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:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
CITATION: R. v. Sparrow, 2008 ONCA 616
DATE: 20080910
DOCKET: C44786 and C47312
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O. and CRONK and GILLESE JJ.A.
BETWEEN:
DOCKET: C44786
HER MAJESTY THE QUEEN
Respondent
and
MATTHEW SPARROW
Appellant
AND BETWEEN:
DOCKET: C47312
HER MAJESTY THE QUEEN
Respondent
and
MICHAEL YANKOWSKI
Appellant
Paul Calarco, for the appellant Matthew Sparrow
Leslie Maunder, for the appellant Michael Yankowski
Megan Stephens, for the respondent
Heard: June 18, 2008
On appeal from the convictions entered by Justice E.B. Minden of the Superior Court of Justice on January 18, 2005 and the sentences imposed by Justice Minden on April 28, 2005.
CRONK J.A.:
I. INTRODUCTION
[1] The appellants, Matthew Sparrow and Michael Yankowski, were jointly convicted of multiple offences relating to the physical, emotional and sexual abuse of a nineteen-year old woman, S.K., over a period of approximately six months. Sparrow was convicted of assault, unlawful confinement, threatening to cause serious bodily harm and death, and four counts of sexual assault. He was sentenced to a total of eight years imprisonment. Yankowski was convicted of assault, unlawful confinement and three counts of sexual assault. He received a global sentence of five years imprisonment after credit of twelve months for pre-sentence custody. Both appellants appeal their convictions and sentences. For the reasons that follow, I would dismiss the appeals.
II. BACKGROUND FACTS
(1) Positions of the Parties
[2] S.K. first met Sparrow in August of 1995 when she was an eighteen-year old high school student. Shortly thereafter, she became pregnant with his child. After their son was born, S.K. initially attempted to raise the baby alone. However, in the fall of 1997, she began living with Sparrow in the house where he resided with his mother, Susan Sparrow, and Yankowski, Sparrow’s long-time friend and roommate.
[3] It was the Crown’s theory that almost immediately after S.K. took up residence with him, Sparrow became verbally and emotionally abusive towards her and that this abuse soon escalated to include physical and sexual abuse. The Crown alleged that Yankowski came to despise S.K. and that he was a willing and active participant in almost all aspects of the abuse of S.K. As the trial judge described it, the Crown asserted that the appellants “deliberately created an exceedingly dark and oppressive atmosphere in which they consistently denigrated, demeaned and mistreated” S.K. Eventually, after about six months, S.K. managed to extricate herself from the Sparrow household. Approximately four years later, she disclosed the appellants’ abuse to the authorities.
[4] The defence theory at trial was that S.K. fabricated her allegations of abuse and her version of virtually every significant event involving the appellants, in an effort to “punish” Sparrow when she learned that he was cohabiting with another woman and her child. The appellants portrayed S.K. as a skilled liar and a promiscuous woman who had insinuated herself into the Sparrow household by falsely claiming that she was about to be evicted from her residence and thereafter manipulated Sparrow in the ill-founded hope of achieving a long-term relationship with him.
(2) Evidence at Trial
[5] S.K. was the main Crown witness at trial. She testified that when she became pregnant by Sparrow in 1995, he wanted her to have an abortion but she refused. After their son was born in June of 1996, S.K. lived alone with the baby in a subsidized housing co-op while Sparrow continued to reside with his mother and Yankowski. S.K. said that, initially, Sparrow had only limited involvement with her and their son. However, around Valentine’s Day in February of 1997, they resumed their relationship.
[6] S.K. testified that once she and Sparrow were back together, he would often visit her and their son and frequently spent the night at her co-op. S.K. stated that she loved Sparrow and hoped that they would eventually marry. She said that she and Sparrow had discussed marriage, that Sparrow knew that she loved him, that she thought he also loved her, and that he had asked her to live with him. In September or October of 1997, S.K. moved with her son into Sparrow’s house. At that time, unbeknownst to Sparrow, S.K. was pregnant with their second child.
[7] According to S.K., soon after she began living with Sparrow, both of the appellants began to subject her to what became a pattern of relentless verbal, physical, emotional and sexual abuse. S.K. portrayed Sparrow as controlling and domineering. She said that both appellants demanded that she do exactly what they told her to do. She described a horrific pattern of violence and degradation in Sparrow’s home, of which she was the constant victim. She said that, almost daily, one or both of the appellants beat and punched her on her legs with their fists, causing significant bruising to her legs. S.K. testified that they also abused her verbally, calling her “stupid” and “a hanky, like a handkerchief, something that was meant to be used and then thrown away”.
[8] By November or December 1997, the appellants’ abusive acts had escalated. S.K. said that they began to “hogtie” her by tying her hands and ankles together behind her back and fastening the bindings together, so that her legs were bent backwards and her ankles almost touched her mid-back. This was done to punish S.K. when she refused to obey the appellants or in response to other perceived transgressions by S.K. Ultimately, S.K. endured this treatment on almost a weekly basis. S.K. stated that the appellants also locked her in a small closet for short periods of time and, on at least one occasion, one of them confined her in the attic of the house.
[9] S.K. further claimed that Sparrow required her to have sexual relations with his friends, including Yankowski, ostensibly in order for Sparrow to “trust” S.K. enough to marry her and to be confident that, after their marriage, she would not “cheat” on him. S.K. acceded to this demand in part because Sparrow had told her that it was important, and something he needed her to do to build his trust in her. The ensuing sexual encounters between S.K. and some of Sparrow’s friends often took place in Sparrow’s presence.
[10] S.K. also described an especially harrowing and cruel event with Sparrow in her evidence. She said that late one evening in October of 1997, she accepted Sparrow’s invitation to accompany him on a walk in the woods with their son. Once they were deep in the woods, at a location unfamiliar to S.K., Sparrow declared that S.K. had not been listening to him or doing what he told her to do. He told her to “kiss [her] son good-bye” because “he had people waiting in there to take care of [her]” and that she was not going to come out of the woods. Sparrow then ran away, abandoning S.K. and their son as two men unknown to S.K. approached her from different directions. S.K. screamed, grabbed her son from his stroller and ran, attempting to find her way out of the woods. When she looked back, she saw Sparrow talking and laughing with the two men. When Sparrow later caught up with S.K., he claimed that “it was just a joke” and that the two men were looking for their dog, rather than S.K.
[11] Shortly after this incident, S.K. informed Sparrow of her second pregnancy. The events surrounding this pregnancy and its termination were the subject of considerable controversy at trial.
[12] S.K. claimed that Sparrow again insisted that she have an abortion. She said that he also “offered” to punch her in the stomach hard enough to cause a miscarriage. When S.K. refused this “offer”, Sparrow became angry and upset, accused S.K. of ruining his life, and threatened that he could easily hire a “crackhead” to kill both her and their young son.
[13] Ultimately, S.K. arranged to have an abortion at a private clinic. Both Sparrow and Yankowski accompanied her to the initial consultation at the clinic. Sparrow went with her on the day of the procedure. S.K. testified that one or more of the clinic nurses likely observed the bruises on her body that had been caused by the beatings inflicted by the appellants.
[14] S.K. stated that she was very upset at the prospect of the abortion because she wanted to have the baby. She said that she asked the clinic nurses to tell Sparrow that the abortion could not be performed on medical grounds. When the nurses declined this request, S.K. reluctantly underwent the abortion, contrary to her own wishes, because she feared Sparrow’s reaction if she failed to do so. S.K. also claimed that, after the operation, she requested and received the after-birth or “post-conception” materials, which she then took home and hid in Mrs. Sparrow’s freezer at the Sparrow household.
[15] According to S.K., soon after her abortion, both Sparrow and Yankowski began to repeatedly sexually assault her. She described a series of brutal and degrading sexual acts involving one or both men, including the forcible insertion of inanimate objects into her vagina and one instance of bestiality involving Sparrow’s dog. On one occasion, Sparrow also inflicted involuntary anal intercourse on S.K., apparently to “punish” her for her alleged misbehaviour. S.K. said that Sparrow expressed pleasure when she told him that this had been painful and made her bleed.
[16] S.K. testified that she remained in Sparrow’s home for about six months, notwithstanding the appellants’ abuse, because she was depressed, had no self-esteem and felt worthless. She said that she believed Sparrow’s claim that she was “damaged goods” and “stupid”, that she could not do anything useful, and that nobody else would ever love her.
[17] Eventually, sometime in February of 1998, S.K. and her son moved out of Sparrow’s home at his request. However, she continued to have sexual relations with Sparrow on occasion and again became pregnant by him, eventually giving birth to his second child. S.K.’s relationship with Sparrow ended after he began living with another woman – Corey Phoenix and Phoenix’s child. In her evidence, S.K. related that many months later, in about July of 2002 when she felt emotionally strong enough to do so, she disclosed the appellants’ abuse to the authorities.
[18] The Crown called three of S.K.’s friends – Heidi Lambert, Shonda Colley and Willow Keefe – as witnesses at trial. Lambert became acquainted with S.K. at the co-op where they both resided before S.K. moved in with Sparrow. She testified that S.K. told her that she had informed Sparrow that she was being evicted from her co-op in order to be allowed to move into Sparrow’s residence. However, Lambert said that, in fact, S.K. gave normal notice of her intention to leave the co-op and she was not evicted from the complex.
[19] Lambert, Colley and Keefe all testified that they had observed severe or extensive bruising on one of S.K.’s legs on separate occasions when, on the findings of the trial judge, S.K. was living in the Sparrow household. Lambert and Keefe also indicated that when they spoke with S.K. on the telephone while she lived with Sparrow, they overheard one or more males in the background making insulting or demeaning comments to S.K. Keefe identified the voices in question as those of the appellants. She also testified that she overheard Sparrow “speaking down” to S.K., criticising her domestic skills and ordering her to do things.
[20] S.K.’s family physician, Dr. Lawrence Barcza, testified concerning his observations and treatment of S.K. throughout 1997 and 1998. He stated that although he did not observe bruising on S.K. during several of her visits to his office, he did see bruising “all over” S.K.’s body, including on her arms and legs, during an examination of her in mid-November 1997. He indicated that after S.K. denied any trauma that could account for the bruising, he concluded that her injuries were likely due to a “spontaneous” medical condition and ordered a series of tests to determine the cause of the bruising. S.K. did not follow through with the tests. Barcza also confirmed in his testimony that he could not rule out the possibility that S.K.’s injuries had a traumatic origin.
[21] Barcza saw S.K. within one week of her abortion. He testified that as a result of post-surgical bleeding after her abortion, S.K. attended at a local hospital where she passed tissue that constituted “products of conception”.
[22] Susan Sparrow, Sparrow’s mother, testified for the defence. Although she denied seeing or hearing any abusive behaviour towards S.K. by the appellants, she did confirm three significant aspects of S.K.’s testimony. First, she said that she knew that S.K. was interested in pursuing a permanent relationship with Sparrow and that her son, in effect, had not been candid with her concerning the nature of his relationship with S.K. Second, Mrs. Sparrow indicated that while she never saw extensive bruising on S.K., she observed some bruises on her legs from time to time when she and S.K. went swimming with S.K.’s son, Mrs. Sparrow’s grandson. Finally, Mrs. Sparrow said that S.K. had mentioned to her that, after her abortion, she had placed products of conception in the freezer at Sparrow’s house. This disclosure to Mrs. Sparrow occurred before S.K. reported the appellants’ abuse to the police.
[23] The appellants testified in their own defence. Sparrow claimed that his relation-ship with S.K. was “casual”, that he made no promises to her regarding a long-term relationship, and that she “guilt-tripped” him into agreeing that she could move in with him because she said that she was being evicted from her co-op and had nowhere else to go. He denied abusing or assaulting S.K. in any way. He also denied that he had told S.K. to sleep with his friends in order to gain his trust, that he had insisted that S.K. obtain an abortion or that he had threatened her in any way should she refuse. Indeed, he denied threatening S.K. or their son at any time. Although he acknowledged that, on the prompting of his mother, he had asked S.K. to leave his house, he claimed that S.K. actually moved out because she suspected his involvement with another woman. He admitted that he had sexual relations with S.K. thereafter, albeit infrequently.
[24] Yankowski also denied abusing or assaulting S.K. at any time. He testified that while he and S.K. did not get along, he bore no animus towards her and claimed that things were peaceful and relatively amicable in the Sparrow household while S.K. was residing there. Yankowski maintained that S.K. manipulated Sparrow into allowing her to move in with him, she was very promiscuous, she routinely left responsibility for her child with Sparrow’s mother so that she would be free to socialize, and Sparrow at no time threatened S.K.
[25] There was also evidence at trial from three nurses who worked at the clinic where S.K. had her abortion. As described by the trial judge, their testimony formed part of a “multi-faceted” defence attack on S.K.’s credibility and reliability “on all the circumstances surrounding [her] abortion”. The defence maintained that, in several respects, the evidence of these witnesses contradicted S.K.’s version of the events surrounding her abortion, including: her testimony about the conduct of the clinic staff in response to her alleged reluctance to have the abortion; her claim that the nurses likely observed her bruises; and her assertion that, after her abortion, she received products of conception from clinic staff.
[26] The defence also called Sparrow’s fiancée – Corey Phoenix – and the appellants’ long-time friend and Yankowski’s cousin – Jason Flear – as witnesses. Flear testified about his observations of S.K. while she lived with Sparrow. He said that during his frequent visits to Sparrow’s home, he never saw anyone abuse or mistreat S.K. Phoenix described various alleged telephone discussions with S.K. in the fall of 2001, after S.K. had moved out of and Phoenix had moved into the Sparrow household.
(3) Trial Judge’s Findings
[27] The trial judge viewed S.K. as a credible and reliable witness and accepted her evidence. He concluded that the evidence of Lambert, Colley, Keefe and, to some extent, that of Barcza and Mrs. Sparrow – described above – tended to confirm important elements of S.K.’s testimony about her life in the Sparrow household, her hopes for a permanent relationship with Sparrow, her allegations of abusive conduct by the appellants, and her description of the injuries she sustained as a result of the abuse. In the trial judge’s opinion, Lambert, Colley and Keefe were credible and reliable witnesses. He viewed their evidence as independent, clear and convincing.
[28] In contrast, the trial judge described Sparrow’s evidence as “illogical if not nonsensical” in many respects, “at times self-serving in the extreme”, and “hollow and glib”. Similarly, the trial judge regarded Yankowski as “a very unimpressive” and “incredible and unreliable” witness. In several instances, the trial judge noted that Sparrow’s and Yankowski’s testimony was “totally unsupported by any reliable evidence and was contrary to the weight of the evidence”. He rejected the appellants’ evidence, together with that of Phoenix and Flear, and convicted the appellants of the offences charged.
III. ISSUES
[29] There are three issues on the conviction appeals. First, Sparrow argues that the trial judge erred in his assessment of S.K.’s evidence by failing to distinguish between her credibility and the reliability of her testimony and by misapprehending or ignoring evidence bearing on her credibility. In particular, Sparrow maintains that the trial judge failed to appreciate or ignored Barcza’s and the nursing witnesses’ evidence about S.K.’s injuries and the events surrounding her abortion. Second, Sparrow submits that the verdicts against him are unreasonable. Finally, Yankowski contends that the trial judge erred by shifting the burden of proof to the appellants, thereby failing to properly apply R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).
[30] There are two issues on the sentence appeals. Both appellants argue that the trial judge erred by imposing sentences that, in all the circumstances, are excessive. Sparrow further asserts that the trial judge erred by failing to impose concurrent, rather than consecutive, sentences.
IV. ANALYSIS
A. Conviction Appeals
(1) Trial Judge’s Assessment of S.K.’s Evidence
[31] We did not call on the Crown to respond to the two grounds of appeal raised by Sparrow on his conviction appeal.
[32] The trial judge’s 90-page reasons clearly indicate that he was alive to the distinction between credibility and reliability and that he took account of the evidence relied on by Sparrow to support the defence contention that S.K. fabricated her allegations of abuse and her description of the key events involving the appellants.
[33] The trial judge’s reasons contain a detailed analysis of the evidence at trial – extending to almost 80 pages – including the evidence said by Sparrow to contradict or belie S.K.’s version of events. In particular, the reasons reveal that the trial judge recognized the importance attached by the defence to the evidence of S.K.’s therapeutic abortion and of her claim, disputed by the nursing witnesses, that she had received products of conception at the abortion clinic.
[34] In the trial judge’s opinion, Barcza’s evidence of S.K.’s attendance at a hospital to stem her post-abortion hemorraging and his testimony that she passed tissue while at the hospital, afforded a potential explanation for the discrepancy in the evidence regarding whether, and where, S.K. obtained products of conception. The trial judge concluded that, “while this area of evidence was left largely undeveloped”, Barcza’s testimony supported the possibility that these products were obtained by S.K. at the hospital, rather than at the abortion clinic.
[35] In my view, contrary to Sparrow’s submission, this inference was reasonably available to the trial judge on the evidence. As the trial judge noted, S.K. was not cross-examined on her visit to the hospital following her abortion. Thus, she was not afforded an opportunity to address the possibility that she was mistaken as to how she obtained products of conception. Moreover, Barcza’s evidence on this issue was supported by hospital emergency department records and Susan Sparrow’s testimony provided some support for S.K.’s claim that she obtained products of conception after her abortion. In these circumstances, the trial judge did not err by declining to accept the defence assertion that S.K. had lied regarding the fact and manner of her receipt of these products.
[36] Overall, the trial judge devoted nine pages of his reasons to a review and analysis of the evidence of the circumstances surrounding S.K.’s abortion and of the defence claim that this evidence afforded significant proof of S.K.’s alleged tendency to fabricate. In rejecting the defence fabrication theory, the trial judge indicated that he had “carefully considered this entire body of evidence” – including the evidence from the abortion clinic nurses that they had not observed bruising on S.K.’s body or provided her with products of conception – notwithstanding that he found it of “minimal assistance in resolving the central issues” at trial. In the end, the trial judge simply disagreed with the defence view of the import of this evidence, saying:
I took a very different view of the Morgentaler evidence from that urged by the defence. I was simply unable to conclude that it provided significant evidence of S.K.’s tendency to lie and exaggerate or that it demonstrated her lack of credibility and reliability with respect to significant issues.
This body of evidence, in my judgment, demonstrated consistency in [S.K.’s] conduct relative to all of the circumstances surrounding the abortion as well as her feelings and motivations concerning this event. It is also consistent with what she told Dr. Barcza about it. In this sense, it actually buttressed her credibility and reliability relative to the nature of her relationship with Mr. Sparrow.
[37] In my opinion, there is no basis on this record for concluding that the trial judge’s appreciation of the medical or other evidence at trial was flawed. To the contrary, his comprehensive reasons reflect a firm grasp of the record and a careful evaluation of both the reliability of S.K.’s evidence and her credibility. I would reject this ground of appeal.
(2) Reasonableness of the Verdicts
[38] Sparrow’s challenge to the reasonableness of the verdicts also fails.
[39] The test for determining whether a verdict is unreasonable asks whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. See for example, R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at paras. 36-37. This test also applies to the scrutiny of verdicts rendered in judge-alone trials, like this one.
[40] I agree with the Crown’s submission that the verdicts against Sparrow were entirely reasonable. S.K.’s evidence, confirmed in several important respects by the testimony of her three friends and, in part, by that of Barcza and Mrs. Sparrow, provided ample support for the trial judge’s conclusion that the Crown had proven Sparrow’s guilt to the requisite criminal standard on all counts.
(3) Application of W.(D.)
[41] Yankowski makes two main submissions in support of his argument that the trial judge erred by failing to apply W.(D.), supra. He asserts that the trial judge prematurely concluded that he believed S.K., before considering the evidence relied on by the defence, thereby improperly shifting a burden to the appellants to demonstrate their innocence. Yankowski also contends, in effect, that the trial judge treated this case as a credibility contest where the appellants’ evidence was necessarily rejected because, by the time of his consideration of it, the trial judge had already concluded that S.K. was credible and that he believed her. I do not accept these submissions.
[42] Yankowski relies heavily on the recent decision of the Supreme Court of Canada in R. v. Y.(C.L.) (2008), 2008 SCC 2, 227 C.C.C. (3d) 129 (“C.Y.L.”). In that case, a majority of the Supreme Court allowed an appeal from the accused’s conviction on two counts of sexual assault on the ground that the trial judge’s bases for disbelieving the testimony of the accused rested on material misapprehensions of the evidence. Justice Fish, dissenting in part (Binnie and Deschamps JJ. concurring in the dissent), would have allowed the appeal on both this ground and the additional ground that the trial judge misapplied the burden of proof, contrary to W.(D.).
[43] The principles established in W.(D.) have an entrenched place in our criminal law. In W.(D.), the Supreme Court of Canada considered the manner in which a jury should be charged on the principle of reasonable doubt. Justice Cory, writing for the court, suggested that in a criminal case where credibility is the central issue and the accused testifies, the jury charge should include the following instruction in order to ensure that, as the trier of fact, the jury remains focused on reasonable doubt:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[44] In C.Y.L., Fish J. held that because the trial judge failed to adhere to the procedure outlined in W.(D.), an inadvertent and impermissible shifting of the burden of proof to the accused had occurred. In Fish J.’s opinion, this error arose because the trial judge in C.Y.L. concluded that she believed the evidence of the complainant without taking into account “at all” the contrary evidence of the accused. Justice Fish put it this way at paras. 26-27:
Before even considering the appellant’s evidence, the trial judge had concluded not only that the complainant’s evidence was credible, but that it was in fact true: “I believe the complainant”, she stated (at para. 6).
This conclusion, premature at best, amounted to a finding that the appellant was guilty as charged. As a matter of law, the appellant was presumed innocent; as a matter of fact his fate had been sealed without any consideration at all of his evidence under oath at trial. [Emphasis in original.]
[45] Yankowski argues that the same error occurred in this case. He points out that before referring in his reasons to the evidence that favoured the defence – including the appellants’ testimony – the trial judge summarized S.K.’s evidence and his views concerning it, and stated that her evidence had “the ring of truth”, that S.K. was a credible and reliable witness, and that he “believed her”.
[46] I do not accept this argument. This is not a case where the trial judge failed to recognize that W.(D.) was engaged. This case turned on credibility and both appellants testified. As a result, not surprisingly, W.(D.) figured prominently in the closing submissions of trial counsel and in the reasons of the trial judge.
[47] Virtually at the outset of his reasons, the trial judge identified the importance of W.(D.), stating: “I have applied the principles emanating from the Supreme Court of Canada’s decision in R. v. W.(D.) to my analysis of each count.” Immediately prior to this statement, he noted the Crown’s burden of proof and the requisite criminal standard of proof and commented, “[I]t is not a question of comparing or choosing between the Crown evidence and the defence evidence to see which version ought to be preferred. Throughout, the Crown has the burden of proof.” Then, at the end of his reasons, the trial judge returned to W.(D.) and described his application of it in this case.
[48] I do not read the trial judge’s references to W.(D.) as a hollow or rote nod to the approach dictated by W.(D.) To the contrary, I agree with the Crown that the reasons show that the W.(D.) principles guided the trial judge’s reasoning. Like C.Y.L., this was a judge-alone trial. A trial judge is presumed to know a principle as elementary as the presumption of innocence: C.Y.L. at para. 10. This trial judge was very experienced. His own words confirm that he was alert to the principles established in W.(D.), the relevance of those principles to his assessment of credibility in this case, and the fact that the case was not a credibility contest between S.K. and the appellants.
[49] The trial judge began his reasons by outlining the legal principles that informed his assessment of the evidence. This review included an explicit reference to W.(D.), described above, and to the burden of proof that attached to the Crown. In addition, the trial judge noted that the historical nature of S.K.’s allegations of abuse and the fact that they rested, to a significant extent, on the “unconfirmed evidence of a single complainant”, required that S.K.’s evidence be scrutinized with special care. The trial judge then undertook a detailed review and analysis of S.K.’s testimony. He next conducted a similar review and evaluation of the evidence that supported or tended to support her testimony, followed by a review and analysis of the appellants’ testimony and the other evidence that conflicted with or tended to undercut S.K.’s version of events.
[50] In his discussion of S.K.’s testimony, before referring to the evidence led by the defence, the trial judge indicated that he viewed S.K. as credible and reliable, that he did not accept the defence contention that she was “cunning and manipulative”, and that he believed her. In addition, when subsequently reviewing the evidence that the appellants claimed supported their position that S.K. was a manipulative liar, the trial judge stated, using the past tense, that he had “rejected” the defence theory of fabrication by S.K., and that he had “accepted” S.K.’s own evidence or that of other witnesses whose testimony he viewed as supportive of S.K.’s evidence.
[51] Yankowski maintains that the organization of the reasons and the trial judge’s above-mentioned comments demonstrate that the controlling point for the trial judge’s assessment of the evidence was his premature finding that he believed S.K. This led, Yankowski says, to the inevitable discounting by the trial judge of the evidence favourable to the defence, contrary to W.(D.).
[52] I disagree. In my view, neither the trial judge’s approach to the articulation of his reasoning process nor his challenged comments establish that he failed to properly assess the evidence favourable to the defence or that he neglected to consider whether, without believing the appellants, he was left with a reasonable doubt as to their guilt on the whole of the evidence.
[53] The trial judge was not obliged to adopt any particular structure in fashioning his reasons or a specific order in reviewing the evidence adduced at trial. Nor was he required to articulate the W.(D.) principles at each stage of his analysis of the evidence. Moreover, the jurisprudence of the Supreme Court of Canada confirms that the steps identified in W.(D.) need not be religiously followed or articulated: see C.Y.L. at paras. 7-9. What is required is that the trier of fact remain focused on the paramount question, namely, whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: C.Y.L. at para. 6. See also R. v. Minuskin (2003), 2003 11604 (ON CA), 68 O.R. (3d) 577 (C.A.). In my view, read as a whole, the trial judge’s reasons demonstrate that his assessment of the evidence met this test.
[54] In C.Y.L., Abella J., writing for the majority, observed at para. 12:
I find it difficult to see how the sequence in which the trial judge set out her findings of credibility can be said to under-mine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt.
These comments are apposite here.
[55] The trial judge’s challenged remarks, described above, cannot be viewed in isolation or in a piecemeal fashion. Rather, the reasons must be read and interpreted as a whole. To do otherwise would distort the substance of the trial judge’s reasoning. This proposition was well-expressed by Doherty J.A. of this court in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at 203-04:
Where a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law. [Citations omitted.]
A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road-map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.
[56] Justice Doherty’s comments were accepted by both the majority and the minority of the Supreme Court in C.Y.L. (Abella J. at para. 11 and Fish J. at para. 29). The majority in C.Y.L. also accepted Doherty J.A.’s caution in Morrissey at pp. 203-5 that appellate judges are not to dissect, parse, or microscopically examine the reasons of a trial judge (C.Y.L. at para. 11). Contrary to this limitation on appellate review, this is precisely what Yankowski invites this court to do.
[57] I recognize that, considered in isolation, there are passages in the trial judge’s reasons that offer some support for Yankowski’s claim that the trial judge concluded that he believed S.K. and, based on that belief, thereafter accepted the evidence of other witnesses that tended to support S.K.’s testimony without factoring the evidence that favoured the defence into his analysis. As the Crown acknowledged before this court, it would have been preferable if the trial judge had not used the past tense in expressing his views of the evidence favourable to the Crown prior to adverting to the evidence relied on by the defence.
[58] However, viewed in their entirety, the trial judge’s reasons may fairly be interpreted as simply explaining, in considerable detail and in accordance with W. (D.), why he concluded that the evidence he accepted was credible and reliable, why he rejected the evidence that favoured the defence (including the appellants’ testimony), and why, in the end, he concluded on the whole of the evidence that the Crown had met its burden to prove the appellants’ guilt beyond a reasonable doubt.
[59] Both the organization of the trial judge’s reasons and the language that he used to describe his credibility and reliability findings must be viewed in this context. The trial judge, in my opinion, was simply attempting to explain what he decided and why he made that decision. His reasons were responsive to the issues and the defence raised at trial, especially the vigorous defence attack on S.K.’s credibility and reliability. As Doherty J.A. noted in Morrissey at p. 204, in cases where, as here, “the result turns on fact-finding and not on the application of contested legal principles, it is appropriate that the reasons should focus on telling the parties what evidence was believed and why it was believed”.
[60] This interpretation of the trial judge’s reasons is reinforced by his concluding comments. After reviewing all the evidence at trial and detailing his assessment of that evidence, the trial judge stated in respect of each appellant:
I applied the R. v. W.(D.) test to the evidence on each count. I believed and accepted the Crown’s evidence against him upon each count. I accepted S.K.’s evidence as credible and reliable. In a number of significant respects, other credible and reliable evidence confirmed her version of events. I rejected the evidence of [the appellant in question]. His evidence, together with the other defence evidence, did not lead to a reasonable doubt.
[61] The trial judge then added, again in respect of each appellant:
Considering all of the admissible evidence on each count, I was satisfied beyond a reasonable doubt of [Sparrow’s or Yankowski’s] guilt. On each count … the Crown met its burden to prove his guilt, beyond a reasonable doubt. [Emphasis added.]
[62] Thus, both at the beginning and at the end of his reasons the trial judge explicitly confirmed his focus on the analytical framework established in W.(D.). By his above-quoted comments, he indicated that he had tested the whole of the evidence against the steps outlined in W.(D.). There is no reason to believe that this seasoned trial judge did not do precisely what he said he had done.
[63] There is a further reason for rejecting Yankowski’s claim that the trial judge failed to properly apply W. (D.). The primary evidence of fabrication by S.K. came from the appellants’ own testimony. The trial judge reviewed the appellants’ evidence at length and provided detailed reasons for his rejection of it. Indeed, he listed fifteen specific areas of Sparrow’s evidence that he felt demonstrated that his testimony was “unworthy of belief, unreliable or both”. He also listed nine separate factors that led him to disbelieve Yankowski and to regard his testimony as “dubious”. His reasons for rejecting the appellants’ testimony, which went well beyond the fact that he believed S.K.’s evidence, were thoughtful and compelling and his findings concerning their evidence were open to him on the record. There is nothing objectionable in the trial judge’s assessment of the appellants’ evidence in light of the whole of the evidence, including S.K.’s testimony.
[64] Moreover, the trial judge was equally thorough and careful in his approach to the other evidence bearing on the issue of possible fabrication by S.K. Three examples will suffice to illustrate this point. First, Yankowski argues that the trial judge failed to consider the significance of Heidi Lambert’s evidence that S.K. was not evicted from her co-op but, rather, departed from the co-op under normal circumstances. According to Yankowski, this evidence established both that S.K. had lied to and manipulated Sparrow by concocting a story of an eviction from her co-op in order to gain entry to the Sparrow household and, further, that she was prepared to deceive the court throughout her testimony.
[65] But the trial judge was alive to Lambert’s evidence on this issue and mentioned it in his review of her testimony. Subsequently in his reasons, he elaborated on why he regarded S.K.’s alleged misrepresentation to Sparrow on this issue as not “terribly significant” and outlined the evidence that afforded an explanation as to why S.K. may have falsely claimed to Sparrow that she had been evicted. The trial judge thus recognized the inconsistency in the evidence on this issue. He addressed the significance of the inconsistency both from the perspective that S.K. may in fact have lied to Sparrow about an eviction from her residence – as the defence claimed – and, as well, from the perspective that the alleged lie had not occurred. This approach expressly took account of the defence contention that S.K. had lied to Sparrow about the reason for her departure from her co-op in order to manipulate him.
[66] Second, Yankowski submits that the trial judge’s assessment of the evidence of the abortion clinic nursing staff reveals that he undertook a slanted analysis of this evidence in order to reconcile it with S.K.’s testimony. I disagree.
[67] As I stated earlier, the trial judge’s reasons indicate that he appreciated that there was a conflict in the evidence regarding whether, and where, S.K. obtained products of conception following her abortion and concerning S.K.’s interactions with the clinic nursing staff and their observations of her. He was clearly mindful of the defence claim that S.K.’s evidence on these matters was fabricated. As I have mentioned, the trial judge explicitly stated that he had reviewed this entire “body of evidence” and explained why he found it unhelpful. He then addressed some of the alleged inconsistencies and contradictions in the evidence as stressed by the defence. In so doing, the trial judge explained why he rejected the defence assertion that S.K. had fabricated and exaggerated the events surrounding her abortion and why he ultimately concluded that the evidence supported S.K.’s version of what had occurred in relation to her abortion. The trial judge was required to do no more.
[68] Finally, Yankowski argues that the trial judge’s treatment of the evidence of S.K.’s motive to fabricate reveals that he wrongly proceeded from the premise that S.K. had been truthful in her evidence. Once again, I disagree.
[69] The trial judge was alert to the defence claim that S.K. fabricated her allegations of abuse to “punish” Sparrow for his involvement with Phoenix. The trial judge identified and addressed this issue as an area of inconsistency or contradiction in the evidence. He reviewed the defence position on this issue, reiterated the Crown’s burden of proof, and pointed out that S.K. had learned of Sparrow’s involvement with other women, including Phoenix, many months before making her allegations of abuse known to the authorities. I see no error in the trial judge’s approach to the evidence of S.K.’s alleged motive to fabricate.
[70] Accordingly, contrary to Yankowski’s submissions, I conclude that the trial judge did come to grips with the defence theory of fabrication and with the evidence that tended to support or undermine that theory. In my view, his evaluation of that evidence was even-handed and thorough. His reasons directly responded to the defence attack on S.K.’s credibility and reliability. They reveal that the trial judge understood that the whole of the evidence had to be considered in determining the culpability of the appellants and his verdicts were based on his appreciation of all the evidence. His reasons satisfy the requirements of W.(D.).
[71] I would therefore dismiss Yankowski’s conviction appeal.
B. Sentence Appeals
[72] I would also dismiss the appellants’ sentence appeals. Given the circumstances of these offences and these offenders, the sentences imposed were entirely fit.
[73] The appellants’ horrendous abuse of S.K., a young and vulnerable woman, was appalling and sustained. It occurred in the context of a domestic relationship in which Sparrow was a direct participant and of which Yankowski was completely aware. On the findings of the trial judge, it included many particularly dehumanizing and degrading acts, in which both men participated, that were deliberately designed to control, terrorize and subjugate S.K. and to rob her of her dignity, autonomy and feelings of self-worth. The trial judge held that the appellants’ joint sexual offences were “extremely grave”, involving “brutality, depravity and dehumanization”. In the trial judge’s view, “[t]he overall treatment by both offenders of the victim was despicable and deplorable.” I agree. In addition, the appellants’ wrongful acts had a profoundly negative impact on S.K.
[74] In imposing sentence on the appellants, the trial judge specifically took account of the totality principle and the range of sentences proposed by the defence and then stated: “Manifestly, the level of moral culpability of each of the two offenders is extremely high and the egregious facts in support of these convictions require a very severe penalty.” Again, I agree.
[75] Sparrow’s eight-year sentence of imprisonment breaks down as follows:
• three counts of sexual assault – five years imprisonment, concurrent
• one count of sexual assault – one year imprisonment, consecutive
• unlawful confinement – one year imprisonment, consecutive
• uttering death threats – one year imprisonment, consecutive
• uttering threats to cause bodily harm – one year imprisonment, concurrent
• assault – one year imprisonment, concurrent
[76] The trial judge’s discretionary decision to impose consecutive, rather than concurrent, sentences in respect of some of Sparrow’s convictions attracts considerable deference from this court. I see no basis for appellate interference with that decision. Given the circumstances that I have described above, Sparrow’s overall sentence is neither unduly long or harsh. Nor is there a sufficiently close factual nexus between the offences in question as to render the consecutive sentences imposed inappropriate.
CONCLUSION
[77] For the reasons given, I would dismiss the appellants’ conviction appeals. I would grant leave to appeal sentence and dismiss the appellants’ sentence appeals.
RELEASED:
“SEP 10 2008” “E.A. Cronk J.A.”
“EAC” “I agree Dennis O’Connor A.C.J.O.”
“I agree E.E. Gillese J.A.”