R. v. Stark

R. v. Stark Collection Decisions of the Court of Appeal Date 2004-11-16 Docket numbers C40524 Judges Rosenberg, Marc; Armstrong, Robert Patrick; Blair, Robert Ashley Subject Criminal Decision Content DATE: 20041116 DOCKET: C40524 COURT OF APPEAL FOR ONTARIO ROSENBERG, ARMSTRONG and BLAIR JJ.A. BETWEEN: HER MAJESTY THE QUEEN (Respondent) Alan D. Gold for the appellant - and - ANDREW STARK (Appellant) Christine Tier for the respondent Heard: August 9, 2004 On appeal from the conviction by Justice Eleanor M. Schnall of the Ontario Court of Justice dated June 23, 2003. ROSENBERG J.A.: [1] The appellant appeals his convictions by Schnall J. for sexual assault and sexual interference. The complainant was the twelve-year old grandson of a friend of the appellant’s. The appellant had developed a friendship with the complainant to the point that they spent many weekends together. The complainant alleged that on three occasions between August 2002 and February 2003 the appellant touched him in the area of his genitals, and waist and buttocks. The appellant testified and denied committing the acts. The principal ground of appeal concerns the trial judge’s reasons for judgment. The appellant submits that the trial judge failed to address important inconsistencies and generally applied a more rigourous standard to the appellant’s evidence than to the evidence of the complainant. [2] For the following reasons, I would allow the appeal and order a new trial. THE FACTS [3] The appellant, who was 38 years of age, became friends with the complainant’s grandmother as both taught at the same school. As a result of that friendship, the appellant was invited to various family functions and met the complainant and his mother, a single parent. In August 2002, the appellant and the complainant began to take part in various activities such as bowling, visiting each other’s homes, going to video arcades, and going for rides on the appellant’s motorbike. Witnesses estimated that the appellant and the complainant would get together at least twice a month. The appellant and the complainant were also in contact through e-mail and chat lines to make plans for the weekends. The appellant gave the complainant a number of gifts. [4] The prosecution focused on three incidents of allegedly improper touching. The prosecution also led evidence of an incident at a campground in August 2002 where there was no improper touching alleged. The appellant’s conduct towards the complainant on this occasion was alleged to be unusual and was, perhaps, a precursor to the later improper touching. The appellant was invited by the complainant’s grandmother to stay with them at their campsite at the Happy Hills Campground. The appellant slept with the complainant in an eight-person tent. According to the complainant, when they initially went to sleep, he and the appellant were at opposite sides of the tent. When he awoke, he found that the appellant was right beside him. The appellant had also moved his belongings from his side of the tent. The complainant testified that he remembered waking up in the night because the appellant was poking him in the ribs. At the time, the complainant believed that the appellant was asleep and not doing this intentionally. In his testimony, the appellant admitted sleeping close to the complainant. He provided an innocent explanation; that they were talking and listening to ghost stories on a tape recorder and he did not want to have to shout across the tent. [5] The first incident of alleged sexual touching occurred in August 2002. The appellant and the complainant could not think of anything to do and so they rented a video game, which the complainant played at the appellant’s apartment. According to the complainant, the appellant moved behind him and put both his hands down his pants and touched his penis. The complainant told the appellant to stop and when he didn’t, the complainant said it was time to go. They then went to the grandmother’s home, which was very close to the appellant’s apartment. The complainant’s mother noticed that the complainant looked pale and shaken but when she asked if he was “okay”, the complainant said it was cool outside so they had decided to run. In a statement the complainant gave to the police and a social worker several months after this incident, the complainant said that he had punched the appellant to try and make him stop. At trial, he could not remember punching the appellant or telling this to the officer. [6] The second incident of improper touching occurred on New Year’s Eve. The appellant was invited by the complainant’s grandmother to celebrate the New Year’s Eve at her home and to stay the night. The appellant and the complainant slept in a room in the basement that contained a twin bed and a bunk bed. The appellant slept in the twin bed and the complainant in the bottom bunk bed. The complainant’s mother slept on a sofa bed located just outside the room. The complainant testified that he woke up in the night and found that the covers were off and the appellant was rubbing his back and touching his lower areas on the outside of his pants. He described the place touched as his hip and waist. The complainant told the appellant to get off and kicked him and the incident ended. In his statement to the police, the complainant described his clothing in some detail. At trial, he gave a very different description. He could not remember giving the police the description in his statement and if he did so, that description was inaccurate. The appellant acknowledged the sleeping arrangements as described by the complainant but denied that anything happened. [7] The last incident occurred in February 2003 and was almost identical to the earlier incident at the grandmother’s home. The appellant and complainant were sleeping in the same room. The complainant again awoke and found the covers down to his knees and the appellant rubbing his hip and waist on top of his pants. The complainant kicked the appellant and he went back to his own bed. The appellant denied that this incident occurred. He did testify that during the night he woke up and used the washroom. He noticed that the complainant’s arm and leg were hanging off the bed. He put the arm and leg back into the bed and covered him up. [8] As indicated, the appellant had frequent computer contact with the complainant. The appellant first learned something was wrong with the relationship when the complainant sent him a message during an online chat. The complainant said, “Hey Gaylord, you’re in big shit with London’s, Matthew’s Hall [the school where the appellant taught] and grandma”. The appellant was shocked by the message and replied, “I don’t know what you’re talking about”. He did nothing further as he was busy marking exams. Some time later he sent an e-mail to “try to touch base” but received no reply. [9] On February 13, 2003, the complainant wrote a letter to his mother and disclosed the abuse. In the letter he said that he knew that the appellant was gay and on numerous occasions had touched him in “certain places”. He referred to the most recent incident and said that he woke up and the appellant had his hand on his “ass” and was stroking his “butt”. He wrote that he told the appellant to get off and when he didn’t he kicked him. He said that the same thing had happened at New Year’s. He also referred to a time when the appellant sat behind him and put his hands down his pants. The complainant testified that he wrote the letter at the urging of his friend, but denied that the friend had helped with the content of the letter. A statement read into evidence of the friend’s expected evidence confirmed that he did not help with the note but only read it over. According to the complainant, his friend thought that the appellant was “weird” and probably gay and the complainant should not hang around with him. [10] As indicated, the appellant denied any improper touching. He also called two witnesses who testified as to his good character. ANALYSIS The failure to address inconsistencies [11] The appellant submits that while the trial judge addressed some inconsistencies in the complainant’s testimony, she dealt only with the relatively minor ones and ignored the significant problems with the complainant’s evidence. The appellant points out that while the trial judge did deal with the discrepancies between what the complainant told the police and what he said at trial about where he was touched, she failed to deal with the more serious discrepancy between the complainant’s testimony and his description of the last two touchings in the letter. It will be recalled that the complainant told his mother that the appellant touched him on the “ass” and stroked his “butt”. In his testimony he said the appellant was “rubbing my back and touching lower areas”, and more specifically, “probably my hip and waist”. The complainant acknowledged in cross-examination there is a difference between the hip and waist and the back and “butt”. The trial judge made no reference to the letter when discussing inconsistencies. [12] It is not the law that the trial judge must expressly deal with every inconsistency in the evidence so long as the basis for the trial judge’s conclusions is apparent from the record. The leading case on sufficiency of reasons is R. v. Sheppard (2002), 162 C.C.C. (3d) 298 (S.C.C.). In paragraph 55, Binnie J. summarized the state of the law respecting the trial judge’s duty to give reasons and the role of the appellate court in reviewing the sufficiency of those reasons. Two of the points that are relevant to this aspect of the appellant’s argument are the following: 6. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated. … 8. The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision. [13] In this case, the trial judge did deal with many of the alleged inconsistencies. She concluded that while there were some inconsistencies these were with respect to “secondary details”. She found that the complainant “was not shaken in cross-examination” and “was not shaken in the essential elements of his allegations”. In my view, the basis for this conclusion is not apparent from the record. Some of the alleged inconsistencies, such as what the complainant was wearing at the time of the assaults and even whether he punched the appellant in response to the touching could possibly be described as secondary details. But, the complainant gave three different versions of the last two incidents. These were not secondary details, these were descriptions of the very acts said to amount to sexual assault and sexual interference. The trial judge had a duty to address these inconsistencies and she failed to do so. Assessment of the appellant’s credibility [14] The appellant made one further point that deserves discussion. The trial judge seemed to discount the appellant’s evidence principally because of some “weak explanations”. She said the following: Mr. Stark’s evidence is outright denials. There are some weak explanations as part of his evidence. I have to consider all of the evidence. I have to consider whether the evidence of the defence raises a reasonable doubt. It does not. I am satisfied beyond a reasonable doubt that Mr. Stark committed a sexual assault on [the complainant] in the incident in August where he put his hands down the front of [the complainant’s] pants and underwear and touched him in the penis area and that he touched him for a sexual purpose in the New Year’s Eve incident, and I find him guilty on both counts. [Emphasis added.] [15] These weak explanations were in reference to the camping incident and the appellant’s explanation for sleeping so close to the complainant and his response to the “Gaylord” message. I am concerned only about the trial judge’s treatment of the latter incident. She said the following: Yes, he did respond, but that kind of a response was so totally lacking in energy compared to the message that he got from [the complainant] that I simply do not accept that Mr. Stark really responded in a way that we would expect. It is fair to expect that of an adult being challenged in this way by the youngster. We have different expectations of adults than we do of young people. [16] The manner in which an innocent person should react to an allegedly false allegation is an uncertain basis for drawing an adverse inference against an accused. It may be that there was something in the appellant’s testimony or the circumstances of the case that made his response to the allegation in the chat line or his explanation for that response suspect, but the trial judge did not identify any such evidence to support her conclusion. Rather, she simply adopted a position based on the objective “expectations of adults”. Compare R. v. Trochym, [2004] O.J. No. 2850 (Ont. C.A.) at para. 26. Conclusion [17] There was evidence upon which the trial judge could convict the appellant. The complainant gave evidence of touchings that could amount to sexual assault and sexual interference. There was some support for the complainant’s evidence in the testimony of his mother and in the appellant’s own evidence concerning his conduct in the tent in August. The verdicts could not then be said to be unreasonable. I am, however, satisfied that the appellant has shown that the trial judge erred in law in her approach to the complainant’s evidence and the treatment of the appellant’s evidence. DISPOSITION [18] Accordingly, I would allow the appeal, set aside the convictions and order a new trial. Signed: “M. Rosenberg J.A.” “I agree Robert P. Armstrong J.A.” “I agree R. A. Blair J.A.” Released: “MR” November 16, 2004