COURT OF APPEAL FOR ONTARIO

DATE: 20010206

DOCKET: C34517

CATZMAN, CARTHY and WEILER JJ.A.

BETWEEN: )

HER MAJESTY THE QUEEN ) Karen Shai,

) for the appellant

(Appellant) )

–and– )

C. P. ) Stephen Gehl,

) for the respondent

(Respondent) )

) Heard: January 18, 2001

On appeal from the judgment of Justice Peter B. Hambly, sitting as a summary conviction appeal court judge, dated May 31, 2000.

CATZMAN J.A.:

The appeal

[1] The respondent was charged with sexual assault and sexual interference. The complainant was the 13-year-old daughter of the woman with whom the respondent was living.

[2] The offence was alleged to have taken place in the apartment in which the parties lived. According to the complainant, she and her mother were already in bed when the respondent came into the bedroom and lay down between them. The complainant was lying on her back, dressed in a nightgown, jean shorts, underwear and a bra. She testified that the respondent put his right arm over her stomach, moved his hand down to her thigh, brought his hand up and rubbed her breasts on top of her nightgown. He put his hand down her shorts and felt her vagina, then put his fingers in her mouth. At that point, her mother, who had been facing the wall and whom the complainant believed to be asleep, stirred or made a sound. The respondent stopped and shifted his position, and the complainant got out of bed and walked from the room.

[3] Four witnesses gave evidence at the respondent’s trial: the complainant, the investigating police officer, the complainant’s mother and the respondent. The respondent denied the allegations. The complainant’s mother, who had provided a statement to the police the day after the incident in which she made no mention of what she had been able to observe and in which she said she did not know whom to believe about the allegations, testified at trial that she was awake during the entire incident, would have known if the respondent had assaulted her daughter and, after reflection, was certain that he had not done so.

[4] The trial judge convicted the respondent of sexual assault and conditionally stayed the charge of sexual interference. He sentenced the respondent to a term of imprisonment of six months.

[5] The respondent appealed his conviction and sentence to the summary conviction appeal court. The summary conviction appeal court judge allowed the conviction appeal and ordered a new trial.

[6] The Crown now applies for leave to appeal and, if leave is granted, appeals from the decision of the summary conviction appeal court judge.

[7] For the reasons that follow, I would grant leave to appeal and allow the appeal.

The decision of the trial judge

[8] The trial judge accepted the evidence of the complainant and rejected the evidence of her mother and the respondent. He described the respondent as aggressive and angry and, for reasons that he gave, concluded that he could attach no weight to the respondent’s evidence. He then turned to the mother’s testimony and concluded that her evidence:

was contrived and aggressively presented to discredit her daughter. I have no idea of her motivation, whether fear of the accused or guilt at failing to protect her daughter, but in any event I find her to be not merely unworthy of belief: she is consciously and maliciously attempting to impugn her daughter and protect the accused.

[9] He expressed himself as satisfied beyond a reasonable doubt, on all of the evidence, of the respondent’s guilt.

The decision of the summary conviction appeal court judge

[10] The reasons for judgment of the summary conviction appeal court judge, who heard and reserved judgment on the appeal, were set out in twenty single-spaced pages. Almost one-third of them were devoted to the reproduction of evidence given by the complainant’s mother and the respondent. He quoted the trial judge’s conclusion with respect to the mother’s evidence, set out above. He closely analyzed the mother’s testimony and held, on the basis of his analysis, that the trial judge’s conclusion was not supported by the evidence. He found that:

[The mother’s] evidence, if believed, could create reasonable doubt in a trier of fact. The [respondent] is entitled to have her credibility assessed on the basis of her evidence. This was not done here.

[11] As a result, he concluded, the trial judge’s verdict was unreasonable. He allowed the conviction appeal and ordered a new trial. Having regard to his disposition of the conviction appeal, he made no determination of the respondent’s sentence appeal.

The error of the summary conviction appeal court judge

[12] The summary conviction appeal court judge’s reversal of the respondent’s conviction was based solely upon his assessment of the mother’s evidence. He made that assessment following a microscopic review of her testimony. Rather than showing deference to the trial judge’s findings of credibility, he conducted an independent analysis of her evidence, overturned its rejection by the trial judge, and concluded that, if believed, it was capable of raising a reasonable doubt. In reaching that conclusion, he simply substituted his own view of her evidence for that of the trial judge.

[13] In doing so, he fell into the error found to have been committed by the summary conviction appeal court judge in R. v. G.W. (1996), 1996 427 (ON CA), 93 O.A.C. 1 (C.A.) in which, in similar circumstances, this court set aside the order of the summary conviction appeal court judge and restored the verdict of the trial judge. Speaking for the majority, Osborne J.A. said, at para. 18:

Where the reasonableness of the verdict is in issue, the appeal judge must reexamine, and to some extent reweigh and consider the effect of the evidence. The reviewing court should show “great deference” to the trial judge’s findings of credibility. It is, however, open to the appeal judge to conclude that a verdict based on credibility findings is unreasonable if the appeal judge takes into account the fact that the trial judge had the advantage of seeing and hearing the witnesses give evidence. However, where the verdict essentially turns on credibility findings, the appeal judge’s power to interfere should be exercised sparingly. The appeal judge must not try the case de novo or simply substitute her views for those of the trial judge. [Citations omitted.]

and, at para. 69:

In my view, the appeal judge retried this case. She substituted her view of the evidence for that of the trial judge. In proceeding as she did the appeal judge erred in law. There was evidence to support the conclusion that the acts alleged were committed and the respondent committed them. Neither the appeal judge, nor this court, should engage in a microscopic analysis of the trial judge’s reasons in determining whether a verdict which was supported by the evidence was, nonetheless, unreasonable.

[14] These comments apply equally to the present case.

Conclusion and Disposition

[15] The conclusion that the summary conviction appeal court judge erred in law does not suffice to dispose of this appeal. There remains to this court the task of putting itself in the place of the summary conviction appeal court judge and considering whether, quite apart from his analysis and findings, the verdict is unreasonable: R. v. G.W., at paras. 20 and 57. In my view, it is not.

[16] The evidence of the complainant, which the trial judge accepted, made out all of the essential elements necessary for conviction on the charge of sexual assault. The trial judge rejected the evidence of the respondent and the complainant’s mother, as he was entitled to do. His reasons reveal a full appreciation of the evidence of all of the witnesses and an application of the appropriate principles of law in reaching his verdict. Having reviewed the trial record, I find no basis on which it could be said that the verdict is not one that a trier of fact, acting judicially, could reasonably have rendered: R. v. W.(R.) (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.) at 141-42.

[17] Accordingly, I would grant leave to appeal, allow the appeal, set aside the order of the summary conviction appeal court judge and restore the verdict of the trial judge. I would remit the respondent’s appeal against sentence, which was not determined on its merits in the summary conviction appeal court, to that court for disposition.

Released: FEB 06 2001 Signed: “M.A. Catzman J.A. MAC “I agree J.J. Carthy J.A.”

“I agree K.M. Weiler J.A.”