Court File and Parties

COURT FILE NO.: CR-18-00827-00 DATE: 20181231

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN C. Sibian, for the Respondent Respondent

- and -

W.(C.) N. Gorham, for the Appellant Appellant

HEARD: November 19, 2018

RESTRICTION ON PUBLICATION By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

REASONS FOR JUDGMENT

[On appeal from the judgment of Justice P. Currie, dated September 21, 2017]

D. E. HARRIS J.

1The appellant, 37 years old, was charged and convicted of sexual assault against the complainant, a 17-year old family friend. The two knew each other through their church. He appeals from conviction.

2Counsel for the appellant argues that the trial judge committed several errors and characterizes them as either misapprehensions of evidence, inadequate reasons or unequal scrutiny of the defence witnesses versus the Crown witnesses. I intend to focus on the misapprehension branch of the appellant’s arguments.

3There were real issues with the complainant’s credibility in this case. She had given three statements to the police before trial. In the first statement, she had said there was touching over her clothes. In her second statement a month later, she changed her evidence and said the touching was under her clothes and involved digital penetration, something she had not said before. She admitted that she deliberately did not tell the police the truth in the first statement. The complainant provided an explanation for not revealing these more serious allegations previously.

4In her third statement, the complainant told the police that she and the appellant had a history of texting each other in the time before the alleged offence and that the texts were sexual. Again, she admitted in her trial evidence that she deliberately did not tell the police about this.

5With respect, the trial judge failed to appreciate that the appellant had deliberately misled the police. Furthermore, he did not refer to the complainant’s deliberate omission from the first and second statements that she and the appellant had exchanged sexual texts in the past. Lastly, with respect, the trial judge did not scrutinize with the necessary care the explanations given by the complainant for the misleading information in her statements and other questionable matters arising out of her evidence.

6In totality, the flaws and omissions in the trial judge’s reasons constituted factual misapprehensions. As they were central to the credibility of the complainant, a new trial must be ordered.

Overview of the Trial Evidence

7On June 30, 2015, the appellant was over at the complainant’s family home to meet with her brother. The time was just past noon. It was common ground that during the visit, the appellant went into the complainant’s bedroom. The complainant testified, and the trial judge found it to be true, that while in bed, the appellant held a hand over her mouth and then fondled her breasts under her sweater and touched her vagina, at one point forcing one finger into her vagina. He then left the room but returned shortly afterwards. According to her, on the second visit she was standing up out of bed. He again fondled her breasts, but this time over her clothing.

8The accused testified that he had been in her room briefly but denied any contact with her, let alone sexual contact. The trial judge rejected his evidence and convicted him, finding the complainant’s evidence to be true.

The Complainant’s Three Statements

9The complainant gave three statements to the police: July 5, 2015 (about a week after the alleged offence), a month later on August 6, 2015 and in May, 2016. In the first statement, the complainant said that the appellant held his hand over her mouth and then touched her on her breasts and vagina over her clothes. When specifically asked whether he went under the clothes, the complainant said he had not. According to her, the appellant left but then returned briefly. He looked into her room and then left again. He did not touch her on this second occasion.

10The second statement was given a month after the first one. The appellant had been charged with sexual assault in the interim. In the second statement, the complainant changed two key aspects of her first statement: 1. The touching on the first visit was not over the clothing but rather was under the clothing and included digital penetration; 2 The second time the appellant came into her room, contrary to what she said in her first statement, he again sexual assaulted her but this time over her clothing.

11At trial, the complainant testified in cross-examination that she deliberately withheld information from her first statement because she was reluctant to have the appellant charged. Indeed, the first statement is replete with evidence of this reluctance. She says in the statement that the appellant needs help, not jail and that there is a lot of good in him. She also said that the appellant’s wife is a fragile person and she could be deeply affected. The complainant also expresses in her statement that she was concerned about the matter being made public. She was concerned with her name being “out there.” The complainant also said in the statement that she expected the appellant to apologize to her.

12The complainant approached the police and made the second statement a month after the first. In the second statement, she said that she was unsure originally whether to “press charges” because she was worried about the appellant’s wife. But now she needed to do it for herself. She had been having flashbacks and was crying at night. She then went through the allegations, now saying the touching was under the clothing and included digital penetration. Also, when he came back in the room, he did in fact touch her. He sexually assaulted her by touching her breasts but over her clothing this time. When asked by the police officer whether she was leaving anything out, she said that she was not. She then said that after the incident, he messaged her on Facebook, asking her not to be mad at him. When asked why she was raising this for the first time, she said that she figured the police would want his Facebook from her and it would prolong and “grow” things. She did not want this.

13The officer pressed further why the second statement was different than the first. The complainant said she was waiting for an apology from the appellant or even something from his wife. She elaborated,

But they don’t care I guess. So I figured if they don’t care about how I’m feeling, or how I’m doing why should I care about if [sic] whatever happens, happens.

14The third statement given in May 2016, 9 months after the second statement, emerged during the complainant’s cross-examination. Some text messages sent well before the alleged offence between the two had been restored inadvertently to her phone. They revealed sexualized messaging on both sides of the text conversation. Furthermore, the complainant agreed in her evidence that she had sent nude pictures of herself to the appellant. She agreed that she had a previous “sexualized” relationship with the appellant. At trial, she said that she revealed these text messages because she did not want the appellant to “get the upper hand at trial.”

15After she had agreed in cross-examination that she did not mention the sexual texting in her second statement, the complainant asserted that after the video recording had been turned off, she had told the officer-in-charge off-camera about the sexualized aspect of her relationship with the appellant. There was no other evidence that she had actually told the officer. The officer was never called to confirm such a statement was made. There was every possibility that the complainant added this in her testimony as a means to rehabilitate her credibility.

The Trial Judge’s Reasons

16After reviewing some of the evidence, the trial judge recognized that the complainant’s first and second statements were in conflict, saying:

Mr. Erskine [defence counsel] … argues that Ms. G.’s statements to the police are incompatible. They certainly are different in that in the July statement to the investigating officer, Ms. G. is very reticent to discuss what happened with you and her with the police. And in the August statement she provides further details to the officer-in-charge about what transpired.

In some cases where there are contradictions in previous statements, that is a red flag to one’s credibility. In this case, however, I do not find those contradictions to be difficult to understand.

Ms. G. had concerns certainly about your wife who she had known for some time. Also, she had concerns about you. She expressed those to the investigating officer on the first statement. She in fact said words to the affect [sic] of that, “There is a lot of good in you,” and she does not want to see, “this get in the way of what good there is in you.” She expressed to the officer on the first interview that she expected you to come and apologize to her and then that something, some arrangement would be made. She was adamant in that first statement that she did not wish to proceed with charges.

A month later, she returned to the investigating officer and she described to the officer what she had been going through in terms of memories, crying at night, that she had essentially been holding back in relation to this incident out of concern for you. And that she had now realized that she had to look after herself. Her explanation for the extra detail provided in the second statement to me has what is sometimes referred to as the ring of truth. It makes sense. I believe her.

(Emphasis Added)

17This completed the trial judge’s analysis of the complainant’s evidence.

Misapprehension of Evidence

18The leading case concerning misapprehension of evidence is Justice Doherty’s decision in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, 22 O.R. (3d) 514 (Ont. C.A.) adopted by the Supreme Court in R. v. Lohrer 2004 SCC 80, [2004] 3 S.C.R. 732 and in R. v. Sinclair 2011 SCC, 2011 SCC 40 , [2011] S.C.J. No. 40. Justice Doherty said:

83 A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.

93 Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict.

19The misapprehensions in this instance concerned the complainant’s falsehoods to the police and the explanations she gave for them. There are five areas in total. Some are more important than others. It is their cumulative weight which is the major concern.

1. The Trial Judge Failed to Appreciate that the Complainant had Lied in her Initial Police Statement

20The trial judge said in his reasons that some cases exhibit “contradictions” in previous statements and that these are “red flags” to credibility at trial. In referring to the second statement, he said that the complainant added “further details” or “extra detail” to the first statement. The trial judge went on to say that the contradictions between the first and second statement were adequately explained by the initial reluctance of the complainant to harm the accused and his wife.

21With respect, the trial judge misapprehended the evidence and failed to give proper effect to it. Contradictions in the form of prior inconsistent statements occur routinely in criminal trials. The evidence in this case went much further. Initially, the complainant said in-chief that both the first and second statements were true. Under cross-examination, however, she said that she deliberately altered the true facts in her first statement. The change concerned the nature of the sexual touching itself. The touching was under, not over the clothes, and the second time the accused came in the room, he fondled her again. Originally, she had said that the second time he just looked in and did not touch her.

22In the first statement, the police officer after hearing the allegation of touching over the clothes, specifically asked the complainant whether there was touching under the clothes. The complainant denied that there was touching under the clothes. This false denial did serious harm to her credibility.

23These were not minor nuances. And they impacted directly on the gravamen of the sexual assault allegations. The trial judge mistook the effect of the evidence in his reasons for judgment. He referred to the second statement as providing “further or “extra” details. This was an erroneous characterization. It was not a matter of filling in details which had been previously omitted. Nothing was added; the complainant’s evidence was materially altered.

24There is a major distinction between a prior inconsistent statement and a deliberate, calculated lie. In jury cases, judges routinely instruct that inconsistencies can be explained by any number of circumstances but where the inconsistency involves a witness deliberately lying about a material fact, this can lead to the total rejection of the witness’ evidence. Judicial experience over many years demonstrates the importance of lies in prior statements.

25There is precedent for finding that a trial judge’s mishandling of prior inconsistent statements in a complainant’s evidence can lead to reversible error. Justice Galligan said in R. v. G. (M.), 1994 CarswellOnt 181, [1994] O.J. No. 2086 (C.A.), leave refused [1994] S.C.C.A. No. 390,

23 Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

29 There was virtually no support for the complainant’s testimony. There was a very material inconsistency between what she said in her testimony and what she said in her letter. Notwithstanding that inconsistency it was, of course, open to the trial judge to accept her testimony and convict the appellant. However, that inconsistency had to be properly assessed along with all other relevant factors including her demeanour in the witness box in deciding whether her evidence would be accepted. It is my opinion that the trial judge’s reasons demonstrate that he failed to grasp the importance of that inconsistency when assessing the complainant’s credibility.

26Also see R. v. M. (A.), 2014 ONCA 769, [2014] 123 O.R. (3d) 536, at paras. 18-21, R. v. B. (R.W.) 1993 CarswellBC 943, [1993] B.C.W.L.D. 1158 (B.C.C.A.), at pp. 9-10.

27Viewed together with the other misapprehensions to be discussed below, there is a legitimate concern the trial judge did not give effect to the complainant’s change in her evidence from statement one to statement two.

2. The Trial Judge Misapprehended the Complainant’s Explanation for Misleading the Police

28The complainant testified that she was trying to protect the appellant and his wife and did not want to “press charges.” This was the stated reason in her second statement and on the witness stand for altering the true allegations in her initial statement. Flashbacks and her emotional upset led the complainant to reveal everything in the second statement. This was the explanation which the trial judge accepted and was the lynchpin of his reasons finding her credible.

29There were two problems with this. First, the fact remained, the initial statement contained a serious allegation of sexual assault. Although the second version alleged a more serious assault than the first, the premise that she was withholding vital detail so the appellant would not be charged is tenuous. Both versions described sexual assaults by a much older person in a position of trust. It strained credulity to think that the initial version might not lead to criminal charges. The trial judge ought not to have permitted this explanation to resolve the credibility issue on its own.

30Second, the more serious allegations in the second statement were not only a result of her looking after herself as the trial judge said. The complainant said that she came forward a second time because the appellant and his wife had not apologized as expected. This was a reason potentially damaging to the complainant’s credibility. There was a vindictive tone to it. Counsel for the defence argued this aspect in his closing submissions. The trial judge did not address this additional motive in his reasons. With respect, he should have done so.

3. The Trial Judge Failed to Appreciate that the Complainant Admitted Lying in Her Second Statement

31The complainant not only misled the police in the first statement with respect to the gravamen of the assault. In cross-examination at trial, she also admitted deliberately not telling the police anything about the sexual texting relationship with the appellant in the first and second statements. The police officer, during the second statement, because she had altered her evidence in a fundamental way from what she had said in the first statement, asked the complainant pointedly whether she was leaving anything out. Despite this specific question, she did not mention the sexual texting or the sending of naked pictures of herself. She was clear in her evidence at trial that this was not a slip or a memory lapse but a calculated decision on her part.

32There was not one falsehood to the police but two. With respect, the trial judge did not appear to appreciate the full import of the first falsehood and made no reference to the second one at all. He failed to factor this into his reasons examining the complainant’s evidence.

33Furthermore, the complainant’s evidence in cross-examination claiming that she had told the officer-in-charge after the videotape was turned off about the sexualized texting was extremely unlikely to have been true. It was reasonably clear that this was a last moment justification to ward off questions about her credibility. The trial judge ought to have considered it in his reasons.

4. The Trial Judge Did Not Examine the Complainant’s Explanation for Not Revealing the Text Messages

34The complainant’s explanation for revealing the text messages at the time of the third statement was to prevent the appellant from “having the upper hand” at trial. This motive was potentially harmful to her credibility. The trial judge made no reference to this in his reasons, despite defence counsel’s argument in submissions that this impacted the complainant’s credibility.

5. The Trial Judge’s “Ring of Truth” Comment Added Little of Substance

35I do not believe the trial judge intended to add anything of substance by saying that the complainant’s explanation for the second statement falsehood had a “ring of truth” to it. This was more of a conclusion than it was a reason. It was a summary of the trial judge’s intuitive sense that the complainant’s explanation was credible. Given the problems with the complainant’s evidence, this generic, rote conclusion was inadequate to deal with the problems in the complainant’s evidence.

Conclusion

36With respect to a very experienced trial judge, there was no clear recognition that the complainant deliberately misled the police twice: Once with respect to the very gravamen of the offence and the other time with respect to her relationship with the appellant. The explanations given were that she did not originally want him charged and he did not apologize to her as she had expected. In reference to the deliberate omission of the sexual texting relationship, the complainant said that she told the police off camera after the completion of her videotaped statement. The trial judge only addressed the first of these explanations and not in any depth. The other two explanations were left unexamined. In light of the complainant’s admitted falsehoods, the trial judge could not fail to examine and work through these explanations.

37In order to convict, the trial judge had to be convinced in the context of all of the evidence that the complainant’s evidence was true beyond a reasonable doubt. When a trial judge does not recognize the prominent frailties of the complainant’s evidence and does not address or grapple with them, a misapprehension of evidence has occurred: see R. v. Wirkkunen, 2015 ONCA 140, [2015] O.J. No. 986, at para. 9, R. v. Hurley [2006] O.J. No. 4338, 40 M.V.R. (5th) 61 (C.A.), at para. 5.

38In both Wirkkunen and Hurley, the Court of Appeal was of the opinion that the trial judge’s failure to advert to or resolve a basic conflict in the evidence was a fatal misapprehension. The same is true in this instance.

39In this appeal, some of the misapprehensions were in the nature of omissions. It could be argued that the experienced trial judge was presumed to be aware of the evidence and issues and, therefore, the omissions did not indicate a lack of attention or understanding.

40This ought not to be accepted. The words of Justice Binnie in R. v. Sheppard 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55 are germane:

While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.

41See also R. v. M. (R.E.) 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 47, R. c. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 2.

42Alternatively, besides constituting misapprehensions, the trial judge’s omissions could be characterized as a failure to articulate the pathway through the evidence to his acceptance of the complainant’s testimony: see Sheppard, (R.E.) and Dinardo. The leading cases emphasize the trial judge’s obligation to provide reasons especially where the Crown evidence is contradictory or confused: Sheppard, at para. 55, Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101, R. v. M. (R.E.), at para. 44, Dinardo, at para. 27. Even where the issue is credibility, a subject to which particular deference to a trial judge is due, “[n]on-existent or inadequate reasons with respect to credibility may justify appellate intervention.” R. v. Braich 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23, also see R. v. M. (A.), at paras. 18-21.

43In this case, there were clear contradictions in the complainant’s evidence on matters of major importance. The trial judge was required to lay bare in some detail his reasons for accepting the complainant’s evidence. The trial judge’s reasons, with respect, did not live up to the required standard. The situation is analogous to that in Dinardo where Justice Charron said (at para. 27),

…it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant’s testimony on the issue of whether she invented the allegations. I also conclude that the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal.

44It is true that this was not an insubstantial case for the Crown. The text message from the appellant to the complainant hours after the alleged offence asking her not to be mad at him was a problem for the defence. The appellant gave an explanation to meet this evidence but it was arguably not a plausible explanation.

45Be that as it may, there were material misapprehensions with respect to the complainant’s evidence, step 3 of the W.(D.) three-step formulation. The misapprehensions identified went directly to the complainant’s credibility. The effect was to distort the reasoning leading to the appellant’s conviction. The strength of the Crown’s case, although relevant, does not detract from the fundamental nature, viewed cumulatively, of the misapprehensions.

46It follows that the conviction cannot stand. The appeal will be allowed and a new trial ordered. I would hold this judgment and the order for a new trial in abeyance until January 15, 2019 to allow the appellant time to enter into a recognizance pending his new trial. The old recognizance will remain in effect until the new recognizance is signed. Arrangements to speak to me or another judge with reference to bail can be made through the trial co-ordinator.