Reasoned Acceptance - Reasoned Rejection

RA was charged with sexual interference, invitation to sexual touching and sexual assault against a minor. The victim was RA’s daughter. The offences occurred when she was between the ages of 3 and 5 years old. The offences involved the accused having the complainant masturbate his penis until he ejaculated.

The victim testified. RA testified as well.

RA was convicted after trial. The trial judge note that the accused “testified in a straightforward manner, that he was not evasive and did not exaggerate, embellish or colour his evidence”, and that he “withstood cross-examination without a blemish” [para 4]. Notwithstanding these comments, RA was convicted. The trial judge accepted the complainant’s evidence in its entirety and found the offences were proven beyond a reasonable doubt.

RA appealed. The appeal was dismissed: 2017 ONCA 714.

On appeal RA raised the following points:

First, he submits that the trial judge failed to resolve a critical inconsistency in the complainant’s evidence and failed to explain why he accepted the complainant’s evidence and rejected the appellant’s. This ground was the focus of the appellant’s submissions during oral argument. Second, the appellant submits that the trial judge failed to consider innocent explanations for the complainant’s knowledge of a penis and sexual acts in determining whether a reasonable doubt arose. [Para 5].

On the issue of the trial judge’s explanation for accepting the complainant’s evidence and rejecting the accused’s evidence, the Court of Appeal offered the following:

This was a credibility case, and at the end of the day the core of the complainant’s allegations were unaffected by the inconsistency. They remained consistent throughout. The complainant provided graphic details as to how the assaults took place. The trial judge reviewed the evidence, cognizant of the shortcomings of the child complainant’s evidence, and ultimately decided to accept her evidence in its entirety.

The trial judge’s analysis reflects a careful and sensitive approach to the evidence as a whole and I see no error that would allow this court to intervene.

Although the trial judge’s reasons are relatively brief, they are responsive to the live issues in the case and the parties’ key arguments: R. v. Walker, 2008 SCC 34 (CanLII), [2008] 2 S.C.R. 245, at para. 20. The trial judge properly instructed himself as to the law, and in particular the requirements set out in W.D. The appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant’s evidence, but nor did he reject it simply because he accepted the complainant’s evidence.

The trial judge was entitled to reject the appellant’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence”: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 53. That is what occurred in this case. [Emphasis added]; [paras 53-56]

These comments are not novel: see for example R v PR, 2014 ONCA 131 @para 4; R v JW, 2014 ONCA 322 @para 26 and 30. Clearly, however, it seems they need to be reiterated. As the court notes, an acquittal is not necessary simply because a trial judge does not identify “obvious problems”. A reasoned acceptance, beyond a reasonable doubt, of the victim’s evidence is sufficient.

RA is a helpful reminder of a basic but important legal principle – take heed.

DM

New & Notable: How you Say it Can be as Important as What you Say

Janet Smith has asthma and suffers from anxiety and panic attacks.  This conditions can be exacerbated during times of stress.  When she testified about this during her trial for failing to provide a breath sample the trial judge believed her.  The trial judge did not believe, however, that these conditions were a reasonable excuse for her failure to provide a breath sample.  Smith was convicted of failure and appealed.  MacDonnell J heard the summary conviction appeal: R v Smith, 2011 ONSC 5377.

Smith was involved in a motor vehicle accident which was investigated by the police. During the investigation the police formed grounds to believe she was impaired and arrested her. She was transported to the police station where she began to exhibit signs of distress and insisted she was have trouble breathing. She was transported to a hospital.

A breath technician then attended the hospital along with an approved instrument. Despite 11 attempts, Smith failed to provide a suitable sample. She was charged with failure.

At trial Smith testified that the medical conditions she suffered from made it impossible for her to provide the sample as she did the best she could. The trial judge, although accepting her conditions existed, held that she “intentional [failed] and that she exaggerated her symptoms at the relevant time in order to avoid providing a sample” [para 4].

At trial the trial judge had the opportunity to view a DVD of Smith recorded on the day of the incident at the police station. The trial judge further had the opportunity to observe Smith as she testified in her own defence. In convicting Smith the trial judge concluded that her “in-court observations and the events shown on the DVD greatly contribute to my findings that [Smith] exaggerated her symptoms in order to avoid providing a sample” [para 4].

On appeal Smith argued (i) that the trial judge erred by giving undue weight to the observations of Smith on the DVD and in-court; (ii) that it was also an error to do so without giving Smith notice or the opportunity to explain her behaviour; and (iii) that in the absence of medical or other expert evidence the trial judge’s observations had no probative value [para 5].

MacDonnell J considered each of the issues. 

 

First, MacDonnell J noted that it is not improper for a trial judge to consider demeanour on the issue of credibility - citing inter alia: R v Jabarianha, 2001 SCC 75 at paras 30-31; R v Devine, 2008 SCC 36 at para 28 [para 9].  In the present case the trial judge did not err or place undue weight on DVD or Smith’s in-court behaviour, it was merely “one factor among many that was of assistance in assessing the credibility of the appellant’s assertion that medical difficulties prevented her from complying with the breath demand” [para 6].

Second, MacDonnell J found that the trial judge was not required to give Smith notice or an opportunity to explain her behaviour [paras 11-15]: “[a] judge might well choose to bring the accused’s in court behaviour to his or her attention before acting on it, a judge is not required to do so” [para 12].

Third, with respect to the need for medical evidence, MacDonnell J rejected the submission:

The trial judge was not purporting to diagnose the appellant's condition. She was simply noting that both on the DVD and in the course of the trial the appellant had demonstrated that she was capable of turning on or off, at will, the symptoms that, she asserted, had interfered with her ability to comply with the breath demand. The judge did not have to hear medical testimony in order to make that observation or to assess its significance. [Emphasis added]; [para 16].

DG Mack

Comment: Credibility Assessment, an Enigmatic but Deferential Process

Trial judges are often deferred to on various rulings and findings including credibility findings. This trite statement of the law is logical and easy to accept. Trial judges watch witnesses testify, they see their demeanour, observe their body language and observe them reacting and answering questions under the friendly atmosphere of examination in chief and under the less friendly atmosphere of cross-examination.

In the recent decision of R v BA, 2011 ONCA 603, that deference does not appear to have been offered.

The appellant was convicted after trial having taken the stand in his own defence. In convicting the appellant the trial judge, De Filippis J, listed four reasons why he rejected the accused’s evidence. One of those reasons was the fact that the appellant was not “totally forthright about the extent of his criminal record” [para 1]. In fact the trial judge found that “the appellant deliberately failed to disclose his complete record” [para 1].

Defence counsel put the appellant's record to him in chief. The record presented, however, did not include the appellant's three most recent convictions. Defence counsel asked the appellant whether the record “accurately reflects your criminal record” to which the appellant replied “yes it does” [para 2].

During cross-examination the appellant volunteered that he was waiting for his license suspension to end; this prompted the Crown to ask whether the suspension was as a result of a criminal conviction and the appellant replied that he had recently been convicted of impaired driving. The appellant later testified under cross-examination that he had also been found guilty of two breaches of recognizance.

On appeal the appellant argued that the trial judge erred in relying on this part of his evidence as a basis to reject his evidence.  The Court Appeal found that in “neither of these instances was the appellant being evasive or deliberately trying to hide his record” [para 3] and that "the trial judge was not justified in using it to make an adverse credibility finding” [para 4].

In allowing the appeal on that ground alone the Court of Appeal held that the "error in finding that the appellant’s initial mistake and acknowledgement of his record was not 'innocent' irretrievably tainted his credibility finding" [para 4].

With respect, this conclusion appears to have failed to pay appropriate deference to De Filippis J in the circumstances.

First, even if the appellant "offered" the additions to his criminal record during cross-examination it could be open to the trial judge, based on the way in which he offered them and the manner in which it unfolded to find that it was not as forthcoming as it appeared on the transcripts. 

Second, the accused having looked at the record produced answered that it the document “accurately reflects [his] criminal record.” Nothing in the evidence reveals that the accused did not understand the question. Thus, having observed the accused testify, the trial judge’s finding that the accused was not forthcoming and in fact was being deceitful should be owed far greater deference. This is especially so where this was but one of four reasons that the trial judge rejected the accused’s evidence.

Third, as held by Charron J in R v Dinardo, 2008 SCC 24 at para 26 it will be rare for an appeal court to intervene in these circumstances:

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 [emphasis added].

While the Court of Appeal may have fairly disagreed about the impact of this aspect of the appellant's evidence, with respect, the deference owed to the trial judge was not properly considered.

 

DG Mack