COURT FILE NO.: CR-16-30000098-00AP
DATE: 20180510
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.P.
J. Spare, for the Respondent
R. Manilla, for the Appellant
HEARD: 19 April 2018
s.a.Q. akhtar j.
[1] On appeal from the conviction entered and sentence imposed on 29 September 2016 by Justice Harvey Brownstone of the Ontario Court of Justice.
FACTUAL BACKGROUND
[2] On 29 September 2016, the appellant was convicted of sexual assault, assault, and mischief under $5000.
[3] The appellant’s convictions arose out of two separate factual scenarios occurring on 8 June 2015, and an earlier incident occurring in March 2015.
The June 2015 Allegations: Sexual Assault
[4] On 8 June 2015, the appellant, a physiotherapist, returned home in the early hours of the morning from a work assignment in Alberta. His wife, who had not been feeling well, had fallen asleep in their bedroom. The appellant got into bed, pushed her, and began kissing her. The complainant told the appellant that she was not feeling well and had to work the next day. Undeterred, the appellant continued his advances and folded the complainant’s hands behind her back.
[5] As the appellant tried to have sex with her, the complainant protested. However, the appellant continued, covering her mouth by kissing her. The complainant reached for her phone, only for the appellant throw it under the bed. As the two struggled, the complainant fell off the bed, followed by the appellant who again folded her hands, trying to kiss her and have sex. The complainant cried out for help, pushed the appellant’s face and began to crawl to the bedroom door as he lay on top of her. Finally, the appellant stopped, and returned the complainant’s phone to her.
The March 2015 Allegations: Assault
[6] In March 2015, the complainant prepared to go to bed to sleep. When she entered the bedroom, she found the appellant waiting for her, expecting sex. The appellant began to pull at the complainant’s nightgown but the she resisted, explaining that she was “not ready” and asking that they discuss things first. The appellant became angry, ripping the buttons off her nightgown. The nightgown came off leaving the complainant naked. The complainant told the appellant to “stop”. At trial, the complainant testified that she had not called the police because it was not in her culture to do so.
The Appellant’s Evidence
[7] The appellant insisted that, on 8 June 2015, he only kissed the complainant in an effort to initiate sex, hoping that the complainant would be amenable. She responded, however, by pushing him back. Defending himself, the appellant tried to hold her hands in an effort to keep them away. During the struggle, the complainant’s phone fell under the bed, followed by the appellant, who was pushed off the bed as a result of the complainant’s efforts.
[8] Afterwards, the complainant threatened the appellant by telling him that she was going to call the police and ruin his career. Having uttered the threat, the complainant immediately went to the washroom and made good on her promise. According to the appellant, the complainant’s motivation in fabricating the allegations was to obtain a divorce and secure a financial benefit.
[9] With respect to the March incident, the appellant told the court that he and the complainant were in the midst of a verbal argument when she began to hit him with a pedestal fan which ended up breaking after he threw it to one side. The complainant’s nightgown ripped as a result of their struggle. However, the appellant denied ripping off any buttons as the nightgown had only a zipper.
The Verdict
[10] The trial judge accepted the evidence of the complainant and found that the appellant initiated sex without consent, knowing that she was opposed in light of her verbal and physical resistance. Accordingly, he convicted the appellant, staying one count of assault under the principle in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. With respect to the March incident, the judge found, beyond a reasonable doubt, that the appellant had ripped off the complainant’s nightgown and was therefore guilty of an assault.
[11] Consequently, he sentenced the appellant to 73 days imprisonment to be served intermittently.
Grounds of Appeal
[12] The appellant appeals against both conviction and sentence. He argues:
The sexual assault conviction is unreasonable and unsupported by the evidence; and
The trial judge failed to conduct an analysis of the evidence of both sets of charges as required by R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742.
WAS THE VERDICT UNREASONABLE?
[13] The test for unreasonable verdict was set out in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9:
To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190)
[14] A summary conviction appeal judge has a limited jurisdiction in reviewing a finding of sufficiency of evidence. Interference with that finding is only possible if an appeal court determines that the trial judge could not reasonably have reached the conclusion that the accused was guilty beyond a reasonable doubt: R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 107 C.C.C. (3d) 97 (Ont. C.A.).
[15] An appellate court should only interfere if:
(a) the decision cannot be supported by the evidence or is clearly wrong in law or;
(b) the decision clearly unreasonable or;
(c) there was a miscarriage of justice.
[16] See: R. v. Rivera, 2011 ONCA 225, 104 O.R. (3d) 561, at para. 32.
[17] The question here is whether there was sufficient evidence of a sexual assault in this case.
[18] In R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, McIntyre J., after reviewing the law on sexual assault set out the definition of the offence, at para. 11:
Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S. J. Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L.Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
[19] See also R. v. Larue, 2003 SCC 22, [2003] 1 S.C.R. 277, at para. 2.
[20] Contrary to the appellant’s submission that the only evidence of sexual assault was the complainant’s assertion that the appellant intended to have sex with her, the complainant’s evidence related a series of acts which were more than enough to make out the offence.
[21] She testified that the appellant got into bed, began to kiss her and continued to do after she resisted, following which, he lay on top of her and held her hands to restrain her, as she fought to break free. The motive given by the complainant was that the appellant committed these acts because he wanted sex. The judge believed her.
[22] I agree with the Crown that, on the Grosse test, there was more than a sufficient basis for the trial judge to reasonably reach the conclusion that the appellant was guilty.
THE W.D. ANALYSIS
[23] The appellant also complains that in arriving at a conviction, the trial judge failed to conduct a proper analysis under R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Respectfully, I disagree.
[24] The trial judge set out the W.D. criteria at the outset of his reasons and began with an assessment of the appellant’s evidence. The judge made it clear that he found the appellant’s evidence implausible and lacking sense. The judge set out in detail his reasons for rejecting the appellant’s evidence which included his failure to comply with the rule in Browne v. Dunn when (a) cross-examining the complainant with respect to motive to fabricate; and (b) the location in the house from where she called the police. Moreover, the judge rejected the appellant’s explanation that holding the complainant’s hand behind her back was a response to her aggression towards him.
[25] The judge also found the appellant’s submissions on the complainant’s motive to get a better financial settlement to be lacking in credibility because the allegations would have no effect on any divorce settlement. Nor did he believe the appellant’s account that the complainant lied to the 911 dispatcher about which room she was making the call from as there was no reason to do so. In conclusion, he found the appellant’s explanation for the incident to be “nonsensical” and rejected it outright.
[26] By conducting this analysis and making the judgment calls that he had to make, the judge properly considered the first two limbs of the W.D. test. It is also worth noting that the judge did attribute weight to the appellant’s actions in giving the phone to the complainant before she called the police.
[27] Turning to the balance of the evidence, the trial judge found the complainant to be believable in her account and relied to a limited extent on the 911 call as evidence that she was initially upset when calling the dispatcher.
[28] The trial judge was entitled to use his acceptance of the complainant’s evidence beyond a reasonable doubt to reject the appellant’s version of events: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53.
[29] Moreover, contrary to the appellant’s argument, the trial judge is not required to resolve each and every issue or inconsistency raised by the defence: R. v. C.R., 2010 ONCA 176, 260 O.A.C. 52, at para. 48. The judge provided a route to the verdict that he arrived at, describing the events that he found constituted the sexual assault. Credibility findings made by a trial judge are owed deference and, as previously noted, beyond interference unless unsupported on any reasonable view of the evidence: R.P., at para. 10; R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 7.
[30] I take the same view with respect to the March allegations. The trial judge outlined his reasons for rejecting the appellant’s evidence including the lack of credibility regarding the manner in which the complainant’s nightgown was torn and the fact that he had no injuries despite saying that the complainant attacked him with a pedestal fan. Applying W.D., the judge determined the appellant’s evidence to be unbelievable and consequently rejected it. At the same time he determined the complainant to be credible on the allegations. Again, that was his call to make and he did so providing reasons for his decision.
[31] The appeal against conviction is therefore dismissed.
APPEAL AGAINST SENTENCE
[32] The appellant submits that the trial judge erred in imposing a sentence of incarceration of 73 days to be served intermittently rather than a conditional discharge.
[33] Appellate courts are required to show deference to sentences imposed after trial by the presiding judge. Intervention should only occur if the sentencing court has made an error in principle, failed to consider a relevant factor, overemphasised otherwise appropriate factors or imposed a sentence that is demonstrably unfit: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193, at pp. 209-10; R. v. Lacasse, 2015 SCC 64, at para 51; R. v. Ahmed, 2018 ONCA 426, at para. 7; R. v. Lu, 2013 ONCA 324, 307 O.A.C. 40, at para. 37; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at paras. 67-73.
[34] I find that the appellant has failed to demonstrate any of the above failings in the reasons of the judge who adequately balanced the aggravating and mitigating factors and arrived at a sentence that fell within the appropriate range.
[35] Accordingly, the sentence appeal is dismissed.
S.A.Q. Akhtar J.
Released: 10 May 2018
COURT FILE NO.: CR-16-30000098-00AP
DATE: 20180510
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.P.
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.