COURT FILE NO.: 17/19
DATE: 20191030
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.Z.
Appellant
Scott Clarke, for the Respondent
Lisa Jorgensen, for the Appellant
HEARD: October 25, 2019
Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.
Justice J. Copeland
REASONS FOR JUDGMENT
[1] The appellant appeals from conviction and sentence on one count of sexual assault.
Conviction Appeal
[2] The appellant was a friend of the complainant’s father-in-law, and also knew her husband. The allegation of which the appellant was convicted was that on November 4, 2017, when he dropped in at the complainant’s home, he made repeated efforts to kiss her on the mouth, and asked her about her sex life. The complainant testified that she made clear that she was offended by this. The complainant testified that as the appellant prepared to leave, before he left the home, he touched her breast, without her consent. It is the touching of her breast that the trial judge found to be a sexual assault.
[3] At trial, the appellant testified and denied the allegation. In particular he denied that he tried to kiss the complainant on the mouth, denied he asked about her sex life, and denied he touched her breast. He said he touched her left shoulder in an effort to console her about a family issue, which he testified was the reason he went to her home that day.
[4] This case, like many allegations of sexual assault, involved two versions of events, which differed as between the evidence of the Crown witnesses and the defence witnesses. As such, the trial judge was required to assess the credibility of the witnesses in light of the reasonable doubt standard, and the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 CanLII 93.
[5] The appellant argues that the trial judge committed three errors. I will address each issue in turn.
[6] First, the appellant argues that the trial judge gave uneven levels of scrutiny to the prosecution evidence and the defence evidence.
[7] The Court of Appeal has repeatedly noted that “uneven scrutiny” is a ground of appeal that is difficult to raise successfully. The reasons for this are twofold. First, credibility findings of a trial judge attract a high degree of deference on appeal. Second, very often uneven scrutiny is really no more than a veiled attempt to reassess the trial judge’s credibility findings: R. v. Howe, 2005 CanLII 253 at paras. 58-59; R. v. Chanmany, 2016 ONCA 576 at para. 26; R. v. Aird, 2013 ONCA 447 at para. 39.
[8] To succeed on this ground of appeal, uneven scrutiny must be clearly shown in the reasons for judgment or the trial record. It is not sufficient for an appellant advancing the ground of uneven scrutiny of evidence to show that the trial judge could have assessed credibility differently, or that the trial judge failed say something that they could have said in assessing the credibility of witnesses who gave different accounts of events, or that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment: Howe at paras. 58-59; Chanmany at paras. 27-28; R. v. Owen, 2001 CanLII 3367 at paras. 2-3 (ONCA); R. v. Gostick, 1999 CanLII 3125 (ONCA).
[9] I have carefully reviewed the trial judge’s reasons, and considered the submissions of the appellant. In particular, I have considered the list of points in paragraphs 47 and 48 of the appellant’s factum outlining the factual points where the appellant argues there was uneven scrutiny, and which counsel for the appellant elaborated on in oral argument. One theme of the appellant’s submissions on this issue is the argument that the trial judge’s reasons in relation to the complainant’s credibility were based on speculation on a number of points. I have also considered Crown counsel’s submissions in oral argument addressing each of the factual points raised by the appellant.
[10] I am not persuaded that the trial judge gave uneven scrutiny to the prosecution and defence evidence. The trial judge carefully and thoroughly explained his reasons for not believing or being left in a reasonable doubt by the defence evidence, and for why the prosecution case convinced him beyond a reasonable doubt of the appellant’s guilt. In my view the trial judge’s credibility findings were not based on speculation. They were based on the evidence before him, and were open to him on the record.
[11] Second, the appellant argues that the trial judge erred in his application of the second branch of W.(D.) In particular the appellant argues that the trial judge only considered the evidence of the defendant in concluding under the second branch of W.(D.) that the defence evidence did not leave him with a reasonable doubt, and failed to apply the second branch of W.(D.) to all of the defence evidence. In effect, this is an argument that the trial judge applied W.(D.) to the defendant’s testimony, but not to the balance of the defence evidence.
[12] I do not agree that the trial judge made that error. After summarizing the evidence, the trial judge correctly stated the law in referring to W.(D.) and the application of the reasonable doubt standard to the assessment of credibility. He specifically instructed himself not to engage in a credibility contest, as to do so would improperly reduce the burden of proof.
[13] A trial judge must, of course, not just state the law correctly, but must also apply it correctly. In my view the trial judge’s reasons show that he applied the principles of reasonable doubt correctly in his assessment of credibility.
[14] The reasons that the trial judge gave for not believing or being left in a reasonable doubt by the defence evidence under the first two branches of W.(D.) are careful and thorough. Similarly, he carefully explained why he found under the third branch of W.(D.) that the charge was proven beyond a reasonable doubt based on the evidence of the complainant, and her niece.
[15] Further, the trial judge did not fail to apply the reasonable doubt standard to the evidence of the appellant’s wife and a long-time acquaintance of the appellant who was called as a good character witness. Indeed, as I read the trial judge’s reasons, he did not find those witnesses not to be credible. Rather, he found the appellant’s wife’s evidence to be of limited value because it was on peripheral issues. And he found the good character witness’ evidence to be of limited value based on the well-established law that because sexual offences are in many cases committed in secret, by persons otherwise apparently of good character, character evidence is of limited value in this type of case. In these circumstances, in my view, the trial judge was not required to expressly state that he considered this evidence in relation to the second branch of W.(D.). Reading his reasons as a whole, I am satisfied that he did consider it.
[16] Thus, I am not persuaded that the trial judge made any error in his application of the principles from W.(D.)
[17] Third, the appellant argues that the trial judge erred in his assessment of whether the touching was of a sexual nature in the sense required by the decision of R. v. Chase, [1987] 2 S.C.R. 293, 1987 CanLII 23. The appellant argues that the trial judge erroneously stated that defence counsel at trial acknowledged that the nature of the touching was sexual if found to be intentional. The appellant further argues, that having incorrectly concluded that the issue was conceded by the defence, the trial judge did not engage in the factual finding required to decide if the touching took place in a sexual context in all the circumstances. The appellant also argues that the trial judge engaged in speculation in finding that the touching was intentional.
[18] I have reviewed the submissions of counsel in relation to the issue of whether or not trial counsel for the appellant (not counsel on appeal) acknowledged that the touching described by the complainant amounted to a sexual assault, if her evidence was believed, but took the position that it was unintentional touching.
[19] The trial judge is correct that the defence took the position that the touching was unintentional (i.e., there was touching of the shoulder, and if there was touching of the breast it was unintentional).
[20] However, the submissions are less clear on whether the defence conceded that the context of the touching was sexual, if the complainant’s evidence was believed. On the one hand, defence counsel started his submissions by saying the case “rests on credibility” of the version of events of the complainant “versus” that of the defendant (at p. 2 of submissions transcript). In my view, this aspect of counsel’s submissions suggests that credibility was the only issue, and if the complainant’s evidence was believed beyond a reasonable doubt then sexual assault was proven.
[21] On the other hand, at pp. 6 and 7 of the submissions transcript, defence counsel made submissions that whether a touching was sexual depends on the context. Further, in his reply submissions (at p. 28), defence counsel said: “I’m saying that if it did happen, for whatever reason, it certainly, one, was not in a sexual context, and two, that it wasn’t intentional.” In my view these submissions do appear to raise the element of the offence that objectively viewed, the touching must have a sexual context in all the circumstances (the Chase issue).
[22] Thus, in my view, the submissions are less than clear about whether defence counsel at trial acknowledged or conceded that the context of the touching was sexual if the complainant’s account was believed.
[23] However, even if the trial judge was incorrect that the defence conceded[^1] this point, in my view, the complainant’s evidence, which was accepted by the trial judge, provided ample basis to conclude that the touching was both intentional, and that it took place in circumstances of s sexual nature. Those circumstances included the part of the complainant’s body touched (her breast), the attempts by the appellant to kiss her on her mouth shortly earlier, and the appellant asking her about her sex life shortly earlier. The trial judge made specific findings about these facts.
[24] Further, I disagree with the appellant’s argument that the trial judge’s conclusions about the intentional nature of the touching were based on speculation. His reasons on this issue were not based on speculation. Rather, they were based on the circumstances outlined in the evidence of the complainant, which the trial judge accepted. Those circumstances included that shortly before touching her breast, the appellant had twice tried to kiss her on her mouth, and had asked her about her sex life. These events, based in the evidence of the complainant, not in speculation, when combined with the part of her body touched, her breast, led the trial judge to conclude that the touching was intentional.
[25] Despite Ms Jorgensen’s able submissions, I find no error in the trial judge’s reasons on the finding of guilt.
Sentence Appeal
[26] As a summary conviction appeal court hearing a sentence appeal, it is not my role to treat the appeal like a new sentencing hearing. Rather, I may only intervene in the sentencing decision made by the trial judge if the appellant shows that the trial judge made an error in principle, failed to consider a relevant factor, or imposed a sentence that is demonstrably unfit: R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64, at paras. 39-44, 51-52.
[27] The appellant argues that rather than a suspended sentence and probation, the trial judge should have imposed a conditional discharge. The appellant argues that the trial judge erred by failing to consider whether a conditional discharge could satisfy the objectives of denunciation and deterrence, and failed to advert to the principles of rehabilitation and restraint.
[28] Respectfully, the trial judge made no such error. After summarizing the relevant aggravating and mitigating circumstances in this case, the trial judge correctly stated the test for assessing whether a discharge is available, and whether it is appropriate. After correctly stating the law that applies to considering whether a discharge should be imposed, the trial judge gave brief but considered reasons for why he was of the opinion that a discharge was neither in the defendant’s interest, nor in the public interest.
[29] In my view, the trial judge’s reasons are clear that the in considering whether a discharge was contrary to the public interest, he was considering whether sufficient denunciation and deterrence could be achieved by a discharge. His reasons do not suggest that he thought that a discharge could never achieve the objectives of deterrence and denunciation. Rather, his reasons are clear that he concluded that in light of various aggravating circumstances he referred to in his reasons for sentence, a discharge could not meet the objectives of denunciation and deterrence in all the circumstances of this particular case.
[30] I find no error in the reasons for sentence.
[31] For these reasons, the conviction appeal and the sentence appeal are dismissed.
[32] I thank both counsel for their helpful submissions.
Justice J. Copeland
Released: October 30, 2019
COURT FILE NO.: 17/19
DATE: 20191030
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.Z.
Appellant
REASONS FOR JUDGMENT
Justice J. Copeland
Released: October 30, 2019
[^1]: The trial judge used the word “acknowledged” in his reasons. But in context I read it as saying the issue was conceded by defence counsel.