BRACEBRIDGE COURT FILE AND PARTIES

COURT FILE NO.: CR-13-7-AP
DATE: 20140415

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

BRENT TYLER AMEY
Appellant

Lyndsay K. Jeanes, for the Respondent

Mark J. Sandler, for the Appellant

HEARD: March 11, 2014

REASONS FOR DECISION

ON APPEAL FROM THE DECISION

OF THE HONOURABLE MR. JUSTICE J.D. EVANS DATED NOVEMBER 30, 2012

DiTOMASO J.

THE APPEAL

[1] On July 25, 2012, Mr. Amey was tried by The Honourable Mr. Justice J.D. Evans in Bracebridge, Ontario on a single count of sexual assault contrary to the Criminal Code of Canada. The Crown proceeded summarily. On November 30, 2012, Mr. Amey was found guilty and on January 23, 2013 he was sentenced. Mr. Amey appeals his conviction. No appeal is taken against sentence imposed.

OVERVIEW

[2] The trial judge heard from four witnesses: the complainant, the accused and two relatively minor witnesses. The evidence of all four witnesses took only one day to complete. Submissions were made by counsel on August 20, 2012 and the trial judge reserved his decision. Ultimately, he delivered his judgment on November 30, 2012. This case was neither lengthy nor particularly complex.

[3] The trial judge’s Reasons for Judgment are contained in approximately 17 pages of transcript.

[4] The complainant, L.S., and Mr. Amey were work colleagues. In the early morning hours of June 16, 2011, during a work retreat at the Muskoka Bay Club in Gravenhurst, Ontario Mr. Amey entered L.S.’s bedroom. He accessed her bedroom by first climbing onto the bedroom’s balcony and after that, proceeding through the unlocked balcony door.

[5] The complainant, who had gone to sleep, was awakened by Mr. Amey standing in her bedroom. She may have returned his greeting when he entered but asked him “what are you doing here?” She testified that almost instantaneously, Mr. Amey was in her bed, groping her and kissing the left side of her face and neck. He grabbed her breasts and she told him to stop and go. He asked if she really wanted him to go and she replied that she did.

[6] He left through the same balcony door.

[7] It was L.S.’s position that she did not consent to any sexual activity. Mr. Amey maintained that the complainant did consent and, if she did not, he held an honest but mistaken belief in her consent.

[8] In addition, credibility was a major issue in this trial.

[9] The trial judge considered the evidence of L.S. and Mr. Amey as well as the evidence of two minor witnesses. He heard the submissions from counsel. He found Mr. Amey not to be a credible witness. Further, the trial judge accepted the evidence of L.S. as being credible. He accepted the evidence of the two minor witnesses. One witness never observed Mr. Amey and L.S. in conversation and saw nothing at all to indicate any special relationship between the two. The other witness described L.S. as professional and courteous and observed nothing in the relationship between her and Mr. Amey that caused him concern or that indicated any special relationship between the two. The trial judge reviewed the evidence of L.S. and of Mr. Amey in his Reasons for Judgment.

[10] The trial judge applied the W.D. test which is not the subject of this appeal. Not only did he conclude credibility in favour of L.S. but he found that there was absence of consent and no honest but mistaken belief in consent. The trial judge convicted Mr. Amey of sexual assault.

ISSUES

[11] On appeal, it is submitted that the trial judge erred in law or in mixed fact and law in a number of significant ways:

(a) The trial judge misapprehended or failed to appreciate evidence bearing upon issues of credibility;

(b) He misapprehended or failed to appreciate material evidence;

(c) He misapprehended Mr. Amey’s evidence;

(d) He misdirected himself as to honest but mistaken belief in consent; and

(e) He misdirected himself as to the law in rejecting Mr. Amey’s evidence on an issue where Mr. Amey was unchallenged in cross-examination.

POSITIONS OF THE PARTIES

Position of the Appellant

[12] The thrust of the submissions on behalf of the Appellant is that the trial judge’s findings were tainted by his failure to appreciate or summarize the evidence. He failed to refer to material evidence or respond to the points important to the Appellant. Simply knowing what issues arose at trial did not immunize the trial judge from analyzing the evidence and addressing those points most important to the Appellant upon which the Appellant relied. The trial judge’s misapprehension of the evidence affected the outcome of the trial as it related to the issues of credibility, consent and honest but mistaken belief in consent. Further, the trial judge misdirected himself in respect of the law by stating that an honest but mistaken belief cannot be based on misperceptions or assumptions and the trial judge also misdirected himself in rejecting Mr. Amey’s evidence regarding an issue on which Mr. Amey was unchallenged in cross-examination.

[13] In conclusion, it is submitted that all of the errors of the trial judge operate in favour of allowing the appeal, setting aside the conviction and ordering a new trial.

Position of the Crown

[14] It is submitted on behalf of the Crown that the Appellant is asking this court to revisit factual findings made by the trial judge that are amply supported by the record. The issues raised in this appeal are the precise issues that were advanced at trial and dealt with by the trial judge in his Reasons. Despite the Appellant’s protestations to the contrary, this appeal is an attempt to retry the case under the guise of legal error.

[15] The Crown submits there is no legal error. The trial was neither lengthy nor complex. Counsel for both the Appellant and Respondent made fulsome submissions and engaged in vigorous advocacy. The trial judge, by the time that he was rendering his decision, was fully alive to all of the issues and evidence.

[16] In his Reasons for Judgment, the trial judge explained why he arrived at his particular conclusions. He had carefully set out the positions of the parties and articulated his findings in respect of all of the issues. He was in a unique position to see and hear the witnesses. In the absence of palpable and overriding error by the trial judge, his perceptions should be respected and given deference.

[17] It is submitted that the record supports the credibility findings that the trial judge made.

[18] It is also submitted that there was no misapprehension of material evidence or of the evidence of the Appellant. Neither did the trial judge misdirect himself as to the test regarding consent or honest but mistaken belief in consent. Neither did the trial judge commit any error in respect of unchallenged evidence relied upon by the Appellant.

[19] Rather, the Crown submits that there was sufficient evidence upon which the trial judge could reasonably find in favour of L.S. regarding the credibility issue. Further, it is submitted there was no misapprehension by the trial judge in respect of material evidence or evidence of the Appellant. Lastly, in respect of two issues, he did not misdirect himself. The Crown submits that the appeal ought to be dismissed.

THE FACTS

[20] The facts are set out in the Appellant’s factum at paras. 5 – 25 and the Respondent’s factum at paras. 4 – 28.

REASONS FOR JUDGMENT

[21] The Reasons for Judgment of the trial judge can be found in the transcript dated November 30, 2012. The Reasons consist of some 17 pages, parts of which I will refer to in the course of my reasons.

STANDARD OF REVIEW

[22] A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence. A trial judge’s findings of fact ought not to be lightly interfered with.[^1]

ANALYSIS

(a) Credibility

[23] One of the critical issues at trial was credibility. L.S. testified that there was no consent. The position of the Defence was that the complainant had consented to sexual activity prior but changed her mind. It was also advanced as the alternative position that Mr. Amey honestly, but mistakenly believed that L.S. had consented.

[24] It is submitted on behalf of Mr. Amey that the trial judge first assessed the credibility of L.S., finding her to be honest and credible. In doing so, he misapprehended or failed to direct himself to the most significant points relied upon by the Defence. Having accepted her credibility, he then assessed and found wanting the credibility of Mr. Amey, also seriously misapprehending key aspects of Mr. Amey’s testimony. It is submitted that this constitutes reversible error. Further, those misapprehensions were compounded by the trial judge’s misdirection as to the law concerning honest but mistaken belief in consent and its application in this case. The Appellant’s argument also relates to the trial judge misapprehending evidence relied upon by the Defence to undermine the credibility of the complainant. Those misapprehensions extend to a failure to appreciate material evidence and a misapprehension of the Appellant’s evidence. I disagree with these submissions.

[25] It is trite law that a trial judge’s assessment of credibility is entitled to deference, absent overriding and palpable error. It is equally uncontroversial that a trial judge has no obligation to refer to all of the evidence or every point raised by the Defence, however peripheral. However, it is argued on behalf of the Appellant that where a trial judge misapprehends the evidence, and the misapprehension plays an essential part in the trial judge’s reasoning process, the accused has not received a fair trial.[^2] It is further submitted on behalf of the Appellant that misapprehensions of evidence may involve a failure to consider evidence relevant to a material issue, a mistake about the substance of evidence, or a failure to give proper effect to evidence.[^3]

[26] When a misapprehension of evidence is claimed, a stringent test applies. In R. v. Morrisey, Doherty J.A. held that there are several pathways by which a judge may misapprehend the evidence. The trial judge may: (i) fail to consider relevant evidence; (ii) make a mistake as to the substance of the evidence or (iii) fail to give proper effect to the evidence. In the event that a misapprehension of evidence does occur, it is only a reversible error if it resulted in a miscarriage of justice. The standard is stringent. In order to demonstrate that a misapprehension of evidence resulted in a miscarriage of justice, the error must relate to the substance of material parts of the evidence and the Appellant must show that the conviction depended on the misapprehension of the evidence.[^4]

[27] In R. v. Sinclair, the Supreme Court of Canada noted that an appellate court can only interfere on the basis of misapprehension of evidence if the trial judge has committed a concrete error. More is needed than an “apparent” mistake in the reasons. As LeBel J. stated:

A Court of Appeal should not … order a new trial unless the trial judge has made a real error; its decision cannot be speculative. The plain language or the thrust of the reasons must disclose an actual mistake.

[28] Further, an error in the assessment of the evidence will amount to a miscarriage of justice “only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground”.[^5]

[29] Where an Appellant alleges that a trial judge misapprehended portions of the evidence, a stringent standard will be applied to appellate intervention. In R. v. C.R., the Ontario Court of Appeal has stated:

29. At the outset, I observe that an Appellant faces an up-hill battle to succeed on appeal with a misapprehension of evidence argument. A material misapprehension of the evidence by a trial judge compromises trial fairness, thereby justifying appellate intervention. However, a stringent standard applies to appellate reversal on this basis.

30. Thus, to warrant appellate interference, the misapprehension at issue “must be material rather than peripheral to the reasoning of the trial judge”. In addition, the error identified “must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”: Lohrer, at para. 2; C.L.Y., at para. 19. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error: T.T., at para. 33.

31. Moreover, credibility is a question of fact. On factual matters, it is a reviewing court’s responsibility to afford due deference to the advantageous position of the trial judge who actually saw and heard the witnesses: R. v. Cresswell, 2009 ONCA 95, at para. 14; R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont.C.A.), at para. 46.[^6]

[30] In the case at bar, the trial judge rejected the Appellant’s evidence and found that the Appellant’s evidence raised no reasonable doubt. He properly applied the test in W.D.[^7] The trial judge articulated in his reasons the critical issues and examined the evidence of Mr. Amey in order to determine whether or not it raised a reasonable doubt. The trial judge for approximately ten paragraphs described some of the evidence and reasoning that he used in analyzing Mr. Amey’s testimony and then held:

Accordingly, the court did not find the accused to be an honest and credible witness, his germane testimony being fraught with improbability and implausibility and devoid of common sense.[^8]

[31] Further, the trial judge addressed the evidence of why Mr. Amey’s defence of “honest but mistaken belief” had no air of reality after a thorough review of the evidence presented and the arguments offered at trial. Accordingly, the trial judge found Mr. Amey’s evidence to be “unworthy of belief for the reasons stated, and [that] his evidence does not raise any doubt in the mind of the court”.[^9]

[32] Despite finding that Mr. Amey’s evidence did not raise a reasonable doubt as to the evidence, the trial judge was still aware that he had to determine whether or not, on all of the evidence, the Crown’s case was proven.[^10]

[33] Earlier in his reasons, the trial judge referred to the evidence of the complainant. As he did with Mr. Amey’s evidence, the trial judge described some of L.S.’s evidence and the reasoning he used to analyze that evidence and held:

With respect to the issue of witness credibility, the Court found the complainant to have testified in a composed, straight-forward manner, being appropriately responsive to questions asked, and remaining internally consistent.

She appeared to have a good recollection of events. However, at one point in cross-examination she acknowledged that during the time in the bedroom, she had told the accused to just go to sleep. She further acknowledged that she did not relate this to the court in her examination in chief, nor she did (sic) mention it in her prior statement to police.

While no explanation for her failure to disclose this comment prior to cross-examination was given, or indeed asked for, the Court did not find such omission in this case, to be born of any effort by the complainant to deceive the Court, or wilfully cause the omission, and it did not shake the Court’s confidence in her credibility.

With respect to the complainant’s post-event conduct in remaining at the conference and partaking of conference events, rather than simply leaving the conference, the Court found her explanation that she did not want to raise questions, to be entirely understandable and reasonable in the circumstances.

On the whole, the Court found the complainant to be an honest witness, and accepts her evidence as both credible and reliable.[^11]

[34] The Reasons for Judgment clearly show that only after finding Mr. Amey’s evidence not to be capable of raising a reasonable doubt, and finding L.S.’s evidence to be credible, did the trial judge conclude by stating:

The end result then, on all of the evidence before me, I am satisfied beyond any reasonable doubt that on June 16, 2011, the accused sexually assaulted the complainant … and I find him guilty as charged.[^12]

[35] The trial judge’s Reasons do not support the argument made on behalf of Mr. Amey that the trial judge first accepted the credibility of L.S. and then assessed and found wanting the credibility of Mr. Amey and in so doing seriously misapprehended key aspects of Mr. Amey’s testimony.

[36] The trial judge was fully aware that simply because he found Mr. Amey not worthy of belief, he was still required to go on and determine whether or not, on all of the evidence provided, the Crown has proven the case beyond a reasonable doubt. The trial judge did undertake that process and properly applied the principles in W.D.

[37] It is clear on the record that the trial judge not only considered the evidence of Mr. Amey but all of the evidence in coming to the conclusion that the Crown had proven its case beyond a reasonable doubt. The trial judge was entitled on the record before him to make the findings of credibility that he did, rejecting the evidence of Mr. Amey and accepting the evidence of the complainant. Those findings will not be interfered with by this Court. It will be given deference and will not be interfered with by this Court.

CONCLUSION

[87] On all the evidence, the trial judge made no reversible errors resulting in any miscarriage of justice. He understood the evidence before him in a relatively short, straight-forward and non-complex trial. He neither misapprehended the evidence of the complainant nor the evidence of Mr. Amey. The trial judge did not misapply the law in W.D.. He did not misapply the law on consent or honest but mistaken belief in consent or on the so-called Browne v. Dunne issue. I find that this is not a case where judicial intervention is warranted on appeal. The trial judge correctly applied all legal principles. The trial judge made findings he was entitled to make based on the evidence before him. His verdict reached at trial was both reasonable and supported by the evidence.

[88] Accordingly, the appeal is dismissed.

DiTOMASO J.

Released: April 15, 2014

[^1]: R. v. Smits, 2012 ONCA 524, at para. 67; R. v. Beaudry, 2007 SCC 5, at para. 98; R. v. Sinclair, 2011 SCC 40, at paras. 4 and 44.

[^2]: R. v. Lohrer, 2004 SCC 80.

[^3]: R. v. Morrissey, 1995 3498 (ON CA).

[^4]: R. v. Lohrer, supra; R. v. Morrissey, supra.

[^5]: R. v. Sinclair, supra.

[^6]: R. v. C.R., 2010 ONCA 176.

[^7]: R. v. W.D., 1991 93 (SCC).

[^8]: Reasons for Judgment of Justice J. Evans, November 30, 2012.

[^9]: Reasons for Judgment, supra.

[^10]: Reasons for Judgment, supra.

[^11]: Reasons for Judgment, supra.

[^12]: Reasons for Judgment, supra.