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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
CITATION: R. v. G.L., 2009 ONCA 501
DATE: 20090619
DOCKET: C47231
COURT OF APPEAL FOR ONTARIO
Laskin, Blair and Watt JJ. A.
BETWEEN
Her Majesty the Queen
Respondent
and
G.L.
Appellant
Marie Henein, for the appellant
Linda A. Shin, for the respondent
Heard: March 3, 2009
On appeal from the conviction entered by Justice Gisele M. Miller of the Superior Court of Justice on March 23, 2007.
R.A. Blair J.A.:
I. OVERVIEW
[1] The appellant seeks to set aside his conviction for sexual assault.
[2] He was tried in Superior Court on a three-count indictment charging that, over a four-year period, he (a) sexually assaulted the complainant, (b) invited the complainant, a person under the age of 14 years, to touch him for a sexual purpose, and (c) touched the complainant, a person under the age of 14 years, for a sexual purpose. The appellant was convicted of sexual assault, but acquitted of invitation to sexual touching, and sexual interference, and sentenced to a one-year conditional sentence followed by one year of probation.
[3] The complainant was 19 years old at the time of the trial. She alleged that the appellant had sexually assaulted her during a period when she was from 3 to 7 years of age and when the appellant’s wife was regularly acting as babysitter for her and her sister. She alleged two specific instances: (i) an incident of digital penetration followed by intercourse; and (ii) an incident of penis touching. As is often the case in these circumstances, there was no evidence corroborating the allegations, nor were there any witnesses to the alleged incidents.
[4] The appellant testified at trial. The trial judge disbelieved his evidence, however. She also rejected the complainant’s evidence as unreliable and specifically found that she had a reasonable doubt about whether the appellant “engaged in any act of intercourse” with the complainant, or “caused [the complainant] to touch his penis”. Nonetheless, she convicted the appellant of sexual assault based largely on what the appellant said during an interview with the police.
[5] On behalf of the appellant, Ms. Henein argues that the verdict was unreasonable and the reasons inadequate, while acknowledging that these grounds may merge in the circumstances of this case. She contends that the trial judge failed to consider the appellant’s statement to the police in its entirety. Having rejected the complainant’s testimony and the only evidence of sexual assault as testified to by the complainant, the trial judge erred in finding the appellant guilty of sexual assault on the basis of his equivocal statement to the police. In addition, she submits that the trial judge improperly drew an adverse inference from the appellant’s silence in respect of two matters during the police interview.
[6] For the Crown, Ms. Shin characterizes the key issue on the appeal as whether it was reasonable for the trial judge to conclude that when the appellant told the police he did “something very bad” and that “it got to serious touching”, he was speaking about touching the complainant in a sexual manner. She submits that this inference was entirely reasonable.
[7] For the reasons that follow, I agree with Ms. Henein. I would set aside the conviction for sexual assault and enter a verdict of acquittal on Count 1.
II. FACTS
The Alleged Incidents
[8] The complainant alleged that the abuse occurred over a four-year period between June 1, 1991 and July 14, 1995, when she was between 3 and 7 years of age and under the daily care of the appellant’s wife as babysitter. Although the indictment covered this entire period, the complainant described only two separate incidents of a sexual nature that she said took place on the couch in the basement of the appellant’s home. She alleged that on one occasion she was sitting on the appellant’s lap when he inserted his finger into her vagina, then lifted her by the hips, turned her around, and had intercourse with her while moving her up and down on his lap by holding her sides. On the second occasion she said that she was watching television when the appellant came down into the basement, sat down beside her, and took her right hand and placed it on his exposed erect penis, rubbing it up and down. She was not able to say when during the period of the indictment these two incidents took place. That was the extent of her evidence of the alleged abuse.
[9] The Crown’s position at trial was that Count 1 (sexual assault) related to the incident of sexual intercourse and touching of the vaginal area, while Count 2 (invitation to sexual touching) related to the incident concerning the appellant’s penis. Because the indictment was particularized, Count 3 (sexual interference) was confined to the allegation that the appellant had, for a sexual purpose, touched the complainant with his hands. Although the trial judge did not believe the appellant’s evidence, she was not satisfied that the appellant had engaged in any act of intercourse with the complainant, or that he caused her to touch his penis. The appellant was acquitted on Counts 2 and 3. However, the trial judge convicted the appellant of sexual assault. In the operative part of her reasons on this point, she said:
I am satisfied beyond a reasonable doubt on all of the evidence that [the appellant] touched [the complainant] in a manner that violated her sexual integrity. I am satisfied on the basis of his statement to the police that he intended to do so, he was aware of the sexual nature of the act, and that it occurred on more than one occasion before [the appellant] himself put a stop to it. I am satisfied that the touching, although sexual in nature, was minimal and of minimal duration and I am satisfied that [the appellant] stopped his sexual behaviour toward [the complainant] because he recognized that it was wrong. I am satisfied that the touching took place at [the appellant’s] home … within the timeframe set out in the indictment. [The complainant] at the time was not of an age to consent to sexual touching. [Emphasis added.]
[10] This is the only portion of the trial judge’s reasons where she explains her rationale for the conviction. It is clear that she was persuaded – based on portions of the appellant’s statement to the police – that something of a sexual nature had happened between the appellant and the complainant at some time during the period covered by the indictment and, therefore, that the appellant was guilty of some act or acts of sexual assault of a touching nature. Respectfully, in my view, this line of reasoning was impermissible in the circumstances of this case.
[11] The appellant’s statement to the police is the only other source of information as to what did or did not happen as between him and the complainant. Consequently, it is necessary to review the statement and the trial judge’s treatment of it, in order to assess whether the verdict was unreasonable.
The Appellant’s Statement
[12] The appellant provided a recorded 111-page statement to the police. Before doing so, he was told that the officer with whom he was speaking (Det. Panagabko) was a Child Abuse and Sexual Assault investigator and that “someone” had come forward and complained that the appellant had sexually assaulted “them”. The officer said he needed “to find out what the truth is about it”, and asked the appellant, “[W]hat do you know about that situation?” The appellant responded, “Well, if we’re gonna have the truth, we’re gonna have the truth”. The trial judge found that the appellant intended to tell the truth to Det. Panagabko when he gave his statement.
[13] In her reasons, the trial judge relied upon excerpts from the following portions of the appellant’s statement, and, in particular, on the parts I have italicized:
G.L.: …um, uh, only one time that I had one, one of the kids that – and I never told my wife – that I had thought that there was something happening in their home which created her to…behave the way that she did in our home and, um, I guess I had maybe fell victim but I didn’t fall victim to say that I did something, uh, serious-serious. I did something very bad. Um, but I did, didn’t do anything that, um… Anyway, ah, the bottom line is that, ah, I’ve lived with it for, I don’t know how many years that she is, how old she is, ah, ah, ten or 12 years or 15 years and, um, it’s totally destroyed my private life because of my guilt but, um, I pe-, personally had thought that, that there was something going on that created her to be like that and I, I still ‘til today don’t know what it is although I do know that she has a major problem at home right now that she’s away from her family and I don’t know what else…
Officer: Yeah.
G.L.: … happened in her case.
Officer: Okay.
G.L.: But, ah, there is something that also happened. It’s not for me, per se, to say as a, as a serious thing. There’s something that happened there to that child that I fell prey to, too, and I don’t know who set her frame of mind in the way she behaves with men.
Officer: Right.
G.L.: Or, or adults but there’s something that triggered what she does that I fell victim to that totally destroyed my life in a way.
Officer: Okay.
G.L.: Well, it did.
[Emphasis added.]
[14] Detective Panagabko then asked the appellant to identify the individual he was talking about. The following exchange – also recited by the trial judge – occurred:
Officer: And this is obviously a heavy burden on you.
G.L.: It, exactly.
Officer: All right?
G.L.: Yeah. You know? I can feel my, my pulse in my teeth but anyway.
Officer: Okay. And obviously, you’ve got somethin’ weighin’ on you really heavily that you would like to discuss with me and it’s involving a girl. Right?
Officer: That used to be babysat at your place?
G.L.: Mm, hm.
Officer: Well, that’s what I’m here to talk about.
G.L.: Mm, hm.
Officer: A girl that was at your place being babysat?
G.L.: Mm, hm.
Officer: And a situation happening with her?
G.L.: Mm, hm.
OFFICER: Okay? Involving yourself?
G.L.: Mm, hm.
Officer: And it was of a sexual nature?
[Emphasis added.]
[15] At this point, the appellant can be observed nodding his head, as he did on many occasions throughout the interview. Although the transcript of the interview notes that the appellant nodded his head “Yes”, counsel agree that the appellant did not answer “Yes” to the question, “And it was of a sexual nature?” The trial judge did not find that he did. The appellant acknowledged that the complainant was the girl they were discussing. The conversation then continued:
Officer: Okay. So something happened between you and [the complainant]?
G.L.: Mm, hm.
Officer: All right. What were you gonna say?
G.L.: It, what, what happened between, ah, [the complainant] and I was [the complainant] was, um, re-, she was into tou-, touching and all sorts of things. She would come right beside ya and sit on the couch and wr-, write this number on my back and do this and do this and do this and it became touching and, um, then it stopped. Then put an end to it. No more. This, this has gotta stop. Um, I’m ruining my life. Um, and you know what? I, I just, for some reason I couldn’t understand, this girl just kept, would ke-, keep coming back and I just, I couldn’t understand that and that’s what, what … So it got to serious touching, nothing else more serious happened than that. It was… Ah, and, um, I just, for the last ten or 12 years, my life as far as with my wife and everything else?
Officer: Mm, hm.
G.L.: The guilt? Wh-, well, that’s why I’m here and that’s why I’m so upset and that’s why, I mean, there’s no, ah, arguing or, or det-, deterring from the point, um, I just, uh, I’m really upset it happened and I mean, like you say, maybe a weight’s lifted off me but basically no matter how minor or major it, she was, ah a girl that was what? Eight or nine or ten years old? Ah, basically has now ruined my life.
[Emphasis added.]
[16] The trial judge finished her review of the contents of the statement by saying:
When the officer explained the charge of Invitation to Sexual Touching as “you invited her to do some touching to you … and she told me that”, [the appellant] responded “that’s she, she never did.” After the officer explained the three charges, [the appellant] said “This is the only time that it’s ever happened in my life and it’s never happened again and I just … oh”. [The appellant], at that point in the interview, chose to exercise his right to counsel and thereafter declined to discuss the matter further with the officer. He did say “the charges is [sic] more than I would’ve thought for what actually occurred”, and when asked by the officer “did she touch you in a sexual way?” [the appellant] responded “that’s where I have a problem. We have a problem”.
[17] With the exception of the references in the last sentence above, the utterances of the appellant which the trial judge considered (and concluded were inculpatory) were all found in the early part of a 111-page conversation between the appellant and Det. Panagabko. To assess those utterances in their entire context, however, it is necessary to consider other comments made by the appellant during the remaining two-thirds of the interview. This, the trial judge failed to do. Importantly, while she mentioned the “We have a problem” remark by the appellant, she did not analyse it in context and, particularly, did not do so in the context of a clearly exculpatory statement made during the same exchange. The relevant passage, in its entirety, is as follows:
Officer: If she was sittin’ here and she said to you, that time in the basement at your house when you touched me in a sexual manner and when I touched you in a sexual manner, that’s what we’re here today for and that made a big difference in my life …
Officer: …and that’s what I’m here reporting because that…
G.L.: No, if she…
Officer: …shouldn’t have happened.
G.L.: …said that then we have a problem. Then we have a problem.
Officer: ‘Cause that’s not what it sounded like early to-, earlier today when you walked in here.
G.L.: No, no. No, no. I said, some of what you said is not true and that’s why I have to speak to a lawyer because I can’t say that’s true. It’s not true. What you’re saying is not true. If you would like to say to me, partial-something might be true, a little bit there, that, that’s true there.
Officer: Mm, hm.
G.L.: But this isn’t but just say it’s true, I can’t do that. So what we’d have to do is I have to go to my lawyer and I have to say, this is what happened.
Officer: Right.
G.L.: Then we don’t know what she said because, of course, we need a disclosure.
Officer: Yep.
G.L.: So, ah, I can’t say what she said, ah, she can’t see what I said. And we’ll sort that out in court and you know what? I’m, you know what I’m saying?
Officer: Well, I think I do.
G.L.: If I, if I asked you five things and say, yes or no, well if, if two are wrong or one is right?
Officer: Yeah.
G.L.: You can’t say the whole thing’s right.
Officer: All right.
G.L.: Or you can’t say the whole thing’s wrong.
Officer: Well, I asked you…
G.L.: So you can’t… We obviously can’t talk about it no more. We’ll…
Officer: Yeah.
G.L.: We’ll talk about that when we go to court because this has gone…
Officer: Okay.
G.L.: …too far; everything…
Officer: Right.
G.L.: …has just…
Officer: Well, I asked you a simple question.
Officer: The question was, did you touch her in a sexual way?
G.L.: We’ll talk about it in court.
Officer: Right. And I asked you, did she touch you in a sexual way?
G.L.: [Transcript notes {Sighs}] Yeah.
Officer: Pardon?
G.L.: No, I said, yeah, you did ask me that.
Officer: Yeah.
G.L.: And that’s where I have a problem. We have a problem.
Officer: Okay.
G.L.: Okay? We have a problem.
[Italics and underlining added.]
[18] In addition, Ms. Henein drew our attention to the following extracts from the appellant’s statement which, she submits, buttress its equivocal nature:
• “Okay, I’ve, but, um, and the way you’re, um, doing the three charges and, ah, obviously that, ah shows me that there something going, there’s more going on than, um what I could possibly say to you so I can-, I really can’t … say anymore … I mean, its … Like we’re done. We’re done.”
• “So the, the one thing that I ha-, that I will say is that the reason that I wanna speak to, ah, ah, Steven – and I think that’s, ah, priority number one – is because of the simple fact that we can’t cover all these charges and say that all these charges are, uh, are, um… I have a difference of, ah, of ah, opinion and, ah, basically, ah, this is my lawyer’s job and, ah, we’re gonna have to, I’m gonna have to talk to him today.”
• “[W]e’re going to have to sort of separate, ah, the facts of what she said from what, what happened and that, that will be his job in court and that’s… what, I will tell him my side’a the story. He’s my lawyer. … And when we do that then, um well, we’ll talk about it when we go to court and that’s all I can say and… it’s, it’s not more.”
• When the officer asked, “[W]hat kind of things was [the complainant] educated in? … Sex?” the appellant responded, “No! No. No. Not sex.”
[19] At trial, the appellant testified that he was “flabbergasted” when first advised of the situation by Det. Panagabko, but immediately thought of the complainant’s family because he was having nothing but trouble with them as a result of a longstanding feud between their two sons and his sons. He guessed the complaint had been made by the complainant because, he said, he recalled having to deal with her inappropriate behaviour and she was the only child he could think of with whom he had had any real physical contact.
[20] He testified that when he told Det. Panagabko that he had done “something very bad” and that “it got to serious touching”, he was simply referring to letting the complainant sit on his lap, and putting his arm around her. I note that Det. Panagabko confirmed during cross-examination that the appellant did not specifically admit to, or talk about, sexually touching the complainant at any time during the police interview.
III. ANALYSIS
Unreasonable Verdict & Failure to Consider the Entire Statement
[21] In my opinion, the trial judge failed to consider the appellant’s statement in its entirety and, as a result, failed to appreciate – or simply disregarded – important exculpatory aspects of that statement, as outlined above.
[22] Viewed as a whole, the appellant’s statement to Det. Panagabko evolved in the following fashion:
a) He never admitted to, or talked specifically about, sexually touching the complainant at any time during the interview.
b) He testified that he was able to identify the complainant as the girl in question, partly because of the difficulties between his family and hers and partly because he remembered having to deal with her inappropriate behaviour and she was the only child he could think of with whom he had had any real physical contact.
c) The complainant was forward with him in ways that made him feel uncomfortable and guilty. He did not understand the reasons for her conduct but thought it might have something to do with what had happened in her own home.
d) He fell prey to this conduct and “did something very bad” which “destroyed [his] life in a way.” It “got to serious touching”.
e) Whether the “something very bad” and the “serious touching” were references to something of a sexual nature, or whether he was referring to the fact that the complainant’s conduct in sitting on his lap, putting their arms around each other and playing the “numbers on the back” game, is not clear from the interview.
f) However, he wanted to talk to his lawyer to clear things up because the three charges that Det. Panagabko had explained to him seemed “too much” for what had happened. They were “more than [he] would’ve thought for what actually occurred,” and they were “going to have to sort of separate … the facts of what [the complainant] said from what … happened.”
g) This was because, if the complainant and Det. Panagabko were saying that the appellant touched the complainant in a sexual manner, and that she touched the appellant in a sexual manner, “then we have a problem” because “I can’t say that’s true. It’s not true. What you’re saying is not true.”
[23] The trial judge essentially stopped at (d) in her analysis of the appellant’s statement.
[24] Following her review of the contents of the appellant’s statement, quoted above, the trial judge considered the appellant’s explanations for his various comments – explanations that she ultimately rejected. The appellant testified that what he meant by “serious touching” was that the complainant got on his lap and tried to embrace him and be embraced by him. When he nodded in response to the officer’s question “And it was of a sexual nature?” he said he was simply acknowledging that he had heard and understood what the officer was saying. Other language used by the appellant during the interview, his lawyer argued, was simply an emotional overstatement brought on by the stress he was under at the time of the interview. The trial judge did not accept any of this.
[25] She rejected the appellant’s explanations, as it was open to her to do. However, it was not open to her to adopt the suspicious, but inconclusive, remarks by the appellant at one point in the interview as a wholesale inculpatory admission to acts of sexual assault, without assessing the statement as a whole and without at least considering and reconciling the balance of the appellant’s statements throughout the interview – some of which, at least, were strikingly exculpatory in nature: R. v. Mallory (2007), 2007 ONCA 46, 217 C.C.C. (3d) 266 (Ont. C.A.). Respectfully, it is my view that the trial judge failed to assess the statement as a whole.
[26] At the point in the interview where the trial judge notes the appellant “chose to exercise his right to counsel,” and concludes “[he] thereafter declined to discuss the matter further with the officer,” the interview was less than one-third completed. The trial judge’s entire consideration of the remaining two-thirds of the interview, as quoted above, was that, “He did say ‘the charges is [sic] more serious than I would’ve thought for what actually occurred’, and when asked by the officer ‘did she touch you in a sexual way?’ [the appellant] responded ‘that’s where I have a problem. We have problem.’” But it was simply not accurate to say that the appellant declined to discuss the matter further.
[27] The portion of the interview that I have cited at length, at paragraph 17 of these reasons, shows that the appellant said something very significant after he “declined to discuss the matter further”. He denied any sexual touching. In substance, he said that if the complainant and Det. Panagabko were alleging that he had touched the complainant in a sexual way, and that the complainant had touched him in a sexual manner, there was a serious problem because what they were saying was not true. The trial judge makes no reference to this denial and no attempt to reconcile it with her apparent interpretation of the appellant’s statement as a complete admission to some form of sexual touching, sometime, somewhere.
[28] This misapprehension of the appellant’s evidence was significant. Indeed, viewed from this perspective, the “I have a problem. We have a problem” comment is more readily understood as being exculpatory rather than inculpatory, as the trial judge appeared to have considered it to be.
[29] A trial judge is entitled, indeed required, to make findings respecting statements made by an accused and their meaning. But she must do so in context and on the basis of the statement read as a whole. Here, the trial judge focussed almost entirely on the utterances of the appellant that were capable of an inculpatory interpretation and failed to consider or to reconcile the various utterances that were at worst equivocal and – in the one instance, at least – markedly exculpatory in nature. In Mallory, this Court recently referred to the “entire statement” principle in the following terms, at paras. 203 and 208:
In our view, the trial judge erred in approaching the utterances as a series of separate statements rather than as one statement. It is well accepted that if the Crown tenders the statement of an accused, it cannot pick and choose those parts of the statement that it would like the jury to hear; it must take “the good with the bad”, and both the “good” and the “bad” are admitted for their truth, for and against the accused. Moreover, a party wishing to adduce a statement must put in as much of the statement as is necessary to permit a fair understanding of the individual utterances.
The meaning of an exculpatory utterance proximate to an inculpatory utterance is for the jury to determine in the context of the “whole statement”. Giving the jury an isolated utterance taken out of context deprives the jury of the opportunity to decide the true meaning of the whole statement.
[30] The same type of error can occur in a judge alone trial. There is no obligation on a trial judge to mention every syllable of evidence given at a criminal trial in his or her reasons for judgment. However, where the reasons of the trial judge disclose a lack of appreciation of relevant evidence, such as an important portion of an accused person’s statement to police, or a disregard of such evidence, a reviewing court will intervene and will conduct a limited reweighing of the evidence in order to ensure that an unreasonable verdict is not sustained: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 19-25 and 37.
[31] Here, the statement of the appellant, when viewed in its entirety, was at the most equivocal about whether the appellant’s conduct was sexual in nature. Given that the trial judge did not accept the complainant’s version of events, the appellant’s statement must stand alone. However, in light of the various exculpatory utterances, the inculpatory portions of the statement relied upon by the trial judge cannot support an inference of guilt. In the absence of other evidence – not present here – the ambiguous or equivocal statement of the appellant, on its own, cannot meet the stringent test of proof beyond a reasonable doubt.
[32] In effect, the appellant was found guilty of committing unspecified acts, of an unspecified sexual nature, at an unspecified time and in (except most generally) an unspecified place. We don’t know what the acts were. We don’t know their nature or the circumstances in which they are said to have occurred. We can’t divine what facts the trial judge found the appellant guilty of committing. In my opinion, given the trial judge’s rejection of the complainant’s version of what happened, and the remainder of the record before her, no properly instructed trier of fact, applying his or her mind to the evidence and acting reasonably, could have arrived at the conclusion that the appellant was guilty: see R. v. Burke, [1996] 1 S.C.R. 474, at paras. 4-7; R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 131. The conviction is founded on speculation and cannot be sustained.
[33] While this conclusion would be sufficient to dispose of the appeal, an order setting aside the conviction is supported in two other respects as well.
The Conviction on Count 1 is Inconsistent with the Acquittal on Count 3
[34] The trial judge’s decision to convict the appellant on Count 1 (sexual assault), based on her finding of sexual touching, cannot be reconciled with an acquittal on Count 3, which required a reasonable doubt on sexual touching. Even accepting that a trier of fact is not bound by theories advanced by the Crown or the defence, if the appellant were guilty of sexual assault as a result of sexual touching, he must also have been guilty of sexual interference, as alleged in Count 3, because the complainant was under the age of 14 years. The proper disposition, in such an event, would have been to enter findings of guilt on both counts, but to stay the sexual assault simpliciter charge on Kienapple principles. No attempt was made by the trial judge to explain this inconsistency.
[35] Charron J. dealt with the appellate court’s power to interfere on inconsistent verdict grounds in R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381. At para. 7 she said:
The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge. Martin J.A. aptly described the nature of the inquiry in R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56, as follows:
Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise. We would, on the ground that the verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct an acquittal to be entered.
[Emphasis added.]
[36] Similarly, I can see no rational or logical basis upon which the two verdicts may be reconciled in this case. This helps to confirm my view that, in failing to consider the appellant’s statement in its entirety, the trial judge may “have become confused as to the evidence” or she may have “reached some sort of unjustifiable compromise” in arriving at her decision.
The Right to Silence
[37] Finally, the trial judge erred, in my view, by drawing an adverse inference against the credibility of the appellant from his silence with respect to two matters during his police interview. In her reasons, she stated:
Even if I were to accept [the appellant’s] evidence that in response to the question “and it was of a sexual nature?”, he was simply nodding to acknowledge that he heard or understood what the officer was saying, [the appellant] then went on to identify [the complainant] without demurring as to the sexual characterization of what he was describing. He had no difficulty interrupting the officer and correcting him when he did not agree, as when the officer explained Invitation to Sexual Touching and [the appellant] responded “that’s she, she never did.”
[The appellant’s] testimony that he was simply referring to [the complainant] getting on his lap, and trying to put his arm around her when he told the officer “I did something very bad”, “it got to serious touching”, “it’s totally destroyed my private life because of my guilt” flies in the face of logic, particularly when assessed in light of [the appellant’s] testimony that although his is uncomfortable with it, he is aware that children often sit on the laps of adult males. [The appellant’s] discomfort with children on his lap more logically flows from the fact that he did do “something very bad” to [the complainant], and thereafter was uncomfortable with her or any other child getting onto his lap. I note that [the appellant] did not at any point in his statement to police make mention of [the complainant] sitting on his lap. [Emphasis added.]
[38] It is apparent that the trial judge used the appellant’s failure to deny that what happened between him and the complainant was of a sexual nature as proof that, in fact, it was. She used his failure to volunteer that the complainant at some point sat on his lap as supportive of her conclusion that the “something very bad” he acknowledged happened was something very bad of a sexual nature. In both respects she drew an adverse inference about the appellant’s credibility from his silence. This, she was not permitted to do. As this Court has recently observed in R. v. Palmer, 2008 ONCA 797, at para. 9:
It was open to the trial judge to reject the appellant’s explanation given at trial because it was not believable and to use that finding in assessing the appellant's overall credibility. However, the trial judge went further and used the appellant's silence as a basis for finding her incredible. That he was not entitled to do.
[39] The appellant had a constitutional right to remain silent during any part of the police interview. That right was not extinguished simply because he chose to speak to the officer with respect to some matters and did not exercise his right to silence completely: see R. v. Chambers, [1990] 2 S.C.R. 1293, at pp. 1315-1317; R. v. Marshall (2006), 77 O.R. (3d) 81 (C.A.), at para. 82. The negative inferences the trial judge drew against the appellant were significant and it cannot be said the verdict would have been the same had she not made this error. This error alone would be sufficient to warrant appellate intervention.
IV. DISPOSITION
[40] For the foregoing reasons, I would allow the appeal, set aside the conviction on Count 1, and enter a verdict of acquittal on that Count.
“R.A. Blair J.A.”
“I agree J.I. Laskin J.A.”
“I agree David Watt J.A.”
RELEASED: June 19, 2009