ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA (P) 203/13
DATE: 2014 08 11
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. C. Vanden Broek for the Crown
Appellant
- and -
PEEYUSH BHARDWAJ
Ms. M. Savard for the Respondent
Respondent
HEARD: February 18, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of the
Honourable Justice G.S. Gage dated March 4, 2013]
MacKenzie, J.
[1] The Crown appeals the acquittal of the respondent on a charge of sexual assault tried before Justice G.S. Gage on March 4, 2013. The charge of sexual assault arises from events occurring between the respondent and one N.F. at the basement apartment residence of the latter in the evening of January 16, 2012.
[2] The evidence at trial comprised the testimony of the complainant, the testimony of the respondent and a statement made by the respondent and a recorded statement made by the respondent to the police.
[3] The grounds of appeal are that the trial judge erred in law in that:
he found the respondent had not committed a sexual assault;
he failed to consider the evidence of the complainant along with other evidence called at trial; and
he failed to provide sufficient reasons for his decision.
[4] At the outset of his Reasons for Judgment (Reasons), the trial judge indicated the issue before him as far as the evidence which would demonstrate satisfactory proof of guilt revolved around the credibility of the two participants and engaged the principles and analysis set out in R. v. W.(D.) (1991) 1991 93 (SCC), 63 C.C.C. (3d) 397 (SCC), hereinafter W.(D.) by the Supreme Court of Canada: (see 3rd unnumbered paragraph, Reasons). Some confusion has arisen subsequently in the Reasons wherein the trial judge makes the following statement after his review of the evidence:
The first suggested step in the W.D. [sic] analysis is to examine the evidence of the complainant to determine if her evidence will sustain the finding of guilt beyond a reasonable doubt: (emphasis added. See p. 13 of the Reasons, 4th un-numbered paragraph).
[5] I regard this statement being part of an otherwise coherent oral judgment as being inconsequential in terms of constituting an error in law, for the following reasons.
[6] When the trial judge’s analysis of the evidence of both the respondent and the complainant is considered as a whole, his verdict of acquittal was based on the second branch of W.D. He rejected the complainant’s evidence as being at best unreliable and possibly untruthful and that his rejection of her evidence is sufficient to have an appellate court defer to his findings and credibility. The fact that he did not refer to the exchange of texting between the parties, some of which had been deleted or otherwise made unavailable by the complainant to the police, does not vitiate his findings. As well, the trial judge accepted the respondent’s evidence, particularly in relation to his rationalizing certain comments made in his recorded statement to the police, as capable of being true indicates his analysis was proceeding in accordance with the second branch of W.D. in arriving at his verdict of acquittal.
[7] I accept the submission of the respondent in his Factum that the trial judge’s reasons for acquittal were sufficient on the basis that “reasons for acquittal will often be less detailed than reasons for conviction as the trial judge does not have to go through the elements of the offence for all three steps of W.D. All he needed to do was to identify and explain the basis for reasonable doubt”. (see Respondent’s Factum, para. 31; R. v. R.E.M. 2008 SCC 51, paras. 15-16, and other cases cited).
[8] In sum, I am not persuaded the appellant has established that any of the alleged inadequacies in the Reasons for Judgment constitute a legal and reversible error in the case.
[9] In the result, the appeal is dismissed and the verdict of acquittal is upheld.
MacKenzie J
DATE: August 11, 2014
COURT FILE NO.: SCA (P) 203/13
DATE: 2014 08 11
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
PEEYUSH BHARDWAJ
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice G.S. Gage dated March 4, 2013]
MACKENZIE J
DATE: August 11, 2014