ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-32-AP
DATE: 2014-06-25
B E T W E E N:
HER MAJESTY THE QUEEN
Josh McKay, for the Crown
Respondent
- and -
Shayne Normand,
Robert Sinding, for the Appellant
Appellant
HEARD: March 13, 2014,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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 Judgment On Appeal
[1] This is an appeal by the accused, Shayne Normand, from his conviction on a charge of sexual interference against T.P., contrary to s. 151(a) of the Criminal Code. Mr. Normand was also charged with sexual assault against T.P., contrary to s. 271 of the Criminal Code, arising out of the same incident. The charge of sexual assault was stayed upon Mr. Normand’s conviction on the charge of sexual interference.
Background
[2] The charges arise out of an incident on or about August 15, 2012, in the City of Kenora. T.P. was 11 years of age at the time. The evidence of T.P.’s mother was that T.P. looked and acted much older than 11 years of age, that she could pass for a 16 or 17 year old, that she looked more like a woman than a girl and that she hung out with older friends.
[3] One of those older friends was L.S., 23 years of age, who met T.P. in July 2012. At that time T.P. told Ms. L.S. that she was 15 years old.
[4] At the end of July, 2012, Ms. L.S. and T.P. went to the Northland Supportive Housing in Kenora to see a friend of Ms. L.S.. T.P. was not allowed into the Northland because she was not 18 years of age. They stayed outside, at the front entrance. They attended at the Northland together 12 or 13 times. Mr. Normand was at the Northland and Ms. L.S. and T.P. sometimes talked to him. Ms. L.S. said she never really saw T.P. and Mr. Normand interact.
[5] After the second or third time that Ms. L.S. and T.P. went to the Northland, sometime in August 2012, T.P. told Ms. L.S. that she liked Mr. Normand. The next day, Ms. L.S. told Mr. Normand that T.P. liked him. According to Ms. L.S., Mr. Normand said nothing, but just looked surprised.
[6] Ms. L.S. testified that T.P. told her to tell Mr. Normand that she was 15. Ms. L.S. told Mr. Normand. She said he just looked shocked. Mr. Normand talked to T.P. that day.
[7] At some point around August 2012, Ms. L.S. found out that T.P. was 11. Ms. L.S. told Mr. Normand. He replied that he was going to break up with T.P.
[8] Neither T.P. nor Mr. Normand testified at trial.
[9] A video tape, date stamped August 15, 2012, was played at trial. There was no recorded sound. The video was not played on the appeal.
[10] According to the trial transcript, the video showed the back entrance to the Northland. T.P. was there. Mr. Normand came to the door. There was an embrace and a kiss between Mr. Normand and T.P. Mr. Normand went back inside the building. Mr. Normand was charged as a result of what was captured on the video.
[11] The arresting police officer testified that Mr. Normand responded to the allegations by stating that he had an honest belief that T.P. was 17 years of age and that the kiss was only a peck.
[12] At trial, the defence made three arguments. Firstly, the defence submitted that Mr. Normand had a mistaken belief in age. Secondly, the defence submitted that the kiss was not of a sexual nature. Thirdly, the defence submitted that the Crown had not proved identity.
[13] The trial judge rejected all three arguments and found that the Crown had proved all elements of the charge of sexual interference beyond a reasonable doubt.
Reasons of the Trial Judge
[14] With respect to defence submissions of a mistaken belief in age, the trial judge found that Mr. Normand had not taken all reasonable steps to ascertain T.P.’s age, pursuant to s. 150.1(4).
[15] With respect to the argument of the defence that the kiss was not of a sexual nature, I set out the judge’s reasons in this regard, in their entirety:
“The second argument of the defence is that the kiss was not of a sexual nature. It is difficult to determine from the video if it was a kiss on the lips. The Court is to apply the objective test as to whether the sexual context of the assault is visible to a reasonable observer, and that is from the Ewanchuk case. I agree with the defence that this is a common practice to greet someone in a society with a hug or a kiss, however, in this context, the 23 year old accused was aware that the complainant liked him in a romantic way as Ms. L.S. testified to telling him this. With this background, the interaction between the two had a different flavour than that of acquaintances. He should not have interacted with her in the same manner that he would have interacted with a casual acquaintance, knowing her interest in him. While I understand the position of the defence, I do not accept it in all of these circumstances.”
[16] With respect to the issue of identity, the trial judge held that the evidence of Ms. L.S. that the man she saw in the video was “probably” Mr. Normand, coupled with the evidence of the arresting police office that after advising the accused of the allegation, Mr. Normand responded by stating that it was only a “peck”, was sufficient to establish identity.
B. Submissions
(a) Submissions of the Appellant
[17] The appellant submits that the trial judge erred in holding that there was no compelling factor that obviated the need for Mr. Normand to take all reasonable steps to ascertain the age of T.P. The appellant further submits that the trial judge erred when she held that Mr. Normand had not shown what steps he had taken and that those steps were all that could reasonably be required in the circumstances. The appellant submits that the compelling fact that obviated the need for inquiry was that the conduct was not sexual in the ordinary course, therefore lowering the standard of what reasonable steps were required, taken in conjunction with the evidence of T.P.’s mother that T.P. looked and acted older, that she hung out with older friends, that she could pass for 16 or 17, that she looked more like a woman than a girl, and the evidence of Mr. Normand’s statement to police that he thought T.P. was 17 years of age.
[18] The appellant submits that the trial judge erred in finding that Mr. Normand was told by Ms. L.S., before the incident, that T.P. liked him. In any event, even if Mr. Normand knew that T.P. liked him, the hug and kiss were not therefore necessarily sexual in nature. An inference that they were of a sexual nature was not the only reasonable inference that could be drawn.
[19] Thirdly, the appellant submits that although the trial judge found that the video was not clear enough to identify Mr. Normand beyond a reasonable doubt, she erred in being satisfied with proof of identity by Mr. Normand’s response to the police officer regarding the allegations that “it was only a peck”. The appellant submits that Mr. Normand did not say this while viewing the video and that there is a reasonable doubt that he could have been referring to some other incident.
(b) Submissions of the Crown
[20] With respect to whether Mr. Normand took all reasonable steps to ascertain T.P.’s age, the Crown submits that there was an evidentiary burden on Mr. Normand to show what steps he took and that these steps were all that could be reasonably required of him in the circumstances. The Crown submits this could be done by the accused pointing to evidence in the Crown’s case or by the accused testifying or calling evidence.
[21] The Crown submits that the trial judge was aware of the onus involved and analyzed how it had not been satisfied. The Crown submits that the trial judge did not make it a requirement that Mr. Normand had to testify. The trial judge decided that there were no compelling factors that obviated the need for inquiry. She found that just because Mr. Normand may have thought T.P. was 17, his subjective state of mind was not conclusive because he failed to take all reasonable steps. The Crown submits that because T.P. was 11 years of age, and Mr. Normand was 24 years of age, the significant age difference meant more inquiry was expected of him.
[22] The Crown submits that there was no error in law in the test applied by the trial judge to determine whether the acts were of a sexual nature. The Crown submits that the correct test was applied as set out in R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293 (S.C.C.), at para. 11:
“Viewed in the light of all of the circumstances is the sexual or carnal context of the assault visible to a reasonable observer.”
[23] The Crown submits that in determining if the acts were sexual in nature, it is a relevant consideration that Mr. Normand had been told that T.P. “liked” him, because it put the hugging and kissing in a context that was different from that of a greeting of two friends. The Crown also submits that the interaction had a different flavour because Mr. Normand and T.P. were in a relationship as evidenced by Mr. Normand’s statement when he found out she was 11 years old that he was going to break up with her.
[24] With respect to identity, the Crown notes that the comment of “it was only a peck” was made after Mr. Normand had been arrested and the officer had explained what the allegations involved, who was involved in the allegations and where the alleged incident occurred.
Discussion
The Test On A Summary Conviction Appeal
[25] 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; or
(iii) on any ground there was a miscarriage of justice.
[26] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been expressed by the Supreme Court of Canada in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at p. 185 as follows:
… the test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
[27] The test in Yebes, although expressed in terms of a verdict reached by a jury, is equally applicable to the judgment of a judge sitting at trial without a jury. R. v. Biniaris (2000), 143 C.C.C. (3d) (S.C.C.) at para. 37.
[28] In determining whether a verdict is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s decision (R. v. B. (R.H.), 1994 127 (SCC), [1994] 1 S.C.R. 656). Provided this threshold is met, an appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact (Francis v. R., [1994] S.C.C.D. 5065-02; R. v. Yebes, supra). It is not entitled to retry the case.
[29] More recently, in R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at p. 10, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judge’s factual findings. He stated:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm.
[30] In my view, the trial judge made no error in law nor did she make a palpable or overriding error of fact with respect to either the issue of whether Mr. Normand took all reasonable steps to ascertain the age of T.P. or the issue of identity.
[31] On the issue of the age of T.P., Mr. Normand raised the defence of honest but mistaken belief that T.P. was not under the age of 16. To succeed on this defence, s. 150.1(4) of the Criminal Code requires an accused to take all reasonable steps to ascertain the age of the complainant. This puts an evidentiary burden on an accused who raises this defence. The accused must either adduce evidence or identify Crown evidence, or both. This evidence need not be believed. It is only necessary that it create a reasonable doubt. See R. v. Osborne 1992 CarswellNfld. 14 (C.A.) at para. 49.
[32] The trial judge did not impose a requirement that Mr. Normand testify as to this defence. She found that although Mr. Normand stated to the arresting police officer that he thought T.P. was 17 years old, there was no evidence before the trial judge as to what steps Mr. Normand took to reach that conclusion. Although evidence that Mr. Normand held the requisite belief is part of the mistake of age defence, there must be something in the evidence, whether adduced by the Crown or the defence, that leaves the trial judge with a reasonable doubt whether this special defence is applicable in the circumstances. In my view, although there was evidence that T.P. looked and acted older than her age and, according to her mother, people might think she was 14 or 15, or 16 or 17, this was not evidence so compelling as to obviate the need for inquiry.
[33] On the issue of identity, the trial judge was entitled to find that Mr. Normand was the person seen in the video kissing T.P. based on the “probable” identification by Ms. L.S. and because of Mr. Normand’s response to the arresting officer, in the context of the allegation that he was kissing T.P. behind the Northland, that it was only a peck and he had an honest belief that she was 17.
[34] However, on the remaining issue of whether the Crown proved beyond a reasonable doubt whether the kiss was of a sexual nature, I am of the view, respectfully, that the trial judge erred in law and the appeal must be allowed on this ground.
[35] In R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293 (S.C.C.), at para. 11, the court defined sexual assault:
“…Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S. J. Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L.Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.”
[36] The trial judge correctly observed that she was to apply the objective test as to whether the sexual context of the assault was visible to a reasonable observer. She found that it was difficult to determine from the video if there had been a kiss on the lips. She also acknowledged that it was common practice to greet someone in society with a hug or a kiss. However, the trial judge concluded that what made this kiss sexual in nature was that Mr. Normand knew that T.P. “liked him in a romantic way as Ms. L.S. testified to telling him this”. She concluded that Mr. Normand should not have interacted with T.P. in the same manner as he would have interacted with a casual acquaintance, knowing T.P.’s interest in him.
[37] Objectively, what presents itself from the trial judge’s reasons is as follows:
• the kiss may have been on the cheek or the lips;
• the interaction was in the same manner as one would observe between casual acquaintances;
• the interaction occurred in the open, at the back door of a public building, when Mr. Normand and T.P. greeted each other;
• there was no evidence of what words, if any, were exchanged;
• there was no evidence from T.P. as to how she regarded the interaction;
• as of the date of the interaction, Mr. Normand had been told that T.P. liked him (if, in fact that conclusion can be drawn from the evidence).
[38] I am not satisfied that because Mr. Normand may have known that T.P. liked him, an interaction involving what the judge found may or may not have been a kiss on the lips, which objectively could otherwise reasonably be viewed as an innocuous, common form of greeting at the doorway, necessarily became sexual in nature, violating T.P.’s sexual integrity. In my view, even if Mr. Normand knew that T.P. liked him, the interaction could objectively have been viewed as non-sexual in nature. There was nothing inherently sexual about the interaction. A hug and a kiss between two people who are meeting each other, even if they are in a relationship, is not necessarily a sexual interaction. In order to convict Mr. Normand, the Crown was required to prove, beyond a reasonable doubt, that the only rational inference to be drawn from the kiss, which may not have been on the lips, was that it was of a sexual nature. In my view, on the facts found by the trial judge, that was not the only rational inference that could be drawn.
[39] It was also an error to find that the Crown had proved beyond a reasonable doubt that prior to the time of the incident Mr. Normand had been told by Ms. L.S. that T.P. liked him.
[40] Ms. L.S. was asked to identify when T.P. told her that she liked Mr. Normand. Ms. L.S. said that it was the second or third day that she and T.P. went to the Northland. When asked, “Do you know when that would be around?”, she replied: “Somewhere in August”. Ms. L.S. said that she passed this on to Mr. Normand the next day in the lobby of the Northland.
[41] Ms. L.S. also testified that at some point a friend told her that T.P. was 11. She said she told Mr. Normand. When asked when she told him, she said “Around August”.
[42] The incident in question occurred on August 15, 2012.
[43] The trial judge referred in her reasons to the evidence of Ms. L.S. that she told Mr. Normand that T.P. was 11 years old, sometime in August. The trial judge observed, correctly in my view, that “Without evidence as to the exact date in August, it cannot be said that this occurred before or after the kiss in the video”. Based on the same reasoning, it would then seem to follow that if Mr. Normand was told “somewhere in August”, by Ms. L.S. that T.P. liked him, it could not be said that this occurred before or after the kiss in the video. In that event, there would be no basis for the trial judge’s decision that the interaction was of a sexual nature.
[44] The appeal is allowed and the conviction is set aside. A new trial before another judge is ordered, subject to the discretion of the Crown as to whether it wishes to proceed further.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: June 25, 2014
COURT FILE NO.: CR-13-32-AP
DATE: 2014-06-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and –
Shayne Normand,
Appellant
REASONS FOR JUDGMENT ON APPEAL
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.
Shaw J.
Released: June 25, 2014
/mls