ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION NO.: 10-7744
DATE: 2013-04-12
B E T W E E N:
Her Majesty The Queen
T. Norman, for the Respondent
Respondent
- and -
Christopher Krouse
M. Wendl, for the Applicant/Accused
Applicant/Accused
JUDGMENT
Mr. Justice Harrison Arrell
Introduction:
[1] Christopher Krouse was charged on September 16, 2010, with one count of Sexual Assault, contrary to the provisions of Section 272 of the Criminal Code of Canada and one count of Sexual Interference, contrary to the provisions of Section 151 (a) of the Criminal Code of Canada, against E.C.
[2] The trial of this matter took place over two days. Christopher Krouse testified in his own defence at trial. At the end of trial, Justice Campling found Christopher Krouse guilty on both counts.
[3] The parties agree the case turned on the credibility of the complainant and Mr. Krouse.
Facts:
[4] The complainant was 13 at the time of the offence, the accused was 19. She testified that the accused forced intercourse on her using a condom. Given the respective ages of the parties consent was not an available defence to the charges. The accused testified that there was no sexual contact.
[5] Silicone oil was detected by the Centre of Forensic Sciences on E. C.’s underwear and on a vaginal swab taken the day after the incident. That silicone oil, on both the underwear and vaginal swab, was consistent with a condom lubricant.
[6] Police searched Christopher Krouse’s residence the day after the sexual assault and found unused lubricated condoms in his bedroom. The police did not find a used condom or used condom wrapper in his apartment.
[7] The Applicant testified that he had been with the complainant earlier in the afternoon. E. C. was talking to another boy about going AWOL. The Appellant helped explain to her that meant basically running away from home and disappearing from her family.
[8] E.C. told Mr. Krouse that her parents were kind of abusive; that they treated her like shit; that they wanted her to do everything in the house; that she wasn’t allowed out of the house; and that her brother picked on her.
[9] Mr. Krouse suggested she stay at his apartment instead of going home and he would contact the CAS for her in the morning. He testified that he was concerned for her safety as he felt she was being physically and emotionally abused at home based on what she had told him. He intended to call the CAS due to that concern. He maintained that he could not contact the CAS without the complainant staying overnight because it was 4:30 p.m. and he believed the office closed at 4:00 p.m. He also said he had no access to the phone number for the CAS and he had no way to get that number because he did not have access to the internet or a phone book at home. He did not know anyone with access to the internet and he did not otherwise know the number. As such he would not be able to contact the CAS until the next morning by using the internet at school.
[10] Christopher Krouse testified that he knew that E.C. was 13 years old and in grade 9 at the time of the incident. After being introduced to E.C. (at the start of the school year) he did not socialize with her until the date of the offence.
[11] The Appellant’s mother testified that she worked in a bar below the apartment she shared with her son. She was introduced to E.C. that evening and she told her son that he should probably get her home. When she got home from work her son was asleep on the couch and she assumed E.C. had gone home. She testified that her son came to the bar regularly to visit her. She also testified that there were about 6 phone books in the bar.
[12] The Appellants mother also testified that Christopher Krouse did not say anything to her about his plan to call the CAS. She confirmed that she had a laptop computer in the apartment. When she got home that night after work she surfed the internet. She testified that the appellant could have used the computer and the internet if he had wanted to.
[13] Somewhere between 9:30 p.m. and 1:00 a.m. E.C. claims she was raped. She states that Christopher Krouse asked her to have sex with him, and in response she stated “Whatever, I’m going to bed” and that she was almost asleep.
[14] E.C. stated that she was half asleep when Christopher Krouse put his penis inside her vagina, which immediately woke her up and that her clothes were off. She did not feel her clothes being taken off however.
[15] Even though she did not remember how her clothes were taken off she did remember hearing a wrapper being opened while she was still half asleep. She went back to sleep after the alleged rape. She woke when Mr. Krouse’s mother came home and her clothes were back on and Mr. Krouse was lying next to her. She says she saw Mr. Krouse put the condom and its wrapper in the garbage when she woke in the morning around 7:00 a.m. The police searched the house much later in the day and the room was very messy. No condom or wrapper was found. E.C. did testify that the wrappers of the unused condoms found in Mr. Krouse’s dresser were the same as the wrapper she saw on the floor when she woke in the morning.
[16] Defence counsel made lengthy submissions regarding the credibility of the complainant in this matter. In 22 pages of submissions, pages 5 through 16 are devoted to the defence position regarding the credibility of E.C. Justice Campling was obviously following those submissions as he commented on them from time to time.
[17] Justice Campling delivered his reasons for judgment immediately following the defence submissions.
Grounds of Appeal:
[18] The Appellant advances the following grounds of appeal:
A. The verdict was unreasonable and an acquittal or a new trial should be allowed because Justice Campling made an improper inference or misapprehended the fact when he found that the apartment was not properly searched; therefore Justice Campling did not consider that a used condom and wrapper was not found in direct contradiction to E.C.’s evidence.
B. The verdict was unreasonable and an acquittal or a new trial should be ordered because Justice Campling failed to scrutinize the evidence of the complainant E.C. and reversed the burden of proof.
C. A new trial should be ordered because Justice Campling failed to deal with the theory of the defence and address defence evidence.
D. A new trial should be ordered because Justice Campling failed to deal with the second ground of WD in his reasons, thereby effectively reversing the burden of proof and;
E. A new trial should be ordered because Justice Campling failed to provide adequate reasons.
The Law:
[19] Section 686(1) of the Criminal Code provides that the Court of Appeal may allow the appeal where:
(a) the verdict is unreasonable or cannot be supported by the evidence
(b) on the ground of a wrong decision on a question of law
(c) on the ground there was a miscarriage of justice
Pursuant to s. 822 of the Criminal Code, this summary conviction appeal court has the same powers as the Court of Appeal in indictable matters.
[20] In R. v. R.E.M, 2008 SCC 51, [2008] S.C.J. No. 52 the Supreme Court reiterated the test for sufficient reasons and specifically sufficiency of reasons where credibility is the central issue. The Court provided guidance to appellate courts regarding the test for sufficient reasons and stated that the appropriate approach when assessing sufficiency of reasons should include:
(1) the degree to which context informs the assessment of the sufficiency of reasons;
(2) the degree of detail required in connecting different pieces of evidence to the verdict;
(3) how much needs to be said on findings of credibility; and
(4) the role of appellate courts.
[21] Reasons must be sufficient to explain what the trial judge decided and why he made that decision. They should be read as a whole in the context of the evidence and arguments at trial. The object is not to show how the judge arrived at his conclusion in a “watch me think” fashion. What is required is a logical connection between the what – the verdict – and the why – the basis for the verdict.
R. v. R.E.M. supra, at paras 15, 17
[22] Reasons 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.
R. v. R.E.M. supra, at para 18
[23] The trial judge does not have to detail the precise path that led from disparate pieces of evidence to his conclusions on credibility and guilt.
R. v. R.E.M. supra, at para 24
[24] Trial judges are in a unique position to see and hear witnesses. Appellate courts are not to substitute their assessment of credibility for the trial judge’s views. In the absence of palpable and overriding error by the trial judge his perceptions should be respected.
R. v. R.E.M. supra, at para 28
[25] In a case that turns on credibility the trial judge must turn his 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.
R. v. R.E.M. supra, at para 31
[26] Where credibility is a determinative issue, deference is in order and intervention will be rare. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel.
R. v. R.E.M. supra, at para 3
[27] What is required is that the reasons read in the context of the record and the submissions on the live issues in the case, show that the judge has seized the substance of the matter.
R. v. R.E.M. supra, at para 42
[28] Trial judges are presumed to know the law with which they work day in and day out. The trial judge was not required to recite the rule set out in W. (D.), provided the reasons demonstrated he had seized the substance of the critical issue of reasonable doubt in the context of a credibility assessment. Assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. 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. The trial judge is not required to enter into a detailed account of the conflicting evidence.
R. v. R.E.M. supra, at paras 45-56
[29] An appellate court has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. 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 if falls upon the reviewing tribunal to intercede.
R. v. R.E.M. supra, at para 56
Analysis:
[30] Justice Campling delivered his reasons for judgment immediately following lengthy defence submissions which dealt extensively with credibility. His reasons included; (1) his findings of fact in relation to the adequacy of the search of the apartment and how the failure of the police to find a used condom and wrapper impacted on his assessment of E.C.’s credibility. (2) The significance of the silicone oil found on E.C.’s underwear and vaginal swab. (3) The credibility of Christopher Krouse. (4) The credibility of E.C.
[31] Justice Campling rejected the Appellant’s evidence and explained why. He made findings of fact that the Appellants evidence was “generally farfetched” and that the Appellant was prepared to deliberately mislead the court about his access to the internet where it would help his defence. These conclusions are well founded on the evidence at trial and deserving of deference. Justice Campling also found E.C. to be a credible witness whose version of events had some corroboration. His findings on the crucial issue of credibility were determinative to the outcome of the case. Deference to his findings of credibility is in order.
[32] The learned trial judge addressed the issue of the used condom clearly by stating that one was not found but that was not conclusive as to the truthfulness of E.C. as to whether one was used. He accepted her evidence that one was used, that she saw it on the floor and later put in the garbage. Unused condoms were found in the bedroom as was silicon oil on E.C. which was corroborative of her evidence. He was well aware of the inconsistencies in her story, especially her evidence of no land phone line to her home that was contradicted by her mother. He, however, after seeing her give evidence and be vigorously cross-examined, concluded she was truthful on the core evidence that Mr. Krouse had sex with her. This evidence was clearly capable of being corroborated by the silicone oil and the unused condoms found in the Appellants bedroom.
[33] The learned trial judge also gave due consideration to the evidence of Mr. Krouse and rejected it. Namely, that he had no sexual contact with E.C. That his whole purpose in taking her home and keeping her overnight was to help her be safe from her parents. That the Appellant had some experience with Children’s Aid in Hamilton but did nothing to attempt to contact the Children’s Aid Society or the police. That his reason for not calling the Children’s Aid Society was because he believed it was closed for business and there was no point in calling them. He was very much alive to reasonable doubt and W.(D.) as he stated:
“Your evidence, as a whole, seemed somewhat farfetched, but I have to always keep in mind but I have to keep in mind that if it only raises a reasonable doubt you are entitled to be acquitted.”
[34] The learned trial judge disbelieved the accused and he gave his reasons why the Appellant was not a credible witness. He stated:
“The biggest single piece of your evidence which leads me to disbelieve you is your evidence about the computer in your apartment, your mother’s computer, not being connected to the internet. You gave that evidence to justify your not using the computer and the internet in your quest, on your evidence, to help E.C. Your mother, who was excluded from the courtroom during your evidence, testified that she did have access to the internet on her computer. I have no hesitation in believing her evidence. She has no reason to tell anything but the truth on that point and, therefore, it’s clear to me that you were prepared to deliberately mislead me where it would help advance your defence. The contradiction on that point helps me in assessing your whole evidence and the result is that your evidence that you did not have intercourse with E.C. does not raise any reasonable doubt in my mind.”
[35] I reject the Appellants argument that Justice Campling drew an improper inference or misapprehended the evidence when he concluded that the apartment was not properly searched. He explicitly and accurately addressed the evidence that the police did not find a used condom wrapper. He went on to address the effect of that evidence on E.C.’s credibility. He concluded that the absence of the condom wrapper was inconclusive. His reasons reflect a complete understanding of the nature of the evidence and its significance.
[36] Justice Campling’s reasons do not reveal any failure to scrutinize the evidence of the complainant or reverse the burden of proof as argued by the Appellant. Considering the totality of the record including submissions of the Appellant’s counsel and the reasons for judgment, it was clear that the learned trial judge was well aware that credibility was the central issue in the case. Defence counsel made lengthy submissions on the complainant’s credibility. Justice Campling directed his mind to the decisive question of whether the accused’s evidence raised a reasonable doubt in the context of the evidence as a whole as required by the Supreme Court. He was not required to enter into a detailed account of conflicting evidence.
[37] Justice Campling addressed the central issue of credibility at trial, the failure of the police to find a condom during their search and the corroborative evidence of the silicone found on the complaint’s underwear and on the vaginal swab. Justice Campling was not required to prove through his reasons that he was alive to and considered all of the evidence, nor was he required to answer each and every argument of counsel.
[38] The trial judge was not required to recite the rule set out in W.(D.), provided the reasons demonstrated he had seized the substance of the critical issue of reasonable doubt in the context of a credibility assessment. As stated above Justice Campling properly directed his mind to the decisive question of whether the accused’s evidence raised a reasonable doubt as to his guilt. It did not and he found as well that the Crown had proven the case beyond any reasonable based on the totality of the evidence.
[39] Credibility was the determinative issue in this case. Where credibility is a determinative issue, deference is in order and intervention rare. Justice Campling explained what he decided and why he made that decision. His reasons were responsive to the issues in the case and adequate in the context of the entire record. The evidence was available to support his conclusions.
Conclusion:
[40] I have no hesitation in concluding that the learned trial judge was alive to the issues in this case, W.(D.), credibility of the parties and reasonable doubt. He addressed those issues clearly and succinctly. There can be no doubt as to what he decided and why. The evidence was more than sufficient for him to draw the conclusions he did. He saw and heard the witnesses and his views are entitled to significant deference. The appeal is dismissed.
Arrell J.
Released: April 12, 2013
INFORMATION NO.: 10-7744
DATE: 2013-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Christopher Krouse
Applicant/Accused
JUDGMENT
Arrell J.
Released: April 12, 2013