W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
DATE: 20040603
DOCKET: C40094
COURT OF APPEAL FOR ONTARIO
MACPHERSON, CRONK and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Alexander Hrybinsky
for the respondent
Respondent
- and -
C. K. L.
Andrea E. E. Tuck-Jackson
for the appellant
Appellant
Heard: May 21, 2004
On appeal from the conviction by Justice David P. Cole of the Ontario Court of Justice entered on March 26, 2003.
MACPHERSON J.A.:
[1] The appellant and the complainant were involved in a lengthy and at times tumultuous relationship, commencing in 1998. At one time they were engaged, but the wedding was cancelled. Shortly thereafter, the complainant initiated a meeting with the appellant. They went to a pub to talk about their relationship. After leaving the pub, on August 12, 2001 at 2:00 a.m., the appellant drove the complainant to his condominium. The appellant and complainant do not agree about what happened inside the apartment – the complainant says that she was forced to stay there and was sexually assaulted; the appellant says that there was no confinement and that, although there was some preliminary sexual activity, he stopped when the complainant told him to stop.
[2] The complainant went to the police the next day, August 13. On police advice, she went to see her family physician later the same day. On August 14, the police took photographs of the complainant. The photos showed three small bruises on her leg and a scratch or tear on the nipple of her left breast.
[3] The appellant was charged with forcible confinement and sexual assault. At the conclusion of the trial, at the request of the Crown, the trial judge acquitted the appellant of forcible confinement. However, he convicted him of sexual assault. He imposed a nine month conditional sentence, followed by two years probation.
[4] The appellant appeals his conviction on two grounds: (1) the trial judge misapprehended the evidence of Dr. Dang, the complainant’s family doctor, who testified as a defence witness; and (2) the trial judge erred in disregarding evidence of the complainant’s prior inconsistent statements by attributing to them an explanation that had no basis in the evidence.
[5] I say at the outset that the trial judge delivered comprehensive and careful reasons for judgment. There is nothing ‘boilerplate’ about his reasons; rather the trial judge engaged in a full and candid discussion of all the issues, especially the difficult ones.
[6] The evidence of Dr. Dang was crucial. She turned out to be a very strong witness for the defence. She had been a physician for twenty-two years and the complainant’s family physician since 1991. It will be recalled that the incident giving rise to the criminal charges took place on August 12 and that police photographs taken on August 14 showed a scratch or tear on the nipple of the complainant’s left breast and three small bruises on her leg. The complainant testified forcefully that the appellant caused these injuries. Accordingly, the testimony of Dr. Dang, who examined the complainant one day before the photographs were taken, was particularly important.
[7] The complainant and the doctor both testified that Dr. Dang conducted a very thorough examination lasting close to one hour. The complainant said that the doctor examined her breasts. The complainant testified that, at the time of the examination, the left nipple was visibly injured, and that it hurt when it was touched. Indeed, she claimed that the pressure from the bra she wore on August 13 caused her some discomfort because of the injury to the nipple.
[8] Dr. Dang testified that she saw no bruises anywhere on the complainant, including her leg. She conceded that it can take time for bruises to emerge after an injury has occurred.
[9] Dr. Dang also said that she carefully examined the complainant’s breasts, especially since she knew that the complainant was there because of an allegation of sexual assault. Dr. Dang’s notes, written at the time of the examination, read “clear skin and no localized tenderness”. In her examination-in-chief, Dr. Dang testified:
Q. I see. Since focusing on the body part, her breast, can you tell us what you did in terms of examining her breasts?
A. Yes, I uncovered her breasts and I feel it, I palpate it and then go on.
Q. Right. Now, when you feel – did you feel both breasts or just one.
A. Both breasts.
Q. Okay. And did you receive any complaint from her in relation to her breasts at any point in time during the examination?
A. No.
Q. Okay. And did you see anything unusual whatsoever on her breast or nipples?
A. No.
Q. If there were a tear, for example, this is a hypothetical, a tear on her left nipple which caused her discomfort or even pain when she was wearing a bra, for example, would you have detected that tear?
A. I would. That would be abnormal. My eyes are trained to detect abnormal evidence on the body …
Q. Now, …
A. … for the outside normal range. So, if it is abnormal I would have been able to detect it.
[10] On cross-examination, Dr. Dang testified:
Q. Now, without questioning the thoroughness of your examination, is it possible that you could have missed what would be described as a slight scratch in the area of the left – the nipple of the left breast of J.L.?
A. I was more vigilant than normal. It’s not the first rape case I have examined.
Q. No, I am sure it isn’t, but would you …
A. So, I’m surprised that I missed it, if I missed it.
Q. All right. Let me see if I can say that – say it this way. I make more than my fair share of mistakes. Sometimes we miss things and a slight scratch and maybe – if an officer the following day observed a slight scratch in the area of the nipple of the left breast, would you concede that it’s possible you might have overlooked that or felt that it wasn’t a significance and didn’t note it in your examination of J.L.
A. As I said, if I overlooked it I would be very surprised …
Q. Okay.
A. … from my experience.
[11] This was clear and strong testimony, and the trial judge treated it as such. He set out fairly Dr. Dang’s testimony, and then concluded:
[I]f the complainant did not actually say or draw to Dr. Dang’s attention the fact that her nipple was torn or bruised she assumed that Dr. Dang as a competent and experienced physician would note it. Apparently Dr. Dang did not. Again, Dr. Dang conceded fairly and properly that the manifestations or injuries do not always appear immediately after they have occurred.
[12] There are two problems with this conclusion. First, the trial judge refers to the possibility of the nipple injury being a bruise that perhaps would not have been visible when the complainant visited the doctor. With respect, the evidence of all the witnesses – the complainant, the police officer who took the photographs, and Dr. Dang who was shown the photographs – was that the injury to the nipple was a scratch or tear.
[13] Second, the trial judge’s apparent conclusion that Dr. Dang missed the scratch or tear is difficult to accept, not only because of the clarity of Dr. Dang’s testimony (which, of course, the trial judge was entitled to reject), but also in light of the complainant’s testimony that the doctor saw and acknowledged the injury to her nipple.
[14] The complainant testified:
Q. Now, Ms. L., I asked you about Dr. Dang’s interview or medical check-up that day, right? You said you thought there was a tear on your left nipple, right?
A. Right.
Q. Was it visible to you?
A. Yes.
Q. That tear?
A. Yes.
Q. Okay. And did Dr. Dang examine it, the tear?
A. Yes.
Q. And what did she say about that, if any?
A. She noted the tear.
Q. Okay.
A. She acknowledged it.
Q. Okay. She acknowledged?
A. Right.
Q. In your presence.
A. Yes.
[15] The trial judge did not deal with this aspect of the complainant’s testimony. In my view, having acknowledged the length and care of Dr. Dang’s examination of the complainant, before concluding that Dr. Dang missed the scratch or tear on the nipple the trial judge needed to consider the complainant’s own testimony about the examination.
[16] There is a possibility that the trial judge did not refer to the complainant’s testimony on this issue because he did not record that testimony accurately. During defence counsel’s closing submission, this exchange took place:
THE COURT: “I might not – I might have told her about the nipple.” That’s what my note says.
MR. HUNG: Yes, Your Honour. Your Honour is quite right, but was clear though, from that, was she made the observation that Dr. Dang made a note of it.
THE COURT: No. “I can’t recall if I told the doctor that or that she noted or acknowledged it.” She does not know whether or not the doctor noted it. I don’t think she asserts positively that the doctor noted it. That’s what my note says.
The trial judge’s note of the complainant’s testimony, as set out in his second comment in this exchange, is not an accurate record of the complainant’s testimony.
[17] Unfortunately, this potential misapprehension of the complainant’s testimony, in my view, is crucial. Without setting out accurately the complainant’s position on this issue, and without considering it against the strong and conflicting testimony of Dr. Dang, the complainant’s family doctor for eleven years, I cannot conclude that the verdict of guilty of sexual assault is a safe one.
[18] For the sake of completeness, I record that I see no merit in the appellant’s second ground of appeal.
[19] I would allow the appeal, set aside the conviction for sexual assault, and order a new trial.
RELEASED: June 2, 2004 (“JCM”)
“J. C. MacPherson J.A.”
“I agree E. A. Cronk J.A.”
“I agree E. E. Gillese J.A.”