WARNING

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

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. N.M., 2012 ONCA 296

DATE: 20120508

DOCKET: C53628

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.M.

Appellant

F. Mirza, for the appellant

E. Carrington, for the respondent

Heard: April 10, 2012

On appeal from the conviction entered by Justice Baltman of the Superior Court of Justice, sitting with a jury, on October 26, 2010.

Doherty J.A.:

I

OVERVIEW

[1] The appellant was charged with two counts of sexual assault and one count of touching a person under the age of 14 for a sexual purpose. Count 1 (sexual assault) and count 2 (touching for a sexual purpose) arose out of the same incident, which allegedly occurred on or about December 27, 2003. Count 1 was not particularized. Count 2 alleged that the appellant touched M.R. with his penis. The third count in the indictment alleged that the appellant sexually assaulted M.R. in July 2006. The jury convicted the appellant on count 1 and acquitted the appellant on counts 2 and 3. The appellant appeals from his conviction.

[2] I would allow the appeal. The conviction rested entirely on the evidence of M.R. In my view, having regard to the significant problems with M.R.’s credibility, a conviction based exclusively on her evidence is not a verdict that a properly instructed jury, acting judicially, could render. I need not address the other grounds of appeal.

II

THE EVIDENCE

(a) Overview

[3] M.R. and the appellant are related. The appellant is the nephew of M.R.’s grandparents. She would refer to him as “uncle”. At the time of the first alleged incident (December 27, 2003), M.R. was 12 years of age and the appellant was about 20 years of age. M.R. was living with her grandparents. The appellant had recently arrived in Canada from India. He and M.R. would see each other at family gatherings. They were not friendly and generally just said “hi” and “bye” to each other.

[4] The second incident allegedly occurred some two and one half years after the first, in July 2006. M.R. went to the police one month later. She gave a videotaped statement to the police in which she described both incidents. The videotape was admitted into evidence at trial. M.R. testified that the allegations about the sexual abuse she made in that videotape were true. She also gave further evidence. M.R. was 19 years of age when she testified.

[5] The appellant did not testify, but the defence did call two witnesses, the appellant’s mother and Ms. H., M.R.’s grade six teacher during the 2003-2004 school year.

(b) The First Incident (Counts 1 and 2)

[6] M.R. testified that on December 27, 2003, she was living with her grandparents and her five-year-old brother. They went to visit the appellant’s parents who lived in a one-bedroom basement apartment. At some time during the visit, M.R. and her brother went into the bedroom to watch television. The adults remained in the living room talking and drinking tea.

[7] M.R. and her brother were sitting at the foot of the bed watching television. The appellant was in the bed asleep. He woke up and invited M.R. to come up on to the bed. She did so. Her brother stayed on the floor at the foot of the bed watching television.

[8] M.R.’s description of the assault that followed was well summarized by the trial judge in her instructions to the jury:

He [the appellant] woke up, invited her [M.R.] onto the bed, and removed her sweater. He told her that if she said anything to anyone, he would kill her. He took her hand and put it down the front of his track pants and had her massage his penis. He kissed her, pulled her tank top down and touched her breasts. He unzipped her jeans and pulled them down to her knees. He then turned her over on her side and tried to stick his penis in her anus.

Because her brother was turning around, she pulled up her jeans and put on her sweater and went out into the living room. [The appellant] pulled up his pants and went to the bathroom. She did not tell any of her relatives what had happened because she did not know how they would react.

[9] M.R. was cross-examined on her description of the relevant events. Some inconsistencies emerged. For example, in M.R.’s initial description, she did not mention being under the covers when the appellant pulled her pants down and lifted her shirt. She later indicated she was “under the sheets”, perhaps in an effort to explain why her brother apparently did not see anything untoward. I do not propose to refer to the other inconsistencies. None were dramatic, and although relevant to M.R.’s credibility, they were the kind of inconsistencies one often finds in witnesses’ accounts of events like this one.

[10] M.R.’s brother testified. Not surprisingly, given his age at the relevant time, he had no recollection of the events described by M.R.

[11] The appellant’s mother testified for the defence. She recalled that on December 26, 2003 (Boxing Day), the day before the alleged incident, her family purchased their first television set. She recalled that the family put the television in the living room where the only cable hook-up in the apartment was located. There was no television in the bedroom. The appellant’s mother recalled everyone watching a movie on the television in the living room. She testified that M.R. was not in the apartment on December 27, 2003.

(c) The Alleged Disclosure of the First Incident

[12] M.R. indicated that a few weeks after the alleged incident, she became concerned that she might be pregnant as her period was late. She told her friend, A.O., what had happened. A.O. told her mother, Ms. O., who then arranged a meeting with M.R.’s teacher, Ms. H. According to M.R., she told Ms. O. and Ms. H. of everything the appellant had done to her. In cross-examination, she repeatedly insisted that she told Ms. O. and Ms. H. “everything in the video statement”. The video statement included all of the details of the alleged assault summarized above, in para. 9.

[13] M.R. testified that there was some discussion with Ms. O. and Ms. H. about going to the doctor, but that she eventually got her period and nothing happened. She did not go to the doctor. She described Ms. O. as understanding, but indicated that Ms. H. acted as though M.R. was trying to get attention by making the allegations.

[14] Ms. O. was called by the Crown. She recalled her daughter telling her that M.R. had indicated that she believed she had been fondled by a family member, probably her “uncle” [the appellant]. Ms. O. spoke to M.R. on the telephone and she confirmed what M.R. had told Ms. O.’s daughter. Ms. O. arranged to meet with M.R. and Ms. H. the next day.

[15] Ms. O. had only a vague recollection of any details provided to her by M.R. She recalled M.R. saying that she had been sleeping in a room and when she woke up her buttons and bra clasp were undone, and her “uncle” [the appellant] was sleeping beside her.

[16] In cross-examination, Ms. O. was referred to her statement to the police and her preliminary inquiry testimony to refresh her memory. She adopted her prior testimony in which she indicated that M.R. did not give her any of the details about the sexual assault M.R. later gave in her statement to the police. M.R. made no reference to kissing, fondling, masturbation, attempted anal intercourse or to any threats made to her by the appellant.

[17] Ms. O. recalled that M.R. expressed some concern about being pregnant and going to the doctor. Ms. O. told M.R. that she should speak to her grandmother, the school, a doctor, and the police. Ms. O. left the matter in the hands of Ms. H.

[18] Ms. H. was called by the defence. She testified that Ms. O. and the complainant spoke to her at school. Ms. O. told Ms. H. that M.R. had indicated to her that she awoke from a nap to find that her tank top strap had moved and her top was riding up on her belly. M.R. was present when Ms. O. provided this summary of what she had been told by M.R. Ms. H. told M.R. that she should feel free to speak to her about it and that if anything had happened, it was not M.R.’s fault. M.R. indicated to Ms. H. that she did not know how her strap had been moved, but she did not think she had been sexually or physically abused. M.R. did not say her “uncle” was in the bed when she woke up.

[19] Ms. H. was adamant that M.R. did not say anything about being sexually abused and specifically did not make any of the complaints contained in her later statement to the police. Ms. H. testified that if M.R. had told her about any of those things, she would have immediately taken M.R. to the principal. She regarded the reporting of sexual abuse as a top priority.

[20] Ms. H. acknowledged that there was some reference to taking M.R. to the doctor for a pregnancy test. She denied making any follow-up inquiries of M.R.

[21] As far as Ms. H. was concerned, she and M.R. had a good relationship. Ms. H. often tutored M.R. before and after school, and they would discuss M.R.’s family circumstances from time to time.

[22] In cross-examination, Ms. H. acknowledged that she was aware of her statutory duty to report abuse. She made no report in this case because as far as she was concerned, there was no allegation by M.R. of any abuse.

[23] The investigating officer was called in reply by the Crown. He testified that when he first contacted Ms. H. about this matter, she immediately asked: “this doesn’t have to do with her uncle, does it?”

(d) M.R.’s Fabrication of a Visit to the Doctor

[24] At the commencement of her videotaped statement to the police, the investigating officer stressed to M.R. the need to tell the truth during the interview. He made sure that M.R. understood the difference between the truth and a lie. M.R. was 15 years of age.

[25] In the course of the interview, the officer asked M.R. if she had told anyone about the first sexual assault. M.R. launched into a detailed narrative in which she told the officer that she went to see Ms. H. because she thought she was pregnant. Ms. H. went through her medical records and noticed that M.R.’s doctor was also the doctor of one of her other students. According to M.R., Ms. H. spoke to the other student’s mother and arranged for that person (Ms. O.) to take M.R. to their doctor. M.R. described the trip to the doctor with Ms. O. in some detail. She named the doctor and identified the location of his clinic. She also told the officer that the doctor had died.

[26] The officer questioned M.R. about other matters, but then returned to her description of her trip to the doctor with Ms. O. The officer told M.R. that he found it strange that the doctor had not reported the incident to the authorities. M.R. promptly added more details about the visit with the doctor. She described Ms. O.’s discussion with the doctor when they arrived at his office. She further indicated that she took the pregnancy test after Ms. O. and the doctor had spoken. M.R. also told the police that Ms. O. arranged to have the pregnancy test results sent to her. M.R. assured the investigating officer that Ms. O. would confirm everything M.R. had said about going to the doctor.

[27] Everything M.R. said about the trip to the doctor was a lie. About two years after giving her statement, and immediately before M.R. was scheduled to testify at the preliminary hearing, she admitted to the police that she had fabricated the story about the trip to the doctor with Ms. O. There had been no such trip and M.R. had never been given a pregnancy test.

[28] M.R. attempted to explain her lies to the police by saying she was scared and nervous and having problems at home when she gave the videotaped statement. According to her – although there was conflicting evidence on this point – her grandfather had died a few weeks earlier. M.R. offered no explanation for taking over two years to tell the truth.

(e) The Second Alleged Incident

[29] M.R. testified that in July 2006, she was sitting with the appellant and her brother in the appellant’s car parked at the home of relatives they were visiting. M.R. sat in the backseat and her brother and the appellant sat in the front seat. The appellant reached back and put his hand on M.R.’s stomach. The appellant told M.R.’s brother to go into the house to get the appellant’s cell phone. After her brother had left the car, the appellant pulled M.R. forward and kissed her. When the brother returned to the car, M.R. left the vehicle.

[30] M.R. admitted in cross-examination that in July 2006 she was having problems at home and that her grandmother wanted her to move out of the house. M.R. denied that she made up the allegation against the appellant to gain sympathy at home.

[31] At trial, M.R.’s brother adopted his videotaped statement to police in which he recalled being in the car with the appellant and M.R. He recalled his sister lying in the backseat and he saw the appellant touch his sister’s stomach.

III

analysis

[32] This court has the obligation to review the reasonableness of convictions: Criminal Code, s. 686(1)(a)(i). In exercising that authority, the court must, to some extent, review both credibility assessments and factual findings made at trial. It does so, however, bearing in mind both the advantaged position of the trier of fact and the limited scope of review. The question for the appellate court is not what it would have decided, but whether a properly instructed trier of fact could reasonably have rendered a guilty verdict: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-42.

[33] The reasonableness review provides an important safeguard against miscarriages of justice. In Biniaris, at para. 42, the court described the nature of that review in these terms:

To the extent that it [appellate review] has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That in turn requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her personal experience and insight.

[34] I understand Biniaris to instruct that the knowledge gained through the reviewing court’s broad exposure to the criminal process provides insights into credibility assessments and fact-finding not available to jurors whose experience is generally limited to a single case. Those insights must inform the reasonableness assessment.

[35] My reasonableness assessment begins with the observation that this jury obviously had difficulty with M.R.’s credibility. The jury acquitted on two of the three charges. The three verdicts, considered together, indicate to me that the jury was not prepared to accept M.R.’s evidence with respect to the second alleged incident. As far as the first incident was concerned, the jury did accept M.R.’s evidence to the extent of finding that something improper of a sexual nature had occurred between her and the appellant. However, the jury was not prepared to accept M.R.’s description of that encounter.

[36] M.R.’s allegation that she was sexually assaulted by the appellant in his bedroom on December 27, 2003, the only count on which the appellant was convicted, was unsupported in any material respect by any evidence independent of that provided by M.R. That, of course, is no reason to declare the verdict unreasonable. The jury was entitled to accept and act on M.R.’s evidence even if it stood alone. The absence of any evidence capable of offering any confirmation of M.R.’s allegation on that charge does, however, make the assessment of her credibility central to the reasonableness of the verdict.

[37] There are two serious problems with M.R.’s credibility. First, she lied to the police when she described the visit to the doctor with Ms. O. for a pregnancy test. This was no simple isolated lie about some small part of her story. This was a detailed fabrication. The fabrication was also clearly premeditated. M.R. had her narrative ready for the police when questioned by them. Her failure to admit she lied for some two years, and her acknowledgement of the lies only at the point when she must have known she would be revealed as a liar in court, further undermines her credibility.

[38] These lies do not suggest to me a ‘spur of the moment’ misjudgement by a young person under questioning by the police. Rather, they speak to a premeditated, albeit easily exposed, plan devised to make an allegation more credible.

[39] The second problem with M.R.’s credibility relates to the differences between her evidence as to what she told Ms. O. and Ms. H. and the evidence they gave about those disclosures. Clearly, it was open to the jury to conclude that M.R. said something to Ms. O. and Ms. H. about a possible sexual assault by the appellant. However, M.R.’s evidence about her disclosure to Ms. O. and Ms. H. went much further than that. She repeatedly insisted in her evidence that she told Ms. O. and Ms. H. all the details about the sexual assault that she gave to the police in her videotaped statement. Those details included allegations of acts of masturbation and attempted anal intercourse as well as a death threat.

[40] In my view, it defies common sense to suggest that Ms. O. or Ms. H. would not have immediately reported allegations of the kind that M.R. said she made to them to the authorities. Consider Ms. H.’s position. She was M.R.’s teacher and they had a good relationship. Ms. H. was aware of her responsibilities to report allegations of abuse. Why would Ms. H., if a student told her of an attempted rape by a family member, not report that allegation to the appropriate authorities? Clearly, she would have.

[41] Bringing judicial experience to bear, I think the only reasonable conclusion is that M.R. did not tell Ms. H. or Ms. O. about the sexual assaults that she described in her statement to the police some two and one half years later. Her testimony that she did make those allegations to Ms. H. and Ms. O. is incredible and could not be accepted by a reasonable trier of fact acting judicially. At best, a reasonable trier of fact could conclude that M.R. had expressed concern about a possible sexual assault of an unspecified nature by her “uncle” while she was asleep.

[42] I am mindful of the admonition in Biniaris, at para. 38, that appellate courts cannot find unreasonableness based solely on some vague unease about the adequacy of the evidence. The appellate court must attempt to articulate the basis for its finding. In non-jury cases, the trial judge’s reasons often will reveal the origins of an unreasonable verdict. The task of articulating a basis for a finding of unreasonableness is more difficult in jury cases. By law, jurors are not allowed to give any reasons for their verdict. Juries leave no tracks for the appellate court to examine in assessing the reasonableness of their verdicts.

[43] A review of the instructions given to a jury may, however, provide clues as to how the jury arrived at what the appellate court views as an unreasonable verdict. Some of the trial judge’s instructions on matters relevant to M.R.’s credibility provide insight into the jury’s verdict in this case.

[44] The trial judge gave the usual instructions concerning the credibility of witnesses, including M.R., and the relevance to credibility of inconsistent statements. In reference to M.R.’s admitted lies about the trip to the doctor and the pregnancy test, the trial judge said:

At this trial you heard [M.R.] testify that she did not go to see the doctor in January 2004, after she reported an assault to her teacher, [Ms. H.]. However, in the video statement she previously gave to Constable Steele she said that she and [Ms. O.] went to see Dr. [A.] and she underwent a pregnancy test. She explained that when she gave the statement to Constable Steele she was scared and nervous, and she was not thinking properly because it was soon after her grandfather had died.

Not every difference or omission will be important. You should consider the fact, nature and extent of any differences in deciding their importance to you and in deciding whether you believe or will rely upon the witness’s testimony. You should also consider any explanation that the witness gives for the differences.

[45] The trial judge’s instructions are legally correct as far as they go. They do not, however, highlight for the jury the potential significance of M.R.’s lies about her trip to the doctor. The trial judge does not go into the details of those lies or the way in which they were presented as part of a broader narrative to the police. The potential significance to M.R.’s credibility of these admitted lies may not have been brought home to this jury. The trial judge also did not make any reference to M.R.’s two-year silence about the lies, broken only on the eve of her testimony at the preliminary inquiry. That long silence could hardly be explained by M.R.’s nervousness or emotional state at the time she gave her videotaped statement.

[46] The trial judge’s failure to tailor the credibility instruction to the specific nature of the lies told by M.R. leaves me with the strong impression that the jury would not regard M.R.’s lies about going to the doctor as of more or less significance than other inconsistencies that may have emerged from the evidence. Judicial experience tells me that those lies deserved much more emphasis in the assessment of M.R.’s credibility. A less generic instruction about credibility and one more tailored to the specific problems with M.R.’s credibility would, I think, have provided more assistance to the jury.

[47] The trial judge also gave no specific instruction concerning the inconsistencies between M.R.’s evidence about what she disclosed to Ms. O. and Ms. H., and their own evidence about what they were told by M.R. The trial judge referred to these differences only briefly when outlining the theory of the defence. M.R.’s evidence about her conversations with Ms. O. and Ms. H. was potentially significant given that these conversations occurred shortly after the first alleged assault. On any reasonable view of the evidence, M.R.’s version of those conversations was not credible.

[48] It would have been helpful to the jury had the trial judge, in the instructions to the jury, focused on the different versions of M.R.’s conversations with Ms. O. and Ms. H. It would have also been helpful had the trial judge reviewed with the jury the evidence relevant to the likelihood of either or both Ms. O. and Ms. H. ignoring the kinds of allegations that M.R. testified she made to them. By focusing on these matters, the instruction could have assisted the jury in its assessment of M.R.’s credibility.

[49] My references to the trial judge’s instructions are not made to assign legal error. Nor do I suggest that some specific caution or warning about accepting M.R.’s evidence was required as a matter of law. My references to the instructions are intended to demonstrate that the trial judge’s credibility instructions were somewhat generic and did not come to grips as well as they might have with the specifics of this case and, in particular, two very important features of M.R.’s evidence. This jury did not have the benefit of a credibility instruction carefully tailored to the evidence that it had before it. The absence of that kind of instruction helps to explain, in my view, why this jury returned what my judicial experience tells me was an unreasonable verdict.

[50] The jury was satisfied that something happened on December 27, 2003 in the appellant’s bedroom. Their verdict seems to be an application of the old adage “where there’s smoke there’s fire”. Whatever the merits of that approach to fact finding in other contexts, it has no application in a criminal trial.

IV

CONCLUSION

[51] I would allow the appeal, quash the conviction and enter an acquittal.

RELEASED: “MAY 08 2012” “DD”

“Doherty J.A.”

“I agree J.C. MacPherson J.A.”

“I agree Robert J. Sharpe J.A.”