R. v. Waterman, 2016 ONSC 2931

COURT FILE NO.: CR-14-30000155-00AP DATE: 20160510

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JUAN WATERMAN Appellant

COUNSEL: Sunita Malik, for the Crown Howard C. Cohen and J. Parise, for the Appellant

HEARD: April 8, 2016

REASONS FOR DECISION

[On Appeal From the Judgment Dated September 2, 2014 of Justice T. Cleary of the Ontario Court of Justice and the Sentence Imposed on December 15, 2014]

B. P. O’Marra, J.

BACKGROUND

[1] The appellant was found guilty of sexual assault, invitation to sexual touching and sexual interference after three days of evidence in July and August 2014. The sexual assault charge was stayed pursuant to the Kienapple principles. The complainant, A.C., was eleven years old at the time of the offences. The appellant was sentenced to five months consecutive on each count followed by a two-year probation order. The appellant appeals the conviction and sentence.

[2] The grounds of appeal can be summarized as follows:

(1) The trial judge failed to appropriately apply the principles of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, in considering the testimony of the appellant;

(2) The trial judge misapprehended the evidence;

(3) The verdicts were unreasonable;

(4) The reasons for judgment were insufficient; and

(5) The sentence imposed was harsh and excessive.

SUMMARY OF THE EVIDENCE

[3] A.C. was the grand-niece of the appellant’s partner, B.J.W. The appellant and B.J.W had been in a common-law relationship for approximately eighteen years. Two of B.J.W’s three adult children lived at home with her and the appellant at the time of the offences. The appellant was a long-time acquaintance of A.C.’s parents.

[4] On several occasions in 2011 and 2012, A.C. slept overnight at the apartment belonging to B.J.W. and the appellant. She initially slept on a sofa but eventually slept in the bedroom with B.J.W. and the appellant. B.J.W. suggested that A.C. sleep on the bed between her and the appellant out of a concern that A.C. might fall out of the bed.

[5] On a date in December 2012, A.C. met B.J.W. and the appellant at a Tim Hortons near the apartment. The appellant and A.C. left the Tim Hortons and went to the appellant’s apartment. The appellant indicated that he had heard about A.C.’s “magic fingers” and wanted her to give him a massage. The appellant testified that he sat on a couch and A.C. complied with his request, massaging and tickling the appellant’s back, legs and feet.

[6] The appellant changed into different clothes – either a t-shirt or tank top and boxer shorts or “leisure” shorts. A.C. continued the massage. The appellant suggested that they move into the bedroom. The appellant lay on the bed on his stomach. A.C. continued to massage him. The appellant testified that A.C. tickled the area behind his knees and then upwards to a few inches above his knee.

[7] The appellant turned over and lay on his back. The appellant testified that A.C. tickled his feet and then up his leg until she was tickling the area of his inner thighs, but below his groin. The tickling was bothering his skin, so he demonstrated on A.C. the manner in which he wished to be tickled. For this, A.C. lay on her back and the appellant tickled her leg from foot to thigh.

[8] Most of the interaction was described similarly by the appellant and the complainant. They differ in one fundamental aspect. The appellant said nothing happened other than the non-sexual massage. A.C., however, testified that the appellant pulled her hand to his groin area and showed her how he wished her to massage him there. A.C. said she “felt his privates.” A.C. quoted the appellant as saying “that’s the spot.” The contact lasted thirty seconds. A.C. stated that the appellant’s hands “were rubbing against her crotch” during his massage demonstration and that he put his fingers inside her.

[9] The interaction between the appellant and A.C. ended when the complainant said her foot was hurting. A.C. testified that the appellant told her “not to tell anyone or we will get into serious trouble.” The appellant inspected her foot and found nothing to cause pain. When B.J.W. returned home, she also looked at the A.C.’s foot and found nothing. A.C. testified that she had faked the foot injury in order to end the interaction with the appellant. That same night, A.C. slept in the bed with the appellant and B.J.W.

[10] On one occasion in January 2013, A.C. slept overnight on the bed with the appellant and B.J.W. The appellant visited A.C.’s family at their residence throughout January 2013.

[11] A.C. disclosed the incident to her mother in February 2013. The appellant was arrested later that month.

REASONS FOR JUDGMENT AT TRIAL

[12] The evidence and submissions of counsel were completed on August 18, 2014. The trial judge reserved judgment until September 2, 2014. On that date he delivered reasons for judgment that extend for twenty-five pages. The only two witnesses to the critical events were A.C. and the appellant. There was no dispute that they were alone in the bedroom and administered massages to each other. The trial judge showed commendable and appropriate judicial restraint in specifically stating that even though the undisputed facts would be viewed as inappropriate by many, that alone was not a basis to find that criminal offences had occurred.

[13] Before finding beyond a reasonable doubt that there was unlawful sexual conduct by the appellant, the trial judge referred to the following:

(1) Inconsistencies within the evidence of A.C. and between her evidence and the evidence of other witnesses;

(2) An assessment of both credibility and reliability of A.C.; and

(3) Specific reference to the three aspects of the W.(D.) analysis related to the evidence of the appellant.

APPEAL AGAINST THE CONVICTIONS

Alleged Failure to Appropriately Apply W.(D.)

[14] On p. 26 of the Reasons for Judgment, the trial judge indicated the following:

Overall I find that on the testimony of the contact that was alleged by the complainant, which would amount to the substances (sic) of the offences before the court, I find I do not have a reasonable doubt that there was physical contact by him in the way she described, and that it amounts to the first three charges being proved beyond a reasonable doubt. He did invite her to contact him with her hands, in fact he took them in his hands for some time, he did commit a sexual assault on her, and he did for a sexual purpose touch her with his hands as she described.

[15] The appellant submits that this “totality” approach to the W.(D.) analysis was in error. Justice M. Code addressed this issue in R. v. Thomas, 2012 ONSC 6653, at paras. 21-24:

The Appellant submits that the trial judge misapplied the burden of proof, when resolving the central issues of credibility and reliability against Thomas and in favour of the five independent Crown witnesses. He relies on the well-known principles set out in R. v. D.(W.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

The first aspect of this argument is based on a literalist reading of the model jury charge in W.D., as if it sets out three sequential steps that the trier of fact must take, one at a time. Mr. Gold submits that the trial judge erred in his timing because he accepted the Crown’s evidence (“step 3”) before he even considered Thomas’ evidence (“step 1” and “step 2”). Mr. Gold concedes that the trier of fact must take all the evidence into account, at “step 1” and at “step 2”, but that it is an error to actually accept the credibility and reliability of the Crown’s witnesses when undertaking the first two temporal stages of this complex analytical exercise.

In my view, this is a misreading of W.D. That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). See: R. v. Edwards, 2012 ONSC 3373 at paras. 13-25 (S.C.J.), where the authorities on this point are discussed at some length.

Mr. Gold’s approach is unworkable in practice. A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.

[16] The final comments of the trial judge must be read along with his earlier specific reference to W.(D.) at pp. 16-18 of the judgment. The trial judge was clearly alive to the W.(D.) principles. I am not persuaded that the trial judge failed to apply the appropriate standard in assessing the evidence of the appellant. This ground of appeal fails.

Misapprehension of Evidence

[17] The Court of Appeal for Ontario in R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, efficiently summarized both the legal standard and applicable case law for appellate review based on a trial judgeʼs alleged misapprehension of evidence as follows, at para. 60:

A misapprehension of the evidence may relate to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey, (1995) 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. To set aside a conviction on the basis that the trial judge misapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judgeʼs reasoning and the alleged errors must play an essential part in the reasoning process, not just of the narrative. A mere misstatement or inaccuracy in the trial judgeʼs treatment of the evidence does not constitute a reversible error: Lohrer at para. 2; Morrissey at p. 541; R. v. T.(T) (2009), 2009 ONCA 613, 68 C.R. (6th) 1 (Ont. C.A.), at para. 33.

[18] The appellant submits there were errors at trial related to the following:

“Justification for the context of the incident”

[19] The appellant referred to evidence that A.C. had frequently massaged other family members. Thus, the appellant’s request for a massage from an eleven-year-old girl should not, without more, suggest there was criminal conduct.

[20] The trial judge specifically stated that the undisputed circumstances of mutual massages involving a child, while objectively inappropriate, did not elevate the events to proof of a crime. There is no basis to find that the trial judge misapplied or misinterpreted this evidence.

“The absence of any pre-incident indicia of an illicit motive”

[21] This assertion appears to be that the Crown failed to prove a motive and intention to commit the sexual assaults before A.C. and the appellant ended up alone in the bedroom. That is not something the Crown is obliged to prove. The trial judge properly considered the conduct of A.C. and the appellant before, during and after the alleged offences. There was no misapprehension of this evidence.

“Inconsistencies in the evidence of A.C. related to her contact with the appellant’s genitalia”

[22] The trial judge summarized the defence submissions on this issue in his judgment, including the various inconsistencies. It cannot be said that he failed to properly consider them.

“The lack of evidence of bribery as a manifestation of post-offence conduct”

[23] Although A.C. alleged that there were “bribes” after the fact in the form of presents from the appellant, the trial judge did not refer to them in any way as supportive of guilt.

“Assessment of the credibility and reliability of A.C.”

[24] R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, offers a very helpful summary of the principles involved when reviewing reasons and credibility assessments, at paras. 116-121:

Several basic principles govern our review of the sufficiency of the reasons delivered at the conclusion of proceedings in which the credibility and reliability of the testimony of the principal witnesses is the focal point.

First, our approach is functional. An appeal based on a claim of insufficient reasons will fail unless the reasons are so deficient that they foreclose meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R. c. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10.

Second, credibility determinations attract a high degree of deference on appellate review: Dinardo, at para. 26; Vuradin, at para. 11; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66; and R. v. M.(O.), 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 19.

Third, to determine the sufficiency of reasons, we are to read those reasons as a whole in the context of the evidence adduced and the arguments and positions advanced at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16; and Vuradin, at para. 12.

Fourth, in composing reasons for judgment, a trial judge is not required to discuss all the evidence or to answer every argument advanced by counsel: R.E.M., at paras. 32 and 64; Dinardo, at para. 30; Vuradin, at para. 17; and M (O.), at para. 28.

Fifth, we accord significant deference to a trial judge’s appreciation of the evidence adduced at trial, as well as his or her findings on the credibility of witnesses and the reliability of their testimony. Absent palpable and overriding error, determinations of credibility and reliability made by the trial judge are to be respected on appeal: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; and M.(O.), at para. 19.

[25] In R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judgeʼs factual findings. He stated, at para. 9:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well­established norm. [Citations omitted].

[26] Discrepancies and inconsistencies in the testimony of a witness, even significant ones, do not necessarily render the entire testimony unreliable or incredible. There may be explanations for the discrepancies or inconsistencies that are accepted by the trier of fact: see R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at p. 839. A trial judge is not required to comment on every inconsistency: see R. v. C.R., 2010 ONCA 176, 260 O.A.C. 52, at para. 48.

[27] The appellant submits that the trial judge erred in not considering evidence of false accusations made by A.C. against other persons. There is specific reference to three specific incidents in the appellant’s factum:

(1) There was evidence from A.C.’s mother that she received reports from A.C.’s school that A.C. had accused her parents of striking her;

(2) In cross-examination, it was suggested to A.C. that she threatened to make a false report to her mother that B.J.W. had threatened to push her down some stairs. A.C.’s mother did not recall being told that by A.C. A.C.’s mother testified that A.C. told her that she was struck by B.J.W. once or twice. A.C.’s mother further stated that B.J.W. told her that she had “smacked” A.C.; and

(3) G.W. is one of the adult sons of B.J.W. and the stepson of the appellant. He testified that A.C. threatened to falsely tell her parents that he had struck her. He stated that he did not strike her and told her parents of the false accusation. He claims A.C.’s parents questioned A.C. and she admitted the false allegation to them.

[28] There are several problems with this evidence. With respect to (1), this was clearly hearsay and could not properly be considered in assessing A.C.’s credibility. The denial by A.C.’s mother that she struck A.C. is not evidence of a false report by A.C. For (2), the evidence on this alleged false report is conflicting and it was not a proper basis to impugn the credibility of A.C. Finally, in relation to incident (3), neither A.C. nor her mother were asked about the alleged false report by A.C. The failure to confront either A.C. or her mother in regard to the evidence of G.W. significantly reduces the weight to be attached to that evidence (see Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L.)). Additionally, the evidence that G.W. claimed to have been told by A.C.’s parents that she admitted the false report is hearsay.

[29] As discussed, some of the alleged evidence of false reports by A.C. on unrelated matters was based on hearsay or conflicting evidence. The trial judge did not deal with the evidence of alleged false reports other than a passing reference to the hearsay aspect. However, this is not fatal to the judgment. I have considered the specific references on appeal above. In my view, this evidence, individually or cumulatively, was not a valid basis to attack the credibility of A.C.

Unreasonable Verdict

[30] Under s. 686(1)(a)(i) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, an appellate court is empowered to allow an appeal where it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.

[31] The Supreme Court of Canada in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185, confirmed that the question for an appellate court to ask when determining the reasonableness of a verdict is: “[W]hether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.” This test has been subsequently endorsed by the court numerous times in the past three decades: see for example R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36, 42; and R. v. H (W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26. Although it speaks of a jury, the test is equally applicable to the judgment of a judge sitting without a jury: see Biniaris, at para. 37; and R. v. Smith, 2016 ONCA 25, at para. 74.

[32] The court in R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, explained the procedure a reviewing court is to follow, at p. 915:

[W]hether on the facts that were before the trier of fact a jury properly instructed and acting reasonably could convict. The court reviews the evidence that was before the trier of fact and after re-examining and, to some extent, reweighing the evidence, determines whether it meets the test.

[33] An appellate court must not merely substitute its own opinion for that of the trial judge. The purpose of reviewing, re-examining, and re-weighing the evidence is to assess whether the judge’s verdict is reasonable and could be supported by the evidence: see R. v. P.C. (2001), 2001 CanLII 24180 (ON CA), 140 O.A.C. 196 (Ont. C.A.), at paras. 12-14.

[34] There was clearly a reasonable basis for the trial judge to find that the charges were proven based on the evidence of A.C. and the rejection of the appellant’s evidence. This ground of appeal fails.

Sufficiency of Reasons

[35] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the court indicated as follows at para. 54:

An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge’s perceptions of the facts. As decided in H.L. v. Canada (Attorney General), 2005 SCC 25, and stated in Gagnon (at para. 20), “in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected”. It is true that deficient reasons may cloak a palpable and overriding error, requiring appellate intervention. But the appellate court’s point of departure should be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law.

[36] The extensive reasons delivered by the trial judge set out the basis for accepting the evidence of A.C. and rejecting the evidence of the appellant. That was the critical issue in this case. This ground of appeal fails.

SENTENCE APPEAL

[37] The trial judge imposed jail terms of five months on each of the two counts consecutive. The appellant submits that this total custodial term of ten months failed to reflect the principle of totality and should be reduced. The appellant does not take issue with the two year probation order or the ancillary orders made on sentencing.

[38] The offences of sexual interference contrary to s. 151 of the Criminal Code and invitation to sexual touching contrary to s. 152 of the Criminal Code each provide for a minimum punishment of ninety days’ imprisonment where the Crown proceeds by summary conviction. Both of those sections relate to victims who are under the age of sixteen years old. The victim in this case was eleven years old when the offences were committed. Each offence involved a separate delict. The sexual interference count related to the appellant touching the victim for a sexual purpose. The invitation to sexual touching count related to the appellant holding the victim’s hand against his genital area for a sexual purpose.

[39] Section 718.01 of the Criminal Code refers to the sentencing objectives related to offences against children as follows:

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.

[40] Section 718.2 of the Criminal Code provides a list of principles that shall be taken into consideration on sentence, including the following:

(a) (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh

[41] The Supreme Court of Canada recently reviewed the standard wherein an appellate court may intervene and vary a sentence imposed by a trial judge in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41 and 44. The court reaffirmed that absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court should only intervene to vary a sentence if the sentence is demonstrably unfit. Further, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears that such an error had an impact on sentence.

[42] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender: see R. v. M (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42.

[43] Sentences for offences arising out of the same transaction or incident should not necessarily be made concurrent if the offences constitute invasions of different legally protected interests, although the principle of totality must be kept in mind: see R. v. Gummer (1983), 1983 CanLII 5286 (ON CA), 38 C.R. (3d) 46 (Ont. C.A.), at para. 144; and R. v. Mascarenhas (2002), 2002 CanLII 41625 (ON CA), 60 O.R. (3d) 465 (C.A.) at para. 31.

[44] The decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellate courts related to the lengths of sentence. It is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which in totality is demonstrably unfit: see R. v. McDonnell, 1997 CanLII 389 (SCC), [1997]1 S.C.R. 948, at para. 46.

[45] In R. v. M.E., 2012 ONSC 1078, Justice Hill held, at para. 65, that it was an error to work backwards from a global sentence without first determining the appropriate sentence for each crime. He summarized, at paras. 68-69, that the sentencing judge should first determine whether the offences are to be served consecutively and then affix an appropriate sentence for each offence. Then the court should apply the totality principle.

[46] In R. v. B.D., 2014 ONCA 621, the court found that the failure of the sentencing judge to expressly state she had considered the principle of totality disentitled the trial judge’s decision to the deference that is normally due. Despite that, however, the court did not interfere with the sentence imposed.

[47] Both of the offences on this appeal arose from the same circumstances. They were separate delicts and the court was entitled to impose consecutive sentences. The decision to impose consecutive sentences is entitled to significant appellate deference. However, the court was then obliged to consider the issue of totality.

[48] The failure to expressly state that totality was considered disentitles the decision to deference. However, as in B.D., I would not interfere with the sentence imposed.

[49] The appellant submitted that this court should consider the totality of the circumstances, including “the non-violent nature of the offences, the minimally intrusive nature and severity of the offences and the extent of the complainant’s cooperation and consent thereto…” (emphasis added). This submission ignores the fact that when these offences occurred, the appellant was forty-two years of age and A.C. was just short of her twelfth birthday. The absence of overt violence or threats to a child victim of such offences is at most the absence of an aggravating feature. The alleged cooperation or consent of a child to such offences is no defence, nor is it a mitigating factor. In any event, the trial judge found as a fact that A.C. did not cooperate or consent to touch or be touched by the appellant for his sexual gratification. The totality principle does not warrant interference with the global sentence imposed.

RESULT

[50] The appeals as to conviction and sentence are dismissed. The appellant is to present himself to serve the remainder of his sentence on a date agreed between counsel. If there is any issue the matter can be brought back before me on short notice for direction.

B. P. O’Marra, J.

Released: May 10, 2016