WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
CITATION: R. v. R.C., 2008 ONCA 98
DATE: 20080213
DOCKET: C46364
COURT OF APPEAL FOR ONTARIO
DOHERTY, BORINS and LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
RYAN C. (A young person)
Appellant
Morris Manning, Q.C. and Timothy J. Riddell for the appellant
Christine Tier for the respondent
Heard: February 6, 2008
On appeal from the conviction entered by Justice Gilles Renaud of the Ontario Court of Justice on September 9, 2005 and the sentence imposed on December 1, 2006.
ENDORSEMENT
[1] The appellant was convicted of sexual assault and sentenced to a year in secure custody. He appeals conviction and sentence.
[2] The complainant and the appellant were casual friends and rented apartments in the same house. On the day of the alleged offence, the appellant helped the complainant get into her apartment when she was unable to unlock her door. The complainant alleged that shortly after doing so, the appellant followed her into her bedroom and raped her.
[3] The appellant testified and agreed that he helped the complainant get into her apartment. He testified that the sexual intercourse was consensual and that it ended when the complainant told him she had had sex with her ex-boyfriend earlier that day.
[4] The outcome of the trial turned primarily on the trial judge’s assessment of the evidence of the appellant and the complainant and his application of the burden of proof.
[5] The trial judge gave lengthy reasons for judgment in which he quoted extensively from a transcript of the evidence. He concluded that the complainant was credible on the essential parts of her evidence and that the appellant was a liar. The trial judge gave many reasons for his credibility assessments.
[6] The reasons for judgment demonstrate a detailed review of the evidence. They also reveal a strained and artificial examination of the evidence of both the complainant and the appellant. The trial judge isolates various parts of the evidence that address specific things that occurred during the interaction between the appellant and the complainant. He subjects each of these small pieces of a much larger evidentiary picture to a microscopic and discrete analysis. That approach is not conducive to accurate fact-finding or fair credibility assessments. A reading of the trial judge’s lengthy reasons suggests that he missed the forest for the trees.
[7] Counsel submits that the trial judge erred in rejecting the appellant’s evidence as unworthy of belief for reasons that were not supported by the record. The reasons for the trial judge’s total rejection of the appellant’s exculpatory evidence are set out below:
At the conclusion of my review of the entire case, I have found that I cannot credit the following elements of the testimony of the defendant. Firstly, I reject totally, as being false and mendacious, the denial advanced by the defendant of any knowledge of the quite recent sexual activity of the complainant. Secondly, I reject totally, as also being false and mendacious, the testimony advanced by the defendant to the effect that he had not paid much attention to the romantic situation of the complainant. Thirdly, I cannot credit in any respect his account of the actions he ascribes to himself and to the complainant during the sexual act by reason of the almost total absence of details in chief, and in cross-examination until pressed by the prosecutor. Accordingly, I have no confidence in his general credit as a witness by reason of the combined effect of the three above noted conclusions. [Emphasis added.]
[8] Counsel submits that none of the three findings of the trial judge are supported by the trial record. We need address only the finding that the absence of detail in the appellant’s evidence warranted the rejection of that evidence as incredible. That finding played a crucial role in the trial judge’s assessment as he referred to it on several occasions during his reasons.
[9] We have reviewed the evidence of the appellant. He answered the questions that were put to him. His failure to offer detail not sought by the questions asked cannot provide a reasonable basis for disbelieving the appellant’s evidence. Counsel examining the appellant in-chief may have chosen, for tactical reasons, to avoid detail, leaving it to the cross-examiner to extract details. Whatever the merits of that tactic, it cannot be used as a ground for disbelieving the evidence of the appellant who simply answered the questions put to him by his counsel.
[10] We also do not agree that the appellant’s evidence concerning the interaction with the complainant was devoid of detail in his examination-in-chief. The examination-in-chief was not lengthy but it did provide some detail on a level that was not inappropriate to the subject matter of the questions. It is hardly surprising that a witness, be it the complainant or the accused, when asked to describe an act of sexual intercourse cannot necessarily go into the minute detail of each and every physical movement that occurred during the sexual activity.
[11] The trial judge found against the appellant’s credibility on a basis that was not open to him. The verdict cannot stand.
[12] Counsel for the appellant submits that the trial record does not reasonably support any verdict other than acquittal. We cannot agree with that submission. The complainant’s evidence provided a basis upon which a reasonable trier of fact could convict.
[13] We need not address the numerous other arguments advanced on behalf of the appellant. We would observe, however, that there is merit to the submission made by the Crown in the course of oral argument, that some of the deficiencies found by the trial judge in the complainant’s evidence were also unsupported by the record. Others were so minor as to justify no role in a reasonable assessment of the reliability of her evidence. The errors in the trial judge’s treatment of the complainant’s evidence do not, however, assist the Crown in resisting the appellant’s appeal.
[14] The appeal is allowed, the conviction is quashed and a new trial is ordered.
“Doherty J.A.”
“S. Borins J.A.”
“S. Lang J.A.”