COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.K., 2007 ONCA 776

DATE: 20071114

DOCKET: C41781

ROSENBERG, FELDMAN and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

R. K.

Appellant

Gordon Cudmore, for the appellant

Ian Bulmer, for the respondent

Heard: May 9, 2007

On appeal from the convictions entered on January 19, 2004, by Justice Helen Rady of the Superior Court of Justice.

ARMSTRONG J.A.:

[1] After a trial before Justice Helen Rady of the Superior Court of Justice, the appellant was convicted of sexual assault contrary to s. 271(1) of the Criminal Code and sexual interference contrary to s. 151 of the Criminal Code. He appeals his convictions on both counts. He also appealed his sentence of eighteen months but has since abandoned his sentence appeal.

The Evidence

[2] The complainant in this case, K.B., was born on February 28, 1988. The conduct about which K.B. complained occurred when she was in grades five and six between the ages of eleven and thirteen years.

[3] The complainant was a close school friend of the appellant’s daughter, A.K. In about September of 1999, when the complainant and A.K. were in grade five, the complainant regularly visited the K. residence with A.K. She often went to the K. residence at lunch hour and after school between 4:00 p.m. and 6:00 p.m. It was during the afternoon visits that, with two exceptions, the alleged sexual abuse is said to have occurred.

[4] The complainant testified that she would go to the K. residence with A.K. after school. They would play Nintendo games, do homework, watch television or play with A.K.’s younger brother. These activities took place, for the most part, in a large room in the basement.

[5] The appellant was involved in a business related to the building of brick driveways. The business was seasonal and during most of the school year he was either not working and at home or he would arrive home about 4:30 or 5:00 p.m.

[6] The complainant testified about an event that occurred not long after she started going to the K. residence. She was sitting on a sofa, playing Nintendo, in the basement. A.K. left the room and the appellant entered shortly thereafter. The appellant sat beside the complainant. He put his arm around her shoulder, put his hand under her t-shirt and touched her breast. He attempted to put his hand inside her underwear. The complainant told the appellant to leave her alone and got up and left.

[7] Thus began a prolonged series of similar assaults during the school years of 1999 to 2000 and 2000 to 2001. In examination-in-chief, the complainant said that there were in total at least 30 such assaults. She testified in cross-examination that these assaults occurred on average two to four times a week. She estimated that each assault lasted thirty to sixty seconds.

[8] In addition to the above described sexual abuse, the complainant testified that once or twice a week during these episodes, the appellant would pull down his pants and expose his penis. On one occasion, the appellant placed the complainant’s hand on his penis which she described as hard. Sometimes, when he exposed his penis, it was hard. At other times it was soft. A few times the appellant rubbed his penis until he ejaculated.

[9] At no time did Mrs. K., A.K. or A.K.’s brother (who was seven or eight years old at the time) come into the room and see anything.

[10] The complainant testified to two incidents which are different from the alleged abuse in the appellant’s basement.

[11] The first incident occurred when the complainant was on a “sleep-over” at the K. residence. A.K. and the complainant slept in the living room. A.K. slept on a couch. The complainant slept on a chair and an adjoining stool, which were pulled together as a makeshift bed.

[12] The complainant was wearing pants and underwear and was awakened to find the appellant kneeling beside her chair, his head under the sheet, licking her vagina. The complainant made a startled noise which awakened A.K. A.K. asked her father what he was doing over there? The appellant replied that he was looking for a mouse. Everyone then went back to sleep.

[13] The second incident occurred on an outing to the Wheels Inn in Chatham, Ontario. Just prior to the beginning of the new school year in September 2001, the K. family, together with the complainant, took a mini-holiday at the Wheels Inn. They stayed overnight on Saturday night. The Wheels Inn had a large swimming pool, a small amusement park with various rides, a bowling alley and a range of games to play. Both the complainant and A.K. participated in a number of activities. On Saturday night, the K. family and the complainant had dinner together at the inn and then the complainant and A.K. continued to enjoy the amusements that were on offer. I note that there are differing accounts from the witnesses as to specifically what the two girls did after dinner and before turning in for the night. That said, I do not believe those differing accounts are particularly relevant to the case at bar.

[14] On Saturday night, the group slept in the same hotel room. Mr. and Mrs. K. slept in one of the two beds. A.K. slept in a cot placed at the end of her parents’ bed. The complainant and the brother of A.K. slept in the other bed.

[15] The complainant put on a nightgown and her underwear. The complainant testified that she fell asleep while watching a movie and later woke up to find the appellant licking her vagina. Her nightgown was still on but her underwear had disappeared. The others in the room were asleep except for the appellant. The complainant told the appellant to stop, then she kicked him in the head. This incident lasted about thirty seconds. The complainant then got up and went into the bathroom and locked the door. She came out of the bathroom five to ten minutes later and went back to sleep. Nobody else woke up during this incident.

[16] At the beginning of the school year in September 2001, the complainant stopped going to the K. residence.

[17] During the period of the sexual assaults taking place, the complainant spoke to her friend, A.K., on two occasions when she complained about the conduct of the appellant. She asked A.K. to speak to her father. On the first occasion, the appellant came downstairs and called the complainant a liar. There was no response to the second complaint. It was not until March of 2002 that the complainant told her story to another friend and the friend’s mother. The matter was subsequently reported to the police, resulting in these charges.

[18] The complainant said that she did not speak to others about these incidents because she did not know the appellant’s conduct was wrong although she felt uncomfortable and nervous. She first learned about good and bad touching in grade six.

[19] The appellant’s wife, M.K., and his daughter, A.K., testified for the defence.

[20] Mrs. K. testified that at no time during the nearly two year period did she observe anything out of the ordinary as between her husband and the complainant. Mrs. K. recalled the night when she heard the dog barking and her husband was looking for a mouse. She did not think it was “a big thing” and she went back to bed.

[21] In respect of the Wheels Inn incident, Mrs. K. recalled that between 3:00 and 4:00 a.m. she awoke and noticed that the complainant appeared to be falling out of bed. She asked her husband to put the complainant back in her bed which he did. She did not hear any noises in the night and noticed nothing unusual about the complainant’s demeanour in the morning. The complainant’s mother, who testified, said that when she picked up her daughter after the trip she appeared happy and had enjoyed the outing.

[22] In early September 2001, there was somewhat of a contretemps between Mrs. K. and the complainant. Over the course of two or three days, the complainant was acting in a rambunctious manner with the family dog and apparently interfering with the speech therapy lessons of the complainant’s brother. As a result, Mrs. K. told the complainant that she should stay away for a week. According to Mrs. K. the complainant never returned to the K. residence after this episode.

[23] A.K. gave similar evidence. At no time did she notice anything out of the ordinary between her father and the complainant. A.K. denied that the complainant ever spoke to her about her father’s inappropriate behaviour. In respect of the sleep-over, she recalled waking up when the dog was barking. She noticed her father on the floor. He was on his hands and knees looking for a mouse – in the dark. She fell asleep after her father left. The complainant acted normally the next morning. On the night at Wheels Inn, she has no recollection of waking up. She heard no noises or commotion.

[24] In order to rebut the evidence of the complainant concerning her allegation that the appellant, on numerous occasions, exposed his erect penis, the defence called Dr. Gerald Brock, a urologist. Dr. Brock testified that he first saw the appellant in October 2002 in respect of a complaint of erectile dysfunction. He diagnosed the appellant’s condition as in the “most severe category”. The appellant was almost a “poster boy” for the risk factors for erectile dysfunction – his cholesterol and triglyceride levels were at the very highest levels recordable and he had a thirty-year history of smoking two to three packs per day.

[25] Dr. Brock offered an opinion that in the time frame of September 1999 to June 2001 it was highly unlikely that the appellant would have been able to get an erection within thirty to sixty seconds. He also testified that he could not be categorical that the appellant could not experience an erection.

[26] Mrs. K. testified that she had not had sexual relations with the appellant since 1997 because he was incapable of achieving an erection and he was not really interested. However, they did have a loving relationship and her husband would cuddle and fondle her.

The Trial Judge’s Reasons

[27] After reviewing the evidence, the trial judge indicated that she accepted the testimony of the complainant as truthful. She found that the complainant, although nervous at first, was less so as her evidence progressed. The trial judge found that the complainant’s evidence “was not really disturbed in cross-examination.” The trial judge was impressed by the fact that the complainant “readily adopted her answers given at the preliminary hearing where they differed from her evidence at trial.” The trial judge also took into account the complainant’s age when these events occurred. She said, “[One] must be careful not to impute to a child an adult’s understanding of terms like erection.”

[28] The trial judge suggested that the evidence of Mrs. K. and A.K. should be accorded little weight. She found that Mrs. K.’s and A.K.’s evidence should be viewed with suspicion because they had been actively involved in the defence of the charges against the appellant – also they were both present during most of the Crown’s case except that A.K. was not present for her mother’s evidence.

[29] The trial judge found that A.K.’s evidence did not detract from the complainant’s evidence in any significant way. A.K.’s evidence about the mouse incident was corroborative of the complainant’s evidence to the extent that she described her father on his hands and knees close to where the complainant was sleeping in the dark. In respect of this evidence, the trial judge said:

In fact, it defies credibility that the accused was in the living-room for any reason other than that described by [the com-plainant]. It is difficult, if not impossible, to accept that [Mr. K.] was going to catch a mouse with his bare hands in the dark.

[30] In respect of the expert evidence of Dr. Brock, the trial judge said:

Dr. Brock’s evidence was of limited assistance to the court. He did not see the accused for the first time until October, 2002, after these charges had been brought. He agreed that motivation could play a role in [Mr. K.’s] condition and he could not guarantee that his patient could not get an erection or a partial erection.

[31] The trial judge concluded her reasons for judgment as follows:

In conclusion, I accept the evidence of the complainant… Where the evidence of [the complainant] and the defence witnesses differ, I prefer the evidence of the complainant. Put another way, the evidence of the defence witnesses does not create a reasonable doubt in my mind.

Even though I accept the evidence of the complainant and reject the evidence of the defence, I must still be satisfied that the Crown has proven all elements of these charges beyond a reasonable doubt. I am so satisfied. The offences occurred at the times and places as alleged in the indictment. And the actions of the accused as described by [the complainant], which I accept as fact, make out the necessary elements of the offences charged beyond any reasonable doubt.

The Appeal

[32] Counsel for the appellant submits that the trial judge failed to take into account the impossibility of the alleged acts of sexual abuse having occurred. He further submits that the trial judge’s reasoning contains logical inconsistencies. As a result, he argues that the convictions are unreasonable. In particular, counsel for the appellant submits:

(i) it was physically impossible for the appellant to have carried out the acts complained of at the frequency alleged over a period of two years without discovery given that there was always someone else in the house;

(ii) there is a logical inconsistency in the complainant returning to the K. residence several times a week when she knew she would likely face unwanted sexual advances from the appellant. She had other friends whom she could have visited and avoided going to the appellant’s residence;

(iii) a logical inconsistency exists in that the appellant’s son did not wake up during the Wheels Inn incident when he was sleeping in the same bed as the complainant. The complainant would have to have been moved in order to remove her underwear and carry out the alleged assault;

(iv) there is a logical inconsistency in that the complainant did not yell or make some other startled comment during the Wheels Inn incident;

(v) there were major inconsistencies in the complainant’s evidence beyond the complainant’s inability to remem-ber times and dates such as:

(a) exposure by the appellant, including ejacu-lation, could not be remembered at all until the complainant’s preliminary hearing evi-dence was read to her; and

(b) no Nintendo game was in the K. residence, when the first incident occurred and none was acquired until several months later.

(vi) the trial judge erred in her treatment of Dr. Brock’s evidence and the erectile dysfunction issue.

The Test for Unreasonable Verdict

[33] The test for unreasonable verdict has been established and confirmed in a number of cases. The test is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.” See Corbett v. The Queen, 1973 199 (SCC), [1975] 2 S.C.R. 275 at 282; R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at 179-80; and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 42.

[34] Although the test refers to a jury verdict, it is applicable to a judge sitting alone without a jury. See Biniaris, supra, at para. 37.

The Application of the Test to this Case

[35] As Arbour J. said in R. v. Biniaris at para. 37:

The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law, and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.

This in effect is what the appellant asks us to do in this case. He points to various portions of the reasons as disclosing flaws in the evaluation of the evidence and in the analysis of that evidence that explain what he says is an unreasonable verdict. He does not raise any of these flaws as independent grounds of appeal. I therefore turn to consider each of these flaws, bearing in mind, however, at the end of the day that even where there are some flaws in the reasoning process, a verdict will be reasonable when rendered by a trial judge as by a jury if the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.

(i) The physical impossibility

[36] Many of the assaults were, by their description, of very short duration. They involved grabbing or touching the breast area and the vaginal area after which the complainant would leave the room. It is not unreasonable to conclude that these assaults occurred in a matter of seconds when no one other than the appellant was in the room. The assaults that involved exposure of the appellant’s penis and masturbation are more troubling. As well, the complainant’s evidence, if taken literally, suggests that the assaults involving the penis totalled close to 150 in number and the total number of assaults approached 300. It would have been preferable for the trial judge to have addressed this evidence in her reasons. However, I am not persuaded that her failure to do so leads to a conclusion that her decision was unreasonable. She is not required to address every piece of evidence in her reasons and it is clear from reading the entirety of her reasons that she had a full grasp of the evidence.

(ii) The logical inconsistency in the complainant returning to the K. residence day after day

[37] The trial judge accepted that the complainant did not know that the conduct of the appellant was wrong until she learned about the distinction between good and bad touching at school. The trial judge’s assessment of the complainant’s evidence is, in my view, a reasonable answer to this issue:

[The complainant] is not a sophisticated or a worldly witness. She repeated grade three. In my view, she is not clever enough to concoct the mouse incident, for example, and turn it into a sexual encounter. Indeed, her testimony, taken as a whole, had a ring of truth. It is not unusual, in my view, for there to be a delay in reporting these incidents to the authorities. [The complainant] was a pre-teenager when these events occurred, and it is not unusual for a child of her years to take some time to reconcile what has happened. I accept her evidence that she did not appreciate that the accused’s behaviour was wrong.

(iii) The logical inconsistency concerning the failure of the appellant’s son to wake up during the Wheels Inn incident

[38] Counsel for the appellant conducted a detailed cross-examination of the complainant on the Wheels Inn incident including the fact that the appellant’s son was lying next to her in the same bed and apparently did not wake up. The issue was clearly highlighted by the defence. The trial judge accepted the complainant’s evidence which she was entitled to do.

(iv) The logical inconsistency in the failure of the complainant to yell during the Wheels Inn incident

[39] The evidence is that the complainant raised her voice and told the appellant to “stop that” and then kicked him in the head. The trial judge obviously accepted the complainant’s evidence on this point.

(v) The major inconsistencies in the complainant’s evidence

[40] Counsel for the appellant submits that the complainant could not remember the appellant exposing his penis (which included ejaculation) until the complainant’s preliminary hearing transcript was read to her. During the cross-examination, the complainant testified that the appellant also ejaculated a couple of times as a result of masturbation. She was not cross-examined on the alleged inconsistency concerning ejaculation.

[41] Counsel for the appellant further submits that the trial judge failed to take into account the complainant’s mistake in thinking that the Nintendo game was in the K. house in September 1999 when she testified that the assaults commenced. It is clear that the trial judge was aware of this contradiction in her evidence and determined that it did not have an adverse effect on her credibility:

There were some discrepancies in [the complainant’s] testimony and the others’. She had difficulty recalling events sequentially which, in my view, does not detract from her credibility. She thought that she and [A.K.] played Nintendo in September, 1999, but it appears that the game was not purchased until a year later. It is possible that [the comp-lainant] was simply mistaken on this point. Clearly, [at] some point during her two years of visits to the [K.] home, Nintendo was in fact played.

(vi) The trial judge erred in her treatment of Dr. Brock’s evidence and the erectile dysfunction issue

[42] The most troubling aspect of the appellant’s argument is that the trial judge reached an unreasonable verdict because she failed to properly deal with Dr. Brock’s evidence. The appellant relied upon the evidence of Dr. Brock to raise a reasonable doubt that it was physically possible for him to achieve an erection or orgasm in the manner described by the complainant. He submits that if the complainant lied about this aspect of her evidence then none of her evidence could reasonably found a verdict to the criminal standard of proof.

[43] The evidence of Dr. Brock related to the specific medical diagnosis of erectile dysfunction. Counsel for the appellant cross-examined the complainant by referring to an “erection”, a term which she did not understand. The complainant described what she observed of the appellant’s penis as “hard” or “soft” without any further elaboration. Counsel for the appellant did not seek to qualify her observation in any further detail. He equated the description “hard” with an erection. Dr. Brock, on the other hand, gave an elaborate medical definition of erection by reference to a scale of one to ten. Whether or not the appellant’s penis, on occasion, appeared or felt hard to this young complainant does not, in my view, necessarily discredit her evidence and does not result in an unreasonable verdict. This is particularly so in view of the trial judge’s description of the complainant as “not a sophisticated or a worldly witness.”

[44] Further, in reference to the complainant’s understanding of the term “erection”, the trial judge said:

More importantly, however, is the need to keep in mind [the complainant’s] age when these events occurred. One must be careful not to impute to a child an adult’s understanding of terms like erection. [The complainant’s] evidence on this issue used comparative descriptors, namely soft and hard.

The trial judge was entitled to reach this conclusion about the complainant’s understanding of the term “erection”, which explains why even accepting Dr. Brock’s evidence, it was not unreasonable to accept the complainant’s evidence.

[45] The appellant also submits that the trial judge placed an unreasonable burden on the defence by dismissing Dr. Brock’s evidence because he could not “guarantee” that the appellant could not achieve an erection. In other circumstances, this kind of comment could well be symptomatic of an unreasonable verdict. However, since the trial judge had already explained why even accepting Dr. Brock’s evidence, it was not inconsistent with the complainant’s version of events, this comment is of no moment. In any event, I tend to think that at this point the trial judge was merely summarizing Dr. Brock’s own admission that he could not be “categorical” in his opinion concerning the ability of the appellant to achieve an erection.

[46] Counsel for the appellant further submits that the trial judge’s reference to Dr. Brock agreeing “that motivation could play a role in [Mr. K.’s] condition” makes no sense. Counsel argues that this observation is a further indication that the verdict is unreasonable. The trial judge’s reference to this evidence is in error. Dr. Brock, in cross-examination, arguably agreed that the criminal charges could be the motivation for seeking an opinion concerning erectile dysfunction. Dr. Brock did not say that motivation could play a role in the appellant’s condition. That said, I am not satisfied that this error, either alone or taken with the other issues raised by the appellant, renders the verdict unreasonable.

Disposition

[47] For the above reasons, I would dismiss the appeal.

RELEASED:

“MR” “Robert P. Armstrong J.A.”

“NOV 14 2007” “I agree M. Rosenberg J.A.”

“I agree K. Feldman J.A.”