COURT FILE NO.: CR-20-30000016-AP
DATE: 20210614
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL BUZNY
K. Motyl, for the Crown
M. Halfyard, for Mr. Buzny
HEARD: 18 January 2021
s.a.Q. akhtar j.
On appeal from the convictions entered on 6 February 2020 by Justice T. Cleary of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The applicant was tried on five related offences: sexual assault; sexual interference; sexual exploitation and two counts of breach of probation. During the trial, the Crown withdrew the sexual exploitation charge.
[2] After convicting the appellant on the remaining charges, Cleary J., the trial judge stayed the sexual assault conviction pursuant to the principles in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. A global sentence of 10 months imprisonment was imposed.
[3] The appellant appeals his convictions. For the reasons that follow, the appeal is dismissed.
Background Facts
[4] The complainant, a 9 year old girl, knew the appellant as a family friend who had been acquainted with her mother since their days in high school. The appellant developed a close relationship with the complainant and her siblings, spending a significant amount of time in their company.
[5] On 26 December 2018, the appellant agreed to take the complainant and her siblings to see a movie and, after that, out for dinner. Following their meal, the appellant asked the children if they wanted to go to his apartment to watch another movie. The children indicated that they did.
[6] The complainant testified, in a video statement admitted under s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46, that whilst she watched the movie in the appellant’s living room, the appellant asked her to sit on his lap. When she did so, he kissed her lips and face before moving his hand onto her vaginal area over her clothing. The complainant said that the appellant left his hand there for approximately 15 seconds. He also pulled the complainant’s shirt down, and kissed her chest a number of times. The complainant told the court that the kissing ended when she went to the washroom. From there, she texted her mother, telling her that the appellant was kissing her and pulling her shirt down and that she felt scared. The complainant’s mother instructed her to tell the appellant that she was not feeling well and to return home.
[7] When she returned to the living room the complainant followed those instructions: she indicated that she had a stomach ache. She added that she wanted to remain in the appellant’s apartment but that “she didn’t want what was going on in that chair to happen again”. Meanwhile, the appellant noticed something on the complainant’s phone and left the room.
[8] The complainant’s mother testified and confirmed the text exchange with her daughter. She also told the court that after receiving her daughter’s texts, the appellant had called her. However, her husband had answered and she refused to speak to the appellant. The appellant later texted her denying any wrongdoing claiming that the complainant “didn’t understand”. Two days later, the complainant’s mother reported the incident to the police.
[9] The appellant testified in his own defence and denied the allegations, insisting that he had kissed the complainant on prior occasions in a parental manner but denying any sexual contact. The appellant told the court that he had kissed the complainant’s cheeks and head. He agreed that on the day of the incident she had sat on his lap but was wearing slippery pants and moving around a lot which meant that he had to use his hand to support her.
[10] The appellant maintained his account that any kisses were non-sexual and whilst he may have kissed the complainant on the lips he did not do so on her neck or collarbone. Contrary to the complainant’s claims of approximately 20 kisses, the appellant insisted that he kissed her no more than 6 times.
[11] At the time of the hearing, the appellant was subject to a probation order, one of the conditions being that he was not to be in the company of anyone under the age of 18 unless in the presence of another person approved of in writing in advance by the probation officer.
[12] The central issue in this appeal is the manner in which the trial judge assessed the appellant’s evidence particularly in regard to the second limb of the three step approach contained in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[13] The appellant points to certain passages in the judgment which reveal a flawed starting point for analysis. Those flaws, argues the appellant, led to an erroneous evaluation of the evidence and a finding of guilt that cannot be supported by legal principles.
The W. (D.) Instruction
[14] In W. (D.), at p. 758, Cory J. set out the following three step instruction that a judge might use to charge a jury on credibility issues:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[15] The law has made clear that failure to use the language in the manner described is not fatal so long the charge or reasons for judgment, as a whole, demonstrate that the trial judge has correctly applied the burden of proof. Nor do judges need to slavishly follow the formula when explaining their reasons or follow some type of linear thought process when coming to their verdicts: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521; R. v. Minuskin (2003), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577, at para. 22.
The Trial Judge’s Reasons
[16] The trial judge acknowledged that the case was one in which credibility was the central issue and road mapped his approach, consistent with the W. (D.) principles, in the following way:
Some matters of law apply to these charges and the factual situation. An almost 30-year-old principle from the Supreme Court of Canada [1991] 1 S.C.R. 72, R. v. W.(D.) applies here and in any case where there is a significant difference between the evidence the prosecution presents and the evidence that the defence presents, whether it is testimony, as it was here, directly from an accused or from anyone else that seriously deviates from some of the matters that would be essential for the Crown to prove on any of the allegations.
A brief summary: if I believe the evidence of Mr. Buzny, then obviously I have a reasonable doubt the offence occurred. I mean, he clearly denied it. Much of the contact she alleged was denied as well as that any of it was for a sexual purpose. He basically was saying, now, I had that term on the probation order, but it was not clear that I did not have blanket permission. I did not think it meant I had to have permission each time. It was not clear I had to. I had gotten permission before. These children had visited me before, even back when the same terms were on an order that was associated with house arrest for apparently the same offence he was on probation for and it had the same terms and he got permission for them to come to visit him there. He believed, oh, that was permission for me to be with them. Period.
A second consideration under that principle of W.(D.) is that if I did not believe his testimony in whole or in part, firstly, any part that I did not reject has to be still considered. But even if I rejected some of the essences of his denials, that does not equate to proof beyond a reasonable doubt. Because the third principle basically is on all the evidence that a trier of fact, judge or jury, does not reject as not credible or not reliable, anything that they find is or might be credible and reliable must be evaluated in total to see if the ultimate burden of proof beyond a reasonable doubt on any individual charged is proved. So, in other words, mere disbelief of an accused’s evidence does not satisfy the burden on the Crown.
[17] The judge reminded himself that a criminal trial is not a simple credibility contest where the trier of fact chooses between the testimony of the complainant and the accused. He also acknowledged that a judge was entitled to accept some, none or all of a witness’ evidence, adding “disbelieving one thing a witness says does not mean all of the evidence is not to be considered. One can give different weights to different parts if there is a reason to”.
[18] The judge also recognised that evaluating credibility required reference to the totality of the evidence when he wrote:
I must consider when assessing the reliability and credibility of a witness, the totality of the evidence, you do not take what a witness said, look at it, isolate it from everything else that took place in the trial and try to assess is it reliable? To what extent? Is it credible? It is the totality of the evidence approach. And that if I reject evidence, if I find part of the evidence of any witness is not credible or not reliable enough to make a finding of fact on, then I put it aside because I have rejected it. It does not remain to be considered as one only is to make a decision in the court of law based on credible and reliable evidence as one finds it.
[19] After reviewing the law on the assessment of children's’ evidence, the judge turned to the appellant’s evidence. It is clear that the judge found the appellant’s testimony to be problematic which, in turn, impacted his credibility.
[20] The judge identified three items of significance: the appellant’s lack of reaction to being told the complainant’s mother was “mad” by the complainant’s father after he had called them; the appellant’s inconsistent responses when questioned about the amount of times he had kissed the complainant as well as the location of the kisses; and his varied responses to questions about the probation order. On the latter point, the judge made it clear that the appellant was “fighting against admitting what was fairly obvious” i.e. the appellant knew he was in breach of the orders because he was not in the presence of an accompanying adult when with the children.
[21] By contrast, the judge accepted the complainant’s evidence finding her to be consistent, and regretful about the consequences to the appellant.
[22] After considering all the evidence, the judge concluded that the only reasonable inference to be drawn was that the appellant had touched the complainant for a sexual purpose.
[23] These findings led to a verdict of guilty.
DID THE JUDGE COMMIT A “MILLER” ERROR?
[24] The appellant argues that the trial judge committed an error identified in R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 68 C.C.C. (3d) 517. There, the judge instructed the jury to separate the evidence that they accepted as facts and to determine the verdict on those facts. The Court of Appeal for Ontario held this approach to be in error as it precluded the jury from using evidence that they neither accepted nor rejected in finding reasonable doubt.
[25] The appellant argues the judge’s comments that he would set aside evidence that he found was not credible or reliable “to make a finding fact on” amounts to a Miller style error.
[26] The appellant submits that the error is reflected in the judge’s approach to the second and third limbs of the W. (D.) analysis when the judge held that under the second limb “any part that I did not reject still has to be considered”.
[27] The appellant claims the trial judge committed the same error when he stated the third limb required that “all the evidence that a trier of fact, judge or jury, does not reject as not credible or not reliable, anything that they find is or might be credible and reliable must be evaluated in total to see if the ultimate burden of proof beyond a reasonable doubt on any individual charged is proved”.
[28] For the following reasons, I disagree.
[29] First, the “fact finding” comments made by the trial judge chimed with the court’s comments in Miller, as evidenced in the following passage, at p. 540:
In his charge, the learned trial judge instructed the jury to examine the evidence in two separate stages. He told them to first proceed to a fact-finding stage before arriving at the verdict stage. Earlier in the charge, the jury had been told that it was their task to assess the evidence and to determine the facts before applying the law as explained to them and before deciding whether the Crown had shown the accused to be guilty as charged beyond a reasonable doubt. Obviously, this procedure does not involve two stages. This earlier portion of the charge is unobjectionable, as was the usual caution to eliminate feelings of sympathy or prejudice.
[30] The difficulty in Miller arose at the point where the jury were instructed to only determine reasonable doubt on the basis of the evidence they accepted. By doing so, the judge removed from the jury’s consideration evidence which they neither accepted nor rejected.
[31] As the respondent correctly points out, in this case the judge’s comments when discussing the second limb of W. (D.) are perfectly consistent with the law. There, as described, the judge indicated that he would consider any part of the evidence he did not reject.
[32] In Boucher, Deschamps J., writing for the majority wrote, at para. 29:
The approach set out in W. (D.) is not a sacrosanct formula that serves as a straitjacket for trial courts. Trial judges deliver oral judgments every day and often limit their reasons to the essential points. It would be wrong to require them to explain in detail the process they followed to reach a verdict. They need only give reasons that the parties can understand and that permit appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, and R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656. In the instant case, the judge, by stating that she did not believe Mr. Boucher, was implicitly addressing the first two steps in W. (D.).
[33] In the same case, Charron J., dissenting in the result agreed with this sentiment, at para. 59, by stating:
I agree with Deschamps J. that a ritual incantation is not required in every case. The trial judge did not have to repeat the formula set out in W. (D.) to demonstrate that she had relied on correct legal principles in assessing the accused’s credibility. Moreover, she is presumed to know those principles. Thus, when a trial judge states that he or she “rejects” an accused’s testimony, it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind. Here, however, it is apparent from the whole of the trier of fact’s reasons that she imposed too heavy a burden of proof on the accused. [Emphasis added].
[34] Moreover, in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 56, the court observed:
[35] For example if, in a case that turns on credibility, a trial judge explains that he or she has rejected the accused’s evidence, but fails to state that he or she has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused’s evidence failed to raise a reasonable doubt.
[36] See also R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 13-17.
[37] In R. v. J.E., 2012 ONSC 3373, 93 C.R. (6th) 387, at para. 20, my colleague Code J., quoting both Boucher and R.E.M. wrote:
Accordingly, the so-called “second branch” of W.D. does not require a trier of fact to take evidence that has been completely rejected and use it as a basis for finding reasonable doubt. This is not rational. The middle ground in W.D. is an “alternative” to complete belief or complete rejection and arises where a trier cannot “resolve the conflicting evidence” and cannot find “exactly where the truth of the matter lay”, as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk.
[38] Here, Cleary J.’s comments show that he did not intend to eliminate evidence that he neither accepted nor rejected from the second limb analysis. On the contrary, it was only rejected evidence that that was removed from consideration. The judge made clear: “anything not rejected still has to be considered”. There was no error in this approach.
[39] Nor did the judge commit a Miller error with respect to the third limb of his W. (D.) analysis. At this stage, Cleary J. had to decide whether the Crown had proven its case beyond a reasonable doubt based on the evidence that he accepted. In other words, he was deciding whether the Crown had met its onus only on evidence that he found to be reliable. The reference to putting aside of evidence of “any witness” who “is not credible or not reliable enough to make a finding of fact on” related to rejected evidence. Put another way, the judge signalled his intention to ignore rejected evidence.
[40] This was not the Miller error of creating a separate “pile” of evidence that was neither accepted nor rejected and subsequently ignoring it to decide reasonable doubt. On the contrary, the judge was properly implementing the third limb of W. (D.) It is clear that these comments relate to that limb by the judge’s repeated reference to the “totality” of the evidence.
[41] In many ways, the appellant’s argument is contingent upon parsing Cleary J.’s judgment and focussing on particular terminology. However, when reading the judge’s reasons as a whole it is clear that he rejected the appellant’s version of events.
[42] This case falls within the description set out in R.E.M., where McLachlin C.J., at para. 66, remarked:
[The trial judge] gave reasons for accepting the complainant's evidence, finding her generally truthful and "a very credible witness", and concluding that her testimony on specific events was "not seriously challenged" (para. 68). It followed of necessity that he rejected the accused's evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused's evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt.
[43] This case is on all fours with R.E.M. and R. v. G.H., 2017 ONCA 965, at para. 49.
[44] Nor do I agree that Cleary J. reduced the trial to a credibility contest. The judge explicitly cautioned himself against doing so when describing the third limb of the W.(D.) test. He also referred to R. v. DeRojas, 2012 ONSC 3227, as an example of the authorities that prohibited him from doing so.
[45] I also reject the appellant’s contention that Cleary J. failed to address evidence favourable to the appellant in reaching his decision. For example, the appellant cites the complainant’s cross-examination where she testified that she was upset because she might have misconstrued the appellant’s actions. It is questionable that this evidence, given by an 11 year old referring to her feelings when she was nine, would have much impact on the verdict. However, the judge did refer to the evidence as did the appellant’s counsel at trial.
[46] The judge was not required to address every piece of potential conflicting evidence: R.E.M., at para. 20; R. v. B.C., 2018 ONCA 951, at para. 5; R. v. Campbell, 2017 ONCA 209, at para. 15. However, his reasons in their entirety reflect his view that the only reasonable inference to be drawn from the evidence was that the appellant’s actions were for a sexual purpose. By making this finding, the judge rejected the appellant’s account.
[47] For these reasons, the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 14 June 2021
COURT FILE NO.: CR-20-30000016-AP
DATE: 20210614
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL BUZNY
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.