Assault appeal focuses on judge’s self-instructions

Law360 Canada (May 22, 2024, 11:02 AM EDT) --

John L. Hill

It is usual in a jury trial and especially in a “he said/she said” case for a judge to charge a jury on the requirement that a conviction results only when the Crown has presented proof beyond a reasonable doubt. How can we be sure that a judge sitting without a jury has been similarly self-instructed? That was the central issue in the Ontario Court of Appeal decision in R. v. Da Silva, 2024 ONCA 242.

Gabriel Da Silva had been seriously injured in a workplace accident on Oct. 31, 2019. The 53-year-old man was in hospital until Nov. 4, 2019, having suffered shoulder and disc damages after being crushed by heavy equipment at work. He used a cane but later told police that such assistance was “just basically a show.” Nonetheless, he did not refuse help from a 70-year-old female personal support worker (PSW), L.C., coming to his home to assist him with exercises and showering. The PSW made only one visit on Nov. 27, 2019. She reported to her supervisor the following day that Da Silva had forced L.C. to place her hand on Da Silva’s genitals and then, without consent, penetrated her anally and vaginally. So she said; he said quite the opposite. Da Silva claimed the PSW had stimulated him by applying cream to his body, climbing onto his bed and urging him to engage in sexual contact.

After the trial in the Ontario Court of Justice, Da Silva was found guilty. The trial judge disbelieved Da Silva’s evidence that the complainant was bigger than him and that her walking with a limp was of recent concern and not an indication of her frailty at the time. The trial had been conducted on Zoom. Da Silva was sentenced to three years in prison for the sexual assault and 30 days concurrent for breaching a court order outstanding at the time of his arrest.

Da Silva launched a sentence appeal but then changed lawyers. His new counsel redrafted the notice of appeal to challenge the conviction and asked for a new trial. Two grounds were advanced: (a) that the trial judge misapprehended the evidence regarding the complainant’s size and limp, and (b) that the trial judge erred in criticizing the defence submission that the trial judge must be “sure” of the accused party’s guilt before a conviction is registered.

The appellate court dismissed the first of these arguments by noting that the trial judge had cautioned himself with the principles set out in R. v. W.(D)., [1991] 1 S.C.R. 742. The Court of Appeal was satisfied that the trial judge had used common sense in not believing the accused, who had testified that the PSW was bigger than he. The trial judge had observed L.C., if only by Zoom, and concluded that Da Silva’s description of a woman able to overpower him was “patently absurd.” Even though L.C.’s testimony was confusing at some points, she was consistent throughout what transpired. Absent an error of law, a trial judge’s findings of fact and credibility should be overturned only if there are palpable and overriding errors (R. v. Kruk, 2024 SCC 7). There was no misapprehension of evidence or flawed reasoning requiring that the verdict be overturned (R. v. Morrissey, (1995) 22 O.R. (3d) 514 (Ont. C.A.); R. v. Loher, 2004 SCC 80).

The second ground involved the Court of Appeal, deciding if the trial judge had misperceived the standard to be applied in finding a person guilty. He cautioned counsel at trial that he should not require the trier of fact to be “sure” before convicting. The trial judge told the defence counsel that the case of R. v. Lifchus, [1997] 3 SCR 320, cautioned against using the word “sure.” This warning should not be interpreted that the trial judge was basing his decision on probable guilt. What the trial judge was referring to in his criticism of the word “sure” was the Ontario Court of Appeal comment in R. v. Norouzali (2003), 177 C.C.C. (3d) 383, where Justice Eileen Gillese had stated that the word “sure” does not assist a jury in understanding the concept of reasonable doubt. As long as the direction in Lifchus is followed, proof beyond a reasonable doubt can be ascertained.

This was a judge-alone trial. The trial judge indeed instructed himself on the standard set out in Lifchus. There was no error in his application of the burden of proof, so there was no need to order a new trial. Since the sentence appeal was abandoned, the three-year global sentence stands.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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