CITATION: R. v. Lynch, 2017 ONSC 1198

COURT FILE NO.: CR-15-10000099-00AP

DATE: 20170221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JORDAN LYNCH Appellant

Danielle Carbonneau, for the Respondent, Crown

Aman S. Patel, for the Appellant

HEARD: February 17, 2017

(PUBLICATION BAN UNDER s. 486 OF THE CRIMINAL CODE)

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT on summary judgment conviction appeal

[1] On December 25, 2013 the complainant, A.G., was at her residence in Peterborough when the Appellant came by. He was looking for A.G.’s boyfriend. A.G. testified that the Appellant was there to collect on a debt. He took her with him to Toronto. According to A.G., that was against her will. She was very frightened. She said that the Appellant abducted her, threatened her with a knife, held against her well, and sexually assaulted her. A.G. testified that the Appellant showed her the knife in a menacing manner. She also says that during the drive the Appellant put his hands down her pants and touched her vagina without her consent. She says she was terrified and traumatized. During the drive the Appellant told her to go into a gas station and buy drinks. She told the attendant that she had been kidnapped and asked him to call the police but she got back into the car with the Appellant. She eventually escaped to a residence in Toronto where the homeowner called the police.

[2] The Appellant was charged with one count of fail to comply with a recognizance, one count of uttering a threat to cause bodily harm, one count of sexual assault, one count of unlawful confinement, and one count of possession of a weapon (a knife) for the purpose of committing an offence. He was tried during a two-day trial before Madam Justice M. Greene of the Ontario Court of Justice. The Crown called three witnesses: A.G. (the complainant); Hozaifa Patel (the gas station attendant, and no relation to the Appellant’s counsel); and Kirk Pinkowski, the homeowner.

[3] The trial judge found the Appellant guilty of sexual assault and possession of a weapon. The Crown invited an acquittal on the fail to comply count. The trial judge had a reasonable doubt on the unlawful confinement and uttering threat counts and acquitted.

[4] The Appellant appeals his convictions. In his factum, he argued that the trial judge’s reasons were tainted by error in his treatment of A.G.’s credibility. In oral submissions he concentrated on a ground not raised in his factum or his Notice of Appeal: he argued that a new trial was required because Mr. Patel did not have an interpreter and needed one.

[5] I respectfully disagree with both submissions. I will deal first with the credibility issue.

[6] The main complaint about the trial judge’s treatment of A.G.’s credibility is that the trial judge accepted her evidence on some key points notwithstanding A.G.’s demonstrated willingness to say things that were patently false. He argues that the trial judge compartmentalized the A.G.’s credibility across all counts. This, he argues, was an error: R. v. W.D.D., 2008 ONCA 755.

[7] This ground cannot succeed. The trial judge very carefully weighed the evidence of A.G. She was aware of A.G.’s credibility problems (including her criminal record and her apparent willingness to lie to protect her boyfriend) and instructed herself that she had to approach A.G.’s evidence with caution as a result. Moreover, she also considered A.G.’s evidence in light of the evidence of the two other witnesses. Mr. Patel, the gas station attendant, testified that A.G. came into his store and was distraught. She asked him to call the police and to get the licence plate of the Appellant’s car. Mr. Patel further testified that he offered her refute, although A.G. disputed that point. Thus, there were differences between the evidence of Mr. Patel and the evidence of A.G. The trial judge was alive to them and considered them. On the key point, however – that A.G. was distraught and terrified when she went into the store – they agreed. Similarly, the trial judge examined the evidence of A.G. in the context of the evidence of Mr. Pinkowski. A.G. knocked on his door looking for help. He described her as being in an emotional state, crying and trembling. She asked him to call the police, which he did. That was consistent with A.G.’s evidence.

[8] It is well settled that a trier of fact may accept some, none, or all of the evidence of a witness. It is for a trier of fact to determine how much weight to give “factors such as inconsistency and motive to concoct”: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180 at para. 32. The trial judge did not compartmentalize the evidence and fall into error, as argued by the Appellant. Rather, she evaluated the evidence of the complainant and determined what she could and could not accept. This trial was all about credibility. The trial judge’s credibility findings regarding the sexual assault and the knife were supportable on the evidence. An appellate court will not interfere with a trial judge’s credibility assessment under those circumstances or substitute its own view of the evidence. The trial judge is entitled to substantial deference in evaluating credibility: R. v. R.E.M., 2008 SCC 51, [2008], 3 S.C.R. 3 at paras. 28, 32.

[9] Respectfully, the Appellant’s argument also cannot succeed because it does exactly that which Doherty J.A. warned against in R. v. Morrisey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at para. 28: it dissects the trial judge’s reasons into small pieces and examines it in isolation.

[10] The Appellant further argues that the trial judge improperly relied on A.G.’s lack of motive to fabricate. He says that once a complainant has demonstrated a willingness to make unreliable accusations, the significant of an absence of a motive to lie disappears completely: R. v. W.S. (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont.C.A.).

[11] I agree that under some circumstances it may be an error for the trial judge to use an absence of motive to fabricate to shift the burden on the Appellant or strengthen A.G.’s credibility: R. v. Mearow, [2006] O.J. No. 4025 (C.A.) at para. 18. In my respectful view, however, the trial judge did not do this. This is what the trial judge said:

While there was arguably a motive to make up the abduction to explain why she was in Toronto, there was no motive to make up the presence of a knife or a sexual assault. I recognize that there is never a burden on the defendant to establish a motive to fabricate, in fact, it would be difficult if not impossible to expect defence counsel to know what was in someone’s mind and why they would make something up, but in my view the absence of a motive is still a factor that I can consider, albeit not a strong factor and I place very little weight on this factor.

[12] In my respectful view, the trial judge’s comments on this point were unassailable.

[13] I turn now to the second issue raised by the Appellant, the trial judge’s treatment of the evidence of Mr. Patel. Mr. Patel’s first language was not English. He gave his statement to the police without the aid of an interpreter. Although an interpreter was ordered for him, he indicated that he felt comfortable in English and did not require one. The trial judge indicated that if at any time he did not understand a particular word or sentence then he should ask for assistance. Mr. Patel then gave his evidence. He testified, among other things, that A.G. had stated that her boyfriend had kidnapped her. Mr. Patel was cross-examined on the point. He maintained that that was what A.G. had said. He also maintained that he had offered her refuge in his store – something that A.G. denied.

[14] The trial judge noted that Mr. Patel likely made a mistake about the boyfriend issue. She also found that it was possible as well that A.G. simply did not understand that Mr. Patel was offering her refuge.

[15] The trial judge observed that Mr. Patel’s English was clearly poor. As she put it, he had a hard time explaining himself and it is possible that he did not understand all the words put to him. As a result, she found that the conflict between the evidence of Mr. Patel and A.G. did not undermine her credibility.

[16] A review of the transcript shows that Mr. Patel’s English was indeed poor, but there was only one point in his evidence where the trial judge noted that it appeared he might need assistance in testifying.

[17] The Appellant raised this argument for the first time on appeal, without notice to the Crown and without any authority. I permitted him to do so. In my view, however, this ground cannot succeed.

[18] A party or a witness has a constitutional right to an interpreter: Charter of Rights, s. 14. While courts should be generous and open-minded when assessing a person’s need for an interpreter, there is no automatic right: R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951 at para. 48.

[19] A trial court has discretion as to whether to permit a witness to have an interpreter. The Court of Appeal’s comment in Serrurier v. City of Ottawa (1983), 1983 CanLII 1628 (ON CA), 42 O.R. (2d) 321, 148 D.L.R. (3d) 655 (C.A.), quoting with approval Sopinka and Lederman is directly on point:

It is, of course, a bastion of our system of jurisprudence that a witness be subject to cross-examination. Cross-examination becomes more difficult, and often less effective, when each question and answer must be interpreted. It is for that reason that a discretion is given to trial judges whether or not to permit the employment of an interpreter. The rule is put by Sopinka and Lederman in The Law of Evidence in Civil Cases (1974), pp. 477-8, thus:

The use of an interpreter to translate the evidence of a witness or a party is a matter within the discretion of the trial judge. The primary consideration for the trial judge in the exercise of this discretion is that the witness, especially where he is a party, should be permitted to put before the court his evidence as fully and accurately and as fairly and effectively as all the circumstances permit. The decision as to whether the witness possesses sufficient knowledge of the English language to really understand and answer the questions put to him is a question of fact. Although the exercise of the judge's discretion may be reviewed on appeal, the court of appeal will not interfere with the decision of the trial judge except for extremely cogent reasons.

In arriving at his decision, the trial judge is not bound to accept the statement of counsel producing the witness as to the linguistic ability of the witness, but may allow the examination to proceed to determine this matter for himself. The trial judge may also allow counsel opposing the use of an interpreter to question the witness in order to test his knowledge of the English language.

[20] I also respectfully adopt the comments of Hill J. in R. v. Singh, 2016 ONSC 3688 at para. 35:

… in assessing credibility, the trier of fact should remain sensitive to the fact that the witness may be formulating concepts and responses in their first language before transferring to a formulated English-language answer. Indeed, the trier of fact may, at times, properly interpret the witness' misuses of language..

[21] By testifying in English Mr. Patel actually assisted the trial judge in making her credibility assessment. She was able to hear and see the degree to which Mr. Patel’s language ability influenced his dealings with A.G. – and A.G.’s understanding of him. There was nothing wrong with this, as long as it enhanced her ability to understand the evidence rather than detracted from it. I see no error under these circumstances.

[22] Moreover, during Mr. Patel’s testimony the trial judge considered and then rejected bringing in an interpreter. In doing so, she exercised her discretion as a trial judge to weigh the usefulness of an interpreter against the delay in the proceedings that it would cause. She was well within her rights to do so – it was her duty and responsibility to control the proceedings in her own court.

[23] Accordingly, the appeal is dismissed.

R.F. Goldstein J.

Released: February 21, 2017

CITATION: R. v. Lynch, 2017 ONSC 1198

COURT FILE NO.: CR-15-10000099-00AP

DATE: 20170221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JORDAN LYNCH Appellant

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

R.F. Goldstein J.