Court File and Parties

Court File No.: CR-22-10000013-00AP Date: 2023-01-13 Ontario Superior Court of Justice

Between: His Majesty The King And: Mohsin Mirza

Counsel: Dan Guttman, for the Crown, Respondent Janani Shanmuganathan, for the Appellant

Heard: December 12, 2022

R.F. Goldstein J.

Reasons for Judgment

[1] The complainant was a server at a Milestones franchise restaurant. The appellant owned the restaurant. The complainant had worked at the restaurant on and off for several years. The appellant and the complainant had developed a friendship. In 2018 the complainant moved to New Zealand to be with her boyfriend. The relationship did not work out and the complainant moved back to Canada. She went back to work at the Milestones owned by the Appellant. On November 18, 2019, the appellant and the complainant reconnected. During the early morning hours of the next day they had a sexual encounter. The appellant was charged with sexual assault. Justice Chamberlain of the Ontario Court of Justice found beyond a reasonable doubt that the sexual encounter was non-consensual and convicted the appellant.

[2] Ms. Shanmuganathan, on behalf of the appellant, raises three issues:

• First, that the trial judge erred in his treatment of the complainant’s credibility and reliability;
• Second, that the trial judge erred in his treatment of the appellant’s evidence by improperly relying on stereotypes; and,
• Third, that the trial judge applied an uneven standard of scrutiny to the evidence of the appellant and the complainant.

[3] Ms. Shanmuganathan’s arguments were compelling and focused, but I cannot agree. In my respectful view these arguments essentially amount to a disagreement with the trial judge’s factual findings. As a result, the appeal must be dismissed.

[4] I turn first to the principles governing appeals where the case turns primarily on the credibility of the witnesses, as this one does. Credibility is notoriously difficult to judge; credibility cases are “the paradigm case for deference”: R. v. Cresswell, 2009 ONCA 95 at para. 14. An appellate court cannot interfere with a trial judge’s credibility findings absent a material misapprehension of the evidence. A material misapprehension occurs where a trial judge “fails to consider evidence relevant to an issue, makes a mistake about the substance of an item or items of evidence, or fails to give proper effect to evidence”: R. v. B.T.D., 2022 ONCA 732, paras. 4, 23.

[5] A material misapprehension must go to the heart of the trial judge’s reasoning. Mere factual errors that would not or could not affect the verdict do not constitute a basis for appellate intervention. As the Ontario Court of Appeal stated (and not for the first time) in R. v. W.M., 2020 ONCA 236 at paras. 21-22:

A new trial is required when the appellant has met the "stringent standard" for determining whether a misapprehension of evidence resulted in a miscarriage of justice, as set out in R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 541, see also R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. Specifically, the misapprehension of evidence must go to substance rather than detail, it must be material rather than peripheral to the reasoning, and the errors must play an essential part not just in the narrative of the judgment, but in the reasoning process resulting in a conviction: Lohrer, at para. 2. If the appellant can show that the conviction was based on a misapprehension of evidence, the appellant is entitled to a new trial "even if the evidence, as actually adduced at trial, was capable of supporting a conviction": Morrissey, at p. 541.

The impact of a misapprehension of evidence is particularly marked in cases where the principle issue is credibility. In such cases, "it is essential that the findings be based on a correct version of the actual evidence", as "wrong findings on what the evidence is destroy the basis of findings of credibility": Morrissey, at p. 541, citing Whitehouse v. Reimer (1980), 1980 ABCA 214, 116 D.L.R. (3d) 594 (Alta. C.A.).

[6] Appellate courts have consistently stressed that a trial judge’s reasons are not to be read microscopically. Reasons must be read as a whole. As Doherty J.A. stated in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, 222 O.R. (3d) 514 at para. 28:

… it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe a legal principle applied by the trial judge. Reasons for judgment must be read as a whole… Furthermore, they must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.

[7] I turn to the issues raised on appeal.

Did the trial judge err in his treatment of the complainant’s credibility and reliability?

[8] Ms. Shanmuganathan acknowledges that the trial judge did note problems with the complainant’s credibility. She argues, however, that the trial judge did not go beyond merely noting the problems with the complainant’s evidence. He did not analyze her evidence with those problems in mind. She notes that the trial judge observed that while the complainant probably minimized her friendship with the appellant, he discounted the evidence from the Shangri-La Hotel bar. The video footage from the bar showed that they appeared to be intimate friends. He did not properly take that evidence into account when considering her reliability.

[9] I respectfully disagree with the appellant’s characterization of the trial judge’s reasons. The trial judge did more than simply note problems without any further analysis (leaving aside the question of whether to do so would actually amount to reversible error). He said this:

It is clear when you look at the evidence that is not in dispute, much of which corroborated by both parties, that there are elements of truth in both of their accounts of the events in question. Mr. Mira's evidence must be analyzed in the context of all of the evidence, which includes the evidence of S.C. Likewise, her evidence must be analyzed in the context of his testimony as well...

[10] Moreover, I see no misapprehension of the video evidence. The trial judge viewed it, and drew a conclusion. There was a basis in the evidence for the trial judge to make the finding he did about what the video showed. He stated the following, and it is not for this court to re-weigh the evidence:

As I indicated, I was not convinced either by the testimony of Mr. Mirza or in my review of the video evidence at the Shangri-La hotel, that his feelings about the nature of their relationship and the potential for a more intimate relationship between them was evident in S. C.'s actions or behavior. It is clear that she was fond of Mr. Mirza, that she valued his friendship, but in my view nothing in her behavior or actions in any of the evidence that I accepted, including my review of the video evidence at the hotel, was conclusive that those feelings were reciprocated by her.

[11] Respectfully, I think that the following comments are, in fact, an analysis of the complainant’s credibility and reliability:

S.C.’s testimony about the allegations raised no serious concerns of either credibility or reliability. Though she was challenged on the nature of their relationships and whether Mr. Mirza was a friend or close friend, I find that this was a distinction without significance. She admitted the frequent contacts, the friendly and personal contact they had, that they communicated. She never appeared to minimize either the frequency, closeness, or level of contacts they shared in direct or cross-examination… But it is clear to me, in reviewing her evidence as a whole, and in consideration of her emotional state given a fairly recent breakup that caused some pretty major disruption in her life, that she did not want any sexual activity with Mr. Mirza at that time and I accept that she communicated that to him on more than one occasion.

[12] In essence, the trial judge pointed out that there was a problem with the complainant’s evidence (the minimization of the friendship) but explained why he still accepted that evidence. Moreover, as Doherty J.A. warned in Morrissey, passages of the trial judge’s reasons are not to be examined in isolation but must be read in the context of the whole of the reasons. I therefore reject the first point.

Did the trial judge improperly rely on stereotypes?

[13] As noted, Ms. Shanmuganathan argues that the trial judge erred in his treatment of the appellant’s evidence by improperly relying on stereotypes. The trial judge, she says, resorted to common sense presumptions about how people should behave after intense sexual activity. “Common sense” presumptions must be grounded in the evidence. By relying on a “common sense” presumption the trial judge was actually relying on a stereotypical assumption and not the evidence: R. v. J.C., 2021 ONCA 131. In fact, Ms. Shanmuganathan argues, Mr. Mirza’s evidence about being tired and wanting to go to sleep is supported by the rest of the evidence. The trial judge, therefore, erred in rejecting it.

[14] Ms. Shanmuganathan points to para. 35 of the trial judge’s reasons:

His actions, as described above, as she leaves his bed and goes to the bathroom following some pretty intense making out, caressing of breast, undressing her and touching her vagina, and then, if he is to be believed, as she leaves his bed while in the middle of a sexual encounter, that rather than check on her, or wait for her to come out and continue, or at least talk about what happened, he just puts on his CPAP mask and goes to sleep seems hardly plausible. This time for them together, of heightened intimacy following previous tension about their relationship, and, according to him, a mutual interest, has now culminated in consensual sexual activity. He admits that in his mind, they are now free agents and able to act on their supposed previous attraction. By his telling, he has been feeling this attraction for a while. Then, when it ends rather abruptly and awkwardly and she goes to the bathroom, he just rolls over and go to sleep, deliberately, not just nodding off, because he had to place his CPAP mask on which he requires to sleep because he suffers from serious sleep apnea.

[15] Read on its own, that paragraph might tend to support the point. It is important, however, to read that paragraph in its overall context. The trial judge also said this at para. 37:

There were other inconsistencies in Mr. Mirza's testimony though beyond just his troubling reaction to her abruptly ending their sexual encounter and leaving and his reaction to that. He repeatedly testified that they had made out, kissed and been otherwise intimate, though not sexual throughout the evening. He testified that they were now free to pick up where they left off now that they were single, that they held hands and were touching all evening, and that he kissed her a number of times at his condo. He also testified that when she came to his bed, he turned towards her and they began to make out mutually kissing and that he began to caress and touch her breast and torso with his hands and mouth, eventually moving to touch her vagina, all consensually. Yet, when it was put to him in cross-examination that he in fact wanted to have sex with S.C., he denied it. He claimed he was tired and simply wanted to go to sleep. It was indicative of a lack of internal consistency in his testimony.

[16] In my view, the trial judge was not relying on a stereotype not grounded in the evidence. Rather, the trial judge found a material internal inconsistency in Mr. Mirza’s evidence. Mr. Mirza did indeed testify that he thought he and the complainant would have a consensual sexual relationship. The trial judge found that his testimony about his behaviour – deciding to put on his CPAP machine and go to sleep – was implausible because it was based on an inconsistency in his evidence. The trial judge did not make the type of error described in J.C. As well, I do not agree that this comment engaged s. 276 of the Criminal Code, or could be bootstrapped into the equivalent of a s. 276 error. The trial judge’s comments had nothing to do with myths and stereotypes associated with the behaviour of either the complainant or the appellant. The trial judge’s finding was available to him on the evidence and is therefore entitled to deference.

Did the trial judge apply uneven scrutiny to the evidence of the complainant and the appellant?

[17] Ms. Shanmuganathan argued that the trial judge erred by finding that the appellant attempted to “control the narrative”. That implied a different level of analysis between his evidence and the complainant’s evidence. In her factum, Ms. Shanmuganathan argued that this was an impermissible finding of adverse credibility based on the fact that the appellant was criminally charged and testifying in his own defence. The specific comment raised by Ms. Shanmuganathan is that the trial judge pointed to a denial that the “winking emoji” was evidence of flirting, while at the same time acknowledging that that he was interested in a relationship. The trial judge stated at para. 38 of his reasons:

… he denied he was flirting with her in the initial text he sent her when he found out she had broken up with her boyfriend. He claims they were holding hands under the table, and that he was just being nice. But is it clear from his testimony about his mindset in respect to their previous attraction and that now that they were both available, they were free to establish a relationship of their own. The winking face emoji sent in the text was an indication of flirting… To deny he was flirting with her at that time when from the moment he learned about the breakup, he felt they could rekindle a past attraction just does not seem credible. Given the previous admissions about his feelings which he believed were reciprocated, there is no reason to minimize or deny his feelings or actions before the time they are in bed together. It simply raises suspicions about his credibility, leading me to believe he was more interested in controlling the narrative rather than be forthright.

[18] In her factum, Ms. Shanmuganathan put it this way:

The Appellant’s candidness about his interest in the complainant and the absence of any benefit to minimizing the text messages logically suggest that he was being truthful in denying that he was flirting in the text messages. The trial judge’s failure to consider this possibility reflects the impermissible adverse credibility inference against the Appellant because he had been criminally charged.

[19] As I understand the argument, there are two inter-related points to the uneven scrutiny argument. The first point is that the trial judge made a “tailoring error”; the second is that this error caused him to apply uneven scrutiny to the evidence of the appellant and the complainant.

[20] Dealing with the “tailoring” argument, it is generally (although not always) an impermissible inference that an accused is tailoring his evidence to fit the Crown’s case. Doing so reverses the burden of proof and potentially creates a “constitutional trap” for the accused: R. v. White (1999), 42 O.R. (3d) 760 (Ont. C.A.); R. v. Jorgge, 2013 ONCA 485; R. v. C.T., 2022 ONCA 163. Usually, such an error involves an allegation or a finding that the accused tailored their evidence to fit the disclosure. I disagree, however, that trial judge’s one comment reflects that error, when it is read in the context of the reasons as a whole. This was one isolated comment in a relatively lengthy judgment on a routine credibility trial. As I read the trial judge’s reasons, he was simply making an adverse finding of credibility – a finding that was open to him on the evidence. This was nothing like the sort of erroneous comment made, for example, by the trial judge in Jorgge. In that case the trial judge found that the accused changed his evidence from a police statement to the trial based on a better understanding of the law of consent. It was also nothing like the erroneous comment made by the trial judge in C.T., who commented that the accused tailored his evidence to fit “however awkwardly, the evidence of which he was aware.”

[21] I see no sign that the trial judge found that the appellant crafted his evidence in some way to meet the case for the Crown.

[22] I turn next to the related point of uneven scrutiny. The principles were set out by Watt J.A. in R. v. Radcliffe, 2017 ONCA 176 at paras. 23-26:

First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347 (Ont. C.A.), at para. 35.

Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.

Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.

Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. c. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 (S.C.C.), at para. 20.

[23] The Supreme Court of Canada has not fully accepted that “uneven scrutiny” can be an independent ground of appeal, although it has been dealt with by numerous provincial appellate courts. In R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, Karakatsanis J. stated at para. 100:

I have serious reservations about whether “uneven scrutiny” is a helpful analytical tool to demonstrate error in credibility findings. As reflected in the submissions here, it appears to focus on methodology and presumes that the testimony of different witnesses necessarily deserves parallel or symmetrical analysis. In my view, the focus must always be on whether there is reversible error in the trial judge’s credibility findings. Even in Howe, Doherty J.A. ultimately chose to frame the uneven scrutiny argument slightly differently: para. 64. Rather than say that the appellant had demonstrated uneven scrutiny of the evidence, Doherty J.A. explained that the essential problem in the trial judge’s reasons was that he had “failed to factor into his assessment of [the complainant’s] credibility his finding that she deliberately lied on important matters in the course of testifying in reply”: para. 64. In appellate cases that have accepted an uneven scrutiny argument, there was some specific error in the credibility assessments: see, e.g., Kiss, at paras. 88-106; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 37-43; R. v. Willis 2019 NSCA 64, 379 C.C.C. (3d) 30, at paras. 55-62; R. v. Roth 2020 BCCA 240, 66 C.R. (7th) 107, at para. 54. As shown in Howe, uneven scrutiny easily overlaps with other arguments for why a trial judge’s credibility findings are problematic. It is therefore unsurprising to see uneven scrutiny tacked on to arguments like insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict.

[24] Karakatsanis J. went on at para. 101 to state that without full submissions on the point, she would not rule on whether uneven scrutiny amounts to an independent ground of appeal. Thus, the principles stated by Watt J.A. in Radcliffe remain binding. G.F. is nonetheless helpful as it emphasizes that there must still be reversible error in the trial judge’s credibility analysis in order for an appellate court to intervene.

[25] Applying Radcliffe, I do not accept that the trial judge actually applied different standards to the evidence of the complainant and the appellant. He pointed out flaws in the evidence of both. He even stated that both minimized aspects of their evidence. As Karakatsanis J. stated, in the uneven scrutiny cases there is usually a reversible error in the trial judge’s credibility findings. Here, the reversible error is said to be the “tailoring”. I do not accept that this was an error, as I have mentioned. Finally, I find that the trial judge made no palpable and over-riding error – indeed, there has not been an allegation of a palpable and over-riding error. I must, therefore, reject the uneven scrutiny point.

[26] The appeal is dismissed.

R.F. Goldstein J. Released: January 13, 2023