COURT FILE NO.: CV-20-1544AP
DATE: 20220125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
C.G.
Appellant
– and –
Her Majesty the Queen
Respondent
E. Boeve, for the Appellant
M. Tait, for the Respondent
HEARD: December 23, 2021
McCARTHY J.
reasons for judgment on appeal
The Appeal
[1] This is an appeal from a conviction for sexual assault entered by the Honourable Peter G. West of the Ontario Court of Justice (“the trial judge”) in reasons delivered on March 5, 2020.
Grounds of Appeal
[2] There were originally six grounds of appeal. The Appellant abandoned the sixth ground pertaining to the trial judge’s treatment of the defence of mistaken belief in consent. There remain the following five grounds of appeal:
The trial judge’s conduct gave rise to a reasonable apprehension of bias;
The trial judge erred in holding that the twin myths served to bar defence counsel from asking the Complainant questions about why she remained in a relationship with the Appellant and the reasons for her delayed reporting of the incident;
The trial judge erred by applying uneven standards to his assessment of the respective credibility of the Appellant and the Complainant;
The trial judge misapprehended the evidence; and
The trial judge erred in finding that the Complainant had no motive to lie.
Standard of Review
[3] The standard of review for an appellate court on findings of fact is that of palpable and overriding error. On questions of law, the standard of review is correctness. On mixed findings of fact and law, the standard of review lies along a spectrum. However, a trial judge must correctly apply the facts that she does find to the correct legal principle. See: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
Factual Background
[4] The trial evidence established that the Complainant and the Appellant met in 2012. After a period of dating, there followed a span of separation. The parties then rekindled their relationship with the Complainant becoming pregnant in April 2017. The Complainant moved into the Appellant’s home in October 2017 and their daughter was born on [...], 2018
[5] The birth was difficult and left the Complainant in pain for some time afterward. The Appellant pestered the Complainant to have sexual intercourse with him in the weeks following the birth of their child. After refusing for a time, the Complainant acceded to the Appellant’s request. When the parties engaged in that intercourse, the Complainant immediately asked the Appellant to stop because she was in pain. The Appellant did not stop but continued for some number of minutes until he ejaculated. The trial judge convicted the Appellant of sexual assault. This sexual encounter between the Appellant and the Complainant is hereinafter referred to as “the incident.”
[6] Prior to trial, the Appellant pled guilty to a charge of forging the Complainant’s signature on a bank document. The Appellant also faced a charge of common assault arising out of an argument during which the Appellant had allegedly grabbed the Complainant’s arm in a forceful manner. The trial judge acquitted the Appellant of the common assault charge on the basis of reasonable doubt.
Discussion
1) Reasonable Apprehension of Bias
[7] The Appellant submits that interventions by the trial judge during the Crown’s cross-examination of the Appellant regarding the Complainant’s knowledge of the line of credit gave rise to a reasonable apprehension of bias in this case.
[8] The onus is on the party alleging bias. The threshold is a high one. There is a strong presumption of judicial impartiality which is not easy to displace. Serious and cogent evidence of bias is required: see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 59, 76.
[9] A reasonable apprehension of bias arises if a reasonable person, viewing the matter realistically and practically and having thought the matter through, would conclude that the decision-maker consciously or unconsciously did not decide an issue fairly: see R v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 105.
[10] The trial judge did intervene to encourage the Crown to move on to another area; however, this was after extensive cross-examination on the line of credit issue had taken place. The trial judge reviewed and commented on the evidence he had already heard on that issue and suggested to the parties that they remain focused on the main issues to be decided. There was nothing improper in that. The trial judge was simply managing the trial process by ensuring that cross-examination remained measured, relevant, and focused. There is no indication that the trial judge was prejudging any live issue. There were other occasions where the trial judge intervened during the trial to ascertain the relevance of certain pieces of evidence. He was entitled to do so. Moreover, the entirety of the proceedings, viewed as a whole, provide no basis for any finding that there could be an apprehension of bias by a reasonable person. The trial judge did not impede the introduction of any evidence which had not already been heard by the court. I find that no reasonable person would be left with the impression that the trial judge was biased or partial towards one side or the other.
[11] I would not give effect to this ground of appeal.
2) The Twin Myths
[12] The trial judge alluded to the ‘twin myths’ during the defence cross-examination of the Complainant about the relationship she had with her parents. The trial judge curbed that line of questioning, suggesting to counsel that questioning a complainant on why he/she did not complain about a sexual assault was based on reasoning grounded in the prohibited twin myths.[^1]
[13] There is little doubt that the trial judge misdescribed the twin myths in his exchange with counsel. These twin myths were explained by the Supreme Court of Canada in R v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 604: “the fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she has consented to intercourse with the accused. Nor does it make her a liar.” The questions asked by defence counsel were not about prior sexual conduct and therefore did not engage the twin myths.
[14] The Appellant argues that, aside from this unwarranted intervention rendering the trial unfair, the trial judge committed an error in law in concluding that these questions were improper because they crossed the line into the realm of the “twin myths.” The Complainant should have been made to answer the questions about these issues.
[15] I am unable to conclude that the trial judge committed a reversible error in law or that this intervention resulted in an unfair trial. One, when the court did finally intervene in respect of that line of questioning, it was the third time that the issue had been broached with the witness; on the previous two occasions there had been neither a Crown objection nor any judicial intervention. The questions and answers made it into evidence. Two, the court invited defence counsel to provide it with case law in support of the position that evidence of delayed reporting or non-reporting in domestic violence cases was relevant or deserving of weight. Defence counsel neglected or declined to do so. Three, courts have repeatedly held that a delay in reporting a sexual assault to either police or family/friends cannot, on its own, support a finding that a complainant is less believable: see R v. Ennis-Taylor, 2017 ONSC 5797, at para. 50. Four, courts have oft stressed that limited weight should be placed on the fact that children or adults have stayed in abusive relationships beyond the point where logic or common sense might have prompted a victim to leave: see R v. T.G., 2018 ONSC 3847, [2018] O.J. No. 3293, at para. 113. Finally, while the trial judge was under the mistaken belief that the line of questioning might have run afoul of the twin myths described in Seaboyer, the fact remains that he had a clear basis to intervene to curtail the questioning because the evidence had already been received and was, according to established jurisprudence, of limited relevance.
[16] I am unable to give effect to this ground of appeal.
3) Was there an Uneven Assessment of Credibility?
[17] The Appellant submits that the trial judge applied different standards to assess the respective credibility and reliability of the evidence received from the Complainant and the Appellant.
[18] Specifically, it was the trial judge’s findings on the Complainant’s inaccuracies and inconsistencies which grounded his reasonable doubt on the common assault charge. Yet, the trial judge failed to even mention these same inaccuracies and inconsistencies in relation to the remaining counts before the court. Inexplicably, the court found the Complainant to be a forthright, strong and credible witness who was calm and measured.
[19] Conversely, the trial judge was highly critical of the Appellant’s evidence, citing his inability to recall the date of the incident and his uncertainty about when he requested sex from the Complainant. The trial judge was not similarly critical of the Complainant for being unable recall the specific date of the incident, how she became undressed or any other events occurring on the day of the incident.
[20] I am unable to give effect to this ground of appeal.
[21] An appellate court should only interfere with a trial judge’s findings of fact if they are clearly wrong, unreasonable, or unsupported by the evidence. Findings of fact and credibility are entitled to great deference. Having enjoyed the advantage of seeing and hearing the evidence of witnesses, the trial judge was best placed to assess credibility and making findings from the evidence. As well, the trial judge set out numerous reasons for disbelieving the Appellant. Those reasons were thorough and fulsome. A trial judge is entitled to accept some, none, or all a particular witness’s testimony. It is not necessary for a trial judge to comment upon or making findings in respect of every piece of evidence that a court hears. Reasons must be sufficient; reasons must flow from the evidence; but they need not be exhaustive.
4) Did the Trial Judge Misapprehend the Evidence?
[22] The Appellant points to two areas of evidence which the trial judge misapprehended; it argues that those two areas were material to the trial judge’s findings and undergirded his decision. This misapprehension of evidence was therefore critical to the conviction for sexual assault.
[23] The trial judge relied on text messages sent by the Appellant to the Complainant to find that the Appellant had a predilection and desire for sex. The evidence at trial included an exhibit of text message exchanges from July 2018 which was several months after the incident. The trial judge, however, found that the July 2018 text messages were exchanged prior to the incident -- seven to ten weeks after the child was born in [...] 2018. The trial judge also relied upon the text messages in his credibility findings about the Appellant: he found that the predilection and desire for sex evident in the text messages was completely inconsistent with the Appellant’s evidence in chief that he was concerned about the Complainant’s well-being following the birth of their child.
[24] The Appellant also contends that the trial judge materially misapprehended the evidence with respect to the Appellant’s testimony about when he asked to have sexual relations with the Complainant.
[25] Misapprehension of the evidence must be a substantial part of the reasoning process to attract appellate interference. The Ontario Court of Appeal has established that an appellant must meet a stringent standard by establishing some link or nexus between the alleged misapprehension of the evidence and core elements of the judge’s reasoning process that result in the conviction: see R v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (Ont. C.A.), 22 O.R. (3d) 514, at pp. 538-541.
[26] The Appellant is unable to meet that stringent test. The trial judge found as a fact, as he was entitled to, that the text messages were exchanged seven to ten weeks after the Complainant gave birth. He gave detailed reasons why: in order for them to make sense, they had to have been exchanged prior to the incident. Those findings are entitled to deference. A detailed review of the transcript also reveals that there was some confusion as to what date would be assigned to the collection of text message exchanges which populated the record and which were compiled and marked as exhibits, with Exhibit 6 being titled “Text Message Exchange, July, 2018.” It is also quite clear from the transcript that the Appellant and Complainant were having numerous and ongoing conversations via text from January 2018 onward.
[27] I agree with the Crown that even if the trial judge misapprehended the dates of these text messages, their timing was not material to his reasoning, that reasoning being largely based on what he found to be the contrast between the Appellant’s evidence in chief and the content of those messages. The dates when the text exchanges were exchanged did not form an essential part of the trial judge’s reasons.
[28] Nor did the question of the timing of the Appellant’s request for sex with the Complainant weigh heavily in the trial judge’s ultimate findings. At paragraph 61 of the reasons for judgment, the trial judge found that, during cross-examination, the Appellant had been evasive and had attempted to deflect his evidence in chief on that issue. A trial judge is best placed, indeed uniquely placed, to make such a finding. Moreover, a careful review of the reasons, and in particular paragraphs 50 and 51, make it abundantly clear that the trial judge found internal inconsistencies in the evidence of the Appellant in respect of the very content of the discussion between the parties about sexual intercourse.
[29] The judgment, read as a whole, demonstrates that the trial judge had a firm grasp of the evidence. I can find no material misapprehension of the evidence nor any palpable or overriding error on his findings of fact.
[30] I would not give effect to this ground of appeal.
5) The Complainant’s Motive to Lie
[31] The Appellant contends that the trial judge’s finding that the Complainant had no motive to lie to the police about the incident was completely unreasonable. At the time the complaint was made, the parties were in a dispute about custody and access for the child; they were also in a dispute about allegedly forged documents for a line of credit; the Complainant was fearful that the Appellant would attempt to kidnap the child; and the Complainant was concerned that the Appellant might be in possession of evidence that she had assaulted him.
[32] I am unable to give effect to this ground of appeal.
[33] The trial judge did not ignore the surrounding circumstances in which the Complainant went to the police; he alluded to them in the body of his judgment. The Complainant also gave evidence that those circumstances did not play a role in her decision to report the incident. The trial judge accepted that evidence as he was entitled to do. Moreover, he did so as part of his overall conclusion that the Complainant was credible, and that her evidence was reliable. At paragraph 48 of his reasons, the trial judge stated as follows:
It was my view from observing and listening to Ms. P.’s evidence that there was no basis or foundation to the defence allegation that she had a motive to lie and fabricate false allegations against Mr. C.G..
[34] Findings of credibility by a trial judge are entitled to deference. An appellate court should not intervene absent a palpable and overriding error: see R v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11.
[35] I can find no palpable or overriding error in the trial judge’s finding that the Complainant had no motive to make false accusations.
[36] Even if I were to find that this finding constituted a palpable or overriding error, it is apparent that it formed only one component of the trial judge’s broad assessment of the Complainant’s overall evidence. The trial judge gave ample reasons throughout his reasons why he accepted her evidence and found her to be a credible and reliable witness.
Disposition
[37] For the reasons set out above, there are no grounds to disturb the findings or conclusions of the trial judge. The appeal is therefore dismissed.
McCARTHY J.
Released: January 25, 2022
[^1]: See page 28-35 of the transcript of proceedings from December 19, 2019.