R v. Johnson, 2012 ABQB 667

Court of Queen ’ s Bench of Alberta Citation: R v. Johnson, 2012 ABQB 667 Date: 20121030 Docket: 100494855S1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Ralph Clayton Johnson Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Facts [ 1 ] The Appellant was charged with one count of sexual assault upon the Complainant based on events alleged to have occurred on April 1, 2010.

The Complainant came to work for the Appellant as a live-in caregiver at his home in Sherwood Park, Alberta on March 28, 2010. Her first day of work was Monday, March 29, 2012 and she continued to work Tuesday, Wednesday and Thursday of that week. It was agreed that on April 1, 2010 the Complainant left her employment and a complaint was made to the Sherwood Park R.C.M.P. giving rise to the within charge. [ 2 ] The two main witnesses at trial were the Complainant, and the Appellant on his own behalf. The sole issue for the Court to

decide was one of credibility and whether or not the events as alleged by the Complainant had happened as she described them, which the Appellant denied. Evidence of the Complainant [ 3 ] The Complainant testified that she had moved to Edmonton with her boyfriend in September or October of 2009. This relationship deteriorated to the point that she spent one night at a women's shelter after an incident of abuse by this ex-boyfriend. After this incident she began looking for work so that she could move away from the residence where she was living with her ex-boyfriend.

She found an ad on a website called "Kijiji"of someone looking for a live-in nanny for three girls aged 7, 8 and 9. She made contact with this person, who turned out to be the Appellant, and a few days later accepted a job as a live-in caregiver for his three children. [ 4 ] The Complainant recalled beginning work on Monday, March 29, 2010 and sometime later in the week an incident arose which led her to make a complaint to the police. The Complainant testified that on the day of the alleged event, she woke around 8:00 a.m. and made breakfast for the children who were not in school because of Spring Break.

The Appellant had worked the night before and slept until around 2:00 in the afternoon. Around that time he began drinking white wine and he finished an entire bottle of white wine by around 6:00 p.m. During this time, the children were playing outside with their friends next door. The Complainant testified that she intended to cook hamburgers "or something" for dinner, but that as the Appellant became drunk he started yelling at her and calling her names for approximately 45 minutes. At that time, she became upset and emotional and the Appellant asked her to sit beside him at the kitchen table.

When she sat down in a chair, the Appellant turned her chair so that it was facing him and locked the chair legs together. At that point, the Appellant said "What are you going to do for me because I'm doing this for you?" The Complainant indicated that she asked him if she would get paid and he said "No. You are going to fuck me over. I'm going to fuck you over. What are you going to do with me? I want to get fucked." the Appellant then began grabbing her.

The grabbing consisted of the Appellant trying to stick his hand inside her shirt, trying to pull her pants off, kissing her neck and trying to kiss her and giving her hugs. the Appellant also tried to remove her clothing by attempting to unzip her sweater and pull down her pants. All of these events took place over the course of a couple of hours during which time she was sitting in the chair at the kitchen table. Eventually the Appellant stood up from the table and she was able to get up and go downstairs to get her belongings, at which time she called 911 from her cell phone.

The Complainant recalled being on the phone to 911 as she left the house. Towards the end of her examination-in-chief, the Complainant stated that at no time did any part of the Appellant ’ s body physically touch her bare flesh, except his lips when kissing her. [ 5 ] In cross-examination the Complainant denied that the Appellant had ever approached her with concerns about her ability to fulfill the duties of a live-in caregiver, or that he had ever shown her a nanny contract. She further alleged that at the time these incidents would have taken place, the Appellant was "drunk out of his face".

She clarified that she had in fact begun to make supper for the children and that it was cooking while everything was happening. She did not recall what she had fed the children, other than the fact that it was chicken wings, but there was also potatoes and stuff. [ 6 ] In cross-examination, it was put to the Complainant that she earlier stated that at the time she was leaving the house, she was on the phone with the police, when in a previous statement she had asked the Appellant about being paid as she was leaving.

She retracted this statement saying she had not asked about being paid, "After everything that had happened, I didn't give a shit about being paid." She went on to say that in fact the Appellant had touched her on her skin on her right breast underneath her shirt and her bra. She further clarified that the time she spent in the chair was at least a good two hours and at the time it finished, the children had come inside asking to be fed. The Appellant asked her to prepare supper for them, but she refused. He got up to prepare supper and she ran downstairs.

Evidence of The Appellant [ 7 ] The Appellant testified in his own defence, denying all of the allegations made against him by the Complainant. He testified that when he and the Complainant discussed her employment, he presented a contract to her which set out what her duties and responsibilities would be, along with her pay rate and the hours she was expected to work. The Appellant noticed within a few days of the Complainant starting her employment that she was not keeping up the standard of work that he desired.

He approached the Complainant on Tuesday, March 30, 2010, asked if she had read the contract that he presented to her, and advised of the things he had noticed which were not being completed to his satisfaction. The Appellant testified that after this discussion, some of the chores he discussed with the Complainant were completed, but others were not. He testified that when he was at work on Wednesday night, he already suspected that things would not work out with the Complainant and he advised his supervisor that he may not be in for work on Thursday night.

The Appellant called his supervisor on Thursday afternoon to advise that there was a problem with the Complainant and he would not be coming in to work.

[8] The Appellant admitted that he had an argument with the Complainant on April 1, 2010. He testified that the altercationbegan with him again confronting her about the duties she was not completing to his satisfaction. He recalled telling the Complainantthat he didn't think the employment relationship was working out. To the Appellant's recollection the final straw for the Complainantwas the preparation of a meal which he considered insufficient for his children.

As he observed the Complainant prepare this meal, headvised her that her employment would be terminated and enquired as to making arrangements for her payment on the followingThursday. the Appellant testified that the Complainant then got very upset and was crying, saying things about going back toSaskatchewan to see her grandfather. He characterized her reaction as "having maybe a mini breakdown". At this time, the Complainantasked if she would be paid that day and he advised that she would not, he would pay her on the following Thursday as they hadpreviously arranged.

The Appellant advised that after this discussion, he and the children sat down to eat supper and the Complainantretired to her room downstairs for about an hour. Just as he and the children were getting up from the supper table, the Complainantcame upstairs from the basement with her bag and without saying a word, left through the living-room and out the front door. [9] The Appellant was cross-examined at length by Crown Counsel on a number of ancillary issues but never resiled from hisposition that the sexual assault alleged by the Complainant did not take place.

No further witnesses were called for the Defence and theparties then presented their final argument. A short time later, the Trial Judge returned and delivered an oral decision convicting theAppellant of the charge of sexual assault. Sentencing was delayed in order for a Pre-Sentence Report to be prepared to September 15,2011 at 9:30 a.m. On September 15, 2011 all parties returned before the Court to speak to sentence and the Trial Judge imposed asentence of six months imprisonment as well as a DNA Order and an Order that the Appellant participate in the SOIRA Registry for aperiod of 10 years.

The Appellant is currently on release pending appeal not having served any of his sentence. Grounds of the Appeal A. DID THE TRIAL JUDGE REVERSE THE BURDEN OF PROOF AND PLACE AN OBLIGATION ON THE ACCUSED TOPROVE THAT THIS ASSAULT DID NOT HAPPEN. B. DID THE TRIAL JUDGE MISAPPREHENDED THE EVIDENCE AND DID THAT MISAPPREHENSION HAVE ADIRECT RESULT ON HIS FINDINGS OF CREDIBILITY OF THE WITNESSES. Analysis Standard of Review [10] Whether the Trial Judge applied the proper legal test to the facts of a case is a question of law reviewable on the standard ofcorrectness: Hausen v. Nikolaisen, 2002 SCR 235.

This is the standard which applies where a trial judge cites the appropriate legal test,but fails to properly apply the test to the facts of the case: R. v. Kristensen, 2010 ABCA 37. [11] Findings of fact and findings of credibility are generally entitled to deference and will not be interfered with absent pulpableand overriding error. The application of this test where the Appellant alleges a misapprehension of evidence was recently reviewed bythe Alberta Court of Appeal in the case of R. v. Lee, 2010 ABCA 1 at paragraph 8: "The standard of review in this type of appeal is set out in R. v.

Lohrer, 2004 SCC 80, 2004 SCC 80, [2004] 3 S.C.R. 732 at para.1,quoting from R. v. Morrissey 1995 (ON CA), (1995), (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.) atp.541: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is nota "true" verdict.

The test is stringent, and the error "must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a conviction'": Lohrer at para. 2 . It is unclear whether the test really adds anything to the "palpable and overriding error" standard of review generally applied to findings of fact and credibility, excepting to convert it into an issue of law.

As pointed out in Biniaris at paras. 23, 26, this type of error is characterized as an error of law partly for forensic reasons, to permit appellate review in cases of clear injustice when an appeal is only available on a point of law." The Crown ’ s Position [ 12 ] The Crown argues that the Trial Judge was aware and understood the full nature of the arguments being advanced by the Appellant.

The evidence before the Court consisted of the testimony of the Complainant and the Appellant and their versions of the day in question. [ 13 ] It is further submitted that the Trial Judge was well aware of the "formula" set out in R. v. W.(D) . and its use in considering the evidence of an Accused who has testified in his own defence. [ 14 ] Having heard all the evidence, as per R. v. W.(D). , the Trial Judge began his analysis with the testimony of the Accused.

As with any witness, the Court would look for consistencies and inconsistencies both internal (his own testimony) and external (testimony of other witnesses). This was clearly not a case of grey in that the two versions of the events were, for the most part, stark in difference. A decision as to credibility had to be made. [ 15 ] The evidence of the Accused was essentially a blank denial. To suggest that a blank denial would routinely be sufficient to raise the necessary doubt is illogical.

Indeed, if this were the case, a conviction would never be made out. [ 16 ] Where the evidence of the Complainant is "no more than a general description of the act alleged and its location with no other detail", a blank denial might be enough. Clearly, the evidence provided by the Complainant was far more than a "general description" nor was it lacking in detail. If this is true, the analysis in Stuparyk and Mcintosh infra . suggests that the Court would need to hear something more than a blank denial from the Accused.

Although not articulated as such, it is submitted that this is the very analysis detailed in the Trial Judge's comments. In applying that analysis, he concluded that "in all the circumstances here, it does not raise a doubt in my mind." [ 17 ] Put bluntly, the Trial Judge did not believe the evidence of the Accused nor did such evidence leave him with any reasonable doubt. A blank denial was not sufficient and there was no other evidence (corroborative or otherwise) which he could turn to that might raise that reasonable doubt. Looking for such evidence does not shift the burden to the Accused.

Rather, it is the proper role of a Trial Judge when deciding on the question of credibility. His observation as to the lack of such other evidence surely does not shift the burden of proof. [ 18 ] The final submission of the Appellant is that the Trial Judge erred in his appreciation of the relevant evidence, most especially as it regards the credibility of the Complainant. Much of the Appellant's argument concerns the "two hours" and what, if any, corroboration exists between the evidence of the Accused and that of the Complainant.

The Accused never testified that the Complainant was sitting in a chair for a two hour period. Indeed, he denies it completely. [ 19 ] The essential evidence of the Complainant was that the Accused awoke around 2:00p.m. and, not long after, began drinking a bottle of wine. That bottle of wine was done by 6:00 p.m. He was supposed to go to work around 4:30 p.m. but at some point during that time period he called his employer and said he would not be coming in to work. Things didn't really begin heating up until she started preparing supper.

It was after he called in "sick" and "it was probably later 3 or 4" when the yelling began. There was a period of "a good 45 minutes" where the Accused was berating her and swearing at her. She became upset and emotional. It then progressed to the confinement in the chair and the eventual assault. [ 20 ] Not long after, the children came in looking to eat, she fled the room and then the house.

There is some suggestion that the children entered the house "just after 8" but there are no more specifics as regards the time. As to thetotal length of time she was in the chair, the Complainant's evidence was that "it felt like two hours. I don't know the exact time though." [21] The Appellant finds contradiction in that "according to the Complainant's evidence this would put police arrival atsomewhere around 6:07 p.m."There is no appreciable evidence in the transcript which would suggest the flight from the home occurredanywhere near 6:00 p.m.

Rather, the Complainant's evidence was that it occurred sometime "just after 8" when the children came in thehouse. This matches well with the evidence of Cst. Brettell who arrived on scene around 8:30 p.m. The Appellant asserts that "Mr.Johnson's evidence is much more compatible with Cst. Bretell's evidence".With respect, the Crown does not agree. The timeline of theComplainant links up well with that of Cst. Brettell. [22] With respect to the Complainant’s evidence, the Crown concedes there was some inconsistencies as regards the issue of "bareskin".

The Trial Judge was well aware of the inconsistencies and held it in his mind when he considered her evidence. It was certainlyopen to him to consider the candor and emotional state of the witness as she gave testimony at trial. As with the Accused, the Courtlooked for consistencies and inconsistencies both internal (her testimony) and external (testimony of other witnesses). The emotionalstate as described by Cst. Brettell shortly after he arrived on scene was considered as was her emotional state as she gave her officialstatement to the police.

It was certainly within the Court's jurisdiction and authority to do so and to conclude that it did not affect thecredibility of the Complainant. [23] The Crown submits that the Trial Judge was well aware of the evidence and there were no misapprehensions of same.Further if there were misapprehensions of such evidence, they were not serious enough that they would have (or did) affect his findingsof credibility.

The Crown submits it is clear from the record that Defence counsel framed the appropriate arguments and the Courtunderstood same. [24] The Crown submits that the Trial Judge carefully reviewed all of the evidence before reaching his conclusions and wassatisfied that the charge had been proven by the Crown. [25] The Crown submits that the verdict reached by the Trial Judge was reasonable and supported by the evidence and thereasons provided were sufficiently intelligible to remit appellant review of the correctness of the decision. Conclusion A.

DID THE TRIAL JUDGE REVERSE THE BURDEN OF PROOF AND PLACE AN OBLIGATION ON THE ACCUSED TOPROVE THAT THIS ASSAULT DID NOT HAPPEN. [26] It is well settled law that where an accused testifies in his own defence, trial judges are to instruct themselves as to theformula set out in R. v.W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) at page 409: "First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused." [27] The Supreme Court also reiterated shortly after R. v. W.(D.) in R. v. S.(W.D.), (SCC), [1994] 3 S.C.R. 521,that the W.(D.) procedure was not meant to be followed word-for-word as some magical incantation. What is important about the test isthat the appropriate burden and standard of proof are applied, not the actual words used in applying them.

[ 28 ] I conclude that while the Trial Judge reviewed the W.(D.) test in his reasons, he did not properly apply the burden and standard of proof required of him. A review of the findings made by the Trial Judge reveals that he appears to have shifted the burden onto the accused to disprove his guilt: "I deal first with the evidence of the Appellant.

And I can say at the outset that I do not believe his evidence and I did not find him credible for a number of reasons. ...he has not provided any corroboration for his story about being concerned with the Complainant's performance, even though he told her he confided all that to his foreman.

I note that he was released initially on this charge on April the 2 nd , that is the next day, and clearly at that time he was aware that he was going to be charged with this offence and it would have been, quite frankly, fairly easy for him to take efforts to represent that corroborative evidence." [ 29 ] From this portion of the Trial Judge's Reasons it appears that he has placed a burden on the accused to corroborate his evidence in order for it to be believed. Arguably this portion of the Reasons may also misinterpret what would be admissible evidence before the Court.

To have called the Appellant's foreman to give evidence regarding what the Appellant told him about the Complainant's performance may have been improper. The only evidence which the foreman could give would likely be irrelevant to the charge before the Court and could be described as oath helping.

The accused is neither required, nor generally permitted, to call witnesses to support other portions of his testimony in order to bolster his credibility before the Court. [ 30 ] The Trial Judge appears to have committed a similar error in the second step of his W.(D.) analysis saying: "There is nothing to support what he says. While I realize it might have been uncomfortable for him, but his description of how this all ended, how he and his children were seated around the table and the Complainant walked out, could have been corroborated by those children.

They were not called." [ 31 ] Again this arguably placed a burden on the accused to call evidence in support of his testimony. While the children may have been witnesses available to the Crown or Defence to support the versions of events put forward by the Complainant and the Appellant, any lack of evidence put before the Court is borne by the Crown, who at all times bears the burden of proving its case beyond a reasonable doubt.

The Accused was not expected or required to call further evidence to corroborate portions of his testimony. [ 32 ] The Trial Judge further appears to err in his assessment of whether or not the Appellant's evidence could raise a reasonable doubt in his mind when he said: "Basically, his evidence regarding the act itself is simply a blank denial. ...A blank denial without anything to support it will rarely raise a reasonable doubt.

In all the circumstances here, it does not raise a doubt in my mind." [ 33 ] This characterization of a bare denial being incapable of raising a reasonable doubt is contrary to what the Alberta Court of Appeal has said in R. v. Stuparyk , 2008 ABCA 41 at para. 9 , and more recently in R. v. McIntosh , 2010 ABCA 352 . Both of those cases involved allegations of sexual assault where the Accused testified and denied the allegation, but his denials were disbelieved. To this point, the Alberta Court of Appeal has stated in R v.

McIntosh at para. 12 : "Faced with the evidence of the Complainant which was no more than a general description of the act alleged and its location with no other detail, one can ask, as did the court in R. v. Stuparyk , 2008 ABCA 41 , 'What more can an accused say or do?"' B. DID THE TRIAL JUDGE MISAPPREHEND THE EVIDENCE AND DID THAT MISAPPREHENSION HAVE A DIRECT RESULT ON HIS FINDINGS OF CREDIBILITY OF THE WITNESSES. [ 34 ] In order to justify appellate intervention based on a misapprehension of the evidence, the Appellant must establish that the

[34] In order to justify appellate intervention based on a misapprehension of the evidence, the Appellant must establish that theTrial Judge is mistaken as to the substance of material parts of the evidence and that those errors played an essential

part in his reasoningprocess. [35] The Appellant submits that the Trial Judge erred in his appreciation of the relevant evidence, most especially as it regards thecredibility of the Complainant. This effect is evident in the Trial Judge's reasons for accepting the evidence of the Complainant, where hestates as follows: "I also considered the internal consistency of what she said and I was, quite frankly, puzzled by her testimony that this occurred over twohours, and what she described to me clearly would not cover that whole two- hour period, and she filled in some of the other things thatshe said happened.

But in looking at that, I note that the Appellant also suggested that this lasted some 2 hours because he says she gotthe phone call just after 4:00 that set her off, and it went on until supper was ready at 6:00, so that is 2 hours, or almost 2 hours.

And so Ifind that sometimes truth is stranger than fiction and I am satisfied here that what appears on its face as an implausible explanation ofsitting in a chair for two chairs [sic] in fact has some corroboration here." [36] With regard to the things which happened over the period of time between 4:00 p.m and 6:00 p.m. on the day in question, theevidence of the Complainant and that of the Appellant could not have been more opposed.

Though the Trial Judge was correct that bothdescribed certain events happening over that period of time, the evidence did not suggest that the Appellant's evidence corroborated theComplainant's evidence that she was seated in a chair in the kitchen for a period of two hours. [37] The Trial Judge was right to be concerned about the internal consistency of the Complainant's evidence where she allegesthat these events happened over a period of over two hours. The Complainant was consistent in her testimony that she was held in thechair for a period exceeding two hours.

The Appellant, however, testified that a number of things happened between 4:00 p.m. and 6:00p.m. including that around 3:00 p.m. he first told her that things were not working out. Then for a period of time the Complainant was inher room; then she returned to the kitchen and began preparing a meal, but that the Complainant did not become upset until around 6:00p.m. when he told her that the employment relationship was not going to work out, which is also around the time that she received aphone call on her cell phone. She became very upset but continued preparing the meal which was finished around 7:00 p.m.

After themeal was finished being prepared, she went downstairs for at least an hour before she left the house. This evidence does not corroboratethe Complainant's evidence that she was trapped in a chair in the kitchen for a period exceeding two hours. [38] The Trial Judge also did not comment on Cst. Bretell's evidence that he arrived at the house about 8:30 p.m. and theComplainant's evidence that she was only out of the house 7 minutes before police arrived. According to the Complainant's evidence thiswould put police arrival at somewhere around 6:07 p.m.

This is a rather important contradiction to the Complainant's evidence, notconsidered by the Trial Judge. It becomes even more important when cross-referenced with the Appellant’s evidence that after the fightin the kitchen occurs and the Complainant is dismissed from her employment, she goes to her basement room for over an hour beforeleaving the house. In light of the fact that the Appellant's evidence is much more compatible with Cst.

Bretell's evidence, it wasincumbent on the Trial Judge to explain why he found the officer's evidence corroborative of the Complainant's testimony. [39] The Appellant also alleges a serious inconsistency in the testimony of the Complainant which was glossed over by the TrialJudge was her evidence in chief that at no time the Appellant placed his hand on her bare skin, the only time he ever touched her skinwas kissing her neck, as compared with her testimony in cross-examination that he put his hands down her shirt and touched her breastunderneath her bra.

The Trial Judge mentioned this in his Reasons and indicated that from one perspective it could be fatal to theCrown's evidence. However the Trial Judge then went on to consider the fact that the Complainant was very emotional when givingevidence and that she indicated to the Court that she had been very emotional at the time she was giving her statement to the police. TheTrial Judge found that this was corroborated by Cst.

Brettell, who testified that the Complainant's boyfriend appeared at the R.C.M.P.Detachment and that there were problems between the two. [40] The Appellant fails to see how the fact that the Complainant’s boyfriend was present at the police station and that there wereproblems between them, which was a point not disputed by the Defence, could absolve this evidence of a potentially fatal inconsistency.The fact that the Complainant was upset because of an argument with her boyfriend was equally consistent with the Defence theory thatthat was the reason why she was emotional at the time she gave her police statement.

The Alberta Court of Appeal addressed a similarproblem in R. v. M.A.D. 1997 ABCA 125 , [1997] A.J. No. 287 where the only issue before the Trial Court was whether or notsexual intercourse was consensual. In that case, the Court quoted Justice Laskin of the Ontario Court of Appeal from R. v. G.(G.): "Evidence that is equally consistent with either of two diametrically opposed possibilities does not, in my view, lend support to either oneof them." (para. 28)

The final sentence of that paragraph is also of assistance: "If he did not have the requisite faith in her testimony without more, it is difficult to see how that evidence could really assist on the only issue actually in dispute." [ 41 ] In the Appellant's submission, these serious misapprehensions of the evidence went directly to the only issue to be tried in this case, that is, the credibility of the accused and the Complainant.

I conclude that the Trial Judge's Reasons that he relied on this arguably misapprehended evidence in assessing the third portion of the W(D.) test, whether the Crown had made its case out beyond a reasonable doubt. Therefore it cannot be said that his findings of credibility would have been the same had he fully appreciated the evidence before him.

Relief Granted [ 42 ] The conviction in this case is overturned and a new trial is ordered as a result of the Trial Judge appearing to have placed an obligation on the Appellant to prove that this assault did not occur thereby reversing the burden of proof; and because his possible misapprehension of certain evidence had a direct result on his findings of credibility. The Appellant is directed to reattend at Sherwood Park Courthouse on November 27, 2012 for the setting of a new Trial date before a different Judge. Heard on the 25 th day of October, 2012.

Dated at the City of Edmonton, Alberta this 30 th day of October, 2012. Donald Lee J.C.Q.B.A. Appearances: Peter J. Royal Royal Teskey for the Apellant Scott C. Pittman Agent for the Attorney General

for the Crown