WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and MacPherson JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.J.
Appellant
Craig Parry, for the appellant
Benita Wassenaar, for the respondent
Heard and released orally: April 6, 2011
On appeal from the finding of guilt entered on December 2, 2008, and the disposition imposed on March 17, 2009, by Justice Margaret F. Woolcott of the Ontario Court of Justice.
ENDORSEMENT
1The appellant stood trial on an information that charged him with sexual interference, invitation to sexual touching and sexual assault.
2The trial took place on a single day, December 2, 2008. There were two witnesses, the complainant, aged 15, and the appellant, aged 19. Their testimony centered on sexual activities the complainant alleged took place between the two boys, next-door neighbours, for several years when the complainant was about 10 to 13 years old and the appellant was about 14 to 17 years old.
3The trial judge rendered her decision at the conclusion of the trial. She convicted the appellant on all three charges. He appeals his conviction. He abandoned his sentence appeal.
4The appellant contends that the trial judge did not properly apply the criminal standard of proof in this case. Crucial components of this failure, asserts the appellant, were the trial judge’s treatment and non-treatment of serious inconsistencies between the complainant’s statement to the police and his testimony at the trial, her reasoning and lack thereof with respect to her rejection of the appellant’s testimony, and her formulation of her ultimate conclusion that the Crown had proved the case against the appellant beyond a reasonable doubt.
5We admire the trial judge’s attempt to provide the parties with a comprehensive oral judgment at the end of a long trial day. We also recognize that an appellate court must be careful not to scrutinize too critically the oral reasons of a judge working in a busy trial court, especially when those reasons are anchored, at bottom, in her assessment of the credibility of only two witnesses, a youthful complainant and a youthful accused who chose to testify in his defence.
6However, in the end we accept the appellant’s submissions on this appeal. The trial judge’s reasons, read as a whole, do not satisfy us that she properly applied the criminal standard of proof in this case.
7The trial judge acknowledged that there were inconsistencies between the complainant’s police statement and his trial testimony. The complainant told the police that the sexual activities occurred 7 or 8 or 25 or 30 times. He testified that they took place every time the boys met, hundreds of times. In his testimony, he acknowledged that these descriptions were “vastly different”. The complainant conceded in his testimony that “yeah, that’s another guess”. He said that the sexual activity both always and never occurred when the appellant was babysitting him. Unfortunately, the trial judge ignored many significant inconsistencies or stated them baldly without addressing their impact.
8The trial judge also appeared to treat the appellant’s testimony (we emphasize that both the complainant and the appellant were young people) quite critically. She said that he made cross-examination difficult because he asserted a blanket denial of all the alleged incidents. She stated, improperly, that the appellant “could not give any reason why the complainant would have wanted to tell stories about him.” She tended to inflate the appellant’s age and reduce the complainant’s age throughout her reasons, thereby creating an inaccurate age differential between the two boys.
9Finally, and most importantly, the trial judge’s statement of her ultimate conclusion is, with respect, problematic. The trial judge was unable to find that any specific incident of abuse – relating to date, location or activity – actually took place. Moreover, near the end of her reasons, she said:
I find myself in the position of not believing that the events – that is to say that the events vis-à-vis their frequency, vis-à-vis the exact details of the events, vis-à-vis always the exact location and the timing of the events – I find myself unable to make a finding that Mr. M. was accurate with respect to that. Having said that, however, I am not in a position of rejecting the evidence of Mr. M. when he says to me that there were sexual occurrences between him and Mr. J.. And, I am not in a position of rejecting that those occurrences were on an ongoing basis. And, I am not in a position of rejecting that those occurrences included being touched by Mr. J., being invited by Mr. J. to touch Mr. J. and being sexually assaulted by Mr. J., i.e. sodomization.
10This combination of a fairly sweeping rejection of the complainant’s evidence relating to important components of the alleged sexual activities and an almost half-hearted reliance on the residue of his testimony are not, in our view, sufficient to ground a conviction on the criminal standard of proof.
11The appeal is allowed, the convictions are set aside, and a new trial is ordered.
“J. I. Laskin J.A.”
“J. C. MacPherson J.A.”
“Robert J. Sharpe J.A.”
