COURT FILE NO.: 5-66/16
DATE: 20180305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
P.M.J.
Appellant
M. Mandel, for the respondent
M. Salih, for the appellant
HEARD: January 17, 2018
REASONS FOR JUDGMENT
On appeal from the convictions entered on February 29, 2016 by Justice Di Zio of the Ontario Court of Justice.
SCHRECK J.:
[1] P.M.J. was alleged to have touched the genital area of an eight-year-old child, the daughter of a friend. She and P.M.J. were the only two witnesses to testify at his trial in the Ontario Court of Justice on charges of sexual assault and sexual interference. The evidence of a third witness, the complainant’s father, was tendered in the form of an agreed statement of fact, which was made an exhibit at trial. That exhibit has been lost and cannot be recreated.
[2] The appellant appeals his convictions. For the reasons that follow, I have concluded that the missing exhibit is necessary for the just resolution of this appeal and its unavailability necessitates a new trial.
I. EVIDENCE
A. The Complainant’s Testimony
[3] At the time of the events giving rise to the charges, the complainant, M.B., was eight years old and living with her mother, N.B., and her older sister, S.B. The appellant was 48 years old and had known N.B. for 16 years. They had at one time been romantically involved and had remained good friends.
[4] At trial, M.B. adopted a video statement she had made on December 5, 2014. In that statement, she said that earlier that day she was at home packing her things because her father was coming to pick her up. Her mother was next door visiting a neighbour. M.B. went into her mother’s room to get some lotion. The appellant came into the room and closed the door. According to M.B., the appellant then touched her “private part” over her clothes. She flung his hand off, following which he touched her “boobs”. The appellant then started to cry and said that he should not have done that. He told her not to tell anybody and offered her money, which she refused.
[5] M.B. went upstairs and told her sister what had happened. Her sister then texted their mother. When the mother returned home, M.B. told her what had happened. The appellant denied having done anything and called M.B. a “lying child”. He told her mother that he had been on the telephone with his insurance company.
[6] In both her video statement and her testimony, M.B. said that she had called her father after the assault and had cried on the phone when she spoke to him.
[7] Later that day, M.B.’s father picked her up. She told him what had happened and he immediately took her to the police station, where she made a statement.
B. The Appellant’s Testimony
[8] The appellant testified that a week prior to the alleged assault, he was involved in a car accident and had been unable to work. On December 5, 2014, N.B. called him and asked him to pick her up from work and take her home. He agreed. When they arrived at N.B.’s home, the appellant told her that he did want to go in because he had recently had an argument with S.B., the complainant’s older sister, who was angry at him because he had told her to respect her mother. N.B. dismissed his concerns and insisted that he come inside, so he agreed.
[9] About 20 minutes after they entered the house, N.B. told the appellant that she had to go next door to see her neighbour for about five minutes. After she left, the appellant went into her room to call the car rental company about a problem he was having with the rental car that had been provided to him after his own car was damaged in the accident. While he was on the phone, M.B. came into the room and asked where her mother was. He told her that she was next door. M.B. then left the room and the appellant continued his telephone conversation.
[10] About five minutes later, N.B. returned home. M.B. and S.B. came downstairs and S.B. told her mother that the appellant had “touched” M.B. The appellant immediately denied it and said that he had been on the phone. He then told N.B. that he was not comfortable with what was happening and left the house.
C. The Agreed Statement of Facts
[11] A written agreed statement of fact (“ASF”) setting out the evidence M.B.’s father, D.L., was filed as an exhibit at the behest of the defence for the purpose of contradicting the complainant’s assertion that she telephoned her father after being assaulted. Unfortunately, the exhibit has been lost and despite the best efforts of counsel for both parties cannot be reproduced. It was never read into the record.
[12] The only indication of the contents of the ASF are through references made by counsel and the trial judge during the proceedings. Defence counsel described its contents during his submissions:
… that he talked to her just to – just to paraphrase it, he – he talked to her before the – before the alleged touching. They arranged that he would come and pick her up. Phoned, there was no answer – no one answered the phone after was when he – when he – he showed up, picked her up, sensed there was a problem, they – they stopped somewhere. It says in the final paragraph it says, “We drove out. So, I drove to the gas station, I stopped and I said, [M.], which you’re my daughter. [M.] you have to tell me what’s going on. She told me that this – the guy’s name is [P.], [P.] touched her. I said, what do you mean [P.] touched you? She said, [P.] touched me in my private parts.” So that’s after they stopped. So, I’ll move on.
[13] Defence counsel again described the contents of the ASF during his reply:
Well, she was – he was very explicit, Your Honour. He said, “I tried calling; I couldn’t get through. I picked her up and as I was driving her” – as I say I didn’t – I – I typed up his statement, but he said “I could tell something was wrong.” He had no idea until at – when he – when he went to the house he could see there was tension there. So, how could he get something like that wrong? How could he say – how could he forget when he learned about this? He said, “I stopped the car and I said to her, what’s going on, tell why – what – what’s this tension about? What are you upset about?” He had no idea what it was before he stopped the car.
[14] During her surrebuttal, Crown counsel said:
And the other I point I just wanted to make about this was, you know, that – that her father through her demeanour sensed something was wrong and asked her about it according to him.
[15] During his reasons for judgment, the trial judge summarized the ASF:
Then her father came to pick her up, and while in the car, he noticed that there was something wrong with her, and he inquired, and she told him what had just happened. He drove her to the police station. Everything happened rather quickly.
II. ANALYSIS
A. The Reasons for Judgment
[16] After summarizing the evidence, the trial judge considered the complainant’s testimony. He dismissed as peripheral a number of inconsistencies defence counsel had pointed out during his submissions and noted that the complainant did not appear to have any animus towards the appellant. The reasons then continued as follows:
The incident affected her, and her father noticed that, and questioned her and she disclosed to him. Her reaction to the incident, as noticed by her father, and this is independent evidence, that there was something wrong.
The trial judge concluded that he believed the complainant. He was of the view that while the appellant’s evidence “seemed truthful and coherent”, because he “strongly” believed the complainant, the appellant’s denial was incredible.
B. Reliance on a Complainant’s Post-Event Emotional State
[17] The appellant submits that the trial judge erred by relying on the complainant’s prior consistent statement to her father as independent evidence in the passage referred above. The respondent submits that the trial judge was not relying on what the complainant said to her father but, rather, her demeanour. I agree with the respondent that the trial judge was not relying on a prior consistent statement. However, it is not clear to me that he was referring to the complainant’s demeanour either and, if so, whether it was appropriate to do so. This is because it not at all clear to me that the ASF contained any description of the complainant’s demeanour or emotional state and, if it did, what the description was.
[18] It is well established that a trier of fact is entitled to rely on a complainant’s post-event emotional state as confirmation of her allegations: R. v. J.A.A.., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 17-8, rev’d on other grounds, 2011 SCC 17, [2011] 1 S.C.R. 628; R. v. Varcoe, 2007 ONCA 194, 219 C.C.C. (3d) 397, at para. 33. It is, however, evidence that must be treated with caution, for the reasons explained by Winkler C.J.O. in his dissent in J.A. (at para. 99):
I am not satisfied by the trial judge’s reasons that he adequately directed himself on this issue, in particular relating to the existence of alternative explanations for the emotional state of the complainant. Where there are alternative explanations, some inculpatory and some not, and the precise explanation is not identified, the demeanour evidence is ambiguous. Such evidence is not relevant and should not be admitted without a proper foundation being established for its admissibility. Ambiguous demeanour evidence can be highly prejudicial and is of no probative value.
See also J.A. (S.C.C.), at para. 14; S.C. Hill, D.M. Tanovich, L.P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed., vol. 3 (Toronto: Thomson Reuters, 2016), at §31.160.40.
C. The ASF
[19] In this case, it is unclear what the father noticed. Although Crown counsel summarized the father’s statement as “her father through her demeanour sensed something was wrong”, defence counsel summarized it as “he sensed that there was something wrong” and “he could tell that there was something wrong”. The trial judge summarized it as “[t]he incident affected her, and her father noticed that.” If what the father noticed was that the complainant was upset, scared or displaying some other type of similar post-event emotional state, then the trial judge may have been entitled to rely on this evidence. However, if the father simply “sensed” that something was wrong and his statement did not describe what led him to conclude that something was amiss, then in my view it would have been an error for the trial judge to rely on this as confirmatory of the complainant’s account. The complainant’s emotional state may have evidentiary value, but the father’s subjective impressions do not.
[20] Even if the ASF described the complainant’s emotional state, it is unknown what the description was. As indicated, if the complainant had been crying or distressed, this could have had significant probative value. On the other hand, if she was simply distracted or less talkative than usual, then in my view, her emotional state would have had little or no probative value.
[21] The father’s statement played a critical role in the trial judge’s reasoning process. He observed that the appellant’s testimony “seems coherent and truthful” but rejected it because of his acceptance of the complainant’s version of events. In this regard, the trial judge relied on R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, which makes it clear that a trier of fact can reject an accused’s testimony on the basis of an acceptance of conflicting testimony, provided that the acceptance is “considered and reasoned”: R. v. A.N., 2017 ONCA 647, at paras. 15-16. The father’s statement was the only independent evidence of the complainant’s testimony relied on by the trial judge. If he erred in relying on it, then in my view his acceptance of the complainant’s testimony would not have been “considered and reasoned”.
D. The Effect of an Incomplete Appellate Record
[22] If the father’s statement were part of the record in this court, then I could resolve the issue of whether the trial judge was correct to rely on it. Unfortunately, the statement has been lost and is unavailable, making it impossible for me to adjudicate the issue. As recently noted in R. v. Sénécal, 2017 QCCA 954, at para. 32, “It would be imprudent, and indeed possibly unfair, to decide that matter on appeal based on the incomplete record”.
[23] The approach an appellate court should take to gaps in the record of the proceedings in the court below was recently explained by the Ontario Divisional Court in 168774 Ontario Inc. (c.o.b. Swazzees Restaurant and Bar) v. Ontario (Alcohol and Gaming Commission, Registrar), 2017 ONSC 3579, at para. 14:
Where portions of the transcript of the evidence are missing, the main concern for an appellate court is the potential denial of justice arising from the inadequacy of the record on which the appellate court must make its decision. In other words, the issue is whether there is a risk, by virtue of the incomplete record, that the Appellant may be denied his or her ground of appeal (see R. v. Hayes, 1989 CanLII 108 (SCC), [1989] 1 S.C.R. 44 and R. v. Baldry, [2004] O.J. No. 6014 (S.C.J.)). The Court is concerned with the potential miscarriage of justice. As a rule, in order for an appellate court to intervene and order a new trial, there must be a serious possibility that the missing portion of the transcript deprived the applicant of a ground of appeal (see R. v. Hayes, supra and R. v. Dobis [(2002), 58 O.R. (3d) 356 (C.A.)].
See also R. v. Khan, 2017 ONSC 7109, at para. 73.
[24] In my view, that test has been met in this case. There is a serious possibility that the missing exhibit did not contain the type of evidence of the complainant’s post-event emotional state that would justify treating it as confirmatory of her testimony. It may well have contained no description of her emotional state, or a description that had little or no probative value. We simply do not know. Regrettably, there must be a new trial.
[25] Given my conclusions, it is not necessary for me to deal with the appellant’s other grounds of appeal.
III. DISPOSITION
[26] The appeal is allowed, the convictions are set aside, and a new trial is ordered.
Justice P.A. Schreck
Released: March 5, 2018
R. v. Joseph
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MELROY PATRICK JOSEPH
REASONS FOR JUDGMENT
P.A. Schreck J.
Released: March 5, 2018