COURT FILE NO.: 14-0284
DATE: 2014 11 19
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. S. Hamilton, for the Respondent
Respondent
- and -
L.F.O.
D. Doucette, for the Appellant
Appellant
HEARD: November 13, 2014 at Guelph
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast or transmitted in any way.
REASONS FOR JUDGMENT
[on appeal from conviction by
Douglas J. on September 23, 2013]
HILL J.
INTRODUCTION
[1] After a trial, L.F.O. was convicted of sexual assault, assault and mischief to private property of a value under $5,000.00. He was sentenced to a total of 5 months’ imprisonment for these crimes.
[2] The appellant appeals both conviction and sentence.
[3] In challenging his convictions, the appellant submits that the trial judge: (1) misapprehended the evidence to the prejudice of the defence, and (2) reversed the burden of proof. Based upon the first ground of appeal, the appeal succeeds for the following reasons.
THE FACTUAL BACKGROUND
Sexual Assault
[4] In November 2012, B.G. and the appellant resided together in a 2-bedroom apartment in Guelph. They had first dated in January of that year. Both worked and split the rent expense.
[5] The complainant, B.G., testified that on a date between November 8 and 15, the appellant arrived home after 9:30 p.m. He smelled of alcohol. His explanation was that a female co-worker “bought a bottle of Baileys” which they had in their coffee. The appellant seemed impressed with the fun he had had and stated that they were “going to drink again at work”.
[6] Unhappy with what had transpired, the complainant went to bed.
[7] B.G. informed the trial judge that when the appellant came home the next day, at about 9:45 p.m., again smelling of alcohol, the appellant put 10 bottles of beer in the fridge saying that he had purchased a case of 24. He said that he had been drinking all day.
[8] B.G. was upset. She did not like that the appellant “was drinking with another girl”. She said that bickering and argument resulted. The appellant was drinking as they spoke. To B.G.’s recall, the appellant became angry. She decided to go to bed in their bedroom wearing her pyjama pants, a top and sweater.
[9] The complainant testified in-chief that when the appellant came into the bedroom wearing his underwear and a t-shirt the following occurred:
Well, he came in and he wanted – he wanted to have sex.
He laid on top of me and he was trying to – I was pretending to be asleep and he was trying to wake me up. And he was tapping my cheek and he was trying to be sweet.
He was trying to be sweet. Nice. But then I wasn’t responding so he just – he started shaking me harder. And I was struggling against him and I was trying to get him off of me. And we were struggling for quite a while and I started crying. And then he got up, and he was angry and he left.
Yeah, he was – he was shaking me. He was – he had his body on top of me and he was trying to turn me over and he was shaking me. And it was just getting – I was – I was able to kind of keep him off of me…
I think he threw the covers off.
He had – he was laying completely on top of me…
And he was shaking me around and he was trying to slap me awake.
He was grabbing my shoulders and he was trying to flip me over.
And he slapped me in the face really hard.
Yeah, I had to push him off of me, and he got upset and he left the room.
[10] The appellant testified that in mid-November 2012 there were verbal arguments between him and B.G. relating to work stresses and payment of the rent.
[11] The appellant recalled an evening when there was an argument about him drinking at work with a female co-worker. He was not intoxicated. In describing what he disclosed to B.G., the appellant said this at trial:
A. I had drinken Tim Hortons with one – with one drink of Baileys poured into it over the entire night.
Q. She’s correct about that. That you were drinking Baileys and coffee with your co-worker, right?
A. Yes.
[12] To him, B.G. seemed really upset as they argued for a couple of minutes in the apartment kitchen. He was drinking a beer at the time.
[13] The appellant testified that some nights he slept in the second bedroom/office as he had a better sleep when sleeping alone. On his evidence, after a dispute in the kitchen in which he picked up a knife, described more particularly below at paras. 21-24, the complainant went to their bedroom. He followed her to keep talking. B.G. “wasn’t really wanting to have a conversation” with him.
[14] On the appellant’s in-chief evidence, he touched B.G. :
A. So, I kind of touched her lightly on the shoulders.
A. Just kind of trying to get her attention. Nothing sexual. Just – calm her – just like a – a regular tap…
…on the shoulder, you know, kind of touch her – like jiggle her shoulders a bit and then I left the room.
She didn’t want to talk with me so I gave her space and I left the room.
…there was no such thing as a struggle. There was, like I said, me touching her, her touching me, lightly. That – that’s it.
[15] In cross-examination, the appellant further explained his efforts to speak to B.G. who was on the bed but not under the covers:
Well, she – she was upset with me drinking with this co-worker at work and she – I felt like she was made at me. She wasn’t – she just didn’t want to talk to me, so I wanted – I wanted to talk with her and, you know, see – tell – let her know what happened.
I wouldn’t say I was shaking. I – I touched her shoulders, yes.
I wanted to find out why she was mad at me. Why she wasn’t talking with me. I wanted to continue our conversation.
A. I touched her shoulders.
Q. She was already in bed, under the covers, right?
A. She wasn’t under the covers. She was lying in bed, yeah.
Q. Well, you go on top of her on the bed, right?
A. Kind of, I didn’t like – I was – I wasn’t like pinning her down. I was – she was lying down and I kneeled down and touched her shoulders beside her.
Q. But you’re on top of her, right, on the bed?
A. I wasn’t on top of her, no.
Q. You were on the bed?
A. Yeah, I was on the bed.
[16] B.G. described the appellant’s return to the bedroom as a repetition of his earlier conduct, with the appellant on top of her slapping her face. She was crying and repeatedly “telling him not to do it; to leave me alone”. But he persisted and, when he attempted to pull her pyjama pants down, she pulled them back up. She continued to say, “No”, “Leave me alone”.
[17] The appellant agreed that he returned to the bedroom a second time to try to speak to B.G. again. She was under the covers:
I seen her one more time. Just – it was in the room, I think. I went back in the room, tried to talk with her again. She just said she wanted to go to bed for the night. So I just left her alone.
[18] The appellant testified that he did not return to the bedroom a third time. He then left B.G. alone for “the whole night”. He informed the trial court that he at no time attempted to pull B.G.’s clothes off. He did not slap her or pin her down. There were no physical struggles.
[19] In cross-examination, the appellant acknowledged that it became apparent that the complainant did not want any “contact” or “conversation” with him. B.G. was trying to ignore him which he considered unusual. She did not say words to the effect of “don’t come near me”.
[20] The complainant recalled the appellant returning to the bedroom a third time. She was trying to sleep. He repeated his earlier conduct. He became angry and left the bedroom.
[21] When the complainant went to the kitchen to get some water, an unusual event occurred described in her evidence in this way:
A. …and he was in the kitchen. And he did – he did something extremely creepy. He picked up a knife and he pointed it at me and he smiled, and I asked him what the hell he was doing and he just threw it down on the counter and said that I’m kidding.
Q. And how did he hold the knife, can you show us?
A. He just – he – he held it like this.
THE COURT: In his fist, towards…
A. In his fist, towards me.
THE COURT: The blade was pointing towards you?
A. Yes.
CROWN COUNSEL: Q. And how far away were you when he did that?
A. I was probably like three or four feet away from him.
Q. Did he say anything when he did that?
A. No, he just smiled.
Q. Smiled. Had he ever done anything like – like that before?
A. No.
Q. No. Did you say anything to him?
A. I asked him what the hell he was doing and right away he just threw it down on the counter and laughed and said he was joking.
[22] In his evidence in-chief, the appellant described his conduct with the kitchen knife in this way:
A. That occurred – that occurred as, I don’t want to say a joke, it was something that I – that I did in the moment, not as a threat or anything like that. I was – I mean I don’t have a reason why I did it. I was kind of in this situation, I wasn’t threatening her. I wasn’t in any way attacking her, I just kind of made – made a poor decision to do that…
Q. Right.
A. And I told her right away, afterwards, that I was not, like you know, I was joking around.
Q. And what led up to that?
A. Just us arguing.
[23] In cross-examination, the appellant described the incident in this way:
Q. How was this knife incident going to resolve things, tell me about you pointing the knife at her, that you called a joke; it was a kitchen knife, right?
A. Yes.
Q. You were holding that, by the handle, with the blade pointing towards her, correct?
A. No, not – not specifically pointing towards her. It was not in any way point…
Q. How would that have been a joke; to somebody that was trying to ask you to leave them alone before that?
A. Well, it was a badly thought-out joke. That’s for sure. Not something I’m proud of, I realized how stupid it was after I did it. That’s why I told her I was only joking.
Q. That would have been threatening, wouldn’t it, to her?
A. No, I wasn’t threatening, in any way.
Q. Holding a knife…
A. She came…
Q. …towards her?
A. It wasn’t – it’s – it wasn’t towards her. All I did was simply pick up a knife.
Q. What did she say to you when – when you’re holding the knife?
A. I don’t remember the exact words, I think she said, like, you’re scaring me, what are you – I don’t know, what are you doing.
[24] The complainant testified that the appellant’s actions frightened her. She went to the livingroom couch/futon to sleep rather than returning to the bedroom. She was crying.
[25] According to B.G., as she lay on her stomach on the couch/futon, the appellant sat on her upper back and shoulders and pressed his exposed and erect penis against her face close to her mouth. She struggled, continued to cry and said, “No”.
[26] At trial, the appellant denied putting his penis in B.G.’s face. There was no physical struggle as described by the complainant. He agreed that B.G. wanted to sleep in the livingroom because she was mad at him for drinking at work and did not want to sleep in the same room with him.
[27] B.G. recalled that she remained to sleep in the livingroom while the appellant went to sleep in their bedroom.
[28] Questioned at trial as to whether any discussion took place the next morning, B.G. testified:
Q. Were there – was there any discussion of what happened with him the following morning?
A. Yes. Yeah, he said that I was lying. That that never happened. It was just immediate denial. He told me not to tell anybody because it wasn’t true.
[29] At this point, the complainant took no steps to report what had occurred because the appellant “was really, really sweet the next morning”. He was “nice” by word and gesture. He hugged her. She was confused.
[30] The appellant testified that he and B.G. talked “about everything in the morning”. He was “pretty sweet” with the complainant. He wanted to talk about what had happened at work the day before and to say he was sorry “about the knife” although he believed B.G. understood “it was a joke”.
[31] In her trial testimony, B.G. stated that after the alleged assaults, although sexual relations occurred with the appellant, he slept on a mattress in the second bedroom/office. This bothered and upset her – she had hoped for more from their relationship. It seemed that, nightly, there were problems and issues.
The Alleged Assault
[32] B.G. testified that she was not at work on Wednesday, November 28. She expected the appellant to be at work from 1:00 to 9:30 p.m.
[33] At about 4:30 p.m., B.G. used a bobbypin to pick the lock of a locked filing cabinet in the second bedroom used as an office by the appellant. She “was looking to see what he was hiding”. She was not in the receptacle very long when the appellant arrived home unexpectedly. B.G. testified as to what next happened:
A. I wasn’t in there for very long before he came home, and I ran out into the hallway and he came in and he was mad at me. And he slapped me. And he pushed me up against the closet doors.
Q. Okay, where did he slap you?
A. Across the face.
Q. Okay.
A. And then he was pacing around the room and he slapped me again.
Q. Again, where was the slap?
A. Across the face.
Q. Across the face. And we’re talking an open-handed slap?
A. Yes.
Q. Okay, and was there very much force behind that slap or…
A. Not – not enough to leave any marks or anything. It was just – at – that was just the point that I knew that it was over. I just – I couldn’t do it anymore. It was more than the physical abuse, it was the emotional abuse and he – he made me feel worthless all the time.
A. He was so – he was so mad. He was mad at me and, at the time, I thought that he was right to be mad at me and I wasn’t blocking his hits because I thought that I had done something really bad.
[34] The appellant testified that on November 28 he went home for his lunch break. He discovered B.G. going through his things behind his back. There was a “confrontation” of about five minutes’ duration but it was not physical except in this context:
A. …the only actual touching would have been me, like maybe holding her off of me – holding her off of me, or lightly, you know, just like touching her. There was no physical – there was no physical touching or anything.
A. I was – I felt like my trust had been betrayed.
Q. And did you physically slap her as a result of that?
A. No.
Q. Did you grab her?
A. I didn’t grab her, no.
Q. Did you shake her?
A. No.
[35] On the appellant’s evidence, he announced that he wanted to end their relationship as he could not trust B.G. any longer. He believed that B.G. felt differently about terminating the relationship.
[36] B.G. remained uncertain as to whether she wished to continue in the relationship. She believed the appellant felt the same way. She could not alone afford to pay the rent for the apartment on the remaining eight months of the lease.
[37] In her earlier evidence, B.G. agreed that as with the earlier alleged sexual assault, she did not report the November 28th incident to her sister who resided in an apartment in the same building.
[38] By way of a s. 655 Criminal Code admission, it was agreed that, on November 28, B.G.’s mother received a phonecall from B.G. reporting that the appellant had struck her and expressing a desire to come to her mother’s home. B.G. was “sobbing” on the phone.
The Mischief Allegation
[39] The complainant informed the trial court that when she returned to the apartment on November 29, 2012, there was a hole in the apartment wall, the artwork she had collected over the years had been ripped down and damaged and her TV was broken. The appellant was present. Although angry with the appellant, she remained calm not wanting “to start anything”. She discussed getting rent money from the appellant. In addition:
That second day when I went back, L.F.O. was asking me – he wanted to continue the relationship. He told me – he looked at me and said that, oh you’ll be back. And he said – he just – he said I know you’re going to come crawling back, and just awful things. And he said that he didn’t want it to be over and then he said – I said it was over and he said – then he started to decide that it was a good thing that it was over and it was – it was – it was a confused mess. We were both confused.
[40] The appellant recalled seeing B.G. on November 29 when she came to remove some of her belongings. She was pretty calm. She was moving out to her parents’ home. He recalled that a wall was damaged “[s]lightly” – “a little mark”. He had not damaged her artwork or TV. He believes she took the art with her. According to the appellant, the only damaged property was his own:
A. Honestly, I might have damaged, like, I didn’t really break anything. I might have thrown some of my own stuff, like, around the apartment. That’s it.
Q. Damaged the wall?
A. Slightly. I think there was a – a little scratch on the wall.
Q. And that was as a result of you punching it, or hitting it?
A. That would have been my own stuff that I threw around. Like, follow – a couple days after, like not….
Q. She went in, and you were upset. You start damaging the apartment, right?
A. I just – I – all I did was toss around some of my own belongings. There was no, not really any damage done to the apartment.
Report to the Police
[41] B.G. testified that she telephoned the appellant’s father’s house. She wanted to let the appellant’s family know what was going on as she knew that the appellant “was going through a really rough time”. She spoke to the appellant’s stepmother. In discussion with her, it was suggested to the complainant that she “should report it”. In cross-examination, the complainant denied that she reported to the police because she was angry about the termination of her relationship with the appellant.
TRIAL COURT’S REASONS FOR JUDGMENT
[42] At trial, the defence submitted that credibility determinations within the W.D. burden-of-proof guidelines were the core of the case. B.G.’s mother’s evidence about her daughter sobbing on the November 28 date was minimally corroborative and only relating to that date. Included in trial counsel’s submissions was reference to the appellant’s testimony itself raising a reasonable doubt.
[43] Crown counsel at trial noted a number of corresponding points in the principal witnesses’ accounts. It was submitted that in applying burden-of-proof principles the trial court ought to find that “some of the explanations that had been provided by Mr. L.F.O.” were “questionable” and “bizarre”.
[44] Immediately following the submissions of counsel, the trial judge gave oral reasons finding the appellant guilty as charged. Throughout the Reasons for Judgment approved by the trial judge, comprising 12 pages of transcript, there are what appear to be indented Q. and A. quotes from the evidence. Counsel on appeal were in agreement that prior to delivering the oral reasons the court had no transcript of the trial evidence and, in terms of the source potentially being an audit of the DRD recording of the testimony, the quotes are not verbatim. Counsel described the apparent quotes as the trial judge’s style of summarizing witness evidence from his bench-book notes.
[45] At the outset of the Reasons for Judgment in this 2-witness trial, the trial judge correctly reviewed overarching principles such as the presumption of innocence and the burden of proof including reference to W.D. In recognizing that the court had heard differing accounts from the principal witnesses, the court stated:
You see, a trial court watches people and Mr. Stanley is absolutely right: I do not know L.F.O. from a hole in the ground, as my grandfather used to say. I do not know him. I have never seen him as far as I know. I do not recognize him. This is the first time I have ever heard him speak. So, Mr. Stanley is correct. I do not know whether he has any tells when he lies; anything that other people can look and say, oh, I know he is lying because I know him; I know when he is telling the truth and I know when he is lying.
So, here is what the courts do with the people who, most of the time, they have never heard testify before. You look for things that people who are not telling the truth often do. And what I have found over 40 years in the business and what the case law also has helped me with is that people who are not telling the truth will often concede a little bit of the truth. They will deny the event but they will concede a little bit of it. And I think by doing that, people who are not telling the truth hope that they will be given the benefit of the doubt and we will move on to something else.
Also what I found is that when you look at a person’s evidence and you say, that just does not make sense, there is – it does not stack up with what common sense tells me. I can not quite picture why he would do that or why he would say that or why she would act that way. Now, that is not determinative because human beings do things that we have no explanation for. But when you look at the version and you say, that just does not make sense, that is one way you can tell that a person is not telling the truth.
Another way is when they contradict themselves. They will say one thing in examination in-chief and say a completely different thing in cross-examination. They have contradicted themselves. Well, people who are telling the truth do not normally do that.
[46] The trial judge next expressed his conclusion that B.G. was an honest and reliable witness who testified without exaggeration or embellishment. She withstood cross-examination. There were no inconsistencies in her testimony. B.G. was of good character without animus toward the appellant. Concern about carrying the apartment lease was not a reason for fabrication. The delayed reporting or termination of the relationship did not impact upon the complainant’s credibility.
[47] Over a further four pages of transcript, the trial judge set out his assessment of the appellant’s credibility. That assessment was negative. The assessment, dealing with approximately seven sub-topics, was “bookended” by these passages:
Here are some of the things that he said that tell me he is lying.
And so, those are the kinds of things that when I watch him and when I hear him, I can conclude very, very easily that he is not telling the truth.
[48] Within the bookends, the trial court itemized factors which caused the court to disbelieve the appellant’s evidence (“I find him an untruthful witness”) and to find that it failed to raise a reasonable doubt as to criminal liability:
the knife incident
(1) the appellant could “not explain [the]…incident with the knife…on his version of the event” and he did “not admit pointing it at her at first” but admitted “a little bit” and later on said he “did not point it specifically towards” B.G.
occupancy of the bedroom
(2) the appellant’s evidence as to where he and B.G. slept that night including that B.G. was the “one who had to get out [of the bedroom] and go onto the couch”
the light touching
(3) the improbability that the appellant touched B.G. lightly on the shoulder on the date she maintained she was sexually assaulted
becoming physical with the complainant
(4) in his in-chief evidence, the appellant admitted lightly holding the complainant off of him on November 28, 2012, but then in cross-examination admitted touching B.G.’s shoulders and kind of getting on top of her
whether appellant told to leave bedroom
(5) the inconsistency in the appellant’s testimony relating to whether B.G. told him to leave her alone:
He admits – this is what the Crown put to him:
Q. Didn’t she tell you to leave her alone and not touch her?
He says:
A. Yes.
Q. Well then, why did you go back to her room?
He says:
I went back to see how she was doing. I went back to see if she was okay.
Does that make sense?
Then he says right after that in cross-examination:
She never said leave me alone.
Well, he had just a few minutes before that admitted that she had said leave me alone and now he is saying she never said leave me alone.
the number of drinks appellant consumed
(6) inconsistency in the appellant’s evidence as to whether he had one or more drinks of liquor at the office:
And then I noticed he said something. I do not know whether anybody else noticed it:
She was upset at me for drinking Baileys [plural] at work.
He had already just said that he only had one Bailey.
damaging property
(7) the likelihood that the appellant damaged B.G.’s property as she alleged arising from the fact “that he was angrily throwing his own stuff around”.
ANALYSIS
General Principles
[49] Where the reasons for judgment of a trial court are found to contain a misapprehension of evidence there may be reversible error. In R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 19, 21, the court stated:
This Court has said a material misapprehension of the evidence may justify appellate intervention. In R. v. Lohrer, [2004] 3 S.C.R. 732, 2004 SCC 80, at para. 1, Binnie J. cited, with approval, the following analysis by Doherty J.A. in Morrissey:
Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction [page17] is not based exclusively on the evidence and is not a "true" verdict... If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [Emphasis added; p. 221.]
As Binnie J. pointed out, this represents a stringent standard, and the misapprehension must "play an essential part not just in the narrative of the judgment but 'in the reasoning process resulting in a conviction'" (para. 2).
… I am keenly aware that a trial judge occupies a singular perch in assessing credibility (R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 131; R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at paras. 20-21). However, based on the record in this case, it is clear that the trial judge's bases for disbelieving C.L.Y. rested on misapprehensions of his evidence and played a critical role in the convictions, rendering them insupportable.
See also R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 30-32.
[50] A “misapprehension” of evidence may relate (1) to a failure to consider evidence relevant to a material issue or (2) a mistake as to the substance of the evidence or (3) a failure to give proper effect to evidence: R. v. Morrisey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 538, 540 (folld in R. v. Fournel, 2014 ONCA 305, at para. 38; R. v. Alboukhari, 2013 ONCA 581, at para. 26).
[51] At times, an appellate submission that a court misapprehended trial evidence is easily made but without substance. In this regard:
(1) as a serious ground of appeal, the threshold to be met engages a “stringent” standard (Lohrer, at para. 2; R. v. Khan, 2014 ONCA 795, at para. 13) also described as a “demanding” standard: Fournel, at para. 38
(2) the submission cannot masquerade as an attempt to have the appellate forum “improperly substitute its own credibility assessments for those made by the trial judge”: R. v. Harris, 2014 ONCA 746, at paras. 15-17
(3) as a general rule, recognizing the advantage that a trial judge enjoys of seeing and hearing the witnesses, a misapprehension-of-evidence argument cannot simply invite different interpretations of the evidence or an assertion “that a trial judge has drawn different factual conclusions from evidence than those advanced by a party at trial”: Fournel, at para. 38.
[52] In summary, in order to establish reversible error on the basis of alleged misapprehension of evidence, the following guidelines govern such a review:
(1) the misapprehended evidence must be reasonably characterized as error as to the “substance of material parts” of the evidence as opposed “to the detail”: Lohrer, at paras. 1-2, 6; Khan, at para. 13
(2) and the error(s) must be shown to have been material, in the sense of essential, to the trial court’s reasoning in coming to its verdict – not a mere misstatement or inaccuracy properly viewed as peripheral or unessential: Lohrer, at paras. 2, 6, 8; Khan, at para. 13; R. v. Massey, 2013 ONCA 749, at para. 11; Alboukhari, at paras. 27-8, 30; R. v. Cloutier, 2011 ONCA 484, at para. 60
(3) in assessing the centrality of the misapprehended evidence to the reasoning-to-verdict process, a reviewing court looks to “the effect of any misapprehended evidence that directly informed the trial judge’s finding of guilt or the credibility assessment on which the guilty finding was based” (emphasis added): Alboukhari, at paras. 31, 36-9, 48 (and see C.L.Y., at para. 21; R. v. Peters, 2014 ONCA 402, at paras. 15-16; R. v. G.G. (1997), 115 C.C.C. (3d) 1 (Ont. C.A.), at p. 8.
Principles Applied to This Case
the knife incident
[53] In this impugned passage of the Reasons, where it is suggested that the appellant changed his evidence from “at first” not admitting to pointing the knife at B.G. to subsequently changing his evidence on the point, a complete and fair reading of the appellant’s trial evidence does not disclose such a shift in his testimony. The appellant’s response in cross-examination using the words “specifically pointed” was interrupted by Crown counsel. Subsequent aspects of the interrupted testimony, not referred to by the trial court, included:
It was not in any way point…
…it wasn’t towards her. All I did was simply pick up a knife.
This evidence was entirely consistent with the appellant’s in-chief evidence that he “wasn’t threatening” B.G. with the knife pointed toward her.
the light touching
[54] The trial judge discredited the appellant’s account of events in the bedroom in part by stating the improbability that “in the heat of this argument” the appellant lightly touched B.G. on the shoulder. In fact, the complainant herself testified that there was a point when the appellant was tapping her and “trying to be sweet”.
occupancy of the bedroom
[55] In stating that the evidence was that the complainant “had to get out of the bedroom and go onto the couch” the trial court misapprehended the evidence. B.G. described herself as voluntarily going to the kitchen for a glass of water. She did not testify at any point that she felt that she had to vacate the bedroom to sleep. The appellant went to the bedroom, on his evidence only twice, to talk to B.G. not to try to sleep in the bed with her and, on the appellant’s evidence, it was only after the complainant decided to sleep on the couch that he went to sleep in the bedroom as opposed to the office where he sometimes slept.
becoming physical with the complainant
[56] In setting up an apparent contradiction between light defensive touching of the complainant by the appellant, with evidence purportedly given in cross-examination of more intrusive touching, described as a point when “it gets worse”, the trial court again misapprehended the evidence. The court conflated the appellant’s evidence respecting the November 28 date with his evidence respecting the earlier date of the alleged sexual assault. There was no contradiction. As well, the indented quote by the trial judge:
A. I kind of got on top of her but I wasn’t pinning her down…
was not the appellant’s evidence. The relevant evidence was:
Q. Well, you go on top of her on the bed, right?
A. Kind of, I didn’t like – I was – I wasn’t like pinning her down. I was – she was lying down and I kneeled down and touched her shoulders beside her.
Q. But you’re on top of her, right, on the bed?
A. I wasn’t on top of her, no.
whether the appellant was told to leave the bedroom
[57] The trial judge recorded a contradiction suggesting that the appellant testified that B.G. told him to leave her alone and subsequently testified that the complainant never said such a thing. The appellant’s evidence in this regard was:
Q. She told you to leave her alone, right, don’t touch her, right?
A. Yeah.
Q. Remember those words?
A. Yeah.
Q. No. She asked you to leave and to stop touching her, right?
A. She asked me – she – all she said was, I don’t want to talk with you right now.
Q. And to leave her alone, right?
A. She never said that.
[58] The trial judge was entitled to find that there was a contradiction as he described.
number of drinks appellant consumed
[59] In recording a self-contradiction with the appellant testifying that “he only had one drink of Bailey” and then subsequently testifying to having consumed “Baileys [plural]”, the trial court misapprehended the evidence. The court did not raise this apprehended contradiction with counsel during closing submissions. The appellant testified in-chief that, “I had drinken Tim Hortons with one…drink of Baileys poured into it”. In cross-examination, the appellant gave this evidence:
Q. She’s correct about that. That you were drinking Baileys and coffee with your co-worker, right?
A. Yes.
[60] In misapprehending the relevant evidence on this point, including describing the liquor as “Bailey” without understanding that the alcohol, as described by the witnesses, is “Baileys”, the court in effect set up another straw contradiction. The subject of witness’ dishonesty about alcohol consumption was of some importance to the court as evidenced by the fact that the one example of the type of inconsistency a judge might look for in a witness’ testimony, as described in the early part of the reasons was:
If they say, for example, “I had one drink” in examination in-chief and then in cross-examination they refer to the “drinks” they had, that should not happen if a person is telling the truth. And that is just another indicator.
damaging property
[61] The trial judge’s reference to the appellant’s act of throwing property around the apartment in anger, albeit only his own, as being probatively relevant to the identity of the individual responsible for any damage found to have been occasioned to B.G.’s property, was unassailable.
[62] In conclusion, the majority of the factors directly relied upon by the trial judge, viewed by that court as material to determining the credibility of the appellant’s evidence, and in turn the substance of prong #2 of the W.D. analysis, involved serious misapprehension of the evidence. In oral argument, counsel for the Respondent was compelled to acknowledge some of the misapprehensions already described. The misapprehensions were central to the negative credibility conclusion involving Mr. L.F.O. and as such heavily influenced, and factored into, the ultimate verdicts.
[63] Although the verdicts may not be unreasonable in terms of the Beaudry test ([2007] 1 S.C.R. 1990) addressing the reasonableness of fact-finding and inferences drawn, the trial court’s Lohrer errors denied the appellant a true verdict based upon the actual evidentiary record.
CONCLUSION
[64] The appeal against conviction is allowed.
[65] The convictions for sexual assault, assault and mischief are set aside and a new trial is ordered on these charges before a differently constituted summary conviction trial court. The appellant is ordered to appear at 36 Wyndham Street S., Guelph, ON, Courtroom 2, on Friday, December 5, 2014 at 9:30 a.m., in order to set a new date for trial.
[66] After serving 41 days of his sentence, the appellant was granted judicial interim release. The parties jointly agree that the companion sentence appeal of the one (1) month consecutive sentence imposed by Douglas J. for a breach of an undertaking conviction should be allowed to the extent that that sentence is to be concurrent. So ordered.
Hill J.
DATE: November 19, 2014
COURT FILE NO.: 14-0284
DATE: 2014 11 19
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. L.F.O.
COUNSEL: S. Hamilton, for the Respondent
D. Doucette, for the Appellant
HEARD: November 13, 2014, at Guelph
REASONS FOR JUDGMENT
[on appeal from conviction by
Douglas J. on September 23, 2013]
Hill J.
DATE: November 19, 2014