ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 177/12
(Milton)
DATE: 20140410
B E T W E E N:
HER MAJESTY THE QUEEN
Kelli Frew, for the Respondent
Respondent
- and -
JOHN JOSEPH PERRY
Tina Yuen, for the Appellant
Appellant
HEARD: March 24, 26, 2014
REASONS FOR JUDGMENT
Skarica J.
NATURE OF PROCEEDING
[1] This is a summary conviction appeal brought by the accused regarding his conviction and sentence arising after a trial on one count of assault and one count of sexual assault.
OVERVIEW
[2] The appellant, John Joseph Perry, operated a retail store, S[…] (owned by his wife) in M[…] in Burlington, Ontario. He hired the complainant, J.S., in August 2009, to work in the store as a sales clerk. Mr. Perry was very friendly to J.S. and invited her to social events and loaned and gave her money. Mr. Perry developed a sexual interest in J.S., who lived with her mother.
[3] In the spring of 2010, it is alleged by J.S. that the accused dragged a chair that J.S. was sitting in and caused minor injuries to her wrist. On August 26, 2010, J.S. alleges that the accused, sexually assaulted her in the S[..] store by forcing his hand down her pants. Police were contacted approximately two weeks later and charges were laid.
[4] The accused was subsequently convicted and sentenced to four months in jail plus probation and ancillary orders. J.S. subsequently sued the accused for a million dollars. The accused seeks to introduce evidence (“fresh evidence”) adduced at the civil proceeding at this appeal proceeding.
FACTS
BACKGROUND
[5] J.S. testified as the first Crown witness.
[6] J.S. stated that she was hired by the accused as a sales clerk in August 2009. J.S. indicated she had three children with two different fathers but was living at home at that time with her mother and her mother’s husband, Mr. McKenzie. J.S. had access to her children every second weekend. She was 29 years of age in August of 2009.
[7] In August 2009, Mr. Perry was 46 years of age and was married. His wife owned the store, S[…]. The couple had no children, but Ms. Perry had adult children from a previous relationship.
[8] Mr. Perry was immediately very friendly with J.S. and invited her to a number of social events including hockey games and family events. Mr. Perry held a “birthday” party for J.S. at the end of […] 2009 when J.S. had only been at the store for a few weeks.
[9] J.S. had numerous financial difficulties when she started to work for the appellant. Her licence was suspended at one point (summertime) for unpaid fines. Mr. Perry cashed her pay cheques and paid her cash as she had problems with her bank. In addition Mr. Perry loaned her $1000 in the spring of 2010 so that she could fix her car and never deducted anything from her paycheque as arranged. Further, Mr. Perry paid her $3000 to test products.
[10] J.S. testified that Mr. Perry would drink beer, vodka, and whiskey while at work and would become aggressive and obnoxious with the customers.
[11] The normal employer-employee relationship changed just before Christmas in 2009. The accused would drink alcohol and tell J.S. that she was beautiful, had beautiful eyes and that he liked the shape of her body.
[12] J.S. felt uncomfortable but was used to those types of comments. She told the accused to just work out the problems with his wife.
THE ALLEGED ASSAULT
[13] The first assault occurred sometime between April and June 2010. J.S. was sitting on a display chair in the store when the accused grabbed her arm and slid her 10 to 12 feet toward the back. He told her that he wanted to kiss her. She told him that was not appropriate and she felt uncomfortable.
THE WRIST INJURY PHOTOGRAPH AND MS.J.S.’ CELL PHONE
[14] The accused, while grabbing her wrist during the first assault, pressed J.S.’ watch into her wrist and there were marks on her wrist that J.S. testified were there for “several hours after”. J.S. took a picture of the marks on her wrist with her cell phone and indicated, when she testified on November 14, 2011, that the picture was on her old cell phone at home. This was the same cell phone, which the police examined on November 30, 2010, when the police copied six texts that the accused had sent her in September of 2010 shortly before she complained to the police. These texts were entered into evidence as Exhibit 1.
[15] The history of the cell phone supposedly containing the photo of the injured wrist is important evidence.
[16] J.S. testified that she told Constable Gardner on September 9, 2010, that there was a photo of the wrist injury on the phone complete with a record of the date of the taking of the photo and hence the date of the assault. Constable Gardner testified that she believes that J.S., on either September 9 or 10, 2010, mentioned that the photo of her injured wrist was on her cell phone. However, the officer made no note of it. Further, no picture of the injured wrist was observed or taken by the police from the victim’s phone at that time. Further, the video statement of the complainant taken on September 10, 2010 (filed as Exhibit 15) makes no reference to this cell phone wrist photo which of course could be strong evidence confirming the assault. At page 6 of the transcript of the video statement, J.S. describes the accused assaulting her by grabbing her by the left wrist and dragging her while she was still seated in the chair 10-12 feet. At page 7 of the transcript video statement she continues, “And my watch dug right into my wrist and made marks for I don’t know, a couple of hours. I had marks on my wrist…from that but um once I just brushed that off, once again too and um I was at work with him and um my mom called to say that uh a large bouquet of flowers had come to my house.” The complainant goes on to say that she got the flowers on June 11, and “I also have a picture of the flowers that were sent to me.” The chair incident is referred to again at pages 13 and 14 of the video statement transcript and there is a discussion of when the incident happened and the complainant “thinks” that it happened in May and makes no reference to having a picture of her wrist injury on her phone (that according to her testimony has a time stamp on it). The chair incident is again referred to at pages 17 and 18 of the video statement transcript and the complainant indicates she told her mother and stepfather about it the same day and makes no reference to any picture on her cell phone. At her testimony at Vol. 1, page 122, J.S. indicates that she had printed the picture off before she went to the police station and needed to go back to her email to print the picture off. There is no evidence that she provided the police with a copy of the picture before the trial commenced.
[17] Officer Gardner made arrangements with the victim to bring her phone in for forensic examination. J.S. brought the phone in to be examined by the police on November 30, 2010. It was given to Detective Constable Shawn Mazzuto who works in the Tech Crimes Unit and has specialized training in the examination of computers, phones and digital devices. Officer Mazzuto downloaded (using computer software) and extracted from the phone the six text messages involving the accused that were entered in as Exhibit 1. There were no other text messages coming from or to the accused’s phone number. Further, Officer Mazzuto was asked, “did you look to see whether there were any pictures on the phone?” The officer indicated, “there was one picture.” This picture was entered into evidence as Exhibit 13 and is a picture of a blonde female wearing a tank top and is not related in any way to a wrist injury alleged to be from the assault that J.S. testified to. J.S. testified at Vol. 1, page 170 of the transcript that at the time the officer examined her phone that she “never deleted anything at that time.”
[18] Accordingly, when J.S. testified on November 14, 2011, her phone had been forensically examined by the police and no photo of a wrist injury had been located on the phone. She however testified that the photo was on this phone and that it contained the date that the photo was taken and hence the assault date. According to J.S., all of this information was stored on her phone. In cross-examination J.S. testified at Vol. 1, page 52 of her transcript (on November 14, 2011) that she would bring the phone and the information in “tomorrow” (the information being a copy of Janice Perry’s Facebook page and the wrist photo). At Vol. 1, page 85 of the transcript, J.S. states she told both her mother and her stepfather about the assault and the exact dates are on the phone, and “so I’ll be able to provide that tomorrow.”
[19] J.S. returned to testify on the next day which was November 15, 2011. She did not bring the phone with her as she had promised when she testified the previous day. J.S. did bring with her a copy of a printout of Janice Perry’s Facebook page from August 29, 2010, which was entered in as Exhibit 5 (The Facebook page has an entry where the accused’s wife indicates that the accused is packed and ready to leave and that the complainant and her family should get ready – here he comes). She was asked in cross-examination at Vol. 1, page 124 of her transcript, “And you said you would also come with a photo, today, as well?” Her answer was, “Yeah. As I said that my cell phone, um, is actually, the – it’s a very old cell phone and the- it’s not working. But I actually have it on my email. I just couldn’t find it yesterday. So if it gets remanded, I’ll be able to bring it and if not, then I couldn’t find it last night.” The defence asks, “Sorry, you couldn’t find it” and J.S. states, “I couldn’t find it on my email last night; didn’t have enough time.”
[20] J.S. finished her testimony on November 15, 2011, without filing the cell phone or photos. The matter was remanded for continuation on March 6, 2012.
[21] J.S.’ blackberry cell phone was never entered into evidence or brought to court as promised. On March 6, 2012, the Crown announced that the Crown was in possession of a black and white photo of the wrist injury that had been obtained by the complainant from her email. There were no date stamps on the photo. There were dates on the email but that is not the date the photo was taken. The defence indicated that he wanted to put the exhibit into cross-examination if the Crown was going to introduce them as an exhibit. The Crown indicated that she could clarify dates with the witness and was not planning on recalling the witness. The Crown indicated that further issues could be worked out and the defence indicated, “Yes, your Honour.” The photos from the email were entered into evidence as Exhibit 9A and 9B. The complainant was never recalled for cross-examination. There was no further clarification regarding the dates. There was no evidence that “further issues” were ever worked out and Exhibits 9A and 9B were left into evidence without further clarification or identification.
[22] Exhibits 9A and 9B were entered into evidence and the next witness called was Pamela McKenzie (see page 3 of Vol. 2). Ms. McKenzie at Vol. 2, page 11 of the transcript, after describing the chair-dragging incident, is asked if she made any observations of J.S.’ wrist when J.S. came home from work after this assault. Ms. McKenzie indicated, “Her wrist was bruised, red and purple…and it was from her watch being dug into her arm as he dragged her.” Ms. McKenzie indicated that the injured wrist was the left wrist. This description was repeated in cross-examination at Vol. 2, page 30. This description is somewhat different from J.S.’ description in her video statement transcript that the marks on her wrist were there “for a couple of hours” and from J.S.’ trial testimony that the marks lasted “several hours.” As those pictures are black and white, it is impossible to see any colour on them. Exhibits 9A and 9B show an indentation mark of some kind on the left wrist. In cross- examination, Ms. McKenzie indicated at Vol. 2, page 16, that, “she took a picture of her wrist with her cell phone for evidence that she was hurt at work in case she- she had to go to the police.” At Vol. 2, page 30, Ms. McKenzie again indicates that J.S. took the picture right after it happened, “She took a picture of it, because she thought that, you know, she thought that she needed it to make charges that she would have evidence of what happened to her.” Ms. McKenzie was shown Exhibit 9B for the first time in re-examination at Vol. 2, page 44 of the transcript. Ms. McKenzie testified that the background of the photo is the back room of the store. She is not asked anything about the injuries depicted on the photo.
[23] Neil Donaldson, the complainant’s boyfriend testified that J.S. reported the wrist incident to him. He was not shown Exhibit 9A or 9B.
[24] Accordingly, there was no sworn testimony from anyone identifying the injuries on Exhibits 9A and 9B or the date on which the photo was taken. Those exhibits were tendered by the Crown with a description of how the Crown got the photos based not on sworn testimony or on consent but on unsworn hearsay remarks. The cell phone, where the photo was stored on supposedly with a date stamp, was never brought to court as promised by the complainant.
(continues exactly as in the original judgment…)
Skarica J.
Released: April 10, 2014