COURT FILE NO.: CR-19-10000016-00AP
DATE: 20191219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JULES SINCLAIR
Appellant
Helen Song, for the Respondent
Fiona Legere, Emilie Bruneau, and Meg Cormack (Law Student from Downtown Legal Services), for the Appellant
HEARD: October 23, 2019
Justice J. Copeland
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
Introduction
[1] The Appellant, Jules Sinclair, was found guilty of two counts of criminal harassment. The charges involved allegations that on two dates in September 2017, the Appellant criminally harassed the complainant, who lived in the same neighbourhood as he did.
[2] The Appellant appeals from conviction. He raises one ground of appeal, that the trial judge erred by placing higher scrutiny on his evidence than on the complainant’s evidence.
The Trial evidence
[3] The evidence at trial turned almost[^1] entirely on the trial judge’s assessment of the credibility of the evidence of the complainant and of the Appellant.
[4] The complainant testified that September 22, 2017, the Appellant rode by on his bicycle on her street as she was dropping her daughter off at daycare. She testified that he was doing loops in the street, cursing and swearing at her as he passed. She testified that when she came back out after dropping off her daughter, the Appellant was still riding around the street, cursing her. She then went inside her apartment building. When she came back out, the Appellant was waiting for her, continued to call her names, and said he wanted to fight her. She yelled at him and walked towards him, at which point he ran down the ramp and left.
[5] The complainant testified that three days later, on September 25, 2017, the Appellant rode his bicycle in loops around her street, riding by her at least nine separate times that day, flexing his muscles or making other gestures.
[6] The complainant testified that the Appellant’s conduct caused her to fear for her and her children’s safety.
[7] The Appellant testified and denied committing the offences charged. He testified that he never directly spoke to or gestured at the complainant. Regarding the September 22, 2017 allegation, the Appellant denied that had any direct or indirect interaction with the complainant on that day. He testified that he was in the neighbourhood on that day because he was visiting his friend Rose for her birthday. He agreed that he did ride by the complainant at some point on his way to Rose’s house, but said that he did not speak to her or threaten or harass her in any way.
[8] Regarding the September 25, 2017 allegation, the Appellant testified that he did ride his bicycle on that date, and admitted that he rode past the complainant’s street twice. However, he testified that he did not recall riding by nine or 10 times, and did not recall any interaction with the complainant. He characterized the episode as a leisurely bike ride through his own neighbourhood.
The Trial judge’s reasons
[9] The trial judge rejected the Appellant’s evidence and was not left in a reasonable doubt by it. She accepted the complainant’s evidence as proving the offences beyond a reasonable doubt. In order to understand the ground of appeal raised, it is necessary to consider the structure and content of the trial judge’s reasons.
[10] The trial judge began by instructing herself on the presumption of innocence, the Crown’s burden to prove the charges beyond a reasonable doubt, and not to treat the assessment of conflicting evidence as a credibility contest (Reasons for Judgment, p. 172). She then instructed herself expressly in relation to the application of reasonable doubt to the assessment of credibility, using the language of the decision in R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 CanLII 93 (Reasons for Judgment at pp. 172-73). She then instructed herself that she had to consider the Appellant’s evidence within the context of the evidence as a whole, including the complainant’s evidence. She also instructed herself that it was open to her to reject the Appellant’s evidence and find him guilty based solely on a considered acceptance of the complainant’s evidence (Reasons for Judgment, p. 173).
[11] The trial judge then briefly addressed several aspects of the Appellant’s evidence that she found “troubling”. However, she then said:
[T]hese concerns, on their own, would not cause me to reject Mr. Sinclair’s evidence. However, I do reject his evidence. The main reason I do so is because I accept the evidence of the complainant that the material events occurred as she described. I reach this conclusion after carefully considering Ms. Wyton’s evidence within the context of Mr. Sinclair’s evidence and keeping the principles of reasonable doubt in the forefront of my mind.
I also carefully considered Mr. Sinclair’s evidence to determine whether any aspect of it raised a reasonable doubt notwithstanding my acceptance of Ms Wyton’s evidence. Moreover, before accepting Ms Wyton’s evidence, I carefully considered Mr. Sinclair’s denials. [Reasons for Judgment, pp. 173-74]
[12] The trial judge then explained in detail why she found the complainant to be a credible and reliable witness, and accepted her evidence (Reasons for Judgment, pp. 174-83). She also addressed specifically each of the four areas where the defence had argued at trial that the complainant’s evidence was inconsistent (Reasons for Judgment, pp. 179-82). The trial judge concluded her credibility findings by referring back to the W.(D.) standard, and found that after reviewing the complainant’s evidence within the context of the evidence as a whole, she accepted the complainant’s evidence. She found that she did not believe the Appellant’s evidence, and his evidence did not leave her with a reasonable doubt (Reasons for Judgment, pp. 182-83).
[13] After making her credibility findings, the trial judge then addressed whether the elements of the offences had been proven beyond a reasonable doubt in light of her findings of fact (Reasons for Judgment, pp. 183-187).
Positions of the parties
[14] The Appellant argues that the trial judge erred by placing a higher level of scrutiny on his evidence than on the complainant’s evidence, in particular, in light of what the Appellant argues are four significant inconsistencies in the complainant’s evidence.
[15] The Respondent argues that the record does not support that the trial judge applied different standards of scrutiny to the evidence. The Respondent argues that the trial judge’s reasons addressed the inconsistencies in the complainant’s evidence asserted by the Appellant. The Respondent argues that the Appellant is essentially seeking to have this court sitting on appeal reassess the trial judge’s credibility findings.
Analysis
[16] The Ontario Court of Appeal has repeatedly observed that uneven scrutiny of evidence is a difficult ground of appeal to argue successfully. This is because credibility findings of a trial judge are owed deference on appeal, and very often this ground of appeal will amount to an attempt to reassess the credibility findings made by the trial judge: R. v. Howe, 2005 CanLII 253 at paras. 47, and 59 (ONCA); R. v. Owen, 2001 CanLII 3367 at para. 3 (ONCA); R. v. Chanmany, 2016 ONCA 576 at para. 26.
[17] To prevail on an argument based on uneven scrutiny, an appellant must do more than show that a trial judge could have reached difference credibility findings, or that the trial judge failed to say something that they could have said in assessing credibility of different versions of events in Crown and defence evidence. To prevail on an argument based on uneven scrutiny, an appellant must show, based on something in the trial judge’s reasons or elsewhere in the record, that the trial judge applied different standards in assessing the Crown evidence and the defence evidence: Howe at para. 59; Owen at para. 3; Chanmany at paras. 27-28.
[18] Because the trial judge in this case clearly based her approach to credibility and the application of the reasonable doubt standard on R. v. J.J.R.D., 2006 CanLII 40088, I also briefly outline the principles from that decision. J.J.R.D. is at base about adequacy of reasons, and the ability of appellate courts to engage in meaningful appellate review: at paras. 35-39, and 55. Where a trial judge’s reasons for judgment explain the findings made by the trial judge, and demonstrate the route that the trial judge took to the evidence to the findings, then reasons will be sufficient to permit appellate review. In that context, Justice Doherty, writing for the Court, held at para. 53 that in cases where the evidence involves competing Crown and defence versions of events:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[19] Having carefully considered the Appellant’s arguments, the trial judge’s reasons, and the trial record, I am not persuaded that the trial judge gave uneven scrutiny to the evidence.
[20] I start by noting that at the beginning of her reasons, the trial judge correctly instructed herself with respect to the burden of proof on the Crown beyond a reasonable doubt, that the reasonable doubt standard applies to questions of credibility such that if the defendant’s evidence leaves the trial judge with a reasonable doubt he must be acquitted, and cautioned herself not to engage in credibility contest reasoning (Reasons for Judgment, pp. 172-173). She instructed herself that she had to consider the Appellant’s evidence within the context of all of the evidence, including the complainant’s evidence (Reasons for Judgment, p. 173). She then, without referring expressly to the case, instructed herself in accordance with J.J.R.D. that it was open to her to reject the Appellant’s evidence and find him guilty based solely on a “considered” acceptance of the complainant’s evidence (Reasons for Judgment, p. 173). Further, at various points throughout her reasons, the trial judge reiterated the reasonable doubt standard of proof (Reasons for Judgment, pp. 174, 182-84, and 187).
[21] The Appellant seeks to ground his argument of uneven scrutiny of the evidence in the trial judge’s brief comments about two issues of credibility regarding the defendant, and four areas where the Appellant argues there were significant inconsistencies in the complainant’s evidence. The Appellant argues that comparing these aspects of the trial judge’s reasons show that she gave uneven scrutiny to the complainant’s evidence and the Appellant’s evidence.
[22] I have two difficulties with this argument that lead me to reject it. First, although the trial judge did make reference to two small inconsistencies in the defendant’s evidence, she also clearly stated that those inconsistencies on their own would not cause her to reject the Appellant’s evidence (Reasons for Judgement, pp. 173-74). And she expressly explained that the reason she was rejecting the Appellant’s evidence was because of her considered acceptance of the complainant’s evidence beyond a reasonable doubt (Reasons for Judgment, pp. 174-83).
[23] Further, in relation to the four points about the complainant’s evidence that the Appellant argues on appeal, each of these arguments was raised in argument before the trial judge, and the trial judge gave considered reasons in relation to each of the four points (Reasons for Judgment, pp. 179-82). Her reasons demonstrate that she was aware of the inconsistencies the defence was alleging regarding the complainant’s evidence. The trial judge considered each asserted inconsistency, and explained why she made the findings she did. She was not required to do more.
[24] Reviewing the reasons of the trial judge, and the trial record, I am not persuaded that the trial judge engaged in uneven scrutiny of the evidence.
[25] In my view, and I say this respectfully, because I appreciate that counsel for the Appellant are seeking to put forward the strongest argument they can on his behalf, the argument advanced falls on the side of seeking to reargue the credibility findings made at trial, and does not amount to uneven scrutiny of the evidence by the trial judge.
[26] The trial judge’s reasons, when read as a whole show that she understood and applied the correct law in assessing credibility and applying the reasonable doubt standard of proof. Having done so, she was persuaded that the complainant’s evidence was sufficiently credible to prove the charges beyond a reasonable doubt, and she did not believe the defendant’s evidence and was not left in a reasonable doubt by it.
[27] Having come to the conclusion that the Appellant has not persuaded me that the trial judge gave uneven levels of scrutiny to his evidence and the complainant’s evidence, I acknowledge that there could be said to be some tension between the body of case law in relation to uneven scrutiny of Crown and defence evidence, and the principles in J.J.R.D. This arises from the fact that following the principles in J.J.R.D., if a trial judge gives a considered and reasoned explanation for accepting a complainant’s evidence as true beyond a reasonable doubt, that may be a sufficient basis for finding that the Crown has proven the charges beyond a reasonable doubt, even if a trial judge does not provide independent reasons for not believing or being left in a reasonable doubt by a defendant’s evidence.
[28] The effect this is that where a trial judge engages in an analysis of credibility invoking the principles in J.J.R.D., whatever level of scrutiny a trial judge has given to a defendant’s evidence is not visible in the judge’s reasons. But according to J.J.R.D., the fact that one cannot expressly see in the reasons the trial judge’s analysis of the defendant’s evidence is not a deficiency, so long as the trial judge’s reasoning process is clear, the trial judge’s analysis of why they believed the complainant’s evidence is reasoned and considered, and the reasons are clear that the trial judge has applied the reasonable standard to the assessment of credibility, and has not engaged in a credibility contest: J.J.R.D. at paras. 35-39, 44-47, 53; R. v. Slatter, 2019 ONCA 807 at paras. 83-84, 89; R. v. R.D., 2016 ONCA 574 at paras. 13-22.
[29] The body of case law in relation to uneven scrutiny of Crown and defence evidence requires that for an appellant to prevail on this ground of appeal, the appellant must show in the record – including the trial judge’s reasons and the evidence – that the trial judge engaged in uneven scrutiny. This task will be extremely difficult for an appellant where a trial judge has engaged in J.J.R.D. analysis of credibility. However, the fact that it will be difficult for an appellant to argue uneven scrutiny of evidence when the trial judge has engaged in a J.J.R.D. analysis does not relieve an appellant of making the showing necessary to argue uneven scrutiny of evidence.
[30] In the circumstances of this case, considering the trial judge’s reasons, and the full trial record, I am not persuaded that the trial judge applied different levels of scrutiny to the complainant’s and the Appellant’s evidence.
[31] The appeal is dismissed.
[32] I wish to thank all counsel, and Ms Cormack from Downtown Legal Services, for their thorough and helpful preparation and presentation of the arguments in the appeal.
Justice J. Copeland
Released: December 19, 2019
COURT FILE NO.: CR-19-10000016-00AP
DATE: 20191219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JULES SINCLAIR
Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVCTION APPEAL
Justice J. Copeland
Released: December 19, 2019
[^1]: Two police officers gave brief evidence of their observations of the demeanour of the complainant – that she appeared upset – when they attended on September 25, 2017.