R. v. S.P., 2013 ONCA 787

• Judge: Rouleau, Watt and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 13, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 787;(2013), 313 O.A.C. 352 (CA)

R. v. S.P. (2013), 313 O.A.C. 352 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JA.003

Her Majesty the Queen (respondent) v. S.P. (appellant)

(C55011; 2013 ONCA 787)

Indexed As: R. v. S.P.

Ontario Court of Appeal

Rouleau, Watt and Epstein, JJ.A.

December 24, 2013.

Summary:

The accused was convicted of sexual assault and sentenced to eight months' imprisonment followed by two years' probation. The accused appealed his conviction.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was convicted of sexual assault - The accused was observed by E., a co-worker, touching the breasts of D.A.R., an 18 year-old severely disabled resident in a long-term care facility where the accused worked as a cleaner - He appealed, asserting that the trial judge erred in his articulation and application of the test in R. v. D.W. (SCC 1991) - First, he asserted that the trial judge incorrectly equated the second step of R. v. D.W. with being unable to decide whom to believe - Second, he submitted that this error was reflected in the trial judge's misapplication of the test - The Ontario Court of Appeal dismissed the appeal - The second part of the test in R. v. D.W. read as follows: "if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit" - The court agreed that the trial judge's articulation of the second part of the R. v. D.W. test was inaccurate - However, the import of the R. v. D.W. analysis did not lie in the expression of the formula but in the application of its principles - Despite the trial judge's inaccurate paraphrasing of the test, the reasons demonstrated that he properly applied the second step - The trial judge examined whether, despite having rejected the accused's testimony, his evidence nonetheless raised a reasonable doubt about his guilt - The only exculpatory evidence was the accused's innocent explanation for touching D.A.R. - Apart from this explanation, there was nothing in the accused's evidence that could have raised a reasonable doubt about his guilt - The trial judge's statement was merely a reflection of this reality: if there was no chance that the accused's explanation was true, his evidence was not capable of raising a reasonable doubt - After rejecting the accused's evidence and finding he was not left in reasonable doubt by it, the trial judge considered, as he was required to, whether he was convinced beyond a reasonable doubt of the accused's guilt on the basis of the evidence he did accept - See paragraphs 19 to 28.

Criminal Law - Topic 5215

Evidence and witnesses - Burden of proof - General - The accused was convicted of sexual assault - The accused was observed by E., a co-worker, touching the breasts of D.A.R., an 18 year-old severely disabled resident in a long-term care facility where the accused worked as a cleaner - He appealed, asserting that the trial judge subjected the evidence of the two central witnesses, the accused and E., to an uneven level of scrutiny - He submitted that the trial judge applied an unforgiving level of scrutiny to the accused's testimony but brushed aside as inconsequential the many serious difficulties apparent in E.'s testimony - The Ontario Court of Appeal dismissed the appeal - The court did not agree with the submission that the trial judge simply glossed over problems with E.'s evidence on significant issues - Many of the inconsistencies were not actually inconsistent - When there were actual inconsistencies, none related to matters of significance in terms of the proof of the Crown's case - The trial judge accepted E.'s explanation of those inconsistencies or otherwise carefully addressed them and reconciled them with the totality of her evidence by explaining why they did not affect his assessment of her credibility - Reading the reasons as a whole, the trial judge did not apply a different standard of scrutiny to the evidence - He dealt comprehensively with the troublesome aspects of the evidence of both E. and the accused - While he did reject much of the accused's evidence and accepted E.'s evidence despite certain inconsistencies, he did so because the problems with the two witnesses' evidence logically led to different inferences - The problems with the accused's evidence went beyond a difficulty recollecting certain details - The issues with his evidence all pointed to the conclusion that the accused's innocent explanation for touching D.A.R. was simply not true - See paragraphs 29 to 76.

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 5215 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 2].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 19].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 19].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 19].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 24].

R. v. Owen (W.) (2001), 150 O.A.C. 378 (C.A.), refd to. [para. 30].

R. v. Minuskin (S.) (2003), 180 O.A.C. 255; 68 O.R.(3d) 577 (C.A.), refd to. [para. 30].

R. v. H.C. (2009), 244 O.A.C. 288; 241 C.C.C.(3d) 45; 2009 ONCA 56, refd to. [para. 30].

R. v. J.H., [2005] O.A.C. Uned. 3; 192 C.C.C.(3d) 480 (C.A.), refd to. [para. 32].

R. v. Aird (A.) (2013), 307 O.A.C. 183; 2013 ONCA 447, refd to. [para. 33].

Counsel:

Michael Davies, for the appellant;

Roger Shallow, for the respondent.

This appeal was heard on June 13, 2013, by Rouleau, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Epstein, J.A., on December 24, 2013.