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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. T.T., 2009 ONCA 613
DATE: 20090814
DOCKET: C48600
COURT OF APPEAL FOR ONTARIO
Laskin, Feldman and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
T.T.
Appellant
David M. Humphrey and Jill D. Makepeace, for the appellant
Greg Skerkowski, for the respondent
Heard: May 1, 2009
On appeal from convictions entered by Justice Eleanor M. Schnall of the Ontario Court of Justice on January 25, 2008
R.A. Blair J.A.:
OVERVIEW
[1] On November 10, 2005, the complainant, E.L., called the police for advice about whether the appellant, her husband, was entitled to take their child to see his parents without her presence or consent. From that call, and the meeting with police following it, flowed a series of events leading to the appellant’s conviction on three charges of assault, two charges of uttering threats, and one charge of sexual assault.
[2] The appellant seeks to set aside those convictions.
[3] He concedes that there was sufficient evidence before the trial judge – if properly considered and accepted – upon which a conviction could be based. He concedes that the trial judge was entitled to assess and to “resoundingly reject” his evidence, as she did. He argues, however, that his convictions turned almost entirely on the trial judge’s determination of the credibility of the complainant and the appellant. The appellant therefore submits that, having rejected his testimony – and having been “unsparing [in her] criticism” of him – the trial judge was obliged to scrutinize the complainant’s testimony with equal rigour and in a balanced fashion. This she failed to do, he says.
[4] The appellant submits that instead, the trial judge applied a different standard of scrutiny in her assessment of the evidence of the complainant as compared to her assessment of the evidence of the appellant. She glossed over inconsistencies in the complainant’s evidence without subjecting them to careful analysis and without making findings that were necessary in order to explain them. In addition, she misapprehended or mischaracterized both the appellant’s and the complainant’s testimony in several respects. As a result of the cumulative effect of these various errors, the appellant contends that we must quash the convictions and enter acquittals or, in the alternative, order a new trial.
[5] In the particular circumstances of this case, and for the reasons that follow, I would set aside the convictions and order a new trial.
BACKGROUND AND FACTS
[6] The appellant emigrated from Cyprus to Canada with his parents when he was a young boy. In March 2002, while he and his parents were vacationing in Cyprus, he and the complainant were introduced to each other. They were each 29 years old at the time and began dating. A short time later they became engaged. When the appellant returned to Canada in June 2002, the complainant came with him. They were married a few weeks later.
[7] At first the couple lived with the appellant’s parents in Kitchener. There was friction between the complainant and the appellant’s parents, however, and in January 2003, the appellant and the complainant moved into their own apartment in Kitchener. In July 2004, they purchased and moved into a house in Woodstock. This pleased the complainant because she felt that the parents were interfering too much in their lives. They were living in the Woodstock house when the events leading up to the charges took place.
[8] The daughter of the appellant and the complainant, S., was born in November 2003. There is no dispute that she was conceived on February 28, 2003, the date on which the complainant says she was sexually assaulted by the appellant. S.’s care by the appellant’s parents became a source of contention between them, particularly after the child and the appellant returned from his parents’ home on one occasion in Fall 2004, and the complainant noticed that the child’s genital area was very red and swollen. This led to an incident that provides the basis for one of the charges of assault and threatening, to which I will return.
[9] On November 10, 2005, matters came to a head. There was a discussion about whether the complainant would allow the appellant to take the child to his parents’ house without the complainant being present. She refused. He insisted. There was also tension between the two of them around the signing of mortgage documents to support a financing that had been arranged by the appellant to enable them to repay family loans advanced to enable them to purchase their home. The complainant maintained that at least part of these funds were to have been a gift.
[10] The complainant decided to call the police for advice about whether the appellant was entitled to take the child to his parents alone. When the police attended at the couple’s home in response to the call, the complainant told them – in response to a direct question from one of the officers (P.C. Kuivenhoven) about whether there had been any violence between her and the appellant that day or in the past – that a few months earlier, when engaged in an argument over the child, the appellant had pushed her, held her by the neck and stated, “I’m going to kill you”. The appellant was arrested shortly thereafter and taken to the police station.
[11] A series of other revelations followed sometime later.
[12] The complainant says she was shocked when the police took her husband away but that she did not know – or ask whether – the appellant was being charged with anything. She also testified that P.C. Kuivenhoven told her the appellant would be back home in six weeks. P.C. Kuivenhoven denied that he made any such statement.
[13] Later that same day, the complainant attended at the police station where she gave a sworn videotaped statement to P.C. Kuivenhoven. During that statement she mentioned three or four other incidents in addition to the one described above, but provided no details or dates with respect to those incidents. There is controversy in the evidence as to whether the complainant told P.C. Kuivenhoven during the interview that she had been sexually assaulted by the appellant. She says she did and that she told the police officer that “he raped me”. He says that she did not report a sexual assault.
[14] On November 10, 2005, single charges of assault and uttering threats were laid against the appellant.
[15] The following day the complainant moved to a women’s shelter with S., at the suggestion of the police. She was provided with some information about domestic abuse and a checklist upon her arrival. She completed the checklist and testified that it was through the counselling and information she received at the shelter that she realized she had been living in an abusive relationship and that what had occurred when S. was conceived was sexual assault (she previously believed that a husband could not sexually assault his wife). She retained the checklist in her purse.
[16] The November 2005, charges were initially scheduled for trial on August 31, 2006. Prior to that date, the complainant reviewed her video statement with a different police officer, Sgt. Taylor, with whom she apparently had a more comfortable rapport. She gave a further video statement and revealed the details of other allegations, including the alleged sexual assault. This resulted in the initial trial being adjourned and the laying of a series of additional charges on September 13, 2006.
The Charges
[17] The appellant was ultimately charged with three counts of assault, two counts of uttering death threats and one count of sexual assault.
Count 1 (Threatening Death)
[18] The complainant testified that in the Fall of 2004 (around Thanksgiving), the appellant and their daughter returned from his parents’ home and she noticed S.’s genital area was very red and swollen. She was told that the appellant’s mother had changed the child’s diaper. When she suggested that they take her to the hospital, she said, the appellant told her that if she did he would get his “biker friends” from British Columbia “to come and disappear [her] from the face of the earth.” She took this as a threat and did not take the child to the hospital. This complaint was one of the incidents first mentioned to P.C. Kuivenhoven on November 10, 2005.
Count 2 (Assault)
[19] Count 2 relates to the complainant’s evidence that in November 2004, the appellant kicked her in the back and buttocks area while she was sitting on the couch watching television. She said it was a strong hit, like someone kicking a soccer ball. She said that when she asked the appellant why he had done that he laughed and asked her if it had hurt.
Count 3 (Assault)
[20] The complainant testified that in Spring 2005, the appellant without warning punched her in the face in the kitchen, causing her to fall down and hit her head between the counter and the stove. She said that the appellant was laughing at her when she was on the floor, asked her if he had hurt her and told her not to tell anyone about it.
Count 4 and 5 (Assault and Threaten Death)
[21] Counts 4 and 5 relate to an alleged altercation during an argument at the top of the stairs in late Summer 2005, when the appellant and the complainant were quarrelling again about S. going to his parents’ home without the complainant being present. The complainant said that while she stood at the top of the staircase, the appellant grabbed her by the neck, pushed her to the ground and stated, “I’m going to kill you, I’m going to kill you.” He continued to squeeze her neck while she lay on the ground. She said that she had pain in the centre of her neck for two days following this incident.
[22] The appellant denied that any of the foregoing, alleged incidents of assault and death threats ever occurred.
Count 6 (Sexual Assault)
[23] The final count concerned the sexual assault that is said to have led to the birth of S. The complainant testified that during an evening in late February 2003, while she was lying in bed reading, the appellant entered the room, naked, and forced unprotected sexual intercourse on her, while repeatedly stating, “I want a baby now, I want a baby now.” She said she was neither physically nor emotionally ready to conceive at that point, having miscarried just three months earlier.
[24] The appellant agreed that he and the complainant had had sexual intercourse on the evening in question. He said it was consensual. They had returned from a celebratory dinner that evening after they had agreed to start a family and became amorous.
THE DECISION AT TRIAL
[25] The trial judge rejected the appellant’s evidence in its entirety and convicted him on all six counts. She found that he attempted to show himself in the best light possible by taking every opportunity he could to disparage the complainant and by providing misleading evidence with respect to his criminal record.[^1] The trial judge also found that the appellant had provided nonsensical answers during his evidence, and that his evidence was replete with inconsistencies and contradictions – both internally and externally in contrast, particularly, to the evidence of P.C. Kuivenhoven. Although he testified in some detail about the sexual activity that occurred the night S. was conceived, the trial judge concluded that because “as he said, they performed the act in the same way they always did”, the appellant’s “detailed recall did not particularly enhance his credibility”.
[26] On the other hand, the trial judge found the complainant to be a believable witness who testified in a straightforward manner, without embellishment or exaggeration, without attempting to disparage the appellant, and without wavering from her testimony as to what happened at the time of the sexual assault and the commission of the other assaults and threats. Although the delay in the complainant’s disclosures raised some concerns, the trial judge found her explanations to be believable and acceptable. She concluded that the complainant’s “lack of specific recall” concerning the sexual assault “[was] not surprising because there was no reason for her to recall [those] secondary details” since the complainant did not realize until much later that what had occurred was a criminal offence.
ANALYSIS
[27] While Mr. Humphrey concedes there was evidence which, if properly considered and accepted, could support the appellant’s convictions, the problem to be addressed on this appeal is whether the appellant received a fair trial. Respectfully, in my view, he did not.
[28] He did not because the trial judge erred in a number of ways which, when taken together, require that a new trial be ordered. These errors fall principally into two categories. First, when her reasons are read as a whole, it is apparent the trial judge applied different standards of scrutiny in assessing the evidence of the appellant and of the complainant. A balanced and even-handed examination of the evidence is particularly important where, as here, the case turns almost entirely on the credibility of the accused and the complainant. Yet the trial judge held the appellant accountable for every frailty and inconsistency she observed, but glossed over with very little critical analysis a number of significant internal and external inconsistencies and weaknesses in the complainant’s testimony – in particular, important contradictions between her testimony and that of P.C. Kuivenhoven. Secondly, this unbalanced approach was either fed by, or itself fed, a misapprehension of the appellant’s testimony in significant places.
[29] I shall turn to these issues after a brief review of the governing legal principles.
The Applicable Principles
[30] Counsel agree on the applicable legal principles.
Different Standards of Scrutiny
[31] The argument that a trial judge has applied a different level of scrutiny in assessing the evidence of the accused and the complainant, as Doherty J.A. noted in R v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, “is a difficult argument to make successfully.” The unbalanced scrutiny must be clearly demonstrated in the reasons for judgment or the trial record. Doherty J.A. continued, in the same paragraph:
It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [Emphasis added.]
[32] The question is whether that rigorous test has been met here.
Misapprehension of Evidence
[33] A misapprehension of the evidence warranting appellate interference requires more than a mere misstatement or inaccuracy in the trial judge’s treatment of the evidence. The trial judge must be “mistaken as to the substance of material parts of the evidence” and “those errors [must] play an essential part in the reasoning process resulting in a conviction”: R v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541, per Doherty J.A., adopted in R v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, per Binnie J. at paras. 1-2. In such circumstances, as Doherty J.A. observed, the accused has not received a fair trial and has been the victim of a miscarriage of justice; this is so even if the evidence at trial was capable of supporting a conviction: Morrissey, at p. 541.
[34] The appellant contends that the criteria for setting aside his conviction on both “different standard of scrutiny” and “misapprehension of the evidence” grounds exist here. He asserts that the trial judge failed to address important aspects of the evidence in making her overall assessment of the complainant’s credibility. He also asserts that she misapprehended the evidence she did consider in significant ways. These two errors – alone and in combination – were central to the trial judge’s reasoning process and key to the fairness of her decision because, as she herself observed, she had to consider whether she believed the complainant when conducting the third part of the W.(D.) analysis. She asked herself: “Was [the complainant] credible? Was her evidence reliable? Was there other evidence that supported the reliability of her evidence or was there other evidence that supported the accused, such as to raise a reasonable doubt in [the trial judge’s] mind?” [Emphasis added.]
[35] As noted above, the appellant’s arguments – different standards of scrutiny and misapprehension of the evidence – overlap and find common ground in the record at times as the trial judge’s treatment of evidence now and then crossed the boundaries between the two.
The Trial Judge Applied a Different Standard of Scrutiny
[36] The record reveals a number of instances where the trial judge applied a different standard in assessing the evidence of the appellant and the complainant.
Contradictions Between the Evidence of P.C. Kuivenhoven, the Appellant and the Complainant
[37] Perhaps the most significant of these is the difference in the manner in which she treated contradictions between the evidence of P.C. Kuivenhoven and that of the appellant and the complainant. P.C. Kuivenhoven was an important witness – the only truly independent witness as to what happened at the home on November 10 and the person who took the complainant’s videotaped statement later that day.
[38] The trial judge relied on a significant contradiction between the evidence of P.C. Kuivenhoven and that of the appellant in rejecting the appellant’s testimony. She said: “It is helpful in assessing the credibility of the defendant to refer to the evidence of Constable Kuivenhoven and how the defendant’s evidence conflicts with that of the police officer.” She then went on to relate that the appellant had testified it was only when the police were about to leave the house, having given advice without seeking to remove him, that the complainant suddenly called out that she had been assaulted. P.C. Kuivenhoven’s testimony did not support this and “clearly refute[d]” the appellant’s evidence, the trial judge found. This one contradiction was an important consideration in the trial judge’s negative credibility finding with respect to the appellant. There is no dispute that she was entitled to – indeed, required to – take this inconsistency into account in her overall assessment of the appellant’s credibility.
[39] In stark contrast to this, however, is the way the trial judge dealt with similarly telling inconsistencies between the complainant’s testimony and that of P.C. Kuivenhoven. The trial judge ignored them, or simply glossed over them without any meaningful attempt to reconcile or to explain them. There were at least two of these in the case of the complainant.
(i) Whether the Complainant Told P.C. Kuivenhoven She had been Sexually Assaulted
[40] First, the complainant insisted – twice in her examination-in-chief and twice in cross-examination – that she told P.C. Kuivenhoven at the time of her video-taped interview on the day of the arrest that she had been sexually assaulted and that “he [i.e., the appellant] raped me.” For example, in examination-in-chief she said:
A. He had, after the videotape or before I don’t remember, he had a questionnaire on the paper. So he was asking me questions and one of the questions was about any sexual abuse.
Q. Okay.
A. I mentioned to police officer Kuivenhoven about the incident how I got pregnant with S.
Q. Yes.
A. But that moment I told him please don’t write anything down because my husband is already in a big trouble. I don’t want him to be in more trouble than he is now. And I was actually we were in that question for a few minutes and [I] tell him [S.] wasn’t a planned pregnancy. He actually raped me. And I remember very well telling him, like he was my husband. How can he rape his wife? It’s like I was feeling like his slave and he could do anything he wanted to me. [Emphasis added.]
[41] Later, in cross-examination, the complainant gave the following answers:
Q. I am going to repeat some of these questions [that P.C. Kuivenhoven had asked from the Assault Risk Assessment] and I am going to draw your attention to the box that has been marked to see if you recollect giving any answers. The fourth line down:
“Has the accused ever sexually assaulted the victim and/or previous partner?”
And you will notice that “no” is xed. Did that question get put to you by Officer Kuivenhoven?
A. Yes.
Q. And did you indicate that answer “no”?
A. I told him that [S.] came up from a rape and I told him please don’t write down anything about sexual assault because I do not want my husband to be in more trouble than he is already in.
Q. [I] [j]ust want to ask you the question again. All I need is a “yes” or a “no” at this point. Did you answer “no” to that question?
A. I answer “yes” but I ask him not to write it down. [Emphasis added.]
[42] P.C. Kuivenhoven testified, on the other hand, that the complainant had denied the appellant had sexually assaulted her, as the “x” in the box referred to above on the questionnaire indicated.
[43] The trial judge does not deal with this important contradiction. At least, if she does, she does so only very indirectly and no findings are made. Her entire treatment of the subject is found in the following paragraphs of her reasons:
Constable Kuivenhoven had filled out an interview form when he interviewed the complainant. I note from the evidence that [the complainant] did not see his answers and he did not review them with her. What he wrote was a summarized version of what she had said. I note from the videotape that the child was a significant distraction in this question and answer process. Constable Kuivenhoven’s notes were incomplete. She had asked him not to write down what she said after a certain point. Constable Kuivenhoven admitted that there was more information given by the complainant, which was not in his notes nor on the form.
Constable Kuivenhoven’s interview with her focused on ascertaining details of physical violence only and specific dates. He dissuaded her from talking about her concerns about the child in the care of the grandparents because that was the Kitchener jurisdiction. Although the complainant did not tell Kuivenhoven that her husband had sexually assaulted her she said [S.] was not planned and that [S.] was not an accident. [Emphasis added.]
The complainant’s evidence, confirmed by what Sergeant Taylor had testified to, was that her concern was about the child. In general the gist of the complainant’s explanation is that it was not until she went to the women’s shelter and learned about abuse and its many forms and had the time to reflect that she realized that the conduct she had been subjected to by her husband constituted abuse in several forms.
[44] What the trial judge appears to be suggesting is this: all the complainant did was say something to P.C. Kuivenhoven that in her mind related to sexual assault but that would not be enough to draw the officer’s attention to the fact that she was complaining about a sexual assault. As Mr. Humphrey points out, however, the complainant’s actual evidence was very different than that. Moreover, if, on the other hand, the trial judge was making a finding in the passage cited above that the complainant had reported a sexual assault to Constable Kuivenhoven at the time of the videotaped interview, such a finding would conflict with P.C. Kuivenhoven’s clear evidence that the complainant had not reported a sexual assault and that if she had, he would have noted it because it was a serious offence and ordinary protocol required that it be investigated. This, too, has implications for the overall assessment of credibility using P.C. Kuivenhoven’s testimony as the benchmark, as I shall explain in a moment.
[45] In addition, if the complainant’s further testimony is true, that she did not appreciate that she had been the subject of a sexual assault or that a husband could rape his wife until sometime after November 10, 2005, when she had received counselling at the women’s shelter – to which the trial judge alluded in the passage cited above – it is unlikely that she would have told the police officer on November 10 that she had been sexually assaulted or raped.
[46] The conflict between P.C. Kuivenhoven’s evidence and the complainant’s on this point is important on two fronts at least. First, it touches on a central aspect of the defence’s case, namely the complainant’s eve-of-trial delay in reporting the alleged sexual assault and subsequent complaints of assault and threats. The trial judge acknowledged that “the delay in disclosure would raise concerns,” but she concluded that the complainant’s explanations were “believable and acceptable.” She said that the assessment of the complainant’s credibility “is not to be sacrificed to some erroneous stereotype of how women are expected to act after they have been assaulted or [mistreated] in domestic relationships marked by emotional or physical abuse as the complainant testified her marriage was.” The proper rejection of unacceptable stereotyping is not a substitute for proper scrutiny and analysis of the complainant’s delayed reporting, however. By failing to resolve the foregoing contradiction between the testimony of P.C. Kuivenhoven and the complainant – and others that I will review below – in arriving at her overall assessment of the credibility and reliability of the complainant’s evidence, the trial judge committed reversible error.
[47] If the complainant did tell the police on the day the appellant was arrested that he had raped her, then the defence attack founded on the delay in reporting the sexual and other assaults is weakened, and any responsibility for postponing disclosure and deferring the laying of charges is at the feet of the Crown. The point is therefore central to the case.
[48] Second, if the complainant is believed on this point, then P.C. Kuivenhoven’s credibility is called into question. P.C. Kuivenhoven is the only truly independent witness of import in the case. If his credibility is shaken, there are implications for the trial judge’s assessment of the appellant’s evidence. How could the trial judge reject the appellant’s evidence on the basis that it conflicted with the police officer’s recollection of what occurred in the house at the time of arrest – at least without some analysis and explanation, which she failed to provide – if she had found the police officer to have lied on the important issue of whether he had been told by the complainant that the appellant had raped her?
[49] These problems were not resolved by the trial judge.
(ii) Whether P.C. Kuivenhoven Told the Complainant the Appellant Would Be Home in Six Weeks
[50] There is a second area of conflict between the evidence of P.C. Kuivenhoven and that of the complainant on a point of importance. The complainant testified that she did not know the appellant would be charged, that she was shocked he was being taken into custody, and that the police told her the appellant would return to the house in six weeks. P.C. Kuivenhoven testified, however, that he did not advise the complainant the appellant would return in six weeks and that he would have explained to her that charges would be laid.
[51] The trial judge forgave this inconsistency without any analysis and seemingly without foundation. Yet it, too, was telling. The trial judge said:
I did not view with suspicion the fact that to Constable Kuivenhoven she appeared normal and calm at the station. She appeared to be under the impression that the accused would be coming home after six weeks. Constable Kuivenhoven denied having told her that her husband would be home in six weeks and yet that was her understanding, correct or not and there would certainly be no benefit to the defendant for her to lie about that point. [Emphasis added.]
[52] Again, the trial judge makes no attempt to resolve the conflict. She simply explains it away. But on what basis? On the record, there is no other possible source for “her understanding, correct or not” than the statement the complainant attributes to P.C. Kuivenhoven. Yet if the complainant’s version is correct, there are implications again for P.C. Kuivenhoven’s credibility – not addressed by the trial judge – and indirectly for the trial judge’s rejection of the appellant’s testimony based on its contradictions with the police officer’s evidence.
[53] The defence argued that there was another reason why she appeared “normal and calm” to P.C. Kuivenhoven by the time she gave her statement later in the day on November 10: she had accomplished her goal of having the appellant removed from the house, and was therefore feeling at ease. At trial, the defence argued that the complainant had two motives to get the appellant out of the house. First, she did not want to appellant to take the child to his parents without her consent or without her being present. Second, she wanted to avoid having to sign the mortgage documents that were about to be presented for signature. In short, her “normal and calm” demeanour went to her motive to fabricate. Without analysing this aspect of the defence case, the trial judge was apparently satisfied that the complainant was “normal and calm” because she wasn’t worried about her husband’s fate since she had been assured that he would be home in a few weeks.
The Mortgage Issue
[54] The mortgage issue played a central role at trial. The appellant and his parents testified that the appellant’s father had loaned the couple a total of about $64,000 to purchase their house in Woodstock. Although there was no mortgage placed on the home initially, it was agreed that the appellant and the complainant would repay the appellant’s father. The complainant maintained that at least some of the monies were a gift. At the end of September or the beginning of October 2005, the appellant and the complainant applied for a mortgage with the Ontario Mortgage Centre. On November 8, a $75,000 mortgage was approved. The appellant testified that when the mortgage representative called to arrange for signatures on the paperwork, the complainant no longer wished to sign.
[55] As noted above, it was a key theme of the defence at trial that the complainant had a motive to fabricate her story because she wanted the appellant out of the house so that she would not have to sign the mortgage documents. The appellant testified in examination-in-chief that the mortgage papers had to be signed by November 10. In cross-examination, he conceded that the mortgage commitment gave them until the 15th to sign. The trial judge fastened on this discrepancy in rejecting the appellant’s evidence on the motive to fabricate/mortgage papers issue. This, she was entitled to do. However, she made no finding on the issue of the financing of the matrimonial home – that is, as to whether it had been financed through a loan (as three witnesses, including the appellant, testified) or a gift (as the complainant maintained was at least partly the case). In specifically leaving this issue unaddressed and in failing to resolve this issue, she avoided having to make a potentially negative credibility finding against the complainant that could have affected her ultimate assessment of the complainant’s credibility and, as a consequence, her conclusions under the third stage of the W. (D.) analysis.
Other Examples of Uneven Treatment of the Evidence
[56] The record reveals other examples of uneven treatment between the evidence of the appellant and that of the complainant.
(i) Details of the Sexual Assault
[57] As noted above, for example, the appellant was able to testify, as the trial judge observed, “in considerable detail” about the circumstances leading up to, and the sexual encounter in late February 2003, when S. was conceived. The trial judge found that “[t]his detailed recall did not particularly enhance his credibility”, however. The complainant, on the other hand, could not “recall details [of the event] to the same extent,” but this apparently did enhance her credibility. The trial judge did not find her lack of recall “surprising”.
[58] However, it was not the details of the sexual act that were particularly significant to the issue of consent. It was the context in which the sexual act occurred. The appellant said they had returned home from a celebratory dinner after they had decided to start a family again. If true, this was hardly “a secondary detail” or something they did “in the same way that they always did.” It was open to the trial judge to reject the appellant’s story, of course. But the basis on which she did so does not appear even-handed, with respect.
[59] Taken in isolation, this different treatment may be of little moment. Indeed, there may be a legitimate basis for a trial judge to take a different view of testimonial detail or lack of it. Viewed as part of the trial judge’s approach to the assessment of credibility as a whole, however, it provides another example of uneven scrutiny of the appellant’s and the complainant’s evidence.
(ii) Character Attacks
[60] In addition, on at least three occasions the trial judge noted as a negative in reviewing the appellant’s credibility that the appellant had gone out of his way to malign the character and credibility of the complainant, whereas the complainant was “fair” to the defendant and “spoke positively” of him. This, too, is an unbalanced assessment of the evidence. The record reveals that the complainant was herself quick to take opportunities to criticize the appellant.
[61] For example, she complained that the appellant never remembered their anniversary. She volunteered that “[u]sually he was … downloading porn from the internet” when asked about his working on the Internet. She took advantage of a question about his mother coming to visit to point out that the appellant “didn’t want to take any responsibility [for] the baby”. When questioned about why she had not mentioned the circumstances of her second pregnancy to her mother, the complainant saw fit to accuse the appellant of dealing in drugs and added a second reference to the porn issue for good measure (“I didn’t want to tell anything about my husband’s behaviour even with the drugs he was dealing with or anything else or the porno he was addicted to”) and to reiterate her concerns about the “aggressive behaviour from my husband towards the baby.” Finally, while having to cope with cross-examination on whether she had told P.C. Kuivenhoven that she had been sexually assaulted, she averted the question momentarily by pointing out that there were other questions on his questionnaire about weapons and adding – no doubt to ensure that the trial judge was aware of it – that the appellant’s father “has a gun” and that the appellant “always had a huge knife next to the bed” (which she had given to the police the following day).
[62] Again, it would have been open to the trial judge to reconcile these various comments in her credibility analysis. But her conclusion on this record that the appellant “referred to [the complainant] in negative terms for the most part”, whereas “on the other hand, the complainant spoke positively about [the appellant]” reinforces the view that the trial judge took an unbalanced approach and applied different standards of scrutiny to her assessment of the evidence of the appellant and the evidence of the complainant.
(iii) The Complainant’s Statement to Her Counsellor at the Women’s Shelter
[63] There is one other potentially significant contradiction in the evidence of the complainant that was not addressed by the trial judge and that related to the key question of delayed reporting. The complainant testified that she believed she told Kathy, her counsellor at the women’s shelter during the period of November-December 2005, that she had been sexually assaulted. Again, if true, this would undermine the force of the appellant’s defence. But there was no contemporaneous report of this to the police, either by the complainant or the shelter, and the complainant did not advise Sgt. Taylor at her eve-of-trial interview in August 2006, of any such statement to the counsellor. This contradiction was not mentioned by the trial judge.
Misapprehension of the Evidence and Findings of Confirmation Where None Existed
[64] It will be apparent from the foregoing recitation that a number of the “unbalanced scrutiny” examples border on, and sometimes cross over into the terrain of, errors involving the misapprehension of, or failure to deal with, material pieces of evidence. In addition, however, the trial judge specifically and identifiably misapprehended the appellant’s evidence in at least three relevant respects, and used her view of the misapprehended evidence as corroboration of the complainant’s testimony. She erred in this regard, because no such confirmation existed.
The Appellant Did Not Admit He and the Complainant “Argued”
[65] First, the trial judge attributed an admission to the appellant in relation to the alleged threat and assault at the top of the staircase in late Summer 2005. The trial judge said that the appellant “admit[ted] they argued but denie[d] assaulting or threatening [the complainant].” Such an admission would, indeed, have been very damaging to the appellant in relation to those counts. However, the appellant made no such admission. He was unwavering throughout his testimony that he and the complainant did not have “arguments” and that when they had “disagreements” he never raised his voice. He was adamant that no such incident ever occurred. The trial judge was entitled to reject the appellant’s evidence that he and the complainant never argued – as she did, finding it “simply not credible” – but she was not entitled to rely on an admission not made to found a conviction. The Crown concedes the trial judge erred in attributing such an admission to the appellant. Mr. Skerkowski submits that the misapprehension does not constitute an error warranting appellate interference. I do not agree. This error, alone, might well be sufficient to quash the conviction and to require a new trial on counts 4 and 5, in my opinion.
The Appellant Did Not “Recall” the Complainant Going to Tim Horton’s
[66] Second, the trial judge misapprehended a part of the appellant’s evidence in relation to count 2, which had to do with the allegation that the appellant had kicked the complainant in the back and buttocks in November 2004. The complainant had identified this complaint by reference to a trip she said she had taken to Tim Horton’s at the time of the first snowfall that year. The trial judge found that the appellant “did recall a time when [the complainant] drove to Tim Horton’s on the first snow fall of that year, although he did not connect that with anything specific that would have prompted her to go out in the snow on her own.” Again, the Crown concedes that the appellant did not testify he recalled such an incident. He simply maintained that on occasion the complainant would take the car to go shopping.
The Appellant Did Refute the Allegation that He Had Discouraged the Complainant from Forming Friendships
[67] Third, the trial judge misapprehended the appellant’s evidence on the issue of whether the complainant had any friends in Canada to which she could turn in confidence. All of her family and friends were in Cyprus. She testified that she was alone in Canada with no friends with whom to share things and went on to add that the appellant had discouraged her from forming new friendships. The trial judge stated that the appellant did not refute the complainant’s evidence in that regard. She was wrong in this respect, at least so far as the evidence that he had discouraged her from forming friendships went. The appellant did refute that statement. His unequivocal evidence was as follows:
Q. Did you interfere with your wife’s ability to form friendships and meet people outside the family circle?
A. No.
[68] The Crown concedes that the trial judge misapprehended the evidence in the foregoing three ways. Mr. Skerkowski submits, however, that the misapprehensions were of a minor nature and were not central to the trial judge’s reasoning process. While the “discouraging friendships” incident, standing alone, might fall into that category, the attribution of important admissions to the appellant in relation to the Tim Horton’s evidence and the altercation at the top of the stairs do not, in my view. It cannot be said with any confidence that the trial judge’s reasoning in respect of her convictions on those counts was not adversely affected by her misapprehension of the evidence.
The Sabotaged Condoms
[69] Finally, the trial judge placed some emphasis on what she called the “sabotaged condoms.” Prior to her pregnancy with S., the complainant had a pregnancy which ended in a miscarriage on November 25, 2002. The complainant testified that some time after S. was born, she found a box of wet condoms with pin pricks in them and that when asked about them the appellant simply laughed. The implication was that the first pregnancy was due to the sabotaged condoms. The trial judge said that the defendant did not refute the evidence of the sabotaged condoms either and used it as confirmation of the complainant’s version of events. She said:
He admits that he wanted to have another baby after the miscarriage but says she was equally eager. The complainant denied this. As I noted before, it appears that the defendant had been prepared to go to great lengths to have the complainant become pregnant. She said she was not ready to have a baby, that it was too soon for them to start a family, and I have already referred to the box of sabotaged condoms with the pinprick holes.
The defendant did not refute this evidence.
[70] It is true that the appellant did not refute the evidence about the condoms. He was not asked about it – either by the Crown or by his own lawyer. It is not necessary here to resolve the issue of who should have asked the question, if anyone. The existence of the box of condoms – sabotaged or not – was simply not relevant to the issue of whether the complainant consented to the sexual intercourse that led to S.’s birth, which was the sole issue on the sexual assault charge.
CONCLUSIONS AND DISPOSITION
[71] There were serious issues that needed to be resolved with respect to the contradictions between the testimony of P.C. Kuivenhoven and the testimony of the appellant and the complainant before the trial judge could properly arrive at her ultimate assessment of the complainant’s credibility. Those issues were either not addressed by the trial judge because of her failure to scrutinize the evidence of the appellant and the complainant in a balanced fashion or they were addressed, but not resolved, through the lens of misapprehended or overlooked evidence.
[72] In the result, the appellant did not receive a fair trial.
[73] As Doherty J.A. noted in Morrissey, at p. 541, and the Supreme Court of Canada affirmed in Lohrer, at para. 1:
If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence, then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so, even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
[74] The same rationale applies and the same result must flow, in my view, in those rare cases where – as here – “the appellant [can] point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge [has] applied different standards in assessing the evidence of the appellant and the complainant”: Howe, at para. 59. In such a case – even where the record may otherwise be capable of supporting a conviction, had the evidence been properly assessed and the complainant believed – the appellant has not received a fair trial and has thus been the victim of a miscarriage of justice.
[75] The remedy is to allow the appeal and to order a new trial, which I would do.
RELEASED: August 14, 2009 “R.A. Blair J.A.”
“JL” “I agree John Laskin J.A.”
“I agree K. Feldman J.A.”
[^1]: The appellant testified in chief that he had pled guilty to possession of marijuana years earlier following a high school party and been given probation, whereas in fact he had pled guilty to possession of cocaine for the purposes of trafficking and been given a conditional sentence.