Reasons for Decision on Summary Conviction Appeal

DELIVERED: Orally on February 3, 2025
COURT FILE NO.: CR-24-6206-AP
DATE: 2025-02-03
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King – and – Patrick Godin, Appellant

Jayme Lesperance, for the Crown
Julie Santarossa, for the Appellant
HEARD: November 14, 2024

Introduction

BEZAIRE J.:

[1] On December 11, 2023, Patrick Godin was convicted of sexual assault in the Ontario Court of Justice. He appeals his conviction to this court on the ground that the trial judge failed to properly apply the principles in R. v. W.(D.), [1991] 1 S.C.R. 742.

The Trial Evidence

[2] The trial was conducted over three days. Four witnesses gave evidence: the complainant, I.P., S.P. (who is I.P.’s father), and the appellant.

[3] The complainant testified that she was sexually assaulted by the appellant in the early morning hours of August 24, 2020. The appellant denied the allegations, claiming he was never alone in the bedroom with the complainant.

[4] On August 23, 2020, the complainant and appellant attended the residence of their mutual friend, I.P., for I.P.’s 19th birthday celebration. The complainant and I.P. became intoxicated to the point that they threw up. The appellant also consumed intoxicants. They remained at the residence into the early morning hours of August 24, 2020.

[5] The complainant’s evidence was that after she vomited and passed out, I.P. woke her up and moved her into the guest bedroom. Some time later, she moved into I.P.’s bedroom but had no recollection of how she got there. She then slept in I.P.’s bedroom until around 5:00 a.m. when she awoke to a text message. She texted with her friend for around ten to fifteen minutes and then believed she fell asleep for forty-five minutes to an hour. She awoke to the appellant touching her breasts and nipples under her shirt, which she estimated to occur at around 6:15 a.m. While her eyes were closed, she saw a flash of light and assumed the appellant was taking pictures of her. When she sat up, she immediately recognized the appellant and chased him out of the bedroom and through the house.

[6] The complainant told S.P. what happened. Her evidence on this point was contradictory to S.P.’s evidence. The complainant testified that S.P. was in the kitchen when she told him, but, when confronted with S.P.’s evidence that he was in the hall outside the bathroom, she admitted she was mistaken.

[7] S.P. took the appellant’s phone and gave it to the complainant to search for photographs. No photographs were found. The complainant testified that the appellant became agitated and violent towards her and had to be physically restrained by S.P. In contrast, S.P. and the appellant testified that S.P. did not restrain the appellant. S.P. testified that the appellant looked confused, scared, and surprised when confronted with the allegation.

[8] The appellant’s evidence is that shortly after 5:00 a.m., he and I.P. went to the basement because another person at the celebration wanted to go to bed. While this other person was getting ready for bed, the appellant waited for I.P. in the family room with I.P.’s dog. He thought I.P. was still in the basement until he received a text from I.P. at 5:13 a.m. to come to the garage. He was sitting in the family room for about five minutes before receiving the text. He then reattended at the garage and began caring for I.P. who vomited in the garage and then in the bathroom. He remained with I.P. in the bathroom, except to get him some bread. He was in the bathroom when S.P. took his cell phone.

[9] I.P.’s evidence was that the complainant went to bed in the guest bedroom and later moved to his bedroom. He and the appellant were in the bedrooms at some point to move blankets. He did not know if he used a flashlight when in the bedrooms but acknowledged it was a possibility. He did not have a memory of the complainant being in the bed when he went into the bedroom.

[10] I.P. testified that the appellant was inside the residence just after 5:00 a.m. He texted him at 5:13 a.m. to come to the garage. The following day, the appellant told him that he was in the basement with I.P.’s dog when he received the text message. The appellant responded to I.P.’s text at 5:14 a.m. and said, “okay, coming”. I.P. did not recall how long it took for the appellant to come to the garage. Some time later, I.P. was in the bathroom vomiting with the appellant. The appellant left the bathroom to retrieve a knife and glass of water and to later speak to S.P. when he was confronted about the complainant’s allegations.

[11] S.P.’s evidence was that he woke up at around 5:00 a.m. because he heard I.P. vomiting in the basement. He waited approximately five to ten minutes before going to check on him. He found I.P. in the bathroom throwing up and the appellant with water and bread trying to care for I.P. While at the bathroom, the complainant approached him and told him she wanted to tell him something. They went upstairs and the complainant told him about the assault. They went back to the bathroom and S.P. demanded the appellant’s phone.

Standard of Review

[12] As set out in s. 822(1) of the Criminal Code, RSC 1985, c C-46, which incorporates by reference the powers of the Court of Appeal in s. 686 of the Code, a summary conviction appeal court may only allow the appeal if:

i. the verdict is unreasonable or cannot be supported by the evidence;
ii. the trial judge erred on a question of law; or
iii. there was a miscarriage of justice on any ground.

[13] It is not for an appellate court to retry the case. I adopt and apply the reasoning of Durno J. in R. v. Salerno, [2000] O.J. No. 3511 (S.C.), para 7:

Before examining those areas, the function and scope of a judge sitting on summary conviction appeals must be kept in mind. I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. I can examine the transcript and determine if there was evidence upon which the trial findings could reasonably have been made. I cannot substitute my own findings of fact when there was a basis for those reached by the trial judge. The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made I cannot interfere.

[14] Further, the trial judge’s findings of credibility are to be given a high degree of deference. In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, para 26, Charron J. held:

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.

Analysis

[15] The appellant admits that the trial judge correctly articulated the principles regarding the burden and standard of proof in criminal trials as well as the principles in the seminal decision of W.(D.). The appellant also admits that the trial judge properly applied prong 1 and 2 of the W.(D.) analysis. This appeal relates to the trial judge’s application of prong 3 of W.(D.).

[16] Prong 3 is to be applied where, as in this case, the trial judge does not believe the appellant and is not left in doubt by the appellant’s evidence. The trial judge must consider whether, on the basis of the evidence she does accept, she is convinced beyond a reasonable doubt of the appellant’s guilt.

[17] Here, the appellant submits that the trial judge failed to assess the totality of the evidence before arriving at a finding of guilt. More specifically, she failed to assess the evidence of I.P. and S.P. that contradicted the complainant’s testimony and confirmed the appellant’s testimony on areas that were central to the alleged assault, specifically:

• The timing of the alleged assault and the appellant’s whereabouts; and
• The complainant’s level of sobriety and the reliability of her evidence at the time of the alleged sexual assault and immediately afterwards by failing to consider the contradictory evidence regarding:
  • The chase and approaching S.P. upstairs;
  • The lack of photographs on the appellant’s phone or in his deleted files;
  • The use of a flashlight in I.P.’s bedroom; and
  • The appellant’s behaviour upon being confronted with the sexual assault allegation.

[18] In support of the appellant’s submissions, counsel directed the court to the following passages from the trial judge’s reasons:

There were some inconsistences as between the complainant and the father, S.P., as well as the defendant about what occurred when the defendant was confronted with the allegation that morning. This does not cause me concern in my overall assessment of the credibility and the reliability of the complainant’s evidence. The complainant testified with a lot detail and was descriptive in giving her evidence about the incident. She came across as an honest witness. She was consistent in her account of what she said occurred. She took time to think about what she wanted to do as it related to reporting the incident. She was believable in giving her evidence. I found the complainant to be a credible and reliable witness, and I accept her evidence.

Having accepted the evidence of the complainant and having found that the defendant's evidence does not leave me in doubt, the Crown has met their burden. As a result, the defendant will be found guilty.

[19] The Crown submits that this passage cannot be read in isolation. The trial judge’s reasons are ten pages in length transcribed and must be considered as a whole. I agree.

[20] The standard of review with respect to the insufficiency of reasons is the standard of adequacy. The reasons will be adequate “if, when read in their entire context, they fulfill the threefold purpose of informing the parties of the basis of the verdict, providing public accountability and permitting meaningful appeal” (R. v. Oddleifson, 2010 MBCA 44, para 30; R. v. Vuradin, 2013 SCC 38, paras 11-12).

[21] In her reasons, the trial judge reviewed the evidence in detail, starting first with the complainant’s, followed by I.P.’s, S.P.’s, and then the appellant’s. There is no requirement that trial judges explain every step in her reasoning process. The trial judge need only explain enough to show that she came to grips with the issues defined by the defence (R. v. Braich, 2002 SCC 27, para 25).

[22] Here, a fulsome review of the trial judge’s reasons demonstrates that she was alive to each of the issues raised by the appellant on appeal. First, is the issue of timing. I accept that the timing was a central issue in this case. Both the Crown and defence noted it as such in their closing submissions. I do not, however, accept that the trial judge failed to consider this issue. In her reasons, the trial judge stated:

I note that the timing of this period is not consistent with the Crown evidence on when the incident is alleged to have occurred. It was the complainant’s evidence that she chased the defendant out of the room and that he joined his friend in the downstairs washroom. At the time when the defendant was inside the home without his friend, his friend was in the garage waiting for him and not inside of the washroom.

[23] The trial judge recognized the inconsistency in the evidence but ultimately accepted the evidence of the complainant. Where a complainant’s evidence conflicts with an accused’s evidence and the trial judge gives reasons for accepting the complainant’s evidence, as was done here, it necessarily follows that the trial judge rejected the contradictory accused evidence (R. v. R.E.M., 2008 SCC 51, para 66).

[24] Further, and as noted by the Crown, the evidence regarding the timing is approximate. During the complainant’s evidence, she used words such as “around 5:00 a.m.” and texted for “around” ten to fifteen minutes (but she also testified it was “very, very brief”). She “believed” she fell asleep for forty-five minutes to an hour. On cross-examination, she confirmed that the 6:15 a.m. time the incident occurred was an estimate.

[25] S.P. also approximated the time he woke up. He testified as follows: “I couldn’t tell you the exact time. I - it was two and half years ago…I’m gonna say it was between five and 5:30, probably”.

[26] It is undisputed that the complainant, I.P., and the appellant had all been drinking the night prior. It is also undisputed that there was a time the appellant was alone inside the residence. I find the trial judge’s findings to be supported by the evidence. The appellant had opportunity to commit the assault when he was inside the residence and, given the times are approximate and the trial judge’s acceptance of the complainant’s evidence and rejection of the appellant’s evidence, it matters not that the times did not perfectly align.

[27] Second, the trial judge was also alive to the issue of the complainant’s sobriety and the reliability of her evidence. She held:

I must still address the evidence of the Crown. There are portions of the night’s events that the complainant cannot recall due to her alcohol consumption, most notably how she got from the bedroom she fell asleep in and into the room of the mutual friend. However, these portions are from a period of time the night before the allegation, which occurred in the early morning hours. The complainant was in a much different state as it relates to her sobriety at the time of the allegation.

[28] The trial judge was not required to catalogue every argument made in her reasons for judgment and it is not the role of this court to second-guess the trial judge’s determinations concerning the complainant’s credibility (R. v. D.A., 2018 ONCA 612, paras 11-14; R. v. Roy, 2017 ONCA 30, para 14).

[29] Nevertheless, I am satisfied that the trial judge was alive to each of the issues raised by the appellant on appeal. More specifically:

• The trial judge noted that there are inconsistencies in the evidence of the complainant and S.P., as well as the appellant when the appellant was confronted with the allegations but determined that they do not cause her concern in her overall assessment of the complainant’s credibility and the reliability of her evidence. She then went on to provide detailed reasons why she accepted the complainant’s evidence.
• The trial judge acknowledged the lack of photographs on the appellant’s phone. There was no need for the trial judge to provide any further explanation as to why the lack of photographs did not cause her to have reasonable doubt. It is trite that corroboration is not required for a finding of sexual assault. Further, the complainant’s evidence was that she “assumed” from the flash of light that the appellant was taking photographs; she did not know for certain. I do not, therefore, find the lack of photographs to be a central issue that ought to have been addressed further in the trial judge’s reasons.
• The trial judge described the evidence regarding the use of a flashlight when the appellant and I.P. were in the bedroom, noting that I.P. did not know if he used a flashlight and that the appellant gave contradictory evidence regarding the flashlight. The appellant told the police I.P. used his cell phone flashlight but, at trial, the appellant testified that he did not see a phone at any point. He simply assumed that if he saw a light source, it was from I.P.’s phone. The appellant’s contradictory evidence on this fact is one of the reasons the trial judge rejected the appellant’s evidence.
• The trial judge acknowledged the inconsistencies between the complainant’s evidence and that of S.P. and the appellant about what occurred when the appellant was confronted but again found that those inconsistencies do not cause her concern in her overall assessment of the credibility and reliability of the complainant’s evidence.

[30] The appellant has not identified any basis that would justify this court’s interference with the trial judge’s findings. Her reasons for judgment are adequate and free of legal error.

[31] This case is distinguishable from R. v. Reid, 2019 ONSC 2165. The trial judge did not simply compare the evidence of the complainant to that of the appellant and decide which account she preferred, nor did she leap directly from rejecting the appellant’s evidence to a finding of guilt.

[32] The trial judge provided a comprehensive summary of the evidence, correctly instructed herself on the law, identified inconsistencies as between the witnesses, and provided a detailed analysis of her findings. The central issues were also identified in her reasons.

[33] After considering all the evidence as required by prong 3 of W.(D.), the trial judge concluded that, despite the inconsistencies and issues with the complainant’s sobriety, she believed the complainant’s evidence beyond a reasonable doubt. This was the trial judge’s decision to make. She saw and heard the witnesses testify. She was uniquely positioned to assess both the reliability and credibility of their evidence.

[34] The verdict is reasonable and supported by the evidence. When read as a whole, the trial judge’s reasons do not indicate a failure on her part to appreciate relevant, or ignore irrelevant, evidence.

[35] Accordingly, I find that the trial judge correctly applied prong 3 of the W.(D.) analysis; on the whole of the evidence she accepted, she determined that she was not left in reasonable doubt regarding the appellant’s guilt.

[36] For these reasons, the appeal is dismissed.

Jennifer E. Bezaire
Justice

Released: February 3, 2025