DATE: 20061016
DOCKET: C43314
COURT OF APPEAL FOR ONTARIO
MOLDAVER, GOUDGE and SHARPE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Debbie Calderwood for the respondent
Respondent
- and -
MICHAEL LINKIE
Richard Posner and Geoffrey Chesney for the appellant
Appellant
Heard: September 25, 2006
On appeal from the judgment of Justice Paul Rivard of the Superior Court of Justice dated March 18, 2005.
BY THE COURT:
[1] The appellant was convicted of two counts of sexual assault after a nine-day judge alone trial. The complainant is a twenty-five-year old developmentally challenged woman. With respect to the first count, she testified that on the three occasions, she was a passenger on a City of North Bay bus driven by the appellant when the appellant forced her to perform oral sex. The second count related to an incident at the appellant’s motor home. She did not make the second allegation until more than a year after the initial allegations. The appellant testified and denied having any sexual contact with the complainant.
(1) Did the trial judge misapprehend evidence bearing on the complainant’s credibility?
[2] The appellant submits that the trial judge erred by misapprehending significant portions of the evidence that brought the complainant’s credibility into question. The principal submission rests on a police occurrence report filed as an exhibit at trial relating to the complainant’s earlier allegation of sexual assault against a friend of her boyfriend. That report indicated that the police had not proceeded with the charges when the complainant told them that the sexual encounter had been consensual and that she had lied to cover what she had told her father about where she was staying and because she feared her father would be upset with her for having sex. The appellant relies on the following passage in the trial judge’s reasons
The report by the complainant to the police made on June 6, 1999 was not untrue. The sexual activity she reported did occur, according to the investigator’s conclusions. The matter was not proceeded with because the police concluded her conduct was consistent with her consenting to the sexual activity. The report by the complainant, having regard to her mental capacity, was not so untrue or unreliable as to impact upon her credibility in this case.
[3] The appellant submits that this passage indicates that the trial judge failed to appreciate that the appellant had lied when she made this complaint. We disagree. Earlier in his reasons, the trial judge stated: “the sexual activity was admitted by the complainant to have been consensual.” In our view, this demonstrates that the trial judge was fully cognizant of the fact that the appellant had lied when she made the complaint. It was for the trial judge to assess what impact that lie had on her credibility in the present case. As we read his reasons, he recognized that the complainant had lied but he concluded that her lie was not fatal to her credibility as there had been sexual activity and that the motivation and manner in which she reported that activity was a product of her limited mental capacity. It was for the trial judge to assess the impact the false complaint had on her credibility and we see no reason to interfere.
[4] Nor are we persuaded that the trial judge erred by ignoring evidence that the complainant had made false complaints against other bus drivers regarding oral sex. The evidence was far from clear that there had been any such complaints. There were no documented complaints and the principal witness on this point was not entirely consistent in his evidence. The trial judge’s reasons for dismissing the contention that the complainant had made these complaints are somewhat conclusory and perhaps could have been more fully explained, but we are not persuaded that he erred or misapprehended the evidence.
[5] As the trial judge did not ignore or misapprehend the evidence, we see no error that would permit us to substitute our view for his as to the complainant’s credibility.
(2) Did the trial judge unfairly discount the appellant’s evidence or place undue weight upon his demeanour?
[6] The appellant submits that the trial judge unfairly discounted his evidence and placed undue weight upon what he regarded as unusual aspects of the appellant’s demeanour while testifying. Again, we disagree. There was conflicting evidence as to the complainant’s behaviour on city buses and the trial judge was entitled to find that the appellant exaggerated in this regard. The complainant’s ability to describe details of the interior of the appellant’s trailer was clearly a crucial point for the trial judge. The trial judge had the advantage of seeing the appellant testify and it was open to him to conclude that the appellant’s explanation for this aspect of the complainant’s evidence was contrived. Similarly, the trial judge was entitled to take into account the appellant’s demeanour on the witness stand and as he did not reject the appellant’s evidence solely on the basis of his demeanour, we see no error that would permit us to interfere with his assessment of the appellant’s credibility.
(3) Fresh evidence application
[7] The appellant has also applied to have admitted as fresh evidence on appeal the evidence of two witnesses who state they overheard the complainant say to others that the appellant “Mike Linkie did nothing to me, it was another driver’ and “Mike Linkie wasn’t the one that did it, it was another driver.”
[8] The respondent filed as reply evidence the complainant’s denial that she made these statements and the evidence of one named individual to whom the statements were allegedly made that the complainant had never told him that she had falsely accused the appellant. There is no evidence of recantation from any person to whom the complainant spoke directly. Moreover, an earlier version of this evidence was presented to the trial judge after conviction but prior to sentencing and he ruled that as the alleged statements were isolated portions of a conversation, they were insufficient to warrant reopening the trial.
[9] We are not persuaded that this evidence meets the standard required for admission as fresh evidence on appeal: R. v. Palmer, 1979 SCC 8, [1980] 1 S.C.R. 759:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief; and
(4) it must be such that, if believed, it could reasonably, when taken with the other evidence adduced at the trial, be expected to have affected the result.
[10] Even assuming that the evidence meets the first hurdle despite the fact that a version of it was considered by the trial judge, we are not persuaded that it meets the other three criteria. Simply put, the alleged statements are taken completely out of any context that would permit a court to find that they amounted to a recantation of the complainant’s evidence that the appellant sexually assaulted her. It is not clear that the sexual assaults at issue in this proceeding were the subject matter of the conversation. As the respondent points out, these snippets of conversation could have been made in the context of a conversation about which bus drivers had thrown the complainant off the bus, or refused to allow her on the bus. Even assuming the complainant was discussing the sexual assault allegations, the full context of the conversation might well have been that: “some girl has been going around saying that “Mike Linkie did nothing to me, it was another driver”, a context that would be consistent with the complainant’s response to the fresh evidence application that such allegations were being made about her complaint. Another possibility is that the complainant was recounting the events of the trial itself and the fact that the defence had brought an application to reopen the case on the basis of an assertion that an utterance to a similar effect had been made.
[11] We cannot say that this evidence is relevant, that it is reasonably capable of belief or that it could reasonably be expected to have affected the result. Accordingly, the application for admission of fresh evidence on appeal is dismissed.
(4) Conclusion
[12] For these reasons, the appeal is dismissed.
“M.J. Moldaver J.A.”
“S.T. Goudge J.A.”
“Robert J. Sharpe J.A.”