Her Majesty the Queen v. Raul Rojas-Fontalvo

COURT FILE NO.: CR-17-9605-00AP DATE: 20190920

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

RAUL ROJAS-FONTALVO Appellant

COUNSEL: B. McCallion, for the Respondent M. Halfyard, for the Appellant

HEARD: September 20, 2019

REASONS FOR DECISION

On appeal from the decision of The Hon. Mr. Justice J.F. Kenkel Dated September 7, 2018

CHRISTIE J.

[1] On September 7, 2018, the Appellant, Raul Rojas-Fontalvo, was found guilty of sexual assault and sexual interference. On December 13, 2018, he was sentenced, on the sexual interference, to a 90-day intermittent jail sentence and two years of probation. There was a stay entered on the sexual assault charge. The Appellant appeals against conviction only.

[2] With respect to the conviction appeal, the grounds advanced by the Appellant are as follows:

1. The trial judge misapprehended the evidence and as a result the verdict is unreasonable;
2. The trial judge erred in bolstering the complainant's reliability because there was no motive to fabricate; and
3. The trial judge improperly focused on the surrounding circumstances of the Appellant and the complainant's relationship and improperly used it as general propensity to ease the Crown's burden of proof.

[3] For the reasons that follow, the appeal is dismissed.

Facts

[4] It was alleged at trial that the sexual activity occurred on an airplane as the Appellant, a Muay Thai kickboxing coach, and the complainant, his 14 year old student, travelled back to Toronto from training in Thailand. They had trained closely together for almost two years. While on the long flight, the Appellant suggested that the complainant put her head on a pillow on his lap, as she was having difficulties falling asleep. The complainant fell asleep. The complainant stated that she awoke and felt that the Appellant had put his hand underneath her shorts, "cupping" her buttocks over her underwear. She moved and he quickly removed his hand. She did not say anything. The touching lasted under a minute. Months later, the complainant disclosed what had occurred to a therapist. The complainant believed that the discussion would be confidential. However, given her age, the therapist reported the matter to police. The complaint gave a statement to police a few days after she disclosed to the therapist, which was admitted at trial for the truth of its content. The Appellant testified and denied touching the complaint in this way.

[5] At trial, there was further evidence provided as to the nature of the relationship between the Appellant and the complainant. There was evidence in relation to a "movie night" that the Appellant had set up at the complainant's house. Others were supposed to join, however, when the Appellant learned that others were not coming, he continued on to the complainant's house where they watched a movie together on the couch. There was further evidence of an oil massage that the Appellant had given the complainant while they were alone in a gym. Further, there was evidence that the Appellant was seen feeding the complainant food in a food market in Thailand. The Appellant's evidence was that he treated the complainant like a little sister and there was nothing nefarious about any of these incidents.

Analysis

First Ground of Appeal: The trial judge misapprehended the evidence and as a result the verdict was unreasonable

[6] The Appellant argued that, given the concession by the defence that the complainant was credible, the entire case then turned on the reliability of the complainant. The manner in which the allegations were disclosed to the therapist was a critical factor to be considered in determining the complainant's reliability.

[7] The Appellant argued that the the trial judge failed to give proper effect to the evidence relating to her memory of these events when she went to her therapist. The Appellant made reference to page 63 of Volume 2 of the trial transcript where the following exchange took place:

Q: You had talked about more than just your feelings in that session? A: In what sense? Q: You had talked about what actually happened on the plane? A: Yes. Q: And you expressed to your therapist that you still doubted whether or not you were dreaming when you felt the hand on your bum? A: Yes. At the moment I wasn't, I still question myself. Q: Right. And your therapist, through that conversation, made you feel more sure, no. I wasn't dreaming. It definitely happened? A: She made me feel like that based on my own thoughts. She didn't tell me how to feel. She helped me look inside myself and really think, close your eyes, think, did it happen? And I knew from my gut that it happened. Q: ....Does she suggest to you it did happen? A: She never suggested. No.

[8] The trial judge did deal with this issue directly. In fact, it appeared to be a critical issue for the trial judge. The trial judge stated at paragraph 13 of his decision:

13 I agree with the defence that the complainant's evidence on this point including her initial statement to the police must be looked at very closely. If there is a reasonable possibility that the touching she felt could have been a dream, or that her present certainty about the event could have been induced or affected by therapy that would leave a doubt with respect to allegations.

[9] The trial judge considered the defence submissions that the therapist "coaxed the memory out of her". However, the trial judge found that there was no evidence of this and found that "the complainant arrived at the therapist's office with a complete memory of the incident": see paragraph 14 of the reasons of the trial judge.

[10] Recently, in the case of R. v. C.B. 2019 ONCA 380, [2019] O.J. No. 2425, the Court of Appeal for Ontario provided a good summary of the law in relation to misapprehension of evidence. The court stated:

95 Where a misapprehension of evidence is advanced as a ground of appeal, an appellate court must consider first whether the verdict from which the appeal is taken is unreasonable: Morrissey, at p. 219. Provided the verdict is not unreasonable, we are required next to determine whether the misapprehension of evidence caused a miscarriage of justice within s. 686(1)(a)(iii) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. An appellant who succeeds on this ground will have the underlying conviction quashed and, in most cases, a new trial ordered: Morrissey, at p. 219.

96 The expansive scope of s. 686(1)(a)(iii) includes errors involving a misapprehension of evidence. Such an error, like other errors that fall within the section's compass, is assessed by reference to its impact on the fairness of the trial. When an error involving the misapprehension of evidence renders a trial unfair, s. 686(1)(a)(iii) demands that the conviction be quashed: Morrissey, at p. 221.

97 Whether a misapprehension of evidence rendered a trial unfair and resulted in a miscarriage of justice depends upon the nature and extent of the misapprehension and its significance to the verdict rendered by the trial judge. This is so because we insist that a verdict be based exclusively on the evidence adduced at trial: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1; Morrissey, at p. 221.

98 The standard applied to misapprehensions of evidence advanced in support of a claim that a miscarriage of justice has occurred is a stringent one. The misapprehension of the evidence must go to the substance of the evidence, not simply to its detail. And the misapprehension must be material rather than peripheral to the reasoning of the trial judge. But there is more. And that is that the errors must play an essential part, that is to say, a role in the reasoning process resulting in a conviction, not just in the narrative of the judgment: Lohrer, at para. 2. Said in another way, a misapprehension of evidence amounts to a miscarriage of justice only if striking it from the judgment would leave the trial judge's reasoning on unsteady ground: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; R. v. Bains, 2012 ONCA 305, 291 O.A.C. 135, at para. 15.

See also R. v. Campbell, [2018] O.J. No. 1140 at para 25.

[11] In my view, there was no misapprehension of the evidence in this case. The trial judge understood that reliability was a key issue. The trial judge specifically referred to the disclosure to the therapist, citing passages from the complainant's police statement that was admitted for the truth of its content. The trial judge determined at paragraph 16 that "her questions to herself were not really about whether it happened but about how something like that could happen". The complaint knew that this happened. There was no doubt in her mind as to whether the therapist had affected her.

[12] The trial judge found that the complaint arrived at the therapist's office with a complete memory of the incident, and in fact, that she had already told a friend prior to that. This was entirely in keeping with the evidence. In my view, the trial judge gave careful consideration to the evidence and reached a reasonable, appropriate and correct conclusion based on all of the evidence.

[13] I would not give effect to this ground of appeal.

Second Ground of Appeal: The trial judge erred in bolstering the complainant's reliability because there was no motive to fabricate

[14] The Appellant referred to paragraph 17 of the reasons for judgment in which the trial judge stated:

The complainant testified that she regretted mentioning the incident to her therapist. She didn't want her world to change because of that incident but she needed to speak about it and has since realized that doing so "lifted a weight off her shoulders". She had a close relationship with her coach and she mentioned at trial that she didn't want his life to be ruined. Since the incident, she's lost a relationship that was important to her and she's stopped participating in the sport where she'd enjoyed so much success. There's no evidence of any motive to fabricate that would detract from the reliability of the complainant's evidence.

[15] The law is clear that the concepts of credibility and reliability are different and should be dealt with as so by the court: See R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 at para 41; R. v. Khan, [2017] O.J. No. 6316, para 59.

[16] Typically, motive to fabricate would go to the issue of credibility, not reliability.

[17] With respect to motive to fabricate and any use that can be made of it, the Court of Appeal gave some guidance recently in the case of R. v. Bartholomew, 2019 ONCA 377. The court stated:

22 However, problems occur when the evidence is unclear -- where there is no apparent motive to fabricate, but the evidence falls short of actually proving absence of motive. In these circumstances, it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all: see R. v. J.V., 2015 ONCJ 815, at para. 132; R. v. Sanchez, 2017 ONCA 994, at para. 25; L.L., at para. 53; R. v. T.G., 2018 ONSC 3847, at para. 30; R. v. Lynch, 2017 ONSC 1198, at paras. 11-12.

23 Therefore, in this context too, there is a "significant difference" between absence of proved motive and proved absence of motive: L.L., at para. 44, fn. 3. The reasons are clear. In R. v. B. (R.W.) (1993), 24 B.C.A.C. 1 (C.A.), Rowles J.A. explained, at para. 28: "it does not logically follow that because there is no apparent reason for a motive to lie, the witness must be telling the truth." This point was made in L.L., in which Simmons J.A. said, at para. 44: "the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate" (emphasis added). See also R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at paras. 104-109; and R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 93.

[18] Any error in equating credibility with reliability, and how evidence of motive to fabricate relates to those concepts, would be a question of law. Therefore, the standard of review is that of correctness.

[19] I agree that the concept of motive would seem to relate more properly to the credibility of the complainant. However, in my view, all the trial judge was saying in these circumstances was that there was no evidence of motive to fabricate that would negatively affect her reliability; however, the trial judge is certainly not saying that the absence of evidence of motive has a positive effect on her reliability. While the language of relating the absence of evidence of motive to that of reliability is somewhat confusing, I do not feel that this one sentence has any impact upon the overall reliability assessment. The trial judge found the complainant reliable based on many other stated reasons. This comment about absence of evidence of motive was neutral in the overall reliability assessment.

[20] I would not give effect to this ground of appeal.

Third Ground of Appeal: The trial judge improperly focused on the surrounding circumstances of the Appellant and the complainant's relationship and improperly used it as general propensity to ease the Crown's burden of proof.

[21] The Appellant argued that the trial judge, in referencing the various events in paragraph 18 of his reasons, being the movie night, the massage and the events in the food market, in combination with his comments in para. 6 and 19 of his judgment, suggest that he used these previous events as general propensity evidence. In other words, the Appellant argued that because the trial judge determined the Appellant had some inappropriate boundary issues with the complainant, he was, therefore, more likely to have committed the offences.

[22] The Appellant conceded in argument that this evidence, demonstrating the relationship between the Appellant and the complainant, was relevant at trial. Certainly, there was no objection from defence counsel at trial about the admissibility of this evidence. However the Appellant argued that the trial judge used this evidence to ease the Crown's burden to prove the case beyond a reasonable doubt.

[23] There was no similar act application in this trial. The Crown cannot resort to evidence of general propensity, disposition or bad character to prove that the events in question happened, unless they meet the test for similar act evidence. See R. v. Brown, 2018 ONCA 481, para 43-44; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[24] However, in R. v. Batte 2000 CanLII 5751 (ON CA), [2000], 49 O.R. (3d) 321 (C.A.), the court held that certain propensity reasoning is permissible:

[96] Counsel's argument regarding the trial judge's failure to caution the jury against resort to propensity reasoning assumes that propensity reasoning could have no proper role in the jury's analysis of the evidence. I do not accept that assumption. While a jury must never convict based on a finding that an accused engaged in misconduct other than that alleged, and must never convict based on an assessment that the accused is a bad person, there will be cases in which a more focused form of propensity reasoning is entirely appropriate. I think this was such a case.

[97] Propensity reasoning involves two inferences. First, one infers from conduct on occasions other than the occasion in issue that a person has a certain disposition (state of mind). Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue: R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 30 O.R. (3d) 161 at pp. 173-74, 108 C.C.C. (3d) 310 at p. 325 (C.A.). Assuming the evidence can reasonably support both inferences, there is nothing irrational or illogical in using propensity reasoning to infer that an accused committed the act alleged. Viewed in this way, the evidence of the accused's discreditable conduct is a form of circumstantial evidence and meets the legal relevance criterion: R. v. Arp, supra, at pp. 360-61 S.C.R., pp. 338-39 C.C.C.

[25] In my view, this ground of appeal is one of mixed fact and law. When the issue raised is a question of mixed fact and law, a judge's decision is to be reviewed on the standard of palpable and overriding error. In such a case, the trial judge's decision attracts significant deference.

[26] In my view, the trial judge was entitled to look at the nature of the relationship between the Appellant and the complainant. The trial judge was entitled to review this relevant evidence and consider it as to the Appellant's state of mind and intention in relation to this complainant.

[27] This evidence is not general propensity evidence. This is evidence that goes to the very heart of how the Appellant and the complainant interacted with each other in the past. As the trial judge stated at paragraph 19, "The circumstances of those incidents together show that the accused had a personal, intimate interest in the complainant beyond the coach/athlete relationship in the gym". Frankly, this conclusion is in line with the Appellant's own evidence at the trial, in that he saw the complainant as a little sister. The trial judge was entitled to consider these incidents in determining credibility in this case. The fact that the defence conceded the credibility of the complainant does not detract from the trial judge's responsibility to make their own findings in this regard.

[28] I would not give effect to this ground of appeal.

Conclusion

[29] For all of the foregoing reasons, the appeal is dismissed.

CHRISTIE J.

Released: September 20, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – RAUL ROJAS-FONTALVO

REASONS FOR JUDGMENT

Justice Christie

Released: September 20, 2019