COURT FILE NO.: 267/17 DATE: 2018 11 02
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN – and – M.V. Appellant
Counsel: Arish Khoorshed, for the Crown Marie Henein/Lauren Mills Taylor, for the Appellant
HEARD: October 26, 2018
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] This is a Summary Conviction Appeal brought by M.V.
The Proceeding in the Ontario Court of Justice
[2] In the Ontario Court of Justice sitting in Brampton, on October 24, 25, 26 and 28, 2016, M.V. was tried on charges of sexual assault (section 271 of the Criminal Code) and sexual interference (section 151).
[3] On November 28, 2016, he was found guilty on both counts. Fairly lengthy typed reasons were delivered by the learned trial Judge.
[4] The learned trial Judge accepted the evidence of the complainant, M.V.’s daughter. She was 12 years old at the time of the trial. She was 11 years of age when she spoke with the police. The alleged offence period ended on May 13, 2015, the day before the child gave her first statement to the police.
[5] The Crown called two witnesses at trial – the complainant child and her mother. The Defence elected to call no evidence.
[6] At the commencement of the trial on October 24, 2016, even before M.V. was arraigned, the Defence (not appellate counsel) applied for the learned trial Judge to recuse himself. The complainant’s mother was a court reporter in Brampton. She had worked with the learned trial Judge in the past. The lawyers on both sides had anticipated that a trial judge would be brought in from another locale, however, this learned trial Judge, although semi-retired, had customarily sat in Brampton.
[7] The learned trial Judge did not recognize the name of the child’s mother (the court reporter). When the mother was brought into the Courtroom, His Honour did not recognize her face.
[8] At the suggestion of the learned trial Judge, the mother took the stand. A voir dire was held. Both lawyers asked the mother some questions. The mother testified that she had sat with the learned trial Judge a handful of times (later specified as being five to seven times), between 2007 and 2010, maybe 2011. She had little conversation with His Honour. The learned trial Judge also asked the mother a few questions. His Honour still did not recognize her.
[9] After submissions by counsel, the learned trial Judge gave an oral ruling. His Honour dismissed the recusal application. His Honour found no actual bias and no reasonable apprehension of bias.
The Appeal
[10] The convictions, only, are being appealed by M.V. There are four arguments advanced by his counsel: (i) unreasonable verdict, (ii) error by the learned trial Judge in dealing with demeanour, (iii) error by the learned trial Judge in assessing (misapprehending) the evidence at trial with regard to the complainant child’s diary, and (iv) error by the learned trial Judge in dismissing the recusal application.
[11] The remedy sought by M.V. is an acquittal, or alternatively, a new trial.
The Crown’s Response
[12] The Crown argues that this is nothing but another example of an unhappy accused wanting to have a retrial on appeal.
[13] On the recusal application, the Crown submits that the learned trial Judge applied the correct test (which is a high one) and rightly concluded that there was no actual or reasonable apprehension of bias.
The Standard of Review and the Basic Legal Principles
[14] M.V. has the burden of proof. He must persuade this Court, on a balance of probabilities, that there is a reason to interfere with what occurred in the Court below.
[15] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this Appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.
[16] Factual findings made by the learned trial Judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. After all, an appeal is not a retrial. R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.
II. Analysis
[17] For the reasons that follow, after thorough reflection and with much respect for this learned trial Judge, I have determined that the Appeal must be allowed.
[18] First, let us examine in more depth the learned trial Judge’s Reasons for Judgment, typed, 18 pages in length. Such an analysis is necessary in order to deal with the first three grounds of appeal being advanced by counsel for M.V.: unreasonable verdict, too much emphasis on demeanour, and misapprehension of the evidence.
Reasons for Judgment
[19] In the first section of His Honour’s Reasons, titled “Summary of the Charges and Events”, the genesis of the complaint, the nature of the two charges laid against M.V., and a brief overview of the trial are all accurately described by the learned trial Judge.
[20] The child complainant had disclosed to an adult at her school that her father had touched her between her legs while they were together in his car. Very soon afterwards, the child was interviewed by the police. In her statement, the child reiterated the car incident, but she also spoke about an earlier occasion when her father had inserted his fingers into her vagina while they were in her bedroom.
[21] In the next section of His Honour’s Reasons, titled “The Evidence for the Crown”, which comprises eight pages, the learned trial Judge summarizes the evidence of the only two witnesses who testified at trial, the child and her mother.
[22] In that summary of the evidence, there is some attention paid to issues brought to light during the lengthy (more than two days in duration) cross-examination of the child at trial. For example, at paragraph 14 of the Reasons, His Honour alludes, indirectly, to the potential animus and motive to fabricate arguments advanced by the Defence at trial, specifically, the child’s testimony that she did not like the fact that her father was spending more time with his new girlfriend and her family.
[23] In that summary of the evidence, there is also some attention paid to difficulties in the evidence of the child related to her diary. At paragraphs 23 and 28 of the Reasons, the learned trial Judge accepts that the child repeatedly testified to something that cannot possibly be true (my words), that is that she wrote in her diary about the alleged car incident before it actually happened. Whether that evidence had any effect on the learned trial Judge’s assessment of the credibility and reliability of the child cannot be gleaned from that portion of His Honour’s Reasons.
[24] In that summary of the evidence, there is also some attention paid, though indirectly, to the Defence theory that the child’s mother may have contributed to the false allegations because of her animus towards M.V. and the acrimonious nature of their separation. At paragraph 29 and 36 of the Reasons, for example, His Honour mentions the mother’s testimony about the acrimonious separation and the bitter divorce.
[25] In the next section of His Honour’s Reasons, titled “The Positions of the Parties”, which comprises nearly four pages, the learned trial Judge summarizes the major arguments advanced by both sides.
[26] A careful review of that section of the Reasons reveals that there is no question that the learned trial Judge appreciated that the Defence was advancing several themes, all pointing in the end to the assertion that the prosecution had failed to meet its burden to prove the charges beyond a reasonable doubt: inconsistencies in the evidence for the Crown, motive to fabricate in the context of a bitter family dispute, and the mother having influenced the allegations made by the child.
[27] In the next section of His Honour’s Reasons, titled “The Applicable Law”, the learned trial Judge accurately sets out the burden and standard of proof. Then there is a rather curious subheading, “The Failure to Make Timely Complaint”, under which His Honour sets out a series of quotations from other decisions. Those quotations discuss (i) the danger of drawing an adverse inference against someone who delays disclosure of sexual abuse and (ii) the danger of treating the evidence of a child witness the same as that of an adult.
[28] The latter was an important legal principle for the learned trial Judge to have explored in the Reasons, and His Honour did so clearly and correctly.
[29] The former was, with respect, irrelevant. This case had nothing to do with delayed disclosure. The two alleged incidents of sexual touching, the report of the child to the adult person at school about the car incident, and the initial interview with the police during which both the bedroom and the car incidents were disclosed, all occurred within a relatively short period of time. While it is true that the Defence argued at trial that the child added more detail to the alleged bedroom incident when she spoke with the police a second time, there was no argument by the Defence that the child should not be believed because of delayed disclosure. It simply was not a live issue at trial. There was an argument by the Defence that the child was materially inconsistent in the way in which she described the alleged bedroom incident, but that is a completely separate matter. The two police statements were given about a month apart, in May and June 2015. Even with regard to these added details in the second statement, there could not possibly have been any legitimate concern about delayed disclosure on the part of the child.
[30] In the next and final section of His Honour’s Reasons, titled “Analysis”, 2.5 pages in length, the learned trial Judge assesses the evidence and reaches verdicts of guilty on both counts. The pathway to the reasoning is disclosed, is discernible, and provides a basis for meaningful appellate review.
[31] His Honour made the following conclusions: (i) the child’s demeanour was impressive, both at trial and when questioned by the police (paragraph 68), (ii) the child’s complaints were uncontradicted by any other evidence adduced at trial (paragraph 69), (iii) the “lateness of reporting of the historical touching in her [the child’s] bedroom” is not a concern (paragraph 70), (iv) the child’s evidence about her diary is not a concern because the evidence of her mother is preferred as to when the child had written about the sexual touching and then destroyed the writing (paragraph 70), (v) if anything, the diary amounts to a prior consistent statement on the part of the child, though that does not add to her credibility (paragraph 70), (vi) an important factor in believing the child’s evidence is that she still loves her father and wants to see him (paragraph 71), (vii) the child’s evidence is accepted even though she was inconsistent about the timeline of events (paragraph 72), (viii) the child’s evidence is accepted even though she was inconsistent on how deep into her vagina her father’s fingers were inserted during the bedroom incident (paragraph 73), (ix) the child’s evidence had “the ring of truth” to it and did not appear to be coached (paragraphs 74 and 76), (x) and, finally, the evidence of the child’s mother also had the “ring of truth” to it (paragraph 75).
[32] I pause here to note that, with regard to whatever the child wrote in her diary, the issue of a prior consistent or inconsistent statement was not raised at trial.
Unreasonable Verdict
The Legal Principles
[33] The question for this Court to answer is whether the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered. Corbett v. The Queen, [1975] 2 S.C.R. 275, at page 282; R. v. Yebes, [1987] 2 S.C.R. 168, at page 185; R. v. Biniaris, [2000] 1 S.C.R. 381, at paragraph 36.
[34] The characterization of the test as being an objective, a subjective or a mixed one is not as important as an understanding of the role of this Court on review. I am expected to review, analyze and, to a certain extent, weigh the evidence. Those things are to be done “through the lens of judicial experience which serves as an additional protection against an unwarranted conviction”. Biniaris, supra, at paragraphs 36 and 40; R. v. W.(R.) [R.W.], [1992] 2 S.C.R. 122, at paragraph 17, citing R. v. Yebes, [1987] 2 S.C.R. 168, at page 186.
[35] There are instances where it may be difficult for a reviewing court to articulate precisely why the verdict is unreasonable. But the reviewing court has a duty to provide as specific an explanation as possible. Biniaris, supra, at paragraph 42.
[36] Sometimes, it boils down to a determination that the trial judge failed to subject the case for the Crown to the scrutiny required to justify a criminal conviction. Put another way, a conclusion by the reviewing court that, due to the absence of any sufficient analysis by the trial judge of items that clearly called out for discussion, for example, the conviction is unsafe. R. v. Gostick, [1999] O.J. No. 2357 (C.A.), at paragraphs 14, 20 and 43.
[37] After all, where the risk of a wrongful conviction is too high, it must be taken that a trier of fact acting judicially could not be satisfied beyond a reasonable doubt that the accused was guilty. R. v. L.M., 2017 ONCA 33, at paragraph 34.
[38] That begs the question, of course, what may cause a reviewing court to determine that a conviction is unsafe? One such thing is the failure of the trial judge to provide any meaningful analysis of what the reviewing court finds to be clear deficiencies in the evidence for the Crown. By “deficiencies”, I am referring to, for example, material inconsistencies and improbabilities in the evidence of the Crown’s witnesses. R. v. Neary, [2000] N.J. No. 131 (C.A.), at paragraphs 21 and 31.
[39] The trial judge is presumed to know the law. She is presumed to understand the basic tenets of our criminal justice system – the presumption of innocence, the burden of proof resting solely with the Crown, and the standard of proof being beyond a reasonable doubt (including knowledge of what that means). Further, the trial judge is not expected to deal with every conflict in the evidence, or every submission made by counsel, or even every issue raised by the two sides. But, at the same time, a trial judge ignores completely the need to wrestle with a highly relevant and substantive evidentiary issue at her own peril. To do so invites careful scrutiny on appeal.
[40] More specifically, where the case for the prosecution rests entirely or very heavily on the evidence of one witness, a failure of the trial judge to analyze important contradictions related to the evidence of that witness may very well result in appellate intervention. R. v. Vickerson, [2005] O.J. No. 2798 (C.A.), at paragraph 28.
[41] In this sense, there is a connection between insufficient reasons and an unreasonable verdict. The existence of one does not necessarily mean that the other must prevail as well. But a trial judge’s very cursory analysis (not just recital) of the evidence for the prosecution in a criminal trial may very well contribute to a reviewing court’s conclusion that the conviction is unsafe.
[42] This principle was explicitly recognized by the Supreme Court of Canada in its seminal decision in R. v. Sheppard, [2002] 1 S.C.R. 869: “where the allegation is unreasonable verdict, the absence of adequate reasons may, in some circumstances, contribute to appellate intervention” (paragraph 38).
[43] Thus, some mention of the test for sufficiency of reasons is called for. The standard is not perfection, whatever that might be. The question is not whether the reasons could have been more thorough, or could have been more clearly stated. The key consideration is whether, given the live issues at trial, the reasons disclose a logical connection between the evidence and the verdict sufficient to permit meaningful appellate review. R. v. R.E.M., [2008] 3 S.C.R. 3, at paragraph 67.
[44] Finally, it must be remembered that the learned trial Judge was dealing with a child complainant. That may impact on how this Court measures the learned trial Judge’s assessment of the evidence adduced at trial. Given the peculiar perspectives of children, the presence of inconsistencies in their evidence, for example, must be examined in context, especially those related to more peripheral matters. R. v. C.C.F., [1997] 3 S.C.R. 1183, at paragraph 48, citing R. v. W. (R.), [1992] 2 S.C.R. 122, at pages 132-134.
The Law Applied to our Facts
[45] I would not give effect to this ground of appeal. In my view, a reasonable trier of fact, properly instructed, acting judicially, could reasonably have rendered verdicts of guilty in this case.
[46] This could not be described as an overwhelming case for the Crown, however, even acknowledging the non-exhaustiveness of the actual assessment of the evidence in the Court below, I do not think that these verdicts could be characterized as being unsafe.
[47] I disagree with counsel for M.V. that the learned trial Judge failed to wrestle with the core issues in the case. The Reasons for Judgment taken as a whole, and not limited to the “Analysis” section alone, illustrate that His Honour was aware of the themes being advanced by the Defence: an inconsistent child complainant, a “coached” child, a child and a mother with reason to falsely accuse M.V. of sexual misconduct in light of the overall context including the bitter family dynamics, and so on.
[48] I agree with Ms. Henein that the learned trial Judge seems to have spent considerable time in the Reasons dealing with seemingly irrelevant issues, like delayed disclosure and the admissibility of a prior consistent statement, however, that is not fatal to the decision.
[49] I will deal below, under the next ground of appeal, with Ms. Henein’s submission that His Honour focused far too much on the issue of demeanour.
[50] I disagree with the submission made by counsel for M.V. that the actual reasoning of the learned trial Judge is “cursory”. It is, undoubtedly, not lengthy. But it is sufficient. It tells us why M.V. was found guilty of the two charges. It explains why the evidence of the child and her mother was accepted. It deals with some of the key submissions made by the Defence at trial, such as whether the child had been “coached” by her mother.
[51] I will deal below, under the third ground of appeal, with whether His Honour misapprehended the evidence and/or the position of the Defence with regard to the child’s diary.
[52] I disagree with the submission made by counsel for M.V. that the learned trial Judge’s reasoning at paragraph 71 of the decision is “circular”. Perhaps it could have been expressed in more precise language, but His Honour was clearly dealing with the submission made by the Defence about animus and a motive to fabricate on the part of the child. Relevant to that was the child’s evidence that she still loved her father and continued to want to see him.
[53] I disagree with the submission made by counsel for M.V. that the Reasons for Judgment are essentially devoid of any analysis of several major issues: the context in which the initial disclosure by the child to the adult at school occurred, the bitter family dispute, the child’s very negative feelings about her father and his new family, inconsistencies between the evidence of the child and that of her mother, the alleged improbability of the child suddenly remembering the bedroom incident while she was being interviewed by the police about the car incident, and the child’s tendency to exaggerate.
[54] Although many of those items are not discussed at all in the “Analysis” section of His Honour’s Reasons, they are dealt with in other areas of the decision. The child’s stealing from her uncle, which behaviour the child was confronted with when she made the initial disclosure to the adult person at her school, was well understood by His Honour (paragraph 15). The bitter family dispute was recognized by the learned trial Judge (paragraph 36, as just one reference). The child’s other allegations about her father being a bad person generally are referred to, though very superficially and only impliedly, at paragraph 17 of the Reasons. One of the inconsistencies between the evidence of the two Crown witnesses, that related to the diary, is addressed at paragraph 70 of the Reasons. The fact that the child only disclosed the bedroom incident during her police interview, and only after prompting from the officer, is recognized by His Honour right at the very outset of the Reasons, at paragraph 2. The alleged exaggeration on the part of the child regarding the extent of the sexual touching during the bedroom incident is dealt with at paragraph 73 of the Reasons.
[55] I agree with Ms. Henein that the learned trial Judge could have been more explicit in addressing, head-on, the alleged deficiencies in the Crown’s case. But that observation does not lead, in this case, to a finding of unreasonable verdict.
[56] For example, one might get the impression from the Reasons that this was a highly contentious family separation not unlike many others. It was more than that, however. It was war. A review of the trial transcript, starting at page 93 of Volume III, illustrates that in spades.
[57] Further, one might get the impression from the Reasons that this child had feelings of jealousy and resentment towards her father not unlike many other children in similar situations. It was more than that, however. A review of the trial transcript, starting at page 7 of Volume II, proves that point.
[58] In addition, one might get the impression from the Reasons that the evidence of the child and her mother was largely consistent but for the issue about the diary. That is not true, however. There is no dispute from the Crown before this Court that the two prosecution witnesses contradicted each other on whether the mother had ever told her daughter to disclose if her father ever put his hands between her legs, and on whether the child ever told her mother that M.V.’s fingers went inside her vagina, and on whether the mother ever warned her daughter about her father sending persons over to the school.
[59] Also, one might get the impression from the Reasons that, although the Defence was painting the child as being prone to exaggeration, that tendency was simply an allegation. It was more than that, however. The child admitted that she had exaggerated to the police when she said that M.V. had put his fingers deep inside her vagina.
[60] Finally, one might not fully understand from the Reasons the significance of the diary issue and the importance of the first police interview.
[61] On the former, it is not simply that the child testified, repeatedly, that she had written something in her diary on a date before she was alleging that the incident actually happened. She was also inconsistent on what incident she wrote about, that in the bedroom or that in the car. And, most important, when finally confronted by the Crown in re-examination with the obvious point that someone cannot write about something before it happens, the child suddenly changed her evidence completely and testified that what she wrote about in her diary was her father tickling her (page 49, Volume III of the trial transcript).
[62] On the latter, it is not simply that the child disclosed for the first time in the police interview the bedroom incident. The more important point is that the child explained that by saying that she only remembered that incident, for the very first time, during a lengthy pause well into that police interview. In other words, it is not that she delayed disclosure of it. Rather, she never had a memory of it at all until that very moment.
[63] I have considered carefully whether these shortcomings, even in their totality, push the ball over the hump and turn this into a case of unreasonable verdict. I have concluded that they do not. As such, this ground of appeal fails.
Demeanour
The Legal Principles
[64] There is no question that trial judges are entitled to consider demeanour in the overall assessment of the credibility and reliability of any given witness. That said, however, as we tell juries as part of the standard instructions, for various reasons, demeanour should not be the exclusive or even the most important factor relied upon. Watt’s Manual of Criminal Jury Instructions (Second Edition), 2015, at page 268 (Final Instruction 14 – Assessment of Evidence).
[65] Demeanour evidence can be highly suspect. Perceptions on the part of the trier of fact are almost entirely subjective. They cannot be reliably tested. They are susceptible to prejudice and stereotyping. R. v. Levert, [2001] O.J. No. 3907 (C.A.), at paragraph 27; The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, volume 2, at pages 1142 to 1150.
[66] To rely heavily on the demeanour of a witness as a ground to believe her evidence is especially dangerous where that evidence is infused with a number of significant inconsistencies, whether internal or in relation to other evidence from credible and reliable witnesses. R. v. Norman, [1993] O.J. No. 2802 (C.A.), at pages 10 and 14.
[67] This point was made very nicely in the fairly recent decision of our Court of Appeal for Ontario in R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675. We are all at risk of falling into the trap of being overconfident of our abilities to assess one’s credibility by reference to her demeanour. We have all employed fairly meaningless expressions like “ring of truth” and “had the appearance of being genuine”. At the end of the day, however, the value of some meaningful assessment of the evidence “is worth pounds of demeanour”. Rhayel, supra, at paragraph 88, citing the decision of the High Court of Australia in State Rail Authority of New South Wales v. Earthline Constructions Pty. Ltd. (1999), 160 A.L.R. 588, at paragraph 88.
The Law Applied to our Facts
[68] I would not give effect to this ground of appeal. In my view, although the learned trial Judge appears to have placed considerable weight on the demeanour of the child in choosing to accept her evidence, as exemplified through the repeated references to it in the Reasons, it does not rise to the level of reversible error.
[69] In the end, there were other cogent factors pointed to by His Honour as to why the child’s evidence was worthy of belief. Her evidence was straightforward (meaning, I assume, non-evasive) and sufficiently detailed about the two incidents of sexual touching (paragraphs 68 and 74 of the Reasons). And it withstood the scrutiny of a skilled and lengthy cross-examination in the sense that the child never resiled from any assertion necessary to proving either offence (paragraph 68).
[70] I have reflected at length on whether this Court ought to intervene on the basis that His Honour did exactly what our Court of Appeal has cautioned against in Norman and Rhayel, supra, but in the end I have determined that the learned trial Judge’s treatment of the issue of demeanour was acceptable. It was a factor, albeit certainly more than a minor one, in the overall assessment of the child’s credibility and reliability.
[71] I am unable to conclude that His Honour relied on the demeanour of the child as being the only or even the most important criterion in the decision to accept her evidence.
[72] As such, this ground of appeal fails.
Misapprehension of the Evidence
The Legal Principles
[73] A misapprehension of the evidence may take a variety of forms: failure to consider evidence relevant to a material issue, mistake as to the substance of the evidence, or a failure to give proper effect to the evidence. R. v. Morrissey, [1995] O.J. No. 639 (C.A.), at page 18.
[74] In any event, it must be demonstrated that the imputed error affected the result. R. v. Clark, [2005] 1 S.C.R. 6, at paragraph 9.
The Law Applied to our Facts
[75] I would give effect to this ground of appeal. In my view, with respect, the learned trial Judge misapprehended the evidence about the child’s diary, and that was a pivotal issue in the pathway to conviction.
[76] His Honour proceeded on the basis that the issue to be wrestled with was when the writing in the diary was destroyed in relation to when the incident in the bedroom occurred. This is clear from a review of paragraph 70 of the Reasons. That paragraph opens with the learned trial Judge referring to the sexual touching in the bedroom. Mid-way through that paragraph, which is the only part of the Reasons germane to this discussion, His Honour states that “[t]he time sequence of the destruction of the diary pages is inconsistent between mother and daughter”. His Honour then resolves the apparent conflict in the evidence as follows. First, the evidence of the mother is preferred over that of the child. Of course, the learned trial Judge was perfectly entitled to draw that preference. Next, a finding of fact is made that the child did “write in the diary that her father had touched her and that she had destroyed the entry some weeks before going to the police because she didn’t want to be reminded of it”.
[77] His Honour was obviously concerned about the diary issue. Paragraph 70 of the Reasons is a lengthy one. The learned trial Judge explicitly refers to the diary issue as being relevant to the child’s credibility. It is that singular paragraph in the entire 18 pages of Reasons where His Honour addresses whether an inconsistency in the evidence among the only two witnesses who testified at trial may cause some detraction from the credibility of the child. Seven paragraphs later in the Reasons, the trial Judge decides to accept the evidence of the child and registers convictions on both counts.
[78] Clearly, His Honour’s resolution of the diary issue affected the result.
[79] With respect, there is more than one serious problem with how the learned trial Judge dealt with the diary issue. First, it is unclear why the issue is tied to the bedroom incident. For pages and pages and pages of trial transcript, throughout virtually the entire cross-examination and almost the entire re-examination of the child, the witness testified that what she wrote in her diary was something related to the car (not the bedroom) incident. Second, the finding that the child did “write in the diary that her father had touched her and that she had destroyed the entry some weeks before going to the police because she didn’t want to be reminded of it” does not address at all two highly relevant matters.
[80] The crux of the problem had nothing to do with dates or why the child ripped the pages out of her diary. As the learned trial Judge quite properly referenced, this was a young witness. She was not expected to know exact times and dates. Nor was she expected to know how long ago the bedroom incident had occurred.
[81] But she was also not expected to persist in testifying, as she did, that she wrote about something that had not yet occurred. That is the first highly relevant matter that is not analyzed at all by the learned trial Judge. It was referred to, briefly, earlier in the Reasons, at paragraphs 23 and 28, but, as indicated above, whether it had any effect on the learned trial Judge’s assessment of the credibility and reliability of the child cannot be gleaned from that earlier portion of the Reasons. The questioning by Defence counsel at trial was clearly understandable, even to a child witness. The questioning by the Crown in re-examination was bordering on leading in an effort to rehabilitate the child and have her acknowledge that what she was saying, over and over again, could not possibly be true. Yet, according to the child, it was true. She wrote about the car incident in her diary at a time that was before it actually happened.
[82] Further, the child was not expected to, in the end, tell a somewhat exhausted Crown prosecutor in re-examination that what she wrote in her diary was something about her father having tickled her. Not the specific bedroom incident. Not the specific car incident. Something else. That is the second highly relevant point that is not addressed at all by the learned trial Judge.
[83] In summary, the learned trial Judge recognized the importance of the diary issue but misapprehended the evidence and/or what needed to be resolved, which apprehension surely affected the verdicts. For most of her trial testimony, the child’s position was that she wrote about the car incident in her diary, not the bedroom incident as referred to by His Honour at paragraph 70 of the Reasons. In addition, the dilemma was not that “[t]he time sequence of the destruction of the diary pages is inconsistent between mother and daughter”, as alluded to by the learned trial Judge, but rather that the child persisted in testifying to something that was impossible to be true and then, ultimately, changed her evidence at the last moment in what could only be described as being a significant and surprising manner. Finally, that the child did “write in the diary that her father had touched her and that she had destroyed the entry some weeks before going to the police because she didn’t want to be reminded of it” did nothing to resolve the dilemma.
[84] One final point needs to be made. The Crown who argued the appeal, Mr. Khoorshed, submitted that the learned trial Judge did not ignore the business about the diary, as reflected by a review of paragraphs 16 and 70 of the Reasons. I agree with that, however, it does little to advance the discussion of whether there was a misapprehension of the evidence. I find that there was.
Reasonable Apprehension of Bias
The Legal Principles
[85] There is no suggestion that the learned trial Judge was, in fact, biased in any way. Nor could there possibly be any such suggestion on this record. Having reviewed the trial transcripts and the decision in their entirety, I observe that the learned trial Judge conducted a fair, polite, respectful and even-handed hearing in difficult circumstances and in a highly-emotional case of alleged sexual abuse by a father against his minor daughter.
[86] The only question is whether it was erroneous for the learned trial Judge to have concluded that there was no reasonable apprehension of bias.
[87] There is a high test for a finding of reasonable apprehension of bias. The relevant inquiry is whether a reasonable person properly informed would apprehend that there was conscious or unconscious bias on the part of the trier of fact. The image of justice is what is important. Reference should be had to paragraph 66 of the decision of the Supreme Court of Canada in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259:
- Finally, when parties concede that there was no actual bias, they may be suggesting that looking for real bias is simply not the relevant inquiry. In the present case, as is most common, parties have relied on Lord Hewart C.J.’s aphorism that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259). To put it differently, in cases where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was. In that sense, the reasonable apprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconscious bias, but the manifestation of a broader preoccupation about the image of justice. As was said by Lord Goff in Gough, supra, at p. 659, “there is an overriding public interest that there should be confidence in the integrity of the administration of justice”.
[88] The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, fully informed of the circumstances, and viewing the issue realistically and practically. Reviewing courts are naturally, and rightfully, inclined against making a finding of reasonable apprehension of bias. There must be convincing evidence in existence to overcome that. R. v. R.D.S., [1997] 3 S.C.R. 484, at paragraphs 31 and 32, citing the decision of the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pages 394-395.
[89] Put another way, the strong presumption against a finding of a reasonable apprehension of bias, and the strong presumption in favour of judicial impartiality, shall not be displaced on a whim. The displacement must rest on cogent evidence. It is a high threshold, a heavy burden indeed, and for good reason. R. v. Bagot, [2000] M.J. No. 223 (C.A.), at paragraph 10; R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1 (C.A.), at paragraph 18.
[90] Lastly, I am particularly fond of, and find to be especially instructive, the comments of Justice Doherty of our Court of Appeal for Ontario in Beard Winter LLP v. Shekhdar, 2016 ONCA 493, at paragraph 18. It is imperative that justice be seen to be administered impartially. Thus, although judges should not encourage specious bias claims by stepping aside and simply yielding to unreasonable and unsubstantiated recusal demands, at the same time, a judge ought to give careful consideration to any claim that she disqualify herself and is best counselled to step aside where there is an air of reality to the claim of bias, whether actual or a reasonable apprehension thereof.
The Law Applied to our Facts
[91] This ground of appeal must succeed. Context is everything, and that includes the following.
[92] Before the first day of trial, great efforts had been made by everyone involved to ensure that the hearing would proceed before a judge not regularly presiding in Brampton, because of the child’s mother’s employment as a court reporter.
[93] Those efforts provide very strong circumstantial evidence that for any resident Brampton judge to preside over the trial would create a reasonable apprehension of bias.
[94] A review of the Information and the file contents reveals the following. In the Ontario Court of Justice, on November 13, 2015, a specific endorsement was made on the Information that an “out of town Crown” was required. The “Trial Time Estimate Form”, signed by the Crown and by the Defence and confirmed and signed by the Justice who conducted the pretrial, contains an explicit direction that an “out of town judge” is required (emphasis, underlining, in the document itself). That was, in essence, a Court order. Further, the “Certification of Trial Date Provided by Trial Coordinator”, signed by the trial coordinator and referencing the direction given by the pretrial Justice, contains an explicit reference to “out of town judge required”, with an asterisk beside that notation.
[95] Within seconds of the commencement of the trial, as reflected on page 1 of Volume I of the transcript, the Defence raised an objection to His Honour presiding over the hearing and explained why.
[96] The Crown, somewhat surprisingly in my respectful view given the documents referred to above, did not agree with the Defence objection. Rather, the Crown took the position that another judge in the building at the time should be sought-out, but if none was available, His Honour should proceed with the trial (page 4 of Volume I of the transcript).
[97] The child’s mother was then brought into the Courtroom and took the witness box. A voir dire was held. She stated that she had worked as a court reporter in Brampton for nine years, since 2007, had sat with His Honour “a handful of times” (later confirmed to have been five to seven times) between 2007 and 2010 or 2011, did not converse with His Honour other than the usual pleasantries, and that she had personally ensured in the past that she was not inside the courtroom when the case was spoken to, even for an adjournment, because of her concern about a “conflict of interest” (pages 4-9 of Volume I of the trial transcript).
[98] Then, before taking a recess, obviously somewhat troubled by the potential problem that had arisen, His Honour directed that staff contact Justice Forsyth, a visiting judge who was in the building and could presumably have been asked to take the trial. The clerk working with His Honour made a telephone call from the Courtroom. It turned out that Justice Forsyth was not going to be in Brampton on what were scheduled to be days two and three of M.V.’s trial.
[99] Ultimately, after a recess, submissions on the recusal application were made by both sides, and His Honour gave an oral decision dismissing the application. From beginning to end, including the voir dire and the submissions and the ruling, the process took 22 pages of transcript.
[100] I disagree with counsel for M.V. that the learned trial Judge failed to deal with both bias and reasonable apprehension of bias. His Honour surely did. In the end, it was decided that the court reporter was a virtual stranger to the learned trial Judge, and in those circumstances, no person reasonably informed would have any difficulty with the trial proceeding in front of His Honour (page 22 of Volume I of the transcript).
[101] Let me say a few things at the outset. First, I think that the child’s mother ought to be commended for how she testified on the voir dire. It would have been easy for her to have downplayed her own conflict of interest concerns and/or minimized her prior knowledge of His Honour. She did not do so. For that, the administration of justice is indebted to her.
[102] Second, I am certain that what drove the learned trial Judge’s decision to proceed was a genuine concern about delay. That was definitely the Crown’s concern, as evidenced from the comments at page 4 of Volume I of the transcript. The learned trial Judge’s intentions are wholly understandable, and His Honour’s freedom from any actual bias is beyond any debate.
[103] Third, I am troubled by the position taken by the Crown in the Court below (not Mr. Khoorshed). The Crown’s office had signed-off on the pretrial form that effectively mandated a visiting trial judge. The Crown anticipated an out of town trial Judge just as much as the Defence had. I find it inexplicable why all of that would fall away just because something went awry and an adjournment of days two and three of the trial might have been necessary.
[104] Of course, now, in hind-sight, it looks even worse because we know that the trial proceeded, the child testified, the court reporter mother testified, the learned trial Judge believed both of them (including the very person who was the subject of the concern, the mother), and in fact His Honour used the evidence of the mother to resolve the thorny diary issue to the benefit of the Crown.
[105] This is precisely what everyone involved, before the trial started, took great pains to avoid.
[106] In oral submissions before this Court, the Crown argued that “the only question was whether the trial Judge knew the court reporter”. I disagree. That puts the issue too narrowly. That effectively ignores the perceptions of reasonable and right-minded persons, properly informed.
[107] With some trepidation because of the very high threshold to meet on the issue of a reasonable apprehension of bias, I have determined that the decision below cannot stand. It was, with much respect for the learned trial Judge, a clear error to have dismissed the recusal application. In fact, I can see no reason for the voir dire at all. The history of the matter and the context of the proceeding ought to have been enough to give credence to what was clearly envisioned by all participants, a trial before an out of town judge, even if that meant an adjournment.
[108] To close, I return to the guidance provided by Justice Doherty in Beard Winter LLP v. Shekhdar, 2016 ONCA 493, supra. This was by no means a specious, unreasonable or unsubstantiated recusal demand made by Defence counsel at the very outset of the trial. There was not only an air of reality to the reasonable apprehension of bias claim, but that concern was legitimized throughout the various stages of the proceeding, from the arrangements made to have a visiting prosecutor handle the case, to the efforts made by the court reporter to avoid any appearance of a conflict of interest, to the pretrial directive for an out of town trial judge, to the trial coordinator’s directive for an out of town trial judge.
[109] In those circumstances, to protect the image of the justice system, to ensure that justice not only be done but be seen to be done, to promote public confidence in the administration of justice, and to respect the integrity of pretrial proceedings and pretrial orders, it was imperative, in my respectful view, for the learned trial Judge to have declined to hear the matter.
[110] I am convinced that a reasonable person properly informed of all of the circumstances would apprehend that to ignore all of the pretrial arrangements and to have the trial proceed before a resident Brampton judge who was known to the complainant’s mother, a key witness for the Crown at trial, and who had worked with her several times in the past would indeed create an atmosphere of unconscious partiality.
[111] In the result, I would give effect to this ground of appeal, and thus, the verdicts cannot stand.
III. Conclusion
[112] For all of the foregoing reasons, the appeal is allowed, the convictions are quashed, the sentences are vacated, and a new trial is ordered.
[113] This is not an appropriate case to order acquittals.
[114] I wish to thank all counsel for their helpful assistance in this difficult matter.
Conlan J.