R. v. Gayola, 2016 ONSC 974
CITATION: R. v. Gayola, 2016 ONSC 974
COURT FILE NO.: 22/15
DATE: 20160212
Summary Conviction Appeal
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
CYRIL GAYOLA
Appellant
COUNSEL:
Glen Crisp, for the Respondent
Fredrick Schumann, for the Appellant
HEARD: January 18, 2016
REASONS FOR JUDGMENT
McWatt J.:
[1] The appellant appeals convictions on two sexual interference charges in relation to two children who attended his parent’s home day care from 2007 and 2008.
[2] MS first made a complaint about the appellant on February 23, 2013 to her parents. The allegation related to February 15, 2013. She was five years old at the time. MS told her parents that she and the appellant went into the basement laundry room of the day care while the other children played in the next room. At some point, her pants were taken down – either by her or by the appellant. The appellant sat on the floor and pulled MS down to the floor by touching her hip. While sitting beside the appellant, facing the same direction, the appellant asked MS to suck his finger. This happened on five occasions before at the day care.
[3] LW had made no allegations against the appellant by the date of MS’s complaint. The day after MS’s allegations (February 24, 2013), MS’s father contacted LW’s mother and father and told them about his daughter’s accusations. LW’s mother asked LW if the appellant had ever asked her to remove her pants. She asked her child if she had ever been touched or showed her bum to the appellant. LW then made her complaint. She was five years old at the time.
[4] LW complained that the appellant pulled her panties down to her knees and then pulled them back up while they were lying in the appellant’s bed under a blanket. She said the appellant told her she could play games on his phone if she sucked his finger. She sucked on his finger. The appellant also told her she could play games on his phone if she got on his stomach and moved up and down. She did this on four to six different occasions.
[5] The Crown proceeded summarily. At trial, LW and MS testified. The Crown brought no similar fact evidence application. After their evidence, the defence applied for and was denied a directed verdict of acquittal. The appellant then testified. The trial judge found him guilty on all five counts.
[6] Two sexual assault counts related to each complainant. They and the unlawful confinement count related to MS were conditionally stayed pursuant to the principle in Kienapple. The appellant was sentenced on the two sexual interference counts to six months in jail and two years of probation.
1. The appellant alleges that the trial judge erred by failing to consider that, when cross-examined, LW adopted specific denials from her police statement.
[7] LW was interviewed by the police on February 25, 2013 and then by a “SCAN” social worker at the Hospital for Sick Children on March 7, 2013.
[8] At the police interview, LW denied specific acts put to her that the appellant was alleged to have done. When she was interviewed by the social worker at a second interview, LW said the appellant had done the specific acts she had denied in the police interview.
[9] At trial, the second statement given on video tape at the interview with the social worker was adopted by LW pursuant to s. 715.1 of the Criminal Code. The police interview stood as a prior inconsistent statement.
[10] During cross-examination, however, LW adopted specific denials of the appellant’s conduct that she had made to the police. She testified that what she had told the police was true. Her trial evidence was that she had never sucked on or done anything with the appellant’s finger. She had never taken her pants off at the day care. The appellant had never asked her to take off her clothes nor had she ever taken off her clothes in front of Cyril. She also testified that she had never been in the appellant’s room with the door closed.
[11] LW’s evidence, then, along with her videoed statement, consists of a prior inconsistent statement to police that she testified was true. Her evidence is internally inconsistent [R.v. F. (C.C.), 1997 306 (SCC), [1997] 3 S.C.R. 1183 at paras. 31-33).
[12] The content of the police statement, adopted at trial, should have been conclusive with respect to LW’s reliability as a witness. Once it was adopted by LW in her testimony as true, the trial judge could not have been sure of any of her evidence against the appellant. Instead, the judge ignored the specific denials in LW’s evidence that the offences had taken place and embarked on speculating why the SCAN statement was truthful and the statement given to police was not.
[13] The trial judge went on to justify this finding by the fact that counsel “never asked which version was true” (the police statement or the SCAN statement). This question was not necessary. LW had adopted her statement to police as true and the SCAN statement had been adopted by her as true pursuant to S. 715.1 (R v. F.(C.C.), supra at paras. 30-44). On that basis, her evidence could not have led to a conviction against the appellant.
[14] There was no corroboration of LW’s testimony. The trial judge found that LW’s description of a blanket in the appellant’s room was powerful corroboration of her allegations. However, the child’s evidence on cross-examination was that she had been in the appellant’s bedroom other than during the alleged offences and would have been able to see the blanket. Her knowledge of the blanket, in the circumstances, was not strong corroboration. The trial judge did not rationalize this fact in his reasons.
[15] LW also testified in cross-examination that when she told the SCAN worker about sitting on the appellant’s stomach, the other kids were there – all jumping on him and the appellant never asked her to move around on his stomach. She did it because it was fun. The trial judge seemingly ignored this evidence in his assessment of her credibility.
[16] Great deference is accorded to trial judges in cases where the credibility of witnesses is an issue. Here, however, the trial judge misapprehended the evidence in a material way. For these reasons, there should be an acquittal entered on counts 4 and 5 on the Information.
2. The trial judge overlooked evidence relevant to MS’s credibility.
[17] The trial judge believed that defence counsel at trial conceded that MS was a credible witness except for her evidence that “she was only telling what her parents wanted her to say, that Cyril Gayola did bad things and that she wasn’t sure the things actually happened.” There was no concession made at the trial. Counsel for the appellant suggests that the trial judge misperceived the defence argument in the directed verdict application as a concession, at large, and then as a result disregarded much broader arguments about MS’s credibility in the closing submissions.
[18] The Crown contends that the trial judge did not err as alleged by the appellant. There is no reversible error and any misapprehension of the two complainants’ evidence is not material.
[19] Some of the evidence which the trial judge did not review when accepting MS’s evidence, as he put it, beyond a reasonable doubt, was:
(i) Her evidence that when she watches television shows and movies, she sometimes feels like they really happened to her;
(ii) There were factual errors in MS’s testimony such as her evidence that there was no bedroom on the first floor of the house when other credible evidence would suggest there was; inconsistent evidence about whether or not there are blocks at the day care; and whether MS actually understood the subtleties of lying to her mother;
(iii) MS’s evidence of the allegations against the appellant lacked detail and coherence. She did not remember why she was in the laundry room on the date of the last offence and she provided no details about the other four or five times the same thing allegedly happened. There is also no explanation why MS did not tell her parents about the offences until ten days after the last assault by the appellant when she told the Officer taking her statement that she knew what the appellant was doing was bad touching and it was wrong. At the same interview, however, she also told the Officer that she would tell her parents if she knew something was wrong.
[20] The trial judge failed to mention or give consideration to these important defence arguments related to MS’s credibility, probably because he had perceived that the issue of credibility had been conceded. They were material to the issues in the trial as the sole issue was credibility.
3. Did the trial judge misapprehend the appellant’s Evidence?
[21] The trial judge rejected the appellant’s evidence and found that it did not raise a reasonable doubt. The Crown agrees that this is the appellant’s strongest ground of appeal, but still maintains that, if the trial judge did misapprehend some of the appellant’s evidence, that evidence is not relevant to a proper disposition of this case, in any event.
[22] As I have said, the sole issue in the trial was credibility. Misapprehension of the appellant’s evidence, one of the two witnesses on each of the two sets of charges, where there was no corroboration of either complainant’s testimony, was fatal in this case.
[23] The trial judge made the following conclusions about the appellant’s evidence without a basis for them:
(i) The trial judge found that the appellant had deliberately attempted to minimize his role at the day care. The appellant testified he had no role at the day care, but that he interacted with the children and was asked to watch them at times. The appellant’s evidence was not contradictory on this point, yet the trial judge drew an adverse inference about it without any basis to do so;
(ii) The trial judge found that the appellant’s evidence fluctuated on how long he looked after the children when he did. He found, “In fact, it was not normally a few minutes; it was often an hour or more”. The appellant’s evidence was the time he spent with the children would vary. Sometimes it would be three-five minutes. He never testified that it was “not normally a few minutes” and he never testified it was “often” an hour or more. There was no other evidence at the trial to support the trial judge’s findings on this point;
(iii) The trial judge found the appellant lacked credibility because his evidence was that he had “casual contact with both children”, yet the evidence contradicted that claim. In fact, the appellant never claimed to have casual or sporadic contact with the children. There is no other evidence in the trial to suggest he did make this claim;
(iv) The trial judge found against the appellant’s credibility on evidence in the trial that the “last boarder left in 2011”. The presence of a boarder in the appellant’s room was relevant to LW’s claim that she was sexually assaulted between September 4, 2007 and February 25, 2015 in the appellant’s bedroom. The trial judge did not use the evidence that his room was boarded out until 2011 to assess the reliability of the complainant’s evidence, which he should have done. Instead, he simply used it to discredit the appellant. The trial judge also gave no consideration to the evidence that there were boarders in the house up to the time of the trial and the location of the appellant’s bedroom by the front entrance door might have made the offence improbable with family and boarders coming and going from the home;
(v) The trial judge found the appellant’s evidence about whether MS knew how to take off her own pants to be “a strange response for someone who suggested only casual contact”. The appellant did not suggest he had only casual contact with MS. The appellant had testified MS knew how to get herself changed and that he had helped her get her snow pants off once.
(vi) The trial judge did not consider the appellant’s evidence that he closed the laundry room door on February 15, 2013 for about thirty seconds and he did so to prevent the boys from running around in the room. Instead, he concluded that it was imprudent to close a door with young children on the other side, therefore the sexual abuse of MS had to have taken place;
(vii) The trial judge found the appellant contradicted himself when he testified in chief that he had been alone with LW on only one occasion for five minutes, then admitted in cross-examination that the occasion was one of a few times he had been alone with LW. The trial judge used this perceived contradiction to conclude that the appellant appeared to have forgotten a set script of lines or was fabricating his testimony. In fact, the appellant’s evidence-in-chief was that he had been alone with LW three times, once walking her to school, once in his house and once at LW’s house.
[24] The trial judge in this case mischaracterized parts of the appellant’s evidence that were central to the assessment of his credibility. “If the trial judge concluded that the accused was giving dishonest testimony but overlooked evidence that confirmed the accused’s evidence, there may have been a miscarriage of justice (R. v. Alboukari, [2013] O.J. No. 4433 at paras. 36-39).
[25] I would grant the appeal in relation to counts 1, 2 and 3 as a result.
[26] An acquittal shall be entered on counts 4 and 5. There shall be a new trial ordered on counts 1, 2 and 3.
[27] The appellant shall appear in the Provincial Court to set a new date for trial on counts 1, 2 and 3 by March 8, 2016.
McWatt J.
Released: February 12, 2016
CITATION: R. v. Gayola, 2016 ONSC 974
COURT FILE NO.: 22/15
DATE: 20160212
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
CYRIL GAYOLA
Appellant
REASONS FOR JUDGMENT
McWatt J.
Released: February 12, 2016