COURT OF APPEAL FOR ONTARIO
CITATION: R. v. K.M., 2015 ONCA 582
DATE: 20150827
DOCKET: C57329
Feldman, Simmons and Juriansz JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
K.M.
Appellant
K.M., acting in person
Christine Bartlett-Hughes, for the respondent
Mark Halfyard, appearing as duty counsel
Heard: March 9, 2015
On appeal from the conviction entered on March 1, 2013 and the sentence imposed on June 20, 2013 by Justice Meredith Donohue of the Superior Court of Justice, sitting without a jury.
Juriansz J.A.:
[1] This in-person appeal came before the Court at the inmate sitting on March 9, 2015. The appellant was charged that he sexually assaulted and physically assaulted the complainant on April 26, 2010. The complainant is the mother of the appellant’s daughter. At the trial, the complainant testified she could not recall the incident that she had described in her statement to the police and about which she had testified at the preliminary inquiry. A voir dire was held and the trial judge allowed the Crown’s application to admit the complainant’s testimony at the preliminary inquiry for the truth of its contents, but did not admit her statement to the police. The appellant was convicted on both charges and sentenced to two years in the penitentiary. He appeals the conviction for sexual assault.
[2] Duty counsel on behalf of the appellant submitted that the trial judge committed two errors:
The trial judge used the complainant’s demeanour while recanting to support the appellant’s guilt, rather than considering the inability to assess demeanour at the preliminary inquiry as reducing the weight to be given to the hearsay statements.
In concluding that the Crown had proven the case beyond a reasonable doubt, the trial judge improperly relied on the complainant’s demeanour at trial when recanting her testimony from the preliminary inquiry.
[3] At the hearing on March 9, 2015, the panel indicated it was unable to assess these arguments without the full trial transcript. The panel instructed that the full trial transcript be obtained and the parties file supplemental written submissions. The filing of those submissions was completed on July 29, 2015.
(1) Use of the complainant’s demeanour while recanting the preliminary inquiry testimony
[4] The trial judge was entitled to consider the demeanour of the complainant when assessing her testimony at trial that she could no longer recall what happened on April 26, 2010. The trial judge was entitled to consider the complainant’s demeanour at trial in determining whether her professed failure to recall stemmed from her stated wish to reconcile with the appellant. This was significant because at trial the complainant did not testify the events did not transpire as described in her preliminary inquiry testimony. Rather, in explaining her inability to recall, she gave evidence that could be taken to suggest the incidents occurred. For example, she testified that she wanted everybody to “put this behind, so we can move, move on from this”, that when she gave her police statement she spoke “about what happened”, and that the incident was an “isolated thing” that “got blown pretty much out of proportion.”
[5] I am not persuaded that the trial judge erred in the way she considered the complainant’s demeanour at trial.
(2) Reliance on the evidence taken during the voir dire in determining the ultimate reliability of the complainant’s preliminary inquiry evidence
[6] In her testimony at the trial proper, the complainant testified that she had no recollection of the events. However, during the voir dire she testified that she had told the truth at the preliminary inquiry. She said she “would rather have the charges dropped, because [she had] forgiven [the appellant] for what’s happened.” In her analysis, the trial judge relied on the complainant’s testimony she had told the truth at the preliminary inquiry. Duty counsel points out that the Crown and the defence did not explicitly agree that the evidence given on the voir dire should be admitted as part of the evidence of the trial and submits that the trial judge erred by relying on evidence given at the voir dire.
[7] I do not agree. The transcript makes evident that the parties proceeded on the tacit understanding that they intended that the evidence given at the voir dire would be admitted at trial. It is evident because defence counsel made extensive reference to the voir dire evidence in his closing submissions. In fact, it seems to me that defence counsel, in his cross-examination of the complainant at trial, had the complainant adopt her evidence given on the voir dire. He asked her: “the answers you’ve given over the past few days[,] are they the truth?” Read in context, it seems clear to me that the answers given by the complainant on the voir dire were within the ambit of his question. The complainant answered “yes.”
[8] The trial judge did not err by proceeding on the basis that defence counsel had tacitly agreed the voir dire evidence was admissible at trial.
Conclusion
[9] I would dismiss the appeal.
Released: August 27, 2015 (KF)
“R.G. Juriansz J.A.”
“I agree K. Feldman J.A.”
“I agree Janet Simmons J.A.”