonable doubt in that regard. To the contrary, apart from a passing reference to the trial judge’s obvious ability to “accept all, some or none of [the complainant’s] evidence as to what physical contact” took place, defence counsel submissions once again repeatedly seemed to indicate express and/or implicit acceptance of the complainant’s allegations and testimony in that regard. [16]

56In the circumstances, it was not and should not have been surprising or perplexing that the trial judge spent little time in her reasons explaining why she accepted the complainant’s testimony about the nature and timing of the sexual touching that occurred, and felt those essential elements of the offence to be proved beyond a reasonable doubt. In my view, the record makes it clear that the prosecution’s case in that regard was “overwhelming and unchallenged”.

57Moreover, this was not a case where the trial judge failed to consider or address the prosecution’s need to make out essential elements of sexual assault relating to touching of a sexual nature, violating the sexual integrity of the victim. The trial judge expressly referred to those essential elements, expressly found that there was “no question” they had been made out, and explained in brief compass why and how she had reached that conclusion. In particular, the trial judge emphasized that the complainant’s testimony as to what she had experienced “was not challenged”.

58In relation to the trial judge’s finding that there was touching of a sexual nature, such that the complainant’s sexual integrity was violated, the functional “need to know” test accordingly was satisfied and there was no misapprehension of evidence. Moreover, her findings clearly were supported by that evidence.

59In my view, the same can be said in relation to the findings of the trial judge that the provisions of s.273.1(2) and s.273.2 were engaged, in that the complainant expressed a lack of agreement to continue to engage in the sexual activity, and the accused did not take reasonable steps in the known circumstances to ascertain that the complainant was consenting.

60Appellant counsel submits that the trial judge failed to provide adequate reasons for her conclusions in that regard. In particular, it was said that the trial judge failed to consider and sufficiently address suggested inconsistencies and inaccuracies in the complainant’s testimony, when the circumstances called for such explanations.

61I again disagree.

62As emphasized by the authorities noted above, the law does not require a trial judge to mention or address all relevant evidence and arguments in the course of his or her reasons.

63Nor is it necessary to address and resolve all possible or suggested inconsistencies and/or inaccuracies in witness testimony.

64In assessing the adequacy of reasons, proper focus on the “functional” aspect of the “need to know” test, with due regard to context and the particular circumstances of a given case, may make it clear that certain matters actually had little relevance or significance warranting comment in explaining the pathway taken to conviction.

65In this case, it must be remembered that:

a. for the reasons outlined above, the initial focus of the trial judge essentially was narrowed to the issues of lack of consent and honest but mistaken belief in consent; and

b. the effective focus of the trial was narrowed still further by findings, (made in the appellant’s favour by the trial judge), that the complainant had given express affirmative indications of consent, (albeit mistakenly), and that the appellant initially held an honest but mistaken belief in the existence of consent.

66In the circumstances, the questions remaining for determination, and upon which the pathway to conviction turned, essentially concentrated on the possible application of s.273.1(2)(d), s.273.1(2)(e), and/or s.273.2(c) of the Criminal Code. In other words, the determinations of central relevance focused on whether the complainant had expressed a lack of agreement to engage or continue engaging in the sexual touching, and on whether the accused had failed to take reasonable steps in the known circumstances to ascertain that the complainant was consenting.

67The trial judge expressly founded her conviction on those provisions.

68In the circumstances, it accordingly was her reasoning in that regard, (and not in relation to matters leading up to the complainant’s alleged expressions of disinterest and the accused’s alleged response), which principally called for intelligible explanation.

69In my view, the suggested inaccuracies or inconsistencies in the complainant’s evidence emphasized at trial by defence counsel, (e.g., in relation to who occupied particular seats during the taxi rides, who may or may not have hugged the accused, and whether the complainant did or did not enter a hot tub at the last house party she attended), clearly had little or no bearing on such matters, and therefore effectively assumed a peripheral nature that did not warrant extended comment or resolution by the trial judge.

70Even so, the trial judge did address them during the course of her reasons, and indicated her view, (which I share, for the reasons indicated), that they were minor, and did not touch on the elements of the offence. [17]

71In the course of argument, counsel for the appellant highlighted additional suggested inaccuracies or inconsistencies in the complainant’s evidence that were not raised before the trial judge, and suggested that the failure of the trial judge to address those additional matters also warranted appellate intervention.

72The additional suggested inconsistencies and inaccuracies were set forth in a table marked as Exhibit “A” for identification on the appeal.

73However, I am not persuaded that any of the matters identified in that table are relevant, sufficient or proper considerations on which to ground an appeal based on suggested inadequacy of reasons by the trial judge. In particular:

• A number of the suggested inaccuracies and inconsistencies not addressed by the trial judge were not inaccuracies or inconsistencies at all. The comments set forth in Exhibit “A” actually acknowledge that by admissions of consistency, or the absence of conflicting evidence. As noted above, a trial judge has no duty to address all of the evidence elicited at trial, and I think that certainly applies to evidence which was not contradicted or in dispute.
• Other suggested inaccuracies and inconsistencies depend entirely on matters of individual perception and inference, particularly insofar as they turn on argument that the tone and manner of comments made by the complainant, in the audio recordings, might give rise to an inference that she was not as confused, fearful or traumatized as she suggested in her express testimony at trial. In my view, such submissions stray beyond a suggestion of inadequate reasons, and effectively invite me to assume an inappropriate role in the present context. Again, existence of these further suggested inaccuracies and inconsistencies depends entirely on the finding of facts, and the drawing of inferences and evidentiary conclusions from facts. However, that is the province of the trial judge, and an appellate court is not entitled to interfere merely because it takes a different view of the evidence. [18]
• To the extent Exhibit “A” does disclose apparent inconsistencies between the complainant’s testimony at trial and the available audio recordings, (e.g., insofar as the complainant’s testimony at trial suggested that the accused’s efforts to remove a phone and water bottle from her lap occurred before requests from the accused to touch her, whereas the objective audio recording indicates that happened after such requests were initiated), in my view such inaccuracies or inconsistencies were of little import in any event. [19] In particular, they were quite peripheral to the essential questions of whether the complainant indicated consent or lack of consent to touching or continued touching, and the reactions of the accused in that regard. The failure of defence counsel to raise or suggest such further suggested inconsistencies or inaccuracies in the course of submissions at trial also supports a view that that they were inherently minor and of little consequence.

74More generally, appellate counsel submitted that the decision of the trial judge failed to provide any reasons to explain why she found the complainant to be credible, and why she accepted the complainant’s testimony in relation to the central issues to be decided.

75Once again, I disagree.

76The trial judge expressly indicated her view that the complainant’s evidence about the accused continuing to touch her in a sexual way, after her repeated indication of disinterest such as “I can’t” and “I’m tired”, was “unchallenged”.

77In my view, that was not only a proffered reason for the trial judge’s acceptance of the complainant’s credibility and evidence in relation to the points being considered, but an accurate characterization of the situation. No contradictory evidence was offered or elicited to dispute the complainant’s evidence about the words said by the complainant, or the reactions of the accused. During the course of cross-examination, defence counsel also did not suggest to the complainant that such words were never spoken, or that the accused never reacted in the manner alleged. There was merely a suggestion, (which the complainant rejected), that her protests were made in a joking fashion.

78Moreover, it seems to me that the appellant’s submission ignores the clear implications of the trial judge indicating that she “found the audio recording to be helpful and persuasive evidence”, and that her edited and revised version of the “draft transcript” of the audio recordings relating to the fourth taxi ride formed part of her decision.

79That edited and revised transcript, prepared by the trial judge after she listened not only to the complainants subjective testimony but also to the objective evidence presented in the audio recordings, contains express confirmation of the complainant’s statements and accused’s reactions relied upon by the trial judge in reaching her conclusions about the application of s.273.1(2)(d), s.273.1(2)(e), and s.273.2(c) of the Criminal Code. [20]

80In particular, based on her perception of the relevant audio recordings, the trial judge found that, following initial affirmative responses such as “Yeah” and “Go ahead” to the accused’s repeated requests to touch the complainant, the complainant nevertheless then began to express disinclination by statements including “I’m so tired”, “I’m overtired”, and repetition of the statement “I can’t”. In response, the accused repeatedly said “You’re not tired”, as well as “You can have fun with me”, “Don’t worry”, and “You can”.

81In addition to accurately noting the “unchallenged” nature of the complainant’s subjective testimony on the points essential to the inferences and decision of the trial judge, (i.e., that the complainant was indicating a desire to stop the sexual touching, which the accused recognized but ignored), the reasons offered by the trial judge therefore also made reference to inherently objective evidence capable of confirming and corroborating the complainant’s testimony in that regard.

82Again, in the course of argument, appellate counsel suggested that I personally review the relevant audio tapes, and come to independent and different conclusions concerning the extent to which the audio tapes confirmed that the complainant was indicating that she wanted the accused to stop what he was doing. However, while I have reviewed the available recordings, my role in the present context is limited to determining whether or not the trial judge provided adequate reasons for her decision. As noted above, the finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, and an appellate court is not entitled to interfere merely because it takes a different view of the evidence. [21]

83For present purposes, I think it sufficient to confirm my view that the trial judge provided adequate reasons for her inferences and conclusions about the complainant indicating that she wanted the sexual touching to stop, and about the accused recognizing but ignoring such indications, thereby negating the defence of honest but mistaken belief in consent. Moreover, her findings were supported by the evidence.

84Finally, appellate counsel suggested in written and oral argument that the trial judge provided inadequate reasons insofar as she failed to address and apply the considerations emphasized in R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, echoed in R. v. Maharaj, supra.

85In my view, the passages cited and relied upon by appellant counsel in that regard were taken from a quite different context, and have no application to the situation at hand.

86The case of R. v. W.(D.), supra, focused on situations where an accused testifies, and triers of fact might be tempted to determine innocence or guilt by inappropriately restricting their focus; e.g., to questions of whether or not the accused’s testimony is believed and accepted as true, and/or on whether an accused’s testimony is viewed as less credible than that of a complainant. The case emphasized that the required broader focus is on whether the trier is left with reasonable doubt, which may arise in different ways; e.g., by the trier believing the accused, by the trier not necessarily believing the accused but having reasonable doubt after hearing the accused’s testimony, and by the trier not believing the accused but still having reasonable doubt based on the entire evidence elicited at trial.

87As emphasized in R. v. Maharaj, supra, in cases where an accused testifies and is then convicted, there can be significant interaction between the principles of R. v. Sheppard, supra, and those emphasized in R. v. W.(D.), supra. In particular, having regard to context and the functional “need to know” test for adequacy of reasons, concerns may arise where the trial judge fails to make it clear, to an accused and appellate courts, whether the judge had sufficient regard to the principles of R. v. W.(D.), including consideration of whether an accused’s testimony should be accepted or rejected, whether an accused’s rejected testimony nevertheless may have created reasonable doubt, and if not, whether evidence other than the accused’s disbelieved testimony may still have given rise to reasonable doubt.

88However, this simply is not such a case. At trial, the accused elected not to testify or call other evidence, the specific concerns emphasized in R. v. W.(D.) did not arise, and it accordingly was not necessary for the trial judge to address them in her reasons.

89Of course, the trial judge was still obliged to reach her decision after considering all the evidence, with due regard to the principle of reasonable doubt. However, as noted above, a failure to mention such matters expressly does not, by itself, constitute inadequacy of reasons warranting appellate intervention. [22]

90That is consistent with my overall conclusion that there is no reason for such intervention, as far as the underlying conviction decision is concerned. The appeal in that regard must be dismissed.

Analysis – Appeal from sentence

91I turn next to the appeal from sentence.

92As emphasized by the Supreme Court of Canada:

The law on sentence appeals is not complex. If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming the trail judge applied the correct principles and considered all relevant facts. … [This] view is premised on the reality that sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of the offence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range. [23]

93In this case, the appellant suggests that the sentencing judge erred in three respects:

i. by “focusing solely” on two principles of sentencing, (i.e., denunciation and general deterrence), or by making those principles her primary concern;

ii. by failing to take the appellant’s medical issues into account, and/or by placing an onus on the appellant to show that his medical issues cannot be met in custody; and

iii. by imposing a sentence that was unnecessarily harsh, insofar as a conditional sentence would have met the objectives of sentencing in this case, and facilitated proper management of the appellant’s medical issues in the community.

94However, I am not persuaded that the sentencing judge erred in any manner warranting appellate intervention.

95In relation to the appellant’s first ground of criticism, a review of the reasons for sentence makes it clear that the judge did not confine herself in form or substance to the principles of denunciation and general deterrence. For example:

• After expressly reviewing all of the sentencing principles sets forth in s.718 and s.718.2 of the Criminal Code, the judge repeatedly indicated her reasoned view that, in the situation before her, denunciation and general deterrence should be regarded as “the paramount principles of sentencing”, and that she was “less concerned” with sentencing principles such as specific deterrence and rehabilitation. [Emphasis added.]
• In determining an appropriate sentence, the judge did not ignore matters relating to specific deterrence and rehabilitation. To the contrary, she specifically noted numerous considerations in that regard, including the following: the appellant already had lost his job and taxi licence as a result of the criminal proceedings; he had accepted “moral responsibility” (if not criminal culpability) for his behaviour; he had no criminal record; he had a positive work history; he had significant ongoing family support; he generally was regarded as polite, generous and a helpful father and friend; he had abided by his bail conditions for an extended period of time; and he indicated his willingness to accept and comply with whatever sentence the judge saw fit to impose.
• In determining an appropriate sentence, the judge also did not ignore the availability of sanctions other than formal imprisonment that might have been restrictive and reasonable in the circumstances. To the contrary, the sentencing judge obviously gave extended consideration to the suggestion that the appellant serve his sentence in the community, by way of a conditional sentence. She also expressly considered the possibility of the appellant serving his sentence on an intermittent basis.
• The sentence then imposed by the trial judge also clearly reflects concern for sentencing principles other than denunciation and general deterrence. In particular, the judge imposed a period of probation, and the goal of rehabilitation is inherent in probation orders. [24] Moreover, the terms and conditions of probation imposed by the judge included provisions, (in Condition 11), specifically focused on the appellant’s participation in assessments, counselling and rehabilitative programs.

96Nor do I think that the sentencing judge erred by regarding denunciation and general deterrence as sentencing principles with primary importance in the particular circumstances of this case. This was a serious offence, involving direct touching of the victim’s breasts and digital penetration of her vagina, which clearly had a devastating and lasting impact on the victim. [25] It also stemmed from the appellant breaching the significant trust which our community places in taxi drivers, (for the reasons outlined in the authorities provided to the sentencing judge), and taking advantage of his young, naïve, isolated and vulnerable passenger.

97As for the appellant’s second ground of criticism of the sentencing decision, the judge clearly did not ignore the appellant’s medical issues. To the contrary, she specifically noted that the appellant “has many health issues, including anxiety, depression, significant bladder issues and diabetes – all requiring ongoing care and treatment”.

98In the course of rejecting the appropriateness of a conditional or intermittent sentence, the sentencing judge did note the absence of any evidence before her that Mr Reslan’s medical issues cannot be met in custody.

99However, I see no error of law in that regard.

100The responsibility of prison administrators for the health of inmates is confirmed and regulated by applicable legislation. In particular:

• pursuant to s.86 of the Corrections and Conditional Release Act, S.C. 1992, c.20, prison administrators must provide every inmate with essential health care that conforms to professionally accepted standards; and
• pursuant to s.24(1) of the Ministry of Correctional Services Act, R.S.O. 1990, c.M.22, where an inmate requires medical treatment that cannot be supplied at the correctional institution, the superintendent must arrange for the inmate to be conveyed to a hospital or other health facility.

101Without reason to believe that those responsible for the administration of any prison in which an offender may be an inmate will not discharge their duty, the mere existence of medical issues accordingly does not militate against incarceration. [26]

102As for the appellant’s third and final ground of criticism of the sentencing decision:

• The suggestion that it was excessively harsh because of the appellant’s health issues effectively is met by the considerations outlined in the previous four paragraphs.
• Nor am I able to find that the sentence was excessively harsh because the trial judge rejected the defence suggestion of a conditional sentence. As the Supreme Court of Canada emphasized in R. v. Proulx, 2001 SCC 61, at paragraphs 114-116, there is no easy test or formula to be applied when weighing factors favouring a conditional sentence and factors favouring incarceration, and sentencing judges are vested with considerable discretion in that regard. In this case, the sentencing judge did not reject the suggestion of a conditional sentence out of hand. She found that the statutory prerequisites for availability of a conditional sentence were met. She also found, (for expressed reasons including Mr Reslan’s lack of a criminal record and loss of his taxi licence), that service of his sentence in the community would not endanger its safety. The trial judge nevertheless found, for indicated reasons, that imposition of a conditional sentence in the circumstances would not be consistent with the fundamental purpose and principles of sentencing, particularly insofar as it would not appropriately address the heightened need, in this case, for significant denunciation and deterrence. In that regard, the trial judge was expressly mindful of the Supreme Court’s admonition and reminder that a conditional sentence is not necessarily a lenient punishment, and can provide significant denunciation and deterrence. However, the judge felt incarceration was required to meet those goals in this case. The exercise of her discretion in that regard was consistent with the Supreme Court of Canada’s indication, in R. v. Proulx, supra, at paragraph 114, that incarceration will generally be the preferable sanction “where punitive objectives such as denunciation and deterrence are particular pressing, such as cases in which there are aggravating circumstances”, (such as the breach of trust, digital penetration and victim impact considerations in this case). I find no basis for interfering with that exercise of discretion.
• Having regard to all the circumstances, (including both the aggravating and mitigating factors outlined by the trial judge), it seems to me that the overall sentence imposed by the judge was not clearly excessive. The situation discloses no failure to apply correct principles, and no failure to consider all the relevant facts. The sentence imposed was within the acceptable range. There accordingly is no basis for appellate intervention.

103The appeal from sentence therefore must also be dismissed.

Conclusion

104For the reasons set forth above, the appeal is dismissed in its entirety.

“Justice I F. Leach”

Justice I F. Leach

Date: October 7, 2016

[1] R. v. Sheppard, supra, at paragraph 24. [2] Ibid., at paragraph 28. [3] Harper v. The Queen, 1982 SCC 11, [1982] 1 S.C.R. 2, at p.14; [4] R. v. Burns, [1984] 1 S.C.R. 656, at p.665. [5] See R. v. Braich, 2002 SCC 27, [2002] S.C.J. No. 29, at paragraph 23, citing earlier authority in R. v. R.(D.), 1996 SCC 207, [1996] 2 S.C.R. 291 and R. v. Burke, 1996 SCC 229, [1996] 1 S.C.R. 474, as well as R. v. Maharaj, supra, at paragraph 20. [6] See, for example, R. v. Sheppard, supra, at paragraphs 53, 55 and 60; and R. v. Maharaj, supra, at paragraph 23. [7] R. v. Burns, 1994 SCC 127, [1994] 1 S.C.R. 656, at p.664, repeated with approval in R. v. Sheppard, supra, at paragraph 33. [8] See R. v. Kendall, 2005 ONCA 21349, [2005] O.J. No. 2457 (C.A.), at paragraphs 77 and 713, and the quotations therein from R. v. T.C. (2005), 2005 ONCA 371, 193 O.A.C. 106 at paragraph 45. See also R. v. Morin, 1992 SCC 40, [1992] 3 S.C.R. 286 at paragraph 20. [9] R. v. Newton, 2006 ONCA 230, [2006] O.J. No. 1008 (C.A.), at paragraph 4. [10] R. v. Sheppard, supra, at paragraph 39. [11] Ibid., at paragraphs 33, 42, 46, 53 and 55. [12] Trial transcript, pp.47-48. [13] Trial transcript, p.71. [14] See, for example, the trial transcript at pp.96-97, and at p.98. [15] See, for example, this question at p.92 of the trial transcript: “Do you agree with me that other than the inappropriate contact that he was having with you, he didn’t threaten you, for example?” [Emphasis added.] [16] For example, at pp.220-221 of the trial transcript, defence counsel acknowledged there was no doubt that the complainant “very much regretted what happened”, and that there similarly was “no doubt that she felt that she was victimized by what had occurred”. [Emphasis added.] Similarly, at p. 230 of the trial transcript, defence counsel emphasized in his closing submissions that “There was no physical intimidation other than the acts of course that were perpetrated”. [Emphasis added.] Moreover, at p.229 and again on p.230 of the trial transcript, there are further comments by defence counsel apparently indicating an acceptance of what had occurred, while suggesting that the complainant was allowing after-the-fact regrets to colour her evidence about contemporaneous lack of consent and alleged requests for the plaintiff to stop what he was doing. For example, at p.230 of the trial transcript, defence counsel submitted that the complainant was “colouring the events that occurred after the significant regret emerges like a hot volcano in her mind and says, why did I let this happen. It should not have happened. I should have said no.” [Emphasis added.] I also note that, at p.222 of the transcript, while obviously arguing against a finding of criminal culpability, defence counsel acknowledged that the accused had done “a very immoral thing”. I find it difficult to see what behaviour defence counsel may have had in mind, when making that remark, apart from the sexual touching alleged by the complainant. [17] To the extent suggested inconsistencies and inaccuracies in the complainant’s testimony depended on acceptance of competing testimony from the complainant’s friends, the complete trial record also includes indications by the trial judge, during the course of oral submissions, that she had took a dim view of the credibility and/or reliability of those other two witnesses. In particular, the trial judge expressed her view that the other two young women not only had to have their memories refreshed, but also were “distancing themselves”, downplaying their role in events “to help themselves”, while simultaneously “up-playing” suggestions that the complainant was “fun and loose”, possibly to justify their leaving the complainant on her own that evening. Trial transcript, pp.230, 240, 241, 245, 246 and 247. While not contained within the trial judge’s formal decision, those comments and conclusions by the trial judge do form part of the overall trial record, and provide further insight, both to the appellant and the appellate court, as to why the trial judge regarded certain suggested inconsistencies with the complainant’s testimony as insignificant. [18] See Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, 1994 SCC 106, [1994] 1 S.C.R. 114, at pp.121-122. [19] As noted in R. v. G. (M.) (1994), 1994 ONCA 8733, 93 C.C.C. (3d) 347 (Ont.C.A.), at pp.354-355, “Inconsistencies on minor matters or matters of detail are normal and to be expected. … What is important is the significance of the inconsistency.” [20] The testimony of the complainant included further indications of protest on her part, asking the accused to stop what he was doing, which were ignored by the accused, after the audio recording stopped. However, the trial judge obviously felt that the interactions captured and confirmed by the available recordings were sufficient to vitiate the defence of honest but mistaken belief in consent, and I see no basis for appellate interference with her discretion in that regard. [21] Again, see Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, supra, at pp.121-122. [22] See footnote 7, supra, and the quotation to which it relates. [23] See R. v. Shropshire, 1995 SCC 47, [1995] 4 S.C.R. 227, at paragraphs 47-48, and paragraph 48 in particular, quoting with approval from R. v. Muise (1994), 1994 NSCA 198, 94 C.C.C. (3d) 119, at pp. 123-124. [24] See, for example, R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399, at paragraph 15. [25] Amongst other consequences of the sexual assault, the victim has been formally diagnosed by a neurologist as suffering from post-traumatic stress disorder, the effects of which include numerous seizures, (which have led to loss of her driver’s licence), panic attacks, sleep deprivation, inability to live alone, and inability to take public transport. She was unable to complete her original program at F[…] College, and felt unable to remain in London. After her relocation to another city, she commenced a different school program. However, she has been unable to complete her studies. She similarly has encountered difficulties obtaining and maintaining employment. All of this has resulted in considerable financial loss, in addition to her emotional and health difficulties. [26] See, for example, R. v. Sidhu, 2015 ABCA 330, [2015] A.J. No. 1004 (C.A.), at paragraphs 39-40.