COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– R.H.A.
(Appellant)
BEFORE: LASKIN, FELDMAN and O’CONNOR JJ.A.
COUNSEL: John Norris, for the appellant
Laura Hodgson, for the respondent
HEARD: June 28, 2000
On appeal from the conviction imposed by Smith J. dated September
17, 1998 and on appeal from the sentence imposed by Smith J.
dated November 12, 1998 at Guelph.
E N D O R S E M E N T
1The appellant appeals his conviction for sexual assault and
his sentence of six months’ imprisonment. In our view, the trial
judge made two errors in his assessment of the credibility and
reliability of the complainant’s and the appellant’s evidence
which, taken together, make the verdict unsafe and warrant a new
trial.
2First, the trial judge found that the complainant’s evidence
about how old she was when the alleged incident occurred was
“confirmed by her mother in more ways than one.” He then used
the complainant’s evidence of her age to support her credibility
concerning the incident itself. Although the transcript is not
entirely clear, on a fair reading of it, neither the complainant
nor her mother had an independent recollection of when the
incident took place. Rather, they arrived at the age of 8 to 9
years after joint discussion and joint reconstruction. Thus, the
trial judge erred in using this evidence to bolster the
complainant’s credibility.
3The trial judge was then left with only the complainant’s
demeanour, which he used to support a finding that the offence
was committed beyond a reasonable doubt. However, this case
turned not just on the credibility of the complainant but on the
reliability of her evidence. As the trial judge acknowledged,
the complainant’s demeanour went, at best, to her credibility,
not to her reliability.
4The second error made by the trial judge concerned his
treatment of the implausibility of the incident occurring in the
middle of the day at a place in a public park which could be seen
by people in the park and by the neighbouring residents. At
trial the defence relied heavily on the implausibility of the
incident. In our view, the trial judge erred in failing to test
the complainant’s credibility and reliability against the
improbability of the incident occurring when and where it was
alleged to have occurred. See R. v. Gostick (1999), 137 C.C.C.
(3d) 53 (Ont. C.A.). Instead of testing the complainant’s
credibility and reliability against the implausibility of the
incident having occurred in the circumstances she described, the
trial judge discounted that this implausibility could raise a
reasonable doubt.
5In the light of these two errors taken together, the
conviction cannot stand. Accordingly, the appeal is allowed, the
conviction is set aside and a new trial is ordered.
Signed: “John Laskin J.A.”
“K. Feldman J.A.”
“Dennis O’Connor J.A.”
