WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. T.S., 2012 ONCA 289
DATE: 20120503
DOCKET: C49472
Laskin, Sharpe and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
T. S.
Appellant
James Lockyer and Zachary Kerbel, for the appellant
Elise Nakelsky, for the respondent
Heard: October 19, 2011
On appeal from the conviction entered by Justice G.F. Hearn of the Ontario Court of Justice on June 23, 2008.
Watt J.A.:
[1] In the fall of 2006, the marriage of the appellant and complainant disintegrated. First, in early October, the appellant moved out of their basement apartment. He returned to the main floor of the house where he rejoined the rest of his family. Then, in late January 2007, the complainant called police to report an incident involving the appellant that caused her to fear for her and her daughter’s safety. The complainant left the house occupied by the appellant and his family, and moved into a shelter with her daughter. Neither returned to the matrimonial home.
[2] The complainant accused the appellant of forcing her to participate in acts of oral, vaginal and anal intercourse against her will over two years of their five-year marriage.
[3] The appellant denied the allegations. Pure fiction, he said, motivated by the complainant’s desire to get sole custody of their two young children and return with them to her family in British Columbia.
[4] The trial judge heard both sides of the story. He rejected the appellant’s claim of fabrication. He found the complainant’s allegations proven beyond a reasonable doubt. He convicted the appellant of sexual assault.
[5] The appellant says that the trial judge’s reasons demonstrate errors in his analysis of the evidence adduced at trial. He asks us to admit fresh evidence of the complainant’s post-conviction conduct as well as evidence that was not disclosed by the Crown prior to trial.
[6] These reasons explain why I have concluded, on the basis of the fresh evidence introduced here, that this appeal should be allowed and another trial of the complainant’s allegations held.
THE BACKGROUND FACTS
[7] The grounds of appeal advanced render unnecessary any forced march through the specifics of the allegations made by the complainant. The chronology of events that unfolded warrants brief recapture.
The Early Years of the Marriage
[8] The arranged marriage of the complainant and the appellant took place in British Columbia on July 21, 2001. The complainant and her family resided in British Columbia at that time. The appellant and his family lived in Ontario.
[9] After their marriage, the couple moved to Kitchener where they lived with the appellant’s grandparents, parents and sibling. Both the appellant and the complainant worked outside of the home. In the beginning, the couple’s relationship and their living arrangements were satisfactory to both of them.
[10] In June, 2004 the complainant became pregnant with their first child.
The Deterioration of the Marriage
[11] Soon, the complainant began to notice her husband’s controlling nature. She found him jealous and insecure. He questioned her constantly about her activities, her whereabouts and her companions. At the same time, their living arrangements, sharing the main floor of the home with all the other occupants, began to unravel. In 2005, the couple moved into a separate living unit in the basement of the family home.
The First Pregnancy
[12] During her first pregnancy, the complainant was frequently nauseous, constantly tired and trying to cope with her changing body. According to the complainant, the appellant had a hard time adjusting to these changes, particularly, her lack of interest in sexual activity.
[13] During the complainant’s first pregnancy, the appellant continued to demand that she participate in oral, vaginal and anal intercourse. He reinforced his demands with threats, including mention of the Burnaby massacre, in which a husband and father killed his entire family. He also underscored his superior status as her husband, the one with “the penis in his pants”.
[14] According to the complainant, the appellant ignored her objections to sexual activity and repeatedly subjected her to unwanted oral, vaginal and anal intercourse. After the birth of their first child on March 30, 2005, the appellant forced her to participate in acts of anal intercourse because surgical stitches put in place after a Caesarean delivery made vaginal intercourse far too painful.
The Return from India and the Second Pregnancy
[15] The appellant travelled to India in February, 2006. He stayed there for three or four weeks and returned with typhoid fever. He wanted to have sexual intercourse with the complainant almost immediately. When the complainant said “no”, the appellant removed her clothing, held her down by getting on top of her and forced intercourse upon her. He told her that she had to prove to him that she had not been intimate with anyone in his absence.
[16] The appellant accused the complainant of giving him a sexually transmitted disease that carried typhoid into his body. This controlling and intimidating behaviour continued until the fall of 2006.
[17] In the fall of 2006, the complainant was about six or seven months pregnant. She attributed her pregnancy to one of the many instances of unwanted intercourse. The appellant did not want a second child. He wanted the complainant to have an abortion. The complainant refused.
The Separation
[18] On October 2, 2006, the complainant left the apartment to walk to a nearby store. When she returned home a few minutes later, she discovered that the appellant had moved his belongings out of the basement and moved back to the main floor with his family.
[19] The complainant continued to live in the basement with the couple’s first child until January 26, 2007.
The Ex Parte Order
[20] On January 10, 2007, a judge of the Superior Court of Justice made an order that prohibited the complainant from taking the couple’s daughter out of the Waterloo region. The order was granted on the ex parte application of the appellant.
The Events of January 26-27, 2007
[21] According to the complainant, the appellant arrived at the door to the basement unit at about 11:30 p.m. on January 26, 2007. He demanded to see his daughter who was sleeping at the time. The complainant refused to admit the appellant to the apartment. He yelled, swore, and shook the door with such force that she called the police.
[22] Police responded to the 911 call. With their help, the complainant and her daughter were escorted to a local hotel where they stayed the night. The following morning, the complainant called the police again. She expressed her fear that the appellant would find her and their daughter at the hotel and cause them harm.
The Meeting with P.C. Chapman
[23] P.C. Steve Chapman, a uniformed officer, responded to the call from the hotel and spoke with the complainant. He testified as a defence witness at trial. The complainant asked him questions about an existing court order preventing her from removing the couple’s daughter from the Waterloo region and seemed preoccupied with an upcoming custody hearing. She also made a series of allegations against her husband, the most serious being rape. The complainant appeared fearful and P.C. Chapman arranged for her and her daughter to be placed in a shelter.
The Family Law Motion of February 8, 2007
[24] On February 8, 2007, the complainant asked a judge to permit her to leave the Waterloo region with her daughter. She wished to travel to British Columbia to have her second child and recuperate with the support of members of her family. In the alternative, she sought to relocate with the child to Brampton where she had job opportunities and a support system. The judge permitted the complainant to leave the Waterloo region, but required her to obtain the appellant’s written consent if she wished to take their daughter with her. If consent was not obtained and the complainant wished to leave, the child would have to remain with the appellant.
The Police Statement of February 15, 2007
[25] One week after the family law motion was heard the complainant went to the police station and provided a videotaped statement to investigators alleging that she had been sexually abused by the appellant during their marriage. By pre-arrangement, the couple met later that day to exchange property. Two days later, the appellant was charged with sexual assault and released on a promise to appear.
The Appellant’s Version
[26] The appellant denied any non-consensual sexual contact with the complainant. During an interview with investigators, he denied having had anal intercourse with the complainant. Later, he said that they had tried anal intercourse once during the complainant’s pregnancy, but had discontinued when she complained of pain. He had no idea why she called the police, and later left with them, on January 26, 2007. He initiated divorce proceedings and sought custody of their daughter.
The Positions of the Parties at Trial
[27] At trial, Crown counsel (who was not counsel on the appeal) contended that the complainant was a truthful and credible witness. She provided an accurate description of a pattern of sexual abuse that began during her first pregnancy and included acts of forced oral, vaginal and anal intercourse. Crown counsel rejected any suggestion that the complainant had fabricated her allegations to obtain sole custody of the children and decamp to British Colombia depriving the appellant of any meaningful access.
[28] Crown counsel pointed out that the complainant never asked P.C. Chapman to override, or permit her to disobey, the ex parte order preventing her from leaving the Waterloo region with her daughter. The complainant had never wavered from the position that she wanted the children to have a relationship with, and to grow up knowing, their father, particularly as she herself grew up without one.
[29] Counsel for the appellant at trial (who was also not counsel on the appeal) submitted that the complainant, driven by her desire to get sole custody of the children and relocate to British Columbia, fabricated the allegations.
[30] Trial counsel argued that the timing of the complainant’s allegations established her motive. The allegations of January 26, 2007 were made about two weeks after the appellant had begun divorce proceedings and obtained the ex parte order preventing the complainant from taking their daughter out of the Waterloo region. The complainant tested the waters with Chapman about how to get around the order, and then began to allege increasingly serious misconduct by the appellant. When her motion of February 8, 2007 failed, she went to the police and falsely accused the appellant of the conduct that formed the basis of the prosecution. Her actions formed a neat, tidy, but prefabricated package.
the grounds of appeal
[31] Setting aside for the moment, the grounds of appeal based on the proposed fresh evidence, the appellant advances three complaints about the adequacy of the trial judge’s reasons and his findings of fact:
i. that the trial judge failed to consider the evidence of P.C. Chapman as supportive of the defence position that the complainant’s allegations were fabricated;
ii. that the trial judge’s finding that the appellant was a “controlling person” was unreasonable; and
iii. that the trial judge erred in rejecting the appellant’s evidence.
[32] Consideration of the grounds that depend on the admission of fresh evidence follows determination of the grounds advanced in connection with the trial judge’s findings of fact and the adequacy of his reasons for conviction.
The Grounds of Appeal Relating to the Reasons of the Trial Judge
Ground #1: Failure to Consider the Evidence of P.C. Chapman
[33] The appellant’s first complaint faults the trial judge for failing to consider those parts of P.C. Chapman’s testimony that supported the defence position that the complainant had fabricated the allegations of sexual assault.
The Background
[34] P.C. Chapman was called as a witness for the defence. Over the objection of the Crown (that his evidence was irrelevant and hearsay), the trial judge admitted his testimony, apparently as proof of a prior inconsistent statement by the complainant.
[35] P.C. Chapman testified that the complainant wanted permission to take her daughter outside the Waterloo region, even though a court order barred her from doing so. She was concerned for her well-being. Chapman explained to her that she had to abide by the court order and that he had no authority to permit her to disobey it.
[36] P.C. Chapman also recounted a series of allegations the complainant made against her husband, starting with verbal abuse, moving to emotional abuse and ultimately to an allegation of rape that resulted in her pregnancy. P.C. Chapman contacted the Major Case Branch of the police force when he heard the allegation of rape.
[37] P.C. Chapman couldn’t recall why he wrote in his notes that the complainant seemed “very preoccupied” about custody issues, although he did remember that she asked several questions about custody. The complainant told Chapman that she threatened the appellant that she would get him thrown in jail because “they always believe the woman”.
[38] In cross-examination, P.C. Chapman agreed that the complainant’s preoccupation was with an impending custody hearing that was scheduled for February 8, 2007.
The Reasons of the Trial Judge
[39] In his overview of the evidence adduced at trial and in his summary of the positions of the parties, the trial judge summarized the evidence of the complainant and P.C. Chapman about their discussion on January 27, 2007 and the defence position that the complainant had fabricated her allegations of sexual assault against the appellant to gain sole custody of their children.
[40] In a later part of his reasons, “The Analysis of the Law and Facts”, the trial judge described his findings about the discussion between the complainant and P.C. Chapman. He concluded:
I find that her conversation with Constable Chapman in the hotel the next day was as she described. The opinion of Constable Chapman with respect to Ms. [S.’s] preoccupation with custody is simply that, i.e. his opinion, but even Constable Chapman acknowledged and accepted there was emotional upset to the point where he made arrangements to have Ms. [S.] moved to a shelter where she remained for a further two months. Further, the cross-examination of Ms. [S.] in my view is not inconsistent with the evidence of Constable Chapman in that regard.
The Arguments on Appeal
[41] For the appellant, Mr. Lockyer submits that the trial judge discounted P.C. Chapman’s conclusion that the complainant was preoccupied with custody issues without critical analysis and without any explanation for its rejection. He failed to deal with this evidence completely. And, he failed to recognize that, properly evaluated, the evidence was supportive of the appellant’s position and testimony. Further, the trial judge failed to even mention the complainant’s comment “they always believe the woman”, let alone assess its impact on the strength of her evidence.
[42] For the respondent, Ms. Nakelsky says that the trial judge made no error in his evaluation of P.C. Chapman’s evidence.
[43] Ms. Nakelsky points out that trial counsel for the appellant adduced this evidence for a very limited purpose: to establish that the complainant had made a prior statement inconsistent with her trial testimony on the same subject matter. The trial judge expressly mentioned the evidence of P.C. Chapman, but, as he was entitled to do, rejected the defence position in support of which it was offered: that the complainant fabricated her evidence to gain sole custody of their children. The trial judge also assigned an appropriate place for the remark “they always believe the woman”.
The Governing Principles
[44] This ground of appeal involves a challenge to the adequacy of the trial judge’s reasons as they relate to the evidence of P.C. Chapman.
[45] Arguments of the kind advanced here require us to take a functional, substantive approach to the trial judge’s reasons, to read them as a whole, in the context of the evidence, arguments, and the live issues at trial, with an appreciation of the purposes or functions for which reasons are given. The reasons must establish a logical connection between the verdict and the basis upon which it was rendered: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16, 35 and 55. The objective of reasons is to show why the judge reached his or her conclusion. This purpose is fulfilled when the reasons, read in context, show why the judge decided as she or he did: R.E.M., at para. 17.
[46] A trial judge is under no obligation to record and recite his or her findings on each and every item of evidence adduced at trial: R.E.M., at para. 20. Where a case falls to be decided largely on determinations of credibility, we must consider the sufficiency of the reasons in the light of the deference afforded to trial judges on credibility findings. Only rarely will deficiencies in a trial judge’s credibility analysis warrant our intervention. That said, failure to sufficiently articulate how credibility concerns have been resolved may rise to the level of reversible error: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23. The real issue is whether the reasons are so deficient as to preclude meaningful appellate review: R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 35.
The Principles Applied
[47] I would not give effect to this ground of appeal. My reasons are several.
[48] First, the appellant’s complaint that the trial judge failed to consider P.C. Chapman’s evidence about the complainant’s preoccupation with custody, is betrayed by a review of the reasons.
[49] The trial judge considered and rejected P.C. Chapman’s evidence that the complainant was “very preoccupied” with custody issues when they spoke on January 27, 2007. He rejected this evidence because it was an opinion proffered by Chapman about what motivated another person, who was for all practical purposes an emotionally overwrought, complete stranger fleeing from her spouse and seeking refuge in a shelter with her daughter, to complain about various kinds of abuse. Indeed, it is open to question whether P.C. Chapman was even entitled to express his opinion on the subject.
[50] Second, the conclusion expressed by P.C. Chapman in examination-in-chief lacked an articulable foundation. He couldn’t say specifically what prompted him to conclude as he did, apart from several questions the complainant asked about custody. The questions related to a court hearing about custody to take place about ten days later. Chapman believed that the complainant needed assistance and drove her to a shelter for abused women.
[51] Third, the reasons of the trial judge not only provide a valid basis for his rejection of P.C. Chapman’s evidence, but also an adequate foundation for meaningful appellate review. The failure of the trial judge to refer to the complainant’s comment to Chapman, that she had told her husband “they always believe the woman”, affords no basis for us to interfere.
Ground #2: Unreasonable finding that the appellant was a “controlling person”
[52] The appellant contends that there was no evidentiary basis to support the trial judge’s finding that the appellant was a “controlling” individual. The finding was therefore unreasonable.
The Background
[53] The complainant testified at trial that the appellant was a very controlling, jealous and insecure person throughout most of their marriage. The appellant denied this characterization.
[54] The complainant explained that the appellant would accuse her of having an extra-marital affair if she returned home late after work or threw tissues in the garbage. When the appellant returned home from a trip to India, he forced the complainant to have sexual intercourse with him to “prove” that she had not been unfaithful in his absence.
The Reasons of the Trial Judge
[55] In his evidentiary overview, the trial judge referred to the complainant’s description of the appellant as “very controlling, very jealous and very insecure”, but made no definitive finding in this respect.
[56] Later in his reasons, the trial judge noted three concerns about the appellant’s evidence. Among the concerns was this:
(3) Mr. [S.] states that he moved upstairs on October the 2nd, 2006 and then obtained an ex parte order against the wife on January the 10th, 2007 with respect to his alleged concerns about her removing herself from the province. None of the material in support of that order is in front of the court but given the fact that Ms. [S.] was continuing to live in the basement with her one child, was seven months pregnant and quite readily available one can only wonder why she was not given notice with respect to that particular application. She had in fact lived in the basement since October the 2nd on all of the evidence on her own with the child. In any event, the obtaining of the order as well as the conduct during the course of the meeting after in the parking lot where a note was demanded are in my view consistent with the controlling nature of Mr. [S.] as testified to by Ms. [S.] in her evidence in-chief.
[57] Despite the concerns he identified about the appellant’s evidence, the trial judge was not prepared to reject the appellant’s testimony “viewed on its own”. The trial judge concluded:
Notwithstanding such concern about Mr. [S.’s] evidence the court, while not in a position to accept his evidence, would not be on its own in a position to reject it outright.
The Arguments on Appeal
[58] For the appellant, Mr. Lockyer acknowledges that, as the trier of fact, the trial judge was entitled to draw inferences from the evidence adduced at trial. But inferences are permissible only if they can be reasonably and logically drawn from the evidence adduced at trial. Inferences that do not follow reasonably and logically from the evidence adduced at trial are impermissible. They are not inferences at all, rather condemned as conjecture and speculation. That, Mr. Lockyer says, is what happened here.
[59] Mr. Lockyer submits that the two incidents identified by the trial judge, obtaining the ex parte order and requiring a receipt for surrendered property, considered alone or together, are incapable of sustaining the inference that the appellant was a controlling individual as the complainant claimed. The ex parte order was sought and obtained by counsel. It imposed an obligation on the moving party to make full, fair and frank disclosure of all material facts. And, it was granted by a judge. Similarly, the requirement of a receipt for surrendered property occurred in the context of family law litigation.
[60] For the respondent, Ms. Nakelsky says that, alone or in combination, both events were factors the trial judge was entitled to consider in assessing the credibility of the appellant and the reliability of his evidence. The trial judge considered neither event dispositive, only a factor in assessing the appellant’s evidence. Neither caused the trial judge to reject the appellant’s testimony.
The Governing Principles
[61] Two principles warrant brief mention.
[62] A trier of fact may draw inferences of fact from evidence adduced at trial. An inference is a deduction of fact that may be logically and reasonably drawn from another fact or group of facts established in the proceedings. Absent an objective evidentiary basis from which to infer the facts a party seeks to establish, no inference is available, only impermissible speculation and conjecture: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209.
[63] The obligation on applicants for ex parte orders is to make full, fair and frank disclosure of all material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46.
The Principles Applied
[64] Despite what I regard as a finding contaminated by legal error, I would not set aside the appellant’s conviction on this ground.
[65] The trial judge inferred that the appellant was a “controlling” person, as the complainant had described him, on the basis of two events that occurred after matrimonial litigation had begun between them. When both events occurred, the appellant was represented by counsel. Absent any evidence to the contrary, it is reasonable to infer that counsel decided to move ex parte for an order to prohibit the complainant from removing their daughter from the Waterloo region. Nothing in the evidence adduced at trial could support the inference that the order was granted on any basis other than full, fair and frank disclosure of all material facts. Likewise, it scarcely seems remarkable, that during litigation, one party would insist on a written acknowledgement of delivery of property to, or receipt of property by, another.
[66] Whether considered individually or together, the two findings crossed the boundary from permissible inference to impermissible speculation, and thus reflect legal error.
[67] But in the end, the error did not taint the trial judge’s conclusion that the appellant’s guilt had been proven beyond a reasonable doubt. The trial judge did not “reject” the appellant’s denials on this basis. He expressly found that his itemized “concerns” about the appellant’s testimony were “not sufficient to warrant a rejection of his evidence when it is viewed on its own”. His rejection of the appellant’s account was based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the complainant’s conflicting credible evidence. Such a course was open to the trial judge: D. (J.J.R.), at para. 53.
[68] This ground of appeal fails.
Ground #3: Unexplained Rejection of Appellant’s Testimony
[69] The final error upon which the appellant relies is the trial judge’s failure to adequately explain why he rejected the appellant’s testimony. This ground of appeal requires some reference to the trial judge’s reasons, but no repetition of the appellant’s sworn denials of the complainant’s allegations.
The Reasons of the Trial Judge
[70] The trial judge made it clear that, although he had several specific “concerns” about the appellant’s version of events, he was not prepared to reject it “on its own”. The trial judge found the appellant’s guilt was established on the basis of the overwhelming force of the complainant’s testimony.
The Arguments on Appeal
[71] For the appellant, Mr. Lockyer says that the trial judge provided no basis for his rejection of the appellant’s evidence, other than his acceptance of the testimony of the complainant. The trial judge did not properly evaluate the appellant’s testimony in the context of the evidence as a whole. He made no negative findings about the appellant’s demeanour or the manner in which he testified, nor did he describe the appellant as evasive or dishonest. His reasons are conclusory, not reasoned, and provide no basis for meaningful appellate review.
[72] Ms. Nakelsky, for the respondent, contends that the trial judge was entitled to reject the appellant’s denials on the basis of his considered acceptance of the complainant’s compelling version of events. He recited and applied the analysis described in W. (D.) and rejected the defence position that the complainant had fabricated her evidence to advance her case for sole custody in the family law proceedings.
[73] Ms. Nakelsky points out that the trial judge itemized several concerns about the appellant’s testimony, including the generality of his denials, the inconsistency in his responses about anal intercourse, the absence of any real explanation for the arrival of the police on January 26, 2007, and his asserted fear of the complainant’s flight from the jurisdiction when she was living in the basement of his parent’s home. The trial judge rejected the appellant’s version because of the compelling nature of the complainant’s evidence. It was a finding that was legally available and well documented in his reasons.
The Governing Principles
[74] The complaint here warrants brief reference to several principles.
[75] First, on a review of reasons for sufficiency, we start from a deferential stance towards the trial judge’s perceptions of the facts. He was there. We were not. He was in the best position to determine issues of fact, including, but not limited to, credibility. In the absence of evidence to the contrary, we must also presume that the trial judge knows the governing legal principles: R.E.M., at para. 54.
[76] Second, when a complaint is made about the adequacy of a trial judge’s reasons, we must determine whether those reasons, considered in the context of the evidence adduced at trial, the live issues that emerged at trial, and the submissions of counsel, deprived the appellant of meaningful appellate review: R.E.M., at para. 57; D. (J.J.R), at para. 35; and R. v. Gagon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 14.
[77] Third, any inquiry into the sufficiency of reasons must be directed at whether the reasons respond to the live issues in the case. The truthfulness of the principals was at the forefront of this case. What we must ask and determine is whether the trial judge’s reasons seized the substance of the critical issues at trial: Dinardo, at para. 31; and R.E.M., at para. 55.
[78] Fourth, as a matter of law, reasoned acceptance of a complainant’s evidence is a basis upon which a trial judge can reject the evidence of an accused and find guilt proven beyond a reasonable doubt. A reasoned and considered acceptance of the complainant’s evidence is as much an explanation for rejecting the contrary evidence of an accused as are problems inherent in an accused’s own testimony: D. (J.J.R.), at para. 54.
[79] Finally, where the alleged inadequacy or insufficiency has to do with findings on credibility, we must be mindful that such findings are notoriously difficult to articulate: Dinardo, at para. 23; and R.E.M., at paras. 50-51.
The Principles Applied
[80] This allegation of error does not carry the day for the appellant. At bottom, the reasons of the trial judge for rejecting the appellant’s denials permit meaningful review by this court.
[81] The trial judge approached his task mindful of the governing legal principles. His reasons do not betray his fidelity to, and unerring application of, those principles.
[82] The trial judge gave careful consideration to the appellant’s testimony. He considered first whether there were any problems inherent in the appellant’s evidence that warranted its rejection. He expressed several “concerns” about the appellant’s testimony, but was not prepared to reject it on those bases.
[83] In the end, the trial judge found the appellant’s guilt established on the basis of his considered and reasoned acceptance beyond a reasonable doubt of the complainant’s evidence. He was entitled to do so: D. (J.J.R.), at para. 53. He explained why he rejected the defence claim that the complainant had fabricated her evidence to gain sole custody of the children of the marriage.
[84] The reasons of the trial judge were responsive to the live issues in the case as raised by the parties and furnished an adequate explanation for the findings of fact he made. The trial judge was under no obligation to turn over every evidentiary leaf.
[85] This ground of appeal fails.
The fresh evidence grounds
[86] The principal basis upon which the appellant seeks a new trial depends upon the outcome of his application to introduce fresh evidence on the hearing of the appeal. The evidence proposed for admission comes from different sources: the appellant and his three sisters; the complainant; undisclosed police reports and notes; and the appellant’s counsel at trial.
[87] To facilitate discussion, the proposed fresh evidence may be collected under two headings:
• Post-conviction events
• Undisclosed evidence
The Post-Conviction Events
[88] On this appeal, the appellant seeks to adduce evidence of the complainant’s conduct after his conviction and sentencing. This evidence, which consists of the complainant’s allegations that the appellant sexually interfered with their older daughter and the complainant’s conduct in the ongoing family law proceedings, is offered to impeach her trial testimony and therefore the reliability of the verdict based on that testimony.
The Allegations of Sexual Interference
[89] On June 25, 2008, two days after the appellant’s conviction, the complainant contacted Family and Children’s Services to report her suspicions that the appellant had sexually interfered with their daughter, E.S. The allegations were based on observations made and reported to the complainant by staff at the child’s daycare who had observed blood in her diapers and inflammation or irritation of her vaginal area. A medical examination of E.S. revealed the symptoms were caused by constipation and labia fusion, a common and benign condition of children of similar age.
[90] Family and Children’s Services closed their file the same day the complainant made the report. The complainant did not contact the police about her allegations.
[91] About three and one-half months later, within a week of the appellant’s sentencing and two days before his application for release pending appeal, the complainant called the police to report different allegations about E.S. This time the allegations were that E.S. was making inappropriate references to her own genitalia, as well as to those of the appellant, when she saw various unrelated images in books.
[92] Police and Family and Children’s Services workers tried to interview E.S. shortly after receiving the complaint about E.S.’s conduct. Due to E.S.’s emotional state and developmental delays in her speech, the interviewers were unable to determine whether E.S. had been abused. Police investigators considered abuse “highly unlikely”. During this period, the complainant ignored emails from the appellant’s sisters, who sought to make arrangements for the appellant to have his court-ordered access with E.S.
[93] Family and Children’s Services telephoned the appellant to tell him about the allegations. He denied any impropriety but agreed with their suggestion about management of future visits.
The Family Law Proceedings
[94] About three weeks after the appellant had been sentenced and while he was on bail pending appeal, the complainant brought a motion in the family law proceedings for an order terminating the appellant’s access to both children, permitting her to take the children out of the Waterloo region for cultural events and family visits in Peel region and Toronto, and seeking the involvement of the Children’s Lawyer.
[95] In her supportive affidavit, the complainant expressed fear for the safety of herself and the children. She repeated her allegations of sexual interference (omitting reference to the refusal of the police or Family and Children’s Services to take proceedings) and claimed that the appellant had repeatedly breached court orders requiring her consent to take the children out of the Waterloo region.
[96] On December 8, 2008, a judge of the Superior Court of Justice dismissed the complainant’s application in its entirety and granted the appellant the equivalent access to his younger daughter. With the consent of the other parent, either party could remove either child from Waterloo region for trips and vacations. The complainant denied access to either child pending her motion for leave to appeal from the order of December 8, 2008. When leave to appeal was refused on December 24, 2008, regular access resumed.
[97] The Children’s Lawyer refused to become involved in the family law proceedings.
The Undisclosed Evidence
[98] Prior to the appeal being listed for hearing, Ms. Nakelsky disclosed police reports and related notes about two incidents in which police were called to the residence occupied by the complainant and the appellant. The complainant made both calls and gave evidence about both events at trial.
The “Kick”: July 14, 2005
[99] The complainant called the police on July 14, 2005. She complained that the appellant had kicked at her head, but had struck her arm because of her reaction to the anticipated blow.
[100] The newly disclosed material consists of the notes and reports prepared by P.C. Bairos and P.C. Nahrgang, the two officers who responded to the 911 call. Each concluded that there had been a verbal argument but no actual assault, only a “pretend” kick. No charges resulted.
[101] In his report, P.C. Bairos noted that the complainant only called police “so that if they do break up, there will be something on file for court orders to have custody of the child.” No similar note appears in P.C. Nahrgang’s notes or report.
[102] In her cross-examination, the complainant denied that she was thinking of custody of her daughter when she called 911. She said that she either didn’t make or couldn’t remember making the remark attributed to her by P.C. Bairos.
The “Door”: January 26, 2007
[103] Around 11:30 p.m. on January 26, 2007, P.C. Yeowell responded to the complainant’s 911 call. The complainant told the officer that she called police because she was afraid the appellant was going to knock down the door to her basement apartment. The complainant did not allege any assault or threat. She told the officer that she was leaving with her daughter to go to a hotel for the night, and would then move out permanently.
[104] P.C. Yeowell noted that the complainant was aware that she could not leave the city with her daughter or withhold the child. He added “custody battle beginning”.
[105] In cross-examination in this court, the complainant was equivocal about whether she had said anything about child custody to the police: “I don’t think so. I don’t know. If they say that I did, then I may have. I don’t know”.
The Evidence of Trial Counsel
[106] Trial counsel for the appellant filed an affidavit to be considered on the ground of appeal relating to failed disclosure. The trial Crown had provided him with a DVD and transcript of the police interview of the complainant. He did not ask for any further statements or reports about either incident, although both had been described in the complainant’s statement to police. He had no reason to think that the complainant would have told the responding officers anything different than what she said about the incidents at trial.
[107] Trial counsel, a practitioner of three decades experience largely as defence counsel in criminal cases, objected to the relevance and admissibility of evidence about the “kick” incident and chose not to cross-examine the complainant about it. He did cross-examine the complainant on the substance of P.C. Chapman’s notes.
The Arguments on Appeal
[108] For the appellant, Mr. Lockyer submits that the fresh evidence should be admitted and a new trial ordered on the basis that this evidence demonstrates the unreliability of the conviction and the unfairness of the trial proceedings that led to it. The proposed evidence is admissible, cogent and either could not have been obtained by the exercise of due diligence at trial or should not be rejected on this ground.
[109] Taking first the evidence about post-conviction events, Mr. Lockyer says this evidence relates to a potentially decisive issue at trial, the credibility of the complainant, in particular, the truth of her denial of the motive to fabricate. The evidence demonstrates a course of conduct, beginning as early as 2005, that calls into question her denial of a motive to fabricate, and thus the reliability of a conviction grounded substantially on the absence of such a motive. The fresh evidence has both impeachment and substantive value. It confirms the testimony of P.C. Chapman and is credible because it is put forward in affidavits filed in family law proceedings.
[110] Mr. Lockyer submits that the undisclosed evidence fell within the prosecutor’s disclosure obligations and impaired the appellant’s right to make full answer and defence by limiting the basis upon which he could challenge the complainant’s denial of a motive to fabricate her evidence. The undisclosed evidence also affected the overall fairness of the trial because it foreclosed lines of inquiry that should have been open to the appellant. The appellant, Mr. Lockyer says, has demonstrated that there is a reasonable possibility that the non-disclosure affected the outcome or the overall fairness of the trial, thus he is entitled to a new trial.
[111] For the respondent, Ms. Nakelsky submits that the proposed fresh evidence concerning subsequent events should not be received. It founders, she says, on the grounds of relevance and cogency. This evidence, she argues, does not bear on a decisive issue, is not reasonably capable of belief and could not, when taken with the rest of the evidence adduced at trial, have reasonably affected the result. In the end, the complainant maintained the position she adopted at trial and did not waver from her denial that she was fabricating her evidence in an attempt to get sole custody of the children.
[112] In connection with the undisclosed police reports and notes, Ms. Nakelsky acknowledges that the materials fall within the Crown’s Stinchcombe disclosure obligations, but denies that their non-disclosure impaired the appellant’s ability to make full answer and defence. Counsel for the appellant was aware of the nature of the allegations, their investigation by the police and the inevitability of police notes and reports about each incident. He underlined the references in the complainant’s statement, decided that one was irrelevant and chose not to seek further disclosure in connection with the other. The narrative aspects of the notes or reports are not properly admissible. But more importantly, none of the undisclosed material had any effect on the decision to convict or impaired trial fairness.
The Governing Principles
[113] Appellate courts have the broad discretion to receive further evidence on appeal when the court considers it in the interest of justice to do so. This statutory discretion involves a context-sensitive inquiry into all the circumstances of the case: Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 81; R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 44. In the exercise of this discretion, we are bound to take cognizance not only of the appellant’s interests in fully pursuing his appellate remedies, but also of the broader long-term interests of the administration of justice: Snyder, at para. 44.
[114] The exercise of our statutory discretion to receive further evidence on appeal requires an answer to three questions:
i. Is the proffered evidence admissible under the rules of evidence applicable to criminal trials? [the admissibility requirement]
ii. Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict? [the cogency requirement]
iii. What is the explanation offered for the failure to produce the evidence at trial and how should that explanation affect its admissibility on appeal? [the due diligence inquiry]
Snyder, at para. 45; Truscott, at para. 92. See also, R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.
[115] Evidence tendered for reception on appeal may impeach the reliability of a verdict reached at trial in different ways. It may cast doubt on a theory of liability advanced by the Crown, impeach the credibility of a crucial Crown witness or the reliability of his or her testimony, or diminish the confirmatory potential of evidence advanced as supportive of the testimony of a Vetrovec witness: R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, at paras. 17-19.
[116] The cogency requirement directs an appellate court to weigh, to some extent, the potential probative value of the proposed evidence. Of necessity this weighing must be contextual, taking into account the evidence adduced and the positions advanced at trial: R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 72; Truscott, at para. 100.
[117] The cogency criterion requires an appellate court to ask three questions:
• Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?
• Is the evidence credible in that it is reasonably capable of belief?
• Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?
Truscott, at para. 99.
[118] In the end, evidence proposed for admission on appeal targets the reliability of the verdict reached at trial.
[119] Sometimes, the fresh evidence takes aim at a finding of fact that was material to the ultimate finding of guilt. By producing evidence that the appellant argues would remove or render unreliable one of the factual underpinnings of the trial verdict, the reliability of that verdict is called into question: Truscott, at para. 82.
[120] At other times, the further evidence is not concerned with relitigation of factual findings made at trial. Instead, this evidence assails the fairness of the trial process itself - the process that produced the unfavourable findings. The verdict is unreliable because something that happened at trial, materially interfered with the appellant’s right to make full answer and defence. An unreliable verdict produced by a fatally flawed process causes a miscarriage of justice: Truscott, at para. 85.
[121] The admission of evidence on appeal of facts that were litigated at trial is exceptional: Snyder, at para. 44.
[122] Where the evidence proposed for admission on appeal has to do with information that was not disclosed prior to trial, an appellant must first establish that the undisclosed information meets the Stinchcombe threshold. Satisfaction of this burden establishes a breach of the appellant’s constitutional right to disclosure: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 31.
[123] Provided the undisclosed information satisfies the Stinchcombe threshold, the appellant must next establish that the failure to disclose impaired the appellant’s right to make full answer and defence. The standard of proof required is proof on a balance of probabilities: Dixon, at para. 33.
[124] Where an appellant seeks a new trial as a result of the impairment of his or her right to make full answer and defence because of a violation of his or her right to disclosure, he or she must persuade the appellate court of the reasonable possibility that the non-disclosure affected either the outcome or the overall fairness of the trial process: Dixon, at para. 35.
[125] To assess the reliability of the trial result, we must consider the impact the undisclosed information might have had on the decision to convict: Dixon, at para. 36. The issue is not whether the undisclosed information would have made a difference in the trial outcome, but rather whether it could have made a difference: R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at para. 25. To be more specific, we must decide whether there is a reasonable possibility that the undisclosed evidence could have created a reasonable doubt in the mind of the trier of fact: Illes, at para. 25; R. v. Taillefer, 2003 SCC 70, 2003 S.C.C. 70, [2003] 3 S.C.R. 307, at para. 82.
[126] To assess the impact of the undisclosed evidence on the overall fairness of the trial, we must assess whether the appellant has shown a reasonable possibility that the overall fairness of the trial was impaired by the failure to disclose. This inquiry examines not only the content of the undisclosed information, but also the realistic opportunities to use the undisclosed information for purposes of investigation or gathering other evidence: Dixon, at para. 36. A relevant consideration is the diligence of trial counsel’s pursuit: Dixon, at paras. 37 and 38; and R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501, at pp. 502-503.
[127] Also worth mention in the circumstances of this case is our obligation not to examine the undisclosed information, item by item, to assess its probative value, but rather to reconstruct the overall evidentiary tableau that would have been presented to the trier of fact had it not been for the trial Crown’s failure to disclose the relevant evidence: Taillefer, at para. 82; Illes, at para. 26.
[128] An appellant can discharge the burden of establishing a reasonable possibility that a failure to disclose impaired the overall fairness of the trial process by showing that the undisclosed evidence could have been used to impeach the credibility of a witness for the Crown, or could have helped the defence in its pre-trial investigations and preparations, or in its tactical decisions made at trial: Taillefer, at para. 84.; Illes, at para. 27; and R. v. Skinner, 1998 CanLII 809 (SCC), [1998] 1 S.C.R. 298, at para. 12.
The Principles Applied
[129] For reasons that I will develop, I would admit the fresh evidence and order a new trial on the information.
[130] In this case, the evidence proposed for admission attacks the reliability of the guilty verdict rendered at trial and the fairness of the trial proceedings that resulted in that verdict.
[131] The overarching principle that controls the admission of all evidence offered on appeal is the “interests of justice” in s. 683(1) of the Criminal Code: Truscott, at para. 81. Our obligation in this, as in every case, is a context-sensitive inquiry into the totality of the circumstances of the case. Our discretion to admit the evidence is informed by the criteria adumbrated in Palmer: admissibility, cogency and due diligence. We cannot receive evidence that is not admissible under the usual rules of evidence that apply in criminal cases, nor evidence that is not sufficiently cogent to potentially affect the verdict: Truscott, at para. 93.
[132] The principal purpose for which the proposed evidence is offered is its impeachment value, and not any substantive use. It is offered to impeach the credibility of the witness on whose testimony the appellant’s conviction is grounded - a legitimate purpose for fresh evidence: Hurley, at para. 18.
[133] The complainant portrayed herself at trial as someone who continued to love her husband and wanted him to remain a vital part of their children’s lives. She denied fabricating her allegations in order to obtain sole custody of the children and leave the Waterloo region to return to British Columbia. Among other things, the trial judge found that the complainant had no motive to make up her claims of unwanted sexual intercourse.
[134] The evidence of the post-conviction conduct of the complainant includes steps taken and allegations made by the complainant immediately after the appellant’s conviction and sentence that amounted to allegations of sexual interference with the couple’s daughter, E.S. She invoked the assistance of Family and Children’s Services and of the police. Nothing substantiated her claims. Neither agency pursued them. The allegations surfaced contemporaneously with the complainant’s attempts in family law proceedings to get sole custody of, and terminate the appellant’s access to, the children.
[135] The undisclosed evidence included police notes and occurrence reports about an alleged incident in 2005 as well as that of January 26, 2007. The nature of the earlier complaint differed from the complainant’s trial account of the incident. More significantly, however, the complainant explained her motive for calling police: in the event of a marital breakup, “there will be something on file for court orders to have custody of the child.” To some extent the undisclosed notes about the incident on January 26, 2007 reveal a different account of the evening’s events and the complainant’s inquiries about custody and removal.
[136] In the end, I am satisfied that the proposed evidence is relevant and reasonably capable of belief to the extent required for impeachment purposes. The trial judge faced a difficult task. He did not reject the appellant’s denials out of hand, rather found guilt established because of the nature and extent of his belief of the complainant. An important component of that belief was the trial judge’s conclusion that the complainant had no motive or interest in fabricating her allegations. The further evidence, including the undisclosed evidence, raises a reasonable possibility of a contrary conclusion had this evidence been available for impeachment use at trial.
CONCLUSION
[137] For these reasons, I would allow the appeal, set aside the conviction, and order a new trial.
Released: May 3, 2012 “JL” “David Watt J.A.”
“I agree John Laskin J.A.”
“I agree Robert J. Sharpe J.A.”