ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 50/10
DATE: 20120223
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – JOWEL DACPANO Appellant
Carmel Penny , for the Crown/Respondent
Saman Wickramasinghe , for the Appellant
HEARD: February 17, 2012
KELLY J.
REASONS FOR DECISION
[ 1 ] On March 21, 2010, the Appellant was convicted of sexual assault by Ray J. On November 19, 2010, he was given a conditional sentence. The Appellant raises the following issues on appeal:
a. Was the verdict unreasonable as it was based on a misapprehension of the evidence?
b. Did the trial judge err by applying a higher degree of scrutiny in assessing the evidence of the defendant as compared to that of the prosecution?
[ 2 ] For the reasons set out below, the appeal is dismissed.
Factual Background
[ 3 ] The facts giving rise to the sexual assault alleged are simple. The complainant says that she attended at the office of the Appellant for the purpose of receiving a therapeutic massage. She removed all of her clothing and lay on the massage table. At various times, her private parts were covered with a sheet.
[ 4 ] During the massage, the complainant says that her vagina was touched three times by the Appellant: twice with his hand and once with his mouth. The Appellant denies this occurred.
[ 5 ] The Appellant testified that the complainant grabbed his hands during the massage and attempted to place them on her vagina. He was taken aback by such conduct, following which he ended the massage.
a. Was the verdict unreasonable as it was based on a misapprehension of the evidence?
[ 6 ] The standard for setting aside a verdict of guilty is a stringent one as stated in the cases of R . v. Lohrer [1] and R. v. Morrissey [2] . Lohrer succinctly sets out the test that must be met to find that the trial judge has misapprehended the evidence resulting in reversible error:
…The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’.
[ 7 ] It is my view that the test is not met in this case. The misapprehensions of the evidence as set out by the Appellant do not go to the substance of the matter. I will now deal with each of the areas raised by the Appellant with respect to the alleged misapprehension of evidence.
(i) Massaging the Left Thigh
[ 8 ] The Appellant submits that the trial judge misapprehended the complainant’s evidence about the massage of her left thigh when she held that the complainant “couldn’t recall” whether she felt anything on the outside of her left thigh when the Appellant was massaging the inside of her left thigh giving rise to the first instance of the Appellant’s hand “grazing” her vagina. I do not agree.
[ 9 ] It is clear that the complainant said a variety of things about the massage of her left thigh, including the following exchange during cross-examination:
Q. So when Jowel [the Appellant] is massaging the inside of your leg, you didn’t feel anything on the outside of your leg?
A. Unless it was his body brushing up against it, but I can’t, I can’t recall specifically.
Because of this exchange during cross-examination, I do not find that the trial judge misapprehended the evidence about the complainant being unable to recall whether she felt anything on the outside of her left leg as the Appellant was massaging it.
[ 10 ] The Crown concedes that the trial judge did misapprehend the evidence when she said that the complainant never testified that the outside of her thighs had “not” been massaged. However, I agree with the submission of Crown Counsel; such a misapprehension is one about detail and not substance. Such a misapprehension does not constitute reversible error.
(ii) The Lighting Issue
[ 11 ] The complainant testified that the room was dimly lit for the first part of the massage. The Appellant left the room and then turned off the lights completely. When the lights were turned off, a source of light came through a window. The light would seep into the massage room through a gap from the top of the walls and the ceiling.
[ 12 ] The Appellant testified that the lights were on during the entirety of the massage and that the room was brightly lit. There was no gap between the walls and the ceiling through which light could seep.
[ 13 ] A defence witness (Ms. Bolton who owned the clinic) testified that there is no way to dim the lights in the massage room. She also said that there is no gap between the wall and the ceiling. However, there is a gap between the curtains and the ceiling and light could seep through this space.
[ 14 ] The Appellant submits that the trial judge erred in finding that Ms. Bolton’s testimony contradicted the Appellant’s, but was consistent with the complainant on the issue of lighting. I do not agree.
[ 15 ] There were significant submissions with respect to the description of the room and the amount of lighting in it. The trial judge clearly came to her own conclusion, having considered the evidence and those submissions. She resolved this issue in a manner that was entirely permissible and there was no substantive error made.
(iii) The Unstable Tables
[ 16 ] Crown Counsel concedes that the trial judge misapprehended the evidence about the table used for the therapeutic massage. The trial judge referred to the fact that the Appellant testified that he previously told the Directors of the clinic about the problems with the “rickety” tables. That is not what the Appellant said.
[ 17 ] The Appellant testified that the Directors were aware of the problems with the tables. He did not say that he told them about the state of the tables. The purpose of such evidence was to show the court that he could not have sat on the table while massaging the complainant as she testified. She also found that the defence witnesses could have corroborated the Appellant’s testimony but they were not asked.
[ 18 ] In my view, it is immaterial to the substance of this offence as to whether the Directors were aware of the state of the massage tables because the Appellant told them or otherwise. Further, I do not find that the judge’s comment with respect to the potential evidence of the state of the tables and whether they were rickety or not is material. This is not a misapprehension of the evidence warranting appellate intervention.
(iv) The Appearance of the Complainant
[ 19 ] The Appellant submits that the trial judge erred in finding the Appellant had exaggerated and tailored his evidence when he “testified that the complainant was fat and heavy and she was not”.
[ 20 ] Crown Counsel concedes that the trial judge did misapprehend the Appellant’s evidence in his description of the complainant. He simply referred to the complainant as “heavy” and not “fat”.
[ 21 ] I agree with Crown counsel that the misapprehension of the Appellant’s evidence as to whether the complainant was fat is not material. Again, such a misapprehension is peripheral to the reasons of the trial judge in finding the Appellant guilty of sexual assault.
[ 22 ] It is my view that the errors referred to above are not fatal to upholding the trial judge’s finding that the Appellant is guilty of sexual assault. The trial judge’s misapprehension of these parts of the evidence taken alone or cumulatively do not render the verdict unreasonable. Nor are the misapprehensions such that they give rise to reversible error warranting a new trial order. Simply put, the trial judge did not misapprehend significant evidence.
[ 23 ] Whether the Appellant massaged the outside of the complainant’s thigh, the room was dimly lit, the tables were unstable or whether he said the complainant was “fat” as opposed to “heavy” were inconsequential in the context of the trial judge’s findings of fact and credibility assessments. The conviction depended upon whether the Appellant touched the complainant’s vagina with his mouth or his hands. These errors did not “figure prominently into the reasoning process which led to crucial findings of credibility and reliability and then to crucial findings of fact” [3] .
b. Did the trial judge err by applying a higher degree of scrutiny in assessing the evidence of the defendant as compared to that of the prosecution?
[ 24 ] The Ontario Court of Appeal has recently addressed the issue of whether the trial judge applied different standards of scrutiny to the Crown and Defence evidence in R. v. Cloutier [4] . At para. 86 it held:
…it is important to bear in mind that, in a trial which turns almost exclusively on an assessment of the credibility of the witnesses, the trial judge enjoys a significant advantage. The trial judge has the benefit of not only hearing what was said but also how it was said. In making his or her assessment of credibility, the trial judge has heard all of the evidence as well as the submissions of counsel. An appellate court simply has a transcript and is guided to a selective review of the trial record on which argument is made. In arriving at his ultimate credibility findings, the trial judge doubtless paid careful attention to what was said. As this court stated in R. v. Howe (2005), 2005 253 (ON CA) , 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 59 :
It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.
[ 25 ] The thrust of the Appellant’s argument is that the trial judge accepted, wholesale, the evidence of the complainant and was “charitable” to any inconsistencies in her evidence. On the other hand, the trial judge was “wholesale” in her rejection and engaged in what he calls “nitpicking” when considering his evidence.
[ 26 ] For instance, the trial judge found a “drastic difference between his verbal evidence and his appointment book” with respect to the timing of his appointments later in the day. She also found that the Appellant was evasive when testifying.
[ 27 ] A review of the judge’s reasons in their totality does not leave the reader with the impression that the trial judge was not even-handed. She dealt with the inconsistencies and gave them the weight they deserved for both the complainant and the Appellant. The trial judge did not unfairly scrutinize the evidence of the Appellant and as such, this ground for appeal fails.
Conclusion
[ 28 ] In coming to my conclusion to dismiss the appeal, I am reminded of the principle that this court, sitting as an appellate court, cannot retry the case and substitute its opinion of the credibility of the witnesses and the fact-based arguments for the assessments made by the trial judge [5] .
[ 29 ] While the Appellant may be dissatisfied with the fact that the trial judge resolved credibility issues in favour of the complainant, it is not cause for this Court to intervene. It is not the role of the appellate court to substitute its findings for that of the trial judge. Further, I find that what the Appellant is really asking this Court to do is a de novo evaluation of the factual arguments made capably by trial counsel. These issues were raised at trial, considered by the trial judge and rejected. As stated by our Court of Appeal in Drabinsky : “Despite the language used to frame the submissions, many [of the legal arguments raised] are, in reality, attempts to resurrect and reargue the factual battles fought and lost at trial. Those arguments cannot succeed in this court”.
[ 30 ] For the above-mentioned reasons, the appeal is dismissed.
Kelly J.
Released: February 23, 2012
COURT FILE NO.: SCA 50/10
DATE: 20120223
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent – and – JOWEL DACPANO Appellant
REASONS FOR DECISION Kelly J.
Released: February 23, 2012
[1] 2004 SCC 80 , [2004] 3 S.C.R. 732
[2] (1995), 97 C.C.C. (3d) 193 (Ont. C.A.)
[3] See: R. v. Morrissey , supra , at para. 96
[4] [2011] O.J. No. 3005 (C.A.)
[5] See: R. v. Drabinsky 2011 ONCA 582 , [2011] O.J. No. 4022 at para. 39 ; R. v. W.(R.), [1992] 2 S.C.R. 122; R. v. Beaudry , 2007 SCC 5 , [2007] 1 S.C.R. 190