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. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
CITARION: R v. R.A.G., 2008 ONCA 829
DATE: 20081205
DOCKET: C46513
COURT OF APPEAL FOR ONTARIO
Sharpe, Blair, Rouleau JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
R.A.G.
Appellant
Joseph Di Luca, for the appellant
Greg Skerkowski, for the respondent
Heard: December 3, 2008
On appeal from the judgment of Justice S. Ray of the Ontario Court of Justice dated September 28, 2006.
R. A. Blair J.A.:
Introduction
[1] On September 28, 2006, the appellant was convicted by Justice S. Ray of the Ontario Court of Justice on three counts of sexual assault, one count of assault, and one count of criminal harassment under ss. 271, 265, and 264 of the Criminal Code. He was sentenced to imprisonment for three years, his name was added to the National Sex Offender Registry and a DNA sample was collected for the National DNA Data Bank. He appeals from his convictions on the three counts of sexual assault and seeks leave to appeal and, if leave is granted, appeals his sentence.
[2] For the reasons that follow, I would allow the appeal and order a new trial.
Facts
[3] The appellant and the complainant were married and had one child. However, they were separated at the time the events giving rise to the charges occurred. The complainant had moved out of the family home for a period of time to live with a friend, but had returned, with their child, to live at home until her new accommodation was ready. There is controversy over whether the return home had a reconciliation aspect to it, but the complainant was adamant in her testimony that it did not.
[4] The complainant alleged that during the period April 1–16, 2005, the appellant – who was supposed to be sleeping on the couch – touched her vaginal area on two occasions while she was asleep with the child by her side in her bed (Counts 1 and 3). The appellant denied this ever happened. The complainant also alleged that he forced her to have non-consensual sexual intercourse, on a third occasion, which resulted in her becoming pregnant (she subsequently had an abortion when she discovered she was pregnant) (Count 2). The appellant insisted that this act of sexual intercourse was consensual and had been initiated by the complainant. He said the complainant told him not to get excited, however, because it was not an act of reconciliation and that she still intended to move out.
[5] The events giving rise to the assault charge (Count 4) occurred in June, 2005, on an occasion when the complainant was visiting her friend, Ms. M., who happened to live in the same building as the appellant at the time. A confrontation admittedly occurred between the complainant and the appellant, the complainant was pushed and/or choked, her clothing was torn, and she was burned on the arm by a citronella candle which Ms. M. said was thrown at the complainant by the appellant during the altercation.
[6] Count 5, the criminal harassment charge, was based on the appellant’s conduct towards the complainant throughout this entire period.
[7] Both the complainant and the appellant testified at trial. They gave dramatically different versions of the events. Ms. M. also testified with respect to the altercation that took place in her garden and, while there were some differences between her evidence and that of the complainant, her evidence more or less corroborated the complainant’s in relation to that event. The central issue at trial was credibility.
[8] At the conclusion of the Crown’s case, after three days of trial, the appellant acknowledged that the Crown had made out its case with respect to the assault and criminal harassment charges. His counsel led evidence briefly during the appellant’s testimony to establish the basis of these charges. Without objection by the defence, Crown counsel nonetheless cross-examined the appellant vigorously with respect to his version of events relating to the assault charge and – as Mr. Skerkowski noted in his factum – “the appellant did not do well in cross-examination”.
[9] The trial judge convicted. She did not believe the appellant, finding that his evidence was internally and externally inconsistent, non-sensical, changeable, and the product of an admittedly bad memory. She believed the complainant, finding her evidence remarkably particular, non-embellished, unshaken in cross-examination, confirmed by the evidence of Ms. M. and not designed to put herself in a good light or the appellant in the worst possible light. She concluded that the appellant’s evidence was totally incredible and that it did not leave her with a reasonable doubt. The reasons did not address whether, nonetheless, there was anything in the evidence as a whole that would leave her with a reasonable doubt, the third step in the analysis called for by R v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
Analysis
[10] On behalf of the appellant, Mr. Di Luca attacks the trial judge’s decision on two general bases. First, he submits that the trial judge failed to give adequate reasons to explain why she found the complainant credible and the appellant not. Secondly, he argues that she failed to apply the W. (D.) test properly and subtly shifted the burden of proof to the defence.
[11] I agree that the appeal should be allowed for two reasons.
[12] First, although the appellant had admitted that the Crown had proved the case against him on the assault charge arising out of the altercation in Ms. M.’s garden, the trial judge appears to have focused on that incident primarily and to have concluded that because she disbelieved the appellant in relation to it and he was guilty of assault, she also disbelieved him in relation to the sexual assault incidents and therefore, he must be guilty of them as well. She devoted a disproportionate part of her 22-page decision the assault incident and her analysis of the evidence in relation to it.
[13] It was open to the trial judge to consider her credibility findings with respect to the assault when addressing the credibility issues between the complainant and the appellant with respect to the sexual assault charges. However, on the facts of this case – where the appellant’s credibility was assessed on counts where guilt was conceded and the disputed counts involved sexual conduct in significantly different circumstances – the credibility findings on one count cannot automatically be transferred to the other counts without at least some explanation by the trial judge as to why that consequence should follow. There is no such explanation here.
[14] Secondly, although the foregoing flaw might not be sufficient alone to warrant a new trial – since the difficult exercise of making credibility findings is generally the trial judge’s call – there are several important pieces of evidence that the trial judge either ignores in her reasons or treats in a fashion that makes no logical sense. In combination with the overemphasis on the assault incident, these defects in her analysis make the sexual assault convictions unsafe to uphold, in my view.
[15] For example, the trial judge gave little consideration to the evidence of a “love letter” that the complainant is alleged to have written to a former lover in Portugal. In that letter, the complainant said some positive things about the appellant and suggested that the child she aborted may have been the child of the man in Portugal.
[16] The complainant was confronted with the letter during cross-examination. At first she acknowledged the letter, but the following day took the position that it was a forgery. The trial judge dealt with the letter with these comments:
The Crown suggests that the letter found by [the appellant] in [the complainant’s] purse is a red herring. The evidence falls short of showing whether it’s the one she wrote. She could easily have denied she wrote any letter at all, but she did admit that she did write one, it was just not that one. [Emphasis added]
[17] The issue, however, was not whether the evidence proved the letter was hers. The issue was whether the letter might raise a reasonable doubt in favour of the appellant. The trial judge did not consider it in that light. The letter contained the following remarks:
It took four years for me to forget all the bad things you did to me, that when I decided to marry the man that put up with me for two years and helped me live. Even though he too hurt me to he [always] supported my decisions even though I did not treat him good all the time he still treated me good. How could I have been good to someone when I had so much anger inside of me. Finally I was able to put all my memories of you behind me and go-on with my life with my husband and daughter (so you will know I was pregnant shortly after the marriage).
I was pregnant and wasn’t sure if it was yours, I had to make a very difficult [decision], one that I imagined that would never happen, one that you did not support me whatsoever, it cost me $2,000 to know if you were the father of the child. I’m almost sure that my husband is not the father. … You will never know the pain someone feels when they go [through] an abortion … I realized I have a good husband thats been [through] everything with me and still he stands by my side. [Emphasis added.]
[18] Apart from the positive references to the appellant, the references to the aborted child required an explanation. The aborted child could not be the couple’s existing child (born shortly after the marriage), and the context of the second paragraph cited above is a trip that the complainant took to Portugal not long before the events in question. The letter suggests the appellant is not the father of the aborted child, whereas the complainant’s position at trial was that the non-consensual sexual intercourse had resulted in a pregnancy that she aborted. This is a critical piece of evidence that the trial judge appears to have ignored. We do not know whether she was satisfied it did not give rise to a reasonable doubt and, if not, why.
[19] Further, in making her credibility determinations, the trial judge concluded that if “the alleged rape had happened in the manner suggested by [the appellant] and they had really reconciled, she would not have hastened her efforts to leave and continue with the original plan of moving out.” That conclusion may have been open to her. However, the appellant’s evidence was that after what he described as a consensual act of sex, the complainant had told him not to get excited because the sex did not mean anything and she did not want to fall in love with him again. The trial judge gave no consideration to this evidence, which is entirely consistent with a consensual act of momentary physical pleasure and the complainant still pursuing her plans to move.
[20] Finally, the trial judge’s treatment of the complainant’s sudden allegation during her testimony at trial of a fourth incident of sexual impropriety – not revealed to anyone before – is perplexing at least. According to the complainant, this fourth incident was the most recent, and the one that triggered her reporting of the events leading to the charges. It formed what appears to have been for the trial judge the central example of the complainant’s restraint in not embellishing her testimony. Instead of being a factor that might undermine the complainant’s credibility, it became a positive factor underpinning it. I do not understand the logic of this treatment. The trial judge’s finding that the complainant was “restrained and did not take advantage of golden opportunities to embellish” her testimony was a key factor in her credibility findings in favour of the complainant.
[21] A trial judge is not required to refer to every piece of evidence in explaining his or her reasons. But where the reasons fail to set out the path explaining and justifying the trial judge’s conclusions regarding credibility and suggest a failure to address, or a misapprehension of, important pieces of evidence in her reasons, a new trial is warranted. Here, the foregoing factors, when taken together, lead to such a result.
[22] This is particularly so where it appears – as it does here – that the trial judge may not have followed the proper W. (D.) analysis. The trial judge disbelieved the appellant. She found that his evidence did not raise a reasonable doubt in her mind. But she did not consider whether, on all of the evidence that she did accept, there was a reasonable doubt as to the appellant’s guilt on the sexual assault charges. Had she done so, and had she considered the evidentiary matters outlined above in that context, the result might have been different.
[23] A new trial on the sexual assault charges must be ordered.
Sentence
[24] The Crown fairly concedes that, if the conviction appeal on the sexual assault charges is allowed, the sentence of 3 years imposed by the trial judge is not warranted for the assault and criminal harassment charges. Mr. Di Luca suggested a sentence of 30 days would be appropriate in such circumstances. Mr. Skerkowski suggested 4-6 months.
[25] The appellant has served a period of 3 months. In my view a sentence of time served for the assault and criminal harassment charges is appropriate in the circumstances.
Disposition
[26] I would therefore allow the conviction appeal and order a new trial on Counts 1, 2 and 3, and as well set aside the order adding the appellant’s name to the National Sex Registry and requiring a DNA sample. I would grant leave to appeal sentence and allow the appeal by substituting a sentence of 3 months imprisonment on counts 4 and 5, concurrent.
“R.A. Blair J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree Paul Rouleau J.A.”