COURT FILE NO.: CR-23-0056-AP DATE: 2024-03-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING P. Pasloski, for the Crown Crown
- and -
P.B. R. Sinding, for the Accused Accused
HEARD: January 19, 2024, at Thunder Bay, Ontario RSJ W. D. Newton
WARNING An order has been made under s. 486.4 of the Criminal Code restricting publication of any information that could identify a complainant or a witness in this proceeding.
Criminal Summary Conviction Appeal
Overview
[1] P.B. appeals his convictions and sentence for two counts of sexual assault and two counts of assault with a weapon. The complainant on all counts was his former spouse. One sexual assault conviction related to an allegation of non-consensual vaginal sex; the other to an allegation of non-consensual anal sex. One assault with a weapon conviction related to an allegation that P.B. threw a picture frame at his spouse; the other that he threw a pop can at his spouse.
[2] P.B. was acquitted on count 3 – another charge of assault with a weapon, a knife.
[3] The offences were alleged to have occurred between 2003 and 2016. [1]
[4] Three witnesses testified: the former spouse, their son, and P.B.
Grounds of Appeal
[5] The grounds of appeal as I understand them are:
1: that the trial judge misapplied R. v. W.(D.) by: i. failing to address P.B.’s Credibility, and Errors in Assessing the Complainant’s Credibility ii. failing to Reconcile the Omissions from the Family Law Act Affidavit iii. ignoring P.B.’s defence of honest but mistaken belief in consent regarding the anal sex (count 5) iv. the trial judge’s finding that the blanket denial was insufficient on:
- picture frame allegation (count 1)
- soda pop allegation (count 2)
- sexual assault allegation – vaginal sex (count 4)
2: that the trial judge did not provide adequate reasons to allow for meaningful appellate review
3: that the trial judge erred in applying various sentencing principles
1: that the trial judge misapplied W. (D.)
[6] P.B. submits that a W. (D). analysis was required of all conflicting evidence favourable to the defence. According to P.B., the trial judge appeared to accept the complainant’s evidence because she rejected the appellant’s evidence, and appeared “to feel she was obliged to accept one version or the other.”
[7] Counsel notes that, central to the reasons for acquittal on the assault with a weapon charge (count 3 – the knife incident) was the complainant’s failure to mention the knife component in an affidavit that she filed in July 2018 in a Family Law Act proceeding. [2] He further submits that the trial judge failed to address the fact that both sexual assault allegations were also absent from the affidavit and argues that it is inconsistent to ground a finding of reasonable doubt on this absence for one charge and not the others.
2: that the trial judge did not provide adequate reasons to allow for meaningful appellate review
[8] P.B. submits that there were inadequate reasons to explain the credibility findings and to explain the trial judge’s decision to use the affidavit evidence to acquit on the knife incident but not on the sexual assaults.
3: that the trial judge erred in applying various sentencing principles
[9] P.B. submits that the trial judge erred in sentencing by imposing the maximum available sentence despite P.B. being a first-time Indigenous offender, having significant Gladue considerations, and not being the “worst” offender. Further, P.B. submits that the trial judge erred by considering the range of sentences for indictable offences, rather than the appropriate range for summary conviction offences.
The Reasons of the Trial Judge
[10] The trial judge began her assessment of the evidence as follows:
The onus is on the Crown to prove the offences before the court beyond a reasonable doubt. This is a duty of the Crown without the accused having to testify. The basis of the case for the Crown on all of these charges is really the evidence of [the complainant].
Assault with a Weapon – picture frame – 2003 (Count 1)
[11] As described by the trial judge, the complainant testified that she and the accused had been fighting and P.B. picked up a framed picture from a shelf and threw it at her. She was able to dodge it and the frame broke against the wall. P.B. denied that this incident occurred and said that he would never do that to her.
[12] In convicting P.B. the trial judge stated:
He has not given any evidence, which would convince me under R. v. W. (D.) that this event did not happen as described by the complainant.
Assault with a weapon – thrown pop can – 2013 (Count 2)
[13] The trial judge summarized the evidence as follows:
The witness said she was standing between the kitchen and living room and was not wanting to go into the kitchen where her husband was because she was afraid. There were two cans of pop on the table. One was open. The accused took the unopened can and threw it at the complainant. She moved toward the stairs to avoid being hit. It hit the wall and broke. He left shortly thereafter. [P.B.] denies that he threw the soda can at his wife. He denies calling her names. He denies he left the house afterwards.
[14] In convicting P.B., the trial judge stated:
Does the evidence of [P.B.] raise a reasonable doubt about this as set out in R. v. W (D.)? As [P.B.] says that this event never happened it is difficult to understand how he knows that he did not leave the house afterwards. It seems that he must remember this event occurring to be able to identify where he was after the events. A blanket denial is insufficient to cause a reasonable doubt in this case.
Assault with a weapon – birthday cake knife – 2015 (Count 3)
[15] The trial judge summarized the accused evidence as follows:
In regard to the birthday cake incident the accused says that he did not put his hand on her hand but that he did cut the cake himself while she got the plates and cutlery.
[16] In acquitting P.B. of this charge, the trial judge stated:
I also note that the knife was absent from the Family Law affidavit of the complainant. While I may not believe the accused and the words attributed to him seem in line with other comments alleged to him in an application of R. v. W. (D.), I am prepared to acquit him of this charge as his evidence raises a reasonable doubt as to the circumstances related to the knife incident and the birthday cake.
Sexual Assault – 2013 – vaginal sex (Count 4)
[17] The trial judge summarized the evidence with respect to this incident as follows:
Although she only had one half hour for a lunch break she would come home daily for lunch because her husband would not make lunch for himself and if he did not have something to eat he would be very short tempered with the children when they came home. On this occasion she came home and made the sandwiches and was putting them on the table. He had been behind her grabbing her breasts and telling her he wanted to have sex, but she said no, kept saying no she did not have time. He took her and pulled her to the end of the table. He pulled her pants down and forced himself into her even though she was saying no. He told her to keep eating her sandwich. When he finished he walked away and said, “see I told you had time”. This evidence was not questioned. The accused said that the alleged sexual assault at lunchtime never happened. However, on cross-examination the accused said that the complainant did not come home to make lunch for him. He had already made the sandwiches and they were in the fridge. In fact, he testified that he made ham and mustard sandwiches with cut up marble cheese. He did not have sex with her he said.
[18] In convicting P.B. of this offence the trial judge gave the following reasons:
In applying R. v. W. (D) I do not believe that no event occurred on that date. A denial is insufficient to displace the clear evidence of the complainant that she was sexually assaulted and that she voiced her non-consent. The evidence of the accused does not raise a reasonable doubt nor does the evidence as a whole do so. On this basis I find the accused guilty of sexual assault.
Sexual Assault – 2015 – anal sex (Count 5)
[19] The trial judge summarized the evidence as follows:
Later they were upstairs in the bedroom and the accused wanted to have sex. The complainant was on her back when they were having sex. Then he tried to put his penis in her bum as she described it. She told him no. He went back into her vagina with his penis and then tried to go again into her anus. She tried to wiggle away from him but he had his hands under her thighs and she could not get away. He put his penis into her anus and it hurt and she was protesting and saying no. She was able to get her legs up and kick him off. When he came back and put his penis in her vagina even though she said no he told her that, "It didn't hurt that much". And, "It wouldn't have hurt that much if you hadn't moved". She was in pain and crying. She got in trouble for ruining the mood. In regard to the alleged sexual assault after the bonfire the accused said that after that the kids went to bed he and his wife went upstairs and made love then went to sleep. When confronted with the allegations of his wife regarding the sexual assault he said my wife and I make love, passionate love. I think we have an amazing passionate love. He did not testify about consent or the type of sexual interaction.
[20] The trial judge gave the following reasons for convicting P.B. of this offence:
In applying R. v. W. (D.) the accused agrees that there were sexual relations between himself and his wife on that occasion. This confirms that he was aware of the evening in question. However, on the critical issue of consent the accused offered no evidence at all. There is no implied consent in marriage. This lack of evidence on this critical issue does not raise a reasonable doubt in regard to sexual assault. In addition, on the basis of R. v. W. (D.) no reasonable doubt about the commission of the offence has been raised by the evidence of the accused or the evidence on the whole. On this basis I find the accused guilty of sexual assault.
Analysis and Disposition
[21] In R. v. I.F.L., 2024 ONSC 15, C. Boswell J. recently set out the principles governing appellate review of credibility findings:
[23] Appellate courts have repeatedly stressed that credibility findings are the province of the trial judge and attract significant deference on appeal. See R. v. G.F., 2021 SCC 20 at para. 99. It is not enough that a court, on appeal, may have a different opinion of the evidence than the trial judge. “A trial judge’s assessment of the credibility of a witness will not be disturbed unless it can be demonstrated that he [or she] committed a palpable and overriding error.” See R. v. Gagnon, 2006 SCC 17, at para 10.
[24] The deference afforded to trial judges’ credibility findings is grounded in the fact that the trial judge has the “overwhelming advantage of seeing and hearing the witness – an advantage that a written transcript cannot replicate.” See R. v. N.S., 2012 SCC 72, at para. 25.
W. (D.)
[22] The R. v. W.(D.) framework is intended to explain what reasonable doubt means in the context of conflicting testimonial accounts. [3] The usual recitation of the framework is as follows:
First, if you believe the evidence of the accused, obviously, you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.
[23] As noted by Paciocco J. (as he then was) in the article entitled “Doubt about Doubt: Coping with W. (D.) and Credibility Assessment”:
The first W. (D.) rule addresses what occurs when there is ‘‘total acceptance” of evidence inconsistent with guilt, the third W. (D.) rule instructs on when a conviction can follow after ‘‘total rejection” of the evidence that is inconsistent with guilt, and the second W. (D.) rule instructs that an acquittal must follow when there is indecision about whether to credit, or act on, evidence inconsistent with guilt. [4]
[24] With respect to the third W. (D.) rule, Paciocco J. stated that it “is meant to confirm that even after the total rejection of defence evidence, guilt is to be determined on the affirmative evidence that is credited, not on the simple fact that the defence evidence has been rejected.” [5] As he notes, this step is crucial in fair fact-finding in criminal cases:
As a matter of law, if individuals could be convicted simply because the exculpatory versions they have offered are rejected, this would reverse the burden of proof; they would be convicted because they have not proved their innocence. [6]
Sufficiency of Reasons and Credibility
[25] In R. v. Vuradin, 2013 SCC 38 (“Vuradin”), the Supreme Court of Canada dealt with the sufficiency of reasons in the context of credibility determinations. In Vuradin, the Supreme Court at para. 4 described the trial judge’s reasons as “sparse” and noted that the reasons “do not directly address the appellant’s evidence.” As described at para. 6, the trial judge noted that the appellant “simply denied all of the allegations.”
[26] The Supreme Court stated:
[11] Here, the key issue at trial was credibility. Credibility determinations by a trial judge attract a high degree of deference. In Dinardo, Charron J. explained:
Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error. As this Court noted in R. v. Gagnon, the accused is entitled to know “why the trial judge is left with no reasonable doubt”. [Citations omitted; emphasis added.]
[13] In R.E.M., this Court also explained that a trial judge’s failure to explain why he rejected an accused’s plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstrate that, where the complainant’s evidence and the accused’s evidence conflicted, the trial judge accepted the complainant’s evidence. No further explanation for rejecting the accused’s evidence is required as the convictions themselves raise a reasonable inference that the accused’s denial failed to raise a reasonable doubt. [Emphasis added.]
[27] I will apply these principles to the trial judge’s finding on each count.
Assault with a Weapon – picture frame – 2003 (Count 1)
[28] In convicting P.B. the trial judge stated:
He has not given any evidence, which would convince me under R. v. W. (D) that this event did not happen as described by the complainant.
[29] Although the statement “he has not given any evidence” could be construed as a reversal the burden of proof and the assessment of the evidence as a “credibility contest”, as the passage from Vuradin above states, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings.
[30] Implicit in the trial judge’s reasons are that she rejected the exculpatory evidence given by the accused, was not left with a reasonable doubt by the accused’s evidence, and was therefore convinced beyond a reasonable doubt of the accused’s guilt.
[31] As noted above, in beginning her assessment of credibility, the trial judge stated:
The onus is on the Crown to prove the offences before the court beyond a reasonable doubt. This is a duty of the Crown without the accused having to testify. The basis of the case for the Crown on all of these charges is really the evidence of [the complainant].
[32] The trial judge then set out why she concluded that the complainant was a credible witness. It is correct that she did not comment directly on the credibility of the accused at this point in her reasons, but the evidence P.B. gave was assertions that these allegations did not happen. He also described his memory as a “three, four maybe” on a ten-point scale. He testified that he had a hard time remembering.
[33] I find no error in the reasons for this conviction.
Assault with a Weapon – picture frame – 2003 (Count 2)
[34] In convicting P.B. the trial judge stated that a “blanket denial is insufficient to cause a reasonable doubt in this case.”
[35] Similarly, while this statement could also be construed as a reversal of the burden of proof and the assessment of the evidence as a “credibility contest”, I do not read the reasons as a whole as demonstrating that the trial judge made these errors. Again, implicit in the trial judge’s reasons are that she rejected the exculpatory evidence given by the accused, was not left with a reasonable doubt by the accused’s evidence, and was convinced of his guilt beyond a reasonable doubt.
[36] For the reasons set out above for count 1, I find no error in the reasons for this conviction.
Sexual Assault – 2013 – vaginal sex (Count 4)
[37] In convicting P.B., the trial judge stated that:
a denial is insufficient to displace the clear evidence of the complainant that she was sexually assaulted and that she voiced her non-consent. The evidence of the accused does not raise a reasonable doubt nor does the evidence as a whole do so.
[38] What I have stated with respect to the reasons for the two previous convictions also applies to the conviction on count 4.
[39] While the trial judge did not comment specifically on the fact that the allegations of sexual assault were not mentioned in the family law affidavit (unlike her approach to count 3), she had already dealt with this affidavit early on in her decision before she reviewed the evidence on each count.
[40] The trial judge noted that the complainant:
…was asked why she did not report these events at the time. The complainant said that the longer she was out of the relationship the more she understood how wrong what happened to her was. During their family court case [the complainant] signed an affidavit in Family Court in July of 2018. Her affidavit contains one of the incidents, a soda can incident and a birthday cake incident but she does not mention the knife. She answered that she remembered the knife later and did not know that she could change her affidavit. She said that the court proceeding was dealing with the children and she did not feel that she should be putting things in there related to herself especially the sexual assaults. The witness said that she was dealing with a lot at the time of separation and it was hard to talk about. [Emphasis added.]
[41] While the trial judge did not specifically refer to the family law affidavit in her reasons in convicting the accused of this offence, the trial judge, having specifically addressed the absence of references to sexual assaults in the affidavit, implicitly accepted the complainant’s explanation as to why the sexual assaults were not disclosed in the affidavit.
[42] I find no error in the reasons for this conviction.
Sexual Assault – 2015 – anal sex (Count 5)
[43] In convicting P.B. the trial judge stated that “on the critical issue of consent the accused offered no evidence at all.”
[44] However, the accused testified as follows:
Q. Okay. What do you do when your wife says she doesn't wanna have sex with you? A. I don't have sex with her. Q. Now she alleges in 2015 on a night in October after a campfire with the neighbors you and her were having sex when you started telling her you wanted to have anal sex and she says that she said no several times but you forced her into having anal sex anyways against her consent? A. I didn't. I didn't force myself on her. Q. Can you provide any more detail about that evening? A. We only had friends, friends over, a campfire. Everything was good. I wasn't drunk. She wasn't. Just had a good, good evening. And when the kids went to bed my wife and I we'd make love. Passionate love. I loved making love to my wife. She loves it. We've been married for 18 years. I think we have an amazing passionate love. I would never hurt my wife. I would never force myself on Kelly. I would never do that. Q. And she says that after she kicked you off you came back rolled her on her back and continued to have vaginal sex with her even though she'd said no now? A. That's not true. Q. Do you recall how the night ended? A. We made, we made love and then after we go to bed. Q. Kelly said that you would often have sex with her when she said she didn't want to? A. That's false, that's not true. [Emphasis added.]
[45] The statement, “I didn’t. I didn’t force myself on her”, was construed by the trial judge as that the accused offered no evidence with respect to consent. Although based on the questioning by counsel this could be construed as ambiguous, I am satisfied that it was an error for the trial judge to conclude that the accused offered no evidence with respect to consent. These statements underlined above are some evidence of consent which the trial judge did not consider. This, therefore, is an error and the conviction for count 5 is set aside and a new trial ordered.
Sentencing
[46] The trial judge sentenced P.B. to 18 months custody for the sexual assault from 2015 (count 5) and 10 months concurrent on the sexual assault from 2013 (count 4). With respect to the two convictions for assault with a weapon, the trial judge imposed a suspended sentence. Each sentence included 12 months of probation with specified terms.
[47] Among the aggravating factors listed by the trial judge was that there were two sexual assaults.
[48] In determining sentence, the trial judge specifically identified mitigating factors including that P.B. was a first-time Indigenous offender with significant Gladue factors.
[49] As to the submission that the trial judge erred in considering the range of sentences for indictable offences, the Supreme Court of Canada stated at para. 15 of R. v. Solowan, 2008 SCC 62:
[15] A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be "scaled down" from the maximum on summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be "scaled up" from the sentence that the accused might well have received if prosecuted by summary conviction.
[50] A recent decision of the British Columbia Supreme Court, R. v. C.T.P, 2023 BCSC 416, succinctly summarizes this principle:
32 Under s. 718.1 of the Criminal Code, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Maximum sentences are no longer reserved for the "worst offender" or the "worst offence", and whether the Crown has proceeded summarily or by way of indictment is not a "circumstance" relevant to parity. [Emphasis added.]
[51] I would not give effect to any of the grounds of appeal with respect to sentence. However, the trial judge considered as an aggravating factor that there was more than one sexual assault. I have set aside the conviction for one sexual assault and ordered a new trial. The sentence imposed for the sexual assault conviction that remains (count 4) was 10 months concurrent plus probation. Given that this aggravating factor has been eliminated the sentence for the sexual assault conviction will be varied by reducing the sentence from 10 months to eight months. All other sentences will remain as ordered including the period and terms of probation.
Conclusion
[52] The appeal is allowed in part. The conviction for count 5, the sexual assault in 2015, is set aside and a new trial is ordered.
[53] The sentence for count 4, the sexual assault in 2013, is varied by reducing the term of imprisonment from 10 months to eight months. All other terms, including the period and terms of probation, are not varied.
“originally signed by”
The Hon. RSJ W. D. Newton
Released: March 14, 2024
COURT FILE NO.: CR-23-0056-AP DATE: 2024-03-14 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Crown - and – P.B. Accused CRIMINAL SUMMARY CONVICTION APPEAL Newton RSJ. Released: March 14, 2024
[1] The trial proceeded summarily with the accused consenting to the charges proceeding outside the six-month summary conviction appeal period.
[2] Although made an exhibit at trial, neither Defence nor the Crown had that affidavit as part of the Appeal Book.
[3] David M. Paciocco, “Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment”, (2017) 22 Can. Crim. L. Rev. 31, at p. 35.
[4] Paciocco, at p. 41.
[5] Paciocco, at pp. 45-46.
[6] Paciocco, at p. 46.