COURT FILE AND PARTIES

COURT FILE NO.: CR-11-962
DATE: 2013-12-19

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Elaine Evans, for the Crown

Respondent

• and -

D. D.

Lawrence Greenspon, for the Appellant

Appellant

HEARD: August 1, 2013,
at Pembroke, Ontario

Madam Justice B. R. Warkentin

Reasons on Summary Conviction Appeal

An order prohibiting disclosure of the identity of the complainant has not been made, but out of an abundance of caution, I have protected the complainant's identity in this ruling by using initials for all parties.

Reasons on Summary Conviction Appeal

1On September 21, 2012 D. D. (the Appellant) was convicted of one count of sexual assault contrary to section 271(1) of the Criminal Code by Mr. Justice R.G. Selkirk of the Ontario Court of Justice and sentenced to a fine and three years’ probation. He appeals that conviction.

Background

2Prior to the events that led to this conviction, the complainant in this matter, H.M., (the “Complainant”) and her husband, C.M. a Justice of the Peace, had been friends with the Appellant and his wife.

3On July 22, 2001, the Complainant was at home while her husband was working in the bail court in North Bay. She was in the process of cleaning when the Appellant arrived unexpectedly to return a borrowed frying pan. She invited him in for a cup of coffee, to which he agreed and they sat outside in two Adirondack chairs adjoined by a table.

4The Complainant and the Appellant discussed a variety of topics over coffee, including some discussion of a sexual nature regarding one of the neighbours and the Complainant shared some concerns she was having with her step-son. After their coffee, the Complainant told the Appellant she was going inside to have lunch and got up to leave. The Appellant followed her into the kitchen.

5At trial, the Complainant testified that she assumed the Appellant would put down his coffee cup and go to get his shoes and leave. Instead of leaving, the Appellant allegedly grabbed the Complainant’s vagina and squeezed. As she attempted to push him away, he “started going up the front inside” of her top, at which point she started screaming at him and pushing him off, telling him to “get out”. She claims he started nodding and motioning towards the bedroom pulling on her arms. She continued to resist and shouted at him to get out, and he eventually complied.

6The Complainant testified that this incident was very upsetting to her. She sought assistance immediately from friends and neighbours and described the incident to them.

7The Appellant testified on his own behalf. He confirmed going to the Complainant’s home on that date to return the frying pan and accepting her invitation for coffee.

8After the two returned to the kitchen, the Appellant testified that it was the Complainant who took his hand and placed it on her crotch and stated something that he was unable to hear due to his poor hearing. He replied “What are you doin’? I’m goin’ home.” and went to leave. It was his evidence that this was the third time the Complainant had attempted to get him “in the sack”.

9On cross-examination, the Appellant acknowledged that he had not said anything in his statement to the police upon his arrest about the Complainant being sexually aggressive or assertive towards him. The Appellant did not remember giving a statement to police.

10In his oral reasons when convicting the Appellant, the trial judge rejected the Appellant’s evidence, finding that he lacked credibility.

11The Trial Judge accepted the Complainant’s evidence. He found her evidence was consistent, she did not embellish, and any inconsistencies in her evidence were minor and inconsequential.

Appeal

12Mr. D. appealed his conviction, upon the following grounds:

a) The trial judge made errors of law which undermined his assessment of the Appellant’s credibility.

b) The trial judge reversed the burden of proof and subjected the Appellant’s evidence to a higher level of scrutiny than that of the complainant; and

c) The trial judge erred by failing to recuse himself on his own motion when there existed a reasonable apprehension of bias on the part of the trial judge. The Appellant argued that the Complainant’s husband had been a judicial colleague of the trial judge on the Ontario Court of Justice in Pembroke for many years, and the Complainant had been a court monitor.

Issues and the Law

13Section 686 (1) (a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that:

a) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;

b) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or

c) on any ground there was a miscarriage of justice.

14In proceeding under s. 686(1)(a)(i), the reviewing court on an appeal is entitled to review the evidence, including re-examining and re-weighing it, but only for the limited purpose of determining if it is reasonably capable of supporting the trial judge's conclusion. The role of the judge on appeal is to determine whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, para. 14.

15The question therefore is whether the trial judge's verdict was unreasonable or one that cannot be supported on the evidence: s. 686(1)(a)(i).

16Alternatively, if the trial judge made an error of law, the appeal will be successful unless the Crown is able to demonstrate that, pursuant to s. 686(1)(b)(iii) that "no substantial wrong or miscarriage of justice has occurred".

17Where an appellate court reviews findings of credibility by a trial judge, the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. A trial judge is in a unique position to see and hear witnesses. An appellate court should not substitute its own assessment of credibility for that of the trial judge. While trial judges must explain the reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court, the Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17, [2006] S.C.J. No. 17 (S.C.C.) at paragraphs 19 and 20, emphasized that appellate review does not entail a word by word analysis.

18Where an appellant asserts that a verdict is unreasonable, the role of the appellate court is to determine whether on the facts that were before the trial judge, a jury properly instructed and acting reasonably could convict: R. v S.(P.L.) 1991 103 (SCC), [1991], 1 S.C.R. 909. The court reviews the evidence that was before the trier of fact and after re-examining and, to some extent, reweighing the evidence, determines whether it meets the test. The appellate court may disagree with the verdict but provided that the accused has had a trial in which the legal rules have been observed, no complaint can be upheld if there is, on the evidence, a reasonable basis for the verdict.

19Considerable deference should be afforded the trial judge on his or her findings of fact, the proper inferences to be drawn from them, in his or her assessment of the credibility of witnesses, and the ultimate assessment of whether or not the allegations before the court have been made out beyond a reasonable doubt, as noted by Arbour J in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381,. at para. 24:

[t]riers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown's case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned.

20I have reviewed the arguments put forward by counsel for the Appellant on the three grounds for appeal. While I accept that the trial judge made certain errors in his description of some facts, those errors are not sufficient to require the setting aside of the conviction. For reasons set out below I therefore dismiss his appeal.

Issue #1: The trial judge committed several errors in law in his assessment of the Appellant’s credibility:

21Counsel for the Appellant outlined four errors in law he claims the trial judge made when assessing the Appellant’s credibility as follows:

a) The trial judge rejected the Appellant’s evidence because he erroneously found that he complainant’s husband was on his way home;

b) He based his assessment partly on his own subjective perceptions of the Appellant’s physical attractiveness;

c) The trial judge made substantive use of the Appellant’s statement to the police; and,

d) The trial judge misapplied the case of R. v. Truong as a basis to reject the Appellant’s evidence.

22I have dealt with each of these alleged errors below.

Alleged errors a) and b):

23These two grounds for appeal are related and so I have dealt with them together. In his Reasons for Decision, at pages 72 and 73, the trial judge stated:

“I reject the accused’s evidence as being incapable of belief. It does not raise a reasonable doubt. The story borders on the ridiculous. It is his position that within moments of talking about the situation with her step-son, which was upsetting to her, knowing that her husband who had just called was on his way or would shortly be on his way home, that the complainant became overwhelmed with lust for Mr. D. and sexually assaulted him. When he rebuffs her advances she then makes a false complaint against him and puts on quite an act of being upset for the neighbours. This is nothing short of ludicrous.

The complainant is considerably younger than Mr. D., who is 69 and looks every day of it. It is highly unlikely that the complainant would find the accused an object of sexual desire, perhaps in his dreams as the saying goes.”

24The Court must determine, upon a reading of all of the evidence, whether the trial judge’s verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered. This requires an examination of the evidence and, to some extent, a reweighing and a reconsideration of the effect of that evidence: R v. S.(P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909 at para. 22.

25Although the trial judge’s findings of fact are owed deference, I agree with the Appellant that the trial judge erred when he set out certain facts in the above-noted quote. First, as the Crown concedes, the trial judge erred in his timing of the phone call which alerted the Complainant that her husband was on his way home. The evidence before the trial judge was that the Complainant received the phone call after the alleged assault.

26Second, the trial judge found it unlikely that the Complainant would be attracted to the Appellant who was much older than her. There was no evidence presented at trial with respect to whether or not the Complainant was physically attracted to the Appellant.

27The Appellant argued that the trial judge, in making that finding, put himself in the shoes of the Complainant and concluded, on a subjective basis, that, if he were the Complainant, he would not be sexually attracted to the Appellant and found that the Appellant’s evidence as to who was the sexual aggressor was not credible. The Appellant argued that by doing so, the trial judge engaged in a line of reasoning that has been rejected by the Ontario Court of Appeal in R. v. R.C., [2001] O.J. No. 4486.

28The Crown submitted that a full reading of pp. 72-73 of the trial judge’s Reasons for Decision demonstrated that the trial judge was assessing the whole of the evidence and was making permissible findings of fact. In addition to the error regarding the timing of the telephone call, the Crown acknowledged that there was no evidence upon which the trial judge could find that the Complainant was or was not physically attracted to the Appellant. Nonetheless, the Crown argued that the judge’s findings as a whole demonstrated that he did not “put himself in the shoes of the complainant.”

29The question I must determine on appeal is whether the trial judge’s mistaken findings of fact made his finding with respect to the credibility of the Appellant unreasonable. For the Appellant to be successful on appeal, the trial judge’s errors must not only be palpable, but they must also be overriding, such that it discredits the result: L.(H.) v. Canada (Attorney General), 2005 SCC 25 at para. 69, [2005] 1 S.C.R. 401.

30While the trial judge’s findings on the above noted facts were indeed in error, I do not accept the Appellant’s argument that these errors make the trial judges’ findings with respect to the credibility of the Appellant, or the subsequent result of the trial, unreasonable. Had these mistaken findings been the only reasons for rejecting the Appellant’s evidence, I might have determined otherwise; however, the trial judge gave many reasons for rejecting the evidence of the Appellant. He also gave many reasons for accepting the evidence of the Complainant. Those reasons were well-founded upon the evidence before the trial judge and he was entitled to make the findings that he did with respect to credibility.

31I also reject the argument that the trial judge engaged in a line of reasoning that has been rejected by the Ontario Court of Appeal in R. v. R.C., [2001] O.J. No. 4486 by allegedly placing himself in the position of the Complainant when he concluded that it was highly unlikely the Complainant would have a sexual interest in the Appellant. In the case of R. C. at para 48, the court did find that putting oneself in the position of the Complainant was incorrect in assessing credibility of a witness and confirmed that the correct test was to assess the evidence of each witness as a whole in order to ascertain if it was credible and consistent with other facts as found by the trier of fact.

32Therefore these two errors made by the trial judge in describing the facts are not sufficient to overturn the trial judge’s determination of guilt.

c) The trial judge made substantive use of the Appellant’s statement to the police.

33At trial, the Appellant claimed he could not remember having made a statement to the police. The trial judge found that the Appellant had feigned forgetting making the statement in order to distance himself from that statement, given that the statement was inconsistent with his testimony at trial. The trial judge relied, in part, on this finding to reject the Appellant’s evidence at trial. At page 73, lines 1 - 15 of his Reasons for Decision, the trial judge made the following finding:

“His evidence suffered from other shortcomings. He is not credible. For example, he testified that he recalled the arrest, he recalled being taken to the station, handcuffed, he recalled talking to the duty counsel and later being released on conditions, but he testified he did not recall giving any interview with the investigating officer, which he obviously did because we all watched it. He did this, I find, because he wanted to distance himself from his statement that nothing happened at the complainant’s which he contradicted in his evidence. So he remembered everything before the statement and everything after the statement, but not the statement. This is a fabrication. He had no explanation for this curious and unusual situation.”

34The Appellant argued that the trial judge’s finding regarding this issue was impermissible because trial judge relied on matters not in evidence. He alleged that the statement to police was not tendered in evidence by the Crown for the truth of its contents but for the purpose of impeaching the Appellant on cross-examination. Additionally, the Appellant claimed that the Crown did not put to the Appellant that there was any inconsistency between his trial testimony and his pre-trial statement.

35The Crown disagreed with Counsel for the Appellant. The Appellant’s statement to the police was introduced on cross-examination, as a prior inconsistent statement, in order to impeach the credibility of the Appellant. The Crown submitted that the trial judge then used those contradictions in order to assess the Appellant’s credibility, as he was entitled to do. Except in his assessment of credibility, the Crown submitted that the trial judge did not make any “substantive” use of the statement.

36I accept that the trial judge used the inconsistency in the Appellant’s statement to the police and his later evidence at trial for the sole purpose in aiding in his assessment of the Appellant’s credibility. The trial judge clearly understood the purpose for which the statement was used by the Crown and did not rely on it for the truth of its contents or for any other impermissible purpose. In fact the trial judge specifically stated that:

“For the record, I put no other weight on the contents of the accused’s statement and the contents do not play any role in my decision.” Transcript of Reasons for Decision page 73, lines 16 - 18.

37I therefore do not accept the Appellant’s argument on this point.

d) The trial judge misapplied R. v. Truong as a basis to reject the Appellant’s evidence.

38Appellant’s counsel alleges that the trial judge misapplied the principles set out in the case of In R. v. Truong, 2012 ONCA 91, 99 W.C.B. (2d) 322, when he rejected the Appellant’s testimony on certain points that differed from the of the Complainant. In Truong the Ontario Court of Appeal first stated that:

“It need hardly to be said that the assessment of the credibility of witnesses at trial falls squarely within a trial judge’s domain. That assessment attracts significant deference from a reviewing court.”

39The Court of Appeal then upheld the trial judge’s finding that the appellant was making up his story as he went along in his testimony. The Court of Appeal confirmed that the trial judge was entitled assess the appellant’s credibility in the manner he did when the events suggested by defence counsel in cross-examination of a police officer were materially different than the appellant’s account.

40In this case, the trial judge made a similar inference and rejected the Appellant’s evidence on certain points where the story told by the Appellant was materially different than that put to the Complainant on cross-examination by the Appellant’s trial counsel.

41The Appellant in his testimony, after the Complainant had testified and been cross-examined, made several claims which were inconsistent with the testimony of the Complainant. Trial counsel for the Appellant had not put the Appellant’s version of the facts to the Complainant in cross-examination. Specifically, the Complainant was never asked to comment on the following facts alleged by the Appellant in his testimony that:

a) The Complainant told the Appellant that her husband was having sexual difficulties;

b) The Complainant had, on two prior occasions, made sexual advances toward the Appellant; and

c) The Complainant’s dog was walking between the complainant and the Appellant, on the day of incident, as they walked up the stairs.

42The Appellant argued that the present case differs from that of Truong, alleging that the evidence of the Appellant did not contradict that of the Complainant, but rather provided additional details that were not put to the Complainant. Equally, the Appellant argued that the majority of those details were not put to the Complainant because the Appellant’s trial counsel regarded the previous sexual history of the Complainant to be inadmissible as evidence and these questions would have crossed that line.

43The Crown submitted that the Appellant was interpreting the court’s reasoning in Truong too narrowly and argued that Truong is applicable to the present case. Of note, the Crown observed that trial counsel for the Appellant had no difficulty cross-examining the Complainant about a prior sexual joke between the Complainant and the Appellant and as such it is unlikely that trial counsel was concerned that some of the questions not posed would have crossed that line.

44The Crown submitted that it was much more reasonable for the trial judge to draw the conclusion that he did; that the Appellant was making up his story as he went along. The trial judge specifically addressed his finding at page 74 of his Reasons on Decision:

“The above are important pieces of evidence and if accepted could possibly raise a reasonable doubt as to who was the sexual aggressor. However, the complainant was never given an opportunity to address these claims, although no doubt she would have had something to say about them. This is a significant violation, in this case, of the rule in Browne and Dunn. Counsel was clearly aware and spoke of this rule in his cross-examination of the complainant. This would lead to the inference that counsel had no prior knowledge that the accused would give this evidence, which is consistent with this evidence being a fabrication, made up while the accused was in the stand (see Regina v Truong, 2012 ONCA 1991), where the Ontario Court of Appeal discusses a similar situation.)”

45I agree with Crown counsel. The Court of Appeal’s decision in Truong stands for the proposition that, where matters not put to the Complainant are then alleged by the Appellant in his testimony, and where the Complainant’s evidence conflicts with that of the Appellant, the trial judge is entitled to make the inference that the Appellant made up those “facts” on the stand. This is exactly what happened in the present case; the trial judge, therefore, was correct in his application of Truong and was entitled to draw the conclusion he did and reject the Appellant’s evidence on these facts.

46The Appellant’s first ground of appeal, that the trial judge erred at law in his assessment of the Appellant’s credibility is dismissed.

Issue #2: The trial judge erred in his application of the W.(D.) principles, reversing the burden of proof and subjecting the Appellant’s evidence to a higher level of scrutiny than that of the Complainant.

47The Appellant argued that the trial judge subjected the Complainant’s evidence at trial to virtually no scrutiny. The Appellant argued that there was a major inconsistency in the Complainant’s evidence going to the very subject matter of the allegation. That is, the Complainant testified that the Appellant had put his hands up her shirt, but had not touched her breasts. Two other individuals testified that the Complainant had, shortly after the time of the alleged offence, told them that the Appellant had indeed touched her breasts.

48The Appellant submitted that the trial judge erroneously dismissed what he described as a major inconsistency and instead sought to come up with explanation after explanation of why he rejected the Appellant’s evidence. Additionally, counsel for the Appellant argued that the trial judge relied on the Complainant’s evidence to reject that of the Appellant, which, in light of the lack of scrutiny of the Complainant’s evidence, amounted to a violation of the principles enunciated in R. v. W.(D.).

49The Crown submitted that the trial judge considered and resolved the apparent contradiction between the Complainant’s evidence and that of the two other witnesses. Additionally, the Crown argued that the trial judge’s reasons to reject the Appellant’s evidence were numerous and well-founded. He argued that there was nothing in the trial judge’s reasons to indicate that the trial judge relied upon the Complainants evidence as a basis to reject the Appellant’s and as such there was no violation of the W.(D.) principles.

50Although the appellate court must show deference to findings of credibility by a trial judge, the trial judge must explain his or her reasons for rejecting evidence that favours the accused. The accused is entitled to some analysis of the evidence and is entitled to know why that evidence is not believed. Moreover, in assessing credibility, the trial judge must apply the principles of R. v. W. (D.), [1991] 1 S.C.C. 742 (S.C.C.) as outlined at paragraph 28:

“First, if you believe the evidence of the accused, you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

51However, Justice Cory in the W. (D.) decision states “Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply.” In other words, the Court is not required to slavishly recite the formula articulated in R. v. W.(D.) in reviewing credibility issues so long as the court is alive to the issues raised by W. (D). when evaluating evidence.

52I do not find there is any merit to the Appellant’s argument that the trial judge either reversed the onus or misapplied the formula set out in W. (D.).

53It is evident from reviewing the trial judge’s reasons that he did not believe the evidence of the Appellant. The trial judge gave numerous reasons for this, many of which I have already noted. The trial judge then accepted the Complainant’s evidence and, having accepted that evidence, was not left in any reasonable doubt of the guilt of the accused.

54In assessing the Complainant’s evidence, the trial judge did, in fact, discuss the Complainant’s credibility and the apparent inconsistencies in her testimony. At p. 75, the trial judge stated:

“I find the complainant to be credible and reliable. Her evidence was consistent. She did not embellish. Were there some minor inconsistencies in her evidence? Of course, but they were minor and of no consequence and lends credibility to her overall evidence.”

55As with the evidence of the Appellant, the trial judge then reviewed these inconsistencies, including (a) the distance between the complainant’s cottage and her house; (b) the issue of the lack of fingerprints on the mug allegedly used by the Appellant; (c) whether a tab was from a wine box or a wine bottle; and (d) whether the Appellant touched the Complainant’s breasts. The trial judge went through each of these points, identifying the explanations for the inconsistencies that he accepted, and why he nonetheless believed the Complainant. In particular, with respect to the issue of where the Complainant alleged she was touched, the trial judge stated:

That her evidence was straightforward and unembellished is confirmed by her testimony that the accused tried to grab her breasts. She could easily have said that he did, but that was not the case. On that point, if others recorded her as saying he did, as she explained, they were mistaken. She did say he put his hands under her top and that the others may have interpreted that as saying he grabbed her breasts. (emphasis added)

56While a different trier of fact may not have accepted these explanations for the inconsistencies in the Complainant’s testimony, the trial judge’s findings are reasonable. I do not accept that the standard that the trial judge applied to the Appellant’s evidence was different than that applied to the Complainant’s and as such I reject the Appellant’s argument on this point.

Issue #3: There exists a reasonable apprehension of bias on the part of the trial judge.

57The Appellant argued that, because the Complainant’s husband, a Justice of the Peace had been a judicial colleague of the trial judge on the Ontario Court of Justice in Pembroke, and because the Complainant had at one time been a court monitor, the trial judge ought to have recused himself from the matter. Not doing so raised a reasonable apprehension of bias.

58The Crown argued that the threshold for a reasonable apprehension of bias is a high one, and that the onus is on the person alleging the reasonable apprehension of bias to prove that it does indeed exist. The Crown submitted that this burden was not met in this case.

59The test for a reasonable apprehension of bias was stated by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369 at para. 40:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the trial judge], whether consciously or unconsciously, would not decide fairly."

60The Crown is correct that the threshold for a reasonable apprehension of bias is a high one. In this case, the Appellant has not advanced sufficient evidence to show that one exists. According to counsel for the Appellant’s own submissions, the Complainant’s husband had retired by the time the Appellant was charged with this offence, although he continued to preside per diem from time to time in Pembroke.

61The Appellant’s trial counsel and the courts administration had a lengthy email exchange about the need to ensure the judge hearing the trial was not “taint