WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:

38.(1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Every one who contravenes subsection (1), …

(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.

DATE: 20030619

DOCKET: C38787

COURT OF APPEAL FOR ONTARIO

MACPHERSON, CRONK and GILLESE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Alison Hurst

for the respondent

Respondent

• and -

S. K. [a Young Person]

Gregory Lafontaine

for the appellant

Appellant

Heard: June 4, 2003

On appeal from the finding of guilt by Justice James D. Greco of the Ontario Court of Justice (Youth Court) dated February 21, 2002 and the disposition imposed on June 10 and 14, 2002.

MACPHERSON J.A.:

[1] The appellant was charged with sexual assault and sexual interference concerning an incident during a cadet camping trip. Justice James D. Greco of the Ontario Court of Justice (Youth Court) found the appellant guilty of the offence of sexual interference and conditionally stayed the charge of sexual assault. He imposed a disposition of 15 months secure custody, to be served in an adult correctional facility, followed by 12 months of probation. The appellant appeals both the finding of guilt and the disposition.

[2] At the time of the alleged offence, the appellant was 16 years of age. The complainant was a 12-year old girl. Both the appellant and the complainant were members of the cadets. The cadets went on an overnight camping trip. The complainant alleged that the appellant sexually assaulted her during this camping trip.

[3] Three witnesses testified at the trial. The complainant testified that in the evening, a group of cadets were sitting around a fire pit. The appellant asked the complainant to take a walk with him. They walked for some distance, at which time they stopped. The appellant smoked a cigarette. They sat down and he began kissing her on her neck and then on her lips. She let him. He then placed his hand under her shirt and touched her breast, at which time she objected. The appellant proceeded to sexually assault her. Afterwards, he told her not to tell anyone. They walked back to the camp. Approximately two years after the incident, the complainant told a friend what had happened and the police were contacted.

[4] A.P. had been a friend of the complainant’s since kindergarten. She was also a cadet who went on the overnight camping trip. She testified that the complainant and the appellant went for a walk. She started walking with them but turned back because she was wearing new boots. Some time later, the complainant came back to the fire pit. The complainant looked really upset, said something had happened, but did not want to talk about it. The complainant did not stay at the fire pit for long.

[5] The appellant testified that he was in the cadets and was on the overnight camping trip. He recognized the complainant as someone in the cadets. He did not recall having any conversation with her other than perhaps some group chit-chat. He had no interest in the complainant, stating that he was not interested in young girls. He denied going for a walk with the complainant or assaulting her.

[6] The trial judge found the appellant guilty of sexual interference. He made credibility findings in favour of the complainant and A.P., and found that A.P.’s testimony corroborated that of the complainant. He also found that the accused had lied when he said he did not take a walk with the complainant or assault her, relying on the corroborative testimony of A.P. that the walk had taken place.

[7] The appellant raises six issues on the finding of guilt appeal:

(1) Did the trial judge improperly shift the evidentiary burden, thereby shifting the onus of proof to the appellant?

(2) Having found that the appellant deliberately lied, did the trial judge err in using that finding as positive evidence of guilt?

(3) Did the trial judge err in permitting the Crown to cross-examine the appellant on his unrelated prior misconduct?

(4) Did the trial judge err in failing to hold a voir dire as to the voluntariness of the appellant’s statement to the police before allowing the Crown to cross-examine him on the statement?

(5) Did the trial judge erroneously rely on the complainant’s mood as being consistent with her having been sexually assaulted, without the assistance of any expert testimony?

(6) Did the trial judge err in his application of the doctrine of reasonable doubt, by approaching the case as a credibility contest?

[8] In the view that I take of the appeal, the trial judge did err on the first and fourth issues. The two errors are sufficiently serious to require a new trial. I can state my reasons for this conclusion in brief compass.

(1) Burden of Proof

[9] The trial judge discussed both the legal and evidentiary burdens of proof in his reasons. At the outset, he emphasized that the legal burden is on the Crown and never shifts to the defence. He then continued:

And I am going to draw a distinction here between that burden, i.e. the legal burden, and another type of burden which I will call the evidentiary burden. The evidentiary burden is not the same as the legal burden and the evidentiary burden shifts back and forth frequently between the Crown and the accused during the course of a trial.

. . . Sometimes it does not shift. It does not shift from the Crown to the accused if the Crown does not make out any sort of case which requires this evidentiary burden to shift to the accused. No onus shifts on the accused which is the nature of an evidentiary burden.

In the case at bar, the first question to be asked of myself, by myself, is this – did the Crown State lead evidence which, after consideration, resulted in the evidentiary burden shifting to the accused? And the answer to that question is a simple one. The answer to that question is yes, the Crown did lead evidence which shifted the evidentiary burden to the accused.

[10] The trial judge then reviewed the testimony of the witnesses. He concluded:

[Where] the evidence of the accused and of the victim differs, the evidence of the victim is to be preferred over that of the accused, based on my assessment of the accused’s demeanour when he was in the witness box; and, based on the strength of the evidence given by the victim; based on the corroborative evidence of [A.P.] which corroborates the evidence of the victim and gives the lie to the evidence of the accused with respect to whether or not there was ever a walk taken by him alone, not with others, alone with the victim.

[11] Immediately after that conclusion, the trial judge stated:

So having made that finding, I am satisfied that the evidentiary burden which shifted to the accused, that onus was not met by him; that therefore, the evidence led by the Crown proves the guilt of the accused beyond a reasonable doubt. That onus never shifted to the accused. I made that clear at the beginning of these reasons. It was an onus which never shifted, but that the evidentiary onus did shift and he did not answer it to my satisfaction to the point where he raises a doubt in my mind as to his guilt, which brings us back to the legal onus of proving guilt beyond a reasonable doubt.

[12] In my view, the reasons of the trial judge are problematic; indeed, Crown counsel on the appeal referred to them as “ambiguous and unusual”. There is a clear and useful discussion of the evidential burden in Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1999). The authors state, at pp. 55, 61 and 71:

The term “evidential burden” means that a party has the responsibility to insure that there is sufficient evidence of the existence or non-existence of a fact or of an issue on the record to pass the threshold test for that particular fact or issue.

Normally, the incidence of the evidential burden coincides with the legal burden of proof. For example, since the prosecution has the legal burden in relation to all the definitional elements of the crime of sexual assault, the Crown must adduce sufficient evidence on these elements to overcome a motion for a directed verdict of acquittal. If the complainant testifies that the accused applied non-consensual force in circumstances of sexuality and there is an evidential basis to infer that the accused had the requisite mental state for the crime, the prosecution has discharged its evidential burden….In the above circumstances, the criminal law does not allocate an evidential burden to the accused to refute the Crown’s case and he or she may decline to adduce any evidence. Nevertheless, if the accused decides not to call any evidence, he or she runs the risk of being convicted and the failure to do so may increase the likelihood of an adverse verdict. In the absence of any evidence of an excuse or justification, the trier of fact may, not must, convict the accused, since in order to succeed the Crown must also satisfy the legal burden of proof on the definitional elements of the offence beyond a reasonable doubt.

The authorities and the jurisprudence often refer to the shifting of the evidential burden or the legal burden of proof. Except for the operation of presumptions of law or rebuttable statutory provisions, these burdens do not shift. [Emphasis added, citations omitted.]

[13] In my view, the reasons of the trial judge are not consistent with this explanation. It is possible, I acknowledge, that his reasons could be viewed as merely unfortunate language; after all, it is to some degree obvious from the whole of the reasons that the trial judge believed the testimony of the complainant, some of which was corroborated by A.P., and disbelieved the evidence of the accused.

[14] However, in the end, I reach the conclusion that the manner in which the trial judge articulated his reasons reflects an error of law. The trial judge concluded that the evidence of the complainant was to be preferred over that of the accused. Accordingly, the evidentiary burden shifted to the accused. Since the accused did not meet that burden, he was found guilty. The reasons make a direct link between the accused’s failure to meet the evidentiary burden and the trial judge’s conclusion that the Crown proved its case beyond a reasonable doubt.

[15] In my view, this is erroneous reasoning. The trial judge should not have shifted the burden to the accused. He should have gone through the analysis in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 at 758: (1) if he believed the accused – acquit; (2) if he did not believe the evidence of the accused but was left in reasonable doubt by it – acquit; (3) if he was not left in doubt by the evidence of the accused, he must ask himself whether, on the basis of the evidence he did accept, he was convinced beyond a reasonable doubt that the accused was guilty.

[16] The trial judge did make a passing reference to W.(D.) in his reasons. It also appears that he went through the first two steps of the W.(D.) analysis. However, I cannot find anywhere in his reasons language that is consistent with the third step. Instead, the trial judge shifted the evidentiary burden to the accused, both at the start and near the end of his judgment, and found that the accused had not met it. Unfortunately, the trial judge erred in adopting this line of reasoning.

(2) Accused’s statement to police — absence of voir dire re voluntariness

[17] The Crown concedes that the trial judge erred by not holding a voir dire to determine the admissibility of the appellant’s statement to the police: see R. v. Erven, 1978 19 (SCC), [1979] 1 S.C.R. 926, and R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449.

[18] The Crown contends, however, that the proviso in s. 686 of the Criminal Code should be applied to cure the error relating to the absence of a voir dire to determine the admissibility of the appellant’s statement to the police. Although I would reject this argument on the merits, the proviso issue does not arise given my conclusion that the trial judge also erred with respect to the burden of proof: see R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 at 339, and R. v. Feeley (2001), 2001 105 (ON CA), 55 O.R. (3d) 481 at 490 (C.A.), aff’d 2003 SCC 7.

DISPOSITION

[19] I would allow the finding of guilt appeal and order a new trial. The disposition appeal is moot.

RELEASED: June 19, 2003 (“JCM”)

“J. C. MacPherson J.A.”

“I agree E. A. Cronk J.A.”

“I agree E. E. Gillese J.A.”