COURT FILE NO.: SCA(P) 278/20
DATE: 20201202
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
Daniel Galuzzo, for the Crown Respondent
Respondent
– and –
DENNINGTON DUNCAN
Appellant
Deryk Gravesande and Cecilia Fearon-Forbes, for the Appellant
HEARD: August 26, 2020
REASONS FOR JUDGMENT
[On appeal from the conviction entered on February 14, 2020 and the sentence imposed on April 29, 2020 by Mr. Justice Paul Renwick]
An order has been made pursuant to s. 486.4 of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or transmitted in any way.
J.M. Woollcombe J.
A. Introduction
[1] The appellant was charged with sexual assault, invitation to sexual touching and touching for a sexual purpose. The offences were alleged to have occurred between September 1, 2016 and September 30, 2017 in relation to the same complainant, H.S. The appellant’s trial took place over six days before Renwick J. in the Ontario Court of Justice in February 2020. In written reasons released on February 14, 2020, the trial judge found the appellant guilty of sexual assault and not guilty of the other two charges.
[2] Due to the onset of the global COVID-19 pandemic, with the consent of the parties, sentencing proceeded in writing. On April 26, 2020, in lengthy written reasons for sentence, the trial judge imposed a 9 month conditional sentence to be followed by a term of 15 months probation.
[3] The appellant appeals both conviction and sentence.
[4] In his factum, the appellant alleges that the trial judge made six errors respecting conviction. Four of these relate to his assessment of the complainant’s credibility. I shall deal with these as a group. In addition, he alleges that the trial judge improperly applied the principles in R. v. W.(D.) and erred in concluding that the facts as he found them amounted to a sexual assault. The sentence appeal is based on an allegation that the sentence was unfit having regard to the circumstances of the offence and offender and the principle of parity.
[5] For the reasons that follow, the appeal is dismissed.
B. The facts as found by the trial judge
[6] The appellant and complainant met when he was a caseworker at the Peel Children’s Centre and she was a 14 or 5 year old client for counselling. He was her caseworker over a period of three to six months, during which time they met three or four times.
[7] Between September 1, 2016 and September 30, 2017, the appellant was no longer the complainant’s caseworker, but they maintained an ongoing personal association. The appellant offered to take her to Canada’s Wonderland with his family members. While she agreed to go, Wonderland was closed. At her suggestion, they went instead to a local gaming arcade.
[8] At the arcade, that appellant sent the two younger children away because he wanted to speak to the complainant alone, something that was not unusual in their relationship. The appellant asked the complainant for a hug. He remained seated and opened his legs for her to come close enough to be hugged. He hugged her. The trial judge found that the appellant prolonged the interaction and that this had the effect of making the complainant more uncomfortable.
[9] Although the trial judge accepted that hugging was something that was often done when the complainant and appellant greeted each other, he found that this occasion “seemed different to the complainant”. It did not take place when they first met, but was initiated after the appellant commented to her that he did not get his “usual” hug. The trial judge not accept that the appellant intended to have her sit on his lap.
[10] While he found that the context of the hug was inappropriate, the trial judge concluded that it was not objectively sexual in nature. He was not satisfied that the appellant intended to assault the complainant or to violate her sexual integrity in any way. He was not satisfied that the appellant hugged her for a sexual purpose and found the appellant had not said or done anything to sexualize the hug. As a result, the appellant was acquitted of the count 2, the allegation of invitation to sexual touching.
[11] The other two offences were alleged to have occurred after they left the arcade and went to a car wash. The complainant testified that while they were outside waiting for the appellant’s truck, in response to her comment that she needed to gain some weight, the appellant told her that she was “sexy” and he put his hands around her waist.
[12] The trial judge accepted that the appellant told her she had a nice shape and that she was sexy. He also found as a fact that the appellant put his hands around her waist and held them there for 15-30 seconds.
[13] The trial judge concluded that the appellant’s words and actions sexualized an innocent discussion about her body image. He found that the appellant’s touching of her “was neither fleeting not trivial” and that it was “unwanted and undeserved”. He observed that the appellant used his hands to touch the complainant’s waist, a location one does not normally touch another person without permission. It lasted for an extended period of time. He concluded that the appellant violated the complainant’s sexual integrity. Accordingly, he found the appellant guilty of sexual assault (count 1).
[14] While he was satisfied beyond a reasonable doubt that the appellant intended to touch the complainant in a manner that sexualized the assault, the trial judge was left with a doubt as to whether the appellant intended to touch the complainant for a sexual purpose. As a result, he found the appellant not guilty of sexual interference (count 3).
C. Analysis
Whether the trial judge erred in his assessment of the complainant’s credibility
[15] This case required the trial judge to carefully assess the credibility and reliability of the complainant’s evidence. The appellant submits that the trial judge failed to do so properly and failed to address numerous inconsistencies in her evidence. It is also alleged that the trial judge improperly characterized inconsistencies as peripheral, rather than recognizing that they were material and needed resolution.
[16] There is no dispute that it is for the trial judge to make factual findings and findings of credibility. Credibility findings are accorded “very considerable deference” on appeal as long as the trial judge has explained how significant discrepancies that could undermine the witness’s credibility and reliability have been resolved: R. v. D.H., 2016 ONCA 569 at para. 34
[17] The law recognizes that one of the most effective means of assessing a witness’s credibility is to consider consistency between what the witness said when testifying and what that witness has said on other occasions: R. v. G.(M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 at para. 23; leave to appeal refused, [1994] S.C.C.A. 390. However, inconsistencies vary in their nature and importance. Some are about material issues and some are peripheral. A trial judge is not required to review and resolve every inconsistency in a witness’s evidence or to respond to every argument advanced by counsel. The trial judge should assess and explain how major inconsistencies of material witnesses have been resolved: R. v. A.M., [2014] O.J. No. 521 at paras. 13-14.
[18] When crafting reasons, trial judges have to decide which aspects of the evidence to include. As the Court of Appeal recently held in R. v. T.C., 2020 ONCA 469 at para. 24:
It is well established that it is within the discretion of a trial judge to determine what areas of the evidence should be included in his or her reasons: R. v. A. (A.), 2015 ONCA 558, 337 O.A.C. 20 (Ont. C.A.), at para. 120; Vuradin, at para. 17. A trial judge is also not obliged to reconcile every frailty in the evidence: see R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.), at paras. 55-56.
[19] In this trial, the complainant testified over three days and was cross-examined for about six hours. When considering her evidence, the trial judge noted that the cross-examination was extremely wide ranging in scope. It covered such areas as the circumstances surrounding the alleged incidents including how they got to the arcade, where they sat, who was in the area, where the games were, what the complainant communicated to her mother and when, what was communicated to the complainant’s aunt and when, what the children watched at the appellant’s home, how the complainant’s mother came to pick her up at the appellant’s home and other details surrounding the arcade and car wash incidents.
[20] He then held:
17 I find that the complainant was honest and credible. She did not overstate her recollections, she had a reasonable amount of detail in recounting the significant parts of her allegations, her testimony was consistent across her examination-in-chief and cross-examination, and she did not claim to remember every detail of her statement to the police, but the gaps or inconsistencies in her version of events (as between things she had told the police or others and her testimony) did not cause me to doubt her veracity respecting the substance of her allegations.
[21] The trial judge was clearly attuned to the appellant’s various submissions, many of which are repeated on this appeal. He set out in his judgment the 17 discrepancies, errors and omissions in the complainant’s evidence that the defence advanced as a basis not to find her evidence credible or reliable. He then specifically addressed those he found to be the most significant. The trial judge did not accept the defence position that these issues should cause him to reject the entirety of the complainant’s evidence. One of his reasons was that only three of the 17 areas related to the actual allegations, while the others related to matters that he found were peripheral to the allegations.
[22] The trial judge carefully addressed the three inconsistencies that related to the allegations and explained why each did not cause him to doubt the complainant’s testimony as to what had occurred.
[23] The first alleged inconsistency was that the complainant did not recall telling the police that before the hug at the arcade the appellant told her that she looked nice. In respect of this, the trial judge observed that the complainant never denied having said this to police, only that she did not recall saying it. He further found that she was able to provide many details about the incident and that the version of events she gave was “consistent, uncontradicted by other evidence, and plausible”. He found her not to have exaggerated the hugging incident or the way it made her feel. He concluded her explanation about this inconsistency “entirely credible”. In my view, it was well within the trial judge’s purview to draw the conclusion that he did about this evidence.
[24] The second alleged inconsistency was that while it was an agreed fact that the complainant never told the police that the appellant motioned with his hand for her to sit on his lap, she believed this is what she heard when her videotaped statement was played for her. The trial judge found the fact that the complainant believed herself to have said something on the video that no one else heard did not make her evidence about the incident at the arcade untrustworthy. Rather, as he explained, the fact that the transcript had the same error likely influenced the complainant’s memory. He concluded that her evidence on this point was “an artefact of the question she was asked in cross-examination and the error in the transcript” and did not cause him to doubt evidence about what happened at the arcade. Again, I see no error in the trial judge’s assessment of this issue.
[25] The third alleged inconsistency was that the complainant denied in her testimony that the appellant held her hand at the carwash although in her statement to police she had indicated that he asked her to hold his hand. The trial judge was not satisfied that this evidence actually impeached the complainant as the defence suggested. He explained that the complainant testified that the appellant had not held her hand at the car wash. In her statement, she had told police that he had asked to hold her hand, but she was silent as to whether or not he did so. On this basis, the trial judge was not persuaded that there was an inconsistency. I see no error in the trial judge reaching this conclusion.
[26] In my view, the trial judge addressed in a fair and reasonable way what he found to be the most important inconsistencies respecting material issues. He viewed the other inconsistencies as peripheral. The appellant submits that this was an error and submits that the trial judge should have found that inconsistencies in other aspects of the complainant’s evidence revealed her to be unreliable and incredible. He points to the details of a number of aspects of the complainant’s evidence that are said to be either internally inconsistent or inconsistent with the evidence of other witnesses. The appellant says that the trial judge erred in not addressing them more fully. I will address what I view to be the most significant arguments advanced by the appellant.
[27] First, the appellant refers to what he says are inconsistencies in the complainant’s evidence respecting trips that she took with the appellant to Tim Horton’s and hand-holding with the appellant. These trips pre-dated the alleged offences. The complainant testified that the appellant took her to Tim Hortons and would ask to hold her hand. Under cross-examination, when asked how many times he took her to Tim Hortons, she said “probably twice” and that they had gone to Quiznos once. When she was referred to her police statement, in which she said that the appellant took her to Tim Hortons “maybe four times”, she said that she recalled telling the police about going to Tim Hortons but “not the specific amount of times”. She agreed that she had not told police that he took her to Quiznos, which was right by the Tim Hortons. She also agreed that the appellant had held her hand when they went to Quiznos, and that her mother had been present and aware of it. She elaborated that her mother had asked her why the appellant had held her hand and that she had told her mother that she did not know, that he asked to and that it made her feel weird.
[28] The complainant’s mother’s testimony conflicted with the complainant’s in a number of respects. She testified in chief that she never saw the appellant holding hands with the complainant. Under cross-examination, she recalled going with the appellant and her daughter to Tim Hortons, and that she got a sandwich at Quiznos. She also testified that she had “no recollection” of the appellant holding her daughter’s hand or of asking her daughter about it.
[29] The trial judge referred to the fact of these inconsistencies when he listed the 17 defence concerns about the complainant’s evidence. While he did not specifically address it in his reasons, he did explain, in some detail, the reasons why the alleged inconsistencies, deficiencies and omissions were reasonable and were likely the product of her having a fading memory rather than an attempt to fabricate her evidence. He went on to set out the numerous reasons why he found the complainant credible. He also provided reasons why he found the complainant’s mother to have a limited recollection that was not worthy of belief.
[30] In my view, it was reasonable for the trial judge to find the complainant’s evidence credible and reliable despite the alleged inconsistencies surrounding the Tim Horton’s visit and for him to conclude that this evidence was really about a peripheral matter. In my view, when the alleged offences occurred on a single day, and took place at some point after the Tim Horton’s visits, it was both reasonable and understandable that the complainant’s recollection of such details as the number of trips she and the appellant took to Tim Hortons would have been poor. While she believed that she had discussed the hand-holding with her mother, and that her mother had seen it, her mother lacked the same recollection. Where their evidence diverged, the trial judge was clear that he preferred the complainant’s evidence over her mother’s as her mother had a poor memory of events. He was not required to set out every discrepancy between the complainant and her mother’s evidence.
[31] Second, the appellant suggests that the trial judge failed to reconcile the discrepancies in the complainant’s evidence about reaching out to her mother after the incident at the arcade. In her examination in which, the complainant said, “I just felt weird, and I texted my mom, and I told – I was trying to get a hold of her actually.” She was unequivocal that right after the hug in the arcade, she had texted her mother and asked to be picked up. She had also called, but her mother did not answer the phone.
[32] Under cross-examination, the complainant confirmed that she had texted her mother. She could not recall if she had called her, but did recall not being able to get hold of her. She was reminded of her police statement, in which she had said that she had texted her mother and asked her to get her, and that her mother was at work so she just asked her mum to get the appellant to drop her off at home. She agreed that she had told her mother to tell the appellant to drop her off.
[33] With respect, I do not see any significant internal inconsistency in the complainant’s evidence. She texted her mother asking to be picked up. She was not able to reach her mother. When her mother indicated she could not get her, the complainant asked her mother to get the appellant to drop her at home as she did not want to be with him any longer.
[34] The complainant’s mother also testified about communication from her daughter. During her examination in chief, she indicated that she messaged with her daughter throughout the day. Her recollection was that when they were back at the appellant’s home, the complainant sent her a message asking to be picked up. She said she was in a panic because she did not know why they were at the appellant’s home or why her daughter was uncomfortable. Under cross-examination, the complainant’s mother did not recall whether she got any message from her daughter while at the arcade.
[35] While the trial judge did not make a specific factual findings as to whether the complainant texted or called her mother from the arcade, or what was said, he concluded that the complainant’s mother had a poor recollection of events, that she often did not answer the questions she was asked and that where her evidence contradicted her daughter’s with respect to the timing of events, he preferred the complainant’s evidence.
[36] In my view, there was very little to reconcile between the complainant and her mother. After the alleged hug at the arcade, the complainant texted her mother, said she was uncomfortable and that she wanted to be picked up. Her mother was at work and not able to get her then. Ultimately she picked her up later on at the appellant’s home. Given the trial judge’s view that the complainant had a better recollection of the chronology and timing of events, it seems to me to be of little significance that the mother thought that the texts about her daughter’s discomfort came later on in the afternoon rather than, as the complainant testified, immediately after the hug.
[37] Third, the appellant submits that the trial judge was required to reconcile what is said to be contrary evidence between the complainant and her mother respecting an attempted foot rubbing of the complainant by the appellant and that the trial judge erred in characterizing this incident as peripheral.
[38] I see no reversible error in the trial judge’s conclusions about this issue.
[39] In her cross-examination, the complainant was asked whether she had ever told her mother that while she was at the appellant’s house on the day of the alleged offences, he tried to rub her feet. She said, “not that I can remember, no”, confirming that she had no recollection of him ever attempting to rub her feet and that she had never mentioned to police or to her aunt that he had asked for a foot rub.
[40] The complainant’s mother testified that after she picked her daughter up from the appellant’s home on the day of the alleged offences, her daughter told her that in the afternoon, she had her shoes off and that the appellant tried to rub her feet and that this made her uncomfortable.
[41] The record reflects an inconsistency between the complainant having no recollection of either a foot rub being attempted by the appellant or of telling her mother about it, and the mother recalling her daughter telling her about it.
[42] The trial judge did not ignore this inconsistency. He addressed it directly. He accepted that the complainant may have told her mother that the appellant tried to rub her feet while they were at his house, recognizing that this finding conflicted with the complainant’s evidence. He understood and appreciated the extent of the inconsistency.
[43] In reconciling the difference, I accept the defence position that the trial judge engaged in some speculation because he found that the attempted foot rubbing likely occurred before they went to the arcade. This seems to me somewhat speculative when the complainant’s mother testified that her daughter said it happened in the afternoon, which would have been after the arcade. The trial judge went on, however, to draw what I think was a reasonable conclusion about the incident. Given that it was an attempted foot rub, he reasoned that it was “fleeting and insignificant” and that while the complainant may have told her mother about it, in light of what else had happened to her that day at the arcade and the car wash, this part of her day may have left her memory.
[44] I think it was open to the trial judge to accept that the complainant said something to her mother about this and then forgot about it. Nothing really turns whether the foot rub was attempted or whether the complainant told her mother about it. The complainant’s evidence was quite equivocal, with her saying that she did not recall the attempted foot rub or recall telling her mother about it. She never denied it could have happened. I find a fair reading of the evidence does not leave a significant unresolved conflict and that the trial judge’s overall approach to this issue, aside from speculating that it occurred in the morning, was reasonable.
[45] Fourth, the appellant asserts that the trial judge failed to appropriately assess alleged inconsistencies respecting the complainant’s disclosure, both internal inconsistencies and inconsistencies with her mother.
[46] The complainant testified in chief that she had not told her mother what had happened right away and did not disclose to her until September 2018. At that time, she said that she felt annoyed and stressed and found herself thinking about what happened a lot so decided to tell her mother, having already reported to a child/youth worker (“CYW”).
[47] It was suggested to the complainant under cross-examination that her disclosure to her mother, after telling the CYW about what happened, was the first time she told her mother about what had occurred. She denied this and explained that when she first told her mother, she had not given her details. After she reported to the CYW, she gave her mother details. She was then asked about her statement in which she told police that when she told her mother what had happened, her mother did not believe her. Her evidence was that she agreed that she told the police this, but that when she testified, she did not recall that her mother had not initially believed her.
[48] Under further cross-examination, the complainant agreed that when she made allegations about the appellant to her mother (before the later disclosure made after speaking to the CYW), she had asked her mother not to say anything. She could not recall what she had told her mother.
[49] The complainant’s mother testified that she was initially told something happened when she picked her daughter up after the day at the arcade, but that she did not receive details until later. She said that she never would have told her daughter that she did not believe her.
[50] I see no significant inconsistency between the evidence of the complainant and her mother as to what the complainant disclosed to her mother and when. I accept that there is an inconsistency in their evidence respecting how the complainant’s mother reacted. However, the trial judge was careful to indicate that where the evidence of the complainant and her mother diverged, he preferred the evidence of her complainant and to justify why this was. As I have already indicated, given the mother’s lack of recall, it was open to the trial judge to find her unreliable and to prefer the complainant’s evidence. Given this finding, there was no need for the trial judge to further resolve the inconsistency respecting the mother’s reaction to the disclosure.
[51] Fifth, the appellant submits that the trial judge was required to assess and reconcile what he says was an inconsistency in the complainant’s evidence respecting whether and when the appellant told her she was “sexy”.
[52] During her examination in chief, the complainant testified that the appellant would make remarks that made her uncomfortable and that in addition to holding her hand and hugging her, he would tell her “all the time” that she was good looking and that guys should be after her and that she was “sexy”. She further testified that at the car wash, the appellant made a remark about her being sexy in the context of telling her that she was slim and putting his hands around her waist.
[53] Under cross-examination, the complainant was asked how many times the appellant had told her she was sexy and responded that “the one I distinctly remember was at the car wash”. She was then reminded of her police statement in which she had said that the appellant had called her “sexy” previously and that she thought it had been “sometime in the summer”. She said that at the time of her statement, she had probably forgotten that he told her she was sexy at the car wash.
[54] The trial judge did not address this alleged inconsistency in his judgment. The only reference he made of the appellant calling the complainant sexy was a factual finding that he had done so at the car wash.
[55] Read as a whole, the complainant’s evidence was that while the appellant had referred to her as “sexy” before the car wash incident, the only specific time she remembered him making the comment was at the car wash. I do not see this as a significant inconsistency that required an analysis by the trial judge. Whether and how many times the appellant had used the word “sexy” to describe the complainant prior to the car wash incident was, in my view, not particularly probative of her credibility generally or her evidence as to what happened at the car wash. I see no error in the trial judge not addressing what can only be viewed as a minor and insignificant detail in the complainant’s evidence.
[56] Sixth, the appellant submits that the trial judge was required to provide further analysis as to why the aunt’s evidence, which he held was credible, was not of assistance in assessing the complainant’s credibility. The appellant points out that there were areas in which the complainant’s evidence was inconsistent with her aunt’s.
[57] As the trial judge found, the aunt’s evidence was “limited to second-hand knowledge from her niece”. It followed, he found, that her testimony “did not assist me to determine the credibility or reliability of the complainant on the material parts of her testimony” and so decided not to give her evidence much weight.
[58] I see no error in the trial judge’s determination that because the aunt did not give evidence on the material issues, her evidence, including the inconsistencies between it and the complainant’s evidence, was not something to which he attached much weight. That is not to say that he did not consider it. He made very clear, repeatedly, that he had considered all of the evidence. He also understood, as expressed in his reasons, that there were gaps and inconsistencies in the complainant’s evidence as between what she told the police and others and her testimony, including her aunt. Ultimately, however, he was of the view that those inconsistencies about non-material aspects of the complainant’s evidence were as a result of her memory fading, and not because she was trying to be deceitful. Given the nature of the inconsistencies identified by the appellant as between the aunt and the complainant, this finding was well within the discretion of the trial judge to make.
[59] Seventh, the appellant submits that the trial judge failed to resolve an inconsistency in the complainant’s evidence respecting whether, after the day of the alleged offences, the appellant offered to pay for her to have her nails done and suggested that he could be her “sugar daddy”.
[60] The complainant was asked whether the appellant had ever paid for her to have her nails done and testified that he had done so for her fifteenth birthday. She was then referred to her police statement in which she had said that in a WhatsApp conversation, the appellant had offered to pay for her nails for her birthday and had told her that she could call him her “sugar daddy”. To police, the complainant said that she had been upset by this and refused to have him pay for her nails.
[61] A fair reading of the complainant’s evidence reveals an internal contradiction as to whether or not the appellant paid for her nails for her fifteenth birthday.
[62] The trial judge did not address this inconsistency in his reasons. I see no error in him choosing not to resolve it. This issue was a long way removed from the allegations. I think it was open to the trial judge to find this inconsistency, which he set out as one of the 17 identified by the appellant, was truly peripheral and of little assistance in determining whether her allegations were proven. As I have already stated, the law is clear that a trial judge has considerable discretion in determining what evidence to refer to and is not required to resolve every minor inconsistency in a witness’s evidence. On this record, a conclusion that this was a minor and insignificant conflict was reasonable.
[63] Finally, the appellant submits that the trial judge’s overall assessment of the complainant’s credibility was flawed because he did not apply the governing legal principles and instead made “conclusory determinations”. It is also alleged that he placed excessive weight on her demeanour. I disagree.
[64] In addition to dealing with specific defence concerns I have identified, the trial judge said the following about the complainant’s evidence:
25 I have considered all of the Defendant's submissions about the deficiencies in the complainant's testimony. I paid particular attention to the complainant while she testified. Indeed, in several cases, I corrected the cross-examiner when the question did not fairly re-iterate the evidence she gave. I find that the alleged inconsistencies, deficiencies, omissions, and variations in the complainant's version of events were reasonable, the likely product of fading or changing memory, and honestly held rather than attempts to colour the evidence in a particular way or to achieve a particular result.
26 The complainant testified at all times in a reasonable way with appropriate pauses for reflection and care in responding to a difficult and lengthy cross-examination. That is not to suggest that the complainant was a perfect witness. She was not. However, perfection while testifying is neither expected nor realistic. If anything, there were times when the complainant appeared to have testimonial fatigue.
27 For example, on one occasion the complainant put her head down on the top of the witness box. At another point, the complainant asked for a recess but could not give a reason why she wanted one beyond reciting that she had been told that she could ask. When I denied the request, she said she could not answer the next question. I sensed her frustration with the cross-examination and permitted a short recess. Upon her return, she was able to answer the questions put to her in an apparently meaningful way.
28 The complainant testified in a simple, frank, and unadorned manner that appeared truthful. She demonstrated patience and restraint during her cross-examination and there was a level of balance to her evidence. For example, the complainant readily agreed in cross-examination that the Defendant had offered support to her and her mother in his professional capacity. And although the complainant did not recall the Defendant's follow-up telephone calls to check-in on her, I did not take her evidence to suggest that he did not show genuine concern for her well-being at all times.
29 Lastly, the cross-examination revealed an aspect of the complainant's character that supports her account. The complainant appears to be a passive person who does not respond overtly when she is confronted, challenged, or made to feel uncomfortable.
30 While coming to this conclusion I have cautioned myself that people are not always as they appear. I do not personally know the complainant or how she reacts to stressors outside of the courtroom. However, I observed her presentation over an extended period of time (more than two full-days), under trying circumstances. She did not raise her voice or appear argumentative with defence counsel, although she was observably tired and likely frustrated at various points. The complainant did ask the court why counsel for the Defendant spoke the way he did. However, I cannot say that the question was completely impertinent or irreverent given the florid manner of her cross-examination.
[65] In my view, the trial judge recognized the importance of a careful, balanced assessment of the complainant’s evidence. His lengthy analysis of the complainant’s credibility demonstrates the attention he gave to this critical issue. He identified both the positive aspects of the complainant’s evidence and that there were frailties. He acknowledged the areas of concern in the complainant’s testimony and specifically addressed the aspects of the evidence that he found were the most troubling, explaining why he had reached the conclusions that he did. While he recognized that demeanour evidence was relevant, he appropriately considered it, mindful of the fact that it was only one of many factors that could be considered in his credibility assessment.
[66] The law does not require trial judge to resolve every issue raised at trial as long as the most important and significant inconsistencies and difficulties are addressed and resolved. There were many, many arguments advanced by the appellant as to why the complainant’s evidence should not be accepted. In my view, the trial judge’s reasons demonstrate that he considered the evidence as a whole, that he carefully and reasonably analysed the complainant’s evidence and that he made fair credibility and factual findings.
[67] The grounds of appeal relating to the trial judge’s assessment of the complainant’s credibility are dismissed.
Whether the trial judge mis-applied to principles in R. v. W.(D.)
[68] The appellant submits that the trial judge’s misplaced reliance on the principles in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26 led him not to improperly assess the exculpatory evidence.
[69] The trial judge summarized the principles in W.(D.) as they were set by Paciocco J.A. in, “Doubt about Doubt: Coping with W.(D.) and Credibility Assessment”, 22 Canadian Criminal Law Review 31. The trial judge’s assessment of the case was guided by this framework.
[70] In my opinion, the trial judge’s reference to these legal principles reinforces that he applied concept of reasonable doubt correctly. There is nothing in the judgement to suggest otherwise. I see no basis upon which to accept the appellant’s argument that the trial judge’s allegedly improper reliance on this case somehow to a failure to properly address the discrepancies in the complainant’s evidence. In my view, the trial judge understood the Crown’s obligation to prove its case beyond a reasonable doubt and properly applied the burden and standard of proof to the facts as he found them.
[71] This ground of appeal must be dismissed.
Whether the trial judge erred in finding that the appellant’s conduct was of a sexual nature
[72] The appellant submits that the trial judge fell into legal error in concluding that the incident at the car wash, on the facts as he found them, amounted to a sexual assault.
[73] The relationship between the appellant and complainant was one of an adult with a 14 or 15 year old child he had previously counselled. The trial judge found as a fact that the complainant spoke to the appellant about her body and desire to gain weight. He told her that her body had a nice shape and that she was sexy. He put his hands around her waist and held them there for 15-30 seconds.
[74] As the Court of Appeal summarized in R. v. B.J.T., 2019 ONCA 694 at para. 55 :
To determine whether what occurred amounted to a sexual assault, the issue for the court is to decide: "viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?" The circumstances to be considered include "[t]he part of the body touched, the nature of the contact, the situation in which it occurred, [and] the words and gestures accompanying the act..." See Chase at p. 302. For sexual assault, a sexual purpose or motive is not required, but its presence or absence can be a factor in considering whether the conduct was sexual: see also R. v. Marshall, 2017 ONCA 801 (Ont. C.A.), at para. 53.
[75] The trial judge set out the legal principles explained by the Supreme Court of Canada in R. v. Chase, 1987 CanLII 23 (SCC), [1987] S.C.J. No. 57. He applied those principles to the incidents at both the arcade and the car wash.
[76] The appellant submits that the trial judge omitted to address some of the context, including that there were others around, failed to mention that there was an inconsistency in the complainant’s evidence respecting whether the appellant told her she had a “nice shape” or a “nice body” and that, viewed objectively, the conduct of the appellant “would appear to be a spontaneous reaction” to the complainant and was “devoid of sexual context”.
[77] I do not agree.
[78] The trial judge found that the appellant’s words and actions “sexualized” an innocent discussion about the complainant’s body. He found the touching of her was not fleeting or trivial and that it was “completely unwanted and undeserved”. He found that when the appellant placed his hands on the complainant’s waist, a body part one would not normally touch without permission and that his “intentional activity had the effect of violating the complainant’s sexual integrity”. He was satisfied beyond a reasonable doubt that the appellant intended to touch the complainant in a manner that sexualized this assault.
[79] I see no error in the trial judge’s legal analysis or conclusion. In terms of context, what was important was that as a former professional counsellor, the appellant stood in a position of trust towards the child complainant. He had hugged her in a manner that the trial judge found inappropriate earlier in the day. He then commented on her body being sexy and put both of his hands on her waist for 15 to 30 seconds. Viewed objectively and in all of the relevant circumstances and facts as the trial judge found them, he made no error in concluding that a sexual assault had been proven beyond a reasonable doubt.
[80] This ground of appeal is dismissed.
Whether there is any basis to vary the sentence imposed by the trial judge
[81] The appellant submits that the sentence imposed was unfit and that an absolute discharge should be granted.
[82] Before the trial judge, the Crown sought a sentence of 90 days plus three years of probation. The defence position was that an absolute discharge should be granted, followed by a 12 month peace bond.
[83] On April 29, 2020, in the midst of the first wave of the COVID-19 pandemic in Canada, the trial judge provided careful, lengthy written reasons. He concluded that but for the global pandemic, he would have imposed a sentence of 45 days incarceration plus probation. However, in light of the enhanced risks of infection in an institutional setting, and recognizing the appellant’s prior good character, he instead imposed a nine month conditional sentence (with house arrest for six months with an exception for work, medical appointments, worship and anything else approved by his conditional sentence supervisor), followed by 15 months of probation.
[84] In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada affirmed at para. 26 the limited authority of an appeal court on a sentence appeal:
As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.
[85] The trial judge considered and rejected the appellant’s request for a discharge. I see no error in principle in the trial judge’s rejection of a discharge and imposition of a nine month conditional sentence.
[86] The trial judge’s reasons reveal that he understood and properly applied the guiding sentencing principles contained in ss. 718 and 718.1 of the Criminal Code. He set out in detail the very recent analysis of the Supreme Court of Canada in R. v. Friesen respecting the harms caused by sexual assault on children and the need for sentences to reflect the consequences of this sort of conduct. The trial judge summarized in a balanced way the aggravating and mitigating circumstances before him. His general approach is not challenged on appeal.
[87] The trial judge considered and rejected the appellant’s submission that a discharge should be imposed.
[88] Section 730 of the Criminal Code provides:
Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
[89] While recognizing that a discharge would be in the appellant’s best interest, the trial judge found that a discharge was not in the public interest. He reasoned that a discharge would neither denounce the appellant’s conduct nor would it deter others from engaging in similar conduct. Indeed, he stated that even a conditional discharge and probation “would fail to send the message recently reiterated by the Supreme Court of Canada that the sexual assault of minors by persons in positions of trust is an egregious violation of community norms, parental confidence, and a child’s autonomy and bodily integrity”. I agree.
[90] While the appellant provided to both the trial judge and to me as appeal judge a number of cases in which discharges have been granted in sexual assault cases, I do not see any of them as being similar in terms of the circumstances of the offence and offender. In my view, the trial judge made no error in concluding that a discharge was not an appropriate disposition in all of the circumstances.
[91] After considering all of the appropriate factors, the trial judge concluded that the appellant had “high moral culpability” and that there was a need for specific and general deterrence. He found that a short sharp period of incarceration was the appropriate sentence. I am not persuaded that the nine month conditional sentence was, in all of the circumstances, unfit or outside the appropriate range. I think it gave effect to the aggravating and mitigating circumstances and was within the appropriate range. There is no basis for appellate intervention.
D. Conclusion
[92] For the reasons I have set out, the appeal is dismissed.
J.M. Woollcombe J.
Released: December 2, 2020
COURT FILE NO.: SCA(P) 278/20
DATE: 20201202
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
DENNINGTON DUNCAN
Appellant
REASONS FOR JUDGMENT
[On appeal from the conviction entered on February 14, 2020 and the sentence imposed on April 29, 2020 by Mr. Justice Paul Renwick]
Woollcombe J.
Released: December 2, 2020