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: 20030620

DOCKET: C36627

COURT OF APPEAL FOR ONTARIO

FELDMAN, MACPHERSON and GILLESE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Alison Hurst

for the respondent

Respondent

• and -

B.S.M. [A Young Person]

Frank Addario

for the appellant

Appellant

Heard: May 22, 2003

On appeal from a finding of guilt by Justice Lawrence P. Thibideau of the Ontario Court of Justice dated April 18, 2001.

MACPHERSON J.A.:

[1] The appellant, B.S.M., was charged with committing a sexual assault on D.P. on March 23, 2000. Following a trial before Thibideau J. presiding as a Youth Court judge, B.S.M. was found guilty of this offence. She was sentenced to two years probation. She appeals the finding of guilt.

[2] The appellant and the complainant were grade 6 classmates. The appellant was 12 years old; the complainant was 11. After school on March 23, 2000, the complainant and another classmate, D.N., went to the appellant’s apartment. The appellant’s foster mother was at the apartment when the three girls arrived, but left sometime later.

[3] D.P. and D.N. alleged that, during a game of “house”, the appellant kissed them on the mouth and put her tongue in their mouths. D.P. also claimed that the appellant followed her to the bathroom, pulled down her pants and underwear, and tried to induce the family dog to mount and “hump” her. Finally, both girls alleged, that while they were in the bedroom, the appellant pulled down their pants and underwear and licked their genitals.[^1]

[4] The appellant testified in her own defence. She admitting kissing D.P. and D.N. in the context of the game they were playing, but denied putting her tongue in their mouths. She also testified that the oral sex and the sexual activity involving the dog did not take place.

[5] The trial judge disbelieved the appellant’s testimony. He believed the testimony of D.P. and D.N. and found that it was corroborated in important respects by the testimony of the appellant’s foster mother and foster father. In a 15‑page oral judgment, the trial judge found the appellant guilty of sexual assault.

[6] The appellant appeals the finding of guilt on three grounds.

(1) Burden of proof

[7] The appellant asserts that the trial judge’s reasons for judgment disclose that he decided the case solely on the basis of “preferring” the testimony of the complainant and other Crown witnesses over that of the appellant. This line of reasoning, the appellant contends, is contrary to the approach mandated in many leading cases, particularly R. v. W.(D.), [1991] 1 S.C.R. 742. The appellant further submits that the trial judge’s treatment of the issue of D.P.’s and D.N.’s motive for accusing her of sexual misconduct was inconsistent with the burden of proof in a criminal trial.

[8] I disagree. Although the trial judge did conclude that the evidence of the Crown witnesses “must be preferred”, and although he did not refer explicitly to the W.(D.) formula, it is clear from a reading of his reasons as a whole that he applied the burden of proof in a proper fashion. He carefully reviewed the evidence of the witnesses, gave clear reasons for disbelieving the appellant’s testimony and, importantly, was alive to physical evidence and testimony from the appellant’s foster parents that tended to support the complainant’s testimony: see R. v. Tyrrell (2001), 151 C.C.C. (3d) 50 (Ont. C.A.).

[9] Similarly, although the trial judge’s language on the motive issue was not optimum, any concern about the trial judge’s formulation dissolves in the context of his comprehensive reasons read in their entirety. The trial judge’s very full canvass of the evidence in his reasons establishes that he was cognizant of, and properly applied, the criminal burden of proof.

(2) Inconsistencies and improbabilities in evidence of Crown witnesses

[10] The appellant contends that the trial judge erred in concluding that “[t]he evidence of [D.P. and D.N.] regarding sexual assault by [the appellant] is similar but not identical, both as to their own personal experience and what they saw and heard in relation to the other.” The appellant points to inconsistencies with respect to the timing of the French kissing (during the game of “house” in the afternoon or later in the evening) and the location of the sexual activity involving the dog (bathroom or bedroom).

[11] I do not accept the appellant’s submission on this issue. The trial judge specifically acknowledged that there were inconsistencies in the testimony of D.P. and D.N. However, he concluded that their testimony was “similar in essential details with respect to the kind of conduct seen or complained of”. In my view, the record amply supports this conclusion. The core of the testimony of D.P. and D.N. who, it must be emphasized, were 11 years old at the time of the incident, was indeed very similar — namely, French kissing, oral sex and sexual activity with the dog. The discrepancies in their testimony were minor and need to be viewed in the context of the common sense approach articulated by Wilson J. in R. v. B.(G.), [1990] 2 S.C.R. 30 at 55: “While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.”

[12] Under the rubric of ‘improbability’, the appellant contends that D.P.’s testimony about the events in the apartment on a Thursday afternoon and evening was underminded by the testimony of the appellant’s foster mother that D.P. showed up for a planned sleepover (which the foster mother cancelled for unrelated reasons) on Friday evening. The appellant contends that it was incumbent on the trial judge to deal with this evidence because it rendered the appellant’s testimony about the events on Thursday highly improbable.

[13] I do not accept this submission. The complainant was asked no questions about the Friday sleepover. The matter was mentioned briefly in the testimony of the appellant and her foster mother. There could have been any number of reasons why D.P. appeared to be willing to participate in the sleepover on Friday, none of which were explored with the witnesses. There is no obligation on a trial judge to deal with every piece of evidence in reasons for judgment. I do not think that the skimpy evidence relating to the sleepover was so bizarre or contradictory that it required specific treatment by the trial judge in his reasons: see R. v. R.(D.), [1996] 2 S.C.R. 291 at 314-15, and R. v. Pregent, [1998] O.J. No. 153 (C.A.), leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 340.

(3) Other misapprehensions of evidence

[14] The appellant submits that the trial judge misapprehended the evidence in four areas — the girls’ telephone call to their parents on Thursday night, the torn scarf in the bedroom, the alleged inconsistencies in the appellant’s testimony, and the evidence about whether the appellant changed her clothing on the night in question.

[15] In my view, these are minor matters. I see no error in the manner in which the trial judge reviewed this evidence or in the inferences he drew from it.

Disposition

[16] I would dismiss the appeal.

RELEASED: June 20, 2003 (“KNF”)

“J. C. MacPherson J.A.”

“I agree K. Feldman J.A.”

“I agree E. E. Gillese J.A.”

[^1]: The appellant was not charged with any offences relating to D.N.