R. v. Dezell, 2020 ONSC 6247

COURT FILE NO.: 720/19 (Stratford)

DATE: 2020/10/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

Christopher Dezell

Respondent

Andrew Paul, for the Appellant Crown

Jessica Zita, for the Respondent

HEARD: August 25, 2020

On an appeal from the judgment of the Honourable Justice K. L. McKerlie of the Ontario Court of Justice dated October 24, 2019.

reasons on summary conviction appeal

campbell j.:

Introduction

1The respondent was charged with two offences, which were alleged to have occurred in the date range of June 1, 2018 and December 31, 2018. The alleged offences were:

a. One count of sexual assault against B.H., contrary to section 271 of the Criminal Code, R.S.C. 1985, c. C-46; and

b. One count of sexual interference with respect to B.H., contrary to section 151 of the Criminal Code.

2A trial on both counts commenced on August 13, 2019 and concluded on August 14, 2019. On October 24, 2019, McKerlie, J. acquitted the accused and delivered oral reasons for her decision.

3On this appeal, the Crown contends that the learned trial judge (i) failed to consider all the evidence related to, what it described as, the material issue of identification and (ii) failed to provide sufficient reasons for her decision. Both failures, the Crown submits, constitute a failure in law. Further, the Crown submitted that absent these errors, a trial judge might arrive at a different verdict, and, therefore, a new trial is required.

Summary of the Evidence

4The Crown’s factum included a concise summary of the evidence at trial. There were two witnesses, B.H. and Frances Dorian. Ms. Dorian was the only witness for the defence. In her factum, defence counsel acknowledged that the Crown accurately summarized the complainant’s evidence in examination-in-chief. However, she submitted that the Crown omitted references to B.H.’s evidence in cross-examination, and, therefore, the summary did not provide a complete picture of the evidence.

5B.H. testified that on the night in question, she was visiting the accused and Ms. Dorian, who is her maternal aunt. At the relevant time, the respondent was Ms. Dorian’s common-law partner. She testified that, on the evening of her visit, the respondent was in the room at the time she was putting on her nightgown and getting ready for bed. When she was about to put on her underwear, he told her not to do so to let her “privates” breathe. After changing, B.H. went to sleep on a mattress in the living room.

6At some point in the night, she woke up to the feeling of something that was wet and that hurt her vagina. She stated that she kept her eyes closed because she was scared. She also described hearing someone licking their fingers during the occurrence. She also testified, “Like some of his voice came out” B.H. explained that during the assault, she could feel fingers sticking into “the hole” of her vagina. She said that it was gross, and it hurt. She acknowledged that she could not see who was touching her while it occurred.

7After the assault stopped, she kept her eyes closed. However, when she heard the balcony door open and close, she opened her eyes, “after like two minutes.” She saw the respondent standing on the balcony of the apartment smoking a cigarette.

8When the respondent re-entered the apartment, he told B.H. that she was having a bad dream. He then lay beside her and tried to snuggle with her. At some point, the respondent got off the mattress and went to the balcony to smoke another cigarette.

9When he re-entered the apartment from the balcony, the respondent went to his own bed to sleep. B.H. eventually fell back to sleep, and nothing further transpired that night.

10The respondent argued that the complainant’s evidence at trial was inconsistent on several points. These included her address at the time of trial, when the offence occurred, and the length of the stay at the apartment on the weekend of incident.

11The respondent also noted that there were two aspects of B.H.’s evidence that were heard for the first time at trial. The first was B.H.’s testimony about the snuggling that occurred after the respondent re-entered the apartment. The second was B.H.’s evidence about the vaginal bleeding that, she testified, she noticed when she went to the washroom after the incident occurred.

12Ms. Dorian testified that she suffered from insomnia, and on the night of the alleged sexual assault, she did not sleep. She stated that she would have noticed if the respondent had gotten up and left the bedroom, but he did not. McKerlie J. rejected Ms. Dorian’s evidence. She found the evidence to be a scripted testimony that had no indicia of “credibility and reliability”. I would note that in considering the grounds of appeal, Ms. Dorian’s evidence is not relevant to my determination.

Trial Judge’s Decision

13The trial judge’s reasons began with a detailed review of the evidence. She identified that the issue in the trial was whether the Crown had discharged its onus of proving beyond a reasonable doubt all the essential elements of the two offences. She noted that the starting point of the analysis was a presumption of innocence and that the accused was entitled to the benefit of any doubt on any issue.

14In her reasons, McKerlie J. referred to the need to consider several factors in assessing the credibility and reliability of each witness. In particular she noted the lens through which the evidence of a child witness must be viewed. She referred to the Supreme Court of Canada’s direction in R. v. W.(R.)[R.W.], 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 and the Ontario Court of Appeal’s similar comments in R. v. K.S., 2017 ONCA 307.

15McKerlie J. observed that in cross-examination, B.H. was clear about what she remembered, and she described what occurred in a compelling manner. McKerlie J. stated, at p. 214 of the Reasons for Judgement, “She was a credible witness and her testimony in examination-in-chief was compelling.” However, she noted, at p. 215, that cross-examination raised issues respecting B.H.’s testimony, particularly as it related to the timing and sequence of events. She expressed concern with the extent to which B.H.’s testimony “shifted” with suggestions made by defence counsel. She found that B.H.’s testimony quickly adopted suggestions made to her in questioning. She also expressed concern with the extent of B.H.’s certainty in her testimony. B.H. would initially state she was sure when in fact she was not certain. She noted that B.H., more than once, testified that she was sure- about certain specifics- when she clearly was not.

16McKerlie J. expressed concerns about the extent to which the defence’s suggestions may have impacted B.H.’s recollection with respect to the specific allegations. The trial judge referred specifically to B.H.’s evidence about her observations of the respondent on the balcony after the incident.

17As well, at p. 216, the trial judge raised concerns that there were two, “[r]elatively significant details that emerged for the first time on the witness stand.” She was referencing the details related to the snuggling and the vaginal bleeding.

18In concluding her reasons, McKerlie J. stated, at p. 217, “In examination-in-chief, B.H. was a compelling witness. Cross-examination exposed an element of suggestibility and some fragilities in the reliability of her testimony. As the Ontario Court of Appeal emphasized in R. v. K.(S.), a verdict of guilt requires a solid foundation whether its evidentiary support resides in the testimony of a child or adult. That a child is the sole support for the Crown’s case does not lesson the standard of proof required to establish guilt.” She was not satisfied that the Crown’s case, considered as a whole, met the burden of proof. She was left with reasonable doubt, and, therefore, she found the respondent not guilty.

Position of the Crown

19With respect to the first issue raised, the Crown argued that the trial judge erred in her failure to consider all the evidence, particularly with respect to the evidence of the respondent’s identification. Counsel submitted that the trial judge failed to consider the cumulative effect of the testimony as it pertained to that issue. Only B.H.’s observations of the respondent on the balcony were considered and not other evidence, including B.H.’s testimony that, “Some of his voice came out” when the assailant was licking his fingers.

20Crown counsel also highlighted B.H.’s testimony describing the assailant’s fingers as skinny and rough and that B.H. testified the respondent had long and rough fingers. Further, the Crown also noted the evidence that the respondent was the only person seen on the balcony and the only adult male in the apartment.

21Further, the Crown argued that the trial judge did not consider B.H.’s evidence about the respondent’s comments asking B.H. to not wear her underwear before the incident and telling B.H. that she was having a bad dream after the incident. That evidence, the Crown submitted, was relevant and important.

22With respect to the second issue raised, Crown counsel submitted that the trial judge’s reasons did not include any analysis of what role the suggestibility played in B.H.’s testimony. Counsel conceded that B.H.’s testimony shifted during cross-examination but argued that the changes were related to peripheral, non-material facts. The Crown submitted that B.H.’s testimony relating to the identification of the respondent on the balcony, two minutes after the incident, was not impacted by suggestibility.

23Crown counsel proposed that an appellant court could not understand the basis for the trial judge’s decision, and, therefore, there could be no meaningful appellant review. In addition, the Crown also submitted that the failure in the trial judge’s reasons resulted in failing the need for public accountability. Specifically, B.H. and her family are left without a clear understanding as to how the trial judge’s stated concern -suggestibility- was related to the identification issue.

Position of the Respondent

24Regarding the first issue, the respondent argued that the Crown must show that the trial judge committed an error of law and that an appellant court will only interfere with the trial judge’s finding of fact, if a palpable and over-riding error has been made. The respondent argued here there is no such error.

25The respondent also submitted that appellant courts have consistently held that witnesses’ creditability and reliability is best assessed by the trial judge. Further, respondent argued that the trial judge provided a thorough factual summary. Her reasons referenced specific inconsistencies and changes in B.H.’s evidence. These are issues with which trial judges often have to grapple. Here the trial judge’s approach was fair.

26Regarding the second issue, counsel submitted that the trial judge’s reasons, when read as a whole, do not prevent an appellant review. The reasons for judgment must be viewed in the light of the record and must explain the reasons for the verdict by establishing a connection between the evidence and the law. In this matter, the trial judge found that inconsistencies between her examination in chief and cross-examination exposed issues relating to her reliability.

Analysis

27The powers of summary conviction appeal court are set out in Section 822(1) of the Criminal Code. This section incorporates, by reference, the powers of the Court of Appeal as set out in section 676 of the Criminal Code. As such, on an appeal against an acquittal, a summary conviction appeal court may allow the appeal on the grounds that:

a. It is erroneous in point of law;

b. It is an excess of jurisdiction; or

c. It constitutes a refusal or failure to exercise jurisdiction.

Here, the Crown argues that there were two errors of law. Firstly, the trial judge failed to consider evidence. In support of this position, Crown counsel referred to R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57. Secondly, the trial judge failed to provide sufficient reasons. In that regard, Crown counsel referred to R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

Failure to Consider Evidence

28Crown counsel referred to. B.(G.), at para. 31, in which, Wilson J. stated, “A question of law may also arise, it seems to me, when the trial judge misdirects himself or herself with respect to the relevant evidence”.

29Northeimer J.A., in R. v. Polanco, 2018 ONCA 444, at para. 20, summarized the jurisdiction of a summary conviction appeal: “The jurisdiction of a summary conviction appeal judge is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge is also not entitled to interfere with a trial judge's findings unless they are unreasonable or unsupported by the evidence: see R. v. O'Meara, 2012 ONCA 420, 284 C.C.C. (3d) 567, at para. 36.”: See also R. v. Smits, 2012 ONCA 524, at para. 67.

30An appellate court’s main principle of review in an appeal concerning the factual assessments of a trial court is summarized in R. v. Clarks, 2005 SCC 2, [2005] 1 S.C.R., at para. 9:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the trial evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm: (citations omitted)

31Stated concisely, an appellant court will only interfere with a trial judge’s finding of fact, if a palpable and over-riding error has been made. In R. v. Bradley, 2008 ONCA 179, at para. 8, the court noted, “Absent palpable and overriding error, deference must be shown to the findings of fact made at trial. In the assessment and credibility, trial judges occupy a ‘singular perch’”.

32In this matter, the trial judge offered, in my view, detailed reasons for her decision. She dismissed the defence’s evidence - Ms. Dorian’s - because of credibility issues. She also found that the Crown failed to provide a solid foundation to support a finding of guilt. The trial judge’s reasons must be considered in their totality. I find her reasons demonstrated a clear understanding of the issues and the facts related to the issues.

33The trial judge’s reasons also provided an effective and functional application of R. v. W. (D.) [D.W.], 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. She found B.H.’s evidence compelling during the examination-in-chief, but unreliable during examination-in-chief.

34In her or his decision, a trial judge is not required to review every piece of evidence. Here, McKerlie J.’s decision demonstrated a clear appreciation of the issues and the evidence on those issues. She was aware and concerned about the reliability of B.H.’s evidence, while considering her evidence in context of her age.

35In the end, McKerlie J. was not satisfied that the evidence of B.H. was sufficiently reliable to base a conviction. She provided specific reasons and references to the evidence, including references to inconsistencies between B.H.’s evidence in examination-in-chief and in cross-examination, and the addition of new evidence at trial.

36I conclude that the Crown has not established any failings in the trial judge’s consideration of the evidence that would constitute a palpable and overriding error. I see no reason to interfere with her findings on this issue. Therefore, the first ground of appeal is dismissed.

Sufficiency of Reasons

37A trial judge’s reasons must be sufficient to explain a conviction or an acquittal. The reasons for judgement must provide an explanation for their conclusions and must be sufficient for an appellant review: see Sheppard; and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3.

38Here, the Crown argued that the trial judge’s reasons lacked specifics on how suggestibility affected B.H.’s testimony and, ultimately, affected the trial judge’s conclusions. The Crown contended that the trial judge did not describe what suggestions were put to B.H. and who put them to B.H. Therefore, the Crown submitted that the lack of those specifics made the reasons insufficient.

39Respectfully, I disagree with this proposition. A trial judge is required to provide reasons that outline a path to a decision. I agree with defence counsel that, when read in context, the reasons show why the trial judge reached her conclusion. The trial judge’s reasons provided a thorough analysis of the evidence and indicated why she was concerned about B.H.’s reliability. McKerlie J. referenced inconsistencies in B.H.’s testimony, noted that B.H. was susceptible to suggestions and that she added relatively significant details on the witness stand.

40In R. v. Prokofiew, 2008 ONCA 585, the court found the reasons for conviction were not patent on the record. Borins J.A., at para. 30, stated, “[T]he facts on which she based the convictions are lacking. Because reasons for conviction were not patent on the record, I am unable to determine the analytical path she followed in convicting the appellants.” I find McKerlie J.’s decision, read as a whole, demonstrated the analytical path she followed in acquitting the accused. Simply stated, she found the evidence of B.H. insufficient for a finding of guilt., and she provided reasons for reaching that conclusion. The trial judge alone had the opportunity to see and hear the witness before making her determination on the issues of creditability and reliability.

41I find the trial judge’s reasons were sufficient in explaining the rationale for acquitting the accused, in providing public accountability, and in providing for an effective appellant review. Therefore, I conclude that the second ground for appeal, also, is also dismissed.

Conclusion

42Accordingly, the appeal is dismissed.