SUPREME
COURT OF CANADA
Between:
J.A.A.
Appellant
and
Her
Majesty The Queen
Respondent
Coram: McLachlin C.J. and Binnie, Deschamps, Fish, Charron, Rothstein
and Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to 16)
Dissenting
Reasons:
(paras. 17 to 68)
|
Charron J. (McLachlin C.J. and Binnie,
Fish and Cromwell JJ. concurring)
Rothstein J. (Deschamps J. concurring)
|
R. v. J.A.A.,
2011
SCC 17, [2011] 1 S.C.R. 628
J.A.A. Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. J.A.A.
2011 SCC 17
File No.: 33782.
2011: February 22;
2011: April 8.
Present: McLachlin C.J. and Binnie, Deschamps, Fish, Charron,
Rothstein and Cromwell JJ.
on appeal from the court of appeal for
ontario
Criminal law — Evidence
— Fresh evidence — Charge of sexual assault — Wound on accused’s finger — Complainant
alleging to have bitten accused during assault — Police officer at trial giving
lay evidence as to wound being a bite wound — No expert testimony as to nature
of wound led at trial — Accused, on appeal, wishing to introduce evidence of
forensic dentist — Whether fresh evidence should be admitted.
The accused was convicted of
sexual assault and sexual assault with a weapon, both offences arising from an
alleged confrontation with his wife. The accused denied sexually assaulting
the complainant and testified that the sexual relations were consensual. The
complainant, however, testified that the accused had sexually assaulted her
repeatedly and that she had bitten one of his fingers very hard during the
assault. The attending police officer testified, without objection on the part
of the defence, that he saw a cut that looked like a tooth mark on one of the
accused’s fingers.
The trial judge was satisfied
beyond a reasonable doubt of the accused’s guilt. On appeal, the accused
argued that the trial judge erred by placing too much emphasis on the
complainant’s post‑offence demeanour, in his approach to assessing
credibility and in relying on the injury to his finger as corroborative
evidence. He moved to introduce as fresh evidence the report of a forensic
dentist, who had concluded that the mark on his finger was not the
result of a bite mark, arguing that this fresh evidence strongly undermined the
trial judge’s reasons and verdict. A majority of the Court of Appeal dismissed
the application as well as the other grounds of the appeal. The main issue is
whether or not the application to introduce fresh evidence should be allowed.
Held (Deschamps and Rothstein JJ.
dissenting): The appeal should be allowed. The fresh evidence
should be admitted, the convictions set aside and a new trial ordered.
Per McLachlin C.J. and
Binnie, Fish, Charron and Cromwell JJ.: The criteria for admitting fresh
evidence, established in Palmer v. The Queen, [1980] 1 S.C.R. 759, include
the requirements that the evidence should generally not be admitted if, by due
diligence, it could have been adduced at trial and that the fresh evidence must
be such that if believed it could reasonably, when taken with the other
evidence adduced at trial, be expected to have affected the result. Although
the accused essentially conceded that he failed to meet the due diligence
criterion, as this evidence obviously could have been adduced at trial, this
factor should not trump the other Palmer criteria, particularly in
circumstances such as here where trial counsel’s strategy was not unreasonable
given the nature of the anticipated Crown evidence. Neither the Crown nor the
defence had contemplated calling expert evidence about the mark on the accused’s
finger.
The proposed expert evidence could
reasonably be expected to have affected the result. The trial judge viewed
this case as a close one and, while he found the complainant to be credible, he
also commented favourably on the accused’s testimony. In ultimately rejecting
the accused’s testimony, he twice mentioned the injury to the accused finger,
clearly regarding it as corroborative. The fresh evidence reveals that
reliance on this evidence is misplaced and, if accepted, would not only vitiate
one of the bases for the trial judge’s reliance on the complainant’s testimony
and his rejection of the appellant’s version of events but also would arguably
undermine the complainant’s credibility. While the officer was qualified to
describe the injury he saw, his evidence arguably exceeded the proper
boundaries of lay opinion evidence. In light of the expert’s direct refutation
of the officer’s opinion, the prejudicial effect of its erroneous admission is brought
into sharp focus. When considered in the context of the other evidence at
trial and the trial judge’s reasons as a whole, the fresh evidence was sufficiently
cogent that it could reasonably be expected to have affected the verdict. It
was not necessary to address the other grounds of appeal.
Per Deschamps and Rothstein JJ.
(dissenting): Although the due diligence criterion should not trump the other Palmer
criteria, neither should it be ignored. Lack of due diligence at trial is a
consideration weighing against reception of the new evidence on appeal.
The expert evidence, even if
believed, could not reasonably be expected to affect the result which was the
conviction of the accused for sexual assault and sexual assault with a weapon.
The biting issue was minor at trial and defence counsel did not consider it
sufficiently important to object to the admission of the officer’s evidence as
to the mark or to have considered calling expert evidence at the time. Several
other factors also supported the complainant’s version of events and the
rejection of that of the accused: (i) the evidence of her post event
demeanour; (ii) the evidence of the condition of the home and the items
located in it; (iii) the evidence relating to the existence of the dull
knife; (iv) the manner in which the accused described his interaction and
control over the complainant during the sexual activity; and (v) the
general internal and external logic and consistency of the complainant’s
version as opposed to the accused’s version of events. An examination of the trial
judge’s reasons, and the factors that he considered in coming to the conclusion
that the accused’s evidence was “not capable of belief” all demonstrate the
minor nature of the biting evidence.
Evidence of post‑event
demeanour of a sexual assault complainant can be used as circumstantial
evidence to support a complainant’s version of events and it was entirely
appropriate for the judge to have regard to the demeanour evidence as part of
all the evidence considered by him. On the basis of uncontested evidence and
the internal and external logic and consistency and detail of the complaint’s
description of events as opposed to the evidence of the accused, the post‑event
demeanour evidence was not the sole basis for the credibility determination.
Finally, the trial judge
properly applied the steps in the analysis conducted pursuant to R. v. W. (D.),
[1991] 1 S.C.R. 742. He kept his eye firmly on the proper standard and burden
of proof, expressly instructed himself of the W. (D.) factors set out in,
and then tracked the steps of that analysis in his reasons. His reasons
carefully reviewed and evaluated the testimony of the various witnesses in
support of his conclusion on credibility.
Cases Cited
By Charron J.
Applied: Palmer v. The
Queen, [1980] 1 S.C.R. 759.
By Rothstein J.
(dissenting)
R. v. W. (D.), [1991] 1
S.C.R. 742; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. M. (P.S.)
(1992), 77 C.C.C. (3d) 402; Murphy v. The Queen, [1977] 2 S.C.R. 603.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, s. 683(1) (d).
APPEAL from a judgment of the Ontario Court of Appeal
(Winkler C.J.O. and Goudge and MacPherson JJ.A.), 2010 ONCA 491, 261
C.C.C. (3d) 125, 265 O.A.C. 304, 78 C.R. (6th) 40, [2010] O.J. No. 2902
(QL), 2010 CarswellOnt 4840, upholding the accused’s convictions. Appeal
allowed, Deschamps and Rothstein JJ. dissenting.
Marie
Henein and Matthew Gourlay, for
the appellant.
Kimberley
Crosbie, for the respondent.
The
judgment of McLachlin C.J. and Binnie, Fish, Charron and Cromwell JJ. was
delivered by
[1]
Charron J. — This is an appeal
as of right. The appellant, J.A.A., was convicted of sexual assault and sexual
assault with a weapon (a knife), both offences arising from an alleged
confrontation with his wife, S.A., on June 8, 2007. The couple had agreed to
separate as of May 1, 2007, but continued to live together in the family home
at the time of the incident. It is admitted that they had sexual relations
over the course of one and a half to two hours on the morning in question.
However, the parties present drastically different versions of the
circumstances surrounding these events.
[2]
S.A. testified that J.A.A. sexually assaulted
her repeatedly, at one point showing her a knife and threatening to kill
himself and her as well. She also testified that she bit one of his fingers
during the assault “very hard”, “as hard as I could”. When the events ended,
S.A. drove immediately to a friend’s home and the police were called. The
neighbour and one of the police officers testified that the complainant was
crying, distraught and appeared terrified. A police officer who interviewed
J.A.A. that afternoon testified that he saw a cut that looked like a bite mark
on one of J.A.A.’s fingers. The officer then explained in more detail why he
thought it was a tooth mark. Defence counsel did not object to the officer’s
opinion evidence but cross-examined him on his lack of expertise in this area
and on the failure to retain an expert on dental marks. J.A.A. denied sexually
assaulting the complainant. He provided considerable detail about the events
in question but testified that the sexual relations were consensual. He also
denied that S.A. bit him at any time.
[3]
The trial judge found the complainant credible (2008
CarswellOnt 9505 (Ct. J.)). He also found no reason to reject J.A.A.’s
testimony, when taken in isolation. However, the trial judge was ultimately
satisfied beyond a reasonable doubt of J.A.A.’s guilt based on the
complainant’s evidence, her post-event demeanour, the injury to J.A.A.’s
finger, photographs taken of the home when investigated by the police which
were consistent with her testimony as to where various items of clothing were
left, the existence of the knife and the general internal and external logic
and consistency of her description of the events.
[4]
J.A.A. appealed his convictions to the Court of
Appeal for Ontario on the grounds that the trial judge improperly rejected his
evidence without any basis or foundation and erred in law in his approach to
assessing credibility. J.A.A. contended that the trial judge placed too much
emphasis on the post-event demeanour of the complainant as a factor in
conviction. In particular, he argued that evidence of her emotional reaction
when she saw him two days after the events as he was escorted by police to the
house to gather his personal belongings was of no probative value and should
not have been admitted. J.A.A. also argued that the trial judge erred in
relying on the injury to his finger as corroborative evidence, as the officer’s
lay opinion evidence that it was a bite mark was inadmissible. On this latter
point, J.A.A. moved to introduce as fresh evidence the report of Dr. Wood, a
forensic dentist, who concluded that the mark on his finger was not the
result of a bite mark. In addition, Dr. Wood concluded that, based on the
complainant’s testimony, he would have expected to find evidence of a bite
mark. J.A.A. argued that this fresh evidence strongly undermined the trial
judge’s reasons and verdict.
[5]
The majority of the Court of Appeal dismissed
J.A.A.’s application to introduce fresh evidence, holding that Dr. Wood’s
evidence, even if believed, could not reasonably be expected to have affected
the result (2010 ONCA 491, 261 C.C.C. (3d) 125). The majority added that the
due diligence criterion, which the appellant essentially conceded he could not
meet, “cannot be ignored or wished away” as it plays an important role in the
administration of criminal justice (para. 34). The majority also rejected the
other grounds of appeal and upheld the convictions. Winkler C.J.O.,
dissenting, would have allowed the application to introduce fresh evidence. He
would also have ordered a new trial on the basis that the trial judge
improperly admitted lay opinion evidence on the bite mark and demeanour
evidence of the complainant, and misdirected himself as to the manner in which
he applied the criminal onus of proof.
[6]
I would allow the application to introduce fresh
evidence.
[7]
The criteria for admissibility of fresh
evidence, established in Palmer v. The Queen, [1980] 1 S.C.R. 759, are
well known: (1) the evidence should generally not be admitted if, by due
diligence, it could have been adduced at trial; (2) the evidence must be
relevant in the sense that it bears upon a decisive or potentially decisive
issue in the trial; (3) the evidence must be credible in the sense that it is
reasonably capable of belief; and (4) it must be such that if believed it could
reasonably, when taken with the other evidence adduced at trial, be expected to
have affected the result.
[8]
The appellant essentially concedes that he
cannot meet the due diligence criterion, as this evidence obviously could have
been adduced at trial. He submits, however, that this factor should not be
determinative. Trial counsel explained in an affidavit that he did not
consider retaining any kind of expert to examine the photos of the mark on his
client’s finger, as it seemed to him that “the mark was a minor generic
scratch” which in fact appeared inconsistent with the complainant’s testimony.
Further, the Crown did not contemplate calling expert evidence about the mark.
I agree that the due diligence criterion should not trump the other Palmer criteria,
particularly in circumstances such as here where trial counsel’s strategy was
not unreasonable given the nature of the anticipated Crown evidence.
[9]
The Crown concedes that criteria (2) and (3) are
met: Dr. Wood’s report is relevant and reasonably capable of belief. Dr.
Wood’s credentials are impressive; indeed, after cross-examining him and
consulting another expert, the Crown presented no evidence in response to the
fresh evidence. The application therefore turns on the final criterion.
[10]
I respectfully disagree with the majority below
that Dr. Wood’s evidence could not reasonably be expected to have affected the
result. As I read the trial judge’s reasons, he viewed this case as a close
one. While he found the complainant credible, he also commented favourably on
the appellant’s testimony. After instructing himself on the appropriate
standard of proof, the trial judge explained how he resolved the credibility
issue, stating as follows:
I found the evidence of the
complainant compelling, straightforward, credible, and supported by her
demeanour after she left the house, in her contact with her neighbour, and
shortly after when her husband attended to retrieve his clothing; and as well
at the hospital and the Mountain Station when giving her initial statements. Her
evidence was also supported by the injury to the accused’s finger, and the
general condition of the home when investigated by the police; including the
location of various items of clothing, and the existence of the dull knife.
The accused’s evidence was
articulate, responsive to the questions asked, and generally unshaken in
cross-examination. Taken in isolation, there was little in the substance of
his evidence, or in the manner in which it was given, that suggested it was
untrue.
. . .
Stacked beside [S.A.’s]
evidence, the evidence of the complainant’s demeanour after the attack, the
evidence of injury to the accused’s finger, their evidence with regard to
the accused’s possession of the knife, and their shared knowledge that the
knife was dull, the manner in which the accused described his interaction with
the complainant during the event, and the manner in which he described his
control of her, all of which I find supportive of the complainant’s evidence,
and the general internal and external logic and consistency of the complainant’s
description of the events, as opposed to the accused’s evidence as outlined in
the Crown’s submissions, I find the accused’s evidence is not capable of
belief.
Considering
all of the evidence, I am satisfied beyond a reasonable doubt that the accused
is guilty of the offence of sexual assault and sexual assault with a weapon.
[Emphasis added; paras. 86-90.]
[11]
Crown counsel at trial urged the trial judge to
accept the officer’s testimony that the injury to J.A.A.’s finger was a bite
mark and argued that this evidence corroborated S.A.’s version of events. The
Crown now seeks to downplay the importance of the bite mark evidence. However,
in ultimately rejecting J.A.A.’s testimony, the trial judge twice mentioned the
injury to J.A.A.’s finger, clearly regarding it as corroborative. The fresh
evidence now reveals that reliance on this evidence is misplaced. Dr. Wood’s
evidence, if accepted, not only vitiates one of the bases for the trial judge’s
reliance on the complainant’s testimony and his rejection of the appellant’s
version of events, but it also arguably undermines the credibility of S.A.’s
testimony that she bit down on J.A.A.’s finger “as hard as [she] could”. While
the officer was qualified to describe the injury he saw, his evidence arguably exceeded
the proper boundaries of lay opinion evidence. As the appellant fairly
concedes in his factum, “If the opinion stood unchallenged, the error may have
been of little consequence.” However, in light of Dr. Wood’s direct refutation
of the officer’s opinion, “the prejudicial effect of its erroneous admission is
brought into sharp focus” (A.F., at para. 43). It is not necessary to decide
on this application to what extent the officer’s testimony may have been
inadmissible. For our purposes, it suffices to say that it appears to have
been clearly wrong. Thus, the trial judge’s reliance on this item of evidence
is of much concern.
[12]
It is apparent, and understandable, from the
trial judge’s reasons that he looked closely at any item of physical evidence that
could assist him in determining the credibility issue. For example, I note
that in another part of his reasons, he referred to a photograph showing a
possible scratch in the accused’s pubic area, commenting that the mark was not
directly on the penis. As the complainant had testified that she scratched
J.A.A.’s penis, the trial judge stated, “It is troubling to me, that the
officers who were there when the photograph was taken, saw no indication of an
injury” on the penis (para. 80). He therefore resolved that he would treat
this item of evidence as essentially neutral.
[13]
When considered in the context of the other
evidence at trial and the trial judge’s reasons as a whole, I agree with
Winkler C.J.O. that Dr. Wood’s evidence “is sufficiently cogent that it could
reasonably be expected to have affected the verdict” (para. 80).
[14]
In my respectful view, it would be unsafe to
uphold the convictions on the strength of the other factors which the trial
judge considered supportive of his conclusion. The majority in the Court of
Appeal found two of these factors to be “particularly powerful”: “the
complainant’s physical and emotional state in the minutes and hours after the
event” and “the logic of the complainant’s testimony”, as opposed to the
appellant’s version of consensual sex (para. 38). I agree with counsel for the
appellant that it would be dangerous for this Court to uphold the convictions
and thus resolve the credibility issue in this case on the strength of
demeanour evidence, or on the basis that one party’s version was less plausible
than the other’s. While one may reasonably view the appellant’s version of
consensual sex implausible in the circumstances outlined by the majority (para.
38), counsel aptly points out that the same could be said about the
complainant’s version. It also seems implausible that the appellant, who had
never been depressed, violent, or aggressive in the 19 years the parties spent
together, suddenly turned into the suicidal, violent rapist described by the
complainant. J.A.A. adamantly denied ever having had
suicidal thoughts, stating in response to the complainant’s testimony on the
subject that he did not “even know what she’s talking about” (A.R., vol. II, at
p. 107). In this regard, I find the trial judge’s observations at the
time of sentencing noteworthy. He stated the following:
All of the character letters and the
pre-sentence report describe a responsible father with a good work history, no
criminal record or prior involvement with the law, and no history whatsoever of
violence either towards intimate partners or strangers.
In
comparing the offender, who I have found committed these offences, with the
person described in the reference letters and the pre-sentence report, I can
only come to the conclusion that these offences are entirely out of character
for this accused, and on the date in question, he snapped when he committed
these most grievous offences. [A.R., vol. I, at pp. 34-35]
[15]
As Winkler C.J.O. concluded, the weight the
fresh evidence ought to be given will ultimately be “a question for a trier of
fact, after cross-examination and in the context of the other evidence that may
be adduced” at the new trial (para. 81).
[16]
Having found that the fresh evidence should be
admitted, I do not find it necessary to deal with the other grounds of appeal.
I would allow the appeal, set aside the convictions, and order a new trial.
The reasons of Deschamps and Rothstein JJ. were
delivered by
Rothstein J. (dissenting)
—
I. Introduction
[17]
This appeal arises from sexual activity that
took place on June 8, 2007, between a married couple in the process of
separating. The issue is whether that activity was consensual.
[18]
By way of background, the
undisputed evidence was that this couple had not had sexual relations for at
least 18 months prior to the incident. The accused was aware that the
complainant was not interested in sexual relations with him. For some years
prior to the incident, the couple only had sexual relations twice a year. Six
months prior to the incident, the accused had taken up a bedroom in the
basement of the matrimonial home, and was no longer sleeping in the same room
as the complainant. The separation was against the wishes of the accused and
had been initiated by the complainant. At trial, the accused testified that he
was concerned about the complainant’s possible infidelity.
[19]
On the morning of the
incident, the couple were in the matrimonial home and the complainant was
preparing to go to work. Her evidence, accepted by the trial judge, was that
the accused grabbed her from behind, forced her to his bedroom in the basement,
and then forced her to have sexual intercourse and oral sex. When the accused
put his hand over her mouth to stop her from screaming, she testified that she
bit his finger as hard as she could. She also says that at one point during
the sexual activity, the accused threatened to kill himself with a knife, and
also threatened to kill her. Immediately after the sexual activity ended, the
complainant dressed and drove to the home of a friend, where she disclosed that
she had been raped. She was observed to be in an hysterical and terrified
state.
[20]
The police were called,
and the accused was arrested and charged with sexual assault and sexual assault
with a weapon. The accused said that the sexual activity was initiated by the
complainant and was entirely consensual. He denied that the complainant had
bitten his finger. At trial, a police officer testified that he had observed
what he believed to be a bite mark on the index finger of the accused.
[21]
The accused was
convicted. Included as one of a number of the trial judge’s findings was the
fact that the complainant had bitten the accused’s finger as he was taking her
to the basement (2008 CarswellOnt 9505 (Ct. J.)).
[22]
The accused now wishes
to introduce fresh evidence of a forensic dental expert, who would testify that
the mark on the accused’s finger could not have been a bite mark. That
evidence would have been available at trial, but was not adduced. The accused
concedes that he cannot satisfy the due diligence test, one of the criteria for
the admission of fresh evidence. However, he submits that this fresh evidence
could reasonably have been expected to have affected the result of the trial
had it been introduced at the time.
[23]
I have had the opportunity to
read the draft reasons of Charron J. She concludes that the application of the
accused to introduce fresh evidence ought to be allowed, the fresh evidence
admitted and a new trial ordered. I am of the respectful opinion that the
expert evidence, even if believed, could not reasonably be expected to affect
the result which was the conviction of the accused for sexual assault and
sexual assault with a weapon. For this reason, as well as for the reasons I
will outline relating to the issue of post-event demeanour evidence and the
application of the W. (D.) analysis raised by the accused (R. v.
W. (D.), [1991] 1 S.C.R. 742), I would dismiss the appeal. I am in
agreement with the reasons and conclusion of the majority of the Court of
Appeal (2010 ONCA 491, 261 C.C.C. (3d) 125).
II. Issue
1: Fresh Evidence
[24]
Section 683(1) (d)
of the Criminal Code, R.S.C. 1985, c. C-46 , allows a Court of Appeal to
receive fresh evidence when it is in the “interests of justice” to do so. The
four criteria for the admissibility of fresh evidence under this section of the
Criminal Code are set out in Palmer v. The Queen, [1980] 1 S.C.R.
759.
[25]
Only two of the Palmer
criteria are at issue in this case. The first criterion is that fresh evidence
should not generally be admitted if by due diligence it could have been adduced
at trial. The expert evidence the accused now seeks to have admitted could
have been adduced at trial and this is conceded by him. I am in agreement with
the majority of the Court of Appeal that the due diligence criterion plays an
important role in the administration of justice and with the explanation
provided by Doherty J.A. in R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402
(Ont. C.A.), at p. 411:
The
interests of justice referred to in s. 683 of the Criminal Code
encompass not only an accused’s interest in having his or her guilt determined
upon all of the available evidence, but also the integrity of the criminal
process. Finality and order are essential to that integrity. The criminal
justice system is arranged so that the trial will provide the opportunity to
the parties to present their respective cases and the appeal will provide the
opportunity to challenge the correctness of what happened at the trial.
Section 683(1)(d) of the Code recognizes that the appellate
function can be expanded in exceptional cases, but it cannot be that the
appellate process should be used routinely to augment the trial record. Were
it otherwise, the finality of the trial process would be lost and cases would
be retried on appeal whenever more evidence was secured by a party prior to the
hearing of the appeal. For this reason, the exceptional nature of the
admission of “fresh” evidence on appeal has been stressed . . . .
[26]
I agree with Charron J. that the due diligence
criterion should not trump the other Palmer criteria. Neither, however,
should it be ignored. In this case, lack of due diligence at trial is a
consideration that weighs against reception of new evidence on appeal.
[27]
I now turn to the fourth Palmer
criterion. We are concerned here with an application to adduce fresh evidence
and with whether that evidence, when taken with the other evidence adduced at
trial, could reasonably be expected to affect the result of the trial. To
answer this question it is necessary to consider the importance of the issue
addressed by the new evidence in the context of the other evidence adduced at
trial and in that context whether the new evidence could be expected to affect
the result arrived at by the trial judge.
[28]
From a review of the transcript, it is clear
that the defence itself did not see the bite mark as an important fact. The
complainant testified that she bit a finger of the accused. In
cross-examination, defence counsel had the complainant reconfirm her evidence-in-chief
that she had bitten one of the accused’s fingers when he had placed his hand
over her mouth to stop her from screaming:
Q: And you said you bit him hard?
A: I bit him as hard as I could.
Q: Okay. And you recall it was the middle
finger you bit as far as you can tell?
A: As
far as I can tell, it was. I didn’t look at his finger. [A.R., vol. II, at p.
16]
[29]
Counsel only asked two questions of the
detective who had testified that he thought he observed a bite mark on the
index finger of the accused:
Q: And the evidence you gave with respect to
the injury you observed on his index finger, you have given your opinion as to
it being consistent with a tooth mark, but just so we’re clear I take it that’s
your lay opinion; you have no particular expertise in dental marks or bite
marks?
A: That’s correct.
Q: Okay. And a dental mark was not retained
in any way to look at that bite mark?
A: No.
[A.R., vol. II, at p. 82]
[30]
In direct examination, defence counsel simply
asked the accused whether the complainant had bitten him and he said she had
not.
[31]
That was the totality of the evidence counsel
considered necessary to adduce with respect to the issue. I think this is
indicative of how minor the biting issue was during the course of a two-day
trial. I would think it logical that if the defence considered this a critical
issue, more would have been made of it. To refute the complainant’s evidence
and the evidence of the officer who testified about the bite mark, it would be
logical that the defence would have considered calling expert evidence at that
time. At the very least, counsel could be expected to have objected to the admission
of the officer’s evidence. However, defence counsel apparently did not
consider it sufficiently important to do so.
[32]
To place the bite mark evidence in context, I
turn to the other evidence adduced at trial.
[33]
Culver J. recognized (at
para. 88) that the “central issue in the end is one of consent” and that he was
faced with two competing versions of events: the accused’s version, in which
the sexual activities were consensual, and the complainant’s version in which
the sexual activities were non-consensual. He ultimately accepted the
complainant’s version of events, and concluded that “the accused’s evidence is
not capable of belief” (para. 89).
[34]
As the majority of the
Court of Appeal observed, “The clear anchor of the trial judge’s reasons for
judgment was his belief of the complainant’s testimony” (para. 27). The trial
judge found her evidence to be “compelling, straightforward and credible” (ibid.).
[35]
However, the trial judge did
not rely solely on his belief that the complainant was credible when arriving
at his conclusions. In addition to the bite mark, he also relied on a number
of additional factors to support her version of events and reject the accused’s
version of events.
[36]
The trial judge’s reasons
state that beside the bite mark he relied on the following factors to support
the complainant’s version of events and to reject the accused’s version: (i)
the evidence of her post-event demeanour; (ii) the evidence of the condition of
the home and the items located in it; (iii) the evidence relating to the
existence of the dull knife; (iv) the manner in which the accused described his
interaction and control over the complainant during the sexual activity; and (v)
the general internal and external logic and consistency of the complainant’s
version as opposed to the accused’s version of events.
[37]
The first factor was
the evidence of the complainant’s post-event demeanour. There were three
separate incidents that make up this post-event demeanour evidence: (i)
immediately after the event she arrived at her friend’s house, and was
incoherent, crying, hysterical, terrified and disclosed that she had been
raped; (ii) later that same day, after the police were called, she was observed
to be visibly distraught at the hospital (where a rape kit was collected) and
at the police station; and (iii) two days after the event, two police officers
observed that the complainant had a visibly panicked reaction when the accused
arrived at the matrimonial home to retrieve his property.
[38]
This post-event
demeanour evidence is consistent with a sexual assault having occurred. For
the first incident in particular, there was no time lapse. The complainant was
observed within minutes of her leaving the matrimonial home; this evidence was
reflective of the complainant’s reaction to the events that had just occurred.
The fresh evidence would not bear in any way on this evidence.
[39]
Defence counsel at trial
argued that the post-event demeanour evidence “jar[red] somewhat” with the fact
that the complainant did not take a shower, clean her teeth or put clean
clothes on in order to preserve evidence (R.R., at pp. 10-11). However, the
only place the complainant could have changed her clothes, cleaned her teeth or
showered was at the matrimonial home, where the sexual assault had just taken
place, and where the accused remained. The fact that she fled the scene of the
sexual assault and the accused without taking time to clean herself up is
entirely consistent with the conclusion that she had just been sexually
assaulted and wanted to escape from her attacker.
[40]
I agree with the majority of the
Court of Appeal that this post-event demeanour evidence was “strong evidence
indeed” (para. 38). This Court has long held that evidence of the demeanour of
a sexual assault victim can be used as circumstantial evidence to corroborate
the complainant’s version of events. In Murphy v. The Queen, [1977] 2
S.C.R. 603, Spence J., writing for the majority and the unanimous Court on this
point, found (at pp. 612-13):
The respondent’s factum, I believe, sets
out the proper view as follows:
Independent
testimony of a rape complainant’s emotional condition is capable at law of
corroboration where it is sufficiently damning that it may be considered by a
jury to be more consistent with her denial of consent than with the existence
of consent, or, to put it another way, where a reasonable inference can be
drawn by a jury, considering all the circumstances, that there is a causal
relationship between the assault and the complainant’s distraught emotional
condition.
.
. . Her mental condition was most marked and very convincing evidence thereof
was given by both the cousin and the policeman. I am of the opinion that such
evidence could qualify as corroboration within the provisions of s. 142 of the Criminal
Code . The weight which should be given to such evidence was, of course, a
matter for the jury and it must be presumed that the jurors did assess its
weight in accordance with their sworn duty.
[41]
Murphy dealt with
the now repealed s. 142 of the Criminal Code . That section required a
judge to warn a jury that it was unsafe to find the accused guilty in a rape
case in the absence of corroborating evidence, if the only evidence implicating
the accused was the testimony of the complainant. This corroboration
requirement no longer exists. Nonetheless, the reasoning in Murphy
still supports the use of post-event demeanour evidence as circumstantial evidence to support a complainant’s
version of events. If evidence of a sexual assault victim’s post-event
demeanour was capable of being corroborative then, it is certainly capable of
constituting relevant circumstantial evidence now. In
my respectful opinion, in this case, it was entirely appropriate for the judge to
have regard to the demeanour evidence as part of all the evidence considered by
him.
[42]
A second factor that
the trial judge considered was evidence of the complainant and the accused with
regard to the dull knife. The trial judge recounted the complainant’s evidence
as follows:
She testified that he spoke of killing
himself at one point. He got out an Army knife with a large blade, the entire
knife being about 12 inches long, with a six to eight inch blade. She
testified she was aware of him having it, but wasn’t sure what he used it for.
She testified that he forced her to look at the knife, and said he was going to
kill himself with it. He was lying behind her at the time, and put the blade in
front of her face about one foot away from her, pointing at her. He wanted her
to hold the handle of the knife, and told her he took out life insurance and
that it covered suicide. He gave her
instructions on how to get access to the insurance policy, which was in a
safe. She tried to distract him with comments about the children, and
testified that she was very afraid of the knife. At one point he said, “I
might as well kill you too”, when the knife was in front of her face.
She
stated that she was so afraid of the knife, that she said if they went upstairs
she would have sex with him, if the knife was put away. She testified that she
hated sex being forced on her, but hated the talk of suicide and the knife
more. [paras. 13-14]
[43]
He then summarized the evidence of the accused:
He admitted that there was a knife in his
room underneath his bedroom table. In February or March of 2007, the
complainant heard noises in the house at the front door and in the kitchen when
the accused was not home. His son was apparently worried about him, namely the
accused, living in a basement, so the son suggested the knife for protection.
After
the last occasion they had intercourse in the basement, he testified the
complainant said she felt chilly. He suggested they go upstairs to the bedroom,
and she agreed. He sat her up, wrapped her in a comforter, and stated he told
her why the knife was in his bedroom. He testified that he told her if it
upset her that he would put it away, which he did later in the morning. He
testified that he never threatened her with the knife, and testified that he
put the knife away after she went to work, by putting it in a toolbox. [paras.
44-45]
[44]
The significance of what the trial judge wrote
is that on either view of the events, if the sexual activity was entirely
consensual on the part of the complainant, why would there be any discussion of
a knife at all and why would it have made her uncomfortable?
[45]
But there is more. How
did the complainant know the knife was dull? The complainant’s evidence was:
The Court: Sorry, “Touch the blade . . .”
A: The blade of the knife.
The Court: Yes?
A: He
had the blade on the chest freezer in front of my face. He was behind me. We
both bent over in front of the knife and he said, “Put your finger along the
blade. See how dull it is. This is really going to hurt when I kill myself.”
And I didn’t want to touch the blade. I wouldn’t touch the blade. I -- he made
me touch the handle but I wouldn’t touch the blade. [A.R., vol. I, at pp. 143-44]
[46]
The accused confirmed, in cross-examination,
that the knife was dull:
Q: And [the knife] had become dull over time
as a result, correct?
A: Yeah
I imagine it was, you could call it dull. [A.R., vol. II, at p. 152]
[47]
But the evidence of the accused with regard to
what occurred with respect to the knife would leave no room for the complainant
to discover that the blade was dull.
Q: All right. And while you’re in the
basement with [the complainant] she sees this knife, right?
A: Eventually, yes.
Q: Okay. And you could sense that she didn’t
feel comfortable about this knife and asked her, “If you want me to remove it,
I’ll remove it” right?
A: I
told her if it made her uncomfortable I’d remove it, yes. [A.R., vol. II, at p.
153]
[48]
If the complainant just looked at the knife she
would not have known it was dull. The evidence of the accused is inconsistent
with his own acknowledgment that the knife was dull and with the complainant’s
knowledge that it was dull.
[49]
A third factor was the
manner in which the accused described the sexual activity. The trial judge
considered the fact that the accused described his involvement as being more
controlling to support the conclusion that the sexual activities were not
initiated by the complainant and were not consensual. In the words of the
trial judge:
Of some note, however, from time to time during
[the accused’s] testimony, many of the words he used to describe the sexual
activity were descriptions of the accused manipulating the complainant’s body.
For instance, although he testified on cross-examination in the basement he
pushed the complainant gently on the shoulder and she rolled over, his original
testimony was that he rolled her over. Again in the basement, he asked her if
she was cold, and he sat her up and wrapped her in a blanket, although he
testified he didn’t mean to say that he grabbed her and pulled her up.
There
are other occasions in his evidence that have him describing himself as the
more active partner than her in positioning her body for intercourse. [paras.
51-52]
[50]
The inference drawn by the trial judge that this
evidence indicated the sexual relations were not consensual would not be
affected in any way by the fresh evidence.
[51]
A final factor was what the
trial judge called “the general internal and external logic and consistency of
the complainant’s description of the events, as opposed to the accused’s
evidence as outlined in the Crown’s submissions” (para. 89). The trial judge
had earlier outlined the Crown’s submissions on the logic and consistency of
the complainant’s version of events as opposed to the accused’s version, where
he wrote:
The Crown also urges me to find that the accused’s version of events does not
make sense, and points out a number of illogical or inconsistent facts. The
Crown contends, for a number of reasons, that it is illogical that the
complainant would become a consenting and willing partner. She wanted a
separation, and the process was clearly underway. He had refused to
participate in marriage counselling. They had visited a mediator and a pension
evaluator. A shared parenting plan had been considered. They had not had
sexual relations for at least 18 months, and he knew that she was not
interested in sexual relations; he had taken up a bedroom in the basement six
months prior. These events occurred after she was dressed for work and was
getting ready to leave. She was expected at work, with many people reporting
to her. They had been arguing over the daughter’s Wonderland trip.
All of these, the Crown urges me
to find, are inconsistent with a sudden change in her attitude towards the
accused.
The
Crown also argues that the accused’s contention that the complainant was
spontaneous, sexual and passionate, yet he couldn’t say she initiated any of
the acts; that she had oral sex with him after gagging during oral sex; and
that it was a hot day, yet she was cold in the basement, are unlikely and
illogical. [paras. 67-69]
[52]
I would agree with the
majority of the Court of Appeal when it found that the logic of the
complainant’s testimony was a “particularly powerful” factor considered by the
trial judge and that “[t]he constellation of these contextual facts lends
substantial credence to the complainant’s ‘compelling, straightforward,
credible’ testimony” (para. 38).
[53]
Charron J. says that “it would
be dangerous for this Court to uphold the convictions” based on one version of
events being more plausible than the other. She observes that although “one
may reasonably view the [accused’s] version of consensual sex implausible in
the circumstances outlined by the majority (para. 38), counsel aptly points out
that the same could be said about the complainant’s version” (para. 14).
[54]
I cannot agree. In
addition to the findings of the trial judge I would add the following. The
undisputed evidence is that for some years this couple had sexual relations
twice a year, once on the accused’s birthday and once in the summer; hardly
suggestive of a spontaneous, passionate advance by the complainant on June 8,
2007.
[55]
Further, the complainant was in
the process of arranging to leave the matrimonial home. She had just told the
accused that morning that she had contacted a real estate agent. The accused
testified that he recalled that the complainant had mentioned that she was
dealing with a realtor to find a new premises for herself. The marriage
break-up was against the accused’s wishes, it was imminent and he was concerned
about the complainant’s fidelity. He testified that during the events of June
8, 2007 he questioned the complainant about being unfaithful. As the Crown
argued, this pointed to a motive for the accused “to have the complainant
sexually one last time before the final breakup, which was imminent” (para. 82).
[56]
Charron J. says, “It
also seems implausible that the appellant, who had never been depressed,
violent, or aggressive in the 19 years the parties spent together, suddenly
turned into the suicidal, violent rapist described by the complainant” and that
he “adamantly denied ever having had suicidal thoughts” (para. 14). However,
in cross-examination, the complainant, in some detail, indicated that the
accused had previously made threats of suicide when upset over the imminent
breakdown of their marriage:
Q: All right. And he never threatened to
commit suicide before?
A: That’s not true, he had. One time, it
was after I told him I wanted to separate. I can’t tell you exactly when
it was but he was -- we were both in the basement. I was in the room where we
have a TV set and the only TV set we owned and I was watching TV and he was
upset and he was walking from the TV room which you have labelled as “Family
room” and he was walking to what you have labelled as “Game room” back and
forth and saying he was going to kill himself.
Q: Okay.
A: Sort of as a rant, “I’m going to kill
myself”, “I’m just going to kill myself.”
Q: All right. He had never been treated for
depression as far as you know?
A: I have no knowledge of that.
Q: Any idea why he would want to kill
himself? I mean it looked like he was going to get more money out of this
separation than you were?
A: That
was my understanding and that was what came through at the mediation and it is
also what I informed him came through with my discussions with several
lawyers. So I was -- I disclosed all of -- to the best of my ability all of my
assets, and as I understand he had disclosed what he had as well; so the plain
numbers were yes, there would be an advantage to him. [Emphasis added; A.R., vol.
II, at p. 24.]
[57]
Having regard to the context, it is
apparent that the threats of suicide were made to intimidate and cause distress
to the complainant in response to her wanting to separate from him. He
testified that he “definitely did not want a separation or a divorce, not at
all. I loved my wife and I didn’t want it” (A.R., vol. II, at p. 104). While
the accused may not have been depressed, his threats of suicide were consistent
with his motive — demonstrated when he indicated he did not
want the divorce and when he questioned the complainant about infidelity — to exercise power over the complainant, and have her sexually one last
time before the end of the marriage. Or in the words of the complainant:
Q: Okay. And had you said anything to him up
to this point in time when you pulled your pants off?
A: I said -- I only remember saying “Don’t do
this, this is rape, stop”.
Q: All right. And what did he say?
A: I
don’t remember everything he said at that point. I recall he had told me that
he deserved one last meal. That’s what he was calling this ordeal was a last
meal. [A.R., vol. I, at pp. 135-36]
[58]
My colleague says that the
significance of the bite mark is illustrated by the fact that the trial judge
“looked closely at any item of physical evidence that could assist him in
determining the credibility issue” (para. 12). However, as I have outlined,
the trial judge relied on much more than just the biting evidence to resolve
the credibility issue.
[59]
In sum, an examination of the
trial judge’s reasons, and the factors that he considered in coming to the
conclusion that the accused’s evidence was “not capable of belief”, all
demonstrate the minor nature of the biting evidence. These factors, and the
undisputed evidence, discussed in detail above are:
•
The post-event demeanour evidence of the
complainant which was consistent with a sexual assault having occurred;
•
The reference to the knife, which is
inconsistent with the sexual activity having been consensual;
•
The complainant’s awareness that the knife was
dull;
•
The trial judge’s observations as to the
controlling manner in which the accused described the sexual activity;
•
The complainant wanted a separation, contrary to
the wishes of the accused, and the process was underway. The morning of the
events, the complainant told the accused that she had contacted a real estate
agent;
•
The complainant and accused were sleeping in
separate rooms for six months prior to the event;
•
The complainant was uninterested in sex;
•
The couple had not had sex for at least 18
months before the event. Prior to this, the couple had sex twice a year: once
on the accused’s birthday and once during the summer;
•
The complainant was dressed to leave for work,
where she was expected by people who reported to her, and made no call when the
event began to indicate that she would be late;
•
The couple had, just prior to the event, been
arguing over their daughter’s trip;
•
The accused could not say that the complainant
had initiated any of the sex acts;
•
The accused said that the complainant had oral
sex with him after gagging during oral sex;
•
During the events, the accused questioned the
complainant about being unfaithful;
•
The accused used threats of suicide to
intimidate the complainant in response to her wanting to separate from him,
which was against his wishes, both during the events and prior to the events;
and
•
The accused’s motive, to exercise power over the
complainant one last time prior to the end of the marriage.
For these reasons, I cannot
agree that the fresh evidence “could reasonably, when taken with the other
evidence adduced at trial, be expected to have affected the result” (Palmer,
at p. 775). I would dismiss the fresh evidence application.
III. Issue 2: The Post-Event Demeanour Evidence
[60]
The second issue on appeal
concerns the trial judge’s use of the evidence of the complainant’s post-event
demeanour. As I have already discussed, it is well established that the
evidence of post-event demeanour of a sexual assault complainant can be used as
circumstantial evidence to support a complainant’s version of events (Murphy,
at p. 612).
[61]
The accused submits that when
the bite mark evidence is taken out of the picture the other evidence
considered by the trial judge “hold[s] little water” (A.F., at para. 89). He
says the trial judge “was left with little more” than the complainant’s post-event
demeanour when corroborating her version of events (A.F., at para. 95). The
accused asserts that “[t]he evidence of a teary-eyed complainant, without more,
ought not to constitute convincing evidence of guilt beyond a reasonable doubt”
(A.F., at para. 98).
[62]
In his dissent, Winkler C.J.O. was
concerned about the post-event demeanour evidence, but for another reason.
Winkler C.J.O. was concerned that the trial judge “improperly admitted this
circumstantial evidence which was not relevant, thus committing an error of
law” (para. 100).
[63]
However, Winkler C.J.O.’s
concerns about the inadmissibility of the demeanour evidence were not pursued
by the accused before this Court. In oral argument, counsel for the accused
acknowledged that “in appropriate circumstances, this kind of evidence is
admissible or it is admissible and it can be probative” (transcript, at p. 35).
The position of the accused was that “in a case like this, the demeanour
evidence cannot be determinative of guilt beyond a reasonable doubt” (transcript,
at p. 34).
[64]
The accused’s argument
about the post-event demeanour evidence, therefore, comes down to the argument
that the trial judge erred by relying exclusively on this evidence. However,
as I have outlined, on the basis of uncontested evidence and the internal and
external logic and consistency and detail of the complaint’s description of
events as opposed to the evidence of the accused, the post-event demeanour
evidence was not the sole basis for the credibility determination.
[65]
I would dismiss this
ground of appeal.
IV. Issue 3: The W. (D.) Analysis
[66]
The final issue on
appeal concerns the trial judge’s application of the second step in the W. (D.)
analysis. The accused submits that we should agree with Winkler C.J.O. who
found that the trial judge had erred by not asking “whether, even if you do not
believe the evidence of the accused, it raises a reasonable doubt” (para. 105).
[67]
I would also dismiss this
ground of appeal. It is apparent that the trial judge kept his eye firmly on
the proper standard and burden of proof. He wrote that “[i]n analyzing the
evidence, the question remains whether, on the whole of the evidence, I am left
with a reasonable doubt about the guilt of the accused” and that “throughout
the analysis, it must be remembered that the burden of proof is always on the
Crown” (paras. 83-84). The trial judge expressly instructed himself of the W.
(D.) factors, and then tracked the steps of that analysis in his reasons.
His reasons carefully reviewed and evaluated the testimony of the various
witnesses, in support of his conclusion on credibility. It is apparent that
the trial judge properly applied the steps in the W. (D.) analysis.
V. Conclusion
[68]
I would dismiss the appeal.
Appeal allowed, Deschamps and Rothstein JJ. dissenting.
Solicitors for the
appellant: Henein & Associates, Toronto.
Solicitor
for the respondent: Attorney General of Ontario, Toronto.