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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. M.D.R., 2015 ONCA 323

DATE: 20150511

DOCKET: C57760

Feldman, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.D.R.

Appellant

Robert J. Reynolds, for the appellant

John McInnes, for the respondent

Heard: April 28, 2015

On appeal from the conviction entered on July 24, 2013 by Justice Sheffield of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted by a judge sitting without a jury of sexual assault and sexual touching of his daughter when she was 8 and 9 years old. He was also found guilty of simple assault with respect to a spanking incident that occurred around the same time. The appellant appealed only the sexual offence convictions.

[2] The complainant was 15 years old at the time of trial. She described incidents that she said occurred six and seven years earlier when the appellant would visit her and her sister on Saturday nights at the home of his second spouse and her children, where the complainant and her sister would visit as well.

[3] On those occasions the complainant and her sister would sleep on mattresses on the floor with about one foot of space in between. The appellant would come and lie down between them in that one-foot space. They would then watch movies. Sometimes he would cuddle the complainant but sometimes he would rub her vagina and her breasts. When she told him she did not like that, he responded that she did. This occurred between 5 and 20 times.

[4] The appellant testified. He agreed that he would lie down between the children and watch movies and that he would sometimes cuddle the complainant, but he denied the allegations of sexual impropriety.

[5] A number of grounds of appeal were raised by counsel on behalf of the appellant. The court did not call on the Crown on all grounds. In light of our conclusion that the appeal must succeed on the R. v. W.(D.) ground and that a new trial must be ordered, it is unnecessary to address the other grounds raised.

[6] In his reasons for judgment, having found the complainant to be believable and reliable, the trial judge referred to the rule in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, stating correctly that "the W.(D.) test requires that judges and juries refrain from engaging in "credibility contests" between the accused and the complainant." He went on to state that the court is required to assess the totality of the evidence and on that basis determine "whether any doubt remains", in which case the accused is given the benefit of that doubt.

[7] After discussing the evidence given by the appellant, the trial judge concluded:

While I am not prepared to say that his evidence is wholly incredible and unreliable, I nonetheless find that on matters germane to the question of whether he touched his daughter in a sexual context, I find his evidence to be less credible than that of the complainant. As such, he has failed to raise a reasonable doubt in my mind with respect to those offences.

[8] He then went on to find that the appellant was deliberate in his timing of the sexual assaults "comfortable in the knowledge that his actions would go undetected by the other sleeping children", and rejected the appellant's testimony that he was not adversely under the influence of alcohol when in charge of the children, based on some photographs of him drinking in their presence.

[9] After acknowledging that the complainant "has lived a troubled life", he stated:

Yet, on the whole of the evidence, I found her evidence to be the more credible and persuasive. I found the straight denial by the accused less credible, less reliable and therefore, of little probative weight.

[10] Crown counsel fairly acknowledged that the two quoted statements, viewed in isolation, were erroneous formulations of the burden of proof, but submitted that when the reasons are read as a whole, the court could find that the trial judge applied the correct burden of proof to the finding of guilt beyond a reasonable doubt.

[11] We cannot accept that submission. The Crown relies on this court's decision in R. v. J.J.R.D.(2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), where Doherty J.A. explained that it was not an error for a trial judge to reject an accused's evidence "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence."

[12] The important difference between the reasons for judgment in this case and in J.J.R.D. is that while in the reasons in this case, the trial judge also discussed why he accepted the evidence of the complainant, despite the fact that she had earlier denied any sexual misconduct to the police, and why he rejected the denial by the appellant, he then made the two impugned statements about whose evidence he preferred.

[13] Those two statements indicate clearly that despite the reference to W.(D.), the trial judge engaged in a credibility contest, making his decision on which version he believed based on whose evidence he preferred, rather than by addressing the problems and inconsistencies in the evidence tendered by the Crown and determining and articulating why they did not raise a reasonable doubt.

[14] In this case, although there are other passages in the reasons for judgment that demonstrate a proper approach, one cannot be satisfied, reading the reasons as a whole, that the trial judge did not ultimately use the erroneous burden of proof to convict the appellant.

[15] As the reasons disclose an error of law, the verdict must be set aside and a new trial ordered.

"K. Feldman J.A."

"C.W. Hourigan J.A."

"G. Pardu J.A."