WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(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.
CITATION: R. v. S. D., 2007 ONCA 243
DATE: 20070403
DOCKET: C45332
COURT OF APPEAL FOR ONTARIO
ROSENBERG, MOLDAVER and GOUDGE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Elise Nakelsky for the appellant
Appellant
- and -
S. D.
Craig Parry for the respondent
Respondent
Heard: December 21, 2006
On appeal from the decision of Justice William J. Festeryga, of the Superior Court of Justice, sitting as a Summary Conviction Appeal Court Judge, dated April 7, 2006, quashing the respondent’s conviction by Justice Margaret F. Woolcott of the Ontario Court of Justice, dated June 22, 2004.
ROSENBERG J.A.:
[1] The respondent, Sean D., a thirteen-year-old boy was convicted by Woolcott J. of various sexual offences arising out of a brief encounter with a four-year-old child. He appealed to the summary conviction appeal court and Festeryga J. allowed the appeal and ordered a new trial. On appeal to this court, Crown counsel submits that the appeal judge misapprehended his role and, in effect, retried the case or substituted his opinion about the credibility of the witnesses for the opinion of the trial judge.
[2] For the following reasons, I would allow the appeal and restore the conviction
THE FACTS
[3] To appreciate the grounds of appeal and the respondent’s response, a somewhat detailed review of the facts is required. The mothers of the complainant and the respondent, Jessica S. and Cindy D. respectively, were close friends. In addition, the respondent lived with his grandparents, who rented the top floor of Douglas S.’s (the complainant’s grandfather’s) home. The sexual assault was alleged to have occurred on Father’s Day on June 15, 2003. On that day, the complainant and her parents went to a barbeque at her grandfather’s home. The respondent and his grandparents were also at the barbeque. The next door neighbour Carol J., Jessica’s aunt, and her partner attended the barbeque for a period of time, perhaps two hours, and then returned to their own home for their own barbeque.
[4] The allegation emerges most clearly from a videotaped interview by a police officer of the complainant that was admitted pursuant to s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46. She told the officer that while she was playing with the respondent, she asked him for a piece of gum. He told her that she could have the gum if she had “sex” with him. She seems to have agreed and the respondent put his penis in her mouth and partly in her anus and vagina. The complainant said that the activity stopped when people were looking. The Crown alleged that this assault occurred when the two children were playing at a play structure located in the next door neighbour’s backyard. It will be recalled that the next door neighbour is the complainant’s mother’s [Jessica’s] aunt.
[5] There is a garage that divides the backyards of the two houses. As a result, the play structure in the aunt’s backyard cannot be seen from grandfather’s backyard, where the barbeque was being held. However, it is possible to see the play structure from the driveway or if one was coming out of either the grandfather’s or the aunt’s house. The play structure can also be viewed from the windows in the aunt’s house.
[6] The respondent testified and denied committing the offence. He conceded that he was briefly playing with the complainant at the play structure shortly before the barbeque meal was served, but estimated this was only for five to ten minutes and during that time the aunt came and went from her home five or six times.
[7] The allegation of sexual assault came to light two weeks after the barbeque. Jessica was babysitting a friend’s two children, including an infant boy. At one point, Jessica came into the bedroom and found the complainant on the bed with the infant, pulling down her pants. Jessica questioned the complainant about this activity and put the complainant in her “time out” chair until she gave an explanation. The complainant said she was “gonna sex him just like the little boy did to me”. Jessica established that the little boy was the respondent, the boy who lived in the same house as the complainant’s grandfather. The complainant told the story of what happened to her mother, and later her father, in much the same terms she later told the police officer.
[8] It should be noted that when the police officer questioned the complainant as to when she told her mother about the incident, the complainant said that she had lied to her mother. She refused to tell the officer what she had lied about and attempts to pursue this issue at trial proved fruitless. The complainant also seemed to have some knowledge of sexual matters that did not come from the incident with the respondent.
THE REASONS OF THE TRIAL JUDGE
[9] The trial judge’s reasons were the focus of the appeal to the summary conviction appeal court and are the focus of the further appeal to this court. The trial judge accepted the complainant’s evidence and rejected the respondent’s evidence. The trial judge noted that the respondent’s trial counsel conceded that the complainant was probably sexually assaulted by someone prior to the complaint implicating the respondent; the issue was whether it was the respondent who had sexually assaulted the complainant. The trial judge found the number of details in the complainant’s story compelling, given her age and the passage of time. She was satisfied that the questioning by the complainant’s parents did not affect the reliability of her account. In the course of her evidence at trial, the complainant referred to the neighbour as “Debbie”, rather than Carol. The trial judge did not consider this to be significant since it was apparent that the complainant had difficulty remembering names of people with whom she was not familiar. The trial judge considered the complainant “unshakeable” in her identification of the boy with whom she had sex as the boy who lived at her grandfather’s house and held this had to be the respondent. In addition, the trial judge found the respondent’s admission that the complainant asked him for gum to be an important detail that supported the complainant’s story.
[10] The trial judge rejected the respondent’s evidence that he was only on the play structure with the complainant for five or ten minutes. She considered this to be impossible because of the number of activities the respondent engaged in with the complainant and the number of times he claimed to have seen the aunt come and go from her home. She concluded this evidence “was clearly an attempt by [the respondent] to minimize what his contact had been with [the complainant] on that date and in what context he had had that contact.”
[11] In considering whether there was opportunity to commit the offence, the trial judge placed particular reliance on the aunt’s evidence. Her critical findings as to opportunity to commit the offence are excerpted below:
And I accept the evidence of [the aunt] that for a period of approximately two hours she and her partner visited in the backyard at [the grandfather’s home] and did not return to their property whatsoever.
It is fair to say that most usually these kinds of events take place in as private an atmosphere as the perpetrator can achieve. In this case, the backyard on [the aunt’s house] was accessible only through the driveway or the back door of the [aunt’s house]. It could be seen only from those vantage points [and] from through two windows, one in the dining room and one in the back room at [the aunt’s house]. There were periods of time, approximately two hours that afternoon, when no one was in the [aunt’s] house so that the only way anyone in the backyard could be seen was if someone came into the yard from the driveway.
I accept that for some two hours or more that date no one except possibly [the complainant] and [the respondent] were in the backyard at [the aunt’s house]. Over the course of that afternoon there would have been lengthy periods of time when there would be an expectation of privacy in that backyard given the absence of [the aunt] and her partner.
I would thus find that it would have been possible for the acts described by [the complainant] to have taken place between [the complainant] and [the respondent] without any one of the other persons socializing at [the grandfather’s backyard] or the residents of [the aunt’s house] to have observed these acts. Of course there is a difference between its having been possible and its having happened, but it is important on the basis of the evidence before this court to establish whether there was in fact any opportunity. In my view there was clear cut opportunity.
[The respondent], however, gave evidence not only that it did not happen but that the only time that he was in the backyard at [the aunt’s house] was at a time when there were people, i.e. [the aunt] and her partner, coming and going in the backyard. As I have indicated above, I do not accept the estimate of the length of time that [the respondent] was in the backyard which was offered by [the respondent]. I also do not accept that during the time that [the respondent] was in the backyard there was a constant coming and going of people in that backyard as suggested by [the respondent]. [Emphasis added.]
[12] The trial judge rejected the respondent’s denial of having committed the offence. In the course of doing so, she noted that the respondent was clearly “concerned that he might go to jail for a long, long time.” The trial judge went on to say that:
In giving his evidence this anxiety or concern was apparent and in the court’s view clearly motivated him to shade his evidence in some aspects. In giving his evidence he attempted to minimize his contact with [the complainant] and his role.
[13] The trial judge was also critical of the respondent’s use of the phrase, “That I can remember,” which the trial judge considered to be “evasive”. The trial judge found his evidence internally inconsistent and inconsistent with the evidence of witnesses whose evidence she did accept.
THE REASONS OF THE APPEAL COURT JUDGE
[14] The appeal court judge recognized that he was required to “pay great deference” to the trial judge’s credibility assessments and was not entitled to substitute his conclusion on credibility for that of the trial judge. The appeal court judge, however, held that the trial judge made two errors. First, she held the respondent to the standard of an adult. Second, she misapprehended the evidence with respect to the visibility of the yard where the children were playing and the opportunity to commit the offence, especially where there were many people coming and going during the barbeque. The appeal court judge’s reasons were very brief and he did not elaborate on these errors.
[15] In view of these errors, the appeal court judge was satisfied that there had been a miscarriage of justice and he ordered a new trial.
THE GROUNDS OF APPEAL
[16] The Crown challenges both of the reasons of the appeal court judge for allowing the appeal. Ms. Nakelsky submits that the trial judge did not err in her approach to the respondent’s evidence and did not misapprehend the evidence of opportunity. She also submits that the appeal court judge, in effect, substituted his opinion for that of the trial judge. Finally, she submits that the trial judge did not provide sufficient reasons. I will deal with each of these issues in turn. I will also deal with an issue that this court raised with counsel in the course of the hearing of the appeal concerning the use of evidence of the respondent’s desire not to go to jail.
ANALYSIS
(a) Adequacy of the Appeal Court Judge’s Reasons
[17] I begin with the question of the adequacy of the appeal court judge’s reasons because this issue is connected to the other grounds of appeal. The Crown’s overall attack on the appeal court judge’s approach, that he substituted his opinion on credibility for that of the trial judge, is based, in part, on the failure of the appeal court judge to explain how the trial judge erred in the two areas he identified.
[18] The Supreme Court of Canada has held that an intermediate appellate court commits an error in law if the deficiencies in the reasons prevent meaningful appellate review: See R. v. Owen (2003), 2003 SCC 33, 174 C.C.C. (3d) 1 at para. 60 (S.C.C.). Also see R. v. Minuskin (2003), 2003 11604 (ON CA), 181 C.C.C. (3d) 542 at paras. 3-5 (Ont. C.A.). The standard for measuring the adequacy of reasons derives, of course, from the decision of the Supreme Court of Canada in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298. Of particular importance in this case are two of the propositions set out by Binnie J. in Sheppard at para. 55, namely:
An accused person should not be left in doubt about why a conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met.
Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in such a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso.
[19] Standing on their own, the appeal court judge’s reasons do not explain why he found that the trial judge had applied an inappropriate standard for judging the credibility of the respondent and misapprehended the visibility evidence. However, the submissions of counsel were transcribed and that transcript assists in understanding the appeal court judge’s concerns. Whether those concerns are borne out by the trial judge’s reasons is another matter which I will deal with separately.
[20] In his submissions dealing with the misapprehension of evidence respecting visibility and opportunity to commit the offence, counsel for the respondent argued that the trial judge fundamentally misapprehended the evidence when she held in the passage quoted above that there was a two-hour period when there was no one in the aunt’s home and therefore “the only way anyone in the backyard could be seen was if someone came into the yard from the driveway”. Counsel then reviewed the photographs that had been entered into evidence and the testimony that demonstrated that the aunt’s backyard, including the play structure, could be seen from the driveway; that it was not necessary to actually enter the yard. Counsel for the respondent also reviewed the evidence that showed that there were frequent comings and goings from both homes that would have brought adults onto the driveway. Finally, counsel reviewed the aunt’s evidence to show that she had not testified that she was in the grandfather’s backyard for an uninterrupted two-hour period.
[21] With respect to the ground of appeal concerning the assessment of the respondent’s evidence and whether the trial judge unfairly held the respondent to an adult standard, counsel for the respondent focused primarily on the assessment of the respondent’s time estimates. The trial judge had rejected the respondent’s estimate that he was only on the play structure with the complainant for five or ten minutes because of his description of the number of events that occurred and the comings and goings of others during this period. Counsel for the respondent argued that the trial judge applied a standard that would be applicable to an adult who was wearing a watch and timing events. Counsel then contrasted that treatment of the respondent’s evidence with the treatment of his evidence that he would have no way of knowing when someone was coming into the backyard. That testimony was designed to show it was unlikely that the respondent would risk a sexual assault that involved removing his clothing and the clothing of the complainant. In relation to that evidence the trial judge stated, “of course if he and [the complainant] were not doing anything wrong, there would not have been any reason even to think about whether someone would come into the yard.” Counsel pointed out that the only time the trial judge applied a more relaxed child-centred standard to assessing the respondent’s evidence was to turn his immaturity against him. The trial judge found it unlikely that he was mature enough to engage in the kind of reasoning suggested by his counsel; that since he would have no way of knowing when someone might come into the backyard he would not have risked engaging in the alleged conduct. In general, it was counsel’s submission that the trial judge was very critical of minor inconsistencies in the respondent’s evidence but entirely forgiving of major problems with the complainant’s evidence.
[22] Crown counsel in her submissions before the appeal court judge argued that the trial judge had not misapprehended the evidence. She submitted that it was open to the trial judge to find that there was a two-hour period when no one was coming and going from the aunt’s house. She conceded that it is possible to see into the backyard from the driveway, but submitted that it was open to the trial judge to find that the area of the play structure where the complainant said the assault took place was not visible from at least one vantage point, the driveway.
[23] As far as the alleged unfair treatment of the respondent’s evidence, Crown counsel submitted that the trial judge was not applying an adult standard. Rather, she argued the trial judge had analyzed the evidence and found that the respondent was attempting to minimize his opportunity to have committed the offence.
[24] In my view, when the entire record is considered, the basis for the appeal court judge’s reasons allowing the appeal is reasonably clear. The appeal judge accepted the respondent’s submission that the trial judge had misapprehended the evidence about visibility and opportunity. His reasons for that finding are as follows:
I also find, upon reading the entire reasons of the learned trial judge, that she misapprehended the evidence with respect to the visibility of the yard where the children were located and also the opportunity for the adult [sic] to commit the alleged acts, especially where there were many people coming and going during a barbecue.
[25] Similarly, when the entire record is examined it is apparent that the appeal court judge accepted the submission that the trial judge had applied too high a standard to the evidence of the respondent based on the examples provided by counsel and his own review of the record.
[26] In my view, the reasons of the appeal court judge are sufficient. Those reasons, together with the submissions and the trial record, show why the appeal was allowed. They allow for further appellate review. The Crown in this court is in a position to argue that the reasons given by the appeal court judge are not borne out by the trial record and that, in reality, the appeal court judge substituted his view of credibility of the complainant and the respondent for the view of the trial judge. I therefore turn to those issues.
(b) Misapprehension of the Evidence of Opportunity and Visibility
[27] In my view, the appeal court judge erred in finding that the trial judge had misapprehended the evidence of opportunity. The trial judge’s finding of opportunity was anchored in her understanding that the aunt and her partner were in the grandfather’s backyard for an uninterrupted period of two hours. Since no one else was in the aunt’s home to look out the back windows, the only other way to see the part of the play structure where the offence was committed was by entering the aunt’s backyard. The finding concerning this uninterrupted two hours is supported by the aunt’s evidence. It was not unreasonable for the trial judge to accept this evidence. There was no evidence of anyone else entering the aunt’s home during this time. While the aunt was in and out of her house later while she and her partner were barbequing in their own backyard, this was after the assault allegedly occurred, when the complainant, the respondent and the others were in the grandfather’s backyard having their barbeque.
[28] Accordingly, the question of visibility turned on what could be seen from the driveway. It was the position of the defence that people were frequently in and out of the two houses and since neither house had a back door out to their respective backyards, adults would frequently be going onto the driveway. The question of what could be seen from the driveway depended on the testimony of the witnesses and the photographic exhibits. The trial judge had the advantage, denied the appeal court judge, of watching the witnesses as they pointed out on the photographs where various things happened. This advantage is demonstrated most dramatically in this part of the trial judge’s reasons:
[The complainant] claimed that the sexual contact took place on the grass at the corner of the play structure. My recollection of her evidence of the area that she pointed out during the course of looking at the photograph in court, was that the corner she identifies is at the back of the play structure away from the garage side of the play structure as that structure is depicted in Exhibit number 3.
[29] It was open to the trial judge to find that adults who were simply walking onto the driveway to access the side door of the grandfather’s house would not have been able to see the part of the play structure where the trial judge found the assault was committed. Given her understanding of where the offence occurred, the trial judge did not misapprehend the evidence by stating that one had to enter the yard from the driveway. The trial judge’s view of the evidence is also supported by the testimony of the aunt that she did not see the respondent and the complainant playing on the structure, notwithstanding there was uncontradicted evidence that at some point they were playing on the structure. Although another trier of fact might have reached a different conclusion about visibility and opportunity, it cannot be said that the trial judge misapprehended the evidence.
(c) Unfair Treatment of the Respondent’s Evidence
[30] As I have said, the submission by the respondent before the appeal judge that the trial judge applied an adult or unfair standard to judge the respondent’s credibility turns primarily on the question of the respondent’s testimony that he was only with the complainant on the play structure for five or ten minutes. The respondent’s counsel also made the submission before the appeal court judge that the trial judge while critical of the respondent’s evidence was very forgiving of the complainant’s evidence. There is manifestly no merit to this latter submission. The complainant was only four years old when she gave her statement to the police. The standard to be used in understanding her evidence would have been significantly different from that employed to assess the evidence of the thirteen-year-old respondent.
[31] I am of the view that the trial judge did not apply an inappropriate standard in judging the respondent’s credibility. The trial judge gave extensive reasons for why she did not accept the respondent’s evidence. It was not just his five-to-ten minute estimate, which the respondent clung to although given several chances to revise, but also his other evidence of lack of opportunity, which was inconsistent with other evidence accepted by the trial judge. Most importantly, during the five-to-ten minute period the respondent claimed that the aunt was in and out of her house five or six times. It was open to the trial judge to accept the aunt’s evidence that she did not see the respondent and the complainant at the play structure and that the only time she was frequently in and out of her house that afternoon was when she was preparing her own barbeque, a time when the respondent and the complainant were in the grandfather’s backyard.
(d) Use of the Respondent’s Desire not to go to Jail
[32] In the course of oral argument in this court, the court raised with counsel a portion of the trial judge’s reasons that were not referred to by the appeal judge. Counsel made brief submissions during oral argument and then filed additional written submissions. The part of the trial judge’s reasons in question is located where she deals with additional factors affecting the respondent’s credibility. Before this the trial judge had dealt extensively with other aspects of the respondent’s version of events, most importantly his attempt to minimize his contact with the complainant. The trial judge then continued as follows:
Is [the respondent’s] version of events otherwise credible? It is clear from the evidence before the court that [the respondent] was concerned at the time that he was investigated for the matter. Indeed at some point in his evidence he told the court that he was concerned that he might go to jail for a long, long time. In giving his evidence this anxiety or concern was apparent and in the court’s view clearly motivated him to shade his evidence in some aspects. In giving his evidence he attempted to minimize his contact with [the complainant] and his role. He underestimated his time at home, for example, before leaving for his friend … house in the morning. He says that was five minutes which seems logically impossible for what he had described as having done. Again, that is an attempt to minimize the amount of time he would have had with respect to any possible contact with [the complainant]. He minimized the actual contact with [the complainant] in examination in-chief and it is only in cross-examination [that] he admitted to having hugged [the complainant], for example. His manner of presenting this detail is telling since he prefaced the statement with the phrase, “That I can remember,” when admitting that he did hug her and he was thus evasive about the event. He used the same evasive phrase when confirming in cross-examination that when he left, “everything was good”. [Emphasis added.]
[33] This part of the trial judge’s reasons would seem to originate from the portion of the respondent’s evidence-in-chief excerpted below:
Q. When you were arrested two weeks later, what was your emotional reaction? How did you feel?
A. I couldn’t really tell you. Just a mixture.
Q. Tell the judge what the mixture of feelings was.
A. Confused and a little upset.
Q. Had you ever been in contact with police before?
A. No.
Q. Had you ever been arrested before?
A. No.
Q. Did you know why you were being arrested?
A. No I did not.
Q. Did you know the story that [the complainant] told to the police that day?
A. No I did not.
Q. Did you know what was going to happen to you?
A. No I did not.
Q. What did you think was going to happen to you?
A. That I was going to be put in jail for a long, long time.
Q. How did that make you feel?
A. A little upset.
[34] It is difficult to understand counsel’s purpose in leading this evidence and Mr. Parry, who was not counsel at trial, did not suggest otherwise.
[35] The concern with the kind of comment made by the trial judge as to the respondent’s possible motive for falsely testifying is that the reasoning is inconsistent with the presumption of innocence. The leading case in this province on this issue is R. v. B. (L.) (1993), 1993 8508 (ON CA), 82 C.C.C. (3d) 189 (Ont. C.A.). In that case, the trial judge stated: "The accused, of course, has a motive for not telling the truth, he does not wish to be convicted." Arbour J.A. held at p. 191 that this was an error:
The impugned passage in the trial judge's reasons in this case, in my opinion, goes beyond the permissible consideration of the accused's interest in being acquitted, as one factor to be taken into account when weighing his testimony. It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused's interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur.
The trial judge was entitled to believe the complainant and to disbelieve the appellant and his wife. However, in articulating his reasons for disbelieving the appellant, the trial judge appears to have proceeded prematurely upon an assumption of guilt. In my view, the trial judge misdirected himself on the crucial aspect of assessing the credibility of the appellant and for that reason the conviction cannot stand. [Emphasis added.]
[36] Thus, having found for valid reasons that an accused’s version of events is incredible, it is not inappropriate for the trier of fact to make the common sense observation that the reason the accused has not been truthful with the court is that he or she does not wish to be convicted. As noted in B. (L.), supra, at p. 191, it is however, impermissible for the trier of fact to assume that the accused “will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action.” I would add this, as discussed in S. Casey Hill et al., McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, ON: Canada Law Book, 2005) at para. 27:30.60, relying on this assumption is a logically incoherent approach. Both innocent and guilty accused have an interest in not being convicted, a trial judge has no way of detecting the difference based solely on each one’s interest in the outcome.
[37] While the language used by the trial judge in that part of her reasons set out above might have been avoided, I am satisfied that she did not proceed on the basis of the impermissible assumption. Rather, when her reasons are read as a whole it is apparent that the trial judge for a number of well-founded reasons was satisfied that the respondent’s version of events was not credible. The trial judge, having rejected the respondent’s evidence was simply observing that his interest in securing an acquittal was the most plausible explanation for why he gave false evidence.
[38] Thus, for example, as I have already said, the trial judge had previously found that the pivotal part of the respondent’s version of events was untrue. She accepted the evidence of the complainant’s aunt and rejected the respondent’s evidence about his opportunity to commit the offence. The trial judge rejected the respondent’s evidence about the time he was with the complainant and his assertion that the aunt was almost continuously in her backyard when he was with the complainant.
[39] The trial judge concluded her assessment of the respondent’s evidence with the following:
I would, based on all of the evidence before the court, based on the evidence particularly of [the respondent], the manner in which the evidence was given and the differences between his evidence – the inconsistencies internally in his evidence and the inconsistencies between his evidence and the evidence of others in the trial, not accept [the respondent’s] evidence as an entirely accurate recounting of what happened that day.
[40] Crown counsel relies on this passage to show that the trial judge did not proceed on the basis of a prohibited assumption but rather considered the actual evidence and the serious frailties with the respondent’s testimony. I agree with that submission. The trial judge’s observations about the respondent’s story being inconsistent with other proven facts and internally inconsistent are supported by the record.
DISPOSITION
[41] Accordingly, I would grant leave to appeal, allow the appeal and restore the conviction.
Signed: “Marc Rosenberg J.A.”
“I agree M.J. Moldaver J.A.”
“I agree S.T. Goudge J.A.”