Court File and Parties

COURT FILE NO.: CR-21-71-00AP DATE: 2023 01 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Respondent M. Mackenzie, for the Crown

- and -

DIMITRIOS A. MANIATIS Appellant C. McKeown, for Appellant

HEARD: November 16, 2022

JUDGMENT ON APPEAL

André J.

1Mr. Maniatis appeals his conviction of one count of sexual assault by Justice S.B. Brown of the Ontario Court of Justice. His counsel submits that the learned trial judge committed two reversible errors. First, he failed to resolve a material inconsistency between the evidence of the independent witness and that of the complainant. Second, he materially misapprehended the independent witness’s evidence about how he was able to observe the impugned sexual act. The Crown submits that the trial judge carefully analyzed the trial evidence and concluded that the complainant and the independent witness were both credible and reliable, unlike the Appellant.

SUMMARY OF THE EVIDENCE

2The complainant testified that she fell asleep on a bus before the Appellant sat down next to her and woke up three times: first, she felt the bus moving but did not fully wake up; second, she woke up to the Appellant’s arm around her – she removed it and told him she was not interested; and third, she woke up with the Appellant touching her over the clothes on her left breast and her inner thigh. After the complainant awoke for the third time, there was a commotion on the bus. The police were called and they arrested the Appellant.

3The Appellant testified that he did touch the complainant – but only to move her after she had fallen asleep on his shoulder. The defence theory was that while the complainant believed the Appellant’s intent was sexual, her evidence was unreliable as she was tired, had consumed alcohol, and had just been aroused from sleep. Central to the trial judge’s reasons for convicting the Appellant was the testimony of the person sitting across the aisle, who the trial judge concluded, corroborated the complainant’s account.

4Noah Lelievre, the independent witness, testified that he observed the Appellant groping the complainant. He initially thought that the Appellant and complainant were boyfriend and girlfriend. However, the complainant woke up and angrily told the Appellant not to touch her. The Appellant then came and sat beside Mr. Lelievre. At this point, Mr. Lelievre testified that he “was under no misconception that this was a boyfriend and girlfriend”. Mr. Lelievre also testified that he heard the complainant tell the Appellant to “get the fuck away from me.”

5Under cross-examination, Mr. Lelievre could not recall hearing any conversation between the Appellant and complainant. He testified that after boarding the bus, he was reading a book and was not watching the Appellant and complainant continually. He testified that he was “kind of glancing at them every 30 or 40 seconds.” Mr. Lelievre agreed that if the complainant had removed the Appellant’s arm from her shoulder and told him “don’t touch me” he would have seen and heard it and stopped it.

6Asked how he was able to see the interaction between the Appellant and complainant, Mr. Lelievre replied that the Appellant and complainant were “both pretty short” and that he “had the elevation to get a pretty good look.” He testified further, “I could see over him and past him if I lean forward.”

TRIAL JUDGES’ DECISION

7The trial judge found that the two Crown witnesses to be credible and reliable. He found that Mr. Lelievre’s evidence corroborated that of the complainant in many respects.

8The trial judge disbelieved the Appellant’s testimony and found that it did not raise a reasonable doubt in the Crown’s case. He found that the Appellant’s trial testimony conflicted with what he told a witness at the scene and what he told the police. The Appellant testified that he moved from his seat next to the complainant. However, he told another passenger and the police that she had vomited on the bus. This conflicted with the trial evidence that the complainant had not done so.

ANALYSIS

9This appeal raises the following issues:

a) What is the appropriate standard of review? b) Did the learned trial judge err in law by failing to resolve a material inconsistency in the trial evidence? c) Did the trial judge materially misapprehend Mr. Lelievre’s evidence about how he was able to observe the impugned sexual act?

A. Standard of Appellate Review

10The standard of review of factual findings of a trial judge is deference, absent palpable and overriding error. On the other hand, the standard of appellate review of errors of law is one of correctness: See Bayford v. Boese, 2021 ONCA 442, at para 28; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

B. Did the learned trial judge err in law by failing to resolve a material inconsistency in the trial evidence?

THE LAW

11In R v. Burnie, 2013 ONCA 112 at para. 48, the Ontario Court of Appeal noted that where “the main thrust of the defence is directed at eliciting conflicting evidence from the complainants and the eyewitnesses to the alleged offences, it was incumbent on the trial judge to have at least considered whether those conflicts or inconsistencies raised a reasonable doubt about the evidence supporting a conviction.” In R v. A.M., 2014 ONCA 769 at paras 18-19, the Court of Appeal went further by noting that “the failure of a trial judge to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error… After all, an accused is entitled to know why the trial judge had no reasonable doubt about his or her guilt.” Finally, in R v. C.G., 2021 ONCA 809 at para. 56, the Court of Appeal cautioned that trial judges must still give adequate reasons for their decisions, “before stigmatizing and punishing someone as a sex offender.”

APPLICATION OF THE LAW TO THE FACTS

12Counsel for the Appellant submits that the trial judge failed to resolve a major inconsistency in the evidence: whether the complainant awoke before the commotion, removed the Appellant’s arm from around her and told him that she was not interested. Mr. Lelievre testified that he did not see or hear the incident and testified that had it happened he would have seen or heard it. He added that if they were saying anything to each other in a regular voice, he would have heard the conversation.

13With respect to any inconsistencies between the complainant and Mr. Lelievre, the trial judge noted the following at pages 95-96 of his Reasons for Judgment;

Yes, there are some inconsistencies between what [Mr. Lelievre] testified to and what [the complainant] testified to such as she never testified that there was any touching of her hair or there was any kissing. It is noted, however, that she was asleep for much of this time. She never testified that her bottom was touching. But again, it is noted she was asleep at the time. And all of these incidences were witnessed by Mr. Lelievre.

I find that there is corroboration in [the complainant’s] evidence and corroboration comes from Noah Lelievre who I find is a credible, straightforward witness who did not enhance or embellish in my view and gave his evidence as best he could. There were minor inconsistencies between he and [the complainant’s] evidence. But these are expected in light of the fact that she was asleep for much of what Mr. Lelievre was observing. Mr. Lelievre’s reticence about getting involved is, his explanation that he thought they were, at first, boyfriend and girlfriend is totally understandable and makes sense.

Reasons for Judgment, Transcript, Vol. 4, December 14, 2020, pp. 95-96.

14The trial judge clearly recognized that there were inconsistencies between the evidence of the complainant and that of Mr. Lelievre. He attributed some of the inconsistencies to the fact that the complainant was asleep and Mr. Lelievre initial “reticence” about being involved because he thought that the complainant and Mr. Maniatis were “boyfriend and girlfriend.” The trial judge also alluded to the fact that Mr. Lelievre glanced at the two every “30 to 40 seconds” suggesting that Mr. Lelievre would not have been able to see everything that transpired between the Appellant and complainant.

15In my view, it was open to the trial judge to accept the evidence of both Mr. Lelievre and the complainant. He recognized and correctly noted at page 63 of his Reasons for Judgment, that he could accept, all, some or none of the evidence of any witness and that assessing credibility is not simply a matter of picking the version of one witness and in so doing, rejecting that of the other. It was open to the trial judge to find that both the complainant and Mr. Lelievre were credible and reliable witnesses.

16Even if the Appellant’s counsel is correct that the trial judge’s failure to resolve a material inconsistency in the evidence of the complainant and Mr. Lelievre, he would still have been able to convict the Appellant of sexual assault, based on the totality of the evidence he accepted. As already noted, the trial judge found Mr. Lelievre to have been a credible witness and gave a number of reasons for his conclusion to that effect. He also accepted Mr. Lelievre’s testimony that he got a good look at the Appellant and complainant because the former was shorter than him and he was therefore able to see “over him and past him if I lean forward.” Mr. Lelievre testified that he saw the Appellant groping and kissing the complainant while she slept. He thought nothing of it because he wrongly believed that they were boyfriend and girlfriend. The trial judge accepted this evidence, which, on its own, could support a finding that the Appellant sexually assaulted the complainant.

17For the above reasons, this ground of appeal fails.

C. Did the learned trial judge materially misapprehend Mr. Lelievre’s evidence about how he was able to observe the impugned sexual act?

THE LAW

18A misapprehension of the evidence by the trial judge may, in appropriate circumstances, constitute reversible error. Misapprehension of evidence may involve a failure to consider evidence relevant to a material issue, mistakes about the substance of the evidence, or a failure to give proper effect to the evidence: See R v. Wadforth, 2009 ONCA 716, 254 O.A.C. 295, at paras. 79-81. In R v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.) Doherty J.A. noted at para. 93:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

19A trial judge is not required to review every piece of evidence that might have led to a different conclusion neither is he or she obligated to deal with each and every inconsistency: See R v. Hisson, 2010 ONCA 852, R v. R.W.B., [2003] O.J. No. 3086 (Ont. C.A.) at para. 2.

APPLICATION OF THE LAW TO THE FACTS

20Counsel for the Appellant submits that the trial judge misapprehended Mr. Lelievre’s evidence regarding how he was able to see everything he described during his testimony. Trial counsel submitted that Mr. Lelievre could not have seen what he described given the heights and positions of the parties. In rejecting this submission, the trial judge stated that Mr. Lelievre had testified that the Appellant was shorter than him in the seat, rather than shorter in general. This, the Appellant contends, constitutes a misapprehension of the evidence because Mr. Lelievre testified that the Appellant was shorter in stature. Counsel submits that this material misapprehension calls into question what the witness was able to see.

21It was open to the trial judge, to conclude, based on the evidence, that Mr. Lelievre saw what he described happened. He sat right across the aisle from the Appellant and the complainant. He correctly testified that the complainant was sitting next to the window. He glanced in the direction of the Appellant every 30 to 40 seconds. He testified that he could see over the Appellant’s head because the latter was shorter in stature. The trial judge had the discretion to accept some, all, or none of Mr. Lelievre’s evidence. Based on the evidence he accepted, he concluded that Mr. Lelievre saw what he said happened. To that extent, this ground of appeal fails.

CONCLUSION

22The appeal is dismissed.

André J.