COURT FILE NO.: 145/11

DATE: 20120417

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. S.M.

BEFORE: M.A. Code J.

COUNSEL:
Lakhwinder Sandhu , for the Appellant
Heather Davies , for the Respondent

HEARD: April 13, 2012

ENDORSEMENT

[ 1 ] The Appellant S.M. (hereinafter S.M.) was charged in a three count Information with two common assaults against his wife and with sexually assaulting his wife. The common assaults were alleged to have taken place on two consecutive days, that is, on June 23, 2009 (Count one) and on June 24, 2009 (Count two). The sexual assault was alleged to have occurred on the second date, that is, on June 24, 2009 ( Count three).

[ 2 ] After a two day trial, Hogg J. convicted S.M. on December 14, 2010 of one common assault and acquitted him of the other common assault. Hogg J. also convicted S.M. of sexual assault. He had no prior criminal record, he worked at a factory job, and he had spent five days in pre-trial custody. He was sentenced to fifteen days imprisonment, to be served intermittently on weekends, followed by two years probation.

[ 3 ] S.M. has now served the custodial portion of his sentence and has completed more than half of the period of probation. He has divorced his wife and is still working. He appeals only from his convictions. The Crown concedes that the conviction appeal should be allowed. I agree with the Crown’s concession.

[ 4 ] The main ground of appeal concerns the trial judge’s failure to address significant inconsistencies in the complainant’s evidence. I will briefly summarize some of the inconsistencies, as follows:

• The first common assault, on June 23, 2009, occurred when S.M. allegedly punched the complainant’s right arm with his fist. The complainant described this assault as occurring after she had been soaking and rubbing her own feet and then she described it as occurring after she had been rubbing and soaking S.M.’s feet. She also described it as occurring before she and S.M. had sex and then she described it as occurring after they had sex. Finally, she described it as occurring “during sex”. She consistently described the sex as consensual on June 23, 2009.

• The second common assault, on June 24, 2009, occurred when S.M. allegedly punched the complainant’s right leg with his fist while they were discussing the bread she had made. S.M. then insisted on having sex with her, without her consent. The complainant also described the common assault as hitting her “with his legs” and described it as occurring “after having sex”. She initially described the non-consensual sex as lasting fifteen minutes and then testified that it lasted thirty to forty-five minutes. Finally, she testified that S.M. just rolled over and fell asleep and never hit her after having sex.

[ 5 ] The Crown’s case depended entirely on the complainant’s credibility. Before accepting her evidence, the trial judge had to address the troubling material inconsistencies in her various descriptions of the offences. At no point in his brief Reasons did the trial judge even mention these inconsistencies. This failure to consider material evidence, essential to a fair and reasonable verdict, amounts to reversible error. See: R. v. R.(D.) (1996), 1996 207 (SCC) , 107 C.C.C. (3d) 289 at 308 (S.C.C.); R. v. G.(M.) (1994), 1994 8733 (ON CA) , 93 C.C.C. (3d) 347 at 354-6 (Ont. C.A.); R. v. Norman (1993), 1993 3387 (ON CA) , 87 C.C.C. (3d) 153 at 173-4 (Ont. C.A.); R. v. Morrissey (1995), 1995 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.).

[ 6 ] The above error would be sufficient to order a new trial. However, there is difficulty in this case in discerning which of the two counts of common assault resulted in an acquittal and which resulted in a conviction. Both parties agree that the trial judge’s brief Reasons indicate that he accepted the complainant’s evidence in relation to the common assault allegedly committed on the first day, that is, on June 23, 2009. He stated, “on the first night while she was looking after your feet, you hit her in the arm, and there is no question the Crown has proved that assault”. I agree with the parties that this passage in the Reasons must refer to Count one. However, the verdict endorsed on the Information and signed by the trial judge states that Count one was “dismissed”.

[ 7 ] Similarly, the trial judge’s Reasons indicate that he did not accept the complainant’s evidence on Count two. He stated, “You have also been charged I gather from kicking this lady, there is some doubt in my mind concerning that and that charge will be dismissed”. Again, the parties agree that the trial judge must be referring here to the common assault on the second day, that is, on June 24, 2009. I agree with this interpretation of the Reasons. However, the verdict endorsed on the Information and signed by the trial judge states that Count two is one of the two charges on which S.M. was convicted and on which he was sentenced to “fifteen days in jail”. The version of the verdicts recorded on the Information is somewhat more logical and coherent, as it shows the trial judge convicting of the common assault on June 24, which the complainant related to the sexual assault that same day. However, this is not what the trial judge’s Reasons indicate.

[ 8 ] In light of the above inconsistency between the trial judge’s Reasons and the verdicts that he endorsed on the Information, the Respondent Crown very fairly concedes that I cannot order a re-trial on either of the two counts of common assault. The Crown has not cross-appealed against acquittal and the record is ambiguous as to which of the two counts of common assault resulted in an acquittal.

[ 9 ] That leaves only Count three, alleging sexual assault on June 24, 2009. The trial judge’s Reasons and the endorsement on the Information both indicate that he convicted on this count. Accordingly, the conviction for sexual assault on Count three must be set aside and a new trial ordered due to the error discussed above concerning the trial judge’s failure to consider material inconsistencies in the complainant’s account. However, I urge the Crown to consider whether it is in the public interest to re-prosecute S.M. on this one count. He has served his sentence, he has no other criminal record, and the complainant’s account is undermined by a number of material inconsistencies, as already noted. Furthermore, the Crown would now have to accept, at any re-trial, that the alleged sexual assault on June 24 was not preceded by any common assaults, on either June 23 or June 24, 2009, due to the effect of res judicata . See: R. v. Grdic (1985), 1985 34 (SCC) , 19 C.C.C. (3d) 289 at 293-4 (S.C.C.); R. v. Mahalingan (2008), 2008 SCC 63 () , 237 C.C.C. (3d) 417 (S.C.C.).

[ 10 ] For all these reasons, S.M.’s appeal from conviction is allowed, acquittals are directed on Counts one and two, and a re-trial is ordered on Count three. It is recommended that the Crown consider exercising prosecutorial discretion in relation to Count three.

[ 11 ] I wish to thank both counsel for the very diligent, responsible and effective way in which they conducted this appeal.

M.A. Code J.

Date: April 17, 2012