CITATION: R. v. Raveedran, 2016 ONSC 2009
COURT FILE: SCA(P) 969/15
DATE: 2016 03 22
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. P. Renwick, for the Respondent
Respondent
- and -
NIVETHAN RAVEEDRAN
B. Vandebeek, for the Appellant
Appellant
HEARD: March 21, 2016 at Brampton
ENDORSEMENT
[on appeal from conviction by Monahan J. on February 3, 2015]
HILL J.
INTRODUCTION
[1] After a three-witness trial, the appellant was found guilty of sexual assault. The prosecution witnesses were the complainant (M.M.) and her friend, A.P.. The appellant testified on his own behalf.
[2] The appellant appeals against conviction only.
Factual Overview
[3] The 17-year-old complainant, a high school student, had known the 19-year old appellant for some time. Prior to the date of the offence, March 27, 2014, there had been no romantic involvement between the two although the evidence at trial suggested that M.M. had such an interest in the appellant.
[4] On the offence date, the appellant texted M.M. early in the morning, and in exchanged text messages learned that she was home alone from school. The appellant, with M.M.’s consent, invited himself over to her ground-level apartment where M.M. resided with her mother.
[5] The complainant’s evidence included these allegations. After a consensual kiss, the appellant took her to a livingroom sofa where he sexually assaulted her, in a manner described in her trial testimony, despite her vocal and physical efforts to have him desist. She successfully resisted an effort on the part of the appellant to pull her into the bedroom.
[6] The appellant’s testimonial account was that after M.M. kissed him they engaged in consensual kissing while situated on the couch. Then, thinking of his girlfriend, he felt he had to draw the line. He terminated further physical contact with M.M.
[7] Ms. A.P. testified to her observations of M.M., her friend of ten years, when the complainant came to her home shortly after the interaction with the appellant in the apartment livingroom. Ms. A.P. informed the court that M.M. burst through the front door. M.M. was very pale, a bit wobbly, looked as though she might faint, and seemed to be “in a total state of shock”. Never having seen M.M. in this state before, Ms. A.P. was scared and at first thought someone was injured or had died. M.M. then provided a measure of disclosure to her friend respecting the assault by the appellant – “[s]he seemed very traumatized on what had happened to her”.
[8] Without reviewing the details of the evidence, the trial court heard through the testimony of the complainant and the appellant about communications between these principals after the assault. In the afternoon of March 27, at 3:19 p.m., M.M. texted the appellant to say that what had happened that day shouldn’t have happened, that what he did was technically sexual assault, and that if he ever talked to her again she would report it to the police. The appellant testified that M.M.’s text spoke of an “attempt rape”. The appellant’s evidence was confusing and inconsistent regarding whether he had read the entirety of M.M.’s text before responding at 3:21 p.m. to say: “Okay! I’m really sorry for what happened today!” After the complainant contacted the police on March 28, the appellant was arrested on March 29 and signed his release papers at about 9:15 a.m. M.M. testified that at 9:27 a.m. when she received a phonecall from the appellant, who said he was “sorry”, she told him to never call her again.
Reasons of the Trial Court
[9] The summary conviction trial judge reserved judgment after oral submissions were heard by the court. Three weeks later, the court provided a 24-page typed judgment.
[10] After extensive review of the trial evidence, the trial judge articulated the legal principles relating to burden of proof and the W.D. analysis respecting the evidence and credibility analysis.
[11] The trial court accepted M.M.’s evidence of what happened including on the basis that the complainant’s distressed condition shortly after the incident was confirmatory of a non-consensual assault as she described. The court rejected the defence assertion that M.M.’s condition was feigned or the result of upset on account of being rebuffed by the appellant, or embarrassed by that or the risk of harm to their relationship.
[12] The trial judge rejected the appellant’s evidence and found that on the whole of the record it failed to raise a reasonable doubt. The evidence of communications from the appellant to M.M. on March 27 and 29 were confirmatory of the complainant’s version of sexual contact beyond a mere kiss. Material aspects of the appellant’s evidence were characterized as evasive and not making a lot of sense.
Issues
[13] On behalf of the appellant, Ms. Vandebeek submitted that the trial judge gave “undue weight” to the evidence of M.M.’s emotional state – “far too much emphasis” was placed on this evidence. The court considered this evidence to be significant and used it in various ways including to confirm M.M.’s account, to explain away inconsistencies in her evidence, and to undermine the credibility of the appellant.
[14] Counsel argued that in light of the various alternate inferences reasonably available at trial to explain the complainant’s condition, the trial court erred in finding this evidence to be corroborative of M.M.’s version of events.
[15] It was further submitted that the trial court erred in dismissing an inconsistency in M.M.’s evidence as to when and where she deleted certain text messages from her phone on the basis of M.M.’s upset condition. In a related submission, it is said that the court shifted the burden of proof in noting a lack of cross-examination of M.M. relating to the timing of the texts to the time when M.M. was at Ms. A.P.’ home.
Analysis
[16] In most respects, the submissions of the appellant focus upon the alleged unreasonableness of the trial court’s inference-drawing respecting the complainant’s observed emotional condition shortly after M.M. left her apartment.
[17] This court has limited authority to dislodge factual findings by a trier of fact or to assign different emphasis to the significance of facts as found. In R. v. Smith, 2016 ONCA 25, at paras. 71-75, 78, Watt J.A. stated:
[71] The test for an appellate court to apply when a verdict is impeached as unreasonable is to consider whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. The test imports not only an objective assessment, but also, to some extent at least, a subjective evaluation: Biniaris, at para. 36.
[72] The test requires us to determine what verdict a reasonable jury, properly instructed, could judicially have rendered. In doing so we are required to review, analyze and, within the limits of appellate disadvantage, weigh the evidence. We must examine the weight of the evidence, not its bare sufficiency: Biniaris, at para. 36. Our entitlement to review the evidence adduced at trial, to re-examine and reweigh it, is only to determine whether the evidence, as a whole, is reasonably capable of supporting the verdict rendered: R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 663.
[73] In deciding whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered, we must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28. We must ask whether a jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conviction: W.H., at para. 2.
[74] The test and inquiries described above are expressed in terms of a verdict reached by a jury. They are equally applicable to cases such as this where the verdict under review is that rendered by a judge sitting without a jury. That said, the review for unreasonableness is different when the verdict is that of a judge accompanied by reasons for judgment. In judge alone cases, an appellate court may be able to identify some flaw in the evaluation of the evidence, or in the judge’s analysis, that will serve to explain the unreasonable conclusion the judge has reached: Biniaris, at para. 37.
[75] In cases tried without a jury, the unreasonableness analysis required under R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, involves scrutiny of the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15, 44. Under this test, an appellate court can interfere where a trial judge draws an inference or makes a finding of fact that is:
i. plainly contradicted by the evidence relied upon by the judge for that purpose; or
ii. demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge: Sinclair, at para. 16.
[78] It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct. Among the inferences that may be available is that an accused’s conduct was culpable: Figueroa, at para. 35; Salah, at para. 227.
(emphasis of original)
[18] The trial judge provided thorough and thoughtful reasons for judgment in this credibility case. The trial court had the inestimable advantage of seeing and hearing the witnesses. The court was the beneficiary of focused closing submissions from counsel.
[19] A complainant’s emotional condition is circumstantial evidence capable of being corroborative of the truth of the witness’ account: R. v. B.(G.) (1990), 1990 CanLII 113 (SCC), 56 C.C.C. (3d) 161 (S.C.C.), at pp. 164, 167-8; R. v. Haggart, [2010] O.J. No. 268 (C.A.), at para. 14; R. v. Folland (1999), 1999 CanLII 3684 (ON CA), 132 C.C.C. (3d) 14 (Ont. C.A.), at paras. 24-5.
[20] The observed emotional condition of M.M., as described by A.P., was important evidence considering the timing of events and the depth of distress reported by Ms. A.P.. That evidence was uncontradicted and A.P. was not cross-examined to suggest that the complainant was not in the condition described by the witness.
[21] The trial judge was alive to the defence theory that M.M. fabricated an account of assault in speaking to Ms. A.P. and may have appeared upset because her relationship with someone in whom she was romantically interested may have been jeopardized.
[22] The trial judge’s reference to his observations of M.M., and consideration of her evidence, as contributing to a finding that she did not seem to be a person who would be “upset to the degree” described by A.P. from mere rejection by someone in whom she was interested, was not speculation but a considered proportionality determination that the depth of distress could only reasonably be sourced to M.M. having been sexually assaulted.
[23] The trial court, not unreasonably, concluded that, in light of the totality of evidence, the emotional condition of M.M. was a significant circumstance which confirmed her account of having been subjected to a sexual assault at the hands of the appellant. This evidence was not treated as the only reason to reject the appellant’s version of events. There was no over-emphasis or misuse of this evidence.
Conclusion
[24] The appeal is dismissed.
Hill J.
DATE: March 22, 2016
CITATION: R. v. Raveedran, 2016 ONSC 2009
COURT FILE: SCA(P) 969/15
DATE: 2016 03 22
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. NIVETHAN RAVEEDRAN
COUNSEL: P. Renwick, for the Respondent
B. Vandebeek, for the Appellant
ENDORSEMENT
[on appeal from conviction by Monahan J. on February 3, 2015]
Hill J.
DATE: March 22, 2016