ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11/1428
DATE: 2014/12/11
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
CHRISTOPHER ROBERT HORNER
Defendant/Appellant
Teresa James, for the Crown/Respondent
Neil F. Weinstein, for the Defendant/Appellant
HEARD: November 13, 2014
On appeal from the decision of Justice Grant Radley-Walters, Ontario Court of Justice, at Pembroke, dated, June 18, 2013.
REASONS FOR JUDGMENT
C. Robertson, J.
Introduction
[1] The Defendant/Appellant appeals his conviction for sexual assault, contrary to s. 271 of the Criminal Code, sexual interference, contrary to s. 151(a) of the Criminal Code, sexual touching, contrary to s. 152 of the Criminal Code, and committing an indecent act, contrary to s. 173(2) of the Criminal Code. He requests an Order quashing his conviction and requests a new trial.
[2] His grounds of appeal are that the trial judge incorrectly applied R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742 and failed to apply the reasonable doubt standard to his evidence.
[3] Specifically, he submits “when the learned trial judge instructed himself as to the principle of reasonable doubt as per W(D), he failed to consider whether, even if the Appellant’s version of events was disbelieved, it was still capable of raising a reasonable doubt. Further, the Appellant submits that the trial judge erred in law when he instructed himself on the principle of reasonable doubt and consequently misapplied the burden of proof.”
Standard of review[^1]
[4] Counsel had no disagreement about the standard of review on this appeal. The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result.[^2] The application of a legal standard to the facts of a case is a question of law and is subject to review for correctness.[^3] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion.[^4] The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact.[^5]
Trial Judge’s Decision
[5] Paragraphs 22-25 of the trial Judge’s decision regarding credibility are relevant to this appeal:
This is a case in which the accused has elected to testify in his defence. The Supreme Court of Canada in the case of R .v. W.D. has provided guidance to trial judges in cases such as the present one before the court on the issue of credibility.
That case stands for the proposition that if an accused person testifies and that testimony raises a defence and the trial judge accepts that testimony then the trial judge must acquit the accused.
The second stage of the analysis relates to the scenario where the trial judge rejects the testimony of the accused. In those cases, the Crown still has a positive obligation to prove beyond a reasonable doubt all of the essential elements of the charge against the accused. If the Crown fails in this task, then the trial judge must again acquit the accused.
It is only in the case where the Crown has proven beyond a reasonable doubt, all of the essential elements of the charge against the accused that the trial judge may convict the accused.
[6] The Defendant testified at the trial. At paras 29 and 30 of his reasons, the trial judge detailed why he rejected the evidence of the Defendant and addressed the credibility of the complainant. He considered all of the evidence. He gave specific evidentiary examples when considering credibility. He specifically referenced W.(D.):
With respect to the second stage of the analysis in the case of R. v. W.D., I acknowledge that there were some frailties in the evidence of D.S….
I am satisfied beyond a reasonable doubt that D.S. engaged in sexual intercourse, fellatio, cunnilingus, and “69” with the accused in the summer of 2011 in his apartment in Arnprior.
The Position of the Defendant/Appellant
[7] Disbelieving the evidence of the accused is not enough to sustain a conviction. The Defendant/Appellant contends that the trial judge’s use of the phrase “raises a defence” shifted the burden of proof to the accused and erodes the faith in the trial judge’s reasons on this core principle. In essence, he claims the trial judge, although aware of the second step of W.(D.), skipped it. The Defendant/Appellant relies on recent case law distinguishing a finding of credibility and proof beyond a reasonable doubt. A reasonable doubt can still survive a finding that the complainant is credible.[^6]
The Position of the Crown
[8] The Crown takes the position that the trial judge on the whole had clearly followed the required reasoning. There is no requirement that a trial judge recite the exact words of W.(D.), and that it is a reasonable inference from his reasons that he considered reasonable doubt at every stage of his analysis. The Crown acknowledges that the essence of the test is that the prosecution carries the burden of proof - a burden that requires proof beyond a reasonable doubt of each essential element of the offence. The prosecution agrees it has not met its burden just because the accused's explanation is not believed. The Crown also submits that the conviction on its own is an inference that the Defendant’s denial of the charges failed to raise a reasonable doubt.
[9] The Crown submits the import of the W.(D). analysis does not lie in the expression of the formula, but rather in the application of the principles. The critical question is whether the reasons, viewed as a whole, demonstrate the trial judge’s grasp of the nature of the relationship between reasonable doubt and the assessment of credibility.[^7]
Analysis
[10] For the following reasons the appeal is dismissed. The appellant has not established the trial judge erred in applying the law to the facts of this case. The concerning phrases gain context when read as part of the entire reasons. W.(D.) relates the Crown’s burden of proof to credibility. I am satisfied the trial judge took into consideration the proper interpretation of W.(D.) when reaching his decision.
[11] He rendered articulate reasons, not instructions. The phrase “raise a defense”, when put in context did not shift an onus to the accused. At best it was a language issue but not a legal error. Paragraph 24 of his reasons clearly connects credibility with the burden of proof as the SCC expects. He then went on to reiterate that “If the Crown fails in this task, then the trial judge must again acquit the accused.”
[12] He clearly demonstrated a comprehension and application of the second step in the W.(D.) formula.
[13] His reasons show the trial judge knew the law and applied it correctly. He specifically addressed the standard of proof at paragraph 30:
“I am satisfied beyond a reasonable doubt that D.S. engaged in sexual intercourse, fellatio, cunnilingus, and “69” with the accused in the summer of 2011 in his apartment in Arnprior.”
[14] I do not accept the Defendant/Appellant’s argument that the trial judge applied the balance of probabilities standard rather than the reasonable doubt standard in his analysis of the Defendant’s evidence.
[15] Having found the trial judge was correct, it is not necessary for me to consider the curative proviso.[^8]
Conclusion
[16] The appeal is dismissed.
Honourable Justice Cheryl Robertson
Released: December 11, 2014
COURT FILE NO.: 11/1428
DATE: 2014/12/11
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
CHRISTOPHER ROBERT HORNER
Defendant/Appellant
REASONS FOR JUDGMENT
Honourable Justice Cheryl Robertson
Released: December 11, 2014
[^1]: R v. Hassard, 2014 ONSC 5454, para 3.
[^2]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[^3]: R v Shepherd, 2009 SCC 35, para 20.
[^4]: R v Burns, 1994 127 (SCC), [1994] S.C.J. No. 30 (SCC).
[^5]: R. v. Gagnon, 2006 SCC 17 at paragraphs 10 and 19 (SCC).
[^6]: R. v. W.(J.), 2014 ONCA 322 at para. 26.
[^7]: R v Phan, 2013 ONCA 787 at para 24.
[^8]: R. v. Khan, 2001 SCC 86 paragraph 31.