COURT FILE NO.: 126/19

DATE: 2020 09 14

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN

– and –

David Gipp

Appellant

Arish Khoorshed, for the Crown

Andrew Furgiuele, for David Gipp

HEARD: September 11, 2020

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

[1] This is a summary conviction appeal brought by Mr. David Gipp (“Gipp”).

The Proceeding in the Ontario Court of Justice

[2] In the Ontario Court of Justice sitting in Milton, over three days – June 28, 2018, October 1, 2018, and March 4, 2019, Gipp was tried on one count, namely, that he committed an indecent exposure contrary to section 173(2) of the Criminal Code.

[3] The charge stemmed from an incident that occurred on October 14, 2017 at a public strip plaza parking lot in Georgetown, Ontario.

[4] At trial, the Crown called two witnesses – a 15-year old boy, T.C., who was the complainant, and an adult lady with the surname Carvalho. The defence called three witnesses – an adult lady with the surname Hester, Gipp (65 years old at the time of the trial), and Gipp’s common law partner (66 years old at the time of the trial).

The Allegation

[5] In a nutshell, the allegation was that Gipp parked near a yoga studio, got out of his truck, exposed to a minor his bare penis outside of his shorts, and then walked into a nearby business.

A Very Brief Summary of the Trial Evidence

[6] Both T.C. and Carvalho observed the exposed bare penis. Hester, who was working with T.C. at the yoga studio, did not see anything indecent, but she was told by T.C. that he had just been “flashed”.

[7] Gipp testified and categorically denied any possibility that he grabbed or rubbed his penis or that he knowingly exposed it outside of his shorts – trial transcript, October 1, 2018, page 39, lines 20-25. As to whether his penis was exposed as described by Carvalho, while his foot was up on a sidebar or a footrest on the truck, whether the exposure was done intentionally or otherwise, Gipp said that he did not recall that – same transcript, page 37, lines 3-13.

[8] Gipp offered in his testimony an explanation for what may have happened. He talked about a keychain that resembled a penis, which keychain he had with him on the date in question.

[9] Gipp’s common law partner, in her testimony, confirmed some information about the penis keychain.

The Trial Judgment

[10] In oral Reasons for Judgment (“Reasons”) delivered on June 25, 2019, Gipp was found guilty of the offence.

The Appeal

[11] I commend Mr. Furgiuele, counsel for Gipp, for being exacting in his crafting of the arguments on appeal.

[12] Two alleged errors by the trial judge are being advanced: (i) a failure to conduct an analysis as to how the Crown could prove the elements of the offence given the evidence that the trial judge did accept, and (ii) a failure to analyze Gipp’s evidence except by reversing the burden of proof in requiring the accused to explain how the Crown witnesses could have been mistaken.

[13] The remedy sought is an acquittal or, in the alternative, a new trial.

The Standard of Review and the Basic Legal Principles

[14] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.

[15] The burden is on the appellant, Gipp.

[16] Factual findings made by the trial judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. After all, an appeal is not a retrial. R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.

[17] Questions of law are generally reviewed on a standard of correctness.

II. Analysis

[18] For the reasons that follow, the appeal is dismissed.

Whether the Trial Judge Failed to Conduct an Analysis as to How the Crown Could Prove the Elements of the Offence Given the Evidence that the Trial Judge did Accept

[19] I would not give effect to this argument on behalf of the appellant.

[20] Both sides agree, and I concur, that Gipp could not have been found guilty of the offence unless the Crown had proven beyond a reasonable doubt that the exposure of his penis was wilful and, further, that it was done for a sexual purpose.

[21] Both sides agree, and I concur, that Gipp could not have been found guilty of the offence if the exposure of his penis was accidental.

[22] Both sides agree, and I concur, that the trial judge had a duty to consider available defences, provided that they had an air of reality to them, regardless of whether the factual foundation for any given defence came from the evidence of Gipp himself or from some other source at trial.

[23] Both sides agree, and I concur, that the trial judge accepted the evidence of Carvalho over that of T.C., but that the trial judge also accepted the evidence of T.C. on the point that Gipp was looking at T.C. when Gipp’s penis was exposed. Reasons, page 11, lines 23-30.

[24] So that begs the question as to what the evidence was from Carvalho that was accepted by the trial judge.

[25] To answer that question, we look primarily to the Reasons, as there is no argument by counsel for Gipp that the trial judge misapprehended any of the evidence of Carvalho.

The Evidence of Carvalho as Accepted by the Trial Judge

[26] At pages 6 and 7 of the Reasons, the trial judge detailed the evidence of Carvalho.

[27] Carvalho knew Gipp previously. She worked at the shop next to the yoga studio, and Gipp was a frequent customer of Carvalho’s workplace.

[28] Through glass, when Gipp pulled up and parked in the lot, Carvalho saw him as she worked inside the shop. She saw him get out of the truck. She saw him put one foot on the ground, lifting up his shorts and exposing his genitals. She observed his bare penis so plainly that she could describe it as being small (about three inches long) and circumcised, white and flaccid. Gipp was staring blankly during the exposure. Carvalho was shocked and disgusted.

[29] Germane to the issue of whether the exposure of the bare penis was accidental, Carvalho testified, and the trial judge accepted, that the majority of Gipp’s penis was exposed for one to two minutes. She testified that she wondered to herself how it could possibly be that Gipp was unaware of the exposure.

[30] Carvalho did not see Gipp stroke his penis.

[31] At trial, Carvalho was shown the (or at least a) penis keychain and was adamant that what she saw was not something like that but rather a real penis.

[32] In his very able oral submissions on behalf of Gipp, Mr. Furgiuele emphasized two features of the evidence of Carvalho, found, respectively, at pages 90 and 94 of the June 28, 2018 trial transcript – that (i) Gipp did not hold or rub his penis, and (ii) his penis was flaccid.

[33] It is noteworthy that the trial judge included both of those important items in his summary of Carvalho’s evidence, which evidence the trial judge accepted.

[34] It is also noteworthy that there is no complaint on behalf of the appellant that the trial judge did accept the evidence of Carvalho, nor is there any complaint that the trial judge accepted the evidence of T.C. on the point of Gipp having been looking at T.C. while Gipp’s bare penis was exposed.

The Defence Argument on Appeal

[35] Counsel for Gipp submits that, given the evidence of Carvalho, which evidence was accepted by the trial judge, the trial judge was required to consider the defence of accident, and the trial judge’s failure to expressly avert to that defence in the Reasons constitutes reversible error on appeal.

[36] Respectfully, I disagree.

[37] It is well-established law that a trial judge is required to put to a jury any defence that has an air or a sense of reality to it, regardless of whether the evidence upon which that defence is based comes from the accused or from some other source at trial. Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120.

[38] The same applies to the judge him or herself, where there is no jury.

[39] Here, I agree with counsel for Gipp that the evidence of Carvalho gave rise to a sufficient air of reality to the defence of accident such that it ought to have been considered by the trial judge.

[40] I agree further with counsel for Gipp that, in the Reasons, the trial judge never expressly refers to the defence of accident. It would have been preferable for the trial judge to have done so.

[41] The Reasons must be read as a whole, however, and in the context of the submissions that the trial judge had listened to, at length, on March 4, 2019.

[42] During those submissions, as can be seen from the transcript, defence counsel spent considerable time discussing the defence of accident – “Carvalho actually describes what I think could have been something that was a complete accident”, argued defence counsel – trial transcript, page 32, lines 5-9.

[43] It can safely be presumed that the trial judge was alert to that argument. In fact, the trial judge demonstrated, during an exchange with defence counsel at trial (not Mr. Furgiuele), that the trial judge was acutely aware of what evidence from Carvalho might be relevant to the accident theory, without actually using the word “accident”, such as her evidence that Gipp “looked down in the parking lot” while his penis was exposed (rather than towards a specific target of the exposure, which would be more consistent with an intentional act). March 4, 2019 trial transcript, page 54, line 26 to the bottom of the page.

[44] The trial judge’s Reasons themselves also demonstrate that he was alive to the accident theory. There is no other explanation for why the trial judge would have focused on the duration of the exposure of the penis and Carvalho’s evidence that she could not fathom how Gipp could not have known that his penis was exposed (Reasons, page 6, line 31 to page 7, line 13).

[45] Further, the trial judge was careful in his reasons to emphasize the need for the Crown to prove that the exposure was intentional and was done for a sexual purpose (see, for example, the Reasons, page 10, line 29 to page 11, line 2, and again at page 12, lines 15-18).

[46] Finally, why else would the trial judge have paid special attention to the evidence of T.C. about Gipp staring at him while Gipp’s penis was exposed (Reasons, page 11, lines 23-25) but to buttress the wilful criterion of the offence and thereby also address the accident theory? I can think of no other reason.

[47] In summary, though it would have been preferable for the trial judge to have expressly referred to the accident defence in the Reasons, I am confident that the failure to do so in this particular case does not mean that the trial judge ignored that issue such that appellate intervention is warranted, nor does it make the Reasons insufficient.

Whether the Trial Judge Erred by Reversing the Burden of Proof and/or by Dealing Inadequately with the Evidence of Gipp

[48] I would not give effect to this argument on behalf of the appellant. With respect, other than one item dealt with below, I see nothing objectionable about how the trial judge dealt with the evidence of Gipp.

[49] First, the trial judge summarized the evidence of Gipp, at length, and accurately (Reasons, pages 7-9).

[50] Next, the trial judge properly expressed the burden and the standard of proof and also formulated, properly, the three-part analysis in R. v. W.D., 1991 93 (SCC), [1991] S.C.J. No. 26 (Reasons, page 10, lines 8-19).

[51] Next, the trial judge properly applied the said three-part analysis and rejected outright the evidence of Gipp (Reasons, page 11, lines 17-21).

[52] Finally, the trial judge gave some cogent reasons for why he rejected the evidence of Gipp – it was materially contrary to the accepted evidence of Carvalho, T.C. and Hester (Reasons, page 12, lines 7-10), and it made no sense that Gipp failed to mention the whole penis keychain thing to the police, given how that interview progressed (Reasons, page 12, lines 10-11), and the whole story about the penis keychain was a fabricated one that Gipp and his partner developed after the police interview (Reasons, page 12, lines 18-21).

[53] I disagree with the submission on behalf of the appellant that the trial judge’s treatment of the evidence of Gipp was simply conclusory and therefore inadequate.

[54] I do agree with counsel for Gipp that the trial judge ought not to have mentioned Gipp’s lack of an explanation as to why others would say that he exposed himself (Reasons, page 12, lines 11-13).

[55] There is a long line of authority in Canadian criminal jurisprudence that an accused person in a criminal trial should not be asked questions that effectively force the accused to comment on the credibility of the complainant or another Crown witness, or questions that effectively require the accused to provide alternative explanations for the complainant’s behaviour that were not premised on his guilt. R. v. Henderson, 1999 2358 (ON CA), 44 O.R. (3d) 628 (C.A.).

[56] It is equally objectionable for the trier of fact to base a credibility finding against the accused, in whole or in part, on his failure to offer some explanation as to why a Crown witness has said what s/he has said.

[57] The problem is a stark one. It risks jeopardizing the presumption of innocence and tends to blur the burden of proof. In addition, put bluntly, what is the accused supposed to say, other than s/he is lying or mistaken, period? That is not helpful, and so the enquiry should be avoided to begin with.

[58] Not every misstatement by a trial judge like this one, however, will amount to a finding that the trial judge reversed the burden of proof such that appellate intervention is mandated.

[59] Having regard to the Reasons as a whole, I do not believe that the impugned comment by the trial judge was a significant factor in coming to the verdict that was reached. In my view, there was no substantial wrong or miscarriage of justice that occurred.

[60] Frankly, the case for the Crown at trial was a formidable one. Two independent witnesses observed, clearly, the exposed bare penis. Hester’s evidence was neutral, and so was that of Gipp’s partner. Gipp never denied that his penis was, in fact, exposed but rather denied that he knew that it was or that he touched it during the exposure. He also offered what the trial judge obviously considered to be a fantastic story about a fake penis keychain.

[61] If the trial judge erred in making the impugned remark, then I find that the error was harmless and would, if necessary, apply the curative proviso found in section 686(1)(b)(iii) of the Criminal Code, which proviso it has been held repeatedly may be applied by a Court sitting as a summary conviction appeal court. R. v. Cole, 2012 ONCA 347, 111 O.R. (3d) 424 (C.A.).

III. Conclusion

[62] For all of the foregoing reasons, despite the very able submissions of Mr. Furgiuele, the appeal is dismissed.

[63] I thank both counsel for their helpful presentation of the appeal.

(“Original signed by”)

Conlan J.

Released: September 14, 2020

COURT FILE NO.: 126/19

DATE: 2020 09 14

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

HER MAJESTY THE QUEEN

– and –

David Gipp

REASONS FOR JUDGMENT

Conlan J.

Released: September 14, 2020