COURT OF APPEAL FOR ONTARIO

DATE: 20000713

DOCKET: C30873

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

[1] The 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.

[2] First, 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.

[3] The 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.

[4] The 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.

[5] In 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.”