Citation: R. v. R.S.D.L., 2009 NSCA 74
Date: 20090624
Docket: CAC 277660
Registry: Halifax
Between:
R. S. D. L.
Appellant
v.
Her Majesty The Queen
Respondent
Restriction on publication: Pursuant to s. 486.4(1) of the Criminal Code
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judges: Roscoe, Bateman, Oland, JJ.A.
Appeal Heard: June 4, 2009, in Halifax, Nova Scotia
Held: Appeal is dismissed per reasons for judgment of Roscoe, J.A.; Bateman and Oland concurring.
Counsel: R. S. D. L., the appellant in person
William D. Delaney, for the respondent
Restriction on publication: Pursuant to s. 486.4(1) of the Criminal Code.
PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 486.4(1) OF THE CRIMINAL CODE APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION.
SECTION 486.4(1) PROVIDES:
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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] Mr. R. L. was found guilty after trial by Judge Peter Ross of the Provincial Court of two offences contrary to the Criminal Code: uttering a threat to cause death or serious bodily harm contrary to s. 264.1(1)(a), and sexual assault causing bodily harm contrary to s. 272(1)(c). He was sentenced to imprisonment for four years three months on the sexual assault charge and two years concurrent on the threatening charge, after taking into account five months he spent on remand. Mr. L. appeals his conviction, alleging in effect that the verdict was unreasonable and unsupported by the evidence. The decision under appeal is unreported.
Background
[2] On August 14, 2006, five charges were laid against Mr. L. following a complaint by his common law spouse TLM: aggravated assault, uttering threats, forcible confinement, assaulting a peace officer and resisting arrest. A week later, as a result of a further statement given by TLM to the police, additional charges of sexual assault using a weapon and aggravated sexual assault were laid against Mr. L..
Evidence at trial
[3] Constable Delton MacDonald of the Cape Breton Regional Police testified that on August 9, 2006 he spoke with TLM at the Cape Breton Regional Hospital. TLM’s eyes and nose were swollen and she had dried blood in her hair and on her face. A cut over her right eyebrow had been stitched and she had marks behind her right ear. She was upset and reluctant to tell Constable MacDonald what had happened. Later that day TLM gave a statement. On August 18, TLM called Constable MacDonald and provided him with a second statement. Constable MacDonald also testified about the arrest of the appellant.
[4] TLM testified that Mr. L. was her ex-boyfriend and the father of her two young children. She testified that she had been in a 17-day drug detox program. When she left the program, she went to visit N. C. whom she had met while in the detox program. While she was there, Mr. L. came and told her to leave with him. When they arrived at their home, Mr. L. started punching and kicking her in the back, head and face. She said the beating lasted for more than an hour and a half. At that point Mr. L. told her to have sex with him. She told him that she did not want to have sex with him but would do so if he would stop hitting her. They had sexual intercourse but he kept hitting her. Then the two of them walked to C. M.’s house. Before they entered the house, Mr. L. forced her to perform oral sex on him. TLM testified that they went back to their own place where the appellant smoked cocaine with M. H.. After Mr. H. left, Mr. L. punched and kicked her face again and once more forced her to have sex with him. She testified that he had a knife and said he would stick it in her and that he wanted to cut her hair off . Eventually they went to his mother’s house and slept there. When TLM awoke in the morning, she asked for help to go to the hospital. She said she suffered two black eyes, a broken nose, scrapes and bruises on her ears and back and a cut above her right eye that required three or four stitches. She indicated that she did not tell the police about the sexual assaults when she gave her first statement because she was embarrassed and scared.
[5] On cross-examination TLM admitted that she had a drug problem, that she had stolen to support her drug habit, that she had outstanding criminal charges, and that she had failed to appear in court to face those charges. With respect to the second statement, she said she decided to go back to the police when she heard that Mr. L. was telling other people what he had done to her.
[6] C. M., the appellant’s niece, his mother, and TLM’s sister all testified to seeing TLM on the evening in question and that she had cuts and bruises on her face.
[7] Mr. L. testified that TLM was his common law wife for eight years and that they had two children together. He indicated they had problems because of her promiscuity and drug addiction. He said that when she was released from detox, he went to Mr. C.’s residence where he found that “the two of them were looking pretty comfortable in their pyjamas”. He assaulted Mr. C. and when TLM tried to intervene, he may have hit her. He said he was “probably” responsible for her injuries. He indicated that he did not sexually assault her and would not have wanted to have sex with her until after she had been tested for hepatitis and herpes, and “I wouldn’t risk my life over a piece of tail that I had for eight years”.
The decision under appeal
[8] In his 44 page oral decision, Judge Ross reviewed the evidence of each witness in great detail. Since the major argument on appeal is that the judge erred by believing TLM, I will set out lengthy portions of what the judge said regarding her evidence:
[11] My overall impression of [TLM] from demeanor, mindful of the fact that I need to be cautious [in] drawing any firm conclusions from demeanor alone. But just sort of a superficial impression of her giving evidence is that she seemed to be sincere. She did not seem to be motivated by simple hatred of Mr. L. or by envy of him. And she did seem to convey a genuine sense of hurt when telling about the events at R. S. that night. However, people can be good liars and I need to take into account more than simple impressions like that and I have and will touch on certain things of what she said. ....
[12] ... she seemed to be retrieving events from actual memory. I did not get the sense that this was a concocted story that she was making up. It did not have that kind of rigidity in her direct and cross examination. She certainly did not seem afraid of it in any way. She seemed quite comfortable with her allegations and her evidence and the ways that she addressed it in direct and cross examination.
...
[22] During this cross examination about the statements, she said at one point, I don’t need to read a statement to tell you what happened to me. There and at other points in her evidence as I have said earlier, she did appear to be credible.
...
[24] It seems to me a possibility that she is being evasive about the use of drugs. This would be something that even in her testimony, she would be reluctant to admit and I mean the use of drugs that evening... But I do share the concerns raised by the defence about her unequivocal denial of participating in the crack smoking at R. S. that evening with M. H. and the accused.
[25] Later on in cross examination and Crown alluded to this as well in his final argument, she said I don’t hate him, I hate what he did to me. I point it out because it is I think one other example of the fact that her evidence here seemed to be fairly measured and as far as I could determine not motivated by pure hatred or envy of another woman or anything like that. Although there may be things that she is not anxious to discuss.
[26] She was cross examined about what might have happened at the C. residence and her accounts of events there are very different from Mr. L.’s of course. She went on to say that she [was] embarrassed about all this. Mr. L. was her boyfriend for years. She said I said no, he should have listened to that. Denied that she was lying and said that in her earlier statements she told the truth to an extent and did not lie. ... The fact that she would not be forthcoming about everything would not detract from her credibility quite as much as defence might argue.
[9] The trial judge also extensively reviewed the evidence of Mr. L. and over the course of 20 pages made several comments which are indicative of his assessment of his credibility, such as:
[33] Then went on as [I] said a minute ago to talk about the forced sex. He said these are only allegations. He said I caught her with Mr. C., He’s known to have diseases. That to me doesn’t quite have, as I say, the ring of truth. It seems somewhat disingenuous and something of an exaggeration which smacks of an attempt to justify what he did later. Because he didn’t catch them in any act of intercourse and yet he says I caught her with Mr. C., he’s known to have diseases. And then he said just a short time later I wouldn’t risk my life over a piece of tail. And he seemed to be saying that he wouldn’t have sex with her that evening because she just had sex with him. The logic of that eludes me if that’s the point he was trying to make because as I said he didn’t catch them in an act of intercourse. When he arrived at the C. residence it was shortly after she did and he knew that. ...
...
[36] He went on to say a short time later in his evidence, Mr. L. was talking about Mr. M., that [TLM] stayed in the truck. She was ashamed of her eye.
[37] Later on he said she’s not embarrassed about anything. Obviously there’s a contradiction there. What he says about that seems to depend on the context in which he says it, the purpose for which he puts it forward. ...
[39] ... I am left, having heard his evidence, to say that I could not discount the possibility that there is a measure of truth in what he says about the use of the drugs and as I mentioned earlier that [TLM], even in her testimony was not complete[ly] forthcoming about that.
...
[44] He continued to blame [TLM] for different things. He said when I went to jail she got hooked on crack and it backfired when I ended up back with her [and] essentially he’s blaming her for his coke habit.
[45] He went on to say she heard I was seeing a hotter girl. That was her whole intention. Again I see that as an attempt to put forward that as a reason for [TLM] to fabricate these allegations.
[46] In law, of course, an accused has no burden or onus to supply a motive whatsoever but this is something that he chose to do. It sort of popped up in his evidence. But I must say rather than finding that it raised doubt about the [veracity] of [TLM]’s evidence I found that attempt ultimately did more to detract from the credibility of his own.
. . .
[49] ... His anger towards her was palpable as he gave his testimony. He said there was rage in my mind. He said I was defending my family. He said she has my name tattooed on her body. I’m not sure if that tattoo was supposed to promote love or ownership but either way his sense of betrayal was, as I said palpable. ...
[51] He went on to talk about the use of drugs that evening. He said she was stealing the stuff from us and smoking what she put aside when we left. He said you should get 20 puffs out of a gram and we were only getting 9. Obviously that was meant to discredit [TLM]’s integrity and honesty and credibility and I have assessed it in that regard. But in the attempt it does also diminish his credibility because it seems to be inherently implausible that [TLM], having been injured, and again this is on his account, even if it was [at] C.’s, as badly as she was, even if it was by two or three blows, that she would have the temerity and the audacity to steal from him, steal his drugs a little later on that evening, just seems unlikely to me. That she would risk more [wrath] from him. And so, as I said, his attempt there really I think just fortifies the impression I have of how angry he was in the attempt to discredit her he ends up discrediting himself.
[10] After reviewing all of the evidence Judge Ross drew the following conclusions:
[58]... that there was sexual intercourse that evening at R. S.. That [TLM] was fearful of Mr. L.. That any indication she gave that she would have sex with him was motivated by her fear of his anger and conduct and fear of the assaults that he had already inflicted and by a hope that by giving in to him he would hit her no more. Such conduct clearly vitiates any consent she may have given to sexual intercourse.
[59] I find further that Mr. L. did inflict at least some of the blows on [TLM] either just before or during the acts of intercourse....
[60] In light of all the evidence and the circumstances in the case I do accept some of the things that Mr. L. says about the events could well be true, however for the reasons which emerge from my canvas of the evidence of the witnesses I do not believe his denial of sexual intercourse nor his denial of beating [TLM] at R. S..
[61] I find his claims that the injuries she suffered being solely occasioned by two or three blows at C.’s place to be incredible and unworthy of belief. Neither does his evidence create a reasonable doubt about the veracity of [TLM]’s allegations and testimony about the conduct of the accused [at] R. S..
[62] [TLM] was, to my mind, in regard to the central features of her evidence, convincing in her testimony before the court, not discredited by any variations or evolutions in her accounts through the first verbal statement, the first and second written statement, through her sworn testimony. Nor discredited by the possibility which I think exists that she was evasive about her own drug use that evening.
[63] Her testimony together with the evidence and the injuries, the medical reports and the testimony [in relation to] others who came into contact with her that night convince me beyond a reasonable doubt that Mr. L. was guilty of criminal misconduct towards her in ways which I will attempt to define with more certainty now.
[11] Judge Ross then explained in detail his reasons for acquitting the appellant on the charges of assaulting a peace officer, resisting arrest, and forcible confinement. As for the sexual assault charges, Judge Ross found the appellant not guilty on the charge of sexual assault with a weapon and not guilty of aggravated sexual assault, but guilty of the included offense of sexual assault causing bodily harm. The appellant was also convicted of uttering a threat to cause death or serious bodily harm. The judge directed a stay of proceedings on the charge of aggravated assault.
Issues
[12] Although Mr. L. was represented by counsel at trial, he was self- represented on appeal. The hearing of the appeal was adjourned three times at the request of Mr. L. in order to give him more time to find a lawyer to represent him on the appeal and to properly present fresh evidence on the appeal. In his notice of appeal Mr. L. submits that the trial judge mis-apprehended the evidence and should not have believed the complainant because she is a “liar, cheat and thief”. Although he also initially appealed his sentence, he advised the court in writing on December 6, 2008, that he abandoned his sentence appeal. In his four lengthy written arguments filed with the court, Mr. L. essentially submits that the verdicts were unreasonable and unsupported by the evidence because they were based on an erroneous assessment of credibility, and that the trial judge was biased against him because of a comment made in the pre-sentence report. In addition, Mr. L. sought the admission of fresh evidence on appeal to support his argument regarding the credibility of TLM.
Analysis
1. Fresh evidence
[13] Mr. L. seeks to admit as fresh evidence on the appeal: photographs, that he says are photographs of TLM that she sent to him while in prison, copies of several letters he says were authored by TLM and sent to him in prison, letters said to be signed by his mother and C. M., and copies of forms he signed asking prison officials to record his incoming phone calls in case there is “unincriminating evidence in his conversations”.
[14] When Mr. L. first submitted these documents and indicated that he wanted to present them as fresh evidence on the appeal, the Registrar of the court wrote to Mr. L. to advise him of the proper procedure to follow regarding fresh evidence. In that letter dated December 5, 2007, Mr. L. was advised that presenting fresh evidence was a complex process and it was recommended that he seek legal counsel for the appeal. In addition, he was advised:
The court does not automatically hear witnesses on a fresh evidence application. First, before the hearing of the appeal, you must file affidavits indicating what the witness will say to support your argument. For example, you indicate in your letter that the complainant has admitted that she was not assaulted. If the complainant is willing to file an affidavit to that effect, that would be helpful. If she is not, then you will need the affidavit of your mother or other persons setting out what the complainant told them, when the conversation took place and who was present. You should also file an affidavit of your own, setting out what you say has happened since the trial that may be relevant to the issues you raise on your appeal and attaching copies of the letters you say the complainant has sent to you. Furthermore, if you intend to present a recording as evidence on the appeal, you will need to have someone from the institution verify the circumstances under which the recording was made, and someone will have to identify the voices on the recording, preferably in an affidavit.
If any affidavits are to filed, they need to be filed at least two weeks before the hearing of the appeal and copies must also be provided to Mr. Delaney, counsel for the Crown. His fax number is (902) 424‑0653. Also, be advised that Mr. Delaney may wish to cross‑examine any people who have sworn affidavits, so they should be present in the court on January 24, 2008.
If affidavits are filed, the court will hear argument from you and counsel for the Crown about whether the new evidence is admissible on the appeal. Generally, the court applies the test for admission of fresh evidence on appeal, as set out in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759; (1979), 50 C.C.C. (2d) 193 .... [quote from Palmer omitted]
[15] When Mr. L. appeared for the hearing of his appeal on January 24, 2008, he advised that he had not received the letter from the Registrar. A copy of the letter was given to him and after further discussion and instructions from the court as to what is required to present fresh evidence, the matter was once more adjourned without day at his request. The appeal hearing was eventually scheduled for February 5, 2009. It was once again adjourned to give Mr. L. more time to gather his new evidence. At the hearing of the appeal on June 4, 2009 Mr. L. had not filed any affidavits. He indicated that he wanted to proceed on the basis of the documents that he had previously filed.
[16] The test for admission of fresh evidence on appeal, directed to an issue of fact decided at trial, was set out by McIntyre, J., writing for the Supreme Court of Canada, in Palmer v. The Queen, [1980] 1 S.C.R. 759; (1979), 50 C.C.C. (2d) 193 at p. 760 S.C.R., p. 193 C.C.C.:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief.
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[17] In addition to meeting the Palmer requirements, any evidence sought to be admitted on an appeal must be in admissible form as discussed in R. v. Assoun, 2006 NSCA 47: [2006] S.C.C.A. No. 233 starting at ¶ 301(leave to appeal to Supreme Court of Canada dismissed). If the evidence is not admissible, it cannot be expected to have affected the result and therefore does not meet the fourth requirement of Palmer. (See: R. v. Laffin, 2009 NSCA 19)
[18] None of the evidence sought to be admitted by Mr. L. is in admissible form. There are no affidavits deposed by anyone to verify the authenticity of the photographs or authorship of the various documents, despite the many directions given to him regarding the necessity for affidavits. The photographs are irrelevant in any event, and the letters are, for the most part, hearsay and irrelevant.
[19] The application for admission of fresh evidence should therefore be dismissed.
Unreasonable verdict
[20] The essence of the appellant’s written and oral submissions is that the complainant lied about the sexual assaults. Although the appellant now admits that he was responsible for causing the physical injuries to TLM, he vehemently denies that he sexually assaulted her. Much of his argument emphasizes that TLM is, in his view, an unfit mother, a drug addict, a thief, a liar, and is vindictive and obsessed. He submits that the trial judge should not have believed her evidence that he sexually assaulted her and declares his innocence.
[21] A verdict is unreasonable if the essential findings leading to it are demonstrably incompatible with evidence that is neither contradicted by other evidence or rejected by the trial judge. The verdict must be one that a properly instructed jury, acting judicially, could reasonably have rendered (See: R. v. Kagan, 2009 NSCA 43; R. v. Abourached, 2007 NSCA 109; R. v. Beaudry, 2007 SCC 5; R. v. Yebes, [1987] 2 S.C.R. 168 and R. v. Biniaris, [2000] 1 S.C.R. 381).
[22] In R. v. W.R., [1992] 2 S.C.R. 122, Justice McLachlin (as she then was), for a unanimous Supreme Court, affirmed that the test set out in Yebes, supra applies to verdicts based on findings of credibility, at pp. 131-32:
It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re‑examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King, [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), [1989] 2 S.C.R. 446, at pp. 465‑66. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.
[23] More recently in R. v. Gagnon, 2006 SCC 17, the majority of the Supreme Court confirmed that this court must defer to the credibility findings of the trial judge unless the conviction cannot reasonably be supported:
10 There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference of opinion with the trial judge (Schwartz v. Canada, [1996] 1 S.C.R. 254, at paras. 32‑33; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 74). A succinct description of the overall approach appears in R. v. Burke, [1996] 1 S.C.R. 474, at para. 4, where this Court stated that "it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can ... overturn the trial court's verdict". With respect to the credibility of witnesses, the same standard applies.
[24] The appellant submits that the trial judge should not have believed the evidence of TLM for numerous reasons including: that she did not report the sexual assaults when she first gave a statement to police, there were inconsistencies in her evidence, she admitted to being a thief, she had a motive for lying, she has laid unsubstantiated charges against him and other people, and her evidence that she was sexually assaulted is not corroborated by any medical report or any DNA evidence.
[25] The trial judge was well aware of most of these issues and addressed them in his decision. The judge painstakingly analyzed all of the evidence and gave extensive reasons with respect to his findings of credibility, as I have quoted in the passages above. Judge Ross referred to the inconsistencies, paid particular attention to her failure to report the sexual assault in her first statement and found that although TLM exaggerated some parts of her evidence and was evasive at other times, she was telling the truth about being sexually assaulted and threatened. A trial judge is entitled to accept some of the evidence of a witness and reject other evidence.
[26] As noted above, the test for an unreasonable verdict, based on a finding of credibility, is that the appellant must show that the verdict is demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the trial judge, or that it is one that a properly instructed jury, acting judicially, could not reasonably have rendered. In my view, the appellant has failed to meet that burden. The verdicts cannot be said to be either unreasonable or unsupported by the evidence.
Bias
[27] The appellant also submits that the trial judge was biased against him because of his occupation. There was no evidence at the trial regarding Mr. L.’s occupation. In the pre-sentence report, prepared six weeks following the conviction, the author notes that at one time Mr. L. “owned his own business called * Adult Entertainment Productions which made pornographic movies”. There is absolutely no evidence that the trial judge had any knowledge of this business prior to or during the trial, nor is there anything on the record before us to support any allegation of apprehended or actual bias.
[28] For these reasons, the appeal should be dismissed.
Roscoe, J.A.
Concurring:
Bateman, J.A.
Oland, J.A.