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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.W., 2014 ONCA 322
DATE: 20140425
DOCKET: C56233
Cronk, Epstein and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J.W.
Appellant
Andrew Furgiuele, for the appellant
Megan Stephens, for the respondent
Heard: March 4, 2014
On appeal from the convictions entered on August 21, 2012 by Justice Robert P. Villeneuve of the Ontario Court of Justice.
Benotto J.A.:
Introduction
[1] The appellant is a man in his fifties who was accused of fondling a 13 year-old family friend while she slept. He was convicted of sexual assault and sexual interference. He appeals his convictions on the basis that the trial judge misapplied the burden of proofand erred in drawing an adverse inference from photographs of the complainant that were taken by the appellant.
[2] The central issue in this appeal is how the principle of reasonable doubt is to be applied to a credibility assessment when there are two conflicting versions of the same event.
[3] For the reasons that follow, I conclude that the trial judge misapplied the burden of proof. I would order a new trial on that basis.
Evidence at Trial
[4] The appellant and the complainant’s mother were friends. They lived in different cities about three hours apart. When the complainant and her brother came to town, they often stayed overnight with the appellant.
[5] On Labour Day weekend in 2010, the complainant, then aged 13, and her brother stayed overnight with the appellant. On previous overnight visits, the complainant and the appellant had shared a bed. Neither thought this was unusual and there is no evidence that anything untoward occurred until the Labour Day visit.
[6] The evening of September 5, 2010 began with the complainant, her brother, a friend and the appellant watching a movie together in the appellant’s living room. After the movie, the appellant drove the friend home. On his return, he, the complainant and her brother continued watching movies in the living room. At about 2 or 3 a.m., the appellant and the complainant went to bed in his bedroom. The complainant wanted to continue watching television, so she lay down in bed under the covers and watched a movie. The appellant was in bed beside her. Eventually they fell asleep.
[7] The complainant testified that when she woke up at approximately 6:30 a.m., the appellant’s hand was on her stomach. He was rubbing her stomach from side to side underneath her pyjamas. He then moved his hand higher and squeezed her nipple under her bra. He rubbed her buttocks on top of her pyjamas and also touched the palm of her hand. The complainant had her back to the appellant. She said that she felt a poke that she originally thought was his penis, although it could have been a thumb. He pulled his hand away, and she got up and walked out.
[8] The complainant went to another bedroom, from which she texted her friend saying that she was scared. She said nothing to the appellant about the incident. She called her brother into the bedroom and told him she wanted to leave. She did not tell her brother about the events in the appellant’s bed.
[9] Later that day, the appellant took the complainant and her brother to visit his niece and her newborn baby and then drove them home. When she got home, the complainant told her friend what had happened. Her friend urged her to tell her mother. The complainant did so about five months later, in February 2011. She offered no explanation for the delay.
[10] The complainant testified that on several occasions during her stay, the appellant had taken pictures of her while she was sleeping.
[11] The appellant’s testimony was largely consistent with that of the complainant. The only significant difference was that he completely denied touching her. He said that the complainant was on top of the bedcovers and that he fell asleep while the movie was still on but woke up when the complainant got up. He asked her if she was alright, but she left the room without saying anything. He went back to sleep and got up around 9 a.m., at which point he asked the complainant what was going on. She told him she was texting, and she did not appear to be upset or crying. Her brother was still in bed. Later, they all went to visit the appellant’s niece and went out for lunch. He then drove them home. On September 11, 2010, the complainant phoned him to wish him happy birthday.
[12] The appellant was not shaken in cross-examination. He was not asked about the photographs in examination-in-chief or in cross-examination.
Reasons for Judgment
[13] The trial judge reviewed the evidence. He began his analysis with the following self-instruction:
The Court must remind itself of the principles set out in the case of R. v. W.D. in assessing the credibility of witnesses. If I accept the evidence of the accused he must be found not guilty. If the Court does not accept the evidence of the accused but it nevertheless raises a reasonable doubt, he must be found not guilty. If neither of the first two prongs of W.D. is accepted by the Court, the Court must nevertheless assess the evidence in its entirety and in weighing that evidence, be satisfied beyond a reasonable doubt, that the necessary elements of the offence have been proven, failing which the defendant is not guilty.
[14] The trial judge then acknowledged the difficulty of assessing credibility when there are two opposing versions of an event before going on to examine the evidence and testimony of the various witnesses.
[15] The trial judge referred to the fact that the appellant had photographed the complainant while she was sleeping. He said this was unusual behaviour that suggested that the appellant was attracted to the complainant. He considered this as confirmation of the complainant’s evidence.
[16] The trial judge acknowledged that the appellant’s evidence was not shaken during cross-examination. He twice said, however, that he “prefer[red] the complainant’s version of the evidence” and further that he was “convinced of the complainant’s evidence.” He did not say why he disbelieved the appellant or why the appellant’s evidence did not raise a reasonable doubt. The analysis concluded as follows:
Recognizing that the defendant need not prove his innocence I nevertheless do not accept his evidence as it pertains to what occurred in his bedroom during the early morning hours of September 6th, 2010. I prefer the version of the complainant as indicated for the reasons I have indicated.
[17] The appellant was convicted of sexual assault contrary to s. 271 of the Criminal Code and sexual interference contrary to s. 151.
Issues
[18] There are two issues on appeal:
Did the trial judge misapply the burden of proof?
Did the trial judge err by drawing an adverse inference from the photographs?
Positions of the Parties
[19] The appellant submits that, despite the reference to R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the trial judge approached his analysis as a credibility contest. The trial judge did not explain why the appellant’s testimony failed to raise a reasonable doubt. The appellant further submits that it was unfair to consider the photographs when the appellant did not testify about them or provide an explanation.
[20] The Crown submits that, read as a whole, the trial judge’s reasons indicate he properly applied W.(D.) and that he was well aware of the burden that lay with the Crown and the fact that the accused had only to raise a reasonable doubt. The Crown submits that when, as here, the trial judge accepts the evidence of the complainant, it is to be assumed that the evidence of the accused is rejected: no further explanation is required. The Crown also submits that the trial judge was entitled to consider the photographs. They were put in evidence by the Crown, and the appellant chose not to explain their existence. His failure to do so did not preclude the trial judge from relying on them.
Analysis
[21] The appellant’s central argument is that the trial judge erred in his application of the burden of proof and failed to adequately explain why the appellant’s testimony did not raise a reasonable doubt. While I would not give effect to the argument that the trial judge’s reasons were insufficient, I agree with the appellant’s submission that the trial judge erred in his application of the burden of proof.
[22] In approaching this issue, a distinction must be made between the sufficiency of reasons and the proper application of the burden of proof in a criminal trial. There may be overlapping considerations, but the two issues are separate.
[23] The Supreme Court of Canada dealt with both the sufficiency of reasons and the burden of proof in R. v. Vuradin, 2013 SCC 38, 298 C.C.C. (3d) 139. With respect to the sufficiency of a trial judge’s reasons, the court held that a trial judge’s failure to provide reasons for rejecting the plausible denial of an accused does not render the reasons deficient as long as the reasons make it clear that when the complainant’s evidence differed from that of the accused, the trial judge accepted the complainant’s evidence. At para. 13, the court stated:
[W]here the complainant’s evidence and the accused’s evidence conflicted, the trial judge accepted the complainant’s evidence. No further explanation for rejecting the accused’s evidence is required as the convictions themselves raise a reasonable inference that the accused’s denial failed to raise a reasonable doubt.
[24] Since the trial judge accepted the complainant’s evidence I would not give effect to the argument that the trial judge’s reasons were deficient. The consideration of the sufficiency of reasons, however, does not end the analysis if there remains a concern that the burden of proof was misapplied. As confirmed in Vuradin, at para. 21, the proper application of the burden of proof remains the overriding concern:
The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: W. (D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused’s evidence and the Crown’s evidence: R. v. C.L.Y. 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8. [Emphasis added.]
[25] The reasons for judgment indicate that the principle of reasonable doubt was not the trial judge’s central consideration. Instead, he chose between two versions of the events in question. He did not allow for the possibility that the appellant, while not believed, had raised a reasonable doubt. Although the trial judge correctly articulated the W.(D.)principles, the balance of his reasons demonstrates that he did not apply the principle of reasonable doubt to his credibility assessment. Nor did he step back and consider whether, on the whole of the evidence he did accept, a reasonable doubt had been raised.
[26] In R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 69, Doherty J.A. emphasized that in a “he said – she said” case, the trial judge must understand how the principle of reasonable doubt is to be applied to the credibility assessment. There is a distinction between a finding of credibility and proof beyond a reasonable doubt. In other words, a reasonable doubt can survive a finding that the complainant is credible: J.J.R.D., at para. 47.
[27] The trial judge’s approach to credibility here omitted any consideration of whether, despite his rejection of the appellant’s evidence, it was nonetheless capable of raising a reasonable doubt. He incorrectly approached the credibility assessment as an either/or process in which he was required to choose a version of the events in order to reach a verdict: see R. v. A.P., 2013 ONCA 344, 297 C.C.C. (3d) 560.
[28] The trial judge began his analysis by emphasizing W.(D.) However, in the very next paragraph, he described his task as one that involved choosing between competing versions of events:
In assessing credibility in these circumstances the Court must look at all of the evidence including any other independent evidence to determine whether the analysis of that evidence and the independent evidence tends to favor one versionof the evidence over the other.
[29] He used the word “version” five times in two-and-a-half pages of analysis. The only time he used the phrase “reasonable doubt” was when he recited the principles of W.(D). While he concluded his analysis by saying that the accused “does not need to prove his innocence,” the trial judge did not advert to the possibility that the accused may have raised a reasonable doubt even though his evidence was disbelieved.
[30] In J.J.R.D., Doherty J.A. also emphasized that, although the trial judge can reject the accused’s evidence based on compelling conflicting evidence, the acceptance of that evidence must be such that the trial judge is not left with a reasonable doubt. At para. 53, Doherty J.A. emphasized this point:
The trial judge rejected totally the appellant’s denial because stacked beside [the complainant’s] evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [Emphasis added.]
[31] Here, the trial judge did not reject the appellant’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence. He approached the credibility analysis as a choice between competing versions of the events. He then did not consider whether, on the basis of whole of the evidence, a reasonable doubt had been raised.
[32] I therefore conclude that the trial judge misapplied the burden of proof. I would order a new trial.
[33] Although it is unnecessary for the resolution of this appeal, I now turn to the appellant’s second ground of appeal. He argues that the trial judge erred by considering the photographs. I would not give effect to this submission. The photographs were put in evidence by the Crown. The appellant was aware of them and chose not provide an explanation during examination-in-chief. There was no obligation on the Crown to cross-examine the appellant with respect to the photographs. The trial judge was entitled to look at all the evidence, and the inferences he drew were open to him.
Disposition
[34] Although the trial judge did not err by considering the photographs, he misapplied the burden of proof. I would therefore allow the appeal, set aside the convictions and order a new trial.
“M.L. Benotto J.A.”
“I agree E.A. Cronk J.A.”
“I agree Gloria Epstein J.A.”
Released: April 25, 2014