PETER GARFIELD TAYLOR APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT, 2012 NLCA 33

Date: 20120613 Docket: 11/56 Citation: R. v. Taylor , 2012 NLCA 33

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: PETER GARFIELD TAYLOR APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General), 201001G5089 Appeal Heard: February 8, 2012 Judgment Rendered: June 13, 2012 Reasons for Judgment by Welsh J.A. Concurred in by Rowe J.A.

Dissenting Reasons by Hoegg J.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Vikas Khaladkar

Welsh J.A.: [1] Peter Taylor was convicted of sexual assault contrary to section 271(1)(

a) of the Criminal Code on the grounds that hetouched the complainant, who was under fourteen years of age, for a sexual purpose. He was also convicted of unlawfully confining thecomplainant contrary to section 279(2) of the Criminal Code. Mr. Taylor appeals those convictions, submitting that the trial judge erredin the manner in which he dealt with the evidence and that, as a result, the verdicts are unreliable. BACKGROUND [2] The offences relate to one incident which the trial judge determined occurred in July 2003, just prior to when the complainantturned seven years of age.

The complainant first told her mother about the incident in 2010 when, according to the complainant, herparents had been discussing other allegations against Mr. Taylor, and her mother had become suspicious and had questioned her. At thetime of the trial, the complainant was fourteen years of age. [3] The complainant testified that Mr. Taylor had called her to his shed two days before her birthday. She testified that, when shewent into the shed, Mr. Taylor shut and locked the door with a bolt, grabbed her wrist, and said he would not let her go unless she let him“touch” her.

She said that after about five minutes she agreed to his request, and that he had touched her genital area with the palm ofhis hand inside her clothing. She testified that, after about ten seconds, he removed his hand, gave her a large water gun as a present,unlocked the door, and told her not to tell anyone. There were several inconsistencies in the complainant’s testimony arising from earlierstatements she had given to the police and from her testimony at the preliminary inquiry. There were also inconsistencies within thetestimony she gave during cross-examination. [4] Testifying in his defence, Mr.

Taylor admitted that, when he gave a statement to the police, he lied when he said that childrenwere never in his shed and that he did not keep treats or other items for them there. He testified that the complainant had frequentlyvisited his property alone and with other children. When he heard her birthday was coming up, he testified that he and his wife bought awater gun for her. Mr. Taylor testified that the complainant had come to the shed, stepped inside for a few seconds when he gave her thewater gun, and then left, excited about the gift.

He testified that this occurred in the summer of 2004 because, that year, the warrantyhad run out on his truck and, when he gave the water gun to the complainant, his son was near the shed working on the brakes of thevehicle. He testified that the complainant had returned a short time later with the water gun and squirted water at the truck. [5] In addition to the evidence of Mr. Taylor and the complainant, the Court heard testimony from Mr. Taylor’s son, StephenTaylor (“Stephen”). This evidence was important to the defence case because, if accepted, it would lend weight to Mr.

Taylor’scredibility, a central issue in assessing whether the charges had been proven beyond a reasonable doubt. Stephen testified that he wasworking on Mr. Taylor’s truck near the shed when the complainant was given the water gun. He said he had been in the shed andnoticed the water gun, and was told that it was for one of the youngsters. He testified that he had not paid much attention. However, hesaid that the shed door could not have been closed because he had an air hose running out from inside the shed.

He testified that thecomplainant commented on the water gun being “cool” or “awesome”, that she was pretty excited and that she went off with it butreturned to squirt water on the truck. The complainant testified that she did not remember Stephen being in the area during the relevanttime. Stephen did not contact the police with this evidence. The trial judge drew an adverse inference from this omission. [6] In his oral decision the trial judge accepted the evidence of the complainant, concluding that the offences had been provenbeyond a reasonable doubt.

ISSUES [7] The central issue in this appeal, and on which it is decided, is whether the trial judge erred in the manner in which he dealtwith Stephen Taylor’s evidence. It is unnecessary to decide other questions raised by Mr. Taylor relating to misapprehension of theevidence by the trial judge and whether the verdicts are unreasonable because they cannot be supported by the evidence. ANALYSIS [8] Mr.

Taylor submits that the trial judge erred when he concluded that Stephen Taylor’s evidence that he was working on Mr.Taylor’s truck near the shed at the relevant time was a “fabrication”, “self serving and not believable”, and “a clumsy lie” because he“did nothing” with that information (decision of the trial judge at pages 23 and 24). The trial judge said, at page 24: Stephen Taylor stated in his evidence that when he, referring to his father, that when he got charged I told him I could testify about thewater gun.

However he [Stephen] later testified on cross-examination that [“]I was not going to – I was not going to the police becausehe was the one getting charged and I did not think I could.[”] Surely if Stephen Taylor had information that could assist his father, whohe testified that he was very close to, he would’ve gone to the police with it or he would’ve gone to a lawyer, or he would’ve gone to theprosecutor’s office, or he would’ve gone to somebody to get help for his father with what he knew. Why would he put his father throughthat?

He testified that he first became aware of [the complainant] and the water gun after [his] dad got charged, yet with that informationhe did nothing. … [9] Counsel for Mr. Taylor submits that there is no evidence to support the trial judge’s finding that Stephen Taylor “didnothing”. This is correct. It is clear that Stephen told defence counsel about his evidence. He was issued a subpoena which attests tothis fact. There is no basis on which to infer or conclude that Stephen would or should have gone instead to the police or the prosecutor.

After Stephen gave his information to defence counsel, it was up to counsel to decide how to proceed. The trial judge erred in inferringthat Stephen did not disclose his evidence, that he, in fact, “did nothing”. [10] Further, there was no obligation on the defence to disclose Stephen’s evidence to the Crown. Counsel’s decision to disclosethe information, or not, would be made taking into account, among other things, that there is no obligation on the defence to disclose tothe police or the prosecution the evidence on which the defence intends to rely.

The Supreme Court of Canada has recognized that thedefence “has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution” (R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326, at page 333). Similarly, in R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185,

Major J., for the majority, stated: [82] … Although the Crown in Canada is required to provide full disclosure to an accused, the accused has no reciprocal duty. … [11] However, there are circumstances where a failure to disclose may result in the drawing of an adverse inference. For example,in R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293, Cory J., for the majority, wrote, at page 1319: … The failure to disclose a defence of alibi in a timely manner may be considered in assessing the credibility of that defence but that is aunique situation.

As a general rule there is no obligation resting upon an accused person to disclose either the defence which will bepresented or the details of that defence before the Crown has completed its case. There was clearly no obligation resting upon theappellant to disclose either his defence of double intent or the Kuko story to the Crown or anyone in authority.

The failure to correctsuch an impression by direction from the trial judge rendered the right to silence a snare of silence for the appellant. … [12] In this case, the Crown has submitted that Stephen Taylor’s evidence amounted to an alibi which should have been disclosed in a timely manner to avoid the inference of recent concoction. Alibi is defined in Black’s Law Dictionary, 8th edition, to mean: 1. A defense based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene ofthe crime at the relevant time. … 2.

The fact or state of having been elsewhere when an offense was committed. [13] Similarly, in the Dictionary of Canadian Law, 3rd edition: “… [P]roof of the absence of the accused at the time a crime is supposed to be committed, satisfactory proof that he is in some place elseat the time.” … [14] This definition of alibi evidence is applied in R. v. Cleghorn, (SCC), [1995] 3 S.C.R. 175, where Iacobucci J.,for the majority, described one element of the defence of alibi to be “an assertion that the accused was not present at the location of thecrime, when it was committed” (paragraph 6, underlining in original).

While this is the definition of alibi that generally applies, it mayinclude other evidence that establishes impossibility that the accused committed the crime. For example, the accused may have beenengaged with another person in an activity that would preclude commission of the offence by the accused. [15] Evidence from Stephen Taylor that he was in the area when the alleged offence took place does not amount to alibi evidencebecause it does not tend to establish that Mr.

Taylor was not present at the location of the offence or that he was engaged in an activitywith Stephen that would have precluded commission of the offence by Mr. Taylor. [16] In the circumstances, it was open to the defence to withhold disclosure of Stephen Taylor’s evidence until after completion ofthe Crown’s case. The trial judge erred when he rejected Stephen’s evidence on the basis that he had failed to disclose the informationto the police.

This led to the related error, the failure to give effect to the right of the accused not to disclose either the defence itintended to present, or the details of that defence, before the Crown had completed its case. [17] These errors are material in nature. Stephen’s evidence supported that of Mr. Taylor and undermined that of the complainant. In determining whether the charges had been proven beyond a reasonable doubt, it was necessary for the trial judge to weigh theevidence of Mr. Taylor and the complainant, and to make an assessment of their credibility.

In so doing, Stephen’s testimony, includingan assessment of his credibility, would have provided relevant information. By rejecting Stephen Taylor’s testimony out of hand on thebasis that he had failed to go to the police and “did nothing”, the trial judge precluded a proper assessment of the defence evidence. [18] A mention of the relevant dates related to the incident and Stephen Taylor’s evidence is appropriate here. The trial judge,without explanation, despite inconsistencies in the evidence, concluded that the event took place in the summer of 2003.

StephenTaylor’s evidence related to events that took place in the summer of 2004. However, this discrepancy does not necessarily undermine therelevance of Stephen’s evidence. The Information provided to the Court alleges that the offences of unlawful confinement and sexualassault occurred between July 1 and August 31, 2002. The complainant’s birthday is […], 1996. She would, therefore, have turned sixyears old on her birthday in 2002. However, she testified several times that the offences occurred the year she turned seven, that is,2003.

In addition, the complainant testified that she was going into grade 3, when, in the absence of special circumstances, she wouldhave turned eight, that is, in 2004. When the trial judge rejected Stephen Taylor’s evidence out of hand, he failed to assess the evidenceas a whole in determining when the incident took place. [19] These errors with respect to the manner in which the trial judge dealt with Stephen Taylor’s evidence are material in the sensethat they could have affected the outcome of the trial. In the circumstances, it would be unsafe to maintain the convictions.

It wouldnot, however, be appropriate to enter acquittals. It cannot be said, as Mr. Taylor submitted, that the inconsistencies in the complainant’stestimony necessarily lead to the conclusion that there is no evidence on which the guilty verdicts could be sustained. While the trialjudge erred by improperly refusing to consider and assess a portion of the defence evidence, this is not to say that evidence which may beled at a new trial would necessarily be insufficient to ground guilty verdicts. Accordingly, the convictions must be set aside and a newtrial ordered.

DISPOSITION [20] The trial judge made material errors in the manner in which he dealt with the evidence of Stephen Taylor such that the guiltyverdicts were rendered unreliable. In the result, the convictions are set aside and a new trial is ordered. __________________________ B.G. Welsh J.A.

I Concur: ___________________________ M. H. Rowe J.A. Dissenting Reasons by Hoegg J.A. [ 21 ] I do not agree with my colleagues that the trial judge made material errors with respect to the manner in which he dealt with the evidence of Stephen. Neither do I agree that the trial judge failed to consider the defence evidence as a whole. [ 22 ] In my view, the trial judge made no error in his assessment of Stephen’s evidence. He rejected it, for several reasons, as he was entitled to do.

As well, he considered the defence evidence in the context of all of the evidence, and fully addressed the inconsistencies in the complainant’s testimony in doing so. His finding that there was no inconsistency material to the offence is well supported by the evidence and the law. The trial judge properly directed himself on the standard of proof required for a criminal conviction, and it has not been shown that he misapprehended the evidence or that he misstated or misapplied the law. In my opinion, his convictions of Mr.

Taylor for the sexual assault and unlawful confinement of the complainant should stand. [ 23 ] In order to appreciate whether Stephen’s evidence could have significance to the defence, it is helpful to identify how his evidence differs from that of the complainant (references are to the transcript of the evidence): 1) The complainant testified that she did not recall Stephen or anyone else being present at or near the shed on the day Mr. Taylor touched her (Vol II, pg. 12, line 15).

Stephen testified that he was just outside the shed working on the brakes of his father’s truck on the day of the assault (Vol V, pg. 33). 2) The complainant said that she was locked in the shed for about 5 minutes, that Mr. Taylor grabbed her wrist and that he touched her vagina for about 10 seconds (Vol II, pg. 12, lines 9-13). Stephen said in direct examination that when the complainant arrived she only went up to the doors of the shed and did not enter it (Vol V, pg. 35).

However, on cross-examination, he said that his back was turned to the shed and that he could have been looking away for a couple of minutes, and he agreed that she could have gone into the shed (Vol V, pg. 47). In this respect, Stephen’s evidence contradicts that of his father. Mr. Taylor testified that the complainant fully entered the shed to get the water gun. 3) The complainant said that Mr. Taylor bolted the shed door closed (Vol II, pg. 18, lines 19-20).

Stephen said that one of the shed doors was open and that the air hose he was using when working on the brakes of the truck passed through its doorway (Vol V, pg. 36). However, on cross-examination, Stephen admitted that he was not looking at the shed, and that it was possible that his air hose was under the door of the shed while it was closed (Vol V, pg. 48-49). 4) The complainant said that after the incident, she took the water gun and placed it somewhere in her yard and did not use it (Vol II, pg. 22-23).

Stephen said that after the complainant left the shed, she came back and squirted the truck with the water gun (Vol V, pg. 36). [ 24 ] In his decision, the trial judge stated he did not believe Stephen’s evidence about being at the shed fixing the brakes on the truck on the day of the assault. He characterized Stephen’s evidence and that of his father respecting Stephen’s presence at the shed as self-serving and a “clumsy lie”. [ 25 ] The trial judge gave the following reasons for why he did not believe the truck story: (

a) He found it unbelievable that neither Stephen nor his father had any conversation about safety with the complainant when Mr. Taylor called her up to the shed that day, given that the truck was on jacks and a power cord was extended from the shed to the truck. The judge found this lack of concern for safety disingenuous because Mr. Taylor had made much of safety concerns respecting small children around his shed at an earlier point in his evidence. (

b) The trial judge took a dim view of the fact that when Stephen learned that his father was charged, Stephen did not contact the police, his father’s counsel or other authorities to provide information about his being at the shed when the assault was alleged to have occurred. The judge was of the view that a caring son would likely have brought his evidence forward to help his father when he learned his father was charged. The fact that Stephen did not do so was a factor which caused the trial judge to question the truthfulness of the evidence. (

c) The trial judge was presented with conflicting evidence as between the complainant and Stephen concerning whether Stephen was present at the shed working on the truck on the day of the assault. The complainant did not recall Stephen Taylor being there. The trial judge saw no reason why the complainant would say that Stephen was not there if he had he been there, and it was not argued that the complainant was motivated to fabricate her evidence in this or any other regard. In short, the trial judge preferred the evidence of the complainant over that of Stephen.

[26] The central issue concerning the treatment of Stephen’s evidence relates to the second reason the trial judge gave for rejectingit. Mr.

Taylor argues that Stephen had no obligation to notify anyone about his being at the shed that day and having evidence whichcould possibly help his father, and in any event, the evidence was eventually brought to counsel’s attention as shown by the subpoenafor Stephen issued by the defence in advance of the trial. [27] In relation to this issue, the trial judge said the following at page 24 of the transcript of his oral decision: Stephen Taylor stated in his evidence that when he, referring to his father, that when he got charged I told him I could testify about thewater gun.

However he later testified on cross-examination that I was not going to – I was not going to the police because he was the onegetting charged and I did not think I could. Surely if Stephen Taylor had information that could assist his father, who he testified that hewas very close to, he would’ve gone to the police with it or he would’ve gone to a lawyer, or he would’ve gone to the prosecutor’s office,or he would’ve gone to somebody to get help for his father with what he knew. Why would he put his father through that?

He testifiedthat he first became aware of [the complainant] and the water gun after dad got charged, yet with that information he did nothing. [28] Although the trial judge commented that Stephen Taylor “did nothing with the information”, it is clear that he meant, asStephen Taylor himself testified, that he did nothing with it at the time Mr. Taylor was charged. [29] The trial judge neither stated nor insinuated that Stephen had any obligation to provide his evidence to the authorities. Rather,he questioned the truthfulness of the evidence because Stephen did not do so, given that it could possibly assist Mr.

Taylor in defendinghimself. The trial judge effectively considered the evidence to have been recently fabricated. [30] The record reveals that when Stephen was asked by the Crown why he did not come forward with his evidence when helearned his father was facing serious charges, he said that he did not know that he had to contact anyone with the information, and that hedid not go to the police because he was not the one charged. [31] Stephen is a witness. He has every right to remain silent about his involvement in his father’s case. The trial judge did notsuggest otherwise.

However, if a witness gives unexpected evidence in circumstances where that evidence could reasonably be expectedto have been disclosed earlier, he runs the risk of it being considered to be recently fabricated. This is what happened here. Stephen hadthe opportunity to address the Crown’s insinuation of recent fabrication for the Crown attorney questioned Stephen as to why thisevidence was just coming forth at trial, and Stephen explained his reasons. The reasons did not ring true to the trial judge. The trialjudge found Stephen’s evidence wanting and rejected it, as he is entitled to do.

Just because there was no obligation on Mr. Taylor orStephen to disclose Stephen’s evidence does not mean that a negative inference cannot be drawn against its late disclosure. There is nological connection between the two concepts. [32] I agree with my colleagues that this is not a case involving alibi evidence. In this regard, Mr. Taylor’s reliance on Chambers,supra, is not appropriate. Chambers is a case which involves the right to silence, and whether an adverse inference can be drawn fromthe fact that an accused remains silent when being questioned by the police. It is different from the case at hand. Mr.

Taylor did notremain silent when questioned by police. He made exculpatory statements to the police when he was arrested and if Stephen had beenworking on the truck the day of the assault, the trial judge would have expected Mr. Taylor to have said so to the police. [33] I agree with Mr. Taylor and my colleagues that there is no obligation on an accused to disclose his defence to the Crown, savein such circumstances as alibi. I also agree that there is no obligation on a witness, alibi or otherwise, to bring forward evidence inadvance of trial.

However, there is no prohibition on a trial judge considering Stephen’s testimony about fixing the truck on the day ofthe assault and rejecting it on the basis of the reasons he gave. It therefore cannot be said that the trial judge dismissed Stephen’sevidence “out of hand”. [34] My colleagues also say the trial judge did not assess the evidence as a whole in determining when the incident took place. Icannot agree. The trial judge discussed the issue respecting the year of the incident. He compared the conflicting evidence andconcluded that the evidence of Mr.

Taylor and his son Stephen about when the incident took place was “a year out”. He preferred andaccepted the complainant’s evidence that the events took place in the summer of 2003. In any event, the year in which the incident tookplace was not material, and there is no ground of appeal maintaining it was. [35] Aside from the trial judge making no error in his assessment of Stephen’s evidence, it is difficult to see that it would haveassisted Mr. Taylor. The end result of Stephen’s evidence was that he could not say that the complainant did not enter the shed or thatthe two doors were not shut.

This makes his presence the only matter on which the evidence conflicts. Stephen’s presence at the shed isa collateral issue, with which the complainant disagrees only in the sense that she does not remember him being there. Therefore, Icannot agree that even if the trial judge had erred in rejecting Stephen’s evidence, the error was material in the sense that it could haveaffected the outcome of the trial. [36] The oral decision of the trial judge shows he considered all of the evidence respecting the charges against Mr.

Taylor involvingthe complainant, including the evidence from Stephen, as indicated in pages 17 to 25 of the transcript of his oral decision. In his review,he identified inconsistencies in the complainant’s evidence. He found the inconsistencies to be either minor or not material, and heexplained that such inconsistencies were understandable given that the complainant was testifying about events that occurred severalyears before when she was approximately 7 years old.

He determined that the inconsistencies did not have any “direct bearing on theelements of the offence” and could “be credited to the imprecision of the evidence of the child”. In this regard, the trial judge relied onthe reasoning of McLachlin J. in R. v. (W.)R., (SCC), [1992] 2 S.C.R. 122 found at 133: . . . … Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time andplace, may be missing from their recollection. Wilson J. recognized this in R. v.

B.(G)., (SCC), [1990] 2 S.C.R. 30, atpp. 54-55, when, in referring to submissions regarding the court of appeal judge’s treatment of the evidence of the complainant, she saidthat

… While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this doesnot mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benignattitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirabledevelopment.

The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard ofthe "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. The trial judge concluded that the complainant’s inconsistencies were in relation to matters collateral to the offence itself, which did notmaterially affect her credibility or raise a reasonable doubt about the Crown’s proof of the elements of the offence.

Comment [37] The trial judge’s conclusion on the charges involving the complainant is in contrast to his conclusion on the charges againstMr. Taylor involving a second complainant, which were similar in nature and heard together in the same trial. In assessing the evidenceof the second complainant, the trial judge found an inconsistency in her evidence which was material to the charges and which gave hima reasonable doubt about proof of the offences. Despite the fact that he did not believe Mr. Taylor’s evidence, he correctly applied thelaw as set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 and acquitted Mr.

Taylor of those charges. The trial judge’sanalysis of the evidence respecting the charges involving the second complainant shows that he was alive to the necessity of addressinginconsistencies in each complainant’s evidence and dealing with them according to law. This he did, and in doing so, he found thecomplainant’s evidence to be entirely consistent on the essential elements of the offences involving her. [38] In the result, the trial judge did not err in his treatment of Stephen’s evidence, and he did not misapprehend the trial evidence asa whole. I would dismiss the appeal. _____________________________ L.

R. Hoegg J.A.