COURT FILE NOS.: 50/11 AP and 85/11 AP

DATE: 20120413

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Sukdeo Lochan

BEFORE: M.A. Code J.

COUNSEL: Daniel Lawson, for the Appellant Elizabeth Stokes, for the Respondent

HEARD: April 10, 2012

ENDORSEMENT

[1] The Appellant Sukdeo Lochan (hereinafter Lochan) was tried before Barnes J. on a four count Information alleging sexual assault and sexual interference. After a short trial that was completed in two days, judgment was reserved for a month. On February 22, 2011, the trial judge gave reasons convicting Lochan of one count of sexual assault and one count of sexual interference, relating to the same incident, and also acquitting Lochan of one count of sexual assault and one count of sexual interference, relating to a separate incident.

[2] On April 28, 2011, Barnes J. sentenced Lochan to an eleven month conditional sentence to be followed by an eighteen month period of probation. Lochan completed the conditional sentence shortly before the hearing of this appeal.

[3] Lochan appeals to this Court from his convictions. The Crown cross-appeals from the sentence. It is agreed between the parties that the sentence imposed at trial was illegal. The offence of sexual interference, when the Crown proceeds summarily as in this case, carries a mandatory minimum sentence of fourteen days imprisonment pursuant to s. 151(b) of the Criminal Code. The conditional sentencing regime, found in s. 742.1, prohibits such sentences for “an offence punishable by a minimum term of imprisonment”. Accordingly the Crown’s cross-appeal has merit.

[4] However, I am satisfied that Lochan’s conviction appeal also has merit. The case turned almost entirely on credibility. The Crown called the five year old complainant, who was six years old at the time of trial. Her evidence in-chief was essentially an adoption of her video-taped statement to the police, pursuant to s. 715.1, in which she described certain sexual touching by the Appellant Lochan. The defence called Lochan, a seventy-eight year old pensioner with no criminal record, and he denied any such sexual touching. The trial judge applied the well-known principles set out in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and rejected Lochan’s account while accepting the complainant’s account on application of the proper standard of proof beyond reasonable doubt. Unfortunately, the trial judge misapprehended a number of significant inconsistencies in the complainant’s account. As a result of not appreciating these inconsistencies, he never addressed them when assessing the complainant’s credibility.

[5] In brief summary, the complainant’s account in her video statement was that she lived with her grandmother. Lochan was a friend of the grandmother and he would visit. In particular, he visited their apartment during the Vancouver Winter Olympics and they would all watch Olympic events on the grandmother’s television. The complainant referred to Lochan as her “grandpa”. She described how he would “always shout at me” and “get mad at everything”. He would also hug her. After she expressed reluctance to discuss certain “bad things”, because “he will get really madder” and “he gonna shout at me and grandma”, the police officer conducting the interview began asking the complainant certain leading questions. She eventually disclosed that when her grandmother went to the washroom, the complainant would hug Lochan and he would “pull my underwear” and touch her on “top of my underwear” in the area “where you go pee”. She confirmed that Lochan did not actually touch her body as it was “just my underwear” that he touched. However, this touching hurt her “because his nail is long, he don’t cut it”. Her response to Lochan’s touching was, “I tell him stop it, I don’t like that, and I tell my grandma … that’s why they don’t let him come back again”.

[6] The complainant expressed concern that her father “will blame grandma and I don’t want grandma be blamed, and I be blamed”. The police officer reassured her that she had done nothing wrong. The complainant then repeated a number of times that Lochan had touched her in this bad way “three times”, stating and implying that all three incidents were during the Olympics. She also stated that the last time had been on “Monday”. The video interview took place on Wednesday and the police officer understood the complainant to be referring to Monday, March 1, 2010, as the date of the last assault. The complainant had disclosed Lochan’s touching to a friend of the grandmother on Tuesday and they brought her to the police station on Wednesday, March 3, 2010. At the end of the video interview, the complainant told the police officer, “I will tell you the rest of the story … if I figure out some more”.

[7] The day after the video interview, that is, on March 4, 2010, the police officer swore an Information alleging both sexual assault and sexual interference between February 12 and 28, 2010. It is agreed that these first two counts in the information refer to the time period of the Vancouver Olympics. Counts three and four in the Information also alleged sexual assault and sexual interference but specified the date of March 1, 2010 which, as noted previously, was the apparent date of the last incident of sexual touching.

[8] As already set out above, the complainant adopted her video interview as the truth, during examination-in-chief at the trial on December 3, 2010. However, in cross-examination her account changed or expanded in a number of ways. First, she testified that Lochan had touched her private area “thirteen times” and she repeated this. Second, she testified that he would touch her in this way “anytime I go close to him”, that is, “every time” that they hugged. Third, she testified that she had known Lochan for a long time before the Vancouver Olympics and that she had seen him “many times” at her grandmother’s apartment and “many times” at her Uncle Roy’s store, which is near their apartment building. Finally, and most importantly, she testified that Lochan’s sexual touching occurred when she was “down around Roy’s store” and not just when she was at her grandmother’s apartment. She explained that there was a hallway connecting two apartment buildings, that leads to Uncle Roy’s store, and that when “everywhere is clear in the hallway, then he does that”.

[9] It can be seen that the complainant’s account had changed in the nine months between March 3, 2010 and December 3, 2010. Her original account was of three incidents of sexual touching, all at her grandmother’s apartment while watching the Vancouver Olympics on television. Her later account was of numerous incidents of sexual touching, virtually whenever she saw Lochan and whenever they would hug, either at her grandmother’s apartment or in the hallway leading to Uncle Roy’s store. This change in the complainant’s story may simply have been a case of incremental or delayed disclosure, due to her concerns that her father would be upset and would blame her or would blame her grandmother. See: R. v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 at 66-7 (S.C.C.). Or it may simply have been an example of how very young children are less precise about details such as the time, place and frequency of events, as compared to adults. See: R. v. B.(G.) (1990), 1990 CanLII 7308 (SCC), 56 C.C.C. (3d) 200 at 219 (S.C.C.); R. v. W.(R.) (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 at 142-4 (S.C.C.); R. v. C.(H.) (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45 at para. 42 (Ont. C.A.)

[10] Alternatively, the material changes in the complainant’s account may have signified that she was careless with the truth or was simply unreliable. See: R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 at 354-6 (Ont. C.A.); R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 at 173-4 (Ont. C.A.). Whatever the explanation, the change in the complainant’s story was a troublesome and important issue and the trial judge was obliged to address it in his reasons. See: R. v. R.(D.) (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 at 308 (S.C.C.).

[11] Unfortunately, the trial judge appears not to have appreciated the changes in the complainant’s account. In his otherwise careful and thorough Reasons, he summarized the complainant’s initial account to the police as follows:

On Wednesday March 3rd, 2010, VS [the complainant] provided a sworn videotaped statement to the police and that statement was admitted for the truth of its contents pursuant to s. 715.1 of the Criminal Code. VS described two instances of sexual assault; the offences are alleged to have occurred during the Winter Olympics in Vancouver in 2010, somewhere in February 2010. VS stated that on that occasion Mr. Lochan was over at [her grandmother] Marlene’s home watching the Olympics on television. She explained that when Marlene went to the washroom Mr. Lochan would hug her and in the process, pull on her underwear and then pull it down.

The second instance that VS recounted related to an instance where she said Mr. Lochan touched her in her private parts at Roy’s store. Roy was Marlene’s son and his store was located downstairs in the apartment building where Marlene lived. [Emphasis added.]

[12] It can be seen that the trial judge’s summary of the complainant’s initial account, in the police video statement, is inaccurate. She did not describe “two instances” of sexual touching, one at her grandmother Marlene’s apartment and one at her Uncle Roy’s store. All the incidents, and there were said to be three, took place in the grandmother’s apartment.

[13] This misapprehension of the evidence was never cleared up later in the trial judge’s Reasons. The only reference he went on to make to any changes or inconsistencies in the complainant’s account was the following:

Now, I have a few comments about the complainant’s evidence. VS informed the police that Mr. Lochan touched her three times. In court she said that he touched her somewhere between three to 13 times.

[14] This is not an accurate or complete summary of the changes in the complainant’s account. Her testimony at trial, in cross-examination, was not that the number of assaults was “somewhere between three to thirteen times”. She was quite specific and twice gave an estimate that there were “thirteen” incidents of improper touching. Far more importantly, the trial judge made no mention of the more significant change in the complainant’s account concerning where the assaults had occurred. By the end of his Reasons, it is apparent that the trial judge had still not appreciated that the allegation of assaults at Uncle Roy’s store was an entirely new revelation that had emerged for the first time in cross-examination at trial. His concluding Reasons are as follows:

I accept VS’s account of the events on the night of the Winter Olympics and conclude that the Crown has proved beyond a reasonable doubt that Mr. Lochan touched her in a sexual manner as she described and therefore he is found guilty of those specific Counts.

With respect to VS’s allegations as to what Mr. Lochan’s alleged to have done to her at Roy’s store, I find that those allegations lack detail. They are alleged to have occurred in what for all intents and purposes is a very public area, a public hallway. These factors lead me to a state of reasonable doubt and conclude that Mr. Lochan is found not guilty of those allegations. So, I think that is Counts 1 and 2 guilty. And not guilty on 3 and 4.

[15] As I read this concluding passage of the trial judge’s Reasons, he treated Counts one and two in the Information as being referable to the incidents at the grandmother’s apartment and he treated Counts three and four as being referable to the incidents at Roy’s store. There is nothing about the four counts in the Information that suggests this kind of particularization. More importantly, the allegation of assaults at Roy’s store was never made until the complainant was cross-examined at trial and it was unclear when these assaults had occurred. This concluding passage in the Reasons supports the view that the trial judge continued to misapprehend the most important change in the complainant’s evidence. His understanding was that the complainant had alleged “two instances” of sexual touching in her initial March 3, 2010 statement, one at the apartment (Counts one and two) and one at Uncle Roy’s store (Counts three and four), and that this account of “two instances” was reflected in the March 4, 2010 Information. As noted above, this does not accurately reflect the evidence nor does it reflect the way in which the four counts were particularized in the Information by reference to the dates of the incidents.

[16] The Respondent Crown concedes that the trial judge misapprehended the evidence in the sense that he made “a mistake as to the substance of the evidence … and those errors play an essential part in the reasoning process resulting in a conviction”. See: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 at 218 and 221 (Ont. C.A.); R. v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 (S.C.C.).

[17] The trial judge gave great weight to one particular detail in the complainant’s account, concerning Lochan’s long fingernail and how it had hurt her. This was an appropriate consideration. However, in assessing the complainant’s credibility, that one compelling detail had to be considered together with the significant changes in the complainant’s account, as it had evolved over time. In R. v. G.(M.), supra at 356, the trial judge had attached considerable weight to the complainant’s demeanour, when assessing her credibility, but failed to consider a material inconsistency in her evidence. As Galligan J.A. put it (Arbour J.A. concurring), in reversing the conviction at trial:

There was virtually no support for the complainant’s testimony. There was a very material inconsistency between what she said in her testimony and what she said in her letter. Notwithstanding that inconsistency, it was, of course, open to the trial judge to accept her testimony and convict the appellant. However, that inconsistency had to be properly assessed along with all other relevant factors including her demeanour in the witness-box in deciding whether her evidence would be accepted. It is my opinion that the trial judge’s reasons demonstrate that he failed to grasp the importance of that inconsistency when assessing the complainant’s credibility. I am not certain that if the trial judge had grasped the importance of the inconsistency he would necessarily have permitted “her demeanour in the witness-box” to lead him to believe her testimony. I am not convinced that the result would necessarily have been the same had he grasped the importance of that inconsistency. It follows that I do not think that there has been a satisfactory trial. [Emphasis added.]

[18] For the same reasons, I would allow Lochan’s appeal, set aside the convictions on Counts one and two, and order a new trial. The Crown may want to consider whether it is in the public interest to re-prosecute this case. Lochan is now eighty years old, he is frail and walks with a cane, and he has completely served the eleven month conditional sentence. Counsel advises that he lives with his daughter, far from the building where the complainant and her grandmother reside, and that he has no contact with them. In all these circumstances, this may be an appropriate case for the exercise of prosecutorial discretion.

[19] The Crown’s cross-appeal against sentence is dismissed in light of Lochan’s successful appeal against conviction.

M.A. Code J.

Date: April 13, 2012