R. v. Downey, 2013 NSCA 101

Nova Scotia Court of Appeal Citation: R. v. Downey , 2013 NSCA 101 Date: 20130912 Docket: CAC 405797 Registry: Halifax Between: Samuel Otis Downey Appellant v. Her Majesty the Queen Respondent Restriction on Publication: 486 of the Criminal Code Judge: The Honourable Justice David P.S. Farrar Appeal Heard: May 28, 2013 Subject: Criminal Law. Sexual Assault. Assessment of Evidence.

Summary: The appellant was convicted of sexual assault. At the time of the appeal he had not yet been sentenced. During the trial judge’s assessment of the evidence, he presumed the complainant’s evidence was true unless contradicted. The appellant appealed arguing that the trial judge improperly assessed the evidence of the complainant which led him to conclude she was credible. Issues: Did the trial judge err in his assessment of evidence? Result: Appeal allowed.

The trial judge’s presumption that the complainant’s evidence was true unless contradicted was an error in law which infected his assessment of the complainant’s credibility. New trial ordered. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 8 pages. Nova Scotia Court of Appeal Citation: R. v. Downey , 2013 NSCA 101 Date: 20130912 Docket: CAC 405797 Registry: Halifax Between: Samuel Otis Downey Appellant

v. Her Majesty the Queen Respondent Restriction on Publication: 486 Criminal Code Judges: Beveridge, Farrar and Bryson, JJ.A. Appeal Heard: May 28, 2013, in Halifax, Nova Scotia Held: Appeal allowed and a new trial ordered per reasons for judgment of Farrar, J.A.; Beveridge and Bryson, JJ.A. concurring. Counsel: Roger A. Burrill, for the appellant Timothy S. O’Leary, for the respondent Order restricting publication ban - sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C 34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C 34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). Reasons for judgment: [ 1 ] On July 29, 2012, Provincial Court Judge Castor H. F. Williams convicted the appellant of unlawfully committing a sexual assault on O.G. contrary to s. 271(1) (

a) of the Criminal Code of Canada , R.S.C. 1985, c. C-46. [ 2 ] The appellant appeals, arguing that the trial judge committed legal error in his assessment of the credibility of the complainant. The appellant also alleges that the trial judge’s reasons (reported as 2012 NSPC 61 ) are unintelligible and deprive the appellant of meaningful appellate review. Evidence and Findings of Fact by the Trial Judge

[3] The complainant, O.G., was born on October 25, 1994, and was 15 years old at the time of the alleged sexual assault. [4] The trial judge summarized the evidence at trial as follows: [6] Basically, OG testified that on the night in question she was on her way to the local Recreation Centre to meet her cousin CT and towatch a basketball game. She casually knew SOD. This knowledge was based on his ownership of a distinctive gold coloured Cutlassmotor vehicle with Lamborghini-style doors that opened upwards. She associated him with this vehicle which she, on two or threeoccasions, had seen him driving.

However, the vehicle that he was driving on the night in question was a gold coloured 4-door Sunfire. Inaddition, she knew his children who also attended her school. [7] She could not explain her reasons for volitionally entering the vehicle of a semi-stranger when close to the security of her home.Nonetheless, on her entering the vehicle, SOD drove her to a secluded area. When he stopped his vehicle, he immediately started to touchand to grab her breasts. She told him to stop this activity and tried to push him away. Also, he climbed over the driver's seat and sat onher.

Her legs were closed and his knees were on either side of her legs. With one hand he held both of her hands above her head and withthe other he pulled down her pants and underwear to her knees and also his pants. In this position, and without her consent, he insertedhis penis into her vagina. Later, he dropped her off at the Recreation Centre. [8] CT is one of OG's cousins. She was waiting for OG at the Recreation Centre. She testified that she saw OG arrive in a gold four-door Sunfire car.

A man whom she did not know and whom she had not seen since that night, got out and opened the rear passenger sidedoor from which OG exited the vehicle. As well, she subsequently observed that OG was shaking and crying. OG eventually told herthat she had non-consensual sexual intercourse with SOD and that it was he who had dropped her off at the Recreation Centre. [9] AG is another cousin. He testified that OG texted him on the night in question. The text message was a query of whether it was,"rape if someone has sex with you without your consent?" He replied that it was rape and asked what had taken place.

He recalled thatshe did not want to inform her parents but eventually disclosed to him that SOD was the person involved. She was also reluctant to go tothe hospital but he persuaded her to do so and took her there four days after the alleged event. [5] After reciting the evidence, the trial judge concluded that the physical act of sexual intercourse, as described by thecomplainant, appeared to be physically improbable.

He, however, believed her testimony with respect to the act of non-consensualsexual touching, saying: [21] Even if I were to find that her narrative concerning the physical act of sexual intercourse, as she described it, appeared to bephysically improbable from a commonsensical point of view and which was never corrected to rehabilitate her credit on that point, thefact remained that she, nonetheless, described

an act of non-consensual sexual touching which was not contradicted. The degree of thetouching is immaterial. Thus, I think that there appears to be a rational connection between OG's contact with SOD, as she described, andthe observations made of her by her cousin, CT -- crying and shaking -- after she arrived at the Recreation Centre. (Emphasis mine) [6] He went on to convict the appellant of sexual assault concluding: [41] On the total evidence and on the above analyses I conclude and find as follows:

(1) Count 1 -- sexual assault of OG contrary to s. 271(1)(a). The intentional touching and grabbing of OG's breasts against her will in asexual manner and which interfered with her sexual integrity was a sexual assault. I therefore find SOD guilty of this offence as charged.

(2) Count 2 -- unlawful confinement of OG contrary to s. 279(2). The Crown has not proved this offence beyond a reasonable doubt. Itherefore find SOD not guilty as charged.

(3) Count 3 -- sexual touching of OG a person under the age of sixteen years contrary to s. 151. It is the same conduct that forms thebasis for the conviction and punishment under s. 271(1)(a). There is a factual and legal nexus between the offences. I will therefore applythe Kienapple rule (SCC), [1975] 1 S.C.R. 729, and enter a conditional stay on this count. [42] That is the decision of this court. Issues [7] The parties have described the issues differently in their facta. I will restate the issues as follows: 1. Did the trial judge err in assessing O.G.’s evidence? 2.

Are the trial judge’s reasons sufficient? 3. Did the trial judge err in the admissibility and use of prior consistent statements? [8] It is not necessary for me to address Issues #2 and #3 as it is my view that the trial judge erred in his assessment of theevidence of O.G. which requires a new trial. Standard of Review [9] There is no dispute about the standard of review. Simply put, when assessing the evidence the trial judge must haveinterpreted and applied the relevant law. Analysis

[ 10 ] The appellant says that the trial judge’s decision is frustrating and difficult to read and digest. I agree. However, as stated earlier, it is not necessary for me to address that issue as I am satisfied that the trial judge committed a fundamental error of law in his assessment of the evidence of the complainant. [ 11 ] His starting point was to consider or presume her evidence was true unless a reason arose to doubt it.

The trial judge said at ¶16: [16] In argument, both counsel submitted and strongly suggested that the main issue to be determined was one of the credibility and reliability of OG's narrative of the event. In R. v. O.J.M. [1998] N.S.J. No. 362 , concerning the credibility of witnesses, this Court opined para. 35 as follows: 35 ... Overall, a witness' statement is considered true until there is some particular reason to doubt it.

This may come about by circumstances of the inherent unreasonableness of the testimony itself, or by imputations extracted in cross-examination of the witness to infer , for example, the very incredibility of a fact that reveals obvious errors.

In addition, extrinsic evidence, or lack of it, may point to errors or inaccuracies in a witness' testimony and if never corrected to rehabilitate the credit of the witness, that testimony would have little or no probative value. (Emphasis mine) [ 12 ] The trial judge repeats this at ¶20 where he states: 20 I am reinforced in this view as overall her testimony is considered to be true .

This becomes pertinent as, here, in the absence of any evidence to the contrary or any other credible evidential opposing viewpoints, balancing and weighing her narrative solely on its own for its own credibility and reliability was at best tenuous as there were not available for analysis any discrepancies between versions of opposing sets of facts.

Further, in my view, the strong reliance on the inherent unreasonableness of one set of facts that revealed an obvious error that was never corrected, to sustain the total unreliability of her narrative, does not logically follow that all that OG related was untrue. (Emphasis mine) [ 13 ] Although somewhat confusing and difficult to understand, it appears the trial judge is accepting the complainant’s testimony as true if there is no presentation of contrary evidence from any other source with which to compare it. [ 14 ] Immediately following that paragraph he makes his finding that on the issue of sexual touching O.G. was credible and found as a fact that there was non-consensual sexual touching. [ 15 ] The trial judge’s statement that “overall her testimony is considered to be true” is simply wrong. [ 16 ] In R. v.

Thain , 2009 ONCA 223 the Ontario Court of Appeal reviewed a similar passage. The court stated at ¶18-19: 18 For ease of reference, I repeat here the impugned passage from the trial judge's reasons: The accused's credibility must be assessed bearing in mind that his explanation comes long after disclosure was available to him and having regard to the totality of the evidence. In the accused case [sic] I am not convinced that his evidence has not been influenced by his desire to extricate himself the situation [sic].

While any witness is presumed to tell the truth such a presumption can be displaced by inconsistencies, contradictions and the evidence as a whole . 19 In my respectful view, each of the three sentences in this passage contains a significant legal error . (Emphasis mine) [ 17 ] The Ontario Court of Appeal continued at ¶32: 32 Witnesses are not "presumed to tell the truth". The evidence of each witness is to be assessed in the light of the totality of the evidence without any presumptions except the general and over-riding presumption of innocence .

Perhaps a generous reading of the final sentence in the impugned passage could be that, as it was applied to the evidence of the accused, it somehow resurrected the presumption of innocence apparently ignored in the preceding sentence. However, as we are dealing here with basic and fundamental rights essential to a fair trial, I do not think it appropriate to salvage what appears to me to be a clear error with a strained and generous reading of this final sentence. (Emphasis mine) [ 18 ] It appears the trial judge here uses his erroneous presumption to buttress the credibility of the complainant.

He says: [ 19 ] Here, it seems to me that from OG's narrative, things were either what she said had occurred or they were not. Also, they neither were as she related it nor appeared to be or they were as she related it and do not appear to be. Further, they were not as she related it but appeared to be.

I say so as I find that through it all there was a sequence of events, as she described them, that were "in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions" and therefore evoked an air of reality . (Emphasis mine) [19] From this paragraph and the one that follows (¶20 cited above) the trial judge found that part of O.G.’s evidence evoked an “air of reality”. His view, that it had an air of reality, was reinforced by his presumption that O.

G.’s evidence was true until there was reason to doubt it; leading him to conclude that O.G.’s evidence of sexual touching was credible. [ 20 ] This was a significant legal error which infected the trial judge’s assessment of O.G.’s credibility. [ 21 ] The Crown concedes that the judge’s error was an error of law but asks us to invoke the curative provision in s. 686(1)(b)(iii)

of the Criminal Code which permits us to uphold a conviction despite an error of law committed by a trial judge where the error does not lead to a substantial wrong or miscarriage of justice. [ 22 ] This case turned on the credibility of O.G. The trial judge’s error goes to the very heart of the assessment of her credibility.

Without the acceptance of her testimony there is no basis upon which the appellant could have been convicted. [ 23 ] The curative provision is to be applied where it can be established that the legal error is harmless, in the sense that no prejudice occurred to the accused, or the evidence against the accused is so overwhelming that a trier of fact would inevitably convict (See R. v. Khan , 2001 SCC 86 , ¶26-31; R. v. Sarrazin , 2011 SCC 54 , ¶22-28. [ 24 ] In my view, this is not a proper case for the application of the provision. It cannot be said that the evidence against the appellant was overwhelming.

To the contrary, most of the evidence given by O.G. relating to what occurred was rejected by the trial judge, with the exception of the sexual touching which the trial judge said “was not contradicted” (¶21). [ 25 ] Nor could it be said that the error is harmless. It resulted in an improper assessment of the complainant’s testimony, leading the judge to conclude the evidence was credible which, in turn, led to the conviction of the appellant. It is hard to imagine an error that could be any more prejudicial to an accused. [ 26 ] For these reasons, I would allow the appeal and order a new trial.

Of course, whether the Crown chooses to proceed with a new trial remains entirely within its discretion. Farrar, J.A. Concurred in: Beveridge, J.A. Bryson, J.A.