COURT FILE NO.: CR-21-10000049-00AP
DATE: 20220623
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
WAGNER CHANG LOPEZ
A. Del Rizzo, for the Crown, Respondent
E. Dann, for Mr. Chang Lopez
HEARD: 11 April 2022
S.A.Q. AKHTAR J.
On appeal from the conviction entered on 20 August 2020 by Justice M. McLeod of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Background Facts
[1] On 10 June 2019, the complainant, and her boyfriend, E.S., went to Yonge-Dundas Square after watching the Toronto Raptors at the “Jurassic Park” area near the Air Canada Centre in downtown Toronto. Both had been drinking throughout the night. On the walk back to Yonge-Dundas Square they mingled with and spoke to other Raptors fans. At some point, the complainant noticed that E.S. had left without telling her.
[2] The complainant began to walk down Yonge Street but felt an urge to urinate. She encountered the appellant who was relieving himself in a doorway. He was accompanied by a friend named Scott. The complainant used this opportunity to urinate whilst the appellant and Scott blocked her from being seen. Subsequently, all three of them went to a nearby bar where the complainant continued to drink and conversed for the most part with Scott. The complainant sent a text message to E.S. and admitted being intoxicated and slurring her words.
[3] At their suggestion, the complainant agreed to go to another bar with the two men by taxi. She testified about being uncomfortable around Scott who she believed was making advances. When the taxi stopped at an ATM, the appellant exited to get money. The complainant testified that something happened with Scott that caused her concern. After the appellant returned, Scott went to get cash from the same machine. When he did so, the complainant left with the appellant.
[4] The complainant was drunk and testified that she did not feel confident making her way home through downtown Toronto. She and the appellant agreed to stay at a hotel with the appellant indicating he would sleep on the couch.
[5] The complainant told the court that her memory was filled with “gaps”. When she and the appellant arrived at a Super 8 hotel, they found it had no vacancies. The next thing the complainant could remember was arriving at another hotel, the Hotel Ocho, although she could not recall how they had got there. However, the hotel doors were locked and the complainant asked the appellant to order a taxi to take her home.
[6] The next thing the complainant recalled was the appellant lifting her to her feet and trying to kiss her. She testified that she did not reciprocate. As she fell to the ground the appellant pulled up her shirt and touched her breasts before placing his penis in her mouth as the complainant remained motionless. The complainant told the court she had not consented to the appellant’s conduct.
[7] The complainant’s next memory was laying in a park behind Hotel Ocho even though, once again, she could not recall how she got there. The appellant put his fingers inside her vagina and she cried. The complainant recalled the appellant pulling down her pants and underwear before attempting to penetrate her with his penis. The complainant said that during the incident she was falling in and out of consciousness.
[8] Afterwards, the complainant asked the appellant to assist her in contacting E.S. whom she texted on the appellant’s phone. When E.S. arrived, the complainant was laying on the ground. She saw E.S. speaking to the appellant and told him to call the police. She reported the incident to them the next morning.
[9] The appellant’s account of the events mirrored the complainant’s in many respects.
[10] The critical divergence took place when the parties arrived at the ATM. The appellant testified that the complainant made it clear she was attracted to him and would rather “spend time with him”. According to the appellant, he and the complainant departed in a taxi leaving Scott behind. During the ride, the complainant continued to flirt with the appellant, putting her head on his lap and kissing him when they got out. According to the appellant, the complainant suggested going to his house but the appellant declined before suggesting they go to a hotel.
[11] The first hotel they went to was fully booked so they moved on to Hotel Ocho. When they arrived, they were unable to enter and the appellant sat down against one of the hotel’s walls. The appellant said that the complainant sat between his legs and asked to use his phone. After seemingly sending a text, the complainant returned the phone and kissed the appellant before telling him “I want to suck your dick”. The appellant refused the offer but told the complainant he would get her home. However, she declined.
[12] Both walked into the park behind Hotel Ocho. The appellant testified that the complainant tried to pull him to the ground saying, “I want to fuck you”. The appellant did not respond and the complainant used his phone to call E.S. letting him know where she was. After doing so, she said, “Let’s do this” and the appellant agreed to have sex with her but could not maintain an erection.
[13] He tried to pull the complainant’s pants back up. He heard the complainant say E.S.’s name and noticed a man whom he assumed to be E.S. The appellant spoke to E.S. and offered to order a taxi. The appellant shook E.S.’s hand and left.
[14] The appellant denied having sex with the complainant or seeing her cry.
[15] E.S. also testified and confirmed that he had left Yonge-Dundas Square without telling the complainant because she had wanted to stay.
[16] When he arrived home, he realised that the complainant had not taken her phone with her. Consequently E.S. went to search for her. At some point, he received an Instagram message from the complainant sent with the appellant’s phone. He responded by calling the appellant’s number and speaking to someone who told him to “come quick”. E.S. spoke to the complainant who sounded panicked and was urging him to get “there as quickly as possible”.
[17] When he arrived at the park, he found the complainant laying on the ground with her underwear and pants around her knees. E.S. said the appellant was standing three feet away from her. According to E.S., the complainant was emotional and looked like she had been crying. The appellant told E.S. that he and the complainant had been out with a friend who had become aggressive. As a result, the appellant had taken steps to get the complainant away from him. E.S. thanked the appellant and took the complainant home.
[18] At the conclusion of the trial, the judge found the appellant guilty of sexual assault. The appellant appeals his conviction.
The Grounds of Appeal
[19] The applicant argues the following grounds of appeal:
• The trial judge misunderstood the principles of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and failed to factor in exculpatory evidence
• The trial judge misapprehended the appellant’s evidence
• The trial judge erred in his reliability assessment of the complainant’s evidence
DID THE TRIAL JUDGE MISAPPLY THE W.D. ANALYSIS?
Legal Principles
[20] In W.(D.), at pp. 757-58, Cory J. explained what is now recognised as a standard jury charge in determining whether the Crown has proven its case beyond a reasonable doubt:
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.
[21] W.D. does not simply apply to evidence given by an accused but applies to evidence given by any witness including those called by the Crown: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114; R. v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at para. 45; R. v. Fogah, 2018 ONCA 564, 362 C.C.C. (3d) 4, at paras. 51-55.
[22] In judge alone trials, “it is not necessary for a trial judge to recount the test set out in W. (D.) as if it were some form of magical incantation”: R. v. Piccinini, 2018 ONCA 433, at para. 9. What is required is that the judge, in evaluating the evidence as a whole has determined whether the Crown has discharged its burden of proving the essential elements of the offence beyond a reasonable doubt. In deciding this question, the judge’s reasons must be read as a whole.
[23] It is also settled law that a trial judge may reject the testimony of an accused “because of the cumulative force of the contrary evidence adduced by the Crown”: R. v. Hansen, 2018 ONCA 46, 140 O.R. (3d) 209, at para. 34, citing with approval, R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53.
Did the Judge Err in the Credibility Analysis?
[24] The appellant argues that the judge misunderstood the W.D. analysis and, as a consequence, failed to apply it correctly to the facts in this case.
[25] In this case the appellant argues that the trial judge’s error is evidenced by his criticism of the W.D. principles. Moreover, his erroneous understanding of what was required led to his failure to properly apply the third limb of the test. The appellant points to a lengthy set of comments by the judge over the phrase “believe the accused” which the appellant argues demonstrates that the judge did not understand the first or second limb of W.D.
[26] I must disagree.
[27] It is unfortunate that the trial judge, in his oral judgment, appeared to embark upon an unnecessary criticism of the W.D. analysis which included a discussion of the meaning of the phrase “believe the accused”. However, this did not detract from his proper interpretation and implementation of the W.D. test, when his reasons are read as a whole.
[28] I also reject the appellant’s argument that the judge’s reference to finding a totality of “reliable” evidence is a sign that the judge misunderstood his task in determining whether the Crown had proven its case beyond a reasonable doubt. Again, reading the totality of his reasons, it is clear the judge used “reliable” in place of “truthful” and “turned [his] mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns”: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at paras. 81-82.
[29] The judge did focus on the entirety of the W.D. test and not, as the appellant argues, just the first two limbs. At page 52 of his reasons, after reviewing both the complainant’s and the appellant’s evidence he wrote:
I find it impossible to place any weight on Mr. Chang Lopez’s description of [the complainant’s] actions and statements as initiating sexual contact or encouraging or coercing him into performing sexual acts upon her. I find that aspect of his testimony to be completely unreliable. To put it in the W.D. context, I do not believe it but more to the point in the assessment of the totality of the evidence in terms of proving the essential elements of the offence Mr. Chang Lopez’s testimony about recalling that [the complainant] initiated the sexual contact encouraged him to allow her to fellate him and invited him to have sex with her after ensuring that [E.S.] was coming to get her must be rejected and does not raise any reasonable doubt with respect to the issue of whether [the complainant] was consenting to sexual contact. On the totality of the evidence that is accepted, which as I say includes substantial portions of Mr. Chang Lopez’s testimony, I find that Mr. Chang Lopez initiated the kissing of [the complainant] without her consent, that he did put his penis in her mouth without her consent, that he did remove her pants and digitally penetrate her and then attempt to have vaginal intercourse as described without her consent. [Emphasis added.]
[30] For the following reasons, I also reject the appellant’s claim that the judge ignored E.S.’s “exculpatory” evidence when arriving at his verdict.
[31] First, I am not convinced that E.S. was an exculpatory witness. It is true that he testified that the appellant stayed at the scene, spoke to E.S., gave the complainant his phone to contact E.S., and offered to provide help.
[32] However, he told the court that he found the complainant laying on the ground in the dirt and; that she was in a panicked state and looked like she had been crying. He also contradicted the appellant’s evidence when he testified that the appellant had intimated another person had committed the assault and he had tried to assist the complainant. E.S. did not say that the appellant had made any comments indicating that any sexual activity had been consensual, or that the complainant had made advances to him whilst intoxicated.
[33] Secondly, the trial judge found that E.S.’s testimony was confirmatory rather than contradictory. At pp. 51-52 of his reasons, after reviewing the appellant’s account of events, he observed:
This point of departure is where the consistency between the significant elements of the narratives breaks down, where Mr. Chang Lopez moves from being a person who was present but not really engaged with [the complainant] nor her with him to being a person who he now recalls as being the object of sexual desire on her part. This then breaks down at the point at which [E.S.] enters the piece where the narrative resume general consistency. With [the complainant] in a state of emotional distress, lying in the dirt partially clothed, somewhat incoherent and apparently drunk and Mr. Chang Lopez turning her over to the care of [E.S.] and departing the scene.
[34] As the appellant acknowledges, a trial judge’s findings of credibility deserve deference: G.F., at para. 81. The judge is not required to resolve each and every issue raised to a finding of credibility: R. v. Panchal, 2022 ONCA 309, at para. 21. Here, he decided E.S.’s evidence impacted negatively rather than favourably on the appellant’s credibility. This was a call that the judge was entitled to make. I see no error or any reason to interfere with that finding.
[35] For these reasons this ground of appeal is dismissed.
Did the Trial Judge Misapprehend the Appellant’s Evidence?
[36] The appellant’s second ground of appeal centres on the trial judge’s treatment of his evidence.
[37] The appellant argues the judge treated his defence as evidence of the appellant’s interpretation of the complainant’s words and conduct. Put another way, the appellant argues that the judge approached his evidence as a defence of honest mistaken belief rather than the actual defence that the complainant consented to sexual activity.
[38] The test for a misapprehension of evidence justifying a new trial was recently summarised by Brown J. in R. v. Smith, 2021 SCC 16, 405 C.C.C. (3d) 413, at para. 2, where he observed:
Determining whether a misapprehension of evidence has caused a miscarriage of justice requires that the appellate court assess the nature and extent of the error and its significance to the verdict (R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221). It is a stringent standard, met only where the misapprehension could have affected the outcome (R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 7). While testimonial inconsistencies may be relevant when assessing a witness’s credibility and reliability, only some are of such significance that failing to consider them will meet this standard.
[39] I do not agree that any misapprehension of evidence took place in this case.
[40] The judge described the appellant’s version of events in the following way:
In Mr. Chang Lopez’s account he attributes intention to [the complainant] and he provides testimony indicative of his present recollection of what he thinks was in her mind, particularly with respect to consent and her intent to have sexual contact with him in the form of fellatio and vaginal intercourse. In his general narrative he relates us back to the point of departure from Scott, attributing to [the complainant] an intention to have some kind of sexual interaction with him expressed in comments and actions from literally the moment they get into the cab.
[41] This was a description of the appellant’s evidence, not an evidentiary finding made by the judge.
[42] What is clear is that the judge rejected the appellant’s account by stating:
On the totality of the evidence that is accepted, which as I say includes substantial portions of Mr. Chang Lopez’s testimony, I find that Mr. Chang Lopez initiated the kissing of [the complainant] without her consent, that he did put his penis in her mouth without her consent, that he did remove her pants and digitally penetrate her and then attempt to have vaginal intercourse as described without her consent. All I can say about what defence counsel described as if “forthrightness in testifying” which I think includes the appearance of honesty and frankness in the manner of testifying all I can say is that Mr. Chang Lopez may wish it was otherwise and perhaps has convinced himself that because he did not set out to have sex with this comparative stranger without her consent and that such actions are, as we might say, out of character for him that that is what should have happened but the evidence that was presented in this proceeding, that I found to be reliable, makes out the essential elements of the charges of sexual assault beyond any reasonable doubt. [Emphasis added.]
[43] In other words, the trial judge did not misapprehend the appellant’s evidence as being a defence of honest mistaken belief; he found it to be untruthful.
[44] For these reasons, I would not give effect to this ground of appeal.
Did the Trial Judge Err in Assessing the Complainant’s Reliability?
[45] The appellant argues that the trial judge erred in his assessment of the complainant’s reliability by failing to consider her inability to recall matters at the time of the offence and using his evidence as a form of corroboration to alleviate any reliability issues.
[46] I disagree.
[47] In G.F., at paras. 81-82, the Court set out the methods by which a trier of fact should assess the credibility of witnesses:
[A] trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon, at para. 20:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.
Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. [Citations omitted.]
[48] In my view, the trial judge followed these legal principles in concluding the complainant was a reliable witness. He took into account the complainant’s level of intoxication and acknowledged that, at certain points, the complainant’s recollection may have been impaired by the consumption of alcohol and passage of time.
[49] Nor did the judge find, as the appellant argues in his factum, “the complainant’s evidence about ‘the constituent elements of the offences’ was reliable, being ‘strengthened by the support offered from the totality of the evidence, including the testimony of Mr. Chang Lopez’”.
[50] This is a mischaracterisation of the judge’s reasons. In fact, he wrote that the “essential elements of [the complainant’s] testimony” was strengthened by the “totality of the evidence”. That “totality” included not just the appellant’s testimony but also that of E.S.
[51] In other words, the judge compared the complainant’s evidence to that of the appellant and found that many of the details matched. There was nothing improper in doing so. The judge was entitled to assess the complainant’s reliability against the entire evidentiary backdrop in order to decide whether the complainant could actually recall the events of 10/11 June 2019.
[52] By using this “totality” the judge considered the gaps in the complainant’s memory but found that any concerns were attenuated by the fact that the appellant and E.S. provided the same or similar evidence both before and after the sexual assault was alleged to have occurred. The critical difference was whether the complainant consented to the sexual activity.
[53] As already stated, I see nothing wrong in the judge’s approach.
[54] For these reasons, the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 23 June 2022
COURT FILE NO.: CR-21-10000049-00AP
DATE: 20220623
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
WAGNER CHANG LOPEZ
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.