R. v. Beaudoin, 2015 ONSC 1915

R. v. Beaudoin, 2015 ONSC 1915

COURT FILE NO.: 131-14 AP

DATE: 2015/03/27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Colleen Hepburn, for the Appellant

Appellant

• and -

LUC FRANCOIS BEAUDOIN

Stephanie E. Baker, for the Respondent

Respondent

HEARD: March 10, 2015

reasons for decision

ellies j.

1The Crown appeals the acquittal of the respondent on charges which included sexual assault, invitation to sexual touching, and sexual interference.

2The central issue on the appeal is whether the trial judge erred in law by failing to give reasons sufficient to allow meaningful appellant review. The Crown also argues that the trial judge failed to engage in the analysis required by R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, where an accused testifies, as the respondent did in this case.

3For the following reasons, I have concluded that the acquittal must be set aside and a new trial ordered. With great respect for the learned trial judge, his reasons do not permit the parties, the public, or this court to know why he arrived at the result that he did.

BACKGROUND

4The respondent was charged with seven offences of a sexual nature, all involving the same complainant, B.B. Over the course of two days, the trial judge heard testimony from B.B., a friend of B.B.’s (A.D.), B.B.’s mother (J.B.), and the respondent.

5It is not necessary to set out in great detail the evidence called at trial. It is sufficient in this part of my reasons to set out only as much of the evidence as is necessary to put into context the factual issues that were before the trial judge.

6The allegations involved three incidents alleged to have occurred over a period of one month, during which time the respondent was involved in a relationship with J.B. B.B. was 13 years old at the time of the alleged events and was 14 years old at the time of trial, as was A.D.

B.B.’s Evidence

7B.B. testified that the first incident happened about one week after she got to know the respondent. She said that the respondent came into her bedroom one night while she and A.D. were in bed. He began rubbing B.B.’s hand and then got into bed with the two girls. He asked B.B. questions of a sexual nature and touched her vagina, inserting his fingers into it. She testified that this lasted for about a half-hour before the respondent left to go back downstairs and did not come up again that night.

8Later in her evidence, B.B. also testified that the respondent made her touch his penis during this first incident. She said that this lasted for about 15 minutes.

9The second incident is also alleged to have occurred when B.B. and A.D. were in bed with the respondent. B.B. testified that J.B. had gone to the pharmacy to get the respondent some allergy pills and that the respondent was sleeping in her sister’s bed. She said that A.D joined the respondent and that she then did the same. B.B. testified that the respondent put his hands on top of her vagina, over her yoga pants, while they were all in bed together.

10B.B. testified that the third incident occurred while she and her siblings were on an air mattress, watching a movie in the living room at her home. She testified that, on this occasion, the respondent put his knee in between her legs without saying anything.

A.D.’s Evidence

11While A.D.’s evidence confirmed some of B.B.’s evidence, it also contradicted it in places. With respect to the first incident, A.D. testified that the respondent did join her and B.B. in B.B.’s bed. She testified that she became aware that the respondent was in the bedroom when he began rubbing B.B. and A.D.’s arms. She testified that the respondent got into bed beside B.B. and that A.D. then went back to sleep. A.D. testified that the respondent left the bed after a couple of hours to check on J.B. However, she testified that she did not see the respondent touching B.B.’s vagina in the bed next to her. Nor did she say that she heard the questions that B.B. testified she was asked by the respondent. In fact, A.D. said that she heard B.B. ask the respondent if A.D. was asleep, to which the respondent responded “yes”. A.D. also testified that the respondent came back to the room at the request of B.B., after leaving once.

12A.D. testified that, on another occasion, she witnessed the respondent put his leg between B.B.’s legs while the two of them were on an air mattress in the living room of B.B.’s home.

13Lastly, A.D. testified that, on a further occasion, while she was in B.B.’s sister’s bed with B.B. and the respondent, she saw the respondent put his leg “between (B.B.’s) crotch again” and put his hand on one of B.B.’s breasts, over her shirt. She did not say that she saw the respondent touch B.B.’s vagina during this incident.

J.B.’s Evidence

14The evidence of J.B. also confirmed parts of B.B.’s testimony, but not others. J.B. testified that she and the respondent began a sexual relationship in or about the month of November, 2012, and that she had the respondent to her home on a number of occasions during that month. She testified that the respondent slept over on at least five of those occasions. J.B. also testified that the respondent would go upstairs on occasion, purportedly to check on B.B., even though J.B. would tell him that B.B. was fine.

15J.B. testified that there was one occasion on which she left B.B. and A.D. alone with the respondent while she went to get the respondent some allergy medicine.

16Although both B.B. and A.D. testified that the incident on the air mattress took place within sight of J.B., and J.B. herself testified that the respondent would frequently lie down on the air mattress with her children, J.B. said nothing during her testimony about seeing any improper touching of the nature alleged by B.B. and A.D. In cross-examination, J.B. testified that B.B. had never said anything to her about there being any inappropriate behaviour by the respondent.

17Finally, J.B. also testified that she would get drunk every weekend during the period of time in question. Her children were eventually removed from her care in the month following her relationship with the respondent, but were subsequently returned to her.

The Respondent’s Evidence

18In his evidence, the respondent admitted that there had been occasions on which he went upstairs at night where B.B. was sleeping, including one occasion upon which A.D. was there. He also admitted that he would sometimes lie on an air mattress in the living room with B.B. and A.D. However, the respondent denied the sexual touching alleged by B.B. and provided his own version of what had occurred, and why.

The Trial Judge’s Reasons

19The trial judge’s reasons were delivered orally following counsel’s submissions. I will deal in some detail with those submissions in my analysis. However, I believe it may be helpful to set out in this part of my reasons only the judge’s conclusion, and then to relate that conclusion to the balance of the judge’s reasons.

20The trial judge began by commenting unfavourably, as far as the defence was concerned, on the significant difference in age between B.B. and respondent. After dealing with a number of issues raised by defence counsel, the trial judge concluded his reasons as follows:

In making my assessments of credibility and a determination of fact it would be my considered view that I have such a conflict of equally credible evidence I am unable to make a resolution to make findings of fact. The probability is, and this is my main concern, the probability is that the allegations are probable and covered in the crown’s evidence. But I’m not satisfied beyond that probability to proof beyond a reasonable doubt. Those are my reasons for findings of not guilty.

21In my review of this matter, I have not attempted to answer the rhetorical question that is so often posed by those who disagree with a trial judge’s conclusion, namely “How could he have come to that conclusion?” In my view, there were a number of reasons for which the trial judge in this case could have reached the conclusion he did. Instead, I have tried to determine which of those reasons led him to that conclusion. In other words, I have tried to answer the question, “Why did the trial judge come to the conclusion he did?” Unfortunately, I have been unable to do so.

ISSUES

22The Crown raises two issues:

(1) whether the trial judge erred in applying the analysis required in R. v. W. (D.); and

(2) whether the trial judge erred in law in failing to provide sufficient reasons.

23The Crown argues that the result at trial must be quashed. It requests that convictions be entered, instead. Alternatively, it requests that the matter be remitted for a new trial.

ANALYSIS

The Analysis in W. (D.)

24If one could ignore the rest of the trial judge’s reasons, the concluding comments I have set out above could fit within the W. (D.) framework. W. (D.) requires the trial judge to acquit in three circumstances:

(1) where the trial judge believes the exculpatory evidence of the accused;

(2) where the trial judge disbelieves the exculpatory evidence of the accused, but is left with a reasonable doubt by it; and

(3) where, although not left with a reasonable doubt by the exculpatory evidence of the accused, the trial judge is left with a reasonable doubt by the rest of the evidence.

25The trial judge’s concluding comments could reasonably be construed as meaning that he found himself in either situation (2) or (3), above. Based on his comments about the alleged incidents being “probable”, he cannot have believed the evidence of either the respondent or B.B. beyond a reasonable doubt. Where the trier of fact is unable to determine who to believe, W. (D.) requires that the accused be acquitted: see R. v. Austin (2006), 2006 39077 (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.), at para. 20.

26The difficulty, however, is that one cannot ignore the rest of the trial judge’s reasons. As I will explain, the reasons must identify why the trial judge was left with a reasonable doubt despite the fact that he did not believe the respondent. The sufficiency of the trial judge’s reasons in that regard must be assessed in the context of the reasons as a whole, the submissions of counsel and the evidence at trial. When that is done in this case, confusion, not clarity, is the result.

Sufficiency of Reasons

27A trial judge’s task is not an easy one. There are few easy calls. Most of the easy calls do not get to trial. Some of the most difficult calls involve issues of the type that were before the learned trial judge in this case, in which his task was to decide serious factual issues based on conflicting evidence.

28The concept of reasonable doubt and the burden of proof placed upon the Crown can make these calls a little easier in some criminal cases. However, those concepts do not relieve the trial judge from the duty to provide reasons, either for convicting or acquitting: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 10, quoting from R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 18.

29In R.E.M., McLachlin C.J. set out on behalf of the court the functions of a trial judge’s reasons in a criminal case. At para. 11, she wrote:

The authorities establish that reasons for judgment in a criminal trial serve three main functions:

1. Reasons tell the parties affected by the decision why the decision was made. As Lord Denning remarked, on the desirability of giving reasons, “by so doing, [the judge] gives proof that he has heard and considered the evidence and arguments that have been adduced before him on each side: and also that he has not taken extraneous considerations into account”: The Road to Justice (1955), at p. 29. In this way, they attend to the dignity interest of the accused, an interest at the heart of post-World War II jurisprudence: M. Liston, “‘Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law”, in D. Dyzenhaus, ed., The Unity of Public Law (2004), 113, at p. 121. No less important is the function of explaining to the Crown and to the victims of crime why a conviction was or was not entered.

2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Thus, it has been said that the main object of a judgment “is not only to do but to seem to do justice”: Lord Macmillan, “The Writing of Judgments” (1948), 26 Can. Bar Rev. 491, at p. 491.

3. Reasons permit effective appellate review. A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same time inhibiting appeal courts from making factual determinations “from the lifeless transcript of evidence, with the increased risk of factual error”: M. Taggart, “Should Canadian judges be legally required to give reasoned decisions in civil cases” (1983), 33 U.T.L.J. 1, at p. 7. Likewise, appellate review for an error of law will be greatly aided where the trial judge has articulated her understanding of the legal principles governing the outcome of the case. Moreover, parties and lawyers rely on reasons in order to decide whether an appeal is warranted and, if so, on what grounds. [Emphasis added.]

30At paras. 15 to 17, McLachlin C.J. set out the test for sufficient reasons:

This Court in Sheppard and subsequent cases has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.

It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524).

These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” – the verdict – and the “why” – the basis for the verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. [Emphasis added.]

31Finally, at para. 35 of the decision, McLachlin C.J. summarized the law regarding the sufficiency of the trial judge’s reasons as follows:

In summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial.

This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.

32With respect, the trial judge’s reasons in this case do not provide any information as to why he concluded that he had before him a conflict of “equally credible evidence”. In fact, when one looks at the live issues that emerged from the evidence and the submissions of counsel, it appears that all of those issues were resolved by the trial judge in a way that favoured a different conclusion, namely a conviction.

Motive to Misrepresent

33In his submissions, counsel for the respondent argued that the evidence revealed that B.B. and A.D. had developed an interest in the respondent during his relationship with J.B. Counsel submitted that B.B. had “reached out” to the respondent when she and her siblings were removed from their mother’s care by the Children’s Aid Society and that she became angry when the respondent declined to help. This submission was based mainly on the evidence of the respondent, confirmed in some respects by A.D.’s evidence that she and B.B. had placed a number of calls to the respondent after he broke up with J.B.

34In making this submission, defence counsel also relied fairly heavily on evidence A.D. gave during cross-examination in which she admitted that she and B.B. had decided to make up a “child molestation story” to get back at the respondent. The Crown submitted that A.D.’s evidence with respect to the child molestation story was nullified during re-examination when A.D. testified that by using the words “child molestation story”, she thought defence counsel meant simply reporting what she had reported, which she said was the truth.

35With respect to this issue, the trial judge held:

There was evidence with regards to at least an infatuation and there may well be, but it’s of no particular significance in my determination of the relevant issues that are raised by these allegations. As I say, (B.B.) is the child, Luc is the adult. The responsibility lies with the adult in governing context with children.

Collusion

36Defence counsel also pointed to what he argued was evidence of collusion between the young witnesses and argued the law on the issue at some length. With respect to this issue, the trial judge held:

Defence has invited me to explore the issue of collusion. And I’ve listened to his submissions. I don’t accept the invitation because, in my view, there was no evidence of collusion between those young witnesses.

Inconsistencies and Contradictions

37In his submissions, defence counsel also highlighted what he argued were inconsistencies and contradictions, both between statements made by each of the young witnesses and between the trial testimony of each of them. These included a contradiction between B.B.’s statement to the police that the respondent had ejaculated during the first incident and her testimony during the trial that he had not. The inconsistencies also included A.D.’s evidence that she did not see any sexual touching during the first incident alleged by B.B.

38With respect to this issue, the trial judge said:

One of the witnesses who is (A.D.), is a friend of the complainant and about the same age. And I suppose there’s an intertwining, if I can use that word, between (A.D.) and (B.B.) and indeed the accused on occasion (A.D.) was present on some of the allegations.

To some extent what (B.B.) says took place is corroborated by (A.D.), who didn’t see anything except the matter involving the hand on the breast area and touching the boob. But she heard and she was present but says she didn’t see anything.

39It might be possible to interpret these comments by the trial judge as indicating that he had difficulty with the credibility of B.B. in light of the discrepancies between her evidence and that of A.D. However, shortly after stating what is set out above, the trial judge went on to say:

Directly involved, of course, in an assessment of credibility, and Mr. Haraschuk, and rightly so, refers to the WD case, which is relevant here for consideration. Certainly, the evidence of (B.B.) is not one that occasions me to be concerned primarily with credibility. I think generally she is attempting to articulate clearly and accurately and truthfully the events that she recalls. [Emphasis added.]

40These comments preclude the possibility that the trial judge was having problems with B.B.’s credibility. Although the trial judge used the word “primarily” when referring to his concerns, he went on to say that “generally” she was attempting to be truthful. He did not identify any specific exceptions to this conclusion.

41If what the trial judge meant to express was that he was having difficulties with B.B.’s reliability as a witness¹, it was incumbent upon him to say so. Nowhere in his reasons does he make any reference to B.B.’s reliability, or why he might have a problem with it. It seems unlikely that he did, given that he identified credibility as the main issue, both in the remarks set out immediately above, and in remarks he made earlier in his reasons, when he said:

Now, it seems to me in my consideration of all of the various pieces of evidence with regard to issues that have been submitted to me for my consideration and which I do consider and have considered during the entire proceeding, seems to me with what I’m left is whether the events took place.

The Respondent’s Credibility

42In addition to challenging the credibility of B.B. in his submissions, counsel for the respondent at trial also focused on the admissions the respondent made about his contact with B.B. and A.D. and focused on the explanation he gave for that contact. With respect to the respondent’s credibility, the trial judge had nothing good to say. Early in his reasons, he stated:

I do note also in the evidence that Mr. Beaudoin, when asked specifically if he touched (B.B.)’s vaginal area, he denied that. He also was asked if he asked the area referred to as her breast area or described as her boo, and he denied that. He also denied that (B.B.) touched his penis. What was not an express denial was the allegation that he invited her to do that. And that what count seven is all about, it’s the invitation, it’s not the touching.

43Based on this comment and the trial judge’s concluding remarks, the only explanation for why the trial judge did not convict the respondent on the count of invitation to sexual touching is that he did not accept B.B.’s evidence on the count beyond a reasonable doubt. Again, however, there is nothing in the trial judge’s reasons to explain why.

44The trial judge also had this to say about the respondent’s credibility:

There are occasions as noted by the crown and her submission, there are those occasions where the responses given by the accused to questions are in the least eyebrow raising, even simple response, like, “Do you have a criminal record?” and it may be explained as the crown attempts to explain it, Mr. Beaudoin may have been more concerned about determining where the crown was going than rather responding directly in answer to the questions. That’s one construction, which is not unreasonable in my assessment and analysis of what he was doing or trying to do. What he’s up doing in a 13 year old’s bedroom in the middle of the night, he says it’s because he wanted to make sure she took her medication. What he’s doing going upstairs on another occasion is that he smelled smoke. That’s one of my eyebrow raising examples. The crown says, “How could you smell smoke coming from a bedroom when you are a smoker and so is her mother? You smoke in the house anyway.” That may lower my eyebrow somewhat but it doesn’t lessen my concern.

45It was shortly after making the last comment that the trial judge made his comment about there being a conflict of equally credible evidence. Based on this and the other comments the trial judge made concerning the credibility of the two main witnesses, I am unable to understand how he arrived at that conclusion.

CONCLUSION

46In my respectful opinion, the trial judge’s reasons in this case do not reveal a logical connection between the verdict and the basis for the verdict. It is not possible for the Crown, the public or this court to know from the trial judge’s reasons why he concluded that he had two equally credible versions of events, especially in light of the negative comments he made about the evidence of the respondent and the positive comments he made about the evidence of the complainant.

47For these reasons, the appeal is allowed and the acquittal is set aside.

48In my view, this is not a proper case in which to substitute convictions. As I indicated above, there were reasons why the trial judge might not have been satisfied of the respondent’s guilt beyond a reasonable doubt, even if he did not believe the respondent’s exculpatory evidence. The problem is that those reasons did not find their way into the judge’s reasons.

49The matter is therefore remitted to the Ontario Court of Justice for a new trial.

Ellies J.

Footnotes

1. 1See R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at p. 526.