ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 97/11
DATE: 20120120
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – STEPHEN BARNABY Appellant
Carmel Penney , for the Crown/Respondent
Edward H. Royle , for the Appellant
HEARD: January 11, 2012
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
KELLY J.
REASONS FOR DECISION
[ 1 ] On April 18, 2011, the Appellant, Mr. Stephen Barnaby, was found guilty of sexual assault, sexual interference and uttering threats to cause bodily harm by Justice Neil Kozloff. The charge of unlawful confinement was dismissed. The charge of sexual assault was stayed pursuant to the principle in Kienapple .
[ 2 ] The Appellant appeals his convictions and raises the following issues:
a. Did the trial judge err in his analysis pursuant to R. v. W.(D.) [1] by applying a higher standard to the evidence of the Appellant than the evidence of the complainant?
b. Did the trial judge err in his finding that the evidence of the accused did not raise a reasonable doubt?
c. Did the trial judge err in his treatment of the letter written by the complainant as a prior consistent statement?
[ 3 ] I have not been persuaded that the trial judge has committed any reversible error and, accordingly, the appeal is dismissed. What follows are my reasons.
The Facts
[ 4 ] The complainant was eleven years of age at the time the offence is alleged to have occurred and 12 years of age when she testified. The Appellant was in his thirties and was the boyfriend of a friend of the complainant: Ms. Sheriece Jackson who was 25 years of age. At the time of the occurrence in December 2009, all were residing in the same apartment building.
[ 5 ] The complainant would visit the apartment occupied by Jackson and the Appellant who was known to her as “Fresh”. She would come by the apartment three or four times per week to visit Jackson’s children and to take them to the after school program located in the building.
[ 6 ] The complainant testified that sometime in December 2009 and before Christmas day, she went to Jackson’s apartment to take one of the children (Neqiya) to the after school program. The Appellant answered the door. He invited her into the apartment and then advised the complainant that Neqiya was not feeling well. It was at this point that the Appellant is alleged to have done the following to the complainant:
a. put his right arm across her shoulder;
b. said he loved her like his own daughter;
c. slid his right hand down to her waist area;
d. put his hand inside of her underwear – skin to skin;
e. rubbed her buttocks; and
f. then brought his hand around to the front of her body and attempted to touch her vagina.
[ 7 ] The complainant testified that she pulled herself away from the Appellant and told him that she needed “to go”. As she was leaving, it is alleged that the Appellant said that if she told anyone what had happened, he would hurt her.
[ 8 ] Following the incident, the complainant testified that:
a. She stopped visiting the apartment occupied by the Appellant;
b. She went to the apartment in April 2010 when she found out the Appellant was no longer living there;
c. On April 7, 2010 she attended a dinner party at the apartment during which the Appellant’s name came up;
d. The following day (on April 8, 2010) she wrote a letter to Jackson outlining what the Appellant had done to her in December 2009;
e. She delivered the letter to Jackson’s mother – Ms. Wanda Grey; and
f. She reported the incident to the police thereafter.
[ 9 ] The Appellant denies that he touched the complainant in any improper way.
Analysis
a. Did the trial judge err in his analysis pursuant to R. v. W.(D.) , supra , by applying a higher standard to the evidence of the Appellant than the evidence of the complainant?
[ 10 ] It is submitted by the Appellant that the trial judge applied a higher standard to the evidence of the Appellant than to the evidence of the complainant. I do not agree.
[ 11 ] I have reviewed the decision of the trial judge. It is well balanced and the reasons clearly demonstrate that the evidence of the complainant was scrutinized and analyzed as thoroughly as the evidence of the Appellant. While I am certain that the Appellant was disappointed with the trial judge’s findings in that he made positive credibility findings of the complainant, such a finding does not mean that the trial judge diminished the standard of scrutiny to the evidence of the complainant. [2]
[ 12 ] It is my view that the trial judge’s approach to his assessment of all witnesses was fair and even handed. As such, this ground of appeal fails.
b. Did the trial judge err in his finding that the evidence of the accused did not raise a reasonable doubt?
[ 13 ] It is submitted that the trial judge erred in his finding that the evidence of the Appellant did not raise a reasonable doubt. I do not agree.
[ 14 ] Again, I find that the trial judge properly instructed himself and applied the principles in R. v. W.(D.) , supra, for assessing credibility. The trial judge summarized the evidence given at trial for approximately thirty pages and then summarized the positions of the parties for approximately ten pages. He then referred to the applicable law which recited the principles on R. v. W.(D.) , supra , when assessing credibility in a case such as this.
[ 15 ] In his analysis, the trial judge gave detailed reasons for rejecting the evidence of the Appellant and why his evidence did not raise a reasonable doubt. He then went on to the principle referred to in R. v. W.(D.) , supra , and asked himself whether, on the basis of the evidence he did accept, he was convinced beyond a reasonable doubt of the guilt of the Appellant. He found that he was and convicted the Appellant. Considerable deference is owed to the trial judge regarding his credibility findings and such deference will be given by this Court.
[ 16 ] I do not find that the trial judge made an error in finding that the evidence of the Appellant did not raise a reasonable doubt. Accordingly, this ground of appeal is dismissed.
c. Did the trial judge err in his treatment of the letter written by the complainant as a prior consistent statement?
[ 17 ] It is submitted that the trial judge erred in his treatment of the letter written by the complainant as a prior consistent statement. I do not agree.
[ 18 ] The letter was written by the complainant following a dinner party at Jackson’s home on April 7, 2010. In it, she refers to the alleged touching by the Appellant. The letter was referred to during the examination-in-chief of the complainant and the complainant was asked to identify it. Crown Counsel then asked that the letter and envelope be made the next exhibit.
[ 19 ] Before the letter was made an exhibit, the following exchange occurred:
THE COURT: Just a minute. Ms. Goldenberg. [Counsel for the Appellant]
MS. GOLDENBERG: Yes. If I could just see it for a moment please Your Honour. I don’t expect to have – thank you. Yes, no objection.
[ 20 ] It was following this exchange that the letter was marked an exhibit. During cross-examination of the complainant, she was being asked about the discussion with Jackson following her disclosure and the fact that Jackson said that the Appellant had done “this” before and he was not going to get away with it. The trial judge excused the witness at this point and said the following (amongst other things):
The other thing that I should make clear is with respect to the letter and envelope which are Exhibits Two and Two (A), had you objected to the admissibility of that letter, I would have sustained your objection. It’s not admissible for the truth of its contents . I assumed you wanted the letter put it [sic] because it would be helpful to you in cross-examination, it didn’t have to be made an exhibit and I’m not going to try and go back and change an exhibit number to an exhibit letter, but suffice it to say that I will not be relying on the contents of Exhibit Two for the truth of their contents, but only insofar as you’ve used, both of you, to clarify its contents in relation to what actually happened. Okay. The letter is effectively a prior consistent statement with some inconsistencies therefore it’s not … admissible . [Emphasis added]
[ 21 ] The Appellant submits that the trial judge did just what he said he was not going to do in his reasons for judgment and relied on the letter for the truth of its contents when he said the following:
I find as a fact that J. [the complainant] stopped visiting Jackson immediately after the incident and that she did not return until a day or two prior to the DVD interview. That she would so abruptly cut off the relationship with Jackson, a relationship she clearly valued with someone she obviously looked up to, clearly begs for an explanation. This is an explanation contained in her letter to Jackson, expanded upon in her DVD interview, and repeated more or less verbatim here. There is no other apparent explanation for the stop in visits other than that she was afraid of, and/or uncomfortable in the presence of Barnaby. [Emphasis added]
[ 22 ] I do not find that the trial judge relied on the letter for the truth of its contents. What the trial judge did was to refer to the letter as part of the narrative and the fact that it included an explanation for not returning to the apartment. The trial judge’s use of the evidence is not unlike what the trial judge did in R. v. Bisson 2010 ONCA 556 () , [2010] O.J. No. 3475 (C.A.). In rejecting the argument that the trial judge had improperly relied upon a prior consistent statement in that case, Epstein J.A. noted that:
25 It is well-established that prior consistent statements are generally inadmissible because they are viewed as lacking probative value and are self-serving: R. v. Stirling , 2008 SCC 10 () , [2008] 1 S.C.R. 272 , at para. 5 . Had the trial judge considered the complainant's out-of-court statements to Mr. Bisson, to the nurse, or to the police, as confirming her version of the events, this would indeed be an error.
26 However, the trial judge did not, in my view, use the out-of-court statements in this way. Rather, read in context, the trial judge's review of the complainant's statements appear to have been considered as part of the narrative recounted by the complainant. At no point does the trial judge indicate that he is relying on these statements for the truth of their contents or that they formed part of his decision to prefer the complainant's evidence as to what happened on the night in question to that of the appellant. I therefore do not agree with the summary conviction appeal judge's finding that "the trial judge ... used [the complainant's] out-of-court statements to improperly bolster her credibility".
[ 23 ] I am not persuaded that the trial judge improperly relied on the letter as a prior consistent statement for its truth. There was no legal error. Accordingly, this ground of appeal is dismissed.
Conclusion
[15] For the abovementioned reasons, the appeal is dismissed.
Kelly J.
Released: January 20, 2012
COURT FILE NO.: SCA 97/11
DATE: 20120120
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Appellant – and – STEPHEN BARNABY Respondent
REASONS FOR DECISION Kelly J.
Released: January 20, 2012
[1] (1991), 1991 93 (SCC) , 63 C.C.C. (3d) 397 (S.C.C.).
[2] See: R. v. Karas , [2006] O.J. No. 2287 (Ont. C.A.) at para. 9 and R. v. Weig , 2009 ONCA 861 at para. 2 .