REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

COURT FILE NO.: CR-19-132-AP

DATE: 20210118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Tom Bouillon

BEFORE: CM Smith, J

COUNSEL: Jennifer Armenise, Counsel, for the Crown/Respondent

Mark Halfyard, Counsel for the Appellant

HEARD: December 11, 2020

Background

[1] The appellant, Tom Bouillon (“the appellant”), appeals from his conviction after trial on one count of sexual assault, contrary to s. 271 of the Criminal Code of Canada (“the Code”) by Justice Bliss of the Ontario Court of Justice on April 25, 2019.

[2] The trial took place over the course of two days on March 20th and 21st, 2019. The complainant testified for the Crown. The appellant and his son, Shawn Bouillon, testified for the defence.

[3] Following his conviction, the appellant was sentenced to a nine-month sentence to be served conditionally. Ancillary orders including a DNA order, a five-year weapons ban pursuant to s. 110 of the Code and a SOIRA order for 20 years, were also imposed.

The Facts

[4] The facts set out by the appellant in his factum, which the respondent accepts, are essentially a recitation of the facts as found by the trial judge in his Reasons for Judgment. For the sake of convenience, I will set out the salient facts.

[5] In early 2016, the complainant entered into an intimate relationship with Shawn Bouillon, the son of the appellant, and the two began to cohabit in the basement of the appellant’s home. The basement was described as a largely open area which included a pantry, a laundry area and a sleeping area consisting of a queen size bed and a dresser. The complainant prepared a diagram showing the layout of the area in question which was made Exhibit 2.

[6] The complainant testified that in April 2016 she caught the appellant spying on her from behind the dresser in the basement while she was undressing. She also described an incident which is said to have occurred at about the same time when she was asleep on the bed in the basement and was awakened by the appellant, who was sitting on her bed while she was sleeping, rubbing her back over the covers. He eventually ripped the covers off her which woke the complainant. At that point, the appellant touched the complainant's breast, rubbing and grasping it just above the edge of her bra, and touched her bare thigh. The complainant was wearing only a bra and underwear. The complainant described the appellant as being very inebriated.

[7] The complainant testified that she discussed these events with Shawn Bouillon at the time, in person and by social media. When nothing was done to address her concerns, the complainant opted to leave the home.

[8] The appellant testified. He denied the complainants allegations and said that “I probably think if I did something like that, I would definitely remember it.” He also testified that his son Shawn had installed privacy curtains around the area in question prior to the complainant taking up residence. He was given a copy of Exhibit 2 upon which he depicted the location of those curtains. That diagram was made Exhibit 3.

[9] The appellant also agreed that he had an issue with alcohol and was drinking to excess in April 2016.

[10] Shawn Bouillon testified as well. He confirmed that he had put the curtains up in the basement some months prior to the complainant moving in. He also provided a copy of Exhibit 2 upon which he too depicted the location of the curtains. That diagram was made Exhibit 4.

The Reasons for Judgment

[11] The trial judge accepted most of the complainant’s evidence, however he chose to reject her evidence that there was no privacy curtain of any kind in the location in question, choosing instead to accept the evidence of the defence witnesses on that point. The trial judge rejected the balance of Shawn Bouillon’s evidence as being incredible. The trial judge also chose to reject the appellant's evidence as he found it was not reliable, due in part to the appellant’s evidence about his memory problems as well as inconsistencies between the appellant’s evidence and the evidence of other witnesses which the trial judge chose to accept.

Position of the Parties

(a) The Appellant

[12] The Appellant takes the position that the trial judge erred by not considering the impact of the complainant’s evidence about the absence of the privacy curtain on her credibility as a whole. He submits that this was a significant inconsistency in her evidence giving rise to an obligation on the part of the trial judge to explain how this did not impact her credibility and how it did not give rise to a reasonable doubt.

[13] The appellant submits that trial judges are obliged to deal with major inconsistencies in the testimony of a witness and that failing to do so constitutes reversible error. The appellant cites the cases of R. v. M. (A.), 2014 ONCA 769, and R. v. H. (D.), 2016 ONCA 569, in support of that submission. In this case, the appellant admits that the trial judge adverted to the inconsistency but failed to resolve it or determine what impact if any it had on the credibility of the complainant’s allegations generally.

[14] The appellant also submits that the trial judge erred in this matter by finding that the appellant’s denial of the allegations was unreliable due to the impact of prolonged alcohol abuse on the appellant’s ability to recall. The appellant submits that it was impermissible for the trial judge to take judicial notice of a correlation between heavy drinking and long-term memory loss without an evidentiary foundation. The appellant cites the case of R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.), in support of that submission.

(b) The Respondent

[15] The Respondent submits that the trial judge did not fail to deal with the material inconsistency in the complainant’s evidence but rather, having reviewed the evidence at length, he simply chose not to find that this piece of evidence had much of an impact on the complainant’s credibility. The respondent submits that the trial judge was entitled to accept some, all, or none of the evidence of each witness and, further, that the trial judge had a particularly advantageous position in assessing the credibility of witnesses which is owed considerable deference on appellant review. The Respondent cites the case of R. v. Burke, [1996] 1 SCR 474, in support of this submission.

[16] The respondent also cites the case of R. v. R.A., 2017 ONCA 714, [2017] O.J. No. 4772 (OCA), in support of the submission that appellate courts should not interfere with trial judges credibility findings unless those findings simply cannot be supported on any reasonable view of the evidence, particularly where the core of the complainants allegations against the appellant remain largely intact when considered against the backdrop of the evidence as a whole.

[17] The appellant further submits that the appropriate test on appellate review is whether or not the evidence in the case allows the trier of fact to reasonably reach the conclusion it reached, per the decision in R. v. Burns, [1994] 1 SCR 656. Moreover, it is not necessary that the evidence be microscopically analyzed, nor is there an obligation on a trial judge to deal with each and every inconsistency in the evidence: see R. v. R.W.B., [2003] O.J. No. 3086 (OCA).

[18] In response to the second ground of appeal advanced by the appellant, the respondent submits that the trial judge did not err in his assessment of the appellant’s credibility and reliability. While the trial judge did refer to the appellants admitted consumption of alcohol, the respondent submits the trial judge simply did not believe the appellant’s evidence nor did it leave him with a reasonable doubt.

Issues

[19] There are two issues in this appeal which are as follows:

(c) Did the trial judge fail to deal with the impact of a major inconsistency in the complainant’s evidence regarding whether or not there was a privacy curtain in the basement at the material time?

(d) Did the trial judge err in concluding that the appellant's history with alcohol abuse impacted his long-term memory and therefore the reliability of his evidence?

Analysis

Issue #1: The impact of the major inconsistency

[20] A review of the transcript of the trial evidence and of Exhibits 2, 3 and 4 is instructive.

[21] Exhibit 2, being the diagram drawn by the complainant, shows a bed in the bottom left corner of the space depicted with the head of the bed being against the wall on the left of the diagram. The dresser is depicted a little above the bed and is shown with its left end directly against that left wall. The stairs are shown slightly above that dresser descending toward the top of the diagram.

[22] Exhibit 3, being the appellant’s depiction of the space in question, is simply a photocopy of Exhibit 2 upon which the appellant has depicted a roughed-in wall consisting solely of 2 x 4 framing and electrical wiring. It is devoid of drywall and runs from the bottom of the diagram immediately to the right of the foot of the bed to a point partway up the diagram slightly to the right of the right end of the dresser and to the left of the laundry machines. The appellant testified that a pink blanket had been stretched across the framed in wall and suspended from the floor joists above for privacy purposes. The appellant also testified that the space between the right end of the dresser and the framed in wall was covered by what he described as a blackout curtain which ran from the right ended of the dresser to the framed in wall, that being the entranceway to the sleeping area. That blackout curtain did not extend along the back of the dresser.

[23] Exhibit 4, being Shawn Bouillon’s depiction of the scene, also depicts a curtain across the entranceway to the sleep area which again does not extend along the back of the dresser. Mr. Bouillon described the dresser as being a “double wide dresser with, I think they're called vanity mirrors, a big huge mirror on the back…”: see trial transcript, March 21, 2019, page 66, line 25.

[24] The complainant testified that in April 2016 she caught the appellant spying on her from behind the dresser in the basement. It would appear to be common ground that the curtains in question did not extend across the back of the dresser, meaning it was possible for someone to stand behind the dresser and peep into the sleeping space. In my view, this makes the presence or absence of curtains in the location described by the appellant and Shawn Bouillon completely immaterial.

[25] Crown counsel emphasized this point in her final argument: see trial transcript March 21, 2019, page 119, line 5 and following.

[26] The complainant also testified that later that month she was sleeping in the bed depicted in the diagrams and awoke to find the appellant sitting on the bed touching her above the covers, and that he later ripped the covers off and started touching her breasts and thighs. The presence or absence of curtains on that occasion was again, completely immaterial.

[27] In his factum, at paragraph 17, the appellant submits that the complainant's testimony to the effect that there were no curtains of any kind in the basement area is a material inconsistency and that the trial judge “had an obligation to explain how this did not impact her evidence and did not raise a reasonable doubt”. As I have already indicated, I am of the view that the while that is an inconsistency between the complainant’s evidence and that of the other witnesses it is neither significant nor material. That being so, the trial judge was not required to address it as he was not required to microscopically analyze each and every inconsistency in the evidence per the R.W.B. case.

[28] I would not therefore give effect to this ground appeal.

Issue #2: The appellant’s history of alcohol abuse

[29] The appellant submits that the trial judge rejected the appellant’s evidence primarily because of reliability concerns as opposed to credibility concerns. In support of this position, the appellant points to a number of comments the trial judge made in the course of his reasons regarding the appellant’s history of alcohol abuse and the impact that alcohol abuse appears to have had on the appellant’s ability to recall events. The appellant submits that the trial judge effectively took judicial notice of a correlation between heavy drinking and long-term memory loss and did so without a proper evidentiary foundation.

[30] I disagree. The appellant admitted under oath that he has memory problems. He demonstrated that fact on numerous occasions throughout the course of his testimony. The appellant also testified at some length about the nature and extent of his lifelong struggle with alcohol. He testified that at the time of these events he was in the habit of consuming 10 ounces of rye whiskey in one sitting several times a week. The trial judge quite properly took those factors into account in the course of his reasons for decision. In my view, those factors clearly impact the reliability of the evidence of a witness. To be sure, the trial judge did make reference to alcohol causing memory loss, which the appellant chooses to characterize as taking judicial notice. In my view, that could also be characterized as a trier of fact drawing upon his own life experience in order to analyze and assess the facts of the case before him. That said though, the fact remains that the appellant does have a memory problem which he made manifestly clear through the course of his testimony. The cause of that memory problem is of little moment, the fact of the memory problem being the real issue.

[31] The trial judge engaged in a very careful analysis of the evidence of the appellant. He considered the appellant’s memory problems and his consumption of alcohol through the period in question. He considered internal inconsistencies such as the appellant’s evidence about the door lock, and the significant inconsistency in the appellant’s testimony about the complainant's employment status and her use of employment uniforms. Having done so, the trial judge came to the conclusion that the appellant's evidence was simply not reliable.

[32] The trial judge also engaged in a similar process regarding the evidence of the other defence witness Mr Sean Bouillon. Again, the trial judge itemized a number of aspects of that witness testimony which left him in a state of disbelief as a result of which he found that he could not rely on Shawn Bouillon’s testimony at all.

[33] The trial judge engaged in a similar approach to the evidence of the complainant. While he did acknowledge one inconsistency as between her evidence and the evidence of the defence witnesses regarding the issue of the curtains, he nevertheless chose to accept the complainant’s evidence. He found her core allegations to be both credible and reliable following a thorough review of her evidence.

[34] In my opinion, the factual findings of the trial judge in this matter were reasonable and were founded upon the evidence introduced at trial. Those findings are reasonably capable of supporting the conclusion reached by the trial judge as per the decision in Burns.

Conclusion

[35] The appeal is dismissed.

CM Smith, J

Date: January 18, 2021