Court File and Parties

COURT FILE NO.: CR-16-0008-AP DATE: 2017-05-18 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Nicole Stortini, Assistant Crown Attorney, for the Respondent Respondent

- and -

BEN OLSON David Kiesman, Kiesman Law, for the Appellant Appellant

HEARD: April 13, 2017, at Thunder Bay, Ontario BEFORE: Madam Justice B. R. Warkentin

Reasons For Judgment On Appeal

[1] On December 7, 2015 Mr. Olson, (the Appellant) was convicted of one count of sexual assault contrary to section 271 of the Criminal Code by Madam Justice D.P. Baig of the Ontario Court of Justice and a conditional sentence was imposed. The Appellant appeals that conviction.

[2] The Crown initially cross-appealed the sentence, however, that cross-appeal was abandoned prior to this hearing.

[3] Counsel for the Appellant has put forward three grounds for appeal. He submits that the trial judge erred in that: a) she failed to explain why the Complainant’s testimony was accepted; b) she rejected the Appellant’s testimony without sufficient explanation; and c) there is new evidence available from a new witness who did not appear at the trial.

[4] The Appellant contends these constitute errors of mixed fact and law that entitles him to ask for a new trial.

Background

[5] The events that resulted in the charge of sexual assault and the conviction relate to events that occurred on July 19, 2014. The Complainant attended a horseshoe tournament and family reunion with her boyfriend at a home on Barrie Drive in Paipoonge. They arrived at the party around 10:30 or 11:00 a.m. It was her boyfriend’s family that was hosting the party and there were about 40 people in attendance.

[6] The Appellant was also a guest at the party. Neither the Appellant nor the Complainant knew the other prior to the events on July 19, 2014. During the course of the party, the Complainant learned that there was some conflict between her boyfriend and the Appellant.

[7] The Complainant testified that she had a number of beers during the course of the horseshoe tournament. At trial during examination-in-chief she claimed to have had about 5 beers, whereas in her statement to the police after the incident she claimed to have consumed approximately 8 beers and a small amount of marijuana.

[8] On more than one occasion during the party, the Complainant spoke to the Appellant and indicated that she did not want there to be problems between him and her boyfriend. She acknowledged that at some point during the event she was somewhat intoxicated and could not find her boyfriend, so she called her mother who recommended that she take a nap to sleep off the effects of the alcohol.

[9] At around this same time, she had a conversation with the Appellant and an Uncle of the Appellant. She repeated her request that the Appellant remain civil to her and her boyfriend. The Appellant responded that he would be civil to her and her boyfriend if she would suck his dick.

[10] The Complainant testified that the Appellant’s comments upset her and because she was still unable to find her boyfriend, she decided to follow her mother’s advice and take a nap. She went to her boyfriend’s car where she fell asleep in the passenger seat.

[11] The Complainant testified at trial that she woke up to find the Appellant in the car with her and that he had his hand inside her pants on her vagina. When she realized what was happening she got out of the car and ran away. She ran through some bushes to a neighbour’s home and from there contacted the police alleging she had been sexually assaulted. She was unable to provide the name of her assailant to the police at that time and the evidence of the officer was that she appeared to be significantly intoxicated. The Complainant called the police again the next day and told the officer that the person who assaulted her was the Appellant.

[12] The Appellant testified at trial and agreed that he had made the sexually explicit comment to the Complainant as alleged. He claimed that he then felt remorseful and went to apologize to her. He entered the driver’s side of the vehicle where the Complainant had gone to nap. It was his evidence that the Complainant was awake and that when he entered the vehicle, she began touching herself in her vaginal area. He denied ever having touched the Complainant.

[13] While the Appellant and the Complainant were in the vehicle, a third person, Mr. Kirklynd Zuefle, another guest at the party, came up to the passenger side of the vehicle. The passenger window was open. Mr. Zuefle testified at trial that he observed the Complainant and the Appellant in the vehicle and noted that the Complainant appeared to be sleeping, that her shirt was dishevelled and he could see part of her bra and breast exposed.

[14] During his examination-in-chief, Mr. Zuefle testified that the Appellant said to him “You didn’t see this”. At trial during cross-examination he agreed that it was possible that the Appellant had said “Nothing is going on here”.

[15] In her oral reasons when convicting the Appellant, the trial judge rejected the Appellant’s evidence, finding that there were many inconsistencies in his evidence and that his evidence was not believable.

[16] The Trial Judge accepted the Complainant’s evidence that she was sexually assaulted in the vehicle. She noted that, having rejected the Appellant’s evidence; that the Complainant’s evidence left her in no doubt about the Appellant’s guilt.

The Law

[17] Section 686 (1) (a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that: “(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; (iii) on any ground where there was a miscarriage of justice.”

[18] Where an appellate court reviews findings of credibility by a trial judge, the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. A trial judge is in a unique position to see and hear witnesses. An appellate court should not substitute its own assessment of credibility for that of the trial judge. While trial judges must explain the reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court, the Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17 at paragraphs 19 and 20, emphasized that appellate review does not entail a word by word analysis.

[19] Although the appellate court must show deference to findings of credibility by a trial judge, the trial judge must explain his or her reasons for rejecting evidence that favours the accused. The accused is entitled to some analysis of the evidence and is entitled to know why that evidence is not believed. Moreover, in assessing credibility, the trial judge must apply the principles of R. v. W. (D.), [1991] 1 S.C.C. 742 as outlined at paragraph 28: “First, if you believe the evidence of the accused, you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

[20] However, Justice Cory in the W. (D.) decision commented that: “Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply.” In other words, the Court is not required to slavishly recite the formula articulated in R. v. W.(D.) in reviewing credibility issues so long as the court is alive to the issues raised by W. (D). when evaluating evidence.

Grounds for Appeal

[21] The Appellant submitted that the trial judge misapplied the test laid out in W.(D.) because she failed to explain why she did not believe the testimony of the Appellant. She did not provide reasons as to why she did not find his evidence to be credible or reliable.

[22] The Appellant argued that the comments made by the trial judge about the Appellant’s credibility were rooted in the fact that the Appellant entered the vehicle in order to make his alleged apology when he could have done so without entering the vehicle because the passenger side window was open. By focusing on the fact that he entered the vehicle, the Appellant has argued that the trial judge erred in making this behaviour her focus of his credibility, or lack thereof, and failed to properly consider his evidence of what occurred and explain why she rejected his version of the events.

[23] The Appellant also argued that the trial judge improperly considered the Appellant’s demeanour at trial in making the determination to reject his evidence.

[24] The Appellant argued that the trial judge’s analysis was improperly directed at behaviour of the Appellant that were not issues of credibility and therefore she did not satisfy the obligation to provide reasons for rejecting the Appellant’s evidence. It was the Appellant’s position that the trial judge should have pointed to inconsistent statements or other testimony that was not believable in order to make the findings she did when she rejected his trial evidence.

[25] Because she failed to properly explain why she rejected the Appellant’s evidence at trial, the Appellant argued that the trial judge also failed to consider the third part of R. v W.(D.) by not explaining what evidence from the trial that she did accept that did not leave her in reasonable doubt. Counsel for the Appellant argued that the trial judge never explained in her reasoning why the evidence of the Complainant should be accepted and never considered the inconsistencies in the Complainant’s evidence.

[26] Counsel for the Appellant directed this Court to the fact that at the sentencing stage, the trial judge commented on some of the inconsistencies in the Complainant’s evidence. The Appellant argued that when she made those comments, she gave the impression that she had not believed the Complainant.

[27] During the sentencing, the trial judge made the following comments: At the trial, I was satisfied that I could not rely on the evidence given by [the Appellant]. I found his testimony to be unbelievable. There was much of the testimony of the complainant I found to be unbelievable. However, the whole fact situation as revealed by the totality of the evidence satisfied me beyond any reasonable doubt that the accused was guilty of a sex assault. (Trial transcript of January 13, 2016, page 24, line 2). I don’t know what happened between them. There was some sexual activity. She says she woke up to his hand underneath her clothing around her vagina but I don’t know how much credibility I can give to that. (Trial transcript of January 13, 2016, page 25, line 31).

[28] It is the position of the Appellant that these statements by the trial judge at the sentencing hearing demonstrate that the judge was left in doubt when she said that she did not know what happened and that she didn’t know how much credibility she could give to the Complainant’s statement about the alleged assault. The Appellant argued that because of this, the conviction should not stand and the Appellant should be entitled to a new trial.

[29] The third area argued by the Appellant on this appeal is that the Appellant claims to have new evidence that was not available at the time of the first trial. The new evidence consists of an anticipated statement by an uncle of the Appellant who was at the horseshoe tournament on July 19, 2014. He is anticipated to say that he was with the Appellant when the Complainant approached them expressing concern about the tension between the Appellant and the Complainant’s boyfriend.

[30] The new witness is also expected to say that the Complainant was acting very flirtatious and sexual around him and the Appellant.

[31] The new witness is alleged to have come forward at about the same time that the Appellant was convicted in the first trial.

Crown Submissions on the Grounds for Appeal

[32] Crown counsel argued that the trial judge considered to the test in W.(D.) and the issues of credibility as between the Appellant and the Complainant and that the W.(D.) principles were sufficiently articulated in her findings and reasons.

[33] Counsel for the Crown noted that the trial judge’s assessments of credibility are findings of fact and are to be accorded considerable deference on appeal.

[34] Crown Counsel also noted that the trial judge is not required to cite the test in W.(D.) verbatim provided the analysis is conducted. It was Crown counsel’s position that the trial judge conducted a full W.(D.) analysis and that this is apparent when her reasons are read as a whole. The trial judge rejected the evidence of the Appellant and was not left in a reasonable doubt in making her finding of guilt.

[35] Finally, Crown counsel noted that the fresh evidence sought to be introduced was evidence that was or should have been available to the Appellant at the first trial. The evidence at trial was that the Complainant spoke to both the Appellant and his uncle when she was expressing her concern about the tension between the Appellant and her boyfriend. It was open to the defence, using due diligence to obtain a statement from the uncle who would have been able to confirm or support the statements of the Appellant regarding his discussion with the Complainant.

[36] The Crown also contended that had this evidence been available at the first trial, it would not have had a bearing on the outcome of the trial because the Uncle was not witness to the assault in the vehicle. His expected evidence would only serve to support what the Complainant, the Appellant and others had already agreed upon, that being that the Complainant was asking the Appellant to be civil to her boyfriend. The additional proposed testimony about the Complainant being flirtatious with him and the Appellant is not evidence that would address the issues contemplated by the trial judge.

Analysis

[37] Because the first two grounds of appeal, that the trial judge rejected the Appellant’s testimony and accepted the Complainant’s evidence without giving sufficient reasons, are interconnected, I will address them together.

[38] The Court must determine, upon a reading of all of the evidence, whether the trial judge’s verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered.

[39] Although the appellate court must show deference to findings of credibility by a trial judge, the trial judge must explain his or her reasons for rejecting evidence that favours the accused. The accused is entitled to some analysis of the evidence and is entitled to know why that evidence is not believed.

[40] It is evident from reviewing the trial judge’s reasons that she did not believe the evidence of the Appellant. In her reasons, the trial judge spent time reviewing both the Appellant’s and the Complainant’s versions of events. It was after conducting this review that she stated she did not believe the Appellant’s version of what occurred in the car. She explained why she did not believe his version about his motivation for going to the vehicle to apologize to the Complainant and also her reasons as to why the Appellant’s version was not believable as follows: I do not believe the accused when he said that the complainant immediately began touching her vagina and that the arrival of Kirk could make her so distraught and hysterical that she would run through the field out of embarrassment. (Trial transcript of January 13, 2016, page 127, line 28).

[41] The trial judge then accepted the Complainant’s version of the events that occurred. She based her acceptance of that version on the facts that she accepted, being that the Complainant had been drinking and went to her car to sleep it off and that her reaction by fleeing barefoot in considerable distress to a neighbour’s where she called police supported the Complainant’s version.

[42] The trial judge explained her reasoning in that she found that the Complainant’s reaction in fleeing as she did would have been out of proportion to the Appellant’s version of events; that had the Complainant being awake and touching her own vaginal area when the Appellant entered her vehicle she would not have reacted as she did.

[43] The trial judge noted that having accepted that evidence, she was not left in any reasonable doubt of the guilt of the accused.

[44] I do not find there is any merit to the Appellant’s argument that the trial judge either misapplied the formula, in particular the third prong as set out in W. (D.) when she rejected the Appellant’s testimony and accepted that of the Complainant.

[45] In the Supreme Court of Canada case of R. v. R.E.M., 2008 SCC 51, Chief Justice McLachlin at paragraphs 67 and 68 provided a summary of the issues of findings of credibility and sufficiency of reasons. She warned appellate bodies that they must give deference to a trial judge’s finding on issues of credibility: “It may have been desirable for the trial judge to explain certain matters more fully. … However, on the law enunciated above, the question is whether the reasons, considered in the context of the record and the live issues at trial, failed to disclose a logical connection between the evidence and the verdict sufficient to permit meaningful appeal. The central issue at trial was credibility. It is clear that the trial judge accepted all or sufficient of the complainant’s ample evidence as to the incidents, and was not left with a reasonable doubt on the whole of the evidence or from the contradictory evidence of the accused. From this, he concluded that the accused’s guilt had been established beyond a reasonable doubt. When the record is considered as a whole, the basis for the verdict is evident. Instead of looking for this basis, the Court of Appeal focused on omitted details and proceeded from a skeptical perspective. Having concluded that the accused’s denial was plausible, it proceeded to examine the case from that perspective, asking whether the reasons disclosed that the trial judge had properly applied the reasonable doubt standard. In doing so, it fell into the trap identified in Gagnon of ignoring the trial judge’s unique position to see and hear witnesses, and instead substituted its own assessment of credibility for the trial judge’s view by impugning the reasons for judgment for not explaining why a reasonable doubt was not raised.”

[46] Counsel for the Appellant has asked this court to focus on the details omitted from the trial judge’s reasons and proceed from a skeptical perspective. Counsel for the Appellant pointed to comments made by the trial judge in sentencing the Appellant to lend support to this perspective. However, the comments made on sentence by the trial judge were only a part of the whole of her reasons. The trial judge recounted the evidence that she relied upon in making her finding of guilt, including the Complainant’s response when she realized she was being assaulted as the basis for making her finding.

[47] To accept the submissions of the Appellant on the trial judge’s findings of credibility would be to ignore the trial judge’s unique position to see and hear witnesses. It would result in this Court substituting its own assessment of credibility for the trial judge’s view.

[48] In the context of the entire record, the trial judge’s reasons sufficiently informed the Appellant and the public why the case was decided against him. The reasons were also sufficient to provide meaningful appellate review. It is clear that the trial judge accepted the Complainant’s evidence as to the manner in which the incidents occurred. The trial judge was not left with a reasonable doubt from the evidence of the Appellant that contradicted the Complainant’s evidence, or on the whole of the evidence. The trial judge determined that the accused’s guilt had been established beyond a reasonable doubt.

[49] I do not find therefore that there is any merit to the Appellant’s argument that the trial judge either misapplied the formula, in particular the third prong as set out in W. (D.) when she rejected the Appellant’s testimony and accepted that of the Complainant.

Fresh Evidence

[50] I also accept the Crown’s submissions that the fresh evidence the Appellant has obtained is not evidence that was unavailable to the Appellant before the first trial. This evidence would have been known to the Appellant because he testified at trial that his Uncle was present when he made the explicit comment to the Complainant.

[51] The purported new evidence is therefore limited to the Uncle’s perspective that the Complainant was acting flirtatious when that conversation took place. I accept the Crown’s position that even if the trial judge accepted this fact, it would have had no bearing on the outcome of the trial.

[52] I therefore dismiss the Appellant’s appeal against the trial judge’s verdict.

Madam Justice B. R. Warkentin, RSJ Released: May 18, 2017

COURT FILE NO.: CR-16-0008-AP DATE: 2017-05-18 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN, Respondent

• and – BEN OLSON Appellant REASONS FOR JUDGMENT ON APPEAL Warkentin R.S.J. Released: May 18, 2017