COURT FILE NO.: CR-11-384-AP

DATE: 2012 June 06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

NORMAN RUSSELL

Appellant

Andrew Scott, for the Crown

Jodie-Lee Primeau, for the Appellant

HEARD: June 4, 2012 at Kingston

tRANMER j.

REASONS ON APPEAL

[1] The Appellant appeals against his convictions for the offences of sexual assault and of without lawful authority, engaging in threatening conduct directed at H.D., thereby causing her to, reasonably, in all of the circumstances, fear for her safety. The appeal initiated against sentence was abandoned at the hearing before me. The subject incident is alleged to have occurred on October 5, 2008.

[2] The trial took place before His Honour Justice Masse in the Ontario Court of Justice at Kingston on November 26, 2009, June 14, 2010 and September 16, 2010. The Crown called one witness, the complainant, Ms. H.D.. The defence called four witnesses, including Mr. Russell, Ms. H.D.’ boyfriend, her best friend and another friend whom she spoke to very shortly following the subject incident. Reasons for conviction were given by the trial judge on March 18, 2011 and sentence was imposed on June 30, 2011.

GROUNDS OF APPEAL

[3] The Appellant argues three grounds of appeal,

1. Did the learned trial judge placed too much emphasis on the demeanour of the complainant?

2. Did the learned trial judge fail to properly consider and reconcile important inconsistencies in the description of the incident given by the complainant at trial when compared to what she said to persons that she spoke to immediately following the incident?

3. Did the learned trial judge based his decision on findings of fact that are not supported by the evidence?

1. Did the learned trial judge placed too much emphasis on the demeanour of the complainant.

[4] In his reasons, at page 22, the learned judge said as follows “in the case at bar I have no problem at all accepting the credibility of the complainant, Ms. H.D.. She was courteous and very pleasant during her testimony. She was very emotional in her testimony when describing the incidents and it is clear that she was very emotional when she related what had happened to her friends and to her boyfriend.”

[5] The Appellant submits that the judge relied on these findings, almost exclusively, in determining the complainant to be credible. The Appellant submits that the Ontario Court of Appeal has determined that where there are inconsistencies in the complainant's testimony, it is wrong for the trial judge to decide the case on demeanour evidence. She submits that the trial judge made two errors. Firstly, he based his conviction on the demeanour evidence in the face of serious inconsistencies in the complainant's testimony compared to that of those persons she spoke to immediately following the incident, and secondly, he failed to consider other possible explanations for her demeanour, for example, feeling guilty because she was unfaithful to her boyfriend in having sexual contact with Mr. Russell. She relies on the decision of the Ontario Court of Appeal in R. v. Stewart (1994), 1994 7208 (ON CA), 90 C. C.C. (3d) 242.

[6] The Crown submits that this is a case where this court sitting on appeal must grant significant deference to the trial judge. The Crown submits that the trial judge was alive to the issues, aware of the evidence and did not misapprehend the facts. The Crown cites the decision of the Supreme Court of Canada in R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3 for the principle that in a case that turns on credibility, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Where credibility is a determinative issue, deference is in order and intervention will be rare. While the judge's reasons must explain why the evidence raised no reasonable doubt, there is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. “There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel.” (paras. 31 and 32) The court also stated the principle that trial judges are presumed to know the law with which they work day in and day out. Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection.

[7] The Crown submits that the trial judge is permitted to use demeanour evidence to corroborate or confirm the complainant's evidence. He pointed out that there are two kinds of demeanour evidence, that of the witness while testifying in the courtroom and also that of the witness at the time of the incident and immediately thereafter. In R.v. Varcoe [2007] ONCA194, the Ontario court of Appeal stated that the witness’ emotional upset was manifest the day following the assault, it was apparent to them and noted by her family. Such evidence is admissible and may be used to support the complainant's evidence of a sexual assault. The weight to be given this properly admissible evidence is exclusively a matter for the trial judge's discretion. In R. v. J.A. 2010 ONCA 491, [2010] O.J. No. 2902, the Ontario Court of Appeal noted that the Appellant submitted that the trial judge erred in law in his assessment of credibility by placing extensive emphasis on the demeanour of the complainant following the alleged assault. The court held that the use of evidence relating to the post-event demeanour, or post-event emotional state, of the complainant is admissible. It is clearly permissible for the trial judge to admit evidence relating to the complainant's post event emotional state soon after the incident. Such evidence can be used by the trial judge in support of the witness's testimony together with other factors. In R.v. Boyce, 2005 36440 (ON CA), [2005] O.J. No.4313, the Ontario Court of Appeal stated that trial judges are not required to ignore demeanour in their assessment of the witness in the witness stand. They can use it in conjunction with their assessment of all the evidence and in the full context of the trial.

2. Did the learned trial judge failed to properly consider and reconcile important inconsistencies in the description of the incident given by the complainant at trial when compared to what she said to persons that she spoke to immediately following the incident.

[8] In his reasons for judgment, the learned trial judge said, “in my view, the inconsistencies between the evidence given by Ms. H.D. and what she had said to others on other occasions are of a minor nature or on matters of detail, such as to be expected from any witness, especially one who was in a very emotional state when she spoke to the others. There are no inconsistencies that I can see, on the material matters. Consequently, any inconsistencies in this case do not adversely affect her credibility.”

[9] The Appellant submits that the inconsistencies were not minor. She submits that the trial judge found that the complainant and Mr. Russell barely knew each other. The complainant's evidence and that of her boyfriend on this point differed. The boyfriend said that Mr. Russell was also a client of his where he worked. He and Ms. H.D. had discussed Mr. Russell several times prior to the incident and both referred to him by his first name, Norman. The Appellant also points to the differing descriptions of the touching given by the complainant at trial when compared to what she said to her friend Ms. Ferguson and also to what she said to her friend Mr. Amey. The Appellant also points to the difference in the words said to have been spoken by Mr. Russell by the complainant at trial, and as reported by her to her friends. Ms. Ferguson and Mr. Amey.

[10] The Appellant relies on the decisions of the Ontario Court of Appeal in Stewart, supra, and R. v. Bleakney, [1999] O.J. No. 3511.

[11] The Crown submits that the inconsistencies between her trial testimony and what she said to her friends immediately following the incident must be and was considered by the trial judge in the context of her emotional state. Mr. Bender said that she was crying, distraught and did not really want to talk about it. He never really did find out what had happened. She kind of shut down the relationship after. He could not recall accurate details of what she said to him had occurred. Ms. Ferguson said the complainant was upset when she telephoned her in the late afternoon. She was quite upset and distraught. She was crying really hard and it was hard to understand what she was saying. She made the complainant slow down and she asked her what happened, and the complainant told her. Mr. Amey confirmed that when she telephoned him from her employment, she was very upset. The Crown points out that it is in this context that the inconsistencies concerning the touching and what Mr. Russell said occurred.

[12] The trial judge was alive to the inconsistencies and made a finding that they were minor in nature and to be expected of a person in the emotional state of the complainant at the time.

[13] The Crown submits that the issue as to whether the complainant knew the name of the accused or not was simply a minor matter. In fact, she did admit to knowing the accused previously.

[14] The Crown submits that the learned trial judge properly assessed credibility in accordance with the principles set out by the Ontario Court of Appeal in R. v. M.G., 1994 8733 (ON CA), [1994] O.J. No.2086, a case cited by the trial judge in his reasons. The court said that inconsistencies between the witness’s trial testimony and what she had said in a letter were matters for the trial judge to assess and it was open to the trial judge to accept her testimony. The court said the inconsistency had to be properly assessed along with all other relevant factors, including her demeanour in the witness box in deciding whether her testimony would be accepted. In that case, the trial judge had stated that he found the complainant to be a credible and trustworthy witness having had the opportunity to observe her demeanour in the witness box in examination in chief and in cross examination. In J.A., supra, the trial judge had stated that he found the evidence of the complainant compelling, straightforward, credible, and supported by her demeanour after the event.

[15] The Appellant, in the case before me, points out the trial judge’s description of the complainant's testimony as being “courteous” and “very pleasant” is not the equivalent of being credible, trustworthy, compelling, and straightforward. The learned trial judge did not use these adjectives to describe this complainant's testimony.

3. Did the learned trial judge based his decision on findings of fact that were not supported by the evidence.

[16] The Appellant submits that what Ms. H.D. testified to as being said by Mr. Russell differed from what she told Ms. Ferguson and Mr. Amey he had said. Ms. H.D. testified that he said, “I'll get you, I'll get you, don't worry, I'll get you”. Ms. Ferguson testified that Ms. H.D. did not say to her whether there were or were not words spoken by Mr. Russell. Mr. Amey testified that he was told by Ms. H.D. that Mr. Russell said to her, “we can go someplace. You'll be very, very happy. I can make you very happy”. In his decision, the learned trial judge found that Mr. Russell said to her, “I'll get you”. The Appellant submits that the trial judge did not reconcile the differing versions. Defence counsel also submits that there was no evidence that the words caused the complainant to be fearful.

[17] The Appellant also submits that the learned trial judge made a finding as follows, “in addition, I find it incredulous that a woman like Ms. H.D. would willingly engage in sexual contact with a casual customer of a video store, who is almost twice her age, and with whom she has nothing in common”. (Reasons page 23). The Appellant submits there was no evidentiary foundation whatsoever for such a finding by the trial judge.

[18] With respect to this ground of appeal, the Crown submits that the evidence of the Appellant at trial offends common sense, and that that is what the trial judge meant when he said he finds it incredulous that the complainant would do what the Appellant alleged she did do, that is, engage in consensual sexual conduct with him in her workplace in the circumstances that existed. It was the Appellant's testimony that he asked for a second hug when he was told that he could not go below the belt to touch her. The Crown asks why he would even ask her if he could go below the belt. The Crown questions why this complainant would say to this accused “come on, live a little”, in the circumstances described.

[19] The Crown submits that even if this court finds that this comment and finding by the trial judge is in error, it was made after the trial judge had indicated that he accepted the credibility of the complainant and it does not affect the verdicts. Under Section 686(1)(a) of the Criminal Code, an appeal against a conviction may be allowed in the event of an error of law, an unreasonable verdict, or a miscarriage of justice. Under Section 686(1)(b)(iii), a conviction can be upheld, providing that the error has not resulted in a substantial wrong or miscarriage of justice. The Crown bears the burden of showing the appellate court that the provision is applicable and satisfying the court that the conviction should stand notwithstanding the error. To do so, the Crown must establish either that it is an error so harmless or minor that it could not have had any impact on the verdict or where there are serious errors that would otherwise justify a new trial or an acquittal, the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain. The Crown submits that in this case the offending words of the trial judge are harmless error.

[20] The Crown submits that the evidence reasonably supports the verdicts.

REASONS OF THE TRIAL JUDGE

[21] In the first 14 pages of his 23 page decision, the learned trial judge summarizes the testimony given by the complainant, the accused, the complainant's boyfriend, the complainant's best friend, and another friend of the complainant. There is no complaint made about the accuracy of the judge's summary of the evidence.

[22] The judge then reviews the position advanced by defence counsel and by Crown. He is clearly alive to the issues in the case, namely credibility and that the complainant gave inconsistent stories to her boyfriend, Mr. Bender, her best friend, Ms. Ferguson and her friend Mr. Amey. The judge notes this at page 15 and again at page 18 of his Reasons.

[23] At page 16 he notes that both the honesty and reliability of Ms. H.D. and Mr. Russell are crucial to the outcome of the trial.

[24] The judge then instructs himself on the principles set out by the Supreme Court of Canada in W. (D.). He also refers to the Ontario Court of Appeal decision in R. v. M.G. [1994] 8733 regarding the principles involved in assessing credibility.

[25] The trial judge then makes his first finding in the case that the inconsistencies between the evidence given by Ms. H.D. and what she had said to others on other occasions are minor in nature or on matters of detail. He said this is to be expected given her emotional state at the time she spoke to the other persons. He found that there were no inconsistencies on material matters. He found, therefore, that inconsistencies in the case did not adversely affect her credibility.

[26] The learned trial judge then considers the submission that the accused's version of the incident is plausible and that it would be an error to reject his evidence. He reviews the decision of the Supreme Court of Canada in R. v. R.E.M. [2008] S.C.C. 51 in considerable detail concerning the principle of a trial judge accepting the complainant's evidence as a basis to reject the accused's evidence. He then concludes, a second finding, that he has no problem at all accepting the credibility of the complainant. He says, “she was courteous and very pleasant during her testimony. She was very emotional. In her testimony when describing the incidence and it is clear that she was very emotional when she related what had happened to her friends and to her boyfriend.”

[27] As a third finding, he concludes that he believes her without reservation, because initially she did not want the police to get involved whatsoever, since she felt stupid, embarrassed and ashamed of herself for not having taken control of the situation when the accused came onto her. It took her until the next day to work up the courage to contact the police.

[28] The fourth finding he makes in support of the credibility of the complainant, is that if all of the incident was consensual, and even on the complainant's own urging , as alleged by the accused, then there would be no reason for the complainant to be so emotional when she complained about what had happened to her friends and boyfriend.

[29] The fifth finding he makes in his decision, is that he finds it incredulous that a woman like Ms. H.D. would willingly engage in sexual contact with a casual customer of the video store, who is almost twice her age, and with whom she has nothing in common.

[30] He concludes that where the evidence of Ms. H.D. conflicts with that of Mr. Russell, he accepts her evidence and rejects his. He finds beyond a reasonable doubt that the touching of her breasts was not consensual and that the accused knew it. He finds beyond a reasonable doubt that when the accused left the store, he said, “I'll get you”, in circumstances that Ms. H.D. found to be threatening and she had reason to fear him.

ANALYSIS

[31] In Stewart, supra, the Supreme Court of Canada confirmed that in cases that turn on findings of credibility, the question for the appellate court is: could a jury or judge properly instructed and acting reasonably have convicted. The court pointed out that in applying that test the appellate court should show great deference to findings of credibility made at trial. The court noted that it has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility. The court pointed out that the trial judge has the advantage denied to the appellate court of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn the verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.

[32] The court found that in Stewart, supra, the trial judge cast the onus on the accused to prove something and that the trial judge, having found that he accepted the credibility of the complainant, did not consider whether, on all of the evidence, there existed a reasonable doubt. The court noted in particular that there was significant independent evidence called by the accused that contradicted the complainant on significant matters. The trial judge, in effect, questioned why the complainant would make the accusations she did if they were not true. The court found this to be error on the part of the judge.

[33] There were no such errors made by the learned trial judge in the case before me. There were no inconsistencies in the testimony of the complainant. The inconsistencies were in regard to what she had testified to and what she had said to friends immediately afterwards while in a very emotional state. Justice Masse dealt with these inconsistencies by finding them to be minor and explained by the emotional state of the complainant at the time.

[34] The Ontario Court of Appeal held in Bleakney, supra, that it is error for the trial judge to simply choose between the evidence of the Crown and the defence, thereby excluding and not considering the situation of being unable to resolve conflicting evidence and accordingly being left in a reasonable doubt as to whether the Crown has proven its case beyond a reasonable doubt.

[35] I find that the learned trial judge did not fall into this error in this case. He made the following findings,

1. The inconsistencies between the testimony of Ms. H.D. and what she told her friends were minor in nature and on matters of detail.

2. Such inconsistencies were to be expected given her emotional state at the time she spoke to her friends.

3. There were no inconsistencies on material matters.

4. Having reviewed the Supreme Court of Canada decision in R.E.M., supra in some detail and the principle that acceptance of the complainant's evidence can be a basis to reject the accused’s evidence, in considering the issue as to whether the accused’s version of the incident is plausible, he finds that he has no problem at all accepting the credibility of the complainant.

5. He finds that she was courteous and very pleasant during her testimony and very emotional when describing the incident at trial and also that she was very emotional when she related what had happened to her friends. While he does not use the words, compelling, responsive, direct, non-evasive, non-defensive, credible, straightforward and non-questioning of the questions asked by defence counsel, I find that that is what he meant, implicitly. Further, it is clear that he found her emotional demeanour at trial, and immediately following the incident, to be supportive of her credibility.

6. He finds her evidence supported by her reluctance to involve the police because she felt stupid, embarrassed and ashamed of herself for not having taken control of the situation in the accused came onto her. There is no evidentiary basis whatsoever for the suggestion by the appellant that her emotional state was due to feelings of guilt for having consensually involved herself in sexual conduct with Mr. Russell.

7. He finds that her credibility is further supported by her emotional state when she complained to her friends and wholly inconsistent with the accused evidence that the incident was consensual and at her urging.

8. He finds it incredulous “that a woman like Ms. H.D.” would engage in the conduct described in the circumstances described. In my view, this clearly means that he found that the complainant, who he had the opportunity to observe both in examination in chief and cross examination, with all of the advantages and opportunities that that gives to a trial judge to assess the credibility and reliability of a witness, would not engage in the conduct as described by the appellant. I disagree with the position of the appellant that such a finding would require an evidentiary basis of what woman's group Ms. H.D. would belong in and expert evidence on the sexual psychology of her or such group.

[36] I find that there was evidence upon which the learned trial judge could find that the conduct of the accused caused Ms. H.D. to be fearful for her safety. I further find that the learned trial judge dealt with the issue of what Ms. H.D. said Mr. Russell said to her, and what Mr. Amey said Ms. H.D. told him that Mr. Russell said to her.

[37] I find that the learned trial judge, through his reasons, showed that he had seized the substance of the issues, namely the credibility and reliability of the witnesses and the effect of the inconsistencies on the credibility and reliability of the complainant's testimony.

[38] I do not agree with the submission of the Appellant that the trial judge relied exclusively on the demeanour of the complainant. As indicated above, he used it as one factor in assessing her credibility.

[39] As I have indicated above, I find that there was no evidentiary basis whatsoever to require the judge to consider whether her emotional state was due to feelings of guilt arising from infidelity to her boyfriend.

[40] With respect to the inconsistencies as to the relationship, the touching and what was said, the trial judge was alive to those issues as is clearly demonstrated in his reasons, and he dealt with the issue. I am not entitled to retry the case.

[41] The Supreme Court of Canada in R.E.M., supra, dealt with findings of credibility. At paragraphs 48 through 51, the trial judge is situated in a unique position distinct from that of an appellate court and the appellate court must recognize the challenges in articulating all of the impressions and factors upon which the verdicts are based. To justify appellate intervention, there must be a functional failing in the trial judge's reasons. In the absence of palpable and overriding error by the trial judge, his or her perception should be respected. In the case before me, I do not find palpable and overriding error or misapprehension of the facts, or failure to grasp the issues and deal with them on the part of the trial judge.

[42] The verdict is not unreasonable and it is supported on the evidence.

[43] Despite the very able arguments of counsel for the Appellant, the appeal is dismissed.

Tranmer J.

Released: June 06, 2012

COURT FILE NO.: CR-11-384-AP

DATE: 2012 June 06

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NORMAN RUSSELL

Appellant

REASONS ON APPEAL

Tranmer J.

Released: June 06, 2012