



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), (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    that could identify the complainant or a witness shall not be published in any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).

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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.




COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Phan, 2013 ONCA 787

DATE: 20131224

DOCKET: C55011

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sovann Phan

Appellant

Michael Davies, for the appellant

Roger Shallow, for the respondent

Heard:  June 13, 2013

On appeal from the conviction entered on May 27, 2011 by
    Justice Roydon Joseph Kealey of the Superior Court of Justice, sitting without
    a jury.

Epstein J.A.:

[1]

The appellant, Sovann Phan, was convicted of one count of sexual assault
    after a judge-alone trial. Mr. Phan was charged after being observed touching
    the breasts of Ms. D.A.R., an 18 year-old severely disabled resident in a
    long-term care facility where Mr. Phan worked as a cleaner.

[2]

In this conviction appeal, counsel for Mr. Phan advances two arguments,
    both relating to the key factor in the case  the credibility of Mr. Phan and
    that of Amina Ege, a co-worker who observed the alleged assault.  He submits
    that the trial judge erred in his articulation and application of the test in
R.
    v. W. (D.)
, [1991] 1 S.C.R. 742.  He also argues that the trial judge
    subjected the evidence of the two central witnesses, Mr. Phan and Ms. Ege, to
    an uneven level of scrutiny.

[3]

For the reasons that follow, I would dismiss the appeal.

THE EVIDENCE AT TRIAL

[4]

The issue in this case was whether the Crown
    proved beyond a reasonable doubt that Mr. Phan did, in fact, touch Ms. D.A.R.s
    breasts.

[5]

Ms. Ege, the only witness to the incident, had been working at the
    facility as a personal care worker for about 13 years. She described Ms. D.A.R.
    as a young woman who suffers from severe developmental delays as well as
    problems due to seizures. Ms. D.A.R. is unable to take care of herself.  She is
    unable to talk.  Ms. D.A.R. had been a resident of the facility for about six months
    when the incident giving rise to the prosecution took place.

[6]

On June 13, 2009, Ms. Ege observed Mr. Phan cleaning in the area outside
    Ms. D.A.R.s room, for no apparent reason.  Ms. Ege was already suspicious of Mr.
    Phan because she had seen him entering Ms. D.A.R.s room with unusual
    frequency, often after glancing furtively around him.  Mr. Phans activity
    outside Ms. D.A.R.s room on June 13 concerned her.  As a result, Ms. Ege secretly
    went into Ms. D.A.R.s room and hid in a closet, leaving the closet door open
    sufficiently so she could see the bed where Ms. D.A.R. was lying down, flat on
    her back, with her hands behind her head.

[7]

Ms. Ege testified that a few minutes later, Mr. Phan came into the room,
    empty-handed. He went to Ms. D.A.R.s bed, put his hands under her shirt and
    massaged her breasts for about five seconds. He then left the room. Ms. Ege
    immediately reported what she had seen.

[8]

In his testimony at trial Mr. Phan denied any touching of a sexual
    nature.  He said that he had been replacing toilet paper and paper towels and
    noticed that Ms. D.A.R.s shirt was up around her chest, leaving her abdomen
    bare.  He first looked for a nurse to tend to Ms. D.A.R.s need to be covered. 
    Unable to find one, he went back to her room and pulled her shirt down for
    her.  He then drew Ms. D.A.R.s sheet up to cover her.

[9]

Mr. Phan was suspended as a result of the reported assault.  He testified
    that his union had asked him to write a letter describing the events so that a
    union representative could advocate for him. In the letter, Mr. Phan stated
    that when he decided to pull Ms. D.A.R.s shirt down, he felt uncertain and
    asked [himself] whether [his] help was right or wrong.

[10]

Others
    who worked at the residence also testified at trial.  Kelly Cloutier, the administrator
    of the facility, said that cleaning staff such as Mr. Phan are not permitted to
    care for residents.  That responsibility is left exclusively to healthcare aids
    and nurses.  Another healthcare aid at the facility gave evidence that on one
    occasion, she saw Mr. Phan pushing Ms. D.A.R. in a wheelchair and that she told
    Mr. Phan that he was not permitted to do so.

THE JUDGMENT BELOW

[11]

The trial judge acknowledged that the case turned on an assessment
    of the testimony of Mr. Phan and Ms. Ege.  He then set out the principles that
    would inform this assessment, the principles in
W. (D.),
which he expressed as follows:

Therefore analyzing the core evidence together with the whole
    of the testimony, if I believe Mr. Phan or have a reasonable doubt because I do
    not know whether to believe him or not, then I must acquit. In other words, if
    after a careful analysis of all the evidence I am unable to decide whom to
    believe, an acquittal is the proper result. However, even if I am not so
    inclined, then I must consider whether the evidence I accept is sufficiently
    persuasive and convincing to satisfy me, beyond a reasonable doubt, as to Mr.
    Phans guilt.

[12]

The
    trial judge proceeded with a detailed review of various problematic aspects of
    Mr. Phans testimony such as his evidence that he could not locate a nurse to
    help cover Ms. D.A.R.; his reliance on his purported difficulties with the
    English language; his claim that he was unaware that he was not permitted to
    touch Ms. D.A.R.; his overly detailed evidence about precisely how he rolled
    down Ms. D.A.R.s shirt; and his description of Ms. D.A.R.s shirt.

[13]

The
    trial judge summarized his reaction to Mr. Phans evidence as follows:

In general, I found Mr. Phan evasive, unresponsive and vague in
    many areas of his testimony, especially those which focussed on his actions in
    room 349 with [Ms. D.A.R.] at the time in question. For all of the aforesaid
    reasons, I cannot accept Mr. Phans version of what happened between he and [Ms.
    D.A.R.] in room 349 and the afternoon of June the 13th, nor do I have a
    reasonable doubt that what he says may be true. And as such I am left to
    consider whether the balance of the evidence satisfies the onus which the Crown
    must meet.

[14]

The
    trial judge then listed and analyzed each aspect of Ms. Eges testimony that,
    according to Mr. Phans counsel, rendered it unreliable and incredible. These
    issues included, among others, inconsistencies about what closet Ms. Ege hid
    in, whether Mr. Phan put his hands through or over Ms. D.A.R.s bedrails, and
    the extent to which Ms. Ege could observe Ms. D.A.R.s bed from her hiding
    spot.

[15]

Following
    his review of these concerns, the trial judge noted various positive aspects of
    Ms. Eges testimony.  She was an independent witness.  She gave her evidence in
    a clear and forthright manner.  She acknowledged the errors in her evidence but
    was unshaken on cross-examination on the essence of what she observed on the
    day in question.

[16]

The
    trial judge concluded his assessment of Ms. Eges evidence by saying:

In my view, she withstood a lengthy and detailed
    cross-examination in which she acknowledged errors on some details, but she
    remains sure and unshaken on the essence of what she saw; Mr. Phans two hands
    placed under [Ms. D.A.R.s] clothing on her breasts and moved in a circular
    motion or massaging manner for four to five seconds.

[17]

The
    trial judge then found that he was satisfied beyond a reasonable doubt that what
    happened in Ms. D.A.R.s room on June 13, 2009, was as Ms. Ege described it. 
    He therefore found Mr. Phan guilty of sexual assault and sentenced him to eight
    months in jail plus two years probation.

THE GROUNDS OF APPEAL

[18]

The
    issues Mr. Phan raises on appeal centre on the manner in which the trial judge
    dealt with the evidence and the credibility of Mr. Phan and Ms. Ege.  He advances
    two arguments:

1.

The
    trial judge erred in his articulation and application of the second step in the
W. (D.)
analysis, and

2.

The
    trial judge erred by subjecting the evidence of Mr. Phan and Ms. Ege to unequal
    scrutiny.

ANALYSIS

(1)

Did the trial judge err in his
W. (D.)
analysis?

The Legal Principles

[19]

In cases like this, involving conflicting assertions and denials of conduct,
    the trial judges reasons must demonstrate an understanding of the relationship
    between reasonable doubt and credibility and the application of this
    understanding to his or her analysis:
W. (D.)
at p. 758;
R. v. C.L.Y.
, 2008 SCC
    2, [2008] 1 S.C.R. 5, at paras. 7, 9;
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 46; and
R. v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13.

[20]

The
W. (D.)
test sets out the
    relationship between credibility and reasonable doubt as follows, at p. 758:

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.

[21]

The essence of the test is that the prosecution carries the burden
    of proof

a burden that
    requires proof beyond a reasonable doubt of each essential element of the
    offence.  Of particular significance to this case, the prosecution has not met
    its burden just because the accuseds explanation is not believed:
J.H.S.
,
at para. 13.

Application of the
W. (D.)

Principles

[22]

Counsel
    for Mr. Phan submits that the trial judges
W. (D.)
analysis is
    flawed in both the articulation of the test and in its application. First, he argues
    that the trial judge incorrectly equated the second step of
W. (D.)
with being unable to decide whom to believe.  Specifically, counsel points to
    the trial judges explanation of the test, in which he said, [i]n other words,
    if after a careful analysis of all the evidence I am unable to decide whom to
    believe, an acquittal is the proper result.  Mr. Phan points out that the
    second branch of
W. (D.)
, intended to leave room for the possibility
    that the accuseds evidence could have raised a reasonable doubt even if it was
    rejected, was not captured in the trial judges expression of the test.

[23]

Second,
    counsel for Mr. Phan submits that this error is reflected in the trial judges
    misapplication of the test.  Under the second branch of
W. (D.)
,
    the trial judge was required to examine whether, despite having rejected Mr.
    Phans testimony, his evidence nonetheless raised a reasonable doubt about his
    guilt. The argument is that the trial judge, by considering whether he had a
    reasonable doubt that what [Mr. Phan] says may be true, held Mr. Phan to a
    higher standard.  This standard required Mr. Phan to convince the trial judge
    that there was at least a possibility that his evidence was truthful as opposed
    to merely raising a reasonable doubt about his guilt.

[24]

I
    agree with Mr. Phan that the trial judges articulation of the second part of
    the
W. (D.)
test is inaccurate. However, as has often been stated,
    the import of the
W. (D.)
analysis does not lie in the expression
    of the formula but in the application of its principles:
R. v. S. (W.D.)
,
    [1994] 3 S.C.R. 521, at p. 533.
The critical question is
    whether the reasons, viewed as a whole, demonstrate the trial judges grasp of
    the substance of the relationship between reasonable doubt and the assessment
    of credibility:
R.E.M.
,
at para. 46.

[25]

In
    my view, despite the trial judges inaccurate paraphrasing of the test, the
    reasons demonstrate that he properly applied the second step in
W. (D.).
The trial judge examined whether, despite having rejected Mr. Phans testimony,
    his evidence nonetheless raised a reasonable doubt about his guilt. The only
    exculpatory evidence was Mr. Phans innocent explanation for touching Ms.
    D.A.R.  Apart from this explanation, there was nothing in Mr. Phans evidence
    that could have raised a reasonable doubt about his guilt. The trial judges
    statement is merely a reflection of this reality: if there was no chance that
    Mr. Phans explanation was true, his evidence was not capable of raising a
    reasonable doubt. I therefore interpret the trial judgments statement that he
    did not have a reasonable doubt that what [Mr. Phan] says may be true as correctly
    capturing the essence of the second branch of
W. (D.)
in the
    context of this case.

[26]

After
    rejecting Mr. Phans evidence and finding he was not left in reasonable doubt by
    it, the trial judge considered, as he was required to, whether he was convinced
    beyond a reasonable doubt of Mr. Phans guilt on the basis of the evidence he
    did accept.

[27]

I
    find nothing in the reasons that suggests that the trial judge erred by
    shifting the burden to Mr. Phan or holding him to a higher standard of proof. Read
    as a whole, the trial judges reasons do not indicate that he was engaging in a
    credibility contest between Mr. Phan and Ms. Ege.

[28]

I
    would therefore not give effect to this ground of appeal.

(2)

Did the trial judge err by applying an uneven level of scrutiny?

The Legal Principles

[29]

Counsel
    for Mr. Phan submits that the trial judge applied an unforgiving level of
    scrutiny to Mr. Phans testimony but brushed aside as inconsequential the many
    serious difficulties apparent in Ms. Eges testimony.

[30]

Subjecting
    the evidence of the defence to a higher or stricter level of scrutiny than the
    evidence of the Crown is an error of law:
R. v. Owen
(2001), 150 O.A.C.
    378 (C.A.), at para.
3;
R. v. Minuskin
(2003), 68
    O.R. (3d) 577 (C.A.), at paras.
18, 33; and
R. v. H.C.
, 2009
    ONCA 56, 244 O.A.C. 288, at para. 62.

[31]

In
    the event of such an error, the deference normally owed to the trial judges
    credibility assessment is generally displaced. This court, in
Owen
, expressed
    this in the following passage, at para. 3:

While an appellate court must defer to a trial judges
    assessment of credibility, intervention is appropriate where a trial judges reasons
    reflect legal error in the method used to assess credibility.  In
    particular, this court has held that the application of a stricter standard of
    scrutiny to the evidence of an accused than that used to assess the evidence of
    Crown witnesses amounts to legal error justifying appellate intervention.

[32]

In
R. v. Howe
, (2005), 192 C.C.C. (3d) 480 (C.A.), Doherty J.A. set out
    the definitive and oft-quoted standard to be surmounted by an appellant who
    argues that the trial judge applied a higher standard of scrutiny to the
    defence evidence than to the Crown evidence. He stated as follows, at paras.
    58-59:

Counsel  contends that the trial judge applied a higher
    standard of scrutiny in his assessment of the appellant's evidence and
    credibility than he did when considering the evidence and credibility of [the
    complainant].

This argument or some variation on it is common on appeals from
    conviction in judge alone trials where the evidence pits the word of the
    complainant against the denial of the accused and the result turns on the trial
    judge's credibility assessments. This is a difficult argument to make
    successfully. It is not enough to show that a different trial judge could have
    reached a different credibility assessment, or that the trial judge failed to
    say something that he could have said in assessing the respective credibility
    of the complainant and the accused, or that he failed to expressly set out
    legal principles relevant to that credibility assessment. To succeed in this
    kind of argument, the appellant must point to something in the reasons of the
    trial judge or perhaps elsewhere in the record that make it clear that the
    trial judge had applied different standards in assessing the evidence of the
    appellant and the complainant. [Emphasis added.]

[33]

In the recent decision in
R. v. Aird
,
    2013 ONCA 447, 307 O.A.C. 183, at para. 39, this court reinforced the
    difficulty of meeting this standard:

The different standards of scrutiny argument is a difficult
    argument to succeed on in an appellate court.  It is difficult for two
    related reasons: credibility findings are the province of the trial judge and
    attract a very high degree of deference on appeal; and appellate courts
    invariably view this argument with skepticism, seeing it as a veiled invitation
    to reassess the trial judges credibility determinations.

[34]

Therefore, f
or Mr. Phan to succeed on this ground of appeal, he
    must be able to identify something clear in the trial judges reasons or in the
    record indicating that a different standard of scrutiny was applied  something
    sufficiently significant that the heavy door of deference is opened to the
    domain of the trial judge, where credibility is assessed.

[35]

The
    question is whether that rigorous test has been met here.

Application of the Uneven Scrutiny Principles

(a)

The trial judges assessment of Mr. Phans evidence and credibility

[36]

The
    trial judge set out various aspects of Mr. Phans evidence that he found
    troubling.

(i)

Mr. Phan testified that he looked for a nurse to roll down Ms. D.A.R.s
    shirt but was unable to find one

[37]

Mr.
    Phan explained his actions by stating that there were no nurses available to
    attend to Ms. D.A.R.  However, the nurses station was only 40 feet away and
    the evidence showed that there would have been several nurses at the station at
    the time of the incident.  Furthermore, in the letter Mr. Phan wrote to his
    union in an attempt to save his job, he did not mention that he had looked for
    a nurse before going to Ms. D.A.R.s assistance. The trial judge expressed
    concern that if Mr. Phan had actually looked for a nurse, one would think that he
    would have mentioned this in his letter.

[38]

In
    my view it was reasonable for the trial judge to express doubt about the
    veracity of Mr. Phans justification for his actions, in the light of the
    evidence that undermined his testimony on this point.

(ii)

Mr. Phan exaggerated his difficulties with the English language

[39]

Mr.
    Phans facility in English became relevant because he used it to attempt to
    resile from his acknowledgement in the letter that he knew it may be wrong to
    touch Ms. D.A.R.  At trial, he was cross-examined on the portion of his letter
    in which he stated, [t]hen I felt uncertain and asked myself if my help was
    right or wrong. Mr. Phan testified that this statement should not be
    attributed to him.  He claimed that a friend had written the letter for him due
    to his difficulty with English.

[40]

However,
    there was evidence that undermined Mr. Phans attempt to distance himself from
    the statement in the letter, including uncontradicted testimony that at work
    Mr. Phan had, on several occasions, acted as an English/Cambodian translator. 
    It was therefore open to the trial judge to view Mr. Phans attempt to feign
    difficulty with English as adversely affecting his credibility.

(iii)

Mr. Phans claim that he was unaware that he was not allowed to touch
    Ms. D.A.R.

[41]

Mr.
    Phan testified that he did not realize that he was not permitted to touch Ms.
    D.A.R.  However, both Ms. Ege and the administrator of the facility testified
    that as a matter of policy, housekeeping staff were instructed not to touch
    patients.  A third Crown witness testified that on one occasion, after Mr. Phan
    was seen pushing Ms. D.A.R. in her wheelchair, he was told that he was not
    permitted to do so.  Furthermore, although Mr. Phan denied ever being told not
    to touch or assist patients, he admitted during cross-examination that he knew
    it would be wrong to touch Ms. D.A.R.

[42]

Mr.
    Phans claim that he was unaware that his actions were wrong was not borne out
    by the evidence, and the trial judge cannot be faulted for considering this
    when assessing the veracity of Mr. Phans version of events.

(iv)

Mr. Phans description of how he pulled down Ms. D.A.R.s shirt was
    rather exaggerated in detail compared to the simplicity of the task

[43]

In
    describing how he pulled down Ms. D.A.R.s shirt, Mr. Phan gave considerable
    detail about how tightly her shirt was rolled, how he moved his hands to unroll
    her shirt and his efforts to avoid touching her in the process.  In my view,
    the trial judge was entitled to view this evidence with suspicion for the
    reason he expressed - the overly detailed description of a relatively simple
    task.

(v)

Mr. Phans description of Ms. D.A.R.s clothing was inconsistent with
    the evidence of the other witnesses

[44]

Mr.
    Phan stated that Ms. D.A.R.s shirt was red, whereas the other witnesses
    testified that it was dark blue or black.  Mr. Phan also stated that she was
    wearing only one shirt, while the other witnesses indicated that she was
    wearing two shirts.  Mr. Phan suggests that these are rather benign
    inconsistencies: he merely overlooked a few insignificant details.

[45]

However,
    in my view, this evidence supports the trial judges adverse credibility
    finding. Mr. Phans description of how he rolled down Ms. D.A.R.s shirt and his
    efforts not to touch Ms. D.A.R. in the process were highly descriptive. His
    inability to remember the number or colour of the shirts that were the focus of
    this description casts doubt on his purported ability to remember such a high
    degree of detail about the interaction.  It was reasonable for the trial judge
    to rely on this inconsistency in concluding that Mr. Phans version of events was
    not true.

(vi)

His demeanour was evasive, unresponsive and vague

[46]

The
    trial judge was in the best position to observe Mr. Phans demeanour. The
    record shows that there were certain points, particularly when Mr. Phan was
    questioned about the letter, when he was evasive and unresponsive. The trial
    judge was entitled to make this assessment and consider it in coming to his
    conclusion that Mr. Phans description of what took place must be rejected.

[47]

Taking
    all of these factors into consideration, not in isolation but collectively, it
    was certainly open to the trial judge to reject Mr. Phans version of events.

[48]

However,
    the issue in terms of this ground of appeal is whether the trial judge applied
    a higher standard of scrutiny in his assessment of Mr. Phans evidence and
    credibility than he did when considering the evidence and credibility of Ms.
    Ege.

[49]

This
    takes me to the trial judges treatment of the various problematic aspects of
    Ms. Eges evidence upon which Mr. Phan relies.

(b)

The trial judges assessment of Ms. Eges testimony

[50]

When
    reviewing Ms. Eges evidence, the trial judge was required to deal with a
    number of inconsistencies and inaccuracies.

(i)

Ms. Ege made inconsistent statements as to which of the two closets she
    was in

[51]

Immediately
    after witnessing the alleged assault, Ms. Ege told the administrator of the
    facility that she had hidden in Ms. D.A.R.s roommates closet; however, in all
    of her subsequent statements, she said she was in Ms. D.A.R.s closet.  The
    trial judge concluded that Ms. Eges initial statement is explained by the fact
    that she was in shock at the time she gave it.  Significantly, in her
    statements to the police and in court, Ms. Ege was clear and consistent  she hid
    in Ms. D.A.R.s closet.

[52]

I
    find no error in the way in which the trial judge dealt with this
    inconsistency. The evidence clearly indicates that at the time Ms. Ege gave her
    initial statement, she felt traumatized by what she had seen, and apart from
    this statement, she consistently maintained that she secreted herself in Ms.
    D.A.R.s closet.

(ii)

Ms. Ege gave inconsistent statements on the duration of the touching

[53]

Initially,
    Ms. Ege told the administrator of the facility that Mr. Phan touched Ms. D.A.R.
    for under a minute; subsequently, at both the preliminary inquiry and at the
    trial, she stated that the touching lasted about 4-5 seconds.  The trial judge dismissed
    this time difference as a minor detail, as he was entitled to do.

(iii)

Ms. Eges evidence conflicts with the evidence of Ms. D.A.R.s mother
    about whether it would be possible to observe Ms. D.A.R.s bed from her
    roommates closet

[54]

Ms.
    D.A.R.s mother stated that, contrary to the testimony of Ms. Ege, it was not
    possible to see Ms. D.A.R.s bed from the roommates closet. In reconciling
    this conflicting evidence, the trial judge stated that Ms. D.A.R.s mother made
    this statement on the assumption that the curtain between the beds was closed. 
    Mr. Phan argues that in so doing, the trial judge improperly read an assumption
    into Ms. D.A.R.s mothers statement.

[55]

In
    my view, the trial judge was correct in his interpretation of Ms. D.A.R.s
    mothers evidence.  She testified that the curtain between the beds was
    typically closed.  Immediately thereafter, Ms. D.A.R.s mother was asked about
    whether her daughters bed was visible from the roommates closet. In this context,
    the trial judges assumption is understandable, particularly given the photographic
    and other evidence indicating that the two beds were only a few feet apart.  The
    only way the view of Ms. D.A.R.s bed would be blocked is if the curtain
    between the beds was closed. Moreover, Ms. Ege testified that the curtain
    between the beds was open when Mr. Phans actions in relation to Ms. D.A.R.
    took place.

[56]

Therefore,
    I do not find fault with the trial judges reconciliation of this evidence.

(iv)

Ms. Ege failed to mention seeing the skin of Ms. D.A.R.s breasts before
    the preliminary inquiry

[57]

The
    trial judge considered this alleged inconsistency by first noting that it was
    unclear whether, before the preliminary inquiry, Ms. Ege was specifically asked
    whether she had seen the skin of Ms. D.A.R.s breasts. The trial judge also
    referred to Ms. Eges testimony that in her prior statement, when she said she
    had seen Mr. Phan touching Ms. D.A.R.s breasts, she meant that she had seen
    the skin of Ms. D.A.R.s breasts.

[58]

I
    find no fault in the trial judges treatment of this aspect of Ms. Eges
    testimony.

(v)

Ms. Ege only agreed that Mr. Phan pulled down Ms. D.A.R.s shirt when
    confronted with her testimony from the preliminary inquiry

[59]

At
    trial, Ms. Ege stated that she did not remember whether Mr. Phan pulled down Ms.
    D.A.R.s shirt before he left the room.  When reminded of her testimony at the
    preliminary inquiry in which she stated that Mr. Phan had pulled Ms. D.A.R.s
    shirt down, she agreed that Mr. Phan must have done so, because she remembered Ms.
    D.A.R.s being covered when Mr. Phan left the room.  The trial judge concluded
    that Ms. Ege had a slight memory loss on this detail and that she was not attempting
    to mislead the court.

[60]

Given
    Ms. Eges admission that she did not remember whether Mr. Phan pulled the shirt
    down and her assumption that he must have done so, in my view it was reasonable
    for the trial judge to treat this difference as benign.

(vi)

Ms. Ege said that she could see the door to the hallway from her
    position inside the closet

[61]

Defence
    counsel argued that Ms. Eges evidence that she could see the door to the hallway
    from her position inside the closet was not credible.

[62]

In
    my opinion, the trial judge rejected this argument for legitimate reasons.  Ms.
    Ege testified that she left the closet door somewhat ajar so she could see out,
    and the trial judge held that the photos demonstrated that it was possible to
    see the hallway door from the closet. In any event, the trial judge interpreted
    Ms. Ege as suggesting that she assumed Mr. Phan had entered the room from the
    hallway.

(vii)

Ms. Ege did not see or did report that Mr. Phan pulled up the sheet to
    cover Ms. D.A.R. before he left the room

[63]

Mr.
    Phan relies heavily on Ms. Eges failure to indicate that she saw him pull the
    sheet over Ms. D.A.R. when it was clear that, after the incident, Ms. D.A.R.
    was covered by a sheet.  Mr. Phan argues that this significantly undermines the
    reliability of Ms. Eges evidence that she actually observed Mr. Phans
    interaction with Ms. D.A.R.

[64]

The
    trial judge dealt with this argument by stating that Ms. Ege was numb after
    the incident occurred and that there was a gap of about half an hour between Mr.
    Phans leaving the room and a nurses coming to check on Ms. D.A.R. and finding
    a sheet over her.  While it was speculative to conclude that someone else came
    into the room to pull up the sheet in the intervening period, in my view it was
    open to the trial judge to rely on Ms. Eges emotional state as an explanation
    for why she did not notice or report Mr. Phans pulling the sheet up.

(viii)

Ms. Ege initially told the police that Mr. Phan had reached through the
    bedrails, but testified at trial that he reached over the bedrails

[65]

This
    is another discrepancy that Mr. Phan emphasizes in his uneven scrutiny
    argument.

[66]

In
    reacting to this discrepancy, the trial judge expressed the view that at the
    time of her initial statement, Ms. Ege must have been confused because she clearly
    stated that it would be difficult to reach through the bedrails. While I agree
    with Mr. Phans counsel that this explanation strikes me as somewhat weak, it must
    be considered together with the manner in which the trial judge addressed the
    other potentially problematic aspects of Ms. Eges evidence.

(ix)

When looking at the photos of the room, Ms. Ege mistook the bathroom
    door for the hall door

[67]

The
    trial judge explained this discrepancy by suggesting that Ms. Ege was confused
    or misunderstood what she was being asked.

[68]

While
    Ms. Eges inability to identify the bathroom door in the photos was an issue to
    which the trial judge could have given more attention in his reasons, this
    evidence was of little import.  That said, like the trial judges treatment of
    the bedrail evidence, it forms part of the analysis of this ground of appeal.

The trial judges overall
    assessment of Ms. Eges evidence

[69]

While
    the trial judges reasoning in relation to these last two matters is less than
    satisfactory, I do not agree with Mr. Phans submission that the trial judge
    simply glossed over problems with Ms. Eges evidence on significant issues.  In
    my view, many of the inconsistencies upon which Mr. Phan relies are not
    actually inconsistent.  When there were actual inconsistencies, none related to
    matters of significance in terms of the proof of the Crowns case.  Moreover, the
    trial judge accepted Ms. Eges explanation of those inconsistencies or
    otherwise carefully addressed them and reconciled them with the totality of her
    evidence by explaining why they did not affect his assessment of her credibility.

[70]

Furthermore,
    it is apparent why, notwithstanding certain knotty aspects of Ms. Eges testimony,
    the trial judge found her to be credible.  As he noted, she was an independent
    witness, she testified in a forthright manner, she had no motive to lie and she
    readily admitted errors in her evidence on certain details.  There was no
    indication that she was being untruthful.

[71]

In
    my view, reading his reasons as a whole, the trial judge did not apply a
    different standard of scrutiny to the evidence.  He dealt comprehensively with
    the troublesome aspects of the evidence of both Ms. Ege and Mr. Phan.  While it
    is true that he rejected much of Mr. Phans evidence and accepted Ms. Eges
    evidence despite certain inconsistencies, he did so because the problems with
    the two witnesses evidence logically led to different inferences.

[72]

The
    problems with Mr. Phans evidence went beyond a difficulty recollecting certain
    details.  The issues with his evidence all pointed to the conclusion that Mr.
    Phans innocent explanation for touching Ms. D.A.R. was simply not true.

[73]

In
    contrast, the inconsistencies in Ms. Eges evidence pointed more to reliability
    problems.  None suggested that she was attempting to mislead the court; rather,
    they could logically be attributed to issues associated with being asked to
    recall minute details about a sexual assault of a young and severely disabled
    woman.  As the trial judge recognized, it is significant that in spite of these
    difficult circumstances, Ms. Ege remained steadfast in her description of the
    central details of Mr. Phans actions in relation to Ms. D.A.R.

[74]

This
    is not a case in which the trial judge used two different measuring sticks in
    gauging the credibility of the two witnesses. While the trial judge attached
    less weight to the weaknesses in Ms. Eges evidence than the defence urged upon
    him, he was, for the reasons I have set out, entitled to do so.

[75]

The
    trial judge was in the best position to consider the evidence and make
    credibility findings based on all of the tools available to him.  In my view,
    his conclusions were not only supported by the evidence; they were arrived at fairly.

[76]

As
    I have said, the unequal scrutiny argument is a difficult one to establish.  In
    my view, it has not been established in this case.  I would therefore not give
    effect to this ground of appeal.

DISPOSITION

[77]

For
    these reasons, I would dismiss the appeal.

Released: December 24, 2013 (PR)

Gloria Epstein J.A.

I agree.  Paul Rouleau J.A.

I agree.  David Watt J.A.


