BRACEBRIDGE COURT FILE NO.: CR-21-14-AP
DATE: 20220606
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MIN SOO KIM
Appellant
Melissa MacDonald, for the Crown
Rupinjit Singh Bal, for the Appellant
HEARD: May 9, 2022
REASONS FOR DECISION
On Appeal from the Judgment of Justice B. Frazer of the Ontario Court of Justice on January 31, 2021.
CHARNEY J.:
[1] The Appellant, Min Soo Kim, was convicted of sexual assault on January 31, 2021. He was sentenced to a custodial term of 12 months.
[2] The Appellant appeals conviction and sentence.
[3] The Appellant argues that the trial judge misapplied the W.(D.) analysis, effectively shifting the burden of proof, or, at the very least, giving the benefit of the doubt to the complainant, where it should have gone to the Appellant.
[4] The Appellant argues that the trial judge erred by “inserting J.J.R.D. into the W.(D.) analysis”, which had the effect of treating the evidence as a credibility contest between the complainant and the Appellant, a result specifically precluded by W.(D.).
Facts
[5] On January 17, 2019, the complainant, then aged 22, was completing her shift as a server at a restaurant, which was owned and managed by the Appellant. The Appellant, as owner, was the complainant’s employer. The complainant had been employed at the restaurant for at least one year.
[6] On the evening in question the complainant and the Appellant were the only two persons remaining in the restaurant. The Appellant struck up a conversation with the complainant about her sexual relations generally, and asked her to follow him. The Appellant headed towards the back of the restaurant and the customers’ washrooms.
[7] The complainant thought that the Appellant was going to show her a washroom that needed cleaning and followed the Appellant into the women’s washroom.
[8] Once inside, the complainant alleged that the Appellant grabbed her around the back of her neck and began forcefully kissing her and forcing his tongue into her mouth. The complainant tried to step away, but the Appellant pulled her back. He removed her apron from her waist and requested sexual relations by repeatedly saying “come on, come on” and that “no one would know”. She replied: “I can’t, I can’t”.
[9] The Appellant pulled down the complainant’s leggings, but she was wearing a one piece body suit underneath. She tried to pull her leggings up, but the Appellant continued to try to pull them down. The Appellant grabbed the complainant by the back of the neck and shoulders and forced her body down. The Appellant pulled his erect penis out of his pants and forced his penis into her mouth. He did not wear a condom. The complainant was choking and could not get up. This went on for about 30 seconds. He did not ejaculate.
[10] When the Appellant released his grip on the complainant’s neck, she grabbed her apron and left the washroom.
[11] The complainant testified that she texted her fiancée immediately after the incident. Those messages were reviewed by the trial judge, and I will consider the relevance of those messages in the context of the Appellant’s legal argument.
[12] The Appellant denied that this encounter ever occurred. He denied asking her to follow him and denied assaulting her. He took the position that the complaint was fabricated in order to extract money from him or to cover the cost of the complainant’s expensive dental work.
[13] There was some security video footage of the restaurant, although it did not cover the rear of the restaurant where the women’s washroom was located or the women’s washroom itself.
[14] The trial judge reviewed all of the evidence and provided reasons for accepting the evidence of the complainant notwithstanding certain “inconsistencies” which the trial judge considered to be “minor” or “peripheral”.
[15] The trial judge cited the Supreme Court of Canada’s decision in Murphy et al. v. The Queen, 1976 CanLII 198 (SCC), [1977] 2 SCR 603, to explain that a trier of fact is entitled to assess the value to be attached to demeanor evidence of a complainant immediately after an assault. The trial judge found that the text messages sent by the complainant to her fiancée immediately after the alleged assault were “illustrative of the complainant’s demeanour”, and one can “hear the angst, the fright, the fear in her voice” by reading those text messages.
[16] The trial judge also pointed out that the evidence of the complainant regarding her emotional condition was corroborated by her mother and her fiancée.
[17] The trial judge considered and rejected the defence theory of that the complainant was motivated to make false allegations to obtain money to have dental work.
[18] The trial judge also provided the following explanation for rejecting the Appellant’s evidence, at p. 14:
The accused’s explanation for the time spent through which the assault occurred was occupied by his detailed account of the steps and procedure undertaken by him to close the kitchen that night. That recitation of his routine is nothing more than what he would have been required to do on any night that he was required to close the restaurant. And in this court’s view, it detracts from the weight to be given to that evidence. In large measure, however, there was little in the accused’s evidence that would lead the court to reject his evidence solely on the substance of his evidence or the manner in which he gave his evidence. See R. v. J.J.R.D., previously referred to.
The court finds that the complainant’s evidence was detailed and clear, and given the accused’s position, evidence remains uncontradicted. Her detail in (sic) uncontradicted evidence of a sexual assault, coupled together with the compelling evidence of her demeanor immediately following the sexual assault, when stacked against the accused’s bare denial, leads the court to conclude that the accused denial must be rejected.
[19] Finally, the trial judge concluded:
The court is satisfied beyond a reasonable doubt that by her words and her actions an absence of consent has been proven beyond a reasonable doubt. Neither does the evidence of the accused leave the court with any reasonable doubt. And on all of the evidence that the court does accept, the court is satisfied beyond a reasonable doubt that the offence is proven beyond a reasonable doubt and there will be a finding of guilt.
Analysis
[20] Whenever an accused testifies, the trial judge must instruct themself or the jury with respect to the principles enunciated in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. These principles confirm that the issue is not simply whether the trier of fact believes the complainant or the accused. Even if, on a balance of probabilities, the trier of fact believes the complainant, the accused must still be found not guilty if the evidence, taken as a whole, including the accused’s evidence, raises a reasonable doubt about the accused’s guilt. The application of these principles ensures that reaching a verdict does not devolve into a mere “credibility contest” between the two main witnesses – the complainant and the accused – and ensures that the presumption of innocence and the Crown’s burden of establishing the alleged guilt of the accused beyond a reasonable doubt properly operate. See also: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 20-28.
[21] The W.(D.) framework is often summarized with these three directions:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in a 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 you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.
[22] The W.(D.) jury direction is intended to explain “what reasonable doubt means in the context of evaluating conflicting testimonial accounts”: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. An accused who does testify is not required to prove anything or to provide an explanation for the fact that a complainant has made allegations against him. The onus of proof is always on the Crown.
[23] The Appellant acknowledges that the trial judge set out the correct W.(D.) formula, but argues that the trial judge misdirected himself when he went on to state as follows (at p. 5):
Further, in R. v. J.J.R.D…. The court said this about the application of W.D. at paragraph 53. “The trial judge rejected totally the appellant’s evidence because stacked beside A.D.’s,” the complainant’s, “evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of the accused’s evidence based on considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of the 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.”
[24] R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, was a case about the adequacy of the trial judge’s reasons for rejecting the accused’s evidence, not about the correct standard of proof to be applied to credibility issues.
[25] In J.J.R.D. the Ontario Court of Appeal recognized “that, despite the absence of obvious flaws in the evidence of the accused, the law permits conviction based on acceptance beyond a reasonable doubt in the truth of conflicting credible evidence”: R. v. C.L., 2020 ONCA 258, at para. 3. As the Court of Appeal stated in R. v. Slatter, 2019 ONCA 807, at para. 84: “The qualifiers – “considered and reasoned” -- are important and their application must be clear from the reasons for judgment”.
[26] The Appellant argues that the trial judge’s rejection of his evidence was done without a satisfactory explanation. The insertion of J.J.R.D. into the W.(D.) analysis caused the trial judge to mistakenly turn his analysis into a simple credibility contest, and his total rejection of the Appellant’s evidence was based on nothing more than his finding that he accepted the complainant’s version of events.
[27] The Appellant relies on the Court of Appeal’s analysis in R. v. D.H., 2016 ONCA 569. In that case, like the case at hand, the trial judge considered the W.(D.) instruction together with J.J.R.D. The Court of Appeal stated, at para. 24:
After instructing herself on R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the trial judge first addressed the evidence of the appellant. She found that he was neither shaken in cross-examination nor inconsistent. However, relying on R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), she found that she did not believe the appellant, and that his evidence did not leave her with a reasonable doubt.
[28] The Court of Appeal allowed the appeal, stating, at paras. 69-71:
In applying the burden of proof beyond a reasonable doubt and using the rule in J.J.R.D., the trial judge rejected the testimony of the appellant and found it did not raise a reasonable doubt because she accepted as true the evidence of the complainant and her mother.
The trial judge was entitled to make those findings, as long as she gave adequate reasons that explained how she resolved material inconsistencies and discrepancies on significant matters in the evidence she accepted.
In my view, the totality of the errors by the trial judge in failing to resolve important discrepancies in the evidence, or failing to do so in a cogent manner where required, undermines the reliability of her analysis; it does not amount to “a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence” of the Crown case, in accordance with J.J.R.D., and constitutes reversible error. See also M. (A.), at paras. 18-19, 27.
[29] In R. v. A.N., 2017 ONCA 647, the Court of Appeal stated, at paras. 15 – 16:
At para. 53 of J.J.R.D., Doherty J.A. wrote for the court that, “An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt 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.”
Rejection of an accused’s evidence based on the acceptance of a complainant’s conflicting evidence constitutes reversible error if the acceptance, beyond a reasonable doubt, is not considered and reasoned: R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251. [Emphasis added.]
[30] Finally, the Appellant relies on the decision of the Ontario Court of Appeal in R. v. C.L. 2020 ONCA 258. C.L. was a case about jury instructions, and the Court of Appeal concluded that the trial judge’s insertion of J.J.R.D. into the W.(D.) component of the jury instruction was unnecessarily confusing and misleading.
[31] The Court accepted the underlying premise of J.J.R.D., at para. 30:
J.J.R.D. endorses the proposition that a proper conviction can be arrived at even where exculpatory testimony has no obvious flaws if the Crown mounts a strong prosecution… In such a case a trier of fact may appropriately find that the incriminating evidence is so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt and find guilt beyond a reasonable doubt.
[32] However, the Court noted that J.J.R.D. was a case about the sufficiency of the trial judge’s reasons for rejecting the accused’s evidence, not about the correct standard of proof to be applied to credibility issues. The Court of Appeal set out several reasons for rejecting the trial judge’s modification of the W.(D.) instruction. One point being, at para. 32:
The “considered and reasoned acceptance” language of J.J.R.D. has no place in a W.(D.) jury direction. As the totality of the passage quoted above reveals, J.J.R.D. was a sufficiency of reasons case. It was not a jury instruction case, nor even a case about the content of the W.(D.) formula.
[33] Our case is not about jury instructions. Read in context, I do not read the trial judge’s reference to J.J.R.D. as an indication that he has misdirected himself as to the standard of proof to be applied. The trial judge is quoting J.J.R.D. simply to indicate (to use the language of the Court of Appeal in C.L., at para. 38) that he “may reject defence evidence outright and find guilt beyond a reasonable doubt based on the strength of the Crown case despite finding no identifiable material flaws in that defence evidence”, a legal proposition that is correct and, in the trial judge’s view, directly relevant to the case he had just heard.
[34] The issue on this appeal is whether the trial judge correctly applied that principle and whether the trial judge’s reasons for decision “provide a pathway to conviction by showing that a decision to convict without identifying problems with the exculpatory evidence was based on a considered and reasoned acceptance of the truth of conflicting credible evidence beyond a reasonable doubt” (C.L. at para. 33).
[35] The Appellant points to several aspects of the trial judge’s reasons to support his position that the trial judge tried to use J.J.R.D. to circumvent a proper W.(D.) analysis.
[36] First, the Appellant argues that the trial judge dismissed any inconsistencies in the complainant’s evidence as minor and failed to draw adverse credibility findings against her. Some of these inconsistencies relate to her text messages to her fiancée, others relate to her testimony at trial.
[37] The Appellant has listed a number of these inconsistencies. The chart below is derived from the Appellant’s chart, but contains more detail so that nothing is taken out of context:
| Text Message to her Fiancee. | Testimony | Other Evidence |
|---|---|---|
| “Min Soo just pulled his dick out…He took his pants off” | “He had it out so he had unbuttoned his pants and unzipped them…” | The Appellant testified that he was wearing track pants with no button or zipper. |
| “I can’t get out, he locked the door” | Only the front door was locked, there was a back door that the complainant could have accessed. | The Appellant was not blocking the back door when the text messages were sent. |
| The complainant texted her fiancée that she had called 911. | The complainant acknowledged that she did not call 911. | The complainant reported the incident to the police on January 22, 2019. |
| “He raped me or sexually assaulted; …Wasn’t rape but I feel violated, I’m not okay. I need you to know he didn’t touch me, other than trying to pull my pants but its what he did in front of me that has me devastated and don’t know what to call it. If it’s sexual assault or what; Please don’t leave me [D]. You’re all I think about and I love you so much” | The complainant alleges that the Appellant kissed her, grabbed her neck and forced his penis into her mouth. |
[38] The principles that govern this ground of appeal were set out by the Ontario Court of Appeal in R. v. R.A., 2017 ONCA 714, at paras. 44-46:
First, the trial judge’s credibility findings are owed significant deference on appeal. They should not be interfered with unless they “cannot be supported on any reasonable view of the evidence”: R. v. P.(R.), 2012 SCC 22, [2012] 1 S.C.R. 746; and R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 7.
Second, significant testimonial inconsistencies should be addressed because, as the Supreme Court noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21, the accused is entitled to know “why the trial judge is left with no reasonable doubt”. However, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons: R. v. R.(C.), 2010 ONCA 176, 260 O.A.C. 52, at para. 48.
Third, an appellate court should not interfere with a trial judge’s findings of credibility if the core of the complainant’s allegations against an appellant remain largely intact on a review of the entirety of the evidence: R. v. Roy, 2017 ONCA 30, at para. 14; R. v. Barua, 2014 ONCA 34, 315 O.A.C. 83, at paras. 7-8; and R. v. Marleau (2005), 2005 CanLII 8667 (ON CA), 197 O.A.C. 29 (C.A.), at para. 7.
[39] In this case the trial judge reviewed some of these alleged inconsistencies, and concluded that they were minor. For example, the trial judge concluded that it did not matter whether the Appellant’s pants were unzipped or unbuttoned, “given that his pants were down”.
[40] While he did not address each of the alleged inconsistencies outlined above, he was entitled to accept the complainant’s explanation and conclude that none of them rose above the level of minor or peripheral. For example, it is not surprising that the complainant might be reticent or embarrassed to tell her fiancée all of the details of the alleged assault in a text message.
[41] Certainly no adverse credibility finding may be made from the fact that the complainant waited a few days before reporting the incident to the police: R. v. D.D., 2000 SCC 43, at para. 63.
[42] The trial judge was also entitled to use the complainant’s demeanour in her text messages, and the other witnesses’ confirmation of her demeanour, “to draw inferences about the credibility of the complainant’s account, and to rely on this evidence as supporting her testimony of having experienced a violent sexual assault”: R. v. Brown, 2022 ONCA 417, at para. 14; R. v. Steele, 2021 ONCA 186, at para. 94.
[43] The Appellant also points to the security video evidence that showed that the complainant hugged the Appellant before leaving the restaurant that night. She did not tell the police that she hugged the Appellant when she left the restaurant. The Appellant argued that this hug was evidence that nothing untoward had occurred and “all was well”.
[44] In her testimony the complainant explained that she did not initially recall the hug, and that she hugged the Appellant when she left the restaurant to reassure him that everything was okay, and to ensure that she got out of the restaurant safely. She testified that she wanted to get away and that she needed the Appellant to let her out of the restaurant.
[45] The trial judge considered this evidence and held that it did not undermine the complainant’s credibility. He referenced the Supreme Court of Canada’s decision in R. v. A.R.J.D., 2018 SCC 6, at para. 2, where the Supreme Court warned about relying on preconceived views about how a sexual assault victim would behave. One common myth or stereotype is the myth of avoidance behaviour by sexual assault victims. The Supreme Court stated, at para. 2:
In considering the lack of evidence of the complainant’s avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law.
[46] Relying on this principle, the trial judge held that “to be critical of the complainant’s behaviour as she left the restaurant would be to fall into impermissible stereotypes”.
[47] In my view, the trial judge applied this analysis correctly in this case. He accepted the complainant’s explanation for hugging the Appellant when she left the restaurant and found that it did not undermine the credibility of her allegations. He was entitled to reach that conclusion.
[48] The Appellant argues that the hug was significant for another reason: the complainant did not mention the hug when she gave her statement to the police, and never mentioned it until she was shown the video. The trial judge did not specifically analyze the significance of this “inconsistency”.
[49] First, this is not an inconsistency. This is a detail that the complainant did not mention to the police when she gave her statement. She explained that she did not recall that detail when she was interviewed by the police. The trial judge does examine the fact that the complainant’s evidence at trial was more detailed than her statement to the police. He stated, at p. 11:
She was cross-examined on the difference in detail between her statement to police and her evidence at the trial. She replied that at the trial she was asked to provide much more detail than what she was asked to provide to police, saying she had never been asked questions in that detail before.
[50] The trial judge clearly accepted that explanation. Again, he was entitled to do so. In my view the “hug evidence” was reviewed by the trial judge, and he did provide clear reasons why he did not consider it to be significant or to undermine the complainant’s credibility.
[51] The Appellant argues that the trial judge failed to consider other post-offence conduct by the complainant that undermined her credibility. For example, the complainant testified that she continued to work at the restaurant for approximately two weeks after the January 17, 2019 incident, and stopped working there because she did not feel safe and did not want to work with the Appellant. On cross-examination, the complainant was asked whether she actually continued to work until March 6, 2019, and she answered: “I don’t know”. The Appellant contends that the trial judge “failed to address this important issue”.
[52] The Appellant contends that complainant’s explanation for leaving within two weeks was an attempt to enhance her credibility. The trial judge made no reference to this issue in his assessment of the complainant’s credibility.
[53] The record is far from clear that the complainant continued to work at the restaurant past the first couple of weeks after the incident. The Appellant pointed to no evidence to demonstrate that the complainant did work at the restaurant after the beginning of February 2019 (ie. that she actually had shifts past that date as opposed to formal termination). In any event, whether she worked for 2 weeks or 6 weeks after the incident does not strike me as a significant “inconsistency” or critical issue that had to be addressed by the trial judge. Either way, the complainant left her job after a relatively short period of time following the incident.
[54] The reasons of the trial judge did not set out every detail in the case. However, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons: R. v. R.(C.), 2010 ONCA 176, 260 O.A.C. 52, at para. 48; R. v. R.A., 2017 ONCA 714, at para. 45.
[55] This is not a case like D.H., where the Court of Appeal identified a myriad of errors by the trial judge and the appeal was allowed, not because the trial judge referenced J.J.R.D., but because of “the totality of the errors by the trial judge in failing to resolve important discrepancies” (para. 71).
[56] In this case the trial judge did provide sufficient reasons for accepting the complainant’s evidence and concluding that the Crown had proven the case beyond a reasonable doubt even though the trial judge could not point to any material flaws in the Appellant’s evidence. He correctly set out the W.(D.) framework, and, read in context, his reference to J.J.R.D. did not indicate that he departed from the W.(D.) analysis, since J.J.R.D. was itself a case about the application of the W.(D.) framework. In this case, the trial judge made it clear that the Appellant’s evidence did not leave him with a reasonable doubt, and the evidence that he did accept persuaded him of the Appellant’s guilt beyond a reasonable doubt. Reading the trial judge’s decision as a whole, I am satisfied that he was not under any misapprehension as to the correct burden and standard of proof to apply.
[57] The trial judge did not fail to resolve any critical inconsistencies in the complainant’s evidence – he found that these inconsistencies were either minor or he accepted the complainant’s explanation, findings that, as the trier of fact, he was entitled to make. The trial judge was entitled to reject the Appellant’s evidence based on his considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence: J.J.R.D, at para. 53; R. v. R.A., 2017 ONCA 714, at para. 56.
[58] For these reasons, the appeal of the conviction is dismissed.
Sentence Appeal
[59] The Appellant argues that the sentence imposed was excessive for a first time offender, and that the sentencing judge overemphasized the Appellant’s position of authority while not affording appropriate weight to factors such as the Appellant’s personal circumstances, strong community ties and positive pre-sentence report.
[60] As held in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39, 44, appellate courts are not to intervene lightly with a trial judge’s broad discretion to impose a sentence, and an error in principle only justifies intervention if it affects the fitness of the overall sentence. The standard of review applied to a sentencing decision was reaffirmed in R. v. Friesen, 2020 SCC 9, at para. 26: “[A]n appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence”:
[61] I reject this ground of appeal. The trial judge carefully reviewed the mitigating and aggravating factors relevant to sentence, and fairly rejected the Appellant’s position that he should be given a conditional sentence or intermittent sentence of 90 days. The trial judge gave appropriate weight to the principles of denunciation and deterrence, the gravity of the offence, which included forced oral penetration, and the Appellant’s position of authority over the complainant. The sentence imposed was within the appropriate range for an offence of this nature, and was a fit sentence in the circumstances.
Justice R.E. Charney
Released: June 6, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MIN SOO KIM
Appellant
REASONS FOR DECISION
Justice R.E. Charney
Released: June 6, 2022