ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
COURT FILE NO.: MILTON 110/12
DATE: 20140221
B E T W E E N:
HER MAJESTY THE QUEEN
ARISH KHOORSHED, for the Respondent/Crown
Respondent to the Conviction and Appellant on the Sentence Appeal
- and -
DANIEL COLLINS
WILLIAM V. REID, for the Appellant
Appellant on the Conviction Appeal and Respondent to the Crown Sentence Appeal
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable L. Baldwin, dated March 22, 2012 and the sentence imposed on June 22, 2012]
DURNO, J.
[1] The appellant was charged with one count of sexual assault and one of sexual exploitation. His wife’s 17 year old niece lived with them. She testified the appellant forced her to try on a dress, removing her bra and shirt, pushing her onto the bed, removing her jeans and attempting to pull off her underwear but was unsuccessful because she held them in place. The appellant testified the complainant took off the bathing suit top she was wearing and asked him to help her remove her jeans. He denied removing her bra or pushing her onto the bed.
[2] The trial judge found the appellant guilty, entered a conviction for sexual exploitation and conditionally stayed the sexual assault count. Her Honour imposed a 90 day jail sentence to be served intermittently, in addition to three years’ probation, a 10 year SOIRA order, and a DNA order.
[3] The appellant appeals against the convictions contending the trial judge erred in deciding the case solely upon the complainant’s demeanour, in applying different levels of scrutiny to the Crown’s and defence evidence, in improperly applying the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.), and in materially misapprehending the evidence. Further, he submits the trial judge erred in relation to the appellant’s “confession” to the police by providing conclusory findings without any analysis of why she found the statement was a confession or to what offence the appellant was confessing.
[4] The Crown appeals against the sentence.
[5] For the following reasons, the conviction appeal is allowed and a new trial ordered.
The Trial Evidence
Background
[6] The appellant, age 55 and a high school teacher, was married to a dentist, Angela Seracion. Her sister was married and had two daughters, N.M, the complainant, and Z.M. When Dr. Seracion’s sister died, the girls’ father was not providing adequately for them and it was decided that N.M. would live with the appellant and his wife, transfer to the appellant’s school and complete her last year of high school. She started living with the appellant and his wife around October, 2009. The appellant and his wife were financially responsible for N.M., who admitted that she was a diva who loved to buy and model clothes. She got anything she wanted.
[7] The appellant testified he thought he got along very well with N.M. although there were three incidents where she did not follow directions or otherwise misbehaved while living with them. First, around Christmas she was asked a number of times to wrap some presents they were to take to a party before there was a confrontation. After the confrontation, she wrapped the gifts. Second, she had left her sister’s and no one knew where she was for several hours. The third was an incident when she was piggy-backing on her friend’s back causing a commotion at school. The appellant had called her out in front of her friends, reprimanded her after in his classroom as well as when they got home.
[8] N.M. told a schoolmate what the appellant had done and he told his mother. His mother contacted the school and police were called. Before N.M. was aware of the police involvement, her friend told her that his mother was calling the school. N.M. fainted, a student alerted the appellant who went to where she was in the school hallway, had an ambulance called and N.M. was taken to hospital. While at the hospital with N.M., a Peel police officer told him there was an allegation of sexual assault and that he should go home and await a call from the Halton Police because the allegation arose in Halton. The appellant was contacted and attended the police station where he was arrested and gave a videotaped statement.
[9] The trial and submissions took place over six days over five months. The defence position at trial was that the complainant was embellishing her evidence regarding the incident. There was no dispute that an incident occurred. The question was whether the Crown could establish beyond a reasonable doubt that what occurred during the one incident was a criminal offence. On March 22, 2012, the trial judge released her judgment finding the appellant guilty. On June 22, 2012, Her Honour imposed the sentence.
[10] While the appellant was initially charged with three counts each of sexual assault and sexual exploitation, the Crown proceeded on one count of each offence (the Family Day weekend incident – February 15, 2010) and with the appellant’s consent introduced evidence of the other two incidents (the dress incident and the bathing suit incident) as a “narrative.” Before the complainant was called to testify, the Crown told Her Honour he wanted to vet an issue with her that counsel had agreed upon as follows:
… the Crown was only seeking to enter the details of those incidents for the narrative, therefore not attempting to make any substantive use out of them. And that would have the result that if this matter were to come to a verdict, that the Crown would only be seeking to treat this as a single incident and not part of a course of a series of incidents. … And as well, Your Honour, specifically the Crown is not seeking to introduce those incidences as evidence of poor character or bad character.
The Crown’s Evidence
The Family Day Weekend Incident
[11] The incident that gave rise to the charges occurred on February 15, 2010, when the appellant, his wife and N.M. arrived home from a shopping trip to Niagara Falls for an upcoming family cruise to Mexico they were going to take during the Spring Break.
N.M.’s Evidence
[12] N.M. said that she was in her bedroom selecting clothing to take to Mexico when the appellant came in and asked her what she was doing. She asked where Angela was and he said she was sleeping, pointed out a dress that was on the bed, said it was pretty and asked her to try it on because he wanted to see if it was see-through. She said she did not want to try it on, she was really lazy, tired and just wanted to fix her clothes. That was when he took the initiative to “help her change,” saying (as set out in her statement to police that was introduced pursuant to s. 715 of the Criminal Code):
Oh, come on, I do so much for you and you’re the only entertainment I have left, or something like that, you know, like my little Barbie doll. I can’t remember what he said, something like. But that’s what I kept hearing in my … head. I was going to change in the bathroom and I couldn’t. I was trying to cover myself and then I wanted to put the dress on and he said, “Oh, take off your bra because I want to see what it looks like if it’s see thru. I said no, it looks weird without a bra. I’m not wearing this dress without a bra. Because I’ve worn it before. And he said, “Oh, just take it off” or something, I want to see. And then I said, no, I don’t want to and then he just took it off for me. And at that time I just throw on my dress as quickly as possible because I don’t want to reveal myself.
And then he told me to take off my pants and I didn’t want to. Again I said no, I’m tired, I’m lazy. … and then he pushed me on the bed and I tried getting up and then he pushed me again and then he was taking off my pants and I was like, no I don’t want to, I don’t want to. And he’s like, look I’m not even gonna look and he was like this and he was trying to take off my pants and then he kept looking down. And I kept saying, I don’t want to and I tried to get up and he kept pushing me back down on the bed. And then he got them off and then I pulled my dress down so that he wouldn’t see. And then he said okay well you can see your underwear they’re – take it off so like, you know, I don’t think you wear underwear with this kind of dress. And I said well I’m not, I’m not gonna go in this dress without any. And then he said well then just take it off and then I said no and then he tried to but then I kind of resisted and pushed away and almost started crying. And then that’s when he said okay well this dress doesn’t look that bad, he was in my mind, I see it as he was trying to play it off and kind of guard himself kind of.
and then he told me I shouldn’t be shy around him, that this is how family is and that it’s normal or something like that.
while he was pushing me on the bed … he was laughing and it’s like it was kind of a joke to him. And I was scared and inside I felt like a little girl, just helpless, couldn’t do anything.
[13] N.M. testified she told the appellant she would try the dress on and was going to change in the bathroom but the appellant said she could change in front of him as they were “like family.” She felt uneasy and began to walk to an ensuite bathroom but he blocked her way and “decided [she] was taking too long for [her] to change so he took off [her] shirt.” She testified he said, “Fine just the back then.” He walked her to the bathroom to look in the mirror and said, “See, the dress looks better without the line.” Then he left.
[14] During the incident she was screaming “No” that she did not want to try on the dress. She did not know how loud she was but it seemed like she was screaming at the top of her lungs. In her police statement, she did not mention screaming or crying.
[15] When the incident was over she went into a closet and called her friend, Louis Mendez, and her cousin on her cell phone because she might be overheard on the phone. While she initially said she told Mendez what happened, she later said she did not, that she had called him to calm herself down. Mendez was called as a defence witness. He said N.M. told him her uncle had forced her to take off her shirt, tried to force her to take off her bra and may have tried to force her to take off her underwear as well.
(continued exactly as in the source through paragraph [159] and the closing material)
[159] The appeal is allowed, the conviction quashed and a new trial ordered. Mr. Collins is ordered to appear on Tuesday, March 11, 2014 in Courtroom #9, at 9:00 a.m., 491 Steeles Ave., Milton, to set a new trial date.
DURNO, J.
Released: February 21, 2014
COURT FILE NO.: MILTON 110/12
DATE: 20140221
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent to the Conviction and Appellant on the Sentence Appeal
- and -
DANIEL COLLINS
Appellant on the Conviction Appeal and Respondent to the Crown Sentence Appeal
COUNSEL:
ARISH KHOORSHED, for the Crown
WILLIAM V. REID, for Daniel Collins
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable L. Baldwin, dated March 22, 2012 and the sentence imposed on June 22, 2012]
DURNO, J.
Released: February 21, 2014
[^1]: This section of the Reasons will address the areas in which the appellant alleges Her Honour misapprehended evidence with the exception of the appellant’s statement to police. The issues relating to the statement will be addressed later in the reasons.