CITATION: R. v. J.R., 2017 ONSC 6316

COURT FILE NO.: CR-16-0989

DATE: 2017 Oct 27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.R.

Appellant

Andrew L. Macdonald, for the Crown

Gary R. Barnes, for the Appellant

HEARD at Perth: October 5, 2017

Information contained herein is banned from publication pursuant to section 486.5 of the Criminal Code of Canada

Tranmer J.

REASONS FOR DECISION

(Summary conviction appeal)

[1] J.R. appeals her convictions for assaulting her two children, ages 12 and 4. Her trial took place in the Ontario Court of Justice on March 22, 23 and 24, 2016. The learned trial judge rendered his decision on April 5, 2016.

The Issues

[2] The appellant raises three issues in this appeal.

[3] The appellant submits that the learned trial judge erred in admitting into evidence a letter written by the appellant and given by her to her eldest daughter subsequent to the alleged assaults.

[4] Secondly, the appellant submits that the learned trial judge erred in applying different standards to his assessment of the credibility of the accused and of the complainant’s eldest daughter.

[5] Finally, the appellant further submits that the learned trial judge erred in his application of the test set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742.

The Letter

[6] At trial, the Crown and defence argued that the letter was capable of two different interpretations. The Crown argued that in the letter, the accused was telling her daughter to change her story. The defence argued that she was telling her daughter to tell the truth and further that the letter was not relevant.

[7] In his reasons for admitting the letter, the learned judge concluded that a trier of fact could find that the writer wanted the witness to change her account. He found that to be relevant. The second reason for admitting the letter was that he found the trier of fact could find the letter to be “some admission of something happening for which opinions may differ”.

[8] In my view, the learned trial judge applied the correct test in deciding whether to admit the letter into evidence. He applied the test for admissibility as set out in R. v. Evans, 1993 CanLII 86 (SCC), [1993] SCJ No. 115.

The Assessment of Credibility

[9] The appellant submits that the learned trial judge erred in concluding that “cross-examination pokes holes in her story”, with respect to the testimony of the accused. In that regard, Crown counsel submitted at trial “My friend made the submission that J.R. was unshaken in cross-examination. I concede that. That J.R. maintained her version of what happened, and that that remained unchanged”.

[10] However, it is important to note that Crown counsel went on to state as follows, “I would submit that that submission is not with respect, entirely accurate. I don't disagree that mountains were not moved. However, there was a bit of an evolution.”

[11] In his reasons for judgment at page 8 and into page 9 of the transcript, the learned trial judge identifies two aspects of the accused’s testimony that bear this out and reveal inconsistencies, firstly whether her elder daughter helped with the housework and secondly, while on the one hand stating that she and her daughter had a good mother-daughter relationship, yet stating that her daughter shoved her almost daily. Clearly, these are the two holes revealed in the accused’s cross-examination that the learned trial judge identified specifically. I do not think that these findings are at odds with the comments that Crown counsel made in her submissions.

[12] Relevant to this issue are the comments of the Ontario Court of Appeal in R. v. N.L.P. 2013 ONCA 773, at paras. 14 and 15:

14 The appellant complains that: "The trial judge accepted the 'naïve' complainant's word without the need for any corroboration, while she approached the appellant's evidence like a Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, witness in the sense that it was unworthy of belief absent independent evidence to restore her faith in suspect testimony." The appellant argues that the trial record shows that the trial judge "demonstrably applied different standards" in assessing the evidence.

15 The test for assessing the validity of such a complaint was set by this court in R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.). Doherty J.A. noted, at para 47, that such a complaint is often a "thinly veiled" invitation to this court to substitute its own credibility findings for those of the trial judge, and amounts to "an assertion that the verdict is unreasonable." He added, at para. 59:

This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

[13] There is no clear indication on the record that the trial judge applied different standards in assessing the evidence of the accused and the complainant.

[14] The appellant further submits that the learned trial judge erred by showing bias when, in sentencing the accused, he described her “attitude as frankly outrageous and hateful”. In my view, this comment does not give rise to a finding of real or perceived bias in the conduct of the trial within the meaning of the authorities.

The W. (D.) Issue

[15] Prior to assessing the credibility of A. and the accused, the learned trial judge accurately set out the WD test, “The primary issue is credibility. Therefore, the court is governed by the decision in R. v. W. (D.). This decision tells us if the accused's evidence is believed then she would be entitled to an acquittal. If her evidence is not believed, but is capable of raising a reasonable doubt, then again an acquittal must follow. And if her evidence is not believed, and is not capable of raising a reasonable doubt, then again, if on the totality of the evidence, if the court is left with a reasonable doubt, then an acquittal must follow”.

[16] The learned trial judge then reviewed the evidence of A. and of the accused and set out his considerations and findings as to their respective credibility.

[17] The appellant submits that the learned trial judge erred because he next said, “Going through the R. v. W. (D.) analysis, and for these reasons, I believe A.’s evidence; I do not believe the accused’s evidence. I do not believe that her (the accused’s) evidence is capable of belief, nor on the totality of the evidence is, the court left with a reasonable doubt. The accused will be found guilty of all charges”.

[18] The appellant submits that the learned trial judge erred in first deciding that he believed A., before considering whether he believed the accused, or whether he found the accused’s evidence raised a reasonable doubt.

[19] Justice Code of this Court has written, “No evidence, whether favouring the Crown or the defence, should ever be assessed in isolation when determining credibility. Indeed, the first and third steps in WD. are closely related because acceptance of a powerful Crown case that proves guilt beyond reasonable doubt (at step 3) is a perfectly good reason for completely rejecting the accused’s exculpatory account (at step 1), and vice versa. As Doherty JA put it, speaking for the court in R. v. D. (J.J.R.), (2006), 2006 CanLII 40088 (ON CA), 215 CCC (3d) 252 at para. 53 (Ont. C. A.): “an out right rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is the rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence. Also see: R v M. (R.E.), (2008), 2008 SCC 51, 235 CCC (3d) 290 at para. 66 (SCC); R. v. Rojas (2008), 2008 SCC 56, 236 CCC (3d) 153 at para. 25 (SCC)”. (Applying the WD Framework: What Has Changed? Justice M. A. Code, May 2011).

[20] The case of R. v. Jaura, [2006] OJ No. 4157, is an example of Justice Doherty’s principle. Justice Duncan found the complainant’s evidence to be completely credible and totally believable. He stated that the issue before him was whether he could reject the accused's evidence and convict solely on the basis of his acceptance of the complainant’s evidence. He noted that the authorities stood for the proposition that acceptance of the complainant's version does not resolve the case. The court must still consider and weigh the defendant's version and if unable to reject it must consider itself to be in a state of reasonable doubt. He cited R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] OJ No. 3177, “However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing, comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment, recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused”. Justice Duncan concluded, “in a she said/he said case, a trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment, and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence”. (para. 20).

[21] Jaura is also consistent with the Supreme Court of Canada decision in R. v. C.L.Y., 2008 SCC 2, [2008] 1 SCR 5. It is preferable that the trial judge analyze the accused’s evidence and credibility first, and determine whether he believes the accused or is left with a reasonable doubt on the basis of the accused’s testimony or evidence favorable to the accused, before considering the complainant’s evidence. But it is not error to consider the complainant’s evidence first so long as it is clear that the trial judge did not decide the case as simply a credibility contest but instead whether on the totality of the evidence the Crown had proven guilt beyond a reasonable doubt.

[22] The decision of Justice Abella as stated in CLY is highly relevant to the present appeal:

3 …The majority rejected C.L.Y.'s argument that the trial judge, by considering the evidence of the girl first, had shifted the burden of proof contrary to this Court's instruction in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The majority's conclusion on the issues relating to the assessment of credibility are:

In the present case, it is clear that the judge understood that her decision on credibility did not mean the accused was guilty. Her reasons disclose a full understanding of the two separate findings she was making. She did not leap from her credibility finding directly to conviction. She applied the principles regarding reasonable doubt.

In the case at bar, the judge provided a clear and concise analysis for her finding of credibility with respect to the accused. The accused complains that the analysis is flawed and should be disregarded because of the judge's reliance on the complainant's excellent recall of events to discredit his credibility. That in my view goes not to the lack or sufficiency of reasons being provided but more to the reasoning process itself. It is not, in my view, for an appellate court to question the thought or reasoning process that a trial judge utilizes in arriving at a decision unless it is clearly in error. Such is not the case here. [paras. 14 and 16]

4 Twaddle J.A. dissented. He concluded that despite the trial judge's articulated assurance that she was aware of the principles in W.(D.), there was a "subtle shift" of the onus of proof:

[The] acceptance of the complainant's evidence before even considering that of the accused must, as I see it, result in at least a subtle shift of the onus of proof. Having accepted the complainant's evidence, the trial judge will inevitably find the accused's evidence less believable than it would have been before the complainant's evidence was accepted. [para. 32]

5 While I disagree with Twaddle J.A.'s view that the trial judge's failure to follow the steps articulated in W.(D.) resulted in "a subtle shift of the onus of proof", I am of the view that the way the trial judge approached the evidence and credibility of C.L.Y. was highly problematic. …

6 … This Court has consistently warned that verdicts of guilt should not be based on "whether [triers of fact] believe the defence evidence or the Crown's evidence" (W.(D.), at p. 757). Rather, the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused (R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361). The following suggested steps in W.(D.) are intended to ensure that the trier of fact remains focused on the principle of reasonable doubt:

First, if you believe the evidence of the accused, obviously 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. [p. 758]

7 However, and significantly, this Court has also consistently confirmed that these steps need not be religiously followed or articulated. Cory J. made this very clear in W.(D.):

... 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. [p. 758]

He reiterated this caveat in R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, when he said, at p. 533, that the W.(D.) procedure was not meant to be followed "word for word as some magic incantation". The key is whether the correct burden and standard of proof were applied, not what words were used in applying them.

8 It is noteworthy that in W.(D.) itself, despite the trial judge's error in instructing the jury that they were engaged in a credibility contest, the conviction was upheld. This of course does not give trial judges licence to wrongly analyse credibility issues, but it does serve to remind that what W.(D.) offered was a helpful map, not the only route. Its purpose was to ensure that triers of fact - judges or juries - understand that the verdict should not be based on a choice between the accused's and Crown's evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused's guilt (R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), at pp. 556-57; R. v. MacKenzie, 1993 CanLII 149 (SCC), [1993] 1 S.C.R. 212, at pp. 219 and 240). As Fish J.A. noted in dissent in R. v. Levasseur (1994), 1994 CanLII 5490 (QC CA), 89 C.C.C. (3d) 508 (Que. C.A.), at p. 532, in language approved by this Court (1994 CanLII 74 (SCC), [1994] 3 S.C.R. 518):

The trial judge must make it indisputably clear to the jury that reaching a verdict is not simply a question of choosing the more believable of the two competing stories ... .

To protect the innocent from conviction, we require proof beyond a reasonable doubt. The application of this standard to questions of credibility is an entrenched part of our law. The direction most consonant with this principle is a clear and specific instruction, where credibility is an important issue, that the jury must apply to it the test of reasonable doubt.

9 This was most recently reinforced by Deschamps J., writing for the majority in R. v. Boucher, [2005] 3 S.C.R. 499, 2005 SCC 72:

The approach set out in W.(D.) is not a sacrosanct formula that serves as a straitjacket for trial courts. Trial judges deliver oral judgments every day and often limit their reasons to the essential points. It would be wrong to require them to explain in detail the process they followed to reach a verdict. They need only give reasons that the parties can understand and that permit appellate review: R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, and R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656... . [para. 29]

Charron J., dissenting in part, nonetheless echoed this flexibility:

I agree with Deschamps J. that a ritual incantation is not required in every case. The trial judge did not have to repeat the formula set out in W.(D.) to demonstrate that she had relied on correct legal principles in assessing the accused's credibility. Moreover, she is presumed to know those principles. Thus, when a trial judge states that he or she "rejects" an accused's testimony, it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge's mind ... . [para. 59]

11 Unlike my colleague Justice Fish, I respectfully see no blueprint for error in the trial judge's failure to observe W.(D.) as a catechism. Among several useful observations in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-5 cautioning appellate judges not to dissect, parse, or microscopically examine the reasons of a trial judge, the following passages by Doherty J.A. are particularly apt reminders in this case:

A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road-map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [p. 204]

12 The trial judge's reasons reveal that she understood that a finding that the girl was credible did not mean that the onus shifted to the accused to show that he was not guilty. I find it difficult to see how the sequence in which the trial judge set out her findings of credibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt.

[23] The case law makes it clear that as long as he or she does not base his or her decision on whether he or she believes the appellant or believes the accused but whether on the whole of the evidence, the Crown has proven guilt beyond a reasonable doubt, the trial judge does not fall into error. For example, the court in R. v. Dinardo, 2008 SCC 24, stated at para. 23:

23 The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W. (D.); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must [page799] consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.

[24] In R. v. R.E.M. 2008 SCC 51, the court stated:

48 The sufficiency of reasons on findings of credibility -- the issue in this case -- merits specific comment. The Court tackled this issue in Gagnon, setting aside an appellate decision that had ruled that the trial judge's reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that "[a]ssessing credibility is not a science." They went on to state that it may be difficult for a trial judge "to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events", and warned against appellate courts ignoring the trial judge's unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge's.

49 While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.

50 What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo, where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to the contradictory evidence. However, as Dinardo [page24] makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. "In a case that turns on credibility ... the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt" (para. 23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflicting evidence: Dinardo, at para. 30.

[25] In R v. J.H.S. 2008 SCC 30, the court repeated the principle at para 13:

13 In short the W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them. W. (D.)'s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance. In R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, Cory J. reiterated that the W. (D.) instructions need not be given "word for word as some magic incantation" (p. 533). In R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56, Major J. for the majority pointed out that in any case where credibility is important "[t]he question is really whether, in substance, the trial judge's instructions left the jury with the impression that it had to choose between the two versions of events" (para. 19). The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.

Decision

[26] The reasons of the learned trial judge make it clear that he did not err as argued by the appellant. He decided the case in accordance with the authorities, not as a credibility contest, but on the standard of proof beyond a reasonable doubt on the totality of the evidence.

[27] Therefore the appeal was dismissed.

Honourable Mr. Justice Gary W. Tranmer

Released: October 27, 2017