Court File and Parties
COURT FILE NO.: CR-19-00001749-00AP DATE: 2020 07 21
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN P. Renwick, for the Respondent Respondent
- and -
P.G. N. Jackson, for the Appellant Appellant
HEARD: July 2, 2020
REASONS FOR JUDGMENT
[On appeal from the judgment and sentencing of Justice A. MacKay dated February 5, 2019 and August 16, 2019]
[Information contained herein cannot be published, broadcast or transmitted pursuant to Section 486 of the Criminal Code of Canada]
Dennison J.
INTRODUCTION
[1] The trial judge convicted the appellant of sexual assault after a one-day trial. The trial judge found that the appellant sexually assaulted a Walmart employee while she was stocking shelves. The appellant walked past her two times. On the third time, he walked between her and the shelf, where there was very little room, and touched her buttocks. He said, “excuse me” as he walked by. She immediately contacted security. The security guard observed the appellant follow two other women in the store and recorded the appellant masturbating in the store within eight minutes of the sexual assault. Following conviction, the trial judge imposed a suspended sentence and probation.
[2] The appellant appeals both the conviction and the sentence. He raises three grounds of appeal.
[3] First, the appellant submits that the trial judge erred in admitting the security guard’s evidence. At trial, the appellant argued that the guard’s evidence was bad character evidence and was not probative of whether the appellant intentionally or accidentally touched the complainant. The trial judge disagreed and admitted the evidence. The appellant submits that the evidence should not have been admitted because the trial judge failed to consider equally plausible theories for the appellant’s behaviour that would not permit an inference that he was in a sexualized state at the time he touched the complainant. Because there were equally plausible theories for the appellant’s after-the-fact conduct, the evidence had no probative value to the issue of the appellant’s intent at the time of the alleged assault and should not have been admitted.
[4] Second, the appellant submits that the trial judge erred in convicting the appellant because she did not consider all reasonable alternative inferences before using the after-the-fact conduct to find the appellant guilty beyond a reasonable doubt. The appellant submits that this analysis was particularly important because the trial judge found that without the after-the-fact conduct, she would not have been satisfied beyond a reasonable doubt that the appellant sexually assaulted the complainant.
[5] Finally, the appellant submits that the trial judge erred in imposing a suspended sentence as opposed to a conditional discharge. The appellant submits that the sentence imposed is disconnected to the sentencing reasons of the trial judge. He further argues that the consequences of the sentence, including a criminal record and a SOIRA order for ten years, is overly harsh given the offence and the circumstances of the offender.
[6] For the reasons outlined below, the conviction appeal and the sentence appeal are both dismissed.
SUMMARY OF FACTS
[7] The complainant worked at Walmart. On December 20, 2017, she was stocking plants on store shelves. There was a buggy in front of her and she stood behind the buggy as she put the plants on the shelf. She was alone in the aisle.
[8] The appellant passed her in the aisle twice. On the first two passes, he walked down the side of the aisle away from the shelf where there was four feet of space. The third time, he came between the buggy and the shelf where the complainant was working. There was only 18 inches of space. As he passed, she felt his hand on her right buttocks. He said “excuse me” when he passed her and kept walking. There was nothing that prevented the appellant from walking the same route as he had the first two times.
[9] The complainant felt uncomfortable and was concerned because the appellant was in her personal space. After touching her, the appellant continued walking for about ten seconds, stopped, and then looked at her before he continued walking to another aisle in front of her. He stood watching her and pretended to look busy. The complainant was scared and left the area to call security.
[10] The only other witness at trial was the security guard. She was in the security office when the complainant called. The complainant provided a description of the appellant and the guard was able to locate him on the security cameras. The guard watched the appellant on the security cameras for less than five minutes.
[11] The guard became concerned that she would lose sight of the appellant because he entered an area where there were no cameras. She left the office because she wanted to see if he was bothering other customers. She located the appellant one minute later. The guard watched the appellant observe two other females who were shopping in the store. He followed the women and was not looking at any merchandise. When the women left the aisle, he followed.
[12] He followed one of the women into the shoe department. The guard noticed that the appellant’s “hand was in his pant pocket and he was making stroking movements with his hand.” The guard taped the appellant from approximately ten feet away. It appeared that he was masturbating. The security guard stopped recording when she contacted police. This video was made an exhibit at trial.
TRIAL JUDGE’S REASONS ON CONVICTION
[13] The appellant objected to the admission of the security guard’s evidence. He submitted that the evidence was irrelevant and was not probative of the sexual assault. The security guard did not see the sexual assault. The appellant argued that the evidence was bad character evidence that the Crown sought to use for the impermissible purpose of suggesting that the appellant was more likely to have committed the offence because he followed two other women and masturbated.
[14] The Crown submitted that the evidence was not being admitted as bad character evidence but was part of the narrative regarding what happened in the store and was relevant to the sexual assault.
[15] The trial judge held that the evidence would be heard in a voir dire and then she would hear further submissions and determine whether the evidence should be admitted.
[16] Neither counsel made further submissions after the evidence was heard. The trial judge ultimately found that the evidence was probative of whether the touching of the complainant was accidental or not given the temporal connection to the complainant’s evidence. The evidence was therefore admitted.
[17] Once this evidence was admitted, the Crown closed its case. No further evidence was called.
[18] In closing submissions, the appellant’s counsel submitted that the Crown had not proven that the appellant had intentionally touched the complainant for a sexual purpose. He submitted that the trial judge should not infer from the appellant’s after-the-fact conduct that because he masturbated after the touching, that “at all points in time he was in a state of arousal when he [was] in the Walmart.” He submitted that it was possible that when the appellant accidentally touched the complainant, that may have sexually aroused him.
[19] The trial judge gave oral reasons later that day convicting the appellant. The trial judge reviewed the evidence and recognized that the Crown had to prove the appellant guilty beyond a reasonable doubt. The trial judge held that if she only considered the complainant’s evidence, she would have been of the view that the appellant probably assaulted the complainant. However, when the complainant’s evidence was combined with the security guard’s evidence that minutes after the incident, the appellant was observed following other women and masturbating, the trial judge was satisfied beyond a reasonable doubt that the appellant was in a sexualized state when he touched the complainant and the touching was not an accident.
[20] The trial judge rejected the submission that the appellant was simply browsing in the store. This finding was based on the fact that he followed at least two women and that he chose to pass the complainant where there was no space despite having passed her at least twice before where there was space. The trial judge found that the appellant wanted to touch the complainant for a sexual purpose and for his own sexual gratification.
CONVICTION APPEAL DISCUSSION
Issue #1: Did the Trial Judge Err in Admitting Evidence of the Appellant’s After-the-fact Conduct?
Position of the Parties
[21] The appellant submits that the trial judge erred in admitting the evidence that the appellant followed two women and masturbated. He submits that the trial judge erred in law because she did not consider equally plausible alternative inferences before admitting the evidence. Counsel submits that there were equally alternative inferences that could be drawn from the evidence. For example, he submits that the accidental touching of the complainant could have aroused the appellant into a sexualized state. Alternatively, someone or something else could have occurred in the eight minutes between the accidental touching and the appellant masturbating that aroused the appellant into a sexualized state. Because there were equal alternative inferences that could be drawn from the evidence, the evidence could not be probative of whether the touching of the complainant was accidental or not. He therefore submits that the evidence should not have been admitted.
[22] The Crown submits that the trial judge applied the correct test in determining that the circumstantial evidence was admissible. She found that the evidence of the appellant following two women and then masturbating within eight minutes of touching the complainant was probative of the appellant’s intent at the time of the touching. It was close in proximity to the alleged sexual assault and formed part of the narrative of what occurred in the Walmart. Crown counsel further submits that the inferences suggested by the appellant are speculative and therefore there was no need for the trial judge to consider the alternative inferences.
Applicable Law
[23] After-the-fact conduct is not fundamentally different from other kinds of circumstantial evidence: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 22. After-the-fact conduct evidence allows a trier of fact to draw particular inferences based on a person’s words or actions. The trier of fact relies on logic, common sense and experience in drawing such inferences. The inferences that may be drawn “must be reasonable according to the measuring stick of human experience”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112. The inference that may be drawn “will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence”: Calnen, at para. 112. The fact that other potential inferences may be drawn from the evidence does not render it inadmissible. In most cases, it will be for the trier of fact to determine what inferences they accept and the weight to be ascribed to those inferences: Calnen, at para. 112; R. v. Smith, 2016 ONCA 25, at paras. 72, 77.
[24] After-the-fact conduct evidence is admissible if it is relevant to a live material issue at trial and its admission does not offend any other exclusionary rule of evidence, including that its probative value exceeds its prejudicial effect: Calnen, at para. 107; White (2011), at para. 31; R. v. White, , [1998] 2 S.C.R. 72 at para. 26.
[25] The relevancy threshold is not high. Evidence is relevant if it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”: Calnen, at para. 108; White (2011), at para. 36.
Analysis
[26] The main issue at trial was whether the touching was intentional and of a sexual nature, or whether it was an accident. The Crown sought to introduce evidence that the appellant followed two women and masturbated after touching the complainant to show that the touching of the complainant was done for a sexual purpose and was not an accident. This circumstantial evidence just happened to take place after the alleged offence.
[27] At trial, the appellant submitted that the security guard’s evidence had no probative value to the sexual assault. The evidence was not about the sexual assault. The evidence of masturbation was bad character evidence and would be improperly used to find that the appellant was more likely to have committed the offence.
[28] On appeal, the appellant further submits that the evidence was not probative because there were other equally plausible inferences to be drawn from the appellant’s after-the-fact conduct. Counsel submits that equally plausible inferences for his conduct include that:
- The appellant accidentally touched the complainant and that contact sexually aroused him resulting in him following two other women and masturbating.
- After the alleged offence, something or someone else sexually aroused him resulting in him following two other women and masturbating.
- The appellant thought of something that aroused him during the eight minutes that followed the accidental contact with the complainant, causing him to follow two other women and masturbate.
- The appellant was aroused the whole time he was in the store but the contact was still accidental.
[29] I find that the trial judge properly admitted the evidence. The trial judge’s reasons addressed the appellant’s concern about the improper use of bad character evidence and explained why the inference the Crown sought to draw was reasonable and probative based on all of the evidence.
[30] The trial judge set out the test for relevancy as it relates to circumstantial evidence. She relied on R. v. Candir, 2009 ONCA 915, at para. 47, which states that “[r]elevance exists as a relation between an item of evidence and a proposition of fact that the party adducing the evidence seeks to prove or disprove by the introduction of the evidence”.
[31] The trial judge also recognized that the threshold for relevancy is not high. She again referred to Candir, at para. 48, which states as follows:
To determine whether an item of evidence is relevant, a judge must decide whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a material fact more probable than it would be otherwise: see R. v. Cloutier, , [1979] 2 S.C.R. 709, at pp. 730-32. The exclusivity or cogency of the inferences that may be drawn from the item of evidence have no place in the inquiry into relevance
[32] The trial judge held that based on the evidence heard thus far at trial, the appellant’s behaviour less than eight minutes after the alleged touching was probative as to whether the touching was accidental or not. The trial judge found that while the evidence could be characterized as bad character evidence, as submitted by the appellant, “it really, forms part and parcel of the activity that was going on at the store. It was not separated by time and place”.
[33] The trial judge explained that had the events been separated by more time, the evidence would not have been as probative, and its probative value would not have outweighed its prejudicial effect. In coming to this conclusion, the trial judge referred to the decision of R. v. Riley, 2017 ONCA 650. In that case, the Court of Appeal for Ontario held that, “depending on the context of the case, a trial judge may properly take into account the temporal connection between the discreditable conduct evidence and the charged offences in assessing its probative value”: at para. 160.
[34] There is no error in the trial judge’s threshold determination that the evidence was admissible. The trial judge understood that the Crown wanted to introduce the circumstantial evidence to prove that the appellant had a sexual intention when he touched the complainant. In assessing what inferences could be drawn, the trial judge properly considered what the appellant did and the fact that his actions were shortly after the alleged sexual assault. It was open to the trial judge to find that the admission of this evidence made it more likely that the appellant touched the complainant for a sexual purpose than the proposition would be in the absence of this evidence.
[35] I do not find that the trial judge erred in admitting the after-the-fact conduct evidence because her reasons do not mention any alternative theories for the appellant’s after-the-fact conduct.
[36] First, at the voir dire, the appellant did not suggest any equally alternative plausible inferences to the trial judge. While I recognize that the trial judge is the gatekeeper in determining the admissibility of evidence, the trial judge cannot be expected to engage in a creative exercise of trying to dream up equally alternative inferences.
[37] Second, assuming for the moment that the alternative explanations now put forward by the appellant are plausible, “the mere existence of two or more plausible explanations given for after-the-fact conduct does not make that conduct equally consistent with those explanations such that a proffered inference may lose its probative force”: Calnen, at para. 144. What must be determined is whether the evidence is more capable of supporting the inference than the other proposed inferences. The Supreme Court of Canada noted the following at para. 145 of Calnen:
Whether an inference is available is measured against what is reasonable and rational according to logic, human experience, and common sense. It is this combination, which informs the determination of whether the impugned evidence makes the proposition more or less likely. This is an evaluative assessment, which is not defeated simply by listing alternative explanations. As long as the evidence is more capable of supporting the inference sought than the alternative inferences, then it is up to the fact finder, after considering all explanations, to determine what, if any, inference is accepted, and the weight, if any, to be provided to a piece of circumstantial evidence. [Emphasis added.]
[38] The evidence that the appellant followed two women and masturbated was more capable of supporting the inference that the appellant was in a sexualized state when he touched the complainant than the other inferences the appellant now seeks to have the court draw.
[39] The trial judge applied human experience and common sense when she explained why the introduction of this evidence would assist her in determining whether or not the appellant accidentally touched the complainant. The trial judge also considered the way the appellant walked past the complainant and that within eight minutes afterwards he followed two women and masturbated inside the store. As explained in Calnen, at para. 146, “the strength of the inferential link between the evidence in question and the fact to be established is often assessed based on factors such as what was done, when it occurred, and the risks associated with such conduct”. In this case, what was done and the timing of the after-the-fact conduct created a reasonable inference that the appellant was in a sexualized state when he touched the complainant.
[40] In contrast, the inferences the appellant seeks to have the court draw are not compelling. The appellant submits that it is equally plausible that the appellant walked past the complainant twice where there was enough space, then walked past the complainant where there was not enough space, and accidentally touched the complainant on the buttocks. The touching sexually aroused him to the point of masturbating in a public place. He also submits that it is equally plausible that someone or something sexually aroused him after he accidentally touched the complainant, or that he was always sexually aroused but the touching of the complainant was nonetheless an accident.
[41] I do not find that the inferences proposed by the appellant are as compelling for the following reasons.
[42] First, it is not equally as compelling that the touching was an accident as opposed to purposeful given that the appellant walked past the complainant twice where there was enough room, yet on the third time he walked past the complainant where there was not enough room and touched her buttocks.
[43] Second, I do not find that as a matter of common sense, if a person accidentally touches a person on the buttocks, this would sexually arouse them to the point of masturbating in public. The reaction is out of proportion with the underlying event.
[44] Third, as a matter of common sense and logic, when the appellant’s actions prior to masturbating, the proximity of the touching, and the appellant’s after-the-fact conduct is considered, it is not as likely that someone or something else aroused the appellant.
[45] In coming to this conclusion, I am cognizant of the appellant’s submission that his conduct was abnormal or not acceptable. This does not however detract from the court’s ability to apply logic, human experience and common sense when considering whether there are plausible alternative inferences and whether such inferences can equally be drawn from the evidence.
[46] The evidence was more capable of supporting the inference that the appellant was in a sexualized state when he touched the complainant. The evidence was admissible and it was up to the to the trier of fact to determine what, if any, inference to accept and the weight to be given to the evidence.
[47] For these reasons, this ground of appeal is dismissed.
Issue #2: Does the Failure of the Trial Judge to Consider Alternative Inferences In Convicting the Appellant Constitute an Error of Law?
Position of the Parties
[48] The appellant submits that even if the after-the-fact conduct was admissible at the threshold stage, the trial judge erred because she did not consider or assess any alternative inferences associated with the after-the-fact conduct in convicting the appellant. The appellant submits that this analysis was essential because the after-the-fact conduct was the evidence that the trial judge relied upon to find the accused guilty beyond a reasonable doubt. The analysis was also important because the after-the-fact conduct was abnormal and therefore any inferences drawn from the evidence had to be considered in that context.
[49] The appellant submits that one cannot infer from the trial judge’s reasons that she engaged in the proper analysis in considering the after-the-fact conduct. The trial judge never stated that the after-the-fact conduct was circumstantial evidence and failed to identify the risks associated with relying on such evidence. The trial judge therefore erred in law by failing to engage in this analysis.
[50] The Crown submits that the concerns that exist with traditional after-the fact conduct do not arise in this case. The evidence was not introduced to show that the appellant acted in a manner that was, based on human experience, consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. Courts have recognized that evidence introduced to support an inference of consciousness of guilt is highly ambiguous and susceptible to jury error. The evidence in this case was introduced to prove the appellant’s intention at the time he touched the complainant. It was no different from other circumstantial evidence. It just happened to take place after the offence occurred.
[51] It is the position of the Crown that the trial judge is presumed to know the law regarding circumstantial evidence and how to draw inferences from the evidence. In the context of this short trial, it is clear that the trial judge rejected the appellant’s submissions and found that the only reasonable inference to draw from the evidence was that the appellant was in a sexualized state at the time he touched the complainant.
[52] The Crown also submits that the trial judge was not required to state that she considered the alternative theories put forward by the appellant because the theories were speculative and not based on common sense or human experience.
[53] Finally, the Crown submits that the appellant’s real complaint is that the trial judge’s reasons are insufficient and that the verdict is unreasonable. It is the Crown’s position that the reasons are sufficient when read as a whole, taking into account the evidence, the shortness of the trial, the submissions of counsel, and the trial judge’s decision on the voir dire. Moreover, the Crown submits that the verdict was not unreasonable, particularly given that the alternative theories were speculative.
Applicable Law
[54] As previously noted, after-the-fact conduct evidence is not fundamentally different from other kinds of circumstantial evidence. It may be highly incriminating or play a minor corroborative role. It may also pose some unique reasoning risks. For example, it may be more difficult to draw an appropriate inference where the after-the-fact conduct is removed in time from the evidence giving rise to the charge: Calnen, at para. 116. There may also be a risk that the trier of fact may try to fill in the gaps and jump to conclusions based on the evidence: Calnen, at para. 116. The evidence may also appear more probative than it is and may encourage speculation: Calnen, at para. 116. Given the risk that circumstantial evidence may be improperly used, the purpose for which the evidence is introduced must be clearly delineated: Calnen, at para. 113.
[55] Given the risks of relying on circumstantial evidence, courts have repeatedly stated that in the context of a jury trial, it will generally be helpful to provide an instruction on how to consider circumstantial evidence. Where, for example, a case depends heavily on circumstantial evidence, telling the jury that an inference of guilt drawn from the circumstantial evidence should be the only reasonable inference is a succinct way of helping the jury to guard against the risk of filling in the blanks too quickly. The Supreme Court of Canada did not state that such an instruction was always required, but rather that it was up to the trial judge to provide assistance in the manner that they considered most appropriate: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 31.
[56] In Villaroman, the Supreme Court of Canada considered the risk that a trial judge improperly considered the circumstantial evidence. The court noted that in considering this issue, the trial judge’s reasons “should not be ‘read or analyzed as if they were an instruction to a jury’”: Villaroman, at para. 15, citing R. v. Morrissey (1995), , 22 O.R. (3d) 514, at p. 525. The reasons “must be ‘read as a whole, in the context of the evidence, the issues and the arguments at trial, together with an appreciation of the purposes or functions for which they are delivered’”: Villaroman, at para. 15, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16.
Analysis
[57] While the appellant has not framed this ground of appeal as a sufficiency of reasons argument, it is implicitly raised because the appellant submits that there is no basis to find that the trial judge engaged in the proper inference drawing analysis in her reasons.
[58] The trial judge’s reasons must sufficiently explain to the appellant why he was convicted, provide public accountability, and permit meaningful appellate review. Reasons are considered as a whole, in the context of and for the purpose of why the reasons were given, having regard to the arguments raised at trial and how the trial unfolded. The trial judge is not required to describe a finding of fact for every piece of evidence. Nor must the trial judge expound “on matters that are well settled, uncontroversial or understood and accepted by the parties” as it relates to the law and the evidence: R.E.M., at para. 19. The trial judge need not verbalize the entire process engaged in reaching a verdict. The ““why” and its logical link to the “what” does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict: R.E.M., at paras. 16-20.
[59] Regardless of whether the appellant’s argument is framed as an error in law or a failure to provide sufficient reasons, the trial judge did not err by not referring to the appellant’s alternative explanations for the after-the-fact conduct. When the reasons are read as a whole, I am satisfied for the following reasons that the trial judge applied the proper inference-drawing analysis in considering the circumstantial evidence and applied the proper burden of proof to the case.
[60] First, cautioning a jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference is not mandatory in all jury trials. It cannot therefore be mandatory for a judge-alone trial. There is no requirement that the trial judge has to self instruct that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference. A trial judge is presumed to know the law. I fail to see how an error of law can arise from the fact that a trial judge did not include a sentence stating that they considered the alternatives raised by the appellant and were satisfied that the inference of guilt from the appellant’s actions was the only reasonable inference. What is important to consider on appellate review is whether the trial judge engaged in improper inference drawing when she considered the circumstantial evidence based on the entire record.
[61] Second, in this case, there was no need to address the appellant’s proposed alternative inferences because they were speculative. As noted in Calnen, trial judges should articulate to juries “the reasonable and rational inferences which might be drawn” from the circumstantial evidence: at para. 113. There is no requirement that the trial judge put speculative inferences to a jury. Similarly, there is no requirement for a trial judge to consider speculative inferences.
[62] The line between a plausible theory and speculation is not always easy to draw. The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is “reasonably capable” of supporting an inference other than that the accused is guilty: Calnen, at para. 137. In Villaroman, at para. 42, the Supreme Court of Canada cited R. v. Dipnarine, 2014 ABCA 328, at paras. 22, 24-25, for the following proposition:
[…] “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
[63] In considering alternative reasonable possibilities, an “accused cannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown has not proven he is guilty”: Villaroman, at para. 50; see also R. v. Lights, 2020 ONCA 128, at para. 38.
[64] In this case, the alternative inferences put to the trial judge in submissions and the alternative inferences put forward on appeal are not reasonable possibilities. The alternative inferences the appellant seeks to have the court draw do not have an air of reality. In framing other possibilities, the appellant ignored the evidence leading up to the touching of the complainant. I do not find that as a matter of common sense or human experience, that it is plausible that the accused walked past the complainant twice, where there was sufficient room, and then chose to pass by her where there was not space and accidentally touched the complainant that then trigged a heightened sexual arousal.
[65] It is equally speculative to infer that the appellant walked past the complainant twice and then chose to pass by her in such a way that resulted in an accidental touching, and then something separate and distinct occurred that triggered the appellant’s sexual arousal. Based on the evidence, it is also speculative to infer that the appellant was sexually aroused the entire time in the store, but that the touching of the complainant was still accidental. Even taking into account the oddness of the appellant’s behaviour, the alternatives put forward by the appellant are not based in common sense or life experience. They are simply not reasonable possibilities.
[66] Third, even if the alternatives were plausible, the trial judge was not required to state them in her reasons. A trial judge is not required to describe in their reasons every consideration or address every submission made by counsel: R.E.M., at para. 56. The trial judge heard the appellant’s submission that it was reasonably possible that the touching of the complainant was what sexually aroused the appellant. After a short break, she convicted the appellant, finding that the reasonable inference to be drawn from the evidence was that the appellant was in a sexualized state at the time he touched the complainant based on all of the evidence. It is implicit in her judgment that she rejected the appellant’s argument that he became sexually aroused after he touched the complainant.
[67] Importantly, when the trial judge’s reasons are read as a whole, her reasons demonstrate that she understood the purpose of introducing the circumstantial evidence and the potential for misuse of the evidence. Her reasons also explain why she was satisfied beyond a reasonable doubt that based on the totality of the evidence, the appellant was guilty of sexual assault.
[68] The trial judge’s reasons on the voir dire demonstrate that the trial judge understood the purpose for which the security guard’s evidence was being introduced. The evidence was to assist in proving that the appellant did not accidentally touch the complainant, but that the touching was intentional. It went to the appellant’s state of mind at the time of the offence.
[69] The trial judge was also cognizant of the risk that the evidence could be used improperly. On the voir dire, the appellant submitted that the evidence had no probative value and that it was bad character evidence that the Crown was relying on to find that the appellant was more likely to have committed the offence. At the voir dire, the trial judge found that while the evidence could be characterized as bad character evidence, it formed part of what occurred in the Walmart. The trial judge found that evidence that the appellant watched two other women and masturbated shortly after touching the complainant made it more probable that the appellant was in a sexualized state at the time he touched the complainant than if this evidence was not introduced.
[70] The trial judge also understood the appellant’s closing submissions that one could not extrapolate from the fact that the appellant was masturbating that “he was at all times in a state of arousal when he’s in Walmart” and that he “touched her because he was in a state of arousal”. Counsel submitted that if the appellant accidentally touched the complainant, that may have sexually aroused him. His position was that “it doesn’t logically necessarily flow that simply because he was masturbating afterwards, means that at all points in time he was sexually aroused”.
[71] In response to these submissions, the trial judge pointed out that there was other evidence to consider in making such an inference. The trial judge pointed out that the complainant was aware that the appellant passed twice and that she found it a bit unusual. The appellant submitted that this evidence was not based on common sense. The trial judge disagreed, stating that some women can sense if someone is lingering around them. The trial judge also noted that it seemed odd that the appellant walked past the complainant repeatedly. In response, the appellant submitted that it was not odd, and provided an example of a person going up and down the cereal aisle because they cannot decide what to purchase. In the trial judge’s reasons for judgment, she clearly rejected the appellant’s submission on this point as she found that the appellant was not browsing in the aisle.
[72] In closing submissions, the appellant also focused on the credibility of the complainant. For example, he pointed out that there was an inconsistency in her evidence regarding where his hand was.
[73] After hearing the evidence and submissions, the trial judge rendered her oral judgment after a short break. Having just heard the submissions of counsel, the trial judge was aware of the appellant’s position. The trial judge provided a summary of the evidence and addressed the credibility concerns regarding the complainant’s evidence that were raised by the appellant’s counsel.
[74] The trial judge explained why she found the appellant guilty. She held that if she only considered the complainant’s evidence, she would have been of the view that the appellant was probably guilty. However, when the trial judge combined that evidence with his behaviour minutes after the incident, where he followed two other women and masturbated, she was satisfied that the appellant did not accidentally touch the complainant. This was an inference open to the trial judge to make based on the evidence.
[75] The trial judge found that the appellant did not walk close to the complainant because he was “mindlessly browsing”, but rather that he was aware of where the complainant was situated and wanted to intentionally touch her for a sexual purpose. Not only did the appellant touch the complainant, but she had to move out of the way for him to pass. The trial judge also found that the fact that he said “excuse me” did not raise a reasonable doubt that the touching was intentional.
[76] I also do not find, as submitted by the appellant, that R. v. Kionke, 2020 MBCA 32 demonstrates that alternative theories must explicitly be considered in the trial judge’s reasons. Rather, it depends on the case.
[77] In Kionke, there was a stabbing that resulted in the victims’ deaths. The accused made statements that after the alleged offence, he showered and threw his clothes, shoes and knife into the river because he was afraid the police would blame him for the deaths when it was not his fault. The Manitoba Court of Appeal found that the trial judge sufficiently addressed the reasonable alternatives in her reasons because she stated that “a cautious approach to the evidence requires that one not use the evidence to decide if [the accused] committed the killings unless there is a rejection of an innocent explanation”: at para. 40. This type of alternative theory had been accepted in the jurisprudence as being reasonably possible: R. v. Rogerson, 2015 SCC 38 at para. 90; White (2011) at para. 67; R. v. Allen, 2009 ABCA 341, [2009] A.J. No. 1116 (C.A.) aff’d 2010 SCC 4. In the present case, the accused did not testify nor were the theories that were put to the trial judge reasonably plausible.
[78] When the trial judge’s reasons on the voir dire are read in conjunction with the submissions of counsel and the reasons for judgment, there is no basis to find that the trial judge erred in law by not specifically addressing the alternatives put forth by the appellant. The alternative inferences were speculative. There is also no basis to find that the trial judge engaged in an improper reasoning process in drawing inferences from the evidence. She did not use the circumstantial evidence to draw an impermissible inference or misapply the burden of proof in finding the appellant guilty. Based on the evidence, it was open to the trial judge to find that the appellant was in a sexualized state at the time he touched the complainant, and therefore the touching was not an accident.
[79] While the appellant did not raise a ground of appeal regarding the sufficiency of reasons, it was implicitly raised because of the appellant’s submission that it cannot be presumed that the trial judge applied the correct law and considered the reasonable alternatives before finding the appellant guilty. For the reasons set out above, I find that the trial judge’s reasons are sufficient. They explain to the appellant and the public why the appellant was found guilty and permit effective appellate review.
[80] This ground of appeal is therefore dismissed.
SENTENCE APPEAL DISCUSSION
Issue #3: Was the Sentence Imposed by the Trial Judge Overly Harsh?
[81] The trial judge sentenced the appellant to a suspended sentence with six months’ probation. The Crown sought a suspended sentence and probation while the appellant sought a conditional discharge with probation. The Crown submitted that a conditional discharge was not appropriate because a SOIRA order would not be imposed pursuant to s. 490.012 of the Criminal Code. As a result of the suspended sentence, the appellant was placed on the Sex Offender Registry for ten years.
Position of the Parties
[82] The appellant submits that the imposition of the suspended sentence and SOIRA order is an overly harsh sentence in light of the offence and the rehabilitative efforts made by the appellant. The appellant also submits that although the trial judge provided detailed reasons for the sentence, the sentence imposed is disconnected from the trial judge’s analysis. Throughout the trial judge’s reasons, she commented that the appellant “was well on his way to rehabilitate himself” and that she did not believe he would be back before the court. The trial judge also stated that she was “of the view that there certainly would be a large part of our community who would not feel wronged by the Court imposing a conditional discharge.” The appellant submits that given the trial judge’s comments and the relatively minor nature of the sexual assault, the only finding that the trial judge could rationally make is that a conditional discharge was not contrary to the public interest. Therefore, the trial judge erred in imposing a suspended sentence.
[83] The Crown submits that the appellant has pointed to no error in principle and provides no jurisprudence to support his position that the sentence is demonstrably unfit. The Crown submits that the appellant is improperly asking the appellate court to re-weigh the factors considered by the trial judge and conduct a fresh sentencing hearing.
Applicable Law
[84] An appellate court will only interfere with a sentence where the appellant has demonstrated that: i) the reasons for sentence reflect an error in principle; or ii) the sentence was demonstrably unfit: R. v. Friesen, 2020 SCC 9, at paras. 26-28; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.
Analysis
[85] I do not find that the trial judge erred in principle or that the suspended sentence was demonstrably unfit.
[86] The trial judge considered the relevant factors in sentencing the appellant including the Victim Impact Statement, the circumstances of the offence, and the circumstances of the offender, including the rehabilitative efforts undertaken by the appellant.
[87] The trial judge also considered the relevant sentencing principles and properly recognized that general deterrence and denunciation were to be given greater weight given that the offence was a sexual assault. As the trial judge held,
It is clear that the offence is serious and for sexual offences of this nature, general deterrence and denunciation are to be given great weight and are paramount sentencing principles. However, rehabilitation, particularly where the defendant is a youthful first offender, must not be discounted or ignored and general deterrence and denunciation should not be over-emphasized; see R. v. Batisse, 2009 ONCA 114 at paragraphs 32-34.
[88] The trial judge also found that specific deterrence was not a factor given the steps the appellant had taken to rehabilitate himself.
[89] The trial judge considered the mitigating and aggravating factors in the case. The aggravating factors included that the defendant “blindsided” the complainant when he touched her buttocks while she was working. Even though it was not the most serious of sexual assaults, it was a brazen act that showed an inability to control his sexual impulses. The mitigating factors included the rehabilitative steps the appellant had taken, the fact that he did not have a criminal record, and that he expressed remorse after being convicted.
[90] The trial judge was also cognizant that there would not be a SOIRA order if a conditional sentence was imposed. In considering if a conditional discharge was appropriate, the trial judge considered the aggravating and mitigating factors and determined whether a conditional discharge was: i) in the best interests of the accused; and ii) contrary to the public interest.
[91] The trial judge reviewed several cases that discussed the imposition of a conditional discharge. She recognized that conditional discharges are not commonly imposed for sexual assaults, but there were cases where they had been ordered. The trial judge was satisfied that it was in the appellant’s best interest to have a discharge but was not satisfied that it was in the public interest that a discharge be ordered. She ultimately concluded that given the circumstances of the offence and the character of the offender, a conditional discharge “would not be consistent with the fundamental purposes and principles of sentencing to contribute to respect for the law and public safety.”
[92] This was a decision that appears close to the line for the trial judge. She recognized that “a large part of the community would not feel wronged by the court imposing a conditional discharge”. However, she held that she had to view the community through a broader lens considering the facts of the case, where the offence occurred, the effect that the offence had on the complainant, and the fact that the appellant required further counselling.
[93] I see no error in the trial judge’s analysis. The appellant has not provided any jurisprudence to suggest that the sentence was unfit or that the trial judge did not consider proper sentencing principles in imposing the suspended sentence.
[94] I also do not find that the trial judge’s decision was not rational because the trial judge permitted the matter to be adjourned on several occasions for the appellant to seek further counselling demonstrates There was nothing wrong with enabling the appellant to put his best foot forward at the sentencing hearing. However, the appellant’s rehabilitative efforts were not the only factor that the trial judge had to consider in sentencing the appellant.
[95] I also do not find that the comments made by the trial judge at the end of the sentencing hearing, where she told the appellant that she was convinced that he was not going to be back before the court because he had rehabilitated himself, suggests that the trial judge’s decision to impose a suspended sentence was not rational. Again, that is just one of many factors that the trial judge had to take into account in sentencing the appellant.
[96] I also do not find that the trial judge explaining to the appellant that he could apply to have the SOIRA order terminated demonstrates that the trial judge recognized that the SOIRA order was too onerous. The trial judge’s comments about the appellant seeking to terminate the SOIRA order arose from a question asked by the appellant about what the order meant. It was in that context that the trial judge explained to the appellant that he could seek a pardon and seek to have the SOIRA order terminated.
[97] For these reasons, the sentence appeal is dismissed.
CONCLUSION
[98] For the reasons set out above, the conviction appeal and the sentence appeal are both dismissed.