DATE: 20010412

DOCKET: C31423

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. JOSEPH MANUEL STRONG (Appellant)

BEFORE: DOHERTY, LASKIN and FELDMAN JJ.A.

COUNSEL: Brian H. Greenspan for the appellant

Gillian Roberts for the respondent

HEARD: March 30, 2001

On appeal from the conviction imposed by Justice John F. Hamilton, dated December 18, 1998.

E N D O R S E M E N T

[1] The allegations related to events which occurred some 30 years ago when the complainants attended the elementary school where the appellant taught grade 4. Counts 1 and 2 related to events said to have occurred while the complainants were in the appellant’s grade 4 class. Count 3 related to a single event involving one of the complainants when she was in grade 6.

[2] The case for the Crown rested entirely on the evidence of the two complainants. The complainants went to the police independently of each other some 25 years after the alleged events. There is no suggestion of collusion. Mr. Greenspan candidly accepts that the complainants were honest witnesses in the sense that they did not deliberately fabricate the allegations or knowingly give false evidence. He contends, however, that assessed against the totality of the evidence, the complainants’ evidence was simply not reliable enough to carry the full weight of the Crown’s burden.

[3] The appellant also testified. He called various teachers and students who attended the elementary school at the relevant time. While these witnesses could not directly contradict the complainants’ allegations, they did give evidence which could cast doubt on the reliability of the complainants’ recollection of the relevant events. The appellant also called character evidence.

[4] This was a very difficult case. On one side stood the two complainants. There was good reason for a trier of fact to believe their evidence. On the other side stood the appellant. There was equally good reason for a trier of fact to conclude that this appellant had done everything he possibly could to respond to allegations relating to events from the distant past.

[5] The trial judge had to make a careful assessment of the totality of the evidence bearing in mind the burden of proof which rests on the Crown in a criminal case. The question was not simply whether the complainants’ evidence was reliable, but rather, when considered in the context of the totality of the evidence, whether it established guilt beyond a reasonable doubt.

[6] The trial judge fell into three errors. First, his finding that the similarities between the evidence of the two complainants were “remarkable” and tended to confirm the reliability of their evidence reflects a misapprehension of their evidence.

[7] There were similarities in the evidence given by the two complainants. Some of those similarities related to mundane and innocuous matters. However, some related to the facts surrounding the alleged assaults. There were also significant inconsistencies in the evidence given by the two complainants. Some of those inconsistencies went directly to the nature of the assaults alleged against the appellant. For example, one complainant described the assault committed against the other complainant in the classroom in a very different way than the complainant who was said to be the victim of that assault described the assault.

[8] The trial judge did not consider these significant inconsistencies in assessing the reliability of the complainants’ evidence beyond observing that the complainants were children when the events happened and that they should not be held to adult standards when assessing their evidence. While we agree fully with that observation, the trial judge still had to come to grips with these potentially significant inconsistencies in the evidence of the two complainants before he could properly come to the conclusion that their evidence was mutually confirmatory.

[9] Second, the trial judge offered no reason for his rejection of the appellant’s evidence. He simply said “I do not believe him”. In a case like this, some explanation for that conclusory statement was required. The appellant’s evidence was not inherently incredible. It was entirely consistent with what one would expect from a person trying to recall what to him would have been routine events from 30 years ago. None of the usual indicia of unreliability were referred to by the trial judge (eg. prior inconsistent statements, evasiveness, lies). There was some support in the rest of the evidence for the appellant’s version of events. It was also at least arguable that on the totality of the evidence common sense would suggest that the improper conduct, as described by the complainants, could not have happened and gone unnoticed. Finally, several witnesses from the community came forward and vouched for the appellant’s honesty and reliability. In all these circumstances, a total rejection of his evidence to the point where it did not even leave a reasonable doubt without any explanation is unsatisfactory. In these circumstances, the absence of any explanation for rejecting totally the appellant’s evidence strongly suggests that he was disbelieved because the complainants were believed. This approach ignores the burden of proof.

[10] Third, the trial judge ultimately gave little weight to the appellant’s character evidence, observing that “sexual misconduct occurs in private and in most cases will not be reflected in reputation in the community”. This observation has been made in other sexual assault cases and often has considerable force. Here, however, most of the sexual misconduct described by the complainants occurred in public places and was on the complainants’ evidence visible to many. The trial judge was, therefore, in error in discounting the character evidence because it did not reflect the private conduct of the appellant. Much of the conduct described was not private.

[11] The three errors described above, taken together, require the quashing of the convictions. Mr. Greenspan seeks an acquittal. This is not a case in which we can enter an acquittal. The honesty of the complainants is accepted. Even though the case rests entirely on their recollection of long, distant events, a reasonable trier of fact properly instructed could still convict. The appellant has served his full sentence. It may be that the interests of justice do not warrant a retrial at this time, but that is a decision for the Crown and not for this Court.

[12] The appeal is allowed, the convictions are quashed, and a new trial is ordered.

“Doherty J.A.”

“John Laskin J.A.”

“K. Feldman J.A.”