Court of Appeal for Ontario

Date: 20210929 Docket: C67715

Judges: Doherty, Gillese and Huscroft JJ.A.

Between:

Her Majesty the Queen Respondent

and

Norman Howes Appellant

Counsel: John Hale, for the appellant Michael Dineen, for the respondent

Heard: September 16, 2021 by video conference

On appeal from the conviction entered on October 28, 2019 by Justice Michel Z. Charbonneau of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of two counts of sexual interference and one count of sexual assault. He was acquitted of one count of invitation to touch for a sexual purpose and one count of sexual assault, the latter of which the Crown chose not to pursue. The complainants were four of his former wife’s nieces, all of whom were under the age of 16 when the incidents were alleged to have occurred in the 1980s and 1990s. He was sentenced to a term of three years’ imprisonment and a s. 161 order for a ten-year period was imposed.

[2] For the reasons that follow, we dismiss the appeal from conviction but vary the sentence to set aside the s. 161(1)(a.1) order.

[3] The appellant argues that he was denied a fair trial because the trial judge misapprehended his evidence in several respects and as a result found that he was not credible. The appellant takes issue with the trial judge’s findings that he “insisted” on things that were improbable. He argues that the trial judge had no reason to reject his evidence, especially evidence that was corroborated by the evidence of his daughter and ex-wife.

[4] We do not agree.

[5] The trial judge fairly scrutinized the evidence of the complainants and the appellant and provided cogent explanations in support of his finding that the appellant was not credible. The trial judge found that the appellant was purposely exaggerating his evidence in an attempt to eliminate any possible opportunity to have committed the offences. For example, the appellant testified to the following:

• he was certain he had never returned home before his wife;
• he had never walked on the streets of the town of Vankleek Hill, although at all material times he lived in that town or its immediate surroundings;
• his nieces had never had sleepovers at his home; and
• he never had a one-on-one discussion with one of his nieces.

These were relatively mundane matters from 25 years ago, and yet the appellant claimed to remember them with certainty.

[6] We see no error in the trial judge’s findings. We accept, as the Crown acknowledges, that the trial judge erred in characterizing the appellant’s evidence concerning the position of his daughter’s bed, but this was an inconsequential error in the scheme of things. It was not an essential part of the reasoning that led to the appellant’s conviction. There was ample evidence to support the trial judge’s finding that the appellant was not credible and that finding is entitled to deference. There is no basis for this court to interfere with it.

[7] Nor is there any other basis to conclude that the trial was unfair. The trial judge properly articulated and applied the burden of proof. The trial judge found all the complainants to be “very credible”, and we note that the appellant had expressly conceded the complainants’ credibility at trial. Although the trial judge found there were some discrepancies in the complainants’ evidence, they were minor in nature and did not undermine the complainants’ reliability. The trial judge found that the appellant’s ex-wife was neither credible nor reliable, and that the appellant’s daughter’s belief in her father’s innocence and close relationship to him tainted her evidence. These findings were open to the trial judge on the record before him.

[8] Although the appellant raised a reasonable apprehension of bias argument in his factum, counsel informed the court that he was not advancing it as a standalone ground of appeal. The Crown fairly conceded that the trial judge should not have asked the appellant’s daughter whether she had any evidence of her father’s innocence. However, we are satisfied that at all times the trial judge left the burden with the Crown, where it belongs, and properly concluded that guilt was established beyond a reasonable doubt.

[9] The appeal from conviction is dismissed.

[10] The appellant was sentenced to a term of three years’ imprisonment and a 10-year order was imposed under s. 161(1)(a.1). The Crown concedes that this order was improperly made, in light of the decision of the Supreme Court in R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906. This concession is appropriate and we accept it.

Disposition

[11] Accordingly, the appeal against conviction is dismissed, leave to appeal sentence is granted, and the sentence is varied by setting aside the s. 161(1)(a.1) order. The sentence is otherwise unchanged.

"Doherty J.A."

"E.E. Gillese J.A."

"Grant Huscroft J.A."