Court File and Parties

COURT FILE NO.: 783/14 DATE: September 1, 2016

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen, Respondent – and – J.P.1, Appellant

COUNSEL: Andrew Macdonald, for Her Majesty the Queen Cory Giordano and Thomas Slade, for the Appellant

On Appeal from the decision of Justice S. March, Ontario Court of Justice, at Perth, Ontario, dated August 8, 2014.

REASONS FOR DECISION

ABRAMS J.

Introduction

[1] The appellant, J.P.1, was convicted by the Honourable Mr. Justice S. March of the Ontario Court of Justice, in Perth, of sexual interference, invitation to sexual touching, and sexual assault on August 8, 2014. Subject to the “Kienapple principle”, March J. entered a judicial stay on the charge of sexual assault. Thus, the appellant appeals against the two remaining convictions.

Issues

[2] With reference to the appellant’s grounds of appeal as set forth in his Factum, which were narrowed during oral submissions, the appellant asserts that the trial judge committed reviewable errors, particularly with respect to the Supreme Court of Canada’s decision in R. v. W. (D.), [1991] 1 S.C.R. 742. Further, the appellant contends, inter alia, that our Court of Appeal’s decision R. v. Y.(V.), 2010 ONCA 544, [2010] O.J. No. 3336 is of particular import in considering the merits of this appeal. Put simply, did the trial judge commit an error of law in assessing credibility as between the complainant and utterances attributed to the appellant, which were received through the testimony of his mother as part of the Crown’s case, by inadequately considering the third branch of the W.(D.) analysis?

[3] For the reasons set out below, the appeal is allowed and a new trial is ordered.

Powers of Appeal Court

[4] Pursuant to Section 822 of the Criminal Code of Canada (“CCC”) in regard to Summary Conviction Appeals, Section 686(1) CCC provides the Summary Conviction Court with the authority to:

(a) Allow the appeal from conviction where: (i) the verdict is unreasonable or cannot be supported by the evidence; (ii) the court made a wrong decision on a question of law; or (iii) on any ground there was a miscarriage of justice.

Standard of Review

[5] The standard of review requires that the appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is not supported by the evidence or that is unreasonable and would have affected the result. Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235

[6] The application of a legal standard to the facts of the case is a question of law and is subject to review for correctness. R. v. Sheppard, 2009 SCC 35, at para 20

[7] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusions. R. v. Burns, [1994] S.C.J. No. 30

[8] The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact. R. v. Gagnon, 2006 SCC 17, at paras 10 and 19

Background

[9] The trial judge heard evidence from the complainant, A.P., and J.P.2, the appellant’s mother and the complainant’s grandmother. The appellant is the complainant’s uncle.

[10] The complainant was 13 years of age at the time of the alleged offences and 16 when she gave evidence at trial.

[11] On June 15, 2013, the complainant attended at the appellant’s apartment for the purpose of an overnight visit. The appellant’s partner, J.P.1, was away from the residence for the night.

[12] By all accounts the appellant and the complainant shared a close relationship.

The complainant’s version of events

[13] The complainant testified that she and the appellant began the evening by watching a movie together in the living room. They each sat on their own couch while watching the movie. There was no physical contact between them at that time.

[14] The appellant gave her a drink of rum and coke. The drink was stronger than she expected. She sipped the drink, but did not finish it.

[15] The appellant asked her if she had ever watched “porno”. She said no, and that she had no interest in watching it. He invited her into the bedroom to watch a movie. While in the bedroom the appellant located a porn movie and started it on his computer. The complainant sat at the front of the bed keeping her head down while texting her friends and her grandmother, not looking at the movie. She testified that she was “creeped out” by it (the movie).

[16] The appellant was looking over the complainant’s shoulder while she was texting. She admitted that she was texting an older boy about going to a party. The appellant told her not to go to a party with older boys.

[17] The complainant testified that the appellant asked her if she had ever masturbated, which she denied. He then picked up a dildo off of the dresser and asked her if she had ever seen one. She said that she had not, but that she knew what it was for. He asked her if she had ever used one, which she denied. He asked her if she wanted him to show her how to use it. She said no. Thereafter the appellant said, “I’m your uncle, I’m not trying to have sex with you”. The complainant put the “porno” movie on pause and walked out of the bedroom.

[18] The appellant joined the complainant in the living room where they ordered pizza and watched the rest of the movie that they had started earlier in the evening.

[19] The complainant, though getting sleepy, agreed to return to the bedroom to watch a funny movie, “Billy Madison”, on the appellant’s computer.

[20] Initially, the complainant was sitting on the side of the bed while the appellant was lying on the bed. The complainant felt as though she was going to fall asleep, so the appellant told her to lie down.

[21] The appellant asked her if it was okay for him to put his leg across her leg, which she agreed to. At one point he pulled her closer to him, when he said that he thought she was going to fall off the bed.

[22] The complainant felt the appellant touching her leg, including going up her pant leg. She felt his hand under her sweater, but not under her shirt and not touching her bare skin, which he did only once. The touching was below her bra-line.

[23] With respect to the leg touching, the complainant testified that the appellant touched the inside of her thighs on both legs with the palm of his hand, but that he did not touch her crotch area. At one point he pressed her knees apart. She would eventually jerk her leg about five times to let the appellant know that she was awake.

[24] The appellant left the bedroom. Upon returning to the bedroom, the appellant and the complainant slept next to each other for the remainder of the night. Nothing else happened between them.

The appellant’s utterances to his mother arising from the Crown’s case

[25] Based on utterances made to his mother that were received into evidence through her testimony, the Appellant conceded making certain poor decisions in relation to the complainant over the course of the evening.

[26] He acknowledged giving her a drink with a “teaspoon” of alcohol in it as he was the “cool” uncle.

[27] At one point he offered her a marijuana joint, but then said “Oh, you’re not J.P.1”.

[28] They went into his bedroom to watch a movie, “Billy Madison”, on his computer, at the start of which a “pop-up of porn” came on. They were both positioned on his bed to watch the movie.

[29] While in the bedroom, the complainant was texting an older boy about going to a party. The appellant told her not to go to a party with older boys. Moreover, he told her not to be involved with older guys; he did not want her ending up like the rest of them (members of the family), young and not finishing school. Rather, if she had the need (to have sex), he told her to masturbate instead and not to have sex.

[30] The appellant acknowledged that when they walked into the bedroom there was a dildo on the bed that he picked up and put on the dresser. He did not, however, acknowledge asking the complainant if she had ever used one or whether she wanted him to show her how to use it.

[31] When asked by his mother whether he had touched the complainant’s leg, he could not say for sure that he did not put his leg over her, or his arm around her, or his hand on her, but it was not intentional and he denied that the touching would have been for sexual reasons.

The Trial Judge’s Reasons and this Court’s Analysis

[32] In the present case, the trial judge reviewed the testimony of the complainant and, notwithstanding apparent inconsistencies and frailties in her evidence, found her to be an “excellent” and credible witness. He next reviewed the utterances of the appellant arising out of his mother’s evidence, as part of the Crown’s case, and rejected the appellant’s explanation of certain events.

[33] In coming to what the trial judge called “common sense” conclusions regarding the veracity (or lack there) of the appellant’s utterances, the trial judge reasoned:

“I agree with the Crown’s submission that if the accused didn’t want her to end up pregnant it makes no sense for him to show her how to use a dildo and that he would touch her leg.” [Reasons for Judgment, page 20, lines 15-19]

[34] In my view, the trial judge’s reasoning is circular. That is, in order to find that the appellant’s admonition to the complainant made no sense, or was incredible, the trial judge first had to find that the appellant offered to show the complainant how to use the dildo (invitation to sexual touching) and that he in fact touched her leg for a sexual purpose (sexual interference). To that end, as Laforme J.A. said in R. v. Y.(V.), supra:

Establishing the guilt of the accused required establishing the credibility of the complainant. Yet, in order to establish the credibility of the complainant, the trial judge first had to assume that the accused was guilty.

[35] Put another way, in order to find that the appellant’s admonition defied “common sense”, the trial judge first had to find that the offer of the dildo and the touching occurred (i.e. that the accused was guilty). In doing so, in my view, the trial judge rejected the evidence of the appellant by committing the error described in R. v. W.(D.), supra, of finding guilt based on his disbelief of the appellant before adequately considering, if at all, the third branch of the W.D. analysis.

[36] Although trial judges are presumed to know the law regarding the presumption of innocence and the burden of proof, they may still err in its application, just as they may know the facts, yet make findings of credibility unsupported by the record. What matters in either instance is the substance and not the form of the decision. R. v. Y.(V.), supra, at para 15 with reference to Fish J. in R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5. In the present case, while the trial judge adverted to the requirement to apply the W.D. principles, there is no indication of him undertaking the requisite analysis, particularly as it relates to the third branch of the test.

[37] Further, the trial judge did not find it necessary to set out the often recited W.D. three-stage analysis to be included in jury instructions because, in his words, “they are well known”. In my view, they are worth restating and applying to the circumstances of this case:

First, if the trial judge believes the evidence of the accused, he must acquit;

Second, if the trial judge does not believe the evidence of the accused, but is left in reasonable doubt by it, then again, he must acquit; and

Third, even if the trial judge is not left in doubt by the evidence of the accused, he or she must then decide whether, on the basis of the evidence that he or she does accept, he or she is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[38] On at least four occasions the trial judge mentioned why he was rejecting the evidence from the appellant, which ostensibly pertained only to the first and second stages of the W.D. analysis, specifically:

1. “I agree with the Crown’s submission that if the accused didn’t want her to end up pregnant it makes no sense for him to show her how to use a dildo and that he would touch her leg”. [Reasons for Judgment, page 20, lines 15-19]

   As stated earlier, this is circular reasoning in which the trial judge first concludes that the accused is guilty in order to establish the credibility of the complainant. That is, the complainant said that the accused proposed the use of the dildo and touched her leg, as she described, which the trial judge must first have accepted as being true in order to conclude that the appellant’s evidence defied “common sense”.

2. “Firstly, it makes no sense that if he wanted to prevent her from getting pregnant that he would want to show her how to use the dildo. Secondly, the offence is one of counselling A.P. for a sexual purpose to touch herself with a dildo, contrary to Section 152 of the Criminal Code. His reason for making the comment does not raise a reasonable doubt on this charge”. [Reasons for Judgment, page 20, lines 24-31]

   Notably, there was no concession by the appellant, to his mother, that he made any such comment to the complainant regarding the dildo. Rather, he admitted that he picked the dildo up off the bed and put it on the dresser. Nonetheless, the trial judge concluded that the appellant made the comment, in my view, based solely on the credibility of the complainant. The trial judge then reasoned backwards, or re-engineered, to conclude that the comment or offer defied “common sense”, thus convicting the accused.

3. “I wish to be clear that I am not rejecting the accused’s evidence solely because I believe A.P.’s evidence….However, as I said earlier, it defies common sense that he would be talking to her about masturbation and not getting pregnant if he thought about her as only being six to eight”. [Reasons for Judgment, page 22, lines 10-12 and 18-23]

4. “I am rejecting the accused’s utterances to J.P.2, which were in effect a denial that the accused touched A.P. as she described or asked her if she wanted him to show her how to use a dildo to masturbate. My rejection of his utterances is based on the reasons that I have set out above”. [Reasons for Judgment, page 22, lines 26-31]

[39] Respectfully, these reasons suffer from the same circular reasoning error mentioned above. To that end, as Fish J. aptly put it (in dissent) in R. v. Y.(C.L.), supra, the trial judge found the accused guilty before even evaluating his evidence, and thus shifted the burden to the accused, where he said:

Unfortunately, the appellant’s presumption of innocence had by that point been displaced by a presumption – indeed, a finding – of guilt. The trial judge could hardly believe both the appellant and the complainant. Before even considering the appellant’s evidence, she had already concluded that she believed the complainant. In effect, the trial judge had thus decided to convict the appellant unless his evidence persuaded her to do otherwise. R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at para 3 (emphasis added)

[40] In the present case, although the trial judge adverted to the need to apply the W.D. principles, his Reasons reveal an analysis that preferred form over substance in the application of stages one and two in which the presumption of innocence was displaced by the presumption of guilt. Moreover, and perhaps the reason leading to his circular and presumptive conclusions, his Reasons do not reveal adequate, or indeed any, consideration of the third branch of the W.D. analysis. In that respect, trial judges are not required to explain in detail the process they follow to reach a verdict, however, they need to give reasons that the parties can understand and that permit appellant review. R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869

Conclusions

[41] First, to simply state as he did, time and again, that the appellant’s utterances to his mother defied “common sense” was, in my view, circular, conclusory reasoning that is incapable of understanding in accordance with Sheppard, supra. Second, setting aside for the moment the erroneous manner in which the appellant’s evidence was rejected in favour of the complainant’s, it remained incumbent upon the trial judge to ask himself: Even if I am not left in doubt by the evidence of the accused, on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt by the evidence of the guilt of the accused? In that respect, in my view, the trial judge’s Reasons are silent; there is no consideration of the third branch of the W.D. analysis.

Disposition

[42] For the foregoing reasons, I would allow the appeal, set aside the convictions and order a new trial before a different judge of the Ontario Court of Justice.

The Honourable Mr. Justice B. W. Abrams

Released: September 1, 2016