CITATION: R. v. Noland, 2016 ONSC 1209
COURT FILE NO.: 132/14
DATE: 20160218
ONTARIO
SUPERIOR COURT OF JUSTICE
Summary Conviction Appeal Court
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Stephen Noland
Respondent
Greg Black, for the Crown
Michael W. Lacy, for the Respondent
HEARD: January 7, 2016
JUDGMENT
J. Wilcox
INTRODUCTION
[1] Stephen Edward Noland was charged with six counts. Counts 3 and 6 were withdrawn. He pleaded not guilty to counts 1, 2, 4 and 5. Trial took place on March 13 and 14, 2014 before Lalande J. in the Ontario Court of Justice. The accused was found not guilty on all four remaining counts. The Crown has appealed the acquittals.
[2] The four counts, as amended, are:
Count 1: That Stephen Edward Noland, on or about the 2nd and 3rd day of July in the year 2013 at the Municipality of M[…] in the said Region, did commit a sexual assault on A.S., contrary to Section 271 of the Criminal Code;
Count 2: That Stephen Edward Noland, on or about the 2nd and 3rd day of July in the year 2013 at the Municipality of M[…] in the said Region, did for a sexual purpose touch A.S., a person under the age of sixteen years, directly with part of his body to wit his mouth, contrary Section 151(a) of the Criminal Code;
Count 4: That Stephen Edward Noland, on or about the 5th day of July in the year 2013 at the Municipality of M[…] in the said Region, did commit a sexual assault on A.S., contrary to Section 271 of the Criminal Code;
Count 5: That Stephen Edward Noland, on or about the 5th day of July in the year 2013 at the Municipality of M[…] in the said Region, did for sexual purpose touch A.S., a person under the age of sixteen years, directly with part of his body to wit his hand, contrary Section 151(a) of the Criminal Code.
Counts 1 and 2 arise from an incident on July 2-3, 2013, where the accused play fought with the complainant, including tickling her and biting her buttocks. Counts 4 and 5 arose from the complainant’s allegation that, in an incident on July 5, 2013, the respondent touched her vaginal area.
[3] It is important to note that, in submissions at trial, the Crown stated that, “(e)verything Mr. Noland (the Respondent) says accords with everything that Miss A.S. (the Complainant) said. The only point of difference is this touching of the labia. Everything else absolutely agrees…”. This was echoed in the reasons for judgment, when the trial judge said, “(t)he main features of his (the Respondent’s) evidence, except for the incident unfolding on the morning of July 5, 2013, are not dissimilar to hers (the Complainant’s)”.
[4] Consequently, different considerations apply to the two pairs of charges at trial. For the July 2-3, 2013 pair, there were no issues of fact or credibility. The issue was whether the facts supported the charge. In contrast, for the July 5, 2013 pair, there were issues of fact and credibility, and the determination of guilt or not depended on their resolution. This distinction is critical to dealing with the Crown’s appeal.
[5] The Crown submitted on appeal that the trial judge had erred in five ways as set out in its factum at paragraph 21:
i. In misunderstanding the law of sexual assault;
ii. In incorrectly concluding that circumstantial evidence cannot corroborate;
iii. In erroneously requiring corroboration of the complainant’s evidence;
iv. In neglecting to apply the W.D. analysis; and
v. In failing to give reasons sufficient to allow meaningful appellant review.
[6] In argument, it dealt with ii and iii together. I will deal with these in the same order.
RE: I. MISUNDERSTANDING THE LAW OF SEXUAL ASSAULT
[7] The Crown submitted that the trial judge erred in concluding that to find the respondent guilty of sexual assault, the Crown had to prove that respondent had a sexual motive or purpose when he touched the complainant. This, as I understand it, applied to count 1.
[8] In counsel’s submissions at trial dealing with count 1, sexual assault, the case of R. v. Chase, (1987) 1987 CanLII 23 (SCC), 37 CCC (3d) 97 (S.C.C.) and more specifically the test in it for recognizing sexual assault was referred to the court, as were R. v. Ewanchuk, [1991] S.C.J. No. 10 (S.C.C.) and R. v. Lutoslawski, 2010 ONCA 207, [2010] O.J. No. 1094 (Ont. C.A.), since upheld by the Supreme Court of Canada. The trial judge referred explicitly in his reasons to the criteria in the Chase test and generally to the other cases mentioned and the current state of the law.
[9] In R. v. Chase, the Supreme Court of Canada, stated at paragraph 11:
- Sexual assault is an assault, within any one of the definitions of that concept in s. 244(1) of the Criminal Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?": Taylor, supra, per Laycraft C.J.A., at p. 269. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force, will be relevant. … The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
[10] The Crown at trial submitted that she thought R. v. Chase was still in effect but R. v. Ewanchuk is the ultimate authority on point. In paragraph of that case, the Supreme Court of Canada stated:
25 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, and R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293.
[11] In R. v. Lutoslawski, 2010 ONCA 207, [2010] O.J. No. 1094 the Ontario Court of Appeal quoted from paragraph 11 of R. v. Chase in support of the statement that “Sexual assault does not require proof of an improper or ulterior purpose”. The court went on in paragraph 37 to say that “The respondent’s purpose in touching the complainants was not an element of the offence, but was instead evidence that could be considered along with the other circumstances”. This case was appealed to the Supreme Court of Canada on other grounds, but the appealed was dismissed.
[12] The issue of the use to be made of the Respondent’s purpose or motive in dealing with a sexual assault charge was the subject of considerable comment in counsel’s submissions to the trial judge. Defence counsel’s submissions included that, “(T)his is not a situation where Mr. Noland would have to have touched her for a sexual purpose”, and went on to submit that the issue is whether the touching was objectively sexual, in the determination of which motive may be a factor. The Crown explicitly agreed with that.
[13] With the benefit of the case law and counsel’s submissions on sexual assault, the trial judge dealt with counts 1 and 2 in two places in his reasons, starting at pages 82 and 84 respectively. In both places, he performed an objective test of whether the impugned conduct had the requisite sexual nature, deciding that he could not conclude beyond a reasonable doubt that it did. In both, he refers to the Respondent’s purpose or motive. This, of course, is one of the grounds for the Crown’s appeal. In all the circumstances, however, I find that the trial judge was not considering the Respondent’s subjective motive as an element of the offence of sexual assault, but rather as a factor in deciding whether the conduct was sexual. Motive was also relevant to count 2, which alleged a touching for a sexual purpose, and the trial judge was dealing at this point with the events of July 2 and 3, from which both counts 1 and 2 arose. Seen this way, there is no error.
RE: II. INCORRECTLY CONCLUDING THAT CIRCUMSTANTIAL EVIDENCE CANNOT CORROBORATE, AND III. ERRONEOUSLY REQUIRING CORROBORATION OF THE COMPLAINANTS EVIDENCE
[14] The Crown submitted that the trial judge made three serious errors with respect to the issue of corroboration:
i. He found that circumstantial evidence could never be corroborative evidence;
ii. He held that evidence of the complainant’s demeanor immediately following the alleged offence could never corroborate the complainant’s evidence;
iii. He appears to have concluded that without corroboration for the complainant’s evidence, he had to reject it, despite finding it credible.
[15] In dealing with credibility, the trial judge found nothing that detracted from the complainant’s. He was somewhat critical of the way the accused gave his evidence, but did not find him to be untruthful. The court noted both the necessity of being cautious in assessing credibility on the basis of a witness’s appearance or demeanor alone, and the accused’s outright denial of touching the complainant as she had described. At this point, the trial judge would have been referring to the July 5 incident.
[16] The trial judge stated that he could accept the complainant’s evidence and find that the Crown had proved its case beyond a reasonable doubt without any corroborative evidence, through a W.D. analysis. This answers the third alleged error. He found a lack of “actual corroborative evidence”, while acknowledging the Crown’s “valuable submissions touching upon corroborative evidence in terms of inferences to be arrived at by assessing the evidence”. He said this was not to be ignored, but contrasted it with more direct corroborative evidence.
[17] The Crown submits that by following the comment cautioning against deciding credibility based on demeanor with finding of a lack of actual corroborative evidence the trial judge shows that he thought circumstantial evidence could never be corroborative.
[18] For clarity, it is necessary to point out that demeanor was used in two contexts. Firstly, the trial judge spoke explicitly of the accused’s demeanor in giving evidence. Secondly, in its submissions at trial, the Crown had also referred to the evidence of the demeanor of the complainant together with the complainant leaving the scene immediately following the alleged July 5 incident as being corroborating circumstantial evidence. It is the second context that the trial judge refers to in discussing actual corroborative evidence.
[19] I do not accept the appellant’s premise with respect to the first two alleged errors to do with corroborative evidence.
[20] In discussing corroborative evidence, the trial judge drew a distinction between evidence of a direct nature, which he referred to as “actual corroborative evidence” and corroborative inferences. He did not say, nor do I find that he implied, that circumstantial evidence or evidence of the complainant’s demeanor following the alleged offence could never be corroborative of the complainant’s evidence. On the contrary, he spoke of the Crown’s valuable submissions about corroborative inferences, and how they were not to be ignored. Therefore, I would not give effect to these grounds of appeal.
RE: IV. NEGELCTING TO APPLY THE W.D. ANALYSIS
[21] The Crown took issue on appeal with the trial judge’s W.D. analysis with respect to both the July 2 and 3 charges and the July 5th charges.
[22] From his reasons, it is abundantly clear that the trial judge was aware of the W.D. analysis. He mentioned it once and later set it out in some detail for the benefit of the public, along with the concept of proof beyond reasonable doubt.
[23] With respect to the July 2 and 3 allegations, the Crown on appeal argued that there were material inconsistencies in the complainant’s and accused’s evidence which the trial judge failed to analyse in accordance with W.D. However, as noted earlier in these reasons, the Crown submitted at trial and the trial judge found that there were no significant differences in the complainant’s and accused’s evidence except with respect to the July 5 incident.
[24] This point undermines the Crown’s argument on appeal. There was no place for a W.D. analysis in the July 2 and 3 incident. The issues there were legal, not ones of credibility.
[25] Turning to the July 5th incident, the Crown on appeal submitted that the trial judge only abstractly stated the W.D. test, but failed to apply the analysis to the facts of the case in that he failed to indicate what part of the accused’s evidence he accepted and how that evidence raised a doubt about the complainant’s evidence which he appears to have accepted.
[26] In reviewing the evidence with respect to July 5th, the trial judge set out the complainant’s allegations that the accused touched her vaginal area, and the accused’s denial. He also noted the accused’s opportunity to have touched the complainant as she alleged was likely reduced by the presence of others. His positive comments about the complainant’s and accused’s credibility have been reviewed above.
[27] Given that the only point in contention was whether the accused had touched the complainant as she alleged and he denied, and that the trial judge had not found reason to doubt the credibility of the accused in particular, I think it is clear that, although he might have worded his reasons differently at the end to reiterate it, he believed the accused’s evidence on that point, or was at least left in reasonable doubt by it or by the presence of other persons when the touching was alleged to have taken place, or both. Therefore, I would dismiss that ground of appeal.
V. RE FAILING TO GIVE REASONS SUFFICIENT TO ALLOW MEANINGFUL APPELLATE REVIEW
[28] The Crown appeals on the ground that the appellant does not know how or if the trial judge resolved inconsistencies between the evidence of the complainant and that of the accused with respect to the July 2 and 3 allegations.
[29] As previously stated, the Crown at trial did not argue that there were inconsistencies in the facts of this incident, but submitted that the only point of difference between the complainant’s evidence and the accused’s was with respect to whether he had touched her vaginal area on July 5th, which submission the trial judge agreed with.
[30] By arguing as it is on appeal, the Crown is, in effect, attempting to re-argue the trial.
[31] As there were no inconsistencies alleged between the two side’s versions of this incident at trial, the trial judge had nothing to resolve.
[32] I would dismiss this part of the appeal.
[33] The Crown also submitted that the trial judge’s reasons did not explain why the accused was acquitted of the charges arising from the July 5th allegations because he did not answer three pivotal questions:
i. Did the trial judge accept the respondent’s statement that he did not touch the complainant’s labia?
ii. Did he accept any part of the respondent’s evidence, and, if so, what part?
iii. Having apparently accepted the evidence of the complainant, why was he left with a doubt about it?
[34] The response here is similar to that given regarding the alleged faults in the W.D. analysis. There was only one fact in issue, that being whether the accused touched the complainant’s vaginal area as she alleged. The trial judge did not find that there were any serious inconsistencies in her evidence that would detract from her credibility, nor did he get the impression that she was fabricating her responses. On the other hand, he did not find that the accused was being untruthful. Nevertheless, the trial judge expressed some misgivings about the complainant’s evidence and in particular about the limited opportunity the accused would have had in the circumstances with others around to do as the complainant alleged.
[35] It is clear enough to me that that was what the trial judge had in mind when, at the end of his reasons, he applied the W.D. analysis, even if it could have been worded differently, and found that he was left with a reasonable doubt.
[36] I am not persuaded that the trial judge erred as alleged or at all.
[37] The appeal is dismissed.
Justice J. A. S. Wilcox
Released: February 18, 2016
CITATION: R. v. Noland, 2016 ONSC 1209
COURT FILE NO.: 132/14
DATE: 20160218
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Stephen Noland
JUDGMENT
Justice J. A. S. Wilcox
Released: February 18, 2016