SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 85/12

DATE: 20130318

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty The Queen v. David Harper

BEFORE: Mr. Justice Kenneth L. Campbell

COUNSEL: Lori Hamilton, for the Crown, respondent

Alison Craig, for the accused, appellant

HEARD: February 20, 2013

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, David Harper, appeals against his conviction for the sexual touching of a young, female complainant. Essentially, the Crown alleged that, on the evening of August 30, 2011, the 63-year-old appellant fondled the breasts and vaginal area of a 13-year-old girl who lived in his neighbourhood. This sexual touching was alleged to have taken place over her clothes, while the young girl was seated on his lap on a chair in the appellant’s open garage, after he and his wife had bought ice cream for the complainant. A nine-year-old male friend of the complainant was a witness to this alleged sexual touching of the complainant by the accused.

[2] The appellant was tried by the Honourable Mr. Justice D. Cole of the Ontario Court of Justice. The appellant challenged the credibility and reliability of the complaint by highlighting numerous inconsistencies in her evidence. The appellant testified and vehemently denied any sexual touching of the complainant. He agreed that, for a short period of time, he allowed the complainant to sit on his knee, as she requested, and as his grandchildren and their friends often did. In his Reasons for Judgment at the conclusion of the case on April 26, 2012, the trial judge, essentially, accepted the key evidence of the complainant and her young friend as to the sexual touching, rejected the testimonial denial of the appellant, and concluded that the Crown had proven its case against the appellant beyond a reasonable doubt.

[3] Subsequently, on July 4, 2012 the trial judge sentenced the appellant to a 60 day term of imprisonment, to be served intermittently on weekends, and to a two year term of probation. A second charge of sexual assault was stayed on the basis of the rule against multiple convictions for the same offence.

[4] The appellant contended, on appeal, that the trial judge: (1) erred in his assessment of the credibility and reliability of the evidence of the complainant and failed to appreciate it’s significant frailties; (2) erred in applying different standards of scrutiny in his assessment of the complainant’s evidence and the appellant’s testimony; and (3) erred in rejecting the testimony of the accused for reasons not supported by the evidence.

B. Analysis

1. Introduction

[5] I have concluded that the appeal must be allowed and a new trial ordered. In my view there is merit to the third ground of appeal raised by the appellant. I agree that the trial judge erred in his assessment of the evidence of the appellant and, more particularly, in rejecting the testimonial denial of the appellant based on inferences and conclusions drawn by the trial judge as to the consumption of alcohol by the appellant which were not supported by the evidence. Accordingly, I will not detail the evidence, except as it is necessary to understand my reasons for reaching this conclusion. Nor will I address the other grounds of appeal raised by the appellant.

2. The Reasons for Judgment – Assessing the Testimony of the Accused

[6] Given the nature of this case and the testimonial denial of the appellant, the trial judge was obliged to consider and apply the three-pronged standard outlined in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. The trial judge expressly applied precisely this test and, in so doing:

• The trial judge rejected the testimony of the accused on the central issue of whether or not he had “groped” the complainant;

• The trial judge concluded that neither the testimony of the accused, nor the other evidence called on his behalf (the accused’s wife also testified) raised any reasonable doubt as to the guilt of the accused; and,

• The trial judge accepted the key evidence of the complainant (except as to how she came to be seated in the appellant’s lap) and that of her friend, and expressed his satisfaction that the Crown had discharged its onus of proving the guilt of the accused beyond a reasonable doubt.

[7] The appellant argued that the trial judge rejected the evidence of the accused based upon speculative factual conclusions unsupported by the evidence. More specifically, the appellant argued that the trial judge erred in rejecting the testimony of the accused based upon speculative inferences regarding the amount of alcohol that was consumed by the appellant on August 30, 2011, in the absence of any sound evidentiary foundation, and in drawing unsupported conjectural conclusions regarding how that perceived alcohol consumption adversely impacted upon the appellant’s reliability as a witness.

[8] There is no doubt that, in rejecting the evidence of the accused, the trial judge placed heavy reliance on the accused’s consumption of alcohol on the day of the alleged offence. More particularly, in his Reasons for Judgment, the trial judge expressly drew all of the following conclusions in relation to this issue:

• On the whole I did not have a favourable view of [the appellant’s] evidence. I start with the question of how much he had to drink that day and how that affected his ability to recall the events. Though the [appellant] admitted to consuming a “couple of rum and cokes earlier in the day, around noon to one o’clock,” it seems fairly obvious to me that he had considerably more.

• I find it noteworthy that on the date of his arrest a few days later, [the appellant] too had not been working on that day. Upon being confronted with the suggestion in cross-examination that he was drunk when he was arrested, he agreed that he might have consumed “3 to 4, but I’m not sure.” I think I am safe to make a fair inference that on the days when he is not working Mr. Harper drinks considerably more than he said he did on August 30th.

• While of course that fact alone would not cause me to dismiss his evidence, I can and do consider that [the appellant’s] consumption of alcohol affected both his ability to recall what happened on August 30th and his behavior on that day and I evaluate his evidence in that context.

• When I combine these vague recollections [of the appellant] with what I consider to have been his level of alcohol consumption, I find that much of the [appellant’s] recollection of detail about what happened on August 30th prior to his wife’s arrival in the garage is unreliable.

• Nevertheless, because of the contradictions between the evidence of the [appellant] and that of the two children, combined with the fact that the [appellant] likely had had considerably more alcohol to drink on August 30 than he was prepared to admit, I have little difficulty rejecting his evidence except to the extent that it is corroborated either by the children or by his wife.

[emphasis added throughout]

[9] In summary, as these excerpts reveal, in his Reasons for Judgment the trial judge concluded that: (1) it was obvious that the appellant consumed considerably more alcohol on the date of the alleged offence than he admitted in his testimony: (2) the appellant’s consumption of alcohol on the day of the alleged offence adversely affected his recollection of the events of August 30, 2011, and his behavior that day; and (3) as a result of the appellant’s consumption of alcohol, his testimony as to the key events in his garage while alone with the complainant, is unreliable and must be rejected.

3. The Evidence of Alcohol Consumption by the Appellant

[10] The evidence that was led by the parties at the trial of this matter regarding the alcohol consumption of the appellant on the date of the alleged offence does not support the inferences drawn and the conclusions reached by the trial judge. Indeed, at the hearing of the appeal, the Crown fairly and candidly conceded that the inferences drawn by the trial judge on this issue were a speculative “stretch” given the evidence.

[11] The accused testified that, on the day in question, he had consumed a “couple” of mixed “rum and coke” drinks earlier in the afternoon, around noon or 1:00 p.m., while he was painting inside the house. He testified that he was not intoxicated during his dealings with the complainant, as he did not see the complainant that day until after dinner. The parties agree that the interaction between the appellant and the complainant, during which the complainant alleged that the inappropriate sexual touching took place, was not until after dinner that day. The appellant denied any drinking at the time he was sitting with the complainant in his garage after dinner on the evening of August 30, 2011.

[12] The appellant’s wife confirmed that her husband might have had one drink that day, and he did not strike her as in any way intoxicated.

[13] The complainant testified that, when she arrived at the appellant’s garage on the evening in question, the appellant was drinking Coke from a glass. She did not know if there was anything other than Coke in the glass. The complainant also noticed some beer bottles on the “rack” in the garage.

[14] The appellant was questioned, however, more generally about his alcohol consumption. In this regard, the appellant testified that he usually had “one to two” drinks a day. He also testified that he never drank to the point of being unable to remember things that happened or things that he had done. The appellant admitted, however, that on the day of his arrest, which was a couple of days after the alleged offence against the complainant, he had “three or four” drinks and was likely “intoxicated.” The appellant also admitted that he occasionally consumed this increased quantity of alcohol on the weekend.

4. The Positions of the Parties at Trial

[15] Defence counsel for the appellant argued that there was simply no evidence that the appellant was “drunk” or “impaired” and might, therefore, have been unable to remember what he did on the night of August 30, 2011. Rather, defence counsel accurately noted that the testimony of the appellant was that he only had one or two drinks earlier that day. There was no evidence that the appellant was intoxicated.

[16] At trial, the only brief submission made by the Crown in relation to the issue of alcohol consumption on the part of the appellant was as follows:

… the Crown isn’t submitting that [the appellant] was so drunk that he couldn’t remember this incident, although there was some suggestion that he was, as I understand, drinking that day. It is possible Your Honour can find that the drinking did lead him to lower his inhibitions, in terms of what he was willing to do while there were other people around potentially in the neighbourhood.

[17] In other words, at trial the Crown did not suggest that the appellant consumed more alcohol on August 30, 2011 than he admitted in his evidence. Nor did the Crown suggest that the alcohol consumption by the appellant that day affected his recollection of the events, or the reliability of his evidence. The Crown relied on this evidence to suggest only that his consumption of alcohol earlier in the day may have reduced his inhibitions when in the company of the complainant later that night.

5. Conclusion

[18] In summary, the only evidence before the trial judge as to the appellant’s consumption of alcohol on the key date of August 30, 2011, when he was alleged to have sexually molested the young complainant, came from the appellant himself, who admitted that he had a couple of mixed “rum and coke” drinks around 12:00 noon or 1:00 p.m., which was at least four or five hours before the appellant had any contact with the complainant.

[19] With respect, this evidence simply does not support the conclusion expressly reached by the trial judge that the appellant had consumed considerably more alcohol than he admitted on that date. The mere fact that the appellant admitted that, on other occasions, including the night of his arrest, he consumed greater quantities of alcohol, does not provide any positive evidentiary support for the conclusion of the trial judge that it was “fairly obvious” that the appellant had consumed “considerably more” alcohol than he admitted on August 30, 2011. Nor does this evidence support the trial judge’s conclusions that this consumption of alcohol by the appellant adversely impacted upon his memory of the events of August 30, 2011, and affected his behavior that day. The only evidence was that the appellant consumed one or two mixed “rum and coke” drinks approximately four or five hours prior to having any contact with the complainant. It is difficult to see how such consumption of alcohol could possibly have such an impact upon the appellant’s recollection of the key events, or the appellant’s inhibitions while in the presence of the complainant. As the evidence in this case did not support any of these conclusions, the trial judge erred in relying upon these conclusions in rejecting the testimonial denial of the appellant based on its perceived unreliability. See: R. v. G.(D.T.), 2011 ONCA 40, 266 C.C.C. (3d) 189 (Ont.C.A.) at para. 15; R. v. Lajeunesse, [2008] O.J. No. 2993 (S.C.J.) at para. 18-28.

[20] Given the heavy reliance placed by the trial judge on the appellant’s consumption of alcohol in his unfavourable assessment of the testimony of the appellant, and given the absence of evidentiary support for the inferences drawn and conclusions reached by the trial judge in this regard, the verdict in this case cannot stand. It is simply not possible to conclude that the trial judge would necessarily have rejected the testimony of the accused had he not erroneously assessed that testimony of the appellant based upon speculative inferences and conclusions. In other words, had the trial judge properly assessed the testimony of the appellant based upon the evidence in this case, he might have reached a different result as to whether the appellant’s testimony should be rejected and whether the appellant’s testimony raised a reasonable doubt as to his alleged guilt.

C. Conclusion

[21] In the result the appeal is allowed, the conviction of the accused is set aside, and a new trial is ordered on both counts of the information. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: March 18, 2013