Court File and Parties

COURT FILE NO.: CR-21-0008-00AP DATE: 20230214 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. A.I.

BEFORE: Justice J.C. Corkery

COUNSEL: Jennifer Armenise for the Respondent James Lockyer, for the Appellant

HEARD: June 20, 2022

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.

Endorsement

[On appeal from the Decision of Justice Dawson of the Ontario Court of Justice dated February 25, 2020]

JUSTICE J.C. Corkery

[1] On February 25, 2020, the Appellant was convicted of one count of assault and three counts of sexual assault. He received a six-month conditional sentence and probation. He appeals his convictions. He asks that his convictions be quashed and a new trial ordered.

[2] The Appellant was charged with four counts of sexual assault on his sister-in-law:

1. On August 29, 2018, he was alleged to have rubbed her leg.
2. On September 13, 2018, he was alleged to have kissed her.
3. On September 15, 2018, he was alleged to have grabbed her breasts.
4. On September 23, 2018, he was alleged to have grabbed her breasts and kissed her.

[3] The complainant alleged that the acts took place without her consent. She initially sought a peace bond against the Appellant. A month later, she asked that criminal proceedings be commenced. The Appellant testified in his defence and denied all allegations of sexual assault. His testimony was supported on two of the counts by his wife, counts 3 and 4.

[4] In her reasons, the trial judge accepted the complainant’s evidence as credible and used this finding as the basis to reject the Appellant’s evidence. She convicted him of the lesser offence of assault, on count one and convicted him of sexual assault on the remaining counts.

[5] The Appellant raises three grounds of appeal:

1. The trial judge misapplied the rule in Browne v. Dunn.
2. The trial judge misapprehended the testimony of the Appellant’s wife.
3. The trial judge misapprehended the evidence relating to a text message sent by the Appellant to complainant’s husband.

The Evidence at Trial

[6] At the time of the allegations, the Appellant lived with his wife and two children. The complainant lived across the street from the Appellant with her husband and two children. The two families were very close and saw each other almost every day. The children spent time together at both homes.

[7] The complainant and her husband were struggling financially. Her husband was upset with her for exhausting their line of credit. The complainant had remained on unpaid leave from her work as a teacher after maternity benefits ended. Even when she returned to work, she and her husband were having trouble covering their expenses. The complainant discussed her financial issues with the Appellant and his wife. She called and texted the Appellant multiple times about them. She described him as a sympathetic ear. According to the Appellant, she discussed with him that she was considering leaving her husband which he advised against.

The first count

[8] The complainant testified that on Wednesday, August 29, 2018, the Appellant drove her to a cervical cancer screening appointment. On the way home, the Appellant grabbed her left hand with his right hand, moved her hand to the shift knob, and then moved his hand to her left thigh. When it was suggested to her that the Appellant moved her hand from the shift knob to her leg, and was holding her hand over her leg, she was unable to recall whether that was what had happened. The Appellant rubbed her leg for the remainder of the 15-minute drive. She felt uncomfortable but did not say anything, and she kept moving her leg and body away from the Appellant. The Appellant responded by stretching his arm further and continuing to rub her leg.

[9] The Appellant testified that he held the complainant’s hand while driving home. He said it was to comfort her. She had been emotional on the way to the cancer screening appointment. After the appointment she continued to be anxious. He only held her hand, which was on her leg, and she gave him no reason to think this made her uncomfortable.

The second count

[10] On Wednesday, September 13, 2018, the complainant’s husband got into a car accident causing some significant damage to their car.

[11] The complainant testified that when she arrived home that day, she found her husband and the Appellant in the garage trying to repair the windshield. She was annoyed with her husband because of his driving and upset that he had told the Appellant about the accident before telling her. She went into the house and laid down on a couch in the living room. The Appellant came into the living room from the garage. He put his knee on the couch and kissed her. She pulled away, swore, and said, “What are you doing? This is not appropriate.” The Appellant responded by laughing as though he was proud of himself. She was shocked and scared, and felt the Appellant was using his size to keep her on the couch. He tried to kiss her again and she turned her face against the couch cushions to avoid him. He left the room and went back to the garage. She followed him out to the garage but said nothing to her husband about what had occurred.

[12] The Appellant testified that on the day of the accident the complainant and her husband argued in the garage. She then “stormed off’ into the house. The Appellant continued helping the complainant’s husband for two minutes and then went inside and told the complainant not to worry about the money. He told her: “You can figure it out one way or another, we can help you - me and my wife - we’ll figure something out. Don’t worry about the money”. He hugged her but did not attempt to kiss her. It was not unusual for him to hug her. He often hugged her and other family members.

The third count

[13] On Friday, September 15, 2018, there was a gathering at the complainant’s home for her birthday. The celebration took place in the kitchen. The kitchen was on the main floor, the whole floor being a “completely open concept”. Both families were in attendance. While everyone was in the kitchen the Appellant took a cupcake and playfully shoved it into her face. She then did the same to him. The Appellant’s wife took a photograph of them with cake on their faces standing by the kitchen sink. Both are smiling in the photo. The complainant can be seen holding what looks like paper towels in her hands. The Appellant’s elder daughter can be seen taking a photograph of them at the same time as the photo was taken by her mother.

[14] The complainant testified that she decided to go to the powder room to clean up. As she walked through the hallway, the Appellant who was also going to the bathroom to clean up, was behind her. He grabbed her breasts. They were five paces from the kitchen sink where the photo was taken. The complainant said she did not recall if Appellant said anything at the time because they were in the open with everybody around. She testified that she did not say anything. She was mortified and was hoping that someone had seen what had happened. The touching lasted seconds. Apparently, no one saw what had happened. The complainant went upstairs to collect herself, and the party continued. Everybody enjoyed themselves, they had cupcakes and then the day just went on.

[15] The Appellant and his wife testified that after the cupcake event, the Appellant and the complainant cleaned up at the kitchen sink in front of all those who were there. The Appellant’s wife testified that she believed that the complainant never left the kitchen. Since the main floor was open concept, she would likely have seen the complainant leave if she had.

The fourth count

[16] On Saturday, September 23, 2018, the two families were at the Appellant and his wife’s home for a barbeque. The complainant had arrived after having purchased gas for her car on the way over and she had gas on her hands.

[17] She testified that she went into the laundry room to clean her hands with vinegar. The Appellant followed her into the laundry room, closed the door, put his hands down her shirt from behind, and grabbed her breasts. She told him to stop, moved his arms from her shirt and quickly returned to the kitchen. The Appellant went outside and continued barbecuing.

[18] Shortly thereafter, her husband returned to their home across the road to take a shower. The complainant remained behind. She and the Appellant’s wife went upstairs to bathe the girls. The Appellant’s younger daughter told the complainant that her dad needed the complainant downstairs. The complainant was expecting a lady to come by the Appellant’s home to purchase a stroller she was selling. When she went downstairs, the Appellant was there. He grabbed her wrist and kissed her neck. The complainant told him to let her go. He replied with “Shhh”. The complainant said to him, “Your wife is upstairs”, and he laughed. She pulled her wrist from his hand, went upstairs, finished bathing her daughter and took her home.

[19] The Appellant denied that any assault took place that day in the laundry room or later while the girls were in the bath. He was not asked whether he was ever in the laundry room with the complainant that day.

[20] The Appellant’s wife testified that before the girls’ baths, the complainant looked outside to see if the lady purchasing the stroller had arrived. The complainant told the Appellant’s wife that she had not arrived. The complainant sent her husband across the street to their home to see if she was there. He left and returned to advise the lady was not at their house either. The Appellant’s wife and the complainant then went upstairs with the girls for the girls’ baths. The complainant was upstairs with the Appellant’s wife the entire time that the girls were bathing and never left to go downstairs.

The disclosure of the allegations and the text message apology

[21] On the morning of Tuesday, September 26, 2018, the Appellant went to the complainant’s home to return her son’s pyjamas. The complainant told him that she was going to tell everyone what he had done. He replied, “Let me take care of Jay [her husband]”. The complainant understood this to be either a threat to physically harm her husband or the Appellant suggesting that he would portray himself as the victim and her as the problem.

[22] The complainant testified that the Appellant said, “…he would end up on the better half of this side, because he would make sure that my husband found out and that basically I would be left with nothing”.

[23] She testified that the Appellant kissed both of her children and said they were his. Given the threat he had just made, she interpreted this to mean that he was going to have her kids taken away from her.

[24] Later that day, the complainant disclosed the allegations to her family. She and her husband then arranged to meet the Appellant’s wife at a nearby Petro Canada Station. At the meeting, the complainant and the Appellant’s wife and sat in the front seat, the complaint’s husband and their daughter sat in the back seat. She told the Appellant’s wife what had “been going on”.

[25] The Appellant testified that the complainant telephoned his wife on Tuesday, while he and his wife were at a school orientation event. The complainant wanted to meet his wife, without the Appellant, at a nearby Petro Canada gas station. His wife asked what was going on. He told her he had “no clue” and immediately called the complainant’s husband. When he called, the complainant’s husband asked him, “What did you do to my wife?” The Appellant replied he did not understand. The complainant’s husband stated, “You know what you did.” The Appellant could hear the complainant take the phone from her husband and she said, “You’re not allowed to talk to him, why are you talking to him?” and hung up the phone.

[26] The Appellant took their two children home from the school. His wife went to meet the complainant and her husband at the Petro Canada station. The complainant told the Appellant’s wife that the Appellant had touched her inappropriately. The complainant said: “He put his hand down my top and smelled his hand, and then he grabbed my arse in the laundry room.”

[27] The Appellant’s wife asked the complainant “…what do you mean? Like when did this happen? Like we were all together, everybody’s fine.”

[28] The complainant said she was scared for her safety and the safety of her children, and that she was not living at home for fear the Appellant was stalking her. She said she would be pressing charges. The Appellant’s wife, could not believe what she was hearing and pleaded with the complainant not to do this.

[29] On Wednesday, September 27, 2018, the complainant went to the police station with her father and gave a statement. She told the police that she did not want the Appellant charged and, instead, attended the Barrie courthouse and applied for a s. 810 peace bond.

[30] On September 30, 2018, the Appellant sent the complaint’s husband, a text message:

I owe u and ur family an apology I never intended to hurt anyone I’m sorry u will never forget nor forgive this fuck up and I will live with this the rest of my life.

[31] The complainant testified that she did not view the text as a legitimate apology because it did not exactly state what he had done to her. She decided she wanted charges to be laid and told the police this. On October 14, 2018, the Appellant was arrested and charged. The peace bond application was withdrawn.

[32] The Appellant and his wife both testified as to how the September 30 text came to be sent. The complainant spoke to the Appellant’s wife’s parents about the situation. She told them she would be pressing charges and suing the Appellant. The Appellant’s wife’s, feeling the Appellant needed to do something to prevent criminal proceedings, told the Appellant to apologize to the complainant through her husband. The Appellant agreed in the hope that there would be no criminal charges, and also thinking he should apologize if he had done something to make the complainant feel uncomfortable.

The Trial Judge’s Reasons

[33] The trial judge found the complainant was a credible witness. She rejected the defence position that the complainant had fabricated the allegations, perhaps for financial reasons.

[34] The trial judge concluded that the text apology supported the complainant’s version of events and rejected the defence argument that it had been “an effort at appeasement” to avoid criminal charges.

[35] Relying on R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252, the trial judge used her acceptance of the complainant’s evidence as a basis to reject the defence evidence.

[36] She was not satisfied that the leg rubbing on August 29 occurred in circumstances of a sexual nature and convicted the Appellant of simple assault on that count. She convicted him of sexual assault on the remaining three counts.

Analysis

Ground 1: The trial judge erred in applying the rule in Browne v. Dunn

[37] The first ground of appeal is that the trial judge erred in finding that trial counsel for the appellant twice breached the rule in Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)) by failing to put to the complainant in cross-examination evidence of the Appellant’s wife: first, regarding the reason she had her husband send the text and second, what the complainant told her about what happened in the laundry room.

[38] During the trial neither counsel raised the rule in Browne v. Dunn. There was no objection raised during evidence relying on the rule and there was no mention of the rule in submissions. However, in her reasons the trial judge stated (at pp. 42-43 of the transcript):

Additionally, [the Appellant’s wife] claimed that she had her husband send the text because of [the complainant] telling her parents that she was pressing charges and suing him and would not relent. This is not asking for an apology. The parents were not called to testify as to the conversation [the Appellant’s wife] claims they had with the complainant about pressing charges and suing him and this was not suggested to the complainant. This offends the rule in Browne v. Dunn.

[The Appellant’s wife] said that the complainant told her something different than what was in disclosure. She said that the complainant told her that her husband touched her inappropriately, put his hand down her top and smelled his hand and grabbed her ass in the laundry room. This was not put to the complainant, she as was not cross-examined on that. This offends the rule in Browne v. Dunn.

[39] The trial judge then provided a detailed review of the law with respect to the rule in Browne v. Dunn before concluding (at p. 53 of the transcript):

With respect to the case of [the Appellant], the motivation of the apology letter is an important piece of evidence, as is an alleged contradictory statement allegedly made, to the credibility of the complainant, yet neither of these alleged pieces of evidence were put to the complainant. I do find that this affects the credibility of the witnesses. However, I also note that the Crown did not raise an objection that the rule was being breached. Given the lack of objection by the Crown, I will not give the breach of the rule in Browne v. Dunn as much weight as I would otherwise. I will treat it as minimally impacting on the credibility of the defence witness. However, it does affect the weight to be given to those statements made and I give no weight to those statements.

[40] The Appellant submits that the trial judge erred in finding two breaches of the rule where there were none and in failing to allow counsel the opportunity to respond to her Browne v. Dunn findings.

Was there a violation of the rule Browne v. Dunn?

[41] Crown counsel agrees with the Appellant that the first finding of a violation of the rule by the trial judge was in error. The evidence of the Appellant’s wife with respect to the reason for the text the Appellant sent to the complainant did not contradict the evidence of the complainant.

[42] With respect to the second violation, the complainant testified that the Appellant came into the laundry room, put his hands down her shirt from behind, and grabbed her breasts. She told him to stop and moved his arms off her. The Appellant’s wife testified that the complainant told her that the Appellant touched her inappropriately in the laundry room. He put his hand down her top, he smelled his hand, and he grabbed her ass.

[43] Whether all aspects of an accused's anticipated testimony must be put to a Crown witness where it conflicts with the witness’s testimony was addressed by Finlayson J.A. in R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 376:

Browne v. Dunn is a rule of fairness that prevents the "ambush" of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief, putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness. Having the witness repeat in cross- examination, everything he said in chief, is rarely the tactic of choice.

[44] In R. v. Quansah, 2015 ONCA 237, 19 C.R. (7th) 33, Watt J.A. explained that the requirements of the rule depend upon the circumstances of the case. At paras. 81 and 86, he stated:

Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’s credibility and on which the witness has not had the opportunity of giving an explanation because there has been no suggestion whatever that the witness’s story is not accepted… It is only the nature of the proposed contradictory evidence and its significant aspects that need to put to the witness... [Citations omitted]

The confrontation principle is not violated where it is clear, in all the circumstances, that the cross-examiner intends to impeach the witness' story: Browne v. Dunn, at p. 71. Counsel, who has cross-examined the witness on the central features in dispute, need not descend into the muck of minutiae to demonstrate compliance with the rule: Verney, at p. 376 C.C.C.

[45] In this case, defence counsel made it abundantly clear in his cross-examination of the complainant that it was the defence’s position that her stories on all the events were false. The differences in the accounts of what happened in the laundry room, as reported by the complainant in her evidence and in what the Appellant’s wife testified she said, are minor. Both versions provide evidence of the offence of sexual assault. Neither counsel appear to have regarded any difference as significant. The Crown did not raise an objection based on the rule in Browne v. Dunn. The Crown did not cross-examine the Appellant’s wife on her evidence and neither counsel made closing submissions on the differences.

[46] The failure to cross examine the complainant on the expected evidence of the Appellant’s wife with respect to what the complainant said to her about what happened in the laundry room did not offend the rule in Browne v. Dunn. The trial judge erred in finding that it did.

The trial judge’s failure to give counsel an opportunity to respond to her Browne v. Dunn findings

[47] Although I have determined that there was no breach of the rule in Browne v. Dunn, if I am mistaken and there was a breach of the rule, then the trial judge erred in not allowing counsel the opportunity to address the issue.

[48] The rule in Browne v. Dunn was only raised by the trial judge in her reasons and on her own initiative. Had trial counsel been made aware of the trial judge’s concerns regarding the rule they would have had the opportunity to argue that there were no violations of the rule and, if there was, what remedy was appropriate.

[49] In Quansah, Watt J.A. addressed the factors to be considered where a breach of the rule occurs, at para. 117:

It should scarcely surprise that breaches of a rule grounded in fairness do not attract a single or exclusive remedy. The remedy is a function of several factors including, but not only,

• the seriousness of the breach;
• the context of the breach;
• the timing of the objection;
• the position of the offending party;
• any request to permit recall of a witness;
• the availability of the impugned witness for recall; and
• the adequacy of an instruction to explain the relevance of failure to cross-examine.

[50] Clearly, consideration of these factors requires submissions from counsel.

[51] Although the trial judge considered Quansah, she did not address the factors that determine the remedy. Without submissions it was impossible for her to properly so. This was an error.

The role Browne v. Dunn played in the trial judge’s reasons?

[52] The trial judge found that the rule in Browne v. Dunn was offended twice.

[53] Considering these breaches, the trial judge referred to the “the motivation of the apology letter is an important piece of evidence, as is an alleged contradictory statement allegedly made, to the credibility of the complainant… ”. [Emphasis added.]

[54] She stated this “affects the credibility of the witnesses”. Presumably, she was referring to her assessment of the credibility of the Appellant and his wife.

[55] Because the Crown did not raise any objection relying on the rule in Browne v. Dunn, the trial judge stated she would not give this much weight and would “treat it as minimally impacting on the credibility of the defence witness [sic].” However, she then concluded “However, it does affect the weight to be given to those statements made and I give no weight to those statements.”

[56] As a result of her finding that there were two breaches of the rule in Browne v. Dunn, the trial judge gave no weight to two statements in the evidence of the Appellant’s wife, which she regarded as important pieces of evidence relating to the credibility of the complainant and to the credibility of the Appellant and his wife. This was an error.

[57] Credibility was the central issue in this trial. Findings of credibility that rely on the erroneous finding of breaches of the rule in Browne v. Dunn cannot stand.

[58] On this basis, I would grant the appeal.

Grounds 2 and 3: Misapprehension of the testimony of the Appellant’s wife and the Appellant’s text message

[59] I would not give effect to these grounds of appeal.

[60] It was open to the trial judge to interpret the evidence of the Appellant’s wife and regarding the Appellant’s text message as she did. Her interpretations are supported by the evidence and her findings are entitled to deference.

Conclusion

[61] The appeal is granted. The convictions on all four counts are quashed and a new trial is ordered.

Justice J.C. Corkery

Date: February 14, 2023