Court File and Parties

COURT FILE NO. : SCA101512 DATE: 2024/10/03

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

WILLIAM SIMPSON Appellant

• and - HIS MAJESTY THE KING Respondent

Counsel: Sean Biesbroek, Counsel for the Appellant Aaron McMaster, Counsel for the Respondent

HEARD : May 3, 2024

Reasons for Decision

GIBSON J.:

Overview

[1] The Appellant, William Simpson, was found guilty of Sexual Interference, contrary to s. 151 of the Criminal Code, and Sexual Assault, contrary to s.271 of the Criminal Code, by Katzsch J. on January 20, 2022. Charges were laid in 2020 and the trial occurred on December 2 and 3, 2021, and January 20, 2022. The charges related to a single incident around 2014 or 2015. The Appellant was convicted following his trial and sentenced to a custodial sentence of 18 months, to be followed by probation for three years.

[2] The Crown called two witnesses: the complainant A.S., and her mother, L.S. A.S. testified that on a single occasion around 2014 or 2015, while she was 12 years old, the Appellant touched her vagina under a blanket for around 20 - 30 minutes while sitting on a couch watching the movie Guardians of the Galaxy in the basement of their residence.

[3] The Appellant testified in his defence and denied that the incident occurred as described. He said that he recalled a similar incident where the complainant was touching herself and he had indicated to her to cease that activity by nudging her with his elbow.

[4] The trial judge accepted the complainant’s evidence, rejected the Appellant’s evidence, and found the Appellant guilty. The Appellant was sentenced to a custodial sentence of 18 months, to be followed by probation for three years.

[5] He now appeals the conviction, submitting that the trial judge applied uneven scrutiny and misapplied the guidance in R. v. W.(D.), [1991] 1 S.C.R. 742. He further asserts that the trial judge erred by relying on speculation and on impermissible stereotype to bolster the complainant’s account. He also wishes to submit fresh evidence pertaining to the Appellant’s health and mental acuity at the time of the trial.

[6] The Appellant acknowledges that the appropriate standard of review on this appeal is palpable and overriding error.

[7] The Appellant submits that the trial judge erred in not making an evidentiary ruling regarding some evidence led by the Crown that there was tension between the Appellant and the complainant A.S. because he had previously caught her sending inappropriate images on her Blackberry phone. The bottom line, the Appellant submits, is that the evidence was admissible as primarily Crown-led Seaboyer evidence, to show inconsistency between the evidence of A.S. and her mother L.S., who testified that she was unaware of this previous incident.

The Fresh Evidence Application

[8] A preliminary issue was the application brought by the Appellant to admit fresh evidence on the appeal. This comprised the evidence of Dr. Siva Appavoo, a clinical psychiatrist who provided an opinion letter dated April 27, 2023. During the course of the trial, the Appellant had testified to his belief that he had PTSD, depression, and “brain fog” from having recently had COVID-19. The Appellant, while on release pending appeal, sought out psychiatric treatment from Dr. Appavoo.

[9] In his letter dated April 27, 2023, Dr. Appavoo opined that the Appellant suffered from Post Covid Syndrome, Major Depressive Disorder and Post Traumatic Stress Disorder, and that at the time of his testimony at trial, he had experienced disorganized thinking, anxiety, difficulty focussing, sleep disturbance and mood swings.

[10] Dr. Appavoo gave evidence on a voir dire, following which submissions were made on the fresh evidence application in conjunction with the summary conviction appeal itself.

[11] The Crown argues that the proposed “fresh evidence” of Dr. Appavoo ought not to be admitted, pursuant to the analysis in R. v. Dundar, 2019 ONCA 115, because it is deficient on the factors of cogency and due diligence. Trial counsel could have adduced the evidence, but did not.

[12] Fresh evidence is admissible on appeal where it is in the interests of justice to receive it: s. 683(1)(c) and (d) Criminal Code. The burden of establishing the criteria for admission of fresh evidence lies on the Appellant: Dundar, at para. 28. The decision to admit fresh evidence is a discretionary one: Palmer, at p. 775; Dundar, at para. 29.

[13] I do not admit the evidence of Dr. Appavoo for consideration as fresh evidence on the appeal, in accordance with the criteria from Palmer v. The Queen, [1980] 1 SCR 759: due diligence, relevance, credibility and impact on the result, or by the recast three-part inquiry in Dunbar, para. 29. It falls short on cogency, due diligence, and credibility. Trial counsel could certainly have called evidence on the concerns raised.

[14] Moreover, even if I were to admit it, I would give no weight to the opinion evidence of Dr. Appavoo, who struggled in his evidence. He was transparently partisan, and did not review the transcripts. Dr Appavoo uncritically accepted the self-reporting of the Appellant. He did not administer any clinical cognitive assessment tools. He did not administer any clinical assessment tests for malingering. Dr. Appavoo acknowledged that he did not understand what the term “evidence in chief” means, and did not review the evidence in chief of the Appellant at the trial. He did not read the cross-examination. Dr. Appavoo is not a forensic psychiatrist. He demonstrated an incorrect understanding of the factual matrix - the Appellant was not incarcerated until after the trial. He confirmed that he could not recall precisely what it was that he did review. For all these reasons, I would accord no weight to his evidence even if it were to be admitted.

Analysis

[15] I do not accept the submission of the Appellant that the trial judge made a s.276 or Seaboyer error. The evidence of the prior sexual activity of the complainant (the allegedly texted images) was presumptively inadmissible. The trial judge raised the issue several times. None of the parties sought to have a ruling on admissibility. Absent the request, the trial judge was not obligated to make a ruling. The proposed evidence was simply inadmissible. No error of law arises.

[16] The trial judge did not error in her W.D. analysis. In this regard, reviewing courts are to engage in a functional and contextual reading of the trial judge’s reasons. The trial judge properly instructed herself as to the necessary steps in the analysis. She considered the evidence of the Appellant, and did not find him to be a credible witness. She accepted the evidence of L.S. as corroborating, but her decision did not hinge on that corroboration. At the third stage of the analysis, she accepted the evidence of the complainant, and found her to be a credible and reliable witness. Overall, the trial judge found that she was convinced beyond a reasonable doubt that the Appellant committed the offences charged.

[17] The Appellant expresses concern about common sense presumptions made by the trial judge.

[18] This topic was recently canvassed by Martin J. at paras. 92 - 99 in R. v. Kruk, 2024 SCC 7,

[92] For the reasons outlined above, the proposed rule against ungrounded common-sense assumptions should not be recognized as giving rise to an error of law. The rule is in no way analogous to the body of law protecting sexual assault complainants from myths and stereotypes, nor can it be justified as necessary to ensure fairness to the accused. It also treats any and all factual assumptions drawn in the course of testimonial assessments as errors of law and thereby represents an unjustified departure from well-established principles governing testimonial assessment and appellate standards of review.

[93] Without the rule in play, appellate courts are left to rely on the existing and well-established law on assessing a trial judge’s credibility or reliability assessments. For the utmost clarity, the applicable framework can be summarized as follows.

[94] First, where an appellant alleges that a trial judge erroneously relied on a “common-sense” assumption in their testimonial assessment, the reviewing court should first consider whether what is being impugned is, in fact, an assumption. Given the nature of how witnesses give evidence and the need to read the trial judge’s reasons as a whole, what might appear to be an assumption on its face may actually be a judge’s particular finding about the witness based on the evidence.

[95] Second, once satisfied that the trial judge did, in fact, rely on an assumption that is beyond the bounds of what common sense and the judicial function support, the reviewing court should identify the appropriate standard of review applicable to the impugned portion of the trial Judge’s credibility or reliability assessment.

[96] The standard of review will be correctness if the error alleged is a recognized error of law. Nothing in these reasons should be taken to limit the scope of existing errors of law relating to testimonial assessments that this Court has previously approved. Such errors may include reliance on myths and stereotypes about sexual assault complainants, as well as any improper and incorrect assumptions about accused persons that run contrary to fundamental principles such as the right to silence and the presumption of innocence. Testimonial assessments may also become vulnerable to correctness review for reasonable apprehension of bias (S. (R.D.), at paras. 91-141), making a finding of fact for which there is no evidence (R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25; Schuldt v. The Queen, [1985] 2 S.C.R. 592, at p. 604), and improperly taking judicial notice (see, e.g., R. v. Poperechny, 2020 MBCA 81, 396 C.C.C. (3d) 478). As discussed, reliance on stereotypes other than myths and stereotypes about sexual assault complainants, but which are similarly rooted in inequality of treatment, may also amount to errors of law, and it remains open to all parties to argue as much in future cases. The list of errors of law is not closed — but the rule against ungrounded common-sense assumptions is not on it.

[97] Absent an error of law, the standard of review will be palpable and overriding error. The reviewing court must first determine whether the erroneous reliance on the assumption is palpable, in that it is “plainly seen”, “plainly identified”, or “obvious” (see Housen, at paras. 5-6; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp., at para. 46). Palpable errors in this context will include, for example, where the assumption in question is obviously untrue on its face, or where it is untrue or inapplicable in light of the other accepted evidence or findings of fact. Although trial judges are clearly best placed to make factual findings and assess the accuracy of generalizations, appellate courts can balance the need for deference to those findings with employing their own common sense to determine whether the presumption was clearly illogical or unwarranted so as to make out a palpable error. Appellate courts are routinely tasked with, for example, considering whether based on “logic and human experience” a particular piece of evidence was relevant or whether an accused’s after-the-fact conduct was consistent with that of a guilty person (R. v. Corbett, [1988] 1 S.C.R. 670, at p. 715; see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 17). In the context of factual generalizations, so long as the assessment remains focused on whether there was any palpable error, such an exercise remains an integral part of the judicial function of a reviewing court.

[98] Once a palpable error has been identified, the reviewing court must also find that the erroneous reliance on the assumption was overriding, in that it is “shown to have affected the result” or “goes to the very core of the outcome of the case” (Clark (2005), at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp., at para. 46). If it cannot be shown that the error was palpable and overriding, a trial judge’s assessment of credibility or reliability will be entitled to deference and there will be no basis for appellate intervention.

[99] Given that I have found that a breach of the proposed rule against ungrounded common-sense assumptions should not be recognized as an error of law, many of the assumptions identified in the cases below, including those in the cases before this Court, in fact should have been reviewed for palpable and overriding error. Such an approach accords due deference to the trial judges’ factual findings and the role common sense played in their testimonial assessments. At the same time, it should also be emphasized that common sense is far from a catch-all phrase that licenses any form of reasoning, no matter how faulty. Common sense is not always “common”, does not always make “sense”, and worst of all, may be based on falsehoods or discriminatory beliefs. However, so long as the trial judge’s use and invocation of common sense is appropriately constrained by the legal principles applicable to appellate review in general, there is nothing inherently objectionable about its use in testimonial assessment. If and when the permissible bounds of common sense have been exceeded, appellate courts may intervene. As Fitch J.A. succinctly summarized in Pastro (at para. 41):

Judges are entitled, and expected, to rely on their life experience in making credibility findings. This necessarily includes drawing common-sense inferences from established facts. Juries are routinely instructed along the same lines — to come to common-sense conclusions based on the evidence they accept. Where it is apparent from a review of the reasons as a whole that a credibility assessment is rooted in the evidence, and is the product of a case-specific determination about what the complainant and accused did or did not do, there will be no basis for appellate intervention, absent palpable and overriding error in fact . . . . [Emphasis added; citations omitted.]

[19] The trial judge in this case did not erroneously rely on a “common-sense” assumption in her testimonial assessment. Her reasons manifest a common-sense approach, not a common-sense assumption. The trial judge made particular findings about the witness based on the evidence. Her credibility assessment was rooted in the evidence, and was the product of a case-specific determination. The trial judge did not engage in speculation regarding the temperature, or light and sound levels in the basement. Rather, the trial judge assessed the Appellant’s evidence and found it wanting. This conclusion was reasonable on the evidence.

[20] There was no uneven scrutiny. The trial judge’s reasons reflect a careful consideration of the evidence of the Appellant on the whole and do not suggest undue reliance on any particular point. The trial judge engaged in a thorough analysis of A.S.’s evidence and found her to be credible. The presence of minor inconsistencies in the evidence of A.S., who was testifying about events that occurred when she was a child of 12, is not a basis to conclude that the trial judge erred in her assessment or engaged in uneven scrutiny.

[21] The reasons of the trial judge must be read in the context of the entirety of the record. There was no palpable and overriding error. The credibility findings of the trial judge are entitled to deference.

Conclusion

[22] The Appellant has not demonstrated an error on any of the grounds of appeal advanced.

Order

[23] The appeal is dismissed.

M.R. Gibson J. Date: October 3, 2024