BARRIE COURT FILE NO.: CR-12-062

DATE: 20130123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

J.L. Appellant

K. Hull, for the Crown

S. Shikhman, for the Appellant

HEARD: January 21, 2013

Reasons For Decision

On Appeal from the Decision

of The Honourable Justice R. Main

Dated March 15, 2012

R. MacKinnon J.

[1] J.L. appeals against the conviction and sentence of the Ontario Court of Justice on three counts of sexual assault. He argues that the trial judge failed to apply the proper burden of proof and presumption of innocence to the evidence as a whole, that the trial court misapprehended the evidence resulting in a flawed trial reasoning process, and that the trial judge applied a different standard of scrutiny to the assessment of Crown and defence witnesses.

Failure to Apply the Burden of Proof

[2] The central issue at trial was credibility. The appellant maintained the three sexual incidents were initiated by the complainant and consensual. The complainant testified that in no case was she consenting – rather, that she was trying to ward off the appellant as her attacker.

[3] At the outset of his decision, Main J. clearly articulated that the triable issue on each of the three sexual encounters was whether the Crown had demonstrated beyond a reasonable doubt that the complainant had not consented. His reasons disclose a fulsome discussion of the nature of consent. Counsel for the appellant argues that, in instructing himself on the weighing the contradictory evidence, the trial judge erred in failing to consider the second step outlined in R. v. (W.D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). Read as a whole, however, it is clear that the trial judge did not labour under any misapprehension about placement of the controlling burden or about the substance of the standard governing his deliberations. Trial judges are presumed to know and properly apply the law. It is clear in this case that Main J. properly understood that. It is clear on this record that he did not fail to consider whether, on the whole of the evidence, he was left with a reasonable doubt about J.L.’s guilt on any of the three counts.

[4] It is also clear from a review of his reasons at page 20, line five, that when he used the word “confirmed” to describe the evidence of the complainant’s mother, the trial judge used it to mean that she confirmed that she had been told – not that her evidence confirmed to him the substance of the complainant’s evidence. As well, A.C.’s evidence of her daughter’s emotional state on disclosure is evidence which the trial judge could and did rely upon to support the complainant’s evidence.

[5] A trial judge hears and sees witnesses. He or she is entitled to accept or reject their evidence when compared against other evidence that he or she has accepted. In this case Main J. clearly set out why he accepted the evidence of the complainant. In addition, he gave reasons for rejecting the evidence of J.L. The appellant’s evidence on its own could not have raised any reasonable doubt. It is clear from a review of the reasons as a whole that Main J. was left in no reasonable doubt about the appellant’s guilt. In a credibility case, when a trial judge specifically rejects an accused’s evidence, he or she does not need to explicitly say that that evidence does not raise a reasonable doubt. The Crown submits, and I agree, the only possible inference from the conviction is that the accused’s evidence failed at trial to raise a reasonable doubt. It is not demonstrated on appeal that the trial judge failed to apply the proper burden of proof. He properly applied the presumption of innocence to the evidence as a whole. This ground of appeal fails.

Misapprehension of Evidence

[6] Counsel for the appellant argues that the trial judge completely misapprehended the evidence of the appellant. I disagree. I am not satisfied that the appellant has demonstrated any substantive mistake of any material parts of J.L.’s evidence simply because the trial court did not accept the defence counsel’s trial submissions. A trial judge is not required to refer to and reconcile every piece of evidence that might be helpful to the defence.

[7] For a trial judge’s misapprehension of evidence to affect the validity of a verdict, the misapprehension must be of substance – it must material rather than peripheral to the reasoning of the judge – and it must play an essential part of the reasoning process resulting in a conviction. That is not demonstrated in this case.

[8] The appellant asserts that the trial judge should have concluded that sexual assault victims don’t willingly associate with their attackers and, therefore, that the complainant, having so associated, was not assaulted. I disagree. The interpretation of evidence of the complainant – specifically how to characterize the manner in which she dealt with J.L.’s attack – was within the sole purview of the trial judge. The Crown argues, and I agree, that there was a solid basis in the evidence to explain why the complainant could have continued to associate with the appellant and act normally around him. The complainant said she thought of J.L. as a friend, but her best friend was engaged to him. She said she was shocked that she had been assaulted by him the first time – and hoped it wouldn’t happen again. She said she believed that saying anything to her girlfriend would ruin their friendship.

[9] An appeal court is not entitled to retry the case or to substitute its own view of the evidence for that of the trial judge. I have no basis upon which to interfere with Main J.’s findings unless I find them unreasonable or unsupported by the evidence. I do not. A trial judge’s findings on credibility ought not to be lightly interfered with.

[10] The appellant also asserts that the trial judge misapprehended the nature of the defence –consent as opposed to honest but mistaken belief in consent. I have already averted to this earlier in my reasons. I reject this argument. Main J. was complete and careful in his reasons to be clear that there was only one issue in the trial – consent. There is no misapprehension of evidence established in this case. The trial judge was not mistaken as to the substance of material parts of the trial evidence. This ground of appeal fails.

Different Standard of Scrutiny to the Assessment of Crown and Defence Witnesses

[11] The appellant argues that the trial judge failed to consider the inconsistencies and improbabilities in the complainant’s evidence. I disagree. I have already commented that there was no improper use by the trial court of the evidence of the complainant’s mother. Main J. was entitled to come to the conclusion he did with respect to the evidence he heard and to make the findings he did. He found the complainant to be an impressive and credible witness, giving her evidence in a subtle and detailed manner. He described her as an excellent historian with the ability to recreate the nuance of her feelings as they unfolded. He said she was a muted witness, even reluctant – with very little animus toward the appellant. He found the appellant’s evidence not worthy of belief. He said it came across as rehearsed, self-serving and narcissistic. It is clear that the accused’s evidence had no potential by trial’s end to raise a reasonable doubt. No different standard was applied at trial to Crown and defence witness assessment.

[12] The trial judge was clearly entitled to come to the conclusions he did with respect to the credibility of the complainant and the appellant. This court ought not to and will not interfere in those findings which are founded in the evidence. Main J. was entitled to reject J.L.’s evidence when considered in the light of all of the evidence he found credible – including the evidence of the complainant. Having rejected the evidence of J.L., the trial judge properly instructed himself on the law. This ground of appeal fails.

Conclusion

[13] For the foregoing reasons, the appeal against convictions is dismissed. Counsel for J.L. also appealed against sentence, arguing that the concurrent nine month sentence on each of the three counts was imposed without reference to the principle of rehabilitation, and was excessive in totality for a first time offender. I disagree. Crown and defence at trial had jointly submitted a sentencing range of 12 to 15 months. In commenting as the trial judge did on the defence character reference letters and on the appellant’s personal circumstances, it is quite clear that rehabilitation was fully on the trial court’s mind. The appropriate sentencing range for each of these three sexual assaults, the Crown having proceeded summarily, was 9 to 15 months. There is no demonstrated sentence error. The appeal against sentence is dismissed.

R. MacKINNON J.

Released: January 23, 2013