ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 46/13
DATE: 20140606

RE: Her Majesty The Queen v. Michael Mesaros

BEFORE: K.L. Campbell J.

COUNSEL:
Rick Nathanson, for the Crown, respondent

Allan E. Davidson, for the accused, appellant

HEARD: May 16, 2014

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainants and any information that could disclose such identities shall not be published in any document or broadcast or transmitted in any way.

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] The 53-year-old appellant, Michael Mesaros, was tried by Mr. Justice P. Taylor of the Ontario Court of Justice on two charges of sexual assault. Both offences were alleged to have been committed in Toronto on March 3, 2012. One offence was alleged to have been committed against the 27-year-old female complainant, and the other against her three-year-old son. The complainant and the appellant were the only two witnesses in this case. The trial judge found the appellant guilty of the charged offence of sexual assault in relation to the complainant, but guilty of only the included offence of simple assault in relation to her son. The trial judge accepted the evidence of the complainant, rejected the evidence of the appellant, and concluded that he was satisfied beyond a reasonable doubt as to the guilt of the appellant in relation to these two offences. In the result, the appellant was given a suspended sentence and placed on probation for 18 months. The appellant appeals against his conviction. Essentially, the appellant contends that the verdicts reached by the trial judge are unreasonable.

B. The Background Facts

1. The Evidence of the Complainant

[2] The complainant resided with her family in the same large apartment complex as the appellant. She described the appellant as a casual acquaintance who was a friend of her stepfather. Given his previous conduct towards her on a number of earlier occasions,[^1] the complainant thought the appellant was “creepy.”

[3] The complainant testified that on March 3, 2012, when she, her son and the appellant were all in the apartment building elevator together, the appellant commented on her physical appearance, telling her how “good” she was looking, and saying that she must be “working out.” According to the complainant, the appellant then mentioned that he had seen her and her cousin “shaking [their] asses at the car wash” located near the apartment building. The complainant replied that she had done no such thing. The appellant then told her that, on an earlier occasion at the indoor swimming pool in the apartment building, he had been “looking at her,” not her cousin. The complainant replied “whatever,” and looked down at her son. According to the complainant, the appellant then leaned toward her and made a kissing motion toward her with his lips.

[4] Following this “air kiss,” when the complainant and her young son were leaving the elevator on the ground floor, the appellant hit them both on their buttocks with the palm of his hand. The complainant testified that when this happened, she immediately turned around and told the appellant, in no uncertain terms, that he was not to do that. The appellant just laughed. She complained about this incident – to her mother and stepfather immediately, and to the police the next day.

2. The Evidence of the Appellant

[5] The appellant testified in his own defence. He denied engaging in any inappropriate conduct with the complainant. He described himself as a close family friend. He thought that he and the complainant were “family.” At one point in his evidence, the appellant described how, on earlier occasions, the complainant had sought his advice, and how he had explained to her about “wearing protection,” using “birth control,” and “not making babies with everybody” that she slept with. In this discussion, according to the appellant, they had been “very close with each other.”

[6] The appellant testified that when they were together on the elevator on March 3, 2012, they exchanged greetings, and started talking about the complainant’s son, and how healthy he looked and how much he had grown. According to the appellant, at one point during the elevator ride together, he and the complainant’s young son exchanged “high fives,” smacking their hands together.

[7] The appellant initially denied engaging in any conversation with the complainant about “how she was doing or how she was looking,” but then admitted that, in fact, he had remarked to the complainant that she had “lost weight,” appeared to be “getting in shape,” and that she was “looking good.” The appellant admitted that, as the complainant and her son left the elevator on the ground floor, he “tapped” her and her son on their buttocks, to show that he was happy for them.

[8] The appellant denied having any sexual purpose in relation to this admitted touching of the complainant and her son. He maintained that he had no sexual interest in the complainant. The appellant testified, essentially, that his touching of the complainant and her son was nothing but a friendly gesture of encouragement.

C. The Reasons for Judgment of the Trial Judge

[9] In his lengthy reasons for judgment, the trial judge accurately outlined the elements of the offences of “assault” and “sexual assault,” and accurately summarized the key aspects of the evidence.

[10] Ultimately, Taylor J. concluded that the assault on the complainant “was sexual in nature.” In reaching this conclusion, the trial judge referred to the fact that the touching itself was on her buttocks; that she was much younger than the appellant; that he had commented on her physical appearance, saying how “good” she looked; and that he had made a kissing sound as he looked toward her. Taylor J. also concluded that this sexual touching was without the consent of the complainant.

[11] Regarding whether the appellant possessed an honest but mistaken belief that the complainant was consenting to the touching, the trial judge assessed the testimony of the appellant, ultimately rejecting his testimony as “incapable of belief or of raising a reasonable doubt.” In considering their earlier interactions, the trial judge concluded that the complainant had tried to ignore the appellant but that he had been “overstepping boundaries” in touching her when it was obvious that she wanted no contact with him or attention from him.

[12] Taylor J. concluded that the appellant’s behavior in touching the complainant as she and her son left the elevator “was at minimum totally reckless and willfully blind to the situation.” According to the trial judge, the appellant “simply did exactly what he felt like doing that day,” namely, reaching out and touching their buttocks, even though there was “absolutely nothing” that might lead him to honestly believe that the complainant would have consented to the touching.

[13] With respect to the alleged offence against the complainant’s three-year-old son, the trial judge concluded that there was “nothing in the evidence” to suggest that this touching was at all sexual. However, Taylor J. concluded that the child was legally incapable of consenting to this non-sexual touching, and it was performed without the consent of the child’s mother, the complainant. With respect to this charge, the trial judge concluded that there was nothing in the evidence that might have led the appellant to believe that the complainant would have consented to this touching of her son.

D. Analysis

[14] On appeal, defence counsel claims that the trial judge erred: (1) in failing to give proper weight to the evidence of the appellant; (2) in totally rejecting the evidence of the appellant; and (3) in finding that the case against the appellant had been proved beyond a reasonable doubt. I see no merit in any of these arguments.

[15] As I have already indicated, it is apparent from his reasons for judgment that the trial judge rejected the testimony of the appellant, accepted the testimony of the complainant, and concluded that he was satisfied beyond a reasonable doubt as to the guilt of the appellant. In my view, the trial judge was entitled to draw these conclusions in the circumstances of this case and committed no error, legal or factual, in so doing. The verdicts reached by the trial judge were, in my opinion, entirely reasonable.

[16] Importantly, the trial judge correctly outlined the heavy burden of proof upon the Crown to establish each of the allegations beyond a reasonable doubt. Further, Taylor J. correctly articulated the three-pronged analysis suggested by R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758, in determining whether the Crown had established the alleged guilt of the appellant beyond a reasonable doubt. He did not simply view the case as a “credibility contest” between the complainant and the appellant.

[17] In concluding that the testimony of the appellant was “incapable of belief or of raising a reasonable doubt,” the trial judge made the following observations:

The appellant’s testimony was inconsistent internally, it was often contradictory. For example, he changed his evidence three times on whether the complainant’s stepfather had thrown him out of the apartment. His answers as to the conversation on the elevator were vague and inconsistent. He was argumentative. He suggested that he and the complainant had talked about skating because the complainant had her skates. When it was pointed out that this couldn’t be seen on the surveillance DVD he then insisted that the skates were in fact in the bag. He was argumentative in the sense that he often refused to answer questions directly.

[18] On the other hand, in accepting the testimony of the complainant, the trial judge made the following comments:

Implicit in my findings is that I accept the complainant’s version of events in the elevator beyond a reasonable doubt. She testified in a straight-forward manner, she didn’t press the allegations beyond what she said occurred. For example, she said it was a smack or a touch, conceding it was not a grab or a squeeze. In my view, she was a totally candid witness.

[19] These conclusions as to the credibility of these two witnesses are entitled to great deference on appeal. In R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, McLachlin J., as she then was, explained this deferential approach, at p. 131-132:

It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King, 1947 1 (SCC), [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), 1989 31 (SCC), [1989] 2 S.C.R. 446, at pp. 465-466. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.

[Emphasis added]

[20] I see no proper basis upon which to conclude that the trial judge erred in any way in reaching his conclusions regarding the incredibility of the appellant and the credibility of the complainant.

[21] It is worthwhile recalling that assessing the credibility of any witness is not a precise science or a purely intellectual exercise. Rather, it is a difficult and delicate task, often defying clear and comprehensive verbalization, especially given the “complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” See: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 49; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66; R. v. H.(W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 39-40.

[22] Finally, the authorities are clear that the conviction of an accused may, in appropriate cases, be properly founded upon an outright rejection of the evidence of the accused based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence. See: R. v. D.(J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.), at para. 53, leave denied: [2007] S.C.C.A. No. 69; R. v. R.E.M., at paras. 31-32, 48-51, 64-68; R. v. Dinardo, at paras. 23-24, 30; R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 (C.A.), at paras. 3-9; R. v. Hoohing, 2007 ONCA 577, [2007] O.J. No. 3224, at paras. 11-16; R. v. Mends, 2007 ONCA 669, [2007] O.J. No. 3735, at para. 18; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 13, 19; R. v. Menow, 2013 MBCA 72, 300 C.C.C. (3d) 415, at paras. 16-28. That is, in effect, what happened in the present case.

E. Conclusion

[23] In the result, the appeal against conviction is dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: June 6, 2014

[^1]: At trial, defence counsel expressly consented to the admission of this body of evidence, Further, in his reasons for judgment, Taylor J. noted that this evidence was only admissible for the limited purpose of outlining the nature of the relationship between the parties, citing R. v. F.(D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, 132 C.C.C. (3d) 97 (C.A.).