R. v. A.G.

L’Heureux-Dubé J. -- I concur with Arbour J.’s analysis and application of s. 686(1) (a)(i) of the Criminal Code , R.S.C., 1985, c. C-46 , in dismissing this appeal, thereby upholding the trial judge’s verdict as affirmed by the majority in the Court of Appeal ((1998), 130 C.C.C. (3d) 30). Regarding the comments made in dissent in the Court of Appeal, reproduced at paras. 23, 24 and 28 of Arbour J.’s reasons, I think it is important to add that the justification for the law as it stands today is the need to affirm the principles of equality and human dignity in our criminal law by addressing the problem of myths and stereotypes about complainants in sexual assault cases.

This Court has repeatedly held that myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function. (See R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 604 and 630, per McLachlin J., and at p. 651, per L’Heureux-Dubé J. dissenting in part; R. v. Osolin, [1993] 4 S.C.R. 595, at p. 670, per Cory J.; R. v. Esau, [1997] 2 S.C.R. 777, at para. 82, per McLachlin J.; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 29, per L’Heureux-Dubé and McLachlin JJ.; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 91-99, per L’Heureux-Dubé J.; R. v. W. (G.), [1999] 3 S.C.R. 597, at para. 29, per L’Heureux-Dubé J.)

Our Court has rejected the notion that complainants in sexual assault cases have a higher tendency than other complainants to fabricate stories based on “ulterior motives” and are therefore less worthy of belief. Neither the law, nor judicial experience, nor social science research supports this generalization. (See Seaboyer, supra, at pp. 652 and 690, per L’Heureux-Dubé J., dissenting in part; R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 134; R. v. François, [1994] 2 S.C.R. 827; W. (G.), supra; A. McGillivray, “R. v. Bauder: Seductive Children, Safe Rapists, and Other Justice Tales” (1998), 25 Man. L.J. 359, at p. 381; M. Burt, “Rape Myths and Acquaintance Rape”, in A. Parrot and L. Bechhofer, eds., Acquaintance Rape: The Hidden Crime (1991), 26, at p. 28; L. Holmstrom and A. Burgess, The Victim of Rape: Institutional Reactions (1983), at pp. 174-79.)

Similarly, it is not the law that violations of sexual integrity of the type at issue in this case may be properly characterized as “horseplay”. (See s. 271 of the Criminal Code as it has been interpreted, for example, in R. v. Chase, [1987] 2 S.C.R. 293, at p. 302; and R. v. V. (K.B.) (1992), 13 C.R. (4th) 87 (Ont. C.A.), aff’d [1993] 2 S.C.R. 857.)

On the basis of Arbour J.’s analysis, and in light of the above considerations, I therefore agree that nothing in the dissenting reasons in the Court of Appeal demonstrated an appreciation of the facts that would make the trial judge’s conclusions unreasonable.

The judgment of Iacobucci, Major, Bastarache, Binnie and Arbour JJ. was delivered by

Arbour J. --

This appeal was heard together with R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, and R. v. Molodowic, [2000] 1 S.C.R. 420, 2000 SCC 16. In this trilogy, the Court was asked to reconsider its decision in R. v. Yebes, [1987] 2 S.C.R. 168, and, in particular, to decide two issues of general application. First, whether the reasonableness of a verdict involves a question of law, within the meaning of ss. 691 and 693 of the Criminal Code , R.S.C., 1985, c. C-46 , so as to permit a further appeal to this Court from a decision by a provincial appellate court, and, second, what standard of review must be applied by the reviewing court in examining the reasonableness of a verdict. I concluded in Biniaris that Yebes should be reaffirmed. A dissent on the issue of whether the verdict was reasonable is a dissent on a question of law, whether the dissent is based on the articulation of the applicable test or on its actual application to the particular circumstances of the case. The proper test is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered” (Yebes, supra, at p. 185). In embarking on the exercise mandated by s. 686(1) (a)(i) of the Criminal Code , the reviewing court must engage in a thorough re-examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one. Inevitably the verdict will be one that was open to the jury, in the sense that it was not an error of law for the trial judge to leave it to the jury for consideration. Moreover, it is not sufficient for the reviewing judge to simply take a different view of the evidence than the jury did. The appeal court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence. This is what must now be done in this case.

The appellant was convicted of having sexually assaulted his young niece, who was then between six and eight years old, between December 1986 and March 1988. The complainant did not disclose the incidents which led to the charges until 1993 or 1994, when she confided in a school friend named Nancy. However, it was not until 1995 that she told her mother, who then revealed the matter to the authorities.

The complainant was 16 years old when she testified. She said that on three separate occasions in the period of time alleged, the appellant touched and rubbed her vagina on the outside of her clothing while she was seated. She testified that all three incidents occurred during family visits. The first two incidents occurred on a red couch in the basement of the appellant’s house. On the second occasion, she said that the appellant asked her whether the rubbing “felt good”. According to her evidence, the third incident occurred in the den in the complainant’s home.

The complainant was asked to explain the circumstances which led to the late disclosure of these assaults. She explained that she had not told anyone about the appellant’s actions prior to telling her friend Nancy because she felt confused and did not understand what had happened to her. On cross-examination, she further explained that she and Nancy had shared their experiences, the other girl having told the complainant about being raped by a cousin’s husband.

In July of 1995, in the course of a conversation, the complainant’s mother told her that the appellant did not approve of her friend Nancy and thought that she was a “bad influence” on her. Her mother also told her that there were rumours about the appellant having acted improperly toward other girls. She instructed her not to let the appellant into their home if she or the complainant’s father were not present. The complainant testified that she was prompted to disclose the alleged assaults to her mother by her fear and concern that her failure to do so earlier had exposed other girls to harm.

The complainant was taken by her mother to see their family doctor who recommended that the complainant see a psychiatrist and contacted the Children’s Aid Society. The Children’s Aid Society in turn referred the matter to the police.

III. Proceedings and Judgments Below

A. Ontario Court (Provincial Division), [1996] O.J. No. 4981 (QL)

The appellant was arrested and charged with one count of sexual interference and one count of sexual assault contrary, respectively, to ss. 151 and 271 of the Criminal Code . He was tried before Flaherty Prov. J.

The complainant and her mother gave evidence for the Crown, as summarized above. The appellant denied the charges. He testified that the red couch had not been in his basement at any time during the period stated in the information because renovations were then taking place in the house. Further, he said that he had never been in a room in his house or in the complainant’s house with her, in the absence of another adult. His wife, on the other hand, admitted in cross-examination that it was possible that there were occasions when her husband might have been alone with the complainant and one or more of the other children.

Defence counsel suggested, pointing to the circumstances in which the complainant disclosed the allegations to her mother, that the complainant had a motive to lie and fabricate her evidence. Specifically, defence counsel argued that the complainant wanted revenge against the appellant for his comments to her mother about her friend Nancy.

The trial judge convicted the appellant of sexual assault, and acquitted him of sexual interference because the conviction on the former count “preclude[d] a finding of guilt for sexual interference based on the same conduct” (para. 29). The appellant was sentenced to five months’ imprisonment and three years’ probation.

Flaherty Prov. J. was alive to the problems which arise in so-called oath-against-oath trials. He also acknowledged the problems faced by a defendant who is confronted with allegations of sexual impropriety relating to his alleged conduct seven or eight years prior to the trial. He noted that it was not incumbent upon the appellant to establish either that the complainant’s evidence had been or could be fabricated. Bearing all this in mind, the trial judge embarked on a detailed review of the evidence, and addressed the various submissions of the defence pointing to the reasons why the complainant should not be believed. In the end, the trial judge was satisfied beyond a reasonable doubt that the appellant had sexually assaulted the complainant.

The trial judge rejected any suggestion of improper motive or fabrication. He noted, for example, that the complainant’s delay in disclosing the alleged assaults could be explained by the combination of her young age and the authoritative position that the appellant occupied in her life. Further, he found the complainant to be a credible witness and accepted her testimony that she had not reacted strongly or in a highly emotional manner to the appellant’s suggestion that her friend Nancy was a “bad influence”.

The trial judge did not believe that the contradictory testimony in relation to the red couch was significant because it “relate[d] to the where of the offence as recounted by a six or seven-year-old as opposed to the what and the who, the who did-it and what-was-done to her by him” (para. 26). He stated that he was considering the evidence in relation to the red couch in accordance with the “common sense approach” to children’s evidence prescribed by this Court in R. v. B. (G.), [1990] 2 S.C.R. 57.

Finally, Flaherty Prov. J. rejected the appellant’s claim that he had never been with the complainant in the absence of another adult as “unlikely” (para. 27). He found that the dynamics of the family visits presented sufficient opportunity for the commission of the alleged assaults.

Labrosse J.A. dismissed the appeal against conviction but set aside the sentence imposed by Flaherty Prov. J. and substituted a conditional sentence of five months pursuant to s. 742.1 of the Criminal Code .

Labrosse J.A. agreed with defence counsel’s concession that, applying the test articulated by this Court in Corbett v. The Queen, [1975] 2 S.C.R. 275, and clarified in Yebes, supra, the verdict was reasonable. Approaching the evidence before him with deference to the trial judge’s findings of credibility, he was of the opinion that there was no manifest reason to doubt the reliability of the complainant’s testimony. The complainant had not made allegations of a bizarre nature and it had not been shown that her testimony lacked internal consistency. Further, Labrosse J.A. placed little significance on the contradictory testimony regarding the location of the red couch. In so doing, he stated that he was relying on the comments of this Court in R. v. W. (R.), [1992] 2 S.C.R. 122, concerning the significance which is properly attributed to inconsistencies in relation to peripheral matters, such as time and location, when assessing the reasonableness of a verdict founded on the testimony of children.

In concluding his analysis of the reasonableness of the verdict, Labrosse J.A. noted his disagreement with Finlayson J.A.’s reasons for holding that the verdict was unreasonable and rejected the position that recent amendments to s. 271 of the Criminal Code , which permit the Crown to prosecute sexual assault offences by way of summary conviction, and/or the other factors identified by Finlayson J.A. justify an expanded standard of appellate review.

While suggesting that he was not attempting to expand the definition of “unreasonable” within the meaning of s. 686(1) (a)(i) of the Criminal Code , Finlayson J.A. stated that he was “entitled to take a subjective view of the evidence and ask myself if I am satisfied that the verdict is safe” (p. 41). He stated that he was not satisfied. There were three bases for this conclusion.

First, Finlayson J.A. identified aspects of the evidence which he believed should have caused the trial judge to approach the complainant’s evidence with skepticism. He wrote (at pp. 41-42):

There is not the remotest of supporting evidence that any sexual acts took place. Indeed the only objective evidence, that of the location of the red couch, contradicts the complainant. The sexual acts are highly ambiguous coming as they do from an uncle and “godfather” to the young girl. Any form of “horseplay” could explain them. Giving the most generous interpretation to the acts as described by the complainant, they are hardly consistent with intent to commit a sexual assault. Even the trial judge noted that at the time of their occurrence, the complainant did not know what the touchings meant. The evidence is very much open to the construction that the [accused] could have had some incidental contact with the girl that was entirely innocent.

There is no pattern of abuse here. The [accused] must have had more than three opportunities to abuse the girl if he was of a mind to. No explanation is offered for the fact that the assaults simply ceased.

Secondly, relying on a decade’s worth of experience with sexual abuse cases, he expressed concern that the case before him “fit a pattern of allegations of sexual abuse that are initiated by ulterior motives” (p. 42). He labeled cases fitting this pattern “historical sexual abuse cases”, noting that they commonly involve allegations that are stale-dated and of a vague and unsubstantiated nature with the result that “it is impossible for the person accused to give a detailed rebuttal to them without arousing suspicion as to why his memory is so precise” (p. 42). Finlayson J.A. noted (at p. 42):

On the darker side, the evidence is not inconsistent with the [accused’s] contention that the complainant had a motive to fabricate, given the [accused’s] concerns regarding her friendship with Nancy.

Further, he was of the opinion that an ulterior motive for the allegations made against the appellant could also be traced to the complainant’s mother’s dislike for the appellant. According to Finlayson J.A., it was the complainant’s mother who was responsible for “orchestrat[ing] the prosecution” (p. 41).

Finally, Finlayson J.A. expressed concern that the erosion and abolition of many traditional protections accorded to the accused in sexual assault cases threaten to render the concept of reasonable doubt a “hollow invocation, rather than the shield against injustice” (p. 43). For example, he pointed to the unavailability of a preliminary inquiry where the Crown elects to proceed by way of summary conviction under s. 271(1)(b) of the Code and Crown counsels’ failure, in an era of “zero tolerance”, to exercise prosecutorial discretion in “weak cases”. According to Finlayson J.A., it is incumbent upon the trial judge to act as the criminal courts’ new gatekeeper, safeguarding the principle of reasonable doubt. It was his opinion that Flaherty Prov. J. had failed to do so. At p. 43 he wrote:

The trial judge was prepared to convict the [accused] on the flimsiest of evidence. This complaint should not have gone to trial, much less have led to a conviction. I do not require any expanded version of “unreasonable” to justify interference with this verdict. Where the trial judge convicts on evidence such as this record displays, the Court of Appeal has more than the right, it has the duty to interfere and, in the interests of justice, quash the verdict as unreasonable.

The principles governing the disposition of this appeal are set out in the reasons given in Biniaris, supra, and need not be repeated here. Further, given my agreement with the reasons of Labrosse J.A. for concluding that the verdict is reasonable and supported by the evidence, I do not believe that it is necessary to repeat his review of the applicable legal principles or his examination of the evidence that was before Flaherty Prov. J. However, the dissenting reasons of Finlayson J.A. need to be addressed, particularly with respect to the role and limits of judicial experience in the exercise of appellate review under s. 686(1)(a)(i).

In his submissions before us, counsel for the appellant conceded that if the test applied by the majority of the Court of Appeal to determine the reasonableness of the conviction was the correct one, he could not succeed. The appellant urged us to effect an “incremental” change in the law by endorsing a “broader” standard of appellate review, and enabling appellate courts to overturn conviction when they are left with a lurking doubt as to guilt. I can only repeat here what I said in Biniaris on that issue, at para. 38:

It is insufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence. This “lurking doubt” may be a powerful trigger for thorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of a jury. In other words, if, after reviewing the evidence at the end of an error-free trial which led to a conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt, which is not in itself sufficient to justify interfering with the conviction, may be a useful signal that the verdict was indeed reached in a non-judicial manner. In that case, the court of appeal must proceed further with its analysis.

These comments were made in the context of the review of the verdict of a jury, but they apply equally to the judgment of a trial judge sitting alone. However, where a judge gives detailed reasons for judgment and when, as in this case, the reasons reveal that he or she was alive to the recurrent problems in this field of adjudication, the court of appeal brings no special insight to the assessment of the evidence. As this Court’s s. 686(1)(a)(i) jurisprudence makes very clear, the fact that an appeal court judge would have had a doubt when the trial judge did not is insufficient to justify the conclusion that the trial judgment was unreasonable. See, e.g., Corbett, supra, at p. 282; Yebes, supra, at p. 186; W. (R.), supra, at p. 130; R. v. François, [1994] 2 S.C.R. 827, at p. 835; R. v. Burke, [1996] 1 S.C.R. 474, at para. 3. With respect, and while acknowledging that a reviewing judge is entitled to express his or her misgivings about the result of the trial, I can find nothing in the reasons of Finlayson J.A. that demonstrates that his different appreciation of the facts make the trial judge’s conclusion unreasonable.

In the case at bar, Finlayson J.A. located his unease with the verdict entered by Flaherty Prov. J. in “the advantage of reading the transcripts of many of what are termed ‘historical sexual abuse cases’ that have come before this court over the last decade” (p. 42). He wrote (at p. 42):

. . . I am concerned that this case does fit a pattern of allegations of sexual abuse that are initiated by ulterior motives. The complaints are usually of this vague and unsubstantiated nature. They are so stale dated and amorphous that it is impossible for the person accused to give a detailed rebuttal to them without arousing suspicion as to why his memory is so precise.

The defence also reveals a pattern. Faced with attempting to recall what must have been a non-event to any normal person, the accused seized upon a material discrepancy in the complainant’s evidence and demonstrated objectively that the complainant’s story cannot be true in a significant particular. In this case it was the red couch.

I appreciate Finlayson J.A.’s unease in the face of what the trial judge termed the “well known difficulties” associated with the features of these types of cases, with which he was also very familiar. Having been exposed, like many in the criminal courts, to several such cases, the trial judge was aware of the need for caution in preserving the integrity of the presumption of innocence. He was entitled to believe the uncorroborated evidence of the complainant in this case as in any other case, and he did. If it were unreasonable for him to do so, it would be impossible to convict in the many similar cases where there is a long delay in the disclosure of the uncorroborated allegations of a complainant in a sexual assault case. This is not the law.

I would therefore dismiss the appeal.

For these reasons, and those given by Labrosse J.A., the verdict is not unreasonable or unsupported by the evidence. The appeal is therefore dismissed.