)) HER MAJESTY THE QUEEN Appellant – v. –, 2017 ONSC 6900

CITATION: R. v. Pall, 2017 ONSC 6900 COURT FILE NO.: 116/16 DATE: 20171117 SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL TORONTO REGION BETWEEN: )) HER MAJESTY THE QUEEN Appellant – and – MARK PALL Respondent )))))))) ) ) Martin Sabat, for the Appellant Frank Bernhardt, for the Respondent HEARD: October 16, 2017 Subject to any further Order by a Court of competent jurisdiction, an Order has been madein this proceeding directing that the identity of the complainant and any information thatcould disclose such identity shall not be published in any document or broadcast in any waypursuant to s. 486.4 of the Criminal Code of Canada. byrne J.

REASONS FOR DECISION [1] On November 26, 2016, after trial in the Ontario Court of Justice, the respondent, Mark Pall, was acquitted on two counts ofsexual assault and one count of voyeurism. [2] The Crown appeals that acquittal and submits that the trial judge erred by:

(1) Misapprehending the evidence;

(2) Relying on Inadmissible Evidence; and

(3) Inappropriately interpreting section 162(1) of the Criminal Code. ANALYSIS Misapprehension of Evidence [3] A misapprehension of the evidence may relate to a failure to consider the evidence relevant to a material issue, a mistake asto the substance of the evidence, or a failure to give proper effect to evidence. To set aside a conviction on the basis that the trial judgemisapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather thandetail, they must be material rather than peripheral to the judge’s reasoning and the alleged errors must play an essential

part in thereasoning process, not just the narrative. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does notconstitute a reversible error. R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2 R .v .Morrisseym (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at paras. 83, 93 R. v. T(T), 2009 ONCA 613, [2009] O.J. No 3388, at para. 33 [4] The Supreme Court of Canada noted that an appellate court cannot order a new trial on this basis unless the trial judge has

committed a real error. The plain language of the reasons must disclose an actual mistake, as opposed to a speculative mistake. The review should focus on the overall thrust of the reasoning and should not be a microscopic examination of the reasons of the trial judge. R. v. Sinclair , 2011 SCC 40 , [2011] 3 S.C.R. 3, at paras. 53 , 54, 56 [ 5 ] Further, the inferences a trial judge draws from the evidence are accorded deference.

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. A trial judge’s findings with respect to credibility are accorded a high degree of deference. [ 6 ] The Crown submits that the trial judge made four distinct errors amounting t0 misapprehension of the evidence. I will deal with each of them individually.

(1) The trial judge misapprehended the evidence of Ms. H and the Crown’s position in relation to the forced violent oral sex. [ 7 ] In this case, the allegation was that the complainant was sexually assaulted multiple times throughout the course of the evening. It was alleged that some of those sexual assaults took place in the presence of the witness Mr. Gangadeen and some did not. [ 8 ] The Crown contends that the trial judge failed to take into account the entire sequence of events that unfolded on the night in question.

He suggests that the trial judge focused in on only those allegations when the witness was present and failed to consider the allegations of sexual assault after the witness left the apartment. [ 9 ] I disagree. And here is why. [ 10 ] When the judgment is read as whole, as it should be, it is clear that the trial judge was alive to the entire sequence of events and fully considered them in reaching his ultimate judgment.

Moreover, the trial judge sought clarification on the breakdown of the allegations from the trial Crown during submissions in an effort to ensure he had a complete understanding. [ 11 ] Crown counsel submits that the trial judge misapprehended the complainant’s evidence when he stated that she was perfectly happy and desirous of engaging in sexual intercourse with the respondent. The Crown argues that the complainant only offered to have sexual intercourse with the respondent to stop him from attacking her. [ 12 ] I disagree.

On my review of the evidence, the complainant provided two reasons for offering to have sex with the respondent. First, because she wanted to. The second reason was so that he would stop hitting her and leave. The trial judge was not quoting the complainant’s testimony when he said she was happy and desirous of engaging in sexual intercourse. The trial judge was simply stating his impression of her evidence. It was open for him to do so. [ 13 ] I find no error and no basis to interfere.

(2) The trial judge misapprehended the evidence of Mr. H’s apology to the respondent. [ 14 ] Crown counsel argues that the trial judge misapprehended the evidence when he stated in his review of the evidence that the complainant said “she began to apologize to him as she felt she had done something wrong.” [ 15 ] I disagree. This reference was almost a direct quote from the complainant’s evidence-in-chief where she stated: And at that point, I felt like he was slapping me because I was doing something wrong. So I was apologizing and he was getting really really violent at this point…. (Transcript, August 16, 2016 page 33 line 14) [ 16 ] I find no error and no basis to interfere.

(3) The trial judge misapprehended the evidence and made inappropriate inferences in relation to the issue of injury. [ 17 ] Crown counsel argues that the trial judge ignored and minimized the injuries of the complainant, and drew improper inferences from the lack of visual injury. I disagree. It is clear from the trial judge’s recitation of the facts that he was keenly aware of the allegations of physical assault and the alleged injuries that flowed from it.

It was open to the trial judge to find that the lack of visual injury was inconsistent with the serious assault that the complainant alleged had taken place. [ 18 ] Crown counsel further argues that the trial judge failed to consider the evidence of witness Daisy Imalingat. Ms. Imalingat’s testimony suffered from a number of inconsistencies. She testified that she observed the redness on the complainant’s face. She testified that she made this observation after the complainant had been crying. She also testified she could not remember any injuries on the complainant’s face. [ 19 ] The trial judge found that Ms.

Imalingat did not observe any visible injury on the complainant. In my view, it was open to him do so based on the evidence. While I agree he could have been more fulsome in his explanation, it does not amount to an error which would justify interference.

(4) The trial judge misapprehended the evidence in relation to the issue of consent to the videotape of the sexual activity. [ 20 ] Crown counsel submits that the trial judge misstated the evidence of the complainant in relation to the videotaping when he found that Ms. H was “aware of the cellphone and its use while in the presence of a third person.” [ 21 ] In my review of the evidence, the complainant agreed that she was aware that the respondent may have been photographing or

videotaping the activities. [ 22 ] It was clearly open to the trial judge to make the findings he did based on the evidence that was before him. [ 23 ] I find no error and no basis to interfere. Relying on Inadmissible Evidence [ 24 ] At trial, the Crown entered a QuickTime movie as part of the body of evidence it wanted the Court to rely upon. The QuickTime movie was put in during the examination-in-chief of Sgt. Zambri at which time the Crown indicated that the video was about 2 minutes in length and 30 seconds long.

The QuickTime movie, along with number of other still images referenced, were contained in Exhibit 9. [ 25 ] In his judgment the trial judge referred to the QuickTime movie as follows: Although the QTMs were entered as an exhibit, she was never really taken through the 20 or so minutes that are shown. Her testimony would suggest that the video was taken near the beginning of the evening when Josh was present, rather than at the end when he was not present. But that was never clarified.

The QTM’s speak for themselves. [ 26 ] Crown counsel submits that the trial judge was not entitled to view the entire 20 minutes of video and fell into error by doing so. [ 27 ] I disagree. And here is why. [ 28 ] When the QTM was made an exhibit, it was never indicated to the trial judge that he should restrict himself to a specific portion.

Absent a specific limiting instruction, of which there was none, when an item is made an exhibit, a trial judge is obligated to consider it in its entirety. [ 29 ] I am told that Exhibit 9 contains two still images, and 3 videos including the 2 minute and 30 second video that was played in court. Of the two remaining video’s, one depicts the complainant and respondent engaged in sexual activity that was not the subject of the trial proper.

The other depicts sexual activity between an unknown male and unknown female. [ 30 ] The Crown contends that because these extra videos factored significantly into the trial findings he fell into error. [ 31 ] I disagree. Here is why. [ 32 ] The first video amounts to prior sexual activity and by its very nature would be the subject of an s. 276 application to determine admissibility. I am not convinced, nor is there any evidence to suggest, that this very experienced trial judge viewed and applied the contents of the video for this improper purpose.

The second video was entirely irrelevant and had no evidentiary value at all to the trial proper. Despite the fact that the trial judge viewed the material, through no fault of his own, I am not satisfied that it factored into his judgment in any material way. [ 33 ] I find no basis to interfere.

Interpretation of Section 162(1) of the Criminal Code [ 34 ]

Section 162 of the Criminal Code creates the offence of voyeurism that is committed by surreptitiously observing a person in circumstances that give rise to a reasonable expectation of privacy. The

section allows two routes to conviction, surreptitious observation or surreptitiously making a visual recording. [ 35 ] The word surreptitious means secretive, clandestine, or unnoticed. [ 36 ] Crown counsel submits that the trial judge only considered whether the respondent surreptitiously observed the complainant and failed to consider whether he surreptitiously made a visual recording, and in doing so, fell into error [ 37 ] I disagree. [ 38 ] The trial judge concluded the maker of the QTM was not surreptitiously observing.

He also, however, found that the maker of the QTM was actively participating in the sexual activity filmed. Actively participating is the opposite of something done surreptitiously or secretly. Moreover, the trial judge found that the complainant was aware of the cell phone and its use in the presence of a third party. I am well satisfied that the trial judge did consider all elements of the offence and in his finding the Crown fell short of proof beyond a reasonable doubt justified. [ 39 ] I find no error and no basis to interfere. Conclusion [ 40 ] For the reasons stated, the appeal is dismissed.

Byrne J. Released: November 17, 2017 CITATION : R. v. Pall, 2017 ONSC 6900 COURT FILE NO.: 116/16 DATE: 20171117 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Appellant – and – MARK PALL Respondent REASONS FOR DECISION BYRNE, J. Released: November 17, 2017