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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 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.

(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.

OURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2020 ONCA 782

DATE: 20201209

DOCKET: C65673

Lauwers, Huscroft and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Smith

Appellant

Mark Halfyard and Andrew Bigioni, for the appellant

Vallery Bayly, for the respondent

Heard: September 25, 2020

On appeal from the conviction entered on December 19, 2017 by Justice Grant R. Dow of the Superior Court of Justice, with reasons reported at 2017 ONSC 6308.

Harvison Young J.A.:

A. Overview

[1] The appellant, Jason Smith, was convicted of sexual assault and sentenced to three years imprisonment as a result of the following incident. He appeals his conviction on a number of grounds, including that the trial judge erred in his W.(D.) analysis: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. At the conclusion of the hearing, we allowed the appeal with reasons to follow. These are those reasons.

B. Background

(1) Facts

[2] The complainant, A.W., was walking home from the transit station on a cold, wintry night around 10:30 p.m. She sensed someone following her and shortly after that, the appellant grabbed her from behind in what she described as a bear hug.

[3] At this point, their stories diverge. The complainant testified that the appellant tried to get her pants off and touched her between her legs and on her vagina, over her clothing. She denied that this touching was consistent with the appellant simply trying to get up after they had fallen. She struggled against him, screamed, put her gloved hand in the appellant’s mouth, and yanked her hand down as hard as she could. The appellant’s DNA was found on her glove. The complainant estimated that they spent around 45 seconds to two minutes on the ground.

[4] The appellant said he thought the complainant was his girlfriend. They had planned to meet but he was late because he had been having drinks with some friends. He knew she would be annoyed. He could not find her at the location they agreed to meet. He went looking for her and, while walking, he noticed a woman walking about 40 to 50 feet ahead of him. He testified that he believed this woman was his girlfriend. He went up to her and hugged her from behind, slipped, and fell on top of her. He testified that he used his hands to lift himself up. He denied that he had touched her sexually as she claimed.

[5] It was common ground that the entire incident took place over a relatively short period of time. When they got up, the complainant slapped the appellant and they both expressed words to the effect of “what the fuck?”. She asked where her purse was and the appellant pointed to a spot nearby. The appellant walked away, and the complainant immediately called 911.

[6] In the course of the three-day trial, the appellant’s girlfriend testified that they were supposed to meet that evening. She was angry because he was late and went home to the apartment where she lived with the appellant’s mother. She stated that the route she took to get to the bus stop to get home took her along the same route as A.W. walked that night. She also testified that when she was upset or angry at him, the appellant would sometimes hug her from behind. She was approximately the same height as the complainant at the time and had a knee-length coat that was similar to that worn by the complainant. They both had straight black hair that was of a similar length.

(2) The trial judge’s reasons

[7] The trial judge rejected the appellant’s evidence. He determined that the appellant’s credibility was undermined by a number of factors, including:

• that his estimate of the time and details of his unanswered phone calls to his girlfriend failed to match his girlfriend’s testimony;

• that he had a poor recollection of minor points, including his girlfriend’s bus route to work;

• that his consumption of alcohol may have contributed to his faulty memory;

• that he did not call out to the woman he was following to confirm her identity; and

• that he failed to apologize or help the woman after he realized she was not his girlfriend and he did not stay at the scene.

[8] For those reasons, the trial judge did not accept the appellant’s arguments. He also found that this evidence did not raise a reasonable doubt. Finally, he determined that the Crown had satisfied its burden to prove each element of the offence beyond a reasonable doubt.

[9] The trial judge accepted the complainant’s evidence that she was attacked from behind and that the appellant touched her inner thigh and against her vagina over her clothing. He said that her evidence was clear and consistent and that she immediately reported the incident to the police. Finally, he accepted her evidence that there was a struggle, as evidenced by the DNA found on the complainant’s glove.

C. Issues on appeal

[10] The appellant raises the following grounds on this appeal:

(a) the verdict was unreasonable as a result of fundamental flaws in the trial judge’s reasoning;

(b) the trial judge erred in failing to consider the appellant’s level of intoxication in determining whether his attempt to grab the complainant had amounted to a sexual assault;

(c) the trial judge erred in his assessment of the post-offence conduct evidence.

(d) the trial judge erred in his W.(D.) analysis by failing to consider the girlfriend’s exculpatory evidence.

D. Analysis

[11] The purpose of the W.(D.) test is to assist the trier of fact in “evaluating conflicting testimonial accounts” to determine whether the Crown has proven its case beyond a reasonable doubt: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. The W.(D.) test is not a “magic incantation”: R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533. It is the substance of the test that must be respected: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23. The test is a reminder that the “burden never shifts from the Crown to prove every element of the offence”: J.H.S., at para. 9.

[12] The W.(D.) test applies not just to an accused person’s testimony, but to any defence evidence and to any potentially exculpatory evidence whether led by the defence or the Crown: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114; R. v. Kirlew, 2017 ONCA 171, at para. 17.

[13] For reference, the three steps of W.(D.), at p. 758, are as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[14] The heart of the appellant’s W.(D.) argument is that, despite stating the test accurately, the trial judge did not apply the test and in particular failed to consider whether the girlfriend’s evidence was capable of raising a reasonable doubt as to his guilt. Her evidence potentially confirmed the appellant’s version of events and, in conjunction with his evidence, could have led to reasonable doubt.

[15] The respondent argues that trial judges are not required to explicitly engage in a full W.(D.) analysis in relation to every defence witness’ evidence. Instead, the trial judge is required to respect the substance of the W.(D.) instruction and consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. The respondent argues that the trial judge did that in this case.

[16] In his reasons, the trial judge correctly directed himself on the W.(D.) test. He concluded, after considering “all the evidence”, that the Crown had proven its case against the appellant beyond a reasonable doubt. However, his credibility assessment was not responsive to the evidence as a whole in this case.The First Step of W.(D).

[17] W.(D.) sets out a methodology for triers of fact that is intended to focus their attention on the analytical steps that must be taken in assessing the evidence in order to ensure that the trier of fact considers whether the evidence as a whole proves the accused’s guilt beyond a reasonable doubt.

[18] The trial judge’s application of W.(D.) was problematic in a number of respects. Beginning with the first step, he stated that he did not believe the appellant and that the appellant’s denial of sexual contact was undermined in a number of respects. However, several of the factors he identified (as listed above) seem to corroborate rather than undermine the appellant’s version of events.

[19] For example, the first factor the trial judge mentioned was the appellant’s claim that he mistook the complainant for his girlfriend, and the trial judge noted at that point that “I do logically conclude that [the complainant and the girlfriend] would appear somewhat similar in appearance from behind”. In another bullet point, the trial judge specifically noted that the appellant’s consumption of alcohol “left him feeling ‘a little bit tipsy’ [which] may explain his faulty recollection of events as the evening progressed”. The trial judge did not, however, explain how these points “undermine” the appellant’s version of events. The similar appearance of the two women seems to bolster the likelihood that the appellant was simply mistaken. This might have been further reinforced by the fact (as accepted by the trial judge) that the appellant’s tipsiness at the time might have helped to explain why he failed to recognize that the woman in front of him was not his girlfriend, especially given their similar appearance and dress viewed from behind.

[20] The trial judge also noted that the appellant was aware that he was late to meet his girlfriend and was walking the route he knew she would likely take to get home but didn’t call out to her. However, the appellant testified that his intention was to surprise her by hugging her from behind, because she was upset that he was late. His girlfriend testified that the appellant would hug her from behind when she was upset. Given that evidence, his failure to call out to her before approaching A.W. was not necessarily a fact that would tend to undermine his story.

[21] Similarly, the trial judge stated that the appellant’s lack of apology to the complainant after they got up from the ground undermined his story that he mistook the complainant for his girlfriend. It seems the trial judge placed some emphasis on this fact. Later in his reasons, he wrote: “[i]mportantly, in cross-examination, Jason Smith admitted that after getting up from being on top of AW and realizing she was not his girlfriend, he did not say that he was sorry. He did not explain he thought AW was his girlfriend.” During cross-examination the appellant testified that he thought he said he was sorry and said that he didn’t do anything. He also testified that the events happened very quickly and that he might have been mumbling when he apologized. His testimony during cross-examination, that he attempted to apologize but might have mumbled, was not something that would necessarily tend to undermine his story.

[22] In short, listing these factors and stating that he does not accept the evidence does not explain why the trial judge rejected the appellant’s evidence. Although the trial judge recited a number of factors he considered when assessing credibility, it is unclear how these factors affected his credibility assessment.

[23] In applying W.(D.), the trial judge also must consider whether any of the evidence at the trial raises a reasonable doubt. It is not clear from the trial judge’s reasons that he was alive to this. On the first step of W.(D.), he did not consider whether he believed the appellant’s girlfriend’s evidence and he did not consider whether it raised a reasonable doubt. This evidence is discussed in greater detail below.

(1) The Second Step of W.(D.)

[24] On the second step of the W.(D.) test, the trial judge was very brief in his discussion, stating at para. 58:

Having reached this conclusion, the next part is to address whether a reasonable doubt has been raised based on Jason Smith's evidence. For the reasons stated above, I conclude that I do not have a reasonable doubt. His evidence about what occurred after he wrapped his arms around AW and when they were both standing again is neither credible nor does it raise a reasonable doubt. In saying that, I am totally mindful that the burden of proof is entirely upon the Crown to prove the commission of this offence beyond a reasonable doubt. There was no burden whatsoever on the accused at any time in this criminal case.

[25] At the outset, the initial problem with the trial judge’s consideration of the second step flows from the first step. The factors cited by the trial judge to which I have referred above may well have raised a reasonable doubt even if the trial judge did not accept his evidence. Given his recognition that there were some possible explanations, it was incumbent on the trial judge to explain why these factors did not raise a reasonable doubt beyond saying simply that he didn’t accept the appellant’s evidence and that it did not raise a reasonable doubt. In short, the trial judge’s reasons are merely conclusory.

[26] The second step of W.(D.) is admittedly difficult to apply. The central flaw in the trial judge’s application of W.(D.) was his failure to consider whether the appellant’s girlfriend’s evidence gave rise to a reasonable doubt as to the appellant’s guilt. In referring to the second step of W.(D.), the trial judge referred only to the appellant’s testimony and not to any of the other evidence or, in particular, to his girlfriend’s evidence. Although the trial judge set out her evidence at the beginning of his reasons, there is no discussion or analysis of whether he accepted some, all, or none of it, and whether it left him in a reasonable doubt as to the appellant’s guilt.

[27] Although she was not a witness to the alleged assault, the appellant’s girlfriend’s evidence was relevant to the appellant’s credibility. She testified that they planned to meet that night, near the location where the appellant saw A.W.; she and A.W. had similar looking winter coats; she had similar hair and was around the same height as A.W.; and she said that the appellant would hug her from behind when she was upset. This evidence was capable of confirming the appellant’s evidence and thus bolstering his credibility.

[28] Had the trial judge addressed this evidence in his reasons and explained why he accepted or rejected it, his findings would have attracted deference from this court. In the absence of any discussion, however, there is no way to know whether the trial judge was alive to the need to examine whether the girlfriend’s evidence gave rise to a reasonable doubt in the context of all the other evidence.

[29] Nor is there any reference to the fact that there were inconsistencies between the complainant’s police statement on the night of the incident and her evidence at trial. For example, at trial, A.W. testified that the appellant attempted to pull down her pants while they were on the ground. When challenged on this, A.W. testified that she was 70% sure that she told the police this in her statement. However, she did not volunteer that point. It was suggested to her by the interviewing officer.

[30] It would have been open to the trial judge to determine, after scrutinizing the complainant’s evidence, that the inconsistency between her police statement and her in-court testimony was not material. Trial judges are not required to address every inconsistency however minor in a witness’ evidence: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 14; R. v. R.P., 2020 ONCA 637, at para. 21. However, the trial judge did not scrutinize or resolve this inconsistency, nor did he find that it was not material.

[31] The appellant maintained that this was a case of mistaken identity and denied that he had touched A.W. sexually. There was potentially exculpatory circumstantial evidence that supported the appellant’s story that he was looking for his girlfriend in the area and that he approached the complainant mistakenly thinking she was his girlfriend. Some of the potentially exculpatory evidence was corroborated by the girlfriend’s testimony and was consistent with A.W.’s evidence. In these circumstances, the trial judge erred by not turning his mind to whether this evidence, which could have corroborated the appellant’s story, raised a reasonable doubt. This potentially exculpatory evidence included the following:

• the two women were about the same size and wearing similar winter clothing;

• the appellant sometimes “surprised” the complainant by hugging her from behind when she was upset;

• The appellant was supposed to meet his girlfriend earlier that evening but had been drinking with his friends. He was “a little tipsy” and he knew she would be upset with him for being late; and

• The complainant was walking close to the spot the appellant and his girlfriend agreed to meet. She was walking in the direction his girlfriend traveled to reach the bus stop to go home.

[32] In the absence of any analysis of the evidence, other that what appears to have been a complete rejection of the appellant’s testimony, it is not clear whether or how the trial judge resolved these issues.

[33] As discussed above, the appellant’s version of events was corroborated in key respects by his girlfriend’s evidence and his version of events was not entirely inconsistent with some of the complainant’s evidence. In these circumstances, the trial judge was required to examine the potentially exculpatory evidence and explain why it did not raise a reasonable doubt.

(2) The Third Step of W.(D.)

[34] The trial judge correctly refused to consider the limited criminal record of the appellant at this stage. However, in concluding that the Crown had proved the appellant’s guilt beyond a reasonable doubt, he referred again to the appellant’s evidence and the complainant’s evidence, stating that he rejected the appellant’s and accepted the complainant’s.

[35] This was not, as the trial judge described it, a case that turned entirely on the evidence of two persons. Although there are some cases in which the only evidence before the court is two witnesses’ testimony, which occurs frequently in sexual assault cases, this was not such a case: see, e.g., R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.). In J.J.R.D., the key piece of defense evidence was the appellant’s testimony, which the trial judge totally rejected, despite the fact that it contained no obvious flaws. This court concluded that the trial judge’s statement that the accused’s evidence did not raise a reasonable doubt was justifiable, in light of the trial judge’s complete rejection of that evidence, along with his acceptance of the complainant’s testimony and her diary entries.

[36] This case was quite different from such two-witness cases because of the girlfriend’s evidence and the potentially corroborative aspects of the appellant’s evidence that could have raised a reasonable doubt. Credibility is not an either/or proposition; treating it as such “shifts the burden of proof to the accused by” suggesting that the accused can only be acquitted “if the accused’s story is believed rather than that of the complainant”: S.(W.D.), at p. 535; W.(D.), at p. 757. Avoiding that error lies at the heart of the W.(D.) methodology; that is what it is designed to avoid.

[37] In this case, the cumulative effect of these errors in the application of W.(D.) was the conviction of the accused on something less than proof beyond a reasonable doubt.

E. Disposition

[38] Given my conclusion on the W.(D.) issue, it will not be necessary to address the other grounds of appeal raised by the appellant.

[39] I would allow the appeal and order a new trial.

Released: December 09, 2020

“PL”

“A. Harvison Young J.A.

“I agree P. Lauwers J.A.”

“I agree Grant Huscroft J.A.”