Court File and Parties

COURT FILE NO.: 23-039-00AP DATE: 2024/04/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. M.B.

BEFORE: M.G. Ellies J.

COUNSEL: Kara Vakiparta, Counsel, for the Crown William Gilmour, Counsel, for the Respondent

HEARD: April 5, 2024

Publication Restriction Notice

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this endorsement as the complainant may be published, broadcast, or transmitted in any manner. This endorsement has been anonymized to permit their publication.

Endorsement

[1] The Crown appeals the acquittal of the respondent by the trial judge on charges of sexual assault and sexual interference. The charges related to allegations made by a single complainant, the respondent’s step-granddaughter, who testified that the respondent took photos of her wearing certain suggestive clothing and inserted his finger into her vagina after giving her alcohol while she was at the respondent’s home.

[2] Importantly, the complainant testified that the respondent went downstairs to the basement to check on her state of sobriety every hour or so and that he made the trip approximately five times over the course of the evening.

[3] The complainant also testified that the respondent took three photos of her wearing the clothing in question. On consent, a photograph showing the complainant wearing the clothing was admitted into evidence. The photograph had been found on the respondent’s phone by the respondent’s son after the allegations came to the attention of the respondent and his family.

[4] The defence called four witnesses, including the complainant’s mother, her stepfather (the respondent’s son), her step-grandmother (the respondent’s wife), and the respondent. During his evidence, the respondent admitted telling the police that, while he did not think he did, it was possible that he touched the complainant’s vagina over her clothes while he tried to pick her up that night after she had been drinking. However, he denied the allegations that formed the basis of the charges.

[5] The respondent testified that he was suffering significant mobility issues on the date of the alleged offences. He was on oxygen for COPD in the form of both a tank and an infusion into his home’s ventilation system. He testified that he was incapable of going up and down the basement stairs as many times as the complainant alleged and his evidence in this respect was supported by all of the defence witnesses.

[6] During the cross-examination of the complainant and the evidence-in-chief of the defence witnesses, defence counsel asked about the complainant’s reputation for veracity within the family unit. The complainant admitted that she lied to her family about a number of things. The family members who were asked about the subject were asked whether they were aware of the complainant’s reputation within the family for truthfulness; if so, what that reputation was; and whether they would believe the complainant regarding the allegations being made against the respondent. Those witnesses who were asked these questions, including the complainant’s mother and stepfather, testified that they would not believe her.

[7] Following the conclusion of counsel’s submissions, the trial judge took a recess. Following the recess, for reasons delivered orally, she dismissed the charges against the accused, and entered verdicts of not guilty on each count.

[8] The Crown advances two main grounds of appeal.

[9] First, it argues that the trial judge erred by permitting the respondent to ask the mother and stepfather whether, based on the complainant’s reputation within the family for truthfulness, they would believe her allegations. I would not give effect to this ground of appeal.

[10] It is true, as the Crown submits, that the Ontario Court of Appeal in R. v. Clark (1998), 112 O.A.C. 233, 129 C.C.C. (3d) 1, revisited the law surrounding the introduction of reputation evidence concerning a witness’s veracity and held that the required analysis of balancing probative value against prejudicial effect ordinarily weighs against permitting the last question on the basis that it goes to the ultimate issue.

[11] However, there was no objection by the Crown at trial in this case to this or any other reputation evidence. While the failure of the Crown to object at trial is not fatal to the appeal, the failure of counsel to object may “serve as a gauge” against which the extent of the prejudice complained of may be “measured at the appellate stage”: R. v. Ramos (1997), 101 O.A.C. 211, 35 W.C.B. (2d) 526 (C.A.), at para. 27.

[12] The trial judge does not appear to have relied on the impugned evidence at all in her reasons. Instead, she appears to have relied on the complainant’s own admission that she had lied to her family in the past. At p. 32 of the transcript, the judge said:

H.’s evidence was delivered by her in a forthright manner. There were, however, some areas of her evidence that cause concern for the court. H., as mentioned above, acknowledged that she has been less than honest with her family in the past. H.’s evidence is the complete case against M. In light of the frailties of her evidence, it would be dangerous to base a conviction upon only her evidence.

[13] Given the failure to object and the fact that the trial judge did not appear to rely on the impugned evidence, this ground of appeal must fail.

[14] Secondly, the Crown contends that the trial judge’s reasons were insufficient to explain why she rejected key pieces of the Crown’s case and accepted the respondent’s evidence denying the allegations. In particular, the Crown submits that the reasons do not explain how the judge dealt with the evidence of the photograph and the respondent’s admission that he might have touched the complainant’s vagina when he picked her up and certainly not how she could have concluded that she believed the respondent “beyond a reasonable doubt”.

[15] In my view, the trial judge’s reasons were adequate.

[16] As the Crown concedes, the trial judge’s reasons must be interpreted in the context of the submissions made at trial. This is certainly so in a case like this one, where the trial judge delivered her reasons orally shortly after hearing the Crown’s submissions. During those submissions, the trial judge and Crown counsel (not Ms. Vakiparta) engaged in the following colloquy regarding the photograph, at p. 15 of the transcript:

[THE CROWN:] However, I found him, his evidence to be, he, his evidence in respect to the photograph, he was unable to testify why a photograph would’ve [been] on his phone or give any reasonable, any reasonable alternative for how that phone could’ve, how that photograph could’ve have resulted on... THE COURT: He’s not... [THE CROWN:] ...his phone. THE COURT: ...obliged to give an alternative. It’s not the role of the defendant. I also don’t have evidence about the metadata of the phone. [THE CROWN:] Yes. THE COURT: Of the picture. ‘Cause all I have is a printout of a picture. What do I do with that? [THE CROWN:] Well, it’s an admission that that picture, that photograph was found on his phone. THE COURT: He also testified that he had never seen it before Richie came to his house and showed it to him. [THE CROWN:] Yes, so he did testify that, that other people had looked at his phone since, at the time period from when, when it was, when the allegations were said to have occurred until it was found on his phone. That, his evidence was that that would’ve happened in his presence and that his son-in-law came and pulled up the phone in front of him and found the phone [sic] and showed it to him. It had to arrive on his phone somehow. It is his phone, it’s a photograph that’s.... THE COURT: Don’t we, don’t we have to prove that? Like don’t you have to, isn’t there a way that an investigative step could’ve been done to show me if that photo was taken with that phone? How do, how do I know that? All I know is that there was photo there that the accused says he, he’d never seen before. [THE CROWN:] Yes. So, that is, that is all you know. I’m, I do not know, I’m not an expert in cellphones, I’m not sure... THE COURT: Neither am I, that’s why... [THE CROWN:] ...I’m not sure... THE COURT: ...I rely on evidence... [THE CROWN:] ...to tell me what I can do with that photograph. [THE CROWN:] So, what you could, all, all I’m suggesting is the only way that I’m asking you to rely on that is that it was found on his phone. Obviously.... THE COURT: Which was admitted. [THE CROWN:] Yes. Obviously, it got on his phone in some fashion. I suppose it could have been sent to him, somebody else could have put it on his phone, or he could have, he could have taken it himself. There are a multitude of ways it could have.... THE COURT: I can’t do anything with that photograph.

[17] It is clear from this exchange that the trial judge did not view the photograph as the “anchor” the Crown presently submits it was. I agree with the trial judge in this respect. All she had was a photograph and a multitude of ways that it could have gotten onto the accused’s phone. There was evidence that a young male friend of the complainant’s had been to visit her at the respondent’s home that same day and no evidence to explain why only one of three photos was on the respondent’s phone and why, if he took the photo, he would leave it there after the allegation came to light or willingly hand the phone over for inspection by his son. The fact that it was found on the respondent’s phone was not enough in these circumstances to make it the obstacle to acquittal suggested by the Crown.

[18] With respect to the evidence that the respondent may have touched the complainant while trying to lift her up, the respondent did nothing more than admit an accident could have happened. It was not an an admission of any of the allegations before the court. Nor did it require the trial judge to say more about it in her reasons. She said, at p. 32 of the transcript:

M.B.’s evidence was clear, consistent, and compelling. M.’s denial was unequivocal and he was not shaken on cross-examination. I accept that M. was, on June 8th, 2020, and still is at this time, unable to navigate the stairs of his home five times between 9:30 or 10:00 p.m. and sometime after midnight. I believe M.’s evidence about the trip he and H. took to purchase dinner on June 8th and reject the evidence that he spoke to her about taking photos of her. I do not accept H.’s evidence that M. touched her in his car as the two returned from purchasing takeout. I do not accept that M. ever discussed a “virginity check” with H., or that he inquired of her sexual experience in any discussion with her. The balance of the evidence before the court does not cause me to doubt M.B.’s evidence. I accept it beyond a reasonable doubt.

[19] In my view, the trial judge made clear in this part of her reasons that she accepted the evidence of the respondent denying the allegations and found that the evidence of the respondent and the defence witnesses about his health issues made the complainant’s evidence incapable of acceptance.

[20] I see the trial judge’s comment about believing the respondent beyond a reasonable doubt as simply an expression of the degree to which she accepted his evidence over that of the complainant. The Crown concedes that the trial judge committed no legal error in doing so and, for the reasons I have expressed, I believe she made it clear why she did.

[21] For all of these reasons, the appeal is dismissed.

M.G. Ellies J. Date: April 5, 2024