ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 88/11
DATE: 20120404
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – F.D. Appellant
Alexandre David Kurke, for the Crown
Lisa White, for the Appellant
HEARD: March 23, 2012
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA
DECISION ON SUMMARY CONVICTION APPEAL
cornell j.:
[1] This is an appeal from a conviction whereby the accused was convicted of sexual assault contrary to s. 271 of the Criminal Code of Canada . The accused was acquitted of unlawful confinement and harassment charges. For the reasons which follow, I am of the opinion that the appeal should be allowed.
Facts
[2] This is a classic “he said – she said” case. The initial facts are not in dispute.
[3] F.D. was driving in downtown Sudbury when he had occasion to roll down his window and speak to the complainant, J.G. Although the complainant declined the accused’s dinner invitation, she agreed to meet him later that evening. The accused picked up the complainant and proceeded to visit the complainants’ drug dealer where marijuana was purchased. The parties then proceeded to the accused’s apartment where they arrived around 8:45 p.m. They both smoked a joint on the balcony and then re-entered the living room where they proceeded to watch “ Two and a Half Men” . There was conflicting evidence as to whether or not alcohol was consumed.
[4] The television show ran for half an hour and ended at 9:30 p.m. During this time, the accused sent and received a total of seven text messages.
[5] Shortly after meeting the complainant, the accused met another woman named Amanda. The text messages received by the accused while in the company of J.G. indicate that he was to meet Amanda at approximately 9:45 p.m. that evening. The text messages received between 9 p.m. and 9:36 p.m. confirm that this meeting was to take place.
[6] The complainant indicated that the accused gave her a tour of his apartment. While she was standing in the doorway to his bedroom, he slipped under her arm and proceeded to lie on the bed. He then said words to the effect that once I am in my bed, I do not get up. At this point, the complainant returned to the living room to continue to watch the television show. From this point forward, the evidence of each party is dramatically different.
[7] The complainant then said that the accused violently dragged her down the hall back to the bedroom, picked her up and threw her on the bed. She was stunned and scared. Her narrative then continues with her returning to sit on the couch in the living room where she is joined by the accused. She then alleges that the accused stood up and reached in to try and kiss her. When she turned her head away, she said that the accused bit her left breast. At that point, she became quite upset, put on her shoes and proceeded to leave the apartment. After exiting the apartment, she walked a short distance to be in the company of two women who were concerned because she was crying and upset. Moments later, the accused arrived in his car, waited for approximately 20 or 30 seconds and then drove away.
[8] The accused’s version of events is quite different. He acknowledged that the parties smoked a joint on the balcony and then returned to the living room where they watched television. The parties made small talk, watched television and he exchanged various text messages.
[9] At one point, the accused says that the complainant became very upset with the text messages and said: “I suppose that is one of your bitches”. He denies that he made any untoward gestures towards the complainant and states that he got his car to give her a ride home as he had promised to do. When it became apparent that she did not want the ride, he drove off to meet Amanda.
Trial Decision
[10] In his decision, the learned trial judge begins by referring to the decision of the Supreme Court of Canada in R. v. W. (D.) and by indicating that he recognizes the Crown has the burden of proving guilt beyond a reasonable doubt. He then goes on to say that:
[C]redibility is not to be determined on the basis of a witness’ sincerity, but on the basis of the reliability of a witness’ testimony. When the evidence of the accused and the complainant conflict, it is not a matter of deciding which one to believe but whether, on the basis of the evidence as a whole, the Crown has proven guilt beyond a reasonable doubt.
[11] The trial judge makes various findings of fact including that the accused had four or five alcoholic drinks, that the sexual assault took place at the end of the television program, that the accused bit the complainant’s left breast and that in doing so, “it was an angry act with sexual overtones.” He goes on to say that “while she was confused about a few of the details about what happened that evening, she was consistent on the important points.”
Confused/Contradictory Evidence
[12] The general approach to be taken by trial judges was set out by the Supreme Court of Canada in R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869. In that decision, Binnie J. lists a series of detailed propositions outlining the duties of a trial judge to give reasons. At p. 897, para. 55, the court states:
Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated.
The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision.
[13] In Sheppard , it was the use of so-called “boiler plate” by the trial judge and the absence of reasons which prevented the appellate court from knowing the unknown pathway which had been taken by the trial judge in reaching his decision. Faced with this problem, Binnie J. states at para. 65:
Their problem, clearly, was their inability to assess whether the principles of R. v. W. (D.), 1991 93 (SCC) , [1991] 1 S.C.R. 742, at p. 757, had been applied, namely, whether the trial judge had addressed his mind, as he was required to do, to the possibility that despite having rejected the evidence of the respondent, there might nevertheless, given the peculiar gaps in the Crown’s evidence in this case, be a reasonable doubt as to the proof of guilt. The ultimate issue was not whether he believed Ms. Noseworthy or the respondent, or part or all of what they each had to say. The issue at the end of the trial was not credibility but reasonable doubt . [Emphasis added.]
[14] That is the crux of the problem in this appeal. The trial judge is faced with diametrically opposed stories. He makes various findings of fact, almost all of which favour the complainant. The difficulty lies in the fact that the trial judge failed to address or to resolve a great deal of “confused and contradictory evidence on a key issue”.
[15] A failure to sufficiently articulate how credibility concerns are resolved can constitute reversible error. There are many examples of conflicting and contradictory evidence in this case.
Initial Plan
[16] The complainant testified that there was no pre-arranged plan with the accused, but she told the police that the plan was to invite a friend and to go to the accused’s apartment for a barbeque.
Drug Purchase
[17] The complainant testified she did not remember when they purchased the marijuana. When cross examined, she said that they purchased it before going to the medical clinic. In her statement to the police, she said that they went directly to the medical clinic. The accused’s evidence in this regard followed the correct chronology.
Prescription Medication
[18] The complainant had no recollection of stopping at Shoppers Drug Mart after attending the medical clinic, yet the accused’s evidence is that she was standing with him while the prescription was obtained.
Consumption of Alcohol
[19] The complainant originally testified she was not sure what the accused was drinking. In cross-examination, she changed her evidence to say that he was drinking vodka. She based this on the fact that the drink was clear in color. It is equally plausible that the accused was drinking water. She made no mention of the accused drinking vodka when she gave her police statement.
Clothing
[20] In the statement that the complainant gave to police, she said that she only took off her shoes. Her evidence at trial was that she also took off her sweater.
Aggressive Behaviour
[21] In her statement to the police, the complainant said that the accused was being aggressive prior to taking a tour of the apartment during the course of watching “Two and a Half Men” . When cross examined, she said that she did not feel nervous during the course of watching the television program so she accepted the invitation to take a tour of the apartment. When faced with this contradiction, the complainant changed her story yet again and said that he was being aggressive, but not to the point where it caused her much concern.
Sequence of Events
[22] When she gave her evidence in-chief, the complainant said that she took a tour of the apartment, the accused then dragged her to the bedroom and threw her on the bed and after returning to the living room, the accused bit her on the breast. During the course of her evidence during cross-examination, she said that she took the tour of the apartment, her breast was bitten while sitting on the couch in the living room and then she was dragged to the bedroom.
[23] The following exchange took place during the course of cross-examination at pp. 121-122:
Q. Now you testified earlier that [the accused] dragged you to the bedroom. So when did this occur?
A. When did this occur? Sometime when I was at his apartment obviously.
Q. Okay. But you don’t remember when he dragged you to his bedroom, do you?
A. Oh, I didn’t look at the clock and say oh, I think maybe he’s dragging me to his bedroom now.
Q. Okay. Was it after the bite on the breast?
A. I already told you I don’t remember.
Breast Bite
[24] The evidence of the complainant in this regard is most unsatisfactory. When asked about this during examination in-chief, she states at p. 62, line 21:
Q. All right. And when he does this where are you in the livingroom? What’s your position?
A. Sitting on the couch.
Q. Where is he?
A. Standing in front of me.
Q. When he bites you…
A. Yes.
Q. …where does he bite you?
A. On my breast.
Q. Do you recall which one?
A. My left breast, I believe. I don’t remember.
[25] During the course of cross-examination, the following exchange took place at pp. 119-120:
Q. Which breast?
A. I believe it was my left breast.
Q. You don’t remember which breast?
A. No, I don’t. I’m trying to remember. I believe it was my left breast, yes.
Q. But you can’t be sure?
A. I believe it was my left breast.
Q. You can’t be sure?
A. It was my left breast.
Q. Okay. So now you’re changing it from I believe it was my left breast to it was my left breast. I’m sorry. Is there someone you’re smiling at?
A. No.
Q. I thought – I just thought I saw you look back there and smile.
A. No, I’m not smiling at anybody.
Q. Okay. So you believe it’s your left breast was one answer and then your next answer was it was my left breast?
A. I’m pretty sure it was my left breast. That’s my answer.
[26] The evidence provided by the independent witness was that the complainant told her that the accused had bitten her right breast.
Injuries
[27] Although her evidence was conflicted as to when it occurred, the complainant testified that she was dragged down the hall and into the accused’s bedroom where she was thrown on the bed. When asked about this during the course of cross-examination, the following exchange took place at pp. 122-123:
Q. Okay. So at some point when you’re in that residence [the accused] drags you to his bedroom? Is that my understanding?
A. Yes.
Q. I take it then that when he’s dragging you, you were pulling back?
A. Yes, I was struggling and I was scared.
Q. You didn’t want him to get you into that bedroom?
A. I didn’t want him touching me period.
Q. And you were pulling with all your strength?
A. Yes.
Q. You were struggling to get away from him?
A. Yes, I was.
Q. I take it that you would have been kicking him?
A. I don’t remember if I was kicking him. I was trying to get away.
Q. Were you punching him?
A. I already told you I don’t remember. I was only trying to get away.
Q. So he’s able to drag you all the way from the livingroom to the bedroom, is that right?
A. Yes.
Q. Do you remember if you kicked his injured ankle?
A. No.
Q. Why wouldn’t you kick his injured ankle?
A. Pardon me?
Q. Why wouldn’t you kick his injured ankle?
A. Why wouldn’t I kick his injured ankle? What kind of a question is that, why wouldn’t I kick his injured ankle? I don’t know how you – what kind of answer you expect me to give to that, why I wouldn’t kick his injured ankle. I wasn’t exactly thinking about his injured ankle when I was being dragged to the bedroom.
Q. Well, you’re struggling with all your force to get away from him?
A. Yes.
[28] It is apparent that the complainant testified as to a very serious struggle which took place while the accused is alleged to have dragged her down the hall, picked her up and threw her on the bed. Despite the physical nature of this alleged assault, the evidence indicates that there were no injuries whatsoever. The evidence goes beyond this and indicates that not only were there no injuries, there were no marks of any nature whatsoever. That there were no marks on her arms was confirmed by the evidence of the landlord who examined the complainant’s arms as soon as she arrived at home. There was no evidence of any marks on either breast. There was no evidence about any bruising.
Timeline
[29] The evidence of each party is fairly consistent with respect to this issue and suggests that the parties were in the apartment for approximately 40 to 45 minutes. “ Two and a Half Men” started at 9 p.m. The complainant testified that the tour of the apartment started after the show ended at 9:30 p.m. The accused testified that he was on his way to meet Amanda by 9:36 p.m. This is confirmed by the text messages which were introduced into evidence which show that between 9:36 and 9:51 p.m. that evening, the accused was exchanging text messages with Amanda to make arrangements to meet her at Tim Horton’s which he did at 9:51 p.m.
[30] If one version of the complainant’s evidence is to be believed, then that would mean that there was a window of opportunity of about six to ten minutes for all of these events to unfold including the tour of the apartment, the struggle while the complainant was dragged to the bedroom, the return to the living room to sit on the couch and biting of the breast.
Drive Home
[31] The evidence of the accused and the independent witness was that the accused stopped his vehicle and waited for the complainant. When it was apparent that the complainant did not wish to avail herself of the ride, the accused drove off to meet Amanda. Although possible, it is a curious state of affairs that a person who had just sexually assaulted another individual would take the time in the presence of strangers to offer that person a ride home. In point of fact, in this case, this action is entirely consistent with the initial exchange of emails wherein the complainant asks if she could have a ride home and the accused agrees to do this.
Complainant’s Credibility
[32] The complainant was an admitted marijuana user. She admitted to having an addiction to cocaine, oxycontin and alcohol. The marijuana was purchased from her drug dealer. She has a criminal record from 2009 to 2010 wherein she has four separate convictions for theft under $5,000, some of which are only months apart. These multiple offences over a relatively short period of time all involve crimes of dishonesty.
Analysis
[33] The Crown was concerned with the floodgates argument which was raised in R. v. Sheppard . In taking this position, the Crown cited the following passage from R. v. Newton , [2006] O.J. No. 1008 (C.A.) at para. 3 :
Attacks on the adequacy of trial judges’ reasons have become routine on appeals in criminal matters. Many of these challenges proceed on the premise that if counsel for the appellant can point to any piece of evidence that may have assisted the accused, or any inference that may have assisted the accused, or any legal argument that may have assisted the accused which was not specifically alluded to by the trial judge, it follows that the reasons are inadequate. This premise could not be more wrong. Reasons for judgment must clearly tell the losing party why he or she lost and must provide for meaningful review. If those ends are met, any shortcomings in the reasons are not per se cause for reversal. [Emphasis added.]
[34] The Crown also referred to the multitude of cases which state that an appellate court should adopt a stance of deference towards a trial judge and that assessments of credibility should be respected, absent a palpable and overriding error.
[35] Taken in isolation, I readily accept that the approach to appellate review would preclude me from interfering with the trial judge’s decision, however, I am required to look at the reasons in their entirety. When I do this, it is readily apparent that the trial judge has failed to sufficiently articulate how these various credibility concerns can be resolved with the result that there is reversible error. The accused’s evidence differed dramatically from that of the complainant. The litany of extensive inconsistencies in the complainant’s own evidence is such that it was incumbent on the trial judge to articulate how he was able to overcome such inconsistencies to the point that the charge had been proven beyond a reasonable doubt. The trial judge adverts to this very problem in his reasons where he says at p. 12, line 31:
While I am puzzled about the complainant’s allegation that the accused dragged or forced her into his bedroom and threw her on the bed at some point in the evening, I do not think it detracts from her evidence that the accused’s conduct over the course of the period they were together in his apartment led her to become increasingly very uncomfortable about his behaviour. Other than the complainant’s bare allegation that this occurred, there was little evidence to corroborate it. It or something like it may have occurred, but I do not place much weight on this part of the complainant’s testimony.
I otherwise find the bulk of the complainant’s evidence credible.
[36] The concluding statement by the trial judge suggests that he does not find that part of the complainant’s evidence credible, yet he fails to address the matter in any meaningful way. Further, an expression of “puzzlement” by a trial judge with respect to such an important piece of evidence has all of the hallmarks of reasonable doubt.
Conclusion
[37] While I do not believe that there is any basis to find an “unreasonable verdict” within the meaning of s. 686(1)(a)(i), I am of the opinion that the failure of the trial judge to adequately explain how he resolved the confused, conflicting and contradictory evidence on a variety of key issues amounts to reversible error.
Disposition
[38] The appeal is allowed. If the Crown wishes to proceed with the matter, a new trial shall be held before a new judge.
Cornell J.
Released: April 4, 2012
COURT FILE NO.: 88/11
DATE: 20120404
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – F.D.
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA
DECISION ON SUMMARY CONVICTION APPEAL
Cornell J.
Released: April 4, 2012