COURT FILE NO.: SCA(P)1435/19
DATE: 2020 04 14
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
E. Norman, for the Crown Respondent
Respondent
- and –
VLADAMIR SAVVATEIKIN
D. Frost and K. Ivory, for the Appellant
Appellant
HEARD: October 21, 2019
REASONS FOR JUDGMENT
[On appeal from the judgment of Justice P.T. O’Marra
dated August 13, 2018]
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
D.E HARRIS J.
[1] The Appellant, Vladamir Savvateikin, appeals his conviction entered by Justice P.T. O’Marra on one count of sexual assault committed against E.I on February 28, 2017.
Introduction
[2] The appellant, a registered massage therapist, had massaged the complainant several times over a period of months. While massaging the complainant on February 28, 2017, he was alleged to have touched her vagina and at the same time, attempted to kiss her. The appellant’s hand went under her underwear and was on her clitoris for approximately 5 seconds. She turned her head to avoid the kiss, immediately got up from the table and told the defendant she had to leave. The appellant apologized and left the room. About an hour after she left, the appellant texted the complainant, “Please accept my apology.”
[3] The complainant told her husband M.I. the next day that she had been sexually assaulted by the appellant. On March 6, 2017, the appellant invited the complainant by text to have a complimentary massage the next day in recognition of International Women’s Day. M.I. texted back, on his wife’s behalf, that her husband would like to attend the clinic instead.
[4] M.I. testified that he confronted the appellant at the clinic. The appellant did not admit he had done anything wrong. He told M.I. not to worry, he would make it up to the complainant. M.I. re-attended the clinic a few days later and the appellant gave him an envelope which contained an unsigned agreement. The incident was defined as “Treatments unsatisfactory.” In the draft agreement, the appellant offered to pay the cost of the seven previous $90 treatments the complainant had received, a total of $630, plus $370 in “compensation” for a total of $1,000.
[5] M.I. struck out the $1000 and $370 and wrote at the bottom of the page $10,000 plus $630, showing a total of $10,630. He returned the envelope to the appellant. No deal for compensation was ever agreed upon.
[6] On March 24, 2017, the complainant reported the assault to the police.
[7] The appellant testified in his own defence. He denied touching the complainant on the vagina. He testified that he thought there was a misunderstanding with the complainant and that is why he texted the apology soon after she left the clinic. The appellant also admitted writing the settlement document and offering to pay $1,000 but said it was merely to get rid of the allegation.
[8] The trial judge in thorough, careful reasons, disbelieved the appellant and found the Crown had proved its case beyond a reasonable doubt.
Grounds of Appeal
[9] Counsel for the appellant stated that he would not be basing his oral argument on the grounds in his factum but nor was he conceding them. The following grounds were argued orally:
The trial judge erred in not considering the defence of accident.
The trial judge erred in putting reliance on the appellant’s failure to inquire about the details of the allegations when first confronted by M.I. at his clinic.
The trial judge erred in holding that M.I.’s evidence was “largely irrelevant” to whether or not the sexual assault took place.
[10] For the following reasons, I would dismiss the appeal.
ISSUE #1: DID THE TRIAL JUDGE ERR IN NOT CONSIDERING THE DEFENCE OF ACCIDENT?
[11] The trial judge was right not to consider the defence of accident. It was not raised by the defence explicitly or implicitly. The complainant’s evidence was of an advertent, deliberate act of sexual touching. The appellant put his hand under her underwear and touched her vagina for a period of about five seconds.
[12] The appellant at no point in his evidence allowed that he may have touched the complainant’s vagina accidentally but had not intended to touch her. Nor could this be drawn from his evidence by implication.
[13] The defence did not raise accident in closing submissions. Nor did the Crown make submissions on accident.
[14] There was no air of reality to accident: R. v. Cornelius, 2011 ONCA 551, [2011] O.J. No. 3609 at paras. 45-50; R. v. Abdow, 2013 ABCA 120, [2013] A.W.L.D. 3031 at paras. 19-31. A trial judge should not consider issues not raised by counsel and which lack any evidentiary foundation. This ground of appeal has no merit.
ISSUE #2: DID THE TRIAL JUDGE ERR IN IMPUGNING THE APPELLANT’S CREDIBILITY BECAUSE OF A FAILURE TO INQUIRE ABOUT THE DETAILS OF THE ALLEGATION WHEN FIRST CONFRONTED BY THE COMPLAINANT’S HUSBAND?
[15] Upon appeal, it is argued that the trial judge erred in depreciating the appellant’s credibility because he had failed to inquire about the allegations in the initial confrontation with the complainant’s husband, M.I. Counsel for the appellant argues that the evidence was clear that the appellant already knew what the allegations were and therefore there was no reason to inquire. The trial judge’s negative credibility finding was made in error.
[16] I disagree. Counsel for the appellant makes what is at bottom a factual argument. But this argument was not made at trial. In fact, there was no evidence of substance supporting the contention that the appellant had been previously told the details of the allegation. Contrary to what is now argued, the appellant in his evidence said that he did not inquire because he had done nothing wrong, not because he already knew what the allegations were.
[17] Brief reference to the evidence and argument at trial will illustrate these conclusions. In the passage attacked by the appellant, the trial judge recounted at paragraph 76 of his reasons that the appellant testified that he was concerned with his reputation. As a consequence, the trial judge was troubled by the evidence that upon being initially confronted at his clinic by M.I., the appellant did not inquire about the details of the allegations. It was logical to find out what the allegations were if he was so concerned about his reputation.
[18] The trial judge continued and said that the appellant’s response in cross-examination was that he did not ask because he did nothing wrong. There had been a “nice treatment” and it had gone “very well.” However, the appellant in his examination-in-chief had said that everything was not good when the complainant left the clinic. The complainant was speechless. Because the appellant felt he might lose her as a client, he sent the apology text. The trial judge concluded that the appellant’s examination-in-chief could not be reconciled with his cross-examination.
[19] In the following paragraph, paragraph 77, the trial judge found it peculiar that the appellant was willing to enter into the settlement he drafted without learning the details of the complaint. At paragraph 79, the trial judge concluded that the texted apology and the proposed settlement showed that the appellant was attempting to cover up his guilt. As a consequence, the trial judge concluded that he did not believe the appellant nor was he left in a reasonable doubt by his evidence.
[20] There are then two related aspects to the trial judge’s reasons on this point: 1. No inquiry was made by the appellant of M.I. about the details of the complaint. This undermined the appellant’s credibility; and 2. There was an inconsistency between the appellant’s examination-in-chief in which he said that the complainant was upset and his cross-examination where he said that the massage had gone very well. This too weighed against the appellant’s credibility.
[21] The appellant’s argument attacks the first aspect of the trial judge’s reasoning but does not challenge the second, the testimonial inconsistency. Upon examination, the record does not support the appellant’s allegation of error either based on the Crown evidence or the appellant’s own evidence.
[22] M.I. testified that he informed the appellant during this first visit that his wife told him what happened. M.I. testified that he then asked the appellant what happened. The appellant started telling M.I. that M.I. did not understand the massage business. M.I. said that he knew it did not include putting his hands down his wife’s underwear and trying to kiss her. The appellant said not to worry and tried to calm M.I. down. In M.I’s evidence, there was no indication that he ever gave the appellant specifics that it was alleged that he had touched the complainant’s vagina and that the touching lasted for five seconds.
[23] The appellant, when asked about this in cross-examination by the Crown, was initially unresponsive. When the Crown persisted, the appellant admitted that he did not ask about the allegations. In explaining this, he said he had not done anything wrong; it was a nice treatment and had gone well. This evidence was reviewed by the trial judge at paragraph 70 of his reasons.
[24] In closing submissions, the prosecutor argued that an inference should be drawn against the appellant’s credibility because he did not inquire of M.I. about the details of the allegations. On the other hand, appellant’s counsel made no reference to the issue either in his initial submissions or in reply to the Crown’s closing submissions.
[25] Contrary to what is now argued, the trial judge, in agreeing with the prosecutor’s argument, cannot be faulted. While M.I. informed the appellant that his wife told him what happened but this did not include the details of the allegations. Not only did the appellant not testify that he was previously informed of the specifics of the complaint, he explained his failure to inquire by saying only that the treatment went well.
[26] The trial judge’s negative credibility finding against the appellant was premised on the appellant appearing much more interested in appeasing M.I. and sweeping the allegations away than in discovering what he had allegedly done. This credibility finding was entirely reasonable and was fully supported by the evidence of both the appellant and M.I.
[27] The factual premise of the argument made now on appeal was never relied upon by defence counsel at trial and there was and is no real foundation for it in the evidence. I would reject this ground of appeal.
ISSUE #3: DID THE TRIAL JUDGE ERR IN HOLDING THAT M.I.’S EVIDENCE WAS “IRRELEVANT?”
[28] This ground of appeal is based on a complaint that the trial judge summarily dismissed M.I.’s alleged extortion of the appellant and, together with it, the suggestion that the complainant in league with her husband manufactured a false complaint for monetary gain.
[29] When the trial judge turned at paragraph 81 to the third branch of W.D., the question of whether guilt beyond a reasonable doubt had been proved on the Crown’s evidence, he began by considering M.I.’s evidence. He stated that he agreed with the Crown’s submission that M.I.’s evidence was “largely irrelevant” to whether there had been a sexual assault.
[30] The appellant argues that this was reversible error as M.I.’s evidence was critical to the defence contention that the complainant together with her husband extorted the appellant by making a false allegation of sexual assault. The trial judge, according to the appellant, in finding that M.I.’s evidence was irrelevant, rejected this theory out of hand.
[31] In my view, the trial judge’s remark was nothing more than an example of good point-first writing. Justice Laskin has been the leading proponent of this persuasive and effective style of legal writing in Canada, teaching it frequently in a dynamic presentation to judges and counsel over many years. He says in “Forget the Wind-Up and Make the Pitch: Some Suggestions for Writing More Persuasive Factums”
(https://www.ontariocourts.ca/coa/en/ps/speeches/forget.htm):
- Point First Writing
Of all of my suggestions, I consider point-first writing the most important. …
Do not write your factum like a mystery novel in which the conclusion is revealed only in the final paragraph, if at all. In other words, give the context before discussing the details. … Whenever you are about to dump detail on the reader, give the reader the point of the detail first.
[footnotes omitted]
[32] While this particular essay is directed specifically at counsel and factum writing, it is equally applicable to judgment writing and is taught by Justice Laskin in that context as well.
[33] The first sentence Justice O’Marra wrote, that M.I.’s evidence was irrelevant to whether the sexual assault occurred, was simply a conclusion based on the reasoning he embarked on immediately afterwards. In his argument, the appellant detaches the trial judge’s point-first conclusion from the details that he immediately used to support the conclusion. This is not a tenable way to read the judgment.
[34] Continuing down the paragraph following the sentence impugned by the appellant, Justice O’Marra gave the details behind his conclusion of irrelevancy. He found that M.I. operated on his own, not in concert with the complainant, to negotiate a settlement. The trial judge said that this was supported by the complainant’s evidence. She did not see the settlement contract but was only told by M.I. about it.
[35] The trial judge continued in his reasons to say that M.I. may have seen the opportunity to make some easy money by writing in the $10,630 figure. The trial judge rejected M.I.’s evidence that this was a mistake and rejected his evidence that he intended to write in a much higher number in a sarcastic sort of way. This inconsistency, however, did not alter the way M.I.’s evidence should be assessed.
[36] The trial judge did not find it unusual that M.I. refrained from reacting for about 6 days after being told about the incident by the complainant. His explanation that he wanted to cool down was reasonable. The trial judge accepted that he told the complainant to report the matter to the police.
[37] The trial judge ended his discussion of M.I.’s evidence the same way he had started. He found at paragraph 84 that M.I. was credible and trustworthy and did not believe that “his evidence added to or subtracted much from the Crown’s case.”
[38] These are findings of fact well rooted in the evidence and not reviewable on appeal. If the trial judge had ignored altogether the issue of whether the complainant had participated with her husband in attempting to extort the appellant, that would have been to ignore a key argument made by the defence on this trial. But the trial judge fully engaged with this issue and rejected the argument made by the defence. He was operating within his discretion in doing so.
OTHER ISSUES
[39] Having reviewed the other grounds of appeal raised, including those in the appellant’s factum, none have merit.
[40] In my view, the trial judge did not commit an error of law, did not misapprehend the evidence in the manner described in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, nor did he make an unreasonable finding as discussed in R. v. Beaudry 2007 SCC 5, [2007] 1 S.C.R. 190. His reasons are sufficient to permit appellate scrutiny: R. v. Sheppard 2002 SCC 26, [2002] S.C.J. No. 30.
[41] The conviction appeal will be dismissed subject to my comments below.
POSTSCRIPT
[42] The appellant was sentenced to a 90 day intermittent jail sentence by the trial judge. A sentence appeal was originally filed but has since been abandoned.
[43] The appellant, after oral argument on the appeal was completed, was released on bail pending judgment on essentially the same terms as his bail pending appeal release. The surrender terms were that he was to surrender in and start serving his intermittent sentence the first Friday after the release of the reasons for judgment on the appeal.
[44] The COVID-19 pandemic now renders serving a sentence quite a different proposition than it was when the sentence was originally imposed. The threat to inmates and staff of COVID-19 in jails is a forbidding one. There should be consideration given to deferring intermittent sentences like this one.
[45] Another reason to defer the jail sentence in this case is that the jails, in taking measures to protect against the spread of the virus, are reducing their inmate populations. For the greater good, individuals should not now be in jail unless absolutely necessary.
[46] What I propose to do, subject to the views of counsel which I invite by way of email, is to cancel the bail entirely. I would then defer the serving of the appellant’s sentence to a fixed date agreed upon by counsel for the purpose of avoiding the additional risk to the appellant posed by the COVID-19 contagion in the jails.
[47] For the purposes of clarity, in order to facilitate this or any alternative solution suggested by counsel, these reasons are not final reasons and do not trigger the bail pending judgment condition requiring the appellant to surrender into custody.
D.E HARRIS J.
Released: April 14, 2020
COURT FILE NO.: SCA(P)1435/19
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SUMMARY CONVICTION APPEAL COURT
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REASONS FOR JUDGMENT
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