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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. D.R., 2016 ONCA 162

DATE: 20160229

DOCKET: C59247

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.R.

Appellant

W. John McCulligh, for the appellant

Eric Siebenmorgen, for the respondent

Heard: February 23, 2016

On appeal from the conviction entered on May 2, 2014 by Justice S.R. Clark of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of sexual offences in relation to two young boys. He was found guilty of two counts of sexual assault, two counts of sexual interference, and one count of invitation to sexual touching. The boys were approximately seven and nine years old when the offences were said to have occurred. The appellant appeals the convictions on the ground that the trial judge misapprehended the evidence.

[2] The two boys are brothers who were living with their grandmother. The appellant began renting a room in her home in early 2010. The brothers alleged that the appellant touched their genitals and buttocks and, on one occasion, showed them pornography. The older brother said the appellant once told him to perform oral sex on him. When the complainant refused, the appellant masturbated next to him. Although there was a confrontation in the home about these issues in the spring of 2011, the grandmother took no action and the appellant was allowed to stay in the house. No disclosure was made to the authorities until 2013.

[3] The trial took place in the Ontario Court of Justice sporadically over a number of days in 2014. The boys, then ages 11 and 13, testified. Their grandmother and the appellant did as well.

[4] The main issue before the trial judge was credibility. The trial judge recognized this. He concluded that, although the appellant was “not unimpressive” as a witness, he did not believe him. He found that the appellant’s “blanket denial of each event, simply cannot be true.” The trial judge relied on one specific example to ground his finding. The example related to the appellant’s evidence about watching movies on a sofa with the boys and their grandmother. The appellant testified that the boys would lie on the sofa, one next to his grandmother and the other with his head on a cushion on the appellant’s lap. The trial judge fastened on this and concluded that the appellant changed his evidence during cross-examination to add that there was a cushion between him and the boy that had not been previously mentioned.

[5] In fact, the appellant did not change his evidence during cross-examination. He mentioned the cushion in his examination-in-chief:

Q. Do you recall … that everybody would watch a movie?

A. … I would sit at the end of one – like the long couch… [the complainant] would lay on the long couch with his head in my lap…

Q. Would [the complainant] be next to you?

A. Yes, prostrate … with his head on a pillow in my lap.

[6] By the time the appellant was cross-examined, the parties had received transcripts of the appellant’s examination-in-chief. When the appellant referred to the cushion on his lap, the Crown suggested to him that he had not mentioned this in his examination-in-chief:

Q. So now you’re saying there was a cushion.

A. Yes. He always had the couch cushion under his head.

[7] The Crown pursued this line of questioning suggesting that he had not mentioned the cushion before.

[8] This mischaracterization became the trial judge’s main articulated reason for rejecting the appellant’s testimony. At para. 94(7) of his reasons, he discussed the inconsistencies in the appellant’s testimony:

The most obvious [inconsistency] relates to that part of his evidence where he stated that when they were all sitting on the couch watching movies, [the complainant] would lay with his head in [the appellant’s] lap. He said nothing in his examination–in-chief about his head being on a cushion, but on cross-examination, he then must have realized that having a cushion covering his lap would somehow make it less suggestive of some form of intimacy. His explanation of not mentioning the cushion because he merely assumed that it would somehow be understood that this was the situation, is an absurdity. This is the start of many parts of his evidence which exposes and undermines his credibility and reliability, leaving the Court with the impression that he was making it up as he was going along, or as the Crown characterized it, he was a “moving target”.

[9] The trial judge was mistaken when he said that the appellant said nothing about the cushion in his examination-in-chief.

[10] A misapprehension of evidence must be material to justify this court’s intervention: R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505, at para. 40; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. In R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56, LeBel J. explained that “an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground.” This stringent standard is met in this case.

[11] The trial judge concluded, based primarily on the misapprehension of the evidence about the cushion, that the credibility and reliability of the appellant’s testimony was undermined. He noted that “[s]ome of the inconsistencies in his evidence were rather glaring.” Yet he only referred to the cushion incident. During oral submissions, the Crown referred to other inconsistencies. We find none of them significant or glaring.

[12] The main issue for the trial judge was credibility. His conclusion as to the credibility of the appellant was tainted by an error of fact. The error infected the core of his reasoning on the credibility of the appellant. Consequently, the convictions cannot stand.

[13] The appeal is allowed, the convictions are quashed, and a new trial is ordered at the discretion of the Crown.

“Robert J. Sharpe J.A.”

“M.L. Benotto J.A.”

“Grant Huscroft J.A.”