R. v. Sullivan, 2020 NLCA 5

Bradley Joseph Sullivan (appellant) v. Her Majesty the Queen (respondent) (19/25) Indexed As: R. v. Sullivan 2020 NLCA 5 5 C.A.N.L.R. 343 Court of Appeal of Newfoundland and Labrador Hoegg, O’Brien and Goodridge JJ.A. February 5, 2020

Summary: Mr. Sullivan was convicted of two counts of sexual assault and two counts of invitation to sexual touching of a person under the age of16. Mr. Sullivan appealed his convictions on the basis that the trial judge erred by misapprehending the evidence and by failing to givesufficient reasons respecting inconsistencies in the complainant’s testimony. Held: Appeal dismissed.

Goodridge J.A. (Hoegg and O’Brien JJ.A. concurring): Misapprehension of evidence giving rise to a miscarriage of justice may refer to amistake as to the substance of evidence, a failure to consider relevant evidence, or a failure to give proper effect to evidence (paragraph14). The trial judge considered inconsistencies and memory lapses in assessing the complainant’s credibility. The judge did notmisapprehend the evidence or draw inferences not available on the evidence (paragraphs 15-18).

The judge’s reasons adequately addressed the inconsistencies in the complainant’s evidence and the reasons, when read overall, did notforeclose meaningful appellate review. The inconsistencies in the complainant’s evidence that arose during cross-examination did notrequire extensive analysis because there was compelling corroborative evidence (paragraphs 19-26). Cases cited: R. v. Phelan, 2013 NLCA 33, 337 Nfld. & P.E.I.R. 64 R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6 R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3 R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.) R. v. Best, 2016 NLCA 10, 375 Nfld. & P.E.I.R. 89 R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 R. v. Vokurka, 2013 NLCA 51, 339 Nfld. & P.E.I.R. 248, aff’d 2014 SCC 22, [2014] 1 S.C.R. 498 R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746 R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788

Statutes considered: Criminal Code , sections 150.1(1) , 686(1) (

a) Counsel: Timothy O’Brien, for the appellant; Kathleen O’Reilly, for the respondent. The appeal was heard on December 11, 2019 before Hoegg, O’Brien and Goodridge JJ.A. The following judgment was filed on February 5, 2020 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A.: INTRODUCTION [ 1 ] Bradley Sullivan was convicted and sentenced for two counts of sexual assault (section 271) and two counts of invitation to sexual touching of a person under 16 years old (section 152). Mr.

Sullivan appeals the convictions on the grounds that the trial judge misapprehended material evidence and failed to give sufficient reasons in addressing inconsistencies in the complainant’s testimony. He asks this Court to allow the appeal, quash the convictions, and order a new trial. [ 2 ] For the reasons that follow, I would dismiss the appeal. There is no basis to intervene.

ISSUES [ 3 ] The issues arising from the grounds of appeal are addressed by answering the following questions: - Did the trial judge misapprehend material evidence by failing to address inconsistencies in the complainant’s evidence, resulting in a miscarriage of justice? - Did the trial judge fail to give sufficient reasons to address inconsistencies in the complainant’s evidence, resulting in an error of law? BACKGOUND [ 4 ] The events that ground the charges occurred on December 2, 2015 and January 16, 2016. On those dates, the complainant was 14 years old and Mr. Sullivan was 22 years old. Pursuant to

section 150.1(1) of the Criminal Code , because the complainant was under 16 years of age, it is not a defence that she consented to the activity that forms the subject matter of these charges. [ 5 ] The complainant testified on examination-in-chief that Mr. Sullivan randomly added her as a friend on Facebook in October 2015. They exchanged messages over the autumn and eventually agreed to meet. The first meeting occurred on December 2, 2015. On that date, the complainant says that she drove with Mr. Sullivan, in his car, to a parking lot where they initially engaged in kissing and “making out”; then Mr.

Sullivan asked if she would perform oral sex on him, and she complied. The second meeting occurred on January 16, 2016. On that date, the complainant says she was invited by Mr. Sullivan to his apartment with the objective of engaging in sexual intercourse. On arrival at the apartment, the complainant says that she and Mr. Sullivan went into his bedroom, initially engaged in kissing and sexual touching, and eventually sexual intercourse. [ 6 ] The complainant, with her mother accompanying her, made the complaint to the police on January 17, 2016. [ 7 ] Mr.

Sullivan did not testify or present any evidence at trial. [ 8 ] Counsel for Mr.

Sullivan argued that the complainant’s trial testimony of the two sexual interactions should not be believed because of inconsistencies in her answers and poor memory, as exposed on cross-examination. [ 9 ] The inconsistencies in the complainant’s testimony included: - In her initial statement to police on January 17, 2016, she omitted disclosure of the December 2, 2015 oral sex incident, explaining at trial, “I thought the other time [oral sex] was less important”. - In her second statement to police on January 23, 2016, she disclosed the December 2, 2015 encounter but referred only to Mr.

Sullivan touching and digitally penetrating her vagina, with no mention of oral sex. - In her testimony at trial, she disclosed, during examination-in-chief, that the December 2, 2015 incident included her performing oral sex on Mr. Sullivan, and that she could not remember if he touched her in any other way.

- In her testimony at trial, she added during cross-examination that Mr. Sullivan reciprocated by performing oral sex on her: “Iperformed oral on him, and then he done the same for me”. - The date when she and Mr. Sullivan first discussed her age varied on examination-in-chief and cross-examination. On examination-in-chief, she said they had not discussed her age prior to December 2, 2015, and on cross-examination, she said they had discussed herage when they first started messaging on Facebook and Snapchat.

When confronted with the inconsistency, the complainant explainedthat she could not recall exactly when her age was discussed, but “he knew how old I was before we had sex, and I guess he just askedagain afterwards”. [10] There was a long delay – June 16, 2017 to May 18, 2018 – between completion of the examination-in-chief and commencementof cross-examination. The delay arose for various reasons – defence counsel wanted time to consider a

section 276 application, defencecounsel was unavailable due to illness on the first return date, and the trial judge was unavailable on the second return date. Thecomplainant’s memory was poor when the trial resumed for her cross-examination on May 18, 2018. At one point the complainant statedthat she had no idea of exactly what happened in the back seat of the car on the evening of December 2, 2015, indicating in so manywords that the passage of time had impaired her recollection: “Well it’s been over two years, so like, I don’t remember much”.

Atanother point on cross-examination, in discussing the January 16, 2016 incident, the complainant testified that she could remember thesexual intercourse (“It definitely happened”) but could not recall the specific details.

STANDARDS OF REVIEW [11] The issue raised by this appeal, dealing with the misapprehension of evidence, engages findings of fact and factual inferences.Findings of fact made and the factual inferences drawn by the trial judge cannot be reversed on appeal unless the trial judge has made apalpable and overriding error, i.e. an error that is plainly identifiable and affected the result, see R. v. Phelan, 2013 NLCA 33, 337 Nfld.& P.E.I.R. 64, at para. 14 and R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9. In the latter case, Fish J. stated at paragraph 9: ...

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And itmust be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm. [12] The standard of review, dealing with sufficiency of reasons, is the standard of adequacy.

Reasons will not be inadequate if, whenread in their entire context, they fulfill the threefold purpose of informing the parties of the basis of the verdict, providing publicaccountability and permitting meaningful appeal (see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 25). ANALYSIS [13] A court of appeal can allow an offender's appeal against conviction on any of the three grounds set out in section 686(1)(

a) of theCriminal Code: 686

(1) On the hearing of an appeal against a conviction … the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; … Did the trial judge misapprehend material evidence? (section 686(1)(a)(iii)) [14] A misapprehension of evidence giving rise to a miscarriage of justice may refer to a mistake as to the substance of evidence, afailure to consider relevant evidence, or a failure to give proper effect to evidence (see R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, atpara. 13). If Mr. Sullivan can demonstrate that the convictions depend on a misapprehension of the evidence then it must follow that hehas not received a fair trial, and was the victim of a miscarriage of justice (see R. v. Morrissey (1995), (ON CA), 22O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.), at para. 93). In this matter, Mr. Sullivan says that the misapprehension of evidence wasthe trial judge’s failure to consider relevant evidence affecting the complainant’s credibility.

He argues that the convictions dependentirely on the acceptance of the complainant’s credibility, and that the trial judge’s failure to consider the inconsistencies and memorylapses has resulted in a miscarriage of justice. [15] The trial judge did not fail to consider these inconsistencies and memory lapses. He acknowledged and referred to these in hisreasons (see pages 172 to 174 of the transcript for the August 30, 2018 reasons).

He decided that, in spite of the inconsistencies andmemory lapses, the details provided by the complainant during her examination-in-chief, and the Snapchat corroborating evidence,established that the sexual activity of December 2, 2015 had occurred. The trial judge accepted the part of the complainant’s testimonythat was consistent in examination-in-chief and cross-examination on the oral sex, as was his right. As stated by Hoegg J.A. in R. v.

Best,2016 NLCA 10, 375 Nfld. & P.E.I.R. 89, at para. 6: “[A trial judge] does not err in accepting some and rejecting other evidence from thesame witness provided that he or she applies the applicable law and gives adequate reasons for his or her decision.” [16] In the Snapchat exchange on December 5, 2015, Mr. Sullivan effectively acknowledged that the December 2, 2015 sexualactivity had occurred. The complainant messaged Mr. Sullivan saying that “the sex was good” and he replied, “I hope I didn’t make youfeel uncomfortable”.

At trial, the complainant explained that her reference in the Snapchat message to sex was a reference to oral sex. Asthe trial judge stated in his reasons, this Snapchat exchange was “very much corroborative with the assertion of the December 2ndincident”.

[ 17 ] Regarding the sexual activity of January 16, 2016, there were no inconsistencies exposed at trial and no contrary evidence. At trial, the complainant repeated that that she had engaged in sexual intercourse with Mr. Sullivan on January 16, 2016, and she provided (during examination-in-chief) details, such as description of Mr. Sullivan’s apartment, who else was present, the size of the bed, the colour of the bedroom walls, and the sexual position engaged.

The trial judge noted in his reasons that, on cross-examination, almost one year following examination-in-chief, the complainant could no longer recall all details, such as the duration of the sexual intercourse, or what she and Mr. Sullivan were wearing. However, the complainant remained consistent on examination-in-chief and cross-examination that the sexual intercourse had occurred, saying, “It definitely happened”.

The trial judge considered the complainant’s inability to recall all details during cross-examination, and was satisfied that this inability did not adversely affect her credibility on the core allegation of sexual intercourse. [ 18 ] The trial judge did not misapprehend the evidence or draw inferences unavailable on the evidence, nor is there a basis on which to find that he erred in his credibility findings. Accordingly, there was no miscarriage of justice.

Did the trial judge err in law by failing to give sufficient reason to address inconsistencies in the complainant’s evidence? ( s. 686 (1) (a)(ii)) [ 19 ] An appeal based on insufficient reasons will be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review ( see R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869 , at para. 25 ). [ 20 ] At paragraphs 26 to 27 of R. v.

Vokurka , 2013 NLCA 51 , 339 Nfld. & P.E.I.R. 248 , aff’d 2014 SCC 22 , [2014] 1 S.C.R. 498 , Hoegg J.A. discussed the law on sufficiency of reasons, noting that a trial judge is not required to detail findings on each piece of evidence so long as the findings linking the evidence to the verdict can be logically discerned: 26 In R. v.

M. (R.E.) , 2008 SCC 51 , [2008] 3 S.C.R. 3 (S.C.C.) , McLachlin C.J. explains that a trial judge's reasons are sufficient if they "fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review" (paragraph 15). She elaborates at paragraph 18 that the degree of sufficiency required for this test to be met "does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict".

In so doing, she adopts Doherty J.A.'s statement in Morrissey , found at page 525: A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion.

They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. 27 The Chief Justice further explains that a judge is not required to "expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned" (paragraph 20). [ 21 ] I am of the view that the reasons of the trial judge adequately addressed the inconsistencies in the complainant’s evidence, in the context of this matter, and the reasons overall are not so deficient as to foreclose meaningful appellate review.

The reasons adequately link the evidence the trial judge relied upon to the verdicts, and adequately explain why he reached those verdicts in spite of the inconsistencies and memory lapses. [ 22 ] The inconsistencies arising on cross-examination, regarding the December 2, 2015 incident, did not require extensive analysis because there was compelling corroborative evidence.

The trial judge acknowledged the inconsistencies and omissions, but also noted that the Snapchat exchange was “very much corroborative” of the sexual encounter. [ 23 ] The inconsistencies regarding the January 16, 2016 incident related to the surrounding details, and not to the core allegation of sexual intercourse. The complainant’s evidence, that the sexual intercourse definitely happened, was not contradicted by other evidence. [ 24 ] The trial judge’s reasons provide a reasonable basis for his acceptance of the complainant’s evidence on the core allegations relating to both incidents, and for his conclusions.

As stated in R. v. Gagnon , 2006 SCC 17 , [2006] 1 S.C.R. 621 , at para. 23 : The requirement for sufficient reasons is not an invitation to an appellate court to substitute its perceptions of what should have been the factual and credibility findings of the trial judge when a reasonable basis for the trial judge's conclusions exists. Deference is owed to the trial judge’s acceptance of the complainant’s credibility on these core allegations ( see also Gagnon , at paragraph 10 , and R. v. R.P . , 2012 SCC 22 , [2012] 1 S.C.R. 746 , at para. 10 ). [ 25 ] Mr. Sullivan relied on R. v.

Dinardo , 2008 SCC 24 , [2008] 1 S.C.R. 788 , in arguing that the trial judge erred in law by failing to reconcile inconsistencies in the complainant's testimony. Charon J., writing for a unanimous court in Dinardo , found that the trial judge erred in law because he did not sufficiently explain why he accepted the complainant’s evidence and why he rejected Mr. Dinardo's denial of guilt. The complainant in Dinardo , who was mildly mentally challenged, admitted that she occasionally invented false stories, and even stated at one point during her cross-examination that she had made up the allegations against Mr.

Dinardo because she did not like him. Her testimony wavered on the central issue at trial, that is, whether Mr. Dinardo committed the acts for which he was charged. Mr. Dinardo testified that the allegations were all false, and that nothing had happened. [ 26 ] The obvious and compelling concerns on credibility that existed in Dinardo are not present here. Also, in the current matter, there was no evidence to contradict the complainant’s evidence that the oral sex and vaginal sex had occurred.

The trial judge explained why he accepted the complainant’s uncontroverted evidence respecting both incidents as well as the corroborating Snapchat exchange for the December 2, 2015 incident. The trial judge was in the best position to make the credibility assessment, and his reasons adequately support why he accepted the complainant’s testimony on the core allegations. As stated in paragraph 26 of Dinardo , the sufficiency of the reasons must be considered in light of the deference afforded to trial judges on credibility findings, and only in rare

cases will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal: Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. CONCLUSION [ 27 ] Mr. Sullivan has not demonstrated any errors by the trial judge.

The reasons adequately support the crucial findings of credibility and reliability in the complainant’s testimony on the core allegations, and the resulting findings of fact. The reasons adequately link the evidence relied upon to the verdicts. I would dismiss the appeal. Appeal dismissed.