Her Majesty the Queen v. Donald Nwaiku
COURT FILE NO.: 117/10 AP
DATE: 20120106
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DONALD NWAIKU
Appellant
Elizabeth Stokes, for the Respondent
Crystal Tomusiak, for the Appellant
HEARD: October 13, 2011
On appeal from the conviction entered by Justice A. Di Zio of the Ontario Court of Justice on January 14, 2010 on a charge of sexual assault, and from the sentence of five months imprisonment and three years of probation imposed on August 20, 2010.
MacDonnell, J.
[1] The charge of sexual assault in this case arose from an incident that occurred in the early morning hours of November 10, 2007 in the bedroom of the apartment of the complainant’s boyfriend, Brian Banks.
[2] The complainant testified that she and two girlfriends went to the apartment with Banks and the appellant after an evening at a downtown Toronto club. Eventually, the complainant’s girlfriends left but she decided to stay. She testified that the alcohol she had consumed made her sick, and that after spending some time in the bathroom throwing up she went to sleep in Banks’ bed. The only other persons in the apartment at the time were Banks and the appellant. A short while later, she awoke to find the appellant lying behind her penetrating her vagina with his fingers. Banks was asleep on the sofa in the living room when this occurred. She testified what when she realized what was happening, she “freaked” and told the appellant to leave, which he did.
[3] The appellant denied that he had physical contact of any kind with the complainant in the bedroom. He testified that when the complainant became physically ill and began throwing up, he and Banks attempted to assist her, but she told them to leave the bathroom, and they did. He testified that Banks lay down on the sofa to sleep and that he went into the bedroom and lay down on the bed. After a few minutes, the complainant came into the bedroom looking for Banks. The appellant testified that he immediately got up, tapped Banks to tell him the complainant was looking for him, and left the apartment.
[4] The trial judge believed the complainant. He rejected the appellant’s denial and found him guilty as charged.
A. The Appeal from Conviction
[5] The appeal from conviction alleges two errors in the trial judge’s reasons for judgment:
(i) he treated the case as a credibility contest and failed to apply the proper standard of proof; and
(ii) he failed to give sufficient reasons for rejecting the appellant’s evidence and for accepting the complainant’s evidence.
[6] There is no merit to either of those grounds of appeal.
(i) The alleged error re the standard of proof
[7] With respect to what occurred between the appellant and the complainant at the material time, there was only the evidence of the two of them. She alleged that he digitally penetrated her vagina as she slept; he denied having any physical contact with her whatsoever. In the circumstances, the principles underlying the three-step model jury instruction proposed by Justice Cory in R. v. W.(D.), [1991] 1 S.C.R. 742 were engaged.
[8] The appellant’s complaint with respect to the application of the standard of proof is centered on the second and third steps of the W.(D.) instruction. Those two steps are designed to ensure that even if the accused’s evidence is disbelieved, the trier of fact goes on to consider (i) whether it leaves a reasonable doubt as to guilt, and (ii) even if it does not leave a reasonable doubt, whether the evidence that is believed establishes guilt to the requisite degree of certainty.
[9] Those two steps, it should be said, are merely applications of the fundamental principle around which every criminal trial revolves, namely that an accused person is presumed to be innocent unless and until the Crown proves beyond a reasonable doubt that he or she is guilty. Trial judges of the Ontario Court of Justice work with and apply this principle day in and day out. An assessment of a submission that a trial judge’s reasons reflect error in relation to it must be undertaken with that in mind.
[10] In making his findings in this case, the trial judge did not track the language of the jury instruction proposed in W.(D.). He was not required to do so. As observed by Justice Deschamps in R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at paragraph 29, “[the] approach set out in W. (D.) is not a sacrosanct formula that serves as a straitjacket for trial courts.” Similarly, in R. v. Minuskin (2003), 181 C.C.C. (3d) 542 (Ont. C.A.), Justice Rosenberg stated, at paragraph 22:
It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction.
[11] In their final submissions to the trial judge, both the Crown and the defence made reference to the principles underlying the W.(D.) instruction. It is clear from the trial judge’s reasons that he applied those principles. He began with the evidence of the appellant and set forth the reasons why he did not believe him. He addressed the evidence of the complainant and explained why he found her credible. He then went beyond those findings of credibility and considered whether he was left with a reasonable doubt. In considering that question, he did not exclude the appellant’s disbelieved evidence. He stated:
The evidence, in its totality, including the denial of Mr. Nwaiku, which I did not believe, does not raise a reasonable doubt in my mind about what happened here. On the sexual assault, it is [the complainant’s] word against Mr. Nwaiku and I do not believe Mr. Nwaiku, as I have already indicated. [The complainant’s] evidence convinces me beyond a reasonable doubt as to what happened and therefore, Mr. Nwaiku, I am finding you guilty of sexual assault.
[12] The first sentence in that passage demonstrates that in the context of the evidence as a whole, the testimony of the appellant was not only disbelieved, it did not leave the trial judge with a reasonable doubt. That is, the first sentence demonstrates an application of the principle underlying the second step in the W. (D.) instruction. The second and third sentences demonstrate that the trial judge went beyond a rejection of the appellant’s evidence and considered whether the evidence that he did accept proved the appellant’s guilt beyond a reasonable doubt, which is what the third step in the W. (D.) instruction requires. In other words, while the trial judge did not recite the W. (D.) mantra, he properly applied its underlying principles.
(ii) The sufficiency of the reasons for conviction
[13] The appellant submits that the trial judge failed to give sufficient reasons for rejecting his account of the events of the evening and that he failed to critically assess the account of the complainant. In large measure, the appellant’s complaint in this regard is one of uneven scrutiny of the evidence.
[14] In my opinion, the trial judge’s reasons were responsive to the evidence in the case and the submissions of counsel. He assessed the evidence of the appellant with respect to how he ended up in Brian Banks’ bedroom alone with the complainant and he explained why he rejected it. He provided reasons for finding Banks, who was called as a defence witness, not credible. He turned to the evidence of the complainant and explained why he found her to be credible. He then considered whether, in light of those findings, he was satisfied beyond a reasonable doubt that the appellant was guilty. The path that he followed to his finding of guilt was clearly set forth in his reasons.
[15] In his factum, the appellant complained of the trial judge’s failure “to refer to or assess the significant inconsistencies and frailties in the complainant’s evidence” including “that the complainant was admittedly very ill as a result of having consumed alcohol… and also had just been awakened from a deep state of sleep when the events, which took only seconds to minutes on her account, were alleged to have taken place.”
[16] Apart from the fact that it was different from the account of the appellant and to some extent that of Brian Banks, there were no “significant inconsistencies” in the complainant’s account of events. The only alleged inconsistency mentioned in the appellant’s factum concerned whether the complainant’s girlfriends wanted her to leave because they were worried about an advance that Banks had made to one of them (Tiffany). I am unable to see any real inconsistency in the complainant’s evidence in that respect. In examination in-chief, she said that Tiffany did not really give her a reason for wanting her to leave; in cross-examination she allowed that the advance may have been part of the reason. She explained, however, that she did not take Tiffany’s comment about Banks seriously. If there was an inconsistency, it was minor and it was with respect to a matter that had nothing to do with the complainant’s account of a subsequent sexual assault by the appellant.
[17] It was never suggested to the complainant that she was in a state where she might have been mistaken about what happened, nor was this theory of the evidence argued by the appellant’s counsel in her final submissions. What was put to the complainant, in substance, was that nothing had happened to her at the hands of the appellant, not that she had misinterpreted what did happen. The position of the defence was that the complainant’s account was concocted, perhaps out of resentment at Banks for having shown an interest in Tiffany. The trial judge considered that position and rejected it.
[18] While it was for the trial judge to decide, there was a substantial common sense basis for rejecting the appellant’s explanation for finding himself in Banks’ bedroom with the complainant after everyone had left and Banks had gone to sleep on the living room sofa. Further, while Banks’ evidence did not touch upon what happened in the bedroom at the material time, because by then he was asleep, his evidence about what had happened earlier in the morning was manifestly suspect. It is apparent from a reading of the transcript that he was an argumentative and evasive witness.
[19] In R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at paragraph 59, Justice Doherty observed that an argument that a higher standard of scrutiny was applied to the evidence of an accused than to the evidence of a complainant “is a difficult argument to make successfully”. He stated:
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.
[20] The appellant has not pointed to anything in the reasons of the trial judge or elsewhere in the record that could support a submission of uneven scrutiny. The duty of fairness in assessing defence evidence does not imply an obligation to find as many frailties in the complainant’s evidence as there were in the defence witnesses so as to ‘balance the books’.
B. The Sentence Appeal
[21] In R. v. Ramage, 2010 ONCA 488, at paragraph 69, Justice Doherty noted that “the controlling jurisprudence directs that an appellate court must defer to the sentencing decision made at trial unless the appellate court is convinced that there is an error in principle or that the sentence is demonstrably unfit: R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 90; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at para. 14.”
[22] In the case at bar, the appellant does not argue that a sentence of five months imprisonment is demonstrably unfit. Rather, he submits that in arriving at that sentence the trial judge made three errors in principle: (i) he failed to give sufficient weight to the likelihood of deportation if the appellant did not receive a discharge; (ii) he treated the appellant’s failure to accept responsibility as an aggravating feature of the case; and (iii) he failed to give sufficient weight to the letters of reference attesting to the appellant’s good character, the extensive community service he had performed and the counseling he had taken. In light of those errors, the appellant submits, a reconsideration of the sentence is called for.
[23] In my opinion, the appellant has not established any of the alleged errors in principle.
(i) the spectre of deportation
[24] The appellant was born and raised in Nigeria. He was 33 years of age at the time of sentencing. His counsel advised the trial judge that in 2000 he was attacked and seriously injured by a militant group in Nigeria because of his ethnic background. After being attacked a second time, in 2004, he decided to leave Nigeria. He was 27 years of age at the time. He resided in Malaysia for two years, and then came to Canada as a refugee claimant in 2006. In accordance with the usual procedure in such cases, a deportation order was issued against him, which was held in abeyance pending a determination of whether he would be granted status as a landed immigrant.
[25] In 2008, the appellant married a Canadian citizen. Upon becoming married, he applied for permanent residence through the spousal sponsorship programme and he withdrew his refugee claim. The effect of withdrawing the claim, however, was to crystallize the deportation order. His sponsorship application has received approval in principle, but final approval is subject to s. 36(1)(b) of the Immigration and Refugee Protection Act, which provides that anyone convicted of a criminal offence is inadmissible to Canada. Accordingly, unless the appellant receives either an absolute or a conditional discharge, he is subject to deportation. He submits that in light of the danger he might face if he is sent back to his native country, the trial judge failed to give sufficient weight to this prospect.
[26] The manner in which the potential for deportation should be approached in fashioning a sentence is well-established. In R. v. Hamilton (2004), 186 C.C.C. (3d) 129, (Ont. C.A.), at paragraph 156, Justice Doherty stated that “the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and principles of sentencing in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act”. Subject to that, Justice Doherty held, “the risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender…” In R. v. Multani, 2010 ONCA 305, the Court affirmed that “while the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range”.
[27] The trial judge’s reasons for sentence reflect an understanding and an application of those principles. He recognized that the appellant “had been attacked and hurt in Nigeria by a militant group”, and that “a conviction for this sexual assault will likely make him inadmissible in Canada, and he will be deported.” However, he concluded:
A conditional discharge would not be in the public interest. It would not sufficiently address denunciation and deterrence in a case such as this, which I see as a serious one. I have considered the immigration implications of a sentence other than a discharge, but I must say that such implications must not abrogate the necessity of addressing denunciation and deterrence.
[28] In substance, the trial judge concluded that a discharge in this case would be inconsistent with the fundamental purpose and principles of sentencing. Bearing in mind the predatory nature of the assault he committed on the complainant and the significant emotional and psychological impact that it had on her, I am of the view that the trial judge’s conclusion that a discharge was outside of the appropriate range of sentence was correct.
(ii) the timing of the appellant’s expression of remorse
[29] The appellant submitted that “the trial judge …erred in treating the appellant’s failure to accept responsibility for the offence as an aggravating factor.” He drew support for this submission in the trial judge’s observation that the appellant “continued to assert his innocence to his friends who wrote reference letters.”
[30] I do not accept that the trial judge treated the fact that the appellant had asserted his innocence at trial as an aggravating factor in relation to sentencing. The trial judge did note that the appellant had testified that he did not commit the assault and that he continued to assert his innocence after he was found guilty. Further, he did say that “this detracts from the value that [the character] references would normally have”. However, the context within which those comments were made is important. At trial, the appellant’s counsel had essentially put to the complainant that she had concocted the allegation of sexual assault, and in his testimony the appellant flatly denied laying a hand on her. After the verdict was rendered, he continued to assert this version of events to the women he enlisted to write letters attesting to his good character. In the course of the sentencing proceedings, however, his counsel told the trial judge that the appellant now “accepted responsibility for this crime”, and stated that the appellant wanted to tell the court “how he feels about the wrong that he did to … the complainant”. The appellant, when given the opportunity to address the court, stated: “I accept responsibility for everything that has happened and I’m very sorry to the court and to [the complainant]…”
[31] In light of the appellant’s remarkable change in position with respect to whether he had sexually assaulted the complainant, the trial judge’s observation that the weight to be given to the character references was diminished was fair and reasonable. By conceding that he had sexually assaulted the complainant, the appellant was implicitly conceding that he had lied to the persons whom he had asked to attest to his character. As a matter of common sense, that affected the weight to be given to their positive opinions about him.
[32] There is no basis for a submission that the trial judge treated the fact that the appellant had asserted his innocence throughout the trial as an aggravating circumstance. Indeed, the trial judge stated that “even if late, such acceptance [of responsibility] is an important point in his rehabilitation, but not as significant on sentencing if he had done this much earlier on.” Some might have regarded that as overly generous to the appellant. The trial judge’s statement that the appellant’s eleventh-hour acceptance of his guilt was not as significant as it would have been had it come earlier is unassailable. In a case of sexual abuse, an early guilty plea has an enhanced value in that it spares the victim the unpleasantness of having to relate the details of the abuse in a public courtroom. There is an important public interest in encouraging early guilty pleas in such cases, which justifies a reduction in the penalty that would otherwise be imposed. I do not read the trial judge’s observation as anything other than a recognition of that fact. I certainly do not read it as implying that the lateness of the appellant’s acknowledgment of guilt was an aggravating factor.
(iii) the treatment of the evidence of good character
[33] In his factum, the appellant submitted that he “had done an extraordinary amount of community service, had taken counseling, and presented letters of reference from six women, all speaking to his good character” and that “the failure to give sufficient effect to these mitigating factors, taken in combination, was an error in principle.”
[34] The trial judge considered all of those matters, and there is no basis for inferring that he failed to give them appropriate weight. Absent an error in principle, it is not the function of an appeal court to simply repeat the process of weighing the relevant sentencing considerations. As Doherty J.A. observed in R. v. Ramage, supra, at paragraph 70, “appellate repetition of the exercise of judicial discretion by the trial judge, without any reason to think that the second effort will improve upon the results of the first, is a misuse of judicial resources.”
C. Disposition
[35] The appeals from both conviction and sentence are dismissed. The appellant’s bail order will expire upon the release of these reasons. If the appellant fails to surrender in custody on or before January 7, 2012, a warrant for his arrest may issue.
MacDonnell, J.
Released: January 6, 2012
R. v. NWAIKU, 2012 ONSC 21
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
DONALD NWAIKU
Appellant
REASONS FOR JUDGMENT
MacDonnell, J.
Released: January 6, 2012