Court File and Parties

COURT FILE NO.: 24-1060 AP DATE: 2024-12-13

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HIS MAJESTY THE KING S. MacDougall, for the Crown Appellant

- and -

SHEE BOWMAN L. Wilhelm, for the Respondent Respondent

HEARD: November 29, 2024 A.J. Goodman J.:

Reasons for Judgment

(On Appeal from the Honourable Justice M. Wendl)

[1] This is an appeal brought by the Crown against the acquittals imposed on June 18, 2024 by Wendl J. of the Ontario Court of Justice at Hamilton, Ontario.

[2] Following a three-day trial, the respondent, Shee Bowman, a.k.a. Shee McLean (“Bowman”) was acquitted on charges of sexual assault and sexual interference, contrary to their respective provisions of the Criminal Code, R.S.C. 1985, c. C-46.

[3] In the Notice of Appeal and written materials, the appellant raised several grounds of appeal against the acquittals, including that the trial judge failed to consider material evidence and the insufficiency of reasons.

The Evidence at Trial:

The complainant, R.B. was 12 years-old on the night in question. She lived in a Hamilton apartment with her mother and younger brother, aged three. N.K. was best friends with K.B., who lived across the hall with Bowman. K.B. had been in a romantic relationship with Bowman for approximately two years. K.B. had three children from other relationships, aged one, three, and six, who also lived with her and the respondent.

The entrances to the two apartments were across the hall from one another. Their layouts mirrored each other: both had two floors, with the kitchen and living area on the lower floor, and two bedrooms and a bathroom on the upper floor. The bathrooms of the two apartments shared a wall, and sound traveled between the bathrooms easily.

R.B. described a good relationship with Bowman, prior to the night in question. She stated that they were close, that he was always nice to her, and that he described her as his “favorite.” K.B. confirmed the positive relationship that she had witnessed between R.B. and the respondent. M.K. also had a good relationship with Bowman.

On November 30, 2023, M.K. was not feeling well and M.B. suggested that R. B. and her little brother come over for a “movie night” sleep-over at K.B. and Bowman’s apartment.

That evening, K.B, Bowman and the five children spent time in the living room. The living room contained a large L-shaped couch. As part of the “movie-night” sleep-over, blankets and pillows were set up on the floor in the space created by the L-shaped couch. R.B. intended to sleep here. At some point, the four youngest children were put to bed upstairs. M.B., R.B. and Bowman remained in the living room.

R.B. testified that she went to sleep around 10:00 p.m. or 11:00 p.m. She slept on the floor with pillows and blankets. Bowman was laying beside her on the floor, also with pillows and blankets. Both had their heads closest to the couch. R.B. was closest to the corner formed by the L-shape. K.B. was laying on the portion of the couch closest to R.B. and Bowman’s heads. M.B. was already asleep, facing away from R.B. when the latter fell asleep.

R.B. explained that Bowman had touched her on two occasions during the night. On the first occasion, she awoke to Bowman playing with her hair, touching her shoulders, arms, and thighs, and going “lower and lower.” This lasted approximately three minutes. Around this time, R.B. heard the respondent say, “K,” the name K.B. went by. There was no response from either K.B. or R.B. and Bowman did not say anything else.

R.B. moved away from Bowman and remained on the floor, as close as she could into the corner of the L-shaped couch, and went back to sleep.

Approximately one to two hours later, R.B. awoke to Bowman digitally penetrating her vagina. During this second instance, he also touched R.B.’s chest, and put her hand onto his own chest. This lasted for approximately five minutes, before R.B. got up and went to the bathroom.

R.B. testified that, during the second assault, she stood up from the floor. Bowman “jumped” and said, “what happened?” R.B. looked at Bowman without answering and then quickly went upstairs to the bathroom. K.B. remained asleep.

R.B. used the toilet, and while washing her hands, Bowman came into the bathroom. The door had been closed but not locked. R.B. testified that she was scared and shaking. Bowman sat on the edge of the tub. The two looked at each other for a period without speaking. Bowman then said, “You have to tell me, like, what happened. Like, did I do something in my sleep? Like, I don’t know why I did it.” R.B. testified that she thought Bowman was “crazy,” and stared at him trying to articulate what he had done. R.B. told Bowman what happened, and he said, “I’m so sorry.”

Bowman told R.B. that if anyone learned what he had done, that he would kill himself. R.B. told Bowman not to do that. Bowman asked, “Well, should we just do nothing and just act like it never happened?” R.B. agreed not to tell anyone. She later told police in her interview that she did not believe that she should have agreed to that.

R.B. and Bowman then returned downstairs. R.B. testified that, while descending the stairs, K.B. was awake and asked, “what happened?” R.B. responded, “nothing,” and laid back down where she had been on the floor. Bowman laid down as well. Nothing else was said by anyone.

K.B. testified that she slept on the couch, as described by R.B. K.B. stated that when she fell asleep at approximately 9:00 p.m., R.B. was sitting on one end of the couch, and Bowman was sitting on the other end of the couch.

K.B. testified that the next time she awoke was at approximately 3:00 a.m. K.B. observed R.B. asleep on the floor, curled up against the corner facing the couch, as described by R.B. Bowman approached K.B., assured her everything was fine, and K.B. went back to sleep. K.B. also noted that R.B.’s little brother had, at some point, come downstairs and was asleep next to her on the couch.

Approximately ten days after the assaults, R.B. was alone in her bedroom when Bowman came upstairs and spoke to her in private. Bowman asked R.B., “Are you acting like this because of me?” R.B. responded, “no.” R.B. explained that she said “no” because she did not want to continue the conversation.

Approximately a month after the assaults, N.K. testified that she had observed R.B. to be unusually reluctant when it was suggested that they would be spending time with K.B. and Bowman. N.K. stated that she knew something was wrong, and continued probing until R.B. disclosed what had happened.

Following the disclosure, N.K. and R.B. informed K.B. and K.B. returned to her own apartment and confronted Bowman in or near the couple’s bathroom. As a result, N.K. and R.B. were able to hear part of the confrontation due to the sound traveling easily between the bathrooms of the two apartments.

R.B. testified that she heard Bowman say, “I didn’t mean to,” and, “I didn’t mean to do it on purpose. I didn’t know what I was doing.” N.K. testified that she heard K.B. say, “You need to get the F out,” “What the F are you doing?”, “What have you done? She’s a goddamn kid.” And then Bowman stated, “I didn’t know what I was doing.” N.K. stated that Bowman did not sound angry or surprised, but rather soft and saddened.

K.B. stated that she told Bowman, “You touched the kid and you need to get the fuck out.” Bowman stated, “I don’t know, I don’t know, I was sleeping, I don’t know where this is coming from.” Bowman also stated, “I felt her cuddling up to me.”

Defence counsel did not challenge R.B. on the manner or sequence of the sexual touching. Rather, the thrust of the cross-examination centered on her observations of Bowman at the time of the touching, and her changing opinion as to whether he had been asleep or awake. She explained her shock, fear, and confusion about what was happening.

Closing Submissions at Trial:

The Crown’s submissions focused on the credibility and reliability of the complainant’s evidence, which contained no significant internal or external inconsistencies. She was clear and consistent on details such as the manner, sequence, and duration of the touching. She provided reasonable responses and concessions to challenging suggestions from defence counsel.

At trial, the Crown submitted that the complexity of the two instances of touching precluded any doubt that it was voluntary and intentional. The first instance included playing with the complainant’s hair, and touching her arms and thighs, going “lower and lower.” And the second instance, separate in time, included touching the complainant’s chest, then picking up her hand and putting it on the respondent’s chest, and digitally penetrating the complainant by reaching down her pajama pants.

Defence counsel did not concede that the touching had occurred; however, his focus was arguing that the Crown had failed to establish the requisite intent. At the beginning of counsel’s submissions, he stated that this is a case about intent.

Counsel submitted that the complainant returning to the floor after coming downstairs from the bathroom, and seemingly behaving normally the next day, is inconsistent with the touching having occurred. (This reasoning engages stereotypes about how a person is expected to behave after being sexually assaulted.) However, within this same line of submissions, counsel also stated that, because the complainant returned to the floor after coming downstairs from the bathroom, she must have been satisfied that the touching had been unintentional. This submission did not challenge that the touching occurred, but rather refocused the argument onto the intent element—the core issue at trial.

Trial Judge’s Reasons:

[4] In very brief reasons, the trial judge went on to quote four excerpts from the complainant’s evidence: three from her police interview, and one from her cross-examination. Each of the excerpts address the complainant’s belief or opinion about the respondent’s mental state at the relevant time, and one excerpt includes her observations of the respondent.

[5] In the three-paragraph analysis which follows, the trial judge includes only three sentences analyzing and addressing all of the evidence at trial.

The complainant states that Mr. Bowman digitally penetrated her by going underneath her pants while she was on her stomach, and he was also grabbing her breasts. She also testified that he was asleep while doing so.

I have a reasonable doubt in this case because I cannot reconcile these two facts: that he was performing this action, on her testimony, and that he was asleep on the other hand. My reasonable doubt simply relates to the reliability of her evidence as to the fact that the act occurred, the actus reus. Again, this is not an issue of credibility.

I ultimately find that I cannot rely on the evidence to a sufficient degree to ground a conviction on this fact. This is not a vindication of the accused, nor is it a condemnation of the complainant. It is simply a fact that I cannot reconcile that and I cannot make a finding that the act occurred beyond a reasonable doubt. [Emphasis added].

[6] The trial judge concludes that he cannot find the acts occurred beyond a reasonable doubt, because he “cannot reconcile these two facts: that he was performing this action, on her testimony, and that he was asleep on the other hand.” The trial judge held conclusively that his reasonable doubt relates only to the reliability of the complainant and not to her credibility.

Positions of the Parties:

[7] The appellant submits that the trial judge made two legal errors which were central to his decision to reject the complainant’s evidence. First, the trial judge misapprehended the evidence about whether the respondent was asleep or awake at the time of the sexual touching. The trial judge incorrectly concluded that the complainant testified that the respondent was asleep. However, the complainant’s evidence was that, while the respondent exhibited markers of sleep (having his eyes closed, breathing heavily, and lightly snoring), the repeated and complex actions with his hands indicated wakefulness. She testified that her opinion on whether the respondent had been truly asleep or awake had gone back and forth and she was influenced by statements made by the respondent to her and to his spouse.

[8] Further, the appellant contends that the trial judge failed to consider all of the evidence of the complainant, and failed to consider any of the evidence of other witnesses, including pertinent, admissible statements from the respondent. In finding that the complainant testified that the respondent was asleep, the appellant submits that the trial judge grossly misapprehended the nature of her evidence. This misapprehension was essential to his ultimate finding and produced a miscarriage of justice.

[9] Second, the appellant says that the trial judge erred by providing reasons that are so deficient that they foreclose any meaningful appellate review. It is unknown what findings of fact were made or inferences drawn, if any. Even if it is presumed that the trial judge considered only the complainant’s observations of the respondent at the time of the touching (and not a misapprehended opinion about whether he was asleep or not) this evidence is not inconsistent with her evidence about the touching. It is unknown why the judge found these two points irreconcilable. The appellant requests that the acquittals be set aside, and a new trial ordered.

[10] The respondent submits that the trial judge did not err. Counsel says that the trial judge’s reasons were sufficient and addressed the relevant issue, namely the complainant’s credibility. Given the evidence of the complainant’s claim about the event and the respondent’s sleeping state, the trial judge explained why this evidence raised a reasonable doubt. It was open to the trial judge to reach the verdict he did on the evidence presented at trial.

[11] The respondent argues that the Crown’s argument fails to appreciate and apply the contextual approach that must be taken to assessing the sufficiency of reasons. Moreover, it fails to appreciate the content of reasons required to explain an acquittal (as opposed to a conviction), which may be no more than the basis of a reasonable doubt. Examined against the appropriate legal backdrop, the reasons are sufficient and the appellant’s argument must fail.

[12] The respondent contends that the finding that the complainant “testified” that he was asleep while he allegedly touched her is amply grounded in the record. While it is true that at some junctures she stated this in terms of belief or appearance, there is no doubt that the complainant testified that the respondent was asleep. The appellant asserts that this finding was erroneous because the complainant could not give direct evidence as to the respondent’s intent.

[13] The respondent replies that this assertion is of no assistance to the appellant as the trial judge did not make any findings as to his intent. He did not make a finding as to whether the respondent was in fact asleep. Nor did he make a finding as to the veracity of the complainant’s evidence that he was. The trial judge’s finding was that the complainant “testified that he was asleep”. That finding didn’t require him to draw any inferences. It simply required him to recite her evidence and there can be no assertion to the contrary.

[14] While couched as a misapprehension of the evidence, the respondent says that the appellant’s grievance is really a complaint with the sufficiency of the trial judge’s reasons for harbouring a reasonable doubt that the Crown had proven the actus reus and an attack on the “reasonableness” of the acquittal.

[15] The respondent contends that the litany of complaints set out in paras. 62-68 of the appellant’s factum is without merit. Again, there can be no serious question that the record amply supports this finding. This appeal ought to be dismissed.

General Legal Principles:

[16] Pursuant to s. 686(1)(a) of the Criminal Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence; (b) there was a wrong decision of law; or (c) on any ground where there was a miscarriage of justice.

[17] The Crown brings this appeal pursuant to s. 813, which applies to summary offences. Under s. 822, the provisions dealing with appeals relating to indictable offences, specifically ss. 683 to 689 (with the exception of ss. 683(3) and 686(5)), apply to s. 813 appeals. The language of s. 813 does not restrict the Crown's grounds of appeal (see R. v. Labadie, 2011 ONCA 227, at paras. 50-51), and s. 686(4) confers on the summary conviction appeal court the power to (1) dismiss the appeal, or (2) allow the appeal, set aside the verdict and either order a new trial, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

[18] It is settled law that when considering an unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, deference must be afforded. An appellate court is not entitled to re-try the case and substitute its view of the evidence.

[19] Section 686(4) of the Code sets out the powers of this Court on an appeal from an acquittal. As compared to s. 686(1), which sets out the Court’s powers on an appeal from conviction and provides three bases upon which an appeal may be allowed, the power on Crown appeal is circumscribed.

[20] The Crown cites the trial judge's misapprehension of the evidence and insufficiency of reasons as grounds for the appeal. Both will amount to an error of law where the misapprehension of the evidence goes to the substance rather than the detail and where the reasons are so deficient as to preclude any meaningful appellate review: R. v. Lohrer, 2004 SCC 80, at para. 2; R. v. Sheppard, 2002 SCC 26, at para. 1.

[21] It is settled law that when considering an unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, deference must be afforded: R. v. W.H. 2013 SCC 22, [2013] 2 S.C.R. 180. A trial judge is not held to a standard of perfection in the context of reasons. An appellate court is not entitled to re-try the case and substitute its view of the evidence.

[22] The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have convicted the respondent. Rather, the court must thoroughly re-examine, and to an extent at least, conduct a limited re-weighing and consider the effect of the evidence: R. v. W.(R.), [1992] 2 S.C.R. 122. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, [1987] 2 S.C.R. 168. It follows that a misapprehension of material evidence and insufficiency of reasons can give rise to an unreasonable verdict.

[23] Appellate courts may only interfere with verdicts if they can clearly articulate the basis upon which they conclude that the verdict is “inconsistent with the requirements of a judicial appreciation of the evidence”: Biniaris, at p. 384.

[24] The test for demonstrating an unreasonable verdict is an exacting one. A verdict may also be found unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the trial judge in support of the finding, or is shown to be incompatible with the evidence that has not otherwise been contradicted or rejected by the trial judge. As held by Doherty J.A. in R. v. Morrisey, [1995] O.J. No. 639 (C.A.) trial judges will commit a reversible error when they fail to take into account evidence that is “relevant to a material issue” at trial:

A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.

In my view, any error, including one involving a misapprehension of the evidence by the trial judge must be assessed by reference to its impact on the fairness of the trial. If the error renders the trial unfair, then s. 686(1)(a)(iii) requires that the conviction be quashed.

When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial.

[25] I observe that in R. v. Clark (2005), SCC 2, [2005] 1 S.C.R. 6, the court held at para. 9:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: [Citations omitted]

[26] The law with regards to palpable and overriding error was summarized by the Court of Appeal for Ontario in R. v. D.T., 2014 ONCA 44, 305 C.C.C. (3d) 526, as follows, [citations omitted]:

An appellate court may only intervene in a trial judge's credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman [citation omitted] this court described the palpable and overriding error standard:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error.

Application of the Legal Principles to this Case:

Sufficiency of Reasons:

[27] At the outset, I turn to the second issue advanced by the appellant; namely, whether the trial judge provided reasons that were insufficient to permit meaningful appellate review.

[28] An appeal based on insufficient reasons “will only be allowed where the trial Judge’s reasons are so deficient that they foreclose meaningful appellate review”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 24-25, citing Sheppard. Appellate courts may allow an appeal based on insufficiency where the reasons, read in the context of the evidentiary record and the live issues on which the trial focused, fail to disclose an intelligible basis for the verdict. In other words, appellate review of reasons for decision must be done functionally and contextually. The core question in determining whether a trial judge’s reasons are sufficient is whether the reasons, read in context, explain why the judge decided as they did: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69.

[29] The law is well-established that when applying the principle of reasonable doubt, a trial judge must consider the evidence as a whole: R. v. Morin, [1988] 2 S.C.R. 345, aff’d, [1992] 3 S.C.R. 286 at p. 295-296, R. v. J.M.H., 2011 SCC 45, at paras. 31-32.

[30] A failure “to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 18; R. v. Slatter, 2019 ONCA 807 at para. 58. A judge need not review and resolve every inconsistency or respond to every argument advanced by counsel. A.M. at para. 14.

[31] In the case of R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court had occasion to elaborate on the general principles to be applied when considering the sufficiency of reasons:

• The sufficiency of reasons should be judged in their entire context by what the trial judge has stated in the context of the record, the issues, and the submissions of counsel at trial: at para. 37.
• At a minimum, it is required “that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the [trial] judge has seized the substance of the matter”: at para. 43.
• In a case that turns on credibility, the trial judge must direct his or her mind to the decisive question of whether the evidence, considered in the context of the evidence as a whole, raises a reasonable doubt. However, this does not mean that the trial judge is required to enter into a detailed account of the conflicting evidence: at para. 50.
• The trial judge is in the best position to determine matters of fact, and in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected: at para. 54. Trial judges are best-placed to perceive the facts, and their reasons should not be interpreted as a verbalization of their entire reasoning process. Reasons are intended to convey why the judge came to his or her decision: at para. 18.

[32] The respondent contends that while the trial judge’s reasons for why he held a reasonable doubt may not be extensive, the underlying principles of the presumption of innocence and the burden of proof dictate that extensive reasons are not required.

[33] At the same time, the respondent also concedes that there is no doubt the issue of intention was at the forefront of the submissions of counsel in this trial, and that was not the basis upon which the trial judge decided the present case. The respondent asserts that the trial judge never got to assessing the issue of intention because he was unable to find the actus reus was proved beyond a reasonable doubt.

[34] It is well-established that a trial judge’s findings on the credibility and reliability of a witness are entitled to deference. What is crucial, however, is the requirement that a trial judge explain their reasons on credibility and reasonable doubt in a way that permits meaningful appellate review: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621.

[35] In this case, the trial judge’s reasons for judgment engage just a few lines of transcript over approximately two pages. The trial itself was three days. Submissions encompassed a full day with 56 pages of transcript.

[36] Counsel made extensive submissions on the issue of the complainant’s credibility and reliability (considering R.B.’s prone position at the time of the incidents and the mechanics of Bowman’s reaching underneath her with both hands, the late disclosure of the assault, and the K.B. not having seen R.B. awake that night), as well as on the voluntariness of Bowman’s actions (given R.B.’s evidence of having observed markers of sleep and at some points believing he was sleeping). The trial judge asked counsel to provide case law and submissions on Bowman’s inculpatory/exculpatory/spontaneous utterances to K.B. at the time she confronted him (about R.B. cuddling up to him, about not knowing what happened), as well as on the issue of sleep and automatism.

[37] There was a thorough exchange between the judge and defence counsel regarding the voluntariness of and intent behind Bowman’s conduct given the defence’s position that he was sleeping – the judge wanted to know how to reconcile his state of sleep with the complexity of conduct at issue (i.e., digital penetration, not a brush of the arm).

[38] The record shows several issues were broached by counsel and the trial judge as being pertinent to the outcome of the case, but which were not addressed or resolved in the reasons. The trial concluded with the trial judge noting there was a lot to consider, and “finer point analysis” would be involved. Whether or not Bowman was asleep at the relevant times was a central issue, and while there is some suggestion the judge’s findings of fact on this issue were determinative, the limited engagement with the evidentiary record leaves many questions.

[39] This segment of the appeal essentially turns on an analysis of the trial judge's reasons for judgment in the context of the evidentiary record. I have considered the reasons for judgment as a whole, keeping in mind the purpose for which they were delivered. The trial judge’s reasons were not intended to be, nor have I read them, “as a verbalization of the entire process engaged in by the trial judge in reaching [his] verdict”: see Morrissey, at p. 525.

[40] The trial judge held that the reliability of the evidence led him to his conclusion. What is the explanation or analysis to reach that conclusion? With respect, the trial judge’s reasons do not articulate any findings of fact, nor review any law that could provide context or insight. For instance, it is unknown whether the judge made findings regarding any of the respondent’s actions, or whether his after-the-fact statements were considered in any way. It is also unknown whether the judge accepted the complainant’s observations of the respondent at the time of the touching. Or, whether the judge accepted as fact the complainant’s subjective opinion of the respondent’s intent.

[41] This appellate court is unable to review the correctness of the trial judge’s reasoning because, in effect, no reasons were given other than conclusory comments.

[42] Further, I am persuaded that the trial judge fails to explain how evidence of the respondent touching the complainant is inconsistent with also being asleep. This very prospect was the subject of much of the colloquies between the trial judge and both Crown and defence counsel during closing submissions and related questioning posed by the judge throughout the trial.

[43] While it was not lost on the trial judge that a person may move and act out physically in their sleep. His core subject, and the related law of intent, was at the forefront of both Crown and defence counsel’s extensive submissions. This was all but unaddressed.

[44] Indeed, the complainant could not give direct evidence on the respondent’s intent. The complainant was only able to speak to her observations. Inferences could then be drawn by the trial judge, based on findings of fact. However, in this case, the trial judge did not articulate any findings of fact or explain what inferences were made, if any.

[45] It bears repeating that sufficiency of reasons should be judged in their entire context by what the trial judge has stated in the context of the issues, and the submissions of counsel at trial. Thus, proceeding with deference, I must ask myself whether the reasons, in their entire context, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. If the answer to this question is affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal.

[46] The complainant’s evidence regarding what she believed about the respondent’s mental state was far more nuanced and fluid than what was revealed in the four excerpts included in the reasons. There were no fewer than six unacknowledged portions of the complainant’s evidence where she discusses her thoughts on whether the respondent was asleep or not. Within some of those omitted portions, the complainant states that she did not believe that the respondent was asleep. This includes her statement to police indicating that when she was in the bathroom with the respondent, “[…] he was telling me that he was asleep the whole time and he didn’t know what happened. And I didn’t believe him […].”

[47] Indeed, the trial judge was required to consider the entirety of the complainant's evidence, in the context of all of the evidence, in reaching a conclusion respecting whether the elements of the offences of sexual assault and sexual interference were made out beyond a reasonable doubt? The lack of reasons clearly demonstrate that this was not done. The trial judge considered only four discrete portions of the complainant’s evidence relating to the respondent being asleep or awake, and inexplicably disregarded or failed to explain the rest of her and the other evidence adduced at trial.

[48] It is true that a trial judge should not be found to have erred in law because he or she has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Nor does a trial judge have to deal with every inconsistency in the testimony of a witness.

[49] That being said, I have to agree with the appellant that the judge’s reasons are so bereft and devoid of analysis that they fail to convey why the jurist came to his decision.

[50] In my opinion, the trial judge failed to analyze the material credibility and reliability issues and the evidence at trial which was the subject of lengthy submissions made by both the Crown and defence as to the requisite mental element. Rather, the reasons offer a brief reference to the actus reus, in the form of a perfunctory, conclusory findings. I would allow the appeal on this basis.

Conclusion:

[51] For all of the aforementioned reasons, with respect, the trial judge provided insufficient reasons for meaningful appellate review. The appeal is allowed and the acquittals are set aside. The matter is remitted back to the Ontario Court of Justice for a new trial before a different judge.

A.J. Goodman, J. Date: December 13, 2024

COURT FILE NO.: 24-1060AP DATE: 2024-12-13 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HIS MAJESTY THE KING Appellant - and – SHEE BOWMAN Respondent REASONS FOR JUDGMENT (Summary Conviction Appeal) Released: December 13, 2024