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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.A., 2010 ONCA 491
DATE: 20100709
DOCKET: C49465
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Goudge and MacPherson JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J.A.
Appellant
Marie Henein and Margaret Bojanowska, for the appellant
Melissa Adams, for the respondent
Heard: June 1, 2010
On appeal from the conviction by Justice Timothy A. Culver of the Ontario Court of Justice dated August 15, 2008.
MacPherson J.A.:
A. INTRODUCTION
[1] The appellant, J.A., was convicted of sexual assault and sexual assault with a knife following a three-day trial before Justice Timothy A. Culver of the Ontario Court of Justice. Both convictions flowed from an alleged confrontation with his wife in their home on June 8, 2007. The appellant was sentenced to two years less a day, in addition to 55 days of pre-trial custody and probation for three years.
[2] The appellant appeals his conviction. He contends that the trial judge improperly relied on the post-event demeanour of the complainant as a factor in conviction. He also submits that the trial judge improperly rejected his evidence at trial.
[3] However, the crucial issue on the appeal relates to the appellant’s attempt to introduce fresh evidence. During the trial, the complainant testified that she bit one of her husband’s fingers during his prolonged attack on her. When the police interviewed the appellant, on the same day as the incident, they noticed a mark on one of his fingers. In his reasons for judgment, the trial judge stated that the complainant’s evidence “was also supported by the injury to the accused’s finger”. Later he referred to “the evidence of injury to the accused’s finger” as “supportive of the complainant’s evidence”.
[4] The appellant seeks to introduce as fresh evidence the report of Dr. Robert E. Wood, a forensic dentist with considerable experience in bite mark analysis. Based on his examination of the case, Dr. Wood has concluded that the mark on the appellant’s finger was not a bite mark. The appellant contends that Dr. Wood’s opinion strongly undermines the trial judge’s reasons and verdict because, contrary to the trial judge’s belief, the injury does not corroborate the complainant’s evidence. Accordingly, the fresh evidence should be admitted, the appeal should be allowed, and an acquittal should be entered or, in the alternative, a new trial should be ordered.
B. FACTS
(1) The parties and the events
[5] The appellant and the complainant were married in 1991. They had two children, a son and a daughter, who were 17 and 13 respectively in 2007. They were having marital difficulties, and there had been no sexual relations for about 18 months. While they formally separated on May 1, 2007, the two continued to live together in the family home until they settled their affairs, including financial and property matters. About six months prior to June 2007, the appellant began to sleep in a bedroom in the basement.
[6] The parties agree that they had sexual relations shortly after the children left for school on the morning of June 8, 2007. They disagree almost completely on how this came to pass.
[7] The complainant testified that after she awakened, she took the dog for a walk, prepared lunches for the children, and dressed for work. After the children left for school, she and the appellant engaged in a brief argument about the appellant’s refusal to serve as a chaperone on a school trip involving their daughter. Shortly after this conversation, the appellant grabbed her, carried her forcefully to the basement bedroom, put his hand over her mouth to prevent her from screaming, held her nose which made breathing difficult, and sexually assaulted her. The complainant described numerous instances of actual or attempted sexual intercourse in the basement, including vaginal sexual intercourse from the front and from behind and oral sex. While they were in the basement bedroom, the appellant showed her a knife and talked about killing himself. The appellant then took the complainant upstairs to the master bedroom where the sexual assaults continued.
[8] The appellant testified that the sexual relations described by the complainant took place, but were consensual. He said that the complainant came to his bedroom in the basement and said that she was unsure about their marriage and whether she wanted to separate. This led to caressing, hugging and kissing, and then to sexual relations in various forms and positions. The appellant testified that he was very surprised by what was happening. The surprise flowed from not only the fact of their recent separation, but also from the reality of their almost non-existent sex life in recent years, as described by the appellant in his cross-examination:
MS. FLYNN: Q. You acknowledge that you had not had an intimacy or sexual relations with [the complainant] for at least a period of 18 months prior to June 8th, 2007, correct?
A. Sexual relations, that would be true.
Q. Right. And you would agree with me that prior to that 18 months of ceasing and desisting sexual intercourse with [the complainant] that there were a number of years prior to that that [the complainant] was not interested in sex?
A. We for quite a while had it twice a year; once on my birthday and then usually in the summer some time.
Q. Would you agree with me that she appeared to be disinterested in sex for a number of years prior to the 18 months hiatus we’ll call it?
A. Yes. She’s not really – wasn’t really all that interested in sex.
Q. And so all of a sudden out of the blue, despite there being this separation in process, she is all of a sudden interested in making love with you for two hours, is that right?
A. That’s correct, ma’am.
Q. All right. And you have already testified that you were surprised by this and felt joy that [the complainant] you knew had come back to you, right?
A. That’s correct.
[9] The parties agree that the sexual activity continued for about 1 ½ - 2 hours. When it ended, the complainant drove immediately to a neighbour’s home. The neighbour testified that the complainant was incoherent, crying – almost hysterical – and terrified.
[10] The complainant and her neighbour called the police, who arrived and took the complainant to a hospital. Detective Constable Sandra Walters testified that while taking the complainant’s statement at the hospital, the complainant was extremely distraught, wringing her hands, visibly upset, and at times crying. The complainant continued to be in this condition after she was moved to the Mountainview Police Station.
[11] Detective Constable John David Hennick provided evidence with respect to the complainant’s demeanour on June 10, 2007, when the appellant arrived with officers to retrieve his personal belongings from the home. He testified that he was outside the complainant’s home speaking with the complainant when he observed a sudden change in her demeanour. The change was so dramatic that it caused him to look behind him where he observed a police vehicle pulling up to the home. Detective Hennick described that the complainant grabbed the arms of the chair she was sitting in and looked down at her lap. The complainant sounded like she was whimpering. She began to cry and shake. According to Det. Hennick, it was obvious that the complainant was very nervous, scared, and frozen in her seat.
[12] Detective Walters, who was also present at the family home on June 10, 2007, described the complainant’s reaction to her husband’s arrival in a similar vein. She said that the complainant gripped the armrests of her chair and her nails were digging into the armrests. She became very erect and her spine was straight. She appeared to be very shaken, extremely anxious, upset, and very fearful. Detective Walters described the complainant’s reaction as “sheer panic on her face” and that “she appeared to be overwhelmed with fear and apprehension”.
[13] There are other facts relevant to the disposition of the appeal. I prefer to deal with them in the context of the issues to which they relate.
(2) The Trial Judgment
[14] The trial judge delivered comprehensive (27 pages) reasons for judgment. He carefully reviewed and evaluated the testimony of the various witnesses and he articulated and applied the relevant legal principles. He concluded his judgment in this fashion:
I found the evidence of the complainant compelling, straightforward, credible, and supported by her demeanour after she left the house, in her contact with her neighbor, and shortly after when her husband attended to retrieve his clothing; and as well at the hospital and the Mountain Station when giving her initial statements. Her evidence was also supported by the injury to the accused’s finger, and the general condition of the home when investigated by the police; including the location of various items of clothing, and the existence of the dull knife.
The accused’s evidence was articulate, responsive to the questions asked, and generally unshaken in cross-examination. Taken in isolation, there was little in the substance of his evidence, or in the manner in which it was given, that suggested it was untrue.
The central issue in the end is one of consent. I find myself in a similar position to the trial judge in R. v. J.J.R.D., a decision of the Court of Appeal released on November 30th, found at (2006) 2006 40088 (ON CA), O.J. No. 4749.
Stacked beside the complainant’s evidence, the evidence of the complainant’s demeanour after the attack, the evidence of injury to the accused’s finger, their evidence with regard to the accused’s possession of the knife, and their shared knowledge that the knife was dull, the manner in which the accused described his interaction with the complainant during the event, and the manner in which he described his control of her, all of which I find supportive of the complainant’s evidence, and the general internal and external logic and consistency of the complainant’s description of the events, as opposed to the accused’s evidence as outlined in the Crown’s submissions, I find the accused’s evidence is not capable of belief.
Considering all of the evidence, I am satisfied beyond a reasonable doubt that the accused is guilty of the offence of sexual assault and sexual assault with a weapon.
C. ISSUES
[15] The appellant raises three issues on the appeal:
(1) Did the trial judge improperly rely on the post-event demeanour of the complainant?
(2) Did the trial judge improperly reject the appellant’s evidence?
(3) Should the fresh evidence of Dr. Woods relating to the mark on the appellant’s finger be admitted?
D. ANALYSIS
(1) The complainant’s post-event demeanour
[16] The appellant submits that the trial judge erred in law in his assessment of credibility by placing extensive emphasis on the demeanour of the complainant following the alleged assault. In particular, the appellant challenges this passage in the trial judge’s reasons:
I found the evidence of the complainant compelling, straightforward, credible, and supported by her demeanour after she left the house, in her contact with her neighbour, and shortly after when her husband attended to retrieve his clothing; and as well at the hospital and the Mountain Station when giving her initial statements.
[17] I do not accept this submission. The use of evidence relating to the post-event demeanour (perhaps better described as post-event emotional state) of a complainant was described by this court in R. v. Varcoe (2007), 2007 ONCA 194, 219 C.C.C. (3d) 397, at para. 33:
K.F.’s emotional upset was manifest the day following the assault; it was apparent to and noted by her family. Such evidence is admissible and may be used to support a complainant’s evidence of a sexual assault. See R. v. Boss (1988), 1988 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.). The weight to be given this properly admissible evidence was exclusively a matter for the trial judge’s discretion.
[18] In light of Varcoe and Boss (both of which were cited by the trial judge in his reasons for judgment), it was clearly permissible for the trial judge to admit the evidence relating to the complainant’s post-event emotional state soon after the incident. Nor, can there be any suggestion, in my view, that he gave this evidence too much weight. The key factor in the trial judge’s reasons was his belief in the complainant’s testimony on the witness stand; he called it “compelling, straightforward, credible.” In support – but only in support – of this testimony, the trial judge relied on several other factors, including her post-event emotional state in several settings. This is a question of weight which, as Varcoe prescribes, is “a matter for the trial judge’s discretion.”
(2) Rejection of the appellant’s evidence
[19] The appellant contends that the trial judge erred in law in rejecting the otherwise credible evidence of the appellant without any basis or foundation.
[20] There is no question that the trial judge described the appellant’s testimony in complimentary fashion. He said:
The accused was thoroughly cross-examined by the Crown. In my view, any inconsistencies between his examination in-chief and cross-examination were so minor as to be inconsequential.
The accused’s evidence was articulate, responsive to the questions asked, and generally unshaken in cross-examination. Taken in isolation, there was little in the substance of his evidence, or in the manner in which it was given, that suggested it was untrue.
[21] In addition, the trial judge rejected the Crown submission that the appellant’s evidence ought not to be accepted on the basis of the appellant’s manner of testifying:
The Crown urged me to find that the demeanour of the accused was argumentative and evasive. The Crown contends that the answers the accused gave were not responsive to the questions posed; a contention I have difficulty with.
[22] However, the trial judge’s description of the appellant’s testimony as articulate, responsive and unshaken in cross-examination does not cast uncertainty on his ultimate finding that the appellant’s version of events was not to be believed, and does not necessarily suggest that the appellant’s testimony ought to have raised a reasonable doubt. The trial judge reasonably rejected the appellant’s version of events insofar as the complainant’s consent was concerned because, stacked beside the complainant’s evidence, the evidence of her emotional state following the incident, the physical evidence, and the acknowledged state of their marriage and absence of sexual relations, the appellant’s evidence “is not capable of belief”.
[23] The trial judge was entitled to reach this conclusion. As explained by this court in R. v. D.(J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252, at paras 48 and 53:
The trial judge also acknowledged that there was nothing in the substance of the appellant’s evidence or in the manner in which he gave his evidence which would cause the trial judge to disbelieve that evidence. Once again, this aspect of his reasoning is readily apparent.
The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [Emphasis added.]
(3) The fresh evidence
[24] The complainant testified that during her struggle with the appellant, she bit one of his fingers:
I want to say that after I screamed and he said ‘Shut up’ he put his hand over my mouth to shut me up and I bit his finger. I believe it was his middle finger. I bit it very hard.
I don’t know if I looked at the finger again. I have an image that there was a small red mark on his finger but I don’t know if I really saw it.
I bit him as hard as I could.
[25] Detective Hennick testified that the complainant had advised him during the interview very soon after the incident that she had bitten the appellant. Accordingly, during his interview with the appellant later that afternoon, he noticed a mark on the index finger of the appellant’s hand. He testified that it “looked like a fresh mark or bite mark on his hand.”
[26] On cross-examination, trial counsel asked two questions of Det. Hennick about this aspect of his testimony:
MR. ABRAMS: Q. And the evidence you gave with respect to the injury you observed on his index finger, you have given your opinion as to it being consistent with a tooth mark, but just so we’re clear I take it that’s your lay opinion; you have no particular expertise in dental marks or bite marks?
A. That’s correct.
Q. Okay. And a dental mark was not retained in any way to look at that bite mark?
A. No.
[27] The clear anchor of the trial judge’s reasons for judgment was his belief of the complainant’s testimony, which he described as compelling, straightforward and credible. In addition, the trial judge identified five other factors that he found supported her testimony. One of those factors was “the evidence of injury to the accused’s finger”, presumably caused by the complainant’s bite during the struggle.
[28] During the police investigation, photographs were taken of the mark on the appellant’s finger. At the trial, the photographs were admitted as evidence and the parties filed a Statement of Admissions that included this statement: “[The appellant’s] finger was injured on one side only.”
[29] In preparing for this appeal, Ms. Henein sent the photographs to Dr. Robert E. Wood, a forensic dentist with considerable experience in bite mark analysis. Dr. Wood prepared a report. His conclusion was: “The photographs provide enough information...I conclude that these markings are not a bite mark.”
[30] The appellant seeks to introduce Dr. Wood’s report as fresh evidence. If it is admitted, the appellant requests that the appeal be allowed and an acquittal entered or, in the alternative, a new trial ordered.
[31] The test for the admissibility of fresh evidence was established by the Supreme Court of Canada in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, and encompasses four propositions: the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; the evidence must be credible in the sense that it is reasonably capable of belief; and it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[32] The Crown concedes that the second and third of these criteria – relevance and evidence reasonably capable of belief – are present in this case.
[33] The appellant essentially concedes that he cannot meet the due diligence criterion. This is a fair concession as trial counsel was well aware of the potential linkage between the mark on the appellant’s finger and the possible value of expert evidence to explain the nature of the mark. Trial counsel cross-examined Det. Hennick about his own expertise in this area and, in an affidavit prepared for the fresh evidence application, indicated that he had considered and rejected the possibility of retaining an expert to analyze the mark. It is not surprising, therefore, that the appellant’s position on the due diligence criterion is put no higher than it should not be determinative, or that it cannot trump the other Palmer criteria.
[34] I do not disagree with the appellant’s invocation of caution concerning the due diligence criterion. However, I pause to make two observations. First, as stated above, the appellant cannot meet this criterion in this case. Second, the due diligence criterion is part of the Palmer test and cannot be ignored or wished away. It plays an important role in the administration of criminal justice, as explained by Doherty J.A. in R. v. M.(P.S.) (1992), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411:
The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused’s interest in having his or her guilt determined upon all of the available evidence but also the integrity of the criminal process. Finality and order are essential to that integrity. The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of the admission of “fresh” evidence on appeal has been stressed.
[35] That leaves the fourth criterion, namely, would Dr. Wood’s evidence that the mark on the appellant’s finger was not a bite mark, if believed, be expected to have affected the result? In my view, the answer to this question must be ‘no’.
[36] The starting point in this stage of the analysis is that the trial judge relied on the supposed bite mark on the appellant’s finger as evidence that supported his conclusion that the complainant was credible. It is important to note that the trial judge’s finding about the complainant’s credibility was a particularly strong one – he described her testimony as compelling, straightforward and credible. Moreover, he reached this conclusion after a comprehensive review of the complainant’s testimony and without the aid of any supporting evidence.
[37] The trial judge then turned to the other evidence and listed five factors that in his view supported his conclusion that the complainant was a credible witness: the complainant’s post-offence demeanour; the injury to the appellant’s finger; the general condition of the home when investigated by the police, including the location of various items of clothing that was consistent with the complainant’s evidence; the existence of the dull knife; and the general internal and external logic and consistency of her description of the events.
[38] In my view, two of these factors were particularly powerful. The evidence of the complainant’s neighbour, and of Det. Walters and Det. Hennick, about the complainant’s physical and emotional state in the minutes and hours after the event was, in my view, strong evidence indeed. The same can be said about the logic of the complainant’s testimony. On June 8, 2007, the parties were separated. The appellant had moved to the basement bedroom six months earlier. There had been no sexual relations for 18 months as the complainant had – on the appellant’s own testimony – virtually no interest in sex. The complainant was dressed for work, she was expected at work where several people reported to her, and the parties had just argued about their daughter’s school trip. The constellation of these contextual facts lends substantial credence to the complainant’s “compelling, straightforward, credible” testimony.
[39] For these reasons, I am of the view that Dr. Wood’s evidence, even if believed, could not reasonably be expected to have affected the result. The other evidence adduced at trial still compels the convictions entered by the trial judge. Accordingly, I would dismiss the application to admit the fresh evidence in the form of Dr. Wood’s report.
E. DISPOSITION
[40] I would dismiss the appeal.
“J. C. MacPherson J.A.”
“I agree. S. T. Goudge J.A.”
Winkler C.J.O. (Dissenting):
[41] I have had the benefit of reading the reasons of MacPherson J.A. but I have reached a different conclusion. I would allow the fresh evidence application and, in conjunction with the other issues raised, grant the appeal, quash the conviction and order a new trial. In my view the trial judge improperly admitted evidence of a bite mark and demeanour evidence of the complainant and misdirected himself as to the manner in which he applied the criminal onus of proof. My reasons follow.
The Appeal
[42] The appellant’s application to adduce fresh evidence relates to the evidence of an expert in forensic dentistry and bite marks. In addition, the grounds of appeal raised by the appellant may be summarized as follows:
• That the trial judge placed improper reliance on demeanour evidence;
• That the trial judge improperly used evidence to corroborate the complainant; and
• That the trial judge improperly rejected the testimony of the appellant.
Facts
[43] I find it necessary to restate some of the facts and summarize others.
[44] On June 8, 2007, the appellant and the complainant S.A. were married but separated, living under the same roof. They had two children, aged 16 and 13, who also lived in the home. The appellant and S.A. slept in different bedrooms in the home and had not had sexual relations for 18 months or more.
[45] They lived in a detached bungalow with a main floor and basement, built on an incline such that the basement was a walk-out to ground level at the back of the house. There were three bedrooms on the main floor, which were occupied by S.A. and the two children, and the appellant occupied and slept in a bedroom in the basement. The appellant and S.A. had lived in this arrangement for approximately six months prior to June 8, 2007.
[46] In April 2007, the appellant and S.A. went to a mediator to assist them in the separation and division of their assets. Based on those discussions, it appeared that S.A. would have to pay the appellant an equalization payment of approximately $70,000 upon the dissolution of their marriage. There were further discussions between them with respect to options for dealing with the equalization payment, one of which was for the appellant to buy from S.A. her interest in the matrimonial home – offset by the equalization payment – requiring her to make arrangements to live elsewhere. As of June 8, 2007, S.A. had met with a real estate agent, but had not viewed any properties.
[47] S.A. initiated the separation, having indicated her intention to dissolve the marriage approximately a year earlier. S.A. and the appellant had agreed that the date of their separation for the purpose of evaluating their assets would be May 1, 2007. There had been brief indications by S.A. that she was considering reconciliation, but these were very short-lived, and just prior to June 8, 2007, it was clear that S.A. was intent on dissolving the marriage.
[48] On June 8, 2007, the day began unremarkably in the home of the appellant, S.A., and their children. The children left for school by 8:00 am. S.A. was dressed and ready to leave for work. The appellant was still in the clothes he had slept in. The appellant and S.A. had talked about a school trip one of their children was taking on the following Monday morning.
[49] There is a dramatic divergence between the events that took place over the next few hours as described by the appellant and S.A. S.A. described the appellant physically forcing her into his bedroom, and later her bedroom, where he forced her to engage in many acts of vaginal and oral sexual intercourse despite her very explicit and physical protestations. S.A. testified that during this period she was afraid for her safety because the appellant physically overpowered her and at times handled a knife, threatened suicide, and threatened at one point to kill her. The appellant, on the other hand, described the events as beginning quite spontaneously when S.A. had followed him to his bedroom, where she was tearful and indicated ambivalence about their separation; that they hugged, then kissed, and then engaged in several acts of consensual vaginal and oral sexual intercourse first in his bedroom and later in her bedroom.
[50] Certain specific facts, as testified to by various witnesses, are relevant to the issues in this appeal, and are summarized as follows.
The Bite
[51] S.A. testified that she was about to leave for work when the appellant grabbed her from behind, lifted her off the ground, and was carrying her down the stairs when she screamed. She testified that, while still carrying her, the appellant then placed his right hand over her mouth. In so doing, he also blocked her nose and she had difficulty breathing. She testified that she bit his finger. She indicated that, “I believe it was his middle finger. I bit it very hard.” In cross-examination she indicated, “I bit him as hard as I could.” On the other hand, the appellant testified that S.A. followed him down to his bedroom, about ten to fifteen seconds after he had left her upstairs to go down and get dressed. The appellant explicitly denied he was ever bitten by S.A.
[52] The appellant was arrested by the police later the same day. Detective Constable (D.C.) Hennick interviewed the appellant. D.C. Hennick was aware, prior to conducting the interview, of S.A.’s allegations that she had bitten the appellant’s hand. He testified that during this interview, he “couldn’t help but notice that he had what looked like a fresh mark or bite mark on his hand.” He continued:
I noted that it appeared to be fresh but that it wasn’t bleeding, and that to me it appeared consistent with a tooth mark because it went around the same width as a tooth mark, the first – the mark that I could see the clearest. I guess it would be about two or two and a half or one-eighth of a diameter, so about three-eighths of a width long. That’s how wide the tooth mark looked that was on his finger, and it looked like there was a thin layer of skin that was over top of that cut.
I found – what I thought was also interesting is the way [S.A.] described how the accused would have put her – or put his hand over her mouth; that tooth mark, if it was that, that would have been from the underside of her teeth biting up against the inside of his hand. So that’s what it looked like to me.
[53] During cross-examination of D.C. Hennick, the following question was asked and answered:
Q. And the evidence you gave with respect to the injury you observed on his index finger, you have given your opinion as to it being consistent with a tooth mark, but just so we’re clear I take it that’s your lay opinion; you have no particular expertise in dental marks or bite marks?
A. That’s correct.
[54] There were agreed statements of facst read into the record and filed, one of which contained an indication that the appellant’s finger was injured on one side only. During his testimony, the appellant had no recollection of receiving the injury to his finger, and indicated that he first noticed it when he was interviewed by D.C. Hennick. The police took photographs of this injury and two photographs of it were identified and entered as exhibits in the trial.
Post-Incident Demeanour of the Complainant
[55] There are three separate incidents that comprise the post-incident demeanour evidence relating to the complainant.
[56] First, after leaving the house, S.A. testified that she drove to a neighbour’s house and rang the doorbell but there was no answer. She then drove to her friend’s house. At her friend’s house, her friend’s husband opened the door and S.A. testified that she started to cry and said, “I think we need to call the police.” He got his wife, D.M., to come to the door. S.A. testified that she told her friend what had happened, that the appellant had a knife, had raped her, and was threatening to kill himself. S.A. indicated that she said they should call an ambulance, but D.M. said they should call the police, and then S.A. asked if they could call the appellant’s sister.
[57] Second, the police attended and spoke to S.A., then took her to the hospital, where she was interviewed. S.A. attended at the police station later that night where she was interviewed further.
[58] Third, on June 10, two days after arresting the appellant, the police escorted him to the house while he obtained some of his personal belongings and S.A. was present when the appellant arrived.
[59] The Crown called S.A.’s friend, D.M., as well as D.C. Hennick and Officer Sandra Walters, and elicited observations they made about the demeanour of the complainant on June 8 and 10.
[60] D.M. testified that when she first saw S.A. at her door on June 8, “She was incoherent and crying and almost hysterical.” D.M. testified that S.A. was trying to tell her what happened but she could not understand what S.A. was saying. After D.M. gave her a glass of water in her kitchen, S.A. calmed down enough to tell D.M. what happened. D.M. estimated that within seven to eight minutes of when S.A. arrived, D.M. called the police, and the police arrived approximately ten minutes later.
[61] Officer Walters testified she met S.A. at the hospital later the same day and began to take a statement from her. Officer Walters described S.A. as extremely distraught. She indicated that S.A. was wringing her hands, visibly upset, at times crying, and having difficulty recalling the incident in chronological order. The interview was interrupted, and the statement continued later that evening at the police station. At that time, Officer Walters testified that S.A. was “very upset where I was having problems getting – eliciting details in the chronological order of events; visibly shaken, very distraught.” Officer Walters was also at the house two days later on June 10 when the appellant arrived with a police escort to obtain some of his personal belongings. When the police vehicles approached, escorting the appellant, Officer Walters described S.A.’s reaction:
Like become very tense; it was a very physical reaction. Saw her grip the hand – the armrests of the Muskoka chair [she was sitting in] where her nails appeared to actually be digging into the rests. She became very erect and very straight – her spine. Her eyes were literally bulging wide open and welling up with tears. Very – she appeared very shaken and extremely anxious and upset, very fearful.
[62] Under cross-examination, Officer Walters confirmed that she had reported in her “will-say” report, that while describing S.A. on June 10 she used the words “sheer panic on her face”, and that “she appeared to be overwhelmed with fear and apprehension.”
[63] D.C. Hennick was also present on June 10, and he described her reaction as follows:
I noticed that she grabbed the arms of her chair that she was sitting in with both of her arms, both of her hands, sorry, and looked down at her lap. It sounded like she was whimpering. I noticed that she immediately had begun to cry and that her eyes opened up – her eyes were filling with tears but tears weren’t actually coming down her face they were just staying in the lower – lower lid I guess. She began to shake. It was obvious to me that she – or appeared to be anyways, very nervous and scared, and it looked like she was kind of frozen in her seat.
Reasons of the Trial Judge
[64] The trial judge, in his judgment, thoroughly and extensively reviewed the testimony of all of the witnesses in the trial. After reviewing the complainant’s testimony in-chief and in cross-examination, the trial judge indicated that:
[The complainant] generally confirmed her evidence in-chief during her cross-examination, and gave a frank and honest account of events, without hyperbole.
I found her to be a straightforward, credible witness, who testified in a consistent and logical manner.
[65] After reviewing the appellant’s testimony, the trial judge indicated that:
The accused was thoroughly cross-examined by the Crown. In my view, any inconsistencies between his examination in-chief and cross-examination were so minor as to be inconsequential.
[66] After making reference to the ultimate question of reasonable doubt and the burden on the Crown, and setting out the principles of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, the trial judge concluded:
I found the evidence of the complainant compelling, straightforward, credible, and supported by her demeanour after she left the house, in her contact with her neighbour, and shortly after when her husband attended to retrieve his clothing; and as well at the hospital and the [police station] when giving her initial statements. Her evidence was also supported by the injury to the accused’s finger, and the general condition of the home when investigated by the police; including the location of various items of clothing, and the existence of the dull knife.
The accused’s evidence was articulate, responsive to the questions asked, and generally unshaken in cross-examination. Taken in isolation, there was little in the substance of his evidence, or in the manner in which it was given, that suggested it was untrue.
The central issue in the end is one of consent. I find myself in a similar position to the trial judge in R. v. J.J.R.D., a decision of the Court of Appeal released November 30th, found at (2006) 2006 40088 (ON CA), O.J. No. 4749.
Stacked beside the complainant’s evidence, the evidence of the complainant’s demeanour after the attack, the evidence of injury to the accused’s finger, their evidence with regard to the accused’s possession of the knife, and their shared knowledge that the knife was dull, the manner in which the accused described his interaction with the complainant during the event, and the manner in which he described his control of her, all of which I find supportive of the complainant’s evidence, and the general internal and external logic and consistency of the complainant’s description of events, as opposed to the accused’s evidence as outlined in the Crown’s submissions, I find the accused’s evidence is not capable of belief.
Considering all of the evidence, I am satisfied beyond a reasonable doubt that the accused is guilty of the offence of sexual assault and sexual assault with a weapon.
Analysis
Fresh Evidence Application
[67] The appellant brought an application pursuant to section 683(1) of the Criminal Code to adduce fresh evidence in this appeal. The fresh evidence consists essentially of a forensic odontology bite mark report prepared by Dr. Robert Wood with respect to the scenario and photographs of the injury to the appellant’s finger in this case. Accompanying that report is the extensive curriculum vitae of Dr. Wood, and a transcript of the examination and cross-examination of Dr. Wood with respect to that report. Also submitted, as part of this application, is an affidavit of the appellant’s trial counsel indicating the reason for not obtaining such expert evidence for trial. Finally, attached to this application is a letter from counsel for the Crown, confirming that the Crown withdrew their intention to file an expert’s report in response to the report of Dr. Wood on the application. This withdrawal apparently occurred after the Crown’s expert was subjected to cross-examination by counsel for the appellant.
[68] In substance, Dr. Wood’s opinion, as expressed in his report, is that the injury depicted in the photographs of the appellant’s finger is not a bite mark. Dr. Wood was also asked to consider whether the absence of a corresponding tooth mark on the opposite side of the appellant’s finger was significant or relevant. Dr. Wood indicated that it is highly unlikely to have a marking on one side of a bitten finger without a corresponding opposing mark on the opposite side of the finger. In his report, and under cross-examination, Dr. Wood also explained the features that are not present in the photographs that he would expect to be present had this mark been caused by a human bite, such as described by S.A.
[69] The affidavit of the appellant’s trial counsel makes it clear that: (1) he was aware that the Crown might suggest that the injury corresponded to the bite S.A. claimed to have inflicted; (2) he did not consult with an expert because (a) the Crown had not disclosed that they had consulted or were calling an expert, (b) simply from looking at the picture one could conclude the mark was merely a generic scratch and (c) the police officer’s opinion was of no value and would be inadmissible; and (3) he believed because there was no corresponding mark on the other side of the finger, the injury could not be a bite mark, and the evidence would support the appellant’s position at trial that he had not been bitten.
[70] The test for the admission of fresh evidence on appeal was addressed in R. v. Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321 (Ont. C.A.), at p. 351:
The admissibility of this kind of evidence on appeal is tested against the criteria articulated by the Supreme Court of Canada in R. v. Palmer and Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193. Those criteria are well known. They encompass three components:
• Is the evidence admissible under the operative rules of evidence?
• Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?
• What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence?
The first two of these components are directed at preconditions to the admissibility of Palmer evidence under s. 683(1). Evidence that is not admissible under the usual rules of evidence governing criminal proceedings, or is not sufficiently cogent to potentially affect the verdict, cannot be admitted on appeal. The last component, sometimes referred to as the due diligence requirement, is not a precondition to admissibility. It becomes important only if the proffered evidence meets the first two preconditions to admissibility. The explanation offered for the failure to adduce evidence at trial, or in some cases the absence of any explanation, can result in the exclusion of evidence that would otherwise be admissible on appeal.
[71] The respondent conceded that the evidence was relevant and reasonably capable of belief. The respondent argued that the appellant could have adduced the evidence at trial, and further, even if the expert evidence on bite marks had been led and believed, when taken with the other evidence adduced at trial, it would not have affected the result.
[72] I find that the evidence is relevant and credible, and otherwise admissible under the operative rules of evidence.
[73] In this case, the significance of the alleged bite relates to the central issue of whether or not there was consent. S.A. testified that the biting occurred in the course of her initial resistance to the conduct of the appellant. Accordingly, it was advanced as tangible evidence of her resistance and the corresponding absence of consent. Indeed, that is how the trial judge construed the evidence in that he appears to have used it as corroborative of S.A.’s version of events and, therefore, supportive of her credibility. In reaching that conclusion, he had to, of necessity, rely upon D.C. Hennick’s opinion that the injury was a bite mark, or at least an injury caused by the alleged bite.
[74] The fresh expert evidence proffered, on the other hand, completely contradicts the evidence at trial that the injury was caused by a human bite. Based on the trial judge’s reasons, it is apparent that conflicting expert evidence on the bite mark could have had an impact on the result. He found the complainant’s testimony credible, but that he also found the appellant’s testimony – standing on its own – credible. In his analysis, the trial judge, as is evident from his reasons, turned to other independent evidence to assist in resolving this conflict in favour of the complainant. The trial judge clearly relied on the injury as supporting S.A.’s credibility. Indeed, he twice referred to it prominently in drawing critical conclusions.
[75] Based on the evidence of the complainant, the expert concludes that the bite mark allegedly inflicted would have certain characteristics, including swelling and reddening, subcutaneous bruising, multiple teeth marks, and an opposing bite mark on the other side of the finger. Since these features were absent with respect to the injury of the appellant, in consideration of the expert evidence, the trial judge may have concluded that the appellant was not bitten, which at a minimum, would have left the trial judge without one significant piece of corroborating evidence for his finding in favour of the complainant. In the circumstances, in a trial that essentially came down to a credibility contest, it cannot be said that the fresh evidence of the expert could not have had an impact on the conclusion he reached.
[76] For these reasons, I find that in this particular case the fresh evidence is sufficiently cogent, in that it could reasonably be expected to have affected the verdict.
[77] I turn then to the last element of the test regarding fresh evidence applications. I accept trial counsel’s unchallenged explanation for why such expert evidence was not obtained to tender at trial. The question remains, however, whether that explanation should affect the admissibility of the evidence.
[78] In R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, at para. 51, the majority of the Supreme Court of Canada indicated that:
It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.
[79] The “due diligence” requirement serves an important purpose. As a matter of policy, there are sound and compelling reasons to ensure available evidence is advanced at trial so that fresh evidence applications do not become a routine part of every appeal. However, the importance of the due diligence issue will vary from case to case, and it should be evaluated in the totality of the circumstances of each case. The inability to satisfy the due diligence criterion must yield where its rigid application might lead to a miscarriage of justice: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520.
[80] I am satisfied that this is the situation in the present case. Here, the fresh evidence is sufficiently cogent that it could reasonably be expected to have affected the verdict, and thus calls into question the reliability of the verdict. Under these circumstances, I find that regardless of whether the explanation of trial counsel could be construed as a lack of due diligence, the evidence here is of sufficient importance so as to warrant its admission. Any other result could lead to a miscarriage of justice.
[81] While I have found the fresh expert evidence credible, in the sense that it is reasonably capable of belief for the purposes of the fresh evidence application, it is my view that the weight it ought to be given is ultimately a question for a trier of fact, after cross-examination and in the context of the other evidence that may be adduced at trial.
[82] Accordingly, I would grant the application to introduce the fresh evidence on this appeal. Further, in consideration of this fresh evidence, I would grant the appeal and order a new trial.
[83] I have found that the fresh evidence is reasonably capable of affecting the verdict under appeal. However, in my view, the reasons of the trial judge reveal errors of law that lead me to conclude that a new trial should be ordered, regardless of the fresh evidence.
“Bite Mark”
[84] I return to the evidence regarding the bite mark. The trial judge accepted the evidence of D.C. Hennick that the injury to the appellant’s finger was a bite or tooth mark. When reviewing the D.C.’s testimony, the trial judge stated that, “He testified that the cut appeared consistent with a tooth mark.” The trial judge then relied on this evidence as a basis for preferring the evidence of S.A. to that of the appellant. The issue of the admissibility of this evidence was raised for the first time on appeal.
[85] The respondent’s factum addressed the issue as follows:
The trial judge reasonably relied on the evidence relating to the injury to the Appellant’s finger. The evidence relating to the injury is not automatically deemed inadmissible simply because no expert evidence was called to confirm that the injury was in fact a bite mark. The complainant testified that she bit the Appellant. She admitted she could not be certain which finger she bit given that she did not see the Appellant’s finger at the time. Officer Hennick corroborated the complainant’s evidence insofar as he observed an injury to the Appellant’s finger. The Appellant could not offer any explanation for the injury to his finger. The trial judge did not misapprehend the evidence relating to the finger and was permitted to rely on such evidence and give it as much weight as he felt it deserved.
[86] One telling comment about the bite mark evidence is set out in the reasons of the trial judge, in response to the submissions of defence counsel. The trial judge stated:
The defence further submits that the bite mark on the complainant’s finger could be a bite mark, but could also be many other things. The defence submits that, had the accused been bitten on his hand as hard as alleged by the complainant, there should have been a bite mark on the other side of his finger.
That is unsupported speculation, in my view. [Emphasis added.]
[87] The only evidence that the trial judge had before him regarding the injury was the photographs and the evidence of D.C. Hennick. It was on this basis that he rejected the submissions of defence counsel as being “unsupported speculation”. He did not refer to his own views on the photograph, referencing instead the testimony of D.C. Hennick.
[88] The admissibility of the opinion that the injury to the appellant’s finger was consistent with a tooth or bite mark is governed by the opinion rule. It is a fundamental rule of evidence that opinions are generally inadmissible.
[89] In R. v. K. (A) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), at para. 71, this court reiterated the opinion rule as follows:
The opinion rule is a general rule of exclusion. Witnesses testify as to facts. As a general rule, they are not allowed to give any opinion about those facts. Opinion evidence is generally inadmissible. Opinion evidence is generally excluded because it is a fundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or her opinions on the issues in the case.
[90] There are exceptions to the opinion rule. The most common exception to the opinion rule is an opinion of a properly qualified expert: see R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. Another exception is when lay witnesses are permitted to express their opinion where they are “merely giving a compendious statement of facts” in the form of an opinion, as held in R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819.
[91] In Graat, the Supreme Court of Canada made reference to a number of common subjects about which lay witnesses can express admissible opinions, including: the identification of handwriting, persons and things; apparent age; the bodily plight or condition of a person, including death and illness; the emotional state of a person; intoxication; the condition of things, e.g. worn, shabby, used or new; certain questions of value; and estimates of speed and distance. The reasoning in essence is that these are not matters “where scientific, technical, or specialized testimony is necessary in order that the tribunal properly understands the relevant facts” (at p. 838).
[92] On the other hand, in Mohan the Supreme Court, in setting out the factors for the admissibility of expert evidence, said in relation to the necessity of expert evidence, at p. 23:
This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, [1982 25 (SCC), [1982] 2 S.C.R. 24]. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher (Village of) v. Smith, 1931 1 (SCC), [1931] S.C.R. 672, at p. 684, this Court, quoting from Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". More recently, in R. v. Lavallee, [1990 95 (SCC), [1990] 1 S.C.R. 852], the above passages from Kelliher and Abbey were applied to admit expert evidence as to the state of mind of a "battered" woman. The judgment stressed that this was an area that is not understood by the average person.
[93] Both of these cases set out the conditions under which opinion evidence could be admitted, rather than directing whether expert evidence is required. However, the broad principles, and examples, serve to provide guidelines as to when opinion evidence, if it is to be admitted, ought to be provided by an expert rather than a lay person.
[94] From past cases, it appears that evidence relating to bite marks has generally been elicited through experts: see R. v. Ho (1999), 1999 3823 (ON CA), 141 C.C.C. (3d) 270 (Ont. C.A); R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445; and R. v. Taillefer; R. v Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307. In a recent case where the bite mark evidence was apparently elicited through non-expert witnesses, that the underlying injury was a bite mark does not appear to have been in question: see R. v. French, 2009 ONCA 787.
[95] Here, D.C. Hennick’s testimony to the presence of an injury on the appellant’s hand was admissible. It was factual and based on his own observation. The cause of the injury, or what that injury may have appeared to be consistent with, required him to verge into speculation or, alternatively, into a field in which he admittedly had no special expertise or qualifications. In the circumstances, his opinion was not admissible and ought not to have been admitted into evidence.
[96] I am mindful that there was not an explicit objection to this evidence. However, as Dickson J. stated in Graat, at p. 823, “I do not think failure on the part of defence counsel to object to the admission of inadmissible evidence should, in the circumstances of this case, stand in the way of directing a new trial if such evidence is held to be inadmissible.”
Post-Incident Demeanour of the Complainant
[97] Another area where the trial judge fell into reversible error was in his treatment of the demeanour evidence. In this case there were three separate segments of evidence relating to the post-incident demeanour of the complainant: (1) immediately after the incident at her friend’s house; (2) later that day when giving a statement to the police, which began at the hospital and continued at the police station; and (3) two days later at her house when the appellant was escorted to the house by the police to obtain some of his personal belongings. I note that the trial counsel objected to the third segment of this evidence, prior to its introduction.
[98] With respect to demeanour evidence, the trial judge made reference to R. v Varcoe (2007), 2007 ONCA 194, 219 C.C.C. (3d) 397 (Ont. C.A.). Varcoe followed R. v. Boss (1988), 1988 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.), which, in turn, followed R. v. Murphy, 1976 198 (SCC), [1977] 2 S.C.R. 603. The trial judge relied on this line of cases in support of the proposition that evidence of the complainant’s demeanour is admissible in sexual assault cases. In R. v. Lindsay, 2005 24240 (Ont. S.C.), at para. 159, Fuerst J. summarized the relevant considerations underlying this proposition:
I agree that it can be dangerous to place weight on a witness’s demeanour when he or she testifies. It is well-established, however, that evidence of a complainant’s emotional state after an alleged offence may constitute circumstantial evidence confirming that the offence occurred, depending on the circumstances of the case, including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state. [Citations omitted.]
[99] I am not satisfied by the trial judge’s reasons that he adequately directed himself on this issue, in particular relating to the existence of alternative explanations for the emotional state of the complainant. Where there are alternative explanations, some inculpatory and some not, and the precise explanation is not identified, the demeanour evidence is ambiguous. Such evidence is not relevant and should not be admitted without a proper foundation being established for its admissibility. Ambiguous demeanour evidence can be highly prejudicial and is of no probative value.
[100] In my view, there are a multitude of possible reasons for the emotional state of S.A. arising out of the circumstances of the family dispute which are consistent with her behaviour on other occasions. In R. v. Morelli (2010), 2010 SCC 8, 316 D.L.R. (4th) 1 (S.C.C.), Fish J., writing for the majority of the Supreme Court of Canada, referred, at para. 91, to drawing an inference in such circumstances as “to speculate impermissibly.” The reasoning of the trial judge that the demeanour of the complainant supported her credibility, to the ultimate effect that the evidence of the appellant was rejected, failed to take these considerations into account. The effect of this was that he improperly admitted this circumstantial evidence which was not relevant, thus committing an error of law.
[101] The third element of demeanour evidence, to which defence counsel raised an objection at trial, highlights the point. Both police officers testified that they were with the complainant when the appellant was being escorted to the family home to retrieve his belongings. When this line of questioning was put to the first officer called to testify, defence counsel objected that this evidence had not previously been led through the complainant in her examination-in-chief. The trial judge overruled the objection.
[102] The substance of the evidence given by the police officers was that the complainant became very distressed and upset when she saw the appellant being escorted into their home. However, neither officer apparently asked the complainant about the reasons why she had become upset. The trial judge inferred, improperly in my view, that the emotional state was caused by the alleged sexual assault, without considering any other possible reason. His reliance on this demeanour evidence to support his credibility finding represents “circular reasoning”. As Doherty J.A. stated in R. v. Portillo (2003), 2003 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 37, in commenting on such circular reasoning, “on close analysis, that reasoning goes beyond inference to assumption and speculation.” The only way such an inference can be drawn, to the exclusion of other possibilities, is if it is assumed a priori that the offence has taken place. In the absence of the offence, there would be no foundation for the inference.
The Evidentiary Analysis
[103] The reasons for judgment of the trial judge paint two conflicting views of the evidence of the appellant. First, he states that:
The accused’s evidence was articulate, responsive to the questions asked, and generally unshaken in cross-examination. Taken in isolation, there was little in the substance of his evidence, or in the manner in which it was given, that suggested it was untrue.
However, the trial judge ultimately rejected the evidence of the accused as “not capable of belief”, based on weighing it against the evidence of the complainant, the demeanour evidence and the bite mark evidence, among other things.
[104] Although he purported to apply the W.(D.) analysis, in my view, the manner in which the trial judge conducted his analysis is more in keeping with the civil test of reaching a result on the preponderance of the evidence rather than determining whether the evidence established the guilt of the appellant beyond a reasonable doubt. It appears from the language he used that he found the testimony of the complainant and the appellant relatively credible, but that other evidence in the case favoured the complainant and not the appellant and therefore he found the evidence of the appellant “not capable of belief”.
[105] The difficulty with this construction is that it appears that the trial judge simply weighed the testimony of the complainant against the testimony of the appellant, then, having added factors to the complainant’s testimony, found they tilted the balance in her favour. Unfortunately, that construction does not include the second step in the W.(D.) analysis – whether, even if you do not believe the evidence of the accused, it raises a reasonable doubt. In neglecting to address this question, the trial judge fell into error.
Conclusion
[106] I would allow the fresh evidence application. For the foregoing reasons, I would allow the appeal, quash the conviction and order a new trial.
RELEASED: JUL 09 2010 (“S.T.G.”)
“Winkler C.J.O.”