COURT FILE NO.: CR-17-10000106-00AP
DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DANIEL FERNANDEZ
N. Golwalla, for the Respondent
B. Davies and O. Goddard, for the Appellant
HEARD: 20 April 2018
s.a.Q. akhtar j.
[1] On appeal from conviction entered on 19 June 2017 by Justice Richard Libman of the Ontario Court of Justice.
Factual Background
[2] The appellant was convicted of sexual assault after a one-day trial at the Ontario Court of Justice.
[3] On 10 November 2015, the appellant was a customer in the Longo’s grocery store located at 100 King Street West in Toronto and in a queue for the cash register behind the complainant. The complainant testified that on three separate occasions the appellant touched her on the hips and buttocks. On the first two occasions, she was unsure whether contact was accidental and said nothing.
[4] However, when she reached the cash register and bent down to place the cheese she had selected, the complainant testified that she felt both of the appellant’s hands move down her back across her waist and on top of her buttocks in a sweeping motion. She testified that she turned to look at the appellant who promptly left the queue and exited the store. She further testified that when she left the store, she saw him in the mall area outside the store.
[5] The appellant testified but denied the offence. He told the court that he went to Longo’s to purchase lunch for his family and stood behind the complainant when queuing to pay. However, he insisted that he did not touch her inappropriately. Moreover, even though he agreed that he left the queue before reaching the counter he remained inside the store and went to the salad bar.
[6] To support its case, the Crown filed a store security video which captured both the appellant and the complainant as they stood in line in front of the cash desk.
[7] The trial judge rejected the appellant’s evidence and accepted that of the complainant. He found that the Crown had proven its case beyond a reasonable doubt and entered a conviction.
[8] The appellant appeals arguing that the reasons provided by the trial judge in entering a conviction were insufficient.
Legal Principles
[9] Since the seminal decision of R. v. Sheppard, 2002 SCC 56, [2002] 1 S.C.R. 869, it is incumbent upon trial judges to provide reasons explaining their verdicts.
A judge need not review every piece of evidence or explain each step of the reasoning process so long as the findings linking the evidence to the verdict can be logically understood: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20; R. v. Campbell, 2017 ONCA 209, at para. 15.
The judge’s reasons must be read as a whole and in conjunction with the evidence, issues, and submissions at trial, together with an appreciation of the purposes or functions for which they are delivered: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 15; R.E.M., at para. 16. The central question is whether the reasons, read in context, show why the trial judge decided the way he or she did: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15.
[10] In R.E.M., the Supreme Court of Canada clarified many of the Sheppard principles and, at para. 55, explained the role of an appellate court reviewing reasons:
The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.
Analysis
[11] The trial judge based his verdict on a rejection of the appellant’s evidence and an acceptance of the complainant’s evidence using R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), as the basis for conclusion.
[12] His finding of a sexual assault, however, was based only on the third and final touching by the appellant. According to the judge, the video recording did not clearly show the first two assaults. The third and final assault, however, depicted the appellant as standing directly behind the complainant confirming her account of his location.
[13] The appellant points to a number of inconsistencies between the evidence and the complainant’s account. He argues that none of these inconsistencies were acknowledged or dealt with in the judge’s reasons - something that the trial judge, in accordance with R.E.M., was obliged to do.
[14] I have reviewed the tape several times. I find that there are three material inconsistencies between the complainant’s evidence and the video that needed to be addressed but were not.
[15] First, even though the complainant testified that she saw the appellant immediately exit the store after assaulting her, the video shows that he did the opposite and walked towards the back of store.
[16] Second, the complainant testified that after the third touching, she was shocked and turned round to look directly at the appellant. The video does not indicate that she did this. Whilst I acknowledge that only the lower half of the complainant’s body is visible, there appears to be no movement. I agree with Crown counsel that the complainant may have simply turned her head but that would appear to be at odds with the substance of her testimony. In any event, the judge had a duty to at least reference and explain his reasoning on the issue, but failed to do so. In fact, his reasons suggest that the complainant testified that she did not turn round which constitutes a misapprehension of a material part of the evidence.
[17] Third, and perhaps most significantly, at the moment of the third assault, as the complainant has reached the register, the appellant’s hands appear to be in his jacket pockets with his arms barely moving. The video does not accord with the appellant raising his hands and moving them in a sweeping motion as described by the complainant.
[18] Again, even though the complainant’s account of the third touching - the act that formed the basis of the conviction - might be explained by the appellant using his hands through his jacket pocket, this explanation was never provided by the judge whose judgment remains silent on the apparent contradiction.
[19] The absence of reasons with respect to these inconsistences is significant because the judge based his acceptance of the complainant’s evidence on her “distinct and clear” recollection of the event. As the video demonstrates, the complainant’s recollection had significant deficiencies which were never commented upon.
[20] In many ways, the reasons in this case are similar to those in R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414. There, the trial judge provided extensive grounds for convicting the accused but failed to resolve contradictions in the complainant’s account offered by the other evidence in the case. The court ordered a new trial, finding that the trial judge’s failure to address why she rejected apparent exculpatory inferences foreclosed appellate review.
[21] I take the same view in this appeal. Whilst it was open to the judge to convict on the evidence before him, he was obliged to provide cogent reasons explaining, to the appellant, why he had lost. The failure to do so means that the appeal must be allowed a new trial ordered.
S.A.Q. Akhtar J.
Released: 8 May 2018
COURT FILE NO.: CR-17-10000106-00AP
DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DANIEL FERNANDEZ
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.