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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Phan, 2013 ONCA 787
DATE: 20131224
DOCKET: C55011
Rouleau, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Sovann Phan
Appellant
Michael Davies, for the appellant
Roger Shallow, for the respondent
Heard: June 13, 2013
On appeal from the conviction entered on May 27, 2011 by Justice Roydon Joseph Kealey of the Superior Court of Justice, sitting without a jury.
Epstein J.A.:
[1] The appellant, Sovann Phan, was convicted of one count of sexual assault after a judge-alone trial. Mr. Phan was charged after being observed touching the breasts of Ms. D.A.R., an 18 year-old severely disabled resident in a long-term care facility where Mr. Phan worked as a cleaner.
[2] In this conviction appeal, counsel for Mr. Phan advances two arguments, both relating to the key factor in the case – the credibility of Mr. Phan and that of Amina Ege, a co-worker who observed the alleged assault. He submits that the trial judge erred in his articulation and application of the test in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. He also argues that the trial judge subjected the evidence of the two central witnesses, Mr. Phan and Ms. Ege, to an uneven level of scrutiny.
[3] For the reasons that follow, I would dismiss the appeal.
THE EVIDENCE AT TRIAL
[4] The issue in this case was whether the Crown proved beyond a reasonable doubt that Mr. Phan did, in fact, touch Ms. D.A.R.’s breasts.
[5] Ms. Ege, the only witness to the incident, had been working at the facility as a personal care worker for about 13 years. She described Ms. D.A.R. as a young woman who suffers from severe developmental delays as well as problems due to seizures. Ms. D.A.R. is unable to take care of herself. She is unable to talk. Ms. D.A.R. had been a resident of the facility for about six months when the incident giving rise to the prosecution took place.
[6] On June 13, 2009, Ms. Ege observed Mr. Phan cleaning in the area outside Ms. D.A.R.’s room, for no apparent reason. Ms. Ege was already suspicious of Mr. Phan because she had seen him entering Ms. D.A.R.’s room with unusual frequency, often after glancing furtively around him. Mr. Phan’s activity outside Ms. D.A.R.’s room on June 13 concerned her. As a result, Ms. Ege secretly went into Ms. D.A.R.’s room and hid in a closet, leaving the closet door open sufficiently so she could see the bed where Ms. D.A.R. was lying down, flat on her back, with her hands behind her head.
[7] Ms. Ege testified that a few minutes later, Mr. Phan came into the room, empty-handed. He went to Ms. D.A.R.’s bed, put his hands under her shirt and massaged her breasts for about five seconds. He then left the room. Ms. Ege immediately reported what she had seen.
[8] In his testimony at trial Mr. Phan denied any touching of a sexual nature. He said that he had been replacing toilet paper and paper towels and noticed that Ms. D.A.R.’s shirt was up around her chest, leaving her abdomen bare. He first looked for a nurse to tend to Ms. D.A.R.’s need to be covered. Unable to find one, he went back to her room and pulled her shirt down for her. He then drew Ms. D.A.R.’s sheet up to cover her.
[9] Mr. Phan was suspended as a result of the reported assault. He testified that his union had asked him to write a letter describing the events so that a union representative could advocate for him. In the letter, Mr. Phan stated that when he decided to pull Ms. D.A.R.’s shirt down, he “felt uncertain and asked [himself] whether [his] help was right or wrong”.
[10] Others who worked at the residence also testified at trial. Kelly Cloutier, the administrator of the facility, said that cleaning staff such as Mr. Phan are not permitted to care for residents. That responsibility is left exclusively to healthcare aids and nurses. Another healthcare aid at the facility gave evidence that on one occasion, she saw Mr. Phan pushing Ms. D.A.R. in a wheelchair and that she told Mr. Phan that he was not permitted to do so.
THE JUDGMENT BELOW
[11] The trial judge acknowledged that the case turned on an assessment of the testimony of Mr. Phan and Ms. Ege. He then set out the principles that would inform this assessment, the principles in W. (D.), which he expressed as follows:
Therefore analyzing the core evidence together with the whole of the testimony, if I believe Mr. Phan or have a reasonable doubt because I do not know whether to believe him or not, then I must acquit. In other words, if after a careful analysis of all the evidence I am unable to decide whom to believe, an acquittal is the proper result. However, even if I am not so inclined, then I must consider whether the evidence I accept is sufficiently persuasive and convincing to satisfy me, beyond a reasonable doubt, as to Mr. Phan’s guilt.
[12] The trial judge proceeded with a detailed review of various problematic aspects of Mr. Phan’s testimony such as his evidence that he could not locate a nurse to help cover Ms. D.A.R.; his reliance on his purported difficulties with the English language; his claim that he was unaware that he was not permitted to touch Ms. D.A.R.; his overly detailed evidence about precisely how he rolled down Ms. D.A.R.’s shirt; and his description of Ms. D.A.R.’s shirt.
[13] The trial judge summarized his reaction to Mr. Phan’s evidence as follows:
In general, I found Mr. Phan evasive, unresponsive and vague in many areas of his testimony, especially those which focussed on his actions in room 349 with [Ms. D.A.R.] at the time in question. For all of the aforesaid reasons, I cannot accept Mr. Phan’s version of what happened between he and [Ms. D.A.R.] in room 349 and the afternoon of June the 13th, nor do I have a reasonable doubt that what he says may be true. And as such I am left to consider whether the balance of the evidence satisfies the onus which the Crown must meet.
[14] The trial judge then listed and analyzed each aspect of Ms. Ege’s testimony that, according to Mr. Phan’s counsel, rendered it unreliable and incredible. These issues included, among others, inconsistencies about what closet Ms. Ege hid in, whether Mr. Phan put his hands through or over Ms. D.A.R.’s bedrails, and the extent to which Ms. Ege could observe Ms. D.A.R.’s bed from her hiding spot.
[15] Following his review of these concerns, the trial judge noted various positive aspects of Ms. Ege’s testimony. She was an independent witness. She gave her evidence in a clear and forthright manner. She acknowledged the errors in her evidence but was unshaken on cross-examination on the essence of what she observed on the day in question.
[16] The trial judge concluded his assessment of Ms. Ege’s evidence by saying:
In my view, she withstood a lengthy and detailed cross-examination in which she acknowledged errors on some details, but she remains sure and unshaken on the essence of what she saw; Mr. Phan’s two hands placed under [Ms. D.A.R.’s] clothing on her breasts and moved in a circular motion or massaging manner for four to five seconds.
[17] The trial judge then found that he was satisfied beyond a reasonable doubt that what happened in Ms. D.A.R.’s room on June 13, 2009, was as Ms. Ege described it. He therefore found Mr. Phan guilty of sexual assault and sentenced him to eight months in jail plus two years’ probation.
THE GROUNDS OF APPEAL
[18] The issues Mr. Phan raises on appeal centre on the manner in which the trial judge dealt with the evidence and the credibility of Mr. Phan and Ms. Ege. He advances two arguments:
The trial judge erred in his articulation and application of the second step in the W. (D.) analysis, and
The trial judge erred by subjecting the evidence of Mr. Phan and Ms. Ege to unequal scrutiny.
ANALYSIS
(1) Did the trial judge err in his W. (D.) analysis?
The Legal Principles
[19] In cases like this, involving conflicting assertions and denials of conduct, the trial judge’s reasons must demonstrate an understanding of the relationship between reasonable doubt and credibility and the application of this understanding to his or her analysis: W. (D.) at p. 758; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 7, 9; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 46; and R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13.
[20] The W. (D.) test sets out the relationship between credibility and reasonable doubt as follows, at p. 758:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[21] The essence of the test is that the prosecution carries the burden of proof – a burden that requires proof beyond a reasonable doubt of each essential element of the offence. Of particular significance to this case, the prosecution has not met its burden just because the accused’s explanation is not believed: J.H.S., at para. 13.
Application of the W. (D.) Principles
[22] Counsel for Mr. Phan submits that the trial judge’s W. (D.) analysis is flawed in both the articulation of the test and in its application. First, he argues that the trial judge incorrectly equated the second step of W. (D.) with being unable to decide whom to believe. Specifically, counsel points to the trial judge’s explanation of the test, in which he said, “[i]n other words, if after a careful analysis of all the evidence I am unable to decide whom to believe, an acquittal is the proper result.” Mr. Phan points out that the second branch of W. (D.), intended to leave room for the possibility that the accused’s evidence could have raised a reasonable doubt even if it was rejected, was not captured in the trial judge’s expression of the test.
[23] Second, counsel for Mr. Phan submits that this error is reflected in the trial judge’s misapplication of the test. Under the second branch of W. (D.), the trial judge was required to examine whether, despite having rejected Mr. Phan’s testimony, his evidence nonetheless raised a reasonable doubt about his guilt. The argument is that the trial judge, by considering whether he had a “reasonable doubt that what [Mr. Phan] says may be true,” held Mr. Phan to a higher standard. This standard required Mr. Phan to convince the trial judge that there was at least a possibility that his evidence was truthful as opposed to merely raising a reasonable doubt about his guilt.
[24] I agree with Mr. Phan that the trial judge’s articulation of the second part of the W. (D.) test is inaccurate. However, as has often been stated, the import of the W. (D.) analysis does not lie in the expression of the formula but in the application of its principles: R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, at p. 533. The critical question is whether the reasons, viewed as a whole, demonstrate the trial judge’s grasp of the substance of the relationship between reasonable doubt and the assessment of credibility: R.E.M., at para. 46.
[25] In my view, despite the trial judge’s inaccurate paraphrasing of the test, the reasons demonstrate that he properly applied the second step in W. (D.). The trial judge examined whether, despite having rejected Mr. Phan’s testimony, his evidence nonetheless raised a reasonable doubt about his guilt. The only exculpatory evidence was Mr. Phan’s innocent explanation for touching Ms. D.A.R. Apart from this explanation, there was nothing in Mr. Phan’s evidence that could have raised a reasonable doubt about his guilt. The trial judge’s statement is merely a reflection of this reality: if there was no chance that Mr. Phan’s explanation was true, his evidence was not capable of raising a reasonable doubt. I therefore interpret the trial judgment’s statement that he did not have a “reasonable doubt that what [Mr. Phan] says may be true” as correctly capturing the essence of the second branch of W. (D.) in the context of this case.
[26] After rejecting Mr. Phan’s evidence and finding he was not left in reasonable doubt by it, the trial judge considered, as he was required to, whether he was convinced beyond a reasonable doubt of Mr. Phan’s guilt on the basis of the evidence he did accept.
[27] I find nothing in the reasons that suggests that the trial judge erred by shifting the burden to Mr. Phan or holding him to a higher standard of proof. Read as a whole, the trial judge’s reasons do not indicate that he was engaging in a credibility contest between Mr. Phan and Ms. Ege.
[28] I would therefore not give effect to this ground of appeal.
(2) Did the trial judge err by applying an uneven level of scrutiny?
The Legal Principles
[29] Counsel for Mr. Phan submits that the trial judge applied an unforgiving level of scrutiny to Mr. Phan’s testimony but brushed aside as inconsequential the many serious difficulties apparent in Ms. Ege’s testimony.
[30] Subjecting the evidence of the defence to a higher or stricter level of scrutiny than the evidence of the Crown is an error of law: R. v. Owen (2001), 2001 3367 (ON CA), 150 O.A.C. 378 (C.A.), at para. 3; R. v. Minuskin (2003), 2003 11604 (ON CA), 68 O.R. (3d) 577 (C.A.), at paras. 18, 33; and R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 62.
[31] In the event of such an error, the deference normally owed to the trial judge’s credibility assessment is generally displaced. This court, in Owen, expressed this in the following passage, at para. 3:
While an appellate court must defer to a trial judge’s assessment of credibility, intervention is appropriate where a trial judge’s reasons reflect legal error in the method used to assess credibility. In particular, this court has held that the application of a stricter standard of scrutiny to the evidence of an accused than that used to assess the evidence of Crown witnesses amounts to legal error justifying appellate intervention.
[32] In R. v. Howe, (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (C.A.), Doherty J.A. set out the definitive and oft-quoted standard to be surmounted by an appellant who argues that the trial judge applied a higher standard of scrutiny to the defence evidence than to the Crown evidence. He stated as follows, at paras. 58-59:
Counsel … contends that the trial judge applied a higher standard of scrutiny in his assessment of the appellant's evidence and credibility than he did when considering the evidence and credibility of [the complainant].
This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [Emphasis added.]
[33] In the recent decision in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39, this court reinforced the difficulty of meeting this standard:
The “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations.
[34] Therefore, for Mr. Phan to succeed on this ground of appeal, he must be able to identify something clear in the trial judge’s reasons or in the record indicating that a different standard of scrutiny was applied – something sufficiently significant that the heavy door of deference is opened to the domain of the trial judge, where credibility is assessed.
[35] The question is whether that rigorous test has been met here.
Application of the Uneven Scrutiny Principles
(a) The trial judge’s assessment of Mr. Phan’s evidence and credibility
[36] The trial judge set out various aspects of Mr. Phan’s evidence that he found troubling.
(i) Mr. Phan testified that he looked for a nurse to roll down Ms. D.A.R.’s shirt but was unable to find one
[37] Mr. Phan explained his actions by stating that there were no nurses available to attend to Ms. D.A.R. However, the nurse’s station was only 40 feet away and the evidence showed that there would have been several nurses at the station at the time of the incident. Furthermore, in the letter Mr. Phan wrote to his union in an attempt to save his job, he did not mention that he had looked for a nurse before going to Ms. D.A.R.’s assistance. The trial judge expressed concern that if Mr. Phan had actually looked for a nurse, one would think that he would have mentioned this in his letter.
[38] In my view it was reasonable for the trial judge to express doubt about the veracity of Mr. Phan’s justification for his actions, in the light of the evidence that undermined his testimony on this point.
(ii) Mr. Phan exaggerated his difficulties with the English language
[39] Mr. Phan’s facility in English became relevant because he used it to attempt to resile from his acknowledgement in the letter that he knew it may be wrong to touch Ms. D.A.R. At trial, he was cross-examined on the portion of his letter in which he stated, “[t]hen I felt uncertain and asked myself if my help was right or wrong.” Mr. Phan testified that this statement should not be attributed to him. He claimed that a friend had written the letter for him due to his difficulty with English.
[40] However, there was evidence that undermined Mr. Phan’s attempt to distance himself from the statement in the letter, including uncontradicted testimony that at work Mr. Phan had, on several occasions, acted as an English/Cambodian translator. It was therefore open to the trial judge to view Mr. Phan’s attempt to feign difficulty with English as adversely affecting his credibility.
(iii) Mr. Phan’s claim that he was unaware that he was not allowed to touch Ms. D.A.R.
[41] Mr. Phan testified that he did not realize that he was not permitted to touch Ms. D.A.R. However, both Ms. Ege and the administrator of the facility testified that as a matter of policy, housekeeping staff were instructed not to touch patients. A third Crown witness testified that on one occasion, after Mr. Phan was seen pushing Ms. D.A.R. in her wheelchair, he was told that he was not permitted to do so. Furthermore, although Mr. Phan denied ever being told not to touch or assist patients, he admitted during cross-examination that he knew it would be wrong to touch Ms. D.A.R.
[42] Mr. Phan’s claim that he was unaware that his actions were wrong was not borne out by the evidence, and the trial judge cannot be faulted for considering this when assessing the veracity of Mr. Phan’s version of events.
(iv) Mr. Phan’s description of how he pulled down Ms. D.A.R.’s shirt was “rather exaggerated in detail” compared to the simplicity of the task
[43] In describing how he pulled down Ms. D.A.R.’s shirt, Mr. Phan gave considerable detail about how tightly her shirt was rolled, how he moved his hands to unroll her shirt and his efforts to avoid touching her in the process. In my view, the trial judge was entitled to view this evidence with suspicion for the reason he expressed - the overly detailed description of a relatively simple task.
(v) Mr. Phan’s description of Ms. D.A.R.’s clothing was inconsistent with the evidence of the other witnesses
[44] Mr. Phan stated that Ms. D.A.R.’s shirt was red, whereas the other witnesses testified that it was dark blue or black. Mr. Phan also stated that she was wearing only one shirt, while the other witnesses indicated that she was wearing two shirts. Mr. Phan suggests that these are rather benign inconsistencies: he merely overlooked a few insignificant details.
[45] However, in my view, this evidence supports the trial judge’s adverse credibility finding. Mr. Phan’s description of how he rolled down Ms. D.A.R.’s shirt and his efforts not to touch Ms. D.A.R. in the process were highly descriptive. His inability to remember the number or colour of the shirts that were the focus of this description casts doubt on his purported ability to remember such a high degree of detail about the interaction. It was reasonable for the trial judge to rely on this inconsistency in concluding that Mr. Phan’s version of events was not true.
(vi) His demeanour was evasive, unresponsive and vague
[46] The trial judge was in the best position to observe Mr. Phan’s demeanour. The record shows that there were certain points, particularly when Mr. Phan was questioned about the letter, when he was evasive and unresponsive. The trial judge was entitled to make this assessment and consider it in coming to his conclusion that Mr. Phan’s description of what took place must be rejected.
[47] Taking all of these factors into consideration, not in isolation but collectively, it was certainly open to the trial judge to reject Mr. Phan’s version of events.
[48] However, the issue in terms of this ground of appeal is whether the trial judge applied a higher standard of scrutiny in his assessment of Mr. Phan’s evidence and credibility than he did when considering the evidence and credibility of Ms. Ege.
[49] This takes me to the trial judge’s treatment of the various problematic aspects of Ms. Ege’s evidence upon which Mr. Phan relies.
(b) The trial judge’s assessment of Ms. Ege’s testimony
[50] When reviewing Ms. Ege’s evidence, the trial judge was required to deal with a number of inconsistencies and inaccuracies.
(i) Ms. Ege made inconsistent statements as to which of the two closets she was in
[51] Immediately after witnessing the alleged assault, Ms. Ege told the administrator of the facility that she had hidden in Ms. D.A.R.’s roommate’s closet; however, in all of her subsequent statements, she said she was in Ms. D.A.R.’s closet. The trial judge concluded that Ms. Ege’s initial statement is explained by the fact that she was in shock at the time she gave it. Significantly, in her statements to the police and in court, Ms. Ege was clear and consistent – she hid in Ms. D.A.R.’s closet.
[52] I find no error in the way in which the trial judge dealt with this inconsistency. The evidence clearly indicates that at the time Ms. Ege gave her initial statement, she felt traumatized by what she had seen, and apart from this statement, she consistently maintained that she secreted herself in Ms. D.A.R.’s closet.
(ii) Ms. Ege gave inconsistent statements on the duration of the touching
[53] Initially, Ms. Ege told the administrator of the facility that Mr. Phan touched Ms. D.A.R. for under a minute; subsequently, at both the preliminary inquiry and at the trial, she stated that the touching lasted about 4-5 seconds. The trial judge dismissed this time difference as a minor detail, as he was entitled to do.
(iii) Ms. Ege’s evidence conflicts with the evidence of Ms. D.A.R.’s mother about whether it would be possible to observe Ms. D.A.R.’s bed from her roommate’s closet
[54] Ms. D.A.R.’s mother stated that, contrary to the testimony of Ms. Ege, it was not possible to see Ms. D.A.R.’s bed from the roommate’s closet. In reconciling this conflicting evidence, the trial judge stated that Ms. D.A.R.’s mother made this statement on the assumption that the curtain between the beds was closed. Mr. Phan argues that in so doing, the trial judge improperly read an assumption into Ms. D.A.R.’s mother’s statement.
[55] In my view, the trial judge was correct in his interpretation of Ms. D.A.R.’s mother’s evidence. She testified that the curtain between the beds was typically closed. Immediately thereafter, Ms. D.A.R.’s mother was asked about whether her daughter’s bed was visible from the roommate’s closet. In this context, the trial judge’s assumption is understandable, particularly given the photographic and other evidence indicating that the two beds were only a few feet apart. The only way the view of Ms. D.A.R.’s bed would be blocked is if the curtain between the beds was closed. Moreover, Ms. Ege testified that the curtain between the beds was open when Mr. Phan’s actions in relation to Ms. D.A.R. took place.
[56] Therefore, I do not find fault with the trial judge’s reconciliation of this evidence.
(iv) Ms. Ege failed to mention seeing the skin of Ms. D.A.R.’s breasts before the preliminary inquiry
[57] The trial judge considered this alleged inconsistency by first noting that it was unclear whether, before the preliminary inquiry, Ms. Ege was specifically asked whether she had seen the skin of Ms. D.A.R.’s breasts. The trial judge also referred to Ms. Ege’s testimony that in her prior statement, when she said she had seen Mr. Phan touching Ms. D.A.R.’s breasts, she meant that she had seen the skin of Ms. D.A.R.’s breasts.
[58] I find no fault in the trial judge’s treatment of this aspect of Ms. Ege’s testimony.
(v) Ms. Ege only agreed that Mr. Phan pulled down Ms. D.A.R.’s shirt when confronted with her testimony from the preliminary inquiry
[59] At trial, Ms. Ege stated that she did not remember whether Mr. Phan pulled down Ms. D.A.R.’s shirt before he left the room. When reminded of her testimony at the preliminary inquiry in which she stated that Mr. Phan had pulled Ms. D.A.R.’s shirt down, she agreed that Mr. Phan must have done so, because she remembered Ms. D.A.R.’s being covered when Mr. Phan left the room. The trial judge concluded that Ms. Ege had a “slight memory loss” on this detail and that she was not attempting to mislead the court.
[60] Given Ms. Ege’s admission that she did not remember whether Mr. Phan pulled the shirt down and her assumption that he must have done so, in my view it was reasonable for the trial judge to treat this difference as benign.
(vi) Ms. Ege said that she could see the door to the hallway from her position inside the closet
[61] Defence counsel argued that Ms. Ege’s evidence that she could see the door to the hallway from her position inside the closet was not credible.
[62] In my opinion, the trial judge rejected this argument for legitimate reasons. Ms. Ege testified that she left the closet door somewhat ajar so she could see out, and the trial judge held that the photos demonstrated that it was possible to see the hallway door from the closet. In any event, the trial judge interpreted Ms. Ege as suggesting that she assumed Mr. Phan had entered the room from the hallway.
(vii) Ms. Ege did not see or did report that Mr. Phan pulled up the sheet to cover Ms. D.A.R. before he left the room
[63] Mr. Phan relies heavily on Ms. Ege’s failure to indicate that she saw him pull the sheet over Ms. D.A.R. when it was clear that, after the incident, Ms. D.A.R. was covered by a sheet. Mr. Phan argues that this significantly undermines the reliability of Ms. Ege’s evidence that she actually observed Mr. Phan’s interaction with Ms. D.A.R.
[64] The trial judge dealt with this argument by stating that Ms. Ege was “numb” after the incident occurred and that there was a gap of about half an hour between Mr. Phan’s leaving the room and a nurse’s coming to check on Ms. D.A.R. and finding a sheet over her. While it was speculative to conclude that someone else came into the room to pull up the sheet in the intervening period, in my view it was open to the trial judge to rely on Ms. Ege’s emotional state as an explanation for why she did not notice or report Mr. Phan’s pulling the sheet up.
(viii) Ms. Ege initially told the police that Mr. Phan had reached through the bedrails, but testified at trial that he reached over the bedrails
[65] This is another discrepancy that Mr. Phan emphasizes in his uneven scrutiny argument.
[66] In reacting to this discrepancy, the trial judge expressed the view that at the time of her initial statement, Ms. Ege “must have been confused” because she clearly stated that it would be difficult to reach through the bedrails. While I agree with Mr. Phan’s counsel that this explanation strikes me as somewhat weak, it must be considered together with the manner in which the trial judge addressed the other potentially problematic aspects of Ms. Ege’s evidence.
(ix) When looking at the photos of the room, Ms. Ege mistook the bathroom door for the hall door
[67] The trial judge explained this discrepancy by suggesting that Ms. Ege was confused or misunderstood what she was being asked.
[68] While Ms. Ege’s inability to identify the bathroom door in the photos was an issue to which the trial judge could have given more attention in his reasons, this evidence was of little import. That said, like the trial judge’s treatment of the bedrail evidence, it forms part of the analysis of this ground of appeal.
The trial judge’s overall assessment of Ms. Ege’s evidence
[69] While the trial judge’s reasoning in relation to these last two matters is less than satisfactory, I do not agree with Mr. Phan’s submission that the trial judge simply glossed over problems with Ms. Ege’s evidence on significant issues. In my view, many of the inconsistencies upon which Mr. Phan relies are not actually inconsistent. When there were actual inconsistencies, none related to matters of significance in terms of the proof of the Crown’s case. Moreover, the trial judge accepted Ms. Ege’s explanation of those inconsistencies or otherwise carefully addressed them and reconciled them with the totality of her evidence by explaining why they did not affect his assessment of her credibility.
[70] Furthermore, it is apparent why, notwithstanding certain knotty aspects of Ms. Ege’s testimony, the trial judge found her to be credible. As he noted, she was an independent witness, she testified in a forthright manner, she had no motive to lie and she readily admitted errors in her evidence on certain details. There was no indication that she was being untruthful.
[71] In my view, reading his reasons as a whole, the trial judge did not apply a different standard of scrutiny to the evidence. He dealt comprehensively with the troublesome aspects of the evidence of both Ms. Ege and Mr. Phan. While it is true that he rejected much of Mr. Phan’s evidence and accepted Ms. Ege’s evidence despite certain inconsistencies, he did so because the problems with the two witnesses’ evidence logically led to different inferences.
[72] The problems with Mr. Phan’s evidence went beyond a difficulty recollecting certain details. The issues with his evidence all pointed to the conclusion that Mr. Phan’s innocent explanation for touching Ms. D.A.R. was simply not true.
[73] In contrast, the inconsistencies in Ms. Ege’s evidence pointed more to reliability problems. None suggested that she was attempting to mislead the court; rather, they could logically be attributed to issues associated with being asked to recall minute details about a sexual assault of a young and severely disabled woman. As the trial judge recognized, it is significant that in spite of these difficult circumstances, Ms. Ege remained steadfast in her description of the central details of Mr. Phan’s actions in relation to Ms. D.A.R.
[74] This is not a case in which the trial judge used two different measuring sticks in gauging the credibility of the two witnesses. While the trial judge attached less weight to the weaknesses in Ms. Ege’s evidence than the defence urged upon him, he was, for the reasons I have set out, entitled to do so.
[75] The trial judge was in the best position to consider the evidence and make credibility findings based on all of the tools available to him. In my view, his conclusions were not only supported by the evidence; they were arrived at fairly.
[76] As I have said, the unequal scrutiny argument is a difficult one to establish. In my view, it has not been established in this case. I would therefore not give effect to this ground of appeal.
DISPOSITION
[77] For these reasons, I would dismiss the appeal.
Released: December 24, 2013 (“PR”)
“Gloria Epstein J.A.”
“I agree. Paul Rouleau J.A.”
“I agree. David Watt J.A.”