SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: SCA 7479

DATE: 2013-02-13

RE: HER MAJESTY THE QUEEN - Respondent

J.S. - Appellant

BEFORE: The Honourable Mr.Justice D.A. BROAD

COUNSEL:
David M. Russell, for the Crown/Respondent

Andrew Bond, for the Accused/Appellant

DATE HEARD: October 5, 2012 and January 10, 2013

On appeal from convictions entered by the Honourable Justice M. F. Woolcott dated December 7, 2011.

E N D O R S E M E N T

Background

[1] This is an appeal brought by the Appellant from his conviction for sexual assault on December 7, 2011, following a trial before the Honourable Justice M.F. Woolcott of the Ontario Court of Justice. The trial was held over five days and stemmed from a charge that the Appellant (J.S.) had sexually assaulted the complainant S.T. (S.T.) in his apartment in Cambridge Ontario, on April 2, 2011. Following the final submissions of counsel, Justice Woolcott reserved her decision for approximately two weeks and delivered lengthy oral Reasons for Judgment comprising forty typed pages of transcript.

[2] In brief summary, the basis of the charge was that J.S. placed his fingers into S.T.’s vagina in the bathroom of his apartment, without her consent, after having confined her in the apartment for a number of hours. The defence did not dispute the touching, but states that S.T. requested that J.S. insert his fingers into her vagina in order to extract drugs that she had inserted there, and that therefore the touching was consensual. J.S. and S.T. had had a previous relationship of a considerable duration and had a child together, who was 13 years of age at the time of the occurrence. Although S.T. resided in Windsor, she had travelled to Cambridge, apparently looking for her brother’s girlfriend, and, as indicated below, found herself at J.S.’s apartment.

Grounds of Appeal

[3] The grounds of appeal are stated in the Appellant’s Factum as follows:

1. The trial judge misapprehended evidence essential to the defence; and

2. The trial judge applied a different standard of scrutiny to the evidence of the defence to that of the prosecution.

Facts

[4] The evidence at trial was complex and somewhat confusing, and accordingly, Justice Woolcott, in her oral Reasons, reviewed it at some length. It is unnecessary for me for the purpose of these Reasons, to review the evidence in the same detail as did Justice Woolcott, nor in the detail set forth in the Appellant’s Factum. Rather I will set forth the key elements of the narrative, with particular reference to those areas which bear on the grounds of appeal.

[5] On the weekend of the incident S.T. travelled from Windsor to Cambridge in order to visit with her friend V.C. and to try to locate her brother’s girlfriend S., who she says she was concerned about due to reports that she was heavily involved in drugs.

[6] S.T.’s evidence varied as to whether she arrived in Cambridge on the Friday or on the Saturday. S.T.’s recitation of her activities in Cambridge did not appear to account for a Friday arrival, as there would be a significant gap or gaps of time, although the text message exchange between S.T. and her friend V.C. point to a Friday evening arrival.

[7] S.T. testified that following her arrival in Cambridge, she went to V.C.’s house for four hours, went out with V.C. for “a little bit”, went to a sports bar and then went to two addresses that had been given to her in her effort to locate S.. At the second address she enquired from an occupant as to the whereabouts of a person who was “using” [i.e. using drugs] and was directed to an apartment occupied by J.S.

[8] S.T. was invited into the apartment by J.S., and given a soft drink after turning down his offer of alcohol. S.T. testified that, after some conversation, J.S. started smoking crack and got “weird”. He ordered her to sit in a chair in the living room, effectively restraining her there, and began verbally abusing her. He did not initially permit her to get up to use the washroom, but later relented and allowed her to do so. According to S.T.’s testimony, J.S. followed her to the bathroom, pulled down her pants and underwear and inserted his finger into her vagina. He pulled his hand back because she was menstruating.

[9] S.T. testified that J.S. then told her to go back to the chair and he continued to smoke crack. After about 40-45 minutes, when J.S. was out of sight, S.T. grabbed her cell phone from the kitchen table and ran out of the apartment. She called her friend V.C. and then called 911 to report the assault.

[10] There was evidence led at trial with respect to S.T.’s drug use. She maintained that although she had used drugs in the past, she had been drug free for over a year at the time of the occurrence. She denied using drugs in J.S.’s apartment on the date of the incident. Although there were drug screenings put into evidence that she tested positive for opiates in April 2011, her videotaped police interview shortly after the incident, as well as the 911 call, did not point to obvious signs of her being impaired at those times.

[11] Filed as Exhibit 4 at the trial was a picture of some graffiti on the wall of the bathroom in J.S.’s apartment which S.T. acknowledged had been made by her on the day of the incident. The message read “I love you J.. Love S.T. xoxo.” On cross-examination S.T. acknowledged that she wrote the message voluntarily and agreed with the suggestion put to her that she wrote it at some point during the time that she felt trapped, threatened or intimidated in the apartment. She later revised that to state that she wrote the message before she felt trapped.

[12] T.A. testified for the defence. She had a lengthy criminal record and had been acquainted with both J.S. and S.T. for many years. The effect of her testimony was to counter S.T.’s evidence that she was alone with J.S. in his apartment, and had been effectively confined by him there for most of the time on the afternoon of the incident. T.A. testified that she was at the apartment for about one and one-half hours on the afternoon of the occurrence smoking crack cocaine with both J.S. and S.T. She also testified that she was a party or a witness to various interactions with other persons through the afternoon, including an attendance by her and S.T. with T.B. who lived downstairs, and an attendance by V.C. at the apartment. She also testified that there was a physical altercation in the course of the afternoon in the doorway of J.S.’s apartment, during which both S.T. and J.S. kicked her.

[13] V.C. also testified for the defence. Her evidence also countered S.T.’s narrative of the events on the weekend in question and in particular her recitation of what had occurred at J.S.’s apartment. V.C. had a criminal record and had been a friend of S.T.’s for about four years, having met her in a methadone clinic. She stated that, at S.T.’s request, she dropped her off at J.S.’s apartment on Friday. V.C. returned to the apartment at 1:00 p.m. on Saturday and stayed there with both J.S. and S.T. She did not leave until the police arrived late on Saturday evening. During that time T.A. was also there for a time. She said that she witnessed S.T. doing drugs that day. She testified that, although S.T. smoked crack that day, she was able to speak normally to the police later that evening because she had developed a tolerance for crack as a result of long usage.

[14] V.C. testified that she knew that S.T. had written on the wall “I love you J.”. She stated that, after J.S.’s girlfriend C.H. arrived at the apartment, S.T. began taunting Hogg. She said that J.S. threatened to call the police about S.T. writing on the wall and S.T. threatened to call the police about J.S. stealing money from her. She stated that she did not know until after she picked S.T. up from the police station that S.T. had reported that J.S. had sexually assaulted her.

[15] V.C. maintained that S.T. told her that she had “made up” the story about the sexual assault and that S.T. had confided to her that she had put a bag of crack into her vagina, and when she could not extract it, she asked J.S. to pull it out. V.C. testified that she had lied to the police initially to support S.T. and thought that S.T. would straighten the matter out. She stated that she felt guilty having lied to the police and therefore eventually changed her story.

Discussion

(a) Legal Framework

[16] The power of the court on an appeal of this nature derives from s. 686(1) of the Criminal Code, which applies by virtue of s. 822(1). S. 686(1) provides as follows:

S. 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

[17] In the recent case of R. v. Smits 2012 ONCA 524 the Court of Appeal confirmed, at para. 67, that the jurisdiction of this court to review the findings of the summary conviction trial judge as to sufficiency of the evidence is limited. The summary conviction appeal judge may not retry the case or substitute his or her own view of the evidence for that of the trial judge.

[18] As laid down in R. v. Biniaris 2000 SCC 15, at para. 36, applying R. v. Yebes 1987 17 (SCC), [1987] 2 S.C.R. 168, the test for determination of whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence is whether the judgment is one that a properly instructed jury, acting judicially, could reasonably have rendered.

[19] Although an appeal court is not entitled to retry the case, it does have a duty, as confirmed by Estey, J. in R. v. Harper 1982 11 (SCC), [1982] S.C.J. No. 108 at para. 5, to review the record below to determine whether the trial judge properly instructed himself or herself with respect to all the evidence bearing on the relevant issues. Justice Estey went on to state “Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.”

[20] In the case of R. v. Morrissey (1995) 1995 3498 (ON CA), 80 O.A.C. 161 Doherty, J.A. noted at paras. 91-92 that s. 686(1)(a)(iii) has a “long reach” and can encompass any error, including one involving a misapprehension of the evidence by the trial judge which has the effect of rendering the trial unfair and thus resulting in a miscarriage of justice.

[21] Justice Doherty went on, at para. 91 of Morrissey, to state as follows:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

(b) First Ground: Misapprehension of the Evidence

[22] The Court of Appeal set out the approach to be followed where it is asserted that the trier of fact misapprehended the evidence in R.v. Carroo 2010 ONCA 143, at para. 23, as follows:

Where misapprehension of the evidence is alleged, the court should first consider the reasonableness of the verdict: s. 686(1)(a)(i). If the appellant succeeds on this ground, an acquittal will be entered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice: s. 686(1)(a)(iii). If so, the conviction must be quashed and, in most cases, a new trial ordered. If the appellant cannot show that the verdict was unreasonable or that the error produced a miscarriage of justice, the court must consider the question of whether the misapprehension of evidence amounted to an error in law: s. 686(1)(a)(ii). If so, the Crown must demonstrate that the error did not amount to a miscarriage of justice: s. 686(1)(b)(iii).

[23] The appellant here argues that the trial judge misapprehended the evidence with respect to two issues, which he argues were critical to the defence theory, namely:

(a) The timing of the writing on the wall; and

(b) The timing and duration of the complainant S.T.’s attendance at J.S.’s residence.

[24] The appellant points out that, according to the narrative in her testimony in chief, S.T. would not have had an opportunity to write the message, and on cross-examination she offered two different versions of the timing of when she wrote the message, one while she felt confined by J.S., and one prior to that time.

[25] Justice Woolcott addressed the S.T.’s evidence regarding the timing of her writing the message on the wall as follows:

“She could not pinpoint the exact point in time when she wrote this on the wall but I accept her evidence that there was a time frame when she was in the apartment when she would have been in the mindset to write on the wall…”

[26] The appellant argues that the issue of the circumstances and timing of S.T. writing the message on the wall was crucial to the defence case, and was not subjected to any scrutiny by the trial judge, but rather she made a bald finding of fact which failed to address the inconsistencies in S.T.’s testimony.

[27] Although there were inconsistencies in S.T.’s testimony respecting the circumstances and timing of her writing the message on the wall, in my view, the trial judge did address them in her finding that there was a time frame when she would have “been in the mindset” to write the message. It was not a case of the trial judge not being alert to the issue, or ignoring it. It was open to her to make the finding, in spite of the inconsistencies, as there was evidence in S.T.’s testimony to support it. The narrative in S.T.’s examination in chief did not pin down with precision the intervals of time between the various events which she described following her arrival at J.S.’s apartment. In her first answer on the issue on cross-examination, namely that she wrote the message during a time when she felt trapped, threatened or intimidated, was a suggestion put to her by defence counsel to which she agreed. She later had an opportunity to correct that by saying that she was in the apartment for approximately an hour before she felt confined, during which time she wrote the message.

[28] As stated by Justice McLachlin, as she then was, in R. v. W.(R.) 1992 56 (SCC), [1992] 2 S.C.R. 122 at para. 20, it is important for an appeal court, in applying the test of whether a judge or jury properly instructed and acting reasonably could have convicted, to take into account the special position of the trier of fact on matters of credibility. She pointed out that “the trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses.”

[29] The trial judge in this case had the advantage of seeing and hearing S.T. testify and to observe her demeanor within the context of the dynamics of the courtroom at the time. She was in a better position to weigh the different versions of the circumstances of the message being written on the wall and to ultimately make the finding that she did. I do not find that she acted unreasonably in doing so.

[30] On the question of the timing and duration of S.T.’s attendance at J.S.’s residence, counsel for the Appellant argues that the trial judge failed to scrutinize and reconcile the discrepancies in S.T.’s evidence on the issue of whether she arrived in Cambridge on the Friday or on the Saturday. He points to two conflicting versions given by S.T. in her evidence of when she arrived, one on Saturday and one on Friday. Moreover, the cell phone records of V.C. (Exhibit 9) support the fact of her arrival in Cambridge between 9:30 p.m. and 9:45 p.m. on Friday April 1, 2011. He submits that, on the basis that she must have arrived on Friday, and in considering S.T.’s explanation of what she did and where she went following her arrival, at least twelve hours were unaccounted for prior to her report to the police at approximately 11:00 p.m. on Saturday. It is argued that this casts significant doubt on the veracity of S.T.’s narrative, and relates directly to the thrust of the case of the defence, namely that S.T. spent the Friday at J.S.’s apartment and stayed there until her interaction with the police late on Saturday night.

[31] The trial judge addressed the difficulties with S.T.’s recitation of the narrative in her evidence at page 8 of the transcript of her Reasons as follows:

“I would agree with both counsel that parts of the complainant’s evidence were confused at the least. She was unable to give clear evidence as to when she had arrived in Cambridge. At times she seemed to be saying that she had arrived on Saturday i.e. April 2nd, while at other times she seemed to be describing events that happened on the day before. She did not purport to be clear exactly when she had arrived and indeed she was not. She denied that she had stayed the Friday night at the accused’s residence or that they had partied with others over that night, instead she said that she had been there for four hours. I would note that the accused confirms in his statement that she was there for a matter of hours when he said that she arrived with V.C. and J. and that V.C. and J. stayed for a matter of minutes and then they left and that it was then a couple of hours before V.C. came back, which was shortly before they all left the apartment.”

[32] Again, it is readily seen that the trial judge was alert to the issue of the inconsistencies in S.T.’s narrative, and its significance. Arguably, had the evidence supported a finding that S.T. spent Friday night and all day and into the evening on Saturday at J.S.’s residence, it could impact on the ultimate question of whether the touching was consensual. However, the trial judge made a specific finding that she was there for only four hours. In doing so, she was satisfied that that finding could co-exist with confusion on S.T.’s part on when she arrived in Cambridge. It is noted that she did not evaluate S.T.’s evidence on this point in isolation, but found confirmation in J.S.’s own statement to police, which supported a finding that S.T. was at his residence for a matter of hours, not overnight and all the next day.

[33] I find that it was open to the trial judge to make the finding that she did on this issue, and she therefore did not misapprehend the evidence so as to affect the reasonableness of the verdict.

(c) Second Ground: Application of a different standard of scrutiny to the evidence of the defence to that of the prosecution.

[34] Counsel for the Appellant submits that the trial judge made a reversible error by applying a different standard in the assessment of the defence witnesses than that of the complainant S.T.

[35] As examples of the unequal scrutiny applied, as between the defence and prosecution evidence, the Appellant points to:

(a) The trial judge’s rejection of T.A.’s testimony except where corroborated or where it meets common sense, but not applying a similar requirement for corroboration on S.T.’s evidence;

(b) The trial judge utilizing V.C.’s evidence, which she found insufficiently credible to raise a reasonable doubt, to critique T.A.’s evidence;

(c) The trial judge carrying out a lengthy “motive to lie” assessment in reference to the complainant, S.T., but failing to failing to do so with reference to T.A. and V.C.;

(d) The trial judge overestimating the damage done on cross-examination to T.A.’s testimony, and concluding that her evidence was at least in part a concoction of gossip and assumptions; and

(e) The trial judge using the cell phone records to challenge V.C.’s reliability, but not the evidence of S.T.

[36] Regarding arguments on appeal that the trial judge applied inconsistent standards of scrutiny to the evidence of the Crown and the accused, the Court of Appeal in R.v.Howe (2005) 2005 253 (ON CA), 192 C.C.C. (3d) 480, {2005] O.J. No. 39 (C.A.) had this to say at para. 59:

This argument or some variation on 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. 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.

[37] As was observed by McLachlin, J. in R. v. Burns 1994 127 (SCC), [1994] 1 S.C.R. 656 at para. 15:

In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and reweighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168; R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. (emphasis added)

[38] It is important therefore, in carrying out an analysis of whether the trial judge applied different standards of scrutiny, that this court be careful not to enter into the realm of making a determination of whether the trial judge was wrong in accepting the evidence of the complainant and rejecting the evidence led by the accused. The determination of which evidence to accept and which to reject is best left to the trial judge, who is in a position of significant advantage to make assessments of credibility.

[39] This court’s role, on appeal under [s