COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen, Respondent
AND:
Cooper Curry, Appellant
BEFORE: Mr. Justice C. MacLeod
COUNSEL: Howard L. Krongold, for the Appellant
Adrian Cleaver and Caitlin Downing, for the Crown, Respondent
HEARD: December 4, 2019 (orally) with follow up submissions in writing
DECISION AND REASONS
Introduction
1This matter came before this Court sitting as a summary conviction appeal court in Pembroke. At trial, the appellant was convicted of three counts: sexual assault; assault; and criminal harassment after a two day hearing in the Ontario Court of Justice. He is appealing that conviction.
2At the hearing of the appeal, counsel for the appellant was present but Ms. Downing was ill and the Crown was represented by Mr. Cleaver. For reasons discussed on the record, the appeal proceeded with oral submissions from counsel for the appellant followed by written submissions from the Crown and a written reply. This procedure was adopted rather than adjourning the hearing and was approved by both parties.
The Onus of Proof and R. v. W.(D.)
3The primary basis of the appeal is the assertion that the trial judge reversed the onus and misapplied the principles enunciated by the Supreme Court of Canada in R. v. W (D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. The principle is simply this. A criminal trial in which the accused elects to testify is not a contest of credibility between the complainant and the accused. The sole question is always whether or not the Crown has proven the elements of the offence beyond a reasonable doubt.
4The often repeated “W.D. formula” articulated by Cory J. is as follows:
“First, if you believe the evidence of the accused, obviously you must acquit.
“Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.”
“Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
5While this formula was articulated as a way to instruct a jury without falling into error, the learning to be derived from W.D. is not that assessment of credibility can be reduced to a formula or takes place in silos. To the contrary, the assessment must be done in the context of all of the evidence taken as a whole. In fact, in W.D., the trial decision was upheld despite the error. The critical question on appeal is whether or not there was an injustice.
6In this case the trial judge gave written reasons. He reviewed the evidence led by the Crown and that led by the accused. In his analysis, he was alert to the requirements of R. v. W. (D.). In fact, he quotes the very passage mentioned above and specifically states that the onus remains on the Crown and never shifts to the accused. But the trial judge’s reasons also include the following:
“This is not to say however that the accused can ignore or fail to explain credible and corroborated evidence of the complainant. This is an evidentiary shift however and not a legal shift in onus.” (paragraph 53)
“The accused’s evidence can also be rejected based on the Court’s acceptance of the complainant’s evidence.” (paragraph 54)
“I find that I must reject the accused’s evidence and also that it does not raise a reasonable doubt. While not caught in any inconsistency, I found his evidence to be glib and superficial. He had an answer for everything, except that his denials were bare and did not explain credible and corroborated evidence against him”. (paragraph 55)
“These examples are all evidence that is unexplained and not addressed by the accused’s evidence. This above noted evidence which I find credible and reliable calls for an answer. This does not shift the onus to the accused but rather an evidentiary onus. These are facts that need to be answered in some fashion beyond saying “I don’t know”, “nothing happened”.
7The appellant argues that it is an error of law to put any onus on the accused to rebut or explain the evidence put forward by the Crown. As his counsel argues in his factum, it is true that except in cases where the accused relies upon affirmative defences, the Crown has the onus and the accused has none. The accused has the right to remain silent and need not prove anything.
8There is a subtle distinction however when the accused elects to testify. In that circumstance, while the accused bears no onus, and the court must always give him the benefit of any reasonable doubt, the evidence must still be assessed as a whole. In situations where the evidence of the accused and that of the complainant are mutually incompatible, the credibility and the reliability of the evidence must be assessed in context. It is a legitimate part of that process to reject the evidence of one of the witnesses because the evidence given by the other is more compelling and believable.
9The appellant cites the decision of R. v. H. (R.), 2013 ONCA 126. As we are reminded by the Court of Appeal in that decision, it is an improper question to ask an accused for his opinion on the veracity of another witness, in particular the complainant. The accused cannot be asked to ascribe motive to the complainant and explain why he says she is lying. That is not the same thing as using the lack of an explanation for the difference between the evidence of the accused and the complainant on a key point as part of a credibility assessment.
10The trial judge referred to the decision of the Court of Appeal in R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749; (2006) 215 C.C.C. (3d) 252 in which the court upheld a trial judge who rejected the evidence of the accused. He did so despite the absence of any obvious flaws in that evidence because it failed to convince when it was stacked up against the evidence of the complainant and certain corroborating evidence, in that case a diary entry. This case was recently cited with approval in another Court of Appeal decision, R. v. Lacombe, 2019 ONCA 298. In that case, the court affirmed that it is open to a trial judge to be satisfied of the accused's guilt beyond a reasonable doubt following careful consideration of the complainant's evidence along with the credibility enhancing effects of any other evidence.
11It is not the task of a summary conviction appeal court to parse the judgment in the court below looking for unfortunate turns of phrase. Here the judge cited the correct principles. The question is whether he applied them.
12In my view there was no onus reversal. Observing that the evidence of the complainant was bolstered by text messages sent to her mother at the time and by her plea for help to the staff at the restaurant, he stated that “these examples are all evidence that is unexplained and not addressed by the accused’s evidence.” He went on to say, “these are facts that need to be answered in some fashion beyond saying “I don’t know”, “nothing happened””. The inference to be drawn from these remarks by the trial judge read in context is not a reversal of the onus but simply that he found the truth to be consistent with the evidence of the complainant and not consistent with the evidence of the accused. He did not accept the bare denials by the accused which he found to be unconvincing.
The Use of Demeanour
13The appellant also criticizes the trial judge for misusing demeanor as part of the credibility assessment. This argument flows from the observation by the trial judge that he found the evidence of the accused to be “glib and superficial”. In this case, the appellant contends that reliance on demeanour was dangerous because the appellant testified that he was on the autism spectrum and the trial judge did not make any reference to the impact this may have had on demeanour.
14The law is clear that judges must be careful in using demeanor as the sole basis for rejecting evidence. Nevertheless, demeanor remains a factor which can be part of the credibility assessment. See R. v. S. (N.), 2012 SCC 72 and a useful discussion in R. v. Bourgeois, 2017 ABCA 32.
Standard of Review and Deference
15Trial judges and findings of fact are entitled to the highest degree of deference. While statements of law and the application of legal principles are reviewable on a standard of correctness, it is not every error that will give rise to appellate intervention.
16I agree that the trial judge would have been in error in describing “an evidentiary shift” if by that he meant that the accused was under an obligation to explain away the evidence. It would not carry the same implications if it was intended to refer to the task of the judge in assessing the evidence. I cannot agree that it was the fundamental error described by the appellant because it does not appear that the trial judge actually shifted the onus. In R. v. H., supra, the trial judge’s reasons made it clear that he would have acquitted but for the confused answer to a question the Court of Appeal held to be highly improper. That is not the case here.
17The evidence of the complainant was supported by her actions at the time and her text and her statements res gestae. It was open to the trial judge to accept that evidence and to reject the denials of the accused as he did. On the evidence before the court of first instance, there was ample basis for accepting the evidence of the complainant. The trial judge did not accept the denials given by the accused. That credibility assessment was his to make. The reasons do not disclose undue reliance upon demeanour. That was only part of the assessment. The judge found the evidence of the complainant to be compelling.
Conclusion
18In conclusion, I do not agree that the reasons of the learned trial judge demonstrate a reversal of onus or inappropriate reliance upon demeanour. In the absence of an error in principal, the findings of the trial judge are entitled to deference. The appeal is dismissed.
Mr. Justice C. MacLeod
Date: December 23, 2019
COURT FILE NO.: 17-0898
DATE: 2019/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen, Respondent
AND:
Cooper Curry, Appellant
BEFORE: Mr. Justice C. MacLeod
COUNSEL: Howard L. Krongold, for the Appellant
Adrian Cleaver and Caitlin Downing, for the Crown, Respondent
decision and reasons
Mr. Justice Calum MacLeod
Released: December 23, 2019