HH v Her Majesty the Queen, 2012 ONSC 3884
COURT FILE NO.: SCA(P) 1372/11
DATE: 20120723
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
Her Majesty the Queen
C. Coughlin, for the Respondent/Crown
Respondent
- and -
H.H.
J. Dawe, for the Appellant
Appellant
HEARD: April 23, 2012
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice E. Allen,
dated July 5, 2011]
Durno J.
[1] The appellant, age 30, was a manager at an electronics store. C.E., aged 16, a part-time employee at the store, testified the appellant invited him to his home and sexually assaulted him. The appellant testified, denied the allegations, called character evidence and witnesses to dispute C.E.’s evidence. After a three day trial with seven witnesses that occupied 370 pages of evidence, His Honour heard submissions from the appellant’s trial counsel, did not call on the Crown, and in Reasons that encompassed four pages of transcript including 34 lines of analysis convicted the appellant. The trial judge imposed a 6 month jail sentence that is not appealed.
[2] The appellant says the trial judge’s reasons provide what he found but fail to tell the appellant and the appellate court ‘why’ he did so. The reasons do not address much of the defence evidence and in relation to the appellant’s sister’s evidence reflect inappropriate factual and legal analyses. He submits a new trial must be ordered.
[3] The respondent concedes the trial judge could have done a better job explaining why he reached the conclusions he did and could have provided more fulsome reasons. However, the reasons are adequate to explain to the appellant why His Honour reached the conclusions he did and to permit the appellate court to review the judgment.
[4] For the following reasons, the appeal is allowed and a new trial ordered.
The Evidence
[5] C.E. started working at the store in September, 2009, as part of a high school co-op program. He was hired in November, 2009, as a part-time employee working between 20 and 28 hours a week. He was pleased to obtain a job and showed an interest and aptitude for computer repair work. The appellant was the service manager responsible for the Geek Squad, comprising three different store departments, including computer repairs. However, he was not C.E.’s immediate supervisor. In May 2010, the appellant changed jobs and became the store’s operations manager.
[6] In the Fall of 2009, the appellant and C.E. socialized occasionally, mainly at company events. C.E. said that while driving in the appellant’s car, the appellant would touch his leg, gradually moving his hand higher although C.E. did not regard the actions as sexual. The appellant also started favouring him by assigning him extra shift and buying him gifts. C.E. also said the appellant when managing the Geek Squad, “created the schedules” for the twenty squad members and pretty much managed it. The appellant gave him his used iPod, bought him a wallet, drumsticks and a textbook he needed to study for a technical certification examination. The wallet was received after the appellant returned from a vacation and other employees received similar gifts. Other evidence showed the purchase of texts was company policy and the store reimbursed the appellant. He also gave him a credit card for food and gas and paid the bills. Another store employee testified the appellant gave him a credit card as well because the appellant was diabetic and could not leave the store to get food as the manager. The credit card was to permit the employee to buy food for the appellant.
[7] Other employees testified it was a common practice for managers to offer employees special discounts. While the appellant gave other employees discounts he did not give any to C.E. with one exception. The appellant would always tell him to wait on the item. That is what happened with the one item that was discounted, a television set that the appellant sold to C.E. for $200. If it had been someone else, C.E. thought the appellant would have sold it for $300 or $400. While the appellant would give him more hours and preferred shifts, he did not like to give C.E. discounts.
[8] C.E. testified the appellant filed a formal disciplinary report unfairly blaming him for a problem with a computer repair. It was a final report, a Performance Counselling Record (PCR), that precluded him from getting a raise on his next review and could have resulted in his dismissal if there was another complaint. C.E.’s immediate supervisor and the appellant testified the incident was dealt with without any formal report being filed.
[9] In January or February, 2010, the appellant invited C.E. to “hang out” at the apartment where he lived with his father and sister. C.E. said the appellant would arrange their work schedules to facilitate C.E. going to the appellant’s residence. This occurred around twenty times, generally between the end of the school day and the start of an evening shift. When C.E. refused an invitation, the appellant became upset and caused problems for C.E. at work including cutting back his hours and refusing to help him with customers or problems at work. To make “everything at my work nice and peachy again” C.E. told police he decided to “throw the dog a bone and go over.”
[10] C.E. played baseball and was anxious to avoid working the company’s minimum of three shifts per weekends so that he could continue playing. He said the appellant arranged for him to work fewer weekend shifts despite the policy. The appellant testified that he had no authority to rescind C.E.’s exemption from working weekends. C.E. said the appellant scheduled him to work when he had baseball games because he was refusing to go to his apartment. In cross-examination, he was confronted with one form signed before the appellant was involved with C.E.’s schedule and one signed after where persons more senior than the appellant had approved his being able to play baseball and not be available for the required number of weekend shifts. Accordingly, it was the defence position that with senior management approval, C.E.’s baseball schedule was never in jeopardy, contrary to his evidence and that it was senior management that permitted him to not comply with the policy.
[11] In his first statement to police on June 5, 2010, C.E. acknowledged that it was not until about a month earlier, when the appellant became operations manager, that he first had authority over C.E.’s scheduling. However, he maintained that the appellant cut back his hours and at other times gave him additional hours and shifts while he worked there. In his trial evidence he said the appellant mostly threatened to cut back his hours and suggested the appellant could have asked the operations manager to change his schedule. The operations manager testified the appellant never asked her to reduce C.E.’s hours. C.E.’s schedule was determined by a computer program. The appellant had no access to the program before he became operations manager in May, 2010. Store managers, including the appellant, had their schedules set by the store’s general manager.
[12] At the appellant’s apartment, C.E. would sit on the couch while the appellant sat on a chair. The appellant would get up on the pretext of doing something and come and sit on the couch with C.E. They watched television or played video games. The appellant started asking if he could lay his head in C.E.’s lap, saying he was tired. He would ask C.E. to remove his belt buckle because it hurt his head. The appellant began making sexually explicit overtures, talking of his sexual frustration. He had sent C.E. text messages saying he wanted to suck his penis. When the appellant wanted to put his hands down C.E.’s pants, C.E. initially refused but eventually, on two occasions, decided to “throw [the appellant] a bone to keep things better” and let the appellant lower C.E.’s pants as he was touching C.E.’s genitals through his boxer shorts. The incidents were about a week apart. After the second incident, C.E. never returned to the appellant’s apartment.
[13] For the rest of May, C.E. made excuses to avoid seeing the appellant outside of work but agreed to “hang out” on Sunday, May 30. C.E. did not attend and the appellant drove past C.E.’s girlfriend’s home where he angrily confronted C.E., demanding his resignation. The appellant later calmed down. The next Friday, C.E. had agreed to have dinner with the appellant but did not appear. The appellant spammed C.E. with a barrage of repeated texts and e-mails, copies of which were introduced at trial. They were angry and threatening in places and disappointed and affectionate in others. In one, the appellant demanded C.E.’s resignation or else he would get no hours the next week. Later, the appellant said, “Babes I love you, not [sic] matter how much you hurt me.” C.E. sent an apologetic reply calling the appellant, “Babes,” professed to love him and owe him more than his life.
[14] When C.E.’s parents saw some of the texts, they took him to police on June 5 and told him not to leave anything out. Over the next ten days C.E. made three videotapes statements to police that he adopted at trial. In the first statement on June 5, C.E. said the appellant had kissed him “25, 50 times” with a “quick peck on the cheek” while they were talking, that he had led the appellant on and when asked if the appellant had tried to make him do sexual things, C.E. said nothing ever happened. He admitted he agreed to everything until the appellant tried to lower his underwear when he said “no” and the appellant stopped. C.E. did not feel the conduct was criminal because he led the appellant on.
[15] In his June 8^th^ statement, C.E. said the appellant was “pretty much, in a sense, raping me.” When asked what was going on when he was at the appellant’s apartment, C.E. said:
Uh, he starts off like normal. He sits on the other chair, we’re just um, watching TV, just having a normal conversation. Then he would get up and do something for like a minute. And then he was like come sit beside me. Then he would start laying on me.
[16] The appellant would put his head in C.E.’s lap and say he was tired and needed to sleep. The appellant would do that for “like twenty minutes.” The appellant would try to put his hands down C.E.’s pants or unbuckle his belt. He would tell the appellant, “No.” Later he got C.E.’s pants to his knees and tried to take off his boxer shorts while “like grabbing [his] area” while C.E. said, “No.” C.E. said all the sexual things were happening between February and June although he first went to the appellant’s apartment when he doing his co-op. Of the twenty odd times he went there something of a sexual nature happened every time. Sometimes it would not be as “aggressive, more mild,” and others “it would be extreme” – the two incidents where the appellant took C.E. pants down.
[17] C.E. never mentioned to the police or in his examination-in-chief that the appellant’s sister was usually at the apartment when he would visit or that he had ever gone to the appellant’s bedroom. In cross-examination, for the first time he said they had gone to the appellant’s bedroom on each occasion after the first ten times he was at the apartment. He admitted in cross-examination, the appellant’s sister was home most of the times but maintained that she was never in the room where the sexual activity occurred.
[18] C.E. also told police that the day before his third statement; the appellant stopped him on the way to school and begged him not to pursue criminal charges.
[19] The appellant denied ever touching C.E. sexually or feeling any sexual attraction to him. He had many younger friends and his relationships with them were platonic. C.E. was at his apartment about ten times, it could have been a little bit more or less, and stayed for a few hours six or seven times. They played video games in the living room, sitting on separate couches and never went to his bedroom. His sister, A., was always home and usually sat in the living room on the computer. She would go to the balcony to smoke frequently. From there she had a view of his bed through a gap in the blinds inside the appellant’s bedroom.
[20] The appellant’s barrage of e-mails to C.E. were sent when he did not show up to dinner and did not reply to the appellant’s messages. He lost his temper and repeatedly re-sent a series of “ridiculously stupid” messages. He admitted sending similar messages a week earlier when C.E. had not arrived for a scheduled meeting, going to C.E.’s girlfriend’s home and confronting him.
[21] The appellant admitted some of his messages to C.E. could be read as sexual or romantic but denied that they were meant in either way. He sent the message that included, “I want to suck your dick” but followed it up with another message clarifying that it was a joke. There were no copies introduced of either email introduced. C.E. said he assumed the appellant had deleted them from his phone when he would take it from him at work. The appellant said he frequently sent similar joke messages to other male friends and co-workers. C.E.’s supervisor testified the workplace atmosphere was “relaxed” and “very informal.” The employees were “all … a bunch of goofs” who got along well.
[22] The appellant testified the “threats” to resign or have his hours cut back were meant to annoy C.E. but not to be taken seriously. References to love and “Babe” were not intended as romantic, but simply reflected the way they talked to each other.
[23] The appellant admitted circling the block outside C.E.’s housing complex hoping to run into him so they could talk on June 14, 2010. When he saw C.E. he stopped him, apologized for sending the text messages, said he did not want to go to jail and asked C.E. to call the company’s Human Resources department and tell them it was all a mistake. While they were speaking, C.E. gave him a necklace. At trial, when shown a necklace, C.E. admitted that it was his necklace but denied giving it to the appellant. The appellant must have taken it from him at some earlier time. The appellant denied he took C.E.’s necklace.
[24] The appellant explained that as a manager it was important to attempt to maximize the company’s profit. This would result in delays in giving employees discounts. Based on reports that are generated on Mondays, they decide what could be sold off.
[25] A.H., the appellant’s sister, testified C.E. was at the apartment roughly seven times including up to five that were quick in and out visits. Most of the visits were during the work week. While they were there C.E. would sit on one living room couch while the appellant would sit on the other one while they watched television or played video games. Except for going out with her father when he got home after the time C.E.’s visits ended, she was in the apartment all the time because she was suffering from severe depression at the time. On occasion, when the appellant and C.E. were at the apartment she would go onto the balcony for a cigarette. She did not really pay attention to what they were doing. The appellant and C.E. might have gone to the bedroom but she never saw them do so. From the balcony, there was a very narrow space through which it was possible to see into her brother’s bedroom although her primary focus while on the balcony would be away from the building into the parking lot/playground area.
[26] Amanda Punch, the store’s operations manager, testified the appellant became directly involved in scheduling after May 9, 2010. It was the appellant who first brought to her attention that C.E. might have some scheduling conflicts during baseball season. While she was unable to recall any specific occasion, it was probable that on a few occasions she made changes to C.E.’s schedule at the appellant’s suggestion. The appellant denied he ever had any informal discussion with Ms. Punch about changing C.E.’s scheduled before May 9, 2010. He had spoken to the general manager with C.E. present about his first request to have an “availability deficiency” because of baseball and for the second request, the appellant spoke to a general manager who approved the request. The appellant could not approve the “deficiency.”
[27] Ms. Punch reimbursed the appellant for the text he bought C.E. but had never told C.E. she had done so, nor did she ever explain to him the store discount policy.
[28] Four witnesses testified to the appellant’s good reputation in the community for honesty and/or sexual integrity.
[29] Two former co-workers, Erion Karroqe and Mike Antoniadis, testified they became friends of the appellant while working at the store despite a similar age difference to the appellant and C.E. Both had meals with the appellant, received gifts from him and went to his apartment. Nothing sexual had ever occurred between them. Karroqe said that the appellant’s sister was always at the apartment and using the computer when he visited the appellant.
The Reasons for Judgment
[30] The trial judge’s reasons are as follows:
Mr. H.H. is charged with sexually assaulting [C.E.], a teenage employee under his supervision in the six week period ending June 5, 2010. He says Mr. H.H. cultivated his friendship, invited him to his home repeatedly, and was increasingly physical with him, touching his genitals twice at his home. He says he needed his job, felt Mr. H.H. had influence over him, and did not know how to deal with the situation. He went to the police on three occasions, the first at his parent’s insistence. He did not feel Mr. H.H. was criminally responsible; rather he took responsibility for leading him on. His disclosure of the events was gradual.
Mr. H.H. denies the touching. He called a number of witnesses to indicate that [C.E.] was mistaken about his control of schedules. He called character evidence. He called his sister who claimed to be home all the time and to always to have been present when [C.E.] visited. He maintained his communications with [C.E.], admitted to or produced in court, were jokes or intended to irritate [C.E.]
[C.E.] was reluctant to go to the police, was confused about how to handle the situation, and felt his employment was at stake. Ms. Simpson’s submissions about the slow and incomplete disclosure and failure to follow alternative courses of conduct are similar to those criticisms made of child sexual assault and victims of domestic assault and are entitled to the same consideration. There are frailties with his evidence, which are consistent with his age and the situation he was in. I find him to be a credible witness.
Mr. H.H. befriended a teenager in his employment, had him home alone regularly, expressed his desire to suck his penis, sat outside his girlfriend’s home texting him frantically on her birthday at her birthday party to get him to dinner, and sent him the barrage of emails placed in evidence. His conduct admits of only one interpretation and that is infatuation with [C.E.]. The character in court evidence do not ameliorate that fact. His sister presents as being under a disability of some sort. The idea that she was present on every occasion, never had a nap, and would spy on her brother from the balcony, in the context of my assessment of the evidence of Mr. H.H. and [C.E.], has no weight. Mr. H.H. was infatuated with [C.E.]. [C.E.] was a teenager dealing with a complex situation. Mr. H.H. exploited his authority and tried to do what he told [C.E.] he wanted to do and [C.E.] reluctantly went to the police. There is no doubt in my mind that the events complained have occurred. There will be a conviction on count two and a conditional stay on count one.
Are the Reasons Deficient?
The Positions of the Parties
[31] The appellant submits the “cryptic reasons” fail to provide why the trial judge accepted C.E.’s evidence and rejected the defence evidence. The appellant is entitled to know why the trial judge was not left with at least a reasonable doubt. Apart from placing no significance on C.E.’s delayed and evolving disclosure, the balance of the Reasons are conclusory, finding C.E. credible despite the unspecified frailties the trial judge found were consistent with his age and situation he was in. The Reasons make no reference to the defence evidence that contradicted C.E. on important aspects of his account.
[32] The last paragraph of the Reasons contains the trial judge’s reasons for rejecting the defence, finding the appellant was infatuated with C.E., apparently concluding from that that the sexual offences occurred and the appellant’s evidence must be false. The appellant had presented alternative explanations for befriending C.E., called evidence that he was never alone with C.E. at the apartment, that he had other young friends and nothing sexual occurred, and gave innocent explanations for his comments in the e-mails. While the trial judge was not required to accept the defence evidence, the appellant was entitled to know why it was rejected and did not raise a reasonable doubt.
[33] The appellant says, the trial judge’s analysis of A.H.’s evidence is problematic because he summarily dismissed it finding it had no weight apparently because she was under some sort of disability. What is left unanswered is why he found her evidence entirely unworthy of credit. Her disability did not necessarily make her either unreliable or untruthful. It did explain why she was always home. Evion Karroqe also frequented the appellant’s apartment and said A.H. was there every time he was there. C.E.’s visits were always in the late afternoon so it was not inherently implausible that she was never napping at that time of day. Contrary to the trial judge’s finding, she never said she spied on her brother from the balcony. She simply said part of her brother’s bedroom was visible from the balcony.
[34] The contrast in how His Honour dealt with two witnesses is stark. C.E. was found credible despite the unspecified frailties in his evidence and with no reference to the defence evidence, while A.H.’s evidence was dismissed as having no weight in spite of confirming evidence. In both cases the trial judge reached conclusions but provided no cogent explanation for either.
[35] The respondent/Crown submits that while the reasons could have done a better job explaining why His Honour reached the conclusions he did and that “on some level [the reasons] are troubling,” they adequately demonstrate the rationale for the verdict and permit effective appellate review. While the reasons are brief, it is plain from the record why the appellant was convicted. The rationale for the conviction is obvious.
[36] Mr. Coughlin agrees the reader of the reasons would have to draw the inference the trial judge addressed the defence arguments because they are not addressed in the reasons. I would add that the reader would also have to draw the inference His Honour reconciled or explained the inconsistencies in a similar manner because they are not addressed in the reasons.
[37] Starting at par. 46 of the Crown’s factum the evidence that supported the trial judge’s conclusions is set out. It was a straightforward case, a credibility contest. There were sound reasons available for rejecting A.H.’s evidence and the discrepancies between C.E.’s evidence and the defence witnesses were not as extreme as the appellant suggests.
Law
[38] Reasons for judgment in criminal cases serve three main functions. First, reasons tell the accused, the Crown and the complainant(s) why the decision was made. Reasons permits the parties to know the judge has heard and considered their arguments and that he or she has not taken into consideration any extraneous matters. Second, reasons provide public accountability of the judicial decision. Third, reasons permit effective appellate review. R. v. R.E.M., 2008 SCC 51 at para. 11. Here, the first and third functions are under consideration.
[39] Trial judges’ reasons are not held to some abstract standard of perfection. It is neither expected nor required that the reasons provide the equivalent of a jury instruction. R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. That the trial judge did not refer to each and every issue raised by the defence is not fatal to the conviction. Nor does a trial judge err by not addressing every factual conflict in the evidence. R. v. Drabinsky, 2011 ONCA 582.
[40] However, reasons must tell the parties affected by the decision why it was made and also permit effective appellate review. R.E.M., supra, at para. 11 and 12. At para 17, after outlining the functions of reasons, Chief Justice McLachlan wrote:
17 These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge's reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added).
What is required is a logical connection between the "what" - the verdict - and the "why" - the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.
18 Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. Doherty J.A. in Morrissey, at p. 525, states:
A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [Emphasis added.]
19 The judge need not expound on matters that are well settled, uncontroversial or understood and accepted by the parties. This applies to both the law and the evidence. Speaking of the law, Doherty J.A. states in Morrissey, at p. 524:
Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.
20 Similarly, the trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.
[41] Reasons are also not assessed by the inch or by the pound. R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.). Where credibility is important, as in this case, the trial judge must apply the criteria provided in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. However, the trial judge is neither required to refer to that judgment nor slavishly recite the three steps found therein. The test is whether it is apparent from reading the reasons as a whole that the steps were applied.
Analysis
[42] While the reasons for judgment do not have to address every piece of evidence nor every argument made, I am persuaded these reasons are deficient in relation to the first and third functions in R.E.M., supra. They do not tell the parties why the decision was made, or to use the language of the authorities cited, the reasons do not permit the appellant to know the judge heard and considered his arguments, nor do they tell him that the trial judge did not take extraneous matters into consideration. The reasons, in large part, are conclusory, do not address why His Honour reached the conclusions he did, or show how His Honour reconciled conflicting evidence. The reasons also reflect misapprehensions of important evidence. They do not permit effective appellate review. On this record, it is impossible to say the trial judge made his credibility findings in the context of all the evidence.
[43] I reach these conclusions for the following reasons. First, the trial judge believed C.E.’s evidence, but failed to explain why important evidence that had the potential to compromise his credibility did not leave His Honour with a reasonable doubt. His Honour rejected the defence’s arguments regarding slow and incomplete disclosure as well as the failure to follow alternative courses of action, giving them the same consideration similar arguments are given in child sexual assault victims and victims of domestic violence. No issue is taken with those findings.
[44] The trial judge continued, “There are frailties with his evidence, which are consistent with his age and the situation he was in. I find him to be a credible witness.” In the absence of any indication what frailties His Honour was referring to, it is impossible to know how the trial judge reached that conclusion or to assess the route he took he find explain them by his age or situation. Presumably it was not the slow and incomplete disclosure or the failure to follow alternative courses of conduct as they had already been dismissed. Was it the conflicts between his evidence about scheduling and the other evidence? What were there other frailties? Without knowing what frailties the trial judge was referring to it is impossible to assess whether they were all explained by C.E.’s age and the situation he was in.
[45] The thrust of C.E.’s statements to the police was that the appellant was linking his sexual advances to his supervisory position at the store, using his position of authority to compel the complainant to spend time with the appellant and ultimately to satisfy the appellant’s sexual urges. C.E. said the appellant did the scheduling, would cut his hours, at other times gave him preferential shifts and more hours, “wrote him up” completing a PCR for a work incident that was a “final report” so that one more report would lead to his dismissal and precluded a raise on his next review, and that the appellant made sure he was off Fridays with C.E. However, the evidence was clear that it was not until May 9, 2010 that the appellant did the scheduling for C.E. Before that he did not have the ability to cut or increase his hours or to arrange it so that C.E. was off on Fridays. At no time did the appellant ever do his own scheduling.
[46] While one witness said the appellant might have spoken to her about C.E.’s baseball schedule, the appellant denied he ever did so. The evidence was clear that there never was a PCR complaint “written up” about the incident C.E. testified about. Contrary to the trial judge’s finding, this evidence had the potential to impact on C.E.’s credibility and not to whether he was mistaken about the scheduling and the disciplinary report.
[47] Second, the reasons for the rejection of A.H.’s evidence are problematic in several areas. First, she said she was always home because she was severely depressed at the time and never went out. The trial judge gave no weight to her evidence, rejecting her testimony in which she claimed to home all the time and to always to have been present when [C.E.] visited,” and found the appellant had C.E. “home alone regularly.” In doing so, there is nothing to indicate His Honour even considered the following evidence: Erion Kerroque testified that every time he went to the apartment A. was there in the living room and C.E.’s testimony that while he could not say she was there every time, she was there most of the time. I do not read C.E. as disputing she may have been there every one of the twenty or more times he said he was there, he just could not say it was every time and she was definitely there most of the time.
[48] The trial judge also misapprehended A.H.’s evidence. She did not say she was there every time C.E. was at the apartment nor did she say she was always present when he was there as the trial judge said. A. testified she remembered C.E. coming to the apartment around seven times but was not sure of the number of times she saw him there. She said that on roughly five occasions they would come to the apartment briefly and leave. Despite saying she was not sure of the number of times C.E. was there, she was cross-examined as though she was sure it was seven total times so if they quickly left five times, C.E. stayed for an hour or more twice. C.E. testified she was there most of the at least twenty times he was there and that something of a sexual nature occurred every time he was there.
[49] A.H. said when they were there she would be watching television, playing video games or was on MSN or Facebook. The appellant sat on the couch he slept on and C.E. was on the other couch. Both couches were in the living room. When they were there she would go to the balcony to smoke every half hour or so and also would go to the washroom. She said she would not have gone to her bedroom where there was no computer. When asked if she could see back into the apartment from the balcony she said there was one blind missing in the appellant’s room – that was the only way she could see in. She could see part of the living room and part of her brother’s room from the balcony. She would look at her brother and C.E. every now and then and volunteered she barely paid attention to them. It is clear from the cross-examination that she was only referring to times she remembered C.E. being at the apartment. She never said she was there every time C.E. was at the apartment as the trial judge found.
[50] A.H. agreed that C.E. was usually there in the afternoon around 3:00 p.m. and the appellant would drive him from the apartment around 4:00 or 5:00 p.m. When asked if she knew whether C.E. and her brother ever went to his bedroom she said she did not know but had never seen them going into his bedroom. She was shown the diagram C.E. drew (exhibit 10) and she marked a second couch on the diagram which was where the appellant slept and sat when he was there with C.E. C.E. did not include the second couch on his drawing where A.H. said the appellant would sit. The appellant produced another drawing of the living room (Exhibit 16) that showed two couches.
[51] Second, the trial judge, at least in part, appears to have rejected the appellant’s sister’s evidence because she “presented as being under some sort of disability.” No doubt she became confused about the year and the specific number of times she was there when C.E. was there. However, as defence counsel said in her trial submissions regarding her evidence she was always at home:
Further, other defence witnesses, Erion Karroqe and Mike Antoniadis[^1], have testified that they visited Mr. H.H., at his home, and they agreed that A. was always there, because of her unfortunate personal circumstances.
[52] Counsel made the following comments about her evidence in general:
There was no cross-examination of her with respect to bias, suggesting that she might have been shaping her evidence, deliberately misleading the court. She was clearly, I agree, an unsophisticated witness. She got confused. It’s true. But in its simplicity there is a fundamental challenge to [C.E.]’s account.
[53] It is not clear from the reasons why A.H.’s “disability of some sort” impacted on her evidence. Was it her credibility and/or reliability that was affected by it? If so, on what basis did His Honour find her evidence was less worthy of acceptance because of her disability. The only evidence of a disability is that at the time of the allegations she suffered from depression. It is not apparent on this record how the trial judge could find a person who suffers from depression is not credible or reliable.
[54] Third, His Honour’s comments that “the idea that she was present on every occasion, never had a nap, and would spy on her brother from the balcony, in the context of my assessment of the evidence of Mr. H.H. and [C.E.] has no weight” either reflect a misapprehension of the evidence, flippant remarks that do not assist in understanding the “why,” or an error in assessing the evidence. That she would have taken a nap was never suggested to her in evidence. She never said she did or did not take a nap. In addition, given that the visits were in the late afternoon, it is not clear why His Honour felt she must have taken naps. Finally, there was no suggestion in the evidence that the appellant’s sister spied on her brother from the balcony. It was possible to see into part of his bedroom from the balcony. Factually, the trial judge’s assertions are not supported by the evidence.
[55] The second explanation for the comments in rejecting A.’s evidence was they were “somewhat flip” remarks. While I tend to agree with Mr. Coughlin that is what they were, it is difficult to see how they have any place in reasons for judgment for a serious criminal offence or that they explain why His Honour rejected her evidence.
[56] The third explanation for the comments, is that what His Honour was saying was A.H.’s evidence had no weight because of the trial judge’s findings of credibility in relation to the appellant and C.E. If that is what was meant, the trial judge failed to make his credibility findings on the basis of all the evidence. It is inappropriate to make credibility findings examining only the two key witnesses. All of the evidence has to be considered because credibility findings are made in the context of all the evidence.
[57] On any of these bases, the reasons are seriously flawed. By approaching her evidence on the bases that she said she was always there and was always present when C.E. visited, the trial judge distorted her evidence. Had her evidence been that she knew that every time C.E. was there she was home and that she was always in the same room with them, that might have been difficult evidence to accept. However, that is not what she said. A.H.’s evidence cannot be considered without putting it in the context of all the evidence – including C.E.’s that she was there most of the time and that the incidents of a sexual nature happened to varying degrees every time he was there including that the appellant would lie with his head on C.E.’s lap for twenty minutes. This evidence was relevant to whether A. could have been elsewhere in the apartment during the incidents. C.E. said he would sit on the couch and the appellant would come and sit next to him. A. said they sat on different couches. The appellant said his sister was always at home and his friend testified that every time he went to the appellant’s apartment his sister was home. While A.H.’s evidence provided helpful defence testimony about the days she remembered C.E. being there and not a complete defence, the trial judge could not have assessed her evidence in its proper light because he misapprehended it.
[58] Third, it was only in cross-examination that C.E. mentioned going to the appellant’s bedroom and only when defence counsel asked if the appellant’s sister was in the apartment every time, that C.E. said she was there most of the time although he could not say she was there every time. C.E. said that she was there the first couple of times, then she would leave and do something in her bedroom. C.E. later said that if she was there, the appellant would take him to the bedroom. The late revelation that they were not alone in the apartment and the never-before referenced moves to the bedroom, were issues that should have been addressed. Their resolution would have explained why the appellant was convicted. It is difficult to see how those changes could be explained by C.E.’s age, his work situation or the failure to follow other available options.
[59] Finally, the trial judge never addressed the appellant’s evidence regarding his explanations for the text messages and the evidence called about his relationships with other young employees. Rather, the trial judge concluded the appellant was infatuated with C.E. and from that conclusion apparently reasoned that guilt was established.
[60] It is impossible to tell from the brief reasons whether the trial judge heard and considered the defence’s evidence and arguments on important points that had the potential to result in an acquittal. There was evidence upon which the trial judge could have convicted. Indeed, the Crown’s factum sets out the route the trial judge might have taken. While the factum provides the possible, but not inevitable “why” the appellant was convicted, this is not a case where a review of the record permits the parties, the public and the appellate to know why the appellant was convicted. The reasons do not reflect what is in the factum as supporting the findings. The reasons do not reflect that significant portions of the defence arguments and evidence were considered, let alone why they were rejected. In addition, the trial judge misapprehended the evidence.
[61] The appeal is allowed and a new trial ordered.
Durno J.
Released: July 23, 2012
HH v. Her Majesty the Queen, 2012 ONSC 3884
COURT FILE NO.: SCA(P) 1372/11
DATE: 20120723
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
H.H.
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice E. Allen,
dated July 5, 2011]
Durno J.
Released: July 23, 2012
[^1]: The trial record does not support the submission Mr. Antoniadis testified about A.H. being at the apartment.