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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if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.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.
Court of Appeal for Ontario
Date: 20230921 Docket: COA-23-CR-0424
Judges: Thorburn, Favreau and Copeland JJ.A.
Between: His Majesty the King, Appellant and Richard Lloyd, Respondent
Counsel: Andrew Hotke, for the appellant David Landesman, for the respondent
Heard: September 8, 2023
On appeal from the decision of Justice John M. Johnston of the Superior Court of Justice dated September 9, 2022, allowing the appeal from the conviction entered February 18, 2021 by Justice Alison J. Wheeler of the Ontario Court of Justice.
Reasons for Decision
A. Overview
[1] The respondent was a family friend of the complainant. After trial by judge alone, the respondent was found guilty of sexually touching the complainant’s vagina under her clothing, while they and her family were on a camping trip. The complainant was a minor at the time of the alleged offence.
[2] The respondent appealed his conviction on several grounds.
[3] The summary conviction appeal court judge (the “appeal judge”) allowed the appeal and ordered a new trial on the ground that the trial judge’s reasons were insufficient because they did not address how, in the face of a discrepancy in an English transcript of the complainant’s evidence, she arrived at the conclusion that the alleged sexual touching was under the complainant’s clothes. The appeal judge emphasized the importance of this finding, given that “[t]here [was] no analysis by the Trial Judge as to why she concluded the [respondent] intentionally touched the complainant, aside from the possible inference I cited earlier [that because he touched her underneath her clothing, the touching must have been intentional].”
[4] While several other grounds of appeal were raised, the appeal judge did not deal with those other grounds of appeal, holding that “[g]iven the finding I need not deal with the remaining alleged errors”.
[5] The Crown claims the appeal judge erred in ordering a new trial and that the appeal should be granted to restore the conviction and remit the matter back to the summary conviction appeal court to decide the other issues raised on appeal before the Superior Court, including the sentence appeal. The Crown claims that while the trial judge did not specifically address why she was satisfied that the complainant was touched under her clothing, it is apparent from the record how she arrived at this conclusion. Leave to appeal was granted by another panel of this court on April 21, 2023.
[6] The respondent argues that the trial judge needed to explain how she came to find that the touching was under the clothing. The respondent also argues that the appeal judge made separate findings of insufficiency that the Crown has not addressed: that there was a complete lack of evidence that the respondent was awake during the touching and that there was no analysis as to why the trial judge concluded the touching was intentional.
[7] For the reasons that follow, we allow the appeal.
B. Whether the Digital Court Recording Should Be Admitted Into Evidence on Appeal
[8] In support of its appeal, the Crown seeks to adduce the Digital Court Recording (“DCR”) of the relevant portions of the complainant’s evidence.
[9] Rule 27(3) of the Criminal Appeal Rules requires a motion for leave to introduce fresh evidence where a party intends to ask the court to consider admitting fresh evidence under s. 683 of the Criminal Code, R.S.C. 1985, c. C-46. The audio of trial proceedings has been admitted to resolve issues on appeals in other cases: JVJ Consulting Inc. v. Barnell, 2017 ONCA 937 and R. v. Orange, 2021 ONCA 99, at para. 3.
[10] Assuming the DCR is fresh evidence, it is in the interests of justice to admit the DCR to address what the complainant said. The DCR is relevant to the main issue on appeal. Moreover, the trial transcript demonstrates that the trial judge listened to portions of the DCR relevant to the main issue raised on appeal.
[11] For these reasons, the DCR is admitted and placed under seal.
C. The Trial Judge’s Treatment of the Complainant’s Evidence as to Whether the Alleged Sexual Touching Was Over or Under Her Clothing
[12] The dispute regarding the complainant’s evidence as to whether she was touched over or under her clothing arose and was addressed as follows:
a) The complainant was twice asked by the Crown whether the respondent touched her under or on top of her clothes. She testified mostly in French, through an interpreter, although the trial took place in English. (Neither counsel spoke French.);
b) In his closing submissions, counsel for the respondent indicated that he believed that the first time the complainant was asked, she said she was touched under her clothing but the second time, the complainant said she had been touched “on the top”. He relied on an English-only transcript which suggested that the second time the complainant answered the question she said “on the top” (as interpreted) rather than underneath;
c) The Crown and the trial judge both indicated that this was not their recollection of the complainant’s evidence;
d) After soliciting input from the parties on how to resolve the issue, the trial judge advised that she would order a bilingual transcript of the evidence. The bilingual transcript shows that the complainant answered both times, in French, “en dessous”, meaning “under”, and that the in-court French interpreter both times interpreted what she said as “under”;
e) The trial judge also had access to the DCR, and indicated during submissions that she had listened to it (which the panel also listened to and which confirms that the complainant said “en dessous” both times);
f) Upon receipt of the bilingual transcript and after sending it to the parties, the trial judge asked if either party wished to make further submissions and neither party did; and
g) The trial judge, in her reasons, stated that the complainant was touched under her clothes without any further analysis of how she arrived at this conclusion.
[13] The trial judge found the respondent guilty of sexual touching. However, in her reasons for sentence issued seven months later, she stated that the touching was over the complainant’s clothes.
D. Should the Appeal Be Allowed?
[14] The question of whether an appeal should be allowed to challenge a summary conviction judge’s assessment of the sufficiency of a trial judge’s reasons, is a question of law: R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135; R. v. Ralph, 2008 NLCA 70, 281 Nfld. & P.E.I.R. 324, at para. 14; R. v. Minuskin, 68 O.R. (3d) 577 (C.A.), at para. 3; and R. v. A.M., 2022 ONCA 154, 160 O.R. (3d) 561, at paras. 1 and 24.
[15] Where it is “apparent from the record, even without being articulated” how the trial judge arrived at her decision, no error will be found: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 6. The reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record: Sheppard, at para. 55; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32; R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at paras. 68-75.
[16] It is clear from the transcript of closing submissions that the trial judge ordered a bilingual transcript to discern whether in fact the complainant said that she was touched underneath her clothing the first time, but over her clothing the second time. The bilingual transcript shows that the complainant said she was touched “en dessous” or underneath her clothing both times she was asked, and the DCR confirms this.
[17] In her Reasons for Conviction, the trial judge therefore held that:
[The complainant] testified that she woke up suddenly and that Mr. Lloyd was touching her vagina under her clothes. At first she did not think it was real. Mr. Lloyd was spooning her from behind and his arm was over her body.
[18] She concluded: “I find that the touching had to have been intentional given that it was under [the complainant’s] clothing. I find [the respondent] guilty of sexual assault.”
[19] Finally, while seven months later, in her written Reasons for Sentence, the trial judge stated that she had found the respondent touched the complainant “over her clothes”, this error must be viewed in light of the fact that counsel made their sentencing submissions on the basis that the touching had been found to have been under the clothes, the misstatement is found in a short summation of the facts, and the sentencing decision was made seven months after the decision to convict.
[20] While the Reasons for Judgment on the finding of guilt do not set out the basis upon which the trial judge resolved the discrepancy raised by the error in the initial English transcript, it is “apparent from the record, even without being articulated” how the trial judge arrived at her decision.
[21] While the respondent argues that the appeal judge overturned the conviction on the basis of the lack of reasons for the finding that the touching was under the clothing and that the trial judge failed to provide sufficient reasons on the issue of intent given the lack of evidence that the appellant was awake at the time of the touching, we do not agree that this is a fair reading of the appeal judge's reasons. It is evident that the appeal judge's reference to the lack of an explanation for the finding of intent was tied to his conclusion on the issue of whether the trial judge sufficiently explained the basis for finding that the touching was under the clothes. As conceded by the Crown, the issue of whether there was sufficient evidence that the appellant was awake at the time of the touching and whether this is relevant to the issue of intent is a separate issue that remains to be decided on the summary conviction appeal.
[22] We therefore allow the appeal because the appeal judge erred in law in overturning the conviction on the basis there were insufficient reasons for finding that the respondent touched the complainant under her clothing. We remit the matter to the Summary Conviction Appeal Court to address the remaining grounds of appeal, including the questions of intent and sentence.
“Thorburn J.A.”
“L. Favreau J.A.”
“J. Copeland J.A.”