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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-11-09

Docket: C62072

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

Parties

Between

Her Majesty the Queen

Respondent

and

C.B.

Appellant

Counsel

• C.B., appearing in person
• Howard Krongold, as duty counsel
• Michael Bernstein, for the respondent

Hearing

Heard: July 12, 2017

On appeal from: The conviction entered on December 4, 2015 by Justice William M. Le May of the Superior Court of Justice, with reasons reported at R. v. C.B., 2015 ONSC 7554.

Decision

Simmons J.A.:

A. Introduction

[1] The appellant was charged with two counts of sexual interference and two counts of sexual assault arising from two incidents that occurred during the summer of 2009. The complainant is the appellant's half-sister's daughter. The appellant was living with the complainant and her mother, C.S., during the period in which the alleged sexual assaults occurred. The appellant was 33 at the time; the complainant was 14.

[2] Concerning the first incident, the complainant alleged that the appellant got on a bed she was sleeping in and digitally penetrated her during the second night of a two-night family stay in a hotel in Sault Ste. Marie (the "hotel incident").

[3] The appellant testified at trial and denied any sexual misconduct with the complainant. The trial judge acquitted the appellant of the two charges relating to the hotel incident. He said he did not believe the appellant's evidence due to credibility problems in the appellant's evidence as a whole. Nonetheless, the trial judge concluded that the appellant's evidence together with the whole of the evidence gave rise to a reasonable doubt in relation to these charges.

[4] The complainant alleged that the second incident occurred soon after their return from Sault Ste. Marie. On an occasion when the appellant was in the basement doing his laundry, she told the appellant that she was thinking about boys and sex, and stated that she was horny. The appellant told her to finger herself. Then, at her invitation, the appellant digitally penetrated her and performed oral sex on her until she told him to stop (the "laundry room incident").

[5] Although the appellant denied any sexual misconduct with the complainant, he acknowledged telling the complainant to finger herself after she told him she was horny (the "laundry room conversation"). During cross-examination, the appellant asserted that he did not tell C.S. about the laundry room conversation because he was concerned that a "big commotion" might ensue, similar to a previous argument following which the complainant threatened to kill herself and harm other people.

[6] The trial judge found the appellant guilty of sexual assault and sexual interference in relation to the laundry room incident. Among other things, he concluded that if there was any truth to the appellant's assertions that he did not commit these offences or that the laundry room conversation was awkward, the appellant would have at least considered one of three courses of action, including telling C.S. about his conversation with the complainant.

[7] On behalf of the appellant, duty counsel argued that the trial judge erred in his credibility analysis by failing to advert to material evidence when assessing the appellant's credibility. In particular, he submits that the trial judge failed to advert to the appellant's plausible explanation concerning why he did not tell C.S. about the laundry room conversation.

[8] For the reasons that follow, I would allow the appeal, set aside the conviction and order a new trial. Given this disposition of the appeal, it is unnecessary that I address the oral arguments advanced by the appellant.

B. Background

[9] To provide context for my review of the trial judge's reasons, I will briefly set out some of the evidence he reviewed concerning the parties' living arrangements, the appellant, the complainant, the two incidents and a Facebook conversation between the complainant and the appellant that preceded the charges. Although the appellant was acquitted of the hotel incident, the trial judge's analysis of the hotel evidence is a component of his overall credibility analysis. I will also review the appellant's evidence concerning why he did not tell C.S. about the laundry room conversation.

(1) The parties' living arrangements

[10] In March 2009, C.S. invited the appellant to move into a house with her, another of her brothers and the complainant. The appellant, C.S. and C.S.'s other brother all had upstairs bedrooms; the complainant had a curtained-off bedroom in the basement near the laundry room.

(2) The appellant

[11] The appellant was working for a trucking company when he moved in with C.S. and the complainant. He was fired from that job in August 2009 and remained unemployed for a few weeks. In December 2009, the appellant moved to Ottawa abruptly without giving notice that he was leaving. Following the appellant's departure, C.S. cashed one of his cheques from his employer. Although she left the appellant a note, he called the police. The police investigated but did not lay charges. The appellant eventually recovered the amount of the cheque from his employer by telling his employer the cheque had been stolen.

(3) The complainant

[12] The complainant turned 14 at the end of July 2009. She suffered from depression as a child and, prior to the incidents at issue, was diagnosed with bi-polar disorder and anti-social personality disorder.

[13] Shortly before the hotel incident, the complainant began taking a new medication that made her drowsy. During cross-examination, she acknowledged that if she did not take her medication, her judgment could become impaired, she could become hyperactive and could possibly experience hallucinations.

(4) The hotel incident

[14] In July 2009, the appellant, C.S. and the complainant went on a road trip to Sault Ste. Marie. They stopped on the way and picked up C.S.'s nephew, D. The foursome stayed in Sault Ste. Marie in one hotel room for two nights. The complainant described the hotel room as containing a bathroom to the right of the entrance and then two double beds on the right side of the room. The complainant and her cousin planned to share one bed, with the appellant and C.S. sharing the other. However, the sleeping arrangements did not proceed as planned.

[15] At trial, C.S., the complainant, and the appellant provided conflicting accounts of the sleeping arrangements. C.S. testified that the appellant slept on the floor both nights. The complainant testified that on the second night, her mother moved from the first bed next to the bathroom to the second bed, and the appellant fell onto the floor between the first bed and the bathroom wall. The complainant moved to the now-empty first bed. The appellant testified that on the first night, he slept on the floor between the bed and the bathroom wall. On the second night he slept in a bed with C.S.

[16] The complainant asserted that the appellant sexually assaulted her during the second night of the trip. According to her, during the night the appellant began to play with her hand. Then he got up on the bed and inserted his finger into her vagina. The appellant denied that any sexual misconduct occurred. When the complainant got into the bed next to him, he attempted to annoy her by making various noises and she attempted to hit him on the head.

(5) The laundry room incident

[17] The complainant and the appellant both testified that on an occasion when the appellant was picking up his laundry the complainant told the appellant that she was thinking about boys and sex. She told the appellant that she horny. Both also said the appellant told the complainant to finger herself. The complainant testified that she began to finger herself and asked the appellant if he wanted to help. She said he inserted his finger into her vagina and performed oral sex on her. When she asked him to stop, he stopped. The appellant denied touching the complainant.

(6) The Facebook exchange that preceded the charges

[18] Between December 2009 and July 2010, the appellant and the complainant were in contact on Facebook. In July 2010, they had a Facebook exchange about sex. Following that exchange, the complainant contacted the police and alleged that the appellant had sexually assaulted her on two occasions in 2009.

(7) The appellant's explanation concerning why he did not tell C.S. about the laundry room conversation

[19] During cross-examination, the Crown challenged the appellant over his failure to inform C.S. about the laundry room conversation. The appellant explained that he was concerned that telling C.S would cause a "big commotion," similar to a previous argument in which the complainant threatened to kill herself and harm other people:

Q. You never say to [C.S.], you know, your daughter [N.S.] said this really inappropriate thing to me yesterday before?

A. No, I, I didn't.

Q. Now, you talked to [C.S.] about other sexual stuff. You told us yesterday all sorts of sexual things that you talked to [C.S.] about [N.S.], but this was not the thing that you thought you should mention to [C.S.]?

A. Well, [C.S.] said it to me that getting her a dildo.

Q. But never in your concern for [N.S.]'s well-being do you – I'm assuming you had concern for her well-being. Am I right to assume that?

A. Yes.

Q. You never turned to [C.S.] and said, you know, Your 13 year old child just essentially propositioned me sexually?

A. I did not think of it at that time, because if I would have said something, big argument and who, who knows what [N.S.] would have done to herself.

Q. So you kept it a secret for [N.S.]'s benefit?

A. Well, there's – yes, because –…Because there were times where something will – like, for instance, with the naked pictures on Facebook, that apparently someone else posted of [N.S.].

Q. So that's something we're never heard about.

A. But, you see, like I said, at that time when that happened there was a big argument and big commotion between [C.S.] and [N.S.], and [N.S.] was, like, you know, she's going to go kill herself and harm other people. So, like, this would have been even worse.

Q. So you decide you're going to keep it a secret?

A. From [C.S.], yes.

C. The Trial Judge's Reasons

[20] After reviewing the evidence, the trial judge turned to his analysis. He noted this was a credibility case and that the principles in R. v. W.(D.) apply. He set out his findings concerning each incident separately.

[21] Concerning the hotel incident, at para. 97 of his reasons, the trial judge said he did "not find the [appellant's] evidence to be believable as there [were] credibility problems in [the appellant's] evidence as a whole". However, although he was satisfied there were some form of "interplay" between the appellant and the complainant during the night, at para. 98 of his reasons, he concluded that "both [the appellant's] evidence and the evidence taken as a whole raise[d] a reasonable doubt as to whether the interactions between the complainant and [the appellant] included a sexual assault or sexual touching."

[22] The trial judge gave four reasons for this conclusion:

• the evidence of the sleeping arrangements in the hotel room was unclear;
• the complainant's explanation for why the appellant stopped the assault was not clear and consistent;
• it was possible that the new medication that the complainant had started was affecting her memory;
• overall the details were not clear concerning what happened and when on the trip to Sault Ste. Marie.

[23] Concerning the laundry room incident, at para. 102 of his reasons, the trial judge said he did not believe the appellant's evidence and that it did not raise a reasonable doubt for the following reasons:

• the appellant's description of his relationship with the complainant was internally inconsistent: on some occasions he said he wanted to be an inspiration to her while on other occasions he sought to minimize the amount of time he spent with her;
• the appellant's evidence about his employment situation was not completely candid – this, too, was an attempt to minimize the amount of time he spent with the complainant;
• in general, the appellant attempted, in his evidence, to make things sound more favourable to him than they actually were; and
• the appellant gave evidence about the complainant and her cousin passing notes in the car on the way home from Sault Ste. Marie, which the complainant and C.S. denied, in an attempt to demonstrate that the complainant was involved with her cousin.

[24] At para. 103 of his reasons, the trial judge said there were other aspects of the appellant's testimony that supported his rejection of the appellant's evidence. However, as they also involved the complainant's testimony, they were best dealt with in his analysis of whether the evidence, taken as a whole, raised a reasonable doubt.

[25] The trial judge then turned to this question whether the evidence, when considered as a whole, raised a reasonable doubt. He began by observing, at para. 105, that the complainant's credibility was enhanced by her evidence about the Facebook exchange whereas the appellant's credibility was weakened. This was because the complainant acknowledged that the printed copy of the Facebook exchange adduced at trial was incomplete whereas the appellant initially attempted to avoid acknowledging he was involved in the exchange.

[26] With respect to the specifics of the laundry room incident, the trial judge observed at para. 106, that the complainant and the appellant agreed on many aspects of the event. It was insignificant that the complainant and appellant described the timing of the laundry room incident differently. While they pointed to different months, both described the incident as occurring at the end of the summer, in either August, according to the complainant, or September, according to the appellant.

[27] At paras. 107–108, the trial judge set out a specific basis for rejecting the appellant's evidence concerning the laundry room incident and for accepting the complainant's evidence beyond a reasonable doubt:

On cross-examination, [the appellant] stated that having a conversation with the Complainant about the fact that she was horny would have been "awkward". However he did not take any steps to try and deal with this conversation. Specifically, he did not:

a) Tell C.S. about the conversation, in spite of the fact that he had a relationship with C.S. in which he would discuss issues that C.S. was having with her daughter.

b) Stop having contact with the Complainant because of the awkwardness of this conversation.

c) Tell her that her comments [were] inappropriate because he is her uncle and she is only 14 years old.

If there was any semblance of reality to [the appellant's] statement that he did not perform digital penetration or oral sex on the Complainant or that he found a conversation with the Complainant about sex "awkward", then it is likely he would have at least thought about taking one of the steps. When these facts are considered against the backdrop of the evidence as a whole, I am of the view that the fact that the assault took place in the laundry room is proven beyond a reasonable doubt.

[28] The trial judge then went on, at para. 109 of his reasons, to identify an aspect of the complainant's evidence that reinforced his finding of guilt:

My conclusion is enhanced by the exchange that [the appellant's] counsel had with the Complainant near the end of her second cross-examination…. In that exchange, the Complainant candidly acknowledges that she was trying to get [the appellant] to participate in sexual activities with her, and that she succeeded in doing so.

D. The Positions of the Parties on Appeal

(1) The appellant

[29] On behalf of the appellant, duty counsel argued that lynchpin of the trial judge's reasons for rejecting the appellant's evidence concerning the laundry room incident is found at paras. 107 and 108 of his reasons.

[30] As set out above, in those paragraphs, the trial judge noted that the appellant testified that having a conversation with the complainant in which she said she was horny was awkward. Nonetheless, the appellant failed to do anything about the conversation, including telling the complainant's mother about it, breaking off contact with the complainant or telling the complainant her comments were inappropriate. The trial judge concluded that if there was any truth to the appellant's assertion that he did not engage in sexual misconduct with the complainant or that he found their laundry room conversation awkward, the appellant would have at least considered one of those three courses of action.

[31] Duty counsel submits that in reaching this conclusion, the trial judge failed to consider the whole of the evidence and therefore materially misapprehended the evidence. In particular, the trial judge failed to advert to the appellant's explanation that he did not tell C.S. about the conversation because he was concerned that a "big commotion" would ensue and that the complainant might harm herself or others as a result. Given the complainant's history of mental illness and her evidence about being bullied, duty counsel submitted that the appellant's explanation was plausible. Moreover, the trial judge's failure to advert to, or make any findings concerning, the appellant's explanation undermines what was the fundamental basis for rejecting the appellant's evidence concerning the laundry room incident. Although the trial judge gave other reasons for rejecting the appellant's evidence, paras. 107 to 108 were clearly the lynchpin of his credibility analysis concerning the laundry room incident.

(2) The Crown

[32] The Crown disputes duty counsel's assertions that paras. 107 to 108 formed the lynchpin of the trial judge's credibility findings concerning the laundry room incident. The trial judge gave many reasons for not accepting the appellant's evidence and had already made it clear, at paras. 102 and 103 of his reasons, that he rejected the appellant's evidence.

[33] In any event, the Crown submits that any failure to advert to the appellant's explanation concerning why he did not tell C.S. about the laundry room conversation does not amount to a misapprehension of the evidence constituting reversible error. When making credibility findings, a trial judge need only explain the basis of his or her findings. Trial judges are not obliged to refer to every explanation advanced by an accused person when making findings of credibility.

E. Discussion

[34] I agree that paras. 107 to 108 of the trial judge's reasons were the lynchpin of his credibility findings concerning the laundry room incident. I also agree that by making those findings without referring to the appellant's explanation for not telling C.S. about the incident, the trial judge erred by failing to consider the whole of the evidence and materially misapprehending the evidence.

[35] As a starting point, I reject the Crown's submission that, before reaching paras. 107 to 108, the trial judge had already rejected the appellant's evidence at paras. 102 and 103. Viewed in isolation, paras. 102 and 103 may appear to reflect a rejection of the appellant's evidence. However, unlike paras. 107 to 108, the reasons given at that stage for purportedly rejecting the appellant's evidence were general in nature and seem to apply to the appellant's evidence as a whole rather than to either of the specific incidents.

[36] More importantly, in the opening section of para. 98 of his reasons, the trial judge stated that "the [appellant's] evidence and the evidence taken as a whole" raised a reasonable doubt concerning whether the interplay between the complainant and the appellant during the hotel incident included a sexual assault or sexual touching. In itemizing his reasons for this finding, the trial judge noted that the evidence concerning the sleeping arrangements in the hotel room "was sufficiently unclear" that he could not determine "with any level of certainty" who was sleeping where on each of the two nights. Given that C.S.'s evidence supported the complainant's assertion that the appellant slept on the floor the second night, the trial judge must have relied, at least in part, on the appellant's evidence. Had the trial judge rejected all of the appellant's evidence, then there would be no dispute as to the sleeping arrangements.

[37] Thus, although the trial judge may not have believed the appellant's evidence, at para. 98 of his reasons, he acknowledged that, at least in relation to the hotel incident, the appellant's evidence contributed to reasonable doubt.

[38] In these circumstances, the trial judge's general credibility findings, set out at paras. 102 and 103 of his reasons, cannot be read as a rejection of the whole of the appellant's evidence. As I have said, at para. 98 of his reasons, the trial judge relied on at least part of the appellant's evidence to find reasonable doubt.

[39] Two additional considerations suggest that paras. 107 to 108 are the lynchpin of the trial judge's credibility findings concerning the laundry room incident. First, the facial inconsistency between paras. 102 and 103 and para. 98 of the trial judge's reasons undermines the force of the statements made at paras. 102 and 103. Second, in contrast to the general findings made at paras. 102 and 103, paras. 107 to 108 relate specifically to the laundry room incident.

[40] I turn now to the significance of the trial judge's failure to refer to the appellant's evidence concerning why he did not tell C.S. about the laundry room incident.

[41] Where a verdict is not unreasonable, an appeal court must next determine whether an alleged misapprehension of evidence occasioned a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code. To constitute a miscarriage of justice, the trial judge must have misapprehended evidence going to the substance of the evidence material to the trial judge's reasoning process that resulted in conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4.

[42] To succeed on an appeal alleging misapprehension of evidence, the appellant must show two things.

[43] First, the appellant must show that the trial judge did in fact misapprehend the evidence in that he or she: (1) failed to consider evidence relevant to a material issue; (2) was mistaken as to the substance of the evidence; or (3) failed to give proper effect to the evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.), at pp. 538-540.

[44] Second, the appellant must show that the trial judge's misapprehension of the evidence was central to the trial judge's reasoning. The misapprehension must be substantial, material, and play an essential role in the decision to convict: Morrissey, at pp. 538-540. This can include evidence that goes to elements of the crime charged, assessments of credibility, and proof beyond a reasonable doubt, so long as the misapprehension was essential to the conviction.

[45] With regard to credibility assessments, only where the assessment is central to the decision to convict and only where an alleged misapprehension is central to that credibility assessment can there a case for miscarriage of justice.

[46] Where such an alleged misapprehension involves a failure to allude to specific evidence, the claim can only succeed if the failure to allude to evidence demonstrates that the trial was unfair and the verdict was not a "true" verdict: Morrissey, at pp. 538-540.

[47] In this case, the central issue in relation to the laundry room incident was credibility. And while the trial judge gave several reasons for at least purportedly rejecting the appellant's evidence, and therefore concluding it did not raise a reasonable doubt, for the reasons I have explained, paras. 107 to 108 of his decision are the lynchpin of his credibility assessment in relation to that incident.

[48] In those paragraphs, the trial judge said that had there been any air of reality to the appellant's evidence that he did not engage in sexual misconduct or that he found the laundry room conversation "awkward", the appellant would have at least considered taking one of three steps. Those steps were telling C.S. about the conversation, ceasing conduct with the complainant or telling her that her comments were inappropriate.

[49] As a starting point, the appellant never specifically described the conversation as "awkward". More importantly, in reaching this conclusion the trial judge did not refer to the appellant's explanation that he did not tell C.S. about the laundry room conversation out of concern that it would have led to "a commotion" between the complainant and her mother, which could have, in turn, caused harm to the complainant. Having regard to the complainant's own evidence about her mental health, the appellant's explanation was not implausible on its face. However, nowhere in his reasons did the trial judge refer to the appellant's explanation. And although the explanation was given in response to a specific question concerning why the appellant did not speak to C.S., it was also capable of explaining why the appellant may not have adopted the other courses of action to which the trial judge referred.

[50] The trial judge gave lengthy reasons in which he summarized and analyzed the relevant evidence. Considered in this light, and given the facial plausibility of the appellant's explanation, in my view, the failure of the trial judge to refer to this evidence constitutes a misapprehension of the evidence giving rise to a miscarriage of justice. The fact that the trial judge gave additional reasons at paras. 105 and 109 explaining why he found the complainant credible, and concluded at para. 105 that the appellant's credibility was weakened by the Facebook evidence does not detract from this conclusion. Paragraphs 107 to 108 were the lynchpin of the trial judge's reasons for rejecting the appellant's evidence. The trial judge's failure to refer to the appellant's evidence explaining why he did not act in the manner the trial judge would have anticipated undermines the logic and cogency of the trial judge's reasoning.

F. Disposition

[51] Based on the foregoing reasons, I would allow the appeal, set aside the conviction and order a new trial.

Released: November 9, 2017

"AH" "Janet Simmons J.A."

"NOV 9 2017" "I agree Alexandra Hoy A.C.J.O."

"I agree David Brown J.A."

Footnotes

[1] In his sentencing reasons, the trial judge stayed the sexual assault charge arising from the laundry room incident under the principles of R. v. Kienapple, [1975] 1 S.C.R. 729. The trial judge convicted the appellant of sexual interference in relation to that incident.

[2] , [1991] 1 S.C.R. 742.

[3] See e.g. R. v. Harding, 2009 BCCA 74, 2009 CarswellBC 347 at paras. 17-18.

[4] See e.g. R v. Bailey (2009), 4 W.C.B. (2d) 496 at paras. 37-41.

[5] See e.g. Bailey at paras. 37-41.