COURT FILE: SCA(P) 407/17
DATE: 2018 03 05
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. G. Hendry, for the Respondent
Respondent
- and -
TITO DAGUIO
M.C. Halfyard, for the Appellant
Appellant
HEARD: March 2, 2018, at Brampton
REASONS FOR JUDGMENT
[on appeal from conviction by Hawke J. on April 7, 2017]
HILL J.
[ 1 ] After a trial, the appellant was found guilty of sexual assault (s. 271), sexual interference (s. 151), and invitation to sexual touching (s. 152). Hawke J. stayed the sexual assault conviction and imposed concurrent sentences on the remaining counts including 6 months’ incarceration, probation and a s. 161 Criminal Code order.
[ 2 ] The appellant raised two grounds of appeal:
(1) the learned trial materially misapprehended the evidence
(2) the trial judge erred in failing to instruct herself on, or failing to follow, the direction in R. v. B.D., 2011 ONCA 51 in her approach to evidence favourable to the defence.
[ 3 ] Despite Mr. Halfyard’s customarily articulate submissions, the appeal is dismissed.
[ 4 ] The complainant, A.A., testified that after the appellant invited him to use his residence washroom, he was briefly sexually assaulted by the appellant. At the time, A.A. was a 14-year-old paperboy delivering newspapers. Shortly after, A.A. reported the assault to his parents and the police were contacted.
[ 5 ] The submitted misapprehension of evidence relates to (1) whether the residence doorbell was rung by the complainant and (2) whether the complainant, when in the residence bathroom, requested toilet paper.
[ 6 ] In his evidence, A.A. denied ringing the doorbell, informing the trial court that he was invited by the appellant into his residence to use the washroom. Ms. Sotto, a female occupant of the residence and a non-intimate friend of the appellant, testified that she heard the doorbell ring at the time temporally proximate to the complainant’s entry to the residence. She could not however say that it was A.A. who rang the door chime as she did not see who the appellant was speaking to at the door.
[ 7 ] During his testimony, A.A. denied that he requested toilet paper. Ms. Sotto testified to hearing an exchange between A.A. and the appellant about toilet paper when she was in her bedroom with the door closed.
[ 8 ] Hawke J. delivered typed, signed reasons for judgment approximately three months after completion of the evidence. The reasons thoroughly reviewed the trial evidence. The trial judge found A.A.’s evidence to be straightforward and internally consistent and unshaken in cross-examination. He was considered to be a credible witness.
[ 9 ] In relation to the ringing of the doorbell, the trial judge did not discount that Ms. Sotto may have heard the bell but concluded that “her evidence does not assist as to who rang the doorbell” and therefore her testimony on the point could not be said to be directly in conflict with A.A.’s testimony. On the whole of the trial record, this conclusion was reasonably available to the court.
[ 10 ] The trial judge determined that she need not resolve the conflict between A.A. and Ms. Soto relating to the toilet paper – the issue did “not concern the actual allegations” and did not otherwise impair the credibility of the core account of the complainant to being sexually assaulted before leaving the appellant’s residence. The approach of the trial judge engages no misapprehension of the evidentiary conflict or its significance.
[ 11 ] An experienced trial judge like Hawke J. is presumed to be accurately conversant with legal principles routinely applied within the busy jurisdiction of the Ontario Court of Justice. This includes W.D. principles including the application of those principles to evidence arguable favourable to the accused in a case such as the present one, where the accused did not testify or call defence evidence: R. v. Dayes, 2013 ONCA 614; R. v. D.B., 2011 ONCA 51. In a judge-alone trial, the court is not obliged to express self-instruction on W.D.-related principles.
[ 12 ] The reasons for judgment, fairly read in their entirety raise no concerns that the trial judge failed to apply the law required of her relating to the burden of proof. Matters such as the doorbell and toilet paper evidence from Ms. Sotto were reasonably assessed as not amounting to opposing evidence “on a vital issue”: R. v. Williams, 2017 ONCA 126, at para. 4. The record here presents no cause for appellate intervention.
[ 13 ] The appeal against conviction is dismissed. The appellant is currently subject to a bail pending appeal order. The appellant is ordered to forthwith attend the correctional facility from which he was released and to surrender into custody in order to serve the remainder of his sentence. If the appellant fails to comply, the Crown may apply for a warrant of arrest.
[ 14 ] It is ordered that the clerk of the appeal court comply with Rule 40.23(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) as to distribution of these Reasons for Judgment.
Hill J.
DATE: March 5, 2018
COURT FILE: SCA(P) 407/17
DATE: 2018 03 05
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. TITO DAGUIO
COUNSEL: G. Hendry, for the Respondent
M.C. Halfyard, for the Appellant
REASONS FOR JUDGMENT
[on appeal from conviction by Hawke J. on April 7, 2017]
Hill J.
DATE: March 5, 2018