R. v. Im, 2009 ONCA 101

CITATION: R. v. Im, 2009 ONCA 101

DATE: 20090202

DOCKET: C47554

COURT OF APPEAL FOR ONTARIO

Armstrong, Lang and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charles Im

Applicant/Appellant

Jody H. Berkes, for the applicant/appellant

Andreea Baiasu, for the respondent

Heard: September 10, 2008

On appeal from the judgment of Justice Andromache Karakatsanis of the Superior Court of Justice, dated July 13, 2007.

Epstein J.A.:

I. OVERVIEW

[1] The applicant, Charles Im, seeks leave to appeal from the judgment of the summary conviction appeal court, which upheld his conviction for sexual assault. If successful in obtaining leave, he seeks an order allowing the appeal, quashing the conviction, and ordering a new trial.

[2] Charles Im, is a medical doctor. In July 2004, he was charged with two counts of sexual assault that arose out of allegations made by two of his patients. The Crown elected to proceed summarily and the trial took place before a judge of the Ontario Court of Justice. On December 13, 2005, the trial judge convicted Dr. Im of sexually assaulting one of his patients. He was acquitted on the second count involving a different patient.

[3] On March 6, 2006, Dr. Im was sentenced to a six-month conditional sentence followed by three years’ probation.

[4] Both parties pursued a summary conviction appeal in the Superior Court of Justice. In reasons dated July 13, 2007, the summary conviction appeal judge dismissed both appeals.

[5] Dr. Im commenced an application for leave to appeal his conviction to this court. The application for leave and the appeal were heard together. The respondent has argued that leave should not be granted for a second appeal.

[6] For the reasons that follow, I would dismiss the application for leave to appeal.

II. HISTORY IN THE COURTS BELOW

[7] At trial, Dr. Im and the complainant were the only witnesses who testified. Each gave a very different version of events. The complainant testified that, while Dr. Im was checking her eyes, he rubbed his waist and front area, an area she then identified as his “private” and his “penis”, into her knees. She added that she could feel that that part of his body was hard. According to the complainant’s evidence, when Dr. Im finished and turned around, she noticed that he had an erection. In his evidence, Dr. Im denied that he intentionally touched the complainant and further denied that he had an erection.

[8] The trial judge was satisfied beyond a reasonable doubt that a sexual assault had occurred as described by the complainant and convicted Dr. Im.

[9] Before the summary conviction appeal court, Dr. Im alleged that the trial judge failed to address inconsistencies in the complainant’s evidence that were apparent when her trial testimony was compared to her statement to the police and that the trial judge failed to give adequate reasons for believing the complainant’s testimony. In the result, Dr. Im argued that the trial judge’s reasons were insufficient as they did not adequately explain the foundation for the conviction.

[10] The summary conviction appeal judge found that the trial judge’s reasons did not fail to address the inconsistencies as alleged by Dr. Im. Dr. Im’s central argument was addressed by the summary conviction appeal court judge, as follows:

In my view these reasons read as a whole are sufficient to understand the reason why the trial judge accepted the evidence of the complainant. With respect to the defence submission that the evidence of the complainant differed from her video statement, it is evident from the reasons that the trial judge accepted the video statement that she was touched by the stomach as not inconsistent with evidence that she was touched by the waist/genital area, given where she was pointing in the video. It is evident that the trial judge did not consider that the video statement was inconsistent with the evidence given at trial that she was rubbed by the waist/genital area, or that the accused was rubbing against her. She further considered that English was not the complainant’s first language. The trial judge dealt directly with the issue of whether the complaint could have been mistaken about whether she later saw an erection and accepted that as a mature woman, and a mother of four children, she would not have been mistaken. The trial judge also noted the circumstances of the preceding conversation, that close contact was avoidable for the purposes of the examination, that the complainant did not have any questions or ambiguity about the nature of the touching at the time of the examination, and that she complained to police immediately. The trial judge did not specially comment on the fact that the complainant testified at trial that what she felt was hard but failed to mention that it was hard on the video statement. However, the trial judge did not specifically refer at all to the evidence at trial that what was rubbing against her was hard. It appears that the trial judge did not rely upon that specific evidence but rather relied upon all the other circumstances noted above.

[11] The primary inconsistency that Dr. Im alleged the trial judge failed to address related to the complainant’s videotaped complaint to the police. On the video of her police statement, the complainant said that Dr. Im rubbed her with his stomach and did not mention his penis. However, the summary conviction appeal judge concluded that the trial judge’s reasons addressed this issue – the trial judge concluded, from the video, that there was no inconsistency in the complainant’s evidence. When the complainant spoke about Dr. Im’s stomach in the video statement, and about what part of his body had touched her, she illustrated by pointing to the waist and lower area. Further, in the video, the complainant put her hands at the exact same height when describing where she saw his erection.

[12] The summary conviction appeal judge concluded that the reasons, read as a whole, sufficiently explained why the trial judge accepted the complainant’s evidence and ultimately was persuaded, beyond a reasonable doubt, that a sexual assault had taken place.

[13] In this court, Dr. Im renewed the arguments advanced before the summary conviction appeal judge. He also advanced a new argument that the trial judge erred in the application of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, thereby failing to give Dr. Im the benefit of a reasonable doubt.

III. ANALYSIS

[14] The history I have just described is similar to that outlined in R. v. R.(R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, a recent decision of this court. In that case, Doherty J.A. examined the scope of appellate review contemplated by s. 839(1) of the Criminal Code. He concluded that a second appeal in summary conviction proceedings should be the exception and not the rule.

[15] Doherty J.A. concluded that access to this court should be limited to cases in which the applicant can demonstrate exceptional circumstances justifying a second level of appeal. He went on to identify two categories of cases in which leave to appeal may be granted. First, if an issue raised has significance to the administration of justice beyond the particular case, then leave to appeal may be granted if the grounds are at least arguable. Second, where the merits appear to be very strong, leave to appeal may be granted even if the issues have no general importance, especially if the conviction in issue is serious and the applicant is facing a significant deprivation of his or her liberty.

[16] Neither circumstance exists here.

[17] First, while the issues raised are clearly important to those involved – particularly Dr. Im – this case does not raise an issue of significance to the general administration of criminal justice. The arguments raised are based on well-settled legal principles. This court is essentially being asked to use the same tools to reach a different conclusion than did the courts below.

[18] Second, in my view, the merits of the appeal from the decision of the summary conviction appeal court are far from strong: that court addressed Dr. Im’s concerns about the trial judge’s reasons.

[19] My view of the merits of the appeal is supported by the Supreme Court of Canada’s recent decision in R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290, in which the court considered the sufficiency of a trial judge’s reasons. The case turned primarily on credibility findings which led to the accused’s conviction of three offences relating to a series of sexual assaults. The British Columbia Court of Appeal allowed the accused’s appeal with respect to two counts on the basis that the trial judge’s reasons were deficient, essentially for the same reasons Dr. Im advances before this court – failing to give adequate reasons for conclusions as to credibility, and in particular, in failing to address inconsistencies in the complainant’s testimony.

[20] In allowing the appeal and restoring the convictions, the Supreme Court of Canada provided guidance on the role of appellate courts in assessing the sufficiency of reasons. At para. 15, the court explained that a trial judge’s reasons “must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.” The reasons will not be found to have deprived the appellant of the right to meaningful appellate review if, considered as a whole, in the context of the evidentiary record, the live issues, and the submissions of counsel, they show why the judge decided as he or she did.

[21] This case, like R.E.M., turned on credibility. The trial judge found the complainant to be more credible than Dr. Im. Even though there were problematic aspects of the evidence of both witnesses, the reasons show that on the important points, the trial judge accepted the complainant’s evidence and rejected that of Dr. Im, and why. Put simply, the reasons disclose the foundation of the conviction, as the Supreme Court of Canada stated they must in R.E.M. Consequently, I do not regard the appeal as particularly meritorious.

[22] Further, quoting Doherty J.A. in R.(R.), I am not persuaded that the impact of this conviction on Dr. Im would amount to a “significant deprivation” of his liberty. He received a lenient disposition in the form of a six-month conditional sentence followed by a period of probation.

[23] In considering the proposed ground of appeal relating to the application of W.(D.), I would note that in R.(R.), it was held that “[g]enerally speaking, this court should not entertain legal arguments that were not advanced at the first level of appeal.” No justification was advanced nor, in these circumstances, is there one that warrants this court’s consideration of this new argument.

[24] Having regard to the nature of the arguments raised, the merit of those arguments and the impact of the conviction on Dr. Im, I do not regard this as an appropriate case for granting leave to appeal.

IV. DISPOSITION

[25] I would dismiss the application for leave to appeal.

“Gloria Epstein J.A.”

“I agree S.E. Lang J.A.”

Armstrong J.A. (Dissenting):

[26] I disagree with the conclusion reached by my colleague, Epstein J.A. I would allow the application for leave to appeal. I would also allow the appeal and order a new trial for the brief reasons that follow.

[27] Doherty J.A. in R. v. R.(R.) does not purport to define with precision the circumstances under which leave to appeal should be granted from a decision of a summary conviction appeal court judge. Indeed, at para. 37 of his reasons for judgment, Doherty J.A. said that, “[t]here is no single litmus test that can identify all cases in which leave [to appeal] should be granted.”

[28] Doherty J.A. suggests that where the proposed appeal does not engage issues of legal significance for the administration of justice, but the merits “appear very strong”, it is appropriate to grant leave to appeal – particularly “if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.” A conviction for sexual assault is always serious. We were not provided with the details of the conditional sentence of six months and three years probation. However, undoubtedly, such sentence involved a deprivation of the appellant’s liberty. Whether it was a “significant deprivation”, I cannot say without the relevant information. However, I do not read Doherty J.A.’s reasons as suggesting that leave to appeal should be denied if there has been a failure to do justice in the courts below.

[29] In my view, leave to appeal should be granted in this case in order to have the defence position, concerning the reliability of the complainant’s evidence, considered by the court – otherwise justice will not have been done to the appellant. I have no difficulty in concluding that the merits of the proposed appeal are very strong.

[30] Central to the defence position at trial was that the complainant’s evidence was unreliable because of significant inconsistencies between her evidence at trial and her statement given to the police a year earlier and two weeks after the alleged assault. For example, the complainant admitted in cross-examination that she never said to the police that the appellant’s “privates”, “groin”, “penis” or anything “hard” touched her. The summary conviction appeal court judge erred in failing to appreciate that these inconsistencies were not addressed in any way by the trial judge. The summary conviction appeal court judge concluded that the trial judge had adequately addressed the inconsistencies. With respect, I simply cannot agree. The trial judge did not refer to the complainant’s admissions referred to above. Significantly, she did not even use the word “inconsistencies” in her reasons for judgment.

[31] The trial judge and the summary conviction appeal court judge both made reference to the complainant’s hand gesture on the video of her police statement, i.e. the pointing of her hands “to the waist and lower area.” The trial judge went on to say that “this Court can take note that directly beneath the stomach are the genitals.” There is an implied suggestion in the reasons of the summary conviction appeal court judge that this observation is relevant to resolving the inconsistencies in the complainant’s evidence. I do not agree. The fact that the genitals can be said to be directly beneath the stomach cannot possibly be said to resolve in any meaningful way the inconsistencies in the appellant’s sworn evidence. Moreover, what is very clear from watching the video is that the complainant was placing her hands over her stomach and nothing else. In my view, one simply cannot take from this gesture that she was intending to convey the notion that the appellant had rubbed his penis against her knees.

[32] The summary conviction appeal court judge relied upon the following statement of Rosenberg J.A. in R. v. Stark (2004), 2004 CanLII 39012 (ON CA), 190 C.C.C. (3d) 496 (Ont. C.A.) at para. 12:

It is not the law that the trial judge must expressly deal with every inconsistency in the evidence so long as the basis for the trial judge’s conclusions is apparent from the record.

The above observation of Rosenberg J.A. has no application to a situation where the trial judge does not address any inconsistencies in the argument advanced by the defence.

[33] The Supreme Court judgment in R.E.M. is distinguishable from the case at bar. In R.E.M., the Supreme Court concluded that the trial judge had expressly dealt with the contradictions in the complainant’s evidence. At para. 59 of R.E.M., the Chief Justice said:

The trial judge found the complainant to be a credible witness and accepted most of her evidence, while rejecting some portions that had been contradicted by other evidence. He discussed the reasons for these conclusions in some detail, noting that the complainant was a child at the time of most of the incidents, and that they had occurred a long time before. Some of the errors in her evidence were understandable, he concluded.

[34] In R.E.M., the Chief Justice referred to the reasons of Binnie J. in R. v. Walker, 2008 SCC 34, [2008] S.C.C. 34, 231 C.C.C. (3d) 289 at para. 20:

Reasons are sufficient if they are responsive to the case’s live issues and the parties’ legal arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue.

In my view, the trial judge failed to respond to the major live issue in this case.

[35] While it is not necessary to embark on a detailed review of what evidence the trial judge accepts and rejects, she must, at least, demonstrate in her reasons that she “has seized the substance of the issue” on credibility. See R.E.M. at para. 50. The same can be said in respect of the issue of reliability in this case. At least some mention of the contradictory evidence was called for.

[36] In my view, the reasons for judgment of the trial judge fail the test from R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 and in R.E.M. in that they fail to address the central issue in the defence case. This failure prevented meaningful appellate review of the trial judge’s decision. The summary conviction appeal court judge, in turn, committed an error in law by failing to recognize that the inconsistency issue had not been addressed by the trial judge and thereby deprived the court of the opportunity of meaningful appellate review.

[37] In the result, I would allow the appeal, set aside the conviction and order a new trial.

RELEASED:

“RPA” “Robert P. Armstrong J.A.”

“FEB -2 2009”