Her Majesty the Queen v. P.G.

[Indexed as: R. v. G. (P.)]

Ontario Reports

Court of Appeal for Ontario

MacFarland, Pardu and Trotter JJ.A.

May 3, 2017

138 O.R. (3d) 343 | 2017 ONCA 351

Case Summary

Criminal law — Appeal — Proviso — Summary conviction appeal court judge finding that trial judge had improperly curtailed cross-examination of complainant in key area — Summary conviction appeal court judge erring in applying curative proviso on his own motion — Crown bearing burden of showing provision appropriate — Trial judge's error and impeding accused's ability to make full answer and defence — Not appropriate case for application of proviso.

Criminal law — Bias — Reasonable apprehension of bias — Accused convicted of sexually assaulting his former girlfriend's daughter while they were living together — Case turning entirely on credibility — Complainant recanting her allegations under oath after receiving independent legal advice and then withdrawing her recantation at trial — Trial judge expressing disdain and personal dislike for accused and defence witness in his reasons for judgment — Trial judge describing cross-examination of complainant as "brutal" and "distasteful" despite his failure to intervene in cross-examination while it was occurring — Insulting and intemperate language demonstrating lack of impartiality — Trial judge subjecting accused's evidence to much greater scrutiny than complainant's — Reasonable apprehension of bias existing.

Facts

The accused was convicted of sexually assaulting the daughter of his former girlfriend J while they were living together. The case turned entirely on credibility. J, who was 15 years old at the time of the alleged assaults, recanted her allegations under oath after receiving independent legal advice, and then withdrew her recantation at trial, claiming that she had recanted under pressure from J. J testified as a witness for the defence. The trial judge made negative findings about the credibility of the accused and J. He found that J was the driving force behind the complainant's recantation. The summary conviction appeal court judge dismissed the accused's appeal. He found that the trial judge erred in curtailing the cross-examination of the complainant in a key area. However, on his own motion, he applied the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, finding that there was no substantial wrong or miscarriage of justice. The accused appealed.

Held: The appeal should be allowed.

It is not open to an appellate court to apply the curative proviso on its own motion. The proviso should only be applied upon submission from a party and it is the Crown's burden to show that its application was appropriate. In any event, it was a serious error on the trial judge's part to preclude proper cross-examination in a key area in a case where the complainant's credibility was the central issue. The error impeded the accused's ability to make full answer and defence. Even had the Crown sought to rely upon the proviso, this would not have been an appropriate case for its application.

In his reasons for judgment, the trial judge described the cross-examination of the complainant as a "prolonged and brutal attack on her character", "distasteful", and "a full scale attack on a disturbed and vulnerable teenager who has endured many hardships in her life and yet continues to move ahead in an admirable manner", despite his failure to intervene when the cross-examination was occurring. His disdain and dislike for the accused and J were palpable in his reasons for judgment. His language was intemperate, condescending and sarcastic in the extreme. The accused's and J's evidence was subjected to much greater scrutiny than that of the complainant. The summary conviction appeal court judge erred in failing to find a reasonable apprehension of bias on the part of the trial judge.

Authorities Considered

R. v. S. (R.D.), [1997] 3 S.C.R. 484

Other Cases Referred To

• Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369
• R. v. Bisson, [2010] O.J. No. 3475, 2010 ONCA 556, 258 C.C.C. (3d) 338
• R. v. McMaster, [1996] 1 S.C.R. 740
• R. v. Pétel, [1994] 1 S.C.R. 3
• R. v. R. (R.) (2008), 90 O.R. (3d) 654, [2008] O.J. No. 2468, 2008 ONCA 497

Statutes Referred To

Criminal Code, R.S.C. 1985, c. C-46, ss. 686(1)(b)(iii), 839

Proceedings

APPEAL by the accused from the order of Durno J. of the Superior Court of Justice dated April 11, 2016 dismissing an appeal from the conviction entered on April 2, 2014 by S.D. Brown J. of the Ontario Court of Justice.

Mark C. Halfyard and Breana Vandebeek, for appellant.

Jennifer McKee, for respondent.

The judgment of the court was delivered by

Judgment

MACFARLAND J.A.

[1] The appellant was convicted of three counts of sexual assault by Stephen D. Brown of the Ontario Court of Justice on April 2, 2014. His appeal to the summary conviction appeal court was dismissed by Durno J. on April 11, 2016. The appellant seeks leave to appeal his conviction to this court pursuant to s. 839 of the Criminal Code, R.S.C. 1985, c. C-46. In R. v. R. (R.) (2008), 90 O.R. (3d) 654, [2008] O.J. No. 2468, 2008 ONCA 497, Doherty J.A. provided guidance as to when it will be appropriate to grant leave to appeal [at para. 37]:

In summary leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables -- the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to Appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.

In my view, the issues here raised meet both requirements.

[2] In this court, the appellant proposes two grounds of appeal:

(1) the summary conviction appeal judge (the "SCAC judge") erred in applying the proviso (s. 686(1)(b)(iii) of the Code) proprio motu where its application was not raised by the Crown and in circumstances where its application was inappropriate in any event; and

(2) he erred in failing to find a reasonable apprehension of bias on the part of the trial judge, particularly in view of the difficulties that the SCAC judge found in the trial judge's reasons for judgment.

A. Background

[3] The appellant was charged with three counts of sexual assault against his girlfriend's daughter, T.B., who was 15 years old at the time of the alleged assaults (August 2010). The appellant resided at that time with the complainant and her mother, K.J., while K.J. was the appellant's girlfriend.

[4] The case hinged entirely on the trial judge's credibility assessment. There were serious difficulties with the complainant's evidence, one of the most significant of which was that the complainant had recanted the allegations under oath in an affidavit after having received independent legal advice, and then had recanted the recantation at trial. At paras. 127 through 138 of his reasons, the trial judge listed what he described as "hard questions" in relation to the complainant's evidence.

[5] The defence position was that the complainant had fabricated the allegations, which she first raised with her mother while they were arguing about another topic, in order to deflect the subject matter of the argument. This conversation occurred very soon after her mother and the appellant had ended their relationship and the appellant had returned home to Australia. The appellant ultimately returned to Canada to deal with the charges. Despite the difficulties with the complainant's evidence, the trial judge convicted the appellant.

[6] At trial, the Crown's case was based entirely on the complainant's evidence. The appellant and K.J. testified for the defence. The appellant was convicted on all counts on April 2, 2014, judgment having been reserved for three months. On September 12, 2014, he was sentenced to six months' custody and related orders were imposed.

[7] On September 2, 2015, the appellant's summary conviction appeal was heard. After reserving its decision for seven months, on April 11, 2016 the court released its decision dismissing the appellant's appeal.

[8] Before the summary conviction appeal court, the appellant raised four grounds of appeal:

(1) the verdict was unreasonable and not supported by the evidence;

(2) the trial judge erred in improperly curtailing the cross-examination of the complainant in relation to her understanding of her psychiatric diagnosis;

(3) the reasons for judgment reflected a reasonable apprehension of bias on the part of the trial judge;

(4) the trial judge misapprehended evidence, which he labelled as the trial's "most distasteful" part, concerning the complainant's purported suicide attempts.

[9] In detailed reasons, the SCAC judge rejected grounds 1, 3 and 4. The appellant does not seek leave to appeal to this court from his determination of grounds 1 and 4, only grounds 2 and 3 as noted above are before this court.

B. Issues -- Analysis

(1) Issue #1: The Curative Proviso (Criminal Code, s. 686(1)(b)(iii))

[10] As to the second ground, the SCAC judge's analysis begins at para. 80 of his reasons.

[11] He disagreed with the trial judge's conclusion that the appellant's counsel was, by his question, seeking to elicit hearsay evidence. He concluded his analysis, at para. 84, as follows:

In these circumstances, I am inclined to the view that in these circumstances the trial judge erred in preventing counsel from cross-examining on the question he said he wanted to ask in the second portion of the admissibility argument. However, I also find that the error occasioned no substantial wrong or miscarriage of justice: s. 686(1)(b)(iii).

And further that although the evidence in the case was far from overwhelming, the error was a minor one that could not have impacted on the verdict.

[12] Defence counsel had asked the complainant what she understood her psychiatric diagnoses to be -- and not what her psychiatric diagnoses were in fact. The point of the question related to certain evidence that the defence had obtained from the complainant's social media accounts.

[13] In my view, the summary conviction appeal judge erred when he resorted to the proviso to, in effect, excuse the trial judge's error in curtailing defence counsel's cross-examination. The law is clear that it is not open to an appellate court to apply the curative proviso on its own motion: R. v. Bisson, [2010] O.J. No. 3475, 2010 ONCA 556, 258 C.C.C. (3d) 338, at para. 2. As noted in Bisson, the Supreme Court has stated clearly that the proviso should be applied only upon submission from a party: R. v. Pétel, [1994] 1 S.C.R. 3, [1994] S.C.J. No. 1, at p. 18 S.C.R. A review of the transcript of the appeal proceedings demonstrates that the Crown at no time relied on the proviso.

[14] I do not accept the Crown's position that such reliance was implicit. To do so in this case would mean, in effect, that the Crown could rely on the proviso in every case without the necessity of making an explicit argument that it was relying on the proviso. In R. v. McMaster, [1996] 1 S.C.R. 740, [1996] S.C.J. No. 31, at para. 37, Lamer C.J.C. noted:

The respondent has not raised s. 686(1)(b)(iii) of the Code in argument. As I held R v. Petel, [1994] 1 S.C.R. 3 at p.17, "[t]he Crown has the burden of showing that this provision is applicable . . . This court cannot apply it proprio motu."

[15] Were I to accept the Crown's position on this point, I would, in effect, be relieving the Crown of the burden that the Supreme Court has said that it bears.

[16] Therefore, it was an error of law for the SCAC judge to rely on the proviso.

[17] This was not an overwhelming case; there were serious issues with the complainant's evidence -- not the least of which was her affidavit sworn in 2012 to the effect that the allegations she had made against the appellant were untrue. This affidavit had been prepared with the assistance of a lawyer retained to provide independent advice to her. She then recanted the content of that affidavit in her evidence at trial.

[18] The thrust of the defence position was that the complainant fabricated the allegations. Her credibility was the key issue. To preclude proper cross-examination in a key area was a serious error on the trial judge's part. The error impeded the appellant's ability to make a full answer and defence. Even if the Crown had raised the proviso in argument, this would not have been an appropriate case for its application. The error was not a minor one.

(2) Issue #2: Reasonable Apprehension of Judicial Bias

[19] The second ground of appeal raised in this court is that the SCAC judge erred by failing to find that the trial judge's reasons for judgment disclosed a reasonable apprehension of bias that tainted the proceedings and rendered the appellant's trial unfair.

(a) Legal Principles

[20] Our Supreme Court has held that "an allegation of judicial bias raises such serious and sensitive issues that the basic interests of justice require appellate courts to retain some scope to review that determination": R. v. S. (R.D.), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, at para. 102.

[21] In S. (R.D.), the issue of reasonable apprehension of bias arose, like here, as the result of statements made in the reasons for judgment released by the trial judge. The first level of appeal was to the Supreme Court of Nova Scotia (Trial Division). There, the court concluded that the reasons for judgment did disclose a reasonable apprehension of bias and that, as a result, a new trial was warranted. That decision was, in turn, appealed to the Nova Scotia Court of Appeal, where the decision of the summary conviction appeal judge was upheld in a 2 to 1 decision. In the Supreme Court of Canada, there was but one issue:

Did the comments made by Judge Sparks in her reasons give rise to a reasonable apprehension of bias?

[22] In the Court of Appeal and in the Supreme Court of Canada, the issue of deference was raised. It was argued that the summary conviction appeal judge had inappropriately re-examined and re-determined issues of credibility. The Court of Appeal held that, since the summary conviction appeal judge's decision was based on the finding of a reasonable apprehension of bias, she did not err in law in declining to defer to the trial judge's findings. In response to the same argument in the Supreme Court of Canada, the court noted [at paras. 98, 99, 101 and 102]:

Before dealing with the issue of apprehended bias, it is necessary to address an argument raised by the appellant and the interveners African Canadian Legal Clinic et al. They stressed that this appeal turns entirely on findings of credibility. There were only two witnesses, and their evidence was contradictory. Judge Sparks' role was therefore simply to determine the issue of credibility. The appellant and the interveners argued that it is a well-established principle of law that appellate courts should defer to such findings, and that Glube C.J.S.C. improperly reviewed Judge Sparks' findings of credibility. In my view, these submissions are not entirely correct.

If actual or apprehended bias arises from a judge's words or conduct, then the judge has exceeded his or her jurisdiction. See Curragh, supra, at para. 5; Gushman, supra, at para 28. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway, or by appellate review of the judge's decision. In the context of appellate review, it has recently been held that a "properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead inexorably to the decision that a new trial must be held": Curragh, supra, at para. 5.

. . . it is somewhat misleading to characterize the issue in this appeal as one of credibility alone. If Judge Sparks' findings of credibility were tainted by bias, real or apprehended, they would be made without jurisdiction, and would not warrant appellate deference.

A judicial determination at first instance that real or apprehended bias exists may itself be worthy of some deference by appellate courts: Huerto v. College of Physicians and Surgeons (1996), 133 D.L.R. (4th) 100 (Sask. C.A.), at p. 105. However, an allegation of judicial bias raises such serious and sensitive issues that the basic interests of justice require appellate courts to retain some scope to review that determination.

[23] In S. (R.D.), both the Nova Scotia Court of Appeal and the Supreme Court reviewed the reasons of the trial judge de novo. I infer from their decisions that because of the importance of the issue and the fact that it raises a question of law, this court must review the reasons of the trial judge anew and no deference is owed to the determination of the SCAC judge on this issue.

[24] The threshold for finding real or perceived bias is high. At para. 113 in S. (R.D.), the court noted that "an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice".

[25] The test for finding a "reasonable apprehension of bias" is a matter of well-settled law: "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude": Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, at p. 394 S.C.R.

(b) Relevant Facts

[26] This was a hard-fought trial and it was not an overwhelming one for the Crown. Some background is necessary to understand the dynamic underlying the trial.

[27] As indicated above, K.J. is the complainant's mother. The appellant was her live-in partner at the time the sexual assaults were alleged to have occurred. When the allegations of sexual assault came to light, a month or two after they were alleged to have occurred, K.J.'s relationship with the appellant had ended and he had returned home to Australia. The complainant was 15 years old at the time and the three alleged assaults all occurred between August 16, 2010 and September 6, 2010.

[28] At this time, K.J. lived with her two daughters, the complainant and her younger sister, as well as the appellant, whom she had met in October or November 2007. The appellant moved in with K.J. and her daughters in March 2008.

[29] K.J. and her husband had separated in January 2007, and the split appears to have been acrimonious, as was the relationship between K.J. and her older daughter, the complainant, from time to time.

[30] The complainant's statement to the police was video-recorded on October 27, 2010; the appellant had returned to Australia on October 20, 2010.

[31] K.J. had doubts about her daughter's allegations against the appellant within a day or two. It was her evidence that in August 2011, the complainant told her that she wanted to go to the police and tell them that she had lied. K.J. also reported that on occasions prior to this, in the course of arguments with her mother, the complainant would yell, "Well, then fine, Mom, I will go to the police and tell them I lied. Will that make you happy?"

[32] In October 2011, on K.J.'s evidence, she thought that her relationship with the appellant was over. She contacted and retained Philip Benayon, a lawyer, to assist the complainant with recanting her allegations to the police. Most of the communication between Benayon and the complainant was by telephone or by e-mail. The first and only time when Benayon met the complainant in person was on April 4, 2012, when he visited her home, spoke with her in private about the affidavit that he had prepared in which she would recant the allegations that she had made against the appellant in her October 27, 2010 police statement, and then attested to her signature of the affidavit. The complainant said that she signed that affidavit only because of the unrelenting pressure put on her by her mother to do so. In May 2012, the complainant left her mother's home and moved in with her father and his wife. On the complainant's evidence, from that time until the time of the trial she rarely saw her mother. The appellant returned to Canada in August 2012 to face the allegations and to resume his relationship with K.J.

[33] In May 2013, the complainant advised her lawyer that the affidavit she had sworn was false and that the allegations she made against the appellant were true.

[34] The three alleged incidents of sexual assault involved touching of the complainant's breasts, leg, buttocks and vaginal areas, all over her clothing. On one occasion, the appellant allegedly kissed her on her lips. She stated that, on each occasion, she told him to stop or pushed him away.

[35] With this background in mind, I turn to the reasons for judgment and the impugned parts thereof.

(c) Cross-Examination of the Complainant

[36] At para. 35 of his reasons, the trial judge wrote of the complainant: "T.B. was cross-examined over a two-day period in a vigorous and somewhat brutal fashion" and, at para. 39, "Mr. [B.] virtually scoffed at her testimony that she had tried to kill herself . . .", and, at para. 42, the trial judge described the complainant's cross-examination as a "prolonged and brutal attack on her character".

[37] The highly critical characterization of defence counsel's cross-examination in his reasons for conviction contrasted with the trial judge's failure to intervene in that cross-examination while it was occurring, clearly troubled the SCAC judge.

[38] And in the course of counsel for the appellant's submissions on the summary conviction appeal, after highlighting some of the language used by the trial judge to describe the defence counsel's cross-examination, such as "brutal", "no holds barred", "distasteful", "a full scale attack on a disturbed and vulnerable teenager", and that the cross-examiner had "mocked and belittled" the complainant -- the SCAC judge intervened and asked:

The Court: Look, doesn't he have an obligation during the trial to raise those issues?

The, it's strange but it's in the preliminary inquiry section, that a judge has an obligation to interject and I'm certain there is case law with respect to trials that seems to me that if you've got that obligation . . .

. . . to say nothing?

Until the reasons and then, subject to the Crown's argument . . .

. . . as all of which it would be close to a strongly worded judgment as I've ever seen[.]

[39] Yet, in his reasons delivered several months later, after having described some of the trial judge's comments in relation to defence counsel's cross-examination as "ill-advised" and "clearly unjustified and improper" (para. 173), he concluded [at para. 181]:

While His Honour should have intervened in the cross-examination on his analysis of it and he should have given counsel the opportunity to address his concerns in submissions, I am not persuaded that either results in or contributed to a reasonable apprehension of bias.

(d) Attack on Defence Witnesses

[40] The trial judge's disdain for the appellant is palpable in reading the reasons for judgment. He stated at the very outset of his analysis [at para. 45]:

[The appellant], although quick to describe himself as an "Olympic" coach, was simply a coach that was qualified to coach competitive swimming athletes up to and including Olympic swimming. There is a dearth of evidence to support him being actively involved in high level swimming coaching despite his eagerness to be classified as such.

[41] The appellant's occupation was irrelevant to the issues, but was a prelude to what would follow.

[42] In considering the appellant's evidence in relation to the events that gave rise to the second alleged incident of sexual assault, he said that the appellant recalled "with vivid exactitude and precision details that can only be illustrated by reproducing in its entirety this feat of amazing memory" (para. 53).

[43] There follows about four pages of transcript from the trial proceedings and then, at paras. 55-57:

In cross-examination the defendant went into more florid detail as to where people were standing and seated and other details of this event that were exceptional in their ordinariness.

P.G. gave similarly detailed evidence that explained in a calculated and exculpatory way the complainant's allegations of him pushing her . . .

This remarkable clarity of memory was shaken to its foundations, however, when he was confronted with his lie that he had not communicated with the lawyer of T.B. when he was in the process of drafting an affidavit that recanted her allegations.

[44] The trial judge reproduced a further six pages of transcript to detail the exchange between the appellant, defence counsel and the Crown in relation to a telephone call the appellant is said to have made to Mr. Benayon, the complainant's lawyer. The trial judge noted that the evidence "should be reproduced in its entirety, as it is essential to [the appellant's] credibility".

[45] In his evidence, the appellant had denied ever having a conversation with Mr. Benayon. There was a notation in Mr. Benayon's file, however, in which he indicated that he had spoken to the appellant on October 11, 2011; Mr. Benayon was not called as a witness. The appellant testified that while he had no memory of ever communicating with Mr. Benayon by phone, e-mail or text message, but that it was possible that he had communicated with the lawyer. He explained that he was under a great deal of stress because of these allegations. He also acknowledged providing information to K.J. to be passed on to Mr. Benayon.

[46] This incident played a big part in the trial judge's analysis of the appellant's credibility.

[47] After having described the trial as "a full-scale attack on the credibility of a disturbed and vulnerable teenager who has endured many hardships in her life and yet continues to move ahead in an admirable manner" (para. 121, emphasis added), he described the appellant's testimony as follows [at paras. 143-46]:

The defendant testified like a video recorder, knowing and relating every miniscule detail of what were mundane events with a precision that was surreal and at the same time contrived. He had obviously put considerable effort in an attempt to mislead this Court.

He intentionally lied under oath when he was asked whether he had in anyway communicated with Mr. Benayon and stated positively that he had not. When he was confronted with the evidence that he had called his accuser's lawyer from Australia, his attempt to wiggle out of that lie was pathetic and enlightening to me.

He went from a precise witness who would remember every mundane detail of events that occurred years ago to someone who was trying to salvage his credibility by saying that he recently forgot his keys in his car because of the trauma that these accusations have caused him. He even went so far as to suggest that his doctor said that he got throat cancer caused by this stress.

He cried at one point when discussing that he coached a girl in Australia that had been raped and then committed suicide. This excerpt is found at page 114 of the August 30th transcript. This response was, in my view, made to solely elicit sympathy. It was staged and dramatic and insecure. I viewed his crying as being nothing more than crocodile tears. They have large crocodiles in Australia.

[48] It is one thing to make negative credibility findings against a witness, but the language used by the trial judge is intemperate, condescending and sarcastic in the extreme. His extreme dislike of the appellant is apparent; he lacks impartiality. As the SCAC judge noted in his analysis of the trial judge's reasons [at paras. 159 and 166]:

First, the trial judge's comments about the appellant being Australian, crocodiles and tears were most inappropriate and totally unjustified.

. . . His Honour's way of expressing his opinion that the appellant was trying to create sympathy by crying about a swimmer's suicide was most inappropriate[.]

[49] The trial judge next turned to the evidence of K.J., where his commentary was also particularly inappropriate. He first noted the discrepancy between K.J.'s evidence and that of the appellant about when they met, noting that her evidence was "contrary to the defendant's exquisitely detailed account of how they met on Halloween in 2007" (para. 65). On the appellant's evidence, they would have met in early November of 2007, whereas on her evidence it was mid-November. He justified his attention to this discrepancy as follows: "It is a small point, but it is one worth mentioning because of the defendant's habit of giving his evidence with absolute certainty that I found off-putting on more than one occasion" (para. 66, emphasis added).

[50] First, whether they met first in early November or mid-November of 2007 is, in this case, an insignificant difference and was utterly irrelevant to the issues raised. A trial judge's duty is to try the case impartially -- without favour or prejudice. His personal feelings about the appellant were irrelevant and ought not to have played any role in his decision.

[51] The trial judge noted early in his consideration of K.J.'s evidence that she "has an abiding hatred for her ex-husband that is evident throughout her testimony" and that her evidence "veered off topic so she could get a dig in at her ex-husband" (para. 72).

[52] In relation to the retainer of Mr. Benayon, he noted, at para. 92:

The trail of emails between K.J. and Mr. Benayon clearly indicates the clear bias that this witness shows to her daughter. They also, in my view, show how actively the defendant was in marshalling a defence to the accusations in conjunction with K.J.

[53] The trial judge took particular exception to the e-mail sent by K.J. to the appellant, about one week after the complainant had revealed that he had "touched her", wherein K.J. said, "I have been told that it is a lie, that you didn't touch my girl. I still love you even if you did. Please tell me you still love me." He opined, "[W]hat sort of person would write that she would still love him even if he did touch her daughter? That to me is clear evidence as to what type of mother this witness was to her daughter" (para. 96, emphasis added). And, after having referenced another e-mail communication between the two [at para. 98]:

These series of emails contained in these exhibits show nothing other than a mother intent on discrediting her daughter in an effort to resume her flawed relationship with this defendant.

Later, he concluded [at para. 106]:

The rest of this witness' evidence in cross-examination was replete with inconsistencies and evidence that showed her undying willingness to put this flawed love affair with this man above the best interests of her daughters.

[54] Subsequently, in the trial judge's "Analysis" section, he summarized the appellant's testimony in four paragraphs and K.J.'s in three, while spending some 18 paragraphs on the complainant's.

[55] Of K.J., he said [at paras. 147-49]:

K.J. was such a biased and unbelievable and unpleasant witness that she ranks in my top ten of witnesses in my entire career both as a lawyer and as a judge that I can say that I do not believe a word that she says.

She relentlessly pressured her daughter to recant her allegations until she was successful in that quest. She constantly said to her "I know you are lying". She hired a lawyer and fed him all sorts of information, in conjunction with her scheming with the defendant, that would paint her daughter in the worst possible light, all in an effort to resume a flawed and poisonous relationship that allowed her to pick up this relationship with her hero while throwing her own daughter's welfare to the wind.

She would say anything to paint her boyfriend in a positive light and her daughter in a negative one. She was utterly despicable in my view and a totally unbelievable witness.

[56] In considering the complainant's evidence, he responded as follows to the defence assertion that it was difficult to understand why the complainant would sit on the appellant's lap and give him a hug shortly after he allegedly had assaulted her [at paras. 153 and 154]:

To answer the more difficult question as to why she would go and sit on the defendant's lap and give him a hug when he had recently sexually assaulted her, I agree that this is facially illogical.

However, when taken in the context of the life that she had at that time it does become understandable. This was a child who was a victim of a vicious separation and divorce, an uncaring and somewhat deranged mother who constantly yelled, screamed and caused havoc in the household[.]

[57] The use of this intemperate and insulting language was inappropriate and uncalled for and demonstrates a clear lack of impartiality. The trial judge's task is to impartially assess the witness' credibility. It is not part of his role to denigrate her character. It is unnecessary in making a finding of credibility to launch a personal attack of this nature. The judge's personal opinions about the witness have no role in that task. We instruct jurors every day that they are to judge cases with neither sympathy nor prejudice. Here, it is apparent that this trial judge let his personal feelings about the appellant and his witness overtake his objectivity.

[58] The detailed scrutiny given to minor discrepancies in the appellant's evidence, such as forgetting a telephone conversation that apparently took place two years earlier, and the inconsistency between the appellant's testimony and K.J.'s on when they met for the first time, stands in stark contrast to the scrutiny given to the complainant's evidence. She had sworn an affidavit wherein she had recanted the allegations she made in relation to the appellant approximately 17 months after she had made them. The entire issue is resolved in three short paras., 161-63. She gave her evidence "in an honest and straightforward and believable manner. She went along with her mother's overwhelming persistent and unrelenting pressure to recant" (para. 161, emphasis added).

[59] The trial judge concluded that K.J. was the driving force behind the recantation, having intended to exonerate her boyfriend and "clear the path" for his return (para. 162).

[60] The complainant's evidence was that the first time she saw her affidavit was when Mr. Benayon appeared with it at her home and she signed it. On cross-examination, a series of e-mails was put to her that made it clear she had seen an electronic draft or drafts of the affidavit several weeks before she signed it and had had input into the content of it by suggesting changes that were made to it.

[61] The complainant was 15 years old at the time of the alleged assaults, 17 when she signed the affidavit and 18 when she testified. She was not a child, and Mr. Benayon was retained to independently advise her -- although his financial retainer was covered by K.J., the record discloses that he met and consulted with the complainant independently, as he was obliged to do.

[62] Yet, the trial judge simply accepted that the affidavit was signed because of the persistence of K.J. and he found no intent to deceive on the complainant's part when initially she said she hadn't seen the affidavit until the day she signed it.

[63] The appellant was written off as a liar and all his evidence discredited when he did not recall a telephone conversation with Mr. Benayon.

[64] It is difficult on this record, in view of the intemperate and inappropriate language used in relation to the appellant and K.J., not to conclude that their evidence was treated differently and was subjected to much greater scrutiny than was that of the complainant.

[65] In my view, a reasonable person, properly informed, viewing the matter realistically and practically and having thought the matter through, would inevitably conclude that this matter was not decided fairly.

C. Disposition

[66] I would grant leave to appeal and allow the appeal, set aside the conviction and related orders and order a new trial.

Appeal allowed.

End of Document