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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Court of Appeal for Ontario
CITATION: R. v. Decator, 2009 ONCA 290
DATE: 20090406
DOCKET: C44975
BEFORE: Moldaver, Borins and Blair JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Frederick C. Decator
Appellant
COUNSEL:
Gregory Lafontaine, for the appellant
Benita Wassenaar, for the respondent
HEARD: January 7, 2009
On appeal from the convictions entered by Justice P.B. Hambly of the Superior Court of Justice, sitting with a jury, dated December 3, 2005.
Moldaver J.A.:
[1] On December 3, 2005, following a trial before Hambly J. and a jury, the appellant was found guilty on two counts of indecent assault, one in relation to the complainant E.R., and the other in relation to the complainant D.G.
[2] On March 2, 2006, the appellant received a conditional sentence which he has now completed. This appeal is from conviction only.
[3] The appellant’s sole ground of appeal is that the verdicts against him are unreasonable. On that basis, he seeks to have his convictions set aside and verdicts of acquittal entered. Alternatively, he seeks a new trial.
[4] For the reasons that follow, I would dismiss the appeal.
Background
[5] By way of a brief overview, the charges upon which the appellant was convicted are historical in nature. They date back to the late 1970s and early 1980s when the complainants were members of the Venturers, a Scouts Canada group, and the appellant was their leader. Venturers were aged 14 to 17. The incidents giving rise to the various offences against the complainants are alleged to have occurred while E.R. and D.G. were within that approximate age range. By the time of trial, E.R. was 41 years old and D.G. was 40.
The Verdict in Relation to E.R.
[6] The incidents described by E.R. took a similar pattern. The appellant’s job regularly required him to take day trips out of town and he acknowledged that he took E.R. with him on such trips more than once. Although the appellant could not confirm how many times he had done so, E.R. testified that he had accompanied the appellant on 15 or 20 of these trips.
[7] According to E.R., on one of those trips, the appellant drove to a “turnaround kind of area” located between the town of Paris, where he and the appellant lived, and the town of St. George. The appellant parked the car and, after chatting briefly with E.R., began kissing E.R.’s cheek and neck and fondling E.R. This was followed by the appellant performing oral sex on E.R.
[8] According to E.R., incidents of a similar nature occurred at the same location on approximately ten occasions. The appellant would fondle E.R.’s penis on the outside and inside of his clothing and then perform oral sex on E.R. In return, the appellant would take E.R.’s hand and make E.R. fondle the appellant. On a couple of occasions, E.R. recalled the appellant grabbing E.R.’s head and pulling it toward the appellant’s penis, following which E.R. was required to perform oral sex on him.
[9] E.R. explained that he continued going out of town with the appellant after the first and second incidents because he believed that the appellant would not persist in these activities. As for the balance of the occasions, E.R. said he could not answer why he continued to go – he just didn’t know.
[10] In and around 2000, E.R. decided to disclose the secret that he had kept “buried … deep as possible inside” to his wife. He then confronted the appellant, with whom he had maintained a friendship in the ensuing years. Eventually, in February 2002, E.R. informed the police and provided a video-taped statement on February 26, 2002.
[11] In cross-examination, E.R. rejected the suggestion that he was motivated to falsely accuse the appellant to obtain a civil award for damages. He also denied that the appellant’s close friendship with S.R., E.R.’s brother, and the fact that the appellant refused to sever that friendship in favour of E.R. after being told of a falling out between the brothers over their father’s estate, were factors that motivated his accusations against the appellant.
[12] Pausing here, I note that S.R., who in his adult years had formed a close relationship with the appellant, also complained to the police in 2002 about an incident in which the appellant took him for a drive into the country after a Venturers’ meeting and attempted, unsuccessfully, to kiss him. While the jury acquitted the appellant on that count, the nature and extent of the alleged abuse differed considerably from the multiple incidents of abuse described by E.R. and the single incident described by D.G., which I address below. Specifically, the incident described by S.R. involved an “attempted” kiss, which S.R. resisted by getting out of the car. Nothing further occurred.
[13] Returning to E.R., the appellant testified and acknowledged that he had taken E.R. out of town on a number of day trips, but he denied any sexual impropriety. He also raised the spectre that E.R. had falsely accused him because E.R. was angry with him for failing to cut his ties with S.R.
[14] All of this was before the jury; so too was the apparent inconsistency in E.R.’s evidence about which the appellant makes much in support of his unreasonable verdict claim. The inconsistency is found in a statement that E.R. wrote out at home after first speaking to the police, in which he stated that he “[did] not ever recall performing oral sex on [the appellant].” As indicated, at trial, E.R. mentioned several occasions in which he had in fact performed oral sex on the appellant.
[15] E.R. was not asked in cross-examination or re-examination to explain the apparent inconsistency. However, the jury was provided with his written statement to the police as an exhibit. In it, as noted, E.R. used the words “I do not ever recall” to describe whether he had ever performed oral sex on the appellant, not the words “it never happened”. Moreover, the jury had E.R.’s comment, in the same statement, that he would “turn off my brain” during the incidents, as well as his testimony that he had “buried [the incident] deep” inside him.
[16] In his charge, the trial judge referred to the apparent inconsistency in E.R.’s recitation of the evidence. He also summarized the appellant’s position on it as follows:
The theory of the defence is that E.R.’s evidence is completely discredited by a host of factors including that of a prior inconsistent statement on a hugely significant issue, whether he ever performed oral sex on [the appellant].
[17] The appellant makes no complaint about the propriety of the trial judge’s instructions. Indeed, he concedes that the charge was error-free.
[18] In the circumstances, I see no basis for setting the jury’s verdict aside as unreasonable. Based on my review of the evidence, it is clear that this is a verdict that a “properly instructed jury acting judicially, could reasonably have rendered”: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185. There was nothing particularly bizarre or out of the ordinary about E.R.’s allegations. There was nothing about them that would raise red flags. Nor was there anything untoward about the reason for E.R.’s late disclosure or the circumstances surrounding it. The appellant’s suggestions concerning E.R.’s motives for falsely accusing him are, in my view, far-fetched. In any event, they were left to the jury to consider.
[19] For these reasons, the appellant’s appeal from conviction in relation to E.R. must fail.
The Verdict in Relation to D.G.
[20] The situation with respect to D.G. is somewhat different, but in my view, only marginally so. Although the appellant challenges the evidence supporting the verdict in relation to D.G., I am not convinced that appellate intervention is warranted.
[21] Like E.R. and S.R., D.G. was also a Venturer. He complained to the police in 2002, after E.R. and S.R. had done so. In E.R.’s complaint to the police, he suggested that the officer also speak to his brother. During the police interview with S.R., at the officer’s request, S.R. provided the names of other boys, including D.G., who had been in the Venturers with him. It was on that basis that the police approached D.G. and received his complaint about a single incident of sexual abuse at the hands of the appellant.
[22] According to D.G., the incident giving rise to his complaint occurred on a Friday night when he was helping the appellant prepare for a “bicycle rodeo” to be held in the town of Paris the next day. The rodeo was an annual event and it provided young children with an opportunity to exhibit their bicycling skills. The Venturers assisted each year in its set-up and organization.
[23] D.G. could not remember the precise year in which the incident with the appellant occurred. It would have been 1978, 1979 or 1980, when he was between the ages of 13 and 15 and a member of the Venturers.
[24] On the Friday night in question, D.G. recalled that he and the appellant were working to get the rodeo organized and he explained how he came to spend the night at the appellant’s house:
It was getting late. [The appellant] asked me to stay over. We had an early start in the morning, we had to get it set up. I phoned my parents and they said it was fine.
[25] At the appellant’s house, D.G. noticed that he and the appellant were alone; the appellant’s wife and two children, whom he knew from babysitting, were not there. When asked by the Crown in examination in-chief if he knew where they were, D.G. replied: “Um, I don’t know exactly where they were. I am pretty sure they were in Chatham at her mother’s.”
[26] D.G. testified that after arriving at the appellant’s house, he went to the recreation room and fell asleep on a couch. At some point – he did not know the time – he was awakened by the appellant and described what occurred thereafter as follows:
… I woke up to Fred leaning over to try and kiss me. I was scared. I didn’t know what to do. He was touching me.
Q. Where was he touching you?
A. My crotch. Tried to get away. Didn’t really know what, how to get away. I can remember Fred’s words were just, you know, “trust me, you’ll like it”. One thing led to another and he took my hand…
Q. Okay, sir, we have to hear the things that led one thing led to another because none of us were there and we have to hear the whole story so the jury can understand?
A. Yeah. He started fondling me. Took my hand and put it on himself, his crotch. Asked me to play with him. Told him – pretty sure I told him I didn’t want to do this, but he told me “just relax, trust me, you’ll like it”, a few words that he liked to say a lot. He then performed oral sex on me and asked for the same back and I wouldn’t give it to him and I never did. I just finished doing what I was doing and that was it.
Q. And what did – what do you mean?
A. Stroking him.
Q. Pardon?
A. Stroking him.
Q. When you say “stroking him”, sir, what part …
A. Masturbating him.
Q. Masturbating him? With what part of your body?
A. My hand.
Q. And what part of his body?
A. His penis.
Q. And you said he performed oral sex on you?
A. Yes, he did.
Q. And what was the result of that?
A. I can’t remember.
Q. How did it end?
A. Sometime during the course of all this we ended up going upstairs to his room. I fell asleep in the bed. He was also in the bed. We woke up in the morning. We went down to the Optimist Centre where the bike rodeo was to be held. When we crossed the bridge to go across, he made sure that I knew who he was and that it wouldn’t really matter what I said.
Q. What did he say to you that?
A. Nobody will believe me. So it’d be better off if this was just left between the two of us. I don’t know if that was the exact words but that’s the way I interpreted it.
Q. Okay. Did you ever talk to him about it again?
A. No, I did not.
Q. Did you every baby-sit for him again?
A. Yes, I did.
Q. Did anything like this ever happen again?
A. No, it did not.
Q. Did you tell anybody about it that night, or that morning?
A. No. That morning we went to the rodeo. We got everything over and done with and I went home.
[27] D.G. was questioned about his dealings with the police in 2002. He stated that he received a call from Constable Packer who asked him if he had belonged to the Venturers. D.G. replied that he had and he and Constable Packer met and discussed what the appellant had done to him. D.G. acknowledged that when he talked to Constable Packer, he knew that there were other complainants and he also knew their identities. However, he did not know “what they were saying had happened to them”.
[28] In response to a question about whether he had maintained a relationship with the appellant after the incident in question, D.G. explained:
Not really. Wasn’t really what I could call a relationship.
In the situation that I was in, if I had just got up and said in front of my parents “I’m done, I’m not going to Venturers any more”, that would have raised too many flags so I just made sure I never put myself in a situation like I was put in before.
[29] In cross-examination, D.G. agreed that after the preliminary hearing, he contacted Constable Packer and told him he was certain that the appellant’s wife and children were away at “her mother’s in Chatham” on the night of the incident. D.G. was also questioned about a dated criminal record, some 20 years earlier, in which he had been found guilty of several offences involving dishonesty. Finally, D.G. acknowledged, in accordance with his evidence in-chief, that he had seen the appellant after the incident in question. However, he could not remember whether he and his wife had attended at the appellant’s home in the early 1990s and invited the appellant and his wife to the opening of their leather store in Brantford.
[30] As with E.R.’s allegations, the appellant testified and denied the Friday night incident at his home. According to the appellant, D.G. never stayed over at his home when no one else was there: at most, he may have spent the night there with other Venturers if they “were going on a camping trip” and had to “get up early in the morning and go.”
[31] With respect to D.G.’s testimony that the appellant’s wife had been in Chatham at her mother’s house on the night of the alleged incident, the appellant testified in examination in-chief that his mother-in-law did not live in Chatham. Rather, she lived two doors down the street from the appellant and his family. The appellant also produced newspaper clippings from May 1978 and May 1979 showing that his daughter had participated in the bicycle rodeo in both of those years. As for 1980, that was the year he and his wife were trying to sell their home. Because his wife was acting as their real estate agent, she remained at home and did not travel anywhere on weekends while the house was up for sale, including during the month of May when the rodeo occurred.
[32] In cross-examination, the appellant was referred to D.G.’s evidence about Chatham in the following exchange with Crown counsel:
Q. You heard [D.G.] say that he thought that your wife and children were at a relative’s in Chatham?
A. I heard him say that he thought that my wife and children were at my mother-in-law’s in Chatham, yes.
Q. At your mother-in-law’s and your mother-in-law lives at, I mean, next door to you basically?
A. Two doors away, yes.
Q. And wouldn’t [D.G.] know that …
A. I would …
Q. … from …
A. I would think he would, yes.
Q. Where does your mother live?
A. My mother passed away when I was 16 years old, sir.
Q. Okay. So she didn’t live in Chatham? Do you have any connection with Chatham?
A. My wife’s sister lives in Chatham.
Q. Your wife’s sister lived in Chatham?
A. Yes.
Q. So it is conceivable that somebody would be mixed up and say, “Well, she’s gone now to Chatham with the kids” and said “Well, maybe she’s at her mother’s” and, in fact, it was at her sister’s?
A. It’s possible.
[33] The appellant’s wife also testified at trial. In her examination in-chief, she was referred to the sale of the family home in 1980 and she testified that from April until July, when the home was eventually sold, “under no circumstances” did she leave the home and “go away [with the kids] for the weekend”. At most, she may have “left for a few hours in the daytime, but, no, never were we away.” Notably, she was not asked, nor did she offer similar evidence about the Friday nights preceding the bicycle rodeos in 1978 and 1979.
[34] The appellant argues that D.G.’s explanation for why he and the appellant were alone at the appellant’s home on the night of the alleged incident does not hold up, and that this supports the appellant’s claim that the verdict is unreasonable. In particular, the appellant points to D.G.’s evidence that the appellant’s wife was visiting her mother in Chatham, when in fact, his wife’s mother lived just down the street. He further points to the fact that because his daughter participated in the bicycle rodeos in 1978 and 1979, it is unlikely that his wife would have taken her to Chatham or anywhere else on the evenings before those two events.
[35] In sum, based on those and other troubling features of D.G.’s evidence, the appellant submits that no jury, acting reasonably, could be satisfied of his guilt beyond a reasonable doubt.
[36] That argument, must, in my view, be rejected. In so concluding, I consider it significant that the appellant’s wife was not asked whether she and the children had ever made an overnight trip to her sister’s house in Chatham, or elsewhere, on a Friday night before her daughter was scheduled to participate in the bicycle rodeo. Nor was the appellant asked about this. Surely, that would have been an obvious question, with an equally obvious answer, if indeed it was family practice to remain in town on the night before the rodeo. The failure of the appellant and his wife to give that evidence – or to be asked about it – is something that would not have been lost on the jury, especially as it stood in stark contrast to the wife’s definitive recollection about her whereabouts on the Friday night before the rodeo in May 1980 when the family home was for sale.
[37] Nor would the jury have missed the fact that any information D.G. may have had about the whereabouts of the appellant’s wife and children could only have come from the appellant. As D.G. testified: “I don’t know exactly where they were. I am pretty sure they were in Chatham at her mother’s”. For all D.G. knew, the wife and children may have been staying overnight at her mother’s home down the street. D.G. was merely reporting what the appellant had told him.
[38] In addition, the jury was in the best position to gauge how forthcoming the appellant was, particularly in his examination in-chief, when asked to comment on D.G.’s evidence about Chatham. The following question and answer are revealing:
Q. All right. [D.G.] says that on this particular occasion your wife and your children were away at your wife’s mother’s house in Chatham? What do you say about that?
A. My wife’s mother lives two doors from us on [blank] street in Paris. She did not live in Chatham.
[39] In cross-examination on this point, as I have noted, the appellant focused once again on the fact that his mother-in-law did not live in Chatham. It was only after being asked whether he had “any connection with Chatham” that he acknowledged that his wife’s sister lived there.
[40] Two observations arise from this. First, the appellant did not say that his wife and children would never go out of town on a Friday night before the rodeo; nor, as I have pointed out, did his wife say that. Second, the appellant’s challenge to D.G.’s evidence rested primarily on his mother-in-law’s place of residence and the fact that she lived two doors down the street from him. In assessing his testimony, the jury may well have taken from his evidence in-chief that his wife would have had no reason to be in Chatham, thereby rendering D.G.’s evidence completely improbable, only to learn in cross-examination that the appellant’s sister-in-law lived there. From this, the jury could readily have concluded that the appellant was being evasive and less than forthright in his answers.
[41] As the trier of fact, the jury was in a “special position” to decide matters of credibility: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 131. Further, the jury was entitled to draw reasonable inferences from the evidence and the inferences I have identified were certainly available to them.
[42] Beyond that, in assessing the reasonableness of the jury’s verdict, I note that this was a straightforward case and one which the jury was uniquely capable of deciding. D.G.’s allegations were not bizarre or out of the ordinary. They were limited to one occasion. Manifestly, there was no attempt on his part to guild the lily; nor is it suggested that his testimony was tainted by outside sources or the product of collusion. Indeed, the event he described was quite different, in time and place, from the events described by E.R. and S.R. Moreover, as the record reveals, D.G. stood up well under cross-examination and no significant inroads were made into his testimony.
[43] My colleague makes much of the fact that on a “common sense” view of the evidence, “it would seem unlikely that a mother would take her six to eight year old daughter away on a Friday night, after a day in school, driving for several hours from Paris to Chatham to visit a relative”, only to turn around and “make the same lengthy trip the following morning so that her daughter could participate that morning or afternoon” in what was “undoubtedly a major event” for the child.
[44] With respect, while the logic of my colleague’s “unlikely to happen” scenario cannot be denied, there are evidentiary gaps that render it speculative. For example, there is no evidence that the daughter attended school on the Friday before the rodeo; she may have had the day off. Nor is there evidence as to the time she was scheduled to participate in the rodeo. It may have been 3 o’clock in the afternoon, in which case, a several hour drive from Chatham would have posed no problem. The family could have left Chatham at 8:00 a.m. and been in Paris by no later than noon, leaving plenty of time for the daughter to ready herself for the event.
[45] Most importantly, as I have already observed, the “unlikely to happen” scenario could have been addressed by the wife when she testified. She was the one, not D.G., who could have given specific evidence about the two possible Friday nights in question, or at the very least, attested to an inviolable family rule of never leaving town on the night before a rodeo in which one of the children was participating. Had she given that evidence, the verdict might have been different. She did not and in my respectful view, it is speculative to conclude that in the absence of such evidence, no reasonable jury properly instructed could have rejected the appellant’s testimony and accepted D.G.’s testimony beyond a reasonable doubt. I hasten to point out that my observations about the missing evidence should not be construed as somehow placing a burden on the appellant to prove his innocence. They are simply meant to address my colleague’s primary reason for concluding that the jury’s verdict in regard to D.G. is unreasonable.
[46] All in all, I am satisfied that the jury’s verdict in relation to D.G. was reasonable; at least I have not been persuaded otherwise. In so concluding, I note that where a jury’s verdict is challenged as being unreasonable, more than a “lurking doubt” is required to warrant appellate intervention. As the Supreme Court of Canada observed in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 38:
The exercise of appellate review is considerably more difficult when the court of appeal is required to determine the alleged unreasonableness of a verdict reached by a jury … It is insufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence. This “lurking doubt” may be a powerful trigger for thorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of a jury. In other words, if, after reviewing the evidence at the end of an error-free trial which led to a conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt, which is not in itself sufficient to justify interfering with the conviction, may be a useful signal that the verdict was indeed reached in a non-judicial manner. In that case, the court of appeal must proceed further with its analysis. [Emphasis added.]
[47] In assessing whether twelve properly instructed jurors, acting judiciously, could reasonably have come to the same result in D.G.’s case, I have weighed the evidence to the extent allowed on appellate review and considered it “through the lens of judicial experience”: Biniaris, at para. 40. That exercise confirms my view that the jury’s verdict in relation to D.G. is reasonable and it ought not to be disturbed on appeal.
[48] Accordingly, I would not give effect to the appellant’s submissions in relation to D.G.
Conclusion
[49] For the reasons given, the appellant has failed to satisfy me that the jury’s verdict was unreasonable, either in relation to E.R. or D.G. Accordingly, I would dismiss the appeal.
Signed: “M. J. Moldaver J.A.”
“I agree S. Borins J.A.”
R.A. Blair J.A. (dissenting in part):
I. Overview
[50] I have read the reasons of my colleague, Justice Moldaver. I agree with his disposition of the count relating to the complainant, E.R., and would dismiss that portion of the appeal for the reasons he gives. Respectfully, however, I disagree with his conclusions regarding the charge in relation to the complainant, D.G., and I would allow the appeal in that regard.
[51] I do not disagree with the principles of law upon which my colleague bases his decision, nor do I disagree, in substance, with the facts as he states them. However, I take a different view about whether those facts can support a conviction on the D.G. count. In my opinion, they cannot, and the verdict is unreasonable, for the following reasons.
II. Factual Background in Relation to D.G.
[52] Justice Moldaver has accurately set out the evidence respecting this count, and I need only supplement it here to the extent necessary to explain my reasons.
[53] The D.G. incident is alleged to have taken place on a Friday night before the “bike rodeo” in Paris in 1978, 1979 or 1980. The bike rodeo was an annual event held for the children of the town on a spring Saturday during the 1970’s and early 80’s. D.G. was a boy at that time, and was a member of the Boy Scout-based Venturers’ Group led by the appellant.
[54] D.G. was 40 years old at the time of trial. His memory of the incident hinged on its relation in time to the Saturday bike rodeo and on his recollection that no one else was at the appellant’s home on the night in question because the appellant’s wife and children were “at her mother’s” in Chatham, Ontario.
[55] The appellant testified at trial. He denied that the Friday-night incident alleged by D.G. ever took place and, in particular, that D.G. had ever stayed at his house overnight when no one else was there.
III. Analysis
[56] I recognize that jury findings are to be afforded great deference on appeal, without question. However, where an unreasonable verdict is alleged, the court must nonetheless conduct an independent re-examination of the evidence and to some extent re-weigh the evidence and consider its effect to determine whether the jury arrived at such a verdict: see R. v. Yebes, at p. 186; R. v. Biniaris. The court must then determine whether, on the facts that were before the trier of fact, a jury properly instructed and acting reasonably could convict: R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at paras. 4-7 – or to put it in the negative, whether a properly instructed jury that did not have a reasonable doubt on the facts before it could be said to have been acting reasonably and judicially. In this regard, I note the comment of Carthy J.A. in R. v. Francois (1993), 1993 CanLII 8662 (ON CA), 14 O.R. (3d) 191, 82 C.C.C. (3d) 441 (C.A.) (albeit in dissent, but not on this point), at p. 453 (C.C.C.):[^1]
I … direct my mind to the evidence itself, with all of its frailties, for a determination of whether another person or group of persons, having the advantage of seeing and hearing the evidence, could be considered unreasonable in not having a reasonable doubt as to the guilt of the appellant. [Emphasis added.]
[57] As McLachlin J. noted in R v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 131 – to put the same notion in more positive terms – the question is “whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt”.
[58] Further, although it is clear that the jury was properly instructed in this case, the Supreme Court of Canada and this Court have observed that, even after a jury has been properly charged on the applicable law and warned, where necessary, about drawing possibly unwarranted conclusions, there remains the jurisdiction under s. 686(1)(a)(i) of the Criminal Code to set aside a verdict on the grounds that it is unreasonable or cannot be supported by the evidence: see Biniaris, at paras. 38-42; R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474; R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 672-673; R. v. A.G. (1998), 1998 CanLII 7189 (ON CA), 130 C.C.C. (3d) 30 (Ont. C.A.), at paras. 15 and 19. In Burke, at paras. 5 and 6, Sopinka J. stated as follows:
Thus, although the appellate court must be conscious of the advantages enjoyed by the trier of fact, reversal for unreasonableness remains available under s. 686(1)(a)(i) of the Criminal Code where the “unreasonableness” of the verdict rests on a question of credibility.
I acknowledge that this is a power which an appellate court will exercise sparingly. This is not to say that an appellate court should shrink from exercising the power when, after carrying out its statutory duty, it concludes that the conviction rests on shaky ground and that it would be unsafe to maintain it. In conferring this power on appellate courts to be applied only in appeals by the accused, it was intended as an additional and salutary safeguard against the conviction of the innocent. [Emphasis added.]
[59] In my view, this appeal falls to be determined on these principles. I have concluded that there are insurmountable flaws in the evidence – at least from the perspective of establishing proof beyond a reasonable doubt.
[60] First, it is common ground that the appellant’s mother-in-law did not live in Chatham. She lived two doors away from the appellant on McCammon Street in Paris. D.G., who knew the appellant’s family and who had often visited their home – amongst other reasons, to babysit their children – would have been aware of that fact. My colleague and Crown counsel point out that the appellant’s sister lives in Chatham. They highlight the following exchange during the appellant’s cross-examination:
Q. You heard [D.G.] say that he thought that your wife and children were at a relative’s in Chatham?
A. I heard him say that he thought that my wife and children were at my mother-in-law’s in Chatham, yes.
Q. At your mother-in-law’s and your mother-in-law lives at, I mean, next door to you basically?
A. Two doors away, yes.
Q. And wouldn’t [D.G.] know that …
A. I would …
Q. … from …
A. I would think he would, yes.
Q. Where does your mother live?
A. My mother passed away when I was 16 years old, sir.
Q. Okay. So she didn’t live in Chatham? Do you have any connection with Chatham?
A. My wife’s sister lives in Chatham.
Q. Your wife’s sister lived in Chatham?
A. Yes.
Q. So it is conceivable that somebody would be mixed up and say, “Well, she’s gone now to Chatham with the kids” and said “Well, maybe she’s at her mother’s” and, in fact, it was at her sister’s?
A. It’s possible.
[61] D.G. was very clear on this evidence, however. Indeed, he called the police after his testimony at the preliminary hearing to make the point. He never suggested that the appellant’s wife and children were away anywhere other than Chatham, or visiting anyone else, such as “a relative”, as Crown counsel suggested in cross-examination. His testimony on cross-examination was unequivocal:
Q. And did you contact Constable Packer after the preliminary – the preliminary hearing, just to refresh your memory, Mr. [G], was in September of ’03? Did you contact Constable Packer this past year?
A. A couple of times.
Q. Yes. And did you, in fact, tell him that you thought about this incident that you say occurred and you were convinced, that you were certain that – well you were telling him directly, without any equivocation that [the appellant’s] wife and children were away at her mother’s in Chatham?
A. Correct.
Q. And you made a point of saying that to Constable Packer?
A. Correct.
Q. In this past January?
A. Yes.
Q. All right. And is that your very clear memory, [Mr. G.], of this incident?
A. Yes, it is.
[Emphasis added.]
[62] While the foregoing frailty in D.G.’s recollection is one factor I have considered, it would not be sufficient alone to lead to an unreasonable verdict. However, there was also independent and uncontested evidence on the record supporting the appellant’s testimony that the D.G. incident could not have taken place on the Friday night before the Saturday bike rodeo in 1978, 1979 or 1980 as alleged. I do not see how this evidence could have been considered by the jury without it leading at least to a reasonable doubt.
[63] The appellant and his wife testified that in 1980 they were selling their house between April and July and that the appellant’s wife never went away during that period because they did not have a real estate agent and she was in effect performing that function. The appellant’s wife testified as follows during examination-in-chief:
Q. So … in that time frame, in the spring of 1980, did you take the kids away, to go away for the weekend?
A. Under no circumstances. There was no way that we could leave needing to sell that house. I was there all the time. I might have left for a few hours in the daytime, but, no, never were we away. [Emphasis added.]
[64] This evidence is uncontested. The appellant’s wife was not cross-examined on it.
[65] The bike rodeo occurred in May or June, during the school year. The appellant’s oldest child would have been 6, 7 and 8 years old and in early grade school at the time. She not only participated in the Saturday bike rodeo in each of those years, she won a prize in 1978 and 1979. Her participation, and that she won a prize, is confirmed by articles from the local Paris newspaper, filed as exhibits. This, too, is uncontested. She participated in the 1980 bike rodeo as well, although she did not win a prize.
[66] The appellant testified that his wife and children were not “away from home on the rodeo bike weekend” in 1978 or 1979. My colleague suggests that the term “weekend,” as used by the appellant and his wife in their testimony, may not include Friday night. However, neither the appellant nor his wife was cross-examined on that point. In my opinion, in this context such an interpretation defies common sense.
[67] Paris is a considerable distance from Chatham. On a common sense view of the evidence, it would seem highly unlikely that a mother would take her 6 to 8 year old daughter away on a Friday night, after a day in school, driving for several hours from Paris to Chatham to visit a relative, and then making the same lengthy return trip the following morning so that her daughter could participate that morning or afternoon in what was undoubtedly a major event in the child’s life at that time.
[68] Yet that is essentially the basis upon which my colleague concludes the defence evidence does not “hold up” and reconciles that evidence with the jury’s verdict of guilty. He says the appellant and the defence witnesses were not asked the obvious specific question: whether his wife had ever made an overnight trip to her sister’s house in Chatham, or anywhere else, on a Friday night before her daughter was scheduled to participate in the bike rodeo.
[69] The testimony of the appellant’s wife is not open to any interpretation other than that the answer to such a question would have been “no”, at least with respect to 1980. She says she was at home “all the time” during that spring. It is true that her testimony was confined to meeting the allegation with respect to that year. It is also true that a jury has a right to disbelieve a witness. However, I can discern no basis upon which to found such disbelief here. She was not cross-examined. There was no contradictory evidence. That leaves 1978 and 1979.
[70] The appellant’s testimony denying that D.G. was alone in the house with him overnight before the bike rodeo in 1978 and 1979 is corroborated by the independent evidence of the newspaper reports. For reasons articulated above, it is highly improbable in the ordinary course of events that the appellant’s wife and their young children would have travelled to Chatham for a visit on a school night and returned on Saturday morning for a significant event in the children’s lives, such as the bike rodeo.
[71] As I have outlined above, when assessing an argument of unreasonable verdict, an appellate court must determine whether the jury “could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt”: W. (R.), at p. 131. The appellant did not need to prove that the Chatham visit never occurred or that it was impossible – the evidence need only give rise to a reasonable doubt.
[72] Respectfully, my colleague’s analysis runs the risk of turning that principle on its head and shifting the onus to the appellant to satisfy the jury that his wife and children would never go out of town, anywhere, on a Friday night before the rodeo. There is no basis in the record for suggesting that she went anywhere other than Chatham at the time of the incident. For the reasons I have outlined – given the uncontested participation of the appellant’s 6 to 8 year old daughter in the Saturday bike rodeo the following day – I regard it as unreasonable for the jury not to have had a reasonable doubt regarding the appellant’s guilt on the count relating to D.G.
[73] I am not persuaded, as my colleague is, that it was open to the jury to conclude that the appellant was being evasive when he did not volunteer that his wife’s sister lived in Chatham. An evasive answer is one that does not respond to the question asked. As noted above, D.G.’s evidence was unequivocal that the appellant’s wife was at her mother’s in Chatham, and the appellant answered the questions put to him. I do not think the “lens of judicial experience” referred to in Biniaris requires the court to ignore the practice that generally clients are advised by their counsel only to answer the questions asked of them in cross-examination.
IV. Conclusion
[74] The defence evidence with respect to the D.G. incident was essentially unchallenged and was supported by separate independent and uncontested proof. This is not a case where I am left only with a “lurking doubt”, insufficient in itself to justify interfering with the findings of the jury. Rather, it is a case where an initial vague unease or lurking doubt provides “a powerful trigger for thorough appellate scrutiny”. That appellate scrutiny leads me to conclude, in the circumstances of this case, that the verdict is unreasonable and cannot be supported by the evidence: see Biniaris, at para. 38.
[75] Accordingly, I would set aside the verdict of guilty and enter a verdict of acquittal on the count relating to the allegations of D.G.
Signed: “R.S. Blair J.A.”
RELEASED: “RSB” April 6, 2009
[^1]: Carthy J.A. dissented, but not on the question of the principles applying to an appellate court’s ability to set aside a jury verdict on unreasonable verdict grounds. He was persuaded that the verdict crossed the Rubicon into that territory only because he felt a quick verdict following a late jury question about whether the accused needed to testify signalled that the jury improperly relied on the accused’s failure to do so. The Court of Appeal decision was upheld: 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, with no adverse comment on the statement of Carthy J.A. cited here.