R. v. A.E., 2017 ONSC 6016

CITATION: R. v. A.E., 2017 ONSC 6016 COURT FILE NO.: CR-16-369-AP DATE: 2017-10-06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

A.E. Appellant

COUNSEL: Natalie Thompson, for the Crown Michael S. Mandelcorn, for the Appellant

HEARD at Kingston: 5 October 2017

An order restricting publication in this proceeding has been made pursuant to section 486.4 of the Criminal Code Of Canada.

On appeal from the decision of Justice L.B. O’Brien, Ontario Court of Justice, at Kingston, on 30 May 2016

REASONS FOR DECISION

(Summary conviction appeal)

MEW J.

[1] This is an appeal which turns on whether the trial judge gave adequate reasons for the appellant’s conviction on charges of sexual assault and unlawfully entering a dwelling house and, in particular, for his rejection of the appellant’s testimony denying the commission of these offences.

[2] The trial judge’s reasons took up nearly 44 transcribed pages. The charges arose from an incident that occurred in the complainant’s bedroom at a student residence at Queen’s University. The central issue at trial was credibility.

[3] There were a number of inconsistencies in the evidence of the complainant: sixteen according to counsel for the appellant. Nevertheless, the learned trial judge found the complainant to have testified in a straightforward and convincing manner. He reviewed the inconsistencies and the complainant’s explanation for those inconsistencies, and accepted her evidence.

[4] The trial judge rejected the appellant’s version of events. He found that the appellant had attended the complainant’s bedroom at 2 o’clock in the morning with a plan in his mind to have sex with the complainant and had persisted despite her reaction to his conduct.

[5] The trial judge held that the complainant was not shaken “despite a vigorous cross-examination on how the events in her room unfolded, particularly the sexual misconduct”. The explanation for inconsistencies in the evidence adduced by the Crown “made sense and [were] reflective of the unwanted, fast moving events in her room some seconds apart or occurring concurrently”.

[6] The appellant had testified that, earlier in the evening prior to the subject events taking place, he had encountered the complainant who, he said, had said to him “Maybe we should hang out tonight”. At 2:00 a.m., he had gone to the complainant’s room. He had been let in. The appellant says that the complainant lay down on the bed and the appellant lay down beside her in a spooning position. He asked the complainant if she wanted to “hang out” which in his mind meant to have a threesome (based on a previous episode). The complainant declined. The appellant tried to convince her. The complainant eventually became agitated and told the appellant to leave which, he claims, he did without further incident. The appellant denied the complainant’s allegations that he called her names. He denied that he had grabbed her breasts and put a hand or hands down her pants and touching her vaginal area, as she alleged.

[7] The trial judge’s assessment of the appellant’s evidence on the sexual assault charge was limited to the following two paragraphs:

I find [A.E.]’s explanation of how the events unfolded in [the complainant’s] room conflicts with commonsense and is more in keeping with a young man with a threesome on his mind testing the waters, as he put it, and sexually assaulting [the complainant] in the manner she described rather than cuddling, and his hands around her waist or hip.

In all the circumstances viewed as a whole, I reject [A.E.]’s testimony denying the criminal conduct. This testimony does not leave me in a reasonable doubt. In regards to the sexual assault count, I am convinced beyond a reasonable doubt that the Crown has proven its case and a finding of guilt will be entered on count 3.

[8] On the unlawfully in a dwelling charge, the trial judge found that the appellant was “planning to set in motion a threesome founded upon the improper assumption of a past experience. The correctness of that assumption was quickly extinguished by the words and reaction of [the complainant], yet he persisted with sexual misconduct in her dwelling”.

Appellant’s Position

[9] The appellant points out that the trial judge did not articulate why he had rejected the appellant’s evidence. His assessment was confined to, essentially, two paragraphs. The appellant argues that based on the analysis, such as it was, it is impossible for him to know why the trial judge was left with no reasonable doubt. An accused is entitled to know “why the trial judge is left with no reasonable doubt”: R. v. Gagnon, 2006 SCC 17, [2006] 1 SCR 621 at para. 21.

[10] In R. v. Dinardo, [2008] 1 SCR 788, 2008 SCC 24, at para. 26, the Supreme Court noted that:

… rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error …

[11] A subsidiary argument advanced on behalf of the appellant is that in his reasons, after correctly instructing himself on the three step approach set in R. v. W. (D.), 1991 93 (SCC), [1991] 1 SCR 742, the trial judge thereafter failed to follow those steps.

Crown’s Position

[12] The Crown argues that the approach taken by the trial judge resembled that commented upon by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 SCR 3 at para. 66:

… the trial judge's failure to explain why he rejected the accused's plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge's reasons made it clear that in general, where the complainant's evidence and the accused's evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused's denial. He gave reasons for accepting the complainant's evidence, finding her generally truthful and "a very credible witness", and concluding that her testimony on specific events was "not seriously challenged"… It followed of necessity that he rejected the accused's evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused's evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt.

[13] The Crown also makes reference to a recent decision of the Court of Appeal in R. v. R.A., 2017 ONCA 714. I was invited to consider the reasons of the trial judge in that case (reported at 2015 ONSC 7494) and compare them with the reasons of the trial judge in the present case.

[14] The Court of Appeal upheld the trial judge in R. v. R.A., finding that although the trial judge’s reasons were relatively brief, he had properly instructed himself as to the law, and in particular, the requirements set out in W. (D.) and that he had been entitled to reject the appellant’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence”, quoting R. v. J.J.R.D (2006), 2006 40088 (ON CA), 218 O.A.C. 37 (C.A.) at para. 53.

ANALYSIS

[15] The principles that govern an appeal of this nature are not in doubt and are conveniently summarised in R. v. R.A. at paras. 44-46:

44 First, the trial judge's credibility findings are owed significant deference on appeal. They should not be interfered with unless they "cannot be supported on any reasonable view of the evidence": R. v. P.(R.), 2012 SCC 22, [2012] 1 S.C.R. 746; and R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 7.

45 Second, significant testimonial inconsistencies should be addressed because, as the Supreme Court noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21, the accused is entitled to know "why the trial judge is left with no reasonable doubt". However, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons: R. v. R.(C.), 2010 ONCA 176, 260 O.A.C. 52, at para. 48.

46 Third, an appellate court should not interfere with a trial judge's findings of credibility if the core of the complainant's allegations against an appellant remain largely intact on a review of the entirety of the evidence: R. v. Roy, 2017 ONCA 30, at para. 14; R. v. Barua, 2014 ONCA 34, 315 O.A.C. 83, at paras. 7-8; and R. v. Marleau (2005), 2005 8667 (ON CA), 197 O.A.C. 29 (C.A.), at para. 7.

[16] Provided that the trial judge’s reasons show that he or she “grappled with the substance of the live issues on the trial”, an appellate court should not interfere: R. v. R.E.M., at para. 64.

[17] A determination of whether or not a trial judge’s reasons are adequate will not be decided by comparing how many words were used to discuss the credibility of the complainant and the accused respectively. Rather, on an appellate review, if a trial judge’s reasons enable a party, and an appellate court, to understand what was decided, whether the court understood the evidence and the arguments of the party, and that the law was correctly applied, there is no basis to interfere. In that regard, I do not subscribe to the defence argument that the trial judge’s reasons were inadequate. The judge saw the appellant as a man on a mission – to have sex with the complainant – and his evaluation of the appellant’s version of events when viewed in the context of the case as a whole, including his acceptance of the complainant’s evidence, led him to conclude that the appellant was guilty.

[18] It is perfectly understandable that a person in the position of the appellant should want to know why he has been found guilty. But it is neither practical nor reasonable to expect judges in our busy trial courts to recite in their written reasons every evidentiary issue, inconsistency and legal argument which arises during the course of a trial.

[19] The reasons of the trial judge adequately demonstrate that he understood and assessed the evidence, identified and applied the relevant law. Furthermore, a review of the record supports the trial judge’s findings and conclusions.

[20] At para. 67 of R.E.M., the Supreme Court of Canada said:

… 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.

[21] That passage could almost exactly sum up the reasons of the trial judge on the present appeal.

[22] I would therefore dismiss the appeal against conviction.

Graeme Mew J.

Released: 6 October 2017