COURT FILE: SCA(P) 538/17

DATE: 2018 07 16

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

B E T W E E N:

HER MAJESTY THE QUEEN

A. D. Galluzzo, for the Respondent

Respondent

• and -

ROCCO GIOVANNELLI

C. Kerr, for the Appellant

Appellant

HEARD: March 9, 2018, at Brampton

REASONS FOR JUDGMENT

[on appeal from conviction by Justice A. MacKay on February 28, 2017]

HILL J.

TABLE OF CONTENTS

Para. No.

A. INTRODUCTION........................................................................................... 1

B. OVERVIEW................................................................................................. 4

C. FACTUAL BACKGROUND

(1) Staff Party Venue.................................................................................... 7

(2) Alcohol Consumption.............................................................................. 13

(3) The Dancing Evidence........................................................................... 41

(4) The Alleged Sexual Assault..................................................................... 48

(5) The Party Ends...................................................................................... 83

(6) After the Party....................................................................................... 90

(7) Complainant Recalled To Testify............................................................ 103

D. ANALYSIS

(1) Governing Principles............................................................................ 105

(2) Discussion

(a)...... Introduction.............................................................................. 118

(b)...... Misapprehension of Evidence Relating to Complainant’s Intoxication 121

(c)...... Misapprehension of Evidence Relating to Complainant’s Dancing Behaviour 130

(d)...... Misapprehension of Evidence Relating to Circumstances of Alleged Sexual Assault

(i) Overview............................................................................. 137

(ii) Evolving and Inconsistent Account of K.M. as to What Transpired 138

(iii) Location of the K.M./Appellant Meeting Downstairs................. 146

(iv) The Reason Tashan Harry Returned Downstairs................... 152

(v) Termination of the Alleged Assault......................................... 156

(vi) The Complainant’s Non-Exaggeration as Relevant to Her Credibility 160

(vii) Inferential Relevance of K.M.’s Shyness as a Witness to Whether she was the Sexual Aggressor.......................................................................... 164

(viii) Finding that the Appellant’s Evidence was Progressively Exaggerated 166

(ix) Conclusion that K.M. was a Credible Witness – What of Reliability? 178

(e) Reversal of Burden of Proof....................................................... 181

(f) Final Conclusions...................................................................... 187

E. ORDER.................................................................................................... 192

A. INTRODUCTION

[1] After a trial, the appellant was found guilty of sexually assaulting a female employee at a staff party.

[2] In an appeal against conviction, the appellant raises a number of inter-related grounds of appeal including:

(1) material misapprehension of evidence

(2) differential standard of evidence review between the prosecution and defence cases

(3) reversal of the burden of proof in reliance upon an adverse inference for failure of the defence to call witnesses.

[3] It is fair to say that overarching context for these grounds of appeal is that the verdict of the trial court is unreasonable.

B. OVERVIEW

[4] The complainant (K.M.) commenced work as a server at the appellant’s restaurant about a week before the restaurant owners held a staff party at the restaurant. K.M. became intoxicated at the party. On her evidence, she was sexually assaulted by the appellant late in the evening in a downstairs hallway of the restaurant outside the women’s washroom. Shortly after, while crying, K.M. left the party. She contacted the police the following day and reported being sexually assaulted.

[5] In his testimony, the appellant provided a very different account. In the downstairs hallway, at a different location than identified by K.M., his intoxicated employee came onto him in an uninvited sexual manner. He rebuffed her sexual advances, told her that she had had too much to drink and that it was time for her to leave the party, and declined to answer her inquiry as to whether she would be fired. Minutes later, the appellant denied sexual impropriety with K.M. and, the following day, without a lawyer or knowledge of a complaint by K.M. to the police, he went to the police to report his side of the interaction with K.M.

[6] About six months after the party, the appellant was charged with sexual assault.

C. FACTUAL BACKGROUND

(1) Staff Party Venue

[7] At trial, the 30-year-old complainant testified that she was sexually assaulted by her employer in June 2015 when she worked as a server at Goodfellas Wood Fired Pizza Restaurant (Goodfellas) in Mississauga.

[8] A staff party was held at the restaurant on June 8, 2015 commencing at about 9:00 p.m. K.M. had only worked there for five shifts over about one week. The party food and refreshments were paid for by the appellant and his business partner, Rick Tadao.

[9] K.M. testified that she was wearing a knee-length sweater-dress, black with white stripes, pantyhose and boots. In her police statement the following day, K.M. stated that she was not wearing underwear.

[10] Although K.M. had wanted to invite her fiancé to the party, the appellant had not given his permission.

[11] The appellant, 50 years of age, married with three children, testified that, in June 2015, he was part owner of the Goodfellas Restaurant. There were about 35 employees with the restaurant having annual income of about $2.8 million.

[12] Describing the June 8, 2015 staff party, the appellant stated that it began at 8:00 to 8:30 p.m. Staff were invited as were “close guests” and some suppliers. Alcohol and food were free for the attendees.

(2) Alcohol Consumption

[13] In her in-chief evidence, K.M. informed the court that staff were drinking and “doing shots” and that she “probably had a couple of glasses of white wine, and maybe two shots” over the space of three or four hours. Having consumed this alcohol, she felt, “[s]lightly to – I guess like mediocre intoxicated, definitely tipsy”… “I was intoxicated but not to the point of not being able to control myself or have any memory”. K.M. recalled no difficulties walking or speaking.

[14] Subsequently, again during her in-chief testimony, K.M. maintained that she had “[n]o more than three … large size glasses of wine, probably eight-ounce glasses” as well as two shots of Jägermeister.

[15] In cross-examination, K.M. stated that she was only “slightly tipsy” (“I was not too drunk”) stating that she recalled what alcohol she consumed as she was aware of what her “alcohol tolerance level” was. She had had the experience of drinking more in college a long time before. The complainant acknowledged that, given the alcohol consumed at the staff party, she would not have driven a vehicle. She was not unsteady on her feet. She “ate a lot of food”.

[16] Pressed in cross-examination, K.M. rejected the suggestion that she had consumed more than three glasses of wine. Asked what she informed the police as to her alcohol intake, the witness responded, “[a] few glasses of wine and a few shots”. When confronted with the actual text of her police statement, K.M. accepted that she had stated that she was “feeling drunk” and that she had consumed “probably about five glasses of wine”. K.M. testified that her memory at trial would be clearer than when speaking to the police – in K.M.’s words, “I’ve had time to go over it in my mind. Memories come back to you” … “I didn’t have five glasses of wine.” She was in shock the following morning when speaking to the police. The complainant accepted that she had informed the Trillium Hospital staff that she had consumed five glasses of wine and one shot between 9:00 p.m. and 1:00 a.m.

[17] Referred to her in-chief testimony in which she maintained that she only had a couple of glasses of wine, K.M. stated that, “[t]o me a couple would be about three” … “when I say a couple, I don’t mean always just two”.

[18] Tashan Harry testified in-chief that, after arriving at the Goodfellas Restaurant at about 10:00 p.m., he spent about half the evening with K.M. talking with her and his friend Andrew in the lobby area. In cross-examination, the witness stated that he was not in K.M.’s presence the whole time – they sat together “for a while” and that at times during the evening, they would “bump into each other”. It was the witness’ view that K.M. spent most of the evening with Kristine, another staff member. During the evening, to Mr. Harry’s recall, he consumed “about three” beers. He was “in between like tipsy and sober”.

[19] In his in-chief evidence, Tashan Harry, who was employed as a dishwasher at the restaurant in June 2015, stated that K.M. was drinking during the party. Under cross-examination, Mr. Harry, who was at the relevant time a fellow employee, gave this evidence:

Q. So you don’t have – you don’t know how many drink –

A. No.

Q. - she would have had? But did she appear like she had had a fair number of drinks?

A. I couldn’t tell, to be honest –

[20] According to K.M., the appellant was encouraging people to drink. In cross-examination, K.M. stated that during the party the appellant was drinking “quite a bit”.

[21] Luis Vultao was the kitchen manager at Goodfellas in June 2015. He left the restaurant in July 2015 when he was assaulted by the acting manager. At the time of trial, Vultao was employed by the appellant at a different restaurant, Fired Up.

[22] According to Mr. Vultao, who had been working along with the appellant preparing for the staff party, he observed K.M. and her co-worker and friend, Kristine, come into the party. In his view, they were “a little bit already out there” – not intoxicated but apparently “a little bit high on a substance”. There were slurred words and “slower talking”.

[23] Mr. Vultao estimated that he consumed at least four or five beers between 9:00 p.m. and about 2:00 a.m. – he was “feeling good”.

[24] Mr. Vultao described K.M. as thin, “[not] a big girl”, perhaps about 5’2” to 5’4” in height.

[25] At a point when K.M. sat at his table shortly after midnight, smelling of marijuana and drinking a glass of wine, Mr. Vultao concluded that she “was intoxicated or on some substance”. According to the witness, at some point K.M. tried to touch him with her hand – it was “inappropriate” – he told her he “didn’t want anything to do with it” and to go away and have fun but to leave him out of it.

[26] Asked to describe his observations of K.M.’s level of intoxication during the party, Mr. Vultao stated that while he could not say how much alcohol she consumed, her condition: “was pretty high … [m]aybe 10 out of 10”. He formed his opinion based upon her conduct, the contents of her language, and her inability to “hold herself up properly”.

[27] The appellant testified in-chief that while he is not sure how much K.M. drank at the party, he believes that she was “quite intoxicated”. In describing K.M.’s condition downstairs when he encountered her, the witness stated that she was “sloshy, just not a hundred percent there”.

[28] Michael Vrsic, a defence witness, testified at trial that he was a part owner and general manager of the Goodfellas Restaurant. He acquired his ownership interest after the appellant sold his interest in the restaurant.

[29] On June 8, 2015, the witness was employed as a sales rep for a wine agency which supplied liquor to Goodfellas. He resided around the corner from the restaurant. He attend the restaurant several times a week. The witness attended the staff party. Although he was unable to recall how much alcohol he drank, he believed that it would have been no more than a couple of glasses. He observed “a lot of drinking going on”.

[30] According to Mr. Vrsic, he saw the appellant have “a couple” of drinks – he really did not know if the appellant “was drunk”.

[31] Mr. Vrsic testified that K.M. seemed to be drinking a lot and appeared drunk. There was “excessive drinking”.

[32] Robert Falcitelli, a Crown witness at trial, worked as a waiter/assistant manager at Goodfellas when the restaurant held its delayed Christmas party on June 8, 2015. As of that date, he had trained K.M. for about a week.

[33] At the party, Falcitelli acted as one of four or five bartenders serving alcohol to the staff. He consumed eight or nine alcohol drinks between 7:00 p.m. and about 1:00 a.m. – he was quite “buzzed”. In his view, that reality may have affected his memory “a little”.

[34] Mr. Falcitelli testified that there was a lot of eating, drinking, dancing and socializing at the party. The witness recalled with 100% certainty that he served shots to everyone probably about 9:00 p.m. According to Falcitelli, “we were all drinking” and, in his opinion, “everybody was buzzed”. The witness formed the opinion from the way in which K.M. was dancing that she had been drinking.

[35] In her evidence, K.M. denied that she smoked marijuana at the party. Luis Vultao testified to observing K.M., Kristine and Mr. Harry passing around a marijuana joint outside the restaurant at about 9:00 p.m. The witness could smell the marijuana. Under cross-examination, Mr. Vultao stated that he actually only saw Kristine holding the joint.

[36] Mr. Vultao testified that later in the evening, when he was sitting with his daughter, who worked as a hostess at the restaurant, he overhead part of a conversation between K.M. and Kristine at the table. K.M. was giggling and saying to Kristine that she was not wearing panties. Tashan Harry was also present. He could smell alcohol and marijuana from K.M.

[37] K.M. testified that she observed the appellant drinking red wine on the patio before the staff party and that he was drinking “throughout” the party. According to the complainant:

I could smell alcohol on his breath. I would assume he was intoxicated.

[38] Tashan Harry did not observe the appellant consuming alcohol.

[39] The appellant testified that he had a glass of red wine with dinner “around ten-ish” and subsequently a draft beer at 10:30 to 11:00 p.m. and, by about 11:30 p.m., half of another draft beer. At midnight, in giving a toast to his staff, he consumed a shot of Chamomile Grappa.

[40] In cross-examination, the appellant accepted that alcohol consumption can affect judgment and memory. The glass of wine consumed while eating was free-poured – the appellant was not sure of the number of ounces of wine in the glass. The draft beer was a pint. The appellant testified that he also drank sparkling water during the evening. As to the effects of the alcohol, it did not affect him at all – he felt “perfectly fine” – “I was on top of my game. I knew what was going on”.

(3) The Dancing Evidence

[41] In her in-chief testimony, K.M. stated that, while later in the evening people were dancing, during the evening she did not dance – “most of the time” she remained on the patio with Kristine. In cross-examination, the complainant again rejected the suggestion that she danced – she was sitting, drinking and eating. The witness stated, “I don’t actually really enjoy dancing”.

[42] When questioned at trial by Crown counsel as to whether K.M. was dancing at the party, Tashan Harry provided this evidence:

Q. So over the course of this staff party was anyone dancing?

A. Not that I know of. There was like a couple [of] people, but nothing big.

Q. Do you know if [K.M.] was dancing?

A. No.

Q. Sorry, no, she wasn’t, or not, you don’t know?

A. Like, no, I don’t know. Sorry.

[43] Robert Falcitelli testified that he observed K.M. and Kristine dancing together in the middle of the floor at about 10:30 to 11:00 p.m. – “everybody that was dancing was all dancing together”. The witness further refined his evidence to estimate that about ten partiers were dancing. From what he observed, the witness believed that K.M. was drinking, dancing, flirting in terms of “dancing scandalously”, and having a good time.

[44] Michael Vrsic testified that K.M. was one of a group of three or four “girls” who he observed to be dancing inside and outside and “carrying on” in an “inappropriate” and “very lewd” manner. In the witness’ view, these partiers were being “very, very flirtatious” – “it looked like there was a lot of touching and grabbing going on”. The females, including K.M., Kristine and Marlayna, were “grinding” … “[k]ind of each other, and some of the other servers … [w]ith their private parts” (“It was just very sexual”). Some of those other servers were male. It was inappropriate to carry on and be drunk at a work function. The witness, who left the restaurant at 9:00 p.m., did not observe K.M. dancing with any male partiers. In cross-examination, the witness stated that he observed K.M. “grabbing” the appellant on the main floor of the restaurant – “[t]hey’re kind of like hugging”. The witness could not say what they were saying to one another. He could not recall if this was just one hug.

[45] Luis Vultao testified that he observed dancing involving “twerking” which he described as “rubbing your butt against somebody else”. The witness saw K.M. do this to the appellant at which time the appellant put his hands up and walked away. At another point, in the witness’ evidence, he observed K.M. fall flat on her back when she was attempting to go beneath a limbo stick.

[46] The appellant informed the trial court that during the evening he observed K.M. doing limbo dancing and subsequently pole dancing at the front entrance area of the restaurant. When limbo dancing, at about 11:00 p.m., K.M. fell on her back with her legs in the air. He observed the complainant, along with her friend Kristine, outside the restaurant at about 12:30 a.m., “doing some provocative things on the pole” which supported the canopy over the outside front entrance. The appellant testified that:

A. I have to say that I started getting a little concerned when I saw her doing this. That’s when I started kind of keeping an eye and making sure that, you know, if she’s okay.

A. No, what I meant was I started becoming concerned when she did the – what do you call it – when she was outside where the posts were, when she was dancing provocatively.

Q. Okay. You, just a moment ago, said that you kind of raised your eyes –

A. No, raised my eyes when she was outside on the canopy where the poles are, that’s when I raised my eye.

Q. Okay.

A. That’s when I started becoming a little concerned.

Q. Okay. So when you – again, when you saw her on the pole this time you were concerned that she may have had too much to drink?

A. Well, I think she was embarrassing herself, yes.

[47] The appellant also testified that K.M. was dancing at a point when he was walking past the bar where a number of people were dancing, K.M. did a dance-style twerk during which she bent over and “pressed her rear end against [his] crotch”. Wanting no part of this, he lifted his hands in the air and walked away. K.M. said nothing to him and he said nothing to her. He was “extremely concerned … for her to … come up to me that way”.

(4) The Alleged Sexual Assault

[48] K.M. testified that, about midnight, she went to a downstairs washroom in the restaurant. In her in-chief evidence, K.M. stated that when she exited the washroom, the appellant was in that small corridor or hallway where the washrooms were located. He began talking to her – it was “going on and on” – he said she was good looking and that he was happy to have her working there. The witness continued:

He was talking pretty close to me and had me up against the wall, and then he started to try to kiss me and I rejected it, and then he tried again.

Before he started to try to kiss me, a co-worker, Tashan, had come downstairs and he noticed Rocco talking to me very close.

[49] At a point, the appellant had his hands against the wall as he stood very close to her as she was positioned with her back against the wall.

[50] The complainant recalled that her co-worker, Tashan Harry, came downstairs about 10 minutes into her conversation with the appellant. She recalled that when Tashan Harry left the men’s washroom to go back upstairs to the party she was still talking to the appellant in the lower hallway. At some point before 15 minutes of talking had passed, the appellant touched her without consent:

Q. Okay. And did he in fact kiss you?

A. Yes.

Q. And what type of kiss was it?

A. He put his tongue in my mouth.

Q. And what, if anything, did you do when that happened?

A. I was just kind of shocked, and then, like, pushed him away.

Q. How would you have pushed him away?

A. Like – like, “What are you doing,” like put my hands like that.

CROWN COUNSEL: Okay, and just for the record the witness held out both of her hands and pushed forward in a motion.

Q. And did you actually make contact with Rocco?

A. Yes.

Q. And where would you have touched him?

A. His chest.

Q. Did you say anything while this was happening?

A. I said, like, “What are you doing?”

Q. And what happened after that?

A. Then he came towards me again and he touched my chest.

Q. Where on your chest did he touch you?

A. My breasts.

Q. Both breasts, or one, or –

A. Both.

Q. And then what happened after that?

A. He put his hand up my dress.

Q. Okay. And what happened after that?

A. He put his hands down, like, in my pantyhose and he put his – he put two of his fingers inside me.

Q. I know it might be difficult, but when you say he put his two fingers inside of you, what do you mean?

A. In my vagina.

Q. So you mentioned that he put his hands in your pantyhose –

A. Yeah.

Q. - just before that. Were you wearing any underwear that night?

A. I was just wearing pantyhose, actually.

Q. And when this happened, what did you do?

A. It happened very fast. I just kind of froze.

Q. Do you know how long his fingers were inside of you?

A. Not long. I would say maybe a few seconds.

Q. Either before or during when Rocco put his fingers inside of you, did he say anything to you?

A. He said – he mentioned that – he said he thought that he was making me wet.

Q. Was this before or during?

A. During.

Q. So a few minutes ago you mentioned, when I asked you if Rocco said anything to you while this incident was happening, you said that he said he thought he was making you wet, do you recall whether he said anything else to you during this time, either immediately before or during?

A. Yes, right after that he also said something else.

Q. And what was that?

A. He asked me to feel how hard I was making him.

Q. When he asked you this were his fingers still inside you or had he already

A. Yes, they were.

Q. Did you have any response to this question?

A. No.

Q. And did you touch him?

A. No. I could feel him against my leg. I didn’t, with my hands, no.

Q. And, sorry, what do you mean by you could feel him against your leg?

A. I could feel his, like, his penis against my leg through his pants.

[51] In her in-chief evidence, K.M. stated that she did not hear Tashan Harry come down the stairs for a second time. As to her location at this point in time:

Q. So where were you when Tashan came back downstairs?

A. The same spot, in the downstairs, like, small corridor outside of the washroom.

[52] According to the complainant, “[i]t happened very fast” and she “kind of froze”. She did not want to be touched and did not like what happened. She believes the episode ended because Tashan Harry came back downstairs. When Harry again appeared in the corridor, the appellant moved away from her:

Q. Could you see Tashan as it was still happening?

A. He – yes … as Tashan came around the corner, Rocco was like moving away from me as quickly as he could.

Q. So when you actually saw Tashan, where was Rocco?

A. Like going to the opposite end of the corridor, the hallway.

[53] Subsequently, in cross-examination, K.M. stated that she was already in the staff changeroom when Tashan Harry returned downstairs. Also in cross-examination, K.M. testified that as Tashan Harry was coming down the stairs, the appellant “instantly stopped” and she “instantly ran, upset” into the staff locker-room.

[54] In cross-examination, K.M. disagreed with the suggestion that she was leaning against the wall because she was having difficulty standing up straight. The complainant agreed that in her police statement she did not say that the appellant grabbed her breasts although such conduct is more intrusive than unwanted kissing – “I had forgot and I left that one out”. K.M. further agreed that she said nothing to the police about the appellant saying that he was making her wet – “It’s a detail I remembered afterwards”.

[55] K.M. agreed that, while in describing in her in-chief evidence what occurred in the downstairs hallway, she had said nothing about “penis touching”, the witness stated that she had included this detail in her video statement to the police. She “was waiting to be asked if he had said anything to me”.

[56] Again, while in cross-examination, K.M. stated that when the appellant had his hand in her dress he was “pushing” his “whole body” against her, asking her to touch his penis and saying that she was making him hard:

Q. - that, but you never said anything about actually feeling it.

A. When somebody’s pressed against you, that’s just assumed that that was what was happening.

Q. You never said that he had pressed his penis against you.

A. He didn’t take it out of his pants but he – his body was pushed up against me.

Q. Did you ever tell Tashan, or anyone else, that he had taken his penis out of his pants?

A. No.

Q. Okay. But when he touched your breasts you didn’t push back?

A. I – this was all in like an instant. It was like him pushing his body against me, his mouth on mine, his hands on my breasts, and I didn’t even have a chance to push back really, it was just like – it was like instant.

Q. Well, when he kissed you, you had a chance to push back. His body would have had to be closer to kiss you, would you agree with that?

A. He wasn’t as aggressive. It was like we were talking, he went in for a kiss, I was shocked, I moved him away, and then he proceeded to come back and do that all, like in almost one motion.

[57] In cross-examination, K.M. denied saying to anyone that the appellant took his penis out of his pants. The complainant testified that the appellant put a hand under her dress and into her pantyhose at her navel and then downwards. She could not recall which hand he was using.

[58] Saying “that’s ridiculous”, K.M. disagreed with defence counsel’s suggestion that, during the evening of the party, the appellant chastised her for her behaviour. She did not say to the appellant, “Are you going to fire me?”. To the witness’ recall, the appellant did not say that he would have a discussion with her the following day or that he was doing to stop the party because it was getting out of hand.

[59] K.M. agreed that she had not called out for help.

[60] In cross-examination, defence counsel (not Ms. Kerr) variously stated in his questions, (1) “I’m not suggesting you’re a dishonest person” but that K.M. was intoxicated, and (2) that she made up “false allegations to cover up and explain” her own behaviour. To the latter suggestion, K.M. replied:

Why would I want to put myself through this for no reason? I’m not getting any gain out of it.

[61] K.M. also provided this evidence:

It’s a big step. I knew that doing this I would be dragging this on and putting myself through a tough emotional time, and ultimately, I made the decision based off the facts that he works in a restaurant full of young women and if I don’t say anything, what kind of person does that make me?

[62] K.M. testified that, at a point while she stayed in the staffroom, Tashan Harry went upstairs to get her friend, Kristine, to come down and comfort her before a taxi came to take her home.

[63] On the complainant’s evidence, the appellant “basically ran away” while she remained downstairs going directly into the staffroom. She wanted to get her things and leave. She recalls shaking, crying and being really upset and extremely shaken up. K.M. testified that when Mr. Harry came into the staffroom, as she was sitting, he tried to comfort her and, in her words, “I told him everything that had happened” – “I went over everything with him”. In cross-examination, K.M. stated that she believed she told Tashan Harry “[a]ll the details” of what had occurred, including that the appellant inserted fingers into her vagina, although she may “have left something out”. She told him that the appellant asked her to touch his penis. She may not have told him that her breasts were touched:

Just those details – basically, he knew everything that had happened. He cornered me, he was talking to me for a while, making me uncomfortable, he put advances on me, he tried to kiss me, and then that he put his hand in my dress and put his fingers inside me, those are the core details that Tashan knew.

[64] To K.M.’s recall, the appellant “was pacing the hall outside “and, about 5 minutes after she first entered the staffroom, he poked his head in the door and asked, “Is everything okay in here?” The witness does not believe that she responded.

[65] In his in-chief evidence, Tashan Harry informed the court that at a point he went downstairs to the washroom. Around the corner from the washroom, K.M. and the appellant were standing “[n]ot even arms-length” apart and talking. He walked around them. It was the witness’ impression that as his and K.M.’s eyes met, she was communicating, “Help me”. Her face looked worried. In his view, the appellant had more control of the spacing between them.

[66] When he exited the men’s washroom less than a minute later to ascend the stairs, they were in the same position.

[67] Tashan Harry’s diagram placed the position of K.M. and the appellant in line with the stairway and around the corner from the washroom hallway. K.M.’s diagram noted their location as in the washroom corridor and not visible to anyone coming to the bottom of the stairs. In his evidence, the appellant confirmed Mr. Harry’s diagram as correctly depicting the location of his conversation with K.M. In describing his location with K.M., the appellant testified that: “You could probably see us coming down the steps”.

[68] Mr. Harry testified that when he returned downstairs after a minute or two, the appellant and K.M. “were gone” – no one was in the hallway. While he went back downstairs to “see if … [K.M.] was still … in the bathroom” just find out what they were talking about, he had “no particular reason” for doing so. When he called out the complainant’s name, she “came out of the storage room uncontrollably crying”. He took her back in the room after about ten seconds of K.M. telling him what had happened. Once inside the room, K.M. recounted “in full detail … what happened”. The complainant was uncontrollably crying. Within fifteen or twenty seconds, the appellant came in the room and asked him if things were okay to which he responded, “Yes”.

[69] Tashan Harry testified that, within a short time, he took K.M. upstairs toward the outside, heading to a back alley where they encountered Kristine at the top of the stairs. He asked Kristine to take K.M. outside “to avoid any scene at the party”.

[70] The appellant testified that, at about 1:30 a.m., he went downstairs to use the washroom. When he left the washroom, before making a turn in the corridor to go back upstairs, he heard the door of the women’s washroom open. When he looked in that direction, he observed K.M. swaying from side-to-side and slurring or “mumbling some sort of words” to him which he could not quite make out. In cross-examination the appellant stated that when he saw K.M. staggering side-to-side, from wall to wall, he asked her “if she was okay”.

[71] According to the appellant, K.M. walked right up to him and tried to kiss him. They were probably visible to anyone arriving at the bottom of the stairs. The appellant provided this evidence:

A. - and when she walked towards me, she came right up to me and tried to kiss me.

Q. Okay. And what did you do when she tried to do that?

A. I refrained her, and I told her, “Are you okay? Are you fine? Is there something wrong? Why are you doing this?”

Q. Okay. And what was her response?

A. Her response was, “You have no idea what I can do to you.”

Q. Continue. Just tell us what happened.

A. Okay. As she was telling me that, she reached over and she grabbed me in my private part and asked me if I’m – if she makes me hard.

Q. Okay. Continue.

A. All right. I pushed her hand away and I said, “I think you need to calm down. I think you’ve had a little too much to drink tonight. I think it’s time for you to grab your personal belongings and it’s time for you to leave. The party’s over for you.”

Q. Okay. What was her response?

A. Her response at that point, when she did that, she turns around and says one more time to me, “You have no idea what I can do to you.” She grabs my hand, she tells me how wet and hot she is, and she’s wearing no panties.

Q. What did you do then?

A. I did a quick-hand reaction, my hand may have brushed up against her private part, pulled my hand back, and I said, “We’ve had enough of this. I will not do this. I’m a married man. Please, go home. It’s time for you to go because you’re way too intoxicated at this point.”

[72] The appellant denied kissing K.M., touching her breasts or putting a hand inside her dress. Asked in-chief how the incident made him feel, the appellant stated:

A. Well, I felt, myself, I did feel disrespected. I did feel violated because – because if a man comes forward and does this and says this is what happened, people tend to – they’ll laugh at you if a woman is coming onto you. I’m a 50-year-old man, I feel humbled by a young woman coming and trying, or doing what she tried to do, and I don’t think it had to do anything with whether I’m a good looking guy, because I’m not at my age, because at my age I’m really not interested in that. I -

Q. What do you attribute – what made you think – what do you think made her do this?

A. I think it was more really – and, you know, yes, she’s – she’s not a bad individual. I just felt that her intoxication took over her and clouded her memory and probably has – did something that she probably would have regretted the following day. So that’s why I think that she wasn’t in her state of mind, because, my opinion, she had a little too much to drink.

[73] In cross-examination, the appellant testified that as K.M. came toward him, he began to walk toward the hallway leading to the stairs. He had turned the corner. K.M. caught up to him and tried to kiss him. When the complainant grabbed his private parts, he pushed her hand away. In addition, on the appellant’s evidence, K.M. went on to say:

A. - she is. She’s saying that she – “I’m wet and hot, and I’m wearing no panties.” She grabs my hand and tries – she pulled it towards her private part, as it – my hand brushed up against her, I reacted and pulled my hand back.

Q. Okay. So she grabbed your hand and put in where?

A. She was pulling it towards her private parts.

Q. Okay. And you said you pulled back?

A. I reacted, an instant reaction and I pulled my hand back.

Q. And you may have brushed her private parts at that point?

A. Correct.

Q. Okay. And in an attempt to get your hand free?

A. Correct.

Q. Okay. And so at this stage you’re reprimanding her again for being-

A. Well, yes. Obviously, at this point you can tell that she’s an individual that has had a little too much to drink. This was not about me as an individual, this is no attack on her because she’s attracted to me as an individual. I just felt that her being intoxicated the way she is, she was attempting to do this.

[74] When the appellant, on his evidence, observed Tashan Harry come into the hallway on his way to use the washroom, he was in the midst of reprimanding K.M. She was up against the wall and he “was across from her” with about 2 ½ feet of separation between them. As Harry passed, he stopped the conversation as it was “really nobody’s business but ours” – the complainant was embarrassing herself.

[75] After Tashan Harry went back upstairs, according to the appellant, he finished speaking to K.M. He was firm with her saying “[e]nough of this” and that it was time for her to go. The appellant further testified that:

A. - this is when Tashan went past us the second time and went upstairs, when I finished my conversation with her. I said, “It’s inappropriate behaviour. You’ve embarrassed yourself. You’ve embarrassed yourself with your staff, your team members. You’ve embarrassed yourself with my guests and my suppliers. You’ve embarrassed me, and I won’t tolerate this.” She turns around and she says, “Am I going to get fired?”

Q. Right.

A. I turned to her and I said, “[K.], let’s talk about this tomorrow morning. You’ll thank me tomorrow that this incident did not happen, and it will not happen. Get your personal belongings,” I told her one more time, “Get your personal belongings, it’s time for you to go. We’ll call you a cab if you need a cab. It’s time for you to go.”

Q. Okay. And where did you go after that?

A. I went – I basically – again, she asked me “Am I getting fired?” She starts crying. I just didn’t want to engage in that conversation. I turned around and just went back upstairs.

[76] In cross-examination, the appellant stated that he told K.M. that a cab could be called for her if she required one and that she would “thank him tomorrow that this did not happen. I’ll talk to you tomorrow”:

That’s when she turned to me and says to me, “Am I getting fired?” I turned to her, I said, “I will not talk about this. We’re not going to talk about his.” I just turned around and went upstairs.

At this point, the appellant saw K.M. begin to cry.

[77] In describing his state of mind, the appellant stated that he “[f]elt a lot of emotion inside, whether … angry, upset” but not shocked. He was not angry with K.M., but angry “with the overall incident”.

[78] On the appellant’s evidence, after being upstairs for no more than two minutes, he returned downstairs to “check on” K.M. She was no longer in the hallway. On hearing a noise in the change-room, when he poked his head in for ten to twenty seconds to say “Is everyone okay here?”, he observed K.M. and Tashan Harry seated inside. Mr. Harry said, “Yeah, everything’s fine here”.

[79] Asked what he noticed about K.M., the appellant gave this evidence in-chief:

Q. Did you notice anything about [K.] at that point?

A. No. She – I didn’t notice anything. They were both sitting there. I know what she was crying, so it looked like she was crying.

A. Well, I don’t know what she told Tashan and what sort of conversation they had, but when I peeked my head in the door I figured Tashan handled this and he was handling it with her. I heard through another staff member that they slipped though out the back and left, so – and took a cab, so-

Q. Okay. But when you –

A. They left without me even knowing that they left.

Q. Okay. So – but when you went back down there to check if everything’s okay, you didn’t make sure she was leaving? You just assumed Tashan was going to take care of it?

A. No, I figured if she’s going to sit and chat with Tashan, what do you want me to say to her, “You got to go. You got to go”? I figured they’re sitting down, they’re talking, let them talk.

[80] Asked in cross-examination what he concluded when he saw K.M. crying, the appellant gave this evidence:

A. I was angry with the overall incident, because I would not partake to any of that because she was an intoxicated young woman, and I know that what she was doing was wrong.

I’ve invested all my life savings in building a restaurant, and I’m not going to ruin it just for some little, quick little floozy thing for – just to have an enjoyable moment. I’m not interested in that.

If I – why would I do that in the middle of a hallway where people are urinating, going up and down the stairs? I don’t understand why I would do something like that. If I had malicious intent, wouldn’t I go in the storage room? Wouldn’t I take her in my officer where no one could see me? Why would I go in the hallway?

A. No, I did not know. All’s I know is, yes, she was crying, but that could have been her crying of the embarrassment, and refusal, and me telling her I’m not interested, but at the end of the day, it’s not me here, it’s her being intoxicated and doing something that she’d probably regret the next day.

[81] In cross-examination, the appellant acknowledged that he did not tell K.M. she would not be fired. He did not call a taxi for K.M. – he assumed Tashan Harry was looking after K.M.

[82] The appellant testified that he made no sexual advances toward the complainant. She was a pretty young woman but he was married, her boss and would “never conduct business that way”.

(5) The Party Ends

[83] The appellant testified that he next went upstairs to see his business partner. He gave Rick Tadao “a quick synopsis of exactly what happened” between K.M. and him at which point they “decided to end this party before it got out of control”. At about 2:00 a.m., the music was turned off and the lights came on.

[84] In cross-examination, the appellant described his order of activity as speaking to his partner about shutting the party down and then attending downstairs to see if K.M. had gathered her personal belongings. On then going back upstairs, the lights were turned on and the music turned off to terminate the party.

[85] Once Tashan Harry handed K.M. off to Kristine, he returned to the party “to find out why it was being stopped” by the appellant. No reason was given. The lights had been dimmed and then turned back on.

[86] According to Mr. Harry, when he went outside to the front of the restaurant he saw fellow employees waiting for cabs or rides. The appellant was there with his partner (Rick), and Robert and Andrew were in the vicinity. The appellant went on “a rant for a couple of minutes in which he was saying that he had done nothing wrong”:

Q. Was he saying anything that you heard about the party or anything that had happened?

A. Yes, he was just saying that – he was just accusing if she had – if she was saying, like, “Oh, did she say that I touched – that I was all over her? Did she say I pulled out my dick,” and – and I didn’t say anything.

Q. Okay. And when he was asking you about what she said, and whether she said that he had taken out his penis, or anything like that, were other people standing there?

A. Yes.

[87] Robert Falcitelli described the party as ending “abruptly”. The appellant was saying that it was over. He gave no reason. The witness observed K.M. leaving by the restaurant’s side service entrance with Kristine and Tashan Harry. K.M. was crying.

[88] K.M. testified that when her taxi arrived, she was taken upstairs by Kristine and Tashan Harry where she left by a side door so she would not have to see anyone. Kristine went with her in the taxi. She arrived home at about 1:30 a.m. She never returned to work at the restaurant.

[89] According to the appellant, he first learned of K.M.’s allegations about a half hour after the party ended, when Neil, a restaurant employee, approached him in the presence of others outside the restaurant asking, “Dude, what did you do? You pulled out your dick to her downstairs?” His response was, “That did not happen and I don’t want to talk about it”. Asked in cross-examination whether he spoke of K.M. being all over him, the appellant stated: “I don’t recall saying that” but that it was “possible” he had. He then went to Tashan Harry and “reiterated exactly those words”. Mr. Harry did not respond. In cross-examination, the appellant stated that he turned to Mr. Harry and said, after repeating what Neil reported: “What? Is that what she’s saying about me?”

(6) After the Party

[90] In cross-examination, K.M. stated that Tashan Harry text-messaged her the next morning to see if she was okay. He offered to help her out in telling her story – that he had seen the appellant making her “uncomfortable”.

[91] K.M. phoned the police when she awoke the following morning. To the witness’ recall, she was in shock, upset and distraught. In this state, she may have neglected to state certain things to the police in her videotaped statement. In cross-examination, K.M., describing herself as “a very hard person”, acknowledged that at times during the interview she laughed or giggled.

[92] As well, the complainant attended Chantel’s Place at the Trillium Hospital.

[93] Robert Falcitelli testified that the morning after the Goodfellas’ party, Kristine, who was a friend, phoned him with information about “a situation” of K.M. having been sexually assaulted by the appellant. The details the witness was provided were that the appellant “put his fingers inside of her and pulled out his penis”. Kristine informed the witness that K.M. had gone to the police.

[94] When Falcitelli spoke to the restaurant owners about what he was told, the appellant said that it was untrue and that nothing happened and that he intended to go to the police to find out what was going on.

[95] The appellant testified that on the morning of June 9, when the restaurant was being prepared for opening, Robert Falcitelli approached him and related, “This is what I heard…”. The appellant replied, “I don’t want to talk about it”.

[96] Mr. Falcitelli informed the trial court that he was let go from Goodfellas in September 2015. He was given no reason by the appellant for his dismissal. He commenced a wrongful dismissal civil action. As well, after he was fired, Falcitelli contacted the police to report his phonecall with Kristine.

[97] Michael Vrsic testified that he terminated Falcitelli’s employment after he swore in front of customers during a dispute about his pay cheque being late.

[98] The appellant described to the trial court going to Peel Regional Police Service 11 Division on June 9 to make a report and to speak to an officer “in regards to an incident that happened on June 8th”. He wanted to give his side of the story. No occurrence report could be located. The appellant left his identification information. In cross-examination, the appellant stated:

Q. Okay. So you went to the police station to find out whether a report had been made?

A. No. I went to the police station to actually make a report.

Q. Okay. Because you were the victim in this circumstance?

A. I believe so.

Q. Okay. So you went there to report that [K.] actually sexually assaulted you?

A. No. I went there to give my side of the story, that’s why I went to the police station.

[99] The appellant testified that the surveillance camera downstairs in the restaurant only captured the corridor with the washrooms and not a view of the hallway leading to the stairs. The witness acknowledged that the camera videotape would confirm his evidence of K.M. stumbling wall-to-wall. Questioned in cross-examination, the appellant stated that the never thought of reviewing the videotape from the evening of June 8/9, 2015. On the appellant’s evidence, his business partner reviewed the tape:

Q. Never told you what it showed, or what it didn’t show?

A. Yeah, he just told me it showed Kristen coming out of the bathroom, swaying from one wall to the other.

Q. And you never thought with that information that you’d want to watch that video and bring it to court?

A. No. I just never that of that, no.

By the time he was charged some months later, the June 8/9 video had been taped over.

[100] In cross-examination, the appellant described Luis Vultao and Mike Vrsic as business associates, not personal friends. Questioned by the trial prosecutor as to any discussions with others about K.M.’s allegations, the witness replied:

Q. Okay. And had you spoken to him (Vrsic) about these allegations prior to that?

A. I have spoken to him about it after I got charged. As time went on, I’ve spoken to several people, handed all my information to my lawyer, and my lawyer picked who suited best to be here.

Q. Okay. And did you have any conversations with Luis about these allegations and what happened?

A. No. I – after the charge was laid I spoke to Luis, if he can basically write me a letter of what he saw, only I want the truth, and that’s all I wanted.

Q. Okay. Did you tell either of them what to say?

A. No. I would never do that.

Q. Okay. Is there a reason why you waited until about a month before your trial to ask Mike about being a witness?

A. My lawyer chose our witnesses.

[101] Tashan Harry testified that within weeks of the party, and prior to speaking to the police, he was fired. While he was not given a reason for his dismissal, he subsequently learned from a friend at the restaurant that it was because he said to a “new hire” that there was “no HR and that things happen at the restaurant”.

[102] According to the complainant, she experienced nightmares and anxiety for a long time. She had no physical injuries and her clothing was undamaged. Right after the incident, she had a few sessions with a therapist. She has not been able to work again in the service industry. With depression and anxiety, it was a year and a half before she began working again.

(7) Complainant Recalled To Testify

[103] Well into closing submission, including argument regarding the Browne v. Dunn principle, the complainant was recalled for further cross-examination. The complainant rejected the suggestions that at the staff party she participated in pole or limbo dancing or twerked the appellant on the dance floor – “I did not dance”. In addition, K.M. denied trying to kiss the appellant or grabbing his crotch, or drawing his hand toward her crotch area, or asking if she made him hard, or saying she was wet and not wearing panties.

[104] In response to a question from the court, K.M. stated that during the party she saw a few persons on the dance floor. She did not see Kristine dancing. K.M. testified that she spent “most of the evening” sitting on the patio with Kristine.

D. ANALYSIS

(1) Governing Principles

[105] Considering the inestimable advantage that the trier of fact enjoys in seeing and hearing witnesses testify at trial (R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46), the scope for appellate intervention with a trial verdict is narrowly constrained: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 48. An appellant “must do more than show that a different trial judge could have assessed credibility differently”: R. v. Polanco, 2018 ONCA 444, at para. 11.

[106] These judicial observations acknowledge the limits of review:

43 The principles that govern this ground of appeal are not in doubt.

44 First, the trial judge's credibility findings are owed significant deference on appeal. They should not be interfered with unless they "cannot be supported on any reasonable view of the evidence": R. v. P.(R.), 2012 SCC 22, [2012] 1 S.C.R. 746; and R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 7.

45 Second, significant testimonial inconsistencies should be addressed because, as the Supreme Court noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21, the accused is entitled to know "why the trial judge is left with no reasonable doubt". However, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons: R. v. R.(C.), 2010 ONCA 176, 260 O.A.C. 52, at para. 48.

46 Third, an appellate court should not interfere with a trial judge's findings of credibility if the core of the complainant's allegations against an appellant remain largely intact on a review of the entirety of the evidence: R. v. Roy, 2017 ONCA 30, at para. 14; R. v. Barua, 2014 ONCA 34, 315 O.A.C. 83, at paras. 7-8; and R. v. Marleau (2005), 2005 8667 (ON CA), 197 O.A.C. 29 (C.A.), at para. 7.

(R. v. R.A., 2017 ONCA 714; affd 2018 SCC 13)

31 The second ground of appeal challenges the fact and credibility findings of the trial judge. It is not the role of an appellate court to reweigh the evidence. Rather, trial judge's findings of fact and assessments of credibility are afforded great deference, and should only be interfered with if they are clearly wrong, unsupported by the evidence, or otherwise unreasonable: FH v McDougall, 2008 SCC 53at paras 55, 72, [2008] 3 SCR 41; Housen v Nikolaisen, 2002 SCC 33at paras 10-18, [2002] 2 SCR 235. The ascribed error must be plainly identifiable and must have affected the result: R v Clark, 2005 SCC 2at para 9, [2005] 1 SCR 6 [Clark].

50 The trial judge's findings of fact and assessments of credibility are afforded great deference, and should only be interfered with in limited circumstances. The imputed error must be plainly identifiable and, importantly, must have affected the result: Clark at para 9.

(R. v. Fuhr, 2018 ABCA 15)

28 Credibility is a question of fact for the trial judge. A court of appeal will review a trial judge's decision for error but defer to any credibility assessment absent a demonstration of palpable and overriding error (R v Gagnon, 2006 SCC 17, [2006] 1 SCR 621; R v Clarke, 2016 SKCA 80at paras 31-32, 480 Sask R 277).

40 In R v R.P., 2012 SCC 22at para 10, [2012] 1 SCR 746, the Supreme Court noted that deference must be shown by the appellate court to a trial court's assessment of credibility. Justice Deschamps, for the majority, reiterated the applicable principle, saying:

[10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court's assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they "cannot be supported on any reasonable view of the evidence" (R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 7).

(R. v. Piapot, 2017 SKCA 69)

See also Polanco, at para. 34.

[107] In some criminal prosecutions, it is not simply the credibility of principal witnesses which requires a trier of fact’s close attention – the reliability of a witness’ testimonial account may be critical. There is a difference as expressed in R. v. H.C., 2009 ONCA 56, at para. 41:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

See also Fuhr, at paras. 37-38.

[108] Inconsistencies, including material factual omissions, between a witness’ accounts of a particular transaction may raise concerns as to that witness’ credibility and/or reliability as noted in R. v. D.E.Z., 2018 ABCA 99, at para. 33:

The absence of these details from her first statement about some of their prior interaction was not crucial. It was not automatically a material inconsistency. …The real question is (a) whether the content of what is missing is material, (b) whether, as a matter of reason and common sense, one would have expected the absent statement to be present in the statement, and (c) whether the absence can be explained or understood.

[109] Appellate review of a trial court’s reasons mandates that “reasons must be considered as a whole and not in an excessively granular manner”: R. v. Lueth, 2018 ONCA 522, at para. 1. A trial judge is not obliged “to carefully review each piece of evidence and explain its application”: R. v. Piccinini, 2018 ONCA 433, at para. 11; R. v. O.M., 2014 ONCA 503, at para. 28. However, where there is vital and contradictory evidence on material issues, a trial court’s reasons are expected to demonstrate that it fairly and accurately grappled with these live issues at trial: R.E.M., at para. 64; Fuhr, at para. 54. While a trial judge “speaks through reasons for decision” (R. v. Pun, 2018 ONCA 240, at paras. 7-8, appln for leave to appeal filed [2018] S.C.C.A. No. 133), reference to court/counsel exchanges may assist in some instances in determining the court’s path of reasoning.

[110] Turning to the subject of differential treatment or uneven scrutiny of the evidence of principal prosecution and defence witnesses, in R. v. Honnigan, 2017 ONSC 7406, at paras. 39-40, I observed that:

9 An uneven scrutiny submission relating to the manner in which a trial judge, in reasons for judgment, assessed the respective evidence within the prosecution and defence cases has long been recognized as "a difficult argument to make successfully": R. v. R.B., 2017 ONCA 75, at para. 12; R. v. C.F., 2017 ONCA 480, at para. 97; and Orwin, at para. 33:

This argument, or some variation of it, has become a staple in appeals from conviction in judge alone trials where the evidence sets the word of the complainant, on the one hand, against the denial of the accused, on the other, with the result contingent upon the trial judge's credibility assessments. This is a difficult argument to advance successfully. An appellant must do more than show that a different trier of fact could have decided credibility differently. Or that the trial judge left something out that she could have said in assessing the respective credibility of the principals. Or that the trial judge failed to set out, in express terms, legal principles relevant to that credibility assessment. To succeed the appellant must point to something in the trial judge's reasons, or perhaps elsewhere in the trial record, that makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

40 To similar effect are the observations in R. v. Radcliffe, 2017 ONCA 176, at paras. 22-26 (appln for leave to appeal filed [2017] S.C.C.A. No. 274):

22 In my assessment of this claim of uneven scrutiny, I keep in mind several basic principles.

23 First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

24 Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.

25 Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.

26 Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

See also Polanco, at paras. 33-34; R. v. Kiss, 2018 ONCA 184, at paras. 82-108; R. v. Akasse, 2018 ABCA 166, at para. 3; R. v. BGG, 2018 MBCA 31, at paras. 6-8; Fuhr, at paras. 44-5.

[111] Of especial concern in the present case is the submission of misapprehension of evidence on the part of the trial court. In Honnigan, at paras. 27 to 29, the scope of this ground of appeal was summarized in these terms:

27 As summarized in R. v. Doodnaught, 2017 ONCA 781, at para. 71, a misapprehension of evidence "may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218".

28 The limits of the scope of appellate review in the case of a misapprehension of evidence submission were summarized in R. v. C.B., 2017 ONCA 862, at paras. 41-46:

41 Where a verdict is not unreasonable, an appeal court must next determine whether an alleged misapprehension of evidence occasioned a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code. To constitute a miscarriage of justice, the trial judge must have misapprehended evidence going to the substance of the evidence material to the trial judge's reasoning process that resulted in conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4.

42 To succeed on an appeal alleging misapprehension of evidence, the appellant must show two things.

43 First, the appellant must show that the trial judge did in fact misapprehend the evidence in that he or she: (1) failed to consider evidence relevant to a material issue; (2) was mistaken as to the substance of the evidence; or (3) failed to give proper effect to the evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at pp. 538-540.

44 Second, the appellant must show that the trial judge's misapprehension of the evidence was central to the trial judge's reasoning. The misapprehension must be substantial, material, and play an essential role in the decision to convict: Morrissey, at pp. 538-540. This can include evidence that goes to elements of the crime charged, assessments of credibility, and proof beyond a reasonable doubt, so long as the misapprehension was essential to the conviction.

45 With regard to credibility assessments, only where the assessment is central to the decision to convict and only where an alleged misapprehension is central to that credibility assessment can there a case for miscarriage of justice.

46 Where such an alleged misapprehension involves a failure to allude to specific evidence, the claim can only succeed if the failure to allude to evidence demonstrates that the trial was unfair and the verdict was not a "true" verdict: Morrissey, at pp. 538-540.

(footnotes omitted)

See also R. v. Mugabo, 2017 ONCA 323, at para. 30; R. v. Marshall, 2017 ONCA 801, at paras. 54-5; R. v. Orwin, 2017 ONCA 841, at para. 45.

29 An assertion of misapprehension of evidence can easily, but improperly, become an invitation to have the appellate forum retry the case: R. v. D.C., 2017 ONCA 143, at para. 8; R. v. Moore, 2017 ONCA 217, at para. 7. Accordingly, under the rubric of alleged misapprehension of evidence, a reviewing court cannot be asked to "reweigh the evidence and draw different conclusions": R. v. Karigar, 2017 ONCA 576, at para. 51 (appln for leave to appeal filed [2017] S.C.C.A. No. 385).

[112] More recently, in R. v. Campbell, 2018 ONCA 205, at para. 25, the court held that:

A misapprehension of evidence can involve a failure to take into account an item of evidence that is relevant to a material issue, a mistake about the substance of evidence, or a failure to give proper effect to evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at para. 83. Leaving aside errors of law, a misapprehension of evidence can give rise to a miscarriage of justice in the form of an unreasonable verdict under s. 686(1)(a)(i) of the Criminal Code or a miscarriage of justice caught under s. 686(1)(a)(iii) of the Criminal Code: Morrissey, at para. 87.

(emphasis added)

See also R. v. Dacosta, 2018 ONCA 588, at paras. 3-4; R. v. Benjamin, 2018 ONCA 835, at paras. 3-6; Piccinini, at para. 10; R. v. Spence, 2018 ONCA 427, at paras. 54-69.

[113] However, as observed in Bumstead v. Dufresne, 2017 ABCA 122, at para. 9 (appln for leave to appeal refused [2017] S.C.C.A. No. 226), “[a]ssigning little weight to evidence, or preferring some evidence over other evidence, is not the same thing as ignoring evidence”.

[114] On occasion, in assessing credibility, a trier of fact errs in treating the absence of embellishment or exaggeration by a complainant in terms of the described gravity of the alleged sexual assault, as enhancing her believability – “[i]t is wrong to reason that because an allegation could have been worse, it is more likely to be true”: Kiss, at paras. 51 to 54. At para. 53 of the Kiss judgment, the court held that:

On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness' evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible.

[115] Finally, a trier of fact will, in most circumstances, err in detracting from the potential soundness of an accused’s defence by considering failure to call a witness to testify. Commenting upon the failure to call a witness runs the clear risk of reversing the burden of proof – given the reality of counsel’s strategic choices respecting defence witnesses to be produced at trial, often “unrelated to the truth of any evidence a witness may give”, it is unfair to visit tactical litigation decisions upon an accused – “[a]n adverse inference may only be drawn where there is no plausible reason for not calling the witness”: R. v. Degraw, 2018 ONCA 51, at paras. 29-31, 36; R. v. Ellis, 2013 ONCA 9, at para. 49.

[116] Where adverse comment is appropriate, the only inference which may legitimately be drawn is not one of guilt but rather the allowable inference that had the witness testified their evidence would have been unfavourable to the accused: Degraw, at paras. 32, 44, 49.

[117] A trial judge who notes a failure to call other alibi witnesses will generally not have erred: Piapot, at para. 26; R. v. N.L.P., 2013 ONCA 773, at paras. 63, 65. Comment that failure to call a witness was “convenient” understandably attracts scrutiny: R. v. Berry, 2018 ONCA 86, at para. 6. Merely pointing out that evidence that “might have assisted one side or the other, is lacking is not reversing the onus of proof. She is simply acknowledging the fact that there is an absence of confirmatory evidence, one way or the other”: Piccinini, at para. 8.

(2) Discussion

(a) Introduction

[118] The trial judge delivered lengthy oral reasons. The reasons contained an in seriatim review of the six witnesses’ evidence (Reasons, pp. 4 to 46) with some credibility assessments expressed along the way during that review. Concluding credibility determinations followed (Reasons, pp. 46-55).

[119] The trial evidence was spread across four days. The trial judge could certainly have had the benefit of greater assistance from trial counsel. In closing submissions, there were misstatements of evidence by the prosecutor (not Mr. Galluzzo) and an erroneous submission that the only material inconsistency in the complainant’s overall account related to her alcohol consumption. Defence counsel (not Ms. Kerr) neglected to question K.M. on certain material issues when she first testified at trial.

[120] As discussed below, while I am unpersuaded that the trial judge exercised a methodological approach of uneven scrutiny to the veracity of the evidence of the principal witnesses, material misapprehension of evidence and a reversal of the burden of proof require appellate intervention.

(b) Misapprehension of Evidence Relating to Complainant’s Intoxication

[121] At trial, the defence vigorously emphasized the complainant’s state of intoxication at the staff party as relevant to the reliability of K.M. as a reporting witness to the events of the evening. This was not to suggest that an intoxicated person cannot be sexually assaulted or subsequently believed in her account of victimization. In particular, it was submitted that:

(1) based on the weight of credible evidence, K.M. was heavily intoxicated at the party

(2) the complainant’s evidence of purported improved memory at trial, as to what alcohol she consumed at the staff party over a year and a half earlier, was nonsensical

(3) the effect of K.M.’s state of intoxication was that she was “unintentionally misleading the court” not only respecting her alcohol consumption but also that her overall reliability was necessarily suspect.

[122] In response, while acknowledging “real inconsistency” over time on the part of K.M. as to her alcohol consumption, Crown counsel at trial submitted that:

(1) K.M.’s report to the police of the amount of alcohol she consumed at the party may have been inaccurate as she was unrecovered from the shock of being sexually assaulted

(2) as there was “free pouring” of alcohol at the party, it cannot be said that the glasses of wine consumed by K.M. each contained 8 ounces of alcohol

(3) Tashan Harry testified that he was unable to say whether the complainant “had a fair number of drinks or not” – the witness was unable to say that K.M. was drunk or intoxicated.

[123] During closing submissions by counsel, in probing the parties’ positions respecting the intoxication issue, the trial judge observed that:

(1) the complainant’s changing story about her alcohol consumption “causes some concern about her credibility” (“that certainly does not go well for her credibility on that part”)

(2) only the appellant described K.M. as “stumbling”

(3) “[t]he fact that she is intoxicated does not in any way actually move me one way or the other” respecting K.M.’s “credibility””:

DEFENCE COUNSEL: The fact that she is intoxicated … doesn’t’ affect reliability of evidence?

THE COURT: Well, it affects reliability to a certain extent, but the fact that she says she is intoxicated, actually she is being forthright about that.

[124] Ultimately, in her reasons for judgment, the trial judge made these findings:

(1) at the staff party, alcohol was “free flowing” – in these circumstances, a partier is “unlikely” to recall with certainty what they had to drink

(2) as to the quantity of alcohol K.M. consumed:

While she said to the police that she had five glasses of wine and one shot, she testified in court she had three glasses and two shots. It essentially amounted to a difference of one drink.

(3) Tashan Harry, who “noticed [K.M.] … drinking”, could not tell from speaking with K.M. whether she had had a lot of alcohol to drink – he saw no signs of extreme intoxication

(4) K.M. described herself as not unsteady on her feet with only the appellant describing K.M. as stumbling

(5) while K.M. had been “inconsistent with respect to what she drank”, at trial, K.M. “appeared to truly believe she did not have any more than three wines and two shots” – K.M. “did admit she was intoxicated” – K.M. was “a credible witness” and “forthright” despite her inconsistencies as to the quantity of alcohol she consumed at the party.

[125] Taking the first finding of the trial court, there can be no quarrel with the reasonableness of the conclusion. Common sense and experience suggest that a person consuming multiple alcohol drinks in a party environment with free unlimited alcohol, in the absence of an independent extrinsic record such as an invoice, will not be expected to be an accurate historian of their alcohol intake. That said, the complainant’s account of improved memory at trial, a report with certainty and reductive of her account to the police and to hospital staff, could not easily and reasonably be accepted as credible.

[126] In light of the court’s second finding, that the complainant may only have been inconsistent to the measure of one alcohol drink, these observations are warranted. Given the complainant’s self-admitted lack of sobriety, there is no compelling reason to believe that she could accurately account at trial what alcohol she consumed – it may well have been 5 wine drinks and 2 liquor shots or indeed more. The trial court’s minimizing of the significance of a one-drink differential inconsistency, a credibility assessment, does not factor her alcohol intake into the question of K.M.’s overall reliability as a witness.

[127] On the issue of the trial court’s reliance on Tashan Harry’s evidence, that witness only “notice[d]” K.M. consuming alcohol – a somewhat remarkable report in light of K.M.’s report of her drinking pattern (“intoxicated” (trial); “drunk” (police statement)) and the testimony of four other witnesses at trial as to her condition. As to whether Mr. Harry concluded that K.M. had had “a fair number of drinks”, on his evidence, he “couldn’t tell” one way or the other.

[128] While the trial judge is correct that only the appellant described K.M. as swaying or stumbling:

(1) K.M.’s self-report of no unsteadiness must be assessed in the context of her lack of sobriety as well as her acknowledgment of being “definitely tipsy”

(2) Mr. Vultao testified that K.M. was slurring her words and exhibited an “inability to hold herself up properly”

(3) the evidence of the appellant and Mr. Vultao as to the complainant’s fall while limbo dancing called into question alcohol effects upon K.M.’s physical coordination

(4) the observations of the appellant as to K.M.’s physical condition were at the end of the party in terms of timing and consistent with the impact of a rising blood alcohol level on the complainant’s physical stability.

[129] And finally, and picking up on this court’s earlier observation respecting the distinction between credibility and reliability, the sincerity of K.M.’s stated belief at trial as to what she drank on June 8, 2015 was not the real issue at trial. As both parties recognized, the issue of K.M.’s alcohol consumption was its impact upon the reliability of the witness’ account of the night’s events. Forthrightness on K.M.’s part acknowledging intoxication, placed by the court on the scales to favour the complainant’s credibility, failed to give proper effect to the impact of her intoxication on the reliability of her report of the night’s events.

(c) Misapprehension of Evidence Relating to Complainant’s Dancing Behaviour

[130] Of the six witnesses at trial, four testified to witnessing K.M. dancing at the staff party. Only the complainant positively testified that she did not dance at the party.

[131] Defence counsel submitted to the trial judge that the weight of the credible evidence established both that the complainant was dancing and that the manner of her dancing was circumstantially consistent with an intoxicated partier – the complainant’s denial of dancing was relevant both to her credibility and reliability as a witness.

[132] Crown counsel at trial also recognized the force of the evidence on the subject of dancing: “We have evidence from other people that she was in fact dancing” … “I’m not trying to get around that in any way” … “it certainly goes to her credibility and reliability” … “It’s certainly relevant”. In accepting that rejection of K.M.’s account of not dancing could, in light of her lack of sobriety, reasonably mean that the witness was “mistaken” and was “filling in a gap” in her memory in saying that she was not dancing, the prosecutor nevertheless submitted that K.M.’s faulty memory, while not a matter of conscious fabrication, “goes to her credibility and reliability about her recall of that night” (“It’s certainly going to be relevant … to her credibility and reliability assessment based on what you’ve heard from other witnesses”).

[133] During closing submissions, the trial judge observed that she was not “overwhelmed” by the evidence of K.M. dancing and that the evidence of inappropriate dancing was “very weak”. In her reasons for judgment, while recognizing the inconsistent evidence respecting the complainant dancing, the trial judge found that:

(1) Tashan Harry did not see K.M. dancing and, had she been wildly dancing at the party, “he certainly could not have missed it … [h]e would have observed it”

(2) Robert Falcitelli, was “[o]verall … a credible witness” – that witness observed K.M. flirting and dancing “scandalously”

(3) the complainant’s denial of dancing did not change the court’s mind “with respect to her overall credibility”.

[134] Turning to the first finding of fact, Mr. Harry’s evidence was that he did not know whether K.M. danced – not that she was not dancing. Given the physical spread of the party including the patio, the restaurant itself including the La Grotta Room, the bar, the lobby and outside the front entrance, and given that he spent only part of the evening with K.M., the absence of details in the record about the dimensions of the restaurant, and considering that the witness claimed not to have seen K.M. as intoxicated contrary to the overwhelming evidence that she was as self-admitted and as observed by others, there was no reasonable basis to conclude that Mr. Harry would necessarily have observed the wild dancing by K.M. described by other witnesses.

[135] Having found Falcitelli to be a credible witness, it is unexplained as to why his evidence of scandalous dancing on K.M.’s part, corroborating that of the appellant and the witnesses, Vrsic and Vultao, led the trial judge to conclude that the evidence of the complainant’s manner of dancing was “very weak”.

[136] Finally, the trial court does not appear to have determined that K.M. did not dance at the party. While there was no positive finding to this effect, in the view of the trial judge K.M’s denial did not negatively impact the court’s view that she was a credible witness. Both parties at trial recognized that there was cogent evidence of the complainant dancing at the party and that, in light of possible sincere non-recollection on her part at trial, her denial was relevant to her overall reliability as a witness. The trial court, particularly in the context of the intoxication evidence, failed to assess the dancing evidence on the subject of reliability as opposed to credibility alone.

(d) Misapprehension of Evidence Relating to Circumstances of Alleged Sexual Assault

(i) Overview

[137] Insofar as the circumstances of the sexual assault alleged by K.M., these sub-topics were the subject of review on appeal by the parties:

(1) the evolving and inconsistent account of K.M. as to what transpired

(2) the location of the K.M./appellant meeting in the restaurant downstairs

(3) the reason Tashan Harry returned downstairs

(4) termination of the alleged assault

(5) the complainant’s non-exaggeration as relevant to credibility

(6) inferential relevance of K.M.’s shyness as a witness to whether she was the sexual aggressor

(7) finding that appellant’s evidence was inconsistent and progressively exaggerated

(8) conclusion that K.M. was a credible witness – what of reliability?

These subjects are reviewed more fully below.

(ii) Evolving and Inconsistent Account of K.M. as to What Transpired

[138] Discussion of the issue of K.M.’s versions of what she maintained happened to her were not consistent over time.

[139] The defence submitted at trial that omissions, particularly in K.M.’s police videotaped statement, such as the allegations of breast-touching and feeling the appellant’s penis against her leg, and what may have been said to her by the appellant, were significant. It was argued that these “new” facts at trial are unlikely to have been added as a result of improved memory over time. K.M. was interviewed by the police in the comfort of an interview lounge within 24 hours of the party with K.M. giggling and laughing at times during her statement.

[140] Crown counsel at trial submitted that human memory naturally fills in recalled details over time. On K.M.’s evidence, she was still in shock the following day when speaking to the police. The prosecutor further submitted that, while there were “slight discrepancies” in K.M.’s accounts, there was no real inconsistency. Be that as it may, Crown counsel at trial acknowledged that these changes were “something Your Honour has to consider” and were “certainly relevant to your overall assessment of proof beyond a reasonable doubt and credibility and reliability assessments”.

[141] On the evidentiary record, K.M.’s disclosure/description of the alleged assault was the subject of questioning relating to what she told Tashan Harry, the police, and the trial court.

[142] In her testimony, K.M. maintained, on more than one occasion, that she related to Tashan Harry “everything” that happened to her in the downstairs hallway. Pressed in cross-examination, K.M. retreated to saying that she told Mr. Harry “core details” which, as it turned out, did not include a kiss (“tried to kiss” communicated), breast-touching, or feeling the appellant’s penis against her leg. In her reasons for judgment, the trial judge did not directly deal with the significance of K.M.’s changed version respecting what she told Tashan Harry with the court only noting the complainant’s evidence that K.M. told Mr. Harry “what happened” and that she related to him “core details”.

[143] K.M. variously stated that the appellant placed hands or a hand inside her dress. The trial court did not assess the significance of this further in-trial inconsistency in K.M.’s testimony dealing with the plural-versus-singular discrepancy as to whether the appellant put his “hands” in her dress or only one hand went in her dress.

[144] During her in-trial testimony, the complainant stated that “both” her breasts were touched. Throughout her reasons for judgment, on eight occasions, the trial judge erroneously referred to the complainant’s allegation of a breast being touched. This was a serious mistake respecting K.M.’s evidence that both breasts were touched or grabbed – an invasive assault more likely to be recalled by a credible and reliable victim in speaking to the police had it actually transpired. Despite K.M.’s trial testimony that breast-touching was considerably more intrusive than a kiss, the trial court’s reasons concluded that because K.M. felt numb the following day it could explain omissions in her police statement.

[145] Despite these inconsistencies in K.M.’s evidence, and in terms of what K.M. told the police, and despite the submissions of both parties that the discrepancy was relevant to K.M.’s reliability, the trial court concluded that the complainant was “very credible”, again without assessing the live issue of the complainant’s reliability.

(iii) Location of the K.M./Appellant Meeting Downstairs

[146] At trial, without qualification or hesitation, K.M. acknowledged the accuracy of her Exhibit #1 diagram of the downstairs of the restaurant. The diagram was created during K.M.’s police interview when she was sober and following immediately her days of shifts at the restaurant with daily access to the downstairs staff changeroom and women’s washroom.

[147] K.M. marked the location of her meeting with the appellant in a hallway between the doors to the men’s and women’s washrooms, consistent with her trial evidence that she was assaulted just outside the washroom. On the evidence of Tashan Harry and the appellant, the location of K.M. and the appellant, contrary to K.M.’s diagram, was in a second hallway near the stairs leading to the basement. In effect, K.M. placed the site of the alleged assault around a corner some distance from the bottom of the staircase. According to Mr. Harry and the appellant, the location of the K.M./appellant meeting was in a hall only a few feet from the bottom of the staircase and not in the same hallway as the washrooms.

[148] At trial, the defence noted that K.M. had drawn and labelled her diagram without hesitation or confusion. Apart from the complainant’s inconsistency with the other witnesses’ evidence that the positioning of her and the appellant was not between the washrooms, the actual location of their meeting as described by Mr. Harry and the appellant was in the hallway almost instantly visible, or indeed visible, to anyone descending the stairs to use the washrooms – a circumstance carrying high risk of discovery of anyone committing a sexual assault.

[149] In a minimization submission, Crown counsel at trial argued that the complainant drew “a slightly different diagram” with “there not being two clear hallways” and that error “in placement of where someone was standing” and the layout of the downstairs were not elements of the offence. K.M. had only worked at the restaurant for a few days. Crown counsel conceded that K.M.’s misdescription of the location of her and the appellant was “relevant” but “shouldn’t be the lynchpin in the whole case”.

[150] During the closing submissions of counsel, the trial judge observed that the complainant’s misdescription of the alleged scene of the assault as outside the washrooms was “not a big issue”. Then, in the court’s reasons for judgment, K.M.’s diagram was characterized as “completely different” than the one prepared by Tashan Harry but not amounting to a “serious inconsistency between the two witnesses”. Having worked at the restaurant for only a brief time, K.M. “could easily be mistaken”.

[151] Quite apart from the problem the diagram evidence posed for K.M.’s reliability as a witness, these observations respecting the trial court’s reasons are warranted:

(1) the complainant’s misdescription was not simply an inconsistency between “two witnesses” (K.M. and Mr. Harry) but also with the appellant’s evidence of the downstairs location

(2) the position identified by Mr. Harry and the appellant circumstantially presented a high risk for discovery of sexual impropriety given the proximity to the staircase with the prospect of a partier coming downstairs to use the washroom, during the loud music from the party, unpredictably arriving on scene.

The trial court failed to assess this second critical factor which was material to whether a sexual assault occurred as alleged.

(iv) The Reason Tashan Harry Returned Downstairs

[152] Tashan Harry testified that when he left the downstairs hallway the first time, it appeared that K.M. and the appellant were engaged in general conversation. The witness formed the view that K.M. looked “worried” – the witness did not stay “shocked”, “scared” or “frightened”.

[153] Tashan Harry testified that the reason he returned downstairs after his initial visit to the washroom was because he wanted to find out what K.M. and the appellant were talking about. The witness unambiguously testified that he had “no particular reason” to see what they were discussing – on his first attendance he had just observed the principals engaged in what appeared to be “a general conversation”.

[154] At trial, defence counsel reviewed the above-described evidence emphasizing that Mr. Harry’s evidence did not support the inference that he returned downstairs thinking that K.M. “needed a rescue”. Crown counsel submitted that Mr. Harry returned downstairs because he had earlier seen an uncomfortable look on K.M.’s face.

[155] During closing submissions, the trial judge observed that Tashan Harry went downstairs the second time because “he felt the need to go back down and check on her”. In the court’s reasons for judgment, the trial judge repeated Harry’s evidence that he went downstairs to see what K.M. and the appellant were talking about and that he did so out of concern for K.M. (“… although he did not think it was serious enough to warrant him to intervene when he passed by … it did cause him enough concern to go back downstairs…”). Mr. Harry never testified that he returned downstairs out of “concern”. In light of the witness’ express reply that he had “no particular reason” to return downstairs to see what the principals were discussing, it was unreasonable for the trier of fact to infer that he did so because he considered that K.M. might be in trouble.

(v) Termination of the Alleged Assault

[156] The complainant testified that when Tashan Harry returned downstairs she saw him. At that point, on her evidence, the appellant stopped the assault and quickly moved toward the stairway exit from downstairs while she went into the staff changeroom.

[157] The appellant’s evidence to the contrary was that he had rebuked his employee for her behaviour, instructed her to leave, and without answering whether she would be fired, left her crying and proceeded upstairs.

[158] Tashan Harry testified that when he returned downstairs he saw no one in the downstairs hallways. Significantly, this evidence was consistent with that of the appellant.

[159] The conflicting evidence on this subject related to a critical issue at trial. The defence argued that with the complainant’s false account of sexual assault requiring a termination or exit scenario, K.M. invented an account of the appellant ceasing his misconduct when interrupted by Mr. Harry’s unexpected arrival. The trial court did not give proper effect to Mr. Harry’s evidence that he played no such role. The trial judge failed to assess this significant evidence directly impacting upon the veracity of K.M.’s account and the truthfulness of the appellant’s evidence.

(vi) The Complainant’s Non-Exaggeration as Relevant to Her Credibility

[160] At trial, Crown counsel encouraged the trial judge to consider, in assessing K.M.’s credibility, that “[s]he submitted herself next day to a very invasive examination including examination of her genitalia by a stranger, “a sexual assault kit, vaginal swabs, both internal and external”. The prosecutor also noted K.M.’s evidence, “Why would I put myself through this?”

[161] In response, the defence at trial submitted that the complainant’s evidence “doesn’t get stronger because she went to the hospital”. The defence further noted the countervailing reasons as to why K.M. may have pursued her complaint including anger or embarrassment of rejection and the ensuing chastisement, retribution for a likely termination of employment, etc.

[162] The trial judge did not take up these subjects in her fact-finding process. However, in her reasons for judgment, in the course of a concluding series of paragraphs (Reasons, pp. 47-52) articulating why K.M. was a credible witness whose evidence ought to be accepted, the trial judge stated:

[K.M.] did not attempt to exaggerate or overstate the actions of Mr. Giovannelli. She did not, for example, say that the defendant physically restrained her, or that he had physically hurt her.

[163] In the context of a catalogue of factors as to why K.M. was “a credible witness”, the commentary here appears to be an instance of improper makeweight in favour of K.M.’s believability as opposed to an explanation for not finding the complainant to be incredible. In light of this court’s other conclusions, no definitive determination need be made on this issue.

(vii) Inferential Relevance of K.M.’s Shyness as a Witness to Whether she was the Sexual Aggressor

[164] Again, in the course of summarizing positive findings for concluding that K.M. had provided a credible account of sexual assault, the trial judge observed that:

She described herself as being shy, and when she testified, it was clear that she was not completely comfortable discussing all of the details that had taken place. She was not an aggressive person.

[165] Against a backdrop of the caution necessary in reliance upon witness demeanour generally, Ms. Kerr submitted that this finding of K.M. not being capable of aggressive behaviour, directly relevant to whether the appellant’s version of events could be true, was unreasonable given that a witness’ in-court demeanour cannot logically be equated to her attitude and behaviour in a party environment a year and a half earlier after consuming over 20 ounces of alcohol. There is merit in this submission.

(viii) Finding that the Appellant’s Evidence was Progressively Exaggerated

[166] To recap, in his February 22, 2017 trial testimony, both in-chief and cross-examination, the appellant provided this information:

(1) just before he made the turn in the hallway past the washrooms, he heard the door of the women’s washroom open

(2) he saw K.M. exit that washroom

(3) he observed the complainant sway or stagger from side-to-side

(4) K.M. came toward him and became sexually aggressive.

(Transcript, Feb. 22, 2017, pp. 81 (in-chief), 109-110 (cross-examination))

[167] In his second day of cross-examination, the appellant gave this evidence:

(1) the party music was really loud such that someone in the downstairs hall, where the stairs were located, would be unable to hear a person descending those stairs

(2) when downstairs, the appellant turned around because he heard stumbling side-to-side

(3) the appellant saw K.M. come out of the women’s washroom

(4) as the appellant continued walking, K.M. “followed” him and when he asked K.M. if she was fine, she came on to him sexually.

(Transcript, February 23, 2017, pp. 28-29)

[168] In her evidence, K.M. testified that she did not hear Tashan Harry descending the stairs on the second occasion that Mr. Harry came downstairs.

[169] Insofar as the circumstance of the appellant encountering K.M. downstairs in the restaurant, defence counsel at trial reviewed the relevant evidence. In her closing submissions, the prosecutor submitted that:

…it’s not unusual that there may be a slight discrepancy about where everyone was standing and who came out of what door at precisely what moment and how many seconds went by.

Final point with respect to why Mr. Giovannelli’s testimony doesn’t make any sense and why [K.M.’s] testimony should be believed over Mr. Giovannelli’s, is he indicated that you wouldn’t be able to hear someone coming down the stairs because of all the music, but yet, he was approaching the stairs and he was able to hear Kristen come out of the washroom and stumble in the hallway.

[170] In its reasons for judgment, the trial court initially summarized the appellant’s evidence on this subject in this way:

(1) “[a]s he was about to walk upstairs he heard the woman’s door opening and [K.M.] come out. She swayed side-to-side…”

(2) K.M. then walked right up to the appellant and tried to kiss him

(3) the appellant then asked K.M. if she was okay at which point K.M. made further sexual advances.

[171] Returning to the topic, the trial judge stated:

When asked to recount the incident, the defendant said he was just about to walk back up the stairs and he noticed [K.] coming out of the bathroom. She staggered side-to-side. He asked her if she was fine and she came towards him mumbling. When it was put to him that he said he was almost at the stairs, he said no. However, clearly he did say that he was almost at the stairs when she came out of the bathroom. Mr. Giovannelli said, “I had just come out the men’s bathroom. She staggered from wall to wall.” His version with respect to how Kristen comes out of the washroom becomes more exaggerated each time he relays this part of the incident.

In cross the defendant said he stopped to turn around because he had heard some stumbling from side-to-side in the hallway. On the first day he testified he did not say he heard her stumbling and that this was what caused him to turn around. He said he heard the women’s door open. He indicated she slurred some words and she came towards him and tried to kiss him. He continued to walk around the corner. Mr. Giovannelli said that [K.] followed him. However, he agreed with the Crown that there is only one way to exit out of the basement.

Minutes after the portion in his evidence where he speaks about hearing the stumbling, the Crown suggested that the reason he stopped touching [K.] and left her quickly was that he could hear Tashan coming down the stairs. Mr. Giovannelli said that he would not have heard that because the music was very loud. So, again, this seems to be inconsistent with him being about to hear a door open or stumbling in the hallway when he was down the hall.

We have actually never heard what the dimensions were of the basement.

[172] Finally, in cataloguing reasons for rejecting the appellant’s evidence as incredible, the trial judge stated:

As I have reviewed Mr. Giovannelli’s evidence, I have attempted to highlight areas of concern, and where I found his evidence to be inconsistent throughout the oral judgment, the following are some of the inconsistencies as well that I may have touched upon: That he heard her open the door of the female washroom and he turned around. On the second day he said he heard her stumbling against the wall and this is why he turned around. Further, as I mentioned earlier, the version of her coming out of the washroom became exaggerated each time he was questioned about her coming out of the washroom. Dealing with what he could hear or could not hear, he testified he could not have heard Tashan come down the stairs because the music was loud. On the other hand, he could hear at one point he said the washroom door open.

[173] It is important to recognize that the trial prosecutor did not cross-examine the appellant as to his awareness of K.M.’s presence to suggest significance to his descriptions of hearing swaying or stumbling, or having heard the door of the women’s washroom and/or the sound of K.M.’s stumbling. Nor did Crown counsel, in her closing submissions, suggest that these subjects raised inconsistencies, let alone material inconsistencies, in the appellant’s evidence. During closing submissions, the trial judge did not raise these topics with counsel for their views as to whether the appellant’s evidence on these topics could potentially have the significance ultimately assigned by the trial judge disfavouring the appellant’s credibility.

[174] Be that as it may, the trial court misapprehended the evidence on two significant points.

[175] Firstly, the appellant did not “clearly” testify that “he was almost at the stairs where [K.M.] came out of the bathroom”. The appellant gave no such evidence. The appellant’s evidence in-chief was that he became aware of K.M.’s presence downstairs “just before … I was making the turn”. And similarly in cross-examination, the appellant stated: “…I came out of the men’s room, I’m walking here. The women’s washroom opens up, she comes out…”. In saying that he was “approaching the stairs”, it is apparent that the appellant meant in this context that he was headed for the staircase not that he was already near it, given that he observed K.M. exit the women’s washroom.

[176] Secondly, accepting the accuracy of the 2-hallway diagram drawn by Tashan Harry, confirmed as correct by the appellant, the corner of the hallway joinder is some distance from the foot of the stairs and the downflow of music noise at the staircase. Given that fact, and the trial court’s acknowledgement of not having hallway-length dimensions, there is no valid reason to doubt the appellant’s evidence that, at the corner location, he could hear the presence of K.M. emerging from the women’s washroom, despite the music playing upstairs. If the trial judge’s point in that the appellant did not truthfully testify that he could not have heard Tashan Harry descending the staircase where positioned in the second hallway with K.M., not far from the bottom of the staircase, that testimonial assertion was corroborated by K.M. who maintained that she did not hear Mr. Harry coming downstairs.

[177] In the result, the evidentiary record does not reasonably support an inference of the appellant’s evidence becoming increasingly inconsistent and exaggerated.

(ix) Conclusion that K.M. was a Credible Witness – What of Reliability?

[178] At the commencement of its reasons for judgment, the trial court correctly reviewed the governing principles respecting the burden of proof, the onus upon the prosecution to prove the allegation and the W.D. guidance for credibility assessment of witnesses’ evidence (Reasons, pp. 3-4). These principles were subsequently repeated (Reasons, pp. 46-47, 54-55).

[179] While the trial judge, in her preamble to the reasons, noted that she would be required to assess the credibility and reliability of each witness including K.M (Reasons, p. 3, lines 6-8, and, and p. 4, lines 14-17), in the ensuing analysis of the complainant’s evidence (Reasons, pp. 4-14, 45-52), the trial court focused exclusively upon K.M’s credibility, stating for example:

After carefully reviewing [K.M.’s] evidence, I concluded that she was a credible witness.

I find [K.M] to be very credible and forthright witness.

[180] To repeat this court’s earlier observations, in their closing submissions, both parties at trial recognized that such problems as might be identified with K.M.’s evidence (i.e. intoxication, misrecall of dancing, inconsistent and evolving description of alleged sexual assault, error in her Exhibit #1 diagram) would be relevant to both the credibility and the live issue of the reliability of the complainant’s evidence.

(e) Reversal of Burden of Proof

[181] As summarized at para. 98 above, the prosecutor at trial cross-examined the appellant on the subject of what he spoke to his witnesses (Vrsic and Vultao) about and the timing of decisions to request them to appear as defence witnesses at trial.

[182] In her reasons for judgment, in the course of discussing the evidence called by the defence, the trial judge stated:

Mr. Giovannelli has known Mike Vrsic since 2014, when they opened Goodfellas. There was a lot of people at the event, but he only chose to ask Mike and Luis Vultao to testify in court about what they observed at the party.

[183] It is not entirely clear what other individuals at the party, whether Mr. Tadao or Neil or some others, the trial judge had in mind in describing the limitations of the defence case.

[184] On appeal, it was submitted on behalf of the appellant that the trial judge’s very specific statement entirely ignored the uncontradicted evidence that the appellant’s trial lawyer made the decisions respecting the witnesses to be called for the defence. Leaving to the side that the trial judge engaged in no similar commentary respecting the Crown’s failure to call Kristine, it was submitted that the trial court effectively reversed the burden of proof by relying on an adverse inference in terms of deficiency in the defence challenge to the Crown’s proof of the allegation based upon failure to call other potentially corroborating witnesses.

[185] While Mr. Galluzzo acknowledged the starkness of the trial judge’s statement, “he only chose to ask…”, he was unable to explain the significance of the impugned passage in the trial judge’s reasons. Put differently, counsel could not say why the observation was necessary to the court’s path of reasoning – however, it was “too ambiguous” to conclude judicial error respecting the burden of proof. Alternatively, it was submitted, that this was an appropriate case for reliance by the trier of fact to draw an adverse inference from the defence failure to produce others, for example, Mr. Tadao, as defence witnesses.

[186] The trial judge’s very pointed reference to the appellant’s choice to call a limited population of defence witnesses (“he only chose”) was an observation at odds with the uncontradicted evidence that experienced defence counsel, within his professional jurisdiction, had selected the persons to appear as defence witnesses in his client’s trial. The trial court’s observation extended beyond a passing observation that evidence which may have assisted one side or the other at trial was not part of the evidentiary record. There was no case for inferring that other witnesses who could have been called would have testified unfavourably to the accused’s defence. On its face, the passage in the trial judge’s reasons exhibited reversal of the burden of proof on the prosecution to prove its case beyond a reasonable doubt without obligation upon the defence to produce witnesses.

(f) Final Conclusions

[187] There were problems with the evidence of the complainant and the accused in their respective conflicting accounts. This is hardly uncommon in criminal trials.

[188] The appellant’s account did not defy common sense. That said, K.M. may have been sexually assaulted as she alleged. However, considered and reasoned acceptance of her evidence, and in turn rejection of the appellant’s version of events, required balanced and accurate assessment of the whole of the evidence including the flawed aspects of the complainant’s testimony as well evidence consistent with the appellant’s innocence.

[189] Although the trial court was impressed by Tashan Harry as a witness who made the trial “not a simple case of “he said/she said””, his evidence of seeing K.M in the basement hallway looking uncomfortable and minutes later observing her crying and upset is not inconsistent with the appellant’s account of chastisement of K.M., direction to leave the party, and the outstanding prospect of termination as an employee. The evidence of Mr. Harry and K.M differed on a number of materially significant issues including the location of the complainant and the appellant downstairs, and whether either of those individuals were in the hallway when Mr. Harry returned downstairs a second time. As discussed, the evidence of the witness, an employee fired from the restaurant, was also at odds with the weight of evidence at trial respecting K.M. exhibiting intoxication.

[190] This is not a case where this court, exercising its appellate jurisdiction, can safely have resort to sustaining the verdict on the basis of saying that the trial court’s acceptance of the complainant’s account of being sexually assaulted was unimpaired by material error. Taken cumulatively and, in some instances, individual non-peripheral misapprehensions of evidence, warrant a new trial on the basis that it cannot be said the verdict would necessarily have been the same had those errors not occurred.

[191] Two issues, not discussed in the trial court’s reasons, and uncanvassed on appeal, will stand as matters for consideration at the new trial should it be held. First, the actions of the appellant, whether or not described as consciousness of innocence, a firm denial of sexual impropriety when confronted with the allegation minutes after K.M.’s departure from the restaurant, followed by his unsolicited contact with the police hours later to provide his exculpatory account, must be assessed for their circumstantial consistence with his innocence. Second, the evidence of the appellant and Mr. Falcitelli relating to Neal, and subsequently Kristine, reporting the alleged sexual assault to others as involving taking his penis out of his pants, a subject dismissed during closing submissions as per se inadmissible hearsay by the trial judge, may have non-truth /non-hearsay value as circumstantial evidence that their respective reports originated from K.M. as the source. Should the evidence pass the probative value v. prejudicial effect threshold, it would be for the trier of fact to determine whether the reported fact was innocent embellishment/mistake by others or repetition of a descriptive statement by the complainant which was inconsistent with subsequent versions of events provided by her.

E. ORDER

[192] The appeal is allowed. The verdict of guilt is set aside and a new trial is ordered before a differently constituted summary conviction trial court.

[193] The appellant is ordered to attend Courtroom 104 of the Peel Courthouse at 9:00 a.m. on August 2, 2018 to set a new date for trial failing which the Crown may apply for process to compel his attendance.

[194] 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: July 16, 2018

COURT FILE: SCA(P) 538/17

DATE: 2018 07 16

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

RE: R. v. ROCCO GIOVANNELLI

COUNSEL: D. Galluzzo, for the Respondent

C. Kerr, for the Appellant

REASONS FOR JUDGMENT

[on appeal from conviction by Justice A. MacKay on February 28, 2017]

Hill J.

DATE: July 16, 2018