COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. DAVID MARKELL (Appellant)
BEFORE: ROSENBERG, MOLDAVER and GOUDGE JJ.A.
COUNSEL: Robert A. Barr, for the appellant
Philip Downes, for the respondent
HEARD: May 3, 2001
On appeal from his conviction by Justice J. A. Fontana, sitting without a jury, on September 2, 1999
E N D O R S E M E N T
1This court’s power to review a finding of guilt on the basis that a finding of credibility is unreasonable is very narrow. We are required to show great deference to findings of credibility by the trial judge: see R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. This is particularly the case where the main witness is a young child and, as here, the trial judge has had the advantage of seeing the child and viewing her videotaped statement. However, it is also the case, as emphasized by Wilson J. in R. v. B.(G), 1990 CanLII 113 (SCC), [1990] 2 S.C.R. 3, that the evidence of children is subject to the same standard of proof as adults, taking into account the need to take a common-sense approach to such evidence.
2There were many profound internal inconsistencies in the evidence of the child concerning this alleged single isolated incident. Those inconsistencies in the evidence of the eight-year-old child were not peripheral and collateral, as characterized by the trial judge. They went to the core of the alleged offence and included such matters as the room where it occurred, how it occurred, who was physically present when the offence allegedly occurred, and when it was disclosed. The child’s evidence was also inconsistent in many respects with the evidence of the adult witnesses who testified for the prosecution. The trial judge never attempted to reconcile these contradictions and discrepancies, nor explain how he could be satisfied beyond a reasonable doubt in the face of these serious problems. We think that the trial judge was wrong to simply forgive the many inconsistencies because of the age of the complainant and so, in effect, lower the standard of proof.
3The evidence in this case was so confused and contradictory that it did not meet the criminal burden of proof. In our view, this is one of those very rare cases where the credibility finding was unreasonable.
4Accordingly, the appeal is allowed, the convictions are set aside, and an acquittal entered.
(signed) “M. Rosenberg J.A.”
(signed) “M. J. Moldaver J.A.”
(signed) “S. T. Goudge J.A.”