WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

Date: 20200324 Docket: C65108

Strathy C.J.O., Miller and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

W.M. Appellant

Counsel: W. John McCulligh, for the appellant Caitlin Sharawy, for the respondent

Heard: March 6, 2020

On appeal from the conviction entered on May 30, 2017 by Justice John R. Sproat of the Superior Court of Justice.

Strathy C.J.O.:

[1] The appellant appeals his convictions for sexual interference and sexual assault of his daughter, who was approximately four years and ten months of age at the time of the offences. A stay was entered in relation to the second count. He was sentenced to four years’ imprisonment and ancillary orders were made.

[2] For the reasons that follow, I would allow the appeal and order a new trial.

The Evidence

[3] The child’s mother testified that the incident came to light after the Children’s Aid Society (“CAS”) informed her that the child had engaged in sexualized behaviour at school. The mother had some knowledge of her husband’s past, discussed below, which prompted her to ask her daughter, “did daddy touch your vagina?” The child replied, “yes”. The mother told the child that if her father ever touched her again, she should run and get her. The mother ultimately notified the police, and the appellant was charged.

[4] Shortly after the alleged incident, the child made a video statement. It was admitted in evidence at trial and she adopted it as true. She said that her father had touched her vagina with his hand, over her pyjamas, while he was standing beside her bed. She claimed that she had screamed for her mother, who came into the room and said, “Did dad touch your vagina again?” She replied “yes”.

[5] In the course of trial preparation, the child disclosed a second incident in which she alleged that the appellant had touched her vagina with a spoon or a round object. At trial, she said that she was in bed sleeping when the appellant, who was standing beside her bed, pulled down her pyjamas and touched her vagina. She did not see the spoon, but the object was metal, smooth, and circle-shaped. She said that the spoon incident took place when she was five years old and that it occurred before the touching with the hand. She said that she forgot to tell the officer who took her statement about the touching with the spoon.

[6] There were some inconsistencies in the complainant’s evidence. This was not surprising in view of the child’s age when the events were alleged to have occurred, and the passage of about two years between those events and the trial. There were also some inconsistencies between the mother’s evidence and the child’s.

[7] The appellant testified and denied the allegations.

[8] The trial judge admitted similar fact evidence of offences that the appellant pleaded guilty to in 1998:

a. between 1985 and 1987, when he was 13 to 15 years old, he sexually assaulted a three to five-year-old child he was babysitting, lifting her night clothes and touching her vagina;

b. between 1995 and 1997, when he was 23 to 25 years old, he sexually assaulted a five to seven-year-old child, going into her bedroom while she was sleeping, exposing her body and touching her vagina.

[9] In addition to convictions for the offences above, the appellant testified that he was convicted in 2000 for dangerous operation of a motor vehicle, possession of proceeds of crime, and break and enter. He was convicted again in 2008 for possession of a weapon, assault with a weapon, and theft under $5,000.

[10] The appellant testified that he himself had been sexually abused as a child while in the care of the CAS. He said that he knew what he was doing was wrong at 13-15 years old, but he did not appreciate just how wrong it was. He said that he better understood the wrongfulness of his actions in 1995-97 when he was 23-25 years old, but nevertheless did what he knew to be wrong because of the sexual gratification he received. However, the 1998 conviction drove home for him how wrong it was. He testified that he was “a changed man” as of 1998 because of his better understanding and his resolve to change.

[11] The appellant testified that he had received sex offender treatment while in custody at the Ontario Correctional Institute for the 2000 convictions. He testified that prior to commencing the sex offender course, he underwent phallometric testing, and his understanding of the results was that he was not a pedophile. He also said that the treatment “helped him learn how to … better understand the feelings of others, to be accountable to the victims, and to learn how to empathise, to have victim empathy.” He looked at his “own triggers … and stressors, and why [he] did what [he] did.” In addition, the appellant testified that as a result of the motor vehicle accident that resulted in his 2000 conviction, he had suffered physical injuries that affected his ability to get an erection and left him unable to experience sexual gratification in the way he had before.

[12] In cross-examination, the appellant testified that he did not have any concerns about re-offending because of: (1) his increased appreciation of the wrongness of his actions as a result of the 1998 conviction and the 2000 sex offender course; and (2) the physiological changes in his body as a result of the 2000 motor vehicle accident.

The Trial Judge’s Reasons

[13] The trial judge correctly described the principles in R. v. W.(D.), [1991] 1 S.C.R. 742. These principles apply to the assessment of evidence in cases of sexual assault and outline the “common sense” approach for assessing the evidence of young children, while at the same time respecting the presumption of innocence and the burden of proof in criminal cases.

[14] The trial judge found that the complainant was credible, in the sense that she wanted to tell the truth. He found that the child’s mother did not influence the child’s evidence, either intentionally or unintentionally, and that the allegations of touching came from the complainant and not from her mother. The inconsistencies between the evidence of the mother and the child did not cause him to doubt the main points of the child’s evidence.

[15] The trial judge noted that the appellant’s cross-examination disclosed aspects of his evidence that were “self-serving or exaggerated or contradictory.” For example, he claimed that he was unable to achieve an erection after the motor vehicle accident in 2000, but it was pointed out to him that he had been able to father a child, the complainant, after that accident. He also initially claimed that he did not realize that touching a child’s vagina was wrong when he was a young person, but acknowledged that the acts were done in private so that he would not be caught and ultimately agreed that he knew it was wrong.

[16] In commenting on the appellant’s evidence in relation to the similar fact evidence, the trial judge observed:

He was asked if he had any concern of reoffending after 2008 . He said the sex offender treatment and other programs he took at the Ontario Correctional Institute in 2008 were such that he did not have a concern about reoffending. [Emphasis added.]

[17] In assessing the weight of the similar fact evidence, the trial judge said:

I accept and take into account that [the appellant] received sex offender treatment while he was incarcerated. That evidence logically does tend to diminish the significance of the situational-specific propensity that [the appellant] had demonstrated in the conduct underpinning his convictions for offences in 1985 to 1987, and 1995 to 1997.

I do note, however, that implicit in [the appellant’s] evidence, that he received and benefited from sex offender treatment in 2008, is that he still had some need of treatment at that time . He still needed to manage his impulses and learn to empathize with victims and learn to recognize triggers and stressors that lead to this behaviour. In other words, the situation-specific propensity that demonstrated itself in 1985 to 1987, and 1990 to 1997 was also present in 2008 . Given that this propensity persisted or at least demonstrated itself over the period 1985 to 2008 , there is every reason to believe it would still be a factor in 2015. No one would suggest that any treatment program is a hundred percent effective.

So, while I factor the treatment program into my analysis, it certainly does not preclude consideration of the long-standing situation-specific propensity that [the appellant] had to touch female children inappropriately . … The significance of similar fact evidence lies in the improbability of coincidence. I think there is virtually no chance that coincidence explains [the appellant] having a criminal record for touching prepubescent females on the vagina while they are in his care and sleeping, and this complainant making the same allegation.” [Emphasis added.]

[18] Ultimately, the trial judge did not accept the appellant’s denial of the allegation and stated that the Crown evidence he accepted satisfied him of the appellant’s guilt beyond a reasonable doubt.

Grounds of Appeal

[19] The appellant raises three grounds of appeal:

1. The trial judge erred in his application of W.(D.) and misapplied the burden of proof;
2. The trial judge’s reasons were insufficient in that they failed to adequately address inconsistencies in the Crown’s evidence; and
3. The trial judge misapprehended the appellant’s evidence concerning his sexual offender treatment and this error had a material impact on the conviction.

[20] As I would allow the appeal on the third ground, I do not find it necessary to address the other two.

Analysis

(1) Legal Principles for the Misapprehension of Evidence

[21] A new trial is required when the appellant has met the “stringent standard” for determining whether a misapprehension of evidence resulted in a miscarriage of justice, as set out in R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 541, see also R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2 . Specifically, the misapprehension of evidence must go to substance rather than detail, it must be material rather than peripheral to the reasoning, and the errors must play an essential part not just in the narrative of the judgment, but in the reasoning process resulting in a conviction: Lohrer, at para. 2 . If the appellant can show that the conviction was based on a misapprehension of evidence, the appellant is entitled to a new trial “even if the evidence, as actually adduced at trial, was capable of supporting a conviction”: Morrissey, at p. 541.

[22] The impact of a misapprehension of evidence is particularly marked in cases where the principle issue is credibility. In such cases, “it is essential that the findings be based on a correct version of the actual evidence”, as “wrong findings on what the evidence is destroy the basis of findings of credibility”: Morrissey, at p. 541, citing Whitehouse v. Reimer (1980), 1980 ABCA 214, 116 D.L.R. (3d) 594 (Alta. C.A.).

(2) Application

(a) The Factual Error

[23] The trial judge’s reasons quoted above, at para. 17, contain a misapprehension of the evidence. The uncontested evidence was that the appellant received sex offender treatment in the Ontario Correctional Institute while he was in custody in 2000 , not in 2008 . Based on the factual error with respect to the date of treatment, the trial judge also found that it was “implicit” in the appellant’s evidence that he still needed treatment in 2008, ten years after his previous offence.

(b) Impact of the Misapprehension of Evidence

[24] The misapprehension of evidence affected the trial judge’s reasons for conviction in two interconnected ways: (1) it led the trial judge to find that the appellant’s propensity to offend was likely active in 2015, when the offences were alleged to have occurred; and (2) the trial judge found, implicitly, that the treatment did not reduce the probative value of the similar fact evidence.

(i) Propensity to Offend in 2015

[25] The trial judge found the fact that the appellant required sex offender treatment in 2008 was evidence that his propensity was still active in 2008 , and therefore, the propensity was likely active in 2015, the time of the charged offences. This factual error led the trial judge to believe that there was evidence of an ongoing propensity that persisted for a 23-year period (from 1985 to 2008). This mistaken finding of fact factored into the trial judge’s rejection of the appellant’s evidence that he had benefitted from treatment and was confident that he would not re-offend as a result.

[26] Under the correct timeline, the appellant’s evidence, including his claim of confidence, would have been more credible. Properly understood, the evidence demonstrated that the appellant had received sexual offender treatment in 2000, within three years of his previous offence in 1998. Furthermore, the propensity had not demonstrated itself in the 15 years after treatment.

(ii) Weight of the Similar Fact Evidence

[27] Second, the factual error affected the weight of the similar fact evidence. This is because treatment could be viewed as an “intervening event” that diminished the probative value of the similar fact evidence: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 132 . The trial judge correctly recognized this in his reasons, stating that treatment “logically does tend to diminish the significance of the situational-specific propensity”. However, the factual error would have impacted the trial judge’s assessment of treatment as an intervening event.

[28] In analyzing the similar fact evidence, the trial judge considered how much time had passed between incidents of demonstrated propensity. As discussed, the trial judge reasoned that the propensity exhibited in the similar fact offences was still a factor in 2015 because of the factual error that the appellant received sexual offender treatment in 2008, only seven years before. This line of reasoning would not have been available on the correct timeline of treatment in 2000. In actuality, the appellant had received treatment eight years earlier, meaning 15 years had passed between treatment and the charged offences – more than twice as long as the trial judge believed. This is a material length of time that would have affected the trial judge’s assessment of the appellant’s evidence that he had benefitted from treatment, and relatedly, the extent to which treatment could be considered an “intervening event” that diminished the probative value of the similar fact evidence.

Conclusion

[29] I am satisfied that the appellant has met the “stringent standard” for determining whether a misapprehension of evidence led to a miscarriage of justice. In the present case, the similar fact evidence played a significant role in the conviction, as did the trial judge’s discounting of the appellant’s evidence concerning the effect of the sexual offender treatment. The misapprehension of the evidence was material and played an essential part in the trial judge’s reasoning process. In cases predicated on credibility, such as this one, “it is essential that the findings be based on a correct version of the actual evidence”: Morrissey, at p. 541.

[30] I would allow the appeal and order a new trial.

“G.R. Strathy C.J.O.”

“I agree. Trotter J.A.”

B.W. Miller J.A. (dissenting):

[31] I have had the benefit of reading the reasons of the Chief Justice and have come to a different conclusion about the materiality of the trial judge’s misapprehension of evidence, which compels a different result. As explained below, I do not believe that the trial judge’s misapprehension of evidence played an essential role in the reasoning process resulting in the conviction. Accordingly, I would dismiss the appeal.

[32] As I understand the trial judge’s reasons, nothing in his reasoning turns on the year in which the appellant undertook sex offender treatment at the Ontario Correctional Institute. The trial judge considered a number of factors in rejecting the appellant’s testimony and determining his guilt beyond reasonable doubt. One of these was the similar fact evidence, and I agree that this evidence carried considerable force. But several other factors led the trial judge to conclude that elements of the appellant’s testimony were “self-serving or exaggerated or contradictory.” All of these factors undermined the appellant’s evidence. Conversely, the trial judge found the complainant to be credible and reliable, despite the inconsistencies in her testimony. The evidence, taken together, convinced the trial judge of the appellant’s guilt beyond reasonable doubt.

[33] With respect to the similar fact evidence, the trial judge drew a powerful conclusion from the appellant’s prior convictions: “there is virtually no chance that coincidence explains [the appellant] having a criminal record for touching prepubescent females on the vagina while they are in his care and sleeping, and this complainant making the same allegation.” He reached this conclusion, notwithstanding the appellant’s voluntary enrollment in a sex offender treatment program, for two reasons.

[34] First, he started from the common sense assessment that such a treatment program would not be completely effective. That is, it could not be asserted that because the appellant took a course for sexual offenders, that he would therefore no longer pose a risk of re-offending. And indeed the appellant did not assert that. He argued that he was “a changed man” as of 1998, as a result of his convictions for sexual offences. On his evidence, it was his new awareness and resolve in 1998, as a result of his convictions, that meant he would not re-offend. He testified that the OCI course was beneficial, but he did not credit the course with bringing out the dramatic change that he said occurred. The trial judge of course rejected the appellant’s evidence that the 1998 convictions wrought the changes he said they did.

[35] Second, the trial judge concluded that because the appellant testified that he benefitted from sex offender treatment, then he must, at the time he chose to undertake the treatment, still have had a propensity towards touching the vaginas of young girls for his sexual gratification. If he had no such propensity, the trial judge reasoned, he would not have chosen to undertake the sexual offender course.

[36] From the evidence of the prior convictions and that the appellant implicitly acknowledged a propensity towards touching young girls for sexual gratification, the trial judge reasoned to a further conclusion: that the “situation-specific propensity” that manifested itself in the sexual assaults of 1985-87 and 1990-97 – a considerable stretch of time – was still operative when the appellant took the course at OCI, which the trial judge incorrectly dated to 2008.

[37] Nothing turns, in my view, on the fact that the trial judge misstated the year in which the appellant conceded that he still had a propensity towards sexual touching of young girls. It was one data point in an extended analysis. Whether it was 2000 or 2008 (as the trial judge misstated), the salient point was that it was a long-held propensity (whether it was 15 years or 23 years), and the fact of having completed a treatment program at OCI (whenever it was completed) did not blunt its significance.

[38] On appeal, the appellant argues that if the trial judge had used the correct date of 2000, the appellant would have benefitted from the additional datum that the appellant had not had any negative incidents for a 15-year period post incarceration, rather than 7 years. This would have bolstered the appellant’s credibility in arguing that he did not commit the offence.

[39] I do not find this argument persuasive. It was not advanced at trial. The appellant did not argue at trial that the length of time that had passed since he took the OCI course on sexual assault – and more specifically his positive behaviour during that time – blunted the similar fact evidence. The fact of having taken the OCI sexual assault course was accepted as being capable, as a matter of logic, of diminishing the significance of the similar fact evidence. The fact that it did not diminish its significance, in the trial judge’s final analysis, was not due to how little time had passed since the course was completed or how long the appellant had been of apparently good behaviour. It was because the trial judge doubted the efficacy of the course – a course that the appellant himself did not significantly credit for making him a changed man and unlikely to re-offend.

[40] In any event, the appellant’s conviction did not hinge on the similar fact evidence.

[41] First, the trial judge had ample reason to disbelieve the appellant, quite apart from the similar fact evidence. He testified that he did not understand the wrongfulness of touching a child’s vagina because of his own experiences as a victim of sexual assault, but then admitted in cross-examination that he knew it was wrong to sexually assault a child. He testified that a car accident rendered him unable to sustain an erection and experience sexual gratification as before, but conceded in cross-examination that, as he had fathered a child since the accident, he could indeed sustain an erection. He testified that he told the complainant’s mother about his convictions before they had a child together, which the trial judge found to be implausible in the circumstances and contradicted by the mother’s own testimony that his disclosure was far more general than he claimed.

[42] Second, the trial judge subjected the complainant’s testimony to scrutiny before accepting her core allegations. He found her to be credible “in the sense of wanting to tell the truth.” He determined that her mother did not influence her reporting of the sexual assault, whether deliberately or inadvertently. Although her mother asked the complainant leading questions about whether her father had touched her vagina, she also offered the complainant innocent explanations for her father’s behaviour, such as that he was cleaning her. The complainant rejected these explanations. The trial judge found the complainant’s allegations to be specific enough to not be figments of her imagination. While the trial judge noted several aspects of the complainant’s evidence that were factually incorrect, such as her age at the time of the incidents and her behaviour following the incidents, he properly recognized the peripheral nature of these inconsistencies, given the complainant’s age. I reject the appellant’s arguments with respect to the complainant’s testimony.

[43] For all of these reasons, I cannot agree that the trial judge’s error meets the test set out in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. The appellant has not demonstrated that the error “figured prominently in the reasoning process which led to crucial findings of credibility and reliability”: Morrissey (1995), 22 O.R. (3d) 514, at p. 541. Nor has he shown that it played “an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”: Lohrer, at para. 2 , citing Morrissey (1995), at p. 541.

[44] As the central thrust of the appeal focuses on the trial judge’s misapprehension of the evidence, I would dismiss the appeal.

Released: “GS” MAR 24 2020

“B.W. Miller J.A.”