SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 578/09
DATE: 20121211

RE: Her Majesty the Queen v. S.S.

BEFORE: The Honourable Mr. Justice M. K. McKelvey

COUNSEL: Ronald Davidson, Counsel for the Crown

Daniel Santoro, Counsel for the Appellant

HEARD: October 1, 2012

ENDORSEMENT

Introduction

[ 1 ] The appellant was convicted in the Ontario Court of Justice of sexual assault and sexual interference against his 13 year old niece, A.B., in a trial heard before Justice Chester. At the time of the alleged offence the appellant was 25 years old. The complainant, Ms. A.B., testified that on an evening in December, 2008, while she was outside talking to Mr. S.S. on the driveway of her residence, he made sexually inappropriate comments to her about her legs and buttocks, and then grasped her buttocks. On an evening between December 15 and 25, 2008 Mr. S.S. was visiting his brother where the complainant was living. It was alleged that Ms. A.B. and Mr. S.S. were left alone in the basement living room and that Mr. S.S. put his hand inside her shorts as far as her vagina, and then put his hand up her shirt and squeezed her right breast. All of these allegations were denied by the defendant in his evidence. In his decision, the trial judge rejected the evidence of the appellant and accepted the evidence of the complainant. He rendered a finding of guilty on both charges.

[ 2 ] Essentially this was a straightforward one-issue trial. The case turned entirely on the trial judge’s assessment of the credibility and reliability of the main witnesses and, in particular, that of the complainant and the accused.

[ 3 ] The appellant raises the following issues on this appeal:

(a) The appellant asserts that the trial judge’s reasons for rejecting the evidence of the accused are not adequate and that a more stringent level of scrutiny was applied to the accused’s evidence than that of the complainant.

(b) The appellant asserts that the trial judge failed to deal with a major inconsistency in the complainant’s evidence. This relates to a discussion the complainant had with a friend, K.V., who reported to the police that she had been told by Ms. A.B. that the defendant had covered her mouth with a pillow and raped her. This was inconsistent with the complainant’s evidence as to what occurred as described above.

(c) The appellant asserts that the trial judge failed to consider an attempt by the complainant to collude or manipulate the evidence of K.V. with respect to the discussions they had about the events which occurred.

[ 4 ] While the appellant’s counsel suggested during argument that they are not alleging that the reasons of the trial judge were insufficient, it is apparent that the adequacy of the judge’s reasons in dealing with the above noted issues is an important consideration in this appeal. In other words, do the judge’s reasons support a conclusion that he applied a different standard to the defence evidence or ignored major inconsistencies or problems in the prosecution’s evidence? This is reflected in the appellant’s factum at paragraph 15 where it is stated:

The complainant’s credibility was subjected to a much lower level of scrutiny than that of the appellant. Serious deficiencies in her evidence with her credibility were not scrutinized by the trial judge. The defendant’s credibility was found to be wanting due to ‘inconsistencies’ that, in fact, were not inconsistencies, none of which went to the events in question. On the other hand major contradictions that went to the very nature of the sexual assault allegation in an attempt by the complainant to manipulate the evidence of a key witness were ignored or summarily explained away because witnesses were “good” or “straightforward”.

The Applicable Law

[ 5 ] The trial judge correctly identified that the onus was on the Crown to prove guilt of the accused beyond a reasonable doubt. He also correctly identified that credibility was the main issue in the trial. The trial judge set out the proper test in dealing with credibility issues as set out in the decision of the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742. Thus, the trial judge comments that if he believes Mr. S.S.’s evidence or it raises a reasonable doubt he was required to acquit the defendant. If he rejected the evidence of the defendant then he still had to be satisfied beyond a reasonable doubt on all of the evidence before him before a finding of guilt could be made.

[ 6 ] The Supreme Court of Canada in R. v. R.E.M. (2008), 2008 SCC 51, 297 D.L.R. (4th), 577 has made it clear that considerable deference is to be given to findings of credibility made by the trial judge. The court notes that where credibility is a determinative issue, deference is in order and intervention will be rare. The court also noted that there was no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. With respect to credibility the court commented at paragraph 50:

What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para 23). This may require at least some reference to contradictory evidence. However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. ‘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’.

[ 7 ] In the R. v. R.E.M. decision the Supreme Court also comments on the roles of appellate courts in assessing the sufficiency of reasons. In this regard the court stated:

The appellate court proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.

The court goes on to state that if the answers to the questions noted above are affirmative then the reasons of the trial judge are not deficient, “notwithstanding lack of detail and notwithstanding the fact they are less than ideal”.

[ 8 ] It is also apparent from the case law that in giving reasons a trial judge should demonstrate that he has identified and considered significant issues including issues with respect to credibility. Thus, in R. v. M.G (1994), 73 O.A.C. 306, the Ontario Court of Appeal considered the reasons for judgment which are required of a trial judge. In that case the trial judge considered a letter written by the complainant which was substantially different than the evidence of the complainant at trial. In considering this issue the trial judge stated that the complainant had, “overstated some of the incidents in the letter, and I accept her explanation for that”. The Court of Appeal concluded that on this very material inconsistency the reasons for judgment of the trial judge demonstrated a failure to grasp the importance of the inconsistency. Thus, appellate courts have been critical where the trial judge’s reasons do not demonstrate that the judge has given a reasonable analysis of the inconsistency or demonstrated that he understands the significant credibility issues which have been raised.

[ 9 ] In another Court of Appeal decision in R. v. Gostick (1999), 121 O.A.C. 355 the Court of Appeal set aside a sexual assault conviction. The Court noted:

The trial judge was entirely uncritical of the complainants. He approached the individual charges against the appellant by reciting the testimony of each complainant in isolation and concluded that he believed them on the basis of their demeanour or performance in the witness box. There was no analysis of internal contradictions in their testimony or discussion about the matters raised in cross-examination. At this point in his reasons, the trial judge had not considered any of the defence evidence including the evidence of alibi led by the appellant with respect to E.J. Nevertheless he stated he was prepared to accept the unconfirmed and unsupported testimony of the three complainants before embarking on a cursory review of the defence evidence. In doing so he failed to judge the appellant on the totality of the evidence.

[ 10 ] The Gostick case also deals with an allegation of collusion or collaboration between witnesses. The case suggests that if there is a possibility of collusion, the trier of fact must give anxious consideration as to whether the testimony of the witnesses was concocted.

Are the Trial Judge’s reasons for rejecting the Appellant’s evidence adequate and was a more stringent level of scrutiny applied to the Appellant’s evidence than that of the Complainant?

[ 11 ] In his argument the appellant asserts that inconsistencies relied upon by the trial judge were not in fact inconsistencies or were not material. At the same time it is argued that major contradictions by the complainant were ignored.

[ 12 ] In his reasons for judgment the trial judge sets out his findings of credibility as against the defendant. He states:

I reject his version of events for the following reasons:

(i) Primarily because of the inconsistencies between his statements to the police during examination in chief at trial and cross-examination and the inconsistencies in his evidence with the evidence of S.J..

The trial judge then goes on at length to review inconsistencies in the appellant’s evidence. It is apparent in reviewing the trial judge’s reasons and the transcript from trial that there were numerous discrepancies in the defendant’s evidence. For example, in the trial judge’s reasons he refers to a statement given to the police by the defendant on March 24, 2009. The trial judge states:

He did not tell the police on March 24, 2009 that he stayed there overnight by himself in December. I find that to be a major inconsistency with his evidence at trial. He decided to stay overnight, and he provided a lot of details about that night, at trial: that it happened in December, and that it was overnight without S.J.. But when it was put to him that he never told the police he stayed there overnight by himself in December, “Do you agree?” His answer was, “I don’t remember”.

[ 13 ] The trial judge then refers to the fact that during an interview with the police the defendant told the police he only stayed at the complainant’s house on one occasion, overnight; and that was with his girlfriend S.J.; and that it was in January and February, not December. His explanation for giving police this information was that he was confused.

[ 14 ] The trial judge’s comments are reflected in the transcript from the cross-examination of Mr. S.S. on June 28, 2010. At page 44 of the transcript the defendant’s evidence was as follows:

Q: So, you told the police that you only stayed there at Burey’s Green and that when you stayed there the one time S.J. was there with you, correct?

A: Correct.

Q: That wasn’t true, correct?

A: I obviously got mixed up.

[ 15 ] At page 74 of the cross-examination of Mr. S.S. the following evidence was given:

Q: You never told the police that you ever stayed over by yourself at any time, correct?

A: Correct.

Q: You tried to tell the police that the one time you stayed over S.J. was there, correct?

A: Correct.

[ 16 ] The discrepancies noted above by the trial judge are very material to the charges against the accused. They go to the key issue of whether he was present in the home at the time the alleged assault occurred, and whether he was accompanied by his girlfriend at the time.

[ 17 ] In his review of the defendant’s evidence the trial judge makes reference to other inconsistencies in the defendant’s evidence and also makes detailed references to portions of the trial transcript.

[ 18 ] I accept that it is a reversible error for a trial judge to apply a higher standard of scrutiny in the assessment of the defendant’s evidence than that of the prosecution. However, as noted by Justice Doherty in the Court of Appeal decision in R. v. J.H. (2005), 192 C.C.C. (3d) 480, this argument or a variation of it is common on appeals from conviction in judge alone trials where the evidence “pits the word of the complainant against the denial of the accused, and the result turns on the trial judge’s credibility assessments”. Justice Doherty comments on the difficulty of succeeding with this type of argument. In his decision he states:

This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

[ 19 ] I am satisfied that there were a significant number of material discrepancies in the defendant’s evidence. These discrepancies invited the close scrutiny which was given to them by the trial judge. There was a reasonable basis for the trial judge to make the finding he did which rejected the defendant’s evidence. These discrepancies, in my view, do not reflect a closer scrutiny of the defendant’s evidence as compared to that of the complainant. Instead, they reflect the fact that the defendant’s evidence contained a large number of discrepancies which justifiably attracted the attention of the trial judge. I do not see anything in the record which makes it clear that the trial judge applied a different standard in assessing the evidence of the accused. He clearly identified issues which needed to be addressed with the complainant’s evidence as well. For these reasons I have concluded that the trial judge’s reasons for rejecting the appellant’s evidence were adequate, and that he did not apply a more stringent level of scrutiny to the appellant’s evidence.

Did the Trial Judge fail to address a major inconsistency in the complainant’s evidence in relation to the discussion she had with K.V.?

[ 20 ] The appellant asserts that the trial judge failed to deal with clear evidence of a significant prior inconsistent statement by the complainant about the very nature of the assault alleged. This allegation focuses on a statement recorded by the police from Ms. K.V. that A.B. told her that Mr. S.S. put a pillow over her mouth and raped her. A.B. was cross-examined about the statements that she made to Ms. K.V.. This is reflected in the transcript of her evidence on June 7, 2010 at pages 128 and 129 of the transcript. She denied telling Ms. K.V. that she had been raped or that Mr. S.S. had put a pillow over her face.

[ 21 ] Ms. A.B.’ evidence on this issue found at page 129 was as follows:

Q: Okay. So, you would certainly disagree with your cousin, K.V.…

A: Yes.

Q: …that you told her that he, S.S., had raped you.

A: Yes.

Q: So, you would deny that you told her that?

A: Yes, I do.

Q: Because that’s certainly not a word that you would use to describe what you say he said he did.

A: No, because I know what it means.

Q: Right. And I take it you would also deny that you had told her that he had a pillow over your face before he raped you.

A: I would strongly deny that, yes.

[ 22 ] The defence called Ms. K.V. as a witness at trial. At the time of giving her evidence she was 13 years old. At pages 148 to 150 of the transcript Ms. K.V. describes as how initially Ms. A.B. told her that the defendant molested her by touching her legs and putting his hand down her pants. It is apparent that this evidence would be consistent with Ms. A.B.’ version as to what occurred. Later in her evidence Ms. K.V. indicates that she made a mistake in her statement to the police. At page 151 of the transcript she states:

Yes, well – but that was a mistake I made in my statement. What she actually told me was, and she told me a lot of times later, that it was like he was about to rape her but he didn’t, and she told me that after I told her what I said to the police.

[ 23 ] At page 159 of the transcript Ms. K.V. gives the following evidence:

Q: All right. And the first time she spoke to you on the phone what you’re clear on is that S.S. had touched her legs and had put his hand down her pants.

A: Yes.

Q: Is that correct? That’s the thing you’re clear about.

A: Yes.

Q: And she was – she was crying about that when she was talking to you?

A: Yes.

Q: She was upset about it…

A: Yes.

Q: Is that correct? And – and you – you’ve told us that when you used the word “rape” she used it by saying that she felt she was going to be raped is that – is that right?

A Yes, it was like she was going to be raped but she walked away.

Q: But she was concerned about?

A: Yes.

Q: And when she was talking to you about that, was she – was she upset?

A: Yes.

Q: Was she crying?

A: Yes.

Q: And is it possible you may have confused some of the words that she used?

A: Yes like the – when she said “rape”.

Q: So then in talking to the police you may have been confused about how she used the word rape?

A: Yes.

[ 24 ] In reviewing the transcript, it is apparent that Ms. A.B. denied having told her friend K.V. that the defendant had raped her or put a pillow over her mouth. Ms. K.V. did include this information in a statement to the police. In her evidence at trial she suggested that she was confused and that what she thought Ms. A.B. had told her was that she was, “going to be raped”.

[ 25 ] In reviewing the trial judge’s reasons it is apparent that he was alive to the issue of what Ms. K.V. had told the police and whether Ms. A.B. had made an inconsistent statement to Ms. K.V. about what had occurred. At page 25 of his reasons he notes that Ms. K.V. was 13 years of age when she testified. He also refers to the evidence she gave that she made a mistake in her statement to the police. In particular, the trial judge states in reference to the evidence of Ms. K.V. at page 26 of his reasons as follows:

At page 151. She was asked at the bottom of page 150.

Q: …well, I should say I guess over the lunch hour, in your statement you told Officer Obress on the April 5 th of 2009 that what A.B. told you when she started to tell you about the pillow, that he, referring to S.S., covered her mouth with the pillow and raped her.

A: Yes, well – but that was a mistake I made in my statement. What she actually told me was, and she told me a lot of times later, that it was like he was about to rape her, but he didn’t, and she told me that after I told her what I said to the police.

[ 26 ] It is apparent from the above quotation that the trial judge was alive to the issue as to whether Ms. K.V. had accurately reported to the police what she had been told by Ms. A.B.. In reviewing the transcript, it is apparent that Ms. K.V. acknowledged being confused about the use of the term rape, and on reflection felt Ms. A.B. had told her she was going to be raped and not that she had been raped. The transcript is less clear as to whether Ms. K.V. altered her position as to whether she was told by Ms. A.B. that the defendant had put a pillow over her face. However, the quotation referred to by the trial judge does include a reference by the witness that she had made a mistake in response to a question as to whether she was told by Ms. A.B. that the defendant covered her mouth with a pillow and raped her.

[ 27 ] In addition, the judge makes reference on page 27 to evidence from Ms. K.V. as follows:

Page 155. Well. – This is about line 11,

‘Q. Well you admitted that’s not what you told Officer Obress. You told Officer Obress that A.B. told you that he had raped her…

A. That’s because….

Q. …that he covered her mouth with a pillow and raped her.

A Because – yes because that’s what I thought she said at the time but then she corrected me after I gave my statement that – that’s not what she meant.

Q. Okay, I see. So, once she finds out that you’ve told the police what she told you, that he had covered her mouth with a pillow and raped her, then she corrects you and says, well that’s not what she meant.

A. Yes.

[ 28 ] The trial judge appears to have accepted the evidence of Ms. K.V. to the effect that she had made a mistake in her statement to the police. On page 26 of his reasons he refers to the fact that Ms. K.V. was cross examined at length by the defendant’s counsel:

…who called her as a witness and cross examined with respect to the change in her story that she told the police after she had spoken to A.B., who had told her that she had mistaken what she had said.

The trial judge acknowledges that there were some inconsistencies in Ms. K.V.’s evidence as to what was disclosed. However, he found that Ms. K.V.:

…was a good witness generally, reporting the complaints made by A.B. to her although A.B. could not remember telling her about the ‘sexy legs’ incident.

The latter comment appears to be a reference to a statement which the defendant is alleged to have made about the complainant’s legs.

[ 29 ] It is apparent to me that the trial judge was aware of the issue as to whether there was an inconsistency between the complainant’s evidence and what she had reported to Ms. K.V.. Having considered this issue, the trial judge concluded that there was in fact no inconsistency between the complainant’s evidence and what was reported to Ms. K.V.. In doing so he considered the young age of Ms. K.V., her explanations for the inconsistencies, and her general reliability as a witness.

[ 30 ] It is also apparent that the trial judge considered this issue in the context of the evidence of A.B.. At page 29 of the judgment the trial judge states:

Her evidence was not without concerns. In other words, there were a number of problems with her evidence and those problems are as follows:

1. The discrepancy or inconsistency in her evidence as to what she told K.V. at each disclosure when she talked to K.V. either on the phone or in person and afterwards; in particular, after K.V. had been to the police in April 2009 to give her statement.

[ 31 ] In the end the trial judge found the evidence of the complainant to be consistent and reliable and he accepted her evidence about the alleged assaults.

[ 32 ] In addition the trial judge appears to have accepted Ms. A.B.’ evidence as to what she told K.V.. At page 41 of his judgment the states,

“When the concern was raised about her conversations with K.V. she says that she did not say ‘rape’, she knows what rape is, and that is not what happened to her and she told Obress that.

I thought that was clear, straightforward and matter of fact”.

[ 33 ] At page 42 of his judgment the trial judge states,

“As I said at the outset there are some problems and inconsistencies with respect to A.B.’ evidence. Some she has satisfactorily explained, for example ‘the getaway sticks’ on Facebook entry is just ‘a tab’ that was not put there by her. In other words it was someone else’s tab.

She clarified what she meant to tell K.V. about the difference between rape and ‘about to rape’”.

It therefore appears the trial judge accepted Ms. A.B.’ evidence as to what was told to Ms. K.V..

[ 34 ] I have concluded that the findings of the trial judge should be accorded deference as he has identified the issue and made findings of credibility with reasons that have recognized and dealt with the contradictions. This is not a situation where the trial judge failed to seize the substance of the issue or failed to analyze contradictions in the prosecution’s evidence.

[ 35 ] In coming to this conclusion I am mindful of the comments of the Supreme Court in R. v. R.E.M. that where credibility is determinative issue deference is in order and intervention will be rare. What is required is that the reasons must demonstrate that the judge has seized the substance of the matter. As long as this is done, detailed recitation of evidence or the law is not required. What is required is that the reasons demonstrate that the judge has seized the substance of the critical issues at trial. In a case where the evidence is contradictory or confusing the test is whether the trial judge appears to have recognized and dealt with the contradictions.

Did the Trial Judge fail to consider an attempt by the Complainant to collude or manipulate the evidence of K.V.?

[ 36 ] The appellant argues that the trial judge did not deal with the “clear evidence that there had been collusion between A.B. and K.V.” resulting in Ms. K.V. changing her evidence from what she told the police. Alternatively, the appellant argues that Ms. A.B. “deliberately manipulated K.V. to alter her testimony”. In support of this position the appellant relies upon the fact that Ms. A.B. approached Ms. K.V. after her statement to the police and told her that she had made a mistake in her statement. The appellant also relies on evidence given by Ms. K.V. that during the course of the trial (after Ms. A.B. had given evidence) Ms. A.B. told Ms. K.V. that she should correct her evidence at trial and, “you should make sure that you tell them that’s not what happened because it’s not”.

[ 37 ] It is apparent from the reasons for judgment that the trial judge was alert to the issue of the discussions which took place between the complainant and Ms. K.V. including the discussions which were clearly inappropriate and which occurred after Ms. A.B. gave her evidence at trial. As noted above the trial judge commented in a preliminary way about the evidence of the complainant on some of the concerns raised by the evidence of A.B. including “the discrepancy or inconsistency in her evidence as to what she told K.V. at each disclosure.” In dealing with the evidence of K.V. the trial judge notes:

And A.B., she testified that A.B. was not upset with her. At page 156, “No she just told me that’s not what happened and you should tell them that”. In cross-examination she was asked that A.B. did not tell you what to say but just to tell the truth, and she agreed with that.

[ 38 ] As noted above, the trial judge accepted Ms K.V.’s evidence that she made some mistakes in reporting Ms. A.B.’ comments to the police. He also accepts Ms. A.B.’ evidence as to what she told Ms. K.V.. If this conclusion is accepted (as it appears to have been by the trial judge), it follows that the comments made by Ms. A.B. to Ms. K.V. did not affect the reliability of the complainant’s evidence. The trial judge appears to place particular weight on the evidence that Ms. A.B. had told Ms. K.V. to “just tell the truth”.

[ 39 ] The trial judge in his reasons extensively reviews the evidence of A.B. and gives reasons why he found her evidence credible. At page 42 of the judgment he refers again to his comment at the outset that there were some problems and inconsistencies with respect to the evidence of Ms. A.B.. He then comments, “She clarified what she meant to tell K.V. about the difference between rape and “about the rape”.

[ 40 ] . He also makes reference to some limited corroboration through the evidence S.J.. Ms. S,J. had given evidence that she had observed Mr. S.S. “flirting” with the complainant and also contradicts the defendant’s statement to the police that he never stayed at the complainant’s residence in the absence of his girlfriend. I have concluded while it would have been optimal for the trial judge to comment in more detail about the evidence that Ms. A.B. had been speaking to Ms. K.V. on several occasions about the “error” in her statement to the police including comments made during the trial itself after Ms. A.B. had been instructed not to discuss her evidence, the trial judge was alive to this issue. As noted above, he referred to the evidence of Ms. K.V. that Ms. K.V. was told by Ms. A.B. to tell the truth.

[ 41 ] This issue is intertwined with the general issue of the complainant’s credibility. In the end the trial judge accepted the complainant’s evidence about the alleged assault. I am mindful of the obligation to show deference to a trial judge’s findings on credibility provided that he has seized the substance of the critical issues at trial. A trial judge is entitled to this deference notwithstanding a lack of detail and the fact that they may be less than ideal. As noted in the R. v. R.E.M. decision, an error of law should not be found because a trial judge, “has failed to reconcile every frailty in the evidence or allude to every relevant principle of law”.

[ 42 ] I therefore conclude that there is no basis to interfere with the trial judge’s findings of credibility in this case which are entitled to deference by an appellate court.

Order

[ 43 ] For the above reasons the appellant’s appeal is dismissed.

Justice M. McKelvey

Date: December 11, 2012