COURT FILE NO.: M2754-06

DATE: 20071030

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Jeremy Schaffer, for the Respondent ) Respondent ) ) - and - ) ) ) SUMEET GUPTA ) ) ) Marie Henein and D. Robitaille, for the Appellant ) Appellant ) ) ) ) HEARD: August 1 and 2, 2007

REASONS FOR JUDGMENT

DAWSON J

[1] This is an appeal from convictions for sexual assault and unlawful confinement registered against the appellant following a five day trial before the Honourable Justice A. Cooper of the Ontario Court of Justice. The trial took place in February 2006. Reason for judgment were delivered orally on June 29, 2006.

Overview

[2] The appellant was working as an MRI technician at the Joseph Brant Hospital in Burlington on Saturday January 8, 2005. The complainant, Ms M.P., was his last patient of the day. Ms M.P. testified that after her MRI was completed she was sexually assaulted in the room where the MRI machine was located, and that the appellant then pulled her into the adjacent control room where she was confined and where the sexual assault continued. According to her evidence the sexual assault lasted for approximately 15 minutes from its commencement in the MRI room to its conclusion in the control room.

[3] The alleged assault consisted of the appellant grabbing the complainant and undoing her pants in the MRI room, pulling or dragging her into the control room, opening her pants again and inserting his hands inside her underwear and into her vagina and buttocks area, licking her breasts and placing her hand on his penis. During these events the complainant testified the appellant first told her she gave him “a hard on” and later talked dirty to her. He asked her to go down on him and said he wanted to go down on her. He told her he wanted to place her over a chair in the control room and “fuck her doggy style.” The assault ended when the appellant “jerked himself,” to use the complainant’s words, and ejaculated into his hand. According to the complainant he then told her to change, apologized, and after she had changed he walked her back to her husband in the waiting room.

[4] The accused testified and denied that any misconduct occurred. Five witnesses called by the defence gave evidence about the complainant’s demeanour on the date of the offence and the following day when she returned to the hospital for a further MRI, or about relevant circumstances capable of assisting the appellant’s defence.

[5] The evidence before the trial judge contained many more details about the allegations themselves and all of the surrounding circumstances. Features of the case include the following:

1. Computer logs from the MRI machine indicate that there was only an 11 minute and 38 second time period within which the sexual assault could have occurred. The trial judge found this as a fact. The complainant testified that the sexual assault took approximately 15 minutes. However, everyone agrees that a number of other events also occupied a portion of the 11 minute and 38 second time frame, raising a concern as to whether the sexual assault described by the complainant could have occurred in the remaining time.

2. Although the complainant described a struggle she had no bruises and only a small scratch that she attributed to the assault.

3. The complainant’s pants had a very delicate clip or latch located above the zipper which was undamaged, although the complainant testified the appellant opened the pants on a number of occasions during the encounter. Her videotaped police statement contained a demonstration of the motion made by the appellant to open the pants.

4. While the door to the MRI control room could be locked to keep people out, it could not be locked to keep people in. In her statement to the police the complainant said she tried the door to the control room but could not get out as it was locked.

5. The complainant returned the next day, Sunday January 9, 2005 for a further MRI that she knew would be conducted by the appellant. There was considerable evidence, some of it conflicting, about why she would do so after such a serious sexual assault.

6. The appellant testified that as he was positioning the complainant on the MRI table on January 8, 2005 she asked him whether he would be conducting her MRI the following day. When he said he was, the complainant responded, “good, you can see more cleavage.” The comment made the appellant uneasy, and on the morning of January 9, 2005, he told a female ultrasound technician, Stephanie Tonkovich, about the comment and asked her to stay with him later that day when he was to do the further MRI on the complainant.

7. Considerable evidence was led from the appellant and other defence witnesses about the complainant’s apparently normal demeanour on January 9, 2006.

[6] A review of the evidence is contained in the reasons of the trial judge and in the thorough and detailed factums filed on this appeal.

The Reasons for Judgment

[7] The oral reasons for judgment occupy 27 pages of transcript. The first 19 pages are a narrative summary of the evidence without analysis. Towards the bottom of page 19 the trial judge noted that here were major contradictions between the evidence of the complainant and the appellant and that it was his duty to make specific findings of credibility and fact. He then referred to R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont.C.A.), for the proposition that demeanour alone should not found a conviction where there are significant inconsistencies and conflicting evidence.

[8] At page 20 the trial judge commenced his analysis with the following:

Without any hesitation, I accept the evidence of I.P. beyond a reasonable doubt. I find as a fact that she was sexually assaulted by Sumit (sic) Gupta on Saturday January 8th in the manner she described.

[9] His Honour then stated that he was impressed by her good character and “especially by her credibility.” He commented that she was tested by a “very gruelling, detailed and skilful cross-examination” on the critical issue of whether the sexual assault could have happened during the 11 minute and 38 second window of opportunity. He concluded the complainant’s evidence had to be understood, “as reflective of someone who is not wearing a watch”, who trusted medical professionals and who was traumatized. No other analysis of this issue was undertaken. He then went on to list a number of issues and inconsistencies raised by the defence and indicated that he had them all in mind, although he did not indicate how he had taken them into account or how he had resolved any of them. He then referred to the fact that the complainant had a bruise which she did not attribute to the assault, although she could have, as a factor supporting her credibility. He referred to a scratch on her arm.

[10] The trial judge also referred to the fact that there was no forensic evidence and no damaged clothing. He simply commented that the complainant had washed and that nothing was found at the hospital. He then said the following:

One cannot always explain why there isn’t (sic) injuries, why there isn’t damaged clothing, particularly a very fragile clip on the pants, but reported cases show that these things can happen and sometimes very violent assaults take place without any injuries or damaged clothing.

[11] The trial judge then said he had considered the evidence of all the defence witnesses, and he named three of the five. He said he had carefully considered the submissions of counsel and then stated in a conclusory fashion that he found that the accused had fabricated the cleavage remark and told Stephanie Tonkovich about it to create the impression that the complainant was a loose cannon with sex on her mind.

[12] At page 22 of the reasons the trial judge turned to what he described as a “key piece of evidence” and indicated that he was doing so “as one cannot decide these cases on demeanour alone.” Most of page 22 to 25 of the reasons are consumed by quotations from the transcript of the appellant’s evidence. This evidence concerns a brief conversation the appellant had with the complainant when she returned for her second MRI on Sunday January 9, 2005, and the fact that the appellant failed to mention that conversation when he sent an email to his superior after he learned that the complainant’s husband was making a complaint that the appellant had “came on to” his wife the previous day. In one paragraph, occupying 21 lines of transcript, the trial judge engaged in a reasoned analysis of why the appellant’s failure to include reference to that conversation in his e-mail was not in keeping with what would be expected in the circumstances. This is the only analysis the trial judge undertook to deal with a specific lack of credibility on the part of the appellant.

[13] In the final paragraph of his judgment the trial judge referred to R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. He then stated again that he did not accept the evidence of the accused, and added that the accused’s evidence did not raise a reasonable doubt, and that on the whole of the evidence he found the case had been made out beyond a reasonable doubt.

The Grounds of Appeal

[14] The following grounds of appeal were advanced in oral argument:

1. The verdict is unreasonable and unsupported by the evidence;

2. The trial judge erred in failing to appreciate relevant defence evidence including the appellant’s evidence;

3. The trial judge erred by applying a different standard to his assessment of the Appellant’s evidence than he applied to the complainant’s evidence;

4. The trial judge erred in his approach to credibility, and thereby erred by failing to apply the doctrine of reasonable doubt.

[15] The arguments on grounds one and two tended to overlap as did the arguments on grounds three and four. The fourth ground really amounted to a submission that the trial judge paid only lip service to the principles in R. v. W.(D.), supra.

[16] While the appeal was argued within this framework, a recurring theme related to alleged inadequacies in the trial judge’s reasons. The appellant recognizes that the adequacy of reasons does not constitute a stand alone ground of appeal. However, Ms Henein argues forcefully that when the stated grounds of appeal are advanced, it soon becomes apparent that the trial judge’s reasons fail the functionality test set down in R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, because they are inadequate to permit proper appellate review.

[17] Ultimately, it is this argument that persuades me the verdict must be set aside and a new trial ordered, although I am unable to conclude that the verdict is unreasonable and unsupported by the evidence. Before developing my reasons for so concluding I will first deal with an application to admit fresh evidence.

The Fresh Evidence Application

[18] The appellant seeks to tender fresh evidence to show that since the convictions were registered the complainant has commenced a law suit against the appellant and the hospital claiming over two million dollars in damages. The evidence is said to be relevant because the appellant testified that she complained to the hospital because she wanted them to know about the appellant’s misconduct and “not to sue anybody.”

[19] In my view the proposed fresh evidence does not meet the test for admission pursuant to R. v. Palmer and Palmer (1980), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.).

[20] Due diligence at trial is a relevant consideration under the Palmer test. On the issue of due diligence, while the lawsuit could not have been discovered as it had not been commenced, I would nonetheless observe that the complainant was not cross-examined on the truthfulness of her comment that she did not intend to sue, or about whether her intentions had charged since the time of her initial complaint. In my view, this has the flavour of a tactical decision by counsel not to stimulate a potential law suit by cross-examining in this area. This conclusion is supported by counsel’s otherwise thorough and “full on” attack on the complainant’s credibility at trial.

[21] The presence of a financial motive is relevant to the important issue of credibility. However, due to the lack of cross-examination at trial I am left without a context in which to evaluate whether the proposed fresh evidence could reasonably have been expected to affect the result. This is a further requirement under Palmer. In these circumstances, I conclude the fresh evidence is not admissible.

The Unreasonable Verdicts Argument

[22] The appellant approached the argument that the verdicts are unreasonable and cannot be supported by the evidence by relying on R. v. Biniaris (2000), 2000 SCC 15 (CanLII), 143 C.C.C.(3d) 1 (S.C.C.), and by placing particular emphasis on a submission that the unreasonable conclusion reached by the trial judge is explained by his failure to properly consider and appreciate specific important items of evidence as revealed by his lack of reasons in respect of those items. Thirteen items of evidence are specified at para. 73 of the appellant’s factum. As the argument progressed the emphasis was more squarely placed on this second aspect of the argument to the point where counsel tended to equate a failure of such magnitude with a finding of an unreasonable verdict under s. 686(1)(a)(i) of the Criminal Code.

[23] In Biniaris, the Supreme Court of Canada concluded that the test for an unreasonable verdict had been correctly stated in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, 36 C.C.C. (3d) 417. The test is whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.

[24] At para. 37 of Biniaris the court elaborated on how the review for unreasonableness should proceed on appeal when the judgment is that of a single judge, “at least when reasons for judgment of some substance are provided.” The court emphasized that in such circumstances the appellate court may be able to identify deficiencies in the trial judge’s analysis or the evaluation of evidence that will explain an unreasonable conclusion and justify a reversal.

[25] This approach, suggested in Biniaris, is made difficult in this case by the lack of reasoned reasons. It is very difficult to determine whether such flaws exist as the reasons do not reveal how the trial judge evaluated much of the evidence or how he analyzed it. Consequently, the task of reviewing the verdicts for reasonableness in this case resembles reviewing the verdict of a jury, something that was also the subject of particular comment in Biniaris at para. 38. As discussed there it is insufficient for an appeal court to rely upon a vague unease or a lurking doubt as to the correctness of the verdict, based on its own assessment of the evidence, as a basis for finding an unreasonable verdict. Before a verdict is set aside as unreasonable the reviewing court must be able to clearly articulate its basis for concluding that a jurist or jury acting judicially, could not reasonably have reached the verdict under attack.

[26] As a general proposition, a conclusion that there is a lack of reasoned reasons will rarely prove fatal to a verdict challenged as unreasonable pursuant to s. 686(1)(a)(i) of the Criminal Code: R. v. Sheppard, supra, paras. 34-38. In order to succeed on this ground of appeal it is the verdict itself that must be shown to be unreasonable. It is not enough, although it may be helpful, to show other unreasonable findings or errors in the trial judge’s reasoning process. As aptly put at para. 78 of the respondent’s factum, “an error in the reasoning may explain an unreasonable verdict, but it does not make one.”

[27] I am sure that appellant’s counsel accepts this as a general proposition in isolation, but due to the number and nature of the specific items of evidence which it is said the trial judge must have failed to properly evaluate, the submission proceeds that the multitude of failures alleged demonstrates an unreasonable verdict.

[28] I am unable to accept this submission. First of all, after reviewing the record, I conclude that the significance of a number of the 13 items referred to at para. 73 of the appellant’s factum have been somewhat overstated. I would make this comment in relation to items 4, 6, 7, 8 and 9 of para. 73. I have been greatly assisted in reaching this conclusion by the thorough and careful analysis of the evidence contained in the respondent’s factum. My comments on these points are as follows:

• Item 4 indicates that the complainant’s manicured nails were not marked or destroyed in “an extremely violent and prolonged assault.” There was some evidence that the false nails were stronger than real nails and while there was certainly evidence of a struggle, to say it was “extremely violent” is an overstatement.

• Item 6 refers to the complainant’s evidence that there were curtains on the change room doors, when in fact there were metal doors similar to those on a toilet stall. This only reflects on the complainant’s recollection and is not related to a key event.

• Item 7 says the complainant was inconsistent as to whether she took off her socks as well as her shoes before the MRI on January 8. This relates to whether she would have the opportunity to put both socks and shoes back on if she was assaulted. On close review of the evidence it is not at all clear that there was such an inconsistency. The evidence supports the conclusion she removed her shoes only.

• Item 8 indicates there was no “beige, comfy chair” in the control room as testified to by the complainant. Upon a review of the evidence it appears that the complainant pointed out computer chairs in the control room which she indicated were similar to the chair she called a “comfy chair.”

• Item 9 refers to the fact that the complainant never mentioned how she recovered the key from the MRI room to the locker containing her belongings. As noted by the respondent, there is no doubt she recovered her clothing, so she obviously must have recovered her key.

[29] I do not regard the remaining items described in para. 73 of the appellant’s factum (1, 2, 3, 5, 10, 11, 12, 13) in the same way. These items are not as easily explained away. Many of them go directly to the centrally important issue of credibility.

[30] However, I have concluded that, with the possible exception of the first item dealing with whether the assault could have taken place in the 11 minute and 38 second window, the other items in this grouping, as central as they may be, are reasonably capable of being resolved on the totality of the evidence in a manner that could lead to a conviction. I will take two of the items, which I consider to be perhaps the strongest of the remaining items, to explain my conclusion before I return to the first item.

[31] The fifth item refers to the lack of damage to the delicate latch on the pants. The complainant demonstrated in her trial evidence how the appellant quickly opened her pants. She testified he pushed the edges of the opening together, which would undo the latch, before he pulled the edges apart, bringing down the zipper. When the complainant was cross-examined by showing her two portions of the video of her statement to the police that could be viewed as quite inconsistent with this testimony, she did not resile from her contention that the appellant pushed the edges of the fabric together first. I have watched the video excerpts that were played for the complainant in cross-examination (Ex.12) and I have examined the pants (Ex. 6(B)). While it seems to me that in the first video excerpt the complainant demonstrates a clear and abrupt pulling apart without pressing together, that is not quite so clear in the second video excerpt. Leaving aside for the moment the fact that the trial judge never resolved this potential inconsistency in his reasons, it seems to me that it would be open to a reasonable trier of fact to accept the complainant’s sworn trial testimony. I note that she did not have the actual pants in her hands when she made the motions shown in the video.

[32] Item 10 states that the complainant alleged she tried to open the control room door but could not escape because the door was locked. Evidence from a police officer indicated the door could not be locked to keep someone inside the control room. However, this issue only arose in the context of a prior inconsistent statement. In her trial evidence, the complainant said only that she reached for the door and may have touched the handle. She was cross-examined on her prior statement where there was a clear indication that she tried the door but it was locked. She testified that she meant to tell the police the door was closed, not locked. Again, leaving aside the argued inadequacy of the trial judge’s reasons, on the whole of the evidence I conclude a trier of fact could reasonably resolve this issue in favour of the complainant.

[33] A similar form of analysis can, in my view, be applied to each of the other items, with the possible exception of the first item. Dealing with these other items, there are competing interpretations to the interpretation for which the appellant contends, that could lead a reasonable trier of fact towards a conviction. Those competing interpretations, and the evidence supporting them, have been carefully developed in the respondent’s factum.

[34] I turn now to the first item. As already mentioned, the appellant submits that the verdict is unreasonable because it would be impossible to commit the offence, as described by the complainant, in the limited time frame that was available. Further reference to the evidence is required.

[35] The computer logs from the MRI machine established that certain things undoubtedly occurred at certain times. When those things took place the appellant had to be at the computerized controls in the control room. Tampering with the data was not reasonably possible. The computer logs showed the following:

18:12:22 to 18:43:14 The appellant was taking MRI images of the complainant.

18:44:09 to 18:44:16 The appellant submitted images to be printed onto film.

18:55:54 to 18:56:41 The appellant was submitting hard copies for printing and for storage on an MOD (storage device) and sending images to different radiologists’ work stations for their review.

18:58:50 The appellant logged off and shut down the system for the day.

[36] Further evidence of timing came from the appellant’s parking lot ticket (Ex. 9) which was time and date stamped and indicated he left the hospital parking lot at 19:09 on Saturday, January 8, 2005.

[37] The complainant testified that the assault commenced after she was removed from the machine, after the sand bags and scanning coils were removed, and after her arm had been massaged for 1 to 2 minutes. A Crown witness, Wayne Wilson, who is also an MRI technician, testified it would take approximately two minutes to move the table out of the machine, unstrap the patient and remove the scanning coils. The one to two minute massage mentioned by the complainant would be in addition to that time. Everyone agrees that these events and any assault must have occurred between 18:44:16 and 18:55:54. This is the period of 11 minutes and 38 seconds previously referred to.

[38] The complainant testified in chief that the portion of the assault that took place in the MRI room after the massage lasted for approximately five minutes. She testified in chief that she estimated that the subsequent assault in the control room took a further ten minutes and mentioned she did not have a watch. After the assault she went to the change area to retrieve her belongings from the locker, and entered a change stall to put her bra back on. No time estimate was given by the complainant for this part of her activity. Obviously it took some time, and the appellant submits three minutes is a reasonable estimate based on evidence of how long it took her to change before the MRI.

[39] There was evidence from John Heikoop, an x-ray technician called by the defence, that the walk from the MRI area to the reception area, (where the complainant’s husband was waiting), would take two to three minutes at a normal pace. The appellant also testified that the walk took two to three minutes. The complainant walked slowly due to a knee injury from a car accident. The trial judge mentioned this in his summary of the evidence at page 9 line 2 of his reasons. The complainant could not say how long the walk took her, but conceded it was not a brief walk. I would note that if the walk from the MRI area to the reception area falls within the 11 minute and 38 second time frame, the appellant also had to walk back to the MRI control console to perform the tasks noted in the logs from 18:55:54 to 18:56:41, (data storage and sending images), and to complete the shut down procedure on the MRI machine.

[40] Counsel for the appellant submits that when these time periods are added up, using the three minute estimate for the complainant to change and taking into account that she walked more slowly than a normal pace, they total 27 minutes. I make it to be about 25 minutes. Counsel submits that even allowing for the fact that the complainant was not wearing a watch and was traumatized, and making generous allowance for inaccuracy in her time estimate, the assault she described simply could not have happened in the time available. In other words, the timing analysis, founded in the tamper proof MRI logs, fully supported the appellant’s testimony denying that the offence occurred.

[41] This argument is attractive and I have considered it carefully and measured it against the test for unreasonableness as described in Biniaris and Yebes. I have considered as well R. v. Burke (1996), 105 C.C.C. (3d) 257 (S.C.C.); R. v. W.CR. (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.), and R. v. Harvey (2001), 2001 CanLII 24137 (ON CA), 160 C.C.C. (3d) 52 (Ont. C.A.); aff’d (2002), 2002 SCC 80 (CanLII), 169 C.C.C. (3d) 576 (S.C.C.). Having done so I am unable to accept the argument, although I find it to be a close call.

[42] While the respondent agrees that the assault, if it occurred, must have occurred within the 11 minute and 38 second time frame, the respondent submits that the walk from the MRI area to the reception area and back did not have to occur within this window. The respondent and the appellant agree that the Crown argued this position at trial, contending that after the assault and as the complainant changed, the appellant completed the MRI tasks recorded in the logs between 18:55:54 and 18:56:41, and then shut the system down at 18:58:50 before walking the complainant to the reception area.

[43] This scenario was put to the appellant in cross-examination and he denied it. He testified that he performed the tasks commencing at 18:55:54 after he returned from the reception area. There is also some evidence from the complainant that tends to support the appellant’s denial, as she said the appellant arrived in the change area a short time after she did. She could see him through a gap in the change room curtain. I do note, however, that there is a submission at para. 89 of the respondent’s factum that the fact some time passed before the complainant said the appellant came to the change room could also be interpreted that the appellant had time to perform some further functions at the controls of the MRI machine.

[44] This important issue is not even mentioned in the trial judge’s reasons, let alone resolved, although both counsel assure me it was fully argued. Again, however, that is not determinative when it comes to deciding whether the verdicts are unreasonable.

[45] On this record, although perhaps unlikely, a trier of fact could reasonably reach the conclusion that the walk to and from the reception area was not included in the 11 minute and 38 second time frame. That, combined with the potential for a reasonable trier to find that some of the evidence about timing allowed for some variability, and that the complainant was traumatized and not wearing a watch, contributes to this conclusion.

[46] The appellant has failed to demonstrate that the verdicts are unreasonable and cannot be supported by the evidence.

Failure to Appreciate Relevant Defence Evidence

[47] The appellant next argues that the trial judge failed to appreciate, in any meaningful way, the evidence referred to in the 13 items mentioned in para. 73 of the appellant’s factum that I have already referred to. This argument relies in large measure on the trial judge’s failure to evaluate or reason about these aspects of the evidence in his reasons for judgment.

[48] Before proceeding further, it is important to refer to a number of legal principles that must inform my analysis. I will start by reference to a few quotations from Justice Binnie’s judgment in R. v. Sheppard, supra:

Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts. (para. 15)

. . .

Poor reasons may coincide with a just result. Serious remedies such as a new trial require serious justification. (para. 22)

. . .

The absence of reasons, however, does not necessarily indicate an absence of such [judicial] concentration [on the difficulties presented by a case]. We are speaking here of the articulation of the reasons rather than the reasoning process itself. The challenge for appellate courts is to ensure that the latter has occurred despite the absence, or inadequacy, of the former. (para. 23)

. . .

The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge's reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge's decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed. (para. 28)

As to error of law pursuant to s. 686(1)(a)(ii):

Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. (para. 46, emphasis added)

As to a miscarriage of justice pursuant to s. 686(1)(a)(iii):

I would certainly not foreclose the possibility that the absence or inadequacy of reasons could contribute to a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code. Inadequate trial reasons may cause or contribute to an appellate conclusion that the trial judge failed to appreciate important evidence, but the failure might not be based on a misapprehension of some legal principle, and the court therefore may hesitate to characterize it as an error of law: R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 295. In such cases, resort may be had to s. 686(1)(a)(iii): R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86, at para. 17; Fanjoy v. The Queen, 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at pp. 220-21; R. v. G. (G.) (1995), 1995 CanLII 8922 (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.) at p. 380. (para. 47, emphasis added)

[49] However, against the backdrop of the above quotations it is important to also bear in mind the following words of Doherty J.A. in R. v. Newton, [2006] O.J. No. 1008 (C.A.):

Attacks on the adequacy of trial judges' reasons have become routine on appeals in criminal matters. Many of these challenges proceed on the premise that if counsel for the appellant can point to any piece of evidence that may have assisted the accused, or any inference that may have assisted the accused, or any legal argument that may have assisted the accused which was not specifically alluded to by the trial judge, it follows that the reasons are inadequate. This premise could not be more wrong. Reasons for judgment must clearly tell the losing party why he or she lost and must provide for meaningful review. If those ends are met, any shortcomings in the reasons are not per se cause for reversal.

There is no obligation on the trial judge to answer each and every argument made by counsel in reasons for judgment.

[50] Often when complaints about the adequacy of reasons are raised on a summary conviction appeal, the reasons read against the background of the trial transcript satisfy the functionality test established in Sheppard. I would note, however, that there was considerably more evidence in this case than in most cases tried in the Ontario Court of Justice. The five days of evidence occupy six volumes of transcript. While the main issue in the case was credibility and the case was what is sometimes referred to as a “he said-she said”, there were a total of nine witnesses called, and agreed evidence from two other witnesses. On the face of it, there was a good deal of evidence that was problematic for the prosecution and at the same time quite helpful to the defence. I know from the trial judge’s reasons that he believed the complainant and disbelieved the appellant. Based on the reasons I know of one specific concern he had about the appellant’s credibility, and it would seem he has dismissed all of the appellant’s evidence on this basis. While it is clear from the trial judge’s narrative summary of the evidence that he was aware of many of the inconsistencies and issues raised by the defence, (though not all of them), he provides no insight into how he resolved them or why he discounted them in reaching his conclusion.

[51] To return to legal principles, it is clear that on an appeal a new trial may be ordered where an appellant can establish that a trial judge misapprehended or failed to appreciate evidence, that because of the particular circumstances of a given case, is shown to be centrally involved in reaching the verdict. Such a misapprehension or failure to appreciate evidence may be characterized as an error of law pursuant to s. 686(1)(a)(ii), (see R. v. G.(G.) (1995), 1995 CanLII 8922 (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.) per Laskin J.A.), or, because the misapprehension or failure to appreciate evidence renders the trial unfair, may constitute a miscarriage of justice pursuant to s. 686(1)(a)(iii), (see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), per Doherty J.A., at pp. 220-221).

[52] Earlier in these reasons I indicated that I considered that a number of the items listed in para. 73 of the appellant’s factum as evidence not properly appreciated by the trial judge, were over-stated, or collateral in nature. I am not at all surprised that those items were not the subject of analysis in the trial judge’s reasons. With respect to those items, Justice Doherty’s comments in Newton apply. However, some of the other items seem to me to be central to the resolution of the case. I am driven to the conclusion that the appellant has effectively been deprived of his right to pursue appellate review, because it is impossible for me to determine from the reasons for judgment, even against the backdrop of the entire evidence, what view the trial judge took of important issues and evidence, and how he resolved important competing interpretations of those itemized aspects of the evidence that were central to determining credibility, and even whether the assault could have happened. I will elaborate.

[53] First, the issue of whether the walk to and from the MRI area to the reception area was within the critical 11 minute and 38 second time frame was not even mentioned by the trial judge in his reasons. Both counsel advise me this was fully argued, and the Crown continues to rely on this submission on the appeal. With respect, I am driven to conclude that a complete failure to mention this issue demonstrates either that the trial judge failed to appreciate the significance of this issue, or that the appellant has been deprived of an opportunity to pursue this issue on appeal due to the absence of reasons.

[54] Second, there is considerable evidence that the complainant appeared to be relaxed and normal when she attended for the second MRI on January 9, 2005, after the serious sexual assault she alleges on the previous day. This evidence was given by Stephanie Tonkavic and Tami Triska, in addition to the appellant. Ms. Triska was an x-ray technician who stayed to observe the complainant and the appellant during the second MRI test after she learned there was going to be a complaint. The complainant was described as normal and relaxed. Ms. Triska testified that after the MRI was complete the complainant sat up unassisted and said in a normal tone of voice, “oh, that was a lot quicker than yesterday”. She also testified that the complainant chuckled at one point, and that as the complainant left to be escorted back to her husband by Ms. Triska, the complainant looked back over her shoulder to the appellant and said “take care”. The complainant, on the other hand, testified that she had earlier told the appellant he was a disgusting pig.

[55] The trial judge briefly mentioned Ms. Triska’s evidence at page 19 of his reasons during his narrative review. Later, at page 21, line 25 the trial judge says he has considered all of the defence witnesses and carefully considered all of the submissions of counsel. But as previously indicated he never says how he has done so. The evidence about the complainant’s demeanour on Sunday, November 9, 2005 is potentially quite significant because as Ms. Tonkavic and Ms. Triska describe it, it is out of keeping with what would be expected given the complainant’s evidence that initially she did not want to return but was persuaded to do so by her mother-in-law because she needed the test.

[56] The trial judge acknowledges that there was no damaged clothing and seems to acknowledge that this is somewhat surprising given the “very fragile clip on the pants”. As the appellant submits, this is not a situation where the trial judge reasoned as to why this was not a significant feature telling against the complainant’s story. He seems to recognize implicitly that it is inconsistent with the complainant’s evidence. He then says there is no explanation, and sets it aside. On the face of it, this suggests that the trial judge failed to appreciate the significance of this evidence. This is not evidence on a collateral point, but something of central importance both to whether the assault took place and to the complainant’s credibility.

[57] As previously mentioned the complainant was cross-examined on two video excerpts from her police statement where she demonstrated how her pants were pulled open. On the first video excerpt in particular it appears that she is demonstrating a forceful pulling apart. Yet in her trial testimony, she said the appellant pushed the latches together before he pulled them apart. If it was the complainant’s trial evidence the trial judge relied upon, it is difficult to see why he says that there is no explanation for the lack of damage to the pants as on that view of the evidence the lack of damage would be unremarkable. His indication that there is no explanation suggests by inference he did not accept her explanation that the clip or latch was pushed together. If that is the case then there is a major inconsistency in the complainant’s evidence that the trial judge did not otherwise take into account in assessing her credibility.

[58] The bottom line on this point is that I do not know whether the trial judge viewed the potential inconsistency on the video excerpt as a meaningful inconsistency or not. I do not know why he appears to come to the position that there is no explanation for the lack of damage to the pants given the complainant’s trial testimony, nor why the lack of explanation does not translate in his reasoning process into a negative feature when assessing the complainant’s credibility. The reasons for judgment do not address these concerns and given the potential centrality of this issue I find that proper appellate review is not possible.

[59] Another issue arises in relation to the ability to lock the door to the control room to keep someone inside. Given the charge of unlawful confinement, this issue is one of some importance even though the lockability of the door is not determinative. The trial judge sweeps this away simply by saying he is aware of the issue. The complainant was cross-examined on her statement to the police where she said she tried the door and it was locked. Was there a good reason why this apparent inconsistency that was not on a collateral issue was not significant? Perhaps the trial judge had a good reason in mind. Or perhaps when he discounted it he misapprehended the evidence. In the absence of reasons the appellant and the appeal court are unable to engage in the appellate review to which the appellant is statutorily entitled.

[60] It is also the cumulative effect of the inability to know how and on what basis the trial judge resolved these centrally important issues that leads me to conclude there must be a new trial. Whether the walk to and from the reception area was within the 11 minute and 38 second time frame, the lack of damage to the clothing, the issue of the inability to lock the control room door when the complainant told the police it was locked, and the evidence about the complainant’s demeanour when she returned for a further MRI by the appellant the day after the alleged assault, taken together, go to the heart of the defence case at trial. These are not unimportant collateral matters. They are not in the same category as the shoes and socks issue, the change locker key issue, the comfy chair issue or the change room door issue. With respect to those items the trial record in combination with the judge’s reasons allows me to understand why they were not significant. That is not so with respect to the items I have just been referring to. Looking at the trial record as a whole is of no assistance to me in understanding how the trial judge resolved these issues, or in determining whether he misapprehended evidence or reasoned erroneously. I must respectfully conclude that the trial judge’s reasons fail the functionality test set down in R. v. Sheppard, supra. I would order a new trial on this ground of appeal alone.

Was a Consistent Standard of Assessment Applied

to the Evidence of the Complainant and Appellant?

[61] The trial judge did provide reasons for disbelieving the appellant. Those reasons focus on one part of the evidence. He relied on what he characterized as a “key piece of evidence” – that the appellant did not include the complainant’s comment to him on Sunday, January 9, “why did you do that to me yesterday?”, in her e-mail to his supervisor Wayne Wilson.

[62] This comment was made by the complainant before the appellant was aware that there was a complaint of sexual impropriety being made against him, although after the “cleavage” reference the day before that made him uneasy. He explained that he thought at the time the “why did you do that” comment was made, that it was about the MRI the previous day, but did not for a moment think it referred to alleged sexual impropriety. When he wrote the e-mail later on January 9 he was aware a complaint was being made that he had been sexually inappropriate the day before in some way. However, he was still not aware of the details. There was also evidence from the appellant that when he wrote the e-mail he was extremely upset. Tami Triska confirmed that when the appellant learned there was to be a complaint he was upset and visibly shaken. Wayne Wilson, who had spoken with the appellant and requested the e-mail, testified that the appellant was very upset and crying or on the verge of crying when he spoke to him.

[63] I do not accept the appellant’s submission, made particularly in his factum, that the trial judge never explained why he disbelieved the appellant. The passage of the reasons for judgment just referred to provides that explanation. In addition, as the respondent submits, there was an evidential basis in the record capable of supporting the trial judge’s conclusion.

[64] However, the issue at hand is whether when the reasons for judgment are examined as a whole it is demonstrated that a different standard of assessment was applied to the evidence of the appellant than to the complainant. Based on the totality of the reasons for judgment, and in particular the absence of reasoning on the issues already discussed, I conclude that it appears that the trial judge has been willing to overlook quite a number of inconsistencies between the complainant’s evidence and the physical evidence, the evidence of others and between her testimony and her videotaped statement to the police. One of the only reasons for doing so, expressed in the context of the timing issue, is because the complainant was traumatized and not wearing a watch. On the other hand the trial judge seized upon one issue in relation to the testimony of the appellant. That issue does not go directly to the core question of whether the offence was committed. The trial judge then swept all of the appellant’s evidence aside, apparently only on that basis. I would also note that in doing so the trial judge made no reference at all to the evidence that the appellant was very upset at around the time he was asked to write the e-mail. Nor did he explain why the evidence of other witnesses that tended to support aspects of the appellant’s defence was not significant. He did not articulate any concern about the appellant’s demeanour.

[65] On the basis of the reasons for judgment it appears that the trial judge was prepared to be quite tolerant with respect to the impact of perceived inconsistencies in relation to the complainant and much less so where the appellant was concerned. This is an error requiring a new trial. It suggests that the burden of proof was not properly applied to the question of credibility on a consideration of the evidence as a whole.

[66] I wish to stress that I am fully aware that my perspective is limited by what has sometimes been referred to as “appellate disadvantage”. The trial judge saw and heard the witnesses and I have not. My role is not to retry the case, and I recognize that in circumstances such as these an appellate judge must take great care not to do so. In relation to the advantage the trial judge undoubtedly had, I would return to a recurrent theme in these reasons: I cannot tell from the trial judge’s reasons how that advantage may have influenced him to conclude as he did in the face of a number of problems with the complainant’s evidence and evidence tending to support the appellant.

The Alleged W.(D.) Error

[67] The final ground argued by the appellant is that the trial judge, although he referred to R. v. W.(D.), supra, and recited its formula, failed to reason in accordance with that case.

[68] As I have already concluded that the trial judge did not apply consistent standards to the assessment of the evidence of the complainant and appellant, it is clear that I have found that the trial judge erred in his approach to credibility. When the trial judge says subjectively in the concluding paragraph of his reasons that the evidence of the appellant does not raise a reasonable doubt in his mind and that on the whole of the evidence he is convinced beyond a reasonable doubt, I do not for a moment think that is not the case. However, for the reasons I have already expressed, I conclude there must be a new trial.

Conclusion

[69] The convictions are set aside and a new trial is ordered before a different jurist. The appellant is ordered to appear before the Ontario Court of Justice in Milton on Tuesday November 20, 2007 at 9:00 a.m. to set a date for the new trial.

___________________________

DAWSON J.

Released: October 30, 2007