ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-55
DATE: 2015/07/03

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 9TH DAY OF SEPTEMBER, 2013 OF THE HONOURABLE JUSTICE BRUCE E. MacPHEE PURSUANT TO THE CRIMINAL CODE OF CANADA.

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

JOSHUA WARDLE
Appellant

Elaine Evans, counsel for the Crown

Rodney Sellar, counsel for the Appellant

HEARD: June 25, 2015

reasons for DECISION

LACELLE, J.

Overview

[1] This is a summary conviction appeal by Joshua Wardle against the findings of guilt for sexual interference and sexual assault made by MacPhee J. in the Ontario Court of Justice on December 9, 2013. The sexual assault count was stayed pursuant to the principles in R. v. Kienapple.

[2] The findings of guilt followed a three day trial during which the court heard from a number of witnesses, including the complainant S.L., and the accused.

[3] The complainant S.L. and the accused were both guests at a party held on the May long week-end of 2012. The party was hosted by S.L.’s aunt, A.M.B., who was also a friend of the accused. At the time of the party, S.L. was 15 years old. The accused was 29. They knew each other, as they had met previously through S.L.’s aunt, A.M.B..

[4] The party started during the day, and extended into the evening. Guests were invited to stay over in tents to ensure they were not drinking and then driving home. Both S.L. and the accused were among the guests who stayed overnight.

[5] S.L. testified that while he was asleep in his tent, the accused entered it and touched him sexually. The accused testified and denied that he had touched S.L.. To the contrary, according to the accused, it was S.L. who had made sexual advances upon him while he was asleep in his tent.

[6] The trial judge rejected the evidence of the accused, and accepted the evidence of the complainant. He found the accused guilty of both counts before the court for reasons given on December 9, 2013.

[7] Mr. Wardle appeals on the basis that the trial judge committed two errors in his analysis, as evidenced by his reasons: 1) he erred in law by failing to consider the issue of the reliability of the complainant; and 2) he erred in law by applying an unequal level of scrutiny as between the evidence of the complainant and the accused.

[8] While transcripts of the submissions of counsel at the trial are not available for review, both counsel on the appeal, who were counsel at trial, agree that the specific factual issues raised by the accused on the appeal with respect to the reliability of the complainant’s evidence were argued before the trial judge.

The Reasons of the Trial Judge

[9] The trial judge noted the difficulties presented in cases where “the only evidence emanates from the two principals” (p.2), and that it was obvious in such a case that the credibility of each of the principals would be critical to the court’s assessment. He then confirmed that the court was not to assess the evidence as a “contest between competing versions of events. Rather it’s an examination of the probity, clarity and logic of what is said” (p.3). He said that “where a criminal allegation is made clarity is required for proof. Reasonable doubt is to the benefit of the accused and is applicable to the matter of credibility” (p. 3).

[10] After reviewing the principles set out in R. v. W.D., the trial judge went on to a detailed consideration of the evidence given by each of the complainant and the accused. He noted that neither had been a “perfect witness” (p.3), and that each of them was less than candid about the effects of alcohol upon them (p.12).

[11] The trial judge first considered the evidence given by the complainant. After adverting to the evidence from other witnesses, the trial judge found that the effects of alcohol on the complainant were obvious, but that he was not completely disoriented. He reviewed the complainant’s account of the sexual touching, and said that he was struck by the detail which accompanied the complainant’s description of critical events (p. 10). He found that the complainant had been contradicted on matters such as whether or not he was asked for or took an aspirin, the quantities of alcohol consumed, and various comings and goings on the night of the event at his aunt and uncle’s residence, but that these were “tangential” to the primary facts in issue. He found that “at its core the details of his complaint in my view were conveyed clearly, consistently, were persuasive and probative of the essential averments. Despite the limitations otherwise noted, I found the complainant and his evidence worthy of belief on matters critical to the allegation and would label him as being on the essential averments a credible witness” (p. 10).

[12] Next, the trial judge considered the evidence of A.B.M., particularly as it related to her account of the accused approaching her to tell her that the complainant had “put the moves on him”. He believed her account that the accused had asked her not to tell the complainant about their conversation. He found there was no reason for her to have fabricated this evidence, and held that it supported the Crown’s theory that the accused had approached A.B.M. to get his version of events out first (p. 11).

[13] The trial judge next turned to an analysis of the evidence of the accused. He began by noting as important the contradiction in the accused’s evidence about whether he was zipped up in his sleeping bag as he went to sleep, before allegedly being sexually assaulted by the complainant (pp. 15-16). The trial judge found the accused’s account improbable, and that his complaint about the complainant sexually assaulting him had “an aura of making it up considering the absence of details provided” (p. 18 and 19). He found the accused’s conduct in returning to the tent where his aggressor remained did not accord with common sense (p. 18). He found the accused’s post-party comment on Facebook, “greatest party ever, dude, thanks” was an odd comment to make if he had indeed been sexually assaulted as he alleged. He considered the evidence the accused provided about telling the complainant’s aunt, A.M.B., about the complainant’s alleged conduct in the context of the evidence A.M.B. had provided about this conversation. He found that the accused was not being truthful in his account, and said “frankly I think it was made up”.

Analysis

(1) Did the trial judge err in failing to consider the issue of the reliability of the complainant’s evidence?

The positions of the parties

[14] With respect to his first ground of appeal, the accused argues that the complainant’s evidence was manifestly unreliable, primarily having regard to the inconsistencies between his evidence and that of other witnesses on issues of fact relating to events which immediately preceded and followed the sexual touching alleged. He argues that the trial judge gave inadequate consideration to the issue of the complainant’s reliability because in his reasons for judgment he referred to none of the factors which he says made the complainant’s evidence totally unreliable.

[15] The Crown argues that the trial judge, who is presumed to know the law, was alive to the issue of the reliability of the complainant’s evidence, as is demonstrated by his consideration of aspects of the complainant’s evidence which were relevant to that issue. She argues that the trial judge properly assessed the evidence and having done so, it was open to him to make the findings of fact which led to the conviction of the accused.

The governing principles

[16] It is trite law that credibility and reliability address distinct testimonial issues, and that both must be assessed by a trial judge in determining what evidence is accepted by him or her. As indicated in R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para 33,

[t]estimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable.

[17] With respect to the assessment of whether a trial judge has adequately applied the law, the case of Morrissey provides further guidance. It confirms that trial judges are presumed to know the law, and that that presumption must apply with particular force to elementary legal principles. It confirms that it is wrong to analyze a trial judge’s reasons by dissecting them into small pieces, and that reasons for judgment must be read as a whole. It confirms that reasons must also be assessed by appellate courts with an appreciation of the purpose for which they are delivered. Where, as here, a “case turns on the application of well-settled principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles”: Morrissey at para 28. Finally, Morrissey confirms that reasons for judgement “are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict”: Morrissey at para 30; see generally Morrissey at paras 27-31.

[18] At the same time, it is also clear that trial judges are required to give reasons that set out the analysis leading to their conclusions, and that those reasons must be sufficient to be reasonably intelligible to the parties and provide the basis for meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. Further, the law is also clear that having regard to the presumption that judges know the law, that presumption is of limited relevance in assessing the adequacy of reasons for judgement. As noted in R. v. Sheppard at para. 55, “[e]ven learned judges can err in particular cases”.

The principles applied to the facts

[19] In Mr. Wardle’s case, the trial judge did not engage in his reasons in an incantation of all the principles to be applied in assessing the evidence of the various witnesses called at trial. He was not required to do so. What is critical is that he was alive to the correct principles, that he applied them in reaching his decision, and that his decision provides a sufficient basis for review.

[20] Having regard to the reasons read as a whole, the evidentiary record, and the submissions of counsel at trial, I find that the trial judge was alive to the issue of the reliability of the complainant’s evidence, and that he addressed it sufficiently to explain why he believed the complainant’s allegations about Mr. Wardle.

[21] As confirmed by the passage quoted above from Morrissey, reliability, at its core, relates to the accuracy of the testimony given by a witness. I agree with Crown counsel that the reasons for judgment in this case demonstrate that the trial judge addressed various factors relevant to the reliability of the complainant’s evidence.

[22] First, the trial judge specifically addressed the issue of the impact of the complainant’s alcohol consumption. As indicated above, the trial judge found that while the complainant was impaired, he was not completely disoriented as a result of his alcohol consumption. The assessment of the degree of the complainant’s intoxication clearly goes to the reliability of his evidence, as it is an issue that is fundamental to the complainant’s ability to perceive events, and hence, to the accuracy of his account.

[23] Secondly, the trial judge also noted that he was struck by the detail in the complainant’s account of the critical events. The trial judge also expressly held that the complainant’s evidence was clear, consistent and persuasive on the essential averments. The Crown argues that these conclusions are also evidence that the trial judge analyzed the complainant’s evidence through the lens of what the complainant was able to observe and recount. Accordingly, these characterizations of the complainant’s evidence demonstrate that he was alive to the reliability of that evidence. I agree.

[24] The detail given in an account may be a marker of its accuracy. An account with persuasive detail is more likely to be viewed as accurate than one without. While the detail of an account may also inform assessments of credibility, this does not mean that it is not also relevant to assessments of reliability.

[25] Similarly, the trial judge’s references to the evidence given by the complainant as “clear” and “consistent”, indicate he was sensitive to the accuracy of the evidence given. The clarity of evidence given, in particular, accords with a common sense view of markers of accuracy. An account that is clear may properly be considered as more accurate than an account which is confused or illogical. Moreover, as a characterization of a witness’s evidence, a reference to its clarity is more consistent with an assessment of its reliability than the credibility of the witness.

[26] Finally, the Crown argues that the trial judge’s reliance on the corroboration provided by A.B.M. about how the complainant’s disclosure was made, which was a central part of the narrative, also demonstrates that the trial judge was alive to reliability issues. I view this argument as the flip-side to the position taken by the accused on this appeal, which is that the lack of consistency between the complainant and other witnesses is a marker of the unreliability of his evidence. In the end, I find it was open to the trial judge to determine that corroboration on the issue of how disclosure was made was an important marker of accuracy in the evidence, and that the discrepancies on other issues in the evidence were not.

[27] I note that the trial judge did advert summarily to many of the issues argued at trial and on appeal as evidence of the inherent unreliability of the complainant’s account, such as whether or not he took an aspirin, the quantities of alcohol he consumed, and the “various comings and goings on the night of the event at his aunt and uncle’s residence”. He acknowledged that there were inconsistencies as between the complainant’s account on various issues when juxtaposed against the account of other witnesses. He considered the defence arguments on those issues and found that those matters were “tangential” (p. 10), “peripheral” and “collateral” (p. 21). Having reviewed the evidentiary record in its entirety, I find that those findings were open to him. Moreover, I find that the trial judge sufficiently addressed his assessment of these issues to permit review, and to explain to the parties how they figured in his analysis.

[28] On the issue of the inconsistencies between the evidence of the complainant and that of other witnesses, I further agree with the Crown that the submission that the complainant was unreliable because his evidence about events before and after the assault did not accord completely with the accounts of other witnesses presumes that it was the other witnesses who were correct in their recollections. This argument allows no room for the possibility that the complainant’s recollection, on at least some of the issues, was more accurate.

[29] For instance, having reviewed the trial record, and the evidence of S.C. and A.C. in particular, it is clear that the complainant’s account of events in their home was at least as plausible as that given by his aunt S.C., and uncle A.C.. S.C. indicated that her memory of the evening was “shady”. She indicated that at the time of the events about which she was being questioned, she was taking medication for pain relief following surgery the week before. She continually used equivocal language in her testimony, testifying that the complainant had “probably popped in and out”, and that she was providing a “guestimate” on various issues. On the issue of whether the complainant was given an aspirin by her, she testified “I believe it was one, he did help himself so I’ll say that I gave him the bottle” [emphasis added]. On the issue of how many times the complainant had come over to their residence the afternoon and evening of the party, she suggested it was “maybe three or four times”. Her husband, A.C., put the number of times the complainant attended their residence at about a dozen, including his attendance there the following day. Even allowing for the fact that S.C. went to bed a half hour earlier than A.C., and the omission of the attendance of the complainant’s visit to their residence the following morning in the account of S.C., the accounts of these two witnesses were also divergent on this factual issue. To the extent that the account of the complainant diverges with either the accounts of A.C. or S.C., it does not follow on this evidentiary record that he was the witness with the unreliable recollection.

[30] In summary, I am not satisfied that the trial judge erred by failing to consider the issue of the reliability of the complainant’s evidence, and this ground of appeal must fail.

(2) Did the trial judge err by applying a different level of scrutiny to the defence evidence compared to that of the Crown?

The positions of the parties

[31] The accused argues that the trial judge applied a different standard when he assessed the evidence of the complainant and the accused on similar issues, such as the plausibility of their accounts of how they were touched by the other. He urges that the analysis of the Court of Appeal in the recent case of R. v. Rheyal, 2015 ONCA 377, [2015] O.J. No. 2675 applies in all respects in this case.

[32] In response to this argument, the Crown says that just because there were more reasons to properly reject the accused’s evidence does not mean that a different level of scrutiny was applied by the trial judge. She argues that having properly approached the evidence of both the accused and the complainant, the trial judge made findings of fact which were open to him on the evidence.

The governing principles

[33] The law applicable to this issue was recently summarized in Rheyal at paras 95-98 as follows:

The argument that a trial judge has applied a different level of scrutiny in assessing the evidence of the accused and the complainant, as Doherty J.A. noted in R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para 59, “is a difficult argument to make successfully.” In the same paragraph, Doherty J.A. counselled that:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

The principles applied to the facts

[34] I do not find that the Appellant has met his burden in showing that the trial judge has applied a different standard in assessing the evidence of the appellant and the complainant. There is nothing in the record to indicate that the trial judge did so, save for his findings on the assessments of each of the complainant’s and the accused’s evidence. For the reasons set out below, I am not satisfied that these findings demonstrate that the trial judge applied a different standard of assessment to the evidence of the complainant and accused.

[35] The Appellant suggests that it was because he was applying a stricter standard that the trial judge found the accused’s account of events improbable, while he accepted the account given by the complainant. I find that there were important factual differences in the evidence which made those conclusions available to the trial judge, and do not find that they are the product of a different standard of assessment.

[36] For instance, the trial judge found the account of the accused that he had been sexually assaulted by the complainant improbable, in part because on the accused’s account, he had been zipped into his sleeping bag when he went to sleep. This would mean that the complainant had to remove a sleeping bag in addition to the accused’s pants before being able to touch him as alleged by the accused. A fair reading of the record also shows that the trial judge did not accept this account because it shifted in the course of the accused’s evidence: at first the accused agreed that his sleeping bag had been zipped up, and a few moments later in his evidence, he equivocated about that fact. In contrast, the complainant was consistent that he had been asleep on top of his sleeping bag when he awoke to the touching by the accused. I find it was open to the trial judge to find that an account involving removing a zipped up sleeping bag before being able to remove the accused’s pants and touch the accused was improbable. I do not find that on the evidence adduced here, a similar conclusion had to flow from his assessment of the complainant’s evidence.

[37] Similarly, the Appellant points to the fact that his evidence was rejected in part because after the assault he alleges was committed upon him, he returned to the tent. He points out that the complainant also indicated he returned to the tent after the assault, but the complainant’s evidence was not discounted on this basis. He says this shows the trial judge was applying a different standard to their evidence. Again here, I am satisfied that there was an important distinction on the facts that permitted the finding by the trial judge. On the accused’s evidence, he returned to a tent where his assailant remained. On the complainant’s evidence, he returned to the tent and remained there only after finding that the accused had left. A fair reading of the trial judge’s reasons considered in the context of the evidence indicates that it was not the fact of returning to the tent that was improbable, but returning to a tent that contained the assailant. In view of the evidentiary record, it was open to the trial judge to find that it was improbable the accused would return to a tent containing his assailant if he was as troubled by the alleged conduct as he suggested. Again, on this factual record, there was a logical basis for not making a similar finding about the improbability of the complainant’s evidence.

[38] I have carefully considered the case of Rheyal and the Appellant’s argument that its analysis applies in this case. I agree with Crown counsel that there are important differences between the record in Rheyal and the record in the instant case. There were significant credibility issues with the account of the complainant in Rheyal, including multiple versions of events and a lack of evidence to corroborate her account in circumstances where it might reasonably be expected to exist. The trial judge in that case was found to have erred in admitting the unsworn videotaped statement of the complainant, and to have over emphasized the complainant’s demeanour in that videotaped statement as a basis for accepting her evidence. He was found to have not assigned sufficient weight to the weaknesses in the Crown’s case, and to have assigned too much value to “questionable factors”. The Court of Appeal held that those errors were causally connected and interrelated to the trial judge’s error in then applying a different level of scrutiny to the evidence of the complainant and the accused: Rheyal at paras 5, 94 and 107.

[39] This case is very different. The complainant in this case was consistent in his account of events. The complainant here did not have the credibility and reliability hurdles associated with the criminal, psychiatric, and medical history of the complainant in Rheyal (see Rheyal at paras 25 and 32). Unlike Rheyal, the trial judge did not improperly rely on the complainant’s demeanour evidence, which itself was improperly admitted through a prior consistent statement.

[40] A fair reading of the reasons in concert with the evidentiary record here does not establish that the trial judge applied an “unforgiving level of scrutiny” to the accused’s evidence, as occurred in Rheyal. There is nothing in this record that indicates a different level of scrutiny was applied to the evidence of the accused and the complainant. Accordingly, this ground of appeal must fail.

Conclusion

[41] An adjunct to the grounds of appeal raised by the Appellant is that the reasons of the trial judge were insufficient to explain the analysis undertaken in finding him guilty as charged, and in that regard, that they did not meet the test set out in R. v. Sheppard, supra. As indicated above, I am satisfied that the reasons of the trial judge are sufficient to meet the functional test set out in Sheppard. The reasons are reasonably intelligible to the parties and provide the basis for meaningful appellate review: Sheppard at para 55.

[42] For the reasons indicated above, I am not satisfied that the trial judge erred as alleged by Mr. Wardle. The Appeal is accordingly dismissed.

Madam Justice Laurie Lacelle

Released: July 3, 2015

COURT FILE NO.: 14-55
DATE: 2015/07/03

ONTARIO
SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 9TH DAY OF SEPTEMBER, 2013 OF THE HONOURABLE JUSTICE BRUCE E. MacPHEE PURSUANT TO THE CRIMINAL CODE OF CANADA.

HER MAJESTY THE QUEEN

– and –

JOSHUA WARDLE

REASONS FOR decision

Madam Justice Laurie Lacelle

Released: July 3, 2015