COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. M.J. (Appellant)
BEFORE:
WEILER, CHARRON and SHARPE JJ.A.
COUNSEL:
Michael Lomer,
for the appellant
Carol Ann Bauman,
for the respondent
HEARD:
March 27, 2002
RELEASED ORALLY:
March 27, 2002
On appeal from the conviction and sentence imposed by Justice F. Fisher dated October 5, 2000.
ENDORSEMENT
1Following his trial in youth court, the appellant was found guilty of one count of sexual interference and one count of breach of probation. He received a disposition of three months closed custody, followed by twelve months open custody and eighteen months probation, in addition to four months of pre-trial custody. He appeals against conviction and sentence.
2The alleged sexual offence involved a 5 year-old boy. The appellant was 15 years old at the time. It was alleged that the appellant had the complainant perform oral sex on him. The issues at trial clearly turned on the trial judge’s assessment of the credibility of the complainant and of the appellant. At the commencement of his reasons for judgment, the trial judge identified the central issue in the case in these words:
I have to decide between the credibility of H., who was 5 years old at the time, and the credibility of M.J., who was 15 years old at the time.
3After finding that the appellant and the complainant would have been alone for a period of time on the day in question, the trial judge proceeded to assess the credibility of the complainant, and concluded that he believed the child’s evidence. The trial judge’s assessment of the child’s credibility was largely based on his view that it was impossible that the child would have made up the events that he described.
4Having found the complainant credible, the trial judge then rejected the appellant’s testimony for the following reasons:
With respect to M.J., why would he lie? Well, obviously, you lie to avoid being convicted, his record is a serious one. I am supposed to use that to indicate that somebody with a record like that may not be credible, and that of course, can be part of this judgment. The fact that he has always admitted before and he has denied it now, I guess M.J. is sick of being locked up and incarcerated.
5The trial judge’s reasons disclose two errors that form the basis of this appeal.
6First, as evidenced in the above-noted excerpt, the trial judge identified the central issue in the case in terms of a credibility contest, rather than in accordance with the well established test in R. v. W.(D.) (1991), 63 C.C.C. (3d) (S.C.C.). Crown counsel submits that the trial judge would have been aware of the proper test since it was argued before him in submissions that immediately preceded the judgment. Counsel further submits that the oral reasons of the judge were simply responsive to the argument of defence counsel, who submitted that the complainant should not be believed and that the appellant should be believed. Finally, counsel submits that the trial judge’s findings of credibility are well supported in the evidence.
7We are unable to accept the Crown’s submissions. We do not view the trial judge’s reasons as being simply responsive to counsel’s submissions as suggested. Rather, it would appear from a reading of the trial judge’s reasons as a whole that he proceeded to analyse the case in precisely the manner in which he identified the issue to be determined, namely a credibility contest. His analysis was entirely focussed on an inquiry into who, as between the appellant and the complainant, was most likely to be lying to the court. In these circumstances, we are not satisfied that the trial judge gave effect to the correct burden of proof.
8In our view, this is not a case where this court can substitute its own assessment of the evidence. Consequently, the fact that there may well be evidence to support the verdict, as submitted by Crown counsel, cannot serve to cure the error.
9The second error lies in the basis for rejecting the appellant’s testimony. The reasons reveal that the trial judge, for the most part, proceeded on the erroneous assumption that the appellant’s testimony was inherently suspect because, as an accused person, he stood to gain by lying to the court. This motive, together with the reference to the appellant’s criminal record, were the only reasons given for rejecting his testimony. This approach, in effect, places a burden on an accused person that runs contrary to the presumption of innocence and constitutes an error of law: see R. v. Murray (1997), 115 C.C.C. (3d) 225 (Ont. C.A.).
10In view of these two errors, the conviction for sexual assault cannot stand. The parties agree that the conviction for breach of probation must stand or fall with the conviction on the sexual offence given that the alleged breach of probation was the sexual offence itself.
11The appeal is therefore allowed, the convictions are set aside and a new trial is ordered.
April 5, 2002
“Weiler J.A.”
“Charron J.A.”
“Sharpe J.A.”
