R. v. J.E.W., 2013 NSCA 19

NOVA SCOTIA COURT OF APPEAL Citation: R. v. J.E.W., 2013 NSCA 19 Date: 20130213 Docket: CAC 396359 Registry: Halifax Between: J.E.W. Appellant v. Her Majesty the Queen Respondent Publication Ban: pursuant to s. 486.4 of the Criminal Code Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: February 1, 2013 Subject: Sexual Assault. Touching for a Sexual Purpose. Credibility. Corroboration. Proof Beyond a Reasonable Doubt. R.v. W.(D.), (SCC), [1991] 1 S.C.R. 742. Misapprehension of Evidence. Unreasonable Verdict. Miscarriage ofJustice.

Summary: The appellant appealed his conviction on a charge of touching for a sexual purpose. The complainant testified that whenshe was 13 years of age she and the appellant engaged in sexual activity ranging from kissing to attempted intercourse. Her frequentcontact with the appellant included several rendezvouses during the day when she skipped school to meet him at his apartment, or herown residence.

The appellant who testified in his own defence at trial, denied any physical contact and presented evidence through hisroommate as well as gym attendance records to show his limited opportunity to ever be with the complainant. He said the trial judgemisapprehended important evidence, and that his conviction was unreasonable, and a miscarriage of justice occurred, because the“uncontroverted evidence“ contained in school attendance records was “inconsistent” with the complainant’s testimony. Held: Appeal dismissed.

The trial judge’s comprehensive and thoughtful decision reflects a thorough understanding ofthe law and a proper application of relevant legal principles to the evidence and issues presented. There was no error in the manner inwhich the judge reviewed the evidence (or the defence challenges to it), in particular the absences reflected in the school attendancerecords. The Crown had a strong case and the judge found the appellant’s explanation behind the many, suggestive email texts they

exchanged, to be preposterous. The judge correctly applied the suggested 3-step approach when assessing all of the evidence, before ultimately deciding that the appellant’s guilt had been established beyond a reasonable doubt. The judge’s legal analysis was clear, complete and correct. The verdict was reasonable and sound. 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 9 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v.

J.E.W. , 2013 NSCA 19 Date: 20130213 Docket: CAC 396359 Registry: Halifax Between: J.E.W. Appellant v. Her Majesty the Queen Respondent Publication Ban: pursuant to s. 486.4 of the Criminal Code Judges: Saunders, Farrar and Bryson, JJ.A. Appeal Heard: February 1, 2013, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Saunders, J.A.; Farrar and Bryson, JJ.A. concurring Counsel: Elizabeth Buckle, for the appellant William D. Delaney, Q.C., for the respondent

Order restricting publication – 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 ] The appellant was charged that between June 29 and October 1, 2009, he sexually assaulted C.S., and touched her for a sexual purpose, contrary to ss. 271(1) (

a) and 151 of the Criminal Code of Canada , R.S.C. 1985, c. C-46, respectively. [ 2 ] At the trial before Nova Scotia Supreme Court Justice Robert W. Wright, C.S. testified that when she was 13 years of age she and the appellant engaged in sexual activity ranging from kissing to attempted intercourse.

She described frequent contact with the appellant, including several intimate rendezvous during the day when she skipped school to meet him at his apartment, or her own residence, when her mother was working. [ 3 ] The appellant who was 36 years of age when these offences were said to have occurred, testified in his own defence. He denied any physical contact, and presented evidence through his roommate as well as his gym attendance records to show his limited opportunity to ever be with the young girl. [ 4 ] Justice Wright rejected the appellant’s evidence and accepted the complainant’s testimony.

He convicted Mr. W. on the charge of touching C.S. for a sexual purpose. The second charge of sexual assault was conditionally stayed. He sentenced the appellant to six months’ incarceration followed by three years’ probation. [ 5 ] Mr. W. says the verdict ought to be set aside and a new trial ordered because the judge misapprehended important evidence. He says his conviction was unreasonable because the “uncontroverted evidence” contained in the school attendance records was “inconsistent” with the complainant’s testimony.

The appellant says the trial judge erred in assessing credibility by subjecting the defence evidence to a different and higher standard of proof which, effectively, shifted the onus to him. All of this, he says, led to a miscarriage of justice requiring this Court’s intervention. [ 6 ] After carefully considering the record and counsels’ submissions I would dismiss the appeal. [ 7 ] Justice Wright’s comprehensive and thoughtful decision reflects a thorough understanding of the law and a proper application of relevant legal principles to the evidence and issues presented.

The judge recognized that the crucial issue to be decided was credibility. He reminded himself that resolving that issue is never something reduced to a credibility contest between a complainant and

an accused. He instructed himself as to the law in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, and correctly applied thesuggested three-step approach when assessing all of the evidence, before ultimately deciding that the appellant’s guilt had beenestablished beyond a reasonable doubt. [8] Justice Wright painstakingly reviewed the material evidence. He recognized and reconciled whatever inconsistencies arosefrom the testimony of various witnesses, or the documentary record.

His reasons reflect the kind of careful and cautious level of scrutinythese very serious charges required. [9] On appeal the appellant places considerable emphasis on the school records which were introduced at trial by agreementshowing the three dates in September and October, 2009, when C.S. was marked absent.

These records were introduced with the caveatexpressed in writing that: In 2009 if a student attended for 20 minutes in the afternoon and then left, that absence would not be recorded. [10] The appellant says this annotation is inconsistent and irreconcilable with the complainant’s own testimony that she did not,ever, go back to school after lunch and report for attendance, and then leave. Thus, the appellant says that if C.S. skipped school to meethim as often as she said she did, the school attendance records could not possibly be accurate.

The appellant argues this discrepancy issignificant because it concerns the number of times the most serious allegations of sexual intimacy are said to have occurred. As statedin the appellant’s factum: A conclusion that one or more of those events could not have happened would have seriously undermined her credibility. As such, themisapprehension was significant in that it played an essential

part in the judge’s reasons accepting the evidence of the complainant andconvicted the Appellant. [11] I respectfully disagree. [12] To begin with, it seems to me that the thrust of the appellant’s submission overlooks the Crown’s obligation as concerns mattersof proof in a criminal trial. It is trite law to observe that while the Crown always has the burden of proving the essential elements of theoffence(

s) to a criminal standard, it is not required to prove every single piece of evidence beyond a reasonable doubt. A furtherweakness in the appellant’s argument is that it rests on several shaky assumptions. I will mention a few to illustrate my point. [13] First, the school records introduced at trial were never presented as an infallible, perfectly accurate representation of thecomplainant’s presence at school.

Plainly, it would be difficult to imagine any record-keeping system in such an environment that couldboast such a claim. [14] A second dubious assumption is the suggestion that the school attendance records would record, in the same fashion, anunexcused absence from school, as contrasted with an absence due to illness. That “fact” was never established at trial. C.S. testifiedthat with respect to two of her absences from school in September and October, 2009 to meet with Mr.

W. during the day, she hadclaimed to be sick. [15] Further, the appellant assumes that when the computer print-outs indicate a student has been marked absent, this necessarilycorresponds to the student’s actual absences from school. Such confident reliance is belied by the complainant’s answers during hercross-examination where we see this exchange: THE CLERK: Exhibit 4 will be the school attendance sheet entered. MS. BUCKLE: Thank you. THE COURT: Mm-hmm. EXHIBIT 4 – SCHOOL ATTENDANCE SHEET (MARKED AND ENTERED) MS.

BUCKLE: The school records you absent for one afternoon on September 11th, one afternoon on September 30th, and for a full day on October 6th. A. Okay Q. So those are the only times you were marked absent during the period that we’re speaking about. A. Okay. Q. Okay. So you would agree that if you were absent as many times as you’ve testified you were absent, the school recordcouldn’t possibly be accurate. A. Yes and no, because like I said, they didn’t always call home in the afternoon.

So sometimes they wouldn’t record it, andin the mornings we have a way of going in for attendance and leaving. ... [16] In my opinion, it is a fair inference from the evidence of the complainant that at least as far as the students at the school wereconcerned, there were ways in which they could skip school without their absence being recorded. [17] Justice Wright was alive to the fact that the absences noted in the school attendance records did not necessarily match up withC.S.’s testimony.

In my respectful opinion, the judge did not misapprehend the evidence contained in the school records or counsels’admissions related to them. On the whole of the evidence it was certainly open to Justice Wright to infer that in keeping attendancerecords, absences were not always rigorously and scrupulously recorded. On the evidence here it certainly appears to me that C.S. could

spend part of a day away from school without the record reflecting her absence. Overall, I see no error in the manner in which the trial judge addressed the inconsistences raised by the defence, or his choosing to characterize them as relating “more to secondary details” than to critical elements of the charge(s). [ 18 ] The Crown had a strong case. The evidence revealed that when suspicions first arose that Mr. W. was spending too much time (in person or on line) with the complainant, he was cautioned by his sister-in-law to keep his distance.

C.S.’s mother warned him to stay away from her daughter after she discovered a text message on her daughter’s Facebook page, signed by him, which read, in part, as she recalled: I want to help you grow into a beautiful butterfly. I want to help you grow. God damn it, why can’t you hurry up and grow up? I have a love, but I just can’t have her yet. ....

After being confronted with this highly suggestive lyric, the appellant once again sought to excuse his errant missive with the protest that his e-mail had been intended for C*****i, another more mature girlfriend in his orbit. [ 19 ] In his decision the judge described C.S. as “composed”, “forthright”, “candid” and “honest”. The complainant’s testimony that Mr. W. had sent her a nude photograph of himself was confirmed by her friend S.T. who testified that she had seen the same photograph on C.S.’s cell phone when they attended Bible camp together one summer.

Further, the complainant’s evidence that she had taken a photograph on her cell phone showing she and the appellant kissing, was corroborated by her mother’s evidence at trial. [ 20 ] Justice Wright made particular reference to the corroboration provided by these witnesses in his reasons. He said: Further corroboration of the complainant’s evidence can be drawn from the evidence of her mother and [S.T.] [ P.S.] (the mother) gave her evidence in a direct and forthright manner, also without embellishment or vindictiveness.

I accept her evidence about the content of the Facebook message she saw and what she did about it as well as the picture she was eventually shown by her daughter, of her kissing with the accused. That picture is also indicative of an earlier illicit relationship with the accused. The same can be said about the nude picture shown by (the complainant) on her Blackberry screen to her friend, [S.T.], while they were away at camp. [S.T.] presented herself as a very credible witness in giving her evidence about being shown the picture, which shocked her, and what she could remember of it.

I have no reason, from observing this witness, to suspect any collusion between her and the complainant. [ 21 ] The defence position at trial was that none of the alleged unlawful conduct had ever occurred and that the complainant’s testimony should be discredited because the appellant was too busy to have ever had the time to meet her for illicit sexual encounters. [ 22 ] Mr.

W. described the long hours he worked as a bartender and bar manager; his almost daily gym workouts; the time he spent looking after his own daughter; as well as his many other responsibilities including having to take his roommate to a variety of appointments. None of this impressed Justice Wright. I would add, parenthetically, that the gym records introduced by the appellant provide an automatic, electronic log of the times Mr. W. used his swipe card to enter the facility.

The records do not suggest anything close to an alibi for the times in September and October, 2009 when C.S. testified she skipped school to meet at his apartment, or her own residence. On the contrary, the September 11, 2009 log shows that Mr. W. entered the gym at 10:39 a.m. Exhibit 4 shows C.S. absent from school that afternoon. The September 30, 2009 log shows that the appellant entered the facility at 12:20 p.m. Exhibit 4 shows C.S. absent from school that afternoon. Exhibit 4 shows C.S. being absent from school all day, October 6, 2009.

The appellant’s gym records indicate that he worked out on October 5th, and again on October 7 th but not at all on October 6 th . [ 23 ] The judge also absolutely rejected Mr. W.’s testimony when he tried to explain the ten transcribed text exchanges between his cell phone and the complainant’s cell phone in the early morning hours of March 13, 2010. Mr. W. said he thought he was communicating with one or more former girlfriends at the time and never really confirmed in his own mind, until several hours later, that he might in fact have been texting (innocently and mistakenly) the complainant.

Justice Wright considered the appellant’s explanation to be preposterous. In his decision the judge remarked: In applying these considerations to my assessment of the credibility of the accused, I begin with his evidence concerning the text exchanges between his cell phone and that of [C.S.]’s cell phone in the wee hours of March 13, 2010. I have carefully read the transcript of those ten saved texts which are set out in Exhibit 2 and I’ve compared them with his explanation that he initially thought it was his friend, [J.] on the other end.

There are perhaps two or three of these messages where the accused’s explanations might fly. However, the rest of them, both individually and collectively, point in only one direction and that is that the accused well knew he was texting with [C.S.] throughout those exchanges. His messages as to his dual places of employment, well wishes for a good trip, having to wait four years or so for this girl, directing immediate deletion of suggesting they hang out together and asking twice to be texted when you get back, are all inconsistent with being directed towards anyone but [C.S.].

Each and every one of them is completely consistent with having been knowingly sent to [C.S.]. I find the accused’s explanation for these text messages to be totally implausible. That he thought he was texting with his friend, [J.] to suggest that they go for a walk at three o’clock in the morning in the month of March at a time when she was said to have been started seeing another friend of his. There’s no doubt in my mind whatsoever that the accused knew he was texting [C.S.] throughout and that he was lying to the Court in trying to explain otherwise.

Neither am I satisfied with the explanation of the accused concerning the Facebook message sent to [C.] in late August of ’09. The gist of that message, as recounted by [P.S.], and as only a mother would remember and act upon, is consistent with a person of [C.]’s age. It is not consistent with an adult woman, even at age 20 or 21, with whom the accused said he had a fleeting relationship that summer, consisting of three nights over a two-week period. The accused’s discredited testimony about the Exhibit 2 text messages in particular casts a pall over the rest of his testimony at trial. ...

In pressing this theory of lack of opportunity, the accused did stick to his story throughout but to the point of creating the impression with the Court that he had carefully rehearsed his answers, launching as he sometimes did into a tangential answer, beyond the scope of the question asked. There were simply too many facile explanations, too many self-serving details added and too many coincidences

permeating his testimony. When those observations are added to the Court’s finding that the accused has outright lied about his text message exchanges with [C.] transcribed in Exhibit 2, I conclude that Mr. [W.]’ testimony overall is not worthy of belief. [ 24 ] After making such strong findings, Wright J. reminded himself: That, however, is not the end of the legal analysis.

Although I am not left in doubt by the evidence of the accused, I must go on to ask myself whether, on the basis of all the evidence that I do accept, I’m convinced beyond a reasonable doubt by that evidence of the guilt of the accused. ... [ 25 ] He then subjected the balance of the evidence, including the complainant’s own testimony, to the requisite level of careful and cautious scrutiny before satisfying himself that the Crown had proven its case beyond a reasonable doubt.

In doing so, he did not err. [ 26 ] In arriving at his verdict, there was no misapprehension of evidence leading to a miscarriage of justice. There was no flaw in reasoning suggesting that the verdict was unreasonable. The judge did not err in his assessment of credibility, or in his application of the standard and burden of proof. [ 27 ] Finally, it cannot be seriously suggested that there are any similarities between the facts of this case and the errors which prompted our setting aside the conviction and ordering a new trial in R. v. J.M.M. , 2012 NSCA 70 .

Conclusion [ 28 ] Justice Wright’s legal analysis is clear, complete and correct. His verdict is reasonable and sound. There is nothing here which would warrant our intervention. I would dismiss the appeal. Saunders, J.A. Concurred in: Farrar, J.A. Bryson, J.A.