REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] The complainant worked as a prostitute for Mr. McCart, the appellant. She said that he forced her into prostitution, assaulted her twice, and sexually assaulted her three times between October 2013 and January 2014. The complainant was the only Crown witness. The appellant did not testify. The appellant’s girlfriend and father testified for the defence. His girlfriend’s testimony was designed to undermine the complainant’s story of intimidation and forced prostitution and thereby cast doubt on her credibility.

[2] The trial judge, Madam Justice Shamai of the Ontario Court of Justice, found the appellant guilty of one intimidation count, the two assault counts, and two of the three sexual assault counts. She largely accepted the evidence of the complainant.

[3] The appellant argues that the trial judge misapprehended the defence evidence in a material way such that it affected her path to conviction. The appellant also argues that the trial judge, by acquitting him on one count of sexual assault, rendered inconsistent verdicts.

[4] For the reasons that follow, I disagree. The appeal is dismissed.

BACKGROUND

[5] Mr. McCart, the appellant, had a relationship with the complainant. They met at a party in October 2013 where a fight broke out and the police were called. They were both students at Durham College at the time. She testified that she agreed to broker a drug deal between him and an acquaintance of hers who was a drug dealer. She arranged a purchase of Fentanyl between the appellant and her drug dealer acquaintance. In November 2013 they drove to Waterloo to purchase the drugs. The appellant provided her with $1800. The drug deal went wrong. The complainant testified that her friend, the drug dealer, robbed her instead. She lost the money. The appellant was upset and assaulted her. He told her that she had to replace the $1800. She paid back some of the money. She testified that he forced her into prostitution to pay the rest of the debt, commencing in November 2013. She performed acts of prostitution and he took the money. She would work for him on the weekends. She did not tell her boyfriend or others about it.

[6] The complainant testified that one weekend she was supposed to be working as a prostitute for the appellant but spent it with a girlfriend instead. The appellant tried to find her. He threatened to tell her boyfriend and family that she was working as a prostitute. When he did find her he punched her and pulled her hair. He told he “he’s not fucking around”.

[7] The complainant also described three occasions between November 2013 and January 2014 when the appellant sexually assaulted her. She initially began to have consensual sex with the appellant. On each occasion she withdraw her consent. The appellant nonetheless kept going.

[8] The appellant was charged with one count of intimidation, two counts of assault, and three counts of sexual assault. The counts related to the following criminal transaction:

• The intimidation count related to the appellant forcing the complainant into prostitution;

• The first assault count from November 2013 related to the assault in the car in Waterloo after the drug deal went bad;

• The second assault count related to the punch in the complainant’s face;

• The first sexual assault count related to an incident where the complainant told the appellant to stop having sex with her as he was hurting her. He continued anyway;

• The second sexual assault count involved an allegation of what the complainant called “road head”. The appellant forced her to perform oral sex while he was in his car. She initially consented but then withdrew her consent. He still forced her.

• The third sexual assault count related to an incident in Niagara Falls on New Years Eve where the complainant initially consented to perform oral sex but withdrew her consent. The appellant again forced her. The appellant was acquitted of this count.

[9] The trial took place before Madam Justice Shamai of the Ontario Court of Justice. The Crown called one witness: the complainant. The defence called Sarah Crozier, the appellant’s girlfriend. The defence also called Spencer McCart, the appellant’s father. This defence evidence was designed to cast doubt on the complainant’s story of intimidation. The appellant did not testify. The trial turned on the credibility of the complainant. The trial judge largely accepted her evidence.

ANALYSIS:

[10] The appellant’s counsel, Mr. Halfyard, makes two arguments: first that the trial judge misapprehended the evidence; and second that there were inconsistent verdicts.

(a) Did the trial judge misapprehend the evidence?

[11] Mr. Halfyard argues that the trial judge misapprehended the evidence of Ms. Crozier, the key defence witness. The complainant had been cross-examined about an attempt to recruit another woman to join their prostitution business. Ms. Crozier then testified about it during the defence case. The trial judge said that Ms. Crozier’s evidence did not cause her to have doubts about the complainant’s credibility:

… nor does the testimony of the current girlfriend give me concerns about Ms. B’s evidence. Their accounts of the incident of the hotel are largely matching and the fact of her relationship with the defendant gives me some concern as to possible bias for a motive to colour her testimony against Ms. B, whom she clearly didn’t like for any number of reasons at their sole encounter, not to mention the allegations now pending against her boyfriend.

[12] Mr. Halfyard argues that the accounts of the complainant and Ms. Crozier do not largely match and are in fact diametrically opposed. He argues that they are different on material points. Since Ms. Crozier’s evidence cast doubt on the entire tenor of the complainant’s relationship with the appellant, it was capable of casting doubt on the complainant’s entire version of events. The trial judge’s failure to properly apprehend the nature of the evidence was central to her reasons for convicting. He argues that a new trial must be ordered on this ground alone: R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont.C.A.) at paras. 93-94; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 2.

[13] I respectfully disagree. The trial judge’s comment that the accounts of Ms. Crozier and the complainant largely matched was justified when the evidence as a whole is considered. The term “largely matched” is obviously not a term of art. A review of the transcripts shows that the versions did match on many points – there was a meeting in a hotel room, photographs were taken, much of the conversation occurred when the appellant was out of the room, and Ms. Crozier left when the complainant and the appellant began to have sex.

[14] In any event, the critical point was not whether the versions largely matched but whether Ms. Crozier’s evidence was capable of leaving the trial judge in a state of reasonable doubt. The trial judge said it did not, and explained why not. That was sufficient. She was not required to resolve every inconsistency or respond to every defence argument: R. v. M.A., 2014 ONCA 769 at para. 14.

[15] Furthermore, the “material points” are not particularly material, in my view. The trial judge certainly did not think so. She stated as follows regarding the defence witnesses:

The latter two witnesses were called to refute certain peripheral aspects of the complainant’s testimony in order to discredit her.

[16] Ms. Crozier testified that she went to a hotel on one occasion. The appellant texted her and asked her to come to a hotel in Woodbridge or Vaughan and hang out. He and the complainant picked her up at her house. On the way to the hotel the complainant asked her several questions. She testified that when the appellant was out of the car the complainant said she wanted to take photographs of her. She also testified that the complainant said: “she loves what she’s doing because she can make the money to buy new equipment for her camera”. Ms. Crozier testified that at that point she did not know that the complainant was working for the appellant as a prostitute. When they got to the hotel the appellant went to work out and she and the complainant were alone. They drank. The complainant kept talking about how she enjoyed what she was doing. She explained that she was working as a prostitute. Ms. Crozier changed into a provocative outfit and the complainant took pictures of her. Eventually the appellant came back into the room. The complainant told her that it would be more fun if Ms. Crozier joined into sexual activity. The complainant and the appellant started to have sex. Ms. Crozier became disgusted and left.

[17] In her cross-examination the complainant testified that a meeting took place in a hotel in Toronto. She testified that she did not try to entice Ms. Crozier into prostitution – that was the appellant. She took some photographs at the appellant’s request. Eventually Ms. Crozier left when the complainant and the appellant started to have sex.

[18] There were some details that were different as between the complainant’s version and Ms. Crozier’s version – for example, whether Ms. Crozier had her own sexy dress for the photographs or whether the complainant gave her a sexy dress; or whether the appellant was present when pictures were taken. Again, those were minor points. The trial judge was not required to reconcile them.

[19] Far more important is this fact: it was never put to the complainant that she had told Ms. Crozier that she enjoyed making money from prostitution. It was also never put directly to the complainant that it was she, and not the appellant, who was trying to entice Ms. Crozier into prostitution. Surely those were critical points, not who supplied the dress for the photographs. That was because the defence theory was that the complainant was never intimidated into prostitution. The trial judge can hardly be faulted for failing to reconcile two versions of the same event when there was really only one version on the critical point.

[20] Appellate courts have emphasized many times over the advantage enjoyed by triers of fact when it comes to assessing credibility: see, for example, R. v. J.H. (2005), 192 C.C.C. (3d) 480 (Ont.C.A.) at paras. 43-46. In this case the trial judge had the opportunity to observe the witnesses first hand. She reviewed the evidence in detail and explained why she accepted the complainant’s version of events. This ground of appeal must fail.

(b) Did the trial judge render inconsistent verdicts?

[21] The trial judge acquitted the appellant on the third sexual assault count, the one that took place in Niagara Falls. In essence, the trial judge found that the complainant’s withdrawal of consent was equivocal and not communicated effectively to the appellant. She was therefore unable to find him guilty beyond a reasonable doubt.

[22] Mr. Halfyard argues that the other two sexual assaults also turned on equivocal withdrawals of consent. The evidence between them is sufficiently similar that if there was an acquittal on one sex assault then there should have been an acquittal on the other two as well.

[23] The short answer to this ground of appeal is that the three sexual assault counts alleged three different assaults at three different times. Each had to be evaluated on the basis of the evidence relating to each individual count. That is because consent, or lack of consent, is determined at the moment the sex act takes place: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 at para. 46. That is what the trial judge did. In my respectful view, the evidence of the three events were not so wound up that it was not open to the trial judge render different verdicts in relation to the three incidents: R. v. Pittaman, 2006 SCC 9, [2006] 1 S.C.R. 381 at para. 9. This ground of appeal must also fail.

DISPOSITION:

[24] The appeal is dismissed.

R.F. Goldstein J.

Released: November 15, 2016

CITATION: R. v. McCart, 2016 ONSC 7062

COURT FILE NO.: CR-16-10000074-00AP

DATE: 20161115

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JOHN AUSTIN McCART

Appellant

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

R.F. Goldstein J.

R. v. McCart, 2016 ONSC 7062

Case Summary

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

BACKGROUND

ANALYSIS:

(a) Did the trial judge misapprehend the evidence?

(b) Did the trial judge render inconsistent verdicts?

DISPOSITION:

Counsel

Parties

Areas of Law

Fact Patterns

Issues