BARRIE COURT FILE NO.: CR-18-000057-AP

DATE: 20190219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Respondent

– and –

James Szoke

Appellant

Kathryn Hull, Crown counsel

Andrew Furgiuele, counsel for the Respondent

HEARD: February 4, 2019

REASONS FOR DECISION ON APPEAL

McCARTHY J.

[1] This is an appeal from the convictions entered by Justice Nancy Dawson of the Ontario Court of Justice on February 21, 2018.

Background

[2] The Appellant was found guilty on two counts of sexual assault and two counts of touching a person under the age of 16 with a part of his body. The charges related to two incidents (in March 2016 and July 2016) involving the younger sister of the Appellant’s spouse (“the complainant”).

The Position of the Appellant

[3] The Appellant contends that the trial judge erred in two respects. First, she erred in respect of the evidence regarding the complainant’s dreams by making a finding that had no basis in the evidence; and by arriving at conclusions about these dreams and dreams generally that were unsupported by any expert evidence. Second, the trial judge erred in her analysis of the complainant’s inconsistencies as it related to the complainant’s reliability.

The Position of the Crown

[4] The Crown submits that a trial judge must be afforded a high degree of deference by an appellate court on findings of credibility of witnesses and the reliability of their evidence. The role of a trial judge as a listener and observer of the evidence cannot be overstated. The trial judge is in the best position to make findings with respect to the credibility and reliability of the witness: see R v. R.W.B., [2003] O.J. No. 3086 (ONCA) at para. 9. As well, a trial judge is not required to refer to every piece of evidence led at trial: see R v. Haller, [2008] O.J. No. 2530 (ONCA) at paras. 2-3. The Supreme Court has cautioned appellate courts against dissecting, parsing or microscopically examining the reasons of a trial judge: see R v. Sinclair, 2011 SCC 40, [2011] S.C.J. No. 40 (SCC), at para. 54

Analysis

[5] The trial judge here gave comprehensive and extensive reasons, spanning nearly 50 pages. Within those reasons, it is apparent that in assessing the reliability of the complainant’s evidence, the trial judge addressed and considered many, if not most, of the frailties and inconsistencies in that evidence. This included addressing the fact that the complainant had not described to police the sound of skin and fast movements during the first incident. On this point, the trial judge concluded that the evidence given at trial came as a response to a direct question. The trial judge saw no contradiction between the complainant’s statement in court and her omission of the sound quality information in her statement to police. The trial judge found that it was not unusual or surprising that a witness might elaborate on police statement information when being questioned in court. This was a finding that it was open for the trial judge to make.

[6] Similarly, the trial judge found no contradiction between the complainant’s statement to police that she felt the Appellant lean into her and the complainant’s statement at trial that she felt the front of the Appellant’s legs lean up against her back. Again, the trial judge was entitled to come to that conclusion on the evidence as she heard it.

[7] The trial judge interpreted the complainant’s expression at trial of “like what was he doing?” to be more consistent with a disbelief as to what the Appellant was doing as opposed to a lack of knowledge of what the Appellant was doing. The trial judge was best placed to consider, weigh and assess that evidence as it was given. It is not the place of an appellate court to re-engage in that exercise.

[8] As well, the trial judge extensively considered the differences between the versions offered by the complainant’s friend Chloe and the complainant herself about the same incident and, in particular, the discrepancy about the paper towel being found. The trial judge took into account both the circumstances under which the disclosure to Chloe took place and the passage of time before Chloe gave her statement to police. The trial judge found that the discrepancies did not impede the credibility or reliability of the complainant’s evidence. Absent a misapprehension of the evidence, deference should be shown to findings made and inferences drawn by the trial judge.

[9] The trial judge also addressed the failure of the complainant to reveal to her mother the complainant’s recollection of flash pictures being taken of her during the first incident. The trial judge did not consider this type of incremental disclosure to be impactful on the complainant’s credibility or the reliability of her evidence in light of her loving relationship with the Appellant. The trial judge was fully entitled to arrive at this conclusion.

[10] The trial judge also found that the inference drawn by the complainant that the Appellant had ejaculated on the couch was a reasonable one to draw in the context of what she had heard and experienced in that incident. The trial judge accepted that inference and was entitled to do so.

[11] The trial judge determined that the complainant’s use of the expressions “whatever” and “I don’t know”, (when describing to police how the Appellant had touched her with his penis) stemmed from the fact that the complainant felt awkward in reporting these incidents. The trial judge accepted this explanation for this seeming uncertainty. She was entitled to do so.

[12] I agree with the Crown that there was no concrete evidence that the complainant believed that the two incidents were simply dreams. The trial judge carefully considered the evidence of the complainant in this regard and construed the evidence not to reflect any actual belief on the complainant’s part that these were dreams but, rather, a disbelief in what had occurred to her and a desire not to believe it. The trial judge came to this conclusion after considering all of the evidence including the evidence on re-examination that the complainant had prior dreams of being sexually assaulted. While the trial judge made some unwarranted comments on what features of dreams one would not generally expect to see (detail and recollection of thought processes), her finding was grounded in the evidence as a whole including her acceptance of the complainant’s evidence that she was awake on the two occasions and was feigning sleep when the events occurred. The trial judge found this evidence to be compelling and believable. She was entitled to do so. While finding that corroboration of the offences was not required at law, the trial judge was entitled to take into account and give weight to the text messages sent by the Appellant which alluded to some wrongdoing on his part. The trial judge was entitled to use that evidence to buttress her findings that the complainant had not in fact dreamt these incidents.

[13] It is not the function of an appellate court to retry the case or to consider a transcript of the evidence and the reasons of the trial judge with a view to deciding whether another judge could have come to a different conclusion. An appellate court may review the findings of a trial judge for the purposes of determining whether the verdict is reasonable but ought not to disturb them unless they cannot be supported on any view of the evidence: see R. v R.P., 2012 SCC 22, [2012] S.C.J. No. 22 (SCC) at paras. 9-10.

[14] I find that the conclusions reached by the trial judge were amply supported based upon her view of the evidence. That view was reasoned, measured, fair and balanced. The trial judge gave cogent and concrete reasons why she found the complainant to be credible and why she found her evidence to be reliable. The trial judge turned her mind to the inconsistencies, gaps and shortcomings in the complainant’s evidence and explained why these did not serve to tarnish the complainant’s credibility or undermine the reliability of her evidence. I am unable to find that the trial judge’s references to certain features of dreams formed the cornerstone of her rejection of the concept or suggestion that the complainant dreamt the events in question. Expert evidence might have been of assistance in that regard; but it was not necessary in order for the trial judge to arrive at the conclusion she reached based on the totality of the evidence.

Disposition

[15] For the foregoing reasons, I would dismiss the appeal. This court orders that the Appellant shall surrender into the custody of the Central North Correctional Centre within 48 hours of his counsel’s receipt of this decision.

McCARTHY J.

Released: February 19, 2019