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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-12-08

Docket: C58684

Panel: Watt, Epstein and Brown JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

G.H. Appellant

Counsel

For the Appellant, G.H.: Anthony Moustacalis

For the Respondent: Mabel Lai

Hearing and Appeal

Heard: September 8, 2017

On appeal from the conviction entered on August 22, 2013 by Justice Mary Jo Nolan of the Superior Court of Justice.

Decision

BROWN J.A.:

I. OVERVIEW

[1] The appellant, G.H., appeals from his conviction on one count of sexual assault contrary to s. 271 of the Criminal Code.

[2] The appellant had been charged on a sixteen-count indictment alleging a variety of sexual offences against three teenage girls under the age of 16: M.F., M.Z., and S.B. The appellant pleaded not guilty to all counts. He testified, denying the allegations.

[3] At the conclusion of the evidence, the Crown invited the trial judge to dismiss the 13 counts concerning M.F. and M.Z. on the basis the evidence did not allow the Crown to meet the requisite standard of proof. The trial judge did so.

[4] The appellant also requested a directed verdict dismissing a charge of sexual exploitation in respect of S.B. In her reasons delivered August 22, 2013, the trial judge found the appellant not guilty on that count because she could not find he was in a position of authority or trust in relation to S.B. The remaining two counts involved allegations of sexual assault and sexual interference against S.B. occurring on the same day at the appellant's house. The trial judge acquitted the appellant of sexual assault, but found him guilty of sexual interference.

[5] On March 24, 2014, some seven months after convicting the appellant of sexual interference and following submissions from the Crown and the defence, the trial judge set aside the finding of guilt on the count of sexual interference and substituted a finding of guilt on the count of sexual assault. She imposed a suspended sentence and two years' probation. The appellant appeals his conviction.

II. THE EVIDENCE

[6] S.B. was 15 years old in the summer of 2010, when the alleged events occurred. At the time, S.B.'s best friend was M.Z. S.B. also knew the other complainant, M.F., but at the time of the trial, they had not been friends for a few years.

[7] The events giving rise to the sexual assault and sexual interference counts were alleged to have taken place one day in August, 2010 at the appellant's home. On that day, S.B., M.Z., and the appellant's young son were swimming and boating with the appellant. The events underpinning the sexual interference count preceded those on which the sexual assault charge was based.

The sexual interference count: the kiss

[8] S.B. testified that as they were getting ready to eat outside, she went into the kitchen to get some salt and pepper. The appellant was there. According to S.B., the appellant hugged her tightly for a bit and, as she backed away, kissed her on the lips. S.B. said nothing and walked back outside.

[9] S.B. acknowledged the appellant had hugged her before, which she had treated as innocent signs of affection. However, this hug was tighter, and she said it felt like he had invaded her space. S.B. testified the appellant had not kissed her before.

[10] The appellant stated he may have been alone with S.B. in the kitchen in passing, but he denied kissing her on the lips.

The sexual assault count: the whipped cream

[11] S.B. also testified that following the dinner, she was in the kitchen with M.Z., the appellant's son, and the appellant, who was making sundaes. The appellant sprayed some whipped cream from a can into his son's mouth. According to S.B., the appellant then sprayed some on her chest, covering an area about six inches long above her breasts.

[12] S.B. stated she went into the bathroom to wipe off the whipped cream. The appellant gave her a face cloth and then allegedly said, "Why don't you let me lick it off instead?" S.B. testified the appellant moved towards her. S.B. told him no. She wiped off the cream with the face cloth and left the bathroom.

[13] S.B. testified the appellant deliberately sprayed her with the whipped cream. Although everyone laughed at the time, when the appellant made the comment in the bathroom about licking the whipped cream off her chest she thought it was a sexual thing.

[14] The appellant acknowledged that following dinner, they went into the kitchen to make sundaes for dessert. His son asked him to squirt some whipped cream into his mouth, which he did. Everyone laughed. The appellant then asked S.B. if she wanted some. She said she did. The appellant reached over to spray the cream in her mouth, but missed. He testified about a tablespoon of whipped cream landed six to eight inches above her breasts. He apologized and everybody laughed.

[15] The appellant told S.B. to use the washroom and gave her a face cloth from the linen closet. He was at the entrance to the bathroom. The appellant denied offering to lick off the whipped cream. He said the squirting of the whipped cream on S.B.'s chest was accidental.

III. THE TRIAL JUDGE'S REASONS

[16] The trial judge commenced her analysis by reviewing the general principles concerning the burden of proof, reasonable doubt, and the assessment of credibility and reliability. As well, the trial judge charged herself on the principles in R. v. W.(D.), [1991] 1 S.C.R. 742.

[17] The trial judge first dealt with the sexual exploitation charge. On the facts of the case, she could not find the appellant was in a position of authority or trust in relation to S.B. Accordingly, she found the appellant not guilty of sexual exploitation.

[18] The trial judge then turned to events of August 2010. She first considered the sexual assault count involving the whipped cream. While not necessarily believing the appellant's version of events regarding the whipped cream, the trial judge concluded his explanation left her with a reasonable doubt as to whether the act was intentional and had taken place in circumstances of a sexual nature. She therefore found the appellant not guilty.

[19] As to the sexual interference count - the kiss on the lips - the trial judge did not believe the appellant's evidence. She concluded it did not raise a reasonable doubt. Looking at the totality of the Crown's evidence regarding the count, the trial judge found S.B. to be a credible and believable witness and her evidence compelling. Consequently, the trial judge was satisfied beyond a reasonable doubt that the appellant kissed S.B. on her lips with his lips, and she convicted him of sexual interference.

IV. ISSUES ON APPEAL

[20] The appellant advances three grounds of appeal:

(i) The trial judge improperly relied on the evidence of Ms. L.A., a witness called to testify about events involving M.F., to convict the appellant on a count involving S.B.;

(ii) The trial judge misapplied the burden of proof; and

(iii) The trial judge gave inadequate reasons for rejecting the evidence of the appellant on one count, while accepting it raised a reasonable doubt on another.

V. FIRST ISSUE: DID THE TRIAL JUDGE IMPROPERLY USE L.A'S EVIDENCE?

The issue stated

[21] At trial, the Crown called L.A. as a witness. Her evidence dealt with the events surrounding a July 2010 barbecue hosted by the appellant at his house.

[22] M.F. testified that she attended the barbecue with her parents. L.A. was also present. According to M.F., the appellant had asked her parents whether she could babysit as he planned to go out with friends. M.F.'s mother also testified the appellant had asked if M.F. could babysit because he was going out with his then-girlfriend, L.A. M.F. alleged that after her parents left the appellant's house, the appellant sexually assaulted her.

[23] L.A. testified she left the appellant's house around 11 p.m. and went home. L.A. did not recall receiving a call from the appellant that evening inviting her to go to the casino. She did recall receiving such an invitation from the appellant at a later date.

[24] The appellant agreed in his examination-in-chief that he had asked M.F. to babysit on the evening of the July barbecue. He planned to go to the casino with friends. On the way to the casino, he called L.A. to ask whether she wanted to join him. She declined, and the appellant returned home. He denied assaulting M.F. that evening.

[25] During the course of the trial judge's review of the evidence, she briefly summarized the appellant's evidence about the events leading up to his arrest. She referred to the appellant's attendance at M.F.'s home, his discussion with M.F.'s mother and father, and a subsequent email from M.F.'s father:

[W]ho asked [the appellant] where he was the night [M.F] said the rape occurred and [the appellant] told [M.F.'s father] that he was at [L.A.'s] house just off Banwell Road. When she testified, [L.A.] denied being with [the appellant] that night.

[26] The appellant submits two errors resulted from the trial judge's reference to L.A.'s evidence. First, L.A. was called by the Crown to give evidence in respect of a count concerning the appellant's conduct toward M.F. By the time the trial judge came to consider the counts involving S.B., she had dismissed, at the Crown's invitation, the counts involving M.F. Therefore, the appellant submits, the trial judge relied on inadmissible evidence of a collateral fact in convicting the appellant.

[27] Second, the Crown had pointed to the evidence of L.A. in support of its submission the trial judge should find the appellant had fabricated an alibi with respect to M.F.'s allegation. Since the trial judge did not find that the appellant had fabricated or concocted an alibi to escape criminal liability, the appellant argues she was not permitted to consider L.A.'s evidence.

[28] In response, the Crown contends the trial judge's single sentence reference to L.A.'s evidence constituted no more than a description of the events leading to the appellant's arrest. Moreover, although a credibility finding on one count could properly inform the trial judge's credibility assessment on another, in the result the trial judge made no finding in respect of L.A.'s evidence and did not rely on it to convict the appellant.

Analysis

[29] When the trial judge's reasons are read in their entirety, it is apparent her reference to L.A.'s evidence merely formed part of her recitation of the background narrative. Her subsequent analysis of the evidence leading to her credibility findings on the two counts concerning S.B. does not contain any reference to L.A.'s evidence. The reasons do not disclose any reliance by the trial judge on that evidence.

[30] Further, the record does not support the appellant's submission to the effect the trial judge should not have made any reference to L.A.'s evidence because the charges involving M.F. had been dismissed at the invitation of the Crown. That submission ignores how the trial unfolded and how his trial counsel used that evidence in closing submissions.

[31] After the conclusion of the evidence, the Crown invited the trial judge to dismiss the charges involving M.F. Final submissions then ensued. Crown counsel limited his submissions to the remaining counts concerning S.B. Nevertheless, in his closings in chief and in reply, appellant's trial counsel referred to L.A.'s evidence, submitting the appellant had adequately explained inconsistencies between his statement to the police and his evidence at trial concerning his contact with L.A. following the barbecue.

[32] In those circumstances, I would not give effect to this ground of appeal.

VI. SECOND ISSUE: DID THE TRIAL JUDGE MISAPPLY THE BURDEN OF PROOF?

[33] In his factum, the appellant submitted the trial judge misapplied the burden of proof and effectively shifted the burden onto the defence to disprove guilt. He argued the sequence in which the trial judge examined the evidence disclosed a misapplication of the W.(D.) principles. The appellant did not address this issue in oral argument.

[34] I am not persuaded by this submission. The trial judge correctly instructed herself on the W.(D.) principles. Several times during her analysis she repeated that the Crown bore the onus to prove each count beyond a reasonable doubt.

[35] On the sexual assault count involving the whipped cream, the appellant does not dispute that the trial judge's reasons disclose a proper application of the W.(D.) principles. However, the appellant takes issue with how the trial judge conducted her credibility analysis on the sexual interference charge – the alleged kiss on the lips. He argues the trial judge committed a "classic" W.(D.) error by focusing on whether or not the appellant could provide an explanation that disproved the charge, instead of on whether the totality of the evidence supported guilt beyond a reasonable doubt.

[36] I would not give effect to this argument. The trial judge first found she did not believe the appellant's evidence; nor did it raise a reasonable doubt. She then considered the "totality of the evidence presented by the Crown with respect to that count, keeping in mind that the onus is always on the Crown to prove each element of the offence beyond a reasonable doubt." She examined the complainant's evidence from that perspective and found it "compelling". That led her to conclude the Crown had established beyond a reasonable doubt that the appellant kissed S.B. on her lips for a sexual purpose.

[37] Having reached that conclusion, the trial judge went on to state that her chain of reasoning should not be taken to have reversed the onus of proof. After reiterating that the burden of proof remained on the Crown throughout, the trial judge stated:

I have not rejected [the appellant's] evidence because of [S.B.'s] evidence. I have rejected [the appellant's] evidence because it is not credible. However, my belief in [S.B.'s] evidence is an additional factor which strengthens my conclusion that [the appellant's] denial does not raise a reasonable doubt.

[38] When the trial judge's reasons are read in their entirety, they disclose she did not lose sight of the key issue: whether the evidence as a whole established the accused's guilt beyond a reasonable doubt: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23. She did not misapply the principles in W.(D.). I would not give effect to this ground of appeal.

VII. THIRD ISSUE: WERE THE TRIAL JUDGE'S REASONS INSUFFICIENT?

The issue stated

[39] Although the appellant acknowledges that the credibility findings of a trial judge are entitled to a high degree of deference, he submits the trial judge failed to explain sufficiently why she rejected his denial of kissing S.B, while finding that his explanation about the whipped cream incident raised a reasonable doubt. He submits the trial judge offered no reasons for her "abrupt finding" not to believe the appellant's denial of kissing S.B.

[40] Those circumstances, he argues, resemble the situation in R. v. Wright, 2013 MBCA 109, (2013) 305 C.C.C. (3d) 556 where, at para. 45, the Manitoba Court of Appeal stated: "Fundamentally, the trial judge's reasons are inadequate because they do not explain how he could disbelieve the complainant with respect to whether the sexual activity was consensual, but believe her with respect to the issue of revocation of consent." The appellant submits this court should find the trial judge failed to provide sufficient reasons for her credibility findings.

[41] The Crown argues the trial judge provided considered reasons for accepting S.B.'s evidence in its entirety. Doing so provided a reasonable basis for rejecting the appellant's denial.

Analysis

[42] An appellate court assesses the sufficiency of a trial judge's reasons in a criminal case by employing the functional approach set out in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. In that case, the Supreme Court summarized, at paras. 55 and 56, an appellate court's basic task when assessing the sufficiency of a trial judge's reasons:

The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.

If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal.

[43] Applying those questions to the review of the trial judge's reasons in the present case, I conclude the reasons are not deficient, notwithstanding the fact they are less than ideal.

[44] Dealing first with their sufficiency. In her reasons, the trial judge acquitted the appellant of sexual assault in respect of the whipped cream incident because the appellant's "explanation leaves me with a reasonable doubt as to whether the act was intentional and whether it took place in circumstances of a sexual nature." She explained that even if the appellant made the licking-off comment, "this could not constitute as [sic] sexual assault in the absence of a finding that the squirting of the whipped cream was intentional and constituted a sexual act."

[45] It is apparent from her reasons that the trial judge reached her decision to acquit on the sexual assault count without rejecting or disbelieving the evidence of the complainant. Indeed, the complainant's evidence appeared to buttress the reasonable doubt the trial judge had about whether the squirting of the whipped cream was an act of a sexual nature. Although S.B. insisted the appellant did not miss when he squirted whipped cream at her, the trial judge noted that S.B. "agreed that everyone laughed and she agreed that it was funny. She did not think at that point it was a sexual thing." In those circumstances, the trial judge was satisfied the appellant's explanation raised a reasonable doubt.

[46] The trial judge then turned to consider the sexual interference charge – the alleged kiss on the lips prior to the whipped cream incident. She first considered the appellant's denial, stating simply:

[The appellant] denied kissing [S.B.] on the lips after hugging her when they were alone in the kitchen. I do not believe [the appellant's] evidence and it does not raise a reasonable doubt.

[47] The trial judge then looked at "the totality of the evidence presented by the Crown with respect to that count." She reasoned:

[S.B.] gave her evidence in a straightforward manner. She did not attempt to embellish or exaggerate what happened with respect to the kiss and the hug that preceded it. It was done out of the view of others, which I find adds to my finding that it was for a sexual purpose. [S.B.] acknowledged as did [the appellant] that she never returned to [the appellant's] home after that day.

[S.B.] gave her evidence in a straightforward manner, not embellishing the facts as she went along, nor was her evidence undermined in any material way on cross-examination. I found [S.B.] to be a credible and believable witness and her evidence compelling. I find that [the appellant's] denial is not to be believed. I am satisfied beyond a reasonable doubt that [the appellant] kissed [S.B.] on her lips with his lips. It was a deliberate act and could be for no other than a sexual purpose. A kiss on the forehead or the cheek might be able to be construed as not sexual. This was not such a kiss. [The appellant's] denial did not displace my firm belief that [S.B.] told the truth when she was providing her evidence.

[48] Although the trial judge's treatment of the appellant's evidence was brief, the articulation of her reasoning meets the minimum threshold for avoiding appellate interference established in R.E.M. where the Supreme Court stated, at para. 66:

[T]he trial judge's failure to explain why he rejected the accused's plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge's reasons made it clear that in general, where the complainant's evidence and the accused's evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused's denial. He gave reasons for accepting the complainant's evidence, finding her generally truthful and "a very credible witness", and concluding that her testimony on specific events was "not seriously challenged" … It followed of necessity that he rejected the accused's evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused's evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt. [Citation omitted.]

[49] This is not a case where the trial judge accepted the complainant's evidence on one count, but rejected it on another, such as in R. v. Wright, or where the trial judge expressed concerns about the complainant's evidence on all counts, such as in R. v. Schiefer, 2015 ONSC 2373. Here, the reasons disclose the trial judge accepted the complainant's evidence about the kiss and used some of the complainant's evidence about the whipped cream events to conclude the appellant's evidence raised a reasonable doubt on the sexual assault count.

[50] Further, when read as a whole the trial judge's reasons do explain why the trial judge concluded the appellant's evidence raised a reasonable doubt on the whipped cream count, but not on the kiss. To repeat: the reasons disclose the complainant's evidence appeared to buttress the reasonable doubt the trial judge had about whether the squirting of the whipped cream was an act of a sexual nature. The evidence, considered in its totality, did not raise a similar reasonable doubt on the sexual interference count.

[51] Accordingly, I would not give effect to this ground of appeal.

[52] That said, although the trial judge's reasons met the minimum threshold set down in R.E.M. to avoid appellate interference, she could have developed them more fully. One could read her reasons as expressing the view that the decisions of the Supreme Court of Canada in R.E.M. and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, stand for the proposition that a trial judge need not explain why she rejects an accused's plausible denial of the charges as long as she explains why she accepts the conflicting evidence of the complainant.

[53] A minimum threshold for avoiding appellate interference, such as that set out in R.E.M., should not be confused with the higher goal of full reasons trial judges should strive to achieve in each case. Binnie J. put the matter succinctly in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, where he stated, at para. 21:

The task is not so much to extol the virtues of giving full reasons, which no one doubts, but to isolate those situations where deficiencies in the trial reasons will justify appellate intervention and either an acquittal or a new trial. [emphasis added]

[54] Full reasons justifying and explaining the result in a criminal trial remains the quality standard trial judges should strive to achieve in every case. I do not read either R.E.M. or Vuradin as diminishing "the virtues of giving full reasons."

VIII. DISPOSITION

[55] For the reasons set out above, I would dismiss the appeal.

Released: December 8, 2017

"David Brown J.A." "I agree. David Watt J.A." "I agree. Gloria Epstein J.A."

Footnote

[1] The reasons given on August 22, 2013 resulted in a conviction on the count of sexual interference (the kiss) and an acquittal on the count of sexual assault (the whipped cream). On March 24, 2014, after submissions by both parties, the trial judge set aside the finding of guilt on sexual interference and replaced it with a finding of guilt on the count of sexual assault. Notwithstanding this substitution, the argument on this ground of appeal proceeded on the basis of reasons delivered by the trial judge on August 22, 2013.