R. v. J.G.M., 2021 NSSC 60

SUPREME COURT OF Nova Scotia Citation: R. v. J.G.M. , 2021 NSSC 60 Date: 20210226 Docket: CRT 497845 Registry: Truro Between: J.G.M. Appellant v. Her Majesty the Queen Respondent D E C I S I O N Judge: The Honourable Justice C. Richard Coughlan Heard: November 17, 2020, in Truro, Nova Scotia Written Release: February 26, 2021 Counsel: David J. Mahoney, for the Appellant Thomas J. Kayter, III, for the Respondent By the Court: [ 1 ] J.G.M. was convicted of committing a sexual assault on Y.G. by the Honourable Judge Alain Bégin. He was sentenced to 90 days imprisonment and three years probation.

J.G.M. appealed the conviction and sentence. Subsequently, he abandoned the sentence appeal. Background [ 2 ] The complainant Y.G. testified on the weekend of August 24 to 26, 2018 she went with her sister C.M. and J.G.M. to assist C.M. move into a house occupied by J.G.M. At the time, Y.G. had known J.G.M. for three or four months. [ 3 ] On Saturday, August 25, C.M. asked Y.G. to go for a walk. While C.M. was getting ready, J.G.M. appeared upset and Y.G. asked him if he needed a hug. She gave him a hug and he put his face facing her breasts and made a slurping noise.

Y.G. looked at J.G.M. called him an “asshole” and walked away. Y.G. testified J.G.M. comes from the same area she did adding, “And down there, a lot of people do that, and they think it’s a big joke”. C.M. and Y.G. went for a walk. [ 4 ] Later Y.G., C.M. and J.G.M. went to Sobeys. Y.G. purchased flowers for her sister and a chocolate pie for J.G.M. having been told it was a favourite of his. Then they returned to J.G.M.’s home. After supper they played two or three games of crib.

Afterwards, C.M. went upstairs to have a bath and Y.G. went to smoke. [ 5 ] Y.G. testified when she went upstairs J.G.M. was in bed under the covers. She leaned on a banister outside J.G.M.’s bedroom. Y.G. and J.G.M. were talking. She observed J.G.M. “kind of playing with himself” and at one point he sat up and grabbed his underwear on the floor and put them on. Y.G., feeling uncomfortable said she was going to bed and J.G.M. gestured for her to give him a hug. Y.G. went to give him a hug and as she was releasing from the hug J.G.M. grabbed her hand and forced it on his penis.

Y.G. pulled away and pointing at J.G.M. said “No”. On cross-examination Y.G. agreed she also said words to the effect “This is not happening, okay. I don’t know what you think I am but it’s not happening?” in a loud voice. As Y.G. passed the closed bathroom door she asked C.M. to come to her bedroom when she was finished bathing. Y.G. went to her bedroom. Later, C.M. came to Y.G.’s bedroom, gave Y.G. a kiss and hug and said goodnight. [ 6 ] Around 2:00 a.m. the next morning Y.G. went to C.M and J.G.M.’s bedroom and asked C.M. to come to her bedroom.

C.M. came to Y.G.’s room and asked “What’s wrong?” Y.G. said “I’m not feeling well; I want to go home.” C.M. said “What do you mean?” Y.G. replied “I’m not feeling well, I just want to go home,” and C.M. asked “Did he touch you?” Y.G. said “Yes” and then started telling C.M. what happened. [ 7 ] Meanwhile, J.G.M. got up went in the bathroom, came out and asked “What’s wrong?” Y.G. said “I’m not feeling well, I want to go home.” J.G.M. asked “But what’s wrong?”. Y.G. responded “I’m not feeling well, I want to go home.” J.G.M. started to get dressed and Y.G. said “You need to tell my sister what you did to me”.

J.G.M. kept saying “What’s wrong, what’s wrong with you?” Y.G.

responded “You know what you did to me and you need to get out of my way”. C.M. drove Y.G. home. [8] On cross-examination Y.G. agreed she was a person who liked to give hugs and knew J.G.M. scratched his groin area. [9] C.M., the sister of Y.G. and wife of J.G.M., testified she was having a bath on Saturday night August 25, 2018. The bathroomdoor was open about 6 inches. She could see Y.G.’s face directly through the open bathroom door. Y.G. was standing in their bedroomdoorway talking to J.G.M. about property Y.G. and her husband were buying.

Y.G. called her husband as C.M. was getting ready to getout of the tub. Y.G. said “Well, I’m getting tired, I’m going to bed” and Y.G. said to J.G.M. “I’ll go in and give you a kiss and a huggoodnight”. Y.G. entered the bedroom and gave J.G.M. a hug and kiss. C.M. could not see what J.G.M. did with his right hand duringthe hug. On her way out, Y.G. asked C.M. to come and hug and kiss her after she was dressed. C.M. did not hear Y.G. say “No, this isnot happening, okay.

I don’t know what you think I am, but it is not happening.” Afterwards, C.M. went to Y.G.’s room and gave her akiss and hug. [10] Around 2:00 a.m. the next morning Y.G. asked C.M. to come to her room and said she wanted to go home. Eventually, inresponse to questioning about what was wrong Y.G. said “It’s [J.G.M.]” and C.M. asked “[J.G.M.] do something to you” and Y.G.responded “he tried to force my hand on his privates”. [11] Then, J.G.M. came out and eventually Y.G. said “Tell her how you tried to force my hand on your privates,”.

J.G.M. responded“You’re fucking crazy.” C.M. took Y.G. home. [12] On cross-examination, C.M. agreed in her statement to the police she said the bathroom door was open a crack. [13] J.G.M. testified and denied the assault.

He said during the time he was talking with Y.G. in his bedroom the bathroom door wasopen almost a foot. [14] J.G.M. agreed during the 2:00 a.m. incident Y.G. told him in response to his comment he did not know what her (Y.G.)problem was “Tell her, tell her” but did not know of Y.G.’s allegation until C.M. told him the next day. [15] The defence argued the existence of a reasonable doubt stating the evidence of what C.M. saw and heard and the evidence as awhole raised a reasonable doubt. The Crown argued Y.G.’s evidence should be accepted and the elements of the offence were provedbeyond a reasonable doubt.

The trial judge reserved his decision. [16] The notice of appeal set out the grounds of the conviction appeal as follows: As to conviction, the Honourable Trial Judge erred in law by: 1. Admitting evidence of bad character or propensity, and by not cautioning himself respecting the use of such evidence; 2. By misapprehending the evidence of the crown and defence witnesses when determining the credibility of the witnesses, and bymisapprehending the evidence of bad character of the accused; 3.

By rendering a verdict that is unreasonable and cannot be supported by the evidence, in particular, crucial relevant evidence that theJudge either failed to consider or did not give sufficient weight; 4. Failing to provide sufficient reasons to allow for meaningful appellate review on a crucial issue respecting the credibility of a defencewitness; 5.

Such further grounds of appeal that may arise from a review of the record. [17] In his written submissions, the appellant’s counsel submitted the third and fourth ground of appeal could be read as: That the Honourable Trial Judge erred in law by rendering a verdict that is unreasonable as he did not provide sufficient reasons to allowmeaningful appellate review, and either failed to consider or did not give sufficient weight to a crucial issue that was identified by theDefence, and that was an essential consideration when determining the credibility of the Crown and Defence witnesses. [18] The role of a

summary conviction appeal court was set out by Cromwell, J.A. as he then was, in giving the Court of Appeal’sjudgment in R. v. Nickerson, 1999 NSCA 168: [6] The scope of review of the trial court’s findings of fact by the

Summary Conviction Appeal Court is the same as on appeal againstconviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(

i) and R. v. Gillis (1981), (NS CA), 60 C.C.C. (2d) 169 (N.S.S.C.A.D.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice, the test to beapplied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported bythe evidence. As stated by the Supreme Court of Canada in R. v. Burns, (SCC), [1994] 1 S.C.R. 656 at 657, the appealcourt is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it isreasonably capable of supporting the trial judge’s conclusions. If it is, the

Summary Conviction Appeal Court is not entitled to substituteits view of the evidence for that of the trial judge. In short, a

summary conviction appeal on the record is an appeal; it is neither a simplereview to determine whether there was some evidence to support the trial judge’s conclusions nor a new trial on the transcript. [19] I will deal with the grounds of appeal in turn: Ground 1 [20] The appellant submits the trial judge erred in law by admitting evidence of bad character or propensity and did not cautionhimself respecting the use of the evidence. The evidence in question is of the incident which occurred on August 25, 2018 betweenJ.G.M. and Y.G. when Y.G. asked J.G.M. if he wanted a hug and J.G.M. put his head facing her breasts and made a slurping noise. Y.G.

stated she called J.G.M. an “asshole” and walked away. Y.G. testified she and J.G.M. are from the same area and “And down there, a lotof people do that, and they think it’s a big joke.” In her statement to police Y.G. did not tell the police she called J.G.M. an “asshole”. [21] J.G.M. denied the incident testifying when Y.G. hugged him his face was not in her breasts but rather was over her shoulder.The noise was J.G.M. taking a breath. He testified Y.G. did not call him an “asshole”. [22] The nature of bad character evidence was described by Watt J.A., in giving the Court’s judgment in R. v.

Moo, 2009 ONCA645 at para. 96: The second admissibility rule that the appellant invokes looks to the substance of the hearsay declarations, in particular their disclosureof the appellant’s bad character. The character rule generally prohibits the use of character evidence as circumstantial proof of conduct:R. v. Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908, at para. 31.

This exclusionary rule equally bars evidence of similar acts orextrinsic misconduct to support an inference that an accused has the propensity or disposition, in other words, character, to do the type ofacts charged and, accordingly, is guilty of the offence: Handy, at para. 31. We establish guilt by proof of conduct, not by proof ofcharacter. [23] Evidence of an accused’s discreditable conduct extrinsic to the charge before the Court has to go through the R. v. Handyframework of balancing the probative value versus the prejudicial effect.

The analysis is necessary to avoid the forbidden chain ofreasoning to infer guilt from general disposition or propensity based on the extrinsic discreditable conduct: R. v. Gareau, 2016 NSCA 75at para. 45; R. v. Taweel, 2015 NSCA 107 at paras. 68-74; and R. v. MRS, 2020 ONCA 667 at paras. 70-72. [24] Defence counsel objected to the evidence about the incident and the following exchange took place: MR. MAHONEY: Yes, thank you, one moment. I’m just wondering, we’re getting into character evidence here. THE COURT: No we’re not - MR.

MAHONEY: . . . or that - THE COURT: . . . she’s . . . he’s asking her what she thought about that. MR. MAHONEY: Yeah, about the whole incident itself. THE COURT: Yeah. MR. MAHONEY: How is this relevant to the events that happened later on? This shows bad . . . bad character evidence, saying he didsomething earlier in the day. It’s not really relevant to the situation that we’re talking about, nevertheless. I just . . . it . . . it’s . . . it’strying to draw down his character by this . . . this incident, which has nothing to do with the events that happened later in the evening.

THE COURT: She . . . he did not ask her what she thought of him, she (sic) said, “What did you think of this incident”? that’s what heasked her. MR. MAHONEY: But it’s the same . . . but it’s the same thing. She’s talking - THE COURT: No. MR. MAHONEY: . . . about an incident, that’s trying to draw bad character on J.G.M., it’s a . . . which is a . . . it’s irrelevant to the issuethat . . . that we’re dealing with, which is the subject of the charge. MR. NICHOLSON: Actually, Your Honour, if I could lead the witness a little bit, I’m not attempting to – THE COURT: I have no problems with that question.

We’ll see where it goes and if it’s . . . if I think it’s gonna go into bad character,I’ll deal with it, but at this point, I have no problems with that question, so go ahead. [25] The trial judge did not balance the probative value against the prejudicial effect of the evidence. The evidence showed J.G.M.to be a person who viewed the complainant in a sexualized manner which would invite the prohibited inference that J.G.M. is the type ofperson who would commit a sexual assault. I find the trial judge erred in law in not subjecting the evidence to a balancing of itsprobative value against its prejudicial effect.

Ground 2 [26] I dealt with the alleged “bad character” evidence in addressing the first ground of appeal. [27] The test as to how an appeal court is to deal with alleged misapprehension of evidence was address by Beveridge J.A. in givingthe Court’s judgment in R. v. J.C., 2018 NSCA 72 at paras. 49 and 50: [49] This Court summarized the law with respect to misapprehension of evidence in R. v.

Izzard, 2013 NSCA 88: [40] To obtain a remedy on appeal based on an allegation that a trial judge misapprehended the evidence, the appellant must show twothings: first, that the trial judge, in fact, misapprehended the evidence – that is, she failed to consider evidence relevant to a materialissue, was mistaken as to the substance of the evidence, or failed to give proper effect to evidence; and second, that the judge’smisapprehension was substantial, material and played an essential

part in the decision to convict (see R. v. Schrader, 2001 NSCA 20; R.v. Deviller, 2005 NSCA 71; R. v. D.D.S., 2006 NSCA 34). [50] Material errors made in the course of credibility determination on the path to conviction can be fatal (see R. v. C.L.Y., 2008 SCC 2;

R. v. P. (J), 2014 NSCA 29; leave to appeal denied, [2014] S.C.C.A. No. 255). [28] In his judgment the trial judge set out the evidence of the witnesses in paras. 26 to 49.

At para. 40 he sets out what he says isC.M.’s evidence of a conversation she had with Y.G. at around 2:00 a.m. on August 26, 2018: [40] At around 2:00, C.M. goes to YG’s room and YG says that she wants to go home and for some unexplained reason C.M. promptsYG with the question, “Did [J.G.M.] do something to you?” she was told by YG, “He tried to force my hand down on his private,” atwhich point [J.G.M.] comes out of the bedroom and he is confronted by YG who states, “Tell her what you did.

Tell her that you forcedmy hand on your privates.” The response by [J.G.M.], who has just been accused of sexual assault in front of his wife, was, “You’refucking crazy.” [29] C.M.’s evidence of the 2:00 a.m. conversation was as follows: A. Ah, we watched a show and went to sleep, and I’d say around 2:00 that morning, I could hear her calling my name and – Q. Yes. A. … so I – Q. So, tell the Court … take your time, and what happened then? A.

She call …when she called my name, I went out to see … she said, “Can you come here for a second?” and I went out and she was in… went back to the bedroom and I went in and she said, “I want to go home.” I said, “Okay, why, what’s wrong?” and she said, “I justwant to go home.” I said, “Are you feeling all right, do you need to go to the hospital?” and she said, “No, I just want to go home.” I said,“Well, what’s wrong, like talk to me.” And she looked out and I said, “What, what’s wrong?” She said, “It’s [J.G.M.]” I said, “[J.G.M.]do something to you?” She said, “Yeah.” I said, “Well, what, did he come out and …in his underwear, or did he come out with no clotheson, or what?” She said, “No, he tried to force my hand on his privates.” I … it took me for a loop, I just sat there in silence. … Q.

Yeah. Now, I think you mentioned that when Y was talking to you, I guess, in her bedroom saying she wanted to go home – A. Mm-hmm (affirmative\ Q. … okay, and you know, she told you that several times, you kept pressing her about what was wrong, right? A. Yes. Q. And it sounds like you then sa … asked her, “Was it [J.G.M.]?” is that … am I right about that? A. No, she looked out in the hallway and I said, “What? Is it something to do with [J.G.M.]?” Q. Okay, why did you do that? A. ‘Cause [J.G.M.] sometimes wakes up in the middle of the night, he doesn’t … he just walks out in the bedroom.

I don’t know if hewalked out with his underwear or whatever. [30] The trial judge misapprehended C.M.’s evidence in stating that “for some unexplained reason C.M. prompts Y.G. with thequestion, ‘Did [J.G.M.] do something to you?’” In her direct evidence C.M. testified in response to her question what’s wrong Y.G. said“It’s [J.G.M.]”.

There was a reason why C.M. asked “[J.G.M.] do something to you?” Y.G.’s statement “It’s [J.G.M]”. [31] The outcome of the trial depended on the trial judge’s assessment of credibility and reliability of the witnesses. [32] In this case as the accused J.G.M testified, the judge must assess his evidence as instructed in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. The trial judge set out the test to be applied.

Then at para. 50 the trial judge made the bald statement he didnot believe J.G.M.’s evidence and another at para. 51 that the evidence did not raise a reasonable doubt. [33] There are three reasons the trial judge gave for making his assessment of credibility. [34] First, both Y.G. and C.M. testified there was a specific allegation of sexual assault by Y.G. against J.G.M. at 2:00 a.m. . C.M.testified Y.G . said, “Tell her, tell her what you did, tell her how your forced my hand…tried to force my hand on your privates” and[J.G.M.] replied, “I didn’t do nothing wrong, you’re fucking crazy”.

J.G.M. said he did not learn what was being alleged until the nextmorning. The trial judge stated that glaring contradiction creates serious credibility issues for J.G.M. [35] Second, the trial judge accepts the bathroom door at the time of the assault was either closed, or if not closed, only opened acrack, which would not allow C.M. to see the interaction between Y.G. and J.G.M. as she testified. Y.G. testified the bathroom door wasclosed. C.M. said in a statement to the police the bathroom door was opened a crack and testified at the trial the door was open sixinches.

J.G.M. testified the bathroom door was open almost a foot. The judge added the fact C.M. could not, and did not, see whathappened was confirmed by her statement to police “I didn’t see it”. In her direct evidence C.M. testified the statement to the police “Ididn’t see it” referred to Y.G.’s hand go on J.G.M.’s privates. [36] Third, the trial judge raises the “troubling comments” by C.M. which is the evidence he misapprehended stating:

[58] The fact that C.M. could not and did not see what happened is confirmed by here statement to police where she stated, “I didn’t see it.” There are also the very troubling comments made by C.M. when she attends to YG at 2:00 in the morning. YG says she wants to go home, that she is not feeling well, yet C.M. almost immediately asks either, “Did [J.G.M.] do something to you?” or “Is it J.G.M, did he touch you?” and she attempts to explain making this comment by referring to the possibility of YG seeing [J.G.M.] in his underwear as he walked to the bathroom.

This is not a credible explanation for making such a statement. In this case, one of the three reasons given by the trial judge supporting his assessment of credibility of the witnesses was based on his misapprehension of the evidence. It is unknown what impact his misapprehension had on his assessment of C.M.’s credibility. He stated the misapprehended evidence was not a “credible explanation” for C.M.’s statement. The only part of C.M.’s evidence the trial judge accepted was that part which corroborated Y.G.’s evidence of the conversation at 2:00 a.m. .

C.M. also testified about the conversation between Y.G. and J.G.M. at the time of the alleged assault which was a live issue not addressed by the trial judge. The misapprehended evidence was an essential part of the trial judge’s reasons to convict. It was material in the course of his credibility determination. The trial judge’s misapprehension was an error in law. [ 37 ] I do not have to deal with the other grounds of appeal. I allow the appeal and order a new trial. Coughlan, J.