ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 140/12
DATE: 20130913

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Da.C.

Appellant

R. Nathanson, for the Crown
E. Chozik, for the Appellant

HEARD: May 15, 2013

TROTTER J.

introduction

[1] Da.C. worked as a high school custodian. He was charged with sexually assaulting a female colleague at work. After a trial presided over by The Honourable Madam Justice L. Pringle, Da.C. was found guilty of three counts of sexual assault. The passing of sentence was suspended and Da.C. was placed on probation for two years.

[2] Da.C. appeals his conviction and sentence. For the following reasons, the appeal is allowed on Counts #1 and #2, but is otherwise dismissed.

BACKGROUND

[3] Da.C. worked at the same school for 20 years. The complainant, D.C., worked there as the librarian. She also had responsibilities at other schools. D.C. alleged three separate incidents of inappropriate conduct in 2010. On the first occasion, Da.C. made comments about D.C.’s appearance and then touched her buttocks. D.C. said she became angry and told Da.C. not to touch her. The second incident was very similar and, according to D.C., occurred in October or November of that year. She expressed anger towards Da.C. and told him not to do it again. She told no one else about these incidents.

[4] The third and final incident occurred on April 12, 2011. On that day, D.C. met with the school principal, W.A., who expressed concern about her leaving mass early. He also mentioned that he thought he saw D.C. sleeping at her desk. D.C. was upset because she believed she was being reprimanded for poor performance. W.A. testified that, while he expressed his concerns, he was not reprimanding D.C.

[5] In order to prove herself as a responsible employee, D.C. decided to remove a whiteboard (or “smartboard”, as it was sometimes referenced) from the library because she thought it might pose a hazard for some of the children. She told W.A. her idea and he told her to get one of the custodians to move it. D.C. testified that Da.C. arrived to help.

[6] D.C. told Da.C. that the principal wanted the whiteboard moved to a room called the CSAC room. D.C. testified that the whiteboard was moved across the hallway to a small room that Da.C. unlocked with a key. D.C. went inside this room to make sure that it was suitable. Da.C. followed her inside and then squeezed her breasts and attempted to kiss her. D.C. pushed Da.C. away and returned to the library. D.C. said she was shaking and crying. She saw a colleague in the library, F.T., and told her “what happened.” F.T. testified that D.C. was walking around. She was nervous and crying.

[7] What occurred next was somewhat unusual. Very shortly after this incident, D.C. sent an email to W.A.. She made no mention of what had just occurred with Da.C.. Instead, she simply reported that she had dealt with the whiteboard in the manner that they previously discussed. D.C. testified that she did not tell W.A. about the incident because she did not find him to be very approachable. D.C. did not immediately contact the police. A few days later, she contacted her union representative who, in turn, encouraged her to report the matter to the police.

[8] Da.C. testified and denied all of the alleged misconduct with D.C. He testified that, when he asked D.C. why she wanted the whiteboard moved when it had been in the same place for months, she said that she was concerned that children might trip over it. She also told Da.C. that she had experienced problems with the principal earlier in the day and did not want any further trouble. Da.C. testified that he took the whiteboard to a locked storage room and showed D.C. that the whiteboard would not fit because it was full of furniture and other items. D.C. never entered the room at this time. He recommended that the board go in the CSAC room. She agreed and returned to the library. Da.C. testified that he did not grope D.C. While he acknowledged that she seemed upset about the principal, Da.C. denied that D.C. was crying.

[9] When the police came to the school a few days later to investigate the allegations, the whiteboard was not in the storage room where D.C. said it had been placed. Instead, it was in the CSAC room. When describing the room in which she was sexually assaulted, D.C. described a very cluttered space, with all manner of items packed in, including a rocking chair with a distinctive cushion. She also described bookshelves that were “flush” along one of the walls, as well as metal pipes laying on the ground. It was suggested to D.C. that she made these observations when she took the police to the room in order for photographs to be taken. However, D.C. gave this description prior to being shown photographs of the room (which were entered as Exhibit #2). Moreover, D.C. did not admit to actually being inside the room with the police when they took photos.

[10] At trial, defence counsel (not Ms. Chozik) suggested that D.C. fabricated the allegations against Da.C. as a means of addressing the tension she was experiencing with her principal. The trial judge rejected this contention, observing that the two incidents were unrelated. Moreover, as the trial judge observed, shortly after the last incident occurred, D.C. wrote to the principal about the whiteboard and made no mention of what Da.C. had just done.

[11] Ultimately, the trial judge rejected Da.C.’s evidence. She found that he attempted to minimize his opportunities for regular contact with D.C. in an unreasonable manner. The trial judge found that Da.C.’s evidence did not fit with the other evidence in the case, and F.T.’s evidence in particular. As the trial judge noted, the defence did not challenge F.T.’s account of what she observed when she saw D.C. in the library after the incident. Moreover, the trial judge found that Exhibit #2 (the photographs) confirmed D.C.’s account.

ANALYSIS

(a) Counts #1 and #2

[12] At the outset of the appeal, Mr. Nathanson for the Crown agreed that the first two counts in the information fell outside (or potentially fell outside) the six-month limitation period for summary conviction proceedings: see, Criminal Code, s. 786(2). I accept this reasonable concession and set aside the convictions on the first two counts.

(b) Misapprehension of Evidence

[13] Da.C. submits that the trial judge misapprehended the evidence in a number of ways that are significant enough to warrant a new trial: R. v. Lohrer (1994), 2004 SCC 80, 193 C.C.C. (3d) 1 (S.C.C.). He points to the trial judge’s treatment of Exhibit #2, and the evidence of F.T..

[14] It was open to the trial judge to find that the assault had happened inside the storage room as D.C. testified. D.C. described a number of items in what was clearly a cluttered room. The trial judge rejected the submission that the only time D.C. was able to make these observations was when she accompanied the police to this location for the purposes of photographs being taken. There was no evidence that she entered the room at that point in time. Moreover, the trial judge found that there was nothing inherently implausible about the whiteboard being stored in this room, despite that it was already quite cluttered with all sorts of other items. She accepted D.C.’s evidence that the whiteboard fit in the room and that this was where the sexual assault occurred.

[15] The trial judge was alive to the fact that, when the police arrived a few days later, the whiteboard was not in the locked storage closet. Instead, it was in the CSAC room. The trial judge acknowledged that there was no “definitive explanation on the evidence about how the whiteboard ended up in the CSAC room.” However, this did not detract from her overall conclusion that D.C.’s description of the storage room was confirmed by Exhibit #2 and her account in general was confirmed by the evidence of F.T..

(c) The Prior Consistent Statement

[16] The trial judge did not misuse D.C.’s disclosure to F.T. of the final incident. The trial judge relied upon the fact that the statement had been made in the context of defence counsel’s claim that D.C. did not mention the sexual assault to anyone until she spoke to her union representative. F.T.’s evidence countered this suggestion. Moreover, F.T.’s observations of D.C. contradicted Da.C.’s evidence that D.C. was perfectly composed after they had dealt with the whiteboard. F.T.’s evidence pointed in the opposite direction; and as the learned trial judge observed, F.T.’s evidence was unchallenged.

[17] The trial judge was careful in the use she made of F.T.’s evidence. As she said in her reasons, F.T. was not permitted to relay the details of what D.C. told her. There is nothing in the trial judge’s reasons to suggest that she found the evidence of D.C. to be true because she had repeated the same allegation on a previous occasion: R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.), at paras. 36-40.

[18] Lastly, Da.C. complains that the trial judge placed undue emphasis on the fact that defence counsel chose not to challenge F.T.’s evidence. Ms. Chozik submits that, realistically, there was little counsel could do to challenge the evidence. I disagree. Defence counsel could have challenged F.T. on the details of the account imparted by D.C. But this strategy would have been accompanied by risks that experienced counsel was presumably not prepared to take. More importantly, defence counsel, having prior disclosure of F.T.’s evidence, did not object to it being called in the first place, knowing the potential impact that it might have.

[19] In all of the circumstances, it was permissible for the trial judge to approach this evidence in the circumscribed manner that she did. I can find no error.

(d) Application of Different Standards

[20] I am not persuaded that the trial judge applied a different standard of scrutiny to the evidence of Da.C. and the evidence of D.C. The nature of this ground of appeal was addressed in R. v. Cloutier (2011), 2011 ONCA 484, 272 C.C.C. (3d) 291 (Ont. C.A.). As Weiler J.A. said at p. 312:

Before dealing with this ground of appeal it is important to bear in mind that, in a trial which turns almost exclusively on an assessment of the credibility of the witnesses, the trial judge enjoys a significant advantage. The trial judge has the benefit of not only hearing what was said but also how it was said. In making his or her assessment of credibility, the trial judge has heard all of the evidence as well as the submissions of counsel. An appellate court simply has a transcript and is guided to a selective review of the trial record on which argument is made. In arriving at his ultimate credibility findings, the trial judge doubtless paid careful attention to what was said. As this court stated in R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 59:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [emphasis added]

The Court of Appeal has recently emphasized that a high standard must be met to succeed on this ground of appeal in R. v. Jones, 2013 ONCA 245, [2013] O.J. No. 1786 (C.A.), at para. 8.

[21] Short of going through the trial judge’s reasons line-by-line, in general, there is nothing that reveals that she articulated a different standard of scrutiny when dealing with the evidence. Moreover, there is nothing in the transcript that suggests that the trial judge actually employed differing standards of proof. In a straightforward manner, the trial judge assessed the brief evidence of both witnesses, in the context of the evidence as a whole, and explained what she accepted or rejected and why. While counsel for Da.C. disagrees with these findings, this does not inexorably translate into uneven scrutiny.

[22] In her reasons, the trial judge acknowledged defence counsel’s submission that there were a number of “curiosities” arising from the evidence. Defence counsel argued that they should give rise to reasonable doubt. Having been present for the testimony of all witnesses, the trial judge disagreed, as she was entitled to do.

(e) The Sentence Appeal

[23] Quite reasonably, the sentence appeal was not advanced strenuously by Ms. Chozik. Her submission is that, if all that I do is accede to the Crown’s concession on Counts #1 and #2, I ought to substitute a discharge in place of the suspended sentence imposed by the trial judge. The trial judge gave careful reasons for rejecting the request for a discharge. She did not err in concluding that this type of sexual misconduct, committed in the workplace, was not deserving of a discharge.

[24] The sentence appeal is dismissed.

CONCLUSION

[25] The case was a straightforward one. It was brief. There were few witnesses. Counsel at trial agreed that it was a straightforward case that required a conscientious application of the principles in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.); and that is precisely what the trial judge did. I can find no error in her overall analysis. Moreover, the sentence was as lenient as it could be in the circumstances.

[26] For the reasons set out above, the convictions on Counts #1 and #2 are set aside and acquittals are entered. The appeal is otherwise dismissed.

TROTTER J.

Released: September 13, 2013

COURT FILE NO.: 140/12
DATE: 20130913

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

Da.C.

Appellant

REASONS FOR JUDGMENT

TROTTER J.

Released: September 13, 2013