CITATION: R. v. Rahman, 2016 ONSC 717
COURT FILE NO.: 61/14
DATE: 20160205
Summary Conviction Appeal
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MIJANUR RAHMAN
Appellant
Megan Petrie, for the Respondent
Anna Cooper, for the Appellant
HEARD: January 19, 2016
McWatt J.:
REASONS FOR JUDGMENT
[1] On February 18, 2014, the appellant was convicted of the sexual assault and forcible confinement of P.T.. The forcible confinement charge was stayed pursuant to the principle in Keinapple v. R., [1975] 1.S.C.R. 729.
[2] The trial judge found that on her ninth day working for the Appellant, he gave Ms. P.T. vodka, carried her to his bedroom and touched her sexually without her consent. The complainant made an excuse to leave the house and did so. She reported the incident and never returned to work.
[3] The sole issue at trial was credibility. After hearing from the complainant and the appellant, the trial judge concluded she did not accept the evidence of the appellant, but accepted the evidence of the complainant.
[4] The appellant appeals his conviction on the grounds that the trial judge did not adequately explain her credibility findings, misapprehended the evidence, placed too much emphasis on the complainant’s demeanor and misapplied W.(D.) 1991 93 (SCC), [1991] 1 S.C.R. 742.
[5] The appeal is dismissed for the following reasons.
[6] The errors alleged by the appellant must be assessed in light of the established law on sufficiency of reasons and the deference accorded to the trial judge’s credibility assessments. The Ontario Court of Appeal in R. v. J.J.B. [2013] O.J. No. 1919 (C.A.) at paras. 20-24 set this out as follows:
Reasons are reviewed for their functionality, not their eloquence. As stated in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25-26, an appeal will only be allowed where the reasons are so deficient as to foreclose meaningful appellate review.
Further, reasons for judgment cannot be assessed standing alone: “reasons for judgment must be examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced”: R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252, at para. 32 (Ont. C.A.). See also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3.
Where the reasons relate to the assessment of credibility, the sufficiency of reasons must be assessed in light of the deference accorded to trial judges’ credibility findings: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. An appeal court must defer to the trial judge on findings of credibility, absent palpable and overriding error: see H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 53. Thus, “[r]arely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”: Dinardo, at para. 26.
The trial judge has the significant advantage of seeing and hearing the evidence of witnesses: see R. v. W.(R), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 131. This deference acknowledges the difficulties both in assessing credibility and articulating the reasons a person is believable. As the court said in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. It is only where the reviewing court has considered all of the evidence before the trier of fact, and determined that the credibility determination cannot be reasonably supported by that evidence, that the court can overturn it: see R. v. Gagnon, par. 10.
[7] The trial judge was not required to describe every consideration she made which led her to her credibility findings or to answer every argument advanced by counsel, or to reconcile every frailty in the evidence (R. v. R.E.M., 2008 SCC 51 at paras. 42-57).
(i) Misapprehension of the evidence
(a) The appellant alleges the trial judge’s finding that he failed to reveal he was married was a misapprehension of the evidence because the appellant, in fact, told the complainant he had someone in his life. This misapprehension hurt the appellant’s credibility and resulted in unjustifiable findings against him.
[8] Both in examination in chief and cross-examination, the appellant testified he did not tell the complainant that he was married, but that he was separated. The trial judge did not misapprehend the evidence on this issue.
[9] The trial judge used this finding of fact to support her credibility findings against the appellant. This fact supported the complainant’s evidence that the appellant had a romantic interest in her.
(b) The appellant alleges that the trial judge’s characterization of his evidence that the complainant initiated subtle physical flirtation meant that he was asserting she was the “sexual aggressor.” This is a further misapprehension of the evidence.
[10] The appellant’s evidence supported the suggestion that the complainant was the sexual aggressor leading up to the offence and on the day of the offence. He testified the complainant gave him signs through body language and conversation that she was interested in him. As a result of this, he gave her vodka on the day of the offence because she wanted a drink. She then, he testified, escalated the sexual contact by going into “overfriendly mode” and rubbing her genitals against his and unzipping his pants.
[11] The trial judge did not misapprehend this evidence by characterizing it the way that she did.
(c) The applicant contends that the trial judge misapprehended the evidence when she found that the appellant “agreed that the complainant lied to him about her references and had no experience in his line of work when he hired her.”
[12] There was no misapprehension here. The appellant agreed in cross-examination to the suggestion that one of the complainant’s references was somewhat distrustful if not an outright untruth. He also testified that he knew the complainant had no experience in his line of work when he hired her.
[13] It was not necessary for the trial judge to explain why this finding of fact was used to reject the appellant’s evidence while accepting that of the complainant’s. An available inference to be drawn was that the appellant had not hired the complainant for her skills, which supported the complainant’s evidence that the appellant was interested in her sexually.
(ii) No explanation of credibility findings
[14] The appellant suggests that the trial judge inadequately explained credibility findings in three more areas. Her Honour committed no error in relation to these issues.
[15] First, the trial judge expressly acknowledged having considered the fact that the complainant had instituted a civil suit against the appellant when she assessed the complainant’s credibility and her motivation behind the criminal charges.
[16] Second, the trial judge found that the complainant used a ruse to leave the appellant’s home following the incident because she had been assaulted as opposed to embarrassed because she had offered sex for money to the appellant and was rejected. It was reasonable for the trial judge to make this finding of fact on the evidence she saw and heard from the two witnesses in this trial. She had no duty to specifically address the defence submission that the evidence equally supported the appellant’s evidence.
[17] Finally, the trial judge found that the appellant and complainant had worked together very briefly. They worked alone and consumed alcohol together. In reaching her conclusions about credibility, she considered this context of the allegations. It was in this context of a short period of exposure to each other that the trial judge found the complainant’s evidence, along with the other evidence in the trial, satisfied her beyond a reasonable doubt.
iii) Demeanor
[18] The appellant contends that the trial judge relied excessively on the complainant’s demeanor in making her determination of credibility.
[19] Triers of fact are entitled to consider demeanor in assessing the credibility and reliability of witness testimony (R. v. N.S. 2012 SCC 72 at paras. 18 and 26). Appellate review shows deference to the trier of fact on issues of credibility.
[20] The trial judge did find the complainant to be shy, but this was apparent on all the evidence – including that of the appellant. It was also a central issue in the trial. In the circumstances, there was no undue emphasis placed on the demeanor of the complainant. In her reasons, the trial judge listed several other factors from the trial evidence which impacted her findings of credibility. She did not rely on the complainant’s demeanor alone.
iv) W.(D.)
[21] The appellant maintains that the trial judge skipped the third step in W.(D.) that, even if she was not left in doubt by the evidence of the appellant, she was still required to decide whether, on the basis of the evidence she does accept, she was convinced beyond a reasonable doubt by the evidence of the appellant’s guilt.
[22] There is no merit to this complaint. The reasons make it clear that, after rejecting the major parts of the appellant’s evidence and finding it did not leave her with a reasonable doubt about his guilt, the trial judge went on to find the appellant guilty on the evidence she did accept – that of the complainant and some of the appellant’s evidence she found credible in the circumstances.
McWatt J.
Released: February 5, 2016
CITATION: R. v. Rahman, 2016 ONSC 717
COURT FILE NO.: 61/14
DATE: 20160205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MIJANUR RAHMAN
Appellant
REASONS FOR JUDGMENT
McWatt J.
Released: February 5, 2016