ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-0048-00AP
DATE: 2014-05-29
B E T W E E N:
Her Majesty The Queen,
Piera M. Pasloski, for the Crown
Respondent
- and -
Corey Loonfoot,
Michael A. Hargadon, for the Appellant
Appellant
HEARD: April 30, 2014,
at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.
Reasons For Decision on Summary Conviction Appeal
[1] This is an appeal by the accused Corey Loonfoot from his conviction on a charge of committing a sexual assault on R.N., contrary to s. 271 of the Criminal Code and on that same date that he failed to comply with a condition of recognizance given to a judge or justice.
[2] The notice of appeal identified four grounds of appeal. At this hearing counsel for the Appellant indicated that only three grounds were being advanced namely:
The trial judge failed to properly charge herself on the issue of reasonable doubt as enunciated in the authority of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742;
The trial judge treated the trial evidence as a contest between the competing narratives of the complainant and the accused, thus failing to apply R. v. W.(D.), supra;
The trial judge impermissibly used demeanour evidence to bolster the credibility of the complainant.
[3] The Appellant abandoned the ground for appeal that asserted the reasons for decision of the learned trial judge were insufficient. The Appellant contends the learned trial judge committed errors of law which entitle him to ask for a new trial.
[4] The Crown conceded that the summary of the facts as set out in the factum of the Appellant were substantially correct. The summary of the facts is as follows.
Summary of the Facts
[5] At the time of his arrest, the Appellant was 28 years of age and was not employed. The complainant, R. N., was 35 years of age at the time of the offence.
[6] In the early morning hours of June 11, 2012, the complainant, her husband, her husband’s best friend, the Appellant, two other woment and certain persons unknown to the complainant returned to a room rented at the Prince Arthur Hotel, in the City of Thunder Bay. By inference, all present appear to have consumed alcohol together or separately over the course of the evening, either at the Prince Arthur Hotel or the Shoreline Hotel. The Appellant was invited back to the hotel room. The purpose of the invitation was for all to continue drinking after closing time.
[7] The complainant testified she was intoxicated, as was the Appellant. She had consumed four or five beers, though she was unsure of the precise amount, and Mr. Loonfoot testified that he had drank seven beers at the bar and an additional four in the hotel room.
[8] R.N. testified that by 3 A.M., when she went to sleep, herself, four other people and the Appellant were still in the room. She fell asleep fully clothed, wearing a shirt, her jeans, and her shoes. Some time later -- she estimated seven or so hours, given an observation she made of a clock when she initially reported the assault -- she was awoken by a sensation of pain in her vaginal area. She testified that she was being pushed down, with her face in a pillow, her arms were being held by her sides, and that she was being forcibly penetrated.
[9] She testified that she began struggling and was thus able to turn her head, whereupon she began shouting. Another woman, who was asleep on the bed next to her, was awoken by her cries. R.N. got her arms free. She pushed herself up, in the process, dislodging her attacker. She fell off the bed, as her pants were down, and ran into the bathroom. On her account, her husband was asleep in an armchair; a second woman was asleep in the other bed in the room. R.N.’s husband was also roused by her cries.
[10] The complainant first caught sight of the Appellant after she had thrown him off her. When she looked back at him, she saw him lying on the bed with his pants open and down. Having fled to the bathroom, she heard shouting in the next room. Her husband entered and asked her what happened; she told him that the Appellant had raped her. The husband left the bathroom; she followed him out; an argument erupted between the husband and the Appellant; and, on her account, it concluded with the Appellant punching the husband in the face, the two beginning to fight, and her running downstairs to the front desk of the hotel with the husband in tow. She did not recall what was said between the husband and the Appellant, though she did remember that, upon being awoken, one of the other women asked the Appellant what the hell he was doing.
[11] In cross-examination, the complainant stated that she was unsure whether a condom was used during the assault, that she did not know whether her attacker ejaculated or not, that she did not recall whether she observed any discharge from herself during her time in the bathroom after the assault, and that she had told the police that she felt sticky after the assault. In re-examination, she clarified that she had told the police that she either felt that her attacker was wearing a condom and that she felt something else moving as she was being penetrated. In further cross-examination, she testified that she did not know one way or another.
[12] The husband of the complainant testified that at roughly 3 A.M. he, the Appellant, his spouse, another man and two other women went back to the Prince Arthur Hotel. After an hour of drinking, the complainant became tired. As the husband did not have fare for a taxi, it was suggested that the complainant sleep on a bed in the hotel room. The Appellant had already fallen asleep.
[13] All those who remained in the hotel room eventually went to sleep. The complainant and one woman slept in one double bed together; the Appellant and another woman slept in another. The husband fell asleep in a chair he had positioned at the foot of the bed where his wife was sleeping. He testified that he was facing a television; from this, one infers that he was facing away from where his wife was sleeping.
[14] The husband was awoken by the sound of swearing. He opened his eyes and saw the Appellant on his knees at the foot of the bed occupied by his wife, later clarifying that he was on his knees between another woman and his wife. He saw the woman, who had awoken instantly, sit up and ask what was going on; he saw his wife button her pants and run to the washroom, but stated that she did not fall off the bed. Neither the Appellant’s nor the complainant’s pants were down. Upon seeing her run into the washroom, he followed and asked what had happened; his wife reported that she had been raped, at which point he confronted the Appellant. The Appellant punched him in the mouth; he grabbed the Appellant’s head and neck and squeezed it to prevent him from striking again. The second woman in the room awoke and told them to stop fighting; and, ultimately, his wife ran from the hotel room and he followed her. As he waited downstairs for the police, he saw one of the women and the Appellant exit the elevator together.
[15] Ultimately, the police were summoned. The complainant spoke with Cst. Salvatore Carchidi of the Thunder Bay Police Service, who described her as “hysterical.”
[16] As the police took the initial account of the assault from the complainant, she saw the Appellant and another women who had been in the room, exit the elevator together and begin to leave the hotel. Cst. Carchidi testified that at that point the complainant “lost it” and began hysterically screaming at the Appellant. Cst. Carchidi followed the Appellant out of the hotel and placed him under arrest.
[17] Cst. Carchidi took the initial account from the complainant in the presence of the complainant’s husband. He questioned the husband further outside the hotel. In cross-examination, Cst. Carchidi testified that the husband did not tell him -- or at least he had no notes of the same -- that he observed the Appellant and the complainant on the hotel room bed together.
[18] The officer also spoke with another female, unidentified in the transcript, who advised him that she was “present” (one assumes in the hotel room in which the incident occurred) that evening and morning as well. The account of this last individual does not appear in the trial record.
[19] Cst. Carchidi eventually seized, as he put it, the hotel room. When he attended the hotel room, a female individual was there; that person is not identified in the trial record. The women who had left the hotel with the Appellant, later returned to the hotel room. At that time, she told Cst. Carchidi that she did not see anything.
[20] Save for the fact that it was apparent to Cst. Carchidi that all parties had been drinking, no further evidence of his involvement in the investigation was led.
[21] Upon being arrested, the Appellant permitted the police to take penile swabs from him for the purpose of forensic DNA analysis. The complainant submitted to a sexual assault examination from which swabs were taken from her. The Centre for Forensic Sciences examined these swabs and determined the following:
a. With respect to the swab of the complainant’s external genitalia, minor amounts of male DNA were present but were not suitable for analysis given the low amount of DNA present and uncertainty with respect to the number of contributors of that DNA;
b. No DNA profile, other than that which is attributable to the complainant, was detected on her vaginal swab; and
c. The penile swab taken from the Appellant was a mixture of DNA from two individuals. One of these persons was male (and was likely the Appellant); analysis of the other DNA profile was not possible because of the low amount present and uncertainty with respect to the number of contributors.
[22] The conclusion of the Centre for Forensic Sciences, then, was that there was no independent forensic evidence capable of corroborating the account of the complainant.
[23] The Appellant testified. At 2:30 A.M. on the date of the incident, June 11, 2012, he met a woman known to him outside the Shoreline Bar on North Cumberland Street in Thunder Bay. She invited him back to the Prince Arthur Hotel, where she had a room. Some seven people were in the room besides himself.
[24] The Appellant consumed roughly seven beers prior to arriving at the hotel room and four or so afterwards. He retired to bed at about four in the morning, falling asleep on top of the covers of one of the beds in the hotel room. He was fully clothed, save for his jacket
[25] The Appellant awoke at approximately 9:30 in the morning. The complainant’s husband was asleep seated in a chair. The complainant and another female were asleep in the other bed. He awoke next to the women whom had invited him to the hotel room . He found his shoes and turned on the television in the room to check the weather. He looked for and found his jacket on the floor.
[26] It was at this time that the complainant accused the Appellant of having stolen from her. Sitting up in the bed, fully clothed, she claimed that she was missing $400. She asked to check his pockets. When he refused, she arose from the bed, walked over to the Appellant, and attempted to check the pockets. He pushed her hands away.
[27] According to the Appellant, the complainant told the Appellant that he was “gonna get it.” She woke up her husband, telling him that the Appellant had sexually assaulted her. The complainant’s husband proceeded to punch him in the face.
[28] The Appellant testified that the complainant did not scream during this altercation, nor was she crying. He stated that the complainant entered and exited the bathroom several times, that she appeared to be rushing around the room, and that she seemed to be intoxicated. He also stated that the complainant’s husband held the Appellant by his arms while she checked his pockets.
[29] Eventually the two other women sleeping in the room awoke and told the parties to stop fighting. The Appellant and the complainant’s husband disengaged from each other. The complainant and her husband then left.
[30] The Appellant denied being on the complainant’s bed, being near to her, speaking with her during the course of the evening, stealing money from her, or sexually assaulting her.
[31] The Appellant testified that he submitted to the penile swab to prove his innocence. When asked if he had any condoms on his person that evening, he stated that he had one, that it was confiscated by the police when he was arrested, and that it was returned to him when he was released.
[32] At the close of the case for the defence, the trial judge correctly identified that during cross-examination, the defence had failed to put its theory of the case to any of the witnesses called by the Crown. This violated the rule in Browne v. Dunn, (1893) 1893 65 (FOREP), 6 R. 67, H.L. The trial judge adjourned the matter to a continuation date so that the complainant and her husband might be the subject of additional cross-examination by the defence. This issue was not raised as a ground of appeal.
[33] The complainant proved to be an uncooperative witness. In brief cross-examination by the Appellant’s trial counsel, she testified that she did not have any money on her that evening, that she had been taken out by a friend who was going through a divorce, and that she had left her purse and wallet at home as she was being taken out. Although she claimed that she had stated these facts during her initial examination, she did not.
[34] Ultimately, the trial judge elected to put the defence theory to the complainant herself. The complainant denied each aspect of the defence theory that was put to her. The complainant’s husband was then produced and cross-examined again. He stated that neither he nor his wife had any money on them that evening, and that he did not hear any argument between his wife and the Appellant over money.
Test on a Summary Conviction Appeal
[35] In the case R v. Bassie Kargbo [2009] O.J. No. 1427, Justice Warkentin set out a useful summary of the test on matters such as the one before the Court. At paragraphs 12 through 15 she stated:
“12 Section 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:
"(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law;
(iii) on any ground there was a miscarriage of justice."
13 Where 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.
14 Although 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 93 (SCC), [1991] 1 S.C.R. 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."
15 However, 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.) 1991 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.) in reviewing credibility issues so long as the court is alive to the issues raised by W.(D). when evaluating evidence.”
[36] I adopt the reasoning of Justice Warkentin in Kargbo.
Position of the Parties
[37] The Appellant conceded the reasons for judgment of the learned trial judge where sufficient in this matter. However, the Appellant argues those reasons demonstrate a palpable and overriding error. The Appellant submits the learned trial judge fell in to precisely the same error as was addressed by the Supreme Court of Canada in W.(D.). She treated the trial as a contest between the narratives advanced by the complainant and the Appellant; she rejected the evidence of the Appellant and therefore accepted the evidence of the complainant as determinative of whether the Crown had met its burden of proof. With respect to the three part test set out in W.(D.), in particular, the reasons fail to identify that the third part of the test was engaged, the issue of whether even if the trial judge is not left in doubt by the evidence of the accused, on the basis of the evidence that was accepted, was the trial judge convinced beyond a reasonable doubt of the guilt of the accused.
[38] Further, in accepting the evidence of the complainant the Appellant argues the learned trial judge committed an error of law by relying solely on the demeanour of the witnesses in determining that her evidence was “compelling”.
[39] The Crown argues that while the learned trial judge did not expressly reference the W.(D.) case or the three fold test set out in that decision, nevertheless her reasons captured the substance of the decision. Her reasons do not indicate an error of law and as credibility was the ultimate issue in the trial, absent palpable and overriding error, her perceptions should be respected.
[40] The Crown submitted that the reasons for decision indicate that more than simply the demeanour of the complainant were relied upon with respect to the assessment of the credibility of the complainant.
Analysis
[41] The reasons for decision in this matter were given orally and were relatively brief. Both counsel in this matter agree that while it is not necessary to specifically cite W.(D.), the reasons for decision must be true to the substance of the direction given by the Supreme Court in that case.
[42] I accept the argument of the Appellant that the learned trial judge committed an error of law in deciding this matter. I agree that the reasons for decision indicate this case was decided not by relying on the methodology as dictated by W.(D), but rather was treated as a simple cred