COURT FILE NO.: CR-20-500000-0100AP
DATE: 20210816
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
I.O.
Appellant
Mr. P. van den Bergh, for the Respondent Crown
Mr. I. McQuaig, for the Appellant
HEARD: May 5, 2021
M. Forestell J.
reasons for DECISION
Overview and Summary of Evidence
[1] The Appellant was found guilty of sexual assault after a five-day trial before the Honourable Justice P.E. Robertson of the Ontario Court of Justice.
[2] The Appellant was the 53 year-old de facto guardian of the 17 year-old complainant, OA. OA’s mother was in custody and the Appellant (and his wife and children) had moved into OA’s residence. OA referred to the Appellant as her uncle. OA viewed the Appellant as a father figure. She was appreciative of the Appellant and his wife acting as guardians of her and her siblings.
[3] It was alleged that, over several months, the Appellant groomed OA, sexualized their relationship and then sexually assaulted her on April 2, 2018.
[4] OA testified that in the weeks leading up to the sexual assault on April 2, 2018 the Appellant engaged her in conversations about sex. Physical contact increased during that time period and he began kissing her on the lips and speaking of how much he loved her.
[5] OA testified that on April 2, 2018, there were two brief encounters in the washroom in which the Appellant kissed her using his tongue and rubbed his penis against her. These occurred around 10:00 p.m. OA then went down to the basement to look for a school bag. After she went to the basement and could not find the bag, she went into the bedroom of the Appellant and his wife and asked the Appellant’s wife if she knew where the bag was. OA could not remember if the Appellant was in bed with his wife at that time. The Appellant’s wife did not help OA look for the bag and remained in her bedroom. OA went back to the basement to look for the bag.
[6] OA testified that the Appellant came to the basement and sexually assaulted her by repeatedly digitally penetrating her. He left the basement between the sexual assaults. When the Appellant left the basement between the assaults, OA texted and called her friend CO. CO testified as to OA’s emotional state at the time of the calls.
[7] OA testified that the assaults caused her to bleed onto her underwear and pyjamas.
[8] OA left the home the next day and went to stay with her friend, CO, and her family. She brought the underwear and pyjamas. It was an agreed fact that blood was detected on the underwear and pyjamas.
[9] Tania Smith, a nurse practitioner and sexual assault examiner from the Scan Unit at The Hospital for Sick Children, testified that she observed vaginal trauma to OA.
[10] The Appellant testified and denied having conversations with OA about sex. He denied any physical contact with OA except for one occasion when he hugged her after she was accepted to university. He testified that he was rarely alone with OA.
[11] The Appellant testified that at the time of the alleged assaults he was asleep in bed with his wife beside him. He testified that it was his practice to go to bed between 8:00 and 9:00 p.m. because he and his wife would get up to pray at 12:00 or 1:00 a.m. He testified in examination-in-chief that on April 2, 2018, he went to bed between 8:30 and 9:00 p.m.
[12] Although the Appellant testified that during the time period covered by these allegations, he took a drug that caused him to need to urinate urgently and frequently, he did not get up in the night to urinate.
Grounds of Appeal
[13] The Appellant appeals against his conviction and submits that the trial judge applied uneven scrutiny to the evidence of the Crown and the evidence of the defence. In so doing, he committed three separate errors:
He drew factual conclusions which were not based on evidence in critical areas;
He made a finding that the complainant had no motive to lie which was not supported by the evidence and he relied on that finding in an impermissible way.
[14] The appellant submits that the cumulative impact of these errors taints the trial judge’s credibility assessment and occasions a miscarriage of justice, warranting appellate intervention.
Analysis
First Ground of Appeal: Did the trial judge draw factual conclusions that were not based on the evidence?
[15] In his reasons for judgment, the trial judge identified three concerns with the evidence of the Appellant. He wrote that the Appellant’s evidence seemed aimed at distancing himself from OA and suggesting that there would be little opportunity for him to be alone with OA. The trial judge found that it was not believable that there would be so little opportunity for the Appellant to be alone with the complainant. In reaching this conclusion, he mentioned the fact that the Appellant took a drug that caused him to urinate frequently but denied that he ever got up in the night to urinate. In this appeal, the Appellant submits that the trial judge reached a conclusion about the drug taken by the Appellant that was not supported by the evidence. The Appellant testified that he had to urinate when he took the drug but the frequency and timing depended on his water intake.
[16] It was open to the trial judge to conclude that the denial by the Appellant that he ever got up in the night to urinate was implausible in the circumstances. Moreover, although the trial judge referred to the drug taken by the Appellant as a factor that contributed to his concern about the evidence of the Appellant, it was not the only factor.
[17] The second concern identified by the trial judge was that the Appellant presented himself as someone who did not demonstrate affection towards his children or other children through physical displays of affection such as hugging and kissing. He did not tell his children that he loved them. The trial judge found that this description was at odds with the Appellant’s professed calling as a pastor and counsellor.
[18] The Appellant argues that the concern expressed by the trial judge and used to reject the evidence of the Appellant was based not on the evidence, but on a Western conception of parenting and ignored the evidence of the Appellant and his wife with respect to their culture and religious training. Both the Appellant and his wife testified that their belief was that a father should not show physical affection to the children.
[19] I agree that the concern expressed by the trial judge with respect to this aspect of the Appellant’s evidence has little foundation in the evidence and appears to reflect reasoning based on stereotype. There is no basis in the evidence to conclude that all parents hug and kiss their children and tell them that they love them. However, this concern played little role int eh overall assessment of the evidence of the Appellant.
[20] The third area of concern identified by the trial judge and described as the most significant concern was the Appellant’s evidence of alibi. The trial judge found that the evidence of the Appellant, that he was in bed from 8:30 p.m. and that his wife was beside him typing on her laptop, was inconsistent with the evidence of his wife. The trial judge set out the evidence of T.O., that she went to bed at around 9:00 p.m. and that her husband was already asleep. The judge found that if this was true, the Appellant would have no knowledge that his wife was typing on her laptop. The trial judge then wrote, “I reject this part of the accused’s evidence.” Although it is not entirely clear, it appears that the trial judge intended to convey that he rejected the evidence of the Appellant that he was asleep when his wife came to bed.
[21] The Appellant argues that there was no indication given in his evidence as to how he knew that his wife had been beside him typing and there was therefore no inconsistency.
[22] The trial judge went on to find that T.O. had a powerful motive to lie to protect her husband. He found that she was not a reliable witness. The reasons of the trial judge read as a whole and in context show that the trial judge rejected the evidence of both the Appellant and his wife with respect to the alibi. He went on to reject the evidence of both the Appellant and his wife as to their typical bedtimes. He based this on his acceptance of the evidence of the complainant on that point.
[23] Having rejected the alibi evidence of the Appellant and his wife, the trial judge considered whether the evidence of the Appellant raised a reasonable doubt. He found that when stacked against the compelling and credible evidence of the entirety of the Crown’s case, the Appellant’s evidence did not raise a reasonable doubt.
[24] Read in isolation, this part of the trial judge’s reasons might appear to fail to consider the defence evidence as a whole when considering whether it raised a reasonable doubt. However, read with the detailed reasons of the trial judge rejecting the alibi evidence of the Appellant’s wife, it is apparent that the trial judge considered this evidence and rejected it. He did not use the rejection of the alibi as evidence of guilt but, having rejected the alibi, went on to consider the evidence as a whole and whether it raised a reasonable doubt. This was the correct approach to the analysis.[^1]
Second Ground of Appeal: Did the trial judge make an unsupported finding that the complainant had no motive to lie and rely on that finding in an impermissible way?
[25] The observation of the trial judge, that there was no evidence of animus on the part of the complainant, was well-founded on the evidence. It was only one factor considered by the trial judge in his assessment of the evidence of the complainant. It was a factor he was entitled to consider.[^2] I reject the argument that the observation of the trial judge, that there was an absence of evidence of motive to lie, was an impermissible finding of absence of motive.
Conclusion
[26] The appeal is therefore dismissed.
Forestell J.
Released: August 16, 2021
COURT FILE NO.: CR-20-500000-0100AP
DATE: 20210816
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
I.O.
reasons for decision
Forestell J.
Released: August 16, 2021
[^1]: R. v. Hibbert, 2002 SCC 39 at paras. 61-63 and 67
[^2]: R. v. Ignacio, 2021 ONCA 69 at paras. 36-40, 41-59