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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the "proper administration of justice" includes ensuring that:

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

Court of Appeal for Ontario

Date: 2017-08-10

Docket: C61414

Panel: Hoy A.C.J.O., Simmons and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

A.N. Appellant

Counsel

• Christine Mainville, appearing as duty counsel
• A.N., acting in person
• Tracy Kozlowski, for the respondent

Heard: July 12, 2017

On appeal from: the conviction entered on August 24, 2015 by Justice J.D. Nadelle of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] The appellant appeals his convictions of sexual offences arising out of two incidents the complainant testified occurred 33 years ago, when the appellant babysat the complainant. At the time, the appellant was 14 years of age and the complainant – his cousin – was just short of her sixth birthday.

[2] Because of his age at the time of the alleged incidents, the appellant was tried in Youth Court. The appellant testified. He acknowledged that he had babysat the complainant, but denied the incidents occurred. The trial judge concluded that there was "nothing in [the appellant's] evidence that would justify me in concluding that he is not believable or credible except for the existence of conflicting evidence of [the complainant]." The trial judge found the complainant to be reliable and credible and, invoking this court's decision in R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252, rejected the appellant's evidence based on his acceptance of the conflicting evidence of the complainant.

[3] The trial judge convicted the appellant of having sexual intercourse with a person under the age of 14 years without her consent (then s. 146 of the Criminal Code) and one count of indecent assault (formerly s. 149 of the Code). He stayed the charge of having sexual intercourse with a female person without consent (formerly s. 144 of the Code) and one count of indecent assault under the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant was sentenced to 90 days custody and supervision (served as 60 days' jail, intermittent, and 30 days' supervision).

Grounds of Appeal

[4] With the assistance of Duty Counsel, the appellant advances four grounds of appeal:

1. The trial judge erred in his application of J.J.R.D. by rejecting the appellant's testimony based on his acceptance of the complainant's testimony without a "considered and reasoned" analysis of that testimony and the whole of the evidence;

2. The trial judge erred in failing to adequately assess the reliability of the complainant's evidence;

3. Having determined that he required confirmation of the complainant's evidence, the trial judge failed to identify any such confirmation; and

4. The trial judge provided insufficient reasons to convict the appellant.

[5] For the following reasons, we agree with the appellant that the trial judge erred in his application of J.J.R.D. Given that conclusion, and the overlapping nature of the appellant's grounds of appeal, we need not separately address the remaining grounds of appeal. We allow the appeal, set aside the convictions, and order a new trial.

The Trial Judge's Reasons

[6] To provide the necessary background, we first provide a summary of the trial judge's reasons.

[7] As indicated above, the trial judge found that there was nothing in the appellant's evidence that the alleged incidents did not occur that would justify concluding that he was not credible.

[8] The trial judge noted that when, in a criminal trial, it comes down to a complainant's testimony versus that of the accused, it is important that the trier of fact seek out confirmatory evidence that supports the complainant's evidence.

[9] He also noted that in addition to the inconsistencies between the appellant's and the complainant's evidence, there were inconsistencies between the complainant's and her mother's evidence.

[10] He found that the complainant's recollection of the events giving rise to the charges was excellent: "She was able to recall, with precision, details of how the assault evolved, the circumstances before and after the assault, and what she was doing before the assaults and what occurred afterwards."

[11] In contrast, the mother testified that she had undergone operations to her head and things had been erased. Details were buried in her memory and her memory came and went. Because of this, the trial judge was reluctant to place much reliance on her evidence. Where the mother's evidence conflicted with that of the complainant, the trial judge accepted the evidence of the complainant.

[12] He wrote as follows:

I find [the complainant] to be reliable and credible. I have already mentioned her ability to recall and relate in detail the assaultive behaviours of the accused. I might add, the evidence discloses no motive to fabricate and if she was of a mind to make up the facts of the sexual assaults, she could have made the second incident a much worse scenario. In addition, [the complainant] gave her evidence in a calm and measured manner. She was articulate and unshaken in cross-examination.

[13] The trial judge indicated that in finding that the appellant had been proven guilty beyond a reasonable doubt, he had followed J.J.R.D., which held that the rejection of an accused's evidence may be derived from a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence.

[14] Both the complainant and M., the appellant's sister, testified about a third incident, often referred to at trial as the sticker book incident, which occurred about two years after the parameters of the charge. The Crown submitted that M.'s evidence about the sticker book incident was confirmatory evidence that supported the complainant's evidence. The trial judge was satisfied beyond a reasonable doubt as to the appellant's guilt without considering the evidence about the sticker book incident. Therefore, he concluded that it was unnecessary to rule on the admissibility of that evidence.

The Principle in J.J.R.D.

[15] At para. 53 of J.J.R.D., Doherty J.A. wrote for the court that, "An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence."

[16] Rejection of an accused's evidence based on the acceptance of a complainant's conflicting evidence constitutes reversible error if the acceptance, beyond a reasonable doubt, is not considered and reasoned: R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251.

Analysis

[17] The issue of the reliability of a complainant's evidence is heightened where, as in this case, the complainant testifies to events she alleges occurred several decades before, when she was a young child.

[18] We agree that the trial judge's acceptance of the complainant's evidence was not "considered and reasoned", in accordance with J.J.R.D.

[19] The trial judge was not required, as a matter of law, to seek out confirmatory evidence in order to make a finding of guilt. Nonetheless, in his reasons, the trial judge identified what, in the circumstances of the case, was necessary for him to reach a "considered and reasoned" acceptance of the complainant's evidence beyond a reasonable doubt – the existence of confirmatory evidence supporting that of the complainant. However, the trial judge in his reasons failed to identify any independent evidence that strengthened his belief in the veracity of the complainant's evidence. By the standard he set, his acceptance of the complainant's evidence was not "considered and reasoned". Moreover, it is not clear that the evidence that the trial judge admitted includes any confirmatory evidence that supports the complainant's evidence.

[20] Given the foregoing conclusion, it is unnecessary for us to address the appellant's other arguments.

Disposition

[21] We allow the appeal, set aside the convictions and order a new trial. The admissibility of the evidence about the sticker book incident shall be determined, if required, on the re-trial.

Released: August 10, 2017

"Alexandra Hoy A.C.J.O."

"Janet Simmons J.A."

"David Brown J.A."