ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-0049-AP
DATE: 2015 Oct 16
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CECIL COURNEYEA
Appellant
Michael Lunski, for the Crown
Robert J. Reynolds, for the Appellant
HEARD: June 2, 2015 at Belleville
jUSTICE BELCH
APPEAL DECISION
[1] Cecil Courneyea, (Appellant) appeals against his conviction in the Ontario Court of Justice at Belleville, Ontario on October 7, 2014 on two counts of sexual assault pursuant to section 271 of the Criminal Code.
[2] Counsel for the Appellant alleges a key step in the trial judge’s reasoning path to conviction was his determination he did not believe the evidence of the Appellant because “it made no sense.” It was so improbable as to be unbelievable because according to the trial judge, the Appellant had “categorically denied any and all physical contact with the complainant, painting himself into an inextricable corner in the process.” Counsel alleges this is a complete misstatement of the evidence as the Appellant testified he had physical contact with the complainant by holding hands with her, and the testimony of the complainant confirmed that.
[3] Further, the trial judge’s reasons, read as a whole, indicate this mistaken view of the evidence on this point played a substantial if not central role in his disbelief of the Appellant, and thus in the chain of reasoning that led to conviction.
FACTS
[4] The Appellant had been steadily employed for 27 years. He was 61 years of age at the time of the trial, married with two adult children from a previous relationship. The complainant was also employed.
[5] I have reviewed the trial transcript to obtain an understanding of the relationship between the Appellant and complainant. Evidently, the complainant was experiencing some personal problems before meeting with the Appellant. In response to a question from the Crown as to whether there was anything going on in her life at the time she testified, “I was a mess… I was- depression (sic), drinking heavily, just a mess… I didn’t like myself. I hated myself. I would go to bed at night wishing I wouldn’t wake up. … I didn’t want to work. I didn’t want to wake up in the mornings. I didn’t want to be around.” She added that she was being seen by two counsellors and her doctor on a regular basis. She confided in another employee, B.S. who held a position in management. B.S. asked her at one point would she be willing to talk with the Appellant because evidently the Appellant had helped B.S. through difficult times. The complainant indicated her willingness to speak with the Appellant and she texted him to arrange a meeting.
[6] The complainant had heard from B.S. and from rumors that the Appellant has these powers. She believed it was like an energy… “Just help like - I call it hocus-pocus.” The complainant’s son testified his mother had described the Appellant as a spiritual counsellor. It appears from the transcript the Appellant had helped others work through their problems.
[7] It was alleged the Appellant sexually assaulted the complainant, a co-worker, on two separate occasions by touching and/or massaging various parts of her body including her breasts and vagina, culminating in its digital penetration and all this, ostensibly for the purpose of therapy, counselling and healing. The Appellant denies any impropriety and any touching for sexual purposes.
[8] The first incident allegedly took place in a shed near the workplace. The complainant testified the Appellant put his hand on the left side of her chest, telling her he could feel something although it was not cancer. Asking for her approval as he did so, he lifted her shirt, undershirt and bra, placed his hand on her left breast, and replaced her clothing. The Appellant said the complainant spoke about issues which troubled her and he responded with encouraging advice. In the course of the exchange, the complainant grabbed his hands. The complainant may have hugged him and perhaps even kissed him on the cheek, and later hugged him again, but he denies touching her breasts or indulging in any other improper contact for that matter.
[9] His second encounter with the complainant occurred at the residence of the complainant, in early evening, and again, he categorically denies any impropriety or inappropriate sexual conduct. He admits being in the bedroom at her apartment, the son was present in the apartment, the bedroom door was open and she was lying down on her bed while he sat on a chair nearby. While he concedes he may have held her hand at times, he denies either undressing her or asking her to undress herself in his presence. He denies touching her as she has testified. Her version of the events is that the door was closed, the Appellant had her lie on her bed and with her permission, he removed her clothes while he remained fully clothed. She was naked while he felt various parts of her body, including her breasts, stomach and vagina.
[10] From the trial transcript, the Appellant was asked:
Q. You believe in being able to feel people’s energy by using your hands, right?
A. Yes.
Q. That is something that you believe and you practice, right?
A. Yes.
Q. And you had never had a conversation with the complainant prior to the day in the shed about your beliefs about energy and being able to feel that energy. You’d never had that conversation before that ….
A. No.
Q. …. had you? Is that something you would say?
A. I’m sorry, you’ve confused me here. Back up?
Q. To say to someone that you can feel their bad energy, that is something you would say, right?
A. Generally, yes.
Q. And did you tell the complainant when you were in the shed that you could feel her energy?
A. No.
Q. Did you tell her that when you were in the apartment?
A. No.
Q. You never told the complainant during your two interactions with her that day that you could feel bad energy leaving her body?
A. No, I said she had all kinds of bad issues in her body that she needed to deal with.
Q. But energy was not a term you used during your interactions with the complainant.
A. Not that I remember.
Q. As part of your beliefs about bad energy, do you believe that you can infuse good energy into somebody?
A. Yes.
Q. Is that something you told the complainant?
A. When we were talking in, in her room, yes.
Q. So you did talk to the complainant about energy, but it was in the context of infusing her with good energy.
A. Yes.
Q. And there was no reference to removing bad energy.
A. No.
Q. While you were in the bedroom with her, did you ever tell her that you could feel something?
A. Just that her hands were tingling. She said she could feel her hands tingling and I said, Yes, I can feel it.”
Q. So you did tell her that in the bedroom.
A. Yes.
Q. And that’s only in relation to you holding her hands ….
A. Yes.
Q. …. and her commenting to you that her hands are tingling.
A. Yes.
Q. I understood your evidence earlier to be that the first time she said something about tingling was when she walked you out to the car and she told you that her hands were tingling.
A. Well, that was one, one time, but she told me that in, in the bedroom too, as well.
Q. And she talked to you about tingling when you were in the shed as well?
A. I think so, yes.
Q. And in what context? What did she say about tingling in the shed?
A. She was just so excited that, that she, she was starting to tingle, she felt so happy.
Q. What parts of her body did she say were tingling?
A. Her hands and her feet.
Q. What were you doing to her as she was telling you her hands and her feet were tingling?
A. Just holding her hands.
[11] The complainant, when asked what if anything else did he say to you about helping you? Answered “There’s a lot of energy there. There is a lot of work to be done but we’ll get through it “just stuff like that. And what if anything were you saying to him? Answer I was all in agreement with him.. Also, after the second encounter the complainant texted the Appellant saying “thanks again. I think my fingers are still tingling.” Again, about the second encounter she was asked and does he hold your hands at some point during this? To which she answered I don’t remember. It’s possible that he did though. Answer he could have yes. In cross-examination she was asked whether it was possible the Appellant sat beside her in the bedroom and held her hands and talked to her while he was holding her hands? Could that have happened? Answer it could have happened and other stuff happened.
REASONS FOR TRIAL JUDGMENT
[12] The trial judge suggested the Appellant could have engaged in some legitimate form of massage therapy provided he had secured informed consent. He goes on to say “yet strangely enough in this instance, he chose to categorically deny any and all physical intervention… He would have this Court believe that in their regard, his interventions were strictly limited to verbal exchanges, devoid of any physical contact whatsoever…. His version of events might actually have an air of reality, had he opted to at least admit to some innocent form of “massage therapy”. Instead, he chose to categorically deny any and all physical contact with the complainant, painting himself into an inextricable corner in the process. As such, his denial makes no sense whatsoever…. For those reasons, his blanket denial of physical contact is difficult to accept at face value. In fact, at this stage of my analysis, I can say quite succinctly that I do not believe Mr. Courneyea’s testimony for it defies common sense… I am definitely not left with a reasonable doubt, by virtue of the evidence adduced by the Appellant.”
[13] The Appellant’s counsel submits it is made clear in the judge’s earlier review of the evidence, Mr. Courneyea had testified to substantial physical contact with the complainant during both of his interactions with her; in particular, describing prolonged holding of her hands during the discussion in her apartment bedroom. He argues this leaves us with the situation the trial judge dramatically misapprehended the evidence of the Appellant, and relied on that misapprehension as a central, if not the primary reason, for rejecting the evidence of the Appellant as incredible and unbelievable.
[14] He argues a conviction based on such an adverse credibility finding will be set aside under section 686 (1)(a)(iii) of the Criminal Code as a miscarriage of justice where the Appellant can meet the “stringent test” of showing the trial judge, in reaching that credibility finding, has misapprehended the substance of material parts of the evidence and that misapprehension played a central/prominent/essential part in the reasoning process the trial judge used to make his or her findings of credibility. This notwithstanding the evidence before the trial court could reasonably support a conviction. In this regard, the Appellant relies upon the case of R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, a decision of the Court of Appeal of Ontario. Morrissey was quoted with approval by the Supreme Court of Canada in R. v. Lohrer 2004 SCC 80, [2004] S.C.J. No. 76. The Appellant concludes his submissions with an observation that an Appellant is entitled to a fair trial, not one which has miscarried due to a misapprehension of key evidence.
CROWN’S RESPONSE
[15] The Respondent accepts as generally accurate the legal principles articulated by the Appellant. The Respondent further agrees the cases cited by the Appellant are among the leading authorities in this area. The Respondent stresses the test on an appeal to overturn a conviction based on a misapprehension of the evidence is a “stringent” one.
[16] The alleged misapprehension is based on a single piece of evidence: namely, the existence of physical contact, specifically handholding, between the Appellant and complainant while in her bedroom. While not conceding the second part of the test is established, i.e., that a misapprehension played an essential part in the reasoning process that resulted in the conviction, the Respondent founds its argument on the first part of the test: the existence of a misapprehension of the evidence and submits the trial judge did not misapprehend the evidence.
[17] The Respondent points to the fact the trial judge wrote, “while he concedes he may have held her hand at times, he denies either undressing her or asking her to undress herself in his presence. He denies touching her as she has testified.” This passage makes it abundantly clear the trial judge knew Mr. Courneyea testified he held the complainant’s hand for a time while in the bedroom. The Appellant dismisses the significance of such references by arguing the references appear in an earlier segment in the reasons, during which the trial judge was merely reviewing the evidence, as opposed to the latter portion of his reasons when he draws his ultimate conclusion about the credibility of Mr. Courneyea. The Respondent submits it would be erroneous to suggest there must be a line drawn between portions of his Reasons for Judgment as this would be an artificial approach.
[18] The Crown refers the court to the case of R. v. Ibrahim, [2014] O.J. No. 957 where at paragraph 22, Cronk J.A. writing for the court held, “…In my opinion, having already identified these issues, it is inconceivable that the trial Judge then ignored or forgot them when, in the second part of his reasons, he undertook an analysis of the evidence bearing on the Appellant’s guilt or innocence.”
[19] The Crown also referred the court to both the Court of Appeal and Supreme Court of Canada decisions in R. v J.M.H. reported at 2009 ONCA 834, [2009] O.J. No. 4963 and 2011 SCC 45, [2011] S.C.J. No. 45, respectively. In that case, Justice Cromwell reinstated the acquittal of the trial judge which had been overturned by the Court of Appeal on the basis the Supreme Court found the trial judge had made reference in earlier passages of his reasons to evidence of the complainant on the issue of consent.
[20] The Crown submits by examining the whole of the trial judge’s Reasons, including the earlier references, the crux of the conduct that constituted the sexually assaultive activity in the bedroom was the touching by the Appellant using his hands, of the complainant’s naked body: her breasts, stomach and vagina. It was not the mere holding of hands. He further submitted the trial judge’s reference in these impugned passages to an absence of physical contact can reasonably be understood as a reference to contact between his hands and those private parts of her body.
[21] In addition, the trial judge’s Reasons also include the following passages:
(a) after making summary references to the nature of the sexual touching, he notes: “for his part, the Appellant has denied any such impropriety.”
(b) after a detailed review of the evidence of the complainant as to the sexual touching, he notes: “as indicated earlier the Appellant denies any impropriety and any touching for sexual purposes.”
(c) “as to his second encounter with the complainant at her residence later in the early evening, again the Appellant categorically denies any impropriety or inappropriate sexual conduct.” And finally,
(d) referring to Mr. Courneyea’s position he notes: “while he doesn’t deny his interactions with the complainant, he offers a very benign and innocuous version of events and denies any impropriety whatsoever.”
ANALYSIS
[22] Both counsel agree the issue before the court is a narrow one. That issue is how to address those troublesome remarks of the trial judge which I again repeat, “…yet strangely enough in this instance, he chose to categorically deny any and all physical intervention… Instead, he chose to categorically deny any and all physical contact with the complainant… As such his denial makes no sense whatsoever…. For those reasons, his blanket denial of physical contact is difficult to accept at face value. In fact, at this stage of my analysis, I can say quite succinctly that I do not believe Mr. Courneyea’s testimony for it defies common sense…” .
[23] While both counsel agree this court must read and consider the trial judgment as a whole, their approach differs.
[24] Defence counsel submits the court should apply the analogy used by the Court of Appeal in addressing the use of R. v. W. (D.) by trial judges sitting alone. He submits the Court of Appeal often points out the trial judge cannot say the “right thing” about W. (D.) such as repeating the “magic incantation of the three point test” suggested by Justice Cory, but then go on and say or do something different. Simply mentioning the “three points” will not safeguard the judgment.
[25] The defence submits in this case the trial judge, in addressing the evidence, recognized the Appellant admitted holding hands with the complainant who also acknowledged this fact, but then, in his Reasons for Judgment said the Appellant chose to categorically deny “any and all physical intervention.” The use of those words reveal a serious flaw, a misapprehension of the evidence which was key to the trial judge’s finding, he could not believe the Appellant and thereby, triggering R. v. Morrissey.
[26] Further, the defence submits there is no other way to interpret those words; the words are clear and unambiguous.
[27] Crown counsel submits this court cannot examine just one sentence in a judgment. A judgment cannot be broken into two parts. The trial judge “got it right” in addressing the evidence and this court cannot ignore those earlier findings, but must look at context to interpret the troublesome remarks
[28] Crown counsel further submits the trial judge used those remarks when referring to massage therapy and a reference to the Appellant’s touching of the complainant’s breasts and her vagina including the digital penetration of the vagina and the remarks were not a reference to the holding of hands which the trial judge had earlier acknowledged took place.
[29] In addition, Crown counsel argued this case was similar to Ibrahim in that by having already identified these issues earlier, it is inconceivable the trial judge then ignored or forgot them when delivering his ultimate conclusion. Also, the court should follow the decision of the Supreme Court of Canada in R. v. JMH, as earlier mentioned.
[30] Defence counsel argued neither of those authorities assist the court because those cases dealt with circumstances where a trial judge had addressed evidence, but then failed to repeat his or her earlier finding in the final Reasons for Judgment. Those cases stood for the proposition a reviewing court could use the earlier comments to fill in or explain the gap when the final conclusion was left silent or ambiguous, however, that was not the case here. Here, the trial judge said something completely different when drawing his conclusion. He said the Appellant had categorically denied any and all physical contact with the complainant. He argues this court is left with the words themselves. What do the words mean? The words themselves he submits are clear and unambiguous and cannot be interpreted by looking elsewhere in the judgment, hence his use of the W. (D.) analogy. Saying it right elsewhere does not help in interpreting the troublesome words now. The trial judge has completely misstated the evidence.
CONCLUSION
[31] The troublesome words at face value are not ambiguous, however, their application is. As Black’s Law Dictionary notes, ambiguity describes “duplicity, indistinctness, or uncertainty of meaning of an expression used in a written instrument.” Burton’s Legal Thesaurus (3rd Edition), includes in its definition of ambiguity words such as confused meaning, obscure meaning, and uncertainty of meaning.
[32] The Crown submits the troublesome words are explained by the context in which they are located. When examining paragraph 24 of the Reasons, I note the trial judge sets up the foundation for his conclusion. He writes “to begin with, his willingness and ability to assist others in his capacity as “good listener”, is nothing to be skeptical about. That some of his female colleagues would derive an emotional benefit just from sharing their worldly problems and stresses in verbal exchanges with him, is well within the realm of normalcy of course. However, where he claims to be clairvoyant and possess psychic powers, enabling him to perceive “dark ominous auras” around vulnerable women and suggests he can help them by “infusing pure energy”, then common sense alone, dictates that such behaviour is getting a little more sketchy. Engaging someone on a verbal level is a relatively innocuous and non-invasive exercise for clearly, it will not entail any physical contact. However, it is difficult to conceive how anyone, health care provider or not, might succeed in “infusing pure energy” onto another person, without “laying of hands” of sorts. Be it a spiritual person invoking a symbolic act or a therapist trying to manually improve the patient’s condition, the exercise obviously necessitates some level of physical contact.”
[33] The trial judge continues in paragraph 25 of his Reasons, “in this instance, it is clear that on occasion, the Appellant also counselled some of his colleagues absent any physical intervention. The evidence equally establishes that in some instances, he was proposing a “hands-on approach.” This, of course, could have been achieved legitimately with the consent of his subjects. In the normal course of practice and with their implicit consent, a licensed chiropractor or doctor will inevitably come into physical contact with the patient. Presumably, in this case, Mr. Courneyea could have engaged in some legitimate form of massage therapy, provided he had secured the informed consent of his subjects. Culpable behaviour would only occur if he exceeded the boundaries and expectations previously agreed upon or if he had obtained their consent under false pretenses. Yet strangely enough, in this instance, he chose to categorically deny any and all physical intervention… . In the circumstances of this case, it is clear from the totality of the evidence, that where the complainant was concerned, the Appellant was in fact taking remedial action which went well beyond mere verbal intervention and counselling. Proof of that appears in his own text message, which betrays his assertion of innocence, when he writes: “that’s the pure energy I infused in u.” Unless he had access to some form of advanced air technology, it is difficult to conceive how he might “infuse pure energy” by verbal means only. His version of events might actually have an air of reality, had he opted to at least admit to some innocent form of “massage therapy.” Instead, he chose to categorically deny any and all physical contact with the complainant painting himself into an inextricable corner in the process. As such, his denial makes no sense whatsoever…”
[34] In these paragraphs, the trial judge is satisfied the Appellant’s “assistance” to the complainant went beyond being a good listener and sharing verbal exchanges and instead included some sort of physical intervention. From the evidence, the physical intervention could have ranged from handholding to touching the complainant’s breast and digital penetration of her vagina. The trial judge, having earlier noted the holding of hands, it leaves as the only bodily physical contact not addressed, the touching of the breast and vagina. The Crown submits these areas, by process of elimination, must be what the trial judge is now speaking about in these paragraphs and what the trial judge means when he finds the Appellant chose to categorically deny any and all physical contact.
[35] While the Crown’s argument that “context” explains that when the trial judge concluded the Appellant denied all physical contact with the complainant, he was referring to those parts of her body considered sexual in nature and not merely holding her hands. The Crown argument is appealing, however, the Appellant faces serious charges and to found a conviction on what you think the trial judge meant when the words themselves clearly say something different is worrisome.
[36] This court is not provided with any case authority considering the defence’s submission that having correctly addressed the facts in the earlier stages of the judgment, namely, physical contact by hand holding, saying something different, namely, no physical contact later in the judgment can be ignored. Those decisions from the Ontario Court of Appeal and the Supreme Court of Canada provided by the Crown are meant to only fill in a void such as forgetting to repeat physical contact in the later stages of the judgment and do not assist in answering the dilemma of choosing between physical contact and no physical contact.
[37] There appears to be further confusion in addressing the infusion of energy. Could it be done verbally or was this accomplished through hand holding? It may be the whole process could be viewed as hocus-pocus, however, there may be others who hold contrary beliefs. It would have been helpful for the court to hear testimony from someone with knowledge and understanding of the subject matter rather than base the decision upon the personally held views of the trial judge.
[38] Although the Appellant was rumored to have helped others including B.S. and the complainant was aware of these rumors, by the date of trial, the complainant refers to the process as hocus-pocus. The trial judge comments about his difficulty in conceiving how the Appellant could infuse pure energy by verbal means only unless the Appellant had access to “some form of advanced air technology.” This suggests he too was thinking the whole process was hocus-pocus although there was ample evidence from the Appellant which was supported to some degree by the complainant’s testimony that the infusion of energy was not done verbally nor was it done by using some advanced air technology, rather, energy was infused through the handholding and they both testified they felt “tingling.”
[39] For these considerations, this court believes it is safer to set aside the conviction and to refer the matter back for a new trial and I so order.
Belch, J.
Released: October 16, 2015
COURT FILE NO.: CR-14-0049-AP
DATE: 2015 Oct 16
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CECIL COURNEYEA
Appellant
APPEAL DECISiON
Belch, J.
Released: October 16, 2015