Court File and Parties

COURT FILE NO.: 13-1131 DATE: 2016/08/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – GEORGE FIDDAOUI Appellant

Counsel: Raphael J. Feldstein, for the Crown R. Guertin, for the Appellant

REASONS FOR JUDGMENT ON A SUMMARY CONVICTION APPEAL

Pelletier, J.

[1] On October 21, 2014, the Appellant was found guilty of sexual assault as against V.G. in connection with the events of December 16, 2012. The present appeal is premised on the argument that the trial judge erred in law in his assessment of the credibility of the complainant, the witnesses called to corroborate the complainant and the Appellant. The Appellant further suggests that the trial judge committed a reversible error in his application of the principles set out in R. v. W. (D), [1991] 1 S.C.R. 742.

Overview

[2] The charge of sexual assault relates to events which took place in the Appellant taxi cab in the early morning hours. The Appellant had provided cab services to the complainant and her friends earlier in the evening and was, at the relevant time, in the process of returning the complainant to her home. They were alone in the cab and therefore, as observed by the trial judge, the principal witnesses. The Appellant elected to call evidence and testified himself. It is the manner in which the trial judge accepted the complainant’s evidence as truthful and the manner in which he rejected the Appellant’s evidence as untruthful which forms the basis of the present appeal.

The Appellant’s position summarized

[3] In his oral arguments and his factum, the Appellant identified 19 specific areas of the evidence which he argues were misinterpreted by the trial judge, or which lead to untenable conclusions. Those areas of the evidence include the following:

a) alcohol consumption by the complainant; b) text mail exchanges on the evening in question; c) arrangements for the Appellant to return later in the evening; d) who invited the Appellant for a drink upon his return; e) who decided to stop at Tim Horton’s later that morning; f) the decision to stop at a well-lit parking area; g) whether the complainant raised problems with an ex-boyfriend; h) whether the complainant later stated she did something wrong; i) the significance of a telephone conversation the following day; j) the circumstances involving the complainant’s bruised lip; k) the physical layout inside the Appellant’s car; l) the decision by the complainant to occupy the front seat; m) the complainant’s reluctance to reveal her current phone number; n) the complainant’s transfer to another work location; o) the significance of conversations between witnesses; p) the possible reaction of the son of the Appellant; q) the complainant’s inconsistent evidence on the specific acts; r) the precise position of the complainant during the events; s) the significance of the complainant’s clothing.

[4] The Appellant suggests that the trial judge’s treatment and assessment of those areas of the evidence establish a reversible error and compel the conduct of a new trial. More specifically, the Appellant suggests that the conclusions of the trial judge demonstrate a different standard of assessment as between the assessment of the complainant’s evidence and that of the Appellant, allowing, for instance, for the passage of time to explain inconsistencies in the complainant’s evidence while denying the Appellant the same latitude.

[5] In addition, the Appellant argues that the sheer number of inconsistencies and contradictions in the prosecutions’ evidence rendered that evidence manifestly unreliable and incapable of supporting a finding of guilt. Finally, the Appellant argues that certain critical portions of the evidence were overlooked by the trial judge in his reasons for judgment.

Analytical framework

[6] Misapprehension of evidence, as the basis upon which to challenge the factual analysis by a judge at trial, involves a stringent and exacting standard.

“At the outset, I observe that an appellant faces an up-hill battle to succeed on appeal with a misapprehension of evidence argument. A material misapprehension of the evidence by a trial judge compromises trial fairness, thereby justifying appellate intervention. However, a stringent standard applies to appellate reversal on this basis. In R. v. C.L.Y., [2008] 1 S.C.R. 5, 2008 SCC 2, at para. 19, and in R. v. Lohrer, [2004] 3 S.C.R. 732, 2004 SCC 80, the Supreme Court cited with approval the applicable test formulated by Doherty J.A. of this court in R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 541:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict . … If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

See also R. v. H.C., 2009 ONCA 56, at para. 51 and R. v. T.T., 2009 ONCA 613, at para. 33.

Thus, to warrant appellate interference, the misapprehension at issue “must be material rather than peripheral to the reasoning of the trial judge”. In addition, the error identified “must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”: Lohrer, at para. 2; C.L.Y., at para. 19. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error: T.T., at para. 33.”

R. v. C.R., [2010] O.J. No. 911, 2010 ONCA 176 paras. 29-30.

[7] Further, appellate review is not to be equated with a reconsideration of the evidence or a reassessment of its quality.

“Careful scrutiny of the trial judge’s reasoning process it is not, however, to be equated with re-trying the case. An appellate court must always bear in mind the significant advantage enjoyed by the trial judge when it comes to assessing creditability. This trial turned almost exclusively on the assessment of the respective creditability of Ms. A.K. and the appellant. That assessment was a difficult and delicate task. There were aspects of the evidence of both that would give cause for concern when measuring credibility. In arriving at his ultimate credibility findings, the trial judge doubtless paid careful attention not only to what was said, but to how it was said. A lifeless transcript of the testimony cannot possibly replicate the unfolding of the narrative at trial. Nor can oral argument and a selective review of the trial record possibly put an appellate court in as good a position as the trial judge when it comes to credibility determinations: see R. v. Francois, [1994] 2 S.C.R. 827, 91 C.C.C. (3rd) 289 at 296 (S.C.C.).”

R. v. J.H., [2005] O.J. No. 39, para. 46

[8] Moreover, in analyzing the evidentiary record and drawing conclusions, a trial judge is not held to a standard of commenting upon every individual piece of evidence. Certain circumstances are central in any trial, others are secondary. The reviewing court’s task is to determine whether, taken as a whole and viewed in the context of the trial record, the trial judge’s conclusions are tenable or whether they represent reversible error based on misapprehension or oversight. Finally, proof beyond a reasonable doubt applies to the essential elements of an offense and not to individual pieces of evidence. A court will accept or reject certain evidence. If the accepted evidence establishes, cumulatively, the essential elements of the offense beyond a reasonable doubt, a conviction will follow.

The principles applied

[9] In the present case, the trial judge considered the evidence of the complainant and the Appellant as central, as he was entitled to do. He instructed himself at the outset on the principles of the presumption of innocence, the evidentiary and persuasive burden of the prosecution, the three-pronged R. v. W (D) analysis, the subtle yet crucial difference between credibility and reliability, and the need to caution against shifting the burden of proof by converting the analysis into a credibility contest.

[10] I would conclude that the trial judge’s acceptance of the complainant’s account of the incident, including her express lack of consent, was supported by the evidence, as a whole, and did not result from a misapprehension of the evidence.

[11] The trial judge observed the complainant to be forthright and responsive. He did not detect any animosity by the complainant toward the Appellant. He addressed certain inconsistencies in her evidence and accepted the complainant’s explanation or attributed them to their relative insignificance in certain cases or the passage of time in others. He found corroboration in other witnesses’ evidence in such areas as the bruise to the complainant’s lip, her subsequent fear of the Appellant and her efforts to avoid him. The trial judge found the issue of the complainant’s clothing at the time of the events to be a focal point as he was entitled to. He concluded, based on the evidence, the sequence of events and reasonable inferences that the complainant was wearing, at the relevant time, a dress with leggings and underwear and not buttoned jeans as asserted by the Appellant. He addressed a number of issues identified by the Appellant in the present appeal, items a) to s) above, and drew conclusions available on the evidence. He treated others as secondary and not of such significance, even if taken together, to cast doubt on the complainant’s evidence.

[12] In sum, the trial judge was specifically self-instructed on the governing legal principles and conducted an analysis well within the appropriate range.

[13] Similarly, the rejection of the Appellant’s evidence was arrived at with due consideration of the evidence. As stated, the Appellant’s assertion that the complainant wore jeans which she must have unbuttoned herself in order to enable the contacts to occur, going directly to the issue of consent, was categorically rejected by the trial judge. As a central issue in the entire proceeding, the exact means by which physical contact took place was appropriately given considerable importance in the assessment of the evidence.

[14] The trial judge dismissed as implausible and therefore reasonably less worthy of belief the Appellant’s assertion that the bruise to the complainant’s lip was the result of a spirited bout of kissing, and that the Appellant’s conscience and devotion to his wife compelled him to end the sexual exchange, while making it a matter of light-hearted discussion with co-workers the following day. With far more emphasis on the precise circumstances surrounding the events leading to the charge themselves than the peripheral aspects, the trial judge found, as supported by the evidence that the complainant was truthful and the Appellant was not.

[15] I am not persuaded that the trial judge neglected to comment upon or consider aspects of the evidence compelling a different conclusion. To conclude otherwise would be to exact a standard requiring a detailed consideration of every aspect of the evidentiary record which is neither possible nor desirable, particularly in summary conviction proceedings.

[16] It must be borne in mind that the only contested issue in the present case was whether the Crown proved lack of consent. The vast majority of the facts were not in dispute including the sequence of events in the evening in question, the circumstances surrounding the presence of both the complainant and the Appellant in his cab, and, in fact, the specific nature and duration of the contacts themselves. On that issue I am not persuaded, as suggested by the Appellant, that the trial judge preferred the evidence of the complainant over his. I would conclude rather that the trial judge explicitly accepted the evidence of the complainant and rejected that of the Appellant.

[17] Finally, in relation to the argument that the trial judge misapplied the R. v. W. (D) principle, implicit in the rejection of the Appellant’s evidence that the complainant arranged for, incited, and facilitated the sexual contacts is the conclusion that such evidence cannot serve to raise a reasonable doubt in the only basic issue at trial.

[18] For these reasons, the appeal is dismissed. The warrant of committal, committing the Appellant to a term of eight months imprisonment is confirmed. Mr. Fiddaoui is to surrender into custody at the Ottawa Carleton Regional Detention Centre within 72 hours of the release of the decision herein.

The Honourable Justice Robert Pelletier Released: August 15, 2016