COURT FILE NO.: 50/16 DATE: 2017/05/29
ONTARIO
SUPERIOR COURT OF JUSTICE
(Southwest Region)
B E T W E E N:
Her Majesty the Queen G. Christakos for the Respondent Respondent
- and -
J.M. F. Brennan for the Appellant Appellant
HEARD: March 31, 2017
MITCHELL J.:
Reasons for Judgment on Appeal
Introduction
[1] The appellant, J.M., appeals his convictions of sexual assault and assault on J.R..
[2] Mr. J.M. advances multiple grounds of appeal. He appeals on the basis that the trial judge erred by:
(i) reversing the burden of proof on the issue of consent with respect to both the sexual assault and the assault convictions; (ii) failing to consider the evidence as a whole before applying the W.(D.) analysis; (iii) equating a lack of evidence of motive to fabricate with an absence of a motive to lie; (iv) subjecting the defence evidence to a higher standard of scrutiny than that of the Crown’s evidence; and (v) misapprehending evidence relating to significant issues.
Evidence at Trial
(i) Background
[3] These convictions relate to events which took place on May 9 and 13, 2015. While together, Ms. J.R. and the appellant produced a son, J.. At the time of the offences, they had been separated for more than a year and shared both custody and access of J., then age 2 and ½ years, in accordance with the terms of a separation agreement.
[4] Their access arrangement resulted in Ms. J.R. and Mr. J.M. having almost daily contact. After separating, they would spend time together as a family - sharing meals, watching TV and enjoying day trips with J..
[5] Since separating, the appellant made efforts to renew a romantic relationship with Ms. J.R.; however, she was not interested. In the winter of 2015, Ms. J.R. began dating a man named “H.” and advised the appellant of this development. However, in early May of 2015, Ms. J.R. told the appellant she was no longer seeing “H.”.
[6] Both parties admitted to calling the police regarding access disputes prior to May 9, 2015. In fact, the appellant reported to the police in April 2015 that Ms. J.R. had assaulted him during an access visit.
(ii) The Sexual Assault
[7] The appellant attended at Ms. J.R.’s home on the morning of May 9, 2015 to pick up J. for a previously scheduled access visit. Upon answering the door, the couple proceeded to her bedroom where she lay down on the bed on top of the covers. Mr. J.M. joined Ms. J.R. on the bed without an invitation. However, Ms. J.R. did not voice any objection to him doing so and Ms. J.R. acknowledges that it was not unusual for the appellant to sit on her bed.
[8] According to the appellant, after Ms. J.R. answered the door she took his hand and led him to the bedroom. He asked Ms. J.R. to get J. ready but she told him she was tired and wanted to lay down. While admitting she told Mr. J.M. she wanted to lay down because she was tired, she denied leading the appellant to the bedroom.
[9] The couple discussed their relationship for a few minutes although specifics of that conversation could not be recalled.
[10] The appellant testified to the following events:
- J. awoke shortly after he arrived and he changed his diaper, took him into the living room and left him to watch cartoons before returning to the bedroom.
- Upon returning to the bedroom, Ms. J.R. pulled up her shirt exposing her breasts.
- He kissed her breasts and when he tried to kiss her mouth she said “no kissing”. She then took his hand and placed it on the crotch of her shorts. He rubbed her vaginal area on top of her clothing and she moaned. He then put his hand underneath her shorts but over her underwear. She again moaned.
- He put his hand under her underwear at which time she told him to keep his hand over her underwear. He asked “are you sure?” Ms. J.R. then said maybe they should stop. J. then entered the bedroom and Ms. J.R. said the “mood was gone”.
- He asked Ms. J.R., “are you sure” in response to her saying “no”.
- He acknowledges Ms. J.R. said “no” twice when J. came into the bedroom. Prior to telling him to keep his hands on top of her underwear, the appellant claims Ms. J.R. had not said anything to him.
- 3 days earlier Ms. J.R. invited him to apply sunscreen to her chest area which he did and then proceeded to touch and kiss her breasts.
[11] Ms. J.R. testified as follows:
- She denies the appellant’s version of events in the following material respects:
- J. was not in the living room watching cartoons during the alleged sexual assault rather was in the bedroom at all times.
- She denies lifting her shirt to expose her breasts.
- She denies saying to the appellant that the “mood” was gone.
- She could not recall if Mr. J.M. asked her whether “she was sure?”
- The appellant placed his hands underneath her shorts and underwear. She could not recall what Mr. J.M. was saying as he did this but she did recall telling him to stop on more than one occasion. She could not recall how the appellant responded to these requests but acknowledged that after saying “no” a couple of times he did stop.
- The appellant did not hold her down during the assault.
- She could not recall if the appellant kissed her during the incident.
- She could not remember if the appellant touched her vaginal area on top of her clothing but did recall that he put his fingers in her vagina for approximately 5 minutes. She told him to stop, that she did not want this and tried to push his hand away.
- With respect to the appellant’s testimony that she moaned with pleasure, she testified: A: Ah probably just because I’m not, not a real lot (sic), but I didn’t consent to it. I didn’t say yes. I didn’t tell him to do it. Q: Okay. So you probably moaned? A: Probably, maybe, I don’t know.
- She said “no” after she moaned with pleasure.
- She had asked the appellant to purchase the sunscreen and invited him to apply it to her chest on May 6, 2015; however, denies any sexual touching occurred.
[12] The appellant advanced the theory that Ms. J.R. had a motive to fabricate and the undisputed evidence of this motive included the following:
- Ms. J.R. did not report the sexual assault allegation to the police until May 13, 2015 because she thought the police might think it was just a dispute between two “exes”.
- She thought it might be viewed as her fault because he had a key to her home.
- She acknowledged that she had no issue in the past calling the police when the appellant acted in ways she considered inappropriate.
- Ms. J.R. acknowledged she did not tell the appellant she was upset about what had happened in the bedroom immediately afterwards and could not recall if the subject was ever discussed.
- The appellant returned to Ms. J.R.’s home later on May 9th for dinner.
- Ms. J.R. asked the appellant on May 10, 2015 to install an air conditioner at her home instead of going to church with J.. Together they installed the air conditioner. Ms. J.R. kissed both the appellant and J. goodbye.
- She gave evidence she possibly spent time with the appellant on May 11, 2015 and did have both phone and in-person contact with him on May 12, 2015.
(iii) The Assault
[13] Ms. J.R. testified that she sent an e-mail to the appellant the morning of May 13th advising that she was with “H.” again and stating that she and Mr. J.M. were just friends who needed to find a way to get along. Mr. J.M. denies reading this email although says Ms. J.R. advised him during a telephone conversation the evening of May 12th that she and “H.” were seeing each other again. The appellant admits to attending unexpectedly and uninvited at Ms. J.R.’s home on May 13, 2015 around 10 A.M. with J..
[14] During examination in chief, Ms. J.R. initially testified that the appellant entered her home and choked her for approximately two minutes. She said she then grabbed his coat to prevent him from taking J.. Later during her examination in chief she testified that the appellant had come to the door twice. The first time she thought he asked about her email to him, but could not recall the exact conversation. She says he then left and returned a second time to ask about his debit card claiming the appellant choked her when she said she did not have the card.
[15] During cross-examination, Ms. J.R. agreed that the appellant had asked her if she was still with H.. Ms. J.R. did not recall the appellant saying he had only fooled around with her on May 9, 2015 because she was no longer seeing H.. However, she stated that she probably or maybe said that “she didn’t even come” during the sexual interaction on May 9, 2015.
[16] Ms. J.R. described the choking incident as a forceful, one-handed grab of her throat. She testified that she could not breathe, but yet managed to tell the appellant he was choking her. In cross-examination she admitted she had been mistaken that he had choked her until she could not breathe. She admitted she had no marks or injuries from the choking incident.
[17] Ms. J.R. agreed that the appellant had asked her to go and get J. from the living room and that she had refused this request. When asked if the appellant then tried to walk past her towards the living room, Ms. J.R. responded: “Ah, it might’ve happened and I, I think I might have tried to keep him like, not coming further in the house.”
[18] Although Ms. J.R. initially stated she just stood in front of the appellant she then stated she may have put her arms out towards him so he could not get past her. When asked if she pushed the appellant she stated that might have happened because she didn’t want him getting J. because she knew the appellant was upset. She later stated that “she couldn’t remember that part”.
[19] Ms. J.R. agreed that she did not want the appellant to take their son after the incident on May 13, 2015 and was upset with Mr. J.M. that he had left with J.. She testified that she called the police in part to get J. back.
[20] During examination in chief, Ms. J.R. testified that she did not speak to the appellant by phone or in person after his arrest on May 13th 2015. However during cross-examination, she acknowledged that she called him at 8:56 A.M. on May 14, 2015 to arrange access. She further acknowledged calling the appellant twice on June 11, 2015 and attending at his house on June 13, 2015. She agreed that she probably screamed some nasty comments through the door. She further acknowledged that, following this incident, the police cautioned her that she would be charged criminally if she initiated any further contact with Mr. J.M..
[21] Ms. J.R. testified that after this incident, she commenced Family Court proceedings to obtain full custody of J.. Since these criminal charges Ms. J.R. was awarded temporary full custody of J. on the basis of sworn affidavits in the family law proceedings describing these alleged sexual assault and assault incidents.
[22] With respect to the May 13th assault, Mr. J.M. testified he went with J. to Ms. J.R.’s home that day to retrieve his debit card. The appellant testified that he went to Ms. J.R.’s door only one time. When she opened the door, J. immediately ran through to the playroom. The appellant asked about his debit card. He then asked her what was going on with their relationship and she responded “you know what’s going on”. The appellant asked her why they had “fooled around” on May 9, 2015 if she was still seeing H.. He testified that J.R. responded that “she did not even come”.
[23] The appellant testified that he was upset when Ms. J.R. told him about H.. When he arrived at her home, he asked her to get J. but she refused. He advanced towards the playroom and claims Ms. J.R. reached up and wrapped one arm around his neck and the other around his waist while pulling him away from J.. He stated her arm was pressing on his throat near his Adam’s apple and she stopped when J. ran up to them.
[24] As he was leaving with J., the appellant claims Ms. J.R. grabbed his right shoulder with her hands. He responded by pushing her against the wall, using an open hand against her upper chest, just below the neckline. He stated the push was pretty instant after she grabbed his shoulder. He says he pushed her away worried she might try to strangle him again.
[25] As he and J. were leaving, the appellant told Ms. J.R. “this cannot happen again”. Ms. J.R. responded that she was going to call the police.
Analysis
[26] This is a classic case of “he said, she said”. Aside from the direct evidence of the appellant and the complainant there was no corroborative evidence available to the trial judge to assist her in reaching a verdict.
[27] The trial judge’s reasons are brief. Understandably so, given that the evidence of the two witnesses spanned a single day.
(a) Reversing the Burden of Proof
[28] The actus reus of both sexual assault and assault requires the Crown to prove, beyond a reasonable doubt that the touching was without the consent of the complainant. The Crown must prove the complainant did not consent in her own mind. The burden rests with the Crown to prove beyond a reasonable doubt that Ms. J.R. lacked consent with respect to the sexual assault and the assault.
[29] The trial judge states: “I note here that the defence is one of consent – he says she consented – it is not one of an honest but mistaken belief in consent.” This statement suggests the appellant is required to prove consent. In making this statement, the trial judge erred. There is no presumption of a lack of consent requiring the appellant to raise a “defence of consent” or, for that matter, a defence of any kind. The burden always rests with the Crown to prove a lack of consent beyond a reasonable doubt.
[30] The trial judge considered the contact between the complainant and the appellant following the events of May 9, 2016 and stated:
They had the usual contact in the following several days as that was their schedule and arrangements regarding J.. This contact after an alleged assault, it is submitted by the defence, shows that the sexual intimacy of May 9th was with her consent. I am not persuaded to that conclusion . She did not want it but it happened and she was moving on…” (emphasis added)
[31] These comments suggest the appellant had the burden of persuading the trial judge the sexual intimacy was with the complainant’s consent. The defendant bears no such burden of persuasion. Again, this demonstrates the trial judge reversed the burden of proof.
[32] The defence raised as a theory that the complainant was motivated to fabricate because of the ongoing custody battle. The trial judge found that such a motive to fabricate was not established on the evidence. [1] Having found an absence of motive to fabricate, the trial judge proceeded to conclude the complainant was credible and that the Crown had proven a lack of consent beyond a reasonable doubt. That is, the trial judge relied on an absence of evidence establishing a defence theory of a motive to fabricate as evidence of proof of lack of consent to the assault and the sexual assault. In doing so, the trial judge reversed the onus.
(b) Failure to consider evidence as a whole before applying the W.(D.) analysis
[33] In R. v. W.(D.) [2] the Supreme Court of Canada developed a three-pronged approach to applying the principle of reasonable doubt in circumstances where the sole issue is the credibility of defence and Crown witnesses. This approach is as follows:
(a) First, if you believe the evidence of the accused, obviously you must acquit. (b) Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. (c) Thirdly, 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.
[34] At page 21, Line 23 of her Reasons for Decision, the trial judges refers to the appropriate analysis by stating:
This is clearly a case requiring a R. v. W. (D.) analysis framework.
[35] Whether the relevant legal principles have been properly articulated is not the test on appeal. The test on appeal is whether the trial judge properly applied those legal principles. Mere reference to the W.(D.) analytical framework will not suffice if it is misapplied. 3
[36] The W.(D.) analysis requires a consideration of the evidence in its totality. In assessing the evidence as a whole, material inconsistencies must be addressed. However, a trial judge is not required to refer to every piece of evidence considered in arriving at his or her decision. A trial judge has an obligation to consider the witness’ testimony regarding material events and decide whether it is credible in the context of the evidence as a whole, before determining the ultimate issue of the appellant’s guilt. Such an error is made out where the reasons demonstrate that the evidence was not considered as a whole in relation to the ultimate issue of guilt or innocence. To succeed on this argument, the appellant must show that a full consideration of the material evidence was not undertaken.
[37] I find that the trial judge failed to consider the evidence as a whole before applying the W.(D.) analysis. The most glaring example of this is the trial judge’s assessment of the evidence of the complainant with respect to her moaning during the sexual contact on May 9th. In her reasons, the trial judge states:
When [J.R.] was cross-examined about the moaning her reply, ‘I might have, I’m not a robot’ at first gave me some concern and was highlighted by defence counsel in her submissions. It would be a rather odd response if the touching were unwanted by her. At the same time, however, it was a very candid reply; she was honest about her reaction even though it was something that she did not want to have happen, and she told him so. (emphasis added)
[38] The trial judge failed to consider whether the evidence of Ms. J.R. (consistent with Mr. J.M.’ evidence) raised a reasonable doubt on the element of lack of consent. The trial judge correctly acknowledged moaning was inconsistent with a lack of consent. However, she addressed this evidence only in the context of assessing the complainant’s credibility finding that Ms. J.R. gave candid testimony and, therefore, the internal inconsistency was reconciled. This was not a conclusion which could be drawn from the evidence.
[39] Instead, the fact of the complainant’s moaning was established based on her honest and candid testimony thus creating a material inconsistency requiring the trial judge to consider whether this fact raised a reasonable doubt. The trial judge had an obligation to consider the appellant’s testimony regarding the events of May 9th and whether it was credible in the context of the evidence as a whole, including her own evidence that she likely moaned during the alleged sexual assault, before determining the ultimate issue of his guilt. 4
[40] The trial judge erred in equating Ms. J.R.’s honesty and candour with the Crown’s obligation to prove an absence of consent beyond a reasonable doubt. The trial judge was required to ask herself whether Ms. J.R.’s moaning during the sexual activity left her with a reasonable doubt as to the element of lack of consent and if not, why not. The honesty of a witness does not negate the obligation of the Crown to prove a lack of consent.
[41] The trial judge found that Ms. J.R.’s evidence was “believable” though “sometimes lacking in details”. While “visibly upset when testifying” the trial judge found she was “steadfast in her evidence” that she did not consent to the sexual touching nor want to resume a relationship with the appellant. The trial judge concluded that Ms. J.R. was “unshaken in cross-examination”. Conversely, the trial judge concluded that the appellant’s evidence was not believable and did not raise a reasonable doubt (that is did not satisfy the first two prongs of the W.(D.) analysis) without first considering (and reconciling) the internal and external inconsistencies in the evidence of the complainant.
[42] In addition to the complainant’s evidence that she may have moaned during the alleged sexual assault, other examples of material inconsistencies in the complainant’s evidence which the trial judge failed to consider and reconcile, include:
(a) With respect to details of the sexual contact, the complainant was vague and could not recall specific details described by the appellant. In fact, much of the appellant’s account of events of May 9th was not denied by the complainant. (b) During cross-examination, the complainant acknowledged that she may have started the altercation with the appellant on May 13th and may have pushed the appellant to avoid him taking J.. The complainant admitted to trying to prevent the appellant from taking J. out of the apartment; (c) The complainant acknowledged that when the appellant returned to her apartment the second time he asked for his debit card; (d) At first instance, the complainant testified the appellant was at her apartment once on May 13th and later in her testimony said he returned to her apartment a second time; (e) The trial judge found the appellant stopped the unwanted sexual touching only when J. entered the room and not when he was asked by Ms. J.R.. In doing so, the trial judge accepted the evidence of the appellant that J. was not in the bedroom during the sexual touching thereby rejecting the evidence of the complainant that J. was in the bedroom throughout the alleged sexual assault; and (f) The complainant testified that one of the reasons she called police on May 13th was to get her son back. She admitted that after the charges were laid against the appellant she instituted family law proceedings and relied on the charges laid against the appellant in support of her claim for custody of J..
[43] The trial judge appears to convict the appellant because she found the complainant to be credible and, conversely, the appellant to be unbelievable. The trial judge made findings of credibility first and then proceeded to consider only the evidence which supported those credibility findings.
[44] By failing to address the material internal and external inconsistencies in the complainant’s evidence, the trial judge reduced her W.(D.) analysis to a credibility contest and in doing so erred.
[45] The foregoing errors are sufficient to support a new trial and it is, therefore, unnecessary to consider the further grounds of appeal raised by the appellant.
Conclusion
[46] In the result, I hereby quash the convictions and direct a new trial.
“Justice A. K. Mitchell” Justice A. K. Mitchell
Released: May 29, 2017
COURT FILE NO.: 15/01 DATE: 2017/05/29
ONTARIO SUPERIOR COURT OF JUSTICE Her Majesty the Queen Respondent – and – J.M. Appellant REASONS FOR JUDGMENT Mitchell J.
Released: May 29, 2017
[1] The trial judge arrives at this conclusion without addressing and reconciling the undisputed evidence suggesting otherwise as outlined later in these reasons.
[2] , [1991] 1 S.C.R. 742 at page 758.
[3] R. v. C.L.Y. 2008 SCC 2 , [2008] 1 S.C.R. 5 at para. 32 .
[4] See R. v. A.P. , 2013 ONCA 344 at para. 50 .