Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20220308 Docket: C68687

van Rensburg, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

S.R. Appellant

Counsel: Maija Martin, for the appellant Mark Luimes, for the respondent

Heard: January 31, 2022 by video conference

On appeal from the conviction entered on January 16, 2020 by Justice Irving W. André of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was found guilty of one count each of sexual assault, touching for a sexual purpose and invitation to touching for a sexual purpose. The trial judge conditionally stayed the sexual assault count under Kienapple, and entered convictions on the other two charges. The appellant appeals his convictions.

[2] For the reasons that follow, we allow the appeal, set aside the convictions, and direct a new trial.

[3] The events giving rise to the charges were alleged to have occurred in 2015 and 2016 when the complainant, M.B., was eight and nine years old. She had been attending karate classes at a martial arts gym or “dojo”. The appellant was 60 years old at the time, and had been her instructor for a couple of years. M.B. alleged several instances of inappropriate touching by the appellant at the gym. M.B. eventually complained to her father and reported the incidents to the police. The appellant was arrested and charged the same day.

[4] M.B. was 12 years old at the time of the trial. Her police statement was introduced in evidence under s. 715.1 of the Criminal Code, and she testified. M.B.’s father and the appellant also testified.

[5] M.B. testified that, when she and the appellant were alone, the appellant had on five or six occasions removed his pants and underwear and exposed his penis to her in the practice area, and on one occasion he told her to grab his penis in order to throw him. She testified that the appellant had reached under her top and tickled her breast while the other students were on a water break, and that, on another occasion, he had looked inside her pants in the girls’ change room during a water break.

[6] The appellant testified through an interpreter. He denied that he had touched M.B. inappropriately, that he had ever taken off his clothes in front of her, or that he had exposed his penis and invited her to touch it. He testified that he was never alone with M.B., who was a member of a class with several students, and that there was a glass door, which was always open, but no curtain between the gym area and the room where parents would wait for their children. He also initially testified that he had a good relationship with M.B.’s father, but he went on to recount various disagreements they had, including a confrontation over M.B.’s sister eating candy in the dojo, which he claimed had taken place the day that M.B.’s father confronted him with M.B.’s allegations.

[7] The trial judge stated that he disbelieved the appellant’s evidence and that it was “incapable of raising a reasonable doubt” in the Crown’s case. He found M.B.’s evidence both credible and reliable, and he concluded that, based on the totality of the evidence that he accepted, the Crown had proven the offences beyond a reasonable doubt.

[8] The appellant raises three grounds of appeal, which he contends individually or together warrant a reversal of his convictions and a new trial: (1) the trial judge’s assessment of his credibility was based on material misapprehensions of his evidence; (2) the trial judge did not assess the credibility or reliability of the evidence of M.B.’s father, and did not consider whether parts of his evidence, together with the appellant’s evidence, were capable of raising a reasonable doubt; and (3) the trial judge erred in concluding that M.B. had no motive to lie, and in treating this as affirmative evidence that she was telling the truth.

[9] We turn now to the first ground of appeal. The appellant asserts that the trial judge misapprehended his evidence in three respects. The first two misapprehensions, which are conceded by the Crown, are relevant to the appellant’s opportunity to commit the offences, which was a live issue at trial.

[10] First, the trial judge wrongly believed that the Crown had established an inconsistency in the appellant’s evidence stemming from his statement to the police about whether there was a curtain separating the practice area from the waiting area. The trial judge stated:

[The appellant] testified that he never had a curtain in the practice area that restricted the view of parents of the dojo. In cross-examination the Crown put to him that he told the police that there was a curtain. When confronted by this discrepancy, [the appellant] replied regarding his statement to the police that, “I was nervous. My brain shut down”.

[11] In fact, there was no such exchange. The appellant testified that there was no curtain in the studio, which was inconsistent with M.B.’s evidence, but consistent with that of her father. While the appellant provided a statement to the police at the time of his arrest, there was no evidence that he spoke about a curtain. The appellant was not confronted with any apparent inconsistency on this point. He did state that he was nervous and that his brain shut down while speaking to police, but this was not in relation to comments made about a curtain.

[12] The second misapprehension of the appellant’s evidence was in the trial judge’s statement that the appellant “testified in-chief that he did not keep track of which students did not attend his classes, but stated in cross-examination that he did”. Again, the trial judge was pointing to an inconsistency in the appellant’s evidence that did not exist. The appellant did not testify that he did not keep track of the students’ attendance: his evidence in chief was that the number of students in his classes fluctuated, and in cross-examination he testified that he knew how many students were there because he had papers for them.

[13] The third alleged misapprehension of the appellant’s evidence was with respect to the appellant’s failure to inform the police about his disagreements with the complainant’s father. The trial judge stated that the appellant conceded that he never told the police about the problem he testified that he had with M.B.’s father concerning the father’s distribution of religious flyers at the gym, and “replied that the police never asked him about that”. The trial judge identified this as a significant omission given the appellant’s testimony that he had this problem with M.B.’s father for a long time. However, the appellant gave a number of reasons why he had not told the police about the problem he had with the flyers, including that his English was not good. In his re-examination, he was asked whether the police had asked him about his relationship with the father, and he responded “no”.

[14] We agree that, in each of these instances, the trial judge’s misstatements of the appellant’s testimony reveal a misapprehension of the evidence. However, a mere misstatement or inaccuracy in a trial judge's treatment of the evidence does not constitute a reversible error. The test for concluding that a misapprehension of evidence has resulted in a miscarriage of justice, such as to warrant setting aside a conviction, is stringent. The court will interfere only where the misapprehension is of substance rather than detail, is material rather than peripheral to the trial judge’s reasoning, and the error plays an essential part in the reasoning process, not just of the narrative: R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 60.

[15] Where the alleged misapprehension is respecting evidence used to assess credibility, the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36-37. If the trial judge mischaracterized parts of the accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice: Alboukhari, at para. 38, citing R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, and Whitehouse v. Reimer (1980), 1980 ABCA 214, 34 A.R. 414 (C.A.).

[16] The appellant submits that the trial judge’s misapprehensions of his evidence were substantial and material, in that they played a central role in his credibility assessment. The Crown contends that, while there were two errors, they were in respect of only secondary aspects of the trial judge’s credibility assessment, and that the trial judge’s rejection of the appellant’s evidence and his conclusion that it did not raise a reasonable doubt are firmly supported by other aspects of the trial judge’s analysis.

[17] In our view, the trial judge’s misapprehensions of the appellant’s evidence, and in particular the first two, which are conceded by the Crown, were substantial errors that played a central role in the trial judge’s assessment of the appellant’s credibility, and as such in his reasoning process in finding the appellant guilty. Since this was a case that turned on credibility, the misapprehensions resulted in a miscarriage of justice.

[18] In coming to this conclusion, we have considered and rejected the Crown’s submission that the misapprehensions of the appellant’s evidence were “minor”, and therefore not substantial. We also disagree with the Crown’s submission that the trial judge’s misapprehensions of the appellant’s evidence did not form part of his reasoning about the appellant’s credibility, that they were, according to the Crown, on a “secondary list”, and that the trial judge’s finding that the defence evidence was “incredible” was driven instead by his wholesale rejection of the appellant’s evidence about the actions of M.B.’s father (as being a possible motive for the allegations).

[19] The misapprehensions of the appellant’s evidence did not involve peripheral or inconsequential matters, and they were central to the trial judge’s credibility analysis. The trial judge’s credibility assessment did not, as the Crown suggests, turn on the trial judge’s rejection of the appellant’s evidence about the actions of M.B.’s father. While the trial judge used the word “incredible” to describe the appellant’s evidence about the actions of M.B.’s father, this was not, as the Crown argues, the trial judge’s “rejection of the core defence narrative”. Rather, the trial judge rejected a specific aspect of the appellant’s evidence, that related to a possible motive for the complainant to have lied.

[20] Indeed, after addressing this point, the trial judge immediately stated that there were other aspects of the appellant’s testimony that made him “seriously question his credibility”. After listing four such aspects, including the three misapprehensions identified above, the trial judge stated:

Viewed in isolation, these concerns may not be regarded as significant. Cumulatively, however, they have led me to disbelieve [the appellant’s] testimony and to conclude that his testimony is incapable of raising a reasonable doubt in the Crown’s case.

[21] Accordingly, the trial judge’s reasons make it clear that his assessment of the appellant’s credibility depended on all of the circumstances he identified, including the evidence he misapprehended, which suggested that the appellant had been impeached. This led the trial judge, in his W.(D.) analysis, to both reject the appellant’s evidence and to conclude that it was “incapable of” raising a reasonable doubt. For these reasons, we are satisfied that this ground of appeal has merit.

[22] While this is sufficient to allow the appeal, we briefly address the remaining grounds of appeal.

[23] The appellant’s second ground of appeal, that the trial judge failed to address the credibility and reliability of the evidence of M.B.’s father, has two parts. The first is that the trial judge failed to apply a W.(D.) analysis to an exculpatory utterance elicited as part of the Crown’s case: the evidence of M.B.’s father that, when he confronted the appellant with M.B.’s allegation, the appellant responded that “nothing happened”.

[24] We see no error here. Because the general denial by the appellant lacked probative value, the trial judge was not required to link this evidence to his W.(D.) analysis: see R. v. P.S., 2019 ONCA 637, at paras. 47 and 53. The minimal relevance of this exchange is underscored by defence counsel’s failure to mention it in closing submissions: see R. v. Frater, 2020 ONCA 624, at para. 22.

[25] The second argument on the second ground of appeal is that the trial judge erred in not assessing the evidence of M.B.’s father, when there were contradictions between the evidence of the complainant and her father, and the father’s evidence was consistent in certain respects with that of the appellant. The trial judge failed to consider, as he was invited by the appellant’s trial counsel to do, whether the evidence of M.B.’s father, together with the appellant’s evidence, raised a reasonable doubt.

[26] The Crown contends that the trial judge’s treatment of the evidence of M.B.’s father was sufficient and responsive to the issues in the trial. The trial judge reviewed the evidence of M.B.’s father in his reasons and adverted to it in his analysis of M.B.’s credibility. There was no obligation for the trial judge to resolve every discrepancy in the evidence.

[27] The appellant points to aspects of the evidence of M.B.’s father that contradicted M.B.’s evidence and were consistent with his own: whether there was a curtain between the practice and waiting areas (M.B. said there was, while her father and the appellant said that there was not); whether the appellant had left M.B. with other parents when her father was late to pick her up (M.B. denied this had happened, while her father and the appellant agreed that it had happened occasionally); whether M.B.’s sister had been in the practice area (M.B. said she was never there, while her father and the appellant said she had been there and ran around); and whether M.B.’s father sometimes stayed to watch the lessons (M.B. said no, while her father and the appellant were consistent that this sometimes happened).

[28] These aspects of the evidence of M.B.’s father might or might not have played a role in the credibility assessments of both the appellant and the complainant. In our view, however, it was an error for the trial judge to have failed to conduct such an assessment. Before rejecting the appellant’s evidence and concluding that it was “incapable of” raising a reasonable doubt, the trial judge ought to have referred to and assessed the credibility of the evidence of M.B.’s father. While a trial judge is not required to deal with every piece of evidence in a trial, where, as here, there are aspects of the evidence of a witness that contradict the complainant’s evidence and support the evidence of the accused, the trial judge should demonstrate that he has taken such evidence into account in his W.(D.) analysis: see R. v. Smith, 2020 ONCA 782, 69 C.R. (7th) 126, at paras. 12 and 26-28; R. v. C.G., 2021 ONCA 809, 407 C.C.C. (3d) 552, at paras. 57-61; and R. v. Clouthier, 2012 ONCA 636, at paras. 12-16.

[29] As for the third ground of appeal, the appellant contends that the trial judge, in convicting him, improperly relied on what he found to be a proven absence of motive for M.B. to have lied. The appellant points to two passages in the trial judge’s reasons: first, where the trial judge stated, “there is an absence of motive for M.B. to have lied about the allegations”, and later when he said, “I cannot identify any evidence that M.B. had a motive to lie”. At best, there was an absence of a proven motive, which could have been a factor in assessing her credibility, so long as it did not drive the analysis: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at para. 59, leave to appeal refused, [2021] S.C.C.A. No. 127.

[30] However, a fair reading of the trial judge’s reasons suggests that he rejected the motive alleged by the defence, and he considered the apparent absence of M.B.’s motive to lie as a factor in assessing her credibility. This is apparent from his citation of R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, immediately following the first impugned passage, and the acknowledgment later in his reasons that the complainant could have had “some hidden motivation”. As in Ignacio, at para. 35, the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate. In its closing submissions, Crown counsel argued that, although it had not proven an absence of motive beyond a reasonable doubt, the absence of evidence of motive was a factor to be considered in the overall assessment of the evidence. After looking at the evidence, and rejecting the appellant’s account of his confrontation with M.B.’s father over her sister eating candy in the dojo, the trial judge was entitled to conclude that there was no evidence of a motive to fabricate, and then to consider this as one factor in his assessment of the complainant’s credibility. Contrary to the appellant’s submission, the trial judge did not mistake a lack of evidence of a motive for a proven absence of motive to lie.

[31] For these reasons we allow the appeal, set aside the appellant’s convictions, and direct a new trial on all of the charges.

“K. van Rensburg J.A.”

“I.V.B. Nordheimer J.A.”

“J. George J.A.”