CITATION: R. v. A.M., 2017 ONSC 5018
COURT FILE NO.: SCA (P) 566/17
DATE: 20170823
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.M.
Appellant
D. Mungat for the Crown/Respondent
A. Farooq for the Appellant
HEARD: August 14, 2017
SUMMARY CONVICTION APPEAL
(From the conviction by Justice P. Schreck on June 19, 2016)
Ricchetti, J.:
THE CHARGE
[1] Mr. A.M. was charged with sexually assaulting Ms. P. on June 16, 2014.
[2] The trial was heard on April 13, 14 and 15, 2016.
[3] On June 19, 2016, Justice Schreck found Mr. A.M. guilty. The learned trial judge gave oral reasons for the conviction.
THE EVIDENCE HEARD AT TRIAL
[4] While several other witnesses testified at trial, the primary and only persons present during the alleged assault was Ms. P. and Mr. A.M.. Both testified at trial. As correctly stated by the learned trial judge:
“As a result, my determination of this case must be based primarily on my assessment of the testimony of these two witnesses."
[5] Mr. A.M. is a 61 year old pharmacist and associate owner of a pharmacy. Ms. P. was 20 years old and an employee at the pharmacy.
[6] On June 16, 2014, Mr. A.M. and Ms. P. were both working at the pharmacy. At some point in the day, Mr. A.M. brought Ms. P. some food, on a plate, while she was working in one of the aisles. She tasted his food. This interaction was caught on the store video.
[7] It is the events that follow, not caught on store video, which are the subject of the charge.
[8] Ms. P. testified that Mr. A.M. lured her into another room, the "cash room", where there was no video surveillance, on the pretext that she try some more food. Ms. P. testified that, while in the cash room, Mr. A.M. put his arm around her. During this interaction, Ms. P. testified Mr. A.M. and touched/cupped her breast on two occasions.
[9] Mr. A.M. testified. In chief Mr. A.M. denied Ms. P.’s version of events. He stated Ms. P.’s version of events had not happened. He denied that he "grabbed" her as she alleged - "Never happened".
[10] Mr. A.M.'s evidence in chief was brief. Mr. A.M. was cross-examined by the Crown. The transcript of the cross-examination covers 95 pages.
THE REASONS
[11] The learned trial judge correctly identified the need to apply the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. The learned trial judge stated:
First, I must determine whether I believe the defence evidence. If so, Mr. A.M. is entitled to be found not guilty. Even if I do not believe the defence evidence, I must still consider whether that evidence, although not believed, raises a reasonable doubt. If it does, he is entitled to be found not guilty. ....
[12] The learned trial judge then turned to a consideration of Mr. A.M.'s evidence:
Mr. A.M. testified and denied sexually assaulting [Ms. P.] His examination in chief was very brief and consisted of little more than the denial. It was largely bereft of any detail.....Where the testimony is devoid of any detail and consists of little more than a series of bald assertions, it is difficult to meaningfully assess it and give it much weight."
[13] The learned trial judge went on to say: "In addition to this..." and proceeded to set out an inconsistency in Mr. A.M.'s evidence with respect to pinching Ms. P.'s cheek that day.
THE LAW
Appellate Review in summary conviction appeals
[14] By virtue of s. 822(1) of the Criminal Code, the statutory grounds of appeal set out in s. 686 apply to summary conviction appeals. Under that section, there are three statutory grounds of allowing an appeal where it finds a(n):
a) Unreasonable decision (s. 686(1)(a)(i));
b) Wrong decision (s. 686(1)(a)(ii)); and
c) Miscarriage of justice: (s. 686(1)(a)(iii)).
[15] There are three statutory grounds to dismiss an appeal and uphold a conviction:
a) No grounds or no substantial wrong (ss. 686(1)(b)(ii) or (iii));
b) Proper conviction on one count (s. 686(1)(b)(ii) and s. 686(3)); and
c) No prejudice – procedural irregularity (s. 686(1)(b)(iv)).
[16] The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that could have been reasonably reached. As a result, a court sitting on appeal should only allow an appeal of the decision, if:
a) it cannot be supported by the evidence; or
b) it is clearly wrong in law; or
c) it is clearly unreasonable; or
d) there was a miscarriage of justice.
THE POSITION OF THE PARTIES
[17] The Appellant advances several grounds:
a)The learned trial judge embarked upon an analysis regarding the cheek pinching which was neither necessary nor warranted, found that Mr. A.M.’s cheek pinching constituted an assault by Mr. A.M. and this finding negatively impacted his proper assessment of the real issue – the sexual assault charge;
b) The learned trial judge failed to equally assess Mr. A.M. and Ms. P.’s evidence;
c)The learned trial judge misapprehended the evidence of Ms. P.’s motive to fabricate the allegation; and
d) The learned trial judge failed to properly apply W(D) when assessing Mr. A.M.’s evidence.
ANALYSIS
The Application of W(D)
[18] I am satisfied that the learned trial judge erred in the proper assessment of Mr. A.M.’s evidence for the purpose of applying W(D).
[19] As set out above, the learned trial judge determined that he must give little weight to Mr. A.M.’s evidence because his denial of Ms. P.’s allegations lacked details in his examination in chief.
[20] The fact that Mr. A.M. denied the events occurred would necessarily mean there is a lack of details regarding the events.
[21] The role of the learned trial judge was to properly assess Mr. A.M.’s credibility and reliability regarding his denial of the alleged conduct in light of all the evidence, which includes his examination in chief, his cross-examination and other evidence at trial. The learned trial judge failed to do so because he found Mr. A.M.’s evidence in chief was brief and lacked details. In many cases, an accused’s denial of the alleged conduct, will necessarily be brief – because, according to the accused, it didn’t happen. It is a trial judge’s responsibility to assess the accused’s denial of the alleged conduct in light of the assessment of all the evidence to determine whether to accept the accused’s version of events that the conduct alleged did not occur or whether it leaves the court with a reasonable doubt as to whether the alleged conduct occurred.
[22] The rejection or giving little weight of Mr. A.M.’s evidence, on this crucial evidence as to what took place in the cash room, was an error of law and clearly unreasonable.
[23] The fact the learned trial judge went on to refer to the cheek pinching as an inconsistency in Mr. A.M.’s evidence was a proper consideration in the assessment of Mr. A.M.’s evidence. However, having already decided to give little weight to Mr. A.M.’s evidence because his denial in chief contained a lack of details, this court cannot determine, on the record, whether the learned trial judge properly rejected Mr. A.M.’s evidence on the first or properly applied the second branch of W(D).
[24] Having proceeded in this manner to reject or give little weight to Mr. A.M.’s evidence because it lacked details in his evidence in chief, the learned trial judge could not have and did not properly apply the first two parts of W(D). This is an error of law.
[25] On this basis alone, a new trial is necessary.
Other Grounds of Appeal
[26] It is not necessary for this court to deal with the other grounds of appeal.
CONCLUSION
[27] The appeal is allowed. A new trial is ordered.
Ricchetti, J.
Released: August 23, 2017
CITATION: R. v. A.M., 2017 ONSC 5018
COURT FILE NO.: SCA (P) 566/17
DATE: 201708xx
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A.M.
SUMMARY CONVICTION APPEAL
(From The Conviction By Justice P. Schreck On June 19, 2016)
Ricchetti J.
Released: August 23, 2017