W A R N I N G

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

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.

DATE: 20050323

DOCKET: C41942

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – R.T. (Appellant)

BEFORE:

SHARPE, SIMMONS and LAFORME JJ.A.

COUNSEL:

Kristian Bonn

for the appellant

Amy Alyea

for the respondent

HEARD & RELEASED ORALLY:

March 18, 2005

On appeal from the judgment of Justice Douglas M. Belch dated May 13, 2004, dismissing a summary conviction appeal from the conviction entered by Justice Peter Coulson of the Ontario Court of Justice dated October 3, 2003.

E N D O R S E M E N T

[1] The appellant was convicted of sexual assault and sentenced to thirty days imprisonment and one year probation. His summary conviction appeal against conviction and sentence to the Superior Court was dismissed. He has served his sentence but seeks leave to appeal his conviction to this court.

[2] The appellant is the twenty-one year-old complainant’s biological father. The appellant had no contact with the complainant until a few months prior to the incident giving rise to these charges. On the day in question, the appellant went to the complainant’s apartment to inform her that her half-brother’s grandfather had passed away. The appellant was considering moving away from the area and the complainant discussed providing him with a picture of her. They looked through some of her photographs, including some modeling shots in which the complainant’s breasts were exposed. She testified that the appellant had expressed acute interest in the breast photos in particular. The appellant, on the other hand, testified that the photographs made him feel uncomfortable and that he told the complainant that he did not need a photo of her as he already had one.

[3] The complainant was three months pregnant at the time, and she discussed with the appellant her pregnancy and the consequent changes her body was going through. She complained of having stretch marks on her breasts and hips, which she testified, that the appellant insisted that she show him. Eventually she lifted her pyjama top so the appellant could see her breasts. She testified that he started touching them, at first ostensibly to examine the stretch marks but that eventually the touching strayed to the nipple area and made her feel uncomfortable. She pulled away and put down her top.

[4] The appellant testified that he had not wanted to see the complainant’s breasts but that she was adamant that he should observe the manner in which her body was changing. He testified that while he was pointing at the stretch marks, the complainant moved forward and his finger accidentally grazed one of her nipples. He immediately pulled away as she did. The appellant pointed to a number of inconsistencies in the complainant’s evidence and relied on evidence that as they parted, she hugged him and gave him a note with the information he would need to maintain contact with her if he moved from the area.

[5] In brief written reasons, the summary conviction appeal judge rejected the appellant’s submission that the trial judge had misapprehended the evidence and failed to apply the principles enunciated in R. v. W. (D.) (1999), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The reasons of the summary conviction appeal judge were essentially conclusory in nature. In our view, they did not provide an adequate response to the legal issues raised by the appellant. For the following reasons, we grant leave to appeal and allow the appeal.

[6] Even after giving appropriate allowance for the pressures of delivering oral reasons at the end of a busy day in court, the trial judge’s reasons leave us uncertain as to whether or not he properly applied the criminal burden of proof and the W (D.) test.

[7] The opening sentence reads as follows: “If I accept this young woman’s evidence entirely and reject the evidence of the accused, then, of course, it would be my duty to convict him.” The Crown concedes that this sentence is problematic. It suggests that the trial judge approached the case as a credibility contest. Later in his reasons, the trial judge states: “Is there any reasonable possibility the man is still telling the truth, after so many lies to the police, so much evading of the police.” Again, that misstates the standard, which is whether the accused’s evidence raises a reasonable doubt. These errors might not have been fatal had they been corrected by a proper statement of the applicable legal standard but they never were.

[8] Throughout his reasons, there are indications of doubt with respect to certain aspects of the complainant’s evidence. He uses phrases such as “I am torn” and “I am left hanging”. These expressions of a significant level of doubt admittedly may have related to peripheral issues. However, the trial judge never made a clear finding of what evidence from the complainant he actually did accept. He should have done so as there were inconsistencies in her evidence that, if not resolved, were capable of giving rise to a reasonable doubt.

[9] On two points, there appears to be significant misapprehension of the evidence. The trial judge stated that the accused “edged ever closer, over time, to admitting his sexual intentions towards his daughter”. We see no evidence to support this statement that the appellant came close to admitting to having a sexual interest in his daughter. The trial judge also characterized the appellant’s version of the incident as being “that she fell on his finger”. This was not an accurate or fair reflection of the position presented by the appellant.

[10] The trial judge made no reference in his reasons to the third step of the W.(D.) test. In view of the deficiencies to which we have already referred and taking his reasons at face value, we are not satisfied that he ever reached the stage of considering whether, in the end, the Crown had proved its case beyond a reasonable doubt.

[11] Accordingly, we grant leave to appeal, allow the appeal and quash the conviction. The appropriate remedy is a new trial but, no doubt, the Crown will take into account the fact that the appellant had already served the sentence that was imposed.

“Robert J. Sharpe J.A.”

“J.M. Simmons J.A.”

“H.S. LaForme J.A.”