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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.S.W., 2013 ONCA 593

DATE: 20130930

DOCKET: C56284

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S.W.

Appellant

Erika Chozik, for the appellant

Roger A. Pinnock, for the respondent

Heard: June 26, 2013

On appeal from the conviction entered by Justice Simon C. Armstrong of the Ontario Court of Justice on March 19, 2012.

Tulloch J.A.:

A. INTRODUCTION

[1] On March 19, 2012, the appellant was convicted of sexual assault and sexual interference, contrary to ss. 271(1) and 151 of the Criminal Code. Both counts relate to allegations made by the appellant’s daughter, C.B.

[2] The appellant appeals both convictions, alleging that the trial judge erred in law by:

(i) improperly assessing the appellant’s credibility;

(ii) failing to critically assess the complainant’s evidence by applying a different standard to the credibility of the complainant and the defence witnesses; and

(iii) misapprehending evidence bearing on the complainant’s credibility and the appellant’s testimony.

[3] For reasons that follow, I would allow the appeal on grounds (i) and (ii) and order a new trial.

B. THE EVIDENCE AT TRIAL

[4] There were three witnesses called at trial. The sole witness for the Crown was the appellant’s daughter, C.B.

[5] The witnesses for the defence were the appellant and C.B’s friend, G.B.

[6] On April 29, 2000, the appellant was convicted of sexual assault against another of his daughters, which occurred when she was fourteen years old.

[7] In the year 2000, the appellant ended his relationship with C.B.’s mother after a six or seven year relationship in which they had three children together, including C.B. There was irregular contact between the appellant and his children until 2005, at which time some of the children routinely stayed at the appellant’s apartment on weekends.

[8] C.B. continued to go to the appellant’s home for weekend visits until early 2010, although the charges relate to an incident that occurred in the year 2006.

The evidence for the Crown

The complainant’s evidence

[9] C. B. was sixteen years old at the time of trial.

[10] C.B. first recalled visiting the appellant when she was eight or nine years old. She and her brother stayed at the appellant’s apartment on alternate weekends. The apartment had one bedroom, and there were two couches in the living room. She either slept on the couch or on the bed, and she slept either alone, or with her brother or father.

[11] At some point when she was in Grade 5, C.B. stayed at the appellant’s apartment. C.B. was not sure what day or month she was there, but she recalled that her cousin also was there for the weekend. She went to sleep in the bedroom at around 9:00 or 10:00 at night. She woke up some time later to find that the appellant was moving his hand back and forth across her vagina. This event lasted about one minute, and was performed on top of her pajamas. She was not able to see the appellant in the darkness.

[12] In her statement to the police, C.B. stated that the appellant put his fingers into her vagina. At trial, she clarified that statement to mean that he put his fingers “in between”.

[13] According to C.B., she then got up and went to the washroom for a few minutes. She then went to the couch in the living room and listened to an iPod for a while. When the appellant came out of the bedroom, she realized that it must have been her father who had touched her because he was the one in the bedroom. The appellant then sat next to her on the couch, and rubbed the left side of her chest, over her pajamas, for about one minute until she moved away from him. She then watched television, and may have fallen asleep. She did not recall what her father did for the rest of the night.

[14] Counsel for the Crown asked C.B. if any other touching had occurred that night. C.B. denied that there had been any other touching. In cross-examination, C.B. stated that the appellant had licked her foot when she was in the bedroom. Her evidence was that she had not mentioned that event in her examination in chief because she did not consider licking to be touching, and that it was not significant enough to mention.

[15] In her statement to the police, C.B. stated that the appellant tried to speak to her about those events the next day, but at trial her testimony was that the appellant never spoke to her about them. C.B. did not mention these events to her mother or brother, even though she knew that the conduct was inappropriate and wrong. She did not tell her mother that she did not want to go back to the appellant’s apartment. Her evidence at trial was that nothing like the events of that night occurred either before or after the night in question. She continued to go to the appellant’s home every other weekend for the next three years, but stopped going to the appellant’s home because she found it to be boring there.

[16] Sometime in the years 2008-2009, when C.B. was in Grade 8, she called the Kids Help Phone Line and told the operator what had happened. She was informed as to numbers that she could call for help, but she did not follow up and make any calls.

[17] The next person that C.B. told about the incident was her friend, G.B. That conversation occurred sometime between February and June 2010. C.B. then spoke to her therapist, and then to the police in July 2010.

Evidence for the Defence

The appellant’s evidence

[18] The appellant denied that he committed any of the acts alleged by C.B.

[19] According to the appellant, he often had his son, his nephew and C.B. all attend at his home for weekend visits. The children often used the swimming pool, and the other apartment facilities such as the spa or sauna. At night, they watched television or played video games. He believed that C.B. wanted to stop coming to his home in the year 2010 because he did not have internet access, and she had nothing to do.

[20] The appellant testified that in the year 2010 he began to drink to excess. Prior to that, he did not drink when he had the children with him.

[21] On the day of his arrest, two police officers arrived at the appellant’s home. The officers told the appellant that C.B. had alleged that he fondled her at his apartment.

[22] The trial judge placed considerable emphasis on the statements that were then made by the accused to the police officers, so I will set them out in detail.

The appellant’s first statement to the police

[23] The appellant’s first statement to the police went as follows:

Det. Coleman: All right. All right. So do you know what this investigation is about?

J.W.: Well, you told me initially, but I’m not really sure what the allegations are.

Det. Coleman: Okay, so, um – uh, your daughter [C.B.]…

J.W.: Uh-huh.

Det. Coleman: …has come forward and said that you sexually assaulted her while you were living at the apartment in Richmond Hill.

J.W.: Uh-huh.

Det. Coleman: Um, and by that, I mean, um, fondle – you fondled her.

J.W.:Uh-huh.

Det. Coleman: Okay? Uh, did that ever happen?

J.W.: Um, I don’t think so.

Det. Coleman: Okay. You don’t think so or – or you …

J.W.: I don’t – I don’t believe so, no.

[24] According to the appellant, he did not know what the police officers were talking about. He tried to recall the five years that C.B. had been coming to his home on weekends in order to think if anything could have been construed by C.B. as a fondling, including when they played in the pool, and one time when he physically pulled C.B. off her brother when they were fighting.

[25] Also according to the appellant, he began to suffer blackouts in 2010 due to his overuse of alcohol. When he was initially confronted with the allegation of fondling, at an unspecified time during the five years that C.B. stayed at his apartment, he thought at first that he might have done something when he had a blackout. However, by the time of trial, and knowing that the alleged event related to the year 2006, he knew that he was not drinking when he was around the children, and he was not drinking excessively during that year.

The appellant’s second statement to the police

[26] The appellant’s second statement to the police was made during the same initial interview, but occurred closer to the end of the interview, when the following exchange occurred:

Det. Coleman: All right. Um, all right. Do you think this is something [C.B.] would make up?

J.W.: I’m not sure. I’m not – uh, I don’t know. I’m not – no, I’m not – I can’t say if – if she would make it up. I can’t say that.

Det. Coleman: Okay. All right. And you’re not – you’re not sure if it happened or not, is – is kinda the…

J.W.: Yeah.

Det. Coleman: …what I got…

J.W.: Yeah, I don’t…

Det. Coleman: …from…

J.W.: I don’t – I don’t believe it happened, no.

Det. Coleman: Okay. Could it have happened though?

J.W.: Well, they visited and stuff, I guess, so, I guess you could – you could – you could say, logically. Uh…

[27] According to the appellant, he was trying to show respect toward C.B. He did not want to say that she was lying without knowing the specifics of the allegation and what she might have perceived to constitute fondling.

[28] I note at this point that the appellant was not asked by the police if, in the year 2006, he rubbed C.B.’s chest and vagina and licked her foot at night when she was sleeping over at his apartment. Such a question could have elicited a firmer denial than was obtained by asking the appellant if, at some point in five years, he ever did anything that could be construed as fondling.

The Evidence of G.B.

[29] C.B. and G.B. were friends since Grade 7. They ended up in the same high school. According to G.B., a few days after the March break in the year 2010, C.B. told her that her father had touched her in a sexual manner. This conversation arose after a class at school when the topic of sexual assault and rape was discussed.

[30] G.B. testified that she was told by C.B. that C.B.’s father touched C.B. under her clothes more than once. She did not know how often it occurred, and it could have been only “maybe twice”. As a result, C.B. told G.B. that C.B. did not want to go to her father’s apartment anymore because she did not feel safe there.

[31] In her statement to the police, G.B. admitted that she had a bad memory, but she testified at trial that she was confident that her recollection of what she had been told by C.B. was accurate.

C. THE REASONS OF THE TRIAL JUDGE

[32] The trial judge identified credibility as the central issue in the case. He began by examining the evidence provided by the appellant. An examination of the reasons of the trial judge as a whole indicates that the main, if not the sole, reason the trial judge discounted the appellant’s own evidence was his responses to the questions initially posed by the police officers.

[33] With regard to the two statements made by the appellant to the police, the trial judge noted:

In my opinion, your responses in these two passages of your police statement are self-evidently bizarre; they are not the type of answers one would reasonably expect to be given. What I take from these two passages, sir, is that you were given several opportunities to deny the allegations of sexual assault, by fondling, that had been made against you, and you did not do so. Instead, you said you didn’t think or believe such conduct took place, that you were not sure if the fondling happened or not, and that because “C” visited you at your apartment, the fondling logically could have happened. For the reasons I have given, I found that your attempts to explain these answers in court were neither credible nor convincing.

[34] The trial judge then discounted the inconsistencies between the evidence of C.B. and her friend, G.B., because G.B. had an admittedly bad memory that could not have improved by the time of trial. When G.B. testified that she had been told by C.B. that the assaults might have occurred just twice, that could have meant twice in one night. The trial judge found that G.B. also might have mistakenly recalled C.B. as stating that the touching occurred under the clothes, and not on top of the clothes.

[35] The appellant’s evidence was not believed by the trial judge, nor was the trial judge left with reasonable doubt because of the appellant’s evidence. As a result, and in accordance with the analysis in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the trial judge went on to consider whether the Crown had proven the guilt of the appellant beyond a reasonable doubt.

[36] The trial judge found C.B. to be credible. She had a good memory of the events of the night in question and did not try to embellish her evidence. The trial judge did not find that there were unexplainable inconsistencies in her evidence. He accepted that C.B. neglected to initially mention in her evidence that the appellant had licked her foot because it was too minor to mention, and did not constitute touching. Also, he noted that although C.B. struggled to identify where in her vaginal area she had been touched by the appellant, there was no inconsistency in her evidence because her statement to the police that she had been touched inside her vagina could have meant over her clothes and slightly into her vagina.

[37] As a result, the trial judge was convinced beyond a reasonable doubt of the appellant’s guilt. He found the appellant to be guilty of both counts, and sentenced the appellant to 444 days of imprisonment followed by two years probation.

The appellant’s position

[38] The appellant maintains that there were several internal inconsistencies in the evidence of C.B. For example, she could not explain how the appellant could have licked her foot in bed if he was lying on the bed the way she had originally described. She testified that she never spoke to the appellant about the event, but she had told the police that he tried to talk to her about it. Her statement to the police that the appellant put his fingers “into” her vagina is much different from her testimony at trial of touching her “in between”.

[39] The appellant further states that there were inconsistencies between the evidence of C.B. and the other witness. For example, G.B. was confident that C.B. told her the touching was under her clothes, and that it occurred on more than one occasion. That is to be contrasted with the evidence of C.B. that it happened on one night, and over her clothes.

[40] Also, the appellant’s evidence was that the events did not occur at all on the one night in question or at any time during the five years that C.B. stayed at his apartment.

The respondent’s position

[41] The respondent states that the reasons of the trial judge were thoughtful, considered and were supported by the evidence. The findings of the trial judge with regard to issues of credibility should be accorded considerable deference.

D. ANALYSIS

[42] The first issue I wish to address is the trial judge’s assessment of the appellant’s credibility.

Issue 1: Did the trial judge err in law in his assessment of the appellant’s credibility?

[43] The appellant argues that it was wrong in law for the trial judge to reject the appellant’s evidence because the appellant was given several opportunities to deny the allegations, but failed to do so.

[44] The appellant further argues that it is notoriously difficult to judge how someone should react when confronted by the police with an allegation of a criminal charge. An accused’s demeanour in reaction to criminal allegations is of limited, if any, probative value because any inference arising from demeanour rests on an assumption of how a “normal” person would react to the allegations. In support of this proposition, the appellant relies on the decisions R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 150 O.A.C. 208 (C.A.), at paras. 24-28; and R. v. Baron and Wertman, (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173 (C.A.).

[45] Finally, the appellant argues that the trial judge misapprehended the evidence, leading to a miscarriage of justice. In that regard, the appellant states that a misapprehension of the evidence includes a mistake as to the substance of the evidence, failure to consider evidence relevant to a material issue, or a failure to give proper effect to that evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.).

[46] In this case, it was not the demeanour of the appellant that led the trial judge to reject the appellant’s evidence, rather it was the fact that the appellant failed to state unequivocally that he had not fondled his daughter when he was given the opportunity to do so. It was the opinion of the trial judge that an unequivocal denial was the response that would reasonably have been expected in the circumstances.

[47] In fact, the appellant told the police that he did not believe that he did anything that could be construed by C.B. as fondling. The appellant did not state that C.B. was lying, as he easily could have done. His failure to make an unequivocal denial without knowing the specifics of the allegation should not have been automatically construed as evidence that his testimony was incredible. Further, the appellant’s willingness to consider the possibility that he might have done something improper due to recent alcohol overuse and resulting blackouts should not have led automatically to a finding that his evidence was incredible.

[48] In my view, the trial judge erred in dismissing the appellant’s evidence because of the appellant’s two statements cited above, and the appellant’s explanations for those statements given at trial.

[49] The appellant was not told where, when, or how the appellant was alleged to have fondled the complainant. Had the appellant been told the specifics of the allegations, and had the appellant then told the police that he was not sure, or logically could have, rubbed the complainant’s chest and vagina and licked her foot when she stayed at her apartment in the year 2006, then clearly his evidence would be suspect and could have been discounted. However, he was not initially given that information. To completely discount the entire evidence of an accused because he did not immediately and unequivocally deny a vague allegation constitutes an error of law on the part of the trial judge: Levert, at paras. 27-28.

[50] The appellant twice denied to the police that he fondled his daughter. He may have been having difficulty reconciling what he was being told his daughter had said to the police with his belief that his daughter would not tell a lie.

[51] As a result, for this reason alone I would set aside the finding of guilt and order a new trial.

Issue 2: Did the trial judge fail to critically assess the complainant’s evidence by applying a different standard to the credibility of the complainant and the defence witnesses?

[52] The appellant argues that the trial judge was wrong to find that C.B. had a good memory, given the number of details of the event that she was unable to recall, such as whether she went to sleep after the alleged events. Further, the trial judge failed to properly consider the inconsistencies within her evidence, and the contradictions between her evidence and the evidence of the other witnesses.

[53] The appellant also argues that the trial judge applied a different standard of scrutiny to the complainant’s evidence and the evidence of the defence witnesses. The appellant states that the trial judge unconditionally accepted the complainant’s evidence despite the inconsistencies, then rejected the evidence of the two defence witnesses out of hand.

[54] The Crown argues that the trial judge pointed to the concerns raised by the appellant, and that the trial judge articulated his reasons for nevertheless accepting the evidence of CB. The Crown’s position is that those reasons were entitled to deference.

[55] A court should intervene to prevent a miscarriage of justice where the appellant can show that the trial judge applied different standards in assessing the credibility of the witnesses: R. v. J.H.(2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-65.

[56] It is an error of law to subject the evidence of the accused to a different and stricter level of scrutiny than that of the complainant. That error of law can lead to a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code: R. v. Minuskin (2003), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577 (C.A.).

[57] I am satisfied that once the trial judge discounted the appellant’s own evidence, based on a flawed assessment of the import of the appellant’s statements to the police, the trial judge then applied a different level of scrutiny to the complainant’s evidence as opposed to that of the defence witnesses. Important inconsistencies in the complainant’s evidence were dismissed, such as the fact that the complainant told the police she had been touched by the appellant under her clothes and inside her vagina, which statement was corroborated as having been reported to the complainant’s friend, but then was changed at trial to having been touched over her clothes and “in between”.

[58] The trial judge did not satisfactorily explain why he was not troubled that the complainant would fail to state that the appellant licked her foot that night, ostensibly because she considered it to be unimportant and did not constitute touching.

[59] I note that had the trial judge placed the same standard of reasonableness of the expected responses to the evidence of the complainant, then one might expect C.B. to volunteer the information that the appellant licked her foot when asked if he touched her. The trial judge accepted that the complainant did not consider licking to be touching based on a dictionary definition of touching. Clearly there was an issue as to what constituted touching, as there might be an issue as to what constitutes fondling. The complainant’s confusion was accepted, while the appellant’s confusion was discounted.

[60] As a result, I would also allow the appeal on the basis that different standards were applied by the trial judge when assessing the credibility of the witnesses.

Issue 3: Was the verdict unreasonable?

[61] A conviction may be set aside if it is one of the rare cases when the court’s assessment of credibility cannot be supported on any reasonable view of the evidence: R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at paras. 5-7, 33.

[62] The appellant argues that where the reasons of the trial judge demonstrate that he or she failed to grasp an important point, or has chosen to disregard it, leading to the conclusion that the verdict was not one which the trier of fact could reasonably have reached, the verdict is unreasonable: R. v. W.H., 2013 SCC 22, 359 D.L.R. (4th) 442 at paras. 26-29; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; and R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3.

[63] This ground of appeal does not succeed. The verdict in this case was one which the trial judge could reasonably have reached.

E. Conclusion

[64] I am convinced, for the reasons already stated, that the trial judge might not have reached the same verdict had he not completely discounted the appellant’s own evidence.

[65] As a result of the foregoing, I would allow the appeal and order a new trial.

Released: “JL” September 30, 2013

“M. Tulloch J.A.”

“I agree. J. Laskin J.A.”

I agree. G.R. Strathy J.A.”