Court File and Parties
COURT FILE NO.: CR-18-10000046-AP DATE: 20190524 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – MANUEL FRANCO Appellant
Counsel: S. Clarke, for the Respondent A. Ross, for the Appellant
HEARD: February 14, 2019.
REASONS FOR JUDGMENT
On appeal from the convictions entered on May 1, 2018 by the Honourable Justice R. Libman of the Ontario Court of Justice.
SCHRECK J.:
[1] Manuel Franco owned a cleaning company where he employed several women. One of his employees alleged that he touched her inappropriately on numerous occasions over a period of several months. As a result, Mr. Franco was charged with five counts of sexual assault and three counts of assault.
[2] The Crown elected to proceed summarily and Mr. Franco’s trial took place in the Ontario Court of Justice. In his reasons for judgment, the trial judge expressed concerns about certain aspects of the complainant’s credibility. He rejected some portions of her evidence and accepted others. In the result, the appellant was found guilty on two counts of sexual assault and two counts of assault. The remaining charges were dismissed.
[3] Mr. Franco appeals his convictions. He submits that the trial judge failed to reconcile his adverse findings respecting the complainant’s credibility with his acceptance of some aspects of her testimony, that the verdicts were unreasonable and that the trial judge’s reasons were insufficient. He also submits that the trial judge erred in relying on a prior consistent statement.
[4] The following reasons explain why I would dismiss the appeal.
I. EVIDENCE
A. The Appellant and the Complainant
[5] The appellant, who was 68 years old at the time of trial, operated a cleaning business where he employed primarily Portuguese women. In September 2015, the complainant, M.A., who was in her late 20s and had no legal status in Canada, began to work for him. She and a number of other women would clean gyms operated by Goodlife.
[6] M.A. testified that the appellant would pick her and the other cleaners up in the evening at around 9:30 p.m. and take them to the gym, where they would work until about 3:00 or 4:00 a.m. According to M.A., the appellant’s wife would sometimes work at the same location, but was not there for every shift.
[7] M.A. testified that beginning in March 2016, the appellant began to touch her inappropriately on numerous occasions. She described a number of incidents, each of which formed the basis of a separate count. The appellant was found guilty on some and not guilty on others.
B. The Counts
(i) Count 1 (Not Guilty)
[8] According to M.A., on a day in March 2016, she, the appellant and the appellant’s wife were working together. At one point, they went up some stairs leading from a garage with the appellant’s wife going first, followed by M.A. and then the appellant. As they went up, the appellant grabbed M.A.’s buttocks and squeezed them. She was shocked and turned around to ask him why he had done that. He denied having done anything.
(ii) Count 2 (Not Guilty)
[9] M.A. stopped working for the appellant after March. However, she returned in May because she needed the money. M.A. described an incident in May where she was vacuuming in the gym when the appellant approached her and turned off the vacuum cleaner. He told her to go into a room which she described as a music studio. Once in the room, the appellant put a number of exercise mats on top of a stage and told her to sit on them. She refused. He then went to turn off the lights, at which point she tried to run away but tripped on something and fell. The appellant got on top of her and tried to kiss her and pull her pants off. She struck him with an object and was able to get away. M.A. said that she screamed, but nobody else who was working there heard her.
[10] After M.A. left the studio, she sat down and began crying. The appellant approached her and told her that he had not had sex with his wife for 13 years and that he “needed it”. M.A. told him that it was not her business how often he had sex with his wife. He did not touch her at that time.
[11] M.A. did not tell anybody about this or any other incident because the appellant had threatened to call the immigration authorities and have her deported if she did so.
(iii) Count 3 (Guilty)
[12] According to M.A., when she first resumed working for the appellant, she told him that she did not want to be touched and he said that he would not. However, he began to frequently touch her on her buttocks at work. He did this while other employees were not present or working elsewhere. When she told him to stop, he would threaten to report her to the immigration authorities and have her deported, a threat she believed he would carry out. According to M.A., the appellant would touch her every day on every shift and at every opportunity. She estimated that in the month of May 2016, he touched her 30 to 50 times.
(iv) Count 4 (Not Guilty)
[13] M.A. testified that at some time in May or June 2016, she was cleaning a room she described as a doctor’s office and the appellant told her to pick up a pile of papers that were on the floor. When she bent down to do so, she felt the appellant’s hands on her and he maneuvered her onto a massage table. He got on top of her and moved his hands along her body, touching her breasts. He tried to remove her pants. M.A. moved around to stop him and screamed. The appellant then lost his balance and M.A. was able to get up from the table. However, she fell over because her pants had been lowered. At this point, they were interrupted when a customer of the gym who wanted to enter began knocking on the window.
(v) Count 5 (Guilty)
[14] M.A. testified that at some time in June, she was cleaning a bathroom when the appellant, who was walking by, squeezed her buttocks.
(vi) Count 6 (Not Guilty)
[15] On a date in June, M.A. was leaning over while working. She testified that the appellant approached her from behind, put his hand on her neck and pushed her down. He pulled her pants down to her knees. M.A. told him to stop and then hit him with a water bottle.
(vii) Counts 7 and 8 (Guilty)
[16] It appears from the Crown’s submissions that Counts 7 and 8 relate to M.A.’s testimony that the appellant touched her each time she worked in June and July 2016. Crown counsel’s submission with respect to these counts were as follows:
With respect to seven and eight, Your Honour, she did give evidence and this is all that I can rely on for that is that he touched her each and every shift, her words were, each and every shift, all the time, every opportunity he had. It’s also – so with respect to the remaining counts, I cannot particularize those any further for seven and eight, but in my submission a conviction could rest given the frequency and the routine nature of the assaults that she testified to.
C. The Letter
[17] The complainant stopped working for the appellant in August 2016. At around the same time, she wrote an anonymous letter to the manager of Goodlife Fitness in which she outlined a number of allegations of inappropriate touching by the appellant. The complainant testified that she had prepared the letter with the assistance of an immigration agency. Soon after, she reported her allegations to the police.
D. Defence Evidence
[18] The appellant’s wife testified that her husband was never alone with any of his employees. Two other employees also testified to the same effect.
[19] Mrs. Franco also testified that she and her husband loaned money to the complainant at her request on more than one occasion. In total, they had loaned her $4,250. None of the money was ever repaid. The complainant denied that the Francos had loaned her money.
[20] The appellant did not testify.
II. THE TRIAL JUDGE’S REASONS
A. The Defence Evidence
[21] The trial judge began his analysis by considering the evidence of the defence witnesses, whom he noted “bore a considerable hostility to the complainant” (at p. 44). He noted that Mrs. Franco was “affiliated with her husband” and did not accept her evidence that the appellant was never alone with the complainant. However, he accepted Mrs. Franco’s evidence that she and her husband had loaned money to the complainant and rejected the complainant’s denial of this (pp. 44-45).
B. The Complainant’s Evidence
[22] With respect to the evidence of the complainant, the trial judge stated (at p. 46):
I have cautioned myself that the complainant has, in turn, some obvious animus to the accused and to the accused’s business. As Mr. Costa pointed out, her initial complaints and steps were to bring his business to a ruin, not to immediately complain to the authorities. When she complained to the authorities, in turn, it also included episodes of being followed by other men not associated with Mr. Franco. The complainant, in my respectful view, sought to present a picture of herself as being continually and constantly molested by Mr. Franco. I’m of the respectful view, as I will indicate, that some of her assertions are preposterous in terms of scope and time. I cannot accept her testimony that in the month of May when she returned to work that she was assaulted as many as twice a day in conjunction with her telling him, as she explained, for the very first time in March of being touched in the garage, never to do it again. I have cautioned myself that this complainant does have a financial motivation as well, having accepted money from the Franco family, which she stated that in fact, she never did.
[23] The trial judge did accept that there were occasions when the complainant and the appellant were alone together, that he made inappropriate sexual remarks to her and that he was sexually attracted to her (p. 47).
C. The Counts
(i) Count 1 (Not Guilty)
[24] With respect to Count 1, The trial judge stated (at pp. 47-48):
With respect, I am unable to accept this testimony, by the complainant. It will be recalled that I have heard conflicting evidence as to, to begin, there was any such garage location at the particular location. Moreover, in her statement to the authorities, as evidenced in the cross-examination, the complainant made it clear that the first time she was actually groped was at the gym, while cleaning treadmills. This was part of her statement to the authorities. When I consider that I have heard evidence that there is not an underground parking location as described … I am unable to find that this evidence would be safe to act upon….
(ii) Count 2 (Not Guilty)
[25] The trial judge was also not satisfied that Count 2 had been proven (at pp. 48-49):
It is clear to me that the complainant was mindful of the fact that the defendant appeared to have a sexual interest in her. Her testimony that already being mindful of this at a time when according to her, in the month of March, he had made earlier advances to her, she would have stayed on a mat when he went to turn off the lights and only tried to leave the area afterward, leaves me in a state of doubt that any such incident would have occurred that way.
(iii) Count 3 (Guilty)
[26] The trial judge was satisfied that Count 3 had been proven (at pp.49-50):
Her description of being touched whenever Mr. Franco had an opportunity to do so has the ring of truth to it, in my respectful view. The brief manner in which she states that he would attempt to grab her, almost always in the buttocks area, is consistent with the position that she found herself working in and was vulnerable to being touched in this way.
I accept the defence evidence that the other cleaners were not far away, but the description of being grabbed or touched in the buttocks, momentarily, in the manner that the complainant has testified, I find occurred beyond a reasonable doubt. I have cautioned myself as to her embellishing that it occurred as much as twice a day, 50 times in the month of May, but I certainly accept that during this time period, on more than one occasion, she was sexually assaulted in the manner that she has described.
(iv) Count 4 (Not Guilty)
[27] With respect to Count 4, the trial judge stated (at p. 51):
I am unable to accept the testimony given by the complainant as to the circumstances of this offence. It will be recalled that she had both testified and put in her letter that she would take steps not to be found in an isolated area with Mr. Franco. I cannot accept her description as to what occurred in this particular area; namely, that he pushed her over onto the massage board, was able to attempt to attack her in the way that she says occurred. Accordingly, while there may well have been incidents between the two of them in the doctor’s office, what is said to have been the subject of count four, I find that I have a reasonable doubt.
(v) Count 5 (Guilty)
[28] With respect to Count 5, the trial judge stated (at p. 51):
I accept her evidence in this regard. It is clear to me, and I so find, that Mr. Franco was sexually attracted to the complainant. He took advantage of those times where for brief moments he had an opportunity to touch her in an appropriate way.
(vi) Count 6 (Not Guilty)
[29] The trial judge was not satisfied that Count 6 had been proven for reasons similar to those he gave with respect to Counts 2 and 4 (at p. 52):
Again, I find myself unable to accept the testimony of the complainant in this regard. It would be apparent that she was well on alert to any contact with Mr. Franco and was taking active steps to prevent herself from being in any form of compromising position. I note as well that in her letter of complaint, she writes, “I try my best to avoid Mr. Manuel Franco while I am cleaning. However, at every chance he has, he grabs and squeezes my buttocks.” There was no mention of the fall from the pillar in this particular letter to the employer, at least, not in the manner in which the complainant described in her testimony to me. I find myself having a doubt, therefore, that she was assaulted, sexually, in the way that she has alleged.
(vii) Counts 7 and 8 (Guilty)
[30] With respect to Counts 7 and 8, the trial judge stated (at p. 53):
I have earlier indicated that I consider her testimony that she was receiving unwanted attention from Mr. Franco has the ring of truth to it. I am satisfied beyond a reasonable doubt that during the months of June and July, he applied unwanted attention in the form of force to her. This amounting to contact with her buttocks area in particular. At its heart, the allegations of this complainant, which I accept, is that the accused took advantage of her being in vulnerable positions while cleaning.
III. ANALYSIS
A. Failure to Reconcile Findings
(i) The Appellant’s Argument
[31] The appellant submits that the trial judge erred by failing to reconcile his adverse credibility findings with respect to the complainant with his acceptance of her testimony on Counts 3, 5, 7 and 8. The trial judge found that the complainant bore an animus against the appellant and had a financial motive to falsely implicate him. He also found that she had exaggerated her testimony and rejected her evidence on a number of points, including her denial of having received a loan from the appellant. The appellant submits that having made those findings, it was incumbent on the trial judge to reconcile them with his acceptance of other portions of the complainant’s testimony.
[32] The appellant relies on the following passages from R. v. Howe (2005), 2005 ONCA 253, 192 C.C.C. (3d) 480, at paras. 57 and 64:
The trial judge’s recognition that the defence evidence could establish a motive to falsely accuse the appellant, and the trial judge’s acceptance of that evidence, lends strong credence to at least an implied finding that Ms. A.K. had a motive to falsely accuse the appellant. The trial judge’s failure to recognize and reconcile the apparent inconsistency between this finding and his earlier finding that she had no motive to fabricate lead me to conclude that the trial judge’s ultimate assessment of Ms. A.K.'s credibility was made without regard to the implicit finding that she had a motive to falsely accuse the appellant. This motive was potentially a significant consideration in assessing her credibility. The failure to factor that motive into the trial judge’s credibility assessment resulted in a miscarriage of justice.
The essential problem with this part of the trial judge’s reasons is that he failed to factor into his assessment of Ms. A.K.’s credibility his finding that she deliberately lied on important matters in the course of testifying in reply. Her denial, which the trial judge clearly rejected, was much more than a mere reluctance to admit matters that could hurt her case. Having found that significant parts of Ms. A.K.’s evidence were untrue, the trial judge had to factor that finding into the assessment of her overall credibility and particularly her credibility as it applied to the counts for which there was no confirmatory evidence. In my view, the trial judge failed to take Ms. A.K.’s deliberately false testimony into account in making his ultimate credibility assessments.
[33] In support of his position, the appellant submits that the trial judge failed to explain why he accepted some portions of the complainant’s evidence despite his adverse findings with respect to others. The only reasons the trial judge gave for accepting those portions of the complainant’s testimony are that they had “the ring of truth” and that the appellant had the opportunity to grab the complainant’s buttocks in the manner she alleged.
(ii) The Trial Judge’s Reasons
[34] While there is some force to the appellant’s argument, I am ultimately not persuaded that the trial judge erred in the manner alleged. The trial judge rejected the defence evidence that the appellant had no opportunity to commit the offences and there is no suggestion that it was not open to him to do so. Once he did so, the complainant’s account was essentially uncontradicted. Notwithstanding this, the trial judge was alive to the frailties in her testimony and cautioned himself accordingly. Wherever the complainant’s description of events was implausible, contradicted by other evidence or marked by inconsistencies, he rejected it. Where it was uncontradicted and plausible, he accepted it. In my view, it was open to the trial judge to take this approach. It is well established that a trier of fact’s assessment of credibility is to be afforded significant deference on appeal: Howe, at para. 46; R. v. Cresswell, 2009 ONCA 95, at para.14.
[35] In my view, Howe is distinguishable. The trial judge did not make inconsistent findings with respect to the complainant’s motive to fabricate, as was the case in Howe. Furthermore, unlike in Howe, the trial judge did factor the weaknesses in the complainant’s evidence into his analysis. In his reasons, he stated (at p. 46):
I have cautioned myself that the complainant has, in turn, some obvious animus to the accused and to the accused’s business.
I have cautioned myself that this complainant does have a financial motivation as well, having accepted money from the Franco family, which she states that in fact, she never did.
Later, he stated (at p. 50):
I have cautioned myself as to her embellishing that it occurred as much as twice a day, 50 times in the month of May ….
It is clear from this that the trial judge took the frailties in the complainant’s evidence into account when assessing her credibility.
(iii) The “Ring of Truth”
[36] The term “ring of truth” is frequently used by judges. In my respectful view, it is a vague term that is best avoided. To say that a witness is or is not credible because his or her evidence does or does not have “the ring of truth” does not provide any meaningful explanation for the conclusion. It is the equivalent of saying that a witness is credible because his or her evidence seems to be true. Absent some further explanation, it amounts to at best a reliance on demeanour and at worst, circular reasoning: R. v. C.W., 2018 ONSC 7730, at para. 35; R. v. M.V., 2018 ONSC 6501, at para. 67; R. v. C.C., 2018 ONSC 1262, at para. 62; Hon. L. Smith, “The Ring of Truth, the Clang of Lies: Assessing Credibility in the Courtroom” (2012), 63 U.N.B.L.J. 10.
[37] In this case, however, as noted earlier, when the reasons are read as a whole, it is clear that the trial judge accepted the evidence of the complainant where it was uncontradicted and not compromised by inconsistencies and implausibilities. While it may have been preferable for the trial judge to provide a more explicit explanation for why he accepted some aspects of the complainant’s testimony and not others, in the circumstances of this case I cannot say that his failure to do so amounted to error warranting appellate intervention.
(iv) Evidence of Opportunity
[38] The appellant is, of course, correct that evidence of opportunity, by itself, is insufficient to establish guilt beyond a reasonable doubt: R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 68. However, I do not read the trial judge’s reasons as suggesting otherwise. It must be recalled that it was the defence position that the appellant had no opportunity to commit the offences because he was never alone with the complainant. The trial judge rejected that evidence. His comments respecting the appellant’s opportunity were merely responsive to the defence arguments.
B. Unreasonable Verdicts
[39] The appellant submits that the verdicts were unreasonable. His argument, in essence, is that in the face of the trial judge’s adverse findings of credibility with respect to the complainant, no reasonable trier of fact could have accepted her evidence on the counts on which there were convictions.
[40] As I understand the appellant’s argument, he is not submitting that the verdict was unreasonable in the sense described in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, that is, that there was no evidence upon which a reasonable jury, properly instructed, could convict. Rather, he is submitting that the trial judge’s findings with respect to the counts on which he convicted were “demonstrably incompatible” with his other findings about her credibility and, as a result, the verdicts can be said to be the result of “illogical or irrational reasoning”: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15-21, per Fish J., dissenting in the result; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 77-29, per Binnie J., concurring, at paras. 89-98, per Fish J., dissenting.
[41] I cannot accept the appellant’s submission. It is, of course, trite that a trier of fact can accept all, part or none of a witness’s testimony: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7. The fact that there are problems with a witness’s credibility does not mean that a trier of fact cannot accept some of the witness’s evidence. Indeed, even in the case of an “unsavoury” or “Vetrovec” witness (as described in R. v. Vetrovec, 1982 SCC 20, [1982] 1 S.C.R. 811), a trier of fact is entitled to accept the witness’s evidence even if it is not confirmed by other evidence: R. v. Zebedee (2006), 2006 ONCA 22099, 81 O.R. (3d) 583 (C.A.), at para. 89.
[42] In this case, the trial judge was alive to the problems with the complainant’s credibility. Having taken them into account, he decided to accept parts of her evidence and reject others. It was open to him to do so. It cannot be said that his conclusions were “demonstrably incompatible” or the result of “illogical or irrational reasoning.”
C. Insufficient Reasons
[43] The appellant submits that the only reason the trial judge gave for accepting the portions of the complainant’s evidence that he did was that they had the “ring of truth”. This failed to adequately explain how he reconciled his acceptance of some parts of the complainant’s evidence with his adverse findings in relation to her credibility. As a result, “the path taken by the trial judge through confused or conflicting evidence is not at all apparent”: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 46.
[44] As noted in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 24, “[t]he ‘path’ taken by the judge must be clear from the reasons read in the context of the trial. But it is not necessary that the judge describe every landmark along the way.” As explained earlier, in my view, saying that evidence has the “ring of truth” is not a helpful way of explaining why the evidence is being accepted. However, appellate intervention is not warranted simply because the trial judge could have done a better job in expressing himself: Sheppard, at para. 26; R. v. Alam, 2016 ONSC 6841, at para. 31.
[45] Ultimately, the real issue when considering the adequacy of a trial judge’s reasons is whether they are sufficient to permit meaningful and effective appellate review: Dovbush v. Mouzitchka, 2016 ONCA 381, 131 O.R. (3d) 474, at para. 23. A reading of the trial judge’s reasons as a whole demonstrates that he accepted the uncontradicted evidence of the complainant except where it was implausible or marked by inconsistencies. His reasons can be and have been reviewed on appeal. The reasons are, therefore, sufficient.
D. Prior Consistent Statements
(i) The Appellant’s Argument
[46] The appellant submits that the trial judge erroneously relied on the complainant’s prior consistent statement in her letter on two occasions. During his reasons, he stated (at pp. 49-50):
Her description of being touched whenever Mr. Franco had an opportunity to do so has the ring of truth to it, in my respectful view. The brief manner in which she states that he would attempt to grab her, almost always in the buttocks area, is consistent with the position that she found herself working in and was vulnerable to being touched in this way. She comments in her letter, “At times, when I was working in a bent down position, he would appear behind me and upon standing our bodies would touch.” I accept this testimony of the complainant. [Emphasis added].
Earlier in his reasons, the trial judge stated (at p. 45):
The complainant, it will be seen, was very much bent on, to a minimum, impacting adversely, the business dealings of the Franco family. It is not coincidental, it seems to me, that the day following the van incident on August the 12th, she attended at the Goodlife centre to tender the anonymous letter.
(ii) Legal Principles
[47] Prior consistent statements of a witness are presumptively inadmissible if tendered for their truth: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. However, this rule is subject to a number of exceptions. For example, such statements may be admissible as circumstantial evidence or as narrative: D.M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013), 17 Can. Crim. L. Rev. 181, at p. 182. Whether or not a prior consistent statement is admissible will turn on the relevance, materiality and probative value of the evidence: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 59, per Doherty J.A., concurring.
(iii) The Use Made of the Prior Consistent Statements
[48] With respect to the first portion of the trial judge’s reasons quoted above, the complainant’s letter was, of course, hearsay and not admissible for its truth. However, as the trial judge mentioned just prior to his reference to the letter, the complainant had testified to being touched by the appellant. As I read his reasons, this is the “testimony” he was referring to. There is nothing in his reasons to indicate that he viewed the complainant’s letter as somehow being confirmatory of her account. If he did rely on the letter for its truth, this was a minor error of no consequence: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 35; R. v. Pham, 2019 ONCA 338, at paras. 35-36. In this regard, I note that counsel for the appellant very fairly conceded that any misuse of the prior consistent statement would not, standing alone, justify setting aside the verdicts.
[49] With respect to the second portion, the trial judge was clearly not relying on the contents of the letter for it truth. Rather, he was referring to complainant’s conduct in writing the letter, which he viewed as evidence of the complainant’s animus against the appellant. Not only was this a proper use of the evidence, it was helpful to the appellant.
IV. DISPOSITION
[50] The appeal is dismissed. If the appellant was ordered to pay a victim fine surcharge, that order is set aside: R. v. Boudreault, 2018 SCC 58; R. v. Seguin, 2019 ONCJ 257.
Justice P.A. Schreck