ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
O.M.
Appellant
) Laurie Gonet, for the Crown
) Sonya Shikhman, for the Appellant
) HEARD: September 16, 2020
B.A. ALLEN J.
REASONS FOR JUDGMENT
(On a Summary Conviction Appeal)
BACKGROUND
The Charges
1This is an appeal of a decision of Justice F. Crewe of the Ontario Court of Justice rendered on April 4, 2019. The trial proceeded over five days during a period of some seven months. The appellant, O.M., was charged with mischief to the complainant’s cellphone, failure to comply with a probation order, assault with a weapon (a broom), assault with a weapon (a knife) sexual assault and forcible confinement. The charges arose from an incident that occurred on May 14, 2017 between O.M. and the complainant, his wife, Ms. W. The Crown conceded the mischief charge. O.M. was convicted on the other four charges.
BASIS OF APPEAL
2O.M. filed a Notice of Appeal of conviction on June 26, 2019 on the basis that the trial judge made a number of errors in convicting him. The appellant’s counsel submits that the trial judge committed errors of law in assessing the evidence in that he misapplied the standard of reasonable doubt, reversed the burden of proof, relied on unsubstantiated corroborative evidence and engaged in inappropriate and judgmental reasoning with respect to Ms. W.’s sexual preferences.
MS. W.’S STATEMENT TO THE POLICE
3Ms. W. is a 37-year-old registered nurse who owns a home where she and O.M. and their two young sons reside.
4On May 14th, which was Mother’s Day, Ms. W. reported the incident between her and her husband to the police. She provided an unsworn, videotaped statement on the same day as the incident.
5Briefly, Ms. W. reported that she and her husband had argued about his expression of interest in another woman. She had received a text message on her cellphone about this and confronted him. She told the police her husband smashed her cellphone on the kitchen floor and threatened her with an exacto knife and a broom. She further reported that he dragged her up the stairs to the bedroom, punched her in the eye and choked her. She looked in the mirror and saw her eye had been injured. Ms. W. also told the police O.M. forced her to perform fellatio.
6Ms. W. told her husband she wanted to have a doctor examine her eye. He told Ms. W. to lie down. He hid her coat. She then “escaped” through the back door and went to her neighbour’s home to call her uncle. She was crying. Her uncle arrived at the neighbour’s home with his wife. His wife called the police. The police took Ms. W. first to the hospital and then to the police station to make a statement on that day.
OVERVIEW OF MS. W.’S TRIAL EVIDENCE
7Ms. W.’s evidence at trial departed decidedly from what she reported to the police. As will be seen, at trial, Ms. W. ultimately recanted her police statement. She stated in many instances that she did not remember what happened and that she exaggerated her allegations. The Crown applied to cross-examine Ms. W. on her statement pursuant to s. 9(2) of the Canada Evidence Act (“the CEA”). The statement was ultimately admitted for the truth of its content following a KGB application by the Crown: [R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 SCR 740]. The trial judge ruled that both counsel could cross-examine Ms. W. at large.
8Text messages said to have provoked the incident were sent to Ms. W.’s cellphone sometime after midnight on May 14th by Donovan, a family friend and tenant who resided with his family in the basement of Ms. W.’s and O.M.’s home. The text message accused O.M. of improper contact with Donovan’s wife, a friend of Ms. W. Ms. W. went downstairs to confront her husband about the text who she said expressed shock. She then returned upstairs to sleep.
9Later that morning, Ms. W. was sitting at the kitchen table talking on her cellphone with Donavon about the text. It appeared to Ms. W. that her husband might have overheard her conversation. The husband entered the kitchen and took her cellphone and told Donavon, “Leave us alone”. Ms. W. said her husband “placed” the cellphone on the kitchen table. At the time, the two children were playing in the family room.
10Soon afterwards, Ms. W. approached O.M. in the family room and asked him to sign some mortgage papers. He refused. He then went to the kitchen to sign the papers and Ms. W. told him she had torn them up. She said her husband was a “bit disappointed” by this. He asked her to go upstairs so he could talk to her. At first Ms. W. refused to go upstairs because she was still upset by Donovan’s text message. But eventually agreed.
11The two walked up the stairs without issue. Ms. W. explained that they began to argue in their bedroom. She said O.M. was using his “regular voice” during the argument. O.M. then told Ms. W. to get ready because they were going to go to their rental property to plant flowers. She then went to the family room to get the children dressed.
12At trial, after the Crown raised the fact that Ms. W. had made a statement to the police on the day of the incident, Ms. W. added to her testimony. She testified that she and O.M. were arguing in her son’s bedroom and that “she started hitting him” because of Donovan’s text message. In response to the question as to whether O.M. hit her, Ms. W. replied “no”. Ms. W. testified that while still in their son’s bedroom, she told O.M. that her eye was hurting her. She looked in the mirror and noticed it was red. Ms. W. said she believed her eye was injured when her husband was restraining her hands in an attempt to stop her from hitting him.
13Following the incident, Ms. W. continued to be upset about the argument over Donovan’s text message. She went over to her neighbour’s home so she could call her uncle. She explained she could not call her uncle from home because she could not find her cellphone. She called her uncle, Mr. Keith Whyte, crying. Mr. Whyte and his wife came to the neighbour’s home. Mr. Whyte’s wife then called the police. When the police arrived, Ms. W. was at her neighbour’s home. The police took her to the hospital first and on the same day took her to the police station to give the videotaped statement.
THE CIRCUMSTANCES SURROUNDING THE POLICE STATEMENT
14Both parties inquired into the circumstances that surrounded Ms. W. giving her police statement. The statement was not taken under oath. However, Ms. W. was cautioned about telling the truth and informed of the criminal consequences of not telling the truth. She testified at trial that she understood the warning by the police.
15Ms. W. works the night shift as a registered nurse. She testified she gets limited sleep during the day because she has to care for her four-year-old son. In answer to questions about whether she had taken medication before her police interview Ms. W. responded in the negative. Ms. W. testified that when she gave her statement she was feeling “emotional”, “very angry” and “upset”. She testified that she gave the statement voluntarily but did not feel as though she had a choice as to whether to give the statement.
16The Crown put to Ms. W. in cross-examination that she may be having memory problems as a way to protect her husband. Ms. W. responded, “I don’t think so, no”. She testified she was trying to be as truthful as she could.
17There is evidence that Ms. W. sought to have the charges against her husband withdrawn.
18On June 19, 2017, Ms. W. provided the Crown with an unsworn affidavit. In it she stated she wanted the charges to be withdrawn and that she did not want to testify against her husband. As well, she asserted she did not believe that the sexual encounter amounted to a sexual assault. Ms. W. also went to the police on July 22, 2017 to provide a second videotaped statement. She told the police that the information provided in her first statement, which at the time was not provided for her review, was true. However, she stated that she wanted the charges withdrawn.
CROSS-EXAMINATION UNDER CEA, S. 9(2) ON POLICE STATEMENT
19The Crown attempted to refresh Ms. W.’s memory of her evidence in a number of areas of her statement. The way Ms. W. responded to questions offers some insight into the burdensome task the trial judge had before him in arriving at findings of fact. I will cite a few areas of Ms. W.’s testimony to illustrate this.
20Crown counsel attempted to refresh Ms. W.’s memory about O.M.’s conduct when she was in the kitchen talking to Donovan on the cellphone about his text. She was evasive about O.M. throwing the cellphone to the floor. She conceded that he must have done that because that is what she told the police.
21Crown counsel also attempted to refresh Ms. W.’s memory as to whether she was threatened with assault with a knife and a broom in the kitchen. When she gave her initial evidence in testimony about what happened during the incident, Ms. W. did not mention the knife or the broom. This departs from her statement to the police on May 14th. Testifying at trial as to what O.M. did with the knife, she stated:
Q. Oh yes, it’s at page 5, page 5 right in the middle. So, you say to the police, “he went in the family room and then he came back, he took my phone and he threw it on the ground and tell me to - you know before that he had an exacto knife and he was pointing it at my face”. Do you see that? That’s what you told police, correct? A. Okay, yep.
Q. And so that’s what happened, correct?
A. I guess, yep.
A. I know it was on the table because I used it previous. For him to point it at my face I may have exaggerated that.
Q. All right. When you say you may have exaggerated, what did you exaggerate? A. That he picked it up and point it at my face.
Q. So, are you telling us today that that did not happen?
A. I may have exaggerated that.
Q. Okay, what part did you exaggerate?
A. That he picked it up and point it at my face
22In the end, Ms. W. accepted the Crown’s suggestion that there was a knife present. But she said she did not indicate what O.M. did, if anything, with the knife. She said she could not remember.
23Regarding the broom, Ms. W. testified:
R. Okay, and then you told the police that you had the broom because you were going to sweep, and then you say, “and he grabbed the broom and he push it to my face and was still arguing”. Do you remember being asked – making those statements to the police?
A. I honestly can’t remember about this broom incident.
Q. Oh, so you don’t remember about the broom incident today?
A. I can’t remember about the broom. I was upset at him about the message that I got, the messages I got. I may have exaggerated …
Q. We can play it back. My understanding is you never – you indicated there was no treat to you from O.M. either with the knife or with the broom? A. That was correct.
Q. That was correct?
A. Yep.
Q. And you have a clear memory of that, that it did not happen on May 14th, 2017?
A. Right.
24Another area where the Crown attempted to refresh Ms. W.’s memory was on the circumstances around Ms. W. and her husband going up the stairs and whether he choked or struck her. Ms. W. testified:
A. It says here that he was pushing me as I was going up the stairs.
S. And do you remember that happening?
A. I can’t remember him pushing me.
Q. You can’t remember him pushing you. And how about anything else that he did? Do you remember him touching you in any other way? A. It says that he choked me.
Q. And do you remember that?
A. Can’t remember him choking me.
Q. Okay, anything else?
A. It says that he hit me on top of the head.
Q. Okay, and do you remember that?
A. No.
Q. You say to the police, “because the kids were downstairs, I guess he didn’t want them to see”, is what you told police, right? A. Right.
Q. And that’s right after you tell the police that you didn’t want to go upstairs because you knew he was going to hit you. Do you agree with me? A. Yeah, I don’t know why I said that.
Q. Okay. And were you telling the police the truth?
A. I just told them what I could recall.
Q. Right, because your recollection was better then, then it is today, because now it’s a year later, correct?
A. He would never choke me. I don’t know why I said that here.
25The defence counsel cross-examined Ms. W. on aspects of the above testimony.
26Regarding her evidence about O.M. ripping her bra off, Ms. W. testified she does not sleep in a bra and would not have been wearing a bra when she got up that morning. She said she did not get dressed until after the argument. Ms. W. testified she could not remember where she found the bra that she turned over to the police because she had “a lot of black bras”. The defence counsel asked Ms. W. whether she might have exaggerated her evidence in relation to her clothes being torn. She responded, “maybe I exaggerated that.”
27The defence counsel questioned Ms. W. about her weight at the time of the incident. She agreed she was heavier at the time and it would have been “very difficult” for her husband to “scoop her up” off of the ground as she described in her statement.
28Regarding one of the assault allegations, Ms. W. told the police, “I think he punched me here.” Defence counsel asked why she qualified the statement with “I think”. Her response was that she was not certain how her eye got swollen. She “didn’t know what happen[ed] with her eye.”
29A further area of cross-examination by the defence counsel concerned the allegation of sexual assault.
30In her police statement Ms. W. stated that O.M. forced her to engage in oral sex in their master bathroom. She told the police that during that incident she was coughing and spitting up blood. Contrary to her police statement, Ms. W.’s trial evidence was that she was in the master bathroom brushing her teeth and looking at her eye in the mirror when her husband entered the bathroom. Ms. W. stated that her husband asked her in a “normal” way, “can you suck my penis?”. She stated that she did so consensually and that there was no violence involved.
31In subsequent cross-examination by the Crown about the sexual encounter, Ms. W. gave the following testimony:
Q. Okay. Do you remember that happening? Again Ms. Whyte what is complicated about that question? I’m simply asking do you remember that happening. Why is it taking you so long to answer my question?
A. I guess it happened
Q. It happened, okay. So, he grabbed you by the hair and he told you to suck his penis, that’s what happened, right? A. I guess so.
Q. Yeah. So, what you told us earlier today about consenting to the activity that was not true. What’s true is that he held you by the hair and made you do it?
A. It was true what I told you earlier on. If you see my second statement it explains that. So, if we could see that video also. Q. We’ll get to that. We’ll get to that Ms. W.
Q. And part of what happened is that he forced you to suck his penis?
A. He did not force me.
Q. Then how do you explain your statement to police that you were not a willing participant?
A. I guess I was upset.
Q. And in the context of that anger is when he told you to suck his penis, isn’t that correct?
A. It was more like make up sex actually.
Q. Really? So, he grabbed you by the hair and told you to suck his penis and that was make up sex?
A. Done that before.
Q. Is that why you were crying afterwards because you had just made up with him?
A. Just still emotionally upset.
32Ms. W. was shown two photographic exhibits, one of the bathroom where she said the sexual assault took place, and the other, of her face after the incident. Ms. W. acknowledged there was no blood shown in the picture of the bathroom. She also acknowledged that she could see no injuries to her nose. She had told the police that O.M. punched her in her eye and her nose.
33Ms. W. explained why she did not mention the sexual encounter when she spoke to the police at her home on the day of the incident before she went to the police station. She stated that she did not mention it because she, “didn’t think that was sexual assault or anything”. She said it was not until an officer asked her questions at the hospital about whether anything sexual happened that day that she mentioned the encounter to the police.
34Under final cross-examination by the Crown, Ms. W. testified on numerous occasions that she might have exaggerated in her statement to the police. However, she was not specific on any occasion exactly how she exaggerated and precisely what she exaggerated about.
EVIDENCE AT TRIAL
Trial Witnesses
35Crown counsel called several witnesses but principally relied on the evidence of Ms. W. She also called two police officers and Ms. W.’s uncle, Keith Whyte. The defence did not call a case as is the accused’s right.
Cross-Examination on Ms. W.’s Trial Evidence
36The principal focus of the defence counsel’s cross-examination at trial was to establish a motive for Ms. W. to fabricate her allegations.
37It came out in evidence that, unknown to O.M., Ms. W. had two cellphones, a Samsung Note, which her husband was aware of, and a Samsung Galaxy, which her husband was not aware of, that Ms. W. used to communicate with an old boyfriend, Aston, who lived in Jamaica.
38Ms. W. made certain admissions about the problematic state of her marriage. She admitted to having a romantic interest in Aston. Unknown to her husband, Ms. W. was planning to pay Aston’s plane fare to Canada to visit. Ms. W. went so far as to write an invitation letter to assist him. She further admitted that when she left her house quickly after the incident, she called Aston to warn him that O.M. might have seen their text messages on her cellphone and that her husband would be angry about this. She stated that it would create a problem if O.M. was at their home and Aston were to arrive there. Ms. W. also testified she knew O.M. would go to jail if she made allegations against him.
39Contrary to what she told the police, Ms. W. also stated that neither of her cellphones was broken by her husband. She also denied she was forced up the stairs that day. She testified the sexual encounter was at her suggestion because she was angry. She also said she did not spit or cough up blood during the oral sex. She denied her husband hit or choked her or threatened her with the broom and knife. The following is Ms. W.’s evidence on a series of suggestions made at trial by the defence counsel in relation to her allegations:
Q. Okay. Ms. W., I’m going to suggest to you that you made up these allegations, that you in fact lied to the police about O.M. hitting you with the broom, threatening you with the knife, that he would assault you. Do you agree?
A. Yes. I was - yes. I was very upset and there was a lot going on. It was just overwhelming. MS. KANCHARLA: Q. I’m going to suggest, Ms. W., that you made up the part about you being choked, being hit, and your hair being pulled. Do you agree? A. Yeah.
Q. I’m going to suggest to you that you also lied to the police about the sex, that he forced you to give him oral sex.
A. Right. He didn’t - he never forced me. Q. I’m going to suggest to you, Ms. W., that you lied to the police about him punching you in the face or in the eye. Do you agree?
A. That’s correct. I - that’s correct.
Q. And I’m going to suggest to you again there were no ripped clothes the way you told the police. Would you agree? There were no ripped clothes. O.M. never ripped any of your clothes.
A. That’s correct.
Q. Do you agree with me none of your phones broke that day?
A. No.
The Police Officers’ Evidence
40Officer Dowding was one of the officers who interviewed Ms. W. on the day of the incident. He noticed swelling on her right eye. He made no further observations about her demeanour. Photographs were taken of Ms. W. and her strapless bra, which she said “looked like” it was torn and of the exacto knife and the broom. No photographs were taken of a broken cellphone since the police were unable to locate a cellphone during a walk-through of the home. Ms. W. told the police O.M. took off his socks so he would not slip when he was forcing her upstairs. The police found no socks. As well, there were no blood stains found in the master bathroom.
41Officer Dowding was the officer who spoke to Ms. W. when she went to the police station on July 22nd. He testified that Ms. W. confirmed she was telling the truth in her May 14th statement to the police. Ms. W. asked to see her May 14th statement and the officer indicated he did not have it available for her review.
42Officer McLellan was the first officer on the scene. When he arrived, Ms. W. was crying and he noted some swelling and a bloodshot eye to the right-hand side of her face. He made no notation of dishevelled clothes or hair. The officer did not observe a broken cellphone on the kitchen floor.
Evidence of Keith Whyte
43Keith Whyte is Ms. W.’s uncle. He confirmed his niece’s evidence that she called him for help after she went to her neighbour’s home. Contrary to Ms. W.’s evidence that she could not find her cellphone, the uncle testified she called him from her cellphone from a number he recognized. He said it sounded over the phone like she was crying. Accepted only as part of Mr. Whyte’s narrative is his evidence that Ms. W. told him her husband had punched her in the face. She told her uncle that she wanted him to pick her up from her neighbour’s home. Mr. Whyte and his wife arrived at the neighbour’s home shortly afterwards.
44When Mr. Whyte arrived, he observed that Ms. W. appeared to be very distraught with a bloodshot eye. Mr. Whyte’s confirmed his wife called the police and that everyone waited at the neighbour’s house until the police arrived.
The Appellant’s Application to Re-Open the Case
45Following the Crown’s final submissions, the appellant’s counsel advised the court that O.M. had recovered photographs from his wife’s cellphone of text messages between Ms. W. and Aston that revealed the nature of their relationship. The texts cover the period from late February 2017 to early March 2017. The appellant’s counsel applied to re-open the case to allow this evidence to be considered in cross-examination. The trial judge allowed the application and Ms. W. re-attended for cross-examination.
46Ms. W. admitted she acquired the second cellphone in order to communicate with Aston. She agreed she was somewhat obsessed with him and that she texted him whenever she was able to. It appears from the texts that they were planning to get married.
Q. If you go to 87 the person, Aston, asks you, “Will you marry me?” Do you see it there?
A. Yes.
Q. And your answer is, “Yes, babe, I will marry you.” That’s you, right?
A. Yeah.
Q. So what was the plan for marriage that you had at that time with Aston? How was it going to go about? How were you going to end up marrying him?
A. I’m not sure.
Q. You were married to O.M., correct, at the time that you’re texting Aston?
A. That’s correct
Q. Did you have a plan to marry Aston, because you said yes to his proposal?
A. Maybe at some point, yes.
Q. Sorry?
A. At some point, yes.
47Ms. W. stated that she intended to leave her husband. She agreed in the texts that somehow her husband had “to go from the equation”. Ms. W. told Aston she knew that to have Aston in her life, she would need to get rid of O.M. Ms. W. admitted the following:
R. Did you speak to - I’m going to suggest to you, you spoke to Aston about getting rid of Gary once you had left the house and went to the neighbours. That was the purpose you went to the neighbours. A. Yes.
48Of significance in assessing the allegations is Ms. W.’s confirmation that O.M. had some of the text messages on his cellphone on the date of the incident and that she had asked to see them. This means O.M. learned of the relationship between his wife and Aston on the day of the incident. Ms. W. admitted that sometime after O.M. was arrested, Aston booked his ticket and came to Canada. He stayed at Ms. W.’s and her husband’s home while O.M. was in jail.
GENERAL OVERVIEW OF LEGAL PRINCIPLES
49The trial judge admitted Ms. W.’s statement to the police for the truth of its contents. He found both procedural and substantive reliability were established. Reliability findings at the admissibility stage go only to threshold reliability whereas ultimate reliability is determined at trial by the trier of fact. At that stage the question of the weight and credibility of evidence are determined as matters of fact: [R. v. Khelawon].
50The appeal before me centres almost entirely on the credibility and reliability of Ms. W.’s evidence to decide whether the Crown has proved the accused’s guilt beyond a reasonable doubt. R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.) offers direction on the application of reasonable doubt principles when credibility is the main issue at trial. R. v. Dinardo explains that only the substance, not the form, of W. (D.), need be captured by the trial judge. The court observed:
In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.
[R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, at para. 23, S.C.C.; emphasis added]
51The court held that while the reasons must explain why the evidence did not raise a reasonable doubt, it is not required that the reasons be so detailed that they result in an appeal court retrying the entire case on appeal. The trial judge need not be alive to and to have considered all of the evidence, or to have answered each and every argument of counsel: [R. v. Dinardo, at paras. 26 and 30].
52The Ontario Court of Appeal in R. v. Maharaj addresses the proper application of R. v. W. (D.) where credibility of the appellant was at issue in a sexual assault case in which the complainants and the accused testified. In that case, the Ontario Court of Appeal found that the trial judge failed to give adequate reasons as to why he rejected the appellant’s evidence. The appeal court found that amounted to an error of law that justified the appellate court’s intervention. The court found:
This court cannot be satisfied that the trial judge properly applied either the burden of proof or the principles underlying W. (D.). Instead, his conclusory rejection of the appellant’s evidence suggests that he wrongly shifted the burden of proof to the appellant and failed to consider whether the appellant’s evidence, though not accepted, still raised a reasonable doubt about his guilt.
[S. v. Maharaj, 2004 CanLII 39045, at para. 29, (ON CA)]
53The Supreme Court of Canada also explained that reasons can fall short of the ideal so long as they are not so deficient that they fail to be sufficiently responsive to the live issues and the parties’ key arguments. The reasons must respond to the substance of what is at issue: [R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34, at para. 20, (S.C.C.)]. That is, trial reasons are not held to some abstract standard of perfection: [R. v. Dinardo, at para. 35 and R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869(S.C.C.)].
54Dinardo summarizes some principles set out in other cases. Courts should adopt a functional approach to reviewing the sufficiency of reasons. The inquiry should not be conducted in the abstract but should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel. The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out.
55Where credibility is a determinative issue, “deference is in order and intervention will be rare”. An appellate court may only interfere with factual inferences drawn by a trial judge if those inferences are clearly wrong in law, unsupported by the evidence or result in a miscarriage of justice: [R. v. Dinardo, at paras. 24 – 33]. An appellate court can only intervene if credibility findings are based on palpable overriding error: [R. v. Sanderson 2017 ONCA 470, at p. 163, (Ont. C.A.)]
56A misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those tests are met, there is the further test that the identified errors must take an essential place in the narrative of the judgment but also “in the reasoning process resulting in a conviction”: [R. v. Morrissey(1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 221, (Ont. C.A.)].
57The Supreme Court in R. v. J.M.H. cites four types of mishandling of evidence that can amount to errors of law:
(a) It is an error of law to make a finding of fact for which there is no evidence. However, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule.
(b) The legal effect of a findings of fact or of undisputed facts may raise a question of law.
(c) An assessment of the evidence based on a wrong legal principle is an error of law.
(d) The trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law, but this error will be found to have been committed only if the reasons demonstrate that this was not done.
[R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 (S.CC.)]
58The appellant founds his appeal on misapprehensions of the evidence, incorrect application of legal principles and impermissible reasoning on sexual assault which he submits resulted in the trial judge arriving at an unreasonable verdict. In particular the appellant’s counsel submits that the trial judge:
(a) made findings of fact that are contradicted by the evidence;
(b) drew inferences and made findings of fact that were demonstrably incompatible with other evidence not rejected by the trial judge;
(c) erred in finding the injury to the complainant’s eye was corroborative evidence;
(d) having accepted the veracity of the complainant’s statement to the police, failed to consider whether the evidence as a whole raised a reasonable doubt;
(e) assigned too much weight to the complainant’s police statement;
(f) failed to apply the reasonable doubt standard which resulted in an unreasonable verdict; and,
(g) relied on impermissible reasoning with respect to sexual preferences.
59Crown counsel takes the position that it can be seen that the trial judge did not misapprehend any of the evidence when the Reasons are examined in light of the principles that guide appellate review; that is, when the evidence is considered in the context of all the evidence; when a contextual approach is employed; when it is found that the Reasons are sufficient to explain the result and permit effective appellate review; when the Reasons as a whole are read in the context of the evidence and the arguments at trial, with an appreciation of the purposes or functions for which the Reasons are delivered: [R. v. R.E.M., at paras. 15 - 16 and 35 and R. v. Sheppard, at para. 28].
60I find the contextual approach takes on special importance in a case like this. In this case, Ms. W. recanted her statement to the police. But it was not a straightforward recantation. Her trial testimony took twists and turns. Winding through the fabric of Ms. W.’s evidence were a myriad of conflicting areas of testimony.
61Ms. W.’s testimony vacillated widely from stating that she told the truth to the police, to that she could not remember what happened, to that she was exaggerating her allegations, to, under final cross-examination by the defence counsel, accepting some suggestions that she lied to the police. Adding to the difficulty in assessing her evidence, Ms. W., in saying she exaggerated her allegations, could not answer in each case how she exaggerated and exactly what the un-exaggerated form of her evidence would be.
62This requires contextually that any aspect of Ms. W.’s evidence be viewed and assessed in the context of all of her evidence and that the entirety of her evidence be read in the context of the totality of all the other evidence adduced at trial. It would be incorrect to fasten on one aspect of Ms. W.’s evidence in isolation from the rest of her evidence and other evidence. Findings of fact are not straightforward in a case like this.
63In the circumstances, the task for the appeal judge in determining whether a misapprehension of the evidence occurred is difficult. What is clear from the case law is that the test for deciding whether a misapprehension of evidence warrants appellate intervention is a “stringent” one.
64It is not sufficient for the appellant to identify a simple inaccuracy in the presentation of the evidence. Legal consequences for a misapprehension of evidence are engaged only where the appellant can demonstrate that the error involved material aspects of the evidence in an essential part of the narrative of the judgment and in the reasoning process upon which a conviction is founded: [R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, (S.C.C.)].
65The appellant’s counsel challenges Ms. W.’s credibility on several fronts. I remind myself that assessments of credibility are entitled to strong deference on appeal and that an appellate court can only intervene if credibility findings are based on palpable overriding error: [R. v. Dinardo and R. v. Sanderson 2017 ONCA 470, at p. 163, (Ont. C.A.)].
THE TRIAL REASONS
Overview of Trial Evidence
66The trial judge found Ms. W.’s evidence lacking in credibility insofar as she attempted to minimize the blame of her husband in relation to the May 14th incident. He found her inability to recall the details of the incident inconsistent with her ability to recall more tangential areas of the evidence. He provided as an example of this concern that Ms. W. could recall the plan to plant flowers at their rental property on May 14th. But she could not recall, for instance, a knife being held in front of her face.
67The trial judge rejected without hesitation certain areas of Ms. W.’s evidence. For example, he rejected:
the evidence that O.M. was only “a bit disappointed” at the mortgage papers being torn up, given the evidence of the acrimonious mood at the home that day; • the evidence that O.M. spoke to Ms. W. in a “calm voice” after they went upstairs;
that she had willingly engaged in oral sex with her husband;
found “ludicrous” Ms. W.’s assertion that it was “normal” behaviour for them, that it was “makeup sex”; based his finding on the fact that the sexual encounter followed a protracted set of contentious events spurred on by Donovan’s email, he found consensual fellatio not likely to follow such events.
68The trial judge cited factors he thought supported the truthfulness and reliability of Ms. W.’s statement to the police:
that the statement was given on the day of the incident when her memory would have been fresher and more vivid;
that Ms. W. agreed to tell the truth and acknowledged she was cautioned about the consequences of not telling the truth, that she could be “locked up”;
that she agreed to being videotaped during the interview;
that the police did not lead her during the statement as they asked an open-ended question allowing her to tell her story in her own words;
although an officer asked her at the hospital whether there was a sexual aspect to her allegations, subsequently at the station she gave an account of the sexual assault in her own words;
that the trial judge did not find the statement to be a vengeful attempt to get her husband in trouble; and
that the statement was internally consistent and consistent with other events that happened that day.
69In summary, the trial judge found the statement was credible, reliable and consistent with other evidence.
Trial Judge’s Disposition on the Convictions
Assaults with Knife and Broom
70The trial judge reviewed the evidence related to the allegations that O.M. threatened Ms. W. with assault with a knife and a broom.
71The trial judge found the evidence on those convictions did not rise to the level of proof beyond a reasonable doubt. He concluded that the mere presence of those items in the home and Ms. W.’s descriptions of them were not corroborative of offences being committed with those items.
72The appellant’s counsel of course does not dispute the verdicts on those convictions. I will therefore not spend time extensively reviewing the evidence related to those convictions except where it may bear on the legal ramifications of the trial judge’s decisions on other convictions.
Other Assaults
73Regarding the incident on the stairs, the trial judge cited Ms. W.’s assertion in her police statement that O.M. grabbed her arm and told her to go upstairs. He referred to her words:
I tell him I’m not going upstairs and I put myself on the floor and he raised his foot like he’s gonna kick me in the face but he didn’t.
74The trial judge found corroboration of Ms. W. being dragged up the stairs in the photographic evidence of the torn bra. He found persuasive the detail that Ms. W. told the police her husband took his socks off on the stairs so he would not slip. The trial judge found this not to be the kind of small detail a witness would make up.
75The trial judge also found the photograph of Ms. W.’s swollen blood shot eye to be corroborative of a punch in the eye. He did not accept the view that Ms. W. sustained the injured eye by her own actions when her husband was trying to stop her from hitting him. The pain in her eye proved, in the trial judge’s view, the force of the punch by O.M. The trial judge cited Ms. W.’s answer when asked to describe the punch where she said, “Like boom”.
76As evidence of her fear of O.M., the trial judge pointed to Ms. W.’s statement to the police:
I opened the kitchen door and escaped through the kitchen door, went to my neighbour’s house, called my uncle. [trial judge’s italics]
77He found corroboration of this in her uncle’s evidence that when he spoke to her on the phone it sounded like she was crying and when he arrived at the neighbour’s home she was distraught with a bloodshot eye. This caused the uncle’s wife to call the police.
78The judge found O.M. guilty of assault.
Failure to Comply with probation – To Keep the Peace
79Based on the findings of guilt of assault, the trial judge found O.M. guilty of failure to comply with probation, by not keeping the peace.
Forcible Confinement
80The trial judge found instances of forcible confinement in the May 14th statement. He cited jurisprudence for the proposition that there need not be physical restraint on a person to establish the offence: [R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.)]. As evidence of forcible confinement, he pointed to O.M. forbidding his wife to go to the doctor about her injured eye and taking her coat, hiding it and keeping watch over her so she would not leave the home which caused her to have to “escape” to the neighbour’s home.
81The trial judge found O.M. guilty of forcible confinement.
Sexual Assault
82The trial judge was alert to the fact that unlike the other charges, there is no dispute that there was a sexual encounter. The issue was one of whether the encounter was consensual and whether it was initiated by Ms. W.
83The trial judge did not believe Ms. W. consented to engage in oral sex. Ms. W. did not accept the defence counsel’s suggestion that she did this willingly because she was trying to placate her husband over the torn mortgage papers. The trial judge did not accept Ms. W.’s affirmative answer to the suggestion by the defence that the sexual activity was her idea. As noted above, the trial judge concluded that he could not accept that Ms. W. would have consented to sexual activity after an acrimonious encounter with her husband where he dragged her up the stairs, tore her bra, punched her in the eye after she discovered her husband’s interest in another woman.
84The trial judge found O.M. guilty of sexual assault.
SPECIFIC ERRORS IN LAW CITED BY APPELLANT
The Appellant’s Position
Misapprehension of Evidence Contrary to Undisputed Facts
85I remind myself that a miscarriage of justice amounting to an error of law may arise where there is a misapprehension of “significant evidence”: [R. v. Morrissey]. The appellant’s counsel cites the following three areas where she argues the trial judge misapprehended the evidence:
(a) when he failed to consider there was no evidence of blood in the bathroom despite Ms. W. saying she spat up blood;
(b) on the fact that the complainant was much heavier than O.M. at the time of the offence and that it would have been impossible to pick her up; and
(c) on the complainant’s motive to get rid of O.M. so she could begin an affair with Aston.
86Regarding the absence of blood, the Crown takes the position that the absence of blood on the bathroom floor or sink is not indicative of Ms. W. having fabricated her evidence in this area. Her evidence to the police was that she was coughing and spitting up blood as a result of being forced to perform fellatio. At trial, she testified that she could not remember doing either of these things.
87The Crown takes the position, and I agree, that the record is silent as to whether Ms. W. coughed or spat up blood on herself or any surfaces in the bathroom where the fellatio is alleged to have occurred. She testified that she went to the bathroom to clean herself but the record is silent as to what that clean up entailed. I add as well that there is evidence that O.M. remained in the house after the incident and might reasonably have cleaned up any inculpatory blood evidence in the bathroom.
88I find it was reasonably open to the trial judge on the evidence before him to believe Ms. W. spat up blood as a result of forced fellatio and to find that the absence of blood did not prove Ms. W. to have fabricated her evidence.
89On the question of her husband lifting her up at the stairs, Ms. W. told the police and at a point in her testimony at trial that she had “put herself on the ground” at the bottom of the stairs to avoid going upstairs with her husband. She alleged her husband dragged and pushed her up the stairs after “scooping” her up from the floor.
90Again, Ms. W. also testified that she could not recall how she got upstairs. She testified that she may have exaggerated her allegations. She changed her evidence to say that she went up the stairs willingly. Ms. W. testified she was significantly heavier than her husband at the time so it would have been very difficult for him to lift and/or drag her.
91Again, I agree with the Crown. The record is silent on how much Ms. W. and O.M. weighed at the time. I add that the record is also silent as to how strong O.M. was at the time. There is also no suggestion that O.M. picked Ms. W. up off the floor or carried her up the stairs as she lay prone. Ms. W. testified, it may have been difficult for her husband but not impossible.
92It is not unreasonable that the trial judge found believable and supportable on the evidence that O.M. lifted his wife up when he was trying to get her to go upstairs.
93The appellant’s counsel takes the position that Ms. W.’s relationship with Aston provided a motive for Ms. W. to fabricate her allegations against O.M. She cites the content of the text messages and Ms. W.’s plan for Aston to come to Toronto from Jamaica. The appellant’s counsel submits that Ms. W. knew making the allegations against her husband would result in him being jailed and that this would allow her to further her relationship with Aston while her husband was away.
94The trial judge dismissed the Aston motive as being of no moment. The trial judge pointed to the evidence of the chronology of Ms. W.’s complaint to the police in May 14, 2017 and her attendance on June 17, 2017 with the Crown with an unsworn affidavit seeking the withdrawal of the charges and her further re-attendance with the police to give a second videotaped statement on July 22, 2017 to ask that the charges be withdrawn and where she said she told the truth in her initial statement. These things happened shortly after her husband was arrested. Ms. W. sought to have her husband returned home and professed to loving him. The trial judge noted that the text communications with Aston pre-dated the assaults by several months.
95The Crown submits that the trial judge’s conclusion that Ms. W.’s actions do not reflect the conduct of a woman trying to get rid of her husband is reasonable. I agree. The Aston factor cuts both ways. I find it was open to the trial judge to conclude on the evidence before him that Ms. W.’s affair with Aston was not a motive to fabricate. I take the Crown’s argument that a motive unfavourable to O.M. could equally be drawn, that O.M.’s knowledge of the affair before the incident could have provided a motive for him to attack his wife.
Weighing the Police Statement and Burden of Proof
The Appellant’s Position
96The appellant’s counsel challenges the trial decision on the basis that the trial court misapplied/failed to apply the burden of proof and gave undue, unbalanced weight to Ms. W.’s police statement over her trial testimony.
97The appellant’s counsel argues the trial judge committed an error of law in stating that he rejects the complainant’s evidence because she minimized the conduct of O.M. She argues that inherent in that finding is that the trial judge first accepted Ms. W.’s statement to the police and then rejected her trial evidence on the basis of it being inconsistent with the police statement.
98The error of law rests in the fact, according to the appellant’s counsel, that the judge misapplied the standard of proof by accepting the police statement and arriving at a verdict by comparing her trial evidence to the statement rather than considering the evidence as a whole and he thereby wrongly shifted the burden of proof to O.M. As a result of shifting the burden, the trial judge engaged in the forbidden reasoning identified by the Ontario Court of Appeal in R. v. Maharaj. That is, accepting and believing that the police statement was reliable inevitably led to a total rejection of the complainant’s trial testimony beyond a reasonable doubt: [R. v. Maharaj, at para. 30].
99The trial judge, in the appellant’s counsel’s further submission, committed the error of assigning too much weight to Ms. W.’s police statement. She does not challenge the admission of the police statement for the truth of its contents. She, however, submits that a hearsay statement cannot be weighed on equal footing with evidence given under oath at trial and subjected to cross-examination. The police statement was unsworn and not subject to contemporaneous cross-examination. The appellant’s counsel cites for support the following passage from R. v. Walker:
That said, this particular evidence, admitted for the truth of its contents, cannot stand on entirely the same footing as non-hearsay evidence when it comes to the question of assessment of ultimate reliability.
[R. v. Walker, at para. 73]
100The appellant’s counsel further cites the Supreme Court of Canada in R. v. U (F. J.) for the advantages presented by cross-examination in a credibility case:
When a witness takes the stand at a trial and, under oath, gives a different version of the story than one previously recorded, doubt is cast on the credibility of the witness and on the truth of both versions of the story. This is what effective crossexaminers hope to achieve.
[R. v. U. (F. J.), [1995] 3 S.C.R., at para. 38, (S.C.C.)]
101It is the appellant’s counsel’s conclusion that, were the trial judge not to have given so much weight to the police statement, the police statement should have suffered at a minimum from diminished reliability/credibility, enough to raise a reasonable doubt. He committed the error of not recognizing the impact of contemporaneous cross-examination on ultimate reliability.
102The appellant’s counsel did acknowledge that a judge is presumed to know the law. But she submitted he exceeded that principle because he failed to apply the standard of beyond a reasonable doubt in arriving at verdicts.
103The appellant’s counsel cites the fact that the trial judge mentions the standard only once in his Reasons. She posed an example of this. The appellant’s counsel cites a passage at the conclusion of the Reasons, where the trial judge comments that there was “nothing in the statement that smacks of a fanciful story despite O.M.’s attempt to paint her statement as vengeful fantasy of a woman ready to move into the arms of another man”, as raising a standard not required to be met by the defence.
The Crown’s Position
104The Crown argues the trial judge made no errors in balancing the evidence or in applying the standard of proof.
105The Crown points out that R. v. W.(D.), R. v. Maharaj and other cases cited involve credibility determinations where both Crown witnesses and the accused testify. In the case before the trial judge, the accused called no evidence. I accept nonetheless that the principles on the standard of proof applicable at a trial where an accused testifies can be applied at the trial stage where the ultimate reliability of a Crown witness’s out-of-court statement, admitted for the truth of its content, is weighed against the witness’s trial evidence. What is at issue in both types of cases is whether the totality of the evidence was considered by the trial judge in arriving at a verdict.
106At this stage of the analysis, the Crown in applying principles takes a broad view of the trial evidence. Credibility is at the heart of the trial judge’s determination. The Crown cites the longstanding rules directed to circumscribing an appeal court’s reach on assessing the credibility findings of a trial judge. I addressed some of those rules above but they bear repeating as they relate to the Crown’s position.
trial judge’s reasons are not held to some abstract standard of perfection;
the evidence of witnesses must be considered in the context of the evidence as a whole in determining whether there is a reasonable doubt as to the accused;
deference is owed to the trial judge’s findings of credibility;
an appellate court can only intervene if credibility findings are based on palpable overriding error;
appellate intervention will be rare;
a conclusory rejection of a witness’s evidence can lead to the trial judge wrongly shifting the burden of proof to the appellant so the trial judge must give adequate reasons why they reject a witness’s evidence;
an appellate court may only interfere with factual inferences drawn by a trial judge if those inferences are clearly wrong in law, unsupported by the evidence or result in a miscarriage of justice;
107The Crown cites R. v. H. J. for the further proposition that unbalanced scrutiny “must be demonstrated in the reasons for judgment or the trial record”. The Ontario Court Appeal held in that case:
It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.
[R. v. H. J., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39, at para. 59, (Ont. C.A.)]
108The Crown takes the position that with those principles in mind at the stage of determining ultimate reliability and credibility, the appeal court has limited scope to intervene on the trial judge’s credibility findings. The Crown cites the important vantage point a trier of fact occupies at trial when weighing the ultimate reliability and credibility of a witness who has made a prior statement: [R. v. B. (K.G.), at para. 120; R. v. Khelawon, at para. 3].
109That is, the trier of fact has a first-hand advantage of viewing the demeanour of the witness in circumstances where they have made a prior statement and recanted it at trial. In this case, the trial judge had the opportunity to view the witness as she offered reasons for her recantation and the chance to consider any motivation and/or opportunity she had to fabricate her evidence when making the previous statement or when testifying at trial. The trial judge had the further opportunity to examine such factors as the events leading up to the making of the statement, the nature of the interview and any corroboration or confirmation of the facts in the statement. Importantly, the trial judge had the opportunity to examine the extent to which the nature of the witness’s recantation impacts on cross-examination on the previous statement.
110The question is whether the trial judge properly weighed credibility in balancing Ms. W.’s statement to the police with the trial evidence. The issue in this case is whether he gave undue weight to the statement to the police causing him to wrongly apply and shift the burden of proof. This raises the further question of whether the rejection of Ms. W.’s trial evidence resulted in the trial judge failing to consider whether that evidence raised a reasonable doubt about O.M.’s guilt.
111In response to those concerns, the Crown asserts the trial judge correctly relied on the following principles in weighing the credibility of Ms. W.’s police statement and her trial evidence: the trial judge’s observation that the case, “rests on the strength of the evidence of the complainant, both her viva voce testimony and her statement to police”; the trial judge properly recognizing that, although the police statement was admitted as an exception to the hearsay rule, it remained to be assessed in the same manner as other evidence; and his observation that reliability must be assessed against the backdrop of all of the evidence.
112The appeal court must be guided by the principle that, when asked to set aside a verdict as unreasonable based on a credibility assessment, it can only do so if it is established that the credibility finding, “cannot be supported on any reasonable view of the evidence”: [R. v. R.P., 2012 SCC 22, [2012] S.C.J. No. 22 at paras. 9 - 10, (Ont. S.C.J.); R. v. W.H., 2013 SCC 22, [2013] S.C.J. No. 22 at paras. 30 - 34, (Ont. S.C.J.)].
113It is the Crown’s conclusion that although the trial judge accepted Ms. W.’s evidence in her statement to the police over her trial evidence, this does not mean he incorrectly or unfairly balanced that evidence against her viva voce evidence. For instance, the trial judge convicted O.M. on charges where there was corroborating evidence; namely, the assault connected to the eye injuries and the assault related to dragging her up the stairs. He did not convict on the assault relating to the knife or the broom which means, in the Crown’s estimation, that the trial judge did conduct an assessment of the police statement in relation to the evidence at trial. He did not simply convict on all charges.
Appellate Court Analysis
114I come to a decision on balancing of the police statement and the burden of proof for the following reasons:
115It is clear an appeal court must consider as a factor the impact of contemporaneous cross-examination when weighing the credibility of a prior out-of-court statement and a witness’s trial evidence. Evidence at trial is given under oath or affirmation and with cross-examination comes an opportunity to test credibility that does not exist with assessing an out-of-court prior statement.
116But cross-examination does not automatically ensure the truth or strength of the trial evidence. Cross-examination can have the effect of casting doubt on both the statement and the evidence at trial. The conditions surrounding the statement are relevant in assessing the weight of the statement. Whether the statement is sworn or affirmed, and if not, whether the witness promised in relation to the statement to tell the truth, and whether they were cautioned about possible criminal consequences of fabricating, are relevant considerations. It is ultimately the task of the trial judge to take a holistic look at all of the evidence and decide what evidence they accept.
117I am cognizant that trial reasons are not to be held to an abstract standard of perfection. It is critical however that findings on credibility when viewed on the totality of the evidence are supportable on any reasonable view of the evidence. A trial judge is not permitted to reject a version of the evidence without articulating clear reasons for doing so. Failing to do so risks improperly shifting the burden of proof. Giving unwarranted, excessive weight to the credibility of the statement over the trial evidence risks unfair rejection of the trial testimony beyond a reasonable doubt.
118The appellant’s counsel contends that the trial judge scrutinized the statement and trial evidence in an unbalanced manner. I take note here of the observations in R. v. J.H. which held that an argument that the trial judge engaged in unbalanced scrutiny of the evidence “is a difficult argument to make successfully”. To establish unbalanced scrutiny, it “must be clearly demonstrated in the reasons for judgment or the trial record”.
119The form of the trial judge’s Reasons in the case before me is such that the judge first summarizes in several paragraphs the evidence Ms. W. gave in her police statement. He does not repeat that evidence in the balance of his Reasons. Then at some length the trial judge recites areas of the evidence Ms. W. and other witnesses gave at trial. The form of the Reasons can create the impression that the trial judge engaged in unbalanced scrutiny of the evidence giving more weight to the statement.
120However, while the Reason’s might not be perfectly drafted in form, they are not required to be. The more important consideration after looking at the totality of the evidence is the substance of the decision. I find from that perspective the trial judge was appropriately alert to the principles on weighing evidence at trial. He recognized that while the police statement was admitted as an exception to hearsay, he retained the responsibility to assess the statement in the same manner as other evidence and recognized that reliability must be assessed against the backdrop of all of the evidence.
121I agree with the Crown’s recitation of the areas of the trial judge’s decision that reflect that the trial judge did not engage in an unbalanced scrutiny of the evidence. I find he fairly assessed the ultimate weight to be attributed to Ms. W.’s statement to the police in the following areas of his decision. The trial judge:
addressed the nature of the complainant’s recantations at trial which he outlined in detail; [Reasons, at paras. 37 – 49]
described the complainant as a difficult and reluctant witness and cited specific excerpts from the transcripts; [Reasons, at paras. 52 – 56]
addressed the evidence of the communication with Aston which the trial judge recognized the complainant “readily acknowledged”; [Reasons, para. 61]
addressed the demeanour of the complainant immediately after the assault which she testified about as did her Uncle, Keith Whyte and Detective Constable McLellan; [Reasons, paras. 62 – 70]
described the demeanour of the complainant when she provided her statement to the police which was on the same day as the assault; [Reasons, paras 74 – 75, 106]
cited the specific example of the complainant’s disclosure of the sexual assault to the police as being freely given and the police “did not need to, nor did they, prompt her for details”; [Reasons, para. 107]
referred to the cautions given to the complainant prior to her providing her statement in summarizing the Crown’s position; and the complainant’s attempt, two months later, to have the charges withdrawn despite maintaining the statement was true; [Reasons, paras. 87 and 88]
in summarizing the Crown’s position, cited the complainant’s repeated difficulty with her memory insofar as it related to the conduct of her husband but had “relative ease at recalling other less significant details”; [Reasons, para. 101]
122Looking at the evidence on a whole I cannot conclude that the trial judge shifted the burden of proof by the manner in which he addressed and weighed the credibility of the statement and the evidence at trial. This is not the proper basis for appellate intervention.
Conviction on Sexual Assault
Reversal of Burden of Proof on Consent
123The appellant’s counsel poses an error of law in relation to findings on consent on the sexual assault charge.
124The appellant’s counsel refers to the comment by the trial judge, “I accept Ms. W.’s evidence that the sexual act of fellatio took place. I cannot and do not accept that it was consensual.” That, in the appellant’s counsel’s view, is a reversal in the burden of proof. She argues that the task for the trial judge is not to determine whether the fellatio was consensual; but rather whether the Crown proved beyond a reasonable doubt that the sexual activity was not consensual. This error, in the appellant’s counsel’s view, led to an unreasonable verdict.
125I agree with the appellant’s counsel’s position. The trial judge’s findings amount to a reversal of the burden. The error constitutes an assessment of the evidence based on a wrong legal principle and as such is an error of law which directly influenced the trial judge’s verdict on sexual assault and is a basis to quash the conviction on sexual assault.
Impermissible Myths and Stereotypes
126The appellant’s counsel further argues that the trial judge incorrectly rejected Ms. W.’s evidence on the voluntariness of the sexual activity when he engaged in impermissible inferences/judgments on Ms. W.’s sexual preferences. She cites paragraph 105 from the Reasons:
105I likewise do not accept her evidence that she willingly engaged in sexual activity with her husband, nor the ludicrous assertion that it was “normal” behaviour for them, or “make-up sex”. The sexual assault described follows closely on the heels of a protracted series of events commencing with a pitched argument between the two, then having her bra ripped in two while being dragged upstairs, followed by a confrontation that left her with a black eye. All of this on the heels of the news that her husband was interested in someone else. Hardly a series of events that would “normally” be followed closely in time by consensual fellatio.
127The appellant’s counsel looked to a recent decision by Dambrot, J. of this court which cautions triers of fact about prohibited reasoning on a woman’s sexual preferences. Dambrot, J. observed:
A woman is entitled to express her sexual preferences, discuss her sexual history, wear sexually suggestive clothing, be flirtatious or express herself in a sexually suggestive way without fear that those words and acts may be used as a substitute for consent or to undermine any complaint she may make that she was sexually assaulted...
[R. v. MacMillan, 2020 ONSC 3299, at para. 23, Ont. S.C.J.].
128The Crown takes the position that the trial judge did not engage in impermissible myths and stereotypes in deciding that he did not accept that Ms. W. consented to fellatio. The Crown cites a later passage from the Reasons at paragraph 132 to support its view:
I accept Ms. W.’s evidence that the sexual act of fellatio took place. I cannot, and do not accept that it was consensual. It bears repeating, that the suggestion that the complainant not only consented to, but suggested sexual activity, after a heated argument with her husband, and after being dragged upstairs by him, in the course of which he ripped her bra in half, and then choked her for 20 seconds and punched her in the eye with great force, all of which followed closely on the heels of the discovery that her husband had designs on another woman, is simply not believable. I do not accept her evidence on this point, and I reject it without hesitation [emphasis added by Crown].
129I do not find paragraph 132 assists the Crown. I do not find the paragraph says anything substantially different than paragraph 105. Both paragraphs recount the trial judge’s view on Ms. W.’s sexual preference.
130Underlying the trial judge’s words is a judgment about whether Ms. W. would consent to sex in the circumstances of the contentious situation with her husband. He rejected the prospect that Ms. W. would engage in make-up sex in the circumstances. This line of thinking is the major reason the trial judge did not accept that Ms. W. consented.
131This reasoning is an incorrect basis on which to found a credibility finding on sexual assault. The trial judge has entered the forbidden realm of misusing evidence of sexual activity for irrelevant and misleading purposes. He relied on the inference that the complainant could not have consented to the sexual activity because of a preconceived notion of what would be “normal” in the circumstances.
132As the Alberta Court of Appeal observed, “admitting evidence to dispel the inference of the unlikelihood of consent is no different than introducing such evidence to support the inference of an increased likelihood of consent”: [R. v. Seaboyer, [1997] 2 S.C.R. (S.C.C.); R. v. MacMillan, at para. 23 and R. v. Goldfinch (2018), 2018 ABCA 240, 363 C.C.C. (3d) 406, at para 40, Alta. C.A.; aff’d, 2019 SCC 38 at paras. 58 - 60].
133This area of the trial judge’s reasoning amounts to an assessment of the evidence based on an impermissible myth or stereotype and as such is an error of law that directly impacts the verdict on this charge. As such it is a further basis to quash the conviction on sexual assault.
Failure to Apply Reasonable Doubt Standard
134The appellant’s counsel argues that failure to apply reasonable doubt throughout his Reasons resulted in an unreasonable verdict. As the appellant’s counsel earlier argued, the trial judge only mentioned the words “reasonable doubt” once in his 21-page Reasons. The appellant’s counsel specifically cites paragraph 109 of the Reasons as an example of failing to apply the standard:
109There is nothing about the statement that smacks of a fanciful story, despite O.M.’s attempt to paint her statement as vengeful fantasy of a woman ready to move into the arms of another man. The story woven in the statement makes sense. It is internally consistent, and consistent with other things proved to have happened that day, as set out below.
135I find the trial judge wrote that paragraph in summing up his assessment of Ms. W.’s evidence. It is a passage in his Reasons where he is assessing the merits of the statement to the police. I find paragraph 109 is just the colourful way he chose to describe what in his estimation he found Ms. W.’s statement did not reflect. Looking at that paragraph in the context of all the evidence the trial judge considered, I cannot see how it plays a part in leading to an unreasonable verdict.
136As mentioned earlier, it is a well-known principle applicable to appeals of trial decisions that judges are presumed to know the law. R. v. Sheppard observed:
While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.
137The standard of reasonable doubt is one of the most basic of the fundamental principles in criminal law. Judges apply this law routinely in their daily judicial work. The fact that the trial judge does not mention the standard frequently in his Reasons is something to note, however, more important is the adequacy and correctness of the decision.
138As I concluded earlier, while the trial judge’s Reasons may not be perfectly drafted, the more important factor to consider is whether, looking at the totality of his decision, the trial judge was attentive to the principles applicable to weighing evidence at trial. I concluded the trial judge was. I do not find the failure to mention reasonable doubt resulted in an unreasonable verdict.
APPELLATE DISPOSITION ON OTHER CONVICTIONS
The Punch to the Eye
139The appellant’s counsel takes the position that the trial judge was incorrect in finding that Ms. W. testified that she had no memory at trial of how her eye injuries occurred. Ms. W. did in fact say at points that she did not remember this when questioned by the Crown. This poses a credibility question.
140In her police statement, Ms. W. stated that O.M. punched her in the eye and pointed to where she was punched. When questioned in-chief at trial, she testified that her eye was bothering her but she did not recall being hit. Later at trial, she testified that she was hitting her husband and when her husband was calming her down that is how her eye got injured. Ms. W. then agreed with the Crown that what she said in her statement to the police was what she could recall. But also, later in her cross-examination by defence counsel, Ms. W. maintained that she did not know how her eye got injured. And also testified that she may have exaggerated.
141The appellant’s counsel also takes the position that the trial judge erred in relying on the photographs of the eye injuries as corroborative evidence.
142Ms. W. at times downplayed the injuries to her eye saying she suffered “some redness”. But it is observable from the photographs of her face, taken by the police on the day of the incident, that there was swelling and bruising below her eye and on her eyelid and redness in the white of her eye. Ms. W. is a registered nurse and in that capacity would know when an injury was minor or sufficiently serious to warrant a doctor’s attention. She told her husband she wanted to go to the doctor.
143I agree with the Crown it was clearly open to the trial judge to rely on the photographic evidence to conclude that the injuries to the complainant’s eye were not sustained as a result of an incidental or glancing blow. But rather were caused by a more deliberate and forceful act. This is also a question of credibility.
144It was open to the trial judge to disbelieve Ms. W. It was open to the trial judge to conclude that the photographs “clearly” showed the effects of a punch to Ms. W.’s eye and to disagree that the injuries were self-inflicted during a struggle with O.M. The trial judge came to the reasonable conclusion based on the evidence that Ms. W.’s level of pain was “powerful evidence” of the force of the blow. There is no basis for the appellate court to disturb the trial judge’s credibility finding.
145This is not a place for judicial intervention. I will not disturb the conviction on assault in relation to the punch to Ms. W.’s eye.
The Dragging Up the Stairs
146The appellant’s counsel also posits that the trial judge erred in finding the complainant was dragged up the stairs. The appellant’s counsel argues that the evidence actually was that she went up willingly and that the trial judge acknowledged this.
147This is also an area where Ms. W. recanted her evidence when she testified at trial, again a credibility question.
148In her police statement, Ms. W. stated that her husband forced her up the stairs by dragging her. Her initial testimony at trial was that after her husband asked her to, she went willingly up the stairs. During the Crown’s cross-examination, she testified she did not want to go upstairs. She hesitated in her evidence but eventually agreed that she put herself on the ground to avoid doing so. On the second day of trial, Ms. W. maintained that she put herself on the ground to avoid going upstairs. But she insisted it was not because she was afraid her husband would hit her. She went on to say she exaggerated the latter point when speaking to the police.
149Ms. W. also testified under cross-examination by the defence counsel that she did not remember whether she was dragged up the stairs, whether she put herself on the floor. She testified she does not know why she said that. She changed her evidence to say she agreed to go upstairs with her husband to talk.
150The appellant’s counsel refers to the trial judge’s comment during the trial about Ms. W.’s willingness to go upstairs where he indicates that this had been established as a fact. However, in his Reasons, he changed his view indicating he did not believe Ms. W. that she went up the stairs willingly. He references the latter finding several times in his decision.
151A finding that Ms. W. was dragged up the stairs by her husband is a credibility finding that was open to the trial judge on the evidence before him. This is not a place where appellate intervention is warranted. I will not disturb the conviction on assault involving the activity on the stairs.
The Choking
152The appellant’s counsel also claims that the trial judge erred in finding the complainant was choked when, according to the appellant’s counsel, her evidence was clear that she lied about that.
153As with her trial evidence on other allegations, Ms. W. testified she did not remember her husband choking her. She contended when cross-examined by the Crown that she did not remember being choked and might have exaggerated in her police statement. At the end of the defence counsel’s cross-examination at the trial proper, counsel suggested to Ms. W., “You made up the part about you being choked, being hit, and your hair being pulled”. To this Ms. W. testified, “yeah”.
154I agree with the Crown that Ms. W.’s answer on final cross-examination by defence counsel is not a clear denial of being choked. This is because the answer to the suggestion by defence counsel is a response of “yeah” to a multi-faceted question. In sum, Ms. W.’s evidence was that she could not remember or that she had exaggerated.
155This is a question of credibility and as such it was open to the trial judge to conclude on all the evidence that he believed Ms. W.’s allegation that she was choked by her husband. This is also not a place for appellate intervention. I will not disturb the conviction on assault related to the choking.
Failure to Comply with probation – To Keep the Peace
156Based on the findings of guilt on assault, I affirm the conviction for failure to comply with the term of probation to keep the peace.
Forcible Confinement
157The case law does not require physical restraint to establish guilt of forcible confinement. I accept that there is evidence supporting the conviction. The trial judge relied on O.M. forbidding his wife to go to the doctor about her injured eye, that he hid her coat and kept watch over her so she would not leave the home. The evidence was that she had to “escape” to the neighbour’s home. I will not disturb the conviction for forcible confinement.
DISPOSITION
158Count 1 (mischief to property damage to cellphone) was withdrawn by the Crown. Count 3 (assault with a weapon, a knife) and count 4 (assault with a weapon, a broom) were dismissed at trial.
159I would dismiss the appeal on count 2 (failure to comply with probation), count 5 (assault) and count 7 (forcible confinement). I would allow the appeal on count 6 (sexual assault).
B.A. Allen J.
Released: October 2, 2020
COURT FILE NO.: CR-19-30000075-00AP
DATE: 20201002
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
O.M.
REASONS FOR JUDGMENT
(On a Summary Conviction Appeal)
B.A. ALLEN J.
Released: October 2, 2020