WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

BARRIE COURT FILE NO.: 13-229

DATE: 20150819

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

C.M. (A “young person” pursuant to the Youth Criminal Justice Act)
Appellant

B. Bhangu, for the Crown

R. Galati, for the Appellant

HEARD: August 17, 2015

REASONS FOR DECISION

On appeal from the decision of The Hon. Mr. Justice J.-J. Douglas
dated April 10, 2013 (conviction) and October 21, 2013 (sentence).

EBERHARD J.:

[1] This is an appeal of conviction and sentence brought by C. M., a young person.

[2] The grounds for appeal in the order argued but in the wording set out in the Appellant’s factum are:

(a) that the trial judge applied different, and biased standards to determine “credibility’ and, in doing so.

(i) assessed the complainant’s evidence in detail and with detailed reasons; while

(ii) nebulously and summarily rejected the Appellant’s evidence, without any analysis and rejected its credibility solely on the circular reasoning that the Appellant had the audacity [sic] to deny the allegations and assert his innocence; thus breaching the Appellant’s right to intelligible reasons for Appellate review;

(b) that the trial judge while reciting and referring to the test in, inter alia, R. v. W.(D.), wholly misapplied the reasonable doubt test;

(c) that, in misapplying the test on reasonable doubt, the trial judge’s reasons exude a palatable (reasonable apprehension of) bias against the Appellant contrary not only to s. 7 of the Charter, but further trampling on the Appellant’s presumption and right(s) to assert his innocence.

[3] To assess error in the assessment of credibility, misapplication of the rule in R. v. W.(D.), and reasonable apprehension of bias it is necessary to review the entire transcript and the reasons for judgment to give context to individual findings and to give perspective to the impact of the particular factor on the reasons as a whole. This I have done after hearing submissions directing me to the significant passages.

[4] The Appellant directed me to the Trial Judge’s assessment of the Complainant’s evidence submitting he too easily excused inconsistency as the product of emotion and confusion, and not impacting on her core evidence. Counsel then compared the Trial Judge’s assessment of the evidence of the Appellant which used words such as “rehearsed”, “arrogant”, “answer for everything”, “reconstructed”, argumentative” and “unrealistic”. This disparity in tone requires analysis under the principles cited in the recent Court of Appeal case R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675 at paragraphs 60-62, 86-87 and 90-96.

[5] I do not find that the Trial Judge did not scrutinize the Complainant’s evidence adequately. He rejected some of the suggested inconsistency on the facts, but carefully reviewed the evidence about who said what outside of the door where she testified she was being sexually assaulted by the principle perpetrator. He made a finding of confusion on points she had initially asserted in that regard. Her narrative remained consistent as to the events occurring and he rejected the suggested blights on her credibility that she failed to avoid the after school pattern of leaving the school in similar manner to the first assault, and failed to self-protect or immediately disclose. Those findings are consistent with contemporary insight and law as to the expected conduct of victims of sexual assault.

[6] The findings about the Appellant do invoke a good deal of commentary about the demeanour of the Appellant. The Trial Judge twice self-instructed himself that caution must be taken in assessing credulity on the basis of demeanour. As strongly stated in Rhayel, it is but one factor. The first three factors explained by the Trial Judge did address demeanour issues: rehearsed, answer for everything and reconstructed. Going on he found the express lack of curiosity unbelievable in the context. That finding was within his assessment of common sense. He did return to demeanour in his finding of argumentative and arrogant which behaviour he found “so all-encompassing in its attempt to force his unrealistic view of reality, that I found it pathological”.

[7] But the critical intervening finding was that the Appellant denied any participation in getting the Complainant into the washroom where she testifies she was sexually assaulted and denied being present at all in the second and third occasion when the incidents were said to occur.

[8] The other boy, besides the Appellant, alleged by the Complainant to have shoved her into the washroom, reluctantly, puts the Appellant at the scene and participating in putting the Complainant into the washroom with the perpetrator of the sexual assault. This second boy, utterly incapable of maintaining falsehood, reluctantly implicated the Appellant and corroborated the main elements of the complainant’s testimony.

[9] There was no error in rejecting the evidence of the Appellant.

[10] The was no evidence to the contrary that what happened in the bathroom was sexual assault as described by the Complainant and evidence of the incidents having occurred at all, if it were required beyond her own testimony, was found in the corroboration of the second boy involved in like manner as the Appellant.

[11] I find that the rejection of the Appellant’s evidence was not the result of having applied greater scrutiny but rather that the Appellant’s evidence was contradicted and could not stand in light of the total evidence.

[12] Having found that the analysis of evidence did not apply a greater scrutiny to the Appellant than to the Complainant, I turn to the application of R. v. W.(D.), (and Ay). The statement that the Trial Judge rejected the evidence of the Appellant, and that the evidence of the Appellant did not raise a reasonable doubt were justified on the evidence. He accepted the evidence of the Complainant largely confirmed by the second boy. That too is proper.

[13] However, I considered carefully whether the Trial Judge demonstrated he reversed the onus by remarking “No reason is suggested as to why the Complainant would invent these sort of allegations” It would be improper to speculate on why a Complainant would put herself through this process if the allegations were not founded or to require the accused person to put forward such reasons but there is no error in finding an absence of motive to invent allegations (R. v. L. (J.K.) 2012 ONCA 245, [2012] O.J. No. 1716, R. v. Windibank, 2012 ONCA 237, [2012] O.J. No. 1604 as one factor in the assessment of credibility.

[14] A further aspect of the third component of the R. v. W.(D.) analysis was not argued but I find necessary to consider. Having found that the Appellant participated in shoving the Complainant into a washroom with the perpetrator there is proof beyond a reasonable doubt of assault but for the conviction to stand there must be a further element proven for conviction on the basis he was a party to the offence, that the Appellant knew sexual assault was the intended conduct of the perpetrator in the washroom the Appellant helped shove the Complainant into.

[15] The Trial Judge found “While B waffles on what the joke was, when pressed, he concedes sex was a consideration. In my view, in the context of this teenage male telling a teenage girl, in the presence of two of his buddies, “that I’d have to do whatever he wanted in the washroom”, which was immediately followed by the planned confinement, in the washroom, by the three, there can be no doubt that all knew D was contemplating a sexual encounter. While the extent, or degree, of that sexual encounter might be in some issue, the quality of the act to be perpetrated as sexual was not.”

[16] The Appellant denied any interest in or conversation about what had happened but in an exchange in cross-examination he responded:

Q. You’d agree, it’s a little bit unusual amongst guys in a high school, if one of their friends goes into the washroom with a female…

A. Well, I-well, that’s making a suggestion. I’m a different type of person. I’m not that kind of guy who asks, you know, those kind of things about sexual stuff, or bragging about what kind of women you’re with. I don’t look at it that way.

Q. You’re not…

A. They had-they, they might have had personal business. They might not. But if they did, it wasn’t any of my business.

[17] The Trial Judge remarked on this lack of curiosity. I find it capable of supporting the Trial Judge’s analysis of what the Appellant would have known in that the Appellant knew exactly what the Crown was getting at as the natural assumption that would arise in the circumstance and denied he was a person who asked about sexual stuff.

[18] I therefore find evidence capable of supporting a finding of the final element of a charge of sexual assault beyond a reasonable doubt.

[19] The ground of reasonable apprehension of bias is unfounded. The remarks the Trial Judge made about the Appellant in his reasons were judgment, not pre-judgment. Further, there is no evidence to support an assertion that this Trial Judge tends to favour the Complainant, or adversely, tends to bare a bias against persons accused of sexual assault.

[20] The appeal of conviction is dismissed.

[21] Finally, as to sentence, I am told that the Appellant has borne a greater impact from his sentence because of the position taken by the school. That may be so, but I have no indication that the sentence of probation and community service, both now completed, was out of the appropriate range.

[22] The appeal of sentence is dismissed.

EBERHARD J.

Released: August 19, 2015