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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Hemsworth, 2016 ONCA 85

DATE: 20160129

DOCKET: C59383

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Hemsworth

Appellant

Zachary Kerbel, for the appellant

Mary Ellen Hurman, for the respondent

Heard: September 17, 2015

On appeal from the conviction entered on June 27, 2014 and the sentence imposed on November 18, 2014 by Justice John S. Fregeau of the Superior Court of Justice.

Epstein J.A.:

OVERVIEW

[1] After a one-day trial, the trial judge convicted the appellant of sexual assault and stayed a charge of sexual interference, on the basis of Kienapple v. R. [1975] 1. S.C.R. 729. The conduct giving rise to the charges allegedly took place during the 1993-94 school year when the complainant was a grade eight student and the appellant was his gym teacher and basketball coach.

[2] This is a quintessential credibility case. The outcome of the trial turned entirely on the trial judge’s assessment of the testimony of the only two witnesses – the complainant and the appellant.

[3] The complainant described an incident after basketball practice when he was in the boys’ change area. He testified that the appellant fondled his penis, testicles, and buttocks. Approximately 20 years later, the complainant disclosed the assault.

[4] The appellant denied assaulting the complainant. The defence theory was that the complainant had fabricated the allegation and disclosed it to the mother of his child to forestall being denied access to his son. According to the defence, the complainant targeted the appellant because he was notorious in the small town of Dryden, Ontario where the conduct allegedly occurred. The appellant had been convicted of indecent assault on three female students in 2002.

[5] In this conviction appeal, the appellant argues that in assessing his credibility, the trial judge misapprehended certain evidence and overemphasized the appellant’s demeanour. The appellant also submits that the trial judge applied a harsher level of scrutiny to the appellant’s evidence than to the complainant’s evidence, thereby undermining the appellant’s ability to raise a reasonable doubt. The appellant submits that any one of these errors is sufficient to warrant appellate intervention.

[6] I agree that the trial judge’s rejection of the appellant’s evidence is tainted by legal error. I would therefore allow the appeal and order a new trial.

BACKGROUND

The Complainant’s Testimony

[7] At the time of the incident, the complainant was in grade eight. He was passionate about sports, especially basketball. The complainant testified that on the occasion in issue, he stayed late after practice to shoot hoops with a friend. After his friend left, the complainant went to the boys’ change room to get into street clothes before going home. After about a minute, the appellant entered the room. According to the complainant, the appellant came up to the complainant, removed the complainant’s gym shorts and underwear and, using his left hand, fondled the complainant’s penis and testicles. The appellant also put his right hand on the complainant’s buttocks. The complainant testified that the appellant told him he was not hurting him and that he, the complainant, should go home and practise. The encounter lasted between five and eight minutes.

[8] The complainant did not report the incident at that time. In his words, he “stayed the course”. He explained that sports and grades were important to him and that he both looked up to the appellant and was intimidated by him.

[9] In his testimony, the complainant described another incident involving the appellant that took place a few years later, when the complainant was in high school. The appellant was helping with the volleyball team and after a game, approached the complainant, pinched the back of his neck and, getting very close to him, complimented him on his playing. According to the complainant, this incident caused him to recall the appellant’s actions in the change room.

[10] The complainant recounted that, by this time, he had started dating girls and had come to appreciate that the appellant’s conduct was wrong. This realization made him feel scared, guilty, and embarrassed. According to the complainant, these feelings intensified and when he was in college, he turned to drugs and alcohol to deal with the impact the abuse had on him.

[11] The complainant also said that sometime in 2011, he disclosed the alleged conduct during a disagreement with his then girlfriend and the mother of his son. He gave the following evidence about this disclosure:

Q. Right. And in fact, [the child’s mother] gave you an ultimatum that unless you got your – and I'll use her words – "shit together,” she was not going to let you see your child or her. Remember that happening?

A. I remember her being really upset with me and I remember she may have said that, yes. She was really upset when I, when I went to pick up my stuff at her sister's.

Q. And she described it as a big falling out but you just described it as a fight. Is that fair?

A. Yeah, it was a fight and she was fairly upset with me.

Q. Okay. And during that part of that fight she told you to get your shit together and get some help and unless you got counselling, that her and [the child] were going to keep their distance and not see you until you got some help. Do you remember her telling you that?

A. Yeah, she had grown tired of my drinking, obviously, throughout our relationship.

[12] The complainant was cross-examined in considerable detail about three prior convictions for sexual assault. He admitted to pleading guilty to all three charges but denied the aggravated factual allegations underlying the offences as put to him by defence counsel.

The Appellant’s Testimony

[13] At the time of trial, the appellant was 66 years old and had retired, after 31 years of teaching. He taught physical education and coached the volleyball, baseball, and basketball teams. He estimated that he had taught between 2,500 and 3,000 students over the course of his career. The appellant testified that in fact he had no recall of teaching or coaching the complainant. But he did not dispute that he had.

[14] The appellant testified that it was possible that students were permitted to stay behind after basketball practice – although that was a rare occurrence. He denied that he had sexually assaulted the complainant, and did not recall ever being inside the boys' change room when there was only one student present.

[15] The appellant also gave evidence about his criminal record. He testified that he pleaded guilty to three counts of indecent assault on a female on September 30, 2002, in relation to incidents that took place in the 1970s. According to the appellant, the criminal proceedings were followed closely in local newspapers. After serving his one-year sentence, the appellant moved away from Dryden.

REASONS FOR CONVICTION

[16] In his reasons, the trial judge provided a detailed review of the evidence of the two witnesses and then concluded with his assessment of their credibility.

The Trial Judge’s Assessment of the Complainant’s Credibility

[17] The trial judge described the complainant’s evidence in chief as “clear and consistent”. He noted that the complainant was able to recall details of what took place in the change room on the day in question – the appellant’s actions, his words, and his attire.

[18] The trial judge noted that cross-examination had been directed at impugning the complainant’s credibility on three issues – his previous convictions, the circumstances surrounding his disclosure, and his evidence at the preliminary inquiry. The trial judge found that the complainant’s credibility had not been significantly diminished.

[19] As previously mentioned, the complainant denied aggravated versions of events put to him in cross-examination concerning his prior convictions. However, defence counsel did not attempt to prove the versions put to the complainant. Although the trial judge felt that the complainant may have minimized his actions in regard to two of the convictions, the trial judge reasoned that, in the circumstances where the terms of the plea bargain were not clear, this evidence did not negatively impact the complainant’s credibility.

[20] The trial judge described the inconsistencies in the complainant’s trial testimony and his testimony at the preliminary inquiry about what led to his disclosure as a “strange discrepancy” in the evidence. However, at para. 76, the trial judge found that “[w]hile it [did] affect his credibility to a degree, [he was] not prepared to discount [the complainant’s] entire testimony because of it.”

[21] The trial judge rejected the defence suggestion that the complainant had ulterior motives for making allegations against the appellant, in part because he found there was no evidence capable of supporting the defence position that the complainant targeted the appellant because he had a criminal record.

[22] Ultimately, the trial judge found the complainant to be “a strong witness whose recall was good and whose credibility was not seriously eroded on cross[-] examination.”

The Trial Judge’s Assessment of the Appellant’s Credibility

[23] The trial judge described the appellant as a person who testified in a “careful fashion” – his evidence lacked spontaneity.

[24] The trial judge was also troubled by the appellant’s evidence about how he met his responsibilities to the students after gym classes as opposed to after sports practices. He found that the appellant had carefully contrasted how he carried out his monitoring responsibilities after gym class with those after practice, in order to eliminate any opportunity to have committed the offences as described by the complainant.

[25] The trial judge then concluded that the appellant, upon realizing that his evidence about how he carried out his monitoring responsibilities was inconsistent and illogical, “corrected himself” when he testified that he smoked his cigarette close to an exit door and then returned to the hallway to wait until all the students had left.

[26] Finally, citing R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the trial judge instructed himself that, in assessing the appellant’s evidence, he was required to consider “the substance of [the appellant’s] evidence, the way in which [he] testified, and also weigh it against conflicting Crown evidence…”. The trial judge summarized his assessment of the appellant’s testimony saying that he was troubled both by the appellant’s demeanour when testifying and “some aspects of his evidence”.

[27] The trial judge concluded that he did not believe the appellant and that his evidence did not raise a reasonable doubt.

ISSUES

[28] The appellant submits that the trial judge erred by:

1. misapprehending the appellant’s evidence regarding his post-practice routine;

2. overly relying on the appellant’s demeanour in assessing his credibility; and

3. applying a different level of scrutiny to the evidence of the appellant than to that of the complainant.

ANALYSIS

1. Did the trial judge misapprehend evidence relating to where the appellant was when the boys went to the change room?

[29] The appellant submits that the trial judge’s conclusion that the appellant gave inconsistent and illogical evidence about how he monitored the students after gym classes and after sports practices, and then corrected his testimony, constitutes a misapprehension of his evidence.

[30] For the reasons that follow, I would give effect to this submission.

The Appellant’s Evidence about how he Monitored the Students

[31] The appellant gave the following evidence about how he met his supervisory obligations to students after gym class:

Q. Could you explain your routine, with respect to whether it’s team events or your gym classes, how you would conduct yourself after the class was over?

A. Okay. After the class was over I would dismiss the students, they would go up to the change room and I would go and stand where that perpendicular hallway met the main hallway and I would stand there and wait for the students to come out into the little side hallway until the bell rang and then I would dismiss them.

Q. Okay. Was there any, were there any occasions that you actually went into, say, the boy's change room?

A. The only time I ever, well the reason I was standing where I was standing was that I could keep track of the kids that were in the hallway and, but I could also hear if there was any ruckus going on in the boys' change room and that would be the only time I would go in.

[32] After sports practices, however, the routine was somewhat different. In response to questions posed by defence counsel about how he met his post-practice monitoring obligations, the appellant testified as follows:

Q. Okay. Was there any sort of routine for you at the end of practices that you recall?

A. Oh, yes.

Q. And what was that?

A. Your Honour, I'm a smoker and so at the end of practice as soon as I dismissed them I'd go out for a smoke.

[33] In cross-examination, the Crown asked for clarification:

Q. And you said that your routine was to always go out for a cigarette after you dismissed them?

A. When you smoke for 50 years, yes.

[34] Following re-examination, the trial judge questioned the appellant further about his after-class and after-practice routines. The appellant confirmed that after classes he would wait outside the change rooms to monitor students. The trial judge then asked the following:

THE COURT: And the same [after-class routine] would not have applied after practices after school? You simply dismissed them from the gym and it was not your responsibility to monitor change room behaviour after practices?

A. The players that I chose, one of the things that I chose them for was their ability to accept responsibility and the teams were fairly tightknit friends, friends-wise, and I never had a, I've never had a problem with a team in a change room, both in Pinewood, but also in away tournaments.

THE COURT: When you said you went for a smoke, I assumed you meant you went outside.

A. Yes.

THE COURT: The children were left unsupervised and you were not required to monitor student behavior after practices.

A. If you can still picture the perpendicular hallway, the other exit, or the other end of it which is ten feet away from the change rooms was the exit outside and that's where I had my smoke. I wasn't more than 15, 20 feet from them. And then I would come in and wait until all of them were gone, because they had to get, be picked up and what have you. I never left a student in the building by themselves, unattended. The kids would wait by the main door and there's a lost and found box called the box, the red box, and they would wait there until their rides picked them up and I'd be standing there with them, kibitzing and what have you, and then they would be gone.

Misapprehension of the Evidence

[35] At paras. 81 and 82 of his reasons, the trial judge noted that the appellant’s careful contrasting of his after-class and after-practice routines was “one particular aspect of his testimony” that the trial judge found “troubling”:

His [the appellant’s] evidence was that he monitored student behaviour from just outside the change rooms following gym classes but exited the school for a cigarette following the after school practices. This would eliminate any opportunity to have committed the offences as suggested by the complainant.

Upon realizing that this was inconsistent with his responsibility to monitor student behaviour in both instances and illogical, the defendant corrected himself and testified that he had his cigarette at an exit close to the change rooms and then returned and waited until all students had left.

[36] In my view, these paragraphs reflect a misapprehension of the appellant’s evidence in two respects.

[37] First, I see nothing inconsistent or illogical about the appellant’s description about how and why he conducted his monitoring responsibilities after a gym class differently than after a sports practice. It stands to reason that a sports team would be a more responsible and cohesive unit than a gym class and that the members of a sports team would require less careful supervision. Moreover, no evidence was called to challenge the appellant’s explanation of how the two groups differed and why those differences allowed for variation in how the appellant fulfilled his monitoring obligations.

[38] Second, and more importantly, I do not agree with the trial judge’s conclusion that the appellant corrected his evidence with respect to this point. When responding to the trial judge’s questions, the appellant did not alter any previous testimony. Rather, he expanded upon his evidence in examination-in-chief and under cross-examination, providing more details to explain the differences between dismissing students after a gym class and dealing with members of a basketball team who are leaving after a practice.

[39] Having concluded that the trial judge misapprehended the appellant’s monitoring evidence, the question is whether the misapprehension is material.

[40] Not every misapprehension of evidence by a trial judge will justify this court’s intervention. The misapprehension must be material. In R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56, Lebel J. discussed the concept of materiality and the test for appellate intervention:

For a misapprehension of evidence to be material within the meaning of the Lohrer test, it must go to a central element of the trial judge’s reasoning on which the conviction is based. As Binnie J. correctly stated in Lohrer, the standard described by Doherty J.A. in Morrissey is a stringent one. In other words, 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. [Citations omitted.]

[41] In my view, it is clear that the trial judge erred by misapprehending the appellant’s evidence – in finding that his testimony about how he monitored students was inconsistent and illogical and was later corrected. And, this misapprehension was material as it was one of only two factors the trial judge relied upon in rejecting the appellant’s evidence.

2. Did the trial judge overly rely on the appellant’s demeanour in assessing his credibility?

[42] The appellant submits that the trial judge also erred by placing too much weight on the appellant’s demeanour in assessing his credibility.

[43] For the reasons that follow, I agree with this submission.

Legal Principles

[44] This court has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor of the accuracy of a witness’s testimony: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel, at para. 85, “[i]t is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom.”

[45] Although the law is well settled that a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, reliance on demeanour must be approached cautiously: see R. v. S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26. Of significance in this case is the further principle that a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at pp. 313-14.

The Trial Judge’s Reliance on the Appellant’s Demeanour

[46] It is of note that the trial judge started his assessment of the appellant’s credibility by expressing his concern about how the appellant testified:

It was my impression that the [appellant] testified in a careful fashion which lacked any spontaneity. He appeared to me to be a witness who was prepared and aware of what his evidence should be to raise a reasonable doubt as opposed to a retired teacher wrongfully accused of fondling a young male 20 years ago.

[47] This paragraph troubles me for two reasons.

[48] First, the trial judge found the appellant’s credibility was diminished because he testified in a manner that was too careful. The problem I have with this is that the trial judge had no reference point. He did not know how the appellant normally expressed himself. Moreover, the appellant’s “careful fashion” of testifying may relate to such factors as the unfamiliar atmosphere of the courtroom, the artificiality of the circumstances under which the appellant was being asked to provide information and the pressure he was under given what was at stake.

[49] Second, I am concerned by the trial judge’s finding that the appellant testified more like someone trying to raise a reasonable doubt than someone wrongfully accused of sexually assaulting a student. The trial judge provided no insight as to how he arrived at that conclusion, particularly how the differences between the two types of testimony might manifest themselves. General assertions such as this are, with respect, not only unhelpful but also defy appellate review.

[50] Although the trial judge was entitled to consider the appellant’s demeanour in assessing his credibility, he erred by considering factors that had little, if any, evidentiary foundation, and by generally over-emphasizing how the appellant appeared in the witness box.

[51] Again, the error must be material. In my view, it is. It must be remembered that the trial judge’s assessment of the appellant’s demeanour was one of only two factors the trial judge relied on in rejecting the appellant’s evidence. Against that background, and given the singular importance of the appellant’s testimony, the errors the trial judge made in factoring the appellant’s demeanour into the trial judge’s assessment of the appellant’s credibility were material.

3. Did the trial judge apply a different level of scrutiny to the defence evidence compared to that of the Crown?

[52] The appellant submits that the trial judge erred in applying a harsher standard of scrutiny to the appellant’s evidence than to the complainant’s. The trial judge unfairly criticized him for simply denying the allegations against him but overlooked or discounted many inconsistencies in the complainant’s evidence.

[53] I have already concluded that the trial judge’s rejection of the appellant’s testimony was based on two errors. In my view, each error was material. Taken together, there is no question in my mind that the verdict cannot stand. It is therefore unnecessary for me to consider this third ground of appeal.

DISPOSITION

[54] For these reasons, I would allow the appeal, set aside the conviction and lift the stay. I would order a new trial on both charges.

Released: January 29, 2016 (EAC)

“Gloria Epstein J.A.”

“I agree E.A. Cronk J.A.”

“I agree David Brown J.A.”