DATE: 20040526
DOCKET: C35323
COURT OF APPEAL FOR ONTARIO
LASKIN, GOUDGE and SIMMONS JJ.A.
| BETWEEN: |
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| HER MAJESTY THE QUEEN Respondent |
Gregory Lafontaine for the appellant |
| - and - |
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| S.J. D. Appellant |
John McInnes for the respondent |
| Heard: August 21, 2001 and December 19, 2003 |
On appeal from the convictions entered by Justice Julia A. Morneau of the Ontario Court of Justice dated June 1, 2000 and the sentence imposed by Justice Morneau dated October 30, 2000.
LASKIN J.A.:
A. Introduction
[1] In its important judgment in R. v. Sheppard, [2002] 1 S.C.R. 869, the Supreme Court of Canada held that in criminal cases trial judges have a duty to give reasoned reasons for their decisions. In the wake of Sheppard, this court has heard many appeals in which the main ground of appeal was the trial judge’s failure to give adequate reasons for rejecting the accused’s evidence and finding that it did not raise a reasonable doubt. This is another of these cases.
[2] The appellant, S.D., was charged with repeated sexual touching and counselling sexual touching of his adopted daughter M.D. The complainant alleged that the incidents began in 1996, when she was 8 years old, and ended shortly after her parents separated in mid‑1998. The appellant testified and denied that he had engaged in any sexual activity with his daughter.
[3] In a decision that pre-dated Sheppard, the trial judge convicted the appellant on both counts and sentenced him to a three and a half year jail term. In her reasons she said that she did not believe the appellant’s denials. But she did so without analyzing his evidence or explaining why she had rejected it.
[4] The appellant has appealed both his convictions and his sentence. On his conviction appeal the question we have to answer is whether the trial judge’s failure to explain why she disbelieved the appellant amounts to an error of law. In my view it does, and it warrants a new trial.
B. Procedural History
[5] This appeal was first argued as an inmate appeal at the Kingston sittings of the court. As is typical on inmate appeals, the panel had the trial judge’s reasons for judgment, but not the transcript of evidence. Mr. Lafontaine, then acting as duty counsel, assisted the appellant during oral argument. The panel reserved its decision and asked the Crown and Mr. Lafontaine to deliver written submissions on the question of the adequacy of the trial judge’s reasons for rejecting the appellant’s evidence.
[6] To ensure that this question could be properly addressed, the Crown ordered a transcript of the evidence at trial. The appellant, now represented by Mr. Lafontaine, then brought a “fresh evidence” application in which he asked to introduce evidence that the complainant M.D. had recanted her trial testimony. Both the complainant and a family relative, who had also been a witness at trial, were examined on the fresh evidence application. Because so much time had passed since the appeal was first heard and the focus of the submissions had changed, the panel, at the suggestion of counsel, ordered that the appeal be re-argued. These reasons follow the re-argument.
C. The Evidence
(a) Family background
[7] The appellant married T.D. in 1990. They raised four children: the complainant M.D. born in 1988 and fathered by another partner, two boys of their own, and a daughter K.D., also fathered by another partner and conceived when the parties briefly separated in 1995. The appellant adopted M.D. in 1993.
[8] Mr. and Mrs. D. had a volatile relationship. Mrs. D. testified that the appellant was emotionally abusive and towards the end of the relationship, also physically abusive. Their relationship became especially strained after K.D. was born and it deteriorated badly in 1997. Mr. and Mrs. D. permanently separated in March of 1998. In mid‑1998 Mrs. D. discussed reconciling and getting the family back together. That discussion ended when the appellant started dating another woman. On separation the boys went to live with the appellant and the girls with Mrs. D. By the time of trial, M.D., then almost twelve‑years‑old, was living in a foster home on a farm.
[9] During the time the family lived together the appellant was a strict disciplinarian with his children. He meted out physical discipline, which included the use of a belt and wooden spoon – until cautioned not to do so by the Children’s Aid Society – and a “wallop” with his hand. The complainant received more than her fair share of this discipline. The appellant hit her regularly, often for lying, which the complainant was prone to do. Her constant lying became so troubling for her parents that they had the elders of their church talk to her about it.
(b) The complainant’s allegations
[10] The complainant testified about six incidents of sexual abuse:
1. The first incident took place in 1996, when she was eight years old, in grade two, and the family was living on Cook Street in Meaford, Ontario. M.D. said that she was in her bedroom drying off from a bath. Her mother was bathing the two boys in the bathroom next door. The appellant, wearing shorts and a t-shirt, came into her room and closed the door “slightly”. The appellant took her towel and told her to lie down on the bed, which she did. He joined her. Next he asked her to rub his legs because he had arthritis. She did so until he told her to stop. Then he unzipped his shorts, hugged her and tried to penetrate her with his penis but could not “get all the way in”. She said that she was in pain during the incident. After the incident was over, the appellant did up his shorts, told M.D. that if she ever told anyone what happened he would hurt her more, and left.
2. The next incident M.D. testified about took place after the family moved to Owen Sound. One evening, Mrs. D. and the other children had gone to visit an aunt. M.D. and the appellant stayed home and were watching television. The appellant asked her to go into the bedroom where “practically the same procedure” took place. Again, the appellant tried to penetrate her but could not.
3. The remaining incidents occurred after the family moved back to Meaford to a house on Margaret St., in December 1996. According to M.D., the third incident happened on a day when Mrs. D. had gone to a party. M.D. was playing hide and seek with her brothers. The appellant told the boys and K.D. to play outside. Then he told M.D. to take off her pants and lie down. This time he made more of an effort to penetrate her vagina. Although he did not fully penetrate her, he went much farther than he had previously. M.D. testified that she was crying and in a lot of pain. Afterwards when she went to the washroom she saw blood on the toilet seat. She also saw “creamy white stuff” in the toilet. She asked the appellant what it was. He replied that she had stolen it from him and he would never tell her.
4. The next incident M.D. recounted occurred “a while” later. The other children were in bed, Mrs. D. was visiting a friend, and the appellant and M.D. were watching television. He had her wear a “skimpy little pair of underwear” and dance for him. After she did so, he had her wash his penis. Then he penetrated her vagina. He said that he had sex with her because her mother would not do “any of this stuff with him”. He also told her that if he ever started to do such things again, she should tell him to stop. However, when she did tell him, he would not stop.
5. M.D. told of another incident when she was in bed going to sleep. The appellant rubbed cold “stuff” all over her mouth. She testified that it had a foul smell.
6. The last incident M.D. testified about took place after her parents had separated. She was visiting her father for the weekend. The other children were asleep, but the appellant and M.D. were up watching a “really disgusting” movie, containing nudity. M.D. fell asleep on the couch in her nightgown. When she awoke the appellant was touching her vagina.
[11] After this last incident M.D. told her mother about the appellant’s inappropriate sexual touching. In her evidence she denied making up these allegations because she was angry at the appellant for spanking her. She acknowledged, however, lying to the police by telling them these sexual incidents had taken place thousands of times. She also acknowledged that she missed the appellant and was upset at not being able to see him.
[12] In addition, during her testimony, M.D. described stories that the appellant had written about her on his computer. In one story the appellant had an eight-inch long penis, which he tried to get into her vagina. M.D. claimed that the appellant saved the stories on a disk, which she and her brother hid in the box spring of her mattress. The police searched the house, including the box spring, but did not find the disk.
(c) The defence evidence
[13] The appellant called his current girlfriend and his sister as witnesses. Each testified that she saw the appellant and M.D. together, that nothing untoward occurred between them and that they appeared to get along well. The appellant filed two medical reports: in one report the doctor said that he had examined M.D. in July of 1998 and found no evidence of sexual abuse, although “that does not mean that it did not occur”; in the other report, the doctor dealt with M.D.’s abdominal pain arising from constipation.
[14] The appellant also testified in his own defence. At the time of trial he was twenty‑nine years old.
[15] The appellant agreed that his relationship with Mrs. D. had been rocky, marred by physical and emotional abuse toward each other. He maintained, however, that he became less violent and verbally abusive after he joined the Jehovah’s Witness Church in 1993. He also agreed that he disciplined M.D. regularly, as much as three or four times a week. His discipline included spanking, sending her to her room and taking her toys away from her.
[16] The appellant testified that he never engaged in any inappropriate sexual touching of M.D. and never asked her to touch him. In his examination in chief he was asked about the six incidents of sexual touching M.D. had alleged in her testimony and he denied each of them. He also replied to some of her evidence surrounding these incidents.
[17] For example, regarding the first incident, he suggested that because the hallway in their house on Cook St. was very narrow and M.D.’s bedroom was opposite the bathroom, if anything had happened in the bedroom, it would likely have been heard in the bathroom. Regarding the third incident, he acknowledged that M.D. had played hide and seek, but denied that it preceded any sexual touching. Regarding the fourth incident, he said that M.D. liked to dance and often did so at home, but that he never asked her to dance for him. Regarding the sixth incident, he said that he watched “only age appropriate” movies with his daughter and never ones containing nudity or other pornographic material.
[18] The appellant also testified that he wrote things on the computer and in doing so, occasionally referred to M.D., but he denied that he wrote anything with a sexual or pornographic connotation. He said that mostly he wrote material for his church.
[19] Significantly, the appellant was not cross‑examined on any of the six incidents of alleged sexual abuse.
(d) The trial judge’s reasons
[20] The trial judge gave lengthy reasons, consisting of thirty-eight pages of transcript. Her reasons can be divided into three parts. The first part – twenty-eight pages – consists of a straight narrative summary of the evidence. The second part – some nine pages – consists of an assessment of M.D.’s evidence and her credibility. After instructing herself on R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge asked herself whether a child of M.D.’s age could invent the six incidents she had recounted. The trial judge concluded that she could not have done so. The trial judge considered some of the inconsistencies in M.D.’s evidence and whether M.D. had a motive to fabricate. She concluded that M.D. was believable and accepted her evidence. She could not accept that a child could invent so many of the statements M.D. attributed to her father. Finally, the trial judge observed that M.D. “withstood cross‑examination quite well” and “was not confused.”
[21] The third part of the trial judge’s reasons – a little more than a page – deals with the appellant’s credibility. She did not believe him or find that his evidence raised a reasonable doubt. Her reasons concerning the appellant’s evidence are conclusory: “I do not believe Mr. D. when he denies the sexual activity with M.D....I have also considered whether Mr. D.’s evidence has left me in a reasonable doubt. It has not.”
[22] She supported these findings only with her acknowledgment that this was not a trial about the appellant’s “parenting style” or his relationship with his family; her rejection of the appellant’s evidence that he slept in M.D.’s room only a couple of times when she was sick and her acceptance of Mrs. D.’s evidence that he often slept in M.D’s room; and her view that the appellant’s evidence “is in many aspects consistent with what M.D. and her mother testified to.” Those consistencies included “their residence locations, the domestic [discord] and the discipline of the children”.
D. Analysis
(a) The duty to give reasoned reasons
[23] Sheppard warns against conclusory credibility findings. Implicitly it cautions that credibility findings without explanations for them run the risk of losing the appellate deference they ordinarily command. As hard as it may sometimes be to explain why the evidence of one witness is accepted and the evidence of another rejected, Sheppard calls on trial judges to try to do so.
[24] In Sheppard, Binnie J. gave three reasons why trial judges have a duty to give adequate explanations for their findings: judges have an obligation to the public to explain their decisions; judges have an obligation to accused persons to tell them why they were convicted; and judges have an obligation to counsel and appeal courts to make appellate review of their decisions meaningful.
[25] To these reasons I add L’Heureux Dubé J.’s wise observation in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 39: “The process of writing reasons for decision by itself may be a guarantee of a better decision.” This observation is reflected in the well-known phrase “sometimes it just won’t write”. In some cases a judge’s first instincts about a case, even a judge’s initial credibility assessments, may not stand up to a reasoned analysis. Putting pen to paper – articulating the “path” to one’s findings – may disclose a flaw in one’s reasoning. In this sense, writing reasoned reasons is a safeguard against both wrongful convictions and acquittals.
[26] Sheppard, however, stops short of saying that a failure to give adequate reasons automatically amounts to reversible error. Instead, it adopts a functional approach. The adequacy of a judge’s reasons must be assessed against the rationales for giving them. Where, for example, the Crown’s case is overwhelming or the accused’s evidence is patently incredible or unreliable, the absence of reasoned reasons will likely not deprive and accused of meaningful appellate review or prevent an accused from knowing why he or she was found guilty. The basis for the conviction will be clear from the record.
[27] In cases where a trial judge’s credibility finding is conclusory, the role of an appellate court is to decide whether the absence of an adequate explanation for the finding should be excused or whether it amounts to an error of law requiring a new trial.
(b) This case
[28] The trial judge wrote lengthy reasons. But as my colleague Doherty J.A. said in R. v. Lagace (2003), 181 C.C.C. (3d) 13 (Ont. C.A.) at para. 32 “the adequacy of reasons is not measured by the inch or the pound”, but instead by whether the reasons explain the basis for the decision and allow meaningful appellate review of it.
[29] The trial judge properly instructed herself on W.(D.) and sought to apply its principles. She analyzed in detail the complainant’s evidence and explained why she accepted it. But when she came to the defence evidence, she did not similarly explain why she did not believe the appellant and why his evidence did not leave her with a reasonable doubt. The trial judge did not analyze the appellant’s evidence, either alone or in the context of the evidence as a whole. Nor did she point to any of the typical reasons for finding a witness’s evidence not credible: a previous inconsistent statement, evasiveness, or even demeanour, to name but a few. Instead her reasons do no more than affirm that she considered the arguments advanced for accepting the appellant’s evidence and that she found the complainant’s evidence compelling. This, however, was not one of those cases where the mere acceptance of the complainant’s evidence inevitably meant that the appellant must be found guilty.
[30] It seems to me that the following considerations, taken together, required the trial judge to give a reasoned explanation for rejecting the appellant’s evidence.
· The prosecution’s case was far from overwhelming. The weaknesses in its case were exacerbated by the complainant’s admitted history of lying and her admission of having exaggerated her account to the police. Moreover, the Crown led no confirmatory evidence of the complainant’s allegations and the police were unable to substantiate her claim that the appellant had written stories about her on the computer.
· The appellant’s evidence was not obviously incredible. Also, other witnesses lent some support to his defence.
· In cross‑examination the Crown did not even challenge the appellant’s assertion that he had not sexually touched M.D.
· The trial judge acknowledged that the appellant’s evidence “is in many aspects consistent with what M.D. and her mother testified to”, and, at least to that extent, credible.
· The trial judge also recognized that because of the possibility of being observed “it would be dangerous for Mr. D. to do the things” that he allegedly did to M.D. For example, the first incident, on Cook Street, allegedly took place in M.D.’s bedroom while Mrs. D. and her sons were in the bathroom next door. The third incident allegedly took place while M.D.’s siblings were playing outside. The fourth, fifth and sixth incidents took place at night when, as the trial judge acknowledged, the other children or Mrs. D. could have awakened and observed what M.D. alleged was occurring.
[31] Because of these considerations, the appellant was entitled to some analysis of the defence evidence. More importantly, he was entitled to know why his evidence was rejected and did not give rise to a reasonable doubt about his guilt. This was the kind of case in which the words of this court in R. v. Strong, [2001] O.J. No. 1362 (C.A.) at para. 9 apply:
Second, the trial judge offered no reason for his rejection of the appellant’s evidence. He simply said “I do not believe him”. In a case like this, some explanation for that conclusory statement was required. The appellant’s evidence was not inherently incredible.
[32] I would allow the appeal, set aside the convictions and order a new trial.
RELEASED: May 26, 2004
“JL”
“John Laskin J.A.”
“I agree S.T. Goudge J.A.”
“I agree Janet Simmons J.A.”