COURT FILE NO.: CR-21-50000044-00AP

DATE: 20220912

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

HARVEY JOSEPH

Appellant

Frank Schembri, for the Crown, Respondent

Michael Hayworth, for Harvey Joseph, Appellant

HEARD: June 17, 2022

R.F. GOLDSTEIN J.

1Some kind of encounter happened between Mr. Joseph and the complainant, E.C., on the night of November 23-24, 2018. E.C. testified that the complainant sexually touched her without her consent after a bout of drinking and smoking marijuana. Mr. Joseph testified that he touched E.C. in a sexual manner but that it was consensual.

2The trial judge, Mr. Justice Cole of the Ontario Court of Justice, accepted the complainant’s evidence. He rejected Mr. Joseph’s evidence. He convicted Mr. Joseph of sexual assault. In doing so, he stated that Mr. Joseph had “tailored his evidence… to the case that he knew he had to meet.” Unfortunately, that was an error of law. For the reasons that follow, Mr. Joseph’s appeal is allowed and a new trial ordered.

FACTS

Facts

3E.C. testified that she and Mr. Joseph were “associates”. The met in 2018. They had mutual friends and had met at various neighbourhood parties. She did not spend much time with him. He provided her with cigarettes and alcohol. During the evening of November 23-24, 2018 they got together. The met in the parking lot at a plaza at Weston Road and Lawrence in Toronto. They met at around 11:00 pm or 12:00 am. She was drinking. She fell asleep in Mr. Joseph’s car at about 2:00 am. She testified that she woke up at about 4:00 am. Her tights and underwear were around her ankles and her seat was reclined. Mr. Joseph’s pants were unzipped. Mr. Joseph admitted that he had touched her clitoris but did not penetrate her.

4Mr. Joseph testified that he and the complainant knew each other well. At around 2:00 am on November 24, 2018 he and E.C. were in his car to smoke marijuana. E.C. started rubbing his hand. He kissed her, but not on the mouth. He had contracted “something on my mouth” from another female. He touched her breasts but the sexual contact did not go further. He denied sexually assaulting E.C.

THE REASONS OF THE TRIAL JUDGE

The Reasons of the Trial Judge

5The trial judge started with the evidence of Mr. Joseph. He instructed himself in accordance with R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. He properly set out the test. The trial judge concluded:

Mr. Joseph is an old fox. He knows what is going on here. In my view, he has tailored his evidence, very clearly, to the case he knew he had to meet.

6The trial judge stated that his story about “consensual sexual contact” was nonsense and did not have the ring of truth. He then stated that Mr. Joseph “gave me some nonsense about how he did not want to kiss her because something about he had had a previous bad experience, which he may or may not have contracted some sort of disease, which I did not fully follow.” The trial judge then gave a further summary of Mr. Joseph’s evidence about kissing. He then stated: “I think that was clearly designed to forestall any suggestion that a sexual assault had taken place.”

7The trial judge found that the complainant’s evidence was straightforward and believable, as was her mother’s. He convicted Mr. Joseph. He subsequently sentenced Mr. Joseph to six months incarceration.

ISSUES AND ANALYSIS

Issues and Analysis

8Mr. Hayworth, for Mr. Joseph, raises two issues. He first argues that the trial judge reversed the burden of proof, thereby erring in his credibility analysis. As part of that error, the trial judge applied uneven scrutiny to the testimony of the complainant and Mr. Joseph. Mr. Hayworth’s second argument is that the trial judge failed to provide sufficient reasons.

9The trial judge stated that Mr. Joseph – an “old fox” – had tailored his evidence to meet the Crown’s case. That is usually, although not always an error of law. Regrettably, however, the trial judge did not explain how he got to his conclusion. In the circumstances of this case, it was incumbent upon him to explain why he found that Mr. Joseph had tailored his evidence. He did not do that.

10Trial judges are owed deference to their credibility findings. An appellate court should not overturn those findings unless there has been a palpable and over-riding error: R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17. As the Supreme Court of Canada said in R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51 at para. 54:

An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge's perceptions of the facts… "in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected". It is true that deficient reasons may cloak a palpable and overriding error, requiring appellate intervention. But the appellate court's point of departure should be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law.

11In R. v. Cresswell, 2009 ONCA 95, the Court of Appeal noted that “credibility findings are often difficult to explain” which is why they are the “paradigm case for deference.” The Court stated at para. 14:

The Supreme Court of Canada has directed that intervention by appellate courts will be "rare" and that reasons for credibility findings need not consider or answer each and every argument or each and every piece of evidence…

12A trial judge may not make an adverse finding of credibility based on the accused tailoring or structuring his or her evidence to meet the case. That reverses the burden of proof and creates a “constitutional trap”. There is a very long line of authority on this point.

13Most recently, in R. v. C.T., 2022 ONCA 163, the trial judge in a sexual assault case found the accused not to be credible when he repeatedly found that the accused had tailored his testimony to fit “the evidence of which he was aware” or “to the disclosure he had received.” As the Court stated at para. 1 of that case:

It is an error of law for a trial judge to discount the credibility of an accused's evidence on the basis that it was tailored to fit Crown disclosure, or evidence or argument heard in court prior to the accused testifying. Drawing the inference that advance notice of the case against the accused has allowed the tailoring of evidence and thus made it suspect, though a natural temptation, is impermissible. It would create a constitutional trap, turning the right to be present at trial under s. 650(1) of the Criminal Code, R.S.C. 1985, c. C-46 and the rights to full answer and defence under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms against the accused…

14In R. v. Jorgge, 2013 ONCA 485, the trial judge also stated that the accused had “tailored” his evidence to fit arguments on a voir dire regarding the admissibility of a statement. Laskin J.A. stated at paras. 12-13:

There is a natural temptation to reason as the trial judge did in this case. But this reasoning was improper because it subverted the appellant's right to be present at his trial. Under s. 650(1) of the Criminal Code, accused persons have a statutory right, indeed an obligation, to be present at their trial. Section 650(1) is grounded in an accused's right to a fair trial and right to make full answer and defence, which are now guaranteed by ss.7 and 11(d) of the Canadian Charter of Rights and Freedoms: see R. v. Laws(1998), 1998 7157 (ON CA), 41 O.R. (3d) 499 (Ont. C.A.), at p. 521; R. v. Czuczman(1986), 1986 2714 (ON CA), 54 O.R. (2d) 574 (Ont. C.A.), at pp. 576 -577.

Yet in her assessment of the appellant's credibility, the trial judge turned the appellant's right to be present at his trial against him. The trial judge was entitled to consider the inconsistencies between the appellant's statement to the police and his testimony at trial. She was not, however, entitled to attribute those inconsistencies to his presence at the voir dire.

15See also: R. v. White(1999), 1999 3695 (ON CA), 42 O.R. (3d) 760 (Ont. C.A.); R. v. Schell (2000, 2000 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.); and R. v. Thain, 2009 ONCA 223, 243 .C.C.C. (3d) 230 (Ont. C.A.), all relied upon by Laskin J.A. in Jorgge and cited in C.T.

16In White at para. 20 Doherty J.A. noted that even though it may be quite logical and natural to find that a person had tailored his or her evidence based on disclosure or the case to be met, it is still improper to use it against an accused person:

The line of questioning set out above seems calculated to suggest to the jury that the appellant's evidence was somehow suspect because he had received full disclosure and had not been subject to cross-examination prior to choosing to testify at trial. Not only are the suggestions improper, they are potentially prejudicial. As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. Where any such suggestion seeps into the cross-examination of an accused, it must be eradicated by the trial judge.

17Of course, the rule is not absolute. As Doherty JA. Went on to state in White:

I do not intend to suggest that every line of cross-examination involving reference to disclosure is improper. Sometimes, it will be necessary for the Crown to establish that an accused received disclosure as a step in a legitimate line of cross-examination. For example, the appellant had referred to telephone records of calls between himself and the complainant in the course of his examination-in-chief. He had used those phone calls to assist him in placing the times and dates of certain meetings with the complainant. In cross-examination, Crown counsel brought out the fact that the appellant had full access to those records before he testified. This was proper cross-examination intended to show that the appellant was aware of the contents of the phone records before giving his evidence and that any suggestion that the records confirmed his testimony should be considered in that light.

18See also: R. v. Fraser, 2021 BCCA 432.

19In R. v. Marshall (2005), 2005 30051 (ON CA), 200 C.C.C. (3d) 179, 77 O.R. (3d) 81 (Ont.C.A.), the accused and the deceased were both drug dealers. The Crown theory was that the accused murdered the deceased as a result of a disagreement over their joint drug business. The Crown theory was that the accused and deceased had driven together from Montreal to Toronto in a jeep owned by the accused’s girlfriend. The accused had then murdered the deceased in that jeep. In his statements to the police the accused admitted that he had driven to Toronto in the jeep with the deceased. The defence opening, however, was quite different: counsel stated that the accused had not, in fact, travelled to Toronto in the jeep with the deceased. During the Crown’s case defence counsel had not put that version to the relevant witnesses. Critical evidence on the point was contained in cell phone records. The Crown theory was that the accused had concocted an alibi – that he had not been in the jeep – based on the use of the records. The Crown sought permission from the trial judge to cross-examine the accused on that point. The trial judge agreed and also provided a limiting instruction to the jury. Borins J.A., speaking of the Court of Appeal, found that the case fell into the exception outlined by Doherty J.A. in White. The conviction for first degree murder was upheld.

20The Crown relies on R. v. Quartey, 2018 ABCA 12, 43 C.R. (7^th) 359 (Alta.C.A.). In that case, the accused was convicted of sexual assault. The issues in the case were whether the trial judge had applied uneven scrutiny to the evidence; shifted the burden of proof; and relied on stereotypical assumptions. The trial judge, in his reasons, also stated that “his evidence is insincere, concocted, and unbelievable; that it was structured clearly to meet the allegations he was facing. I reject it in its entirety in relation to the sexual conduct between the two of them.” The majority of the Court of Appeal mentioned this statement in passing but did not specifically advert to whether this comment was an error. Rather, the majority noted that the trial judge’s reasons had to be read as a whole, in context, and not microscopically examined. The majority noted that reasons must be read as a whole to determine whether there has been reversible error: Gagnon, at para. 20; R. v. Morrissey (1995) 1995 3498 (ON CA), 97 C.C.C. (3d) 193, 222 O.R. (3d) 514 at para. 28. The majority determined that the reasons as a whole did not disclose reversible error. The dissenting opinion did not deal with this issue.

21The Supreme Court of Canada upheld the majority decision: R. v. Quartey, [2018] 3 S.C.R. 687, 2018 SCC 59. In a very short three-paragraph judgment, the Court did not avert to the specific “tailoring” error. The court simply rejected the appellant’s arguments.

22Crown counsel argues that the conclusion to be drawn from Quartey is that where there is a basis to believe that the accused’s testimony is rehearsed or scripted, it is acceptable to cross-examine or for a trier of fact to take that into account. Where the trier of fact rejects the testimony because the accused has asserted his constitutional rights, it is an error of law.

23Crown counsel argues that it is the former that occurred in this case. Respectfully, I cannot agree. When I apply the functional approach to the reasons it is simply unclear how the trial judge concluded that Mr. Joseph tailored his evidence to the case he knew he had to meet. There was no cross-examination on the point. There were no submissions on the point. The trial judge did not explain why he drew that conclusion. A trial judge’s reasons must facilitate meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. As Binnie J. stated for the Supreme Court at para. 28: “The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error.” Moreover, as Laskin J.A. noted in R. v. Y.M., 2004 39045 (ON CA), [2004] O.J. No. 2001, 71 O.R. (3d) 388, 186 C.C.C. (3d) 247 at para. 23: “Sheppard warns against conclusory reasons, that is, conclusions without explanations for them.”

24Regrettably, that is what occurred here. The trial judge made a conclusory comment without explanation. The reasons simply do not disclose whether the trial judge’s “tailoring” comment falls into the general category of impermissible comment, or whether it falls into the exception. Given the lack of cross-examination or submissions on the point, there is nothing in the record that facilitates appellate review.

25Unfortunately, I must infer that the trial judge erred in law when he stated that Mr. Joseph had tailored his evidence to the case he had to meet. The conviction cannot stand. I do not need to deal with any of the other issues raised by Mr. Joseph’s counsel.

DISPOSITION

Disposition

26The appeal is allowed, and a new trial is ordered. There is no need to deal with the sentence appeal.

R.F. Goldstein J.