Her Majesty the Queen v. Lloyd 2022 ONSC 7400

COURT FILE NO.: 19-0936

DATE: September 9,2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

RICHARD LLOYD

Appellant

Tasha Bobrovitz, for the Respondent

David Landesman, for the Appellant

Reasons for decision

JOHNSTON J.

1The appellant, Mr. Richard Lloyd was convicted of one count of sexual assault contrary to Section 271 of the Criminal Code of Canada in the Ontario Court of Justice at Brockville, on February 18, 2021. On September 16, 2021, Mr. Lloyd was sentenced by Justice Alison Wheeler to 15 months incarceration.

2The Appellant appeals both conviction and sentence.

3A number of grounds for appeal were argued, including:

Unreasonable Findings and Insufficient Reasons, Insufficient Consideration of Reliability of the complainant, Reversal of the Onus: Closer Scrutiny of the Appellant than of Crown witnesses, error in finding the alleged touching was under the complainant’s clothing vs. over, failure to provide reasons for reconciling differences in the transcript, and sentence was unfit.

4For the Reasons that follow, I find a new trial is necessary and conclude the Trial Judge provided insufficient reasons for concluding in her Reasons for conviction that the accused touched the complainant under her clothing and therefore his actions were intentional.

Background:

5The Appellant was charged with sexual assault upon the complainant JPL, alleged to have occurred July 11, 2014, at a campground in the Thousand Islands. JPL had just turned 10 years of age at the time of the incident. The complainant testified and at trial she was 16 years of age.

6In the summer of 2014, just after JPL turned ten, the Appellant joined JPL’s family at a campground in the Thousand Islands. The Appellant and the complainant’s mother, SP, were old friends. The Appellant joined JPL, SP, her husband, and children at the campground. JPL and her sister slept together on a bed in the middle of the camping trailer. Their stepbrother J slept in a curtained off area on one side. SP and her husband had a similar sleeping area on the other side of the trailer.

7The children went to bed, the adults stayed up drinking alcohol. When the adults went to bed for the night, the Appellant got into bed with the complainant and her sister. The complainant testified that she woke up suddenly and the Appellant was touching her vagina under her clothes. (although in another part of the trial transcript, it states over the clothing) At first, she did not think it was real. The Appellant was spooning her from behind and his arm was over her body. JPL moved away and pretended that she was still asleep. The Appellant testified and stated he did sleep in the same bed as the complainant and her sister but denied that he touched her, intentionally or otherwise.

8The trial proceeded over a number of days. On the day of counsel’s closing submissions an English transcript was available. In her closing submissions defence counsel argued the complainant was inconsistent on several points in her evidence. Included in the inconsistencies was the fact that the transcript stated at two different pages that the complainant alleged the touching of her vagina by the appellant occurred under the clothing and at another point, said the touching was “over” the clothing.

9During submissions, the Trial Judge intervened and addressed the discrepancies at page 5 of the transcript:

….it’s a fairly stark inconsistency, the over the clothes and under the clothes and I reviewed my trial notes which did not reflect that. And I so I went back to the – and listened to the audio tape and reviewed the transcriptionist’s – well, not the transcriptionist, the court reporter’s notes. As you know, notes are made as the courtroom, court reporter is listening, and those notes did not reflect the inconsistency.

The audio is difficult to hear….

10On page 6 of the transcript, Crown counsel states: “I was, like, startled, because I – I mean, I certainly don’t recall it, her making that statement about over the clothes.”

11Next, on Page 7 of the transcript the Trial Judge states: “There must be some accord about what process should be undertaken to address any disagreement.” Then on Page 35 of the transcript the Trial Judge states: “I just want to close off this issue about the accuracy of the transcript, who how do you want to proceed? I want to tell you the recording is very difficult to hear.”

12“And it’s also, we have both languages, so I have pretty good French comprehension, so I’s not be- I think its an inappropriate way to resolve it, to say, well – I feel that I’m being put in an awkward position there. I’d rather that everybody had first- hand knowledge, and I’m wondering if it is possible for counsel to obtain a copy of the recording and listen to it?”

13The Crown responses on Page 36:

We can do that, At the end of the day, though, Your Honour, if in fact it turns out that we can’t hear her, it is, in my submission, it’s Your Honour’s recollection ultimately, even though it is putting you on the spot…

14Defence counsel agrees with the Crown, “ultimately, it’s what your recollection is.”

15The Court then agrees to order a transcript of pages 18 to 20 of the complainant’s evidence, that contains both English and French versions.

16There are no further submissions on this point from counsel. In her reasons for conviction, the Trial Judge states on Page 1 of the transcript: “… I find that the touching had to have been intentional given that it was under the clothing. I find Mr. Lloyd guilty of sexual assault.” The Trial Judge also provided written Reasons and at Paragraph 87 wrote: “Furthermore, I find that the touching had to have been intentional given that it was under JPL’s clothing.”

17In her Reasons for Sentence, the Trial Judge reversed the finding (or made a mistake) and on Page 1 stated: “Mr. Lloyd touched the complainant’s vagina over her clothes”

Analysis:

18The issue of whether the complainant was touched over her clothing or under her clothing was of great significance to the Trial Judges’ ultimate finding of guilt. Presumably the Trial Judge felt that if the touching was on the complainant’s vagina, under her clothing the only conclusion that could be drawn was the Appellant intended to touch her, as opposed to accidentally touching her over the clothing while asleep.

19The offence of sexual assault was allegedly committed when the Appellant touched the complainant’s vagina once, very briefly while they were both in bed. She testified she had been asleep and awoke to the touching, then she moved away closer to her sister. In cross examination at Page 17 of the trial transcript the complainant agreed that her recollection was that the touching was a matter of a second or two. The complainant was never asked whether she was aware whether the Appellant was awake or asleep. There is a complete lack of evidence on this issue.

20The Trial Judge provided no reasons or explanation as to how she resolved the apparent discrepancy in the original English version of the transcript. Clearly for the purpose of finding Guilt, the Trial Judge determined the touching was under the clothing. It is to say the least problematic that on a subsequent description, the Trial Judge at the Sentencing hearing states the touching was “over the clothing”. There is no explanation for this finding.

21On Appeal, Crown counsel argues the Trial Judge for purposes of conviction checked her own notes, the notes of the court reporter and the French/ English transcript of the portion in dispute and must have found that the original transcript was in error and concluded that the complainant never testified she had been touched on her vagina over her clothing. Crown counsel argues the Trial Judge simply made a mistake later when she wrote the touching was over the clothing.

22With respect to the Trial Judge and the Crown, it is not clear on the Record what the finding of fact was on the critical issue of whether the Appellant committed the assault by touching over or under her clothing. There is no analysis by the Trial Judge as to why she concluded the Appellant intentionally touched the complainant, aside from the possible inference I cited earlier. Of course, the Crown bears the onus beyond a reasonable doubt to prove that the Accused not only touched the complainant, that it was for a sexual purpose, and he did do so intentionally.

23The Trial Judge’s statement on sentencing that the touching was over the clothing compounds the confusion that existed at trial and in the English transcript.

24In all the circumstances a new trial is required. The conviction is set aside, a new trial is ordered. Given the finding I need not deal with the remaining alleged errors.

Justice JM Johnston ‘virtual signature_______________

The Honourable Mr. Justice J. M. Johnston