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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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. L.G., 2009 ONCA 895
DATE: 20091216
DOCKET: C49224
COURT OF APPEAL FOR ONTARIO
Goudge, Armstrong and Rouleau JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
L.G.
Appellant
Joseph Di Luca, for the appellant
Dena Bonnet, for the respondent
Heard: October 9, 2009
On appeal from the finding of guilt entered by Justice Ann Watson of the Ontario Court of Justice on May 15, 2008
Goudge J.A.:
[1] The appellant was found guilty of two counts of sexual assault committed when he was thirteen years old. The complainant on the first count was a nine-year-old girl who described four incidents. The most important incident for this appeal involved a “shaker toy” or mechanical vibrator. The complainant on the second count was a young boy in grade five who gave evidence of two separate incidents. The families of all three young people knew each other.
[2] The appellant gave evidence and denied all of the allegations. In particular, he gave a long and detailed version of the “shaker toy” incident consistent with his own innocence and blaming the complainant for using the device on herself. His response to the incidents described by the second complainant was essentially a bald denial.
[3] The appellant appeals the findings of guilt. Three of the arguments he raises can easily be dismissed.
[4] First he argues that in accepting the complainant’s evidence about the “shaker toy” the trial judge improperly took judicial notice of the lack of sexual knowledge of nine-year-old girls. I do not agree. The trial judge simply found that this evidence was beyond the girl’s ability to fabricate. The trial judge was speaking of this complainant, not all nine-year-old girls.
[5] Second, the appellant says the trial judge failed to give proper consideration to the possibility of collusion between the two complainants. Again, I disagree. The trial judge considered the evidence of the very limited contact between the two complainants about what happened and found as a fact that there was no collusion. This finding is amply supported by the evidence and is one that was open to the trial judge to make.
[6] Third, the appellant argues that the trial judge failed to apply sufficient scrutiny to the evidence of the complainants, particularly the young girl. However, the reasons for judgment provide a complete answer to this. The trial judge paid explicit and detailed attention to the weaknesses in her evidence, particularly inconsistencies about dates and the sequencing of events, and her statement at the end of her evidence that she did not know if all the things she described actually happened. The trial judge carefully explained why, given her age, her bipolar disorder, her difficulty communicating, and her difficulty concentrating at the end of her testimony, the trial judge nonetheless accepted her detailed and compelling description of the acts alleged. This was more than adequate scrutiny of her testimony.
[7] The last ground of appeal is more troubling. Because the appellant gave evidence, the trial judge was obliged to follow the direction provided in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. The trial judge correctly recited the three steps that this case requires be taken in assessing the evidence before finding guilt beyond a reasonable doubt. However, in applying those steps to the evidence here, the trial judge framed the second step using language different from that of W.(D.). Having first rejected the appellant’s evidence, the trial judge moved to the second step of the analysis, but instead of determining whether, nonetheless, the appellant’s evidence left her in reasonable doubt (as W.(D.) requires), the trial judge concluded that the appellant’s evidence “could not reasonably be true” (emphasis added).
[8] This court has repeatedly said that a trial judge errs in using the “could reasonably be true” test at the second step in the W.(D.) analysis. That is equally true of its equivalents “might reasonably be true” and “can reasonably be true”: see R. v. G.H. (2002), 2002 49363 (ON CA), 165 O.A.C. 56 (C.A.); R. v. Rattray (2007), 2007 ONCA 164, 222 O.A.C. 28 (C.A.).
[9] There are good reasons why this test must not be used. It is different from the proper approach to step two set out in W. (D.) (namely, whether, even if the accused’s evidence is disbelieved, the trial judge is left in reasonable doubt by it) in several respects. First, it arguably risks reversing the burden of proof and undermining the presumption of innocence: see R. v. Rattray at para. 13.
[10] Second, it asks more of the accused’s evidence than step two requires. It invites an objective assessment of the accused’s evidence against the standard of what could reasonably be true, rather than simply assessing that evidence to see if it leaves the trier with a reasonable doubt.
[11] Nonetheless, as the jurisprudence in this court demonstrates, there are cases in which this error may not result in reversal. In some, the trial judge has used inappropriate phraseology but otherwise made clear that he or she understands the proper approach to the burden of proof and proof beyond a reasonable doubt. In such a case, while the phrasing is wrong, W.(D.) is followed in substance: see for example R. v. S.K., 2008 ONCA 285. In others, the accused’s evidence has been completely rejected and the Crown’s case is overwhelming. In essence, this is the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code: see for example R. v. G.H. and R. v. Rattray.
[12] In this case, the trial judge used the erroneous phrasing exclusively and repeatedly at step two of W. (D.). Moreover, there is nothing in the balance of the reasons to suggest that, despite this, the proper step two evaluation is being followed in substance. However, at least with respect to the first complainant, the trial judge categorically rejected the appellant’s evidence as entirely unreasonable and illogical. There was more than ample basis for her to do so. Having so concluded, it is inconceivable that the appellant’s evidence could have left her with a reasonable doubt. The Crown’s case was overwhelming.
[13] With respect to the second complainant, the trial judge rejected the accused’s evidence which was little more than a bald denial. In this circumstance, I do not think there is any chance that a mere bald denial, once rejected, could have left the trial judge with a reasonable doubt. Coupled with the overwhelming case presented by the Crown, I cannot find that the trial judge’s error requires a new trial.
[14] I would dismiss the appeal.
RELEASED: December 16, 2009 (“S.T.G.”)
“S.T. Goudge J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree Paul Rouleau J.A.”