Court File and Parties

COURT FILE NO.: CR-19-00000067-00AP DATE: 20200615 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Appellant – and – E.A. Respondent

COUNSEL: Laurie Gonet, for the Appellant Phillip Mota, for the Respondent

HEARD: February 26, 2020

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code of Canada.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] The Crown appeals from the acquittal of E.A. on one count each of sexual assault and sexual interference. Both allegations relate to the same incident.

[2] The appellant submits that the trial judge effectively found that the respondent was asleep or acting in an automatic state, and that this was the reason for the acquittals. The appellant submits that this constituted error, because the criteria for a defence of automatism were not met, and the trial judge failed to engage with an automatism analysis. The appellant further argues that the trial judge erred by conceptualizing the offences charged as specific intent offences. The appellant asks that if the appeal is allowed, convictions be entered, or in the alternative, that a new trial be ordered.

[3] With respect, I do not read the trial judge’s reasons in the same way as Crown counsel, and I am not persuaded that the trial judge erred. Simply put, although the trial judge largely rejected the respondent’s evidence, the complainant’s evidence did not persuade her beyond a reasonable doubt that the touching was intentional.

The Context of the allegations

[4] The context of the allegations was as follows. The respondent is the paternal grandfather of the complainant. At the time of the allegations, the complainant was nine years old. The respondent resided with his own mother, the great-grandmother of the complainant. The respondent’s son and the complainant’s mother were separated and lived apart at the time of the allegations. The complainant and her two sisters lived with their mother, but visited their father (the respondent’s son) every second weekend. As a result of the distance between the homes of the complainant’s mother and father, her mother would often drop the complainant and her sisters at the respondent’s home to facilitate the weekend visits (i.e., the home of their great-grandmother, and their grandfather, the respondent).

[5] The living arrangements in the home are of some relevance. It was a three story house divided into apartments. The respondent and his mother lived on the first floor, and both had their own bedrooms. The respondent’s daughter (the aunt of the complainant and her sisters) lived in the basement apartment (the second and third floors were separate apartments, and have no relevance to the appeal).

[6] On the weekend of November 3-5, 2017, the complainant and her two sisters were dropped off at the respondent’s home, and set to sleep over. When they slept over, the complainant and her sisters slept in the basement apartment with their aunt and cousin. The complainant, her two sisters, and her cousin slept on a U-shaped sofa, that has chaise-type seating at each end, and a regular sofa in the middle that folded down to make a bed. The complainant and her sisters were getting ready for bed. Their aunt told them she was going to a friend’s house and would return shortly. The complainant did not recall what time this was.

[7] The complainant testified that at some point after that, she heard the respondent (her grandfather) coming downstairs calling for her aunt. The complainant told him she had gone out somewhere. The complainant testified that the respondent was loud, but had no difficulty speaking or walking. The complainant and her sister also testified that earlier in the evening the respondent was drunk, but not falling over or having difficulty communicating.

[8] The complainant testified that the respondent then tried to get her cousin to settle back to sleep, because her cousin had also woken up. He placed the cousin down on the couch beside the complainant. The complainant and her cousin then fell asleep. In her statement to police, the complainant said that the respondent fell asleep on the couch too. The complainant’s statement to police was admitted as part of her trial evidence, pursuant to s. 715.1 of the Criminal Code.

[9] The complainant testified that she woke at some point to the respondent touching or rubbing her “private” above her pyjamas with his hand. She said she was lying on her side, and he was lying behind her. She said he was using a little bit of pressure, but it did not hurt. She could not say how long the touching lasted. She testified that he started to touch her thigh, at which point she went to the kitchen and turned on the light. She testified that she checked the time and it was 1:00 or 2:00 a.m. She testified that the respondent looked confused or curious as to why the light was on. In her statement to police, the complainant said the respondent woke up “like he never knew anything” or “like he did nothing”. She also said he was “kinda like halfway asleep or something”. She testified that she disclosed the incident to her sister the following morning, and to her mother a few weeks later.

[10] The respondent testified that he had gone to a bar that evening, stayed for a few hours, and had three beers. When he arrived home, he saw that his daughter’s car was not in the driveway, so he went to the basement to check on his granddaughters. He testified that called out his daughter’s name. But he was not being loud, as he did not want to wake the girls.

[11] The respondent testified that he was very tired, and lay down between the complainant and her cousin, and fell asleep shortly after. He testified that there was nothing unusual about his level of fatigue that night. He testified that he was not drunk.

[12] The respondent testified that he woke up at some point because the bed was uncomfortable, and made his shoulder hurt. He picked up his phone, and returned upstairs to his bedroom. He denied that he touched the complainant. In cross-examination he was asked about the possibility that touching may have occurred when he was asleep. He said, “I guess that’s possible”. But he agreed that the action of rubbing her vagina could probably not happen by tossing and turning (but to be clear, he was not admitting that act occurred) (Transcript of July 15, 2019, p. 49, l. 20-p. 51, l. 8). He was questioned further about whether his hand could have ended up on the complainant’s belly or thigh while he was asleep. He again said he did not recall touching her, and the only explanation he could think of (if it happened) was that he was tossing and turning (Transcript of July 15, 2019, p. 59, l. 5-p. 61, l. 26).

[13] I pause to note that this line of cross-examination by Crown counsel was effectively drawing the defendant into speculation and/or argument. His evidence was that he was asleep, that he would never touch the complainant in the manner alleged, and that he did not recall touching the complainant in the manner alleged. Given that evidence, any responses from him about how things could have happened while he was asleep was speculation. I do not fault the respondent for answering the questions. Crown counsel at trial (not counsel on appeal) asked them, and there was no objection to them.

The Trial Judge’s reasons for judgment

[14] The trial judge began her reasons with a summary of the complainant’s evidence. She said that she accepted the evidence of the complainant, and that she was satisfied that the respondent touched the complainant. The trial judge found that she was satisfied that there were two incidents of touching (Transcript of July 16, 2019, Reasons for Judgment, p. 2, l. 26-p. 4, l. 31).

[15] After describing the complainant’s evidence about what the complainant said were two touches by the respondent (apparently in quick succession), the trial judge then noted that in terms of describing the touching, there was some vagueness in the description provided by the complainant, and specifically linked that issue to the question of whether the touching was intentional:

Now she could not say how long this rubbing, as she described it, more like rubbing, how long that went on for, and there were also no further specifics about what was meant by that. So and I say that because rubbing can be a back and forth motion just once. So back and forth one time. It could be back and forth six or seven times. There was also no description of whether, because they were on their sides, he had reached over her body to do this, or whether it was something where his hand was just coming from behind where he was laying.

And that becomes more relevant on the later issue with regards intention, and I will get to that again when I get to intention. I put, again, no weight on the issue of credibility or reliability about the fact that she did not give these details. In fairness to the complainant, she was not asked. So she responded to the questions that she was asked, and she gave as much information as she could. And, again, she was testifying as a child. [emphasis added] (Transcript of July 16, 2019, Reasons for Judgment, p. 5, ll. 1-23)

[16] The trial judge then summarized the evidence regarding where the children were sleeping in the basement apartment, and how the defendant ended up lying down in the bed after coming down to ask where his daughter was (the complainant’s aunt) (Transcript of July 16, 2019, Reasons for Judgment, p. 5, l. 25-p. 8, l. 15). In the course of summarizing this portion of the evidence, the trial judge stated:

So, as I have indicated, I am satisfied that what occurred in terms of the touching was as described by the complainant. The issue in this whole trial, really, is not that. The issue here is whether or not the touching was an intentional touching. [emphasis added]

[17] The trial judge then summarized portions of the complainant’s evidence where she described the state of the respondent at the time of the touching and immediately afterward:

In the complainant’s statement to police [which was part of her trial evidence pursuant to s. 715.1], the complainant testified that the defendant, after this touching occurred, she stated, “He woke up like he never knew anything.” She went on later in her statement to indicate that he “woke up like he did nothing. He looked curious when he woke up.” The complainant indicated that she then turned off the light, and then she described him waking up a couple of minutes later looking for his phone so he can go back upstairs. (Transcript of July 16, 2019, Reasons for Judgment, p. 7, ll. 12-22)

She was asked if the defendant said anything when he was touching her and her response was, “He was kinda like halfway asleep or something. I don’t know.”

In the complainant’s testimony in court she indicated that during this touching incident that the defendant did not know why the light was on. She described him as, again, looking confused. When she was asked directly whether or not the defendant may have been sleeping during the touching, she acknowledged that she’s not sure if the defendant was sleeping during the touching and agreed that it was a possibility. (Transcript of July 16, 2019, Reasons for Judgment, p. 8, ll. 13-28)

In re-examination, she indicated that with regards to the second touching, I will describe it as that, she indicated that the defendant was, in her mind, trying to find her thigh so he could do it again. She described it as he was feeling around, but then acknowledged, and this was in re-examination, not cross-examination, that she indicated she didn’t know if he was trying to do it again. (Transcript of July 16, 2019, Reasons for Judgment, p. 9, ll. 5-13)

[18] The trial judge then considered the respondent’s testimony. She did not accept his evidence that he got into the bed between the complainant and her cousin because it was the only empty spot in the sleeping area. She did not accept this evidence because his daughter’s bed was empty (the complainant’s aunt) in the basement apartment, and in addition his own bed was empty upstairs. Rather, the trial judge found as a fact that the respondent made the choice to get into bed between the complainant and her cousin because he had been drinking, and the alcohol had affected his judgment. She found, accepting a different portion of the respondent’s evidence, that he had passed out on the bed between the children, and just stayed there until woken up. (Transcript of July 16, 2019, Reasons for Judgment, p. 9, l. 20-p. 11, l. 20). The trial judge accepted the respondent’s evidence that at some point he woke up, grabbed his cell phone and went upstairs, as this evidence was consistent with the complainant’s evidence. The trial judge also found that the respondent tried to minimize and was evasive about his alcohol consumption, and made excuses for his inability to recall events that night. The trial judge concluded with respect to the respondent’s evidence: “So, again, another example for why I do not accept what the defendant had to say about what happened on the evening in question” (Transcript of July 16, 2019, Reasons for Judgment, p. 11, l. 25-p. 12, l. 20).

[19] The trial judge then returned to the issue of whether the Crown had proven beyond a reasonable doubt that the touching was intentional:

As I indicated, though, this case comes down to the Crown proving each of the requisite elements beyond a reasonable doubt. I am satisfied that there was inappropriate touching as described by the complainant. I am satisfied it was the actions of the defendant that led to the inappropriate touching. The complainant did exactly what she should have done and left and then told someone. I accept that the touching was consistent with being intentional, but that is not the end. I must be satisfied beyond a reasonable doubt which means if there is another reasonable possibility that it was not intentional then the defendant must be acquitted. Now, of course, I have the bald denial by the defendant, but that would not be enough, given my findings with regards to the defendant’s reliability and credibility.

The difficulty is with regards to the complainant’s testimony in regards to, first of all, I should point out that, clearly, she cannot give direct evidence about someone’s intention, so it has to be inferred from the facts. So, again, the complainant was honest and forthright and did her best to describe what occurred, and this is where the details matter though.

With regards to the touching, I have to look at what the possible minimum amount may have been given her description. So what the touching may have only been. It may have, and I say only because it still is inappropriate touching, but it may have been a moving of the hand forward and back in the area of the vagina, and then a, as she put it, feeling, touching her thigh and, in her estimation, an attempt, she thought perhaps to do it again. But the actual physical touching may have amounted to just that, the moving back and forth once and a touching of the thigh overtop of the pants while he was laying next to her.

And the more difficult part of her testimony is that she, on multiple occasions, described him as half asleep or asleep. She indicated he appeared confused, and I also point out the fact that he is in a bed with four other children. He does not know how she may react when he does this. She may call out and scream with the other three children being there. He also, on the complainant’s own testimony, does not know when Ashley [the aunt] is coming home and, in fact, when he came down to the basement thought Ashley might be there. So he is doing this with the possibility that Ashley may be walking in at any moment.

Again, that would not be determinative, but the question is, do all of those issues raise the reasonable possibility that at the time of the touching he was asleep and therefore this was not intentional or half asleep and did not have the intent to do what he did. If I had to choose one or the other, I would clearly choose that he had the intention to do this, and I will make that clear right now. But that is not the test. It is not what I think was more likely than not. It has to be beyond a reasonable doubt, and I just simply cannot say, and this is why I wanted to think about this overnight, but I just simply cannot say that it is not a reasonable possibility. It is not reasonable to say that there is no reasonable possibility that he did this unintentionally. That is a reasonable possibility that there was no intention. Therefore, it is on this sole ground that I find that I am going to have to find the defendant not guilty of both counts. [emphasis added] (Transcript of July 16, 2019, Reasons for Judgment, p. 12, l. 29-p. 15, l. 13)

Did the Trial Judge err by applying a defence of automatism in the absence of a factual foundation and not in accordance with cases such as Parks and Stone?

[20] The appellant submits that the trial judge effectively found that the respondent was asleep or acting in an automatic state, and that this was the reason for the acquittals. The appellant submits that this constituted error, because the criteria for a defence of automatism were not met, and the trial judge failed to engage with an automatism analysis, including the burden of proof on a defendant with respect to automatism.

[21] With respect, in my view the trial judge did not rely on the concept of automatism in her finding that the Crown had not proven that the touching was intentional, and thus had not proven the charges beyond a reasonable doubt.

[22] It is well established that the elements of offence of sexual assault involve an actus reus of touching, in circumstances of a sexual nature, and the absence of consent, and a mens rea of an intention to touch, and knowing, or being reckless of willfully blind to lack of consent (in this case, because of the age of the complainant, consent was not an issue): R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 23 and 25; R. v. Barton, 2019 SCC 33 at para. 87. For purposes of this case, the intentional element as it relates to the touching is the same for the sexual interference count.

[23] In this trial, the central issue was whether the Crown had proven beyond a reasonable doubt that the touching alleged by the complainant was intentional.

[24] The context of the positions of counsel before the trial judge is important in considering the trial judge’s reasons, and what was in dispute in this trial. The position of the Crown was that the complainant was a credible witness, and that the evidence demonstrated that the respondent touched her in a sexual manner, and did so intentionally. The Crown’s position at trial was that the nature of touching, combined with the respondent’s decision to lie down between the complainant and her cousin proved that the touching was intentional. In addition, Crown counsel at trial argued that the complainant’s evidence that the respondent seemed like he was asleep was not reliable, because the complainant was facing away from him, so was not in a position to say if he was asleep. With respect to the respondent’s evidence, the position of the Crown at trial was that he was not a credible witness, and that the court should not accept his evidence that he was asleep, but rather should find that he was awake, but was drunk.

[25] The position of the defence was that the Crown had not proven beyond a reasonable doubt that the respondent intentionally touched the complainant. The defence based this position on the vagueness and lack of detail in the complainant’s evidence regarding the manner of the touching, including that she could not say how long the touching lasted; on the complainant’s evidence that the respondent seemed to have been asleep and appeared confused when she turned the light on; and the respondent’s evidence that he got into the bed, fell asleep, and then later woke and got his phone and left, and that while he was conscious he did not touch the complainant, and he would never touch her inappropriately. The defence position was that given these factors, the Crown could not prove beyond a reasonable doubt that the touching was intentional, as opposed to having happened by accident when the respondent moved in his sleep.

[26] This case was not argued by either party before the trial judge as a sleepwalking or automatism case. Indeed, Crown counsel at trial highlighted that there was no issue of automatism raised at trial by the defence (Transcript of July 15, 2019, Submissions of Crown counsel, p. 116, l. 20-p. 117, l. 10).

[27] Having carefully reviewed the reasons for judgment and the trial record, in my view, the trial judge did not make findings that involved sleepwalking or automatism. In my view, the automatism arguments that the Crown now raises on appeal are not applicable to this case.

[28] Because the trial judge largely (although not entirely) rejected the respondent’s evidence, she had to consider the issue of whether the touching was intentional based on the complainant’s evidence. Since the complainant could not provide direct evidence of what was going on in the respondent’s mind, the trial judge was assessing his intention based on the circumstantial evidence from the complainant of her description of the nature of the touching, the surrounding circumstances, and the complainant’s observations of the respondent. What the trial judge was or was not able to find about the nature of the touching (i.e., the manner of the touching, how long it lasted) was central to the assessment of whether the touching was intentional. That is, depending what factual findings are made about the nature of particular touching, a trier of fact may draw different inferences about whether or not it has been proven beyond a reasonable doubt that the touching was intentional (this would, of course, have to be done in the context of all of the evidence).

[29] Reading the trial judge’s reasons as a whole, in my view she simply was not persuaded beyond a reasonable doubt that the touching was intentional. The trial judge was of the view that the touching could be intentional (at p. 13 of the reasons for judgment she uses the language of the touching being “consistent” with being intentional), but she was not persuaded beyond a reasonable doubt that it was intentional. The trial judge refers to a number of factors that played a role in her being left with a reasonable doubt, including, the lack of detail and vagueness from the complainant about the manner of the touching, and her inability to say how long it lasted, which limited the trial judge’s ability to draw an inference of intention from the manner of the touching (Reasons for Judgment, pp. 5, 13-15); the complainant’s observations about the respondent when she turned on the light (Reasons for Judgment, pp. 7, 8, 14-15); and the surrounding circumstances, including that as far as the complainant and respondent knew, her aunt could return any time, and the fact that the three other children were present in the bed (Reasons for Judgment, p. 14).

[30] Of these various circumstantial factors, the two most important appear to be: first, that the trial judge was unable to make firm conclusions about the nature of the touching, given vagueness and lack of detail in the complainant’s evidence about the manner of touching (Transcript of July 16, 2019, Reasons for Judgment, pp. 5, 13-15); and second, given the complainant’s description of the respondent when she turned on the light, the trial judge could not rule out (i.e., was left with a reasonable doubt) that the touching happened by accident when the respondent was asleep (Reasons for Judgment, pp. 7, 8, 14-15). Given the trial judge’s inability to make firm findings about the manner of the touching, she could not rule out that it was accidental touching by someone who was asleep. Reading the trial judge’s reasons as a whole, it is clear to me that this is not a finding that the respondent was in an automatic state and engaging in what would otherwise appear to be an intentional act. Rather, the trial judge was left in a reasonable doubt about whether he was actually asleep and just moving around.

[31] Counsel for the appellant in both the factum and oral argument on appeal asserted that the trial judge disbelieved the respondent, and “accepted all of the complainant’s evidence” (see for example, Appellant’s Factum, paras. 15, 36). Although I agree that the trial judge largely rejected the respondent’s evidence, in my view it is a misreading of the trial judge’s reasons to say that she “accepted all of the complainant’s evidence”. In my view, the trial judge accepted that the complainant was credible in the sense of being honest, and that there was some kind of touching in the area of her vulva (see for example, Reasons for Judgment, p. 2, ll. 26-31; p. 7, ll. 5-7). But the trial judge’s reasons are clear that she had concerns, given the vagueness and lack of detail in the complainant’s evidence description of the manner of the touching and her inability to say how long it lasted for, about whether the complainant’s evidence provided a basis to infer (beyond a reasonable doubt) that the touching was intentional (see for example, Reasons for Judgment, p. 5, ll. 1-16; p. 7, ll. 7-10; p. 9, ll. 5-13; p. 13, l. 26-p. 14, l. 8).

[32] With the greatest of respect to the arguments advanced on appeal by Crown counsel, this case is not like cases involving automatism, such as R. v. Parks, [1992] 2 S.C.R. 871, R. v. Stone, [1999] 2 S.C.R. 290, R. v. Luedecke, 2008 ONCA 716, or R. v. Hartman, 2015 ONCA 498. In each of those cases, the nature of the act at issue was such that the inference that the act was volitional or intentional was almost inescapable, absent some explanation (i.e., expert evidence in relation to automatism). In Parks, the defendant drove 23 kilometres, and then stabbed and beat his in-laws, killing one of them. In Stone, the defendant stabbed his wife over 40 times. Similarly, in cases where so-called “sexsomnia” has been advanced as a defence, the acts alleged appeared on their face to be volitional or intentional, and for that reason, the defence required evidence of parasomnia to raise the issue of lack of intention or lack of voluntariness (the sexual assault alleged in Hartman was an act of anal intercourse. The sexual assault alleged in Luedecke was an act of sexual intercourse).

[33] What is clear from these cases is that where an act by a defendant is one that a trier of fact would infer was volitional or intentional from the nature of the act itself (for example, due to its complexity, or being carried out over an extended period of time), if a defence akin to automatism is raised, then expert evidence will be required, and a court will be required to engage in the type of analysis described in cases such as Stone, including the reverse onus on the defence. This is because the law presumes people act voluntarily or intentionally, where, because of the nature and circumstances of a particular act, the act at issue appears intentional. However, where the evidence about a particular act and the surrounding circumstances is not such that a particular act appears intentional, the automatism analysis is not engaged.

[34] The nature of the trial judge’s factual finding in this case is different that the situation in cases like Parks and other automatism cases. In this case, the trial judge had concerns about the respondent’s credibility, which she explained in her reasons. Because of this, she did not believe most of the respondent’s evidence, and was not left in a reasonable doubt by his evidence (the first two branches of the W.(D.) analysis). However, although she found that the complainant was credible in the sense that she was an honest witness, because of some vagueness and lack of detail in the complainant’s description of the manner of the touching, including her inability to say how long it lasted, and the circumstances outlined by the complainant that the respondent appeared to have been asleep and woken, the trial judge was not persuaded beyond a reasonable doubt that the touching was intentional.

[35] In my view, reading the trial judge’s reasons as a whole, the reason she acquitted the Respondent was because she found that the Crown had failed to prove beyond a reasonable doubt that the touching was intentional. As the Court of Appeal has recently reaffirmed in R. v. Darnley, 2020 ONCA 179 at para. 35, an acquittal need not be based on a conclusion about innocence, but may properly be based on an inability to conclude guilt.

Did the Trial Judge conceptualize the offences as specific intent offences?

[36] The Appellant also argued in its written argument that the trial judge erred by conceptualizing the offences as specific intent offences. I note that Crown counsel did not address this issue in oral argument.

[37] With respect, reading the trial judge’s reasons, I see no basis for the conclusion that she conceptualized the offences as specific intent offences. Nowhere in her reasons does the trial judge say anything suggesting that they are specific intent offences.

[38] The offences of sexual assault and sexual interference are offences that are tried regularly in the Ontario Court of Justice, and the judges of that court are familiar with the fact that these are general intent offences. The trial judge was not required to expressly state in her reasons that the offences are general intent offences.

[39] In the absence of some particular language in the reasons for judgment suggesting that the trial judge treated the offences as specific intent offences, I am not prepared to find that this experienced trial judge committed this alleged error.

Conclusion

[40] For these reasons, I am not satisfied that the trial judge made any reversable error. The appeal is dismissed.

[41] I thank both counsel for their helpful and focussed submissions.

[42] In light of the current restrictions on court operations due to the pandemic, these reasons are official with the electronic signature below.

Justice J. Copeland

Released: June 15, 2020