Court File and Parties

COURT FILE NO.: CR-2020-01(AP) DATE: 2022-03-28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN, Respondent – and – Rony Cubilete-Pereyra, Appellant

COUNSEL: J. Lefebvre, Counsel for the Crown B. Engel, Counsel for the Appellant

HEARD: March 14, 2022

BEFORE: PELLETIER J.

Reasons for Judgment on a Summary Judgment Appeal Against a Finding of Guilt and the Sentence Imposed

[1] The Ontario Court of Appeal held in R. v. D. (J.J.R.), 215 C.C.C.(3d) 252, that “An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.” (para. 53).

[2] The issue on the present Appeal against the finding of guilt is whether the learned trial judge properly made such a determination. For the reasons which follow, I have concluded that the principle was properly applied.

[3] The Appellant on the Appeal against the finding of guilt was found guilty following a 4-day trial before the Honourable Justice R.N. Fournier of the Ontario Court of Justice.

[4] The Appellant, 28 years old at the time of the offence, working as a janitor at a nursing home where the complainant, aged 15 years was working as a co-op student, gestured her towards him and kissed her on the mouth as he grabbed her buttocks.

Trial Judge's Findings on Guilt

[5] In his decision, the trial judge examined in detail the evidence of the complainant, the evidence of other Crown witnesses and the circumstances surrounding the specific event.

[6] More particularly, the trial judge found the complainant to be detailed and consistent in her description of the events. The trial judge considered the complainant’s age at the time of the events, and at the time of trial, one year later. He observed that the complainant, though expressing herself in what he termed “teenager lingo” with such expressions as “like, he kind of kissed me”, was able to respond to the questions posed in what he found to be compelling fashion, withstanding “fairly extensive cross-examination”. The trial judge observed “her testimony is loaded with subtle expressions of mixed emotions, which she evidently cannot express readily for our benefit. What she is likely intending from an insecure and intimidated platform is this:

He kissed me, I didn’t want this, it’s partly my fault as I should have objected or reacted differently, I wish I could just forget about it, carry on with my co-op program and avoid these proceedings.

The list of cluttered emotions goes on in her young inexperienced mind. But this does not make her less credible”.

[7] The trial judge also addressed testimony concerning the complainant’s behavior after the events. The witness at trial described the complainant crying and smiling at the same time, which the trial judge observed to be a rather peculiar reaction, noting however that the complainant demonstrated the same reaction to “vigorous cross-examination”, as the Court announced a recess during her testimony.

[8] The trial judge dismissed the suggestion that the complainant was motivated by revenge resulting from the Appellant rebuffing her flirtations, finding her immediate and emotional disclosure which inconsistent with the time and thought that a completely fabricated complaint would require.

[9] The trial judge stipulated that in considering the complainant’s reporting of the incident, he was not doing so in order to assess whether it was consistent with the expected response of a person subjected to a sexual assault. Rather, he viewed the description of the complainant’s demeanor when reporting similar to her demeanor during the more difficult portions of the trial and examined the timing of the complaint in the context of whether the revenge theory was plausible.

[10] The trial judge considered the testimony of the complainant’s mother and her guidance counsellor, both of whom provided context, as well as the evidence of the investigating officer, whose testimony included the introduction of video surveillance footage corroborating to some extent the movement of the Appellant in the area of the school at various times.

[11] The trial judge ultimately stated “in the end I am satisfied beyond a reasonable doubt that this complainant is telling the truth and that the accused kissed and touched her inappropriately as she claims. In my view, her evidence is compelling when viewed in the context of all the evidence in this instance. I found her testimony to be both internally and externally consistent.”

[12] The trial judge assessed the denial of the Appellant. Despite commenting on the tendency of the Appellant to provide protracted answers on collateral matters, “all the while seemingly avoiding to delve into the crucial issue surrounding the actus reus”, the trial judge observed “I detected nothing in his testimony nor his demeanor which would lead me to conclude that he was not a forthcoming witness”.

[13] The trial judge then situated the testimony of the Appellant in the overall assessment of the evidence by concluding:

“As for the defendant’s denial, it is just that. In assessing his testimony as trier of fact, I must determine whether he was trying to tell the truth and whether he was sincere, reticent or evasive. More importantly, I must assess what he testified to in the context of all the evidence in the case and not simply on an isolated basis.”

[14] Ultimately, the trial judge concluded, “In this instance, the only evidence that is inconsistent with the guilt of the defendant is his bare denial. And in the context of all the evidence in this instance, I cannot accept his position and I do not believe his assertion that the complainant’s version is nothing but concoction and fabrication. In fact, I believe her evidence, which is clearly consistent with his guilt. Despite the absence of any obvious flaws in his testimony or his outright denial, or any other problem identified with the way the accused testified or the substance of the accused’s evidence, I reject his evidence of denial. My decision in this regard is based on a considered and reasoned acceptance, beyond a reasonable doubt, of the truth of the credible evidence advanced by the complainant in this instance. This is based on the principle articulated by the Ontario Court of Appeal in the matter of R. v. J.J.R.D.”.

Appellant's Submissions on Guilt Appeal

[15] The Appellant suggests that the trial judge misapplied the R. v. W. (D.), [1991] 1 S.C.R. 742 formula, rendered a verdict unsupported by the evidence and applied markedly different standards of assessment as between the evidence of the complainant and that of the Appellant.

[16] In submissions on the present Appeal, the Appellant suggested that the three grounds of appeal above merge into a single theory that the trial judge could not believe the Appellant’s denial and find him guilty, all at once, and in so doing, choose between two conflicting accounts.

[17] Indeed, if a Court accepts evidence of denial, the first prong of the R. v. W. (D) analytical framework compels an acquittal without more. The analysis conducted by the trial judge however did not result in his acceptance of the Appellant’s evidence of denial, but rather its rejection, despite the absence of any obvious flaws, based on the clearly reasoned and stated acceptance of the complainant’s evidence beyond a reasonable doubt as the truth concerning the events giving rise to the charges.

[18] In this way, as recognized by R. v. D (J.J.R.), the Court did not choose the evidence of the complainant over that of the Appellant, nor did it reason that both accounts were credible, with that of the complainant being more compelling.

[19] Rather, the trial judge rejected the evidence of the Appellant, consisting of a simple denial, based on his conclusion that the complainant’s evidence was truthful and accurate, beyond a reasonable doubt.

[20] A Court is not permitted to choose between credible but contradictory accounts provided by a complainant and an accused person in finding the accused guilty.

[21] It is however permissible, if the evidence is such, for a Court to reject the denials of an accused where the evidence in support of a finding of guilt is of such compelling nature as to represent a basis upon which a mere denial can be dismissed as untruthful.

[22] The distinction, though subtle, is rational. In the present case, the trial judge instructed himself properly on the R. v. W (D) analysis and cautioned himself against determining facts on the basis of a preferred account. The trial judge’s analysis was consistent with the reasoning at the trial level and confirmed on Appeal in R. v. D. (J.J.R.), and distinguishable from the trial level analyses, as examined by the Court of Appeal in R.v. J. W. 2014 ONCA 322, and R. v. C.G. 2021 ONCA 809.

[23] In a treatise on the R. v. D. (W.) framework, Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment (22 Can. Crim. L. Rev. 31) published after the release of the decision in R. v. D (J.J.R.) Paciocco J.A. observed as follows on the delicate but legitimate distinction between choosing competing accounts and accepting one wholly as truthful and thus dismissing the other as untruthful beyond a reasonable doubt:

“In my view, it is important to allay the misconception that an acquittal must follow if the defense evidence, viewed in isolation, cannot be disbelieved beyond a reasonable doubt. It is equally important, however, to emphasize the need for a demonstrably “considered and reasoned” basis for accepting the inculpatory evidence beyond a reasonable doubt before conviction is appropriate in such cases. I would therefore recommend the following proposition:

In deciding whether the Crown has proved the accused to be guilty beyond a reasonable doubt, the evidence must be considered as a whole. It is therefore possible to reject entirely evidence that is inconsistent with the guilt of the accused solely because of the considered and reasoned acceptance beyond a reasonable doubt of evidence that the accused is guilty. (p. 13)”.

[24] I would accordingly conclude that the findings of the trial judge were supported by the evidence and properly rationalized. The appeal against the finding of guilt is therefore dismissed.

Crown's Sentence Appeal

[25] On the Crown sentence appeal, it is submitted that a conditional discharge accompanied by a period of probation of twelve (12) months is neither fit nor proper in the context of a sexual offense committed on a person incapable of consenting as a result of their young age. The Crown seeks an increase in sentence, including a jail term.

[26] The Appellant accused on the sentence appeal invites the Court to consider the mitigating factors as well as the completion of the sentence, including a sexual behavior assessment, and to conclude that the sentence was fit and proper, despite being in the lower end of the applicable range.

[27] Regrettably, the trial judge dismissed entirely the sentencing objective of general deterrence in this case, offering the view that it is speculative and unrealistic to propose that an exemplary sentence could serve to deter other individuals from engaging in the same or similar behavior. While the efficacy of general deterrence may be debatable, sentences for sexual crimes against children and young persons remain a vehicle through which societal condemnation and abhorrence can be communicated and similar conduct strongly discouraged.

[28] I would not however be inclined to vary the sentence at this juncture of the proceedings.

[29] A discharge is an available sentence for section 271 and section 151 offenses of the Criminal Code. Whether it is fit and proper depends entirely on the circumstances of the offense and the circumstances of the offender.

[30] The accused was viewed by the trial judge as a relatively young father with employment, family support, and no criminal history. He commented on the effects of being charged and prosecuted. He addressed the level of intrusiveness of the offense. The trial judge recognized the impact on the complainant and the strong denunciatory message which the sentence needed to convey.

[31] The Court concluded that a discharge was in the interests of the accused and not contrary to the public interest. Cases referred to by Counsel would tend to show that generally speaking, discharges for offenses of this nature were reserved for cases involving pleas of guilty and a clear sense of remorse, both absent in the present.

[32] I am however unable to conclude that, in the specific circumstances of this case, a conditional discharge with a sexual behavior assessment as part of a 12-month probationary period is outside the range of available dispositions to the extent of needing to be corrected. The nature of the impugned conduct, the background and circumstances of the accused, and the probationary period including an examination of whether the accused required intervention to address inappropriate sexual behaviour can be seen as the least intrusive measures needed to address the objectives of sentencing with a strong rehabilitative component. This conclusion is supported by the successful completion by the accused of the sentence ordered. In the result, the sentence appeal is dismissed.

The Honourable Justice R. Pelletier Released: March 28, 2022

COURT FILE NO.: CR-2020-01(AP) ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – R.v. Ronay Cubilete-Peryra REASONS FOR JUDGMENT ON A SUMMARY JUDGMENT APPEAL AGAINST A FINDING OF GUILT AND THE SENTENCE IMPOSED Pelletier, J. Released: March 28, 2022