COURT FILE NO.: CR-19-59
DATE: 20210329
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Hugo Ramiro-Sandoval
Appellant
Arish Khoorshed, for the Respondent/Crown
Marianne Salih, for the Appellant
HEARD: May 28, 2020
REASONS FOR JUDGMENT
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant or witness may not be published, broadcasted or transmitted in any manner.
Chozik j.
A. Overview:
[1] On December 17, 2018 the Appellant was convicted by S.D. Brown J. of the Ontario Court of Justice sitting in Burlington, Ontario of sexually assaulting K.D. contrary to section 271 of the Criminal Code, R.S.C. 1985, c. C-46. The Appellant was an unlicensed practitioner of Traditional Chinese Medicine (“TCM”). K.D. saw him for treatments at his clinic.
[2] K.D. alleged that on May 16, 2017 the Appellant sexually assaulted her during a massage treatment by fondling her breasts, nipples and vagina under her clothing. The Appellant testified and denied touching K.D. in that manner. He testified that he only massaged K.D.’s neck and feet that day, leaving no possibility of any type of accidental or misperceived touching of the vagina or nipples.
[3] In his Reasons for Judgment dated December 17, 2018, the trial judge assessed the credibility of the witnesses. He accepted K.D.’s evidence of the sexual assault, rejected the Appellant’s evidence, and entered a conviction.
[4] The Appellant now appeals from that conviction. He advances two grounds of appeal. First, he argues that the trial judge critically misapprehended the evidence as to the “evolution” of his relationship with K.D. and thus reached a conclusion that is unsupported by the evidence. Second, he argues that the trial judge’s scrutiny of the evidence was uneven: the trial judge applied a more exacting standard to his evidence as compared to that of the complainant.
[5] For the reasons that follow, I would not give effect to these grounds of appeal.
B. Background:
[6] The sole issue at trial was whether the sexual assault happened. The complainant, K.D. (36) had been seeing the Appellant (43) professionally for about two and a half years at the time of the offence. The Appellant had been a TCM practitioner since 1999. He was also trained in Gestalt therapy, a western psychotherapeutic form of talk therapy. Between 1999 and 2014, he estimated that he had completed approximately 40,000 treatments. He had no prior criminal record.
[7] K.D. had a long history of involvement with TCM and had seen three different practitioners prior to seeing the Appellant. When she first started seeing the Appellant in 2015, she had moved just from British Columbia to Ontario. He had been recommended to K.D. by her family.
[8] The Appellant had been treating K.D.’s mother for about six years. He also treated K.D.’s father (a medical doctor) and sister, S.J. After she began seeing him in 2015, K.D. arranged for the Appellant to treat her husband, M.D., and her two young children on occasion.
[9] The Appellant treated K.D. for an array of emotional, psychological and physical issues using talk therapy, herbs, heat lamps, acupuncture and massage. A common massage technique involved using pressure points. K.D. usually saw him about once per week, for an hour, but sometimes there were breaks in the treatment when she did not see him for longer stretches. She frequently consulted him by email, text or telephone for emotional, spiritual and medical issues. K.D. considered the Appellant to be her primary health care provider. She also viewed him as her spiritual teacher.
[10] Four witnesses testified at the trial: K.D., her sister S.J. and her husband M.D. testified for the Crown. The Appellant took the stand in his own defence. In addition, the Crown introduced text messages between K.D. and the Appellant from April 27 to May 28, 2017. The Appellant produced text messages between them from June 22, 2016 to May 2, 2017. Thus, the trial judge had before him an entire year of text communications between the parties. The text messages became critical to the trial judge’s assessment of credibility.
The Complainant’s Evidence of the Sexual Assault:
[11] K.D. testified that on May 16, 2017 she attended at the Appellant’s practice as usual. Typically, they would start by talking. She told him about spiritual “epiphanies” – realizations about life and healing - she was having. This too was typical.
[12] K.D. then got on the table, as she usually did. The Appellant sat on a “wheelie stool” behind her head and massaged her neck. According to K.D., the Appellant then took both of his hands out from behind her neck and put them on top of her shirt. He then put his hands under her shirt and started massaging her breasts. He had massaged her breasts before, but this time he actually went on both of her nipples with his hands and massaged her nipples and breasts. This stuck out for K.D. because he had never done this before.
[13] K.D. testified that the Appellant was then beside her, on the wheelie chair, and put his hands down her pants on her vagina, instead of just her groin or pubic area. This also struck her, again, because he had not done that before. He then repeated this cycle three or four times: he massaged her neck area, then her breasts and nipples with both his hands, and then her vagina again. He focused on each area each time for about twenty seconds.
[14] K.D. testified that she lay on the table, with her eyes closed. She felt shocked, but also tried to reassure herself that because he was a doctor, what he was doing was for healing purposes.
[15] K.D. estimated that the massage lasted about 45 minutes. At trial, she could not recall specifically any other parts of her body that the Appellant worked on. She could not recall specifically what she was wearing and did not recall him moving or removing any of her clothing. She presumed that he put his hands under her clothing.
[16] According to K.D., the Appellant did not say anything before he touched her breasts, nipples and vagina. He did not ask for her permission to do so. He did not say anything at the end of the session.
[17] K.D. testified that after the assault she was confused and shocked. She did not tell her husband what happened right away, but she did text a friend that evening and told her what happened. She also told three of her girlfriends about it later in the week, and showed them some texts that she had exchanged with the Appellant. She told her husband, M.D., about the sexual assault about a week and a half later and showed him text messages she had exchanged with the Appellant. M.D. testified that he telephoned the Appellant and confronted him.
[18] K.D. texted the Appellant immediately after the sexual assault from the parking lot. In this text, K.D. said:
Hi Hugo. I just wanted to say thank you for today. That was a beyond words treatment. And thank you for everything you have done for me so far ☺ [emphasis added]
[19] The Appellant did not reply to this text.
[20] Later, before showing her husband their text messages, K.D. deleted this text. It was not produced by the Crown, presumably because it was not part of the chain K.D. disclosed to the Crown. This text was adduced into evidence at the trial by the defence.
[21] K.D. also sent the Appellant an email later that day, after the sexual assault. In this email, K.D. told the Appellant that she felt confused, and “very excited” at his office. She told the Appellant that she was worried about her daughter and feeling anxious. She told him about a dream she had in which she felt panicked. K.D. ended the email by thanking the Appellant for listening. The Appellant responded to her email by assuring her that there was nothing wrong or maladaptive about her daughter. K.D. thanked him for his advice.
[22] After this, K.D. booked and cancelled a series of appointments with the Appellant.
[23] On Friday, May 26, K.D. sent a crucial text to the Appellant. The text reads as follows:
Hugo…
I was going to try and talk to you about this in person but feel like I need try [to get] this off my chest.
I am confused about how you have touched me in your practice. It is very intimate. I am not sure if I am comfortable with it. And I can’t tell if it is completely pure with the intention of healing.
Forgive me if it is and this is totally wrong.
I just can’t tell if something is going on or if this is just part of your practice that you have with all clients.
I am sorry to text you this but I feel like I am in my head about it and have to express myself however I can. Writing seems to be the only possible way right now.
Thank you for hearing me and I fully apologize if this is all part of the Hun Yuan style of healing. I am not sure I am comfortable with it but I’m sorry to ask you about the underlying things if it is just this style of healing.
The Appellant responded by text, saying “No problem” and “I am fully open to what you want to express to me” and “I’m available starting at three today, and I’m very excited because this is a conversation I’ve been looking forward to.” She then texted him and asked “…what have you been excited to talk about? What conversation?”. He replies to that text saying: “Yes”. Several other texts follow.
The “Liver” Text:
[24] On May 28, 2017, K.D. sent the Appellant a text that said the following:
Hi Hugo. What was that point on my labia that you touched in TCM? And my nipples? I’m just talking to my TCM friends and one teacher at the college and would like to use the professional name.
Thirteen minutes later, at 12:22 pm, the Appellant replied: “Hi K[…], do you have a few minutes now?” K.D. texted back: “You can just text if possible. I’m putting [son] to sleep.” At 12:28 pm, the Appellant replied: “Ok. Liver, I’ll send more details in a bit, battery.” K.D. replied: “Even coordinates. Liver point on labia and nipples? I will try that. They will understand I’m sure.”
The Appellant then sent K.D. the following four texts between 12:41 and 13:37:
12:41: This relationship is extremely valuable to me, and like I said the other day, I am here for everything you need to say to me. I have total trust in you.
13:35: I have battery now.
13:37: You have been an amazing influence to me and you have opened my heart in so many ways
13:37: I’m realising now that I haven’t been there, especially the last three weeks. I really messed up those phone calls I meant to make two weeks ago.
K.D. did not respond to these texts.
[25] Sometime later, K.D. told her family about what had happened. Her family encouraged her to report the sexual assault to the police.
Evidence of the Appellant:
[26] The Appellant testified at the trial. He denied touching K.D.’s breasts or vagina. He testified that in the winter leading up to the date of the sexual assault, K.D. had experienced acute mental health concerns. In January, for example, she texted him that she was “on the brink of a nervous breakdown!!!!”. He testified about other communications by text and email he had had with K.D. His evidence was that he provided her with a lot of therapy and spiritual guidance. There was more than one occasion when K.D. said strange things to him. She expressed anxieties and sometimes her expressions could be “volatile and confusing” and “out of left field”. His response was a standard therapeutic line: “I am fully open to what you want to express to me”.
[27] With respect to the critical exchange of messages on May 28, the Appellant testified that he was in disbelief when he read her first message. He felt like he was watching something explode in front of him. He wanted to deal with it in a phone call, but his battery was dying. He was in public running errands. The last message contained a typo: he meant to type “Later”, not “Liver”. He did not notice the typo. When K.D. responded, he was even more confused. The Appellant testified that the next several messages he sent were intended to express that his relationship with K.D. was extremely valuable to him. He explained that he had invested a lot into helping K.D. and he wanted to remind her that he was there to listen to anything she needed to express. Once his phone was charged, he telephoned K.D. and left a message for her in which he stated that he had not done a good job at expressing how valuable she is to him, and apologized for not getting her an appointment.
Reasons for Judgment:
[28] In the Reasons for Judgment, the trial judge summarized the evidence at length. He identified credibility as the central issue in the case and approached the evidence in accordance with R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 and R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. He found K.D. generally to be a credible and reliable witness. Brown J. considered the various shortcomings of her evidence, and the explanations for it. Brown J. found the text messages between the parties to be compelling evidence.
[29] Brown J. rejected the Appellant’s explanation that in the May 28 text “Liver” was a typo. He concluded that when K.D. sent the text message asking for coordinates of the liver point on the labia and nipples and said that her friends and teacher will understand, the Appellant concluded that he would be found out that there was no medically necessary reason to have touched K.D. on those areas to rectify a liver problem. Brown J. found that the remaining messages and the voice mail the Appellant left K.D. were “pleading and desperate” and that “[b]ecause of these messages and his reaction to them”, he could not find the Appellant credible or reliable (Reasons for Judgment, at paras. 215-217).
C. Analysis:
Issue One: Did the Trial Judge Misapprehend the Text Message Communications between the Parties?
[30] The Appellant argues that the trial judge critically misapprehended the evidence when he concluded that the text messages between the parties established an “evolution” of the Appellant’s relationship to the complainant from a professional to a personal one. The Appellant submits that the text messages, when taken in their full context, are simply incapable of supporting this inference. The Appellant further argues that this misapprehension of the evidence was critical to the trial judge’s reasoning process. It led the trial judge to reject the Appellant’s evidence.
[31] On appeal, the standard of review of the factual findings of a trier of fact is very limited. Factual findings, including the assessment of credibility and reliability of witnesses, are entitled to substantial deference. These findings are not to be interfered with on appeal unless there is a demonstrable error in principle or those findings are unavailable on the evidence: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37.
[32] Where it is alleged that the trial judge erred in the appreciation of the evidence or in drawing conclusions from that evidence, an appellate court must consider the nature of the error, the effect of the error on the verdict and the effect of the error on the reasoning process by which the verdict was reached: R. v. Wolynec, 2015 ONCA 656, 339 O.A.C. 237, at paras. 88-89.
[33] The 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”, and it must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in conviction”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at para. 93 (C.A.). Only where the misapprehension of the evidence figures prominently or plays a central part in the trial judge’s reasoning process may appellate intervention be warranted.
[34] Applying these principles, I would not give effect to this ground of appeal in this case for two reasons.
[35] First, there was some support for the finding by the trial judge that there had been an “evolution of communications” between the Appellant and the complainant.
[36] Second, the “evolution of communications” observation by the trial judge was only one factor that led him to conclude that the text messages were compelling evidence that undermined the Appellant’s credibility and reliability. This finding, that there had been an “evolution of communication”, was not critical to the trial judge’s conclusions on credibility.
Was the Inference Available?
[37] The trial judge found the text messages compelling generally (Reasons for Judgment, at para. 207). Only one of the compelling features of this evidence was the “evolution of communications” (Reasons, at para. 208). The trial judge cited several examples of what he viewed as a ‘personal’ aspect to the texts sent by the Appellant.
[38] The trial judge found that at first, the texting and emails between the Appellant and K.D. were professional and dealt with scheduling changes and complaints about health issues. The trial judge concluded that a “review of text messages from the timeframe around the May 16th appointment show a change in how [the Appellant] interacted with [K.D.].”
[39] In particular, the trial judge found that the following texts showed this “evolution”:
In an April 28, 2017 text, almost three weeks before the sexual assault, the complainant messaged the Appellant to say, “you are one special human and I am so thankful for you [heart emoji],” to which the Appellant replied, “Thank you Kelly… I always look forward to our contact, and I know we can do much more” (emphasis added);
On May 16, 2017, the complainant messaged the Appellant, again before the sexual assault, to suggest that she move up her appointment so she can stay longer. The Appellant responded, “I love that idea” (emphasis added);
On May 23, 2017, after the complainant cancelled an appointment, the Appellant messaged: “Thanks for the heads up! That’s too bad, I was looking forward to seeing you” (emphasis added).
The trial judge found that these personal sentiments were “absent” from previous texts or emails and was not the way the Appellant usually texted or emailed K.D.
[40] The Appellant argues that the trial judge’s findings are unsupported by the evidence: there were other instances of such pleasantries peppered throughout the Appellant’s text and email communications.
[41] Having reviewed the excerpts relied on by the Appellant, I agree that there are instances in addition to those cited by the trial judge that reveal an informal style of communication much earlier in the relationship between the parties. The Appellant can be seen reaching out to K.D. to see how she is more than once. In a text message dated November 1, 2016 the Appellant concluded an exchange stating, “Will look forward to seeing you next time!” (emphasis added). In a text message dated March 2, 2017, the Appellant responded to K.D.’s message expressing that they may be able to “connect” saying, “No problem, I’ll try you again, I’d love to connect” (emphasis added). In text messages on November 1, 19 and December 15, 2016 the Appellant expressed that he looks forward to seeing K.D.
[42] However, it was ultimately for the trial judge to determine what to make of the tone and content of the text messages in the context of the other evidence he heard. These few additional examples of informality, extracted from a year’s worth of text messages, do not in my view negate the trial judge’s finding that there was an “evolution of communications”. I cannot conclude that the inference that the communications between the Appellant and K.D. evolved from professional to more personal over the course of that year was not legally available or was otherwise unsupported by the evidence.
Was the Inference/Misapprehension Critical to the Reasoning Process?
[43] Even if the trial judge’s finding that there was an “evolution of communications” is misplaced, I am of the view that any misapprehension of the evidence in this regard was not so significant in his reasoning process that it rendered the trial unfair or the conviction unsafe.
[44] It was not particularly contentious that the Appellant’s relationship evolved with the complainant over time to include a more personal aspect. All other evidence supported the conclusion that the relationship between K.D. and the Appellant was more than that of patient and treatment provider. The Appellant himself described his relationship with K.D. as that of “a family friend, a cousin.” He stated that she was a “peer”: she had been studying nutrition for a long time. He acknowledged in his evidence, though the trial judge observed that it had to be “drawn out from him”, the use of the phrase “I love that idea” was uncommon for him: see Reasons for Judgment, paras. 148-150.
[45] While the Crown relied on this “evolution” in support of its contention that the Appellant “wanted more” out of the relationship, the trial judge did not draw this conclusion from those text messages. Rather, the trial judge relied on the text messages around the time of the sexual assault in support of his inference that there was a change in how the Appellant interacted with the complainant.
[46] Ultimately, whether or not there had been an “evolution of the communications” prior to the sexual assault was not central to the trial judge’s reasoning process. Rather, as the trial judge stated in para. 207 of his Reasons for Judgment, “what is compelling evidence in this trial, are the texts that were sent to and by the [Appellant]”. In other words, the text messages as a whole were compelling evidence.
[47] The crux of the trial judge’s reasoning that led him to reject the Appellant’s evidence was not the “evolution of the communication” per se, but the Appellant’s responses to the text messages K.D. sent to him. This is set out in paragraphs 211 to 217 of the Reasons for Judgment, where the trial judge states:
[211] In my view, the texts from #17 to #1 are telling in this case. In text 17, K.D. opens up about how he has touched her in his practice his responses to her do not make sense to me. I reject his evidence that he was simply trying to keep lines of communication open with her that is how he responds when she is in crisis. His lack of requests for clarification is troubling to me.
[212] Text number 14 to her where he indicates that he is “excited because this is a conversation that he has been looking forward to”, sent on May 26th is as confusing to me as it is to K.D when she sends him text 13 asking him what he is excited about and he responds by simply saying “yes”.
[213] When she sends him text number 9, on May 28th asking him what the point was on her labia and her breast that he touched in TCM and indicates that she is talking to her friends and one teacher at the college and is asking him essentially for some professional name of those points to talk to her friends about it, he knows that at this point he is about to be found out. When he asks in his next text if she has a few minutes to talk and she responds to text her, his reply is telling. He says “Okay Liver. I’ll send more details in a bit. Battery.”
[214] His explanation that his [sic] mistyped “later” and it came out as “liver” I reject as fanciful and contrived. The fact that he said in the message that he would send more details later confirms that he had sent some detail previously, yet he had not in the text or in any other. Also the fact that “liver” was prefaced by “ok” can only mean in my mind that he was attempting to give some explanation to where he touched her on May 16 and what points that may have related to.
[215] When K.D. sends text 5 asking for coordinates of the liver point on the labia and nipples and says that her friends and the teacher will understand Mr. Sandoval is now facing the reality that he will be found out and that there would be no medically necessary reason to have touched K.D. on those areas to rectify a liver problem.
[216] His remaining messages and the voicemail that he leaves with her, which is exhibit 2, are pleading and desperate. I cannot accept his assertion that they are simply trying to keep lines of communication open with her.
[217] Because of these messages and his reaction to them I cannot find him a credible or reliable witness.
[48] The trial judge also sets out the evidence in support of these findings, in paras. 151 to 155 of the Reasons for Judgment. There, the trial judge notes that the Appellant’s answers in cross-examination about his text 17 do not make a whole lot of sense. At one point, the Appellant even suggested that the text may not have been for him despite the fact that it starts with “Hi Hugo”. The trial judge concluded that the Appellant’s answers “seemed disingenuous” (at para. 155).
[49] At paragraph 218 of the Reasons for Judgment, the trial judge states that in his opinion, the Appellant concluded after the sexual assault that K.D. was open to moving their relationship from a professional one to a sexual intimate one (because she did not object to the massage and thanked him for it afterwards). From this, I conclude that whether or not the communication between the parties evolved prior to the sexual assault really was not all that important to the trial judge’s reasoning process.
[50] The factual findings made by the trial judge were available on the evidence. These factual findings are entitled to deference. It is not only the “evolution of the communications”, but all of these text messages taken as a whole that led the trial judge to find that the Appellant’s evidence was not credible or reliable. Any misapprehension or overstatement with respect to the “evolution of the communications” was insignificant to the trial judge’s reasoning process as a whole.
[51] An appellate court is not to substitute its own view of the evidence for that of the trial judge. This is outside the scope of appellate review: R. v. Lee, 2010 SCC 52, [2010] 3 S.C.R. 99, at para. 4. The trial judge’s conclusion that there had been an “evolution of communications” between the parties is supported by the evidence. This conclusion was neither central nor essential to the finding of guilt. I would not give effect to the Appellant’s argument that the trial judge critically misapprehended the evidence, such that the trial was rendered unfair.
Issue Two: Did the Trial Judge Unevenly Scrutinize the Evidence of the Appellant as compared to the Complainant?
[52] The Appellant argues that the trial judge was uneven in his scrutiny of the testimony of the two principal witnesses, K.D. and the Appellant. On the one hand, he subjected the Appellant’s evidence to intense scrutiny, on the other hand he assessed the K.D.’s evidence much less critically and was substantially more forgiving. The Appellant argues that this uneven approach rendered the trial unfair.
[53] This ground of appeal must be approached with some degree of caution. It often invites the appellate court to substitute its own views of the facts for those of the trial judge. In assessing a claim that a trial judge has applied uneven scrutiny to the evidence of witnesses, there are several principles to be applied: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 22-26.
[54] First, this is a difficult argument to make successfully. Credibility findings are the providence of the trier of fact and are owed great deference on appeal. Unless there is a palpable or overriding error, findings of credibility are entitled to great deference by an appellate court: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19; R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181, at paras. 95 to 98.
[55] Second, to succeed on this ground of appeal, it is not enough for the appellant to show that a different trial judge could have reached a different result. Rather, the Appellant “must point to something in the reasons or elsewhere in the record that make it clear the trial judge applied different standards in assessing the evidence of the appellant and the complainant”: R. v. Orton, 2019 ONCA 334, at para. 23, citing Howe, at para. 59; R. v. Batholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 30; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 18-19.
[56] This ground of appeal is not “a vehicle for re-trying credibility findings in an appellant court”: Bartholomew, at para. 30. The reasons of the trial judge are not to be subjected to a word by word or minute dissection: Gagnon, at para. 19. Rather, appellate review “calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning” of the reasons: Gagnon, at para. 19. In the absence of palpable and overriding error, there being no claim that the verdict is unreasonable, an appellate court is disentitled to reassess and reweigh the evidence: Radcliffe, at para. 26; Gagnon, at para. 20.
[57] In Gagnon, the Supreme Court of Canada reiterated that assessing credibility is difficult: it is “not a science” (at para. 20). The Court observed that “[i]t is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events…. [I]n the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected”: Gagnon, at para. 20.
[58] Recently, in R. v. Mehari, 2020 SCC 40, released after the hearing of this appeal, the Supreme Court of Canada signalled that caution is required before setting aside a conviction based on a perceived uneven scrutiny of the evidence by a trial judge. In brief reasons, the Supreme Court of Canada stated:
This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law.”
[59] Having carefully considered the arguments advanced in support of this ground of appeal by the Appellant, I have concluded that when taken as a whole, the Reasons for Judgement do not reflect any reversible error.
[60] The Appellant argues that the trial judge applied a more exacting standard to his evidence, as compared to that of the complainant. The Appellant points to three areas to make out this argument:
(1) The trial judge unfairly concluded that the Appellant’s evidence was evasive, as compared to the complainant;
(2) The trial judge rejected stereotypical reasoning with respect to the complainant’s reaction to the sexual assault, but did not caution himself with respect to the proper approach to evidence of the Appellant’s reaction to being accused of sexual assault;
(3) The trial judge erroneously concluded that there was a proven absence of motive for the complainant to allege a sexual assault, as opposed to an absence of proven motive. In addition, the trial judge failed to consider that the Appellant had no motive to commit a sexual assault.
[61] I agree with the Appellant’s submission that there were aspects of the complainant’s evidence that might be viewed as problematic within the overall narrative. For instance, not only did she not confront the Appellant for almost two weeks after the sexual assault about the inappropriate touching, she thanked him for the treatment. Immediately after the sexual assault, she texted him from the parking lot and thanked him for a “beyond words” treatment. Then, before showing those texts her husband, she deleted that particular text message. She testified that she felt violated and sick to her stomach immediately after the assault, yet she continued to reach out to the Appellant. She emailed him with personal issues, booked and then cancelled appointments with him.
[62] The trial judge, however, dealt extensively with these problematic aspects of K.D.’s evidence at paragraphs 167 to 191 of his Reasons for Judgment. He found that K.D. was candid and thoughtful in her explanations for the deleted text. She trusted and depended on the Appellant and struggled in understanding why he touched her in that way. She felt shame for having sent that text. She still hoped that there was a medical explanation for the touching. In the end, despite some concern, the trial judge was satisfied that there were reasonable explanations for the problematic aspects of her evidence.
[63] The trial judge rejected the Appellant’s explanations for the problematic aspects of his evidence. He found that the explanations offered by the Appellant did not make sense and that the Appellant was evasive in some regards. These findings are squarely within the purview of the trial judge. While the trial judge reached different conclusions about the credibility of these two witnesses, I am of the view that there is no imbalance in the trial judge’s treatment of their evidence.
[64] The Appellant argues that the trial judge engaged in stereotypical thinking in how he dealt with the Appellant’s reaction to being accused of sexually assaulting K.D.. While the trial judge cautioned himself not to rely on stereotypes in assessing how a victim of sexual assault would act, he did not apply the same caution when assessing how someone accused of sexual assault would react. The Appellant submits that the trial judge was obliged to caution himself in accordance with R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, before concluding that the Appellant had essentially admitted the sexual assault in the “liver” text and during a conversation with K.D.’s husband, M.D. over the phone.
[65] An impression that someone is admitting or acknowledging the truth of an allegation of criminal misconduct is not tantamount to a confession: Chafe, at para. 38; R. v. J.S.W., 2013 ONCA 593, 311 O.A.C. 80, at para. 44; R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 150 O.A.C. 208 (C.A.), at paras. 24-28.
[66] Evidence of an accused’s reaction to an allegation of wrongdoing must be approached with caution. Just as there are many reasons why a victim of an offence, especially a sexual assault, might react in any number of ways, an accused person confronted with an allegation of wrongdoing might react in any number of ways. In Chafe, the Ontario Court of Appeal clearly set out that caution is required when a trier of fact is assessing the significance and meaning of an accused’s reaction to being accused of an offence.
[67] While the trial judge did not cite the Court of Appeal’s decision in Chafe (which was decided after this trial) or any of the cases in this line of authorities, he was clearly alive to the need for caution when approaching this type of evidence. At para. 206 of the Reasons, the trial judge states:
[206] Just as I am careful to avoid stereotypes to how [K.D.] should have acted during and after the May 16th incident, a similar caution must be applied to Mr. Sandoval. The fact that he did not deny touching [K.D.] in this conversation with [M.D.] which was unexpected, angry and unsettling to him is not tantamount to an admission and the uncertainty that I have as to what was actually said during the conversation does not leave me confident that there was a clear admission of wrongdoing.
In my view, the trial judge’s approach to the evidence of the Appellant’s reaction to being accused of sexual impropriety is entirely consistent with the direction of the Court of Appeal.
[68] With respect to whether the “liver” text was tantamount to a confession, the trial judge had to decide whether the word “liver” meant “liver” or was a typo for “later”. At paragraph 214 the trial judge explains why he rejected the Appellant’s claim that it was a typo. The trial judge found the claim that it was a typo “fanciful and contrived”. The trial judge stated the following:
The fact that he said in the message that he would send more details later confirms that he had sent some detail previously, yet he had not in that text or in any other. Also the fact that “liver” was prefaced by “ok” can only mean in my mind that he was attempting to give some explanation to where he touched her on May 16 and what points that may have related to.
These were clearly findings of fact that the trial judge was entitled to make. Those findings are entitled to deference. There is no uneven scrutiny in this regard.
[69] I also reject the Appellant’s argument that the trial judge erred by giving some weight to the fact that K.D. had no motive to fabricate a sexual assault because she stood to lose an important relationship – the one with the Appellant. He argues that this should have been a neutral factor because the Appellant stood to lose the same thing by committing the sexual assault, and thus had no motive to commit a sexual assault.
[70] In my view, the trial judge approached the issue correctly. At paragraph 193 the trial judge stated: “The absence of ‘any reason to make a false allegation’ is a factor that the court can consider in assessing a witness’s credibility”. The trial judge reviewed various authorities in this regard at paragraphs 194 to 198 and concluded that the fact that it was not in K.D.’s interest to fabricate the allegation is a factor that he could and did take into account.
[71] At the same time, at para. 200, the trial judge observed that there was no onus on the Appellant to prove his innocence or explain away the complaint against him. He stated: “Simply because a witness has no obvious motivation to lie does not mean that the witness’s evidence is reliable or credible.” The trial judge went on to quote from the Ontario Court of Appeal’s decision in R. v. Sanchez, 2017 ONCA 994, at para. 25, as follows:
…the absence of any apparent motive to lie is an unreliable marker of credibility. There are simply too many reasons why a person might not tell the truth, most of which will be unknown expect to the person her/himself, to use it as foundation to enhance the witness’ credibility. Consequently, it is generally an unhelpful factor in assessing credibility. [Citations omitted.]
[72] In my view, the trial judge properly considered the absence of any apparent motive for K.D. to falsely report being sexually assaulted. While he gave this factor some weight, it appears to have been of limited weight in the total analysis.
[73] The Appellant argues that the trial judge was not fair in his assessment of the evidence because he failed to give sufficient weight to the fact that the Appellant stood to lose a lot by committing the offence. I disagree.
[74] Sexual assault is “an act of power, aggression, and control…. sexual gratification, if present, is at best a footnote”: R. v. Abrams, 2005 CarswellOnt 8197, at para. 106, affirmed on appeal, 2009 ONCA 723. The absence of a motive to fabricate by a complainant cannot, in my view, be equated with an accused having no apparent motive or ‘reason’ to commit the offence. Motive, in any event, is not an essential element of the offence of sexual assault.
[75] In my view, the Reasons for Judgment reveal a balanced and careful consideration of the evidence, and a fair assessment of the credibility of the two critical witnesses. I would not give effect to this ground of appeal.
D. Conclusion:
[76] For the foregoing reasons, I have concluded that the appeal from conviction must be dismissed.
(“Original signed by”)
Chozik J.
Released: March 29, 2021
COURT FILE NO.: CR-19-59
DATE: 20210329
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
HER MAJESTY THE QUEEN
– and –
Hugo Ramiro-Sandoval
REASONS FOR JUDGMENT
Chozik J.
Released: March 29, 2021