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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. L.V.B., 2014 ONCA 522

DATE: 20140704

DOCKET: C55589

Feldman, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L. V. B.

Appellant

Heather Pringle, for the appellant

Sean Doyle, for the respondent

Heard and released orally: June 24, 2014

On appeal from the conviction entered on November 22, 2011 by Justice Richard C. Gates of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] After a trial before a judge sitting without a jury, the appellant was found guilty on counts of invitation to sexual touching and sexual assault. Both counts related to a single incident. The sexual assault finding was stayed on the basis of Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[2] The appellant raises several grounds of appeal alleging a variety of errors in the reasoning process the trial judge followed in reaching his conclusion that the Crown had proven its case beyond a reasonable doubt. In the view we take of this case, it is necessary to consider only one ground of appeal advanced by Ms. Pringle in her submissions.

[3] Ms. Pringle contends that the trial judge misapprehended parts of the appellant's evidence about the day on which the complainant said the alleged conduct occurred. This error about the substance of the material parts of the evidence, Ms. Pringle says, played an essential part in the trial judge's reasoning process that resulted in the findings of guilt. It follows, she submits, that the conviction is not based exclusively on the evidence adduced at trial and should be set aside.

[4] For all practical purposes this was a two witness case.

[5] The complainant testified that while she and the appellant were alone in their home, the appellant called her upstairs to the bedroom, put her hand on his penis and rubbed it in a circular motion for several minutes.

[6] The appellant testified in his own defence. He denied the allegations entirely.

[7] In his reasons for judgment, the trial judge made several references to "admissions" or "acknowledgements" in the appellant's evidence, which, the judge said, reinforced the complainant's testimony about the offence charged. For example, the trial judge found:

On the day of the offence the accused acknowledged that he and [the complainant] were alone in the house watching television while [her brother] was outside and her mother and [her sister] were shopping. After he went upstairs to his bedroom he called her to tickle his back. This acknowledgement by him reinforced her credibility.

On the day in question he testified that he and [the complainant] had been alone in the house watching television. After he had gone upstairs for a nap he called downstairs for [the complainant] to come and give him a massage. He lay on his side of the bed while she was on the other side where his wife slept.

...he did in effect admit that he was lying on the bed under a blanket, naked, and that on many occasions he has received backrubs he's been similarly naked. There was no explanation given by him as to why, if he was anticipating a request to receive a backrub he could not have put on his pants or at least his underwear. He later stated that he had no recollection of the incident.

…(he) admitted there were times when he was naked, including on the day in question, while lying on the bed, although covered with a blanket.

[8] For the respondent, Mr. Doyle concedes that the trial judge misapprehended parts of the appellant's evidence in relation to the events on the date of the alleged offence. The result, Mr. Doyle acknowledges, was that the trial judge misunderstood that the appellant had not acknowledged:

i. that he was alone with the complainant on the date of the alleged offence;

ii. that he asked the complainant to give him a massage; and

iii. that he was naked under a blanket at that time.

[9] Mr. Doyle also concedes that these misapprehensions of the evidence factored into the trial judge's credibility assessment. The trial judge considered that these "admissions" and "acknowledgments" reinforced the credibility of the complainant and the reliability of her evidence.

[10] The trial judge offered several reasons for rejecting the appellant's evidence and finding that it did not raise a reasonable doubt about the appellant's guilt. That said, it was then incumbent on the trial judge to determine, on the evidence he did accept, whether he was satisfied beyond a reasonable doubt of the appellant's guilt.

[11] In reaching his conclusion, the trial judge used what he erroneously characterised as the appellant's "admissions" and "acknowledgments" as a make-weight to buttress the testimony of the complainant and to satisfy the burden and meet the standard of proof. He was wrong to have done so. And that error vitiates his findings of guilt.

[12] In light of our conclusion on this ground of appeal, we do not consider it necessary or advisable to consider the other grounds of appeal advanced by Ms. Pringle.

[13] For these reasons, the appeal is allowed, the conviction and stay set aside, and a new trial ordered.

"K. Feldman J.A."

"David Watt J.A."

"C.W. Hourigan J.A."