COURT OF APPEAL FOR ONTARIO

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

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.

R. v. M.C., 2014 ONCA 307

DATE: 20140423
DOCKET: C54917

Hoy A.C.J.O., LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

M.C.
Appellant

Mark Halfyard, for the appellant
Gavin MacDonald, for the respondent

Heard: February 12, 2014

On appeal from the conviction entered on May 25, 2011 by Justice Ferguson of the Superior Court of Justice, sitting without a jury.

LaForme J.A.:

I. INTRODUCTION

[1] The appellant was convicted of sexual assault and sexual exploitation of his neighbour’s five-year-old daughter while she was at his house with his children on September 2, 2009. The complainant, J.E.-J. alleged that, in the course of “tickling games” – described at trial as “tickle monster” and “zerbert monster” – that she and the appellant played, he performed oral sex on her and digitally penetrated her.

[2] Forensic analysis revealed the presence of amylase, a component found in high levels in saliva, and the appellant’s DNA on J.E.-J.’s underwear. The trial judge found that the DNA and amylase were from the appellant’s saliva, and not any other bodily fluid. In her reasons she finds that she is “in agreement with [the forensic expert]” that the saliva was not transferred onto the underwear by any means other than oral sex by the appellant. She came to this conclusion, however, based on a misapprehension of the expert evidence. I will say more about this later since it underpins what I think is a persuasive ground of appeal.

II. BACKGROUND

[3] The appellant and his family were close neighbours of J.E.-J. and her family. The appellant’s daughter, M.C., and J.E.-J. were best friends. At the time of the offences, they were six and five years old, respectively. M.C. and her younger brother would often visit J.E.-J.’s home, and J.E.-J. and her younger sister also spent time at M.C.’s home.

[4] On September 2, 2009, M.C. and her younger brother were playing at J.E.-J.’s home. At approximately 5:30 p.m., the appellant arrived there to bring his children home for dinner. He invited J.E.-J. and her sister to come play with his children after dinner. At around 6:30 p.m., J.E.-J. came to the appellant’s home with her sister. She was wearing a sun dress and underwear. The appellant’s wife was not at home during J.E.-J.’s visit because she was at a softball game. J.E.-J. returned home later that evening. She did not change her underwear that night and was wearing the same pair the following day.

[5] Around mid-afternoon on September 3, J.E.-J. and her family went to visit her grandmother. During the visit, J.E.-J. disclosed to both her mother and grandmother that the appellant had “touched [her]”, given her zerberts on her vagina, and digitally penetrated her. J.E.-J.’s mother contacted J.E.-J.’s father; once he arrived, they went to the police station together.

[6] The police took J.E.-J. to the Lakeridge Health Centre where at around 6:00 p.m. her underwear was seized and later submitted to the Centre for Forensic Science for examination. Testing done on her underwear detected the appellant’s DNA on the waistband and the front panel of her underwear.

III. EVIDENCE AT TRIAL

(a) The complainant’s statement

[7] J.E.-J. gave a videotaped statement to the police on September 4, two days after the incidents. The video was admitted at trial for the truth of its contents.

[8] J.E.-J. stated that she, the appellant and his children had been playing games called “tickle monster” and “zerbert monster”. As she described the games, the appellant chased the children and tickled them or blew “zerberts” on them – the appellant would apply his lips to the skin and blow air to make a noise.

[9] During the game, J.E.-J. chased the appellant into his bedroom, where he blew zerberts on her stomach, her underwear, and then her vagina. She stated that he put his finger in her vagina, and that she told him to stop. The appellant, she said, put her hand down his pants and forced her to touch his penis, but that she did not see his penis.

[10] The appellant’s two children were both in the room at the time of the incidents, but J.E.-J. said that they did not see anything. The appellant told J.E.-J. that the game was a “secret”.

(b) The appellant’s statement

[11] The appellant did not testify at trial, but his videotaped interview with police, which he provided on September 4, 2009, was entered into evidence. In it he confirmed that he played tickle monster and zerbert monster with the children, and that he gave J.E.-J. zerberts on her arm and tummy. He said that he cannot remember being alone on the bed with J.E.-J.

(c) Viva voce evidence

[12] J.E.-J., her mother, her friend (the appellant’s daughter) M.C., and Margaret Henry, an expert in forensic biology, testified at trial. The defence called no evidence.

[13] J.E.-J., seven years old at the time of trial, testified that the appellant used his tongue when giving her zerberts and that he touched her vagina with his tongue. She explained that M.C. and her brother were running in and out of the room, and that the appellant would stop whenever they entered the room. She maintained, contrary to her prior statement, that she had seen the appellant’s penis, and she provided a detailed description of it.

[14] M.C. also provided a video statement shortly after the incident, and that statement was adopted at trial. M.C. testified that she joined the appellant and J.E.-J. in the game after she had finished cleaning her room. She recalled that the appellant blew four or five zerberts on J.E.-J.’s stomach while J.E.-J. was on the bed, but she only saw one and heard the others. M.C. later testified that she could not remember how many zerberts had been given.

[15] J.E.-J.’s mother, C.E.-J., testified that her daughter disclosed to her that she had been assaulted by the appellant on the day after the incidents. C.E.-J. recalled that, on the night of September 2, J.E.-J. got out of bed several times and “couldn’t get settled”. While at her grandmother’s on September 3, J.E.-J. told her mother that the appellant was “blowing zerberts on [her] nunu and he touched [her]”. C.E.-J. also testified that, while her daughter mostly watched children’s programs, she would sometimes watch T.V. unsupervised. This was confirmed in J.E.-J.’s testimony, where J.E.-J. indicated that she had also seen adult shows like Everybody Loves Raymond. According to C.E.-J., her daughter’s “world shattered” when her allegations ended her friendship with M.C.

[16] Margaret Henry – the forensic biology expert – testified that tests had been performed on three areas of J.E.-J.’s seized underwear: (i) the crotch, (ii) the front panel, and (iii) the waistband. The DNA of a major male profile, which the appellant did not dispute was his,[1] was recovered from the waistband and from the front panel. None of the appellant’s DNA was recovered from the crotch.

[17] Ms. Henry explained that the deposit on the front panel contained a mixture of DNA from J.E.-J. and from the appellant. The front panel had a total of approximately 322 nanograms of DNA. Testing also found DNA from J.E.-J. and the appellant on the waistband, as well as DNA from another individual that was not suitable for analysis because there was very little of it. The waistband contained approximately 24 nanograms of DNA. Ms. Henry did not say in either case how much of the DNA was the appellant’s.

[18] All three areas of the underwear tested positive for amylase, a digestive enzyme that is found in a number of bodily fluids, including perspiration. It is found in especially high levels in saliva. However, Ms. Henry was clear that amylase staining and the presence of DNA did not necessarily correlate, and that she could not say how much of the DNA originated from the same source as the amylase. In other words, if the amylase werefrom saliva, Ms. Henry could not say how much of the 322 nanograms of DNA originated from the saliva, and how much originated from another source.

[19] Based on the reaction times and testing, Ms. Henry stated that the amylase deposits on the crotch and front panel were likely from saliva, while the amylase on the waistband could have been from a number of bodily fluids. She could not rule out secondary transference onto the underwear from saliva that was deposited on J.E.-J.’s hand or stomach. In terms of the DNA found, however, Ms. Henry stated that, given the volume of DNA, there was likely a bodily fluid present.

[20] I will say more about this evidence, especially the forensic evidence and the testimony of Ms. Henry, in my analysis below.

IV. THE TRIAL DECISION

[21] In finding the appellant guilty of sexual assault and sexual exploitation, the trial judge concluded that J.E.-J. was a credible witness. She instructed herself to consider the credibility of J.E.-J. in the context of her age, pursuant to R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, and R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, and to apply the principles of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, in assessing whether the Crown had established its case beyond a reasonable doubt.

[22] The trial judge found that J.E.-J.’s best recollection of the events was in her police statement, and that the contradictions between this statement and her viva voce evidence did not warrant an adverse credibility finding. In her view, the inconsistencies were insignificant, and the videotaped statement was an accurate reflection of the events, and of “inestimable assistance in ascertaining the truth”: R v. F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at para. 21.

[23] The trial judge rejected the defence’s argument that J.E.-J. had a motive to fabricate because she was seeking attention from her mother. She concluded that J.E.-J. did not learn about oral sex and digital penetration from television. She also found that there was some value in the corroborative evidence raised by the Crown, including evidence from M.C. and Ms. Henry.

[24] Addressing the forensic evidence, the trial judge found that it was the appellant’s saliva, and not any other bodily fluid, that was on J.E.-J.’s underwear. She was “in agreement with Ms. Henry” that the saliva was not transferred onto the underwear by any means other than oral sex by the appellant on J.E.-J.

[25] The trial judge did not find the appellant’s position credible in light of all the evidence. She noted that his position was in contradiction with the expert evidence and that the appellant’s daughter confirmed that she saw her father tickling and blowing zerberts on J.E.-J.’s tummy.

V. THE ISSUES

[26] The appellant challenges the trial judge’s decision on this appeal on three grounds. First, he argues that the trial judge misapprehended the nature of the forensic evidence. Second, he argues that the trial judge’s reasons for rejecting the appellant’s evidence were conclusory. Third, he contends that the trial judge failed to conduct her W.(D.) analysis in light of all the evidence that supported the defence.

[27] The Crown argues that the trial judge did not make the errors complained of. But that even if she did misapprehend the evidence, the Crown says it was not essential to her credibility findings. That is, she thoroughly and carefully analyzed J.E.-J.’s evidence and ultimately found that the evidence was credible and reliable.

[28] The Crown submits that the trial judge observed that corroboration was not necessary, and that she was satisfied on the evidence before her that the appellant had committed offences for which he was convicted. The Crown says none of the errors alleged by the appellant regarding the forensic evidence were essential to her favourable credibility finding with respect to J.E.-J.

[29] I believe the trial judge critically misapprehended the forensic evidence, including the testimony of Ms. Henry. As I will explain, she then relied on this misapprehended evidence to decide the crucial issues in this case: credibility and reliability. My analysis of this issue, I believe, disposes of the appeal and subsumes the other issues advanced by the appellant. I would, in the end, allow the appeal in order to prevent a miscarriage of justice.

VI. ANALYSIS

[30] The appellant submits that the trial judge misapprehended the forensic evidence in several respects. First, he argues that she incorrectly found the appellant’s DNA in the “crotch” of the J.E.-J.’s underwear. Second, he argues that the trial judge incorrectly found that the entire 322 nanograms on the front panel of the underwear consisted of the appellant’s DNA, and was thus too much to be the result of transference. Finally, the appellant argues that the trial judge erred in finding that the reaction time and amount of amylase was consistent with saliva and not other bodily fluids. I find the first two arguments compelling, and thus do not find it necessary to address the third.

[31] A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at pp. 538-540. Here, the appellant argues that the trial judge made a mistake as to the substance of the evidence, and the mistake resulted in a miscarriage of justice.

[32] Not every misapprehension of evidence renders a trial unfair and results in a miscarriage of justice. An appellate court must determine the nature and extent of an alleged misapprehension and its significance to the decision under review, whether a determination of admissibility or a final conclusion about guilt: Morrissey, at p. 541.

[33] Where a misapprehension of evidence is advanced as a ground of appeal the standard of review applied is stringent. That is, the misapprehension must be material to the reasoning of the trial judge and must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. If such a material misapprehension is made out, it follows that the appellant did not receive a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence was capable of supporting a conviction: Morrissey, at p. 541.

(a) The misapprehended evidence

[34] The expert evidence, as I said earlier, consisted of opinions from a forensic biologist, Ms. Henry, who works at the Centre for Forensic Science in Toronto. Her expertise is in body fluids, DNA analysis and interpretation. Although I have gone through some of her evidence above, I will repeat it here in more depth, for convenience.

[35] Two areas of J.E.-J.’s underwear tested positive for amylase: one area encompassing the crotch and front panel of the underwear, and the other the waistband. Ms. Henry believed the amylase was from saliva, particularly in the crotch and front panel area, although she conceded that “it was possible that there were other bodily fluids there that we didn’t test for”. Three pieces of the underwear were then tested for DNA – one from each of the crotch, the front panel and the waistband.

[36] Ms. Henry testified that: (i) a “moderate” amount of DNA – 24 nanograms – was recovered in the waistband area; (ii) a “substantial” amount of DNA – 322 nanograms – was recovered in the front panel area; and (iii) only J.E.-J.’s DNA was recovered from the “inner lining” of the crotch area. That is, the appellant’s DNA was not in the crotch of the underwear.

[37] Regarding the substantial amount of DNA recovered from the front panel, Ms. Henry testified that it is “a mixture of DNA from the complainant and the [appellant]”. There was no evidence as to how much of the DNA belonged to the appellant, either as a direct measurement or a ratio. In cross-examination Ms. Henry accepted that “if someone was to lick the vaginal area of someone and they put their underwear on”, one would “expect to see some transfer in the crotch of the underwear”.

[38] It is important to note that in addition to the underwear, an external vaginal swab was taken from J.E.-J. and was also tested for DNA. The only DNA recovered from the swab was attributable to J.E.-J.

(b) The use by the trial judge

[39] The trial judge interpreted the forensic evidence and found, among other things, that: (i) “[T]here was a substantial deposit of DNA in the crotch area of J.E.-J.’s underwear (322 ng) and a significant deposit in the waist band (24 ng)” (emphasis added); and (ii) “the 322 nanogram finding of DNA in the crotch area is too much to be the subject of a transference” (emphasis added).

[40] In her summary of the forensic evidence, the trial judge completely fails to distinguish between the three relevant areas of the underwear, which were tested by the expert. Specifically, the appellant’s DNA was located on the front panel and waistband; not in the crotch area. Her “322 nanogram finding of DNA in the crotch area”, again, was recovered from the front panel; not the crotch. And, less importantly, the waistband deposit was described by Ms. Henry as “moderate”, not “significant”.

[41] Further, the trial judge appears to misunderstand the evidence when she wrote that the 322 nanogram DNA deposit is too much to be the subject of transference. The hypothetical the Crown provided to the expert presupposed both that the saliva had dried before transference and that the entire quantity of the 322 nanograms was the appellant’s DNA. Ms. Henry’s evidence was that transference would occur more readily if the saliva were wet. And, as the appellant correctly points out, the forensic evidence was that this deposit contained a mixture of J.E.-J.’s DNA and the appellant’s DNA, thus making the possibility of transference much more plausible.

[42] Finally, the trial judge makes no reference to, and does not include in her analysis, the evidence of the external vaginal swab, which had no DNA from the appellant.

[43] The trial judge correctly recognized that this was a case that depended largely on credibility and reliability of witnesses. She instructs herself on the applicable law related to this, namely, W.(D.) and R. v. B.D., 2011 ONCA 51, 273 O.A.C. 241. In addition, the trial judge correctly instructed herself that corroborative evidence need not specifically implicate the accused; however, the evidence must be capable of restoring the trier’s faith in the witness’s testimony: R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 12-13. Unfortunately, she relied on evidence she misapprehended in conducting her credibility and reliability assessments.

[44] The trial judge’s misapprehension of the forensic evidence becomes material to her reasoning through her use of it in two ways that play an essential part in her reasoning process. First, she relies on it to bolster the credibility and reliability of J.E.-J. Second, she uses this evidence and testimony to discredit and find unreliable the appellant’s denial given in his police statement.

(i) The credibility of the complainant

[45] The trial judge found that J.E.-J.’s evidence was credible and reliable on the basis of her testimony alone. The Crown argues that it is clear that the trial judge was satisfied beyond a reasonable doubt, based on this evidence alone, that the appellant had committed the offences for which he was convicted, separate and apart from the testimony of the expert and the need for corroboration evidence. I disagree.

[46] In spite of the trial judge’s finding on J.E.-J.’s evidence alone, she went to considerable lengths to find corroboration evidence. This included reliance on the evidence of the appellant and the forensic evidence. In my view, J.E.-J.’s evidence had sufficient flaws to it such that it was prudent for the trial judge to look for, and rely on, evidence to corroborate it, even in light of the different standard for credibility applied to child witnesses discussed above. In particular, I would point to J.E.-J.’s trial evidence about seeing the appellant’s penis.

[47] Her statement to the police – which the trial judge preferred over her evidence at trial, and which the trial judge described as an accurate reflection of the events and as of “inestimable assistance in ascertaining the truth” – includes the following:

Q: No? Okay. Have you ever seen [the accused’s] private parts?
A: No.

Q: No? Okay. Have you ever touched [the accused’s] private parts?
A: No.

Q: Okay. Has [the accused] ever asked you to touch his private parts?
A: Yes, that was on Wednesday, but I didn’t want to.

[48] There can be no doubt that the issue of whether or not the J.E.-J. saw the appellant’s penis was a specific focus of the police inquiry. The account by J.E.-J. completely changed when she testified at trial.

[49] Her evidence at trial was that she saw the accused’s penis, which she described in some detail, including making a gesture indicating its size. She testified that she saw it when he was rubbing his finger in her vagina. When the Crown inquired as to why she did not tell the police officer about seeing the accused’s penis, she did not offer an explanation. She did not know why.

[50] In spite of this, the trial judge held that this did not negatively impact on her credibility. Using language from the Supreme Court in R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at para. 47, the trial judge finds that “the inconsistencies are insignificant" and finds “the video more reliable than the evidence elicited at trial”. Again, she relies on videotaped evidence made within two days of the events as accurate and as of “inestimable assistance in ascertaining the truth”, and rejects the evidence elicited in cross-examination.

[51] The trial judge acknowledged that there were inconsistencies in J.E.-J.’s testimony, especially her evidence about the appellant’s penis. She dealt with it as follows:

While I must heed these inconsistencies: R. v. Stewart, supra, I do not find that they have an adverse inference against the witness’ credibility: R. v. B.(G.), supra. R. v. W. (R.)., supra. Moreover, in accordance with R. v. Stewart, supra, and R. v. B (R.W.), supra, I do not find that the inconsistencies, while central to the charges, diminish the reliability of J.E.-J.’s evidence. In particular, to reiterate R. v. B.(G.), supra: “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.” Further, to repeat Justice Watt in R. v. H.C., supra, “Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult.”

I therefore find that J.E.-J was a credible witness and accurately recounted what happened to her that evening, despite the minor inconsistencies of the location(s) of the other children during the sexual assault and her failure to tell the police officer that she had viewed the accused’s penis. I find that the accused did perform oral sex and digital penetration on J.E.-J. and forced her to touch his penis.

[52] The evidence about his penis, however, is not a detail of the “when and where” of the assault, nor is this a contradiction; it is about the nature of the assault itself. It is the kind of inconsistency that should engender caution as to the reliability of the witness, even a child witness. While the trial judge says that she does not need corroboration evidence to rely on and believe J.E.-J.’s testimony, as I said earlier, I think it was prudent in these circumstances to search for some.

[53] The trial judge held that: “J.E.-J.’s account of the [appellant] licking and zerberting her vaginal area is corroborated by Ms. Henry’s evidence.… I find, in agreement with Ms. Henry, that the saliva was not transferred onto J.E.-J.’s underwear by touch or any means other than the performance of oral sex by the accused on J.E.-J.”

[54] Unfortunately, the trial judge’s interpretation of Ms. Henry’s evidence, which she relied on to corroborate J.E.-J.’s police statement account, is based on a serious misapprehension. To repeat, there was no DNA from the appellant recovered in the crotch area of the underwear. And, as Ms. Henry testified; “if someone was to lick the vaginal area of someone and they put their underwear on”, one would “expect to see some transfer in the crotch of the underwear”. Ms. Henry also could not rule out the possibility of transference or the presence of another bodily fluid other than saliva, as discussed above.

[55] In my view, rather than corroborating the account given by J.E.-J., Ms. Henry’s evidence casts some doubt on it. Ms. Henry’s evidence – correctly apprehended – would not give comfort to the trial judge that J.E.-J. can be trusted in her assertion that the appellant licked and zerberted her vaginal area as the trial judge found. The trial judge’s misapprehension of Ms. Henry’s evidence, relied on to corroborate J.E.-J.’s allegations, is material to her reasoning and played an essential part in the reasoning process resulting in a conviction.

(ii) The credibility of the appellant

[56] The trial judge first breaks down the appellant’s statement to the police and lists specific portions of it. These include:

• they had been playing tickle monster and zerbert monster throughout the house, including the master bedroom;

• he gave J.E.-J. zerberts on her arm and tummy;

• When asked if he gave J.E.-J. a zerbert on her bare belly he answered “[u]m, if – well like not on purpose, but I mean say we’re just playing around, like same with my daughter… if – if- I don’t know”; and,

• he was never on the bed alone with J.E.-J. when he gave her a zerbert on her belly.

[57] The trial judge found that, on all of the evidence, the appellant’s denial was not credible. She found that “it is in contradiction with the expert evidence.” Furthermore, she wrote that “[h]is daughter confirmed that she saw her daddy tickling and zerberting her friend’s tummy.”

[58] I disagree with the trial judge’s analysis. Rather than contradicting the denial of the appellant, the trial judge could reasonably have interpreted Ms. Henry’s evidence as confirming the appellant’s version of events. Her evidence that the appellant’s DNA was recovered on the waistband and front panel of J.E.-J.’s underwear are not counter to his account of giving J.E.-J. zerberts “on her arm and tummy”. And, her evidence that his DNA was not recovered from the crotch area is capable of supporting his denial of the allegations.

[59] Ms. Henry’s evidence – correctly apprehended – was capable of giving some comfort to the trial judge that the appellant could be trusted in his denial of licking and zerberting her vaginal area. The trial judge’s misapprehension of Ms. Henry’s evidence, which she relied on to weaken the veracity of the appellant’s denial, is material to her reasoning and played an essential part in the reasoning process resulting in a conviction.

[60] I would add that the trial judge’s reliance on the appellant’s daughter “[seeing] her daddy tickling and zerberting her friend’s tummy” as confirmatory evidence is troubling. It only confirms what he has admitted to, namely, “he gave J.E.-J. zerberts on her arm and tummy”. Again, rather than providing a basis to disbelieve the appellant, it actually is in line with his version of events.

[61] Finally, I would also point out that the results of the external vaginal swab – which the trial judge did not consider – are at odds with J.E.-J.’s account of the appellant licking and zerberting her vaginal area. On the other hand, the results tend to support the appellant’s denial that he did so. To repeat, forensic testing recovered DNA from only J.E.-J.; none from the appellant. While, as Ms. Henry pointed out, this could be explained by the lapse of time between when the alleged assault occurred and when the swab was taken the following afternoon, there is no indication that the trial judge considered this piece of evidence at all in her reasoning.

VII. CONCLUSION

[62] The trial judge, as I said, correctly observed that this case depended largely on credibility. Accordingly, it was important for the trial judge to ensure that the Crown’s requisite burden of proof was met through credible and reliable evidence. This, as she correctly noted, required her to follow the principles mandated inW.(D.)and B.D. While the trial judge seems to have followed these principles when assessing the evidence and concluding that the appellant was guilty, she unfortunately did so by deciding the issues of credibility and reliability based on a misapprehension of critical evidence material to these issues.

[63] Had the trial judge considered all of the evidence, and apprehended the forensic evidence and testimony of Ms. Henry correctly, it would have been apparent to her that at its highest the evidence was nonaligned. That is, it confirmed that the appellant did zerbert J.E.-J.’s tummy, as he admits and J.E.-J. contends. It does not, however, confirm that the appellant pulled her underwear down, touched his lips to her vagina, “[o]n the skin”, and “blew zerberts on it”. Indeed, some of Ms. Henry’s evidence and the results of the external vaginal swab tend to support the opposite.

[64] Apprehending the forensic evidence correctly, the trial judge could arguably have concluded her W.(D.) analysis very differently. First, the correct forensic evidence might have provided a basis for her to believe the denial of the appellant, or at least have a reasonable doubt as to his guilt. Second, the evidence apprehended correctly could have led the trial judge to conclude that the evidence proffered by the Crown was insufficient to prove beyond a reasonable doubt that the appellant is guilty of the offences charged.

[65] Having decided this appeal as I have, it becomes unnecessary for me to specifically address the remaining two grounds advanced by the appellant. In many respects the additional grounds are incorporated into the foregoing analysis and conclusions.

VIII. DISPOSITION

[66] For these reasons I would allow the appeal, set aside the conviction and order a new trial.

Released: “AH” April 23, 2014

“H.S. LaForme J.A.”

“I agree. Alexandra Hoy A.C.J.O.”

“I agree. G. Pardu J.A.”

[1] The dispute was on the issue of transference, quantity, quality and location of the biological samples that were obtained, rather than whether it was the appellant’s DNA. Given this, I will refer to the major male profile as the appellant’s DNA.