



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015,
    c.  13, s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




OURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2020 ONCA 782

DATE: 20201209

DOCKET: C65673

Lauwers, Huscroft and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Smith

Appellant

Mark Halfyard and Andrew Bigioni, for
    the appellant

Vallery Bayly, for the respondent

Heard: September 25, 2020

On appeal from the conviction entered on
    December 19, 2017 by Justice Grant R. Dow of the Superior Court of Justice,
    with reasons reported at 2017 ONSC 6308.

Harvison Young J.A.:

A.

Overview

[1]

The appellant, Jason Smith, was convicted of
    sexual assault and sentenced to three years imprisonment as a result of the
    following incident. He appeals his conviction on a number of grounds, including
    that the trial judge erred in his
W.(D.)
analysis:
R. v. W.(D.)
, [1991] 1 S.C.R. 742
. At the conclusion
    of the hearing, we allowed the appeal with reasons to follow. These are those
    reasons.

B.

Background

(1)

Facts

[2]

The complainant, A.W., was walking home from the
    transit station on a cold, wintry night around 10:30 p.m. She sensed someone
    following her and shortly after that, the appellant grabbed her from behind in
    what she described as a bear hug.

[3]

At this point, their stories diverge. The
    complainant testified that the appellant tried to get her pants off and touched
    her between her legs and on her vagina, over her clothing. She denied that this
    touching was consistent with the appellant simply trying to get up after they
    had fallen. She struggled against him, screamed, put her gloved hand in the
    appellants mouth, and yanked her hand down as hard as she could. The
    appellants DNA was found on her glove. The complainant estimated that they
    spent around 45 seconds to two minutes on the ground.

[4]

The appellant said he thought the complainant
    was his girlfriend. They had planned to meet but he was late because he had
    been having drinks with some friends. He knew she would be annoyed. He could
    not find her at the location they agreed to meet. He went looking for her and,
    while walking, he noticed a woman walking about 40 to 50 feet ahead of him. He
    testified that he believed this woman was his girlfriend. He went up to her and
    hugged her from behind, slipped, and fell on top of her. He testified that he
    used his hands to lift himself up. He denied that he had touched her sexually
    as she claimed.

[5]

It was common ground that the entire incident
    took place over a relatively short period of time. When they got up, the
    complainant slapped the appellant and they both expressed words to the effect
    of what the fuck?. She asked where her purse was and the appellant pointed to
    a spot nearby. The appellant walked away, and the complainant immediately
    called 911.

[6]

In the course of the three-day trial, the
    appellants girlfriend testified that they were supposed to meet that evening.
    She was angry because he was late and went home to the apartment where she
    lived with the appellants mother. She stated that the route she took to get to
    the bus stop to get home took her along the same route as A.W. walked that
    night. She also testified that when she was upset or angry at him, the
    appellant would sometimes hug her from behind. She was approximately the same
    height as the complainant at the time and had a knee-length coat that was
    similar to that worn by the complainant. They both had straight black hair that
    was of a similar length.

(2)

The trial judges reasons

[7]

The trial judge rejected the appellants evidence.
    He determined that the appellants credibility was undermined by a number of
    factors, including:

·

that his estimate of the time and details of his
    unanswered phone calls to his girlfriend failed to match his girlfriends
    testimony;

·

that he had a poor recollection of minor points,
    including his girlfriends bus route to work;

·

that his consumption of alcohol may have
    contributed to his faulty memory;

·

that he did not call out to the woman he was
    following to confirm her identity; and

·

that he failed to apologize or help the woman
    after he realized she was not his girlfriend and he did not stay at the scene.

[8]

For those reasons, the trial judge did not
    accept the appellants arguments. He also found that this evidence did not
    raise a reasonable doubt. Finally, he determined that the Crown had satisfied
    its burden to prove each element of the offence beyond a reasonable doubt.

[9]

The trial judge accepted the complainants
    evidence that she was attacked from behind and that the appellant touched her
    inner thigh and against her vagina over her clothing. He said that her evidence
    was clear and consistent and that she immediately reported the incident to the
    police. Finally, he accepted her evidence that there was a struggle, as
    evidenced by the DNA found on the complainants glove.

C.

Issues on appeal

[10]

The appellant raises the following grounds on
    this appeal:

(a)

the verdict was unreasonable as a result of
    fundamental flaws in the trial judges reasoning;

(b)

the trial judge erred in failing to consider the
    appellants level of intoxication in determining whether his attempt to grab
    the complainant had amounted to a sexual assault;

(c)

the trial judge erred in his assessment of the
    post-offence conduct evidence.

(d)

the trial judge erred in his
W.(D.)
analysis by failing to
    consider the girlfriends exculpatory evidence.

D.

Analysis

[11]

The purpose of the
W.(D.)
test is to
    assist the trier of fact in evaluating conflicting testimonial accounts to
    determine whether the Crown has proven its case beyond a reasonable doubt:
R.
    v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. The
W.(D.)
test is not a magic incantation:
R. v. S.(W.D.)
, [1994] 3 S.C.R.
    521, at p. 533. It is the substance of the test that must be respected:
R.
    v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23. The test is a
    reminder that the burden never shifts from the Crown to prove every element of
    the offence:
J.H.S.
, at para. 9.

[12]

The
W.(D
.)
test applies not just to an accused persons testimony,
    but to any defence evidence and to any potentially exculpatory evidence whether
    led by the defence or the Crown:
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114;
R.
    v. Kirlew
, 2017 ONCA 171, at para. 17.

[13]

For reference, the three steps of
W.(D.)
,
    at p. 758, are as follows:

First, if you believe the evidence of the
    accused, obviously you must acquit.

Second, if you do not believe the testimony of
    the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by
    the evidence of the accused, you must ask yourself whether on the basis of the
    evidence which you do accept, you are convinced beyond a reasonable doubt by
    that evidence of the guilt of the accused.

[14]

The heart of the appellants
W.(D.)
argument is that, despite stating the test accurately, the trial judge did not
    apply the test and in particular failed to consider whether the girlfriends
    evidence was capable of raising a reasonable doubt as to his guilt. Her
    evidence potentially confirmed the appellants version of events and, in
    conjunction with his evidence, could have led to reasonable doubt.

[15]

The respondent argues that trial judges are not
    required to explicitly engage in a full
W.(D.)
analysis in relation to
    every defence witness evidence. Instead, the trial judge is required to
    respect the substance of the
W.(D.)
instruction and consider whether
    the evidence as a whole establishes the accuseds guilt beyond a reasonable
    doubt. The respondent argues that the trial judge did that in this case.

[16]

In his reasons, the trial judge correctly
    directed himself on the
W.(D.)
test. He concluded, after considering
    all the evidence, that the Crown had proven its case against the appellant
    beyond a reasonable doubt. However, his credibility assessment was not
    responsive to the evidence as a whole in this case.The First Step of
W.(D).

[17]

W.(D.)
sets out
    a methodology for triers of fact that is intended to focus their attention on
    the analytical steps that must be taken in assessing the evidence in order to
    ensure that the trier of fact considers whether the evidence as a whole proves
    the accuseds guilt beyond a reasonable doubt.

[18]

The trial judges application of
W.(D.)
was problematic in a number of respects. Beginning with the first step, he
    stated that he did not believe the appellant and that the appellants denial of
    sexual contact was undermined in a number of respects. However, several of the factors
    he identified (as listed above) seem to corroborate rather than undermine the
    appellants version of events.

[19]

For example, the first factor the trial judge
    mentioned was the appellants claim that he mistook the complainant for his
    girlfriend, and the trial judge noted at that point that I do logically
    conclude that [the complainant and the girlfriend] would appear somewhat
    similar in appearance from behind. In another bullet point, the trial judge
    specifically noted that the appellants consumption of alcohol left him
    feeling a little bit tipsy [which] may explain his faulty recollection of
    events as the evening progressed. The trial judge did not, however, explain
    how these points undermine the appellants version of events. The similar
    appearance of the two women seems to bolster the likelihood that the appellant
    was simply mistaken. This might have been further reinforced by the fact (as
    accepted by the trial judge) that the appellants tipsiness at the time might
    have helped to explain why he failed to recognize that the woman in front of
    him was not his girlfriend, especially given their similar appearance and dress
    viewed from behind.

[20]

The trial judge also noted that the appellant
    was aware that he was late to meet his girlfriend and was walking the route he
    knew she would likely take to get home but didnt call out to her. However, the
    appellant testified that his intention was to surprise her by hugging her from
    behind, because she was upset that he was late. His girlfriend testified that
    the appellant would hug her from behind when she was upset. Given that
    evidence, his failure to call out to her before approaching A.W. was not
    necessarily a fact that would tend to undermine his story.

[21]

Similarly, the trial judge stated that the
    appellants lack of apology to the complainant after they got up from the
    ground undermined his story that he mistook the complainant for his girlfriend.
    It seems the trial judge placed some emphasis on this fact. Later in his
    reasons, he wrote: [i]mportantly, in cross-examination, Jason Smith admitted
    that after getting up from being on top of AW and realizing she was not his
    girlfriend, he did not say that he was sorry. He did not explain he thought AW
    was his girlfriend. During cross-examination the appellant testified that he
    thought he said he was sorry and said that he didnt do anything. He also
    testified that the events happened very quickly and that he might have been
    mumbling when he apologized. His testimony during cross-examination, that he
    attempted to apologize but might have mumbled, was not something that would necessarily
    tend to undermine his story.

[22]

In short, listing these factors and stating that
    he does not accept the evidence does not explain why the trial judge rejected
    the appellants evidence. Although the trial judge recited a number of factors
    he considered when assessing credibility, it is unclear how these factors
    affected his credibility assessment.

[23]

In applying
W.(D.)
, the trial judge also must consider
    whether any of the evidence at the trial raises a reasonable doubt.
It is not clear from the trial judges reasons that
    he was alive to this.
On the first step of
W.(D.)
, he did
    not consider whether he believed the appellants girlfriends evidence and he
    did not consider whether it raised a reasonable doubt. This evidence is
    discussed in greater detail below.

(1)

The Second Step of
W.(D.)

[24]

On the second step of the
W.(D.)
test,
    the trial judge was very brief in his discussion, stating at para. 58:

Having reached this conclusion, the next part
    is to address whether a reasonable doubt has been raised based on Jason Smith's
    evidence. For the reasons stated above, I conclude that I do not have a
    reasonable doubt. His evidence about what occurred after he wrapped his arms
    around AW and when they were both standing again is neither credible nor does
    it raise a reasonable doubt. In saying that, I am totally mindful that the
    burden of proof is entirely upon the Crown to prove the commission of this
    offence beyond a reasonable doubt. There was no burden whatsoever on the
    accused at any time in this criminal case.

[25]

At the outset, the initial problem with the trial
    judges consideration of the second step flows from the first step. The factors
    cited by the trial judge to which I have referred above may well have raised a
    reasonable doubt even if the trial judge did not accept his evidence. Given his
    recognition that there were some possible explanations, it was incumbent on the
    trial judge to explain why these factors did not raise a reasonable doubt
    beyond saying simply that he didnt accept the appellants evidence and that it
    did not raise a reasonable doubt. In short, the trial judges reasons are
    merely conclusory.

[26]

The second step of
W.(D.)
is admittedly
    difficult to apply. The central flaw in the trial judges application of
W.(D.)
was his failure to consider whether the appellants girlfriends evidence gave
    rise to a reasonable doubt as to the appellants guilt.
In referring to the second step of
W.(D.)
, the trial judge referred only to the appellants
    testimony and not to any of the other evidence or, in particular, to his
    girlfriends evidence.
Although the trial judge set out her
    evidence at the beginning of his reasons, there is no discussion or analysis of
    whether he accepted some, all, or none of it, and whether it left him in a
    reasonable doubt as to the appellants guilt.

[27]

Although she was not a witness to the alleged
    assault, the appellants girlfriends evidence was relevant to the appellants
    credibility. She testified that they planned to meet that night, near the
    location where the appellant saw A.W.; she and A.W. had similar looking winter
    coats; she had similar hair and was around the same height as A.W.; and she
    said that the appellant would hug her from behind when she was upset. This
    evidence was capable of confirming the appellants evidence and thus bolstering
    his credibility.

[28]

Had the trial judge addressed this evidence in
    his reasons and explained why he accepted or rejected it, his findings would
    have attracted deference from this court. In the absence of any discussion,
    however, there is no way to know whether the trial judge was alive to the need
    to examine whether the girlfriends evidence gave rise to a reasonable doubt in
    the context of all the other evidence.

[29]

Nor is there any reference to the fact that there
    were inconsistencies between the complainants police statement on the night of
    the incident and her evidence at trial. For example, at trial, A.W. testified
    that the appellant attempted to pull down her pants while they were on the
    ground. When challenged on this, A.W. testified that she was 70% sure that she
    told the police this in her statement. However, she did not volunteer that
    point. It was suggested to her by the interviewing officer.

[30]

It would have been open to the trial judge to
    determine, after scrutinizing the complainants evidence, that the inconsistency
    between her police statement and her in-court testimony was not material. Trial
    judges are not required to address every inconsistency however minor in a
    witness evidence:
R. v. A.M.
, 2014 ONCA 769, 123 O.R. (3d) 536, at
    para. 14;
R. v. R.P.
, 2020 ONCA 637, at para. 21. However, the trial
    judge did not scrutinize or resolve this inconsistency, nor did he find that it
    was not material.

[31]

The appellant maintained that this was a case
    of mistaken identity and denied that he had touched A.W. sexually. There was
    potentially exculpatory circumstantial evidence that supported the appellants
    story that he was looking for his girlfriend in the area and that he approached
    the complainant mistakenly thinking she was his girlfriend. Some of the
    potentially exculpatory evidence was corroborated by the girlfriends testimony
    and was consistent with A.W.s evidence. In these circumstances, the trial
    judge erred by not turning his mind to whether this evidence, which could have
    corroborated the appellants story, raised a reasonable doubt. This potentially
    exculpatory evidence included the following:

·

the two women were about the same size and
    wearing similar winter clothing;

·

the appellant sometimes surprised the
    complainant by hugging her from behind when she was upset;

·

The appellant was supposed to meet his
    girlfriend earlier that evening but had been drinking with his friends. He was
    a little tipsy and he knew she would be upset with him for being late; and

·

The complainant was walking close to the spot
    the appellant and his girlfriend agreed to meet. She was walking in the
    direction his girlfriend traveled to reach the bus stop to go home.

[32]

In the absence of any analysis of the evidence,
    other that what appears to have been a complete rejection of the appellants testimony,
    it is not clear whether or how the trial judge resolved these issues.

[33]

As discussed above, the appellants version of
    events was corroborated in key respects by his girlfriends evidence and his
    version of events was not entirely inconsistent with some of the complainants
    evidence. In these circumstances, the trial judge was required to examine the
    potentially exculpatory evidence and explain why it did not raise a reasonable
    doubt.

(2)

The Third Step of
W.(D.)

[34]

The trial judge correctly refused to consider
    the limited criminal record of the appellant at this stage. However, in
    concluding that the Crown had proved the appellants guilt beyond a reasonable
    doubt, he referred again to the appellants evidence and the complainants
    evidence, stating that he rejected the appellants and accepted the
    complainants.

[35]

This was not, as the trial judge described it, a
    case that turned entirely on the evidence of two persons. Although there are
    some cases in which the only evidence before the court is two witnesses
    testimony, which occurs frequently in sexual assault cases, this was not such a
    case: see, e.g.,
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252 (Ont.
    C.A.). In
J.J.R.D.
, the key piece of defense evidence was the
    appellants testimony, which the trial judge totally rejected, despite the fact
    that it contained no obvious flaws. This court concluded that the trial judges
    statement that the accuseds evidence did not raise a reasonable doubt was
    justifiable, in light of the trial judges complete rejection of that evidence,
    along with his acceptance of the complainants testimony and her diary entries.

[36]

This case was quite different from such
    two-witness cases because of the girlfriends evidence and the potentially
    corroborative aspects of the appellants evidence that could have raised a
    reasonable doubt. Credibility is not an either/or proposition; treating it as
    such shifts the burden of proof to the accused by suggesting that the accused
    can only be acquitted if the accuseds story is believed rather than that of
    the complainant:
S.(W.D.)
, at p. 535;
W.(D.)
, at p. 757. 
    Avoiding that error lies at the heart of the
W.(D.)
methodology; that
    is what it is designed to avoid.

[37]

In this case, the cumulative effect of these
    errors in the application of
W.(D.)
was the conviction of the accused
    on something less than proof beyond a reasonable doubt.

E.

Disposition

[38]

Given my conclusion on the
W.(D.)
issue, it will not be necessary to address the other grounds of appeal raised
    by the appellant.

[39]

I would allow the appeal and order a new trial.

Released: December 09, 2020

PL

A. Harvison
    Young J.A.

I
    agree P. Lauwers J.A.

I
    agree Grant Huscroft J.A.


