ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 7317/12
DATE: 2013 08 14
BETWEEN:
Her Majesty the Queen
– and –
James Coombs
Defendant/Appellant
Mary E. Pascuzzi for the Crown/Respondent on the Appeal
Paul Burstein, for the Defendant/Appellant on the Appeal
HEARD: June 12, 2013
REASONS FOR DECISION ON APPEAL
E.J. Koke J.
[1] The appellant, Mr. Coombs, was convicted in the Ontario Court of Justice of one count of assault, one count of assault with a weapon, two counts of mischief, one count of voyeurism and three counts of breaching a probation order (flowing from the convictions on the substantive counts).
[2] The offences were alleged to have occurred in or around Sault Ste. Marie, Ontario on four separate occasions in the summer of 2009. The only witness to the substantive offences was the complainant Cheryl Sidor, who was Mr. Coombs’ girlfriend at the time. In addition to Ms. Sidor, the Crown called several of the investigating officers to testify about aspects of the investigation, including Ms. Sidor’s reporting of the allegations and her demeanour during the interviews. The Crown also called Ms. Sidor’s brother-in-law, Jeff Lobsinger who is an OPP constable based in the community of Thessalon, Ontario and called one of Ms. Sidor’s co-workers who purported to have witnessed the lead-up to one of the assaults.
[3] Mr. Coombs did not testify, but called several witnesses in support of his challenge to Ms. Sidor’s credibility. Ultimately, the trial judge accepted the evidence of Ms. Sidor and found the appellant guilty of the charges.
[4] The appellant appeals against his convictions. Mr. Coombs bases his appeals on two grounds.
[5] Firstly, the appellant argues that in addressing and reconciling certain aspects of the evidence in her Reasons for Judgment (her “Reasons”), the trial judge committed what is known as a Morrissey error, referring to Justice Doherty’s decision in R. v. Morrissey.[^1]
[6] Mr. Coombs submits that this error reflects a misapprehension of material evidence (i.e., the testimony of the complainant) or a failure to appreciate and address the significance of certain defence evidence, which necessarily impacted the trial judge’s ultimate decision on the complainant’s credibility with respect to all of the substantive charges.
[7] Secondly, and with respect to the voyeurism charge only, the appellant submits that the trial judge erred in failing to conduct any analysis of whether the Crown had proven one of the essential actus reus elements of the offence; namely, whether the video recording was made “in circumstances that give rise to a reasonable expectation of privacy”.
[8] The Crown submits that the judge carefully reviewed the evidence, scrutinized it fairly and did not misapprehend it. If the judge did misapprehend or fail to address some of the evidence in her Reasons, this was not material evidence and it did not affect the outcome of the trial.
[9] With respect to the voyeurism charge, the Crown submits that the issue of whether the recording was made “in circumstances that gave rise to a reasonable apprehension of bias” was never a live issue at trial. The Crown points out that the issue of whether the complainant was entitled to a reasonable expectation of privacy was never raised by defence counsel at trial, and argues that it is unfair to raise it on appeal. The issues with respect to this count were issues of consent and knowledge by Ms. Sidor that her sexual activity with Mr. Coombs was being recorded. The trial judge considered these issues in her reasons for judgment, finding that the complainant did not consent to the recording and had no knowledge that Mr. Coombs was recording his sexual activities with her. The Crown also argues that it is patently obvious that to be engaged in sexual activities in a private residential dwelling should afford any citizen the right to a reasonable expectation of privacy.
1) Failure to appreciate the significance of defence evidence and misapprehension of the evidence
The theory of the defence at trial
[10] The facts were that on the morning of August 27, 2009, at 8:00 a.m., Ms. Sidor attended at the residence of her brother-in-law, Jeff Lobsinger in Thessalon, Ontario. Mr. Lobsinger is a constable with the OPP and is stationed in that community. Mr. Lobsinger testified that his sister-in-law was upset and crying while she referenced recent events with Mr. Coombs. He advised her to go to the police in Sault Ste. Marie. They agreed that she would call him later that day and tell him if she wanted him to call the police in Sault Ste. Marie on her behalf or if she was going to do so herself.
[11] At about 4:00 p.m. that day, Mr. Lobsinger received a call from his wife (Ms. Sidor’s half-sister), saying that Ms. Sidor wanted him to call the police on her behalf. Later that evening two police officers attended at Ms. Sidor’s residence in Sault Ste. Marie and spoke with her. Following that initial discussion at her home, Ms. Sidor attended at the police station later that night and was interviewed for several hours, during which time she provided the police with information which provided the basis for the charges in this case.
[12] The appellant’s position at trial was that Ms. Sidor had concocted some or all of her allegations against the appellant because she was a “scorned woman”; that is, the complainant’s decision to go to the police was motivated by her having discovered the previous week (on August 19,2009 – the night they broke up) that the appellant was romantically involved with another woman, Anita Nero. Ms. Sidor admitted that following the break-up she had been very upset and had taken the week off work. Also, earlier in the day on August 27th, Ms. Sidor had seen Mr. Coombs and Ms. Nero on the beach together.
The evidence regarding the “Beach Encounter”
The appellant called his son (Jared) and Ms. Nero’s daughter (Jade) to testify about what transpired on the beach. Their evidence differed from the evidence of Ms. Sidor, in that they testified that they were questioned by Ms. Sidor about their parents’ relationship. Ms. Sidor testified that she did not ask Jared any questions about his father. The appellant agrees that the trial judge accurately summarized the children’s evidence in the following paragraphs of her decision:
Par. 86: Jared testified he and the other kids decided to walk down the beach with their dog and were walking along the shoreline when Ms. Sidor got up from where she was sitting and walked down to meet them on the beach. Jared recalled Ms. Sidor was at the beach with her daughter-in-law and a younger child and her dog. He could not recall anything specifically involving their dogs. He recalled Ms. Sidor asking questions about his father and Anita Nero. He believed some of the questions were whether they were happy together, did they fight or get along. He indicated he did not answer the questions and walked away with his friend. He recalled Jade and her brother staying to talk to Ms. Sidor for a bit, then they came and met up with them. The kids eventually turned around to return to their beach area when they encountered Ms. Sidor again.
Par. 87: According to Jared, Ms. Sidor asked the same questions again to all the kids. He recalled stating “no” once and felt Jade and Jared had answered a few questions. He recalled being asked “do they fight” and he obviously replied “no”.
Par. 81: Jade testified Ms. Sidor asked her how she knew Jared and Jade replied their parents were dating. They kept on walking up the beach and she and her brother decided to return when the dogs saw each other again. Ms. Sidor spoke to her and her brother and asked weird questions of them such as if they (referring to Mr. Coombs and her mother) fought a lot; how long they had been dating and if they were happy together. Jade stated they returned to where her mother and Mr. Coombs were located and she told her mother about the conversation.
[13] The trial judge summarized the evidence of Ms. Sidor with respect to the beach encounter as follows:
52: Ms. Sidor also stated during cross-examination that prior to her complaint to the police, she attended Harmony Beach one afternoon when she was with her daughter-in-law. She saw Mr. Coombs’ vehicle at the beach so she proceeded to attend at the other end of the beach. She could however see Mr. Coombs with others including a female. At some point, Mr. Coombs’ 11 year old son, Jared stopped on the beach and spoke with her. She asked Jared who he was with as he was walking his puppy and was with other kids. Jared simply replied he was with friends. Ms. Sidor stated she never asked Jared any questions about his father.
The evidence regarding the date of the beach encounter
[14] Ms. Sidor’s evidence also differed somewhat from that of Jared in that she testified that she could not recall the exact date that she saw Mr. Coombs with Ms. Nero on the beach. She agreed that the encounter did pre-date her efforts to report the appellant to the police and she agreed that she spoke to the police on August 27th. Jared testified that he “believed” the encounter had occurred on August 27th. No one asked Jade to try and pinpoint the date.
Did the trial judge fail to appreciate the significance of the defence evidence which she accepted?
[15] Ultimately, the trial judge accepted the evidence of the defence that Ms. Sidor did question the children about the relationship between their parents, and accepted that the beach encounter had occurred on August 27th.
[16] The trial judge found that the inconsistencies between the defence evidence and the evidence of Ms. Sidor with respect to what transpired on the beach and the inability of Ms. Sidor to recall the date of the beach encounter was not sufficient to raise a doubt about her credibility.
[17] In her reasons the trial judge addressed this issue as follows:
Par.123: However, even if Ms. Sidor had seen Mr. Coombs and Ms. Nero at Harmony Beach on August 27, 2009 and this encounter was the straw that broke the camel’s back which led to calling police, it does not mean that Ms. Sidor was not victimized by Mr. Coombs as she claimed. In fact, Constable Lobsinger confirmed that on the morning of August 27, 2009, Ms. Sidor traveled to Thessalon to speak to him at his residence at about 8:00 a.m. He described Ms. Sidor as being upset as she disclosed events which had transpired between herself and Mr. Coombs during their relationship. He advised her to contact police. At that specific point in time, Ms. Sidor would not have seen Mr. Coombs and Ms. Nero at Harmony Beach, yet she had decided to confide in her brother-in-law who was an OPP officer.
The evidence provided by both children suggested Ms. Sidor approached them and began asking them specific questions about Mr. Coombs and Ms. Nero. There were some inconsistencies between Jared and Jade as to whether the dogs played, who stood and spoke to Ms. Sidor and who continued to walk up the beach et cetera. I place little weight on these inconsistencies. These children were 11 and 12 years of age in 2009. I was surprised they could remember the date and time of their meeting with Ms. Sidor. However, the children did provide similar consistent evidence of their encounter with Ms. Sidor. I find no reason to disbelieve the children. The children’s recollection was better than Ms. Sidor’s recollection on that day. This however does not lead me to conclude that I should reject all of Ms. Sidor’s evidence. I believe what is most important was the timing of Ms. Sidor’s meeting with Constable Lobsinger which was prior to the meeting on the beach. In my view, it does not undermine Ms. Sidor’s credibility on the balance of her evidence.
The theory of the defence as to why Ms. Sidor may have made false accusations against Mr. Coombs was based on speculation and conjecture. It is a fanciful motive unsupported by the evidence.
I felt Ms. Sidor testified in a candid and straight forward manner. She appeared to be an intelligent and articulate woman. She was able to recount her experiences with Mr. Coombs in an accurate fashion with much detail. Her evidence was not shaken under thorough cross-examination. Furthermore, some of Ms. Sidor’s evidence was supported by other witnesses, which also added to her reliability. I believed Ms. Sidor to be both a credible and reliable witness.
[18] The defence concedes that the trial judge recited the defence evidence clearly and made findings in this regard in favour of the defence.
[19] However, the defence argues that the trial judge did not deal with the discrepancies in the complainant’s evidence on the issue of Ms. Sidor’s alleged bias against Mr. Coombs. The defence argues that the trial judge failed to appreciate the significance of the fact that Ms. Sidor was potentially prepared to mislead the court about whether she had exhibited on the day of going to the police an unnatural, or to use the children’s words, “weird” interest in the appellant.
[20] The defence does not argue that these inconsistencies could not be reconciled in favour of the Crown; rather because the issue of bias is always a material issue, it was the failure of the trial judge to demonstrate through her reasons that she had turned her mind to the issue of how Ms. Sidor’s evidence could give rise to a finding of bias, which gives Mr. Coombs grounds for appeal.
[21] With respect, I cannot agree with the position of the defence. In my view, the trial judge did not misapprehend the evidence; neither did she fail to appreciate the significance of the discrepancies in the evidence in relation to the claim by the defence that Ms. Sidor was a “scorned woman” whose bias against the accused influenced her testimony.
[22] In paragraph 134 of her Reasons referred to above, the trial judge makes a specific finding that the children’s recollection was better than that of Ms. Sidor with respect to the beach encounter, but then in the same paragraph she states that this does not give her reason to reject her evidence, following which she gives reasons why she accepts the evidence of Ms. Sidor with respect to the offences. The fact that she uses the word “recollection” in referencing Ms. Sidor’s testimony in regard to the beach encounter is significant, because it indicates that the issue is one of recollection, not of deliberate fabrication.
[23] In the following paragraph (paragraph 134 of the Reasons), the trial judge goes on to specifically reject the theory of the defence as to why Ms. Sidor may have made false accusations as based on speculation and conjecture. She refers to this defence theory as “a fanciful motive unsupported by the evidence”.
[24] The trial judge concludes her discussion by stating that in her view Ms. Sidor testified in a candid and straight forward manner and that she believed Ms. Sidor to be both a credible and reliable witness.
[25] In conclusion, I find that the trial judge did not fail to appreciate the significance of the fact that the evidence of Ms. Sidor with respect to the beach encounter differed from the defence evidence, which was the evidence she accepted.
Did the trial judge misapprehend the evidence from the complainant as to when she first reported the incidents?
[26] The defence submits that Ms. Sidor testified in cross-examination that “she hadn’t told anybody” about the incidents prior to the beach encounter. The defence argues that this suggests another material discrepancy in her evidence, because the evidence as accepted by the trial judge was that she had spoken to her brother-in-law, Mr. Lobsinger early during the day of the beach encounter. The defence argues the failure of the trial judge to address this discrepancy in the complainant’s evidence constitutes another material misapprehension of the evidence or “Morrissey” error.
[27] With respect, I disagree with the defence position that this response by Ms. Sidor and the failure of the trial judge to address it in her reasons constitutes a misapprehension of the evidence on a material point.
[28] The context in which this evidence was provided by Ms. Sidor reveals that the term “anybody” was not an open ended term but was used in reference to a police officer with whom she could have filed a complaint.
[29] The transcript of the trial reveals the following context:
Q. Okay. And – and you agree that you saw and spoke to his son?
A. Yes.
Q. All right. Okay. And up ‘til that point you hadn’t called the police?
A. No.
Q. Correct?
A. No, I hadn’t.
Q. No. You hadn’t even asked to have an officer to come around to your house to talk to you at that point?
A. I didn’t know who I could trust because Mr. Coombs had said he knew – he had friends in the police.
Q. Yeah.
A. I didn’t know who I could – I took that time to think about what I was going to do.
Q. Okay. My question was, that you hadn’t called the police.
A. No.
Q. You hadn’t even asked for anybody to come and talk to you about the case, right?
A. Right.[^2]
[30] The evidence was that when the Sault Ste. Marie police were contacted, they did come to her house to talk to her. Unlike the police, Mr. Lobsinger did not come to her house; she attended at his house to talk to him, in his capacity as a trusted brother-in-law. Her response therefore was an accurate response to the question posed to her in cross-examination, which was whether she had asked for anybody to come around to her house and talk to her. Clearly, the context of the question suggested that she was being asked whether she had asked the police for help or spoken to them before the beach encounter. I cannot conclude therefrom that this constituted a misapprehension of the evidence by the trial judge, or that she should have commented on this response in her Reasons.
2) Failure by trial judge to conduct an analysis of whether the Crown had proven that the video recording was made in circumstances that gave rise to a reasonable expectation of privacy?
Background
[31] The offence of “Voyeurism” which is set out in Section 162 of the Criminal Code sets out three definitional elements which must be present in order for this offence to exist. These elements are:
a) The conduct giving rise to the offence must be must be surreptitious;
b) The conduct consists of observing a person, including observing by mechanical or electronic means – or making a visual recording thereof;
c) The circumstances in which the person is observed must be such that they give rise to a reasonable expectation of privacy. [emphasis added]
[32] If all three of these elements are present, the offence arises if one of the three conditions described in s.162 (1) (a); (b) or (c) is found to exist. These conditions include observing a person who is nude or engaged in sexual activity, observing a person in circumstances where it can be expected that the person is nude or engaged in sexual activity, or observing a person for a sexual purpose.
[33] The video recording depicts Mr. Coombs and Ms. Sidor engaging in sex in a bedroom in Mr. Coombs’ home. No issue was taken that the video existed, and that it was discovered by the police in Mr. Coombs’ residence. The trial judge made a specific finding of fact that the video was made without the knowledge or consent of Ms. Sidor and that it was made surreptitiously.
[34] The defence concedes that there was ample evidence upon which the trial judge could properly conclude that the appellant had surreptitiously videotaped himself and Ms. Sidor engaged in explicit sexual activity and that Ms. Sidor did not consent to the recording. The existence of the first two definitional elements is therefore not in issue.
[35] The defence submits however that it is arguable as to whether the circumstances in which Mr. Coombs made a video recording of his sexual acts with Ms. Sidor where such that they gave rise to a reasonable expectation of privacy on the part of Ms. Sidor. The appellant points out that the trial judge conducted no analysis of this element of the offence and made no findings in that regard. According to the defence, a new trial should be ordered on this count since the appellant is entitled to the benefit of trial judge’s findings on this essential element of the offence.
[36] Alternatively, assuming that the court is inclined to examine the evidence and make its own findings for the first time on appeal, the defence submits that the evidence at trial did not support beyond a reasonable doubt a finding that there was a reasonable expectation of privacy in the circumstances of this case.
Analysis
[37] I find that this ground of appeal fails for the following reasons:
[38] Firstly, the fact that the trial judge does not address this element of the offence in her Reasons does not mean that in reaching her decision she did not conclude that the video recording took place in circumstances where there was a reasonable expectation of privacy on the part of Ms. Sidor.
[39] When one considers the purposes for which reasons are given, they are not always necessary with respect to matters which are not in issue at trial.
[40] The object of the trial judge’s reasons was described by the Ontario Court of Appeal in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.), at para. 29:
In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made the decision. The reasons should be responsive to issues raised at trial and must be read in the context of the entire trial. Reasons for judgment should offer assurance to the parties that their respective positions were understood and considered by the trial judge in arriving at his or her conclusions.
A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They 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. [Emphasis added.]
[41] I find that in the context of this case, it was not necessary for the trial judge to address her findings on this third issue, which was not raised at trial in order to explain why and how she arrived at the conclusion that the three definitional elements of the offence had been proven.
[42] If there was some reason to conclude that this third element was completely overlooked and not given any consideration at all by the trial judge, I might be of a different view. However, the trial judge commenced her analysis of this offence by referring firstly to s. 162(1) of the Code, which sets out the three required elements. She then sets out her reasons why she decided the two live issues (consent and knowledge), in favour of the Crown. Since there is nothing in the transcript which suggests that the existence of this third element was raised as an issue at trial, I am prepared to find therefore that she was aware that this was a required element and that she found this element in favour of the Crown, notwithstanding the fact that she did not make specific reference to it in her judgment.
[43] Secondly, I agree with the Crown’s submission that it is not fair for the defence to complain that the Reasons do not include a discussion of one of the elements of the offence when the existence of that element was not raised as an issue at trial. In my view, to allow this ground of appeal would be tantamount to allowing the defence to re-argue its case, only on different grounds.
[44] Finally, I am also prepared to make an affirmative finding in favour of the Crown with respect to the existence of this element on this appeal. In my view, the evidence set out in the transcript of the trial supports such a finding beyond a reasonable doubt.
[45] The evidence reveals that the sexual activity did not take place in a public place but in Mr. Coombs’ bedroom in his private residence. The trial judge made a specific finding that the recording was carried out surreptitiously. She also found that Ms. Sidor had not consented to the videotaping, and was not even aware that it existed prior to the discovery of the recording by the police. She referred to the evidence of the police officers who showed Ms. Sidor the recording as credible and reliable, and their evidence confirmed that Ms. Sidor was upset, emotional and embarrassed when she viewed the video. In the circumstances, I find that it is patently obvious that the video recording was made in circumstances which gave Ms. Sidor a reasonable expectation of privacy. A trial is not necessary to establish this fact.
[46] For the above reasons, this appeal is dismissed. Mr. Coombs is to resume completing his sentence, which is to be served intermittently, on Friday, August 16, 2013.
E.J. Koke J.
Released: August 14, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
James Coombs
Defendant/Appellant
REASONS FOR JUDGMENT
E.J. Koke
Released: August 14, 2013
[^1]: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.)
[^2]: See transcript of trial…pgs. 74 and 75 (June 13, 2011)