COURT FILE NO.: SCA(P) 1622/19
DATE: 2021-01-11
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.G.
Appellant
Mr. P. Renwick, for the Crown
Ms. M. Salih, for L.G./Appellant
HEARD: December 18, 2020
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] This is a summary conviction appeal brought by Mr. L.G. (“L.G.”).
The Proceeding in the Ontario Court of Justice
[2] In the Ontario Court of Justice sitting in Brampton, over two consecutive days – February 27 and 28, 2018, L.G. was tried on two counts, namely, that he sexually assaulted A.A. contrary to section 271 of the Criminal Code, and further that he touched A.A. (under 16 years old) for a sexual purpose contrary to section 151 of the Criminal Code.
[3] The Information had alleged that the offences took place in Mississauga, Ontario, between December 1, 2016 and January 31, 2017.
[4] At trial, the Crown called two witnesses – A.A. and her mother, N.P. A.A. was 7 years old when she testified, and she gave her evidence by means of closed-circuit television from a room outside the courtroom. Much of her evidence was adduced through her prior audio-video recorded statement, pursuant to section 715.1 of the Criminal Code.
[5] All of the evidence was completed on the first day of the trial. On the second day, the Defence requested a mistrial on the basis that the Information was not sworn within six months after the alleged offence date. The trial judge gave an oral ruling dismissing that application, and then the Defence elected not to call any evidence.
[6] At trial, the crux of the allegations against L.G. were that he was friends with N.P. and would visit her home from time to time, and during one of those visits he touched A.A.’s vaginal area (she was dressed at the time), twice, and he also kissed the girl on the mouth.
The Trial Judgment
[7] The trial judgment, dated April 9, 2018, is reported at R. v. L.G., [2018] O.J. No. 1912. L.G. was found guilty of both offences. In the reasons, the trial judge again addressed the argument about the limitation period, concluding (at paragraph 59) that “I am therefore satisfied beyond a reasonable doubt that L.G. touched A.A. in December 2016, well within the six-month limitation period”.
The Appeal
[8] As the Notice of Appeal was completed by L.G. without counsel, I will focus on the factum filed by his counsel.
[9] At paragraph 24 of the factum, one ground of appeal is advanced: “the trial judge failed to resolve material concerns with the reliability of evidence from A.A. that was relied upon to establish the timing of the alleged sexual assault”.
[10] At paragraph 38 of the factum, it is submitted on behalf of the appellant that “[t]here was no basis to find beyond a reasonable doubt that the alleged touching occurred in December 2016, or that it occurred within the six month limitation period”.
[11] Although the Notice of Appeal filed by L.G. had dealt with both the convictions and sentence, it appears from the factum filed by counsel, and the oral submissions at the appeal hearing, that only the convictions are being appealed.
[12] Acquittals are sought by the appellant, or alternatively a new trial.
The Crown’s Response
[13] In its factum, the Crown submits that the trial turned on findings of credibility and findings of fact, and the trial judge’s assessment was fully supported by the evidence and is entitled to deference on appeal.
The Standard of Review and the Basic Legal Principles
[14] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.
[15] The burden is on the appellant, L.G.
[16] Factual findings made by the trial judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. After all, an appeal is not a retrial. R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.
[17] Questions of law are generally reviewed on a standard of correctness.
II. Analysis
[18] For the reasons that follow, the appeal is dismissed.
The Defence Submission Characterizing the Type of Alleged Error at Issue
[19] Ms. Salih, for L.G., submits that the alleged error being advanced here, that is a total failure on the part of the trial judge to resolve legitimate reliability concerns, is a question of law, and not a question of fact. As such, a standard of review of correctness should be applied.
[20] The Defence relies upon the decision of the majority of the Court of Appeal for Ontario in R. v. Slatter, 2019 ONCA 807, [2019] O.J. No. 5073.
[21] Respectfully, I disagree with the Defence, for two reasons. First, that decision of the Court of Appeal for Ontario was overturned by the Supreme Court of Canada – R. v. Slatter, 2020 SCC 36. Second, if one looks at paragraphs 57-72 of the majority’s opinion in Slatter (Court of Appeal), the characterization of the error committed by the trial judge in that case was as insufficient reasons and not as some other, stand-alone, legal error.
[22] Further, although for “x” to be described as an error of law it need not be the case that the judgment was or could have been based on “x”, so as to prejudice the accused, it is the case that “x”, to be properly characterized as an error of law, has to have been a decision that was infected by an erroneous interpretation or application of the law. R. v. Khan, 2001 SCC 86, at paragraphs 20-22.
[23] That is not at all this case.
[24] I agree with Mr. Renwick, for the Crown, that what L.G. is really complaining about is an alleged insufficiency of reasons on the part of the trial judge, particularized as an abject failure on the part of the trial judge to grapple with reliability problems pertaining to the complainant child, and not some other nebulous error of law.
The Defence Submissions on the Merits of the Alleged Error in the Court Below
[25] In able submissions, Ms. Salih focusses on a singular point: the trial judge erred in concluding that the event that gave rise to the two charges took place in December 2016, and therefore within the six-month limitation period, because such a conclusion ignores three things, any one of which defeats the reasonableness of the said conclusion.
[26] First, that A.A.’s very brief evidence in re-examination at trial, that she never saw L.G. again after the day that he touched her, which evidence tended to support the conclusion that the touching occurred in December 2016, was unreliable, argues Ms. Salih.
[27] I disagree. The trial judge was entitled to accept all, some, or none of A.A.’s evidence. The typed Reasons for Judgment make it crystal clear that the trial judge recognized the frailties in some of A.A.’s evidence (unsurprisingly, I would add, particularly on more peripheral matters, given her very tender age at the time). There was nothing improper about the re-examination at trial. There was no objection by the Defence. There was no request by the Defence to ask further questions. There was nothing equivocal or hesitant about A.A.’s answers in re-examination. It seems to me that the trial judge did nothing improper about accepting and relying upon that evidence given by A.A. in re-examination at trial.
[28] Second, that A.A.’s evidence surrounding the touching was inconsistent with her mother’s evidence about the last time that L.G. was at the home in December 2016, and thus, that should have given the trial judge some pause in concluding that the two things (the touching and the last home visit by L.G.) occurred on the same date, Ms. Salih argues.
[29] I disagree. Those inconsistencies, outlined at paragraph 33 of the factum delivered on the appellant’s behalf, are precisely on the types of peripheral and inconsequential things that child witnesses, including this seven-year old girl, cannot be held to exactitude on. Simply put, the trial judge properly spent no time on questions of, for example, whether T. and T.’s daughter were in the basement on the date in question.
[30] Third and finally, that the trial judge engaged in impermissible speculation, in the absence of expert evidence, when he concluded that a December 2016 offence date was consistent with A.A.’s evidence that she did not like L.G. after he did what he did and would have remembered if she had seen him again after that date, argues Ms. Salih.
[31] I disagree. The trial judge was entitled to accept A.A.’s evidence at trial that “when he did the thing, kind of, I did not like him”, despite her comment to the police that she thought L.G. was “okay”. Further, the trial judge’s observations are based on common sense and do not amount to a “speculative inference about her [A.A.’s] cognitive functioning”, as submitted at paragraph 35 of the factum delivered on behalf of the appellant.
[32] It is more likely than not that a child who experiences something like this sexual touching by an adult, and who did not like the adult for doing that, would remember if she saw that adult again. The trial judge was observing nothing more than that, and I would be surprised if that type of observation required the mystique or cloak of expert evidence. A pulse would likely suffice.
[33] Besides, even if Ms. Salih is correct, the trial judge did not rely exclusively on that observation to ground his finding of fact that the touching occurred in December 2016, and therefore, I would not disturb the said finding in any event.
III. Conclusion
[34] The trial judge’s reasons were sufficient. His credibility and reliability analysis, and his resulting findings of fact, including that regarding the approximate date of the sexual touching, reveal no error, never mind a palpable and overriding one.
[35] For all of the foregoing reasons, despite Ms. Salih’s able presentation, the appeal is therefore dismissed.
(“Original signed by”)
Conlan J.
Released: January 11, 2021
COURT FILE NO.: SCA(P) 1622/19
DATE: 2021-01-11
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
HER MAJESTY THE QUEEN
– and –
L.G.
REASONS FOR JUDGMENT
Conlan J.
Released: January 11, 2021