A NON-PUBLICATION ORDER IN THIS PROCEEDING HAS BEEN ISSUED

UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

BARRIE COURT FILE NO.: CR-0224-AP

DATE: 20150811

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

A.R.

Appellant

K. Hull, for the Respondent Crown

J. Lockyer, for the Appellant

HEARD: June 29, 2015

REASONS FOR DECISION

On appeal from the decision of The Hon. Mr. Justice E.J. Meijers

of the Ontario Court of Justice dated ­­­­­April 10, 2014

QUINLAN J.:

OVERVIEW

1The appellant, A.R., was charged with sexual assault, sexual interference and uttering a threat, all in relation to his then twelve year old step-daughter, A.G.. A.G. testified that the appellant touched her vaginal area one morning during the December 2011 holidays while she was asleep. She awoke, screamed, ran from her room and locked herself in her parents’ bedroom because she mistakenly thought her mother, S.I., would be there. Through the locked door, the appellant threatened to kill A.G. if she told anyone. Once A.G. was satisfied that her mother had returned home and was outside the door, A.G. opened the door, hugged her mother and told her she was scared. Within weeks, the appellant and Ms. S.I. separated. Several months later, A.G. overhead Ms. S.I. talking to relatives about reconciling with the appellant and she told Ms. S.I. of the time the appellant touched her vagina. The appellant testified and denied A.G.’s allegations. On April 10, 2014, the appellant was convicted on all counts. On May 15, 2014, the appellant brought an application to reopen the trial on the basis of fresh evidence. The application was dismissed on June 11, 2014. On September 26, 2014, the sexual assault conviction was stayed under the Kienapple principle and the appellant was sentenced to five months concurrent on the remaining counts followed by probation for two years.

2The appellant appeals his convictions, arguing that the trial judge erred in dismissing the application to reopen the trial prior to sentencing, misapprehended material evidence and applied a different level of scrutiny to the evidence. The appellant appeals his sentence on the basis of an error in principle. The appellant seeks an order setting aside his conviction and directing a new trial or, in the alternative, requests that leave to appeal sentence be granted, the appeal allowed and sentence varied to an intermittent sentence.

THE DISMISSAL OF THE APPLICATION TO REOPEN

The Application and the Proposed Fresh Evidence

3After the conviction but before sentencing, the appellant retained new counsel who brought an application to admit fresh evidence and sought an order for a mistrial or a reopening of the defence case for further cross-examination of Ms. S.I. and A.G.. The proposed fresh evidence consisted of taxi records demonstrating that neither Barrie Taxi nor Barrie City Taxi sent cars to the appellant’s address between mid-December 2011 and January 2, 2012, when the appellant and Ms. S.I. separated.

The Evidence at Trial

4Ms. S.I. testified that she had been out grocery shopping for a large family meal one morning during the December 2011 holidays. Ms. S.I. left the appellant at home with her three children: A.G., then twelve, and the two younger children of the appellant and Ms. S.I.. The family did not own a car at the time and Ms. S.I. did not have a driver’s licence. Ms. S.I. took a taxi to the store because the children were sleeping and she did not want to wait for the appellant to take her or ask him to go; she needed food in a timely fashion for the family meal she and the appellant were hosting. The appellant testified that he did not remember Ms. S.I. ever taking a cab to the store; his sister testified that Ms. S.I. had not used a cab when the appellant and Ms. S.I. lived with her family.

5Ms. S.I. was cross-examined about how she went to the store. The following exchanges took place:

Q. All right. You’ve told us that there was a day during the Christmas holidays in 2011 when you had gone out to the store to buy some things that you needed because you were going to be having Mr. A.R.’s family or his relatives over for dinner.

A. Yes.

Q. Is that right?

A. Yes.

Q. Okay, and at that time you didn’t have a driver’s licence, did you?

A. No.

Q. And you had no way of driving.

A. No.

Q. So how did you get to the store?

A. Cab. I got a cab.

Q. And was it your habit to take a cab?

A. No.

Q. To go to the store.

A. No. Until I didn’t get the licence I used to take the tab, the cab. But afterward I got the licence and I got my own van.

Q. But it would cost money to take a cab to the store.

A. Ten dollars I think.

Q. And money was tight, you were short of money at that time.

A. At that time we were not short. I was short of money at that time because all the money was with him.

Q. Ms. S.I., you told us that the morning you came home to find A.G. had locked herself in your bedroom that you had taken a cab to the grocery store, yes?

A. Yes.

Q. And that grocery store was Food Basics.

A. Yeah.

Q. What cab company did you use to take a cab to the Food Basics store that morning?

A. Let me, I need to recall my memory. It’s maybe Barrie City Taxi, it’s Barrie City Taxi, yes.

Q. What cab company did your husband work for?

A. Now?

Q. Then.

A. At the time, no, he was not driving the cab. At that time he was working at Bradford and some factory like that.

Q. Were any of his relatives driving cabs?

A. Yeah.

Q. For what company?

A. It’s Premier.

Q. Premier?

A. Prime. It’s Prime, Prime Taxi, yes.

Q. All right.

A. Right.

Q. Is there any reason why you wouldn’t call Prime?

A. No.

Q. You just don’t remember what company you called?

A. No, I think I called Barrie City Taxi. Yes, Barrie.

Q. Is there any particular reason why you would choose that company?

A. No, because – no, I didn’t remember. Because I got there (sic) like the number in the flyers, you know, on the weekend and there are regular grocery flyers.

Q. Yes.

A. So over there I have like had seen that number and then I dialed and called that.

Q. So are you pretty sure it was Barrie Taxi?

A. Yeah, Barrie City Taxi.

Q. Very sure?

A. It was not, it was not Prime Taxi but it was something Barrie Taxi or Barrie City Taxi, like that.

Q. Okay.

A. Yeah.

MR. WILCOX: Thank you.

MR. FLOSMAN: I have no questions.

THE COURT: No question?

MR. FLOSMAN: No questions in re-examination, Your Honour.

The Trial Judge’s Ruling

6The trial judge gave detailed Reasons for dismissing the application to reopen the defence case. He was aware of the appellant’s position that the evidence was of crucial relevance to a central issue at trial, namely the credibility of Ms. S.I. on the question of whether she was ever away from the family home by herself during the December holidays and that, if not, the offence as described by A.G. and as found by the trial judge could not have occurred. The trial judge was aware of the appellant’s position that the evidence would require the trial judge to reconsider Ms. S.I.’s credibility on other points, the possibility of collusion between A.G. and Ms. S.I. and his analysis of the appellant’s testimony pursuant to R. v. W.D.

7The trial judge reviewed the test for reopening a trial identified by the Ontario Court of Appeal in R. v. Kowall.¹ According to this test

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases...;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief;

(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

8The trial judge reviewed Ms. S.I.’s evidence about the taxi. He found that the issue of whether Ms. S.I. ever left the appellant alone with the children during the December holidays was live and central to the defence at trial and that it was difficult to conceive that experienced trial counsel, after challenging Ms. S.I. on the name of the taxi company, did not turn his mind to the possible availability of contradictory evidence. Ms. S.I.’s answer to the name of the taxi company was in response to the last question defence counsel asked before the court broke for the day to resume again the next day. The trial judge found that there was nothing before him to suggest that the business records could not have been available in some form in February of 2013. The trial judge was aware that the due diligence consideration is not to be strictly applied in criminal cases.

9The trial judge held:

This application must not become an opportunity to second-guess the tactical trial decisions made by previous counsel.

I have no evidence to suggest that the unavailability of the evidence was a reason [why counsel did not pursue this line further in cross-examination or in defence evidence].

10The trial judge noted that evidence which tended to show that Ms. S.I. did not leave the home would be relevant to a potentially decisive issue. However, there was no evidence before him whether there were any other cab companies in the City of Barrie, nor was there evidence whether there were any other cab companies in the City of Barrie that included or incorporated the word “Barrie” in their name. He found that the proposed evidence did not rise to the level required to meet the test of relevance as contemplated in R. v. Kowall: its bearing on Ms. S.I.’s credibility was slight. Ms. S.I. was uncertain about the name of the taxi company and had left open in her evidence the possibility that she got the name wrong. The trial judge determined that the taxi records did not in themselves contradict “the fundamental aspect of Ms. S.I.’s evidence that the appellant seeks to contradict, namely that Ms. S.I. took a cab to the grocery store and was not home when the offence was said to have occurred”. The evidence could not be “stretched into implying that [Ms. S.I.] did not use any taxi and therefore did not attend the store”. In the trial judge’s view, the admission of the records could not reasonably have affected the outcome of the trial given their limited probative value regarding the live issue at trial. The proposed evidence amounted to “simply a bit more” evidence regarding the credibility of the witnesses; it was “not of sufficient relevance or import to satisfy [him] to vacate [his] findings at trial and reopen the case” or “to warrant a declaration of a mistrial.”

Analysis

11The trial judge applied the appropriate test. He did not raise “speculative possibilities”, as argued by the appellant, as a reason to reject material evidence. He heard first-hand Ms. S.I.’s ambiguous and uncertain responses about the taxi company that she used. He had the benefit of hearing the inflection in her voice and any hesitation in her responses. After conviction the test for reopening the defence case is a more rigorous one, required “to protect the integrity of the process, including the enhanced interest in finality”.² Given the trial judge’s finding that Ms. S.I. was not certain about the name of the taxi company, the trial judge was entitled to conclude that proposed evidence that might show she was wrong did not have the force required to meet the test for admission of fresh evidence after conviction.

12An added degree of cogency is required if the evidence could have been led at trial, but for tactical reasons was not, before the admission of the evidence can be said to be in the interest of justice.³ There was no attack on the competence of trial counsel. It was open to the trial judge to find that defence counsel made a tactical decision to not pursue the issue of the taxi company; as the trial judge correctly noted, the application to reopen must not become an opportunity to second-guess the tactical trial decisions made by previous counsel.

13The trial judge did not err in finding that by the exercise of due diligence the evidence could have been adduced at trial, that the evidence did not bear upon a decisive or potentially decisive issue in the trial, and that, if believed, it could not reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. As the trial judge noted:

[the proposed fresh evidence] can hardly be said to be a clear contradiction when the statement said to be contradicted is prefaced with a confession of uncertainty and followed by a response that was vaguer and remains inconclusive.

14This ground of appeal fails. The request of the appellant for this court to admit the fresh evidence is not allowed.

MISAPPREHENSION OF THE EVIDENCE

15The appellant argues that the trial judge misstated the appellant’s evidence, did not consider supporting evidence, overstated the evidence and rested his conclusions upon a mischaracterization of the evidence. In addition, the trial judge failed to consider significant inconsistencies in A.G.’s evidence that raised concerns about witness contamination and collusion.

The Appellant’s Evidence

Home alone and the groceries

16The appellant testified that there were two family dinners at his house over the December holidays. At each there were seven adults and eleven children. When he and the family moved into the residence on December 8, 2011, he had brought three months’ worth of groceries, including diapers for their ten month old child. All that they needed to buy was fresh milk. After December 8, other than for milk, he shopped at most one time for fruit and vegetables. He was “a hundred per cent” sure that neither he nor Ms. S.I. would have had to go shopping to pick up groceries for the family dinner. The appellant’s sister testified that she had taken the appellant and Ms. S.I. to buy meat about a week before the family dinner and had given them some basic groceries when they moved into the home. The appellant testified that Ms. S.I. never left the house on her own when he was home in the two weeks of the December holidays.

17The trial judge found that the appellant’s “staunch assertion that his wife never once left the home on her own struck [him] as overreaching. His evidence regarding a three month supply of all groceries which would pre-empt any subsequent trip to a grocery store in preparation for a big multi-family dinner, not just on this morning but ever, simply does not ring true”.

18It is clear that the import of the appellant’s evidence was that not only did Ms. S.I. never leave the house on her own when he was home, but that she never left him alone with the children in the two week December holiday break to buy food for the family get-together because they had a three month supply of groceries. The appellant’s evidence of sufficient groceries for a family of five, including a ten month old, and for a dinner with seven adults and eleven children, support the trial judge’s assessment of the appellant’s evidence as “overreaching” and not ringing true. This was a finding open to the trial judge. The trial judge did not “unfairly ignore” the defence evidence.

Reconciliation and A.G.

19The appellant testified that he and Ms. S.I. spoke about what they would do with A.G. if they reconciled. He told Ms. S.I. that because of what A.G. told CAS, he could not continue to act as a father to her and he was not prepared to reconcile with Ms. S.I. if A.G. was to live with them.⁴ He told Ms. S.I. that she could send A.G. to Pakistan or Dubai to live with relatives. The appellant testified that he was willing to reconcile with Ms. S.I. despite her allegations of abuse because there were family pressures to reconcile and children need their father and their mother. The appellant testified that “inwardly” his feeling was that A.G. should not be separated from her mother; he had not made any decision about A.G. and had no other discussion about it with Ms. S.I.. Ms. S.I. testified that she told the appellant’s mother that the appellant wanted her to “separate” A.G. from her if she wanted to live with him.

20The trial judge’s conclusion was that the appellant’s prerequisite for reconciliation with Ms. S.I. - that Ms. S.I.’s daughter, a young girl whom he raised as his own, would not be allowed back in the home because of the allegations that she made to CAS about him - did not make sense. The trial judge found that this was especially so in light of the fact that Ms. S.I. was “the subject and primary author of those very allegations”. There was a basis in the evidence for the trial judge’s finding that this was not an “honest or transparent” description of what was going on and that the appellant’s motivation in not having A.G. return to reside with him was to ensure she would not disclose the sexual assault.

The Crown’s Evidence

A.G.’s reason to disclose

21A.G. testified that she told her mother about the touching when she realized that the appellant would not be coming back. She had a “gut feeling” that he was not returning because of the arguments that the appellant and her mother had on the phone. She thought it was the best time to tell her mother because the appellant “wasn’t even around”. A.G. agreed that Ms. S.I.’s relatives were telling Ms. S.I. to reconcile and A.G. did not want that to happen, and that is why she told her mother. When it was put to her in cross-examination that the truth was that she told her mother in order to stop her mother from agreeing to have the appellant back, A.G. testified, “Well, maybe that may be the thing”.

22I do not find this is a significant inconsistency in A.G.’s evidence. A.G.’s feeling that the appellant would not return could have co-existed with her concern that her mother may be pressured to reconcile.

23The appellant raised in oral argument the possibility that A.G.’s motive to disclose may have been triggered by certain actions of the appellant some days before A.G.’s disclosure: the appellant had picked up A.G.’s younger step-sister without Ms. S.I.’s permission. This speculative basis for disclosure does not appear to have been squarely put to A.G. or raised at trial.

Ms. S.I.’s whereabouts

24A.G. told the police that she did not know where her mother was at the time of the incident and did not ask. In her evidence at trial, A.G. testified that at the time she did not know where her mother was. Her evidence on this point was not clarified.

25Ms. S.I. testified that when A.G. disclosed to her what the appellant had done, A.G. reminded her of the time over the December holidays when her mother was grocery shopping. Ms. S.I. testified that she recalled the time and she recounted going grocery shopping to buy food for a family dinner. In cross-examination, she testified that she asked A.G., “Where was I that day?” A.G. told her it was the day she was grocery shopping and then Ms. S.I. “recalled” the day. When Ms. S.I. returned home, A.G. was locked in her parents’ bedroom. Once Ms. S.I. told A.G. she was outside the bedroom, A.G. opened the door and quickly grabbed Ms. S.I. and hugged her. A.G. said she was scared and would only say that it was because her mother was not home. Ms. S.I. testified that she was preoccupied with the “kitchen preparation” and she just let it go.

26The trial judge reviewed A.G.’s evidence. He said, “She said she called for her mother, but her mother was not home, she was out shopping for groceries.”

27Although it was not fully explored at trial, it is clear that at some point A.G. became aware of where her mother had been. Even if the trial judge misstated A.G.’s evidence on this point, it is of no moment as it is abundantly clear on the whole of the evidence that A.G. did not know at the time where her mother had gone. The evidence was insufficient to raise the spectre of collusion; the fact that a 12-year-old would subsequently know where her mother had been when she was out of the house is hardly surprising.

28The evidence disclosed that Ms. S.I. remembered having gone to the store that day once A.G. told her the day to which she was referring.

29The trial judge did not rely “on a ‘scenario’ that was not in evidence about Ms. S.I.’s mental state that day to explain why she forgot that morning”, as argued by the appellant. It was open to the trial judge on the evidence to find that Ms. S.I. was very preoccupied with the evening’s meal and, as such, did not force A.G. to tell her why she was locked in her parents’ bedroom.

The Interpreter

30In his factum, the appellant submitted that the trial judge did not properly acknowledge the impact of difficulties experienced by the interpreter in translating the appellant’s testimony. The appellant did not pursue this in oral argument and I find no merit to it. The trial judge referred to the difficulty inherent in interpreted evidence and expressly made allowances for it.

Analysis

31The assessment and determination of the credibility of witnesses is the province of the trial judge with very limited exceptions. The trial judge is in the unique position of hearing and seeing the witnesses. The interpretation of the evidence of a witness, and what makes sense or what doesn’t, provided it is based in the evidence, is the sole purview of the trial judge. An appellate court is not entitled to retry the case or substitute its own view or interfere with the trial judge’s findings unless they are unreasonable or unsupported by the evidence.⁵

32The trial judge was not mistaken as to the substance of material parts of the evidence. As such, this is not a situation as in R. v. Morrissey,⁶ where those errors play an essential part in the reasoning process resulting in a conviction or a verdict that is not “true”.

STANDARD OF SCRUTINY

33The Court of Appeal dealt with a standard of scrutiny argument in R. v. J.H.,⁷ and held:

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.

Analysis

34Although it is a ground of appeal, the appellant did not pursue the issue of standard of scrutiny in written or oral argument. There is nothing in the evidence to support that the trial judge applied different standards in assessing the evidence. The trial judge engaged in a reasoned and considered analysis of A.G.’s evidence. This led him to accept her evidence. That is reason enough to reject the appellant’s evidence.⁸

APPEAL AS TO SENTENCE

35At the time of sentence, the appellant was a 38-year-old first offender who was separated from his wife, had supervised access to their two children, and paid monthly child support. He worked, was studying and planned to be a civil engineer. The trial judge was aware of the letters of commendation and that the appellant was well-respected, liked and trusted by his community, religiously devout and hard-working, but remarked that crimes such as this are committed away from “prying eyes”.

36The trial judge referred to the extraordinary vulnerability of A.G. who, apart from her mother, was alone in Canada. The trial judge concluded from A.G.’s Victim Impact Statement that the incident had an effect on almost every part of A.G.’s life. He considered that although the physical interaction was not “the most intrusive”, it was a serious sexual assault on a young child and the circumstances, in particular the threat and the appellant’s actions afterwards, were extremely aggravating. The appellant abused a position of trust and “persisted in attempting to tear away the very fabric of [A.G.’s] relationship with her mother”. Accordingly, the trial judge found that general deterrence and denunciation, together with protection of A.G. and the public, were the primary sentencing principles.

37Because of the nature of the relationship of trust and the appellant’s behaviour, which included threatening to send A.G. back to Pakistan where he would have her killed, the trial judge found that this was not a case for a minimum sentence and that the appropriate sentence was one of five months in jail, concurrent on each count, to be reduced by three days to reflect pre-trial custody. The trial judge also imposed a period of probation and ancillary orders.

Analysis

38The appellant argues that it was an error in principle for the trial judge not to thoroughly consider the appropriateness of an intermittent sentence, given the appellant’s status as a first offender, his reputation in the community and his responsibility to provide for his ex-wife and children, and that the trial judge erred in principle by emphasizing deterrence. However, the cases relied upon by the appellant to support an intermittent sentence deal with the sexual component of the offences committed by the appellant. The trial judge found the circumstances surrounding the sexual assault, particularly the appellant’s threat to kill his step-daughter or send her back to Pakistan to be killed, and the prerequisite to his reconciliation with Ms. S.I. - to send A.G. to Pakistan or Dubai - were an extremely aggravating factor on sentencing. He found that A.G. was an extraordinarily vulnerable victim.

39Appellate courts owe substantial deference to sentencing judges. Absent an error in principle, a failure to consider a relevant factor or an overemphasis of appropriate factors, an appellate court should only intervene when the sentence is demonstrably unfit.⁹ A trial judge “also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system” and “will normally preside near or within the community which has suffered the consequences of the offender’s crime”.¹⁰ As such, the Supreme Court has held that the discretion of a sentencing judge should not be interfered with lightly.

40Section 718.01 of the Criminal Code provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Section 718.2 deems such conduct, as well as conduct involving a breach of trust, to be an aggravating circumstance.

41I am not satisfied that the appellant has demonstrated that the trial judge erred in his consideration of the principles of sentencing or in the imposition of a 5 month sentence.

CONCLUSION

42For the foregoing reasons, the appeal as to conviction and sentence is dismissed. The appellant shall surrender forthwith into custody to serve his sentence.

Footnotes

1. 11996 411 (ON CA), [1996] O.J. No. 2715 at para. 31 (C.A.).
2. 2R. v. Kowall, Ibid at para. 31.
3. 3R. v. Maciel, 2007 ONCA 196 at para. 50.
4. 4Ms. S.I. had reported to the CAS that the appellant had choked her and slapped her. A.G. had told the CAS that the appellant was verbally and physically abusive.
5. 5R. v. R.W.B., [2003] O.J. No. 3086 (C.A.) at para. 9; R. v. Lalonde, 2013 ONSC 543, [2013] O.J. No. 315 at paras. 8-9.
6. 6(1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.)
7. 72005 253 (ON CA), [2005] O.J. No. 39 at para. 59 (C.A.).
8. 8R. v. R.M., 2014 ONCA 785, [2014] O.J. No. 5333 at paras. 28-29; R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749; 218 OAC 37 at para. 53.
9. 9R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500, 1996 CarswellBC 1000 at paras. 89-90.
10. 10R. v. C.A.M., supra, at para. 91.