ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-5029
DATE: 2013/11/25
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
BARNABAS ROBO TSUZOM
Appellant
Moiz M. Karimjee, John Ramsay and Jason Neubauer, Counsel for the Crown
Kibondo M. Kilongozi, Counsel for the Appellant
HEARD: November 6, 2013 (Ottawa)
REASONS FOR DECISION
R. SMITH J.
[1] The appellant initially raised four grounds of appeal. Firstly, that the trial judge made palpable and overriding errors of fact which rendered her decision unreasonable. Secondly, that she made errors of law in her application of the decision of R. v. W. (D.) [D.W.], 1991 93 (SCC), [1991] S.C.J. No. 26. Thirdly, that the trial judge failed to consider inconsistencies in the complainant’s evidence. Fourthly, the appellant alleged a reasonable apprehension of bias. This last ground of appeal was abandoned during the hearing. The appellant also abandoned his appeal of his sentence as it has already been served.
[2] The Crown’s position is that the trial judge did not make any errors of fact or law in reaching her decision, did not misapply R v. W. (D.), and did not fail to consider any inconsistency of any significance in the complainant’s evidence.
Ground #1
[3] The core of the appellant’s argument is the following statement in the trial judge’s reasons at p. 17: “...When she rebuffed his initial attempt to kiss her, he tried again and managed to kiss her, as Ms. Edwards testified, because in his view, it is only when he would make out with her that he could then move into the leg...” [Emphasis added]
[4] The appellant submits that this statement demonstrates a misapprehension of the evidence because in his videotaped statement to the police at pp. 31-32 the appellant stated:
C.B. Okay. And when you say making advances, what else did you do beside touch her leg?
BT. I was making advances, I was talking, touching her leg, that’s all.
C.B. That’s it? You only touched her leg?
BT. I touched her leg. I was trying to go farther cause (undecipherable) until I go (undecipherable).
C.B. So you were making out?
BT. I didn’t make out. I couldn’t make out cause she wasn’t (undecipherable)… and then she left.
[5] The appellant submits that in his statement he denied that he was making out with the complainant and that the trial judge misapprehended his evidence at p. 32 of the video statement. However, the appellant was cross-examined at trial about the undecipherable parts of his statement and the appellant testified that the complete sentence with the indecipherable part at p. 34 of the transcripts was as follows:
…Playing video interview.
Mr. Ramsay: Q. What did you just say?
A.‘It’s only when you start making out.’
Q. ‘It’s only when you start making out’? ‘…’ cause it’s only when you start making out….’ Okay, and we’ll just – we’ll go back, just to get the whole thing.
…Playing video interview.
Mr. Ramsay: Q. ‘It’s only when you start making out. Until I go in that leg and go farther….’? Is …
A. ‘Until I…’
Q. … that what you just said?
A. Before, right? ‘It’s only when you start making out. Until you go farther, then you can.…’
Q. You didn’t say ‘until you go farther, then you can’.
A. Please, can you take it back? I didn’t get the last….
Q. Yeah, we’ll play it again.
…Playing video interview.
A. ‘Unti….’ ‘I was trying to go further, ‘cause it’s only when you start making out that you can go in the leg and go further.’
Q. You wanted to go in the leg.
A. I was saying I was touching her, I was trying to go further, ‘cause it’s only when you start making out you can go in the leg.
Q. Yeah. What’s in the leg?
A. Her body is in the leg.
Q. What’s that?
A. That’s her body.
Q. Her ‘buddy’ [ph]?
A. Yeah.
Q. Her vagina, right?
A. Her vagina is in the leg, yeah.
[6] I find that the trial judge did not make an error of fact or misapprehend the evidence because the appellant’s evidence namely that it was only when he made out with her that he could go onto the leg, in cross-examination, is exactly what the trial judge stated in her decision.
Ground #2 and #3 Application of R. v. W. (D.) and Alleged Inconsistency by Complainant
[7] The appellant was unable to articulate any error in the trial’s application of R. v. W (D.) decision other than his submission that she failed to consider an alleged inconsistency in the complainant’s evidence. The only alleged inconsistency was the complainant’s evidence in-chief at p. 16 of the transcripts. The appellant alleges that the inconsistency in the complainant’s evidence was her failure to correct the Crown’s question about how she reacted when the appellant touched her legs. In the following question the Crown asked: “…Where does he touch your leg at first?” Her answer was: “My lower [thigh]… It’s the - my left leg - …
[8] The Crown’s initial question about touching her legs is not inconsistent evidence by the complainant. There was no inconsistency in the complainant’s evidence. In any event the complainant’s failure to correct the Crown’s suggestion that the appellant touched both her legs, did not affect the trial judge’s decision.
Disposition
[9] In summary, I find that the trial judge did not make any error of fact or law, correctly applied the test in R. v. W. (D.), and did not fail to consider any inconsistency of any importance by the complainant that would constitute a ground of appeal.
[10] For the above reasons the appeal is dismissed.
Mr. Justice Robert J. Smith
Released: November 25, 2013
COURT FILE NO.: CR-12-5029
DATE: 2013/11/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
BARNABAS ROBO TSUZOM
Appellant
REASONS FOR DECISION
R. SMITH J.
Released: November 25, 2013