COURT OF APPEAL FOR ONTARIO DATE: 20241024 DOCKET: COA-23-CR-1258

MacPherson, Favreau and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

S.H. Appellant

S.H., acting in person Ian Kasper, appearing as duty counsel Erica Whitford, for the respondent

Heard: October 10, 2024

On appeal from the convictions entered on March 24, 2023, and the sentence imposed on July 27, 2023, by Justice John R. Sproat of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of historical sexual offences against his two stepdaughters, and received a global sentence of seven years imprisonment. He appeals against both his convictions and sentence.

[2] Mr. Kasper, who ably assisted the appellant as duty counsel, raises three main grounds of appeal against conviction. His submissions on the sentence appeal were limited to an argument that the lifetime sexual offenders’ registration order should be varied to twenty years, which the Crown does not oppose.

[3] For the following reasons, we would allow the conviction appeal and order a new trial. In view of this conclusion, we will review the facts only to the extent necessary to put the grounds of appeal raised by Mr. Kasper into context.

A. Factual background

[4] The two complainants, who are sisters, were the only Crown witnesses. It was common ground that their mother was in a relationship with the appellant for a number of years, and during which the family lived in two different towns in Ontario.

[5] The first complainant, who the trial judge referred to as S., was 30 years old at the time of trial. She testified that she recalled three separate incidents when she was a child during which the appellant touched her vagina. During one of these incidents, S. described the appellant as turning the television set to a program called “Naked News”, which involved a naked female newscaster reading the news. These three allegations by S. were the basis for the charges of sexual assault and sexual interference in Counts 1 and 2.

[6] S. also testified about a fourth incident where the appellant approached her holding a knife and told her to touch his penis. S. could not recall whether she actually did so. She testified that the appellant later threatened that if S. told her mother what had happened, the appellant would kill her mother. This fourth allegation by S. was the basis for the charges of carrying a weapon while committing a sexual assault in Count 3 and uttering a death threat in Count 4.

[7] The second complainant, who the trial judge called P., was 24 years old at the time of trial. She testified about a single incident which she said occurred when she was two or three years old. She described being on a couch with the appellant, and him putting his penis in her vagina. This caused her vagina to bleed, which later led to blood getting onto her bedsheets. She testified that the appellant explained the blood to P.’s mother by claiming that P. had had a nosebleed.

[8] P.’s allegation was the basis for the charges of sexual assault and sexual interference in Counts 5 and 6.

[9] The appellant testified in his own defence and denied both complainants’ allegations. We will discuss some details of his evidence further when we address his specific grounds of appeal.

[10] The trial judge found the appellant guilty on all counts and entered convictions on four of them, staying the two sexual assault charges, Counts 2 and 6, pursuant to the Kienapple principle: Kienapple v. The Queen, [1975] 1 S.C.R. 729.

[11] In brief written reasons for judgment, the trial judge explained that he found both complainants wholly credible and reliable, and also listed three factors that caused him to “doubt” the appellant’s testimony. Citing this court’s decision in R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, he went on to state that he “outright reject[ed]” the appellant’s evidence based on his “considered and reasoned acceptance beyond a reasonable doubt of the conflicting evidence” of S. and P.

B. Analysis

(1) Errors in the trial judge’s reasons for rejecting the appellant’s testimony

[12] The first two grounds of appeal Mr. Kasper advances turn on errors he says the trial judge made in his reasons for “doubting” the appellant’s evidence. As we will explain, Crown counsel concedes that the trial judge made two of the alleged errors, but takes the position that neither error justifies ordering a new trial. With respect to the first error – the trial judge’s use of the appellant’s provincial driving record to draw an adverse inference about his character and credibility – the Crown relies on the curative proviso. With respect to the second error – a misapprehension by the trial judge of one aspect of the appellant’s evidence – the Crown argues that this error was not sufficiently important to the trial judge’s reasoning process to give rise to a miscarriage of justice.

[13] In view of the Crown’s concessions and its reliance on the curative proviso, we will address the third ground of appeal raised by Mr. Kasper – an argument that the trial judge failed to properly apply the burden of proof – in the context of the proviso analysis.

(a) The trial judge’s reasons

[14] The trial judge gave the following explanation for rejecting the appellant’s exculpatory testimony:

There were aspects of [the appellant’s] evidence that caused me to doubt it. He was asked if he ever watched “Naked News’ and he initially responded you can't watch with simply an aerial on the roof but then said he did not know what “Naked News’ was. I also found it improbable that he would never have gone into the Complainants’ rooms at night and that he never ever went into his own son's rooms at night.

The driving record of the Accused, which demonstrates a persistent disregard of the law by driving without a licence, while suspended and without insurance, indicates a willingness to disregard legal requirements. While I note this affects his credibility it is not material to my conclusion. I would have rejected the evidence of the Accused even if he had no such record of offences.

[15] As we have already noted, the trial judge went on to state that he “outright reject[ed]” the appellant’s evidence “based on [his] considered and reasoned acceptance beyond a reasonable doubt of the conflicting evidence” of the two complainants.

(b) The trial judge’s errors

(i) The trial judge’s reliance on the appellant’s driving record

[16] Mr. Kasper’s first argument is that the trial judge made improper use of the appellant’s Ministry of Transportation records, which included a number of provincial offence convictions and licence suspensions.

[17] Crown counsel at trial (not Ms. Whitford) had adduced this evidence only for a very limited purpose. It was undisputed that at one point the family had moved from the town where they had originally been living to a different town, some distance away. In his testimony in chief, the appellant had explained this move on the grounds that he had been working in the second town, and had been finding the commute too difficult.

[18] Crown counsel at trial then cross-examined the appellant about whether his driver’s licence had been suspended around this time, and whether he had been charged with “driving to [the second town] while your licence was suspended during that timeframe”. When the appellant replied that he was not sure about the dates, the Crown showed him a copy of his lengthy MTO record to refresh his memory. The appellant then agreed that his licence had been suspended at the relevant time, and that this had been “part of the reason” for the family’s move.

[19] At the trial judge’s suggestion, the MTO record was then made a trial exhibit. However, Crown counsel did not question the appellant further about the specific provincial offence convictions shown on this document, or suggest at any point that the Crown was taking the position that the appellant’s record of driving offences was admissible to support any inference either about his propensity to break the law, or about his credibility as a witness.

[20] Mr. Kasper contends that in these circumstances it was unfair for the trial judge to then use the appellant’s driving record as evidence that he was a person of bad character who had demonstrated “a willingness to disregard legal requirements”, and whose testimony was for this reason untrustworthy.

[21] Mr. Kasper goes further and argues that if the Crown had sought to cross-examine the appellant on his record of provincial offence convictions, this cross-examination would not have been permissible under s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA”). Mr. Kasper relies on R. v. Watkins (1992), 70 C.C.C. (3d) 341 (Ont. C.A.), at para. 12, where this court held that s. 12 of the CEA “permits cross-examination as to convictions for offences under all federal statutes”. He argues that this holding should be understood as implicitly exempting offences under provincial statutes.

[22] Ms. Whitford takes issue with the second prong of Mr. Kasper’s argument, arguing that s. 12 of the CEA is not limited to convictions for federal offences. However, she fairly acknowledges that in the circumstances here it was an error for the trial judge to use the appellant’s MTO record in the manner that he did. The Crown had not relied on the record for this purpose at trial, and the appellant thus did not have a fair opportunity to address either its admissibility and/or probative value.

[23] However, while Ms. Whitford concedes that the trial judge erred, she argues that we can uphold the appellant’s convictions by applying the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

[24] It is unnecessary to address or decide whether s. 12 of the CEA would have permitted the Crown to cross-examine the appellant on his record of provincial driving offences, since Crown counsel at trial did not try to do this. We accept Ms. Whitford’s concession that it was an error for the trial judge to use the appellant’s MTO record to draw adverse conclusions about his character and credibility, when the record had only been adduced by the Crown for a much more limited purpose. We would add that the trial judge’s specific reasoning path – treating the appellant’s history of committing provincial driving offences as showing that he had a “willingness to disregard legal requirements” – also “sits uncomfortably close to the use of propensity reasoning”, which remains prohibited even in situations where s. 12 of the CEA applies: R. v. M.C., 2019 ONCA 502, at para. 86.

[25] We will address Ms. Whitford’s argument that this error can be the subject of the curative proviso later in our reasons.

(ii) The trial judge’s misapprehension of the evidence

[26] Mr. Kasper’s second argument is that the trial judge misapprehended the appellant’s evidence concerning the “Naked News” show, which S. had described him as watching on television during one of the incidents where she said he touched her vagina. [2]

[27] During his evidence in chief, the appellant was asked if he had ever watched “Naked News or any type of inappropriate adult programming” with either complainant. The appellant replied:

You can’t do that with an aerial on your roof, so no I – I think we maybe had three or four channels: CTV, Global, so no. I don’t even know what that is.

In cross-examination, the appellant agreed that he had “never heard of Naked News”. When Crown counsel suggested to him that the program was “a big deal on the news in the early 2000s because this was the first type of programming that was on regular television”, the appellant replied: “That wasn’t on any of the stations I got, ma’am”. He reiterated that he had never heard of the show, and also testified that “[w]e didn’t have internet back then”. Crown counsel then showed the appellant a newspaper article from 2003 announcing that “Naked News” would be broadcast on CityTV, but the appellant maintained that he had not seen this article before, and added that the family “didn’t get CityTV”.

[28] As we have already noted, the trial judge characterized the appellant’s evidence on this point as one of the “aspects of [his] evidence that caused me to doubt it”, apparently because he thought there was some inconsistency between the appellant’s evidence in chief and what he later said in cross-examination. Mr. Kasper contends that there was no real inconsistency, and Ms. Whitford agrees. We also agree. The appellant’s evidence in chief was that the family only had access to a limited number of over-the-air broadcast television channels, and he had also not heard of the show “Naked News”. He reiterated both points in cross-examination, adding that the family also did not have internet access. We therefore conclude that the trial judge misapprehended the appellant’s evidence on this issue.

[29] As Doherty J.A. explained in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice.

[30] The curative proviso has no application in situations where a trial judge’s misapprehension of the evidence is found to have caused a miscarriage of justice: see e.g., R. v. Minuskin (2003), 68 O.R. (3d) 577 (C.A.), at para. 6. However, in the circumstances here we find it convenient to consider Ms. Whitford’s argument that the trial judge’s misapprehension of the Naked News evidence did not cause a miscarriage of justice alongside her argument that the trial judge’s misuse of the appellant’s MTO record did not cause any “substantial wrong or miscarriage of justice”, such that the curative proviso can be applied to this error.

(2) Do the trial judge’s errors require a new trial?

[31] Crown counsel argues that despite the trial judge’s two acknowledged errors, we should not order a new trial. Rather, Ms. Whitford urges us to uphold the appellant’s convictions by concluding that the trial judge’s misuse of his MTO records did not cause a “substantial wrong or miscarriage of justice”, thus allowing us to invoke the curative proviso, and by finding further that the trial judge’s misapprehension of the appellant’s evidence regarding the “Naked News” television program did not give rise to a miscarriage of justice because it was not essential to the trial judge’s reasoning process.

[32] With respect to the trial judge’s misapprehension of the “Naked News” testimony, the Crown emphasizes that the trial judge only referred to this evidence as giving him reason to “doubt” the appellant’s evidence, but explained that his further conclusion that he rejected the appellant’s evidence outright was based on his “considered and reasoned acceptance beyond a reasonable doubt” of the complainants’ evidence.

[33] With respect to the trial judge’s use of the appellant’s MTO records, the Crown relies on the trial judge’s statement that his use of these records to assess the appellant’s credibility was not “material to [his] conclusion”, because he “would have rejected the evidence of [the appellant] even if he had no such record of offences”.

[34] For three main reasons, we would not give effect to these arguments, and would allow the appeal and order a new trial based on the cumulative effect of both conceded errors.

[35] First, we do not agree that the trial judge’s stated reasons for “doubting” the appellant’s testimony can properly be treated as severable from his ultimate conclusion that he rejected the appellant’s testimony entirely. The holding in J.J.R.D. that a trier of fact can properly reject an accused’s testimony outright even when there is no “problem identified with the way the accused testified or the substance of the accused’s evidence” is permissive, not mandatory. It cannot be assumed in this case that the trial judge would necessarily have entirely rejected the appellant’s exculpatory evidence if he had not already concluded that there were three “aspects of his evidence that caused me to doubt it”. In this situation, we are unable to conclude that the trial judge’s misapprehension of the appellant’s testimony regarding the Naked News television program was not “an essential part in the reasoning process resulting in a conviction”: Morrissey, at p. 221.

[36] Second, we are not persuaded that the trial judge’s improper reliance on the appellant’s MTO records can be disregarded based on his own self-assessment that he would have rejected the appellant’s evidence in any event. Assessments of a witness’s credibility are holistic by nature, and “[c]redibility findings can be difficult to ‘articulate with precision’, particularly bearing in mind the ‘complex intermingling of impressions that emerge’ after a full trial”: R. v. Caporiccio, 2017 ONCA 742, at para. 25 (citations omitted). In this case, the trial judge evidently considered the MTO records be to sufficiently probative and important to justify giving them special mention. We have difficulty concluding that he would inevitably have reached the same conclusion if he had not improperly relied on this evidence, particularly since the trial judge’s conclusion that the appellant was not credible was based in part on his misapprehension of the appellant’s testimony about the “Naked News” television program, which the Crown concedes was also an error.

[37] Third, the Crown’s argument that the trial judge would have inevitably rejected the appellant’s testimony based on his reasoned acceptance of the two complainants’ evidence fails to account for the sparseness of his reasons for finding both complainants credible and reliable.

[38] With respect to the first complainant, S., the trial judge said only that “[s]he gave her evidence in a straightforward manner”, and that there was “no indication that she had any animus” towards the appellant, or any “apparent motive to fabricate a complaint”. The trial judge was certainly entitled to rely on these considerations as factors supporting S.’s credibility and reliability. However, S.’s testimony stood alone. This was not a case where the evidence as a whole was so overwhelming that the appellant’s conviction on the charges relating to S. can be treated as inevitable, even if the trial judge had not made the errors that the Crown now concedes he made.

[39] The situation with respect to the second complainant, P., is even more troubling. P. claimed to remember the appellant having intercourse with her on a single occasion when she was only two or three years old. Defence counsel at trial submitted that P’s memory of this supposed incident was unreliable, noting that P had agreed “that her memory didn’t really start to flush out until she was in grade one, or about the age of six”, and that at least some of her purported memories had come to her in the form of “night terrors” she had experienced while she was asleep. The trial judge did not squarely address the defence argument that P’s memory could be a confabulation. Rather, his reasons for accepting P.’s evidence, in their entirety, were as follows:

P testified to an incident in which she suffered an injury and was bleeding. This would logically stand out even in the mind of a young child. While a child may not recall peripheral matters such as time and location, a child can recall how he or she came to be injured. P impressed me as a reliable witness.

[40] As his third ground of appeal, Mr. Kasper argues that the trial judge’s reasons for accepting both complainants’ testimony fell short of a “considered and reasoned acceptance” of their evidence as proving the appellant’s guilt beyond a reasonable doubt. Rather, Mr. Kasper contends that the trial judge made a reasoning error similar to that identified by the Saskatchewan Court of Appeal in R. v. Van Deventer, 2021 SKCA 163, by treating his acceptance of the complainants’ evidence as automatically requiring him to reject the appellant’s exculpatory testimony.

[41] It is unnecessary for us to decide whether the trial judge made this separate analytic error, since we are not satisfied that the two errors that Crown counsel acknowledges that he did make can be dismissed as harmless in the circumstances of this case, when considered cumulatively. Credibility was the central issue at trial, and as we have explained, we are not persuaded that the result would necessarily have been the same if the trial judge had not made the two errors identified by Mr. Kasper and conceded by the Crown. Considering the two errors cumulatively, we are not satisfied that the Crown has met its burden of establishing that the first error can be cured by applying the curative proviso, and are satisfied that the appellant has met his burden of demonstrating that the second error contributed to a miscarriage of justice. We accordingly conclude that a new trial is necessary.

C. Disposition

[42] In the result, we would allow the conviction appeal; set aside the appellant’s convictions on Counts 1, 3, 4 and 5; lift the conditional stays entered on Counts 2 and 6; and order a new trial on all counts.

“J.C. MacPherson J.A.”

“L. Favreau J.A.”

“J. Dawe J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Mr. Kasper also argued that the trial judge misapprehended the appellant’s evidence about whether he ever went into the childrens’ rooms. The Crown disagrees that the trial judge made this latter error. In light of our conclusion on the other grounds of appeal, we need not resolve this dispute.