Court File and Parties

COURT FILE NO.: CR-18-174 AP DATE: 2019-03-27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – W.L. Appellant

Counsel: Bailey Rudnick, for the Respondent Nicholas Xynnis, for the Appellant

HEARD: March 13, 2019

DECISION ON APPEAL R.D. GORDON j.

Overview

[1] The appellant was convicted of sexually assaulting the complainant when she was nine years of age. He was a good friend of the complainant’s mother and had been babysitting for the complainant for a period of about six weeks in the summer of 2016 when the allegations arose.

[2] The appellant testified at trial. The trial judge did not believe his evidence. The remaining evidence convinced him beyond a reasonable doubt that the appellant was guilty.

[3] The appellant alleges several grounds of appeal.

Background Facts

[4] It is not necessary to review the facts in any detail. In essence, the appellant had known the complainant and her mother for close to ten years. When work commitments were making it difficult for the mother to look after the complainant during the summer of 2016, the appellant offered to look after her on Monday through Thursday of each week between the hours of 3:15 and 5:15 in the afternoon. He would pick her up at a day camp she attended and then make their way back to his place, a room in a male-only boarding house.

[5] Once at his room, she would generally sit or lie on his bed and watch television while he would go outside to have a cigarette. He would check on her every so often. The complainant’s evidence was that he would lie down beside her and rub her privates over her clothes.

[6] Eventually, she disclosed this to her mother, who reported the matter to police. The appellant was charged and the trial ensued in the ordinary course.

[7] The appellant testified and agreed with much of the testimony given by the complainant. However, he denied having touched her in any inappropriate way.

Issues on Appeal

[8] The appellant raised the following issues with respect to the decision of the trial judge:

1. That he erred by employing unequal and unfair standards in his assessment of the appellant’s evidence when compared to the evidence of the complainant and her mother.
2. That he erred by considering evidence that had not been tendered at trial.
3. That he erred by assessing the credibility of the complainant without considering the reliability of her evidence.
4. That he erred by drawing in impermissible inference from the conduct of the appellant.
5. That he erred by misapprehending the appellant’s evidence concerning an alleged motive for the complainant.
6. That he erred by rejecting the evidence of the appellant without articulating a reasonable and rational basis for doing so.
7. The he erred by incorrectly applying the burden of proof and the presumption of innocence.

[9] The appellant asks that the appeal from conviction be granted and that a verdict of acquittal be entered, or that a new trial be ordered.

Analysis

Unequal and Unfair Standards in the Assessment of Evidence

[10] The basic principles surrounding this ground of appeal were summarized by the Ontario Court of Appeal in R. v. Radcliffe, 2017 ONCA 176:

1. “Uneven Scrutiny” is a difficult ground of appeal to argue successfully because credibility findings of the province of the trial judge that should not be retried on “an arid, printed record”.
2. To succeed the Appellant must do more than show that a different trial judge assigned to 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 he or she could have said in assessing credibility or gauging the reliability of evidence.
3. To succeed, the Appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record that makes it clear he actually applied different standards of scrutiny in assessing the evidence of the Appellant and the Complainant.
4. In the absence of palpable and overriding error, there being no claim of unreasonable verdict, the appeal court may not reassess and reweigh evidence.
5. The judges reasons, read as a whole, reveal a comprehensive and thoughtful review of the evidence. Beginning at page 42 of the transcript of his decision he began a detailed assessment of the complainant’s evidence in which he summarized the effective manner of cross-examination employed by trial counsel and specifically addressed inconsistencies in her evidence and what counsel argued was “an alarming lack of detail”. He found the inconsistencies to be of no moment, and her evidence to be “rich in detail and corroborated in almost all material ways by the accused’s own evidence”.

[11] The appellant’s main complaint is the trial judge’s limited reference to evidence of the complainant’s mother that a few weeks prior to disclosure of these allegations, while speaking to her daughter about having her behind slapped by the appellant, she had asked if the appellant had done anything else to her and the complainant responded with a quick “no”. This was in apparent contradiction of the complainant’s evidence at trial that the appellant had been touching her since the babysitting began several weeks earlier. The appellant questions how these two pieces of evidence can be reconciled.

[12] The trial judge did, in his recitation of the evidence of the complainant’s mother, note the following:

She confirmed in cross-examination they had in fact had discussions about bad touching prior to the disclosure of July 28th and that the concerns about J. being slapped on the bum had been canvassed several weeks earlier and on that occasion, she asked if anything else had happened. Her daughter said no.

[13] Clearly, the trial judge was aware of the evidence. However, that evidence was never put to the complainant. She was never questioned about having been slapped on the behind by the appellant and she was never questioned about her discussions with her mother concerning it.

[14] The only part of the transcript vaguely related to the incident appears in the questions and answers at page 52 of proceedings on June 22, 2017:

Q: But you and W.L. played tag once, didn’t you? A: No. Q: You don’t remember playing tag? A: No. Q: You don’t remember him tapping you on the leg playing tag? A: There was no tag. Q: No? You don’t remember telling Mom about that or your grandma, right? A: Never.

[15] As the trial judge found: “Mr. Venturi suggested an inconsistency that J. had denied telling her mom and her Nana about the bum slapping concerns. I’m not sure where that arose in the evidence. I tried in my review to find that, and it seems to me that perhaps he’s conflating playing his suggestion about tag, with the bum slapping. In any event, I don’t find it to be of any moment.”

[16] The complainant’s mother’s evidence of what the complainant said in their conversation concerning this incident is hearsay and could not be considered by the trial judge for its truth.

[17] That the complainant was not asked specifically about the conversation left her without the ability to deny, correct or otherwise explain the discussion. It strikes me as a clear contravention of the rule in Browne v. Dunn.

[18] As introduced, this evidence did not present any sort of major inconsistency in the evidence. Indeed, it would have been improper for the trial judge to have relied upon this evidence in the manner suggested by the appellant.

[19] In all, this ground of appeal amounts to little more than argument of the credibility findings of the trial judge. As the Court of Appeal stated in Radcliffe, findings of credibility are owed deference.

Evidence Not Entered At Trial

[20] During cross-examination of the complainant’s mother concerning disclosure of the allegations to her by the complainant, there was the following exchange:

Q: Okay. It’s possible, then, you’re kind of diagnosing the situation. You see something’s off and you say to her, “has he been touching your privates?” That’s kind of the way it could have unfolded that day? A: From what I remember, in the car ride I just asked her if there was anything wrong. I never mentioned her privates. I said, “you know you can tell Mom.” I may have – I may have mentioned privates but I think it was after the fact and it was, “where – like, what do you mean by your privates?”

[21] Defence counsel then played that portion of her video statement between 1:53 and 2:48, in which she says she said to her daughter: “Has he been touching you? You know nobody is to be touching your privates.” In subsequent questioning at trial she testified that she remembered saying that, that she was being honest, and it would have been an accurate reflection of her recollection at that time.

[22] This evidence had a potentially twofold effect: (1) It was an inconsistency in the mother’s evidence that might lead one to question her credibility; and (2) Having effectively adopted the truth of the statement, it may indicate that she put certain words to the complainant prior to her disclosure of the allegations.

[23] At the conclusion of his cross-examination, defence counsel said: “Okay. I have nothing else for you, ma’am, thank you very much; and I’ll file the DVD statement, Your Honour.” It was made exhibit #3.

[24] In the Crown’s closing arguments, he said the following:

My friend has indicated that there should be some concern with respect to the evidence of D.C. as the portion of her statement that was played to her yesterday on the stand suggests that she may have been the first one to mention the words private parts when she was responding to her daughter’s change in behavior and quietness as they were driving to Nana’s house on July the 18th, 2016, but I ask Your Honour to watch the entirety of that portion that was played by Mr. Venturi from 1:53 onwards….

[25] In the decision of the trial judge, at page 23 of the transcript, he says the following:

Later on, however, in that same video, once she had calmed down and stopped crying, was asked to recount the disclosure to Officer Mullens. She again described J. being quite upset and withdrawn, her asking if everything was okay, J. saying no, but that she’d get mad if she disclosed. However, upon being assured by her mother that she would not, then asked her mom if she remembered the “bum slapping” concerns. Once that was acknowledged, she asked if there was anything else, and that J.’s the one who then first described how he had touched the privates. That sequence was completely consistent with her evidence given during her testimony.

[26] The appellant argues that in the sequence of the video put to the witness during her cross-examination there was no reference to that portion of the video commented upon by the trial judge and accordingly he had to have reviewed the balance of the video statement. He says it was not evidence at trial and it was not proper for the judge to consider it.

[27] It is not clear to me why the video statement of the mother was tendered as or made an exhibit at trial. With respect to the inconsistency of concern to defence counsel the witness acknowledged having said something different in the video statement and she adopted the earlier statement as honest and truthful. There was no reason to make the video an exhibit. However, defence counsel tendered the entire video as evidence and asked that it be made an exhibit. The Crown did not object. It was accepted into evidence in its entirety. Once in evidence it was not improper for the judge to have viewed it in its entirety. He did not use it for any improper or impermissible purpose.

[28] Even if the trial judge’s consideration of the evidence amounted to a misapprehension of the evidence, the appellant must also establish that the misapprehension was material to the reasoning of the judge and played an essential part not just in the narrative of the judgment but in the reasoning process resulting in his conviction. See R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. In this case, the judge used the video to overcome an inconsistency in the witness’s evidence that may have affected her credibility. However, this case did not rise or fall on the credibility of the complainant’s mother, whose evidence was largely narrative in nature. This case was about the credibility and reliability of the evidence given by the complainant and the appellant. The evidence said to have been improperly considered by the trial judge neither enhanced the evidence of the complainant nor detracted from the evidence of the appellant. It was certainly not an essential part of the reasoning process leading to the appellant’s conviction.

Assessment of Credibility without Considering Reliability

[29] The value of a witness’s evidence is to be assessed having regard to its credibility and reliability. The appellant argues that the trial judge became caught up in the apparent credibility of the complainant and failed to assess the reliability of her evidence.

[30] The assessment of a witness’s credibility involves consideration the witness’s willingness to speak the truth as the witness believes it to be.

[31] The assessment of a witness’s reliability involves consideration of the dependability of that evidence based upon the witness’s ability to accurately observe, recall and recount the events at issue.

[32] It is clear the trial judge reviewed the complainant’s evidence with an eye to both credibility and reliability. He specifically considered the plausibility of her evidence, the corroboration of much of her evidence where it would be expected, the internal consistency of her evidence and the detailed and precise descriptions she was able to offer. All these factors are hallmarks of reliable evidence. He did not need to use the word “reliability” to make his analysis complete.

Impermissible Inference Drawn from Appellant’s Conduct

[33] The appellant and the complainant’s mother had been close friends. At the time of the allegations, she was relying upon him to babysit the complainant and together they would all regularly go for dinner at the end of the day. All of the evidence spoke to a very close and friendly relationship. Close enough that the complainant referred to the appellant as “Uncle W.”.

[34] When disclosure of these allegations was made by the complainant, her mother abruptly stopped all communication with the appellant. Where before the appellant had babysat the complainant on four afternoons each week, he now babysat her not at all. Where before the three of them would regularly socialize and go out to dinner, there was no longer any contact. Where before the appellant and the complainant’s mother would correspond by text and on Facebook, the complainant’s mother now did not respond to his messages.

[35] The appellant was questioned by his own lawyer about communication having stopped and his ultimately learning about the allegations when the police came to his door some weeks later:

Q: Okay, ultimately did you come to learn about why D.C. stopped communicating with you and why you stopped watching J.? A: When the police officers showed up at my door. Q: that would have been several weeks after— A: Yes. Q: --you stopped watching J., right? A: Yes. Q: Did it strike you as odd at all? A: I didn’t even know what was going on. I didn’t know why she didn’t bring her back no more. All I remember is the text saying that she sent me stating that her mom was going to be taking her from now on and that’s what she told me last. Q: In terms of when you were arrested, can you describe for me your reaction to being arrested? A: I was shocked. I didn’t even know what was going on until the officer told me what was going on.

[36] In the context of analyzing the credibility of the appellant, the trial judge examined the plausibility of the appellant’s evidence that he was shocked or taken aback when he was arrested:

He testified he hadn’t seen or heard from them since the date in question. Nearly three weeks passed until he was arrested on August the 16th and he claims he was shocked and taken aback because he had no idea what was going on. The fact that he would have made no effort whatsoever to find out what in the world was happening in this case, in light of the very close relationship they’d had for so long, again is an affront to common sense and experience in human affairs, unless, of course, he knew full well what was going on.

[37] The appellant says the trial judge erred by rejecting the appellant’s evidence because he did not “follow up” with the complainant’s mother after the allegations were made. He argues the judge erred in finding that this is not how a reasonable person would react, and in doing so, drew an impermissible inference on the way humans react to certain situations. He says it was impermissible for the trial judge to even partially discredit the appellant for that reason.

[38] In my view, this ground of appeal is misguided. The trial judge did not find him less credible because he did not make inquiries of the mother. He drew an inference in the particular circumstances of this case that the appellant’s failure to make inquiries of the mother indicated an awareness that something was wrong and that the visit by the police would therefore not have been a shock to him. That is an inference that was available to the trial judge on the specific evidence led in this case.

Appellant’s Evidence re Motive of Complainant

[39] The appellant gave a statement to the police. In that statement he, without prompting, gave two explanations of why she may have made these allegations. The first was that the complainant must have overheard him complaining to a friend that he was having to pay for treats for her out of his own pocket. The second was that something had “gone south” between he and the complainant’s mother. When he testified at trial, he resiled from both explanations.

[40] The trial judge expressly recognized that the appellant cannot be expected to explain why a witness comes forward and says what they say, nor should he be expected or required to provide a motive for a complainant to misrepresent the truth. He was careful not to shift that burden to the appellant and properly considered the evidence as an inconsistency detracting from the appellant’s credibility. He told the police one thing. He told the court something different. It is an inconsistency that the trial judge was entitled to consider. In addition, the trial judge noted that when being cross-examined on this subject the appellant became angered and evasive. The transcript reveals that he was, indeed, evasive:

A: It—it has nothing to do with this. The conflict is no one’s business. Our conflicts were our conflicts. We had problems and that has nothing to do with you.” Q: When you talk about, “things go south with me and her”, you still haven’t told me— A: It could have been other problems that we had. Q: Okay; and those were— A: I’m not mentioning those. It has nothing to do with this. Q: Sure. Sir, you said those words, “things go south with me and her,” and you’ve said to us already that the conflict that you had with D.C. has nothing to do with this. Right? A: Exactly. Q: Then why did you tell— A: I don’t know what the conflict—I don’t remember what the conflict was, to be honest. Q: Now you don’t remember what the conflict was? A: I don’t remember what the conflict was. No, I don’t.

[41] There was inconsistency in the appellant’s testimony. He was evasive with respect to this line of questioning. The trial judge was entitled to consider these factors when assessing his credibility.

Rejection of the Appellant’s Evidence

[42] The appellant contends that the trial judge’s credibility and reliability assessments were conclusory in nature.

[43] As noted above, the trial judge’s assessment of the credibility and reliability of the complainant was thorough and grounded in the evidence at trial.

[44] Insofar as the appellant is concerned, his denials did not raise a reasonable doubt. His evidence was essentially disbelieved for the following reasons, articulated by the trial judge:

1. His evidence concerning the “bum slapping’ incident did not accord with common sense and human experience, was implausible and defied credibility.
2. His statement that he was shocked when the police showed up was not plausible.
3. Inconsistencies between his evidence at trial and the statement he gave to police and inconsistencies in the evidence given at trial.
4. His evasiveness when testifying.

[45] All were conclusions available to the trial judge on the evidence. All were capable of rendering the appellant’s evidence unworthy of belief. The trial judge did not make conclusory assessments of credibility and reliability.

Incorrect Application of the Burden of Proof and Presumption of Innocence

[46] The appellant submits that rather than consider the evidence as a whole to determine whether there was a reasonable doubt on the totality of the evidence, the trial judge merely rejected the appellant’s evidence and concluded that it did not raise a reasonable doubt.

[47] The trial judge correctly identified that this case was not to be decided on the basis of which set of facts the court believed or preferred, but whether the Crown had proved its case beyond a reasonable doubt. He correctly instructed himself on the principles of assessing reasonable doubt when the credibility of the complainant and accused are at issue as set out in R. v. W.(D.), [1991] 1 SCR 742. He reminded himself that the accused need only raise a reasonable doubt through defence evidence or by challenging the Crown’ case. He correctly stated that he must evaluate the evidence of the accused in the context of all of the evidence adduced at trial.

[48] There is nothing in his reasons to suggest that the trial judge incorrectly applied the burden of proof or the presumption of innocence.

Conclusion

[49] The trial judge made findings of credibility and reliability he was entitled to make. Those findings are entitled to deference. The appeal must be dismissed.

The Honourable Mr. Justice R.D. Gordon Released: March 27, 2019