CITATION: R. v. O’Reilly, 2017 ONSC 84

COURT FILE NO.: CR-16-055-AP

DATE: 20170104

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

THOMAS O’REILLY

Appellant

Natalie Thompson, for the Crown

Timothy E. Breen, for the Appellant

HEARD at Kingston: 22 December 2016

An order restricting publication in this proceeding has been made pursuant to section 486.4(1) of the Criminal Code Of Canada.

On appeal from the decision of Justice L.B. O’Brien, Ontario Court of Justice,

at Kingston, on 14 December 2015

REASONS FOR DECISION

MEW J.

[1] This is an appeal from conviction in what the trial judge described as a “she said, he said case”.

[2] Following a two day trial, the appellant was convicted on charges of sexual assault and sexual interference arising from an incident alleged to have occurred on 24 July 2012.

Background Facts

[3] The complainant, who was fourteen years old at the time, had gone to the appellant’s barn to ride one of his horses. While there, she accompanied the appellant in his truck on a search for a missing bull. During the course of this excursion, they stopped at an out-building.

[4] The complainant testified that, at the appellant’s suggestion, she had accompanied him into the building where he sexually assaulted her.

[5] The appellant denied that the complainant went inside the out-building with him and denies that he sexually assaulted her.

[6] The appellant and the complainant returned from the out-building to the barn where the complainant went for a ride. She subsequently left the appellant’s farm.

[7] The complainant testified at trial that when she left the appellant’s farm, her “first thought” was to go to the home of her friend, IL, who lived nearby. The complainant and IL would ride horses together at the appellant’s barn.

[8] The complainant said that she started walking away from the appellant’s barn until she was out of sight and then she ran. She felt like she was going to throw up, but didn’t. She said that while she was on her way to IL’s, she was very much in shock, confused and hoping that what had happened didn’t just happen.

[9] Finding that IL was not at home, she then proceeded on to a store where her aunt worked.

[10] The aunt testified that when the complainant came into the store, she appeared very quiet and subdued. The complainant asked to use the telephone to call her mother. When she could not get through to her mother, the complainant asked to speak to her aunt in private. They went down one of the aisles in the store where the complainant reported that the appellant had touched her. The aunt described the complainant as “distraught, upset, worried and concerned”.

[11] There was conflicting evidence at trial about whether the complainant had seen IL on the day of the alleged assault.

[12] IL recalled seeing the complainant twice on the same day. But she could not pinpoint the date. At their first meeting, she said that the complainant told her she was going riding at the appellant’s. About three or four hours later, she ran into the complainant again. She asked her how her day was and the complainant responded that it was hot and that she was tired. She said that there was no conversation about the complainant and the appellant.

[13] In cross-examination, IL agreed that when she gave her statement to the police, the police never suggested a particular date to her, and confirmed that she did not know what date her two encounters with the complainant had occurred on.

[14] In his Reasons for Judgment, the trial judge accepted the complainant’s evidence as credible. He found that the observations of the complainant’s aunt and mother, concerning the complainant’s emotional condition, were consistent with the complainant’s account. With respect to the evidence of IL, the learned judge said as follows:

Defence counsel submitted that in light of [IL’s] testimony, I should consider that she saw [the complainant] twice on July 24^th, and they talked a little bit about [the complainant] going riding, that it was hot and she was tired but made no complaint of anything that happened with Mr. O’Rielly. Even accepting [IL’s] evidence with its frailties, the Supreme Court in R. v. D.D. provides a response and instruction regarding how victims of trauma will behave and disclose the trauma, thereby the absence of comment amounts to virtually little if any significance.

Issues

[15] The appellant’s convictions are challenged on the grounds that:

a. The trial judge misapprehended the significance of the evidence of IL: beyond establishing an inconsistency with the complainant’s narrative, IL’s evidence of the unremarkable nature of the complainant’s presentation significantly undermined the corroborative force of the evidence of the complainant’s mother and aunt. In a case properly described as a credibility contest, the failure to appreciate the significance of IL’s evidence constitutes a reversible error;

b. Alternatively, the conviction on the charge of sexual assault, contrary to section 271 of the Criminal Code, is barred by the rule in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

Should the count of sexual assault be stayed?

[16] Dealing with the second issue first, the Crown concedes that the rule against multiple convictions arising out of charges based on the same or substantially the same elements was overlooked and not addressed by counsel or the trial judge.

[17] Mr. O’Reilly was charged with sexual assault, contrary to section 271 of the Criminal Code and with, for a sexual purpose, touching the complainant, a person under the age of 16, directly with a part of his body, namely his hands, contrary to section 151(a) of the Criminal Code.

[18] The rule in Kienapple v. R. applies. Accordingly, the Crown agrees that the section 271 count should have been, and should now, be stayed.

Should the finding of guilt be set aside and a new trial ordered because the trial judge misapprehended the significance of the evidence of IL?

[19] The thrust of the submissions made by the appellant is that the trial judge deprived himself of the opportunity to evaluate the force and effect of IL’s evidence as part of his analysis of the evidence.

[20] The trial judge correctly recited his duty not to examine the facts separately and in isolation with reference to the criminal standard of proof but, rather, to consider whether, on the total body of evidence, viewed in its entirety, the Crown had proved its essential element of the offence beyond a reasonable doubt. He then appropriately instructed himself on the three step approach set out in R. v. W(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[21] After reciting, in considerable detail, the evidence of the witnesses, including various challenges to the testimony of witnesses advanced through cross-examination, the trial judge concluded that the complainant’s evidence on the material aspects of the case was credible. He said:

She gave her evidence in an age appropriate manner that flowed in a manner with detail that demonstrated to me that she was accurately recalling and relating a real incident.

[22] After dealing with what the trial judge described as some relatively minor inconsistencies between the evidence of the complainant and her mother, he continued:

[The complainant’s] behaviour after leaving the barn was consistent with having been wronged. [She] was not shaken in cross-examination on material aspects of the sexual misconduct.

[23] I have already recited (at para 14, infra), what the trial judge said about the possible meeting with IL. The appellant argues in his factum that:

In his reasons for judgment the trial judge accepted that [IL] met the complainant soon after the alleged assault but found that her evidence was irrelevant to the evaluation of the complainant’s testimony.

[24] I disagree with that assessment.

[25] I do not read the reasons of the trial judge as making a finding, one way or the other, as to whether the complainant in fact saw IL on the date of the alleged incident.

[26] Rather, the trial judge took the position that even if IL’s evidence was to be accepted, the absence of any comment by the complainant of what had allegedly happened not long before between her and Mr. O’Reilly was of little or any significance. In so stating, the trial judge made reference to R. v. D.D. (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.). In that case, the Supreme Court, at para. 65, provided the following direction:

A trial judge should recognize and so instruct a jury that there is no invaluable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some with delay in disclosing the abuse, while some will never disclose the abuse. The reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.

[27] The appellant says that, notwithstanding the reference to R. v. D.D. in the context of the (disputed) evidence of IL that the complainant had said nothing about anything that had happened with Mr. O’Reilly, the trial judge should still have analysed IL’s evidence. The failure to consider such evidence in a credibility case would amount to a reversible error: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (ON CA) at p.221; R. v. G. (G.), (1995), 1995 CanLII 8922 (ON CA), 97 C.C.C. (3d) 362 at 377, 379-381 (ON CA).

[28] To put this in context, the appellant argues that on a fair reading of the complainant’s evidence, she initially went from the appellant’s barn to IL’s residence to get help. Not finding IL, she then proceeded to the shop that her aunt worked at. If, before getting to the aunt’s store, the complainant had in fact encountered IL along the way, the failure of the complainant to report the assault upon meeting IL, the absence of any observed emotional disturbance by IL and the complainant’s denial of having met IL, would be capable of supporting adverse inferences as to the complainant’s credibility.

[29] The appellant argues that the importance of assessing IL’s evidence is particularly so given the subsequent statement by the judge that the complainant’s behaviour, after leaving the barn, “was consistent with having been wronged”.

[30] The Crown disputes the inference that the complainant went to IL’s house to get help. Her evidence was that IL was the first person the complainant thought of upon leaving the barn. There was no further discussion of why she went to IL’s residence or what she intended to do when she got there. What is known is that when she got to the store where her aunt worked, she asked to use the telephone to call her mother.

[31] The Crown further puts out that a review of the trial judge’s reasons and the transcript of the arguments presented at trial, makes it clear that all of the issues regarding IL’s evidence were presented to the judge. His decision summarises the evidence of IL and refers to the arguments that were made by counsel in respect of that evidence. Even if (which the Crown says should not be the case) it were to be accepted that the trial judge had not explained, in sufficient detail, his reasons for not attaching any weight to IL’s evidence, the evidentiary record does not support the argument that her evidence was a glaring inconsistency that the judge was bound to address.

[32] I agree with the Crown’s arguments concerning the adequacy of the trial judge’s reasons.

[33] In R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, the Supreme Court of Canada held that an appellate court can only interfere on the basis of misapprehension of evidence if the trial judge committed a concrete, rather than a speculative, error. Further, as DiTomaso J. noted in R. v. Amey, 2014 ONSC 2383, at para. 29, where an appellant alleges that a trial judge misapprehended portions of the evidence, a stringent standard will be applied to an appellate intervention.

[34] Similarly, a trial judge is not required to comment on every inconsistency or discrepancy in the testimony of witnesses: R. v. J.W., 2016 ONSC 2931, at para. 26. Even a failure to mention some of the evidence on any given point will not form the basis for appellate intervention, provided that the reasons show that the judge “grappled with the substance of the live issues on the trial”: R. v. REM, 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 64.

[35] In the present case, as already noted, the trial judge did not make a definitive finding one way or the other as to whether he accepted the evidence of IL. In my view, the evidentiary record was capable of supporting a conclusion that IL’s interaction with the complainant occurred on a date other than 24 July.

[36] Furthermore, even if there had been an encounter between IL and the complainant after the alleged incident, other evidence on the record would not be inconsistent with IL’s observations. For example, the complainant’s aunt said that when the complainant first came to the store, she was subdued and tired.

[37] It is usually sufficient if a 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 parties and how the court applied the law.

[38] Perhaps in a perfect world, the decisions of trial judges would dot every “i” and cross every “t” in respect of every evidentiary issue arising and every submission made by counsel. But the real world is not a perfect one. There are, of necessity, practical limitations on the ability of judges to accompany each and every decision with a comprehensive and erudite jurisprudential treatise.

[39] In the present case, the trial judge more than amply demonstrated that he had understood and assessed the evidence, identified and applied the relevant law. In particular, it is clear that he was alert to all of the concerns which were raised on the appellant’s behalf about the evidence of the witnesses who testified at his trial. Furthermore, the reasons of the judge clearly show that he followed the admonition of the Supreme Court of Canada in R. v. W (D) in considering the credibility contest that arose between the Crown and defence witnesses.

[40] In REM, the Supreme Court of Canada said this, at para. 67:

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.

These words are equally applicable to the present case.

[41] For the foregoing reasons, I would dismiss the appeal against conviction.

Order to comply with Sex Offender Information Registration Act

[42] As a result of the appellant originally being convicted of two offences, an element of his sentence was an order requiring him to comply with the Sex Offender Information Registration Act for life, based on section 490.013(2.1) of the Criminal Code which provides for such an order to be made for life if an individual is convicted of more than one designated offence.

[43] Given that one of the offences for which the appellant was convicted has now been stayed, the duration of the order is governed by section 490.013(2)(a) which provides that the duration of the order ends ten years after it was made. The sentence imposed on the appellant by the Ontario Court of Justice should, therefore, be amended accordingly.

Graeme Mew J.

Released: 4^th January 2017