COURT FILE NO.: CR-19-00000032/00AP
DATE: 20191107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
C.B.
Appellant
Cara Sweeny, for the Respondent
Paul Calarco, for the Appellant
HEARD: October 21, 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.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 ON SUMMARY CONVICTION APPEAL
[1] C. B. appeals from conviction on two counts of sexual assault, and one count of sexual interference (one of the counts of sexual assault involved the same allegations as the sexual interference count, and was conditionally stayed pursuant to Kienapple at the time of sentencing). There were two other counts at trial (counts #3 and #4), but Crown counsel at trial did not seek convictions on those counts as the Crown was of the view that they were subsumed into the other counts.
[2] The Crown appeals from the sentences imposed on Mr. B., in particular, taking issue with the fitness of the imposition of conditional sentences.
[3] For sake of clarity, I will refer to the parties as Mr. B. and the Crown, rather than appellant and respondent.
[4] Mr. B. raises three grounds of appeal. The first ground is that the trial judge ignored or misapprehended relevant evidence. The second ground is that the trial judge overemphasized demeanour in his assessment of the credibility and reliability of the complainant’s evidence. The third ground is that the trial judge erred in law in relation to the burden of proof.
[5] For reasons I will explain, I am persuaded by the third ground. I find that the trial judge erred in law in relation to the burden of proof, and that this error requires a new trial. As a result, it is not necessary for me to address the other two grounds of appeal.
[6] Mr. B. argues that the trial judge erred in the application of the burden of proof, and in particular, in stating that in the absence of contradiction of the complainant’s evidence, “I must accept it”. Mr. B. argues that this is an error of law. In the absence of contradiction, a trial judge may accept the evidence of a witness, but is not required (must) to do so. Although trial judges are presumed to know the law they work with on a daily basis, where a trial judge states an incorrect legal principle, an appellate court should proceed on the basis that the trial judge means what they say in their reasons. Mr. Barnes further argues that this is not “cherry picking” a phrase out of context. Rather, the trial judge stated an incorrect legal principle, and said he was applying it.
[7] Crown counsel argues that the passage of the trial judge’s reasons relied on by Mr. B. in advancing this ground of appeal must be considered in the context of the entire reasons for judgment. She argues that the impugned passage comes at the end of a thorough analysis of all of the evidence. She argues that examined as a whole, it is clear that the trial judge understood the burden of proof, and gave detailed reasons for accepting the complainant’s evidence. Crown counsel argues that the defence is “cherry picking” the passage at issue as an infelicitous phrase, and it does not reflect the analysis in the trial judge’s reasons as a whole. Crown counsel argues that the trial judge’s reasons show that he believed the complainant; that he rejected the defence evidence of the witness Mr. O. and explained his reasons for doing so; and that he accepted the evidence of Ms C. to the extent that it corroborated aspects of the complainant’s evidence, but found that Ms C.’s evidence about who was present in the home at the relevant times was hearsay because she was not present at the relevant times. Crown counsel argues that having made these credibility findings, in the absence of other evidence to raise a reasonable doubt, the trial judge was required to convict. Crown counsel argues that the passage at p. 35 of the trial judge’s reasons that Mr. B. argues shows legal error should be read as a finding of fact, and not as a statement of law.
[8] In support of his argument that the trial judge erred in relation to the burden of proof, Mr. B. points to a portion of the trial judge’s reasons at p. 35 of the reasons for judgment. I reproduce the impugned passage:
So, in the absence of any contradiction of the evidence given by the complainant as to what happened to her, I must accept it. I found her evidence to be given in a credible manner.
[9] In considering whether the trial judge erred in the application of the burden of proof, I must read the reasons for judgment as a whole. Thus, I consider the content and structure of the trial judge’s reasons as a whole, and the context of the statement I have extracted above.
[10] The trial judge begins his reasons by summarizing the evidence of the complainant. He observes at p. 29 of his reasons that the complainant’s evidence was not directly contradicted (I take this as a reference to the fact that defendant did not testify, thus there was no direct evidence denying the offences. The defence witnesses called related to circumstantial evidence that it was argued supported a lack of opportunity for the defendant to have committed the offences, and also a motive on the part of the complainant to fabricate the allegations). The trial judge then outlines what he understands to be the three defence challenges to the Crown’s case. He then explains why he finds the complainant’s evidence to be believable. He then addresses the issues raised by the defence. Included in this portion of his reasons are findings that the defence witness Mr. O. was not credible (and an explanation for that finding), and that Ms. C. was not present at the time of the alleged offences, so her evidence in relation to who was or was not present in the house at those times was hearsay.
[11] Immediately after this analysis, is the impugned portion of the reason that I have excerpted above at paragraph 8. The trial judge then makes a few more comments about the evidence of Ms. C., and then concludes:
So, as I said before, I found her [the complainant’s] evidence credible. I found the defence evidence lacking credibility as it relates to [Mr. O.], and that it was hearsay as it related to [Ms C.]. So, based on all of that, he will be found guilty of the remaining three offense.
[12] In my view, the trial judge erred in stating that in the absence of any evidence contradicting the complainant, “I must accept it [the evidence of the complainant]”. In my view, this passage is an error of law because it shifts the burden of proof to the defence, and it fails to consider the third branch of the W.(D.) analysis, whether the evidence which the trial judge does accept proves the charges beyond a reasonable doubt.
[13] It shifts the burden by saying that in the absence of (believable) contradictory evidence a trial judge must convict. Of course, a trial judge may convict in the absence of believable contradictory evidence, if they are persuaded beyond a reasonable doubt by the evidence they do believe. But it is incorrect to say that a trial judge must convict.
[14] The impugned passage also fails to consider the issue of the standard of proof – beyond a reasonable doubt – as required under the third branch of W.(D.). A trier of fact can believe a witness on a variety of standards. In a civil case, belief on a balance of probabilities is sufficient. In a criminal case, it is not: see R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. W.(D.), [1991] 1 S.C.R. 742 at pp. 757-58. In going from I believe the complainant, and I don’t believe the defence evidence to I must accept the complainant’s evidence, the trial judge failed to consider whether the complainant’s evidence met the standard of proof beyond a reasonable doubt. Finding a witness credible is not necessarily the same as finding allegations to be proven beyond a reasonable doubt: R. v. J.J.R.D., 2006 40088 at para. 47 (ONCA); W.(D.) at pp. 757-58 (in particular the third branch of the analysis). In my view, the trial judge made the error of proceeding directly from a finding that the complainant was credible, to a finding that the allegations were proven beyond a reasonable doubt.
[15] The language used by the trial judge of “must accept it”, read in the context he uses it, indicates that he is treating the proposition as mandatory. The sentence says, in its ordinary meaning, because the complainant’s evidence is uncontradicted, the trial judge is required to accept it. The trial judge is not, for example, saying that he chooses to accept it, or that he can see no reason on the evidence before him not to accept it. Having found the complainant to be a credible witness, and having rejected the defence evidence, the trial judge ought to have asked himself if the complainant’s evidence was sufficiently credible to prove the charges beyond a reasonable doubt (the third branch of W.(D.)). Rather than engage in that analysis, he instructed himself that he must accept the evidence of the complainant.
[16] I disagree with Crown counsel because the trial judge believed the complainant, rejected the defence evidence of the witness Mr. O. and explained his reasons for doing so, and accepted the evidence of Ms C. to the extent that it corroborated aspects of the complainant’s evidence, but found that Ms C.’s evidence about who was present in the home at the relevant times was hearsay because she was not present at the relevant times, the trial judge was then required to convict, because there was “an absence of any evidence to raise a reasonable doubt”.
[17] With respect, this argument suffers from the same flaw I have identified in the trial judge’s reasoning. Although language of a defendant “raising” a reasonable doubt is commonly used by both lawyers and judges, it is important to bear in mind that the defence has no burden to “raise” a reasonable doubt.[^1] There is not a requirement that there be evidence as the basis for a reasonable doubt (subject to the proviso that a reasonable doubt cannot be based on speculation).
[18] Under the third branch of W.(D.), a trial judge must consider if the Crown’s case (or evidence accepted by the trial judge, which could come from either the defence or Crown case as a matter of principle), proves the charges beyond a reasonable doubt. The flaw in Crown counsel’s argument is that a statement by a trial judge that they believe a witness (here the complainant), does not necessarily speak to the standard of belief, and whether it is beyond a reasonable doubt. In the absence of an erroneous statement of law, an appellate court would be justified in presuming the trial judge applied the correct burden of proof. But where, as in this case, the trial judge incorrectly states the law, it is not appropriate to presume he correctly applied the law.
[19] I do not accept the Crown’s argument that this analysis involves cherry picking the reasons. I note that the impugned statement at p. 35 is the only reference in the trial judge’s reasons to the burden of proof (a factor which distinguishes this case from R. v. Davis, [1999] 3 S.C.R. 759 at paras. 100-103). The trial judge expressly states in his reasons: “So, in the absence of any contradiction of the evidence given by the complainant as to what happened to her, I must accept it” (emphasis added). I accept the principle that trial judges are presumed to understand the law that they work with daily. But that presumption may be displaced where an appellate court finds that, read as a whole, a trial judge’s reasons erroneously state and erroneously apply the law. In this case, reading the trial judge’s reasons as a whole and this phrase in context, I do not see a reason to find that the trial judge did not mean what he said. I find that he erred in law in relation to the burden of proof.
[20] Crown counsel argues that the decision in R. v. Davis, [1999] 3 S.C.R. 759, requires an appellate court to read a trial judge’s reasons in favour of assuming they knew and applied the correct law.
[21] I do not read Davis that way. The portion of Davis relied on by Crown counsel in oral argument is the portion at paragraph 103 where reference is made with approval to the words of McLachlin J. (as she then was) in R. v. B.(C.R.), [1990] 1 S.C.R. 717 at p. 737:
The fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what he said shows that the proper test was applied and if the decisions can be justified on the evidence. [emphasis added]
[22] As I read those comments from B.(C.R.) and Davis, the principle that emerges from Davis is that an appellate court must read a trial judge’s reasons as a whole in assessing whether a trial judge made errors of law. This is a well-established and uncontroversial principle. Davis does not create a presumption that when a trial judge expressly states an erroneous principle of law, an appellate court should nevertheless still presume they were correctly applying the law, if reading the reasons as a whole does not support that presumption.
[23] Crown counsel argues that even if the trial judge erred in law in relation to the burden of proof, the court should apply the curative proviso of s. 686(1)(b)(iii) to find there was no substantial wrong or miscarriage of justice, and decline to order a new trial.
[24] I am not satisfied that it is appropriate to apply the curative proviso in this case. The Crown case depended entirely on the complainant’s evidence. I am not satisfied that in these circumstances an error about the Crown’s burden to prove the charges beyond a reasonable doubt can be said to have caused no substantial wrong or miscarriage of justice. The burden of proof on the Crown beyond a reasonable doubt is one the central protections for a defendant in a criminal trial. For this reason, the error cannot be said to have been minor or harmless. Nor is this Crown case in this matter so overwhelming that absent the error Mr. B. would necessarily have been found guilty.
In light of my conclusion that the conviction appeal must be allowed and a new trial ordered, the Crown’s sentence appeal is moot.
The conditional stay pursuant to Kienapple on count #2 is lifted. The conviction appeal is allowed, and a new trial ordered on counts 1, 2, and 5.
I direct that Mr. B. appear in the Ontario Court of Justice, 2201 Finch Avenue West, in courtroom #202 on December 5, 2019, at 9:00 a.m. to set a new trial date.
I thank both counsel for their submissions.
Justice J. Copeland
Released: November 7, 2019
COURT FILE NO.: CR-19-00000032/00AP
DATE: 20191107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
C.B.
Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
Justice J. Copeland
Released: November 7, 2019
[^1]: I am not suggesting that the trial judge in this case used the formulation of “raising” a reasonable doubt. He did not. But Crown counsel does in her factum. This is the argument I am addressing.