ONTARIO SUPERIOR COURT OF JUSTICE

COBOURG COURT FILE NO.: 695/11
DATE: 20140930

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

S.Z.
Applicant

B. Kelneck, for the Crown

M. Halfyard, for the Applicant

HEARD: August 28, 2014

On Appeal of the Judgment of the Honourable Mr. Justice R.L. Graydon
dated February 20, 2013

REASONS FOR DECISION

howden j.:

[1] The appellant S.Z. appeals from his convictions in the Ontario Court of Justice on charges of sexual interference and sexual assault (ss. 153 and 271, Criminal Code). He was acquitted of a charge of inviting a child to touch him for a sexual purpose (S. 152). He has completed his intermittent sentence.

[2] Counsel for the appellant advanced three grounds of appeal: (i) the verdict is unreasonable, the evidence was insufficient to establish one of the essential elements of the s.153 charge - sexual purpose - and the sexual component of the s. 271 charge; (ii) the trial judge erred in not following the WD analysis by equating disbelief of the appellant’s evidence to guilt; and (iii) the timing of the child complainant’s disclosure was used by the trial judge to ground an unreasonable finding of culpability. I will deal with the first and second grounds of appeal because they take in the third ground.

[3] The appellant and his family knew the complainant TJ, his mother B.M. and their family; both families had trailers in the same park. In fact, according to the findings of the trial judge, S.Z.’s family and B.M.’s family had become close friends when they were neighbours in Toronto. Ms. B.M. enjoyed his company; he was good with the kids and he was funny. S.Z. said he felt they had adopted him and he adopted them as part of each other’s family. This close relationship continued after Ms. B.M. and her family moved to Napanee and Mr. S.Z. was a welcome guest there. They continued their friendship at the trailer park. Mr. S.Z., 51 years at the time, helped TJ’s parents by taking the children down to the beach and back.

[4] One evening, TJ and his sister and some other children were at the beach with Mr. S.Z., when the children got into a sand fight and they got sand over them. The appellant stopped it and started the children on their way back to their trailer. He took TJ to one of the campground showers to wash him off. He got TJ’s clothing off and put him in the shower. The appellant had his own clothes off also while in the shower. Afterwards, he returned TJ to the trailer and told his mother that he had showered him. TJ was dressed only in his underwear and Mr. S.Z. had his shorts in his hand. When he told her that he had showered TJ to wash him off, she said, “Well, you know what – next time, just bring him back; I’ll wash him.” (Trial Trans., p.10.)

[5] The appellant described his relationship with TJ by saying he was a father figure to the children. He said it was normal for him to shower TJ, and help him wipe after going to the bathroom since he was very young. TJ’s mother saw their relationship as not quite as close as the appellant portrayed it, saying he would never shower TJ. Yet if that was her belief, the appellant’s news that he had showered TJ and the fact that TJ had only his underwear on brought no expression of surprise from her nor was there any effort by the appellant to cover up the fact that the appellant and TJ had showered. I accept, of course, the trial judge’s finding that Ms B.M. was a credible witness whose evidence was accepted by him; I am simply pointing out that her evidence indicates a lack of surprise or upset when she saw her child with his bathing suit off, walking with only his underwear on, and his bathing suit in Mr. S.Z.’s hands as he walked beside or close to TJ.

[6] One week later, during a game when TJ won a card with a character on it, he told his mother that the appellant had a tattoo similar to the picture on the card. On questioning, TJ pointed to his inner thigh when asked where on the appellant’s body the tattoo was. Ms. B.M. found out that the appellant had taken off TJ’s clothing in the shower. That was when she took TJ to the police station and made a complaint.

[7] At trial, TJ’s evidence in chief was given by playing the video-disc of his statement to the police. He was cross-examined at trial in person. In the video statement, TJ said that he and the appellant took off their clothes and both were in the shower naked. He said the appellant rubbed his skin very hard to get the sand off, and he pointed to his neck, upper chest, mid-chest, and lower abdomen, near the crotch as the places he rubbed him. He did not point to his penis. It was only when the officer asked him if it was his belly and then asked “what part is that and do you know what …” that TJ interrupted saying, “private”. (TJ Witness Statement, Suppl. App. Bk., pp.15-16.)

[8] The actual exchange between TJ and the officer in TJ’s out-of-court statement follows:

Q. No. What happens when you’re naked in the shower with S.Z ? Does anything happen?

A. No. After.....I want to be done.

Q. We’re just about done. But it’s important that you tell me what happens when you’re in the shower with S.Z.

A. I forget.

Q. No, you don’t you silly monkey.

A. I do.

Q. No.

A. I forget.

Q. Does S.Z have anything funny on him that you see when…when he’s naked?

A. He has a tattoo.

Q. He does?

A. Do you know Pokemon?

Q. The little yellow guy?

A. No. No. Do you know the guy with the big guy?

Q. Yeah.

(Discussion of the Pokemon game occurs here. TJ ignores the officer’s question about the colour of S.Z’s tattoo)

Q. So which one does S.Z have on his tattoo?

A. I forget.

Q. Do you know what colour he is? ‘Cause I think Pokemon was yellow but...

A. All Pokemon?

Q. Yeah. Is he not yellow?

A. His little.....I want to be done.

Q. We’re just about done, babe. Whereabouts is this tattoo on S.Z? Can you point to it?

A. Right there.

Q. Right there. So let me ask you this, buddy, okay, if you’re in the shower and you’re trying to get the chlorine off what...how do... how do you get the chlorine off in the shower?

A. S.Z like rubs it really hard...

Q. Yeah.

A. …to get it off.

Q. On you? Where does he rub you? On your belly? What part is that? Do you know what...

A. Private.

Q. On your private. So he touches your privates? Yeah. Where does he ... he gets your hair, yeah. And where else, buddy? On your legs? And on your...

A. My bum.

Q. On your bum. Does he get it all off? Yeah.

A. But then I want to be done.

Q. One more question. Can I ask you one more question?

A. M’hmmm (affirmative).

Q. When you’re in the shower and S.Z is rubbing all the chlorine off of you do you have to rub the chlorine off of him?

A. No. He rubs it off by himself. I want to go now.

Supp. App. Bk., Witness statement of
Timothy Johnson, pp. 13-14, 15-16.

[9] Under cross-examination at trial, TJ did not adopt this portion of the statement. In fact, his evidence at trial where no one pointed to the “private” part of his body in questioning him was equivocal at best:

Q. All right. Right. Now, I’m just going to ask you this question: the police officer asked you if S.Z ’s penis was waving. Remember that?

A. Uh huh.

Q. Right, and I’m going to ask you this and I’m going to ask you this really straight. His penis wasn’t hard, was it?

A. No.

Q. No. Okay, it was just dangling there, right?

A. Mm Hmm.

Q. Okay, and when he was washing the sand off his (sic) body, he - he - he brushed his hand on your bum, right?

A. Mmm - I think. I forget.

Q. Maybe he didn’t touch your bum?

A. I don’t - I forget,

Q. Okay, and he was brushing his -- the sand off your legs?

A. Uh. Huh.

Q. Okay, and do you think he brushed the sand off your penis, or maybe he didn’t even touch your penis?

A. Mmmm -- he - I think he touched it.

Q. He was brushing the sand off of it, right?

A. Uh, huh.

Q. And because you had to get all that sand off?

A. Mmm. Hmm.

Q. Okay, and then, when it was all finished, he took you to your mom’s place, right?

A. Uh, huh.

Q. Yup, and everything was just fine?

A. Uh, huh.

[10] In the short re-examination, there was no further question asked of TJ about this time in the shower.

[11] Counsel for the appellant, Mr. Halfyard, submitted that the verdict was unreasonable because the Crown, the s.271 charge being one of general intent, had to prove a touching that was in a sexual manner and, in the case of the sexual interference charge, that it was for a sexual purpose. Touching the boy’s body to wash off sand is not necessarily sexual in nature or purpose. To prove the charges, evidence could not be equivocal about this aspect. Mr. Halfyard submits that it is the appellate court’s responsibility to review, and to a limited extent, reweigh the evidence where the issue is whether a reasonable verdict is arrived at, and bring to bear the weight of its judicial experience to decide the question. R. v. Yebes (1987), 1987 17 (SCC), 36 C.C.C. (3d) 417 (S.C.C.); R. v. Biniaris, [2000] 1 S.C.R. 351.

[12] Mr. Halfyard further submitted that the trial judge was wrong in law in applying the W.D. analysis. He argues that the trial judge concluded that the appellant had lied but he then went further and made a positive finding that the fact he lied supports an inference of guilt. In doing so, he failed to follow the W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742, apt. 757-8 analysis required where there is a fundamental conflict between the appellant’s evidence and that of the Crown. Absent acceptance of, or a reasonable doubt raised by the accused’s evidence, the W.D. analysis requires the court must find whether, on the evidence the trier of fact does accept the charge is proven beyond a reasonable doubt. Without some independent evidence of concoction by the accused, a finding that the accused lied cannot form the ground for conviction.

[13] Furthermore, Mr. Halfyard submits that the finding of the trial judge arising from the timing of the disclosure by TJ of the tattoo was unreasonable. This point is subsumed in the following analysis.

[14] On behalf of the prosecution, Mr. Kelneck countered that there was ample evidence on which to ground the findings of guilt, including the following incidents and that, in the end, the trial judge reasoned correctly. He cited the following in particular:

• because, at some time before August 15, 2011, the mother removed TJ from a shower he had entered where his father was washing and showed surprise at TJ being there, Mr. S.Z. should have been aware that TJ’s parents considered it inappropriate for TJ to be in a shower with adult males; therefore it was relevant to the issue of S.Z.’s act of showering in the nude and whether it was done for a sexual purpose.

• in contrast to the appellant’s evidence that TJ wanted to be in the shower with him, that in the last year, the appellant said he started locking the door when he was at TJ’s home so TJ would not come running in; the Crown cited this as evidence of consciousness of guilt and inconsistent with the appellant’s suggestion that he could have believed it to be appropriate to scrub the boy’s penis.

• the appellant’s choice to take TJ to the showers rather than washing off the sand in the lake and his omission to similarly wash TJ’s sister could provide an inference that he acted as he did in order to create an opportunity to be alone naked with him so he could touch his penis.

[15] Mr. Kelneck also argued that the fact the appellant did not ask the sister to shower and he did not tell TJ’s mother B.M. that he had showered with TJ in the nude indicate an inference of a sexual purpose.

[16] Finally he submitted that the trial judge had reviewed the appellant’s evidence at length and gave ample reasons for his rejection of it and why he accepted Ms. B.M.’s evidence.

[17] I will deal first with the ground of appeal based on the W.D. analysis. The W.D. formulation of the required analysis where there is a major conflict between the evidence led by the Crown and that of the accused was articulated in the well-known words of Cory J.:

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously 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.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging this basic principle.

R. v. W.(D.) 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-8.

[18] In this case, the trial judge began by listing the protections afforded an accused and in the middle of the list he reminded himself that:

The principles of W.D. apply to the issue of credibility and properly distilled, direct this court to acquit if after considering the whole of the evidence a reasonable doubt exists. It is not a question of choosing which version of the evidence this court prefers.

(Reasons for Judgment, p.2.)

With respect, this is a dangerously incomplete summation of the W.D. analysis that is required.

[19] The trial judge then went through a discussion of a series of events and “lies” that caused him to reject the appellant’s evidence.

(a) The sand fight

[20] The appellant initially denied to the police that he was in the sand fight; at trial, he said he got involved in the sand fight a little bit and explained that he was a little embarrassed that as an adult he hadn’t stopped it earlier. (Reasons for Judgment, at p.5.)

[21] The trial judge found that the appellant changed his trial testimony on this point because he realized he had to have a reason for being naked in the shower with TJ. In fact, the appellant had admitted to the police in his initial interview that he had showered naked several times with TJ and that he washed him. There was no reason that he required to admit this. The trial judge cited no other evidence to support his conclusion. It is clear that the appellant’s evidence did change at trial about the sand fight as indicated.

(b) The shorts, on or off

[22] To the police initially, the appellant said that sometimes he had shorts on with TJ in the shower. At trial, the appellant agreed that he had his bathing suit off in the shower on August 15, 2011, and TJ took his off (Trial Trans., p.64). Later, under cross-examination, he said that he had on his shorts as he washed down TJ. Then they changed and the appellant took his pants off and cleaned himself off in the nude (Trial Trans., p. 93). The trial judge found that the accused changed his position to not wearing shorts in the shower, because of his prior change of testimony where he admitted he participated in a small way in the sand fight and so must have sand on him. The trial judge found that the accused lied again because he, “…could not find it within himself to tell this court the truth about touching TJ’s penis in a shower for a sexual purpose.” [Reasons for Judgment, at pp.8-9.]

[23] At this point, the trial judge has already begun to use the imputed dishonesty in the pretrial statement of the appellant to lead to the inference that he just could not admit the truth, i.e. that he touched TJ for a sexual purpose. He has already gone from a finding against the accused’s credibility to the conclusion that he was guilty of the two offences without finding any independent evidence that he had concocted the story.

(c) Rinsing in the shower

[24] The trial judge found that the appellant’s reason for not rinsing TJ off in the water - that he was mad and embarrassed that he hadn’t stopped the sand fight earlier and just wanted to end it there and leave - “rings hollow to this court”.

(d) Accidental touching

[25] The trial judge found that the appellant seemed to try too hard to explain how he might have touched TJ innocently. He found his evidence about this and the numbness problem to be mere contrivances, not the truth. He then gave reasons why he believed the complainant and his mother. He found no motive on their part to lie.

(e) Showering with TJ before August 2011

[26] Finally, the trial judge found that the appellant’s evidence that he had showered several times with TJ naked was not true because reason and common sense suggest that if that were true, the child would have pointed out the Pokemon tattoo on the appellant’s thigh much earlier than he did. No evidence was cited for this conclusion.

[27] As I see the reasoning of the trial judge in this case, there appears to be an omission of any testing examination after he rejects the appellant’s evidence. The second step in W.D. appears to have been omitted. The problem with reasoning from a rejection of an accused’s evidence to the conclusion that he is guilty of the offences charged is set out in R .v. Coutts, 1998 4212 (ON CA), [1998] O.J. No. 2555, a decision of the Ontario Court of Appeal. That line of reasoning ignores the Crown’s obligation to prove an accused person’s guilt beyond a reasonable doubt. It makes it too easy to equate disbelief to a guilty verdict. Coutts, at para. 15. It can lead to serious miscarriages of justice by confusing lack of credibility with guilt without any testing why the accused’s evidence in the trier’s view did not raise a reasonable doubt and whether the evidence that is accepted can reasonably be found to point to guilt beyond a reasonable doubt.

[28] There is no doubt that the trial judge rejected the appellant’s evidence but instead of testing his conclusion of guilt by a serious consideration of whether the appellant’s evidence raised a reasonable doubt or not, he found the accused guilty by relying on what he found to be his lies and the complainant’s out-of-court statement, where the officer pointed to his penis when TJ had not indicated he was touched there. He failed to consider TJ’s forgetfulness and vagueness over this point at trial and whether the sexual purpose of any touching was proved beyond a reasonable doubt. He failed altogether to consider the circumstances of the touching, that it occurred in a place accessible by others, not private; that any touching occurred while the appellant was rinsing or washing off the sand from his body; and that he touched other parts of the complainant’s body to do that; that there was no threat or advice to TJ to be quiet about what happened; the appellant made no effort to cover up what had happened; and that there was no evidence of sexual gratification or arousal - in fact, the opposite.

[29] In conducting his deliberations in this way, the trial judge erred in law in two ways: he failed to carry out the three steps of the W.D. analysis regarding all essential elements of the charges, in particular, the sexual element and he reasoned from his disbelief of the appellant’s evidence that he was guilty, without any independent evidence of concoction.

[30] In my view, the trial judge erred in law in failing to follow the analysis in R. v. W.D. regarding all the essential elements of the two charges of which the appellant was convicted and he conflated disbelief of the appellant’s evidence with guilt, where there is no independent evidence of concoction. Additionally, the verdict is unreasonable in that the evidence of the sexual element in any touching is insufficient if not totally absent. As Mr. Halfyard stated in his factum, the issue in this trial was not whether it was appropriate behaviour for the appellant to shower naked with the young complainant or whether his behaviour was odd or suspicious. Conduct that is the subject of the criminal law must possess a degree of moral blameworthiness; in this case a touching with sexual meaning or for a sexual purpose – it is not conduct that is simply eccentric or socially unacceptable, nor is it proven by disbelief of an accused person’s evidence. In this case, the verdict relies on the latter, not on the actual case led by the Crown, as proving all the essential elements of the charges beyond a reasonable doubt. With respect to the trial judge, I see this verdict as unsafe and unreasonable and one at which a jury, properly instructed, would not have arrived.

[31] For these reasons, the appeal is allowed, the verdict is set aside, the convictions are vacated, and a verdict of not guilty is entered on each.

HOWDEN J.

Released: September 30, 2014