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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.
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.M., 2014 ONCA 854
DATE: 20141201
DOCKET: C55875
Doherty, Laskin and Feldman JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
T.M.
Appellant
Michael Lacy and Bradley Greenshields, for the appellant
Jocelyn Speyer, for the respondent
Heard: March 18, 2014
On appeal from the convictions entered on February 13, 2012, by Justice Jean-Gilles Lebel of the Ontario Court of Justice.
Laskin J.A.:
A. Introduction
[1] After a trial in the Ontario Court of Justice, T.M. was convicted of six counts of historical sexual abuse – five counts against his step-daughter S.M., and one count against his biological daughter J.M. He was sentenced to four years in prison. He appeals his convictions.
[2] At the time of trial in late 2011, S.M. was 28 and J.M. was 26. S.M. testified that the appellant sexually assaulted her hundreds of times when she was between the ages of eight and 25. J.M. testified that the appellant sexually assaulted her on one occasion when she 18. She also testified that she observed sexual interaction between the appellant and S.M. on three occasions. The appellant testified and denied that he had ever sexually assaulted his daughters.
[3] Although the appellant’s wife, W.M., and one of their sons testified for the defence, this case turned on the trial judge’s assessment of the credibility of the two complainants and the appellant. The trial judge accepted the complainants’ evidence and gave reasons why he found each of them credible. He rejected the appellant’s denial and found it did not raise a reasonable doubt.
[4] The appellant raises three grounds of appeal. Each ground challenges the trial judge’s credibility findings:
• First, the trial judge erroneously found that the appellant “of his own initiative, without prompting by the Crown Attorney”, claimed J.M. had manipulated S.M. to falsely accuse him.
• Second, the trial judge erred by failing to address material inconsistencies between the accounts of the two complainants.
• Third, the trial judge erred by relying on the appellant’s demeanour in the courtroom during the complainants’ testimony to reject his evidence.
[5] The appellant submits that these three errors caused a miscarriage of justice and warrant a new trial.
[6] To put the appellant’s grounds of appeal in context, I briefly review the family’s lifestyle, the way T.M. and W.M. raised their children, each of the complainants’ evidence of sexual abuse, and the disclosure of the abuse.
B. Background
(1) The family’s lifestyle
[7] W.M. married the appellant in 1985. She brought two daughters to the marriage, one who had died by the time of trial, and the complainant S.M. When W.M. married the appellant, S.M. was two years old, and he was the only father she ever knew. W.M. and the appellant had eight children together, six boys and two girls, one of whom was the complainant J.M.
[8] Until the year 2000, the family moved frequently. Between 1991 and 1996, they lived in various places in British Columbia and Alberta. Between 1996 and 2000, they lived on campgrounds in the North Bay, Ontario, area and in several communities in British Columbia and Alberta. Then in 2000, they moved to a hundred-acre farm in Golden Valley, East Mills Township, in Ontario, where they remained until the time of trial.
[9] The appellant formerly belonged to a religious organization known at one time as “Children of God” and then as “Family International”. S.M. said that the organization emphasized women bearing and rearing children. She also testified that the organization was “most famous for [its] sexual beliefs”; it believed “[t]hat it was okay to have sex with anyone.” J.M. described Family International as “a hippie group, … there was a lot of belief in free love, a lot of belief of staying outside of what they called the system”.
[10] The appellant testified that he ended his formal association with Family International in 1983, two years before he married W.M., though he continued to receive mailings from the group until 1997. He denied that his children were taught that having sex with him was acceptable or “normal”. He testified that his children were taught Christian values from the Bible.
(2) The children’s upbringing
[11] The complainants told of an isolated, repressed childhood, separated from the outside world. The trial judge made numerous findings of fact that supported their accounts. These findings included:
• The appellant was the boss of the family. He had the final say on matters of discipline and behaviour.
• The Family’s beliefs emphasized having many children and teaching them to obey. “[W]hen the [M.] children disobeyed, corporal punishment would be meted out.”
• “Corporal punishment consisted of spanking by the use of the hand, belt or fly swatter.”
• The children were home schooled and subjected to Family International readings for hours each day.
• “The family led a sheltered life with very little socializing. In fact, there was no evidence of family gatherings or friends attending the M. residence other than other ‘Family’ members”.
• “The [M.] children were not allowed to speak freely or express contrary views or opinions. Obedience was paramount.”
(3) The complainants’ evidence of the appellant’s sexual abuse
(a) S.M.’s evidence
[12] S.M. testified about the appellant’s repeated abuse of her in 1991-92, when she was about eight years old and living in Alberta, and in 1992-96, when the family was living in British Columbia. The trial judge considered this evidence of sexual abuse outside Ontario “basically for context.”
[13] The sexual abuse that is the subject of the counts in the indictment began in 1996, when S.M. was 13 years old and the family was living in North Bay. S.M. testified that the abuse consisted of “blow jobs” and “hand jobs”. Occasionally the appellant would fondle her breasts or perform oral sex on her. He did not try to penetrate her after puberty.
[14] According to S.M., the sexual abuse continued, and became more frequent, after the family moved to their farm in the Golden Valley. Again the abuse consisted of oral and manual stimulation, and took place “[a]bout weekly.” The appellant’s sexual abuse ended when S.M. left the home at the age of 25.
(b) J.M.’s evidence
[15] J.M. testified about one incident of sexual abuse when she was 18. She was in the appellant’s bedroom. He pulled her onto the bed and tried to spread her legs. He then mounted her and moved back and forth on top of her. She testified, “I could feel him, like, getting really hard and he started, like, digging his pelvis into me and was just, like, holding me.” J.M. told the appellant, “I think I should go call mom now”. The appellant told her to be quiet and he stopped. J.M. went downstairs but did not tell anyone what had happened.
(c) J.M.’s observations of the appellant’s sexual abuse of S.M.
[16] J.M. recounted three incidents when she observed the appellant sexually abusing S.M. The first incident took place on a campground in North Bay. S.M. and J.M. shared a tent. The appellant lay between them and cuddled. This was not unusual: cuddling, hugging, kissing and touching were common practices in the family. But on this occasion, J.M. saw the appellant put his hand up S.M.’s shirt in her breast area or down the back of her pants. J.M. felt uncomfortable about what she had seen so she got up and left. Later she asked S.M., “[D]o you like Pa’s hugs?” S.M. replied, “Humph. Whatever”, and J.M. did not press the matter.
[17] The second incident also occurred in North Bay. The family slept in a trailer. J.M. and S.M. shared a bed at the front of the trailer. The appellant came over to cuddle with S.M. J.M. fell asleep, but she woke up because she felt a knee bumping her and the trailer moving. She saw S.M. in a sleeping bag and the appellant on top of her. His hands were around her and her hands were around him. The appellant was red-faced and moaning. He told J.M. to roll over and face the wall. She testified, “[T]o my shame, that’s exactly what I did.”
[18] The next morning, J.M. asked S.M. about what had happened. S.M. replied, “Don’t talk about it.” J.M. told S.M., “[T]his is not right”, but she did not pursue the matter.
[19] The third incident took place when the family lived in a log house in the Golden Valley. One Saturday night in 2002 or 2003, J.M. walked into the living room and saw the appellant lying on a couch and S.M. leaning over him, at his waistline. Her head was going up and down, and her hands were in front of her. The appellant and S.M. scurried apart, and then the appellant rearranged his pants. Later J.M. asked S.M., “[W]hat’s going on?” S.M. replied, “Nothing” or “Whatever”.
(4) Disclosure
[20] The complainants first disclosed the abuse in 2010, after they had left the home and each was living in Alberta.
[21] J.M. was the first to leave the home. In May 2006, she and S.M. were scheduled to go to Sudbury to write their high school equivalency examinations. The appellant was to drive them, but the day before he claimed that his “vehicles weren’t in good shape” and that he could not make the trip. J.M. decided to go anyway. She called a taxi to take her to the bus station in North Bay, told the cab company to meet her on the road, and hid along the highway until the taxi came. When she reached the bus station, the appellant had her paged to take a phone call. He told her the devil was out to get her and that she should return home. However, J.M. continued to Sudbury, wrote her exams, got a job and began living on her own. In 2007, she moved to Calgary and, in late 2009, to Fort McMurray.
[22] S.M. left her family in May 2008, a few weeks after her 25th birthday. She “join[ed] a missionary commune that [her] parents had been part of and understood fairly well.” She stayed there for six months and then moved to Calgary because J.M. was there. She got a job and was still working and living in Calgary at the time of trial.
[23] In the fall of 2010, J.M. telephoned S.M. and told her that she was not being allowed to speak with her younger siblings. S.M. then told her about the appellant’s abuse, and J.M. became worried for her younger sister, who was still at home. J.M. then decided to call a children’s services agency. That agency contacted the police, who then contacted J.M.
[24] S.M., who was attending college to obtain a certificate as a teacher’s assistant, waited until the winter break from school before she made a video statement to the police. She described her motivation for disclosing the abuse as “[t]o help the kids.”
[25] S.M. also explained why she had not told anyone earlier about the appellant’s sexual abuse. She described an array of conflicted feelings. The appellant had made her feel special and mature for her age. On one occasion, he told her that if she wanted the behaviour to continue, she would have to be quiet and not tell anyone or he would go to jail; although she did not want his abuse to continue, she did not want him to go to jail. As she grew older, she felt she could not tell anyone because she would be blamed and her mother would be angry and jealous. And she felt ashamed.
C. Analysis
[26] The appellant’s grounds of appeal are directed at the trial judge’s credibility assessment. Before discussing these grounds, I set out the trial judge’s credibility findings.
[27] The trial judge found that S.M. and J.M. “were very credible and trustworthy witnesses despite minor inconsistencies in their evidence.”
[28] Of S.M.’s testimony, the trial judge said:
The evidence of [S.M.]: generally speaking, this witness was responsive to questions put to her in-Chief and in cross-examination. I found her to be candid and with a very good ability to recall events. She responded well to fair, yet vigorous, questions during cross-examination. I did not observe any vindictiveness directed towards the defendant from this witness, nor did she attempt to distort the family dynamics. Ms. [M.] was in the stand for a long period of time. Eventually, one’s true character comes to light in such circumstances. She did not strike me as the type of person who would sit with someone and fabricate what she experienced, nor do I believe that she could be manipulated by anyone in a vendetta against her stepfather. To the contrary; she did not exhibit animosity vis a vis the rules and regulations of the household. To this day, she follows the core values that she was taught.
[29] And of J.M.’s testimony, he said:
[J.M.], I found, gave her evidence in [a] straightforward manner. She was responsive to all questions put to her. She was succinct and to the point. She related the positive and the negative aspects of her upbringing. An evil, manipulative person surely would have embellished the sexual abuse perpetrated against her. She did not. She related one incident between herself and the defendant, when he rubbed himself against her, and that was it.
[30] On the other hand, the trial judge concluded that he did not believe the appellant and that his evidence did not raise a reasonable doubt. He found that on cross-examination, the appellant lacked candour and was flippant, argumentative and unresponsive. He also found that W.M. and their son were not credible and trustworthy witnesses.
[31] Of course, an appellate court gives significant deference to a trial judge’s credibility findings. The overriding question on this appeal is whether anything in the trial judge’s reasons or in the conduct of the trial gives rise to a reversible error in his findings.
- Did the trial judge erroneously find that the appellant “of his own initiative” claimed J.M. had manipulated S.M. to falsely accuse him?
[32] This ground of appeal has several components. In substance, the appellant contends:
• The trial judge misapprehended the evidence when he found that the appellant “of his own volition” or “of his own initiative” put forward the theory that J.M. had manipulated S.M. to falsely accuse him of sexual abuse.
• Instead, it was the Crown who, in cross-examining the appellant, initially and repeatedly asked the appellant to speculate why the complainants would falsely accuse him. And, the trial judge failed to curtail this impermissible line of questioning.
• The trial judge then erroneously relied on this improper cross-examination and the appellant’s failure to provide an explanation why the complainants would falsely accuse him to find the complainants credible and the appellant guilty. In doing so, the trial judge artificially bolstered the complainant’s credibility and reversed the burden of proof.
[33] I do not accept the appellant’s contention, or indeed any of its components. The passage in the trial judge’s reasons that the appellant complains of is as follows:
During cross-examination, of his own initiative, without prompting by the Crown Attorney, without being asked any questions about [S.M.] and [J.M.], [the appellant] stated that he firmly and steadfastly believes that [S.M.] is being “snowploughed” by [J.M.], this whole thing is a plot against him. He believes that [J.M.] manipulated [S.M.] because she had a grudge against him.
[34] It seems to me the trial judge’s comment was fair. Before the Crown began his cross-examination of the appellant, the defence had put forward the position that the complainants had contrived or fabricated their allegations. For example, toward the end of the appellant’s examination-in-chief, he was asked by his counsel: “And you heard [J.M. indicate] that you had sexual contact with [S.M.] while [J.M.] was in the same bed in the trailer? … Any comment on that?” The appellant replied, “It’s totally false, totally ridiculous and totally made up.”
[35] Then, before the appellant’s examination-in-chief concluded, the following exchange took place:
Q. Now when, when [J.M.] left, any contact with her after she left?
A. Yeah, she called lots of times, always phoning, mostly at night but, you know, and she called right up ‘til the last couple of months before she contacted the [Children’s Aid Society] and started this campaign against us.
Q. In all the evidence you heard about sexual abuse and harassment, sexual abuse from [J.M.] and from [S.M.], is there a scintilla of truth to any of it?
A. No.
[36] The appellant’s answers show he believed that the complainants’ allegations were contrived and that J.M. had orchestrated the false allegations. The Crown was certainly entitled to cross-examine in these areas. And defence counsel at trial (not counsel on appeal) evidently agreed because he did not object to the Crown’s cross-examination. The Crown cross-examined the appellant as follows:
Q. I see. You believe this is a plot by [J.M.] and [S.M.]?
A. Yes, I’m being snow ploughed by [J.M.].
Q. Why?
A. It’s a lie.
Q. You got along with her?
A. I got along with her but she was always building up resentment and before they left home they were developing real bad habit of always criticizing and looking down at us.
Q. When you say they, both of them?
A. Yes.
Q. I see, both [S.M.] and [J.M.]?
A. Yeah, like it was as if we were real dummies and embarrassment and always putting us down.
Q. Do you believe that [J.M.] has some kind of control over [S.M.]?
A. Control?
Q. Yeah?
A. I don’t know if you’d use the word control but she mighty influences her a lot.
Q. Manipulates her?
A. Yes.
Q. I see. And that without that manipulation your belief is that [S.M.] wouldn’t be making these false allegations against you?
A. No, I don’t believe she would be. [J.M.’s] behind it, yes. She carries a big grudge on me.
Q. I don’t get the grudge.
A. I’m not [a] big money man, not somebody to be proud of.
Q. That’s the grudge?
A. And a lot of it stems over time. It’s, a lot of things, it goes back, just little things but they build up.
Q. Okay. So she has a grudge because you’re not the big money man?
A. That’s right. She’s embarrassed by me.
[37] The appellant argues that this cross-examination was improper. He relies on the many decisions of this court that have held “it is improper to call upon an accused to comment on the credibility of his accusers”: see R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 53 O.R. (3d) 417 (C.A.), at para. 27, per Charron J.A.; and R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 15-16, per Simmons J.A.
[38] The concern with this line of questioning is two-fold. First, it is unfair to ask an accused to speculate about a witness’s motives. Second, these questions risk shifting the burden of proof. The burden is on the Crown to prove beyond a reasonable doubt that a complainant’s allegations are true. Yet questions to an accused about a complainant’s motives may cause the trier of fact to focus on whether the accused can provide an explanation for why a complainant would make false allegations, and find the accused guilty if a credible explanation is not forthcoming.
[39] Neither concern arises here. First, save for perhaps a few questions, the Crown’s cross-examination of the appellant was fair. The appellant’s evidence-in-chief invited the Crown’s cross-examination. Moreover, in a case such as this one, where one family member has alleged sexual abuse by another family member, one might reasonably expect an accused to be aware of any ill-will motivating that allegation.
[40] Thus, questions that explored the nature of the relationship between the appellant and the complainants, or between the complainants themselves, were proper. The Crown was entitled to try to show the absence of a motive to fabricate, because it is a factor in the assessment of credibility. See R. v. L.L.at para. 19.
[41] Questions about motive become improper when they go beyond eliciting facts known to the accused and instead invite the accused to speculate. Few of the Crown’s questions to the accused crossed this line. As Ms. Speyer for the Crown fairly acknowledged, the Crown’s cross-examination of the appellant’s son was more problematic, but his evidence was of no real relevance in this case.
[42] Second, the Crown’s cross-examination did not shift the burden of proof. The trial judge expressly cautioned himself:
The accused is under no obligation to say why a Crown witness is not truthful or is lying. In fact, the Crown Attorney is not permitted to cross-examine an accused person on that issue.
[43] Moreover, as I read his reasons, the trial judge did not put an onus on the appellant to show that the complainants had a motive to fabricate. In concluding that the complainants were credible, the trial judge did not find they had no motive to fabricate. Although he referred to their lack of vindictiveness and addressed elements of the appellant’s fabrication claims – particularly in his assessment of S.M. – these observations largely focused on their character and behaviour when testifying. These observations led the trial judge to find that J.M. and S.M. did not fabricate their evidence, not that they had no motive to fabricate. Moreover, the trial judge gave many other reasons for finding them credible. S.M. was “candid”, had “a very good ability to recall events”, and “responded well to fair, yet vigorous, questions”. J.M. “gave her evidence in [a] straightforward manner” and “was succinct and to the point.” Both were “responsive” to all questions put to them.
[44] For these reasons, I would not give effect to this ground of appeal.
- Did the trial judge err by failing to address inconsistencies in the accounts of the two complainants?
[45] The appellant submits that there were significant inconsistencies between the evidence of the two complainants and that the trial judge erred by failing to address them. I do not agree with this submission.
[46] The trial judge was aware of inconsistencies in the evidence of J.M. and S.M., but did not specifically address them as he considered them to be “minor” and “something that, as the trier of fact, I would expect.”
[47] I agree with the trial judge’s characterization of the inconsistencies as minor. For example, the appellant claims there is a material discrepancy between S.M.’s testimony that no one else knew the appellant was abusing her and “[J.M.]’s testimony that she repeatedly confronted [S.M.] about the appellant’s sexual abuse before they moved to Alberta”. But the evidence shows that over the many years S.M. was abused, J.M. had only two or three brief conversations with her step-sister about the apparent abuse. These conversations involved vague comments about “Pa’s hugs” or questions such as “what’s going on?”, to which S.M. responded, “Whatever” or “Nothing”. I agree with the Crown that J.M.’s evidence about those brief conversations is not inconsistent with S.M.’s belief that no one else really knew what the appellant was doing to her.
[48] To take another example, the appellant claims a material discrepancy because of “[J.M.]’s testimony that she had complained to [S.M.] about the appellant before they moved to Alberta”. Yet J.M.’s “complaint” consisted of a single comment after the appellant had sexually assaulted her when she was 18: “Pa’s hugs are getting really annoying”, to which S.M. replied, “He’s not doing that to you, too, is he?” If this is a discrepancy, it is a trifling one. The other so-called major inconsistencies are similarly insignificant.
[49] Because these inconsistencies were minor and did not bear on the central issues in the case, the trial judge did not err by failing to address them in detail. Thus, I would not give effect to this ground of appeal either.
- Did the trial judge err by relying on the appellant’s demeanour in the courtroom during the complainants’ testimony to reject his evidence?
[50] In his reasons, after finding the complainants to be credible witnesses, the trial judge considered the appellant’s credibility. He said:
The defendant testified. I observed Mr. [M.] very carefully when he gave his evidence and while he was seated in the courtroom as the witnesses testified. I was somewhat astonished as to his behaviour when [S.M.] gave [her] evidence. He sat in his chair and never looked at her when she gave her evidence because he was reading. He was reading something. He had some papers in his hand and he read through most of her evidence. I have no idea what it was that he was reading, but he seemed to be totally disinterested in what [S.M.] had to say. I’m sure he heard her. In contrast, however, when [J.M.] testified he did look at her and on a few occasions engaged in smiles and perhaps laughter, but mostly smiles, with the people who were seated behind him in this courtroom.
He stated that [S.M.’s] evidence made him sick, yet he was reading at the time. If her evidence made him sick, he certainly didn’t display that to me in this courtroom by his demeanour. And I’m not judging Mr. [M.] today based on his demeanour, I want to make that perfectly clear. It’s an observation only, that I made.
[51] As is evident from this passage, the trial judge was commenting on the appellant’s demeanour during the complainants’ testimony and before the appellant himself testified. Yet, when the appellant did testify, the trial judge did not ask him to explain his demeanour, nor did he alert defence counsel that he may comment on it in his reasons.
[52] The appellant submits that the trial judge erred by relying on the appellant’s demeanour when he was not on the witness stand giving evidence as a basis to reject his evidence. He argues that what he did while sitting beside his lawyer at the counsel table during his daughters’ testimony had no probative value. Yet the trial judge relied on the appellant’s courtroom demeanour, and his reliance cannot be excused by a saving comment that he was only making an observation and not judging the appellant on his demeanour.
[53] To support the trial judge's reliance on the appellant's demeanour outside the witness box, the Crown relies on this court's decision in R. v. Owens (1986), 1986 CanLII 4690 (ON CA), 33 C.C.C. (3d) 275. Owens, in my view, has little or no relevance to the present case. Nonetheless, even though the trial judge appeared to place modest reliance on the appellant's demeanour outside the witness box, I do not think his doing so tainted his rejection of the appellant's evidence. I first deal with Owens, and then I explain why I would uphold the trial judge's credibility finding.
[54] In Owens, the accused, a teacher, was appealing his convictions for sexually assaulting three young boys. The judge-alone trial took place over ten days, during which the accused testified and denied the allegations. In doing so, the accused put in issue his reaction to a crisis situation – there, his meeting with the school principal during which the accused hardly reacted when the principal confronted him with the abuse allegations. The accused said that his natural response was to withdraw rather than to react and express shock. The trial judge did not accept the accused’s description of his personality, in part relying on the accused’s demeanour over the course of the trial:
My observation of Mr. Owens was not limited to the time that he spent in the witness-box. In the witness-box he was indeed a very collected, controlled and non-distraught individual under conditions and circumstances where a person with less control could not possibly have controlled, indeed concealed the inner turmoil and stress that I am sure he was undergoing. Thus, he was in these circumstances able to control his actions and reactions. However, my observation of Mr. Owens was not limited to the time he spent in the witness-box. I watched him for the 10 full days of the trial, and there were many times when situations arose calling for reactions from people in the courtroom. Invariably, Mr. Owens reacted openly so that when not under strict observation, when not on guard, he is a very open reactive person. Furthermore, he is very articulate and expressive, intelligent and sensitive.
Owens, at pp. 282-83.
[55] On appeal, Mr. Owens argued that the trial judge erred in relying on his demeanour outside the witness box, especially as he had not been given an opportunity to explain his behaviour. This court disagreed. Lacourcière J.A., writing for the panel, said, at p. 283, that the trial judge was entitled to place “some reliance” on his observations of the disposition and demeanour of the accused throughout the trial:[^1]
I am not prepared to say that the learned trail judge fell into error by placing some reliance on his observation of the appellant outside of the witness-box during the trial. It is generally accepted that the demeanour of a witness and his manner of giving evidence in the witness-box are important indicia of his trustworthiness. It is unrealistic to suggest that other observations of a witness by the trier cannot be made in the court-room during the trial.
Lacourcière J.A. provided, at pp. 283-84, the following rationale for his holding:
As to the potential unfairness of drawing an inference based on demeanour which the witness has not had an opportunity to explain, I note that a trial judge does not ask a witness who is in the witness stand for an explanation of the witness’s observable physical reactions such as blushing, perspiring, fidgeting or other manifestations which may form the basis of an adverse inference. There is no reason why other observations should require a different treatment.
[56] Nonetheless, Lacourcière J.A. recognized, at p. 283, that “[t]hese observations are not without some danger” and would not be appropriate if “some manifest unfairness should arise.” The court’s holding in Owens is consistent with the views of Dean Wigmore. See Wigmore on Evidence (Chadbourn Rev., 1979), Vol. 2, at para. 274(2).
[57] If applied to this appeal, Owens would raise four concerns. First, the context in which the trial judge in this case drew an inference about the accused’s credibility while outside the witness box differs significantly from the context in Owens. In Owens, the accused put his personality – his normal reaction to a stressful situation – in issue in his defence; it was thus understandable that the trial judge compared the accused’s own evidence of his demeanour when confronting a stressful situation to his demeanour during his trial. And, it was in that context our court upheld the trial judge’s reliance on the accused’s demeanour outside the witness box.
[58] The context in which the trial judge in this case made comments about the appellant’s demeanour is entirely different. The appellant did not put his normal reaction to serious allegations in issue in his defence. Thus, in drawing an adverse inference about the appellant’s credibility from his courtroom demeanour, the trial judge – unlike the trial judge in Owens – had no basis for comparison.
[59] Second, in one part of Owens, the court expressly said that its holding applies to judge-alone trials and not jury trials, without a clear explanation for the distinction. Indeed, Lacourcière J.A. said, at p. 283, that juries are not invited to make observations of a witness’s demeanour outside of the witness box “because of the ever present possibility that an adverse inference could be drawn from the observed reaction of a witness in situations where the witness could dispel the inference if given the opportunity to do so.” Admittedly, later in his reasons, at p. 283, Lacourcière J.A. seemed to extend this holding to both judges and juries:
Where a witness, as the appellant did in the present case, has testified as to his general out-of-court disposition and demeanour, it provides almost an invitation to the trier of fact to observe the disposition and demeanour of the witness throughout the entire trial.
[60] Nonetheless, in the later case of R. v. Belowitz (1990), 1990 CanLII 11004 (ON CA), 56 C.C.C. (3d) 402, this court followed Lacourcière J.A.’s comments about jury trials. The trial judge had instructed the jury that they could consider the demeanour of an accused during the trial. Morden J.A., at pp. 410-11, said the instruction was improper:
These instructions went beyond the matter of the appellant’s demeanour in the witness-box and we have no doubt, that the instructions given in this case were improper. For the purposes of this case we need pursue the law no further than noting the observation of Mr. Justice Lacourcière for this court in R. v. Owens (1986), 1986 CanLII 4690 (ON CA), 33 C.C.C. (3d) 275 at p. 283, 55 C.R. (3d) 386:
Juries are not invited to make them [observations of a witness in the court-room outside the witness-box] because of the ever present possibility that an adverse inference could be drawn from the observed reactions of a witness in situations where the witness could dispel the inference if given the opportunity to do so.
[61] It is not immediately evident why judge-alone trials do not raise the same “ever present possibility” of an adverse inference when the witness, if given an opportunity, could dispel the inference.
[62] Of course, I accept that triers of fact – judges and juries – can draw inferences about a witness’s credibility from the witness’s demeanour while that witness is testifying. And that is so, as Lacourcière J.A. noted, even though the witness is not given an opportunity to explain any particular mannerisms while testifying. But most witnesses expect to be judged on their demeanour while testifying as well as on the substance of their evidence. They recognize that people communicate both verbally and non-verbally and that the two cannot always be separated. I do not think witnesses have the same expectation when they are not in the witness box.
[63] The third and related concern, which arises in the case before us and which I have just adverted to, is the potential unfairness of the trial judge’s reliance on the accused’s demeanour outside the witness box when the trial judge does not give the accused any opportunity to explain the accused’s courtroom demeanour.
[64] The final concern relates to the first concern. Our court has emphasized that the probative value of an accused’s apparently calm reaction to an allegation of sexual abuse is highly suspect. Accused testify in the unfamiliar and stressful environment of the courtroom. Without a baseline to judge how they react to a stressful situation, their demeanour, even while testifying, is susceptible to misinterpretation. See R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.); R. v. Baltrusaitis (2002), 2002 CanLII 36440 (ON CA), 58 O.R. (3d) 161 (C.A.); and R. v. Bennett (2003), 2003 CanLII 21292 (ON CA), 67 O.R. (3d) 257 (C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 534. And the risk of misinterpretation is even higher when the accused is not testifying, but is simply sitting in the courtroom.
[65] In Owens the trial judge had a baseline – the accused’s own evidence. The trial judge in this case had no baseline at all. He had no evidence how the appellant would ordinarily react to a false allegation, especially one made by a family member. He had no idea even what the appellant was reading while S.M. testified. As counsel for the appellant asked rhetorically in their factum: “Did the appellant stand a better chance if instead of quietly reviewing material he shouted down the complainant, the court, and the Crown?”
[66] Because of these concerns, Owens is best restricted to its facts – to cases in which accused put in issue their normal reaction to stressful situations or serious allegations. Because the appellant did not do so, Owens has little or no relevance to this case.
[67] What then of the trial judge’s finding concerning the appellant’s credibility? I would be troubled by the trial judge’s rejection of the appellant’s evidence if I thought it was based solely or even primarily on the appellant’s demeanour outside the witness box. But I do not think that it was. Even discounting the trial judge’s saving comment, at most he placed modest reliance on the appellant’s courtroom demeanour. I do not think any “manifest unfairness” arises from his having done so. He gave other cogent reasons for rejecting the appellant’s evidence. For example, the trial judge compared the appellant’s cross-examination with his examination-in-chief, and said:
In cross-examination, he was a very different person. I found that he was flippant, he was argumentative, he was unresponsive to questions. He further exhibited a lack of candor when responding to questions. At one point he rebuffed the Crown Attorney for asking longwinded questions. Mr. Larsh did not ask him longwinded questions. On a number of occasions he paused and seemed to be stalling for time before answering a question. That goes to candor. He complained that he didn’t understand questions put to him yet the questions that were put to him were as simple as the ones put to him in-Chief by Mr. McLean.
[68] And significantly, the trial judge’s considered acceptance of the credibility of the complainants’ evidence was itself a reason and compelling explanation for his rejection of the appellant’s evidence: see R. v. D. (J.J.R.)(2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 69, at para. 53.
[69] It would have been better had the trial judge at least alerted the appellant that he may comment on his courtroom demeanour so that the appellant had an opportunity to explain his behaviour. But even though the trial judge did not do so, his modest reliance on the appellant’s demeanour outside the witness box did not cause a miscarriage of justice.
[70] I would not give effect to this ground of appeal.
D. Conclusion
[71] The trial judge’s assessment of the credibility of the complainants and the appellant’s evidence did not cause a miscarriage of justice. I would dismiss the appeal.
Released: December 1, 2014 (“D.D.”)
“John Laskin J.A.”
“I agree Doherty J.A.”
“I agree K. Feldman J.A.”
[^1]: Owens was decided more than 25 years ago. Today, though we still say that a witness’s demeanour may be one indication of the witness’s trustworthiness, we no longer regard it as an “important” one.