Court File and Parties
COURT FILE NO.: CR-23-00101585-00AP DATE: 2024/02/16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: M.J. Appellant – and – His Majesty the King Respondent
Counsel: Eric Uhlmann, for the Appellant Anthony Gallo, for the Respondent
HEARD: January 5, 2024
Corrected Decision: The original Reasons For Judgment were released on February 16, 2024. The corrections were made on February 22, 2024. The reference to “Jxxxxxx v. HMTK” in the Citation on page 1 and the back sheet have now been Corrected to read “R. v. M.J.”. In addition, the reference to COURT FILE NO.: “CR-20-9896” on page 1 and the back sheet have been corrected to read “CR-23-00101585-00AP”. The reference to “Mxxxxxx J.xxxxxx” in paragraph 1 on page 1, paragraph 53 on page 9 and the back sheet have now been corrected to read “M.J.”, in addition to which the references to “Mr. Jxxxxxx” in paragraph 4 on page 2 and paragraph 50 on page 9 have been corrected to read “Mr. J.”
[1] The Appellant, M.J, appeals from his conviction on one count of sexual assault and one count of sexual interference by Justice Katzch in the Ontario Court of Justice. The Appellant also appeals the 15-month custodial sentence.
[2] For the reasons that follow, the appeal is dismissed.
Trial Decision
[3] The Appellant was charged with sexual assault contrary to section 271 of the Criminal Code and sexual interference contrary to section 151 of the Criminal Code in relation to an incident that occurred sometime between June 15, 2020 and July 3, 2020. The incident involved the Appellant touching his then 11-year-old stepdaughter in the middle of the night in her bedroom while highly intoxicated.
[4] The Crown called only one witness – the complainant, A.K. The defence called the complainant’s mother, P.M., and the Appellant, Mr. J..
[5] A.K. was 13 years old at the time of trial. She adopted both of her police statements as her evidence-in-chief. Defence counsel consented to both statements being played for the court and adopted by the complainant. In addition to having A.K. adopt her video statements, the Crown lead A.K. through some viva voce evidence-in-chief.
[6] A.K.’s evidence was that her stepfather, the Appellant, entered her room in the middle of the night and turned on the lights. The Appellant went to one corner of A.K.’s bedroom and urinated on a pile of clothes. A.K. woke up when the Appellant turned on the lights and watched him as he urinated. The Appellant then proceeded to lie down on the bed beside A.K., placed his hand on her vagina over top of her clothing and moved it in a circular motion. The touching was very brief, a few seconds, and then A.K. got out of bed and went to her mother’s room.
[7] P.M., A.K’s mother, testified and largely corroborated her daughter’s story about the night of the incident. P.M.’s evidence was that A.K. came into her room in the middle of the night to advise that the Appellant had entered A.K.’s room, laid on the bed and put his arm around her. P.M. indicated that her daughter did not disclose all of the details of the touching that occurred on the night of the incident. It was not until approximately six (6) weeks later after speaking with a child protection worker that A.K. disclosed the totality of the allegations, including the sexual nature of the touching.
[8] The Appellant testified on his own behalf. He acknowledged having consumed approximately five (5) to six (6) beers on the night of the incident. The Appellant conceded that he does not recall entering A.K.’s room that night, nor urinating on the floor. His only memory was waking up in the bathroom and then returning to his own bedroom to find A.K. in bed with her mother.
[9] The trial judge rejected the Appellant’s evidence as unreliable and incredible. She found that the Appellant’s evidence did not raise a reasonable doubt.
[10] The trial judge then went on to accept the evidence of A.K. She found that any inconsistencies in A.K.’s testimony were minor in nature and did not detract from the reliability and credibility of A.K.’s evidence. The trial judge found that the Appellant deliberately placed his hand on A.K. in the manner she described and specifically rejected the suggestion that the Appellant’s actions were accidental or inadvertent.
[11] The trial judge indicated in her reasons for judgment that she was convinced beyond a reasonable doubt of the guilt of the Appellant and found him guilty on both counts.
Sentencing Decision
[12] The positions of the Crown and the defence as to sentence were very far apart. The Crown was seeking a sentence of two years less a day plus three years probation. The Defence argued that an intermittent sentence would be appropriate followed by a shorter period of probation than the Crown was seeking. The trial judge ultimately imposed a sentence of 15 months jail followed by two years probation.
[13] The trial judge reviewed all of the aggravating and mitigating factors. She noted that the Appellant had no previous criminal record, was employed and had family support. The trial judge considered that the Appellant was A.K.’s stepfather at the time of the sexual assault and found that the Appellant was a person in a position of trust.
[14] In reviewing the aggravating factors, the trial judge spent some time considering how excessive alcohol consumption should be considered in determining the Appellant’s moral culpability. She ultimately found that consumption of alcohol is a choice the Appellant made and found that he is morally and legally responsible for his actions even while in a highly intoxicated state.
[15] The trial judge considered the impact on A.K. as set out in the victim impact statement filed. Referencing the Supreme Court of Canada’s decision in R. v. Friesen, 2020 SCC 9, the trial judge rejected the defence position of an intermittent sentence as inadequate considering the aggravating circumstances and the impact on A.K.
Grounds of Appeal
[16] The Amended Notice of Appeal sets out four (4) grounds of appeal from conviction:
- The trial judge engaged in uneven scrutiny of the evidence.
- The trial judge materially misapprehended the evidence.
- The trial judge did not instruct herself on the meaning of beyond a reasonable doubt, which in combination with grounds 1 and 2 constitutes a reviewable error.
- The trial judge’s verdict was unreasonable in light of her comment about the Appellant possibly being confused about what room he was in towards the end of her reasons for judgment.
[17] The Appellant’s Supplementary Notice of Appeal cites a ground of appeal in the alternative that if the appeal against conviction is unsuccessful the sentence imposed was demonstrably unfit.
Analysis
Uneven scrutiny of the evidence
[18] The Appellant relies on the Court of Appeal’s decision in R. v. Kiss, 2018 ONCA 184 in arguing that the trial judge engaged in uneven scrutiny of the evidence of the complainant and the Appellant. The Appellant argued that the trial judge dismissed inconsistencies in A.K.’s evidence as minor in nature after finding that inconsistencies in the Appellant’s evidence resulted in a finding that his evidence was unreliable, not credible and incapable of raising a reasonable doubt.
[19] At paragraph 83 of the decision in Kiss, the Court notes that uneven scrutiny of the evidence is a notoriously difficult ground of appeal. In four (4) subsequent judgments, the Court of Appeal has distinguished Kiss on factual grounds, rejecting the argument of uneven scrutiny.
[20] In recently released decision, R. v. B.C.M., 2024 ONCA 116, the Court of Appeal again reiterated, referencing R. v. Radcliffe, 2017 ONCA 176, that uneven scrutiny is a difficult argument to make successfully because credibility findings are the province of the trial judge and attract significant appellate deference. The Court went on to quote Watt J.A.’s explanation in Radcliffe that “appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinations and to re-try the case on an arid, printed record”.
[21] That is exactly the case here. The Appellant is inviting me to re-try the case and re-assess the evidence, which is not my role as an appellate court.
[22] In reviewing the trial judge’s decision, in the context of the submissions, it is clear that she was alive to the inconsistencies in A.K.’s evidence and determined that they did not detract from her overall credibility and reliability. It was within the province of the trial judge to make the determination about whether the inconsistencies in A.K.’s evidence were material and/or impacted her credibility. The trial judge explained her reasons for accepting A.K.’s evidence and those findings are supported by the evidentiary record.
[23] Consequently, this ground of appeal fails.
Material Misapprehension of the Evidence
[24] The second ground of appeal is based on the trial judge having noted that A.K. agreed in cross-examination that the Appellant “flopped” on her bed and concurrently touched her vagina, recognizing that this concession was inconsistent with an earlier statement of A.K. The Appellant argues that despite this inconsistency the trial judge then relied on an earlier version of A.K.’s evidence and dismissed the Appellant’s argument that the touching could have been accidental. In so doing, the Appellant argues that the trial judge erred by materially misapprehending the evidence.
[25] The standard to be met on an argument of material misapprehension of the evidence was set out by the Court of Appeal in R. v. Cloutier, 2011 ONCA 3005:
To set aside a conviction on the basis that the trial judge misapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge’s reasoning and the alleged error must play an essential part in the reasoning process, not just of the narrative. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error.
[26] A review of the transcript of A.K.’s cross-examination reveals that there was no material misapprehension of the evidence by the trial judge.
[27] Although A.K. agreed during cross-examination that the manner in which the Appellant laid down on her bed the night of the incident could be described as him having “flopped” down, it was also specifically put to A.K. that the Appellant’s hand did not make a circular motion, which suggestion A.K. did not agree with. Defence counsel at trial put to A.K. during cross-examination that the Appellant’s hand never actually touched right on her vagina. A.K. rejected that suggestion when put to her.
[28] The argument that A.K.’s concession that the Appellant flopped down on the bed supports a conclusion that the touching was accidental was rejected by the trial judge. She specifically considered the previous statements of A.K. to the police and her evidence in court, wherein A.K. described the Appellant placing his hand on her vagina and moving it around in a circular motion in ultimately rejecting the defence argument.
[29] The trial judge did not misstate A.K.’s evidence. It was open to the trial judge to conclude, as she did here, that the concession of A.K. during cross-examination that the Appellant flopped on the bed, considered in the context of A.K.’s evidence as a whole, did not support a conclusion that the touching was accidental. There was no misapprehension or inaccuracy in the trial judge’s recitation of A.K.’s evidence.
[30] Therefore, this ground of appeal also fails.
Failure to recite instructions on beyond a reasonable doubt
[31] There is no specific way that a trial judge must state the meaning of beyond a reasonable doubt. The trial judge was not required to specifically state the W.D. test, nor recite the instructions suggested by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320 regarding what constitutes a reasonable doubt.
[32] The very structure of the trial judge’s reasons for judgement demonstrate that she was engaging in the W.D. analysis and considering whether the Crown has proven the case beyond a reasonable doubt.
[33] The trial judge’s analysis commences with a consideration of the defence evidence – the first stage of W.D. She rejects the evidence of the Appellant finding that his evidence was neither credible nor reliable. The trial judge further finds that the Appellant’s evidence does not raise a reasonable doubt, the second stage of W.D.
[34] After having rejected the evidence of the Appellant, the trial judge then considered the Crown’s evidence. The trial judge finds that A.K.’s evidence was both credible and reliable. She made specific reference to the theories and arguments put forward by the defence. The trial judge considered the Crown’s case in light of the strengths and weaknesses pointed out by defence counsel. Having weighed all the evidence and made specific findings of fact about whether the touching described by A.K. was deliberate and intentional, the trial judge concludes that she is not left with a reasonable doubt.
[35] Even broadly reading this ground of appeal as an argument that the trial judge improperly applied the standard of proof when considering the uneven scrutiny and material misapprehension of evidence arguments, the ground still fails. The reasons for judgment must be ready in their totality. There is nothing in the judgment that even suggests that the trial judge is applying any standard other than proof beyond a reasonable doubt or that there was an improper shifting of the burden of proof.
[36] This ground of appeal also fails.
Unreasonable verdict
[37] The last argument of the Appellant is that the trial judge’s remark towards the end of her reasons for judgment indicating that the Appellant could have been confused about what room he was in, without further analysis and on the balance of the evidence, is impossible to reconcile with proof beyond a reasonable doubt. As a result, the Appellant argues, the trial judge entered an unreasonable verdict.
[38] The impugned comment by the trial judge follows a finding that the touching was “consistent with a deliberate intention by the accused.” Although the comment being made towards the end of the reasons for judgment is awkwardly positioned in her analysis, that comment alone does not result in an unreasonable verdict. The trial judge’s reasons must be viewed in their totality. Single comments are not to be parsed out and analyzed in isolation.
[39] Earlier in her reasons for judgment, the trial judge specifically references the concession that drunkenness akin to a state of automatism was not being raised as a defence. Defence counsel had conceded at the outset of trial that such a defence was not available on the facts of this case. The issue being raised, which was considered by the trial judge, was that the Appellant’s state of intoxication may have contributed to a fall on the bed and an accidental touching. That proposition was specifically rejected by the trial judge. On the evidence before her, that rejection was available and reasonable.
[40] The comment relied on in this ground of appeal must not be taken out of context. The trial judge specifically notes that “all parties agree that drunkenness is not a viable defence in this case.” The argument that the Appellant was so drunk he was confused about what bed or room he was in was not even raised by defence counsel during submissions. Defence counsel specifically indicated that he was not submitting that the Court should draw an inference that his client was so drunk that he did not really know or understand who he was touching.
[41] I think it also important to note that defence counsel during closing submissions explicitly conceded that the touching took place. The only issue was whether the touching was intentional or unintentional. Defence counsel stated during argument that if the court found that the Appellant “intended to put his hand on her vaginal area, whether he was drunk or not, […] then he would be guilty of the offence.”
[42] Read in the context of the judgment as a whole, the trial judge referring to a possibility of the Appellant being drunk and confused about what room he was in does not render her verdict unreasonable. Therefore, this ground of appeal also fails.
Sentence imposed
[43] In order for the trial judge’s sentence to be overturned on appeal, I must find that the sentence is demonstrably unfit. The facts of this case do not support such a finding.
[44] The trial judge gave clear and cogent reasons as to the aggravating circumstances in this case and the increased moral blameworthiness of the Appellant. These findings are owed deference. The trial judge was best positioned to make findings of facts about the aggravating and mitigating circumstances, as well as the impact that this crime had on A.K.
[45] There is no merit to the argument that the trial judge found that R. v. M.M., 2022 ONCA 441 was an analogous case and imposed a similar sentence accordingly. The trial judge references M.M. for general principles in the same way she referenced Friesen and R. v. Inksetter, 2018 ONCA 474.
[46] The Appellant’s argument that the sentence imposed by the trial judge is unprecedented and therefore demonstrably unfit also has no merit. The case most heavily relied upon by the Appellant, R. v. Plehanov, 2020 BCCA 249, from the British Columbia Court of Appeal is distinguishable on the facts. At paragraph 50 of that decision, the court notes that the trial judge “acknowledged that the position of trust was limited in scope and duration. It would thus fall at the lower end of the spectrum discussed in Friesen.”
[47] Arguing that a sentence being “unprecedented” means that it is demonstrably unfit ignores the clear direction from the Supreme Court of Canada in Friesen – sentences for sexual offences against children must increase. The trial judge not referencing a specific case as her authority for imposing a sentence in the upper reformatory range does not make the sentence unfit.
[48] It is also incorrect to indicate that a 15-month custodial sentence for a first-time offender is so far out of the range as to be demonstrably unfit.
[49] Goldstein, J. in R. v. R.A., 2022 ONSC 1161 imposed a penitentiary sentence of two (2) years on a man with no prior criminal record. The Appellant argues that the facts in R.A. are so distinguishable as to make that case unhelpful. I disagree. There are some additional aggravating factors present in R.A., specifically that the touching happened on more than one occasion and was more invasive insofar as there was digital penetration, but it is otherwise factually similar. R.A. was the step-father of the complainant. He was found to be in a position of trust. There was no evidence of ongoing grooming. The incident involving digital penetration was of short duration – estimated by the victim as lasting for ten (10) seconds. The factual differences account for difference in the custodial portion of the sentence – low penitentiary rather than upper reformatory.
[50] In R. v. J.(T.), 2021 ONCA 392, the Court of Appeal overturned a nine-month sentence as demonstrably unfit and failing to recognize the inherent wrongfulness and harm caused by the accused’s conduct. The Court of Appeal substituted a sentence of 24 months imprisonment. In that case, the accused had no prior criminal record, had a history of substance use for which he had attended counselling, had been on bail for three years without incident, had a lengthy employment history, and was found to be a devoted father and supportive ex-spouse. The conviction arose out of an incident wherein the accused had directed the victim who was 6 or 7 years old at the time into the bathroom and took the girl’s hand and rubbed his penis, telling her “this is how you do it”. The accused was not a parent to the victim but was found to be a person in a position of trust. This case also has more aggravating facts than what Mr. J. was found guilty of, however, that would account for the difference in the sentences imposed – 24 months rather than 15 months.
[51] In the Appellant’s case, the trial judge balanced the need for denunciation and deterrence against the principles of restraint, considered his prospects for rehabilitation, and imposed a sentence that was less than what the Crown was seeking. In my view, the sentence is not demonstrably unfit and the trial judge’s decision is therefore entitled to deference.
Conclusion
[52] The appeal against conviction and sentence is dismissed.
[53] M.J. shall surrender himself into custody by 4:00 p.m. on February 20, 2024. He is to be credited for 3 days spent in custody prior to receiving bail pending appeal towards his sentence.
A.D. Hilliard Released: February 16, 2024
