File No.
SUPERIOR COURT OF JUSTICE
(Toronto Region)
BETWEEN
HER MAJESTY THE QUEEN
Respondent
-and-
F.A.
Appellant
APPELLANT’S FACTUM
PART I – STATEMENT OF THE CASE
1.
This appeal arises out of the judgment of the Honourable Madam Justice Waldman
convicting the Appellant on a charge of sexual assault. The Appellant and the complainant were coworkers at a medical facility, and the assault allegedly occurred while they were out together over
the span of over three hours in the Appellant’s motor vehicle. The grounds of appeal may be
summarized as follows: (a) the learned trial Judge failed to have sufficient regard to the reliability
of the complainant’s evidence; (b) the learned trial Judge misapprehended the evidence in failing to
appreciate the significance of the frailties and contradictions in the complainant’s evidence; (c) the
reasons for judgment of the learned trial Judge failed to properly inform the Appellant of the basis
for the conviction; (d) the Appellant failed to receive the effective assistance of counsel at trial.
PART II – SUMMARY OF THE FACTS
2.
The Appellant was charged that with committing a sexual assault on the complainant. At
the time of the charges, the complainant was 15 years old and working part-time in a medical
facility. The Appellant was an intern and was 28 years old. Prior to the evening in question, the
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complainant and Appellant had worked together for some six months and communicated regularly
on an MSN instant chat line. The Appellant had invited the complainant out as she said she was
depressed about having broken up with her boyfriend, who was also an older man of 24 years old.
3.
The Appellant picked the complainant up from a mall at around 6:30 p.m. The complainant
had lied to her grandparents about who she was going out with. The Appellant and complainant
went to a park. While there, they sat on a bench and talked. The Appellant asked about the
complainant’s breast size. They were there for about ten minutes. They left because people came
around and they wanted to be alone.
Reference: Transcript, p.
4.
When they got back into the car, the complainant stated the Appellant repeatedly tried to
grab her breasts, which she resisted. They then made their way to a Wendy’s restaurant where the
complainant went to the washroom and then ate. In a video-taped statement to the police and in her
examination-in-chief at trial, the complainant never mentioned the stop at Wendy’s. This took on
significance in light of the complainant’s explanation that she remained with the Appellant the
entire evening as she did not know how she would get home.
Reference: Transcript, p.
5.
After the restaurant, the Appellant and complainant returned to the vehicle and made their
way to work, where the Appellant said he had a surprise waiting for which they had to be alone.
When they arrived, however, there was a car parked outside so they decided to drive to the parking
lot across the street.
Reference: Transcript, p.
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6.
As the complainant’s evidence developed at trial, they stayed in parking lots in the
Appellant’s motor vehicle for close to two hours. During this time, the complainant stated the
Appellant repeatedly tried to touch her breasts, pulled her head down into his lap, succeeded in
touching one of her bare breasts and pulled out his penis.
Reference: Transcript, p.
7.
During the first phase of these events, the complainant stated the Appellant tried grabbing
her breasts, pushed her head down into his lap and asked her to rub his penis, all without success.
After these events had occurred and were described by the complainant in graphic and at times
harrowing detail, she stated that she climbed over the stick shift and sat in the Appellant’s lap so
that she could drive the car around the parking lot. This went on for five minutes, during which the
Appellant was again said to have repeatedly tried to touch the complainant’s breasts. It was during
this period that the complainant says her bra came off without her realizing it had occurred.
Reference: Transcript, pp.
8.
When she got back in the passenger seat, the complainant stated the Appellant continued to
grab her hair, pulled her head down into his lap and at one point took out his penis. She said she got
out of the car and threatened to tell the person at work what was going on. When the Appellant told
her she would be fired, she got back in the car. Following this the Appellant was said to have pulled
out his penis and touched the complainant’s now bare breast underneath her shirt. After all this had
occurred, the complainant said that it was she who suggested they drive back across the street to the
pharmacy to check if the car was still there, clearly so that they could be alone.
Reference: Transcript, pp.
9.
As the car was still there, they parked in back of the building, where the Appellant
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continued to push the complainant’s head down into his lap. Eventually, she said he pulled out his
penis again, covered it up with his shirt and made her stroke it with her hand. This lasted for ten
seconds before she pulled away. He then tried to push her head down into his lap again and when
she refused to provide oral sex, took two of his fingers and put them in her mouth. This latter aspect
of the complainant’s evidence was also never mentioned to the police in her video-taped statement
but rather was something she had just remembered two years later before the trial. On the
complainant’s evidence, the evening ended when the Appellant suggested that he drive her home so
that she wouldn’t be late. When he dropped her off, she was laughing.
Reference: Transcript, pp.
10.
The Appellant and the complainant continued working together for more than a month after
the incident, when the Appellant left to write exams. She never mentioned the events to anyone
during that time. The incident was not reported to the police until some three months after it was
said to have occurred. The day before, her parents had taken her to the doctor because she seemed
depressed. The doctor told her to tell her mother what was bothering her, at which point the
complainant informed her mother of the evening with the Appellant. The next day, the complainant
went to the police.
Reference: Transcript, pp.
11.
The evidence indicated that the Appellant and complainant were close friends at work and
spoke regularly on an MSN instant chat line. On her MSN member profile, the complainant stated
that she “loved hot guys” and that her hobbies were “Teasing with suckers. I’m a mean tease.” She
also said, including on a posting on the very day of the trial, that she was 18 years old and married.
Reference: Transcript, pp.
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12.
In her reasons for judgment, the learned trial Judge noted that the complainant was
effectively the only witness at trial. She stated that the complainant’s evidence “largely” stood up in
cross-examination and that the complainant was “reasonably consistent” in recounting the events
she described. The learned trial Judge stated the complainant “gave evidence in a straightforward
manner” and that, in acting the way she did and remaining in the Appellant’s car, the complainant
may have exercised “bad judgment” or acted “foolishly and stupidly.” The learned trial Judge
concluded, however, that she was satisfied the complainant repeatedly said no to the Appellant’s
advances that were described and that the Appellant was guilty of sexual assault.
Reference: Appeal Book, Reasons for Judgment, pp.
PART III – ISSUES AND LAW
13.
It is respectfully submitted that the learned trial Judge failed to have sufficient regard to the
frailties and significant difficulties with the complainant’s evidence. These may be summarized as
follows:
(a) the complainant left the park so that she and the Appellant could be alone;
(b) the complainant accompanied the Appellant to the pharmacy where he said he had a
surprise waiting for her which required that they be alone. When they found someone there,
they parked across the street;
(c) they remained together in the parking lots for some two hours;
(d) although she said that throughout this time, the Appellant tried and succeeded in
grabbing her breasts, pulled her head down into his lap and made her touch his penis, the
complainant on her own evidence climbed into the Appellant’s lap to drive the car, rested
her head on the Appellant’s belt buckle, did not move the Appellant’s hand from her bare
breast for up to five minutes, suggested that they leave the parking lot to check if the
pharmacy was vacant, did not at any time ask to leave and parted laughing;
(e) the trial Judge did not mention the complainant’s MSN profile, which showed her to be
a sophisticated young woman whose hobby was to “tease suckers.” The trial Judge also
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played down the fact that before she ever went out with the Appellant, the then 15 year old
complainant had broken up with a 24 year old boyfriend, saying only that the boyfriend “I
gather also was someone somewhat older than she was.” [para. 4];
(f) instead of subjecting the complainant’s explanations for her conduct to critical scrutiny,
the learned trial Judge stated that she had to accept the explanations in the context of her age
at the time of the events. She then proceeded to chalk it all up to “bad judgment”;
(g) the learned trial Judge did not analyse the complainant’s conduct as a whole and subject
her evidence to the tests of reliability and plausibility. Rather, the learned trial Judge relied
on the complainant’s demeanour in the witness box, saying that “She gave evidence in a
straightforward manner,” and that “She was not shaken in cross-examination.” [para. 21];
(g) the learned trial Judge did not mention the complainant’s three month delay in reporting
the matter to the police or the circumstances in which she did so, which provided a powerful
motive for her to misrepresent the facts. The day before going to the police the complainant
had been to her doctor, who advised her to tell her mother why she was depressed. As the
complainant would not have wanted to tell her mother of a break-up with an older man, it
suited her purposes to blame her depression on the evening out with the Appellant;
(h) rather than providing the needed critical analysis of the complainant’s evidence, the
learned trial Judge offered conclusory statements, saying “I had absolutely no reason to
disbelieve that aspect of the evidence. There was nothing about the explanations she offered
or anything else that would allow me to come to the conclusion that I ought to not accept
that evidence.” [para. 26]
14.
In a longstanding series of cases, the Court of Appeal for Ontario has strongly discouraged
the approach taken by the learned trial Judge in this case and has called upon trial Judges to focus
not just on the credibility, but more importantly on the reliability of the evidence presented. For
example, in R. v. Norman, the Court stated: “My concern in this area is heightened by the trial
judge’s approach to the issue of credibility. He appears to have relied, in his findings, almost
exclusively on his impression of the complainant in the witness box; he undertook virtually no
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analysis of her evidence.” And: “I do not think that an assessment of credibility based on
demeanour alone is good enough in a case where there are so many significant inconsistencies. The
issue is not merely whether the complainant sincerely believes her evidence to be true; it is also
whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only
issues. The reliability of the evidence is what is paramount.”
R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), pp. 308, 314.
15.
The Court returned to this theme a few months later in R. v. Stewart: “We all know from
our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults
or children, may convince themselves that inaccurate versions of a given event are correct and they
can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of
the witness’s testimony. Demeanour alone should not suffice to found a conviction where there are
significant inconsistencies and conflicting evidence on the record.” And: “As I understand these
two judgments, we must assess witnesses of tender years for what they are, children, and not adults.
We should not expect them as witnesses to perform in the same manner as adults. This does not
mean, however, that we should subject the testimony of children to a lower level of scrutiny for
reliability that we would do adults. My concern is that some trial judges may be inadvertently
relaxing the proper level of scrutiny to which the evidence of children should be subjected.”
R. v. Stewart (1994), 18 O.R. (3d) 509 (C.A.), pp. 517-518.
16.
A similar issue arose several years later in R. v. Gostick, in which the Court stated: “Upon
considering the reasons for judgment as a whole, it is apparent that the trial judge reached the
conclusion that the three complainants were to be believed on the sole basis of their apparent
honesty and demeanour in the witness box, without assessing their testimony in the light of the
entire evidence. In particular, the trial judge never addressed in his reasons the numerous
improbabilities in the evidence.”
R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.), p. 61.
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17.
The Court dealt with the issue again more recently in R. v. C. (T.): “There are serious
problems with the reliability of C.C.’s evidence. First, there were two significant inconsistencies
that went to the core of C.C.’s allegations. By the time of trial, he had no recollection of the use of
chocolate syrup and he now alleged only one incident. He provided no explanation for these
significant discrepancies and, significantly, the trial judge did not find any explanation. These
discrepancies were not in respect of minor or peripheral matters… Finally, unlike the case with
K.C., there is not a single piece of evidence to support the allegations. The trial judge did not
explain why C.C.’s evidence would be found reliable in the light of these significant problems…
The fact that the trial judge did not explain why C.C.’s evidence should be accepted despite its
apparent unreliability is demonstrative of the flaw in the evaluation of the evidence and the
analysis. In my view, the evidence of C.C. was so fraught with problems that a verdict of guilty was
unreasonable.” As to the manner in which a trial Judge should properly deal with inconsistencies in
the evidence, the Court stated: “I am satisfied that the trial judge also satisfactorily resolved the
other concerns with K.C.’s account. She dealt at length with these apparent inconsistencies and,
unlike the case with C.C., satisfactorily explained why she still accepted K.C.’s evidence.” It is
respectfully submitted that it cannot be said that the learned trial Judge dealt anywhere near at
length with the inconsistencies and difficulties with the complainant’s evidence in this case.
R. v. C. (T.) (2004), 72 O.R. (3d) 623 (C.A.), pp. 635-637.
18.
In summary, having regard to these decisions it is respectfully submitted that the learned
trial Judge failed to have sufficient regard to the reliability of the complainant’s evidence, failed to
adequately refer to the inconsistencies in the complainant’s evidence and accepted the
complainant’s evidence without subjecting it to sufficient scrutiny or analysis.
19.
Closely aligned to this ground of appeal is the obligation of the learned trial Judge to
provide adequate reasons for judgment. In R. v. Sheppard, the Supreme Court of Canada indicated
that the relevant factors to consider in determining the issue in that case were that: “(i) there are
significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for
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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.” The Court
held that the failure to provide adequate reasons may deprive the appellate court of the ability to
evaluate the correctness of the decision under appeal, thereby giving rise to an error of law.
R. v. Sheppard (2002), 210 D.L.R. (4th) 608 (S.C.C.), pp. 618-619, 626.
20.
In a recent decision, the Court of Appeal applied Sheppard and set aside a conviction where
the trial Judge’s reasons for rejecting an accused’s evidence were “conclusory”, thereby giving rise
to an error of law. The Court stated: “Also, the absence of adequate reasons for rejecting the
appellant’s evidence makes meaningful appellate review problematic. This court cannot be satisfied
that the trial judge properly applied either the burden of proof or the principles underlying W. (D.).”
R. v. M. (Y.) (2004), 71 O.R. (3d) 388 (C.A.), pp. 394-395.
21.
In this case, it is respectfully submitted that the learned trial Judge failed to adequately
explain how she resolved the difficulties with the complainant’s evidence and found the evidence to
be of sufficient reliability to warrant a conviction. The learned trial Judge’s conclusory statement
that she had “absolutely no reason to disbelieve” an aspect of the complainant’s evidence or that
there was “nothing” about the complainant’s explanations that would cause her to not accept the
evidence, without explaining how she dealt with the inconsistencies in the evidence, makes
appellate review problematic and raises the possibility that the learned trial Judge failed to properly
apply the burden of proof.
22.
In an affidavit filed in support of the appeal herein, the Appellant states that he failed to
receive the effective assistance of counsel at trial. The Appellant immediately retained the services
of the law firm after being charged. The Appellant’s evidence indicates that the firm failed to
properly represent the Appellant in the following respects:
(a) they failed to take any steps to have the charge stayed on the basis of unreasonable delay
notwithstanding a 22 month delay from the date of the charge to the date of trial;
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(b) they promised to but failed to take any steps to review the background of the
complainant, to retrieve instant messages exchanged by the Appellant and the complainant
and to interview any witnesses or co-workers of the Appellant and the complainant;
(c) they failed to take any steps to obtain the records of the complainant’s family physician;
(d) they, not the Appellant, made the decision not to have the Appellant testify at trial;
(e) they failed to meet with the Appellant to review the disclosure and evidence of the
complainant until just one week before the trial;
(f) they failed to make the Court aware at trial that the Appellant was only an intern with no
power to discipline the complainant as she alleged;
23.
The Supreme Court of Canada has held that in order to establish a claim of ineffective
assistance of counsel it is necessary to show that counsel’s representation fell below a standard of
reasonableness and that prejudice resulted such that there was a miscarriage of justice. Importantly
for this case, the Court stated: “While it is not the case that defence lawyers must always obtain
express approval for each and every decision made by them in relation to the conduct of the
defence, there are decisions such as whether to plead guilty, or whether or not to testify that defence
counsel are ethically bound to discuss with the client and regarding which they must obtain
instructions. The failure to do so may in some circumstances raise questions of procedural fairness
and the reliability of the result leading to a miscarriage of justice.”
R. v. B. (G.D.) (2000), 184 D.L.R. (4th) 577 (S.C.C.), pp. 587-588.
24.
The Court of Appeal for Ontario has very recently elaborated on this point as follows: “If
the appellant can show that it was trial counsel and not the appellant who decided that the appellant
would not testify, and that the appellant would have testified had he understood that it was his
decision, it seems to me that it must be accepted that his testimony would have affected the result,
thereby establishing that a miscarriage of justice occurred.”
R. v. Archer (October 13, 2005) (Court of Appeal for Ontario), para. 139.
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25.
In this case, the evidence establishes clearly that trial counsel and not the Appellant made
the decision on whether the Appellant would testify, and that had the Appellant known that it was
his decision to make, he would have testified at trial. Moreover, it is respectfully submitted that the
numerous failures of trial counsel outlined in the Appellant’s affidavit evidence a negligent and
uncaring approach to the defence of the charge which, taken together, call into question the
reliability of the verdict. In these circumstances, it is submitted that the verdict must be quashed.
PART IV – ORDER REQUESTED
26.
It is respectfully requested that the appeal be allowed, that the conviction entered by the
Honourable Madam Justice Waldman be set aside, that an acquittal be entered or, in the alternative,
that a new trial be ordered.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
ALLAN ROUBEN
Solicitor for the Appellant