COURT OF APPEAL FOR ONTARIO
DATE: 20001023
DOCKET: C31661
DOHERTY, CHARRON and MacPHERSON JJ.A.
BETWEEN: )
) Frank Addario,
HER MAJESTY THE QUEEN ) for the appellant
Respondent )
- and - ) Alison Hurst,
) for the respondent
S. E. )
Appellant )
) Heard: September 15, 2000
On appeal from his conviction by Mr. Justice Gordon G. Nicholls on January 17, 1999 and from the sentence imposed on February 5, 1999.
CHARRON J.A.:
I. Overview
[1] Following a trial before a judge sitting without a jury, the appellant was convicted of one count of sexual assault and one count of touching a person under the age of 14 years for a sexual purpose, contrary to ss. 271(1) and 151 of the Criminal Code. The appellant was sentenced to a period of imprisonment of three and one-half years. He appeals against conviction and seeks leave to appeal his sentence.
[2] Both counts relate to one alleged incident of forced sexual intercourse on a 12 year old girl. At the time of the incident, the appellant was a 25 year old friend of the family. The complainant had a crush on the appellant and fantasized that she had an ongoing intimate relationship with him. This was evidenced in letters and notes written by the complainant, some of which were exchanged with girlfriends, others addressed to the appellant but none of them sent to the appellant. The alleged incident which forms the subject-matter of the charge came to light when the complainant’s mother discovered these writings and confronted her with them. The complainant told her mother “it’s not what you think”. The mother testified that she did not discuss the matter further with her daughter but that she immediately brought her to the police station to relate what happened. It is as a result of that complaint that these charges were laid.
[3] The appellant testified at trial and denied that there had been any incident of sexual intercourse as alleged. The position of the defence was that the complaint was entirely fabricated to explain the contents of the writings which were themselves admittedly the creation of a young girl’s fantasy.
[4] These rather unusual circumstances gave rise to serious issues of credibility. Following a trial, the trial judge accepted the complainant’s testimony, rejected that of the appellant and convicted him.
[5] The appellant submits that the trial judge made several errors in the course of his analysis of the evidence and the credibility of the complainant. While I do not accept every submission made by the appellant in support of this contention, I do agree that the trial judge did fall into error and that the cumulative effect of those errors necessitates a new trial. In light of the fact that there will be a new trial, I will review only those facts relevant to the grounds of appeal that were raised.
II. The Evidence
[6] The complainant was 12 years old at the time of the alleged incident in May 1997. She lived in a two-story house with her mother, stepfather and two young brothers. The appellant had met the complainant’s mother a few months previously through a citizen band radio communications and had become a regular visitor in the home. On the evening in question, a Saturday night, the mother and stepfather left the home at one point, leaving the appellant behind with the three children for a few hours.
[7] The complainant testified that sometime after her parents had gone she was sexually assaulted in her upstairs bunk bed by the appellant who woke her, kissed and fondled her, and performed sexual intercourse while she resisted physically and verbally. She stated that the appellant inserted his penis in her vagina and kept moving back and forth. Although she knew what ejaculation was, she was not sure if he had ejaculated. She described the intercourse as painful. In giving her testimony, she related her concern about sexually transmitted diseases and pregnancy and further said that the appellant had told her that he could not have children because of a bike accident.
[8] The complainant testified that later in the night, she went downstairs to get a drink of water. The appellant was still there. She further alleged that as she was going back up the stairs, the appellant grabbed her by the arm, undid the top of her pajamas and started kissing her again. The complainant stated that her stepfather walked in at that point. She wrapped herself in a blanket and sat on the couch. A minute or two after, her mother came in as she was starting to go upstairs. She was later confronted by her mother who called her downstairs to ask why she was still up. She did not talk about what had happened to anyone that evening.
[9] The complainant made a statement to her closest friend on the following Monday at school. The friend testified for the Crown at trial. The account given to the friend had some significantly different features from the complainant’s trial testimony. The complainant had allegedly told her friend that she was talking with the appellant downstairs when he started kissing her and then carried her upstairs where they had sex on the top bunk in her bedroom. She stated that “she wasn’t sure why or if she had wanted it to happen but that it did.” The complainant was cross-examined on this statement and stated that she may have been talking about something else but that the incident had not happened that way.
[10] The complainant’s mother testified on her recollection of the events of the evening in question. In particular, she testified that when she came back home, the complainant was sitting on the couch wrapped up in a blanket. When asked why she was downstairs she stated she had gotten a drink of water and, realizing that the appellant was there, she sat down to talk to him and listen to the radio. The mother testified that the complainant's face was flushed and that she looked as if she had been crying. When asked what was wrong, she was evasive, which was unusual for her. The mother also testified about the discovery of the notes some two months later, the confrontation with the daughter and the consequent complaint to the police as noted earlier in the overview.
[11] A medical report was filed at trial on consent of the parties. The report was authored by a pediatrician who examined the complainant August 13, 1997 (some two months after the alleged incident) “because of allegations of sexual abuse”. The report states that upon examination of the genitalia there was “a prominent intravaginal ridge” but that “otherwise the hymen was normal”. The pediatrician concludes that the “physical examination was entirely within normal limits, and neither confirms nor denies the allegations of sexual abuse”.
[12] As indicated earlier, the appellant testified in his defence and denied any relationship with the complainant and any wrongdoing. He recalled the occasion when he was left in the house alone with the three children. He testified that he had no sexual contact with the complainant that evening. He recalled that she had come downstairs, wrapped in a blanket, and got a drink of water in the kitchen. She was on her way back upstairs when she turned around and asked him what he was doing. He told her he was listening to the radio and that she should go back upstairs before her mother came back and found her still up. At that point, her mother returned home. The complainant continued upstairs and a few minutes later her mother went upstairs as well.
III. The Issues
[13] The appellant submits that the trial judge erred in five respects in his appreciation and evaluation of the conflicting evidence before him:
a) the trial judge erred in assessing the evidence of the appellant’s alleged statement that he could not have children;
b) the trial judge failed to consider the impact of the evidence that the complainant was a virgin;
c) the trial judge failed to assess the complainant’s testimony in light of her prior inconsistent statements;
d) the trial judge erred in his assessment of the evidence of the complainant’s condition and behaviour after the alleged assault; and
e) the trial judge misapprehended the evidence about the “consistency” between the testimony of the complainant and her mother.
IV. Analysis
[14] This appeal essentially turns on an analysis of the trial judge’s reasons for judgment in the context of the evidentiary record. In considering each ground of appeal, I am mindful of the important principles of appellate review set out by Doherty J.A. in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.). In particular, I have considered the reasons for judgment as a whole, keeping in mind the purpose for which they were delivered. The trial judge was not instructing a jury but rather was attempting to explain the reasons why he had arrived at a verdict of guilt. I am sure his reasons were not intended to be, nor have I read them, “as a verbalization of the entire process engaged in by the trial judge in reaching [his] verdict”. (See Morrissey at 205.)
[15] However, it is precisely this global and purposive review of the trial judge’s reasons which leads me to the conclusion that there must be a new trial. I find that there is at least some merit to each ground of appeal and, in the final analysis, the cumulative effect of the difficulties to which they give rise leaves me concerned that the evidence may not have been properly scrutinized. Hence, I am of the view that there must be a new trial. I will deal with each ground of appeal in turn.
a) the appellant’s alleged statement that he could not have children
[16] The complainant testified that she raised with the appellant, during the alleged sexual assault, the possibility of becoming pregnant. She said that he assured her he could not have children because of a bicycle accident when he was younger. Two of the complainant’s notes also contained references to this subject. The trial judge relied on this evidence in assessing the complainant’s credibility as evidenced in the following passage from his reasons from judgment:
The notes, I find, were in the nature of a diary which was to be kept secret and in which there was a mixture of truth and fantasy. In exhibit two, I find that [the complainant] would not have mentioned his inability to have children had he not told her that. She would have no way of knowing that. I do not mention this for the truth of it, but just to show that he must have so advised [the complainant] and she of course said that in her evidence. [Emphasis added.]
[17] The appellant submits that this analysis was seriously flawed because there was no evidence that the appellant could not have any children. If the appellant in fact was unable to have children, the complainant’s knowledge of that intimate matter would indeed be telling and would support the trial judge’s inference that she could only have known that if the appellant had told her. It would also lend support to her allegation that she had unprotected sex with the appellant. However, in this case, the appellant was never asked whether or not he could have children. Indeed he was not even asked about the alleged conversation with the complainant. Based on this evidentiary record, the complainant’s “knowledge” of the “fact” that the appellant could not have children could just as well have come from her imagination as from reality. It is therefore argued that the trial judge gave an unwarranted boost to the complainant’s credibility without any basis in the evidence.
[18] Crown counsel argues that it was open to the trial judge to find that the complainant, given her age and level of maturity, would not likely have come up with this notion on her own. Hence it is submitted that the trial judge could reasonably draw an inference that this information came from the appellant. Crown counsel further argues that the fact that the complainant alluded to this information on three separate occasions provided further support for the trial judge’s finding that the appellant advised the complainant that he was sterile.
[19] I find no merit to the respondent’s submission that the credibility of the complainant’s statement is enhanced through repetition. I also find no support in the trial judge’s reasons or in the record for the contention that the trial judge’s inference was based on an assessment of the complainant’s level of maturity. There is no such reference in the reasons and it is clear from the record that the complainant was fairly knowledgeable on sexual matters including sexually transmitted diseases, pregnancy, condoms and ejaculation.
[20] I find much merit to the appellant’s argument. The complainant’s evidence was critical in this case. Matters which tended to support, or undermine, her credibility required the most careful and accurate evaluation. I agree with the submission that the necessary factual underpinning for the inference was absent in this case and it would appear from the trial judge’s reasons that he gave much reliance to this “fact” in his assessment of the complainant’s credibility. I also agree that in a close case, so dependent on credibility, this was necessarily prejudicial. However, in light of my conclusion that there is also some merit to the other grounds of appeal, I do not find it necessary to determine whether this error alone would necessitate a new trial.
b) the medical evidence
[21] As noted earlier, a medical report was filed in evidence on consent of the parties. The pediatrician who prepared the report was not called as a witness. The trial judge made reference to the medical report in the following passage in his reasons:
[The complainant] gave evidence and said that the accused had intercourse with her. She described the events, the kissing which led up to the intercourse and the in and out motion of the penis in her vagina. I am of the opinion, bearing in mind the letter from the medical doctor, that she was virgo intacta, that there was a shallow penetration of the vagina by the accused.
[22] The appellant submits that the trial judge erred in failing to consider the impact of the evidence that the complainant was a virgin. He submits that, since there was nothing in the complainant’s evidence to suggest that there had been only “shallow penetration”, the medical evidence ought to have had a significant impact on her credibility. At the very least, he submits that the trial judge should have considered whether this evidence was inconsistent with her testimony rather than re-framing her allegation to fit the medical evidence.
[23] I do not agree with this characterization of the trial judge’s reasons on this point. In my view, this is one instance where it becomes important to be mindful that the reasons do not necessarily verbalize the entire reasoning process of the trial judge. The reasons are equally consistent with the trial judge having considered whether the medical evidence was inconsistent with the complainant’s account of sexual intercourse with the appellant and having reached the conclusion that it was not. Given the statement in the report that the physical examination “neither confirm[ed] nor denie[d] the allegations of sexual abuse”, it cannot be said that the trial judge’s conclusion was not supported by the evidence.
[24] Although I would not give effect to this ground of appeal, I am left with some concern over the trial judge’s approach to this evidence and, together with the other grounds of appeal, I query whether it signals a failure to properly scrutinize the complainant’s evidence.
[25] When viewed from the Crown’s perspective, the medical evidence in this case was, at best, neutral. However, the trial judge’s reasons leave the impression that more may have been made of this evidence in that it may have been used in support of an affirmative finding on what transpired between the complainant and the appellant. But more importantly, the reasons do not address the additional concern of the defence over this evidence. This concern is expressed in the factum as follows:
The impact of the medical evidence on [the complainant]’s credibility was not confined to her account of sexual intercourse with the appellant. When asked in-chief if this (a penis put in her vagina) had happened to her before, she replied “when I was younger I had an incident.” This point was not pursued by counsel. In cross-examination, however, she was questioned about a note which was not made an exhibit. It was an exchange between her and a friend in which [the complainant] was asked “did it hurt at all?” (or “more than the first time”) and she responded “not really, but a bit because AJ was smaller.” The defence theory in this case was that [the complainant] imagined (or fabricated) detailed sexual encounters with older men and communicated about them freely to her friends. Therefore, evidence that she was a virgin, despite her accounts of sexual penetration by the appellant and at least one other person, compelled a careful consideration of her credibility. It was not sufficient to assess her evidence without regard to the medical findings, and then to reach a conclusion (shallow penetration) which removed the issue from consideration.
[26] In my view, the question which remains unanswered is not so much whether the trial judge fully appreciated the impact of the medical evidence, but rather whether he sufficiently considered the evidence in support of the defence theory. The defence theory was not at all speculative. The complainant admitted at trial that the contents of the notes were not true. This provided cogent evidence not only that this young girl fantasized about sexual relations with older men but with the appellant and further that she affected such sexual maturity in her communications with her friends. This evidence gave rise to a serious issue whether the allegation about sexual intercourse with the appellant was fact or fiction. The defence theory was further strengthened by the fact that the complaint about the appellant came about as a result of the mother’s confrontation and demand for an explanation of the notes. This provided evidence of a motive to lie. The trial judge never squarely addressed this evidence which, in essence, was the crux of the defence. The failure to expressly deal with these issues is one of the main reasons why I am left with a concern over the trial judge’s general approach to the evidence.
c) the complainant’s prior inconsistent statements
[27] The trial judge commented in his reasons on certain inconsistencies between the complainant’s testimony at trial, her statement to the police and her testimony at the preliminary hearing. These inconsistencies were minor and the trial judge concluded that they were of no importance:
[The complainant]’s errors in giving her evidence in court about whether the accused was standing on the floor or was in the bunk, I find are of no moment and do not reflect on the complainant’s credibility or reliability.
[28] The appellant does not take issue with this conclusion. Indeed it was entirely within the trial judge’s purview to regard these minor inconsistencies as inconsequential. However, there were other inconsistencies which were far more significant. The appellant relies more particularly on the complainant’s account to her school girl friend where she allegedly stated that the sexual encounter began with her coming downstairs where she started talking to the appellant, he started kissing her, and then carried her upstairs where they kissed and had sex. The appellant submits that this inconsistency was significant and that it was incumbent upon the trial judge to assess the complainant’s testimony in light of this inconsistent account.
[29] In his review of the evidence, the trial judge referred to this account and noted only that the complainant “denied that the accused had kissed her in the living room and then carried her upstairs and put her on the top bunk. She said ‘that did not happen.’” The trial judge did not deal further with this evidence. We do not know if the trial judge, in his final assessment, concluded that the young friend was mistaken in her recollection of the complainant’s words to her, or alternatively, that the inconsistency did not detract from the complainant’s credibility.
[30] Of course, a trial judge does not have to deal with every aspect of the evidence or express his views on each and every inconsistency in the testimony of a witness whose evidence he ultimately accepts. However, I find it noteworthy that the trial judge specifically dealt with some minor inconsistencies between the complainant’s testimony and her previous statements but did not state his views on this evidence. Yet this evidence was of concern, not only because the version of events as related to the friend was inconsistent in many respects with her allegation of forced sexual intercourse, but also because it seemed more consistent with her fantasy of a romantic relationship with the appellant as described by her in the notes. Hence this evidence went to the crux of the defence. The trial judge’s failure to address this divergence between the complainant’s testimony and the account both to her friend and in her notes further substantiates my concern that he may not have given sufficient consideration to the theory of the defence in this case.
d) evidence of the complainant’s condition the night of the alleged assault
[31] The appellant takes issue with the apparent weight given by the trial judge to the mother’s evidence that the complainant looked as if she had been crying on the evening in question when she came back home. He submits that there was nothing in this case to tie the evidence of this supposed emotional condition to the alleged offence. The complainant did not say that she had cried nor was she asked if she might have been crying. The appellant was not asked about this either. The appellant submits that, in any event, this evidence was of negligible weight in comparison with the evidence of the complainant’s behaviour which was incompatible with her allegations “including her voluntary decision to go downstairs into the presence of the appellant, for a drink of water, a short time after the alleged rape, her failure to complain when questioned by her mother, and her effervescent accounts of the encounter in her notes”.
[32] I do not find much merit to this ground of appeal. It is not clear from the trial judge’s reasons what weight, if any, was placed on that aspect of the mother’s testimony. The mother’s observations were simply related as part of the review of the evidence. In any event, the trial judge was entitled to accept this evidence and give it whatever weight he thought it deserved when considered in the context of the other evidence. The trial judge’s assessment of the mother’s testimony, however, becomes more relevant on the next ground of appeal.
e) the comparison of the testimonies of the complainant, her mother and the appellant on the events of the evening
[33] The final ground of appeal relates to the trial judge’s finding that “the evidence of the complainant and her mother [was] consistent as to the state of affairs when the mother returned” and that “[t]he accused’s evidence was at variance to theirs.” Counsel for the appellant, in oral argument, made an extensive review of the evidence on “the state of affairs when the mother returned” and argued that there was no support for the trial judge’s conclusions on this point.
[34] I tend to agree with counsel’s assessment on this issue. It is difficult to see from a review of the evidence what aspects of the mother’s testimony supported the complainant’s version of events as opposed to that of the appellant. I do not think that it is necessary to make an extensive review of this evidence. It is sufficient to refer to some of the matters referred to by the trial judge in support of his conclusions.
[35] Amongst other things, the trial judge noted that the mother said that when she came in, the complainant was wrapped up in a blanket and that “this agrees with the evidence of [the complainant] and conflicts with the evidence of the accused.” A review of the evidence shows that the appellant also stated that the complainant was “wrapped in a blanket” at the relevant time. Hence the trial judge was mistaken on this point. The trial judge also noted that the mother’s evidence was that the complainant looked as if she had been crying and that this evidence was “not disputed”. Counsel for the appellant argued, and correctly so, that this could not be viewed as a “variance” in the evidence when neither the complainant nor the appellant was asked about the matter.
[36] It is clear from the reasons that this comparison between the testimony of the three main witnesses was relied upon by the trial judge in support of his rejection of the appellant’s testimony. Hence this misapprehension of the evidence may have been critical to the verdict.
V. Disposition
[37] For these reasons, I am of the view that the conviction cannot stand. I would allow the appeal, set aside the conviction and order a new trial. In view of this result, it is not necessary to deal with the sentence appeal.
(signed) “Louise Charron J.A.”
(signed) “I agree Doherty J.A.”
(signed) “I agree J. C. MacPherson J.A.”