COURT FILE NO.: CR-22-00000033-00AP (Simcoe)
DATE: 2024 01 08
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING
R. Eddy, for the Crown
Respondent
- and -
Patrick A. Welch
C. Spettigue, for the Appellant
Appellant
HEARD: November 23, 2023
SUMMARY CONVICTION APPEAL JUDGMENT
(On Appeal from the verdict of Justice A. Hilliard of the Ontario Court of Justice dated May 31, 2022 and the Sentence dated November 10, 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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Ricchetti J.
Table of Contents
The Appeal 2
Preliminary Issue. 3
The Trial Evidence. 3
The Allegations. 4
The Defence. 5
Post the Alleged Offence. 5
Defence Position at Trial 7
Trial Judge’s Conviction Reasons. 9
Analysis on Conviction Appeal 13
Patrick A. Welch’s Attendance at the Complainant’s home. 15
The Human Resources’ Investigation. 18
The Grounds of Appeal 19
Assessment of the Evidence. 19
Post Offence Conduct 25
Uneven Scrutiny. 26
Material Inconsistencies. 27
Deleting/Shifting the Burden. 28
Failure to Consider Exculpatory Evidence. 28
Motive to Fabricate. 29
Reliance on J.J.R.D. 30
Conclusion on the Conviction Appeal 31
Defence Position on Sentencing on Appeal 32
Trial Judge’s Sentencing Reasons. 32
Conclusion on the Sentencing Appeal 34
Conclusion. 34
The Appeal
[1] Mr. Patrick A. Welch appeals his conviction on numerous grounds, which attack the trial judge’s assessment of the evidence, findings of fact and the adequacy of the trial judge’s reasons.
[2] Essentially, Patrick A. Welch’s counsel submitted that the trial judge misapprehended the evidence and the defence theory, resulting in numerous legal errors resulting in the verdict and imposition of a sentence on Patrick A. Welch.
[3] Patrick A. Welch appeals the sentence imposed by the trial judge on the basis that it is manifestly unfit and unreasonable in the circumstances.
Preliminary Issue
[4] At the commencement of the appeal, technology issues arose which prevented Patrick A. Welch’s personal attendance, required by the stay pending appeal order.
[5] At the commencement of the appeal, given these issues, the stay pending order was varied to permit Patrick A. Welch to attend virtually. However, even that became impossible for technical reasons.
[6] Accordingly, Patrick A. Welch was relieved of his compliance with the stay pending appeal order to attend the appeal, either in person or virtually.
The Trial Evidence
[7] At trial, the following witnesses testified:
• The complainant;
• Brian J., the father of the complainant;
• Kerry J., the mother of the complainant;
• Patrick A. Welch, the accused/appellant;
• Faith Sears, a part-time worker at the Family Shed;
• Jesse Saito, a patron at the Family Shed;
• Suzanne Mandingo, Patrick A. Welch’s common law partner and owner of the Family Shed;
• Kathryn Lawrow, an employee at the Family Shed; and
• William Welch, Patrick A. Welch’s brother and employee at the Family Shed.
The Allegations
[8] The complainant alleged that on June 29, 2018, while the complainant and Patrick A. Welch were working alone, putting chicken away into a freezer, at the rear of the Family Shed restaurant (Shed), Patrick A. Welch placed some ice with his hand first outside the complainant’s t-shirt top and, subsequently, inside the front of her t-shirt and under her bra thereby touching or rubbing the complainant’s breasts. The complainant further alleged that, afterwards, Patrick A. Welch told her she could put ice down her pants, to which the complainant said no. The complainant then went back into the restaurant. The complainant alleged that she felt sick, scared, and confused during and after the sexual assault in the freezer.
[9] Later that day, the complainant alleged that Patrick A. Welch asked if she had “liked it”. Patrick A. Welch kept apologizing to her, saying it shouldn’t have happened, and then gave the complainant a hug, a kiss on the lips and told the complainant she couldn’t tell anybody. On those occasions, the complainant and Patrick A. Welch were alone.
The Defence
[10] Patrick A. Welch denied the events, as described by the complainant had happened.
Post the Alleged Offence
[11] The complainant went home after her shift. She told her parents and wrote out what had happened. Her parents, who were friends with Suzanne Mandingo, the owner of the Shed, called Suzanne Mandingo and told her about the allegations involving Patrick A. Welch, her common law husband. Suzanne Mandingo told him that she and Patrick A. Welch would come over to the complainant’s house.
[12] Shortly thereafter, Patrick A. Welch arrived at the complainant’s house, alone. Patrick A. Welch insisted on speaking with the complainant. The complainant’s parents let him in. Patrick A. Welch saw and spoke to the complainant but only while in the presence of her parents. The complainant remained close to her mother. The complainant did not and would not respond to Patrick A. Welch. The complainant, her father (both as Crown witnesses) and her mother testified (called as a Defence witness) testified that Patrick A. Welch said he wanted to talk about “this” (referring to the complainant’s allegation of sexual assault) and that he didn’t want to go to jail. Patrick A. Welch denied making these statements.
[13] Patrick A. Welch, in his examination in chief, explained he had immediately gone to the complainant’s house as he felt the complainant was upset about the break-up with her previous boyfriend, which break-up had occurred a few weeks earlier.
[14] Suzanne Mandingo appointed one of the employees, the cook at the Shed, Ms. Lawrow, to do an “investigation” into the complainant’s claim of being sexually assaulted. Ms. Lawrow took statements and determined it was “inconclusive”.
Defence Position at Trial
[15] The Defence submitted that the complainant’s reaction at and after the sexual assault including:
• when Patrick A. Welch’s hand was put down her t-shirt by not “forcing his hand out or resist his hand”,
• not screaming for help at the time,
• not immediately calling the police,
• not immediately telling her co-workers about the sexual assault,
• not immediately telling Suzanne Mandingo about the sexual assault,
• not immediately telling her mother about the sexual assault, who had come by that afternoon at the restaurant,
• not immediately leaving work after the sexual assault,
• delaying in reporting the sexual assault to the police,
• considering to return to work at the Shed (albeit on certain terms relating to Patrick A. Welch’s presence).
All of these, the Defence alleged, were not consistent with the behaviour of a sexual assault of a person who was “traumatized, extremely scared” of the assault. Essentially, submitting that these were not the actions or behaviour “of somebody who’s been assaulted sexually”.
[16] The Defence submitted that the complainant’s distraught was due to her break-up with her previous boyfriend, which break-up had occurred a few weeks earlier.
[17] The Defence submitted there was “horseplay” amongst the staff at the restaurant such as: placing ice down another employee’s back; putting whipping cream on another employee’s head; or an employee smacking another employee on the “butt”. The Defence submitted the incident was part of the accepted horseplay at the Shed.
[18] The Defence submitted there was no opportunity for Patrick A. Welch to have been alone with the complainant to commit the alleged sexual assault.
[19] The Defence submitted that the alleged comment by Patrick A. Welch to the complainant of “nice breasts” was just an “offering compliments”.
[20] The Defence submitted that nothing turned on the fact that Patrick A. Welch, after the complainant’s father’s call to Suzanne Mandingo, shortly thereafter attended at the complainant’s home by himself.
[21] The Defence submitted that the complainant’s explanation for making an Ontario Human Rights Tribunal (OHRT) complaint was “phony” and an attempt to make money – referring to the complainant as an “opportunist” and “manipulative”.
[22] The Defence suggested that there were inconsistencies with the complainant’s first description of what happened and her trial evidence, such as describing the alleged sexual assault as “touching” and “rubbing” the complainant’s breast.
[23] Patrick A. Welch denied any sexual assault.
Trial Judge’s Conviction Reasons
[24] After instructing herself on the presumption of innocence and, that in two competing versions of the event at issue, as in this case, the trial judge is not determining which version the trial judge prefers, the trial judge carefully set out that the burden and standard of proof for a conviction was on the Crown.
[25] The trial judge then stated that, while there were numerous trial witnesses, only the complainant and Patrick A. Welch were present during the alleged sexual assault. Essentially, the trial judge concluded that the other witnesses were neither helpful nor determinative of the essential question of whether the alleged sexual assault had occurred as they were not there and that the defence witnesses were generally based on an “outdated and prohibited approach to the consideration of how victims of sexual assault behave.”
[26] The trial judge rejected Patrick A. Welch’s evidence, despite the fact his denials of committing any sexual assault “were not shaken” during cross examination.
[27] The trial judge rejected the Defence submission that there was no opportunity to commit the alleged sexual assaults.
[28] Based on a consideration of all the evidence, the trial judge found that Patrick A. Welch did know about the details of the complainant’s sexual assault allegations when he went to the complainant’s house that evening. Further, it made no sense that Patrick A. Welch went to the complainant’s house to see whether the complainant was “alright” after a two-week-old break-up with her boyfriend. The trial judge concluded that “He wanted to confront [the complainant] and persuade her to retract her allegations.” As a result of these findings of fact, the trial judge concluded that Patrick A. Welch went to the complainant’s home, knowing about the sexual assault allegation, demonstrated a “consciousness of guilt”.
[29] The trial judge rejected the Defence evidence and argument which was “constructed on the myth that victims of sexual assault should behave in a particular manner and, if they do not, then they should not be believed”.
[30] The trial judge expressly rejected the evidence of Ms. Sears and Ms. Lawrow, testimony where they had expressed opinions on the veracity of the complainant’s allegations based on beliefs that the complainant was a liar.
[31] The trial judge went on to accept the evidence of the complainant which the trial judge found was not seriously contradicted nor shaken during cross examination. The trial judge found that the complainant’s evidence was internally and externally consistent, consistent with her initial report of the events of the day on which she was cross examined and was not embellished nor exaggerated. The trial judge found that the “inconsistencies pointed out by the defence, touching versus rubbing her breasts, do not seriously undermine her credibility”.
[32] The trial judge found that the complainant’s explanations as to why she did not immediately report the sexual assault, while at work, was “completely understandable and, in retrospect, justified” and went on to explain why “justified”. The trial judge found that the complainant’s behaviour at work after the incident in the freezer, was irrelevant to her finding of the complainant’s credibility and reliability, again referring to there being no “right way” for a victim of sexual assault to behave or a “right time” to report the sexual assault.
[33] The trial judge accepted that there was “horseplay” at the restaurant, but the conduct of Patrick A. Welch, in placing of ice down the complainant’s front, under her t-shirt and bra, where his hand either touched or rubbed the complainant’s breast was not horseplay as it was “different”.
[34] The trial judge found that Patrick A. Welch took advantage of the situation of being alone with the complainant to violate her sexual integrity by the sexual assault; that Patrick A. Welch apologized, told the complainant not to tell anyone, and that Patrick A. Welch told the complainant, at her house that evening, that he didn’t want to go to jail.
[35] The trial judge found that the complainant’s OHRT complaint had no bearing on the complainant’s credibility as it was made after the sexual assault and after legal advice. The trial judge expressly rejected the Defence submission that the OHRT complaint was financially motivated.
[36] Based on the considered and reasoned acceptance of the complainant’s evidence, the trial judge concluded that Patrick A. Welch’s evidence was rejected and that the accepted evidence of the complainant established proof of the sexual assault beyond a reasonable doubt. The trial thereby found Patrick A. Welch guilty of the sexual assault.
Analysis on Conviction Appeal
[37] This trial essentially had two opposing versions of what occurred that day, when both the complainant and Patrick A. Welch were alone. The sole issues at trial was whether the sexual assault had occurred and whether the Crown had proven this beyond a reasonable doubt.
[38] The trial judge’s reasons must be considered with the following comment by the Supreme Court of Canada: It is often difficult “...to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 28.
[39] The trial judge correctly identified that, in two competing versions of the events, a conviction cannot rest on the acceptance of one version, or the rejection of one version of the events. The Crown always and only bears the onus and standard of proof for a conviction.
[40] The trial judge considered the extensive evidence regarding what the Defence considered and submitted were inconsistent with the actions of a sexual assault victim.
[41] It was within the trial judge’s judicial function to reject the main submission of the Defence, namely, that the complainant’s behaviour was inconsistent with having been the victim of a sexual assault and, therefore, on that basis, her evidence should either be rejected or raise a reasonable doubt.
[42] When the case involves allegations of sexual assault, the trial judge’s assessment of the credibility of a complainant must be based on the evidence before the court and not on generalized and stereotypical assumptions of how a victim of sexual assault ought to properly behave failing which the complainant should not be believed and not credible. To rely on such assumptions results in the potential for injustice and jeopardizes the fair trial process. Such assumptions and stereotyping are “particularly invidious because they comprise part of the fabric of social ‘common sense’ in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors.” R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 103.
[43] The Defence submits that the trial judge erred in failing to consider the complainant’s behaviour in assessing her credibility and reliability. The Defence relies on R. v. D.D., 2000 SCC 43, [2000] 2 SCR 275.
[44] I reject this submission. In this case, the trial judge, in her reasons, set out why the complainant’s sexual assault behaviour was “understandable and, in hindsight, justified”. And the trial judge went on to explain why justified. Equally important, the trial judge rejected other witness’ who described this complainant’s sexual assault behaviour because their credibility was compromised due to their outdated sexual assault beliefs and myths.
[45] Accordingly, on this basis, the trial judge was permitted to reject the Defence submission that the complainant’s sexual assault behaviour, in this case for this complainant, should have resulted in the trial judge either disbelieving the complainant or leaving the trial judge with reasonable doubt as to the alleged sexual assault having taken place.
Patrick A. Welch’s Attendance at the Complainant’s home
[46] Patrick A. Welch, in chief, stated that he was told by Suzanne Mandingo that the complainant’s father had called and there was a “problem” (see page 69 CaseLines C-1-559). Patrick A. Welch also testified he thought that the complainant was upset about the break-up with her boyfriend.
Q. Okay. And what’s the next thing that happens when there’s no response from her?
A. I felt [the complainant] was upset about the break-up of her boyfriend, so I knelt down and rubbed her back and asked her if she was okay.
(Patrick A. Welch In Chief)
[47] During cross examination, Patrick A. Welch admitted that the knew about the sexual assault allegation by the complainant before going over to the complainant’s home to confront the complainant.
Q. Okay. So how did you become aware of what was going on between Brian and Sue as far as conversation?
A. When I come back from delivery, Sue met me outside and said Brian had called.
Q. Okay. Did she tell you why Brian had called?
A. Yes, she did.
Q. What did she say?
A. She said Brian, [the complainant] said you assaulted Brian or [the complainant].
Q. Okay. And how did you feel when she told you that?
A. I asked Sue to call Brian. I wanted to speak to [the complainant].
Q. Yeah, you wanted, you wanted to confront her, right?
A. Yeah.
Q. Yeah. So, this story about you went up there to comfort her because of the break-up of her boyfriend, that’s completely incorrect?
A. No. That’s, that’s all she ever talked about.
Q. You wanted to go up there to confront her about this allegation she just made...
A. No.
Q. ...about you? Right?
A. No. I wanted to see what was going on.
Q. Right. I mean, when did she break up with her boyfriend?
A. Just a couple weeks prior.
Q. And had you gone out to her place a couple of weeks...
A. She kept...
Q. ...to see her?
A. ...she kept coming to the restaurant and telling us about it. She came down to the restaurant to tell us about it.
Q. Okay. Did you ever confront her or speak to her alone about the break-up of her boyfriend?
A. No.
Q. So, you just chose this particular day to drive up to her house, while her parents are there, to talk to her about the break-up of boyfriend?
A. Well, no, I wanted to see what was going on.
Q. Well, you knew what was going on. She’d accused you of touching her, right?
A. That’s what she said.
Q. Right. So, you were upset about that?
A. Yes, very.
Q. So, you wanted to confront her about it?
A. I wanted to find out what was going on.
Q. Okay. So that was the purpose that you went there?
A. Yes.
[48] The trial judge had ample evidence before her to conclude, as she did, that Patrick A. Welch went to confront the complainant to have her retract her statements regarding the sexual assault. This conclusion was consistent with the evidence of the complainant, the complainant’s father, and mother (a Defence witness), that Patrick A. Welch stated he did not want to go to jail while at the complainant’s home.
[49] The Defence’s submission on this appeal, that Patrick A. Welch, because of his prior convictions, was aware that the complainant’s allegation alone would result in going to jail (at least for some time even if just bail) is speculative and not part of the trial evidence. Given the trial evidence, the trial judge had ample basis to conclude that Patrick A. Welch’s behaviour and statements demonstrated a consciousness of guilt or post offence conduct in these circumstances.
The Human Resources’ Investigation
[50] There was trial evidence regarding Suzanne Mandingo authorizing an investigation into the sexual assault.
[51] The trial judge did not deal with this. And I might add for good reason.
[52] First, Suzanne Mandingo is the owner of the Family Shed. Patrick A. Welch is her common law husband.
[53] Second, Suzanne Mandingo appointed one of her own employees, the cook, Ms. Lawrow, to conduct the investigation into whether Suzanne Mandingo’s own common law partner, had committed a sexual assault against the complainant.
[54] The impartiality of the investigation was seriously impaired. Ms. Lawrow admitted that the investigation put her in an “untenable position”.
[55] In any event, what another person may have heard from the persons she spoke to and whatever she concluded had or had not happened, would and could not have had any evidentiary value to the court on the sole issue to be decided by the court.
The Grounds of Appeal
[56] In my view, what is sought in this appeal is a clear reassessment and of the trial evidence seeking this appellate court to come to another and different conclusion than the trial judge’s assessment, findings of fact and conclusion.
Assessment of the Evidence
[57] The Defence points to various specific pieces of the evidence, which are alleged to be inconsistent with the trial judge’s assessment and conclusion or which the Defence alleges that the trial judge failed to specifically deal with in her reasons. The Defence alleges that the trial judge’s reasons were insufficient in failing to have dealt with all the alleged inconsistencies.
[58] However, a trial judge does not have an obligation to recite every piece of evidence nor deal with every inconsistency – only material inconsistencies. For the reasons that follow, I am not persuaded that the trial judge failed to deal with any material inconsistencies.
[59] The Defence submits there were “misapprehensions or misperceptions” in the trial judge’s findings. I am not persuaded that there were any such material misapprehensions which might have impacted the trial judge’s decision in this case.
[60] While the Defence alleges that the trial judge misapprehended the evidence, for the reasons that follow, I find there was is no basis to conclude that the trial judge misapprehended the trial evidence (let alone a palpable and overriding error), nor any misapprehension of the defence theory.
[61] The Defence submits the reasons were “insufficient”. Insufficient reasons are a valid ground of appeal but only when the trial judge’s reasons are so deficient that they foreclose meaningful appellate review. The reasons must permit the parties to understand what the trial judge decided and why, in a manner permitting meaningful appellate review. The reasons must be considered as a whole and within the context of the issues and trial evidence. Here the trial judge explained how each piece of evidence contributed to her conclusion that the Crown had proved the offence beyond a reasonable doubt. I reject this ground of appeal as the reasons permitted a meaningful review in the circumstances of this case.
[62] The Defence submits that the trial judge erred and misapprehended the evidence and defence theory. The Defence submits the trial judge was “significantly influenced by the misperception of reliance on the twin myths.” This was not a twin myth case. The Defence heavily relied, at trial, on what is often referred to as the “sexual assault behaviour” myth – that is there is a right way and a wrong way for a victim of sexual assault to behaviour during or after the sexual assault or when to report the sexual assault. The Defence submitted that the complainant’s sexual assault behaviour during and after the sexual assault was inconsistent with a person who was sexually assaulted and as such, the complainant should not be believed, or her credibility be seriously impacted by her behaviour.
[63] The Defence at trial, in reply, acknowledged, when asked by the trial judge that: “trial judges are to disabuse themselves of the notion that there is some way that we should expect victims of sexual assault to act, right?” Response by Defence trial counsel – “Absolutely. Absolutely”. That’s not an issue.” (page 65 March 24, 2022 transcript of the Defence closing submissions).
[64] The trial judge rejected this submission which relied on generalized and stereotyped assumptions. The trial judge did so by explaining why:
• The other witnesses, who had not witnessed the sexual assault, accepted the sexual assault behaviour myth that there was a “right way” for a sexual assault victim to behave;
• Some witnesses didn’t believe the complainant when they heard of the allegations and other witnesses who said they wouldn’t believe the complainant because they believed her to be a liar; and
• The complainant’s explanation for her sexual assault behaviour was accepted and, was in hindsight “justified” for the reasons described by the trial judge.
[65] I am satisfied that the trial judge’s reasons sufficiently demonstrated why she rejected this defence submission and the evidence of the other witnesses regarding the complainant’s behaviour during and after the sexual assault.
[66] While I agree that the Defence counsel made careful and thorough closing submissions, but that doesn’t mean that the trial judge must deal with each of those submissions. Having reviewed the submissions and the trial judge’s reasons, most of the Defence submissions were easily disposed of by rejecting the Defence’s evidence amounting to sexual assault behaviour myth, or that the alleged conduct amounted to horseplay at work or that the OHRT complaint was not financially motivated.
[67] The Defence points to the fact that the trial judge recognized that Patrick A. Welch’s denial was not shaken during cross examination. The fact that Patrick A. Welch was not shaken in his denial is simply one piece of the evidence the trial judge can consider that might or might not raise a reasonable doubt. It depends on the totality of the evidence, all of which must be considered, assessed, and then findings of fact are made by the trial judge. As such, the trial judge was entitled to reject that denial and further find that that Patrick A. Welch’s rejected “unshaken denial” did NOT raise a reasonable doubt.
[68] The Defence submits that Jesse Saito testified he was present the entire time at the restaurant and that no assault occurred. That was not his trial evidence. Mr. Saito stated that he helped bring and spread the ice in the freezer. He didn’t see the complainant after that. And then he left the restaurant. Mr. Saito does not say he was there when Patrick A. Welch and the complainant went to put away the chicken in the freezer or that he even saw the complainant after that. The lack of cross-examination of Mr. Saito by the Crown added nothing to whether the conduct took place.
[69] I do not accept the Defence submission that the trial judge’s reasons, used the rejection of the Defence’s sexual assault behaviour defence as reversing the onus or using the rejection of the Defence sexual assault behaviour defence as bolstering the complainant’s credibility. The trial judge’s reasons belie that conclusory submission.
[70] The Defence submits:
“In this case the Court adopted the Crown’s submissions without questions, challenge, or analysis. The Trial Judge then mounted a wholesale attack based on a misapprehension regarding the Twin Myths and gave the impression that Patrick Welch did not receive a fair Trial.”
[71] There is no basis to accept this bald submission. Accepting submissions from either the Crown or the Defence, does not mean that the judge “mounts a wholesale attack” nor does accepting a submission result in the denial of a fair trial.
[72] The Defence submits that the trial judge did not deal with the discussions regarding the complainant’s return to work at the restaurant. The trial evidence was that the complainant would consider returning to work if acceptable arrangements could be made to ensure that Patrick A. Welch would not attend at the restaurant at the same time. That never happened. I fail to see the relevance of this to the assessment and finding of fact as to whether the sexual assault took place.
[73] The Defence submits that it relied on the OHRT complaint as a financial motive to fabricate. The trial judge dismissed this for reasons she clearly stated.
Post Offence Conduct
[74] The Defence makes the following submission on appeal:
The Crown raised the issue of post offense conduct in its submissions. The Crown simply made a bald statement with no analysis and did not offer any case as guidance. The Crown did not make any submission with respect to the fact that the statement proved consciousness of guilt or that guilt was the only rational inference to be drawn from this circumstantial evidence.
The Trial Judge merely adopted the Crown submission and referred to the evidence as evidence of post offence conduct thereby implying that she drew an inference of guilt from it. The Trial Justice did not explain how guilt was the only rational inference and therefore failed to provide the appropriate roadmap of her decision making.
[75] The trial judge did not merely adopt the Crown submission. The Crown did submit, during closing:
You heard the evidence that when Mr. Welch went there, he even begged her, he said don’t send me to jail, I don’t—well, I mean that if you’ve not done anything wrong, why would you say that to [the complainant]. But he recognized he’d crossed that line and now there was that possibly of maybe police involvement.
(page 59 March 24, 2022 Crown Closing Submissions).
[76] More importantly, the Defence did not, during his reply at trial, suggest any other rational inference from Patrick A. Welch’s conduct of going to confront the complainant, alone, immediately after knowing of the sexual assault allegation under the guise of comforting her for a prior break-up.
[77] As for the post offence conduct, the trial judge had an evidentiary basis to conclude that Patrick A. Welch’s stated reason for going over that night (to find out what was going on about the complainant’s break-up with another boyfriend of several weeks early) was false when Patrick A. Welch knew about the sexual assault allegation and, in reality, went there to confront the complainant and getting her to withdraw the allegation so he wouldn’t have to go to “jail”. In these circumstances, there was no other reasonable and rational explanation other than Patrick A. Welch knew he had done something wrong and was trying to avoid its consequences.
Uneven Scrutiny
[78] The Defence submits:
- After denouncing the perceived defence reliance upon the twin myths, The Trial Justice embarked on a mission to justify the Complainant's lack of reporting. The Trial Justice used the Complainant's non reporting to bolster the Complainant's credibility. The Justice relied upon the same type of impermissible Twin Myths reasoning to determine that the Complainant’s alleged decision to remain silent until she got home was typical conduct for a Complainant in a sexual; assault case and that that conduct bolstered her credibility. Therefore, The Trial Justice adopted an uneven approach to scrutiny of the evidence.
[79] In order to displace the deference due to a trial judge’s credibility assessments, the party making this allegation must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99.
[80] I reject this submission. There is no evidence and nothing in the trial judge’s reasons to support this bald submission.
[81] A rejection of the Defence primary submission (the complainants sexual assault behaviour), does NOT mean that the trial judge used that rejection to bolster the complainant’s credibility. There was careful analysis by the trial judge as to why the complainant’s behaviour was understandable and justified, and the acceptance of the complainant’s behaviour as to what happened.
Material Inconsistencies
[82] The Defence submits that the “articulated inconsistencies in the Complainant’s conduct and statements including the OHRT claim and linked them to the motive to fabricate.”
[83] Again, the Defence ignores the fact that the trial judge rejected the OHRT complaint because she stated that it was brought, “after the sexual assault, and after the complainant had obtained legal advice”.
[84] The Defence suggests that the trial judge “dismissed all of defence Counsel's submissions regarding inconsistencies and lumped them under her finding that references to touching verses rubbing her breast were not a serious inconsistency.” The difficulty the Defence faces is that it does not point to any “material inconsistency” that should have been dealt with by the trial judge in her reasons. Essentially, the trial judge found that there were no material inconsistencies with the complainant’s evidence, internally and externally and then pointed to the fact that, while the Defence attempted to raise inconsistencies with the complainant’s description as to what happened, the complainant’s trial evidence was consistent with the first statement made (made when the complainant got home and wrote it out to her parents and was used to attempt to impeach the complainant) and that inconsistencies such as “rubbing” versus “touching” her breasts were not material. I see no error in the trial judge’s reasons.
Deleting/Shifting the Burden
[85] The trial reasons do not support any assessment or findings of fact based on “deleting or shifting of the evidentiary burden” in this case.
Failure to Consider Exculpatory Evidence
[86] The Defence submits:
The Trial Justice became an advocate for the complainant’s position and sought to justify the complainant’s delayed reporting. In order to do so Her Honour failed to consider relevant exculpatory defence evidence such as the fact that the complainant referred to Faith Sears as Grandma.
[87] There is no evidence the trial judge was an advocate for either side.
[88] The Defence submits that the trial judge failed to consider “relevant exculpatory defence” and points to Ms. Sears evidence. I fail to see its relevance. Ms. Sears is Suzanne Mandingo’s mother. Ms. Sears testified that she didn’t believe the complainant and told her that evening, “you’ve told stories before, you need to be careful what you say because you’re going to hurt… other families, the way you’ve been doing all long with your mom and dad”. (August 13, 2021 page 101-102) and went on to say:
Q. And you were concerned about the business and the fact that your daughter wanted you go talk to [the complainant]. You went and spoke to her and cautioned her or threatened her even...
A. I never threatened her at all.
Q. ...because you didn’t think that what she was saying was the truth?
A. You got to know her.
Q. Well, I do know her.
A. Yeah? Well, you know that she’s a liar.
(August 13, 2021, page 104)
[89] There was ample basis to reject this evidence and was referred to in the judge’s reasons.
Motive to Fabricate
[90] The Defence submitted that the complainant had a motive to fabricate, the trial judge did not find a motive to fabricate for the reasons described by the trial judge in her reasons. Therefore, the trial judge did not use this to (as alleged by the Defence to “bolster” or “make weight” for the complainant’s credibility.
Reliance on J.J.R.D.
[91] The Defence submits that:
…the Trial Justice, ex proprio motu, relied heavily on the J.J.R.D. decision. The Trial Justice did not invite Counsel to make submissions with respect to that decision. The decision in J.J.R.D. is about the sufficiency of reasons. The trial Justice did not have the benefit of Justice Paciocco’s decision in R. v. C.L.
[92] The fact that neither counsel referred to R. v. J.J.R.D. 2006 CanLii 40088 but it was referred to by the trial judge in her reasons is not a valid ground of appeal or of criticism. J.J.R.D. is a 2006 legal authority. It was reported 12 years ago. Counsel are deemed to know the law that existed at the time. The trial judge is entitled to rely on previous legal authorities not referred to by counsel. There is no obligation on a trial judge to invite further submissions in these circumstances.
[93] The Defence refers to R. v. C.L. 2020 ONCA 258 and submits that the trial judge made the same error as the trial judge did in C.L.
[94] There is no merit to this submission. First, C.L. did not alter the law set out in J.J.R.D. Second, C.L. determined that a jury instruction which used the words a “considered and reasoned acceptance”, described in J.J.R.D., is different at law than a “considered and reasonable acceptance. The Court of Appeal stated:
[31]….The first use of the word “reasonable” in that direction has meaning only if it is understood to be modifying the kind of reasonable doubt that will suffice for a conviction. This direction could well have been understood by a juror to be authorizing C.L.’s conviction if acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is a reasonable conclusion. This is not consistent with the law….
[95] This remains consistent with the Court of Appeal’s comments in R. v. G.C. 2021 ONCA 441 at para. 15:
[15] As noted in R. v. R.A., 2017 ONCA 714, 421 D.L.R. (4th) 100, at para. 55, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307, an accused person is not entitled to an acquittal simply because his evidence does not raise any obvious problems. His evidence may be rejected “based on considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” which may provide “as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence”: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69. This is what the trial judge did in this case.
[96] Unlike C.L., the trial judge in this case, identified material flaws in the Defence, despite Patrick A. Welch’s unshaken denial. Those material flaws included the post offence conduct of Patrick A. Welch, which was corroborative of the fact that Patrick A. Welch had committed the sexual assault despite his denial of having to do so.
[97] In support of the Defence submission that the trial judge’s reasons are not “reasoned and considered”, the Defence simply repeats the same issues raised above and rejected by this court.
Conclusion on the Conviction Appeal
[98] The conviction appeal is dismissed.
Defence Position on Sentencing on Appeal
[99] On appeal, the Defence submits that the sentence imposed was manifestly unfit and unreasonable in all the circumstances because:
The Reasons for sentence make it clear that the sentencing Justice continued to suffer from a misapprehension of the defence theory and that she allowed that misapprehension to influence her view of the appellant’s insight into the crime and his prospects for rehabilitation and the safety of the community.
Trial Judge’s Sentencing Reasons
[100] After identifying the appropriate principles of sentencing, the trial judge concluded that a 9-month sentence, followed by two years probation, was a fit and appropriate sentence referring to:
a) There was no mitigation factor for remorse as there was no remorse demonstrated.
b) Patrick A. Welch was in a position of authority as the “much older male and the spouse of the owner of the restaurant who was [the complainant]’s employer.”
c) The trial judge rejected the attempts to downplay the seriousness of the sexual assault as “horseplay” which the trial judge concluded demonstrated “that Mr. Welch has a complete lack of insight into the moral blameworthiness of his conduct, and again raises concerns about the likelihood of Mr. Welch reoffending.”
d) The impact of the sexual assault on the complainant.
e) In addition to two other very old assaults, Patrick A. Welch had two prior convictions for simple assault in 2005 and one in 2017. The 2005 assault conviction related to a matter “similar in nature to this current matter”. In the 2017, the matter was pled down and “given the nature of the offence, the subject was referred to the Sex Offender Relapse Prevention program”. The trial judge considered these convictions on Patrick A. Welch’s prospects for rehabilitation.
f) The 2017 conviction resulted in a probation order that had expired only months before the sexual assault in this case.
g) The trial judge rejected the imposition of a conditional sentence as inappropriate. The trial judge stated, “Even though [the complainant] was an adult at the time of the offence, she was a young adult in a position of vulnerability in relation to Mr. Welch and the offending conduct was perpetrated in the workplace.”
[101] Patrick A. Welch was not a first-time offender. Given his record, there was no obligation on the trial judge to apply the principal of restraint.
[102] Given the above circumstances, a custodial sentence was appropriate.
[103] Given the authorities cited by counsel, I am not persuaded that the sentence was demonstrably unfit and unreasonable in the circumstances.
Conclusion on the Sentencing Appeal
[104] Appeal dismissed.
Conclusion
[105] The appeal is dismissed.
[106] Patrick A. Welch is to surrender himself to the police authorities by 4 pm on January 11, 2024.
Ricchetti J.
Released: January 08, 2024
COURT FILE NO.: CR-22-00000033-00AP (Simcoe)
DATE: 2024 01 08
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING, Respondent
- and -
Patrick A. WELCH, Appellant
Counsel: R. Eddy, for the Crown/Respondent
C.O. Spettigue, for the Appellant
SUMMARY CONVICTION APPEAL JUDGMENT
(On Appeal from the verdict of Justice A. Hilliard of the Ontario Court of Justice dated May 31, 2022 and the Sentence dated November 10, 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. This judgment complies with this restriction so that it can be published.
Ricchetti J.
Released: January 08, 2024