ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: AP-92-12
DATE: 2013-04-02
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. J. McKay for the Crown, Respondent
- and -
K.K.
Mr. S. Owen for the appellant, Mr. K.K.
HEARD: March 14, 2013,
at Kenora, Ontario
Regional Senior Justice H.M. Pierce
Reasons for Judgment on Appeal
[1] The appellant, K.K., appeals against conviction on one count of sexual assault registered by Mr. Justice D. Fraser on November 13, 2012, at F[…] Territory. The companion charge of sexual interference was conditionally stayed, based on Kienapple principles, pending the lapse of the appeal period. While counsel on the appeal did not specifically address the issue, I conclude that the charge of sexual interference will rise or fall with the result of the appeal on sexual assault, as the charge is grounded in the same set of circumstances.
[2] The grounds for appeal are:
that the trial judge misapprehended the evidence; and
that the trial judge failed to apply the onus and burden of proof, such that the verdict was unreasonable on the evidence.
[3] The Crown submits that the verdict was reasonable and that deference is owed to the trial judge’s verdict.
[4] No attack is made on the sufficiency of the reasons at trial. Counsel agree that the test to be applied by the court sitting in appeal of the decision was articulated in R. v. R.P. 2012 SCC 22, [2012] 1 S.C.R.746, para.9, as follows:
…whether the verdict is one that a properly instructed jury or judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge…
Test for an Unreasonable Verdict
[5] At its heart, this case turns on whether the trial judge’s verdict was unreasonable. Mr. Justice Doherty described the elements of an unreasonable verdict, drawing on the rule in Hodge’s Case 1838 1 (FOREP), [1838], 2 Lewin 227, 168 E.R.1136, in the more modern R. v. Mars, (2006) 2006 3460 (ON CA), 205 C.C.C. (3d) 376 (C.A.) at para. 4:
When assessing the reasonableness of a verdict, the appellate court must have regard to the burden of proof applicable in a criminal case. Where, as here, the Crown’s case depends on inferences drawn from primary facts, the question becomes: could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence? The totality of the evidence refers to evidence that is potentially exculpatory as well as evidence that supports the Crown’s case against an accused.
Test for an Unreasonable Verdict
Deference to the Trial Judge
[6] It is settled law that the reviewing court owes deference to the trial judge, who is usually in a better position to make findings of fact, assess credibility and draw inferences, having heard and seen the witnesses testify: R. v. R.P, para. 13.
[7] In R. v. Singh, (2010) 266 C.C.C., para. 27, the Court of Appeal commented on the deference owed to the trial judge as the primary assessor of evidence:
The trial judge’s factual findings, including the inferences drawn from primary facts, and his reliability assessment are entitled to deference absent any material apprehension of the evidence or error in principle.
The Evidence at Trial
[8] The appellant did not testify at trial.
[9] The Crown’s principal witness was Mr. N.H., who resides with his girlfriend, Ms. T., and their two children in a home at F[…] Territory. Mr. N.H.’s daughter, the alleged object of the assault, was four years old at the time. She did not testify.
[10] Mr. N.H. testified that his girlfriend hosted a party at their residence on an evening in July, 2012. The appellant arrived at about 2 a.m. and continued to drink. Mr. N.H. noticed that the appellant had alcohol on his breath when he arrived at the party; he stated that the appellant seemed to be “buzzed.”
[11] Mr. N.H. went to bed about 10 – 20 minutes after the appellant arrived at his residence. Mr. N.H. drank two or three cups of “home brew” that was available that night before he went to bed as he had to work the next morning.
[12] Mr. K.K. is a neighbour of Mr. N.H.’s, living two or three houses away. Ms. T. had discussed her children with the appellant; Mr. N.H. believed the appellant knew they had children even though he had never been in the N.H. residence before the night of the party.
[13] The N.H. family all slept in the same bedroom. When the appellant arrived at the party, the two children were already in bed, asleep.
[14] On the night of the party, Mr. N.H. shared a bed with both his children. Ms. T. also sleeps in the same bed. Mr. N.H. fell asleep on the bed beside his daughter; his son was on the other side of her. The bedroom was dark at the time of the allegations. The only lighting came from the hallway in the residence.
[15] Ms. T. remained awake in the living room of the house. After Mr. N.H. went to bed, Ms. T. went to the bathroom, leaving the appellant alone in the living room. Mr. N.H. testified that he had been asleep for half an hour when he felt a movement at his feet that he supposed was Ms. T. coming to bed. He went back to sleep.
[16] Then he was awakened again, this time by his daughter sitting up quickly and saying, “What are you doing?” He observed a scared look on the child’s face. It was still dark outside. Mr. N.H. observed the appellant lying on his left side at the foot of the bed, with his body on the bed and his feet on the floor. Mr. N.H. testified that the appellant’s left hand and arm were under the blanket covering the children, in the vicinity of his daughter’s legs. He did not see the appellant’s hand touching any part of his daughter’s body.
[17] Mr. N.H. confronted the appellant who pulled his arm out from under the blanket. He yelled that the appellant had molested his daughter, seized him, and beat him up. Ms. T. testified that only half a minute elapsed between her visit to the washroom and when she heard Mr. N.H. yell at the appellant.
[18] When Constable Harasyn attended at the N.H. residence at about 5:30 a.m. that day, Mr. N.H. seemed upset and to have been drinking alcohol but he did not seem intoxicated. By contrast, Constable Harasyn testified that he then located the appellant who was highly intoxicated and showing signs of injury.
The Trial Judge’s Reasons
[19] After summarizing the charges against the appellant, the trial judge gave succinct reasons as follows:
The Crown called three witnesses. The father of the child, N.H., testified that his Fiancé, [sic] long-time girlfriend was having a birthday party in their residence that evening and people were consuming homebrew. He had a limited amount of homebrew and then went to bed because he had work to attend to the following morning. So he limited his alcohol intake and went to bed. Just before he went to bed, K.K. arrived at the party by invitation of one of the other guests. Mr. N.H. was sleeping in the same bedroom as his children on the same bed, or there were two beds joined together. He felt the bed move, thought it was his intimate partner coming to bed, and drifted back to sleep only to be aroused again when he sensed his daughter sitting up suddenly, pulling back, and saying, “What are you doing?” He looked up at that point and saw the defendant’s hand under the blanket in the vicinity of his daughter, saw his daughter was distressed, upset, scared, and he then demanded an explanation and immediately assaulted K.K. and threw him out of the house.
The mother of the child testified, but her evidence is not really on point. She was in the bathroom at the material time, was in the bathroom about half a minute. She had left the living room to go to the bathroom and at that time, the defendant was sitting on the couch. She then heard the shouts and swearing from N.H., came out of the bathroom, saw a blood trail leading outside, saw that her daughter was awake and upset.
Constable Justin Harasyn responded to the call and confirmed that the defendant had been beaten but had no direct evidence on point with respect to the issue.
The defence elected to call no evidence.
I am satisfied that, in fact, the only reasonable inference is the inference that N.H. drew from what he observed when he awoke. His daughter reacting, saying, “What are you doing?” and pulling away from the defendant, his arm under the blanket, jerked back quickly when he saw the daughter was awake, and N.H. awaking as well. In my view, this is not just an assumption, this is a reasonable inference drawn from the facts perceived by N.H., and in my view, that evidence is compelling evidence that in fact this child was touched and her sexual integrity interfered with by the defendant.
So in the circumstances, I am satisfied beyond a reasonable doubt on the uncontradicted evidence of N.H. that the Crown’s case has been proved.
Discussion
[20] The elements of the offence of sexual assault are set out in section 265 of the Criminal Code: intentional touching that is sexual in nature to which the complainant did not consent and to which the accused knew that the complainant did not consent.
[21] Is there evidence that proves, beyond a reasonable doubt, the elements of the offence, such that the accused’s guilt was the only reasonable conclusion arising from the totality of the evidence? Since there was no direct evidence of intentional touching for a sexual purpose, the trial judge must be satisfied that an inference arises from the evidence that proves the offence beyond a reasonable doubt and that there was no other reasonable conclusion arising from that inference.
[22] Is such an inference available? In my view, it is not.
[23] The evidence suggests that the appellant, in an intoxicated state, went into a darkened bedroom. There is no evidence that he knew that the little girl was asleep in that room. The little girl was sleeping between her father and brother, making an opportunity for sexual assault without detection difficult.
[24] It is just as reasonable to conclude that the appellant was looking for a place to sleep. What is missing is any evidence that the appellant intentionally touched the little girl for a sexual purpose. At its highest, the appellant groped under the blanket. In doing so, it is a reasonable inference that he touched her and startled her awake. Was the touching intentional such that a conviction for common assault would follow? The evidence is ambiguous in this regard and does not rise to the standard of proof beyond a reasonable doubt. As well, in my view, the evidence does not support a conclusion that the touching was intentionally sexual or that the child’s sexual integrity was compromised.
[25] For this reason, I would allow the appeal and enter an acquittal.
Regional Senior Justice H.M. Pierce
Released: April 02, 2013
COURT FILE NO.: AP-92-12
DATE: 2013-04-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
K.K.
Appellant
REASONS FOR JUDGMENT ON APPEAL
Pierce, RSJ
Released: April 02, 2013
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