COURT FILE NO.: CR-17-0000043-00AP

DATE: 20180207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.C.

M. MacDonald, for the Respondent

J. Makepeace, for the Appellant

HEARD: December 11, 2017

s.a.Q. akhtar j.

[1] On appeal from the conviction entered on 28 February 2017 by Justice Riun Shandler of the Ontario Court of Justice.

Factual Background

[2] The appellant was convicted of one count of sexual assault and sentenced to a 90 day intermittent term of imprisonment with two years probation.

[3] The appellant employed the complainant, V.K., an 80 year old woman, to clean his business offices. V.K. had been working for the appellant for many years and complained of difficulties in receiving remuneration for her services. At the beginning of 2015, she found her wages had been substantially reduced as the appellant’s business experienced financial problems.

[4] On 10 May 2015, V.K. testified that she went to the appellant’s business, located in a plaza containing other offices and stores, to perform her cleaning duties. When she arrived, she saw the appellant’s car parked near a clothing store in the same plaza. The rest of the lot, however, was empty. After waving to the appellant, she entered the building and began her tasks. A short time later, as V.K. was cleaning a window, she noticed the appellant had moved his car closer to the office. Upon seeing her, the appellant began honking his car horn. Approaching the vehicle, V.K. found the appellant intoxicated behind the wheel, with the driver’s side window open. The appellant grabbed her hands and placed them on his exposed penis, whilst making sexual suggestions to her. V.K. squeezed his penis and broke free, retreating into the office and locking herself in the bathroom. The appellant followed and started banging on the bathroom door. When V.K. emerged, the appellant lifted her shirt, fondled her breasts and attempted to pull down her trousers. V.K. told the appellant that she would lock the front door so that no one could enter, causing the appellant to stop. V.K. ran to her car and left, noticing the appellant had followed her to see where she had gone.

[5] The appellant denied the offences telling the court that, on the day in question, he and his assistant, E.R., were at a business meeting discussing the sale of a plaza. That sale depended on documentation needed by noon the following day so that the transaction could be completed. One of the necessary documents had been left at the appellant’s business premises and, when the meeting concluded, the appellant went to his office to get it. He denied consuming any alcohol and testified that there were 20-30 cars in the parking lot. The appellant saw and greeted V.K. inside the building and went to his office to retrieve documentation required for the sale that had been discussed.

[6] Upon seeing him, V.K. rubbed her fingers and thumbs together and said “R.C., where’s my cheque?” The appellant told her “for the tenth time” that he had signed her cheque and that it required his brother’s signature before being given to her. The appellant agreed that he had raised his voice with the victim and “that may have been a problem for her.” He then left the office without further incident.

Reasons of the Trial Judge

[7] The judge rejected the appellant’s evidence finding it to be incredible. Whilst acknowledging the inconsistencies in the V.K.’s evidence, the judge found her to be truthful and was satisfied beyond a reasonable doubt that the appellant had sexually assaulted her.

Grounds of Appeal

[8] The appellant appeals his conviction on the grounds that the trial judge:

(a) applied a different standard of scrutiny to evidence of V.K. and the appellant;

(b) materially misapprehended the appellant’s evidence; and

(c) reversed the burden of proof

Different Standards of Scrutiny and Misapprehension of Evidence

[9] The appellant argues that the judge applied different standards of scrutiny to the evidence of the victim and the appellant, and in doing so, misapprehended material parts of the evidence. The appellant submits that the judge actively sought out avenues to denigrate his credibility and wandered beyond the evidentiary record to reject his defence. Whereas, when assessing the complainant’s evidence, the judge was far more forgiving, excusing material inconsistencies and ignoring exonerating evidence.

[10] There is a long line of case law that recognises that this ground of appeal has a high threshold and rarely succeeds: R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at para. 26; R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 97; R. v. George, 2016 ONCA 464, at para. 35; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 18.

[11] The reason that this argument founders at the appellate level is that, at its core, it is an attack on a trial judge’s findings of credibility which, on review, attract great deference. This route of attack invariably transforms into “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. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23.

[12] The test was set out by Doherty J.A. in R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

[13] In advancing this ground, the appellant points to the judge’s analysis regarding defence evidence, given by both the appellant and Ms. E.R., about the business meeting that took place before the incident. The meeting cast doubt on V.K.’s evidence because, if it had occurred, her description of the length and timing of the assault would be unsustainable.

[14] The judge found that the meeting did not take place. For the judge, the appellant’s failure to retrieve a critical document required to close the real estate transaction being discussed at the meeting demonstrated that no meeting had, in fact, occurred.

[15] The appellant argues that this is a misapprehension of the evidence and speculation on behalf of the trial judge as there was still plenty of time to retrieve the document after the meeting had ended. For the following reasons, I disagree.

[16] In many ways, the appellant’s argument falls into the trap warned of in cases such as Radcliffe and seeks to re-argue the trial in hindsight. There was no misapprehension of evidence or speculation when making this finding. Ms. E.R. had described the meeting as an “emergency” to explain why it was arranged on a Sunday that was also Mother’s Day. It was open to the judge to use the lack of urgency in obtaining a critical document to reject her account as improbable. This is part of the fact finding process that occurs in every trial. Although the appellant complains that neither he nor Ms. E.R. were specifically challenged on the need to get the document, it is clear from the transcripts that the Crown, in cross-examination, challenged the truth of their account that the meeting had taken place.

[17] The appellant complains that the trial judge’s failure to comment on the credibility of this position during the trial denied him the opportunity to address the issue. I find this argument to be misconceived. It would have been improper for the judge to flag issues of credibility in relation to defence witnesses during the course of the trial. The appropriate place for declarations of witness credibility is in the judge’s reasons for decision: R. v. Hossu (2002), 2002 CanLII 45013 (ON CA), 167 C.C.C. (3d) 344 (Ont. C.A.), at para. 19.

[18] Nor was this the only reason for the rejection of the defence evidence. The judge found that the appellant’s testimony on the succinct nature of his interaction with V.K. to be highly improbable given his personal and financial difficulties which he could no longer cope with.

[19] Finally, he found the appellant to be evasive about his drinking problem and noted the appellant’s failure to admit this fact until “he acknowledged eventually that he stopped drinking when he entered a treatment centre for alcohol abuse one to three days after the charges.”

[20] The appellant argues that his past history with alcohol was first brought out in his own evidence and that he was “extremely forthcoming” about this aspect of his background.

[21] I cannot agree with this submission. The appellant did refer to his drinking problem, in his examination-in-chief, but it was hardly an “extremely forthcoming” description. His initial account was a narrative that appeared to suggest that he simply drank a little too much at home which led to some adverse health issues such as weight gain, sleep apnea and high blood pressure. Subsequently, he entered a rehabilitation programme and had been sober for a year and a half. However, when cross-examined, the appellant clearly sought to minimise the issue calling it just “a habit” and “drinking at home.” When he was asked to identify the date that he stopped drinking, the appellant prevaricated, initially suggesting that he did not understand the question. It was only after the Crown repeated the question a further five times that the appellant answered it: his drinking ended on the day he entered the programme.

[22] The judge, in my view, did not misapprehend the evidence or indulge in speculation.

[23] The appellant further argues that the judge failed to apply the same judicial scrutiny to the complainant’s evidence. The appellant concedes that the judge did deal with inconsistencies that emerged during the complainant’s testimony but addressed them in a far more benign manner to that of the appellant.

[24] For example, the appellant points to the discrepancy regarding the chronology of the assault. In her police statement, the complainant said that the second part of the assault where the appellant touched her breasts occurred before she retreated to the bathroom. At trial, she claimed that this part of the assault occurred after she emerged from the bathroom. The appellant argues that this inconsistency is so material that it had the potential to end the Crown’s case.

[25] The trial judge, however, did not take that view. As required, he addressed the various differences in accounts, finding that the difference was explained by the complainant’s habit of testifying in a non-linear manner and relating events “as they come to her mind in a haphazard fashion.” The transcript of the trial reveals many such examples. However, the judge found the evidence to be clear when it came to describing the specifics of the event, as he was entitled to do.

[26] The judge also concluded that the initial statement to the police could not be characterised as a verbatim statement and was more akin to a report where the police noted “certain details.” This finding is supported by the evidence of the officer who initially spoke to V.K. and testified that his report was not a verbatim record of her words. The judge also relied on the fact that English was not V.K.’s first language when evaluating her evidence and alluded to comments in her police statement which demonstrated her difficulties in communication. This was not a case of approaching V.K.’s evidence in a lenient fashion, as argued by the appellant, but an acknowledgment of reality. Having made these findings, it was open to the judge to place little or no weight on this and other inconsistencies such as the timing of her squeezing the appellant’s penis.

[27] The judge’s view of the police notes led him to disregard the apparent discrepancy between V.K.’s initial claim that the appellant’s pants were around his ankles and her later statement to the police - consistent with her trial testimony - that his pants were simply “undone” and “not all the way down.” Again, this was a determination that was entirely within his jurisdictional remit and is entitled to deference: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46. I also agree with the respondent that this discrepancy could hardly be described as a material detail.

[28] Although the appellant argues that the trial judge failed to deal with all of V.K.’s inconsistencies and flaws, it is clear from the jurisprudence that a trial judge need not refer to “every crumb of evidence, or answered each and every argument advanced by counsel”: R. v. Doodnaught, 2017 ONCA 781, at paras. 80-81.

[29] I do not find the judge’s approach to V.K.’s evidence to be forgiving or benign but a measured and fair analysis. I repeat my observations that these findings are to be given considerable deference on appeal: R. v. Petzelt (2005), 2005 CanLII 12680 (ON CA), 197 O.A.C. 72 (C.A.), at para. 3; R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46; R. v. Doodnaught, 2017 ONCA 781, at para. 80. I would also add that I agree with the respondent that the impact of these inconsistencies, if found to be so, would be limited.

Reversal of the Burden of Proof

[30] The appellant argues that the manner in which the judge considered the Agreed Statement of Fact reflects a reversal of the burden of proof.

[31] According to V.K., the parking lot was empty when she went out to investigate the appellant honking his horn. The judge found the scarcity of cars in the lot to be a significant issue because the appellant would be unlikely to force V.K.’s hands to his groin if others were present.

[32] The judge allowed for the possibility of other people attending businesses in the plaza at the time of the event but found that the contents of the Agreed Statement of Facts which specified that other businesses were open and had people in attendance “at some point” did not undermine V.K.’s account. In other words, there could also have been periods where people were not present. The judge’s conclusion was permissible given the absence of evidence to the contrary in the Agreed Statement of Facts and his acceptance of V.K.’s evidence.

[33] I reject the appellant’s argument that the judge’s decision on the issue effectively placed an onus on the appellant to call evidence to the contrary. It was simply a rebuttal of the appellant’s position and the judge’s evaluation of the complainant’s credibility. On the evidence before him, it was a conclusion that he was entitled to come to.

[34] For these reasons, the appeal is dismissed.

S.A.Q. Akhtar J.

Released: 7 February 2018

COURT FILE NO.: CR-17-0000043-00AP

DATE: 20180207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.C.

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.