Court File and Parties

Court File No.: CR-18-29-00AP Date: 2019-07-23 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Respondent And: S.V., Appellant

Counsel: Stephanie L. Venne, for the Respondent Robert Sheppard, for the Appellant

Heard: July 15, 2019.

Appeal Decision

Thomas, RSJ.:

[1] On April 17, 2018 after trial the Appellant (S.V.) was convicted by Justice N. Douglas of the Ontario Court of Justice of the offence of sexual touching contrary to s. 151 of the Criminal Code. The conviction for a related s. 271 offence was conditionally stayed.

[2] On August 8, 2018 the Appellant was sentenced to six months imprisonment to be followed by 18 months probation with additional corollary orders. The Appellant appeared with appeal counsel, Mr. Sheppard, for the hearing of this appeal and remains on bail pending appeal awaiting this decision.

[3] The Appellant argues that the appeal should be allowed and the matter returned to the Ontario Court of Justice for a new trial as errors by the trial judge impacted the reasonableness of the verdict. Those alleged errors are as follows:

1. The trial judge failed to give sufficient consideration to the inconsistencies in the evidence of the complainant at trial as compared to her video-taped statement to police (adopted at trial pursuant to s. 715.1 of the Criminal Code).
2. The trial judge applied different levels of scrutiny to the evidence of the Appellant and complainant.

Background

[4] The complainant, T.C., was an eleven-year old friend of the Appellant’s grandchildren B., (age 3) and J. (age 8). T.C.’s brother is S.C. (age 12). All of those children slept over at the Appellant’s St. Thomas house on the night of Saturday, April 8, 2017. The following morning, T.C. reported to her mother that the Appellant had touched her “private area” on the outside of her clothing and then tried to cause T.C. to touch (on the outside of his clothing) his penis. Later that same day, T.C. was interviewed by a police officer. The video recording of that interview was played and, along with a transcript of it, was entered into evidence at trial. That night, the Appellant was arrested at his home and taken to the St. Thomas Police Service station where he was interviewed. The interview was video recorded and was played and, along with the transcript of it, was entered as part of the Crown’s case at trial.

The Trial

[5] Both T.C. and the Appellant gave evidence. Their versions of events differed. T.C. said that when it was time to go to sleep the boys went to the basement and the Appellant requested that she sleep with him and B. on a pullout couch in the living room to assist him in ensuring B. did not get up and go outside during the night.

[6] It was the Appellant’s evidence that he never slept with T.C. but rather that B. went upstairs to sleep with another adult, K., who was the Appellant’s friend. B. awoke and came downstairs and found the Appellant and his friend D. D. was K.’s boyfriend. The Appellant sometime later carried B. upstairs and she slept the rest of the night in his bedroom without incident.

[7] K.’s evidence was that while she took B. to her bed she awoke during the night and found B. gone. She assumed that the Appellant had taken her to sleep with him. When she awoke, D. was in the bedroom watching a movie. It was D.’s evidence that he was awake all night and that his friend S.V. never left his upstairs bedroom and therefore could not have had T.C. sleep with him on the living room pullout couch.

[8] In T.C.’s video-taped statement she said that while on the pullout couch, the Appellant tried to touch her “privates” and made a comment about being “wet and horny”. He then grabbed her hand in an effort to pull it towards his penis but T.C. pulled away.

[9] At trial, T.C.’s evidence was that after the Appellant tried to touch her vagina she got up and went to the washroom and that it was when she returned that he tried to have her touch his penis.

[10] Trial counsel and Mr. Sheppard, on this appeal, argue that this was a major inconsistency in the evidence of the complainant that was inappropriately dismissed by the trial judge as inconsequential. Mr. Sheppard argues that the trial judge came to that conclusion while at the same time imposing an uneven level of scrutiny on the Appellant’s evidence, finding several inconsistencies which could be seen as minor and then totally rejecting his evidence as concocted.

[11] The trial judge found T.C.’s evidence to be “direct”, without “drama” and credible. He accepted her evidence. It was his view that she told only one version of the events and stuck to it throughout her statement and her evidence.

[12] As mentioned previously, the trial judge rejected the Appellant’s evidence. In addition, he was critical of D.’s failure to disclose his evidence to police and he found that D. tailored his evidence in an attempt to help his friend. He questioned the reliability of D. since he admitted to drinking beer to the extent that he was a 6 out of 10 on an intoxication scale and agreed he could not have driven in his condition.

[13] The trial judge cautioned himself regarding the youthful complainant’s evidence recognizing that while it may be wrong to apply adult standards to evidence of time, place and the peripheral matters, still the standard of proof cannot be lessened. (R. v. W.(R.), [1992] 2 S.C.R. 122 paras 23 and 24).

[14] The trial judge applied the W.D. analysis to his assessment of credibility and while he rejected the defence evidence, he made it clear that he still had to find guilt beyond a reasonable doubt on the whole of the trial evidence.

[15] The Appellant’s argument related to uneven scrutiny is a difficult ground upon which to succeed. Epstein J.A. in R. v. Rhayel, 2015 ONCA 377, para. 98, put it this way:

98 For the appellant to succeed on this ground of appeal, he must be able to identify something clear in the trial judge’s reasons or in the record indicating that a different standard of scrutiny was applied - - something sufficiently significant that the heavy door of deference is opened to the domain of the trial judge, where credibility is assessed.

[16] This ground of appeal does not invite quantitative analysis. (R. v. Bartholomew, 2019 ONCA 377, para. 31) (Bartholomew). I am unable to find something sufficiently significant to indicate the trial judge was unfair in his assessment so as to amount to a miscarriage of justice.

[17] In addition to the above, Mr. Sheppard pointed out that the trial judge commented that T.C. had no apparent reason to concoct her evidence about the Appellant’s conduct. While I agree that there is no apparent motive to fabricate, an apparent lack of motive does not allow a conclusion that the complainant is telling the truth. (Bartholomew, para. 22). In this instance, the reasons of the trial judge do not suggest he made much of the absence of proven motive and there is no error here.

Conclusion

[18] In his Reasons for Judgment the trial judge considered the arguments of counsel and resolved the issues raised using the trial evidence that was available to him. His findings on credibility were as well available on the evidence. There is no reason to displace the deference owed to the trial judge who had the advantage of seeing and hearing from the witnesses in the trial context.

[19] The appeal against the conviction is therefore dismissed. The Appellant will have 24 hours from the release of these reasons to surrender himself to correctional officials at the Elgin-Middlesex Detention Centre to serve the balance of his sentence.

“Regional Senior Justice B. G. Thomas” Regional Senior Justice B. G. Thomas Released: July 23, 2019.