COURT FILE NO.: 19-81AP DATE: 2020/09/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicholas Phelps v. Her Majesty the Queen
BEFORE: A.E. London-Weinstein J.
COUNSEL: Mark Halfyard, for Mr. Phelps Adam Zegouras, for the Crown
HEARD: August 14, 2020 (Belleville matter via Zoom)
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proceeding directing that the identity of the complainant and any information that could disclosure such identity shall not be published in any document or broadcast in any way pursuant to s.486.4(1) of the Criminal Code of Canada.
Decision on Summary conviction appeal
[1] The appellant was convicted by Justice G. Griffin of a single count of sexual assault on September 6, 2019 after a two day trial in the Ontario Court of Justice. The appellant was sentenced on December 11, 2019 to 15 months jail and 24 months of probation. The appellant was 19 years old at the time he was charged, and the complainant was 17 years old. The Crown called seven witnesses including the complainant, her mother, two experts and other civilian witnesses. The charge involved an allegation of forced vaginal penetration and forced cunnilingus. Briefly, the factual background of the case is that the complainant, her friend and the appellant had planned to sleep in a tent at the appellant’s rural home. The appellant and the complainant went for a walk in the woods. They both were drunk and high on marijuana. Sexual activity took place which the complainant said was not consensual. The complainant’s boyfriend, B. was the appellant’s best friend. The appellant appeals his conviction on three grounds. For reasons set out below, the appeal is granted and a new trial ordered.
[2] First, the appellant argues that the trial judge misapprehended the evidence.
[3] The appellant argues that his evidence was that he and the complainant were crying about their mutual violation of B.’s trust at a point in time prior to sexual intercourse. The appellant argues that the trial judge misapprehended when the crying occurred and rejected the appellant’s evidence at least partly as a result of this misapprehension, as he did not accept that the complainant and the appellant would be crying during consensual sexual intercourse.
[4] Secondly, the appellant argues that the trial judge misapprehended the appellant’s evidence as to when the complainant said “wait”, “stop”, “wait”, or “don’t”, “stop”, “wait”. The appellant argues that the “wait”, “stop”, “wait” evidence related to the period of time before sexual intercourse took place.
[5] The trial judge, in his reasons for judgment said, “The idea that these two people would go into the woods and then crying, both of us crying and then having sexual intercourse with tears in our eyes and her saying, “Don’t,” “Stop,” “Wait,” and we are crying that is just incredible. That makes no sense. I do not believe him for a second in that regard.” Trial Transcript, Volume 2, page 112 line 13 to 20.
[6] A review of the whole of the evidence satisfied me that the trial judge’s apprehension of the state of the evidence as to the timing of the crying and the timing of the complainant’s utterances of “wait”, “stop”, “wait”, or “don’t”, “stop”, “wait”, was open to him although the record is at times ambiguous. At one point, the appellant testified that he and the complainant were both crying when they were wrestling and when the complainant was straddling him. He testified that there was crying when they were kissing. Trial Transcript, Volume 2, page 42, line 12 to 30. This portion of the evidence suggests that the crying and utterances occurred before sexual intercourse.
[7] In cross-examination, the appellant testified that the complainant said “wait”, “stop” or “don’t” and the appellant would wait. “But then it got re-initiated more physically. We just stopped talking about it or stopped thinking about it really because we were feeling so guilty about B.” Trial Transcript, Volume 2, page 59, line 22 to page 60 line 30. The appellant testified in cross-examination that the complainant was not crying when his penis was inside of her. He was not asked if he was crying at that point in time. Again, this passage suggests that the utterances and the crying took place prior to sexual intercourse. Trial Transcript Volume 2, pages 61 line 31 to page 62 line 20.
[8] However, the appellant was also asked by his lawyer, not Mr. Halfyard, how long it took for the sexual contact between himself and the complainant. He replied that he did not know and could not assign a time frame to the sexual contact. He was asked if he started and stopped sexual contact and he said that they did a few times. “When she wanted me to stop I stopped. And then we would end up talking about B., crying and feeling sorry for each other.” Trial Transcript Volume 2, page 46 line 22 to page 47 line 7. The appellant is then asked by his own lawyer if he ejaculated and he answers yes. He said L. said she was cold and wanted to go back. The trial judge rejected the notion that the appellant and the complainant would be crying during sexual intercourse because of guilt about B. Although the reference to sexual contact, versus sexual intercourse is somewhat ambiguous, in my view, the trial judge’s interpretation of the evidence both with regard to the timing of the crying and the “wait”, “stop”, “wait” utterances by the complainant was open to him based on this portion of the appellant’s evidence. I would not give effect to this ground of appeal. If I am wrong in this regard, however, I did find that the trial judge erred in relation to the second ground of appeal, and a new trial will be necessary in any event.
[9] Turning to the second ground of appeal, the appellant argues that the trial judge erred by relying on inappropriate behavioural assumptions which lead him to reject the evidence of the appellant and accept the evidence of the complainant.
[10] This argument is based on the Court of Appeal decision in R. v. Cepic, 2019 ONCA 541 at paras. 13-14. The error which Cepic cautions against is making stereotypical generalized assumptions about a person’s behaviour, either the complainant or the defendant, which are based on beliefs about how people in general would behave, rather than being based on the evidence in the record about the particular people involved. Cases such as Cepic do not prohibit a trial judge from considering the past behaviours of the parties before the court in specific relevant circumstances, and in evidence before the trial judge, and using that evidence to assess whether the interpretations of the evidence argued at trial are consistent or not consistent with the evidence about the particular person’s past behaviour in similar or related circumstances. See Torres-Angulo v. Her Majesty the Queen, 2020 ONSC 1247 See also R. v Bushiri, 2019 ONCA at para 52.
[11] In Bushiri, the appellant argued that the trial judge erred in finding that it was “simply unbelievable” that “very experienced counsel” would advise the appellant’s brother not to tell police about his alibi and that he could not “imagine the lawyer giving that advice.” While trial judges must be wary of stereotypical reasoning (R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3D) 634 at paras 5-7) and of second-guessing tactical decisions made by trial counsel (R. v. Borde, 2011 ONCA 534, 283 O.A.C. 181, at para 21), they are nevertheless entitled to rely on their common sense and experience in making credibility findings as long as the common sense employed is not based on a stereotype (R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484 at para 129. The line separating acceptable common sense from reliance on stereotype is not always easily discerned. Therefore, trial judges must exercise caution when drawing inferences based on common sense. In Bushiri, the trial judge’s finding involved the acceptable use of common sense and not reliance on a stereotype. The trial judge relied on common sense and experience to reject, what was, on the facts of that case, an inherently implausible explanation for the late disclosure of the alibi evidence.
[12] In the current appeal, the actions of the complainant post sexual intercourse were characterized as being consistent with someone who has had something wrong done to them. Trial Transcript, Volume 2, page 110 line 13 to line 16.
[13] The trial judge stated:
“And that is important because there is no magic in being able to tell when someone is telling you the truth. One of the ways in which jurors are often told is look at the surrounding circumstances, is it consistent with how the world works? And the way L. acted after she says she was raped is extremely consistent. She is upset. She is crying. Her friend T. is trying to help her. There is a reach out to Mom in circumstances where you would not normally want to reach out to Mom because, one it is four in the morning; two, you are drunk and all you are going to do is anger mom, so why not just lay low and, but the events were significantly serious that she complained to her mother about the events. Trial Transcript Volume 2, page 110 line 19 to page 111 line 2.
[14] The trial judge goes on to say:
“She tells her friend, boyfriend at the time, B., that this event took place. The defence counsel suggests, well, that is the whole reason she is making it up, Your Honour, she is making it up because she feels guilty and so she is going to say that he sexually assaulted her to get out of her wrongdoing. And that, in my view, is poppycock, also known as malarkey, just incredible, it is not true. The idea that you would tell the person shortly after an event about what took place, about your vagina being hurt and that the events and you are telling him because you feel guilty or you want to blame someone, I do not believe that for a moment. I do not. It makes no sense to me. It is inconsistent with, quite frankly, how the world works. You would think you would keep it a secret. If everything was so consensual and jolly and fun, no one is suggesting the term “jolly”, if everything was so consensual, then you would think you would come back to the tent and no one would know the difference. You went out into the woods, some event took place and we will keep this to yourself and talk about whether that was a mistake.” That is not what happened. She comes back, her friend T. sees she is upset, her body is tense, T. says, I think she used some expression like, I can read her like a book, and she sees the friend and knows there is a big problem and we have got to do something here. And they do do something. The police are contacted. She is at the hospital within hours of this event taking place. No, no she did not consent to any sexual activity at all. Trial Transcript, Volume 2, page 111 line 2 to page 112 line 5.
[15] The trial judge rejected the suggestion that the complainant would claim that the sexual intercourse was non-consensual because she felt guilty about what had transpired. The trial judge rejected this suggestion as “poppycock”, “malarkey”, incredible, not true and inconsistent with how the world works. In my respectful view, the trial judge’s dismissal of the defence theory of the case was based on a generalization. The complainant’s evidence was that she felt guilty, felt that the incident was her fault, and that she feared her boyfriend would end their relationship once he knew what happened. In a text to B., in the immediate aftermath of sexual intercourse, she expressed fear that he would end the four year relationship, texting: “Don’t dump me please.” Trial Transcript, Volume 1, page 27 line 3 to 18. This evidence does not establish that the complainant was lying, or that she was not sexually assaulted. Victims of sexual assault may feel irrational guilt, wrongly blame themselves for being sexually assaulted and fear the loss of relationships. However, from the defence perspective, this evidence is consistent with the defence theory that the complainant had consensual sex and blamed the appellant out of fear of losing her boyfriend. Rather than analyzing the evidence of the complainant regarding her feelings of guilt and her fear of losing B., the trial judge instead rejected the defence theory by relying on a generalized stereotype that the complainant would not lie due to guilt, as this is not how the world works.
[16] The trial judge also concluded that the complainant would have kept quiet about the sexual activity if it was consensual rather than disclosing that sexual activity had taken place. However, the complainant disclosed the sexual activity to her friend T. immediately after it occurred at a time when she was of the view that she had slept with the appellant. T. explained to the complainant that what had transpired was not sex, but sexual assault. Trial Transcript Volume 1, page 23 line 15 to page 24 line 1.
[17] In a text to B., sent immediately after sexual intercourse, while she was walking back from the woods to the tent she texted: “I love you and I’m scared, please… I don’t know what to do I feel guilty and scared and I think something happened, I can’t hardly see you.” Trial Transcript Volume 1, page 27 line 3 to 5. B. texted back asking what was wrong. The complainant replied by texting, “Don’t dump me please.” When asked why she texted don’t dump me please, the complainant said, “she felt like it was her fault and that B. was going to break up with her.” Trial Transcript Volume 1, page 27 line 6 to 18.
[18] The complainant’s evidence was that she disclosed the incident to her friend T. when her state of mind was that she felt guilty and at fault for what transpired in the woods. She also initiated a discussion with B. when she believed she was at fault and felt guilty. In my respectful view, the actual evidence of the complainant undermines the trial judge’s generalized assertion that the complainant would not have disclosed the incident if the sexual activity was consensual. She spoke about the incident at a point in time when she thought she was at fault. Her state of mind at the time she made her disclosures was that she felt guilty and responsible for what had transpired and did not realize she had been sexually assaulted. In my respectful view, the trial judge’s generalized assertion was not only not tethered in the evidence, but it was contradicted at least in part, by the actual evidence of the complainant. As a result, I am of the view that the trial judge committed an error in reasoning.
[19] The trial judge also had the following to say about the evidence of the appellant:
“I understand the difficulty these circumstances created for Nick. He behaved in the way he did, which is obviously, if we accept his version of events, a betrayal of a friend, B., and, but he describes an event that, quite frankly, is inconsistent in my view with how the world works. The idea that these two people would go into the woods and then crying, both of us crying and the having sexual intercourse with tears in our eyes and her saying, “don’t” “stop” “wait” and we are crying, that is just incredible. That makes no sense. I do not believe him for a second in that regard.” Transcript of Evidence, Volume 2, page 112, line 6 to line 20.
[20] The trial judge did not find the evidence of the appellant believable and did not accept it. “I do not find it consistent with the surrounding circumstances. If it was as fine as he would have us believe that they had, well, but is he saying it is fine or is it not fine? We are both crying while we have sex. And I suppose people can be teary-eyed and crying while having sex, but it just seems so contrary to the act of love-making that you would both be crying because you are cheating on B. It just sounds too fantastic for me to accept. I can not accept it and I will not accept it, it is just nonsense. No, he did not enjoy any consent from L.” Transcript of Evidence, Volume 2, page 112, line 25 to page 113 line 15.
[21] The trial judge found it too fantastic to accept that the appellant and the complainant would be crying during sexual activity, over their mutual guilt about cheating. As a result, the trial judge rejected the evidence of the appellant as being nonsense. On the evidence, B. was the appellant’s best friend. The appellant had few friends and the friendship was one which had lasted many years. The complainant had been in a relationship with B. for four years at the time. Both the complainant and the appellant were teens who were drunk and had smoked marijuana. In my respectful view, the trial judge rejected the suggestion that crying out of guilt, in the circumstances of this case could occur during sexual activity, because of reliance on a generalized idea regarding human behaviour not arising from the trial evidence.
[22] Mr. Zegouras attempts to distinguish Cepic. Mr. Zegouras, in oral submissions characterizes the error in Cepic as being a failure to consider relevant context.
[23] In the appeal before me, the trial judge seemed to generally appreciate the relevant context of this case. However, the trial judge, in my respectful view, still made reasoning errors by relying on generalizations about human behaviour which were based on stereotypes about “how the world works” not grounded in the evidence. The trial judge found that the evidence of the appellant was wholly unreliable, and not credible. He found that the complainant’s evidence was very credible, very reliable, “consistent with how the world works.” Trial Transcript, Volume 2, page 113 line 32 to page 114 line 3. His reliance on a generalized stereotype about how the world works played a significant part in his acceptance of the evidence of the complainant and rejection of the evidence of the appellant. The Crown argues that the trial judge also articulated other reasons for rejecting the evidence of the appellant which I accept. However, I am satisfied that reliance on generalized assumptions about human behaviour not tethered to the evidence contributed significantly to a rejection of the appellant’s evidence and acceptance of the evidence of the complainant. In light of these errors, a new trial is warranted.
[24] The final ground of appeal is that the trial judge erred in the R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742 analysis by not considering the evidence of the appellant’s mother. The trial judge stated:
Mr. Phelps testified, if I believe Mr. Phelps, I must find him not guilty. Even if I do not believe Mr. Phelps but his evidence raises a reasonable doubt, I must find him not guilty. And then even if the defence evidence does not raise a reasonable doubt, I can only find him guilty if on the evidence that I do accept that the Crown has proven the case beyond a reasonable doubt. Trial Transcript Volume 2, page 105 lines 10 to 20.
[25] The trial judge gave his judgment immediately at the conclusion of a two day trial. Ms. Phelps testified as the last witness before final submissions where both counsel referred to her evidence. Her evidence contradicted the complainant’s assertions regarding her demeanour and conduct post the incident in the woods. The trial judge gave his reasons for judgment orally after final submissions. The trial judge’s reasons must be considered in that context. The Crown points out that the trial judge’s reference to “the defence” evidence and also as the evidence of Mr. Phelps, is indicative that the trial judge properly considered all of the defence evidence.
[26] While the trial judge made no specific reference to the evidence of Ms. Phelps, both the Crown and the defence, as already indicated, made reference to the evidence of Mrs. Phelps in their final submissions. A trial judge’s credibility analysis is not limited to the assessment of the accused’s evidence alone but must consider all evidence that potentially assists the defence. R. v. B.D., 2011 ONCA 51 at para 114.
[27] In the circumstances of this case, despite not specifically alluding to the evidence of Ms. Phelps, I am not satisfied that the trial judge failed to consider her evidence as part of the defence evidence in his W.D. analysis. Given that Ms. Phelps testified last, immediately before final submissions, and both counsel made reference to her evidence, I am satisfied that the trial judge properly considered her evidence as part of the defence evidence, and as part of his consideration of the evidence as a whole. I would not give effect to this ground of appeal. However, for reasons referred to earlier relating to stereotypical reasoning, a new trial is hereby ordered.
A. E. London-Weinstein J.
Date: September 1, 2020
COURT FILE NO.: 19-81AP DATE: 2020/09/01
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Nicholas Phelps v. Her Majesty the Queen
BEFORE: A.E. London-Weinstein J.
COUNSEL: Mark Halfyard, for Mr. Phelps Adam Zegouras, for the Crown
Decision on Summary conviction appeal
A. E. London-Weinstein J.
Released: September 1, 2020