Court File and Parties

COURT FILE NO.: 33/18 DATE: 20190328 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Androy Spring

BEFORE: Molloy J.

COUNSEL: Ernest J. Guiste, for the Appellant (Defendant) Cara Sweeny, for the Crown (Respondent)

HEARD: March 25, 2019

Endorsement

Introduction

[1] Androy Spring was convicted of sexual assault after a three-day trial before Shandler J. in the Ontario Court of Justice. The trial proceeded on March 27, June 29, and August 31, 2017. Shandler J. delivered oral reasons for judgment on November 17, 2017 finding Mr. Spring guilty as charged. On January 19, 2018, Mr. Spring was sentenced to 5 months and 15 days in custody to be followed by 12 months’ probation. Mr. Spring appeals from his conviction. As of the date of the hearing before me, he had already served his time and has been deported back to his home country, St. Vincent.

[2] Mr. Spring testified at trial, denying the allegations in their entirety and asserting that at the time of the alleged assault on November 3, 2015, he was at a reporting centre of the Canada Border Services Agency, in compliance with a court order that he report monthly on the first Tuesday of every month. He testified that he reported to the centre that day at “8:00, 8:30, 8:15-ish.” [1]

Grounds of Appeal

[3] Counsel for the appellant, Mr. Guiste, argues that the trial judge misapplied the principles of R. v. W.(D) [2] by failing to address whether the alibi evidence of the accused gave rise to a reasonable doubt and by failing to consider the totality of the evidence at the third stage of the W.D analysis. Instead, he submits, the trial judge merely concluded that because he disbelieved the accused, he believed the complainant.

[4] In his factum and in oral argument, Mr. Guiste asserted that the complainant gave conflicting evidence as to the time of the alleged assault and that the trial judge failed to properly address this issue. According to counsel’s submissions, the complainant said in chief that the assault occurred “immediately” before she sent a text message to her cousin saying they needed to talk and that she sent the text message “three minutes” after the assault. It was common ground at trial that the first of the text messages was sent at 11:51 a.m. [3] The cousin to whom the text was sent was also the complainant’s roommate and the girlfriend of the accused. Mr. Guiste further asserted that the complainant gave contradictory evidence in cross-examination, stating that the incident took place between 8:30 and 9:00 a.m. that morning. He submits that the trial judge erred in failing to take that discrepancy into account, and in failing to take into account the complainant’s admission that the passage of time between the occurrence and the trial (19 months) adversely affected her ability to recall specifics. In particular, Mr. Guiste argues that the trial judge erred in finding that the alibi evidence did not give rise to a reasonable doubt in all of the circumstances.

The W. (D.) Analysis

[5] This ground of appeal fails.

[6] In his Reasons for Judgment, the trial judge recognized the applicability of W.(D.) and correctly set out the legal principles that apply. He clearly understood the elements of the W.(D.) analysis and that the burden of proof remained throughout on the Crown to prove the case beyond a reasonable doubt. [4] He then proceeded to analyze the evidence in the case applying those principles.

[7] First, the trial judge dealt with the evidence of Mr. Spring. He found Mr. Spring to be neither reliable nor credible. He gave extensive reasons for why he rejected Mr. Spring’s evidence, all of which findings are fully supported by the evidence. Those reasons included pointing to situations where Mr. Spring was uncertain in his evidence, situations in which he contradicted himself, and situations where his evidence was shown to be untrue based on other evidence the trial judge accepted as credible and reliable (e.g. the time he reported at the immigration center and whether he spent the night of November 2 at the complainant’s apartment). The trial judge concluded that the defendant’s asserted alibi did not cause him to have any doubt that he was there on the morning of the alleged assault. [5]

[8] The trial judge then reviewed the evidence presented by the Crown, including the testimony of the complainant and of her cousin/roommate. He gave detailed reasons for why he found the testimony of the complainant to be both credible and reliable. He also gave reasons for rejecting suggestions that the complainant had any reason to fabricate her evidence or any prior animus towards the accused. He acknowledged, but accepted the explanation for, the delay in reporting the assault to the police. He noted the detailed nature of the complainant’s recollection of events.

[9] Mr. Guiste asserted in his factum, and reiterated in argument, that the trial judge erred by failing to take into account that the complainant “candidly conceded that the passage of 19 months from the date of the alleged occurrence to trial adversely impacted her ability to recall some specifics.” At trial, Mr. Guiste did ask the complainant in cross-examination whether the passage of 19 months caused her to have any trouble in terms of remembering the specifics of what happened. She responded, “I won’t remember everything because it’s like 19 months ago, right.” He then repeated, “So has that affected your ability to recall specifics?” and she answered “Yes.” [6] That was the full extent of any reference to a difficulty in remembering. This is not one of those cases in which a witness keeps answering that she cannot remember the events. Nobody could truthfully answer that the passage of 19 months would have no effect whatsoever on the ability to recall details. However, the complainant did not in fact struggle to remember details, and the trial judge did not fail to deal with her memory of the events in his reasons. On the contrary, he commented favourably on the extent of her detailed recollection of the events. [7]

[10] Having reviewed the whole of the evidence, the trial judge found that the Crown had discharged its onus of proving the guilt of the accused beyond a reasonable doubt. In the course of his reasons, the trial judge made findings of credibility that were supported by the evidence and are entitled to deference. [8] He made no error of law and all of his findings of fact were supported by the evidence before him.

[11] I find no error in the trial judge’s application of the W.(D.) principles. The consideration of the alibi defence was part of that analysis, but because of the emphasis put on it in argument, I will deal with that aspect of the decision specifically.

The Alibi Evidence

[12] Mr. Spring testified that he attended at the immigration reporting centre somewhere between 8:00 and 8:30 a.m. on Tuesday, November 3, 2017. The defence also called evidence from two officials with the immigration reporting centre demonstrating that Mr. Spring did in fact report on November 3, but that it was at 11:52 a.m. It is clear from the evidence that the information from the reporting centre is accurate and that Mr. Spring did not report earlier that morning – it was close to noon when he arrived there.

[13] Mr. Guiste was incorrect in his submission that the complainant gave two conflicting times as to when the assault occurred. The complainant said in her examination in chief that she woke up at about 8:35 a.m. and had a shower. She was planning to go out with a friend at around 9:00 or 10:00 a.m. She said that after she got out of the shower, she was in her bedroom with a bath towel wrapped around her when Mr. Spring came into her room and proceeded to assault her. [9] The complainant gave the same evidence in cross-examination as to the timing – that the assault occurred between 8:30 and 9:00 in the morning. [10]

[14] In her examination in chief, the complainant said that after a while, she was able to get away from Mr. Spring and locked herself in the bathroom. He pounded on the door for about two or three minutes. She said that after about 5 or 10 minutes, she came out of the bathroom because she heard the front door lock and knew that he had gone. [11] She said the whole interaction took about 20 to 25 minutes. [12]

[15] The only evidence given by the complainant about the timing of her text messages was in her examination in chief, when she said the following:

Q. Okay. So now you’re in the bathroom, and he’s knocking, okay, what happens, what is he saying? A. He's like, “[name of complainant], let me in. [name of complainant], let me in.” I'm like, “Why? Get out of here. What are you doing in my house by the way?” You understand? And I didn’t get off the - I was there for a while. I don’t, I don’t know maybe two, three minutes, I don’t know what he did, I don’t know what happened, but after I let myself inside the bathroom and there was like 5, 10 minutes later, I didn’t know he had no on - like, probably he left because I heard when the front door lock, I came out of the bathroom and I grabbed my phone and I text Trishelle which is my cousin. Q. When you leave your room to go to the bathroom, what are you - what, if anything, are you wearing? A. Nothing. Q. Okay. And when you exit the bathroom to go get your phone, what, if anything, are you wearing? A. Nothing. Q. Okay. And you get your phone, and what do you do? You text your cousin? A. Yeah. Q. Do you know what you text her? A. I texted her, I said, “Hey, I need to talk to you.” Q. Okay.

[16] Mr. Guiste submits that this testimony amounts to a statement by the complainant that the assault occurred “three minutes” before or “immediately” before the text messages were sent. Since Mr. Spring has an alibi for the period at around noon when the text messages were sent, but not for 8:30 or 9:00 a.m. when the complainant said she was assaulted, this is a critical point.

[17] Notwithstanding the submissions of Mr. Guiste, it is clear that the words “three minutes” and “immediately” were never uttered by the complainant in relation to the text messages. In fact, she never put a specific time to the text messages and the messages themselves were never showed to her, in chief or in cross-examination.

[18] The trial judge dealt at some length with this issue in his reasons. First of all, he rejected the evidence of Mr. Spring as being neither reliable nor credible. It is clear that he did not report to the immigration centre at 8:00 a.m. as he maintained in his evidence. The trial judge also accepted the evidence of the complainant, supported by the evidence of her roommate, that Mr. Spring slept over in their apartment on the night of November 2 and into the morning of November 3, rejecting Mr. Spring’s inconsistent and somewhat contradictory evidence about where he stayed that night. The trial judge accepted the evidence of immigration officials that Mr. Spring reported at 11:52 a.m. and found that he had ample time to get from the complainant’s apartment to the immigration centre within the time from when the complainant said the assault happened and the time he reported.

[19] Next the trial judge rejected the defence submission that the complainant’s evidence was contradictory as to when the assault occurred. After quoting the excerpt I have set out above in paragraph 8, the trial judge held:

That was her evidence on this point. She was not examined further on the issue, either in chief or in cross-examination. …If [the complainant] had texted her cousin immediately after the alleged assault, as submitted by the defence, there would be an obvious concern, but that was not [the complainant’s] evidence, rather, it was simply the next notable event in her narrative, and she was never asked questions specifically in relation to the timing of the text.

[20] The trial judge was in a unique position to make this factual determination as he could hear and see the complainant give her answer and would be better able to determine the context. The complainant was not challenged in cross-examination as to the timing of the assault or the timing of the texts to her cousin in relation to when the assault occurred. This was notwithstanding the fact that counsel had prior disclosure of the texts themselves which are date and time stamped. The trial judge found as a fact that the assault occurred sometime around before 10:00 a.m. that morning. This was a finding of fact that was entirely open to the trial judge on the evidence before him. There was no palpable or overriding error in the finding of fact made by the trial judge that would justify appellate intervention. [13]

[21] Accordingly, this ground of appeal also fails.

Conclusion

[22] In the result, the appeal is dismissed.

MOLLOY J. Date: March 28, 2019

Footnotes

[1] Transcript of Proceedings, June 29, 2017, page 68, line 13. [2] R. v. W.(D)., [1991] 1 S.C.R. 742. [3] Exhibit 1 at trial. [4] Reasons for Judgment, at p. 3. [5] Ibid, pp. 3-5. [6] Transcript of Proceedings, June 29, pages 17-18. [7] Reasons for Judgment, pages 7-9. [8] R. v. R.A., 2017 ONCA 714 at paras. 44-46; R. v. P.R., [2012] 1 S.C.R. 746 at para. 10. [9] Transcript of proceedings, March 27, 2017 at pages 1-11. [10] Transcript of proceedings, June 29, 2017 at page 27, line 20. [11] Transcript of proceedings, March 27, 2017 at page 30. [12] Transcript of proceedings, March 27, 2017 at page 45, line 9. [13] Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.