R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 SCR 909

R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 SCR 909

Her Majesty The Queen Appellant

v.

P. L. S. Respondent

Indexed as: R. v. S. (P.L.)

File No.: 22012.

1991: January 25; 1991: May 16.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for newfoundland

Criminal law -- Sexual assault -- Interpretation of what constitutes offence -- Accused convicted of seven counts of sexual assault -- Trial judge erring by considering cumulative effect of evidence on each count -- Court of Appeal overturning convictions -- Whether Court of Appeal misinterpreted Chase decision -- Whether convictions can be restored despite trial judge's error -- Whether new trial should be ordered -- Criminal Code, R.S.C., 1985, c. C-46, ss. 686(1)(a)(i), (ii), (b)(ii), (iii), 686(2).

Criminal law -- Appeal -- Powers of Court of Appeal -- Accused convicted of seven counts of sexual assault -- Trial judge erring by considering cumulative effect of evidence on each count -- Court of Appeal misinterpreting Chase decision and overturning convictions -- Whether convictions can be restored despite trial judge's error -- Whether new trial should be ordered -- Criminal Code, R.S.C., 1985, c. C-46, ss. 686(1)(a)(i), (ii), (b)(ii), (iii), 686(2).

Respondent, a school teacher, was charged with sexual assault of seven of his male pupils, who were nine and ten years old when the incidents occurred. He was convicted on all seven counts, two of which involved allegations of penile touching. The majority of the Court of Appeal found that the trial judge had erred by considering the cumulative effect of the evidence of all the complainants in determining the respondent's guilt on each count, owing to a misapplication of the similar facts rule. It also found that an objective assessment of the circumstances did not support any inference of sexual intent or gratification on respondent's part and that the evidence relevant to each charge was insufficient to sustain any of the convictions. It entered acquittals on all counts. The minority would have maintained the convictions on the two counts involving penile touching. This is a Crown appeal from the acquittals on these two counts.

Held (L'Heureux-Dubé, Gonthier and Cory JJ. dissenting in part): The appeal should be allowed and a new trial ordered.

By concluding that sexual assault was not established because there was insufficient proof of sexual motivation, the majority of the Court of Appeal in effect converted the offence of sexual assault to one of specific intent, contrary to this Court's decision in Chase, which held that the offence is one of general intent and that the intent of the person committing the act is only one of the factors to be considered in determining whether the overall conduct had a sexual context.

Per Lamer C.J. and La Forest, Sopinka and McLachlin JJ.: The Court has no jurisdiction to restore the convictions and should direct a new trial in this case. The Court of Appeal's role in an appeal founded on s. 686(1)(a)(i) of the Criminal Code is to determine whether on the facts that were before the trier of fact a jury properly instructed and acting reasonably could convict. The exercise of this power is predicated on the accused's having had a proper trial on legally admissible evidence accompanied by instructions that are correct in law. If the Court of Appeal finds an error of law with the result that the accused has not had a trial in which the legal rules have been observed, then the accused is entitled to an acquittal or a new trial in accordance with the law. The court cannot substitute its opinion for that of the trial court that the evidence proves guilt beyond a reasonable doubt, except where the evidence is so overwhelming that a trier of fact would inevitably convict. If a Court of Appeal had the power to decide an appeal in which evidence was improperly admitted at trial by determining whether the balance of the evidence could or ought to result in a conviction, there would be no necessity for the Crown to resort to the more onerous curative provisions of s. 686(1)(b)(iii) of the Criminal Code. This would effectively emasculate this provision. This Court is subject to the same limitation in this respect as the Court of Appeal. In this case the Court of Appeal found that an error of law had been committed at trial by reason of the improper admission of similar fact evidence. Clearly it was not of the opinion that a conviction was inevitable on the admissible evidence, and quite properly so. If the Court of Appeal had made a correct assessment of the evidence, it was bound to allow the appeal and order a new trial.

Per L'Heureux-Dubé, Gonthier and Cory JJ. (dissenting in part): If the majority of the Court of Appeal had considered the appropriate question of whether the touching was committed in circumstances of a sexual nature, its conclusion with regard to the counts involving penile touching would have been different. The convictions on these counts should therefore be restored. The trial judge appeared to consider the evidence of all the complainants together and to use it cumulatively to bolster his findings on each count. He nevertheless properly instructed himself on the need to consider each count separately and to make his determination in relation to that count. He carefully reviewed and assessed the evidence of every complainant individually and his independent findings as to credibility appear to be untainted by his global consideration of the evidence. He found the boys to be honest and truthful and was convinced beyond a reasonable doubt that they were telling the truth. This overrides any errors he may have made with regard to the cumulative effect of their testimony. The trial judge's findings were not only reasonable, but correct. Even when considered separately, the testimony of the two boys involved provides a firm evidentiary basis for the respondent's conviction on the counts in question.

Cases Cited

By Sopinka J.

Referred to: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168; Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739; John v. The Queen, 1985 CanLII 15 (SCC), [1985] 2 S.C.R. 476; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311; R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393.

By Cory J. (dissenting in part)

R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(a)(i), (ii), (b)(ii), (iii), (2).

Supreme Court Act, R.S.C., 1985, c. S-26, s. 45.

APPEAL from a judgment of the Newfoundland Court of Appeal (1990), 1990 CanLII 6505 (NL CA), 84 Nfld. & P.E.I.R. 181, 262 A.P.R. 181, 57 C.C.C. (3d) 531, allowing the accused's appeal from his convictions on seven counts of sexual assault. Appeal allowed and new trial ordered, L'Heureux-Dubé, Gonthier and Cory JJ. dissenting in part.

J. Thomas Eagan, for the appellant.

Thomas J. Burke, for the respondent.

//Sopinka J.//

The judgment of Lamer C.J. and La Forest, Sopinka and McLachlin JJ. was delivered by

Sopinka J. -- I have read the reasons of Justice Cory herein and while I agree that the appeal must be allowed I cannot agree with his disposition of the case. In my opinion we cannot restore the convictions but are obliged to direct a new trial. The point of disagreement raises an important question with respect to the powers of the Court of Appeal and of this Court.

The majority of the Court of Appeal (1990), 1990 CanLII 6505 (NL CA), 84 Nfld. & P.E.I.R. 181, decided that the trial judge had erred in considering the cumulative effect of the evidence which was led with relation to all of the counts for the purposes of determining the guilt of the accused in respect of an individual count. The alleged error was based on a misapplication of the similar facts rule. The Court of Appeal then considered the evidence which was adduced in relation to each count, and, based on what Cory J. has found to be an erroneous application of R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, concluded that there was no evidence from which an inference of sexual intent or gratification could be drawn on an objective assessment. The majority, therefore, acquitted the respondent on all seven counts on the ground that the verdicts of guilt were unreasonable and could not be supported by the evidence.

Goodridge C.J.N. disagreed with the majority as to the result of two of the counts. He stated that in his view, "the evidence supports two of the convictions" (p. 185). It is not clear whether he was referring to the evidence considered by the trial judge or the evidence considered by the majority. The dissent on this point is the sole basis for the appeal as of right to this Court by the Crown. Goodridge C.J.N. then went on to consider the question of the admissibility of similar acts evidence. While he did not necessarily disagree with the majority, he left this issue unresolved. He would have asked for further argument on this point and if some of the evidence was ruled inadmissible he would have directed a new trial. In the result he would have allowed the appeal on counts 1, 3, 4, 5 and 6 and asked for further argument on counts 2 and 7.

It is apparent from this recital of the proceedings that it is not clear as to what was the precise disagreement on a point of law on which the appeal as of right to this Court is based. No issue was made of this by the respondent and I do not propose to do so. I point out, as did Cory J., that no appeal was taken from the decision of the Court of Appeal on the inadmissibility of the similar facts evidence and we must deal with this appeal on that basis.

The Issue

The issue which I wish to address in this case is whether, on an appeal from a conviction of a criminal offence, a Court of Appeal which finds an error of law in the proceedings at trial resulting in the admission of inadmissible evidence can then dismiss the appeal on the basis that, in the opinion of the Court of Appeal, the residue of admissible evidence is sufficient to convict the accused. In my view, in these circumstances the Court of Appeal has no power to convict on the basis of its own opinion unless the Crown discharges the burden of establishing that the verdict would necessarily have been the same had the impugned evidence not been admitted. If this burden is not discharged, the Court of Appeal must either acquit or, if there is sufficient evidence on which a jury properly instructed and acting reasonably could convict, direct a new trial.

Legislation

The powers of the Court of Appeal are set out in the Criminal Code, R.S.C., 1985, c. C-46, s. 686:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand trial, or against a special verdict of not guilty on account of insanity, the court of appeal

(a)may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

Power of a Court of Appeal

In an appeal founded on s. 686(1)(a)(i) the court is engaged in a review of the facts. The role of the Court of Appeal is to determine whether on the facts that were before the trier of fact a jury properly instructed and acting reasonably could convict. The court reviews the evidence that was before the trier of fact and after re-examining and, to some extent, reweighing the evidence, determines whether it meets the test. See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168. The appeal is a prognosis as to what a jury would do not on the basis of a version of the facts that the court determines was properly admissible, but on the basis of the evidence that was in fact before them. The exercise of this power is predicated on the accused having had a proper trial on legally admissible evidence accompanied by instructions that are correct in law. The Court of Appeal may disagree with the verdict but provided that the accused has had a trial in which the legal rules have been observed, no complaint can be upheld if there is, on the evidence, a reasonable basis for the verdict.

On the other hand, if the Court of Appeal finds an error of law with the result that the accused has not had a trial in which the legal rules have been observed, then the accused is entitled to an acquittal or a new trial in accordance with the law. The latter result will obtain if there is legally admissible evidence on which a conviction could reasonably be based. The court cannot substitute its opinion for that of the trial court that the evidence proves guilt beyond a reasonable doubt because the accused is entitled to that decision from a trial judge or jury who have all the advantages that have been so often conceded to belong to the trier of fact. If the Court of Appeal were to make that decision the accused would be deprived of a trial to which he or she is entitled, first, by reason of the abortive initial trial and second by the Court of Appeal. There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction. These limitations on the powers of the Court of Appeal are the result of the combined effect of s. 686(1)(a)(ii), (b)(ii) and (iii) and s. 686(2). By virtue of s. 686(1)(b)(ii) the Court of Appeal cannot dismiss the appeal if it has found an error of law unless the curative provision embodied in s. 686(1)(b)(iii) applies. If the appeal is not dismissed it must be allowed, and pursuant to the provisions of s. 686(2) either an acquittal or a new trial must be ordered.

In Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739, the Court of Appeal found an error of law in the charge to the jury but applied the curative section of the Code to dismiss the appeal. The respondent Crown invited this Court to weigh the evidence which tended to show that the accused was guilty beyond a reasonable doubt. In refusing to accede to this invitation Cartwright J. (as he then was) stated, at p. 744:

... once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred. The satisfaction of this onus is a condition precedent to the right of the Appellate Court to apply the terms of the subsection at all....

Under our system of law a man on trial for his life is entitled to the verdict of a jury which has been accurately and adequately instructed as to the law. The construction of s. 592(1)(b)(iii) contended for by the Crown in this case would transfer from the jury to the Court of Appeal the question whether the evidence established the guilt of the accused beyond a reasonable doubt. To adapt the words of Lord Herschell in Makin v. Attorney General for New South Wales, the judges would in truth be substituted for the jury, the verdict would become theirs and theirs alone, and would be arrived at upon a perusal of the evidence without any opportunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords. [Emphasis added; references omitted.]

Spence J. expressed this limitation on the role of an appeal court in the following language, at p. 756:

I am of the opinion that this Court cannot place itself in the position of a jury and weigh these various pieces of evidence. If there is any possibility that twelve reasonable men, properly charged, would have a reasonable doubt as to the guilt of the accused, then this Court should not apply the provisions of s. 592(1)(b)(iii) to affirm a conviction. [Emphasis added.]

Colpitts has been consistently applied by this Court. John v. The Queen, 1985 CanLII 15 (SCC), [1985] 2 S.C.R. 476, involved a situation analogous to the case at bar. Evidence was improperly admitted and a new trial was ordered by this Court on the ground that the appellate court should not "retry the case to assess the worth of the residual evidence after the improperly adduced evidence has been extracted from the record" (pp. 481-82). Colpitts was followed most recently in Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, and in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393.

If a Court of Appeal had the power to decide an appeal in which evidence was improperly admitted at trial by determining whether the balance of the evidence could or ought to result in a conviction, there would be no necessity for the Crown to resort to the more onerous curative provisions of s. 686(1)(b)(iii). It would be able to sustain the conviction by persuading the appeal court that there is sufficient evidence to convict or that after weighing the evidence the court ought to convict. This would effectively emasculate the curative provision. By virtue of s. 45 of the Supreme Court Act, R.S.C., 1985, c. S-26, the limitation on the powers to which I have referred applies equally to this Court.

Application to This Case

The Court of Appeal found that an error of law had been committed at trial by reason of the improper admission of similar fact evidence. In the circumstances, they were obliged to allow the appeal unless on a consideration of the admissible evidence they could conclude that a conviction was inevitable. Clearly they were not of this opinion, and quite properly so. Cory J. has carefully reviewed the evidence and I agree with his conclusion that "there was clearly evidence upon which the convictions could properly be based." Indeed I would not disagree that if I were the trial judge I may have accepted the evidence as proof beyond a reasonable doubt that the accused was guilty. What I cannot say and what Cory J. does not say is that no trial judge properly instructed and acting reasonably could acquit. The majority of the Court of Appeal went further than Cory J. and, after considering the evidence that was admissible, reached the conclusion that it was insufficient to sustain a conviction. The review of the evidence and a correct application of Chase in the reasons of Cory J. show that this conclusion was in error. If the Court of Appeal had made a correct assessment of the evidence, they were bound to order a new trial. It would have been no part of the Court of Appeal's function to substitute themselves for the trial judge and determine the guilt or innocence of the accused. In this respect, Goodridge C.J.N. was right in his approach when he stated that if he found that any of the evidence was admitted in error he would have ordered a new trial.

In his reasons, Cory J. stresses that the trial judge believed the complainants and that this finding is untainted by the similar facts evidence. I am not convinced that the trial judge would have convicted on that evidence. After referring to his findings concerning the credibility of the complainants, the trial judge continued:

But I don't think that's - I don't think I can just stop there and say, well, I find that a person has told the truth and that's it. We have to consider all the evidence.

Now, the seven complainants in this case were not teenagers and are not teenagers. They were around 10 or 11 years old, and I think what is important it was not a case of only one complainant but seven. There was seven complainants who referred to the acts of the accused.

As I have pointed out above, however, whether this trial judge would have convicted is not the appropriate inquiry. The appropriate inquiry, to paraphrase Spence J. in Colpitts, is whether there is any possibility that a trial judge would have a reasonable doubt on the admissible evidence. The appellant has not submitted, nor does my colleague Cory J. suggest, that the response to the inquiry would be in the negative. Indeed, the curative provision was not relied on in this case.

I conclude that in the circumstances the Court of Appeal ought to have directed a new trial. This Court has the power to make the order that the Court of Appeal ought to have made. The proper disposition, therefore, is to order a new trial.

//Cory J.//

The reasons of L'Heureux-Dubé, Gonthier and Cory JJ. were delivered by

Cory J. (dissenting in part) -- Two issues are raised in this appeal. First, it must be determined whether the majority of the Court of Appeal of Newfoundland erred in its interpretation of what constitutes a sexual assault. The second issue is whether the majority of the Court of Appeal erred in concluding that the verdicts in question were not ones that a properly instructed jury acting judicially could reasonably have rendered.

Factual Background

The respondent, a school teacher, was charged with the sexual assault of seven of his male fourth-grade pupils. The boys were nine and ten years of age when the incidents occurred. The assaults were alleged to have taken place in the respondent's classroom during school hours. The counts in relation to two of the boys involved allegations of penile touching. The counts relating to the other five boys pertained to the touching of other parts of the body, particularly the knees and thighs.

At trial, the respondent was convicted on all seven counts. The majority of the Court of Appeal set aside the convictions and directed an acquittal on all counts. Goodridge C.J.N. dissented. He would have maintained the convictions on the counts involving penile touching. The Crown now appeals the acquittals on these two counts as of right.

The first count involved J. M. He testified that when he went up to the respondent's desk at the front of the classroom to obtain assistance with his school work, the respondent touched him on the penis. He said that this happened on a number of occasions and that the touching lasted several seconds each time. J. M. gave evidence that the respondent would rub the back of his hand up and down on his penis and demonstrated the nature of the contact for the court. He also stated that the respondent would put his hand inside his shirt and rub his back.

The other count related to D. T. He testified that when he went up to the respondent's desk, the respondent would rub his open hand across his penis. He said that this had happened more than once. He too demonstrated the manner of the rubbing.

The respondent did not deny that the incidents related by the boys might have occurred, but he could not recall them. He acknowledged that he may have made accidental contact with the boys at the times that they described. However, he stated that any contact took place within the context of his normal teaching method. He said that he used touching as a form of encouragement, assistance or reprimand. The respondent testified that he had never knowingly touched a pupil in the genital area and denied that he had rubbed the boys in the manner they described. At the same time, he stated that he could not say that the boys were lying and acknowledged that there was no reason to believe that they would be dishonest, vicious or vindictive.

Decision of the Trial Judge

The trial judge, not unreasonably, was of the view that there was no real conflict between the evidence of the boys and that of the respondent. He considered the only issue in dispute between the Crown and defence to be whether the touching of the boys by the respondent was sexual in nature.

At the outset of his reasons, the trial judge proceeded in an impeccable manner. He stated that he had to consider each count and the evidence of each complainant separately and determine whether a sexual assault had been committed in each case. He instructed himself on several occasions that the Crown was required to prove the guilt of the accused beyond a reasonable doubt on each of the seven counts.

However, despite these initial admonitions, the trial judge appeared to rely upon the cumulative effect of the evidence, using the evidence of all of the complainants to bolster his findings in relation to each count. He seemed to emphasize the fact that there were seven complainants who all told generally the same story. The problematic passages in his reasons are as follows:

Now, the seven complainants in this case were not teenagers and are not teenagers. They were around 10 or 11 years old, and I think what is important it was not a case of only one complainant but seven. There was seven complainants who referred to the acts of the accused. The - I'm not sure if it's seven, but most of them got down here in the Courtroom and sat by the Court Clerk and also showed the lawyers the acts. They described the acts. And in their testimony, both in examination in chief by Mr. Henheffer and by Mr. Burke, they - we recall that their evidence, they - on the act complained of, they did not change their evidence.

And these seven were not teenagers and not a case of one but seven referring to acts of several times.

The seven witnesses I've stated referred to the rubbing and showed how it was done. It was not a brief touching, but evidence of up and down and not a glancing blow. It happened more than once. Now, if you had one witness and you had one act, it may say - you may say, well, okay, there could have been a misconstruing; but when you have seven witnesses describing several times and an accused saying it may have been done and describing it, and at the age of 9 and 10, you know, is that misconstruction or misconstruing? [Emphasis added.]

At the same time, the trial judge made careful and significant findings with regard to the evidence of the young boys. He found them to be forthright and responsive. Then, stating that he was convinced beyond a reasonable doubt that the seven boys told the truth, he convicted the respondent on all seven counts.

Court of Appeal (1990), 84 Nfld. & P.E.I.R. 181

The majority of the Court of Appeal found that the trial judge had erred by considering the cumulative effect of the evidence of all of the complainants in determining the guilt of the respondent on each count. It took this position although neither written nor oral argument had been submitted on the issue. Goodridge C.J.N. in his minority reasons was of the view that the appeal should not be allowed on this ground without hearing argument on it. His reasons indicate the correct approach. Unfortunately, the Crown has not sought leave to appeal on the issue of whether it was appropriate for the trial judge to take into account the evidence given by the other complainants on each individual count. As a result, this Court cannot consider the question.

The majority held that there was insufficient evidence upon which to base a conviction on any of the counts. It therefore allowed the appeal, set aside the convictions and entered acquittals on all counts.

Goodridge C.J.N. was in agreement with the majority on five counts. However, on the two which involved penile touching, he found that the evidence supports the convictions. Goodridge C.J.N. did state later that, if after further argument it was found that an error was made by the trial judge in considering the cumulative effect of the complainants' evidence, he would send the matter back for a new trial. Nevertheless, his determination that there was evidence upon which the convictions could be based was unequivocal and, in my view, was correct.

Did the Majority of the Court of Appeal Err in its Consideration and Application of R. v. Chase?

In R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, this Court set out the proper approach to be taken by courts to the offence of sexual assault. McIntyre J., writing for the Court, held that the test for determining whether a sexual assault has occurred is objective and that the offence is one of general intent. At pages 301-3 he wrote:

To begin with, I agree, as I have indicated, that the test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy.... [T]he test for its recognition should be objective.

Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) [now s. 265(1)] of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" [citing R. v. Taylor (1985), 1985 ABCA 51, 44 C.R. (3d) 263 (Alta. C.A.)]. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant .... The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only.... To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment. Moreover, there are strong reasons in social policy which would support this view. To import an added element of specific intent in such offences, would be to hamper unreasonably the enforcement process.

In considering the impugned conduct in the present case, Marshall J.A., writing for the majority of the Newfoundland Court of Appeal, stated (at p. 193):

While mindful of Chase's direction that sexual gratification need not necessarily be present to ground a finding of sexual assault, any more than contact with any specific areas of the human anatomy, I am nevertheless of the opinion that the presence of such a motive must be established in the specific circumstances of this case where contacts of the nature described might be said to be an ordinary daily occurrence without imputation of any sinister connotation. [Emphasis added.]

Later in his reasons, the following appears (at p. 193):

The appellant has emphatically denied that any contact which he had with any student was perpetrated with a sexual intent or for sexual gratification. However, the test to be applied, as set out in Chase, in determining whether his conduct had sexual motivation is primarily an objective one. The appropriate question is whether, viewed in the light of all circumstances, the sexual or carnal context of his actions were visible to a reasonable observer. If so, in the absence of some other credible explanation, the appellant will be deemed to have the criminal intent. [Emphasis added.]

It seems to me that the effect of the first statement is to suggest that in some circumstances, sexual motive will be a legal requirement, in the absence of which a sexual assault cannot be established. This clearly conflicts with the test adopted in Chase as set forth above.

With respect, I am of the view that the majority of the Court of Appeal was in error in its discussion of the Chase test. That error was compounded when the majority applied its version of the Chase test to the facts of this case. The majority directed its inquiry to sexual motivation rather than to the sexual context of the assault. This is clear from the following statement of Marshall J.A. under the heading "Summary and Determination" (at p. 196):

I am of the opinion, therefore, that the evidence relevant to each charge is not sufficient to sustain any of the convictions. An objective assessment of the circumstances surrounding the impugned contacts does not support any inference of sexual intent or gratification on the part of the appellant. [Emphasis added.]

By concluding that sexual assault was not established because there was insufficient proof of sexual motivation, the majority in effect converted the offence of sexual assault to one of specific intent. This would, of course, be contrary to Chase which held that the offence is one of general intent and established that the intent of the person committing the act is only one of the factors to be considered in determining whether the overall conduct had a sexual context. The appropriate question which had to be considered in this case was whether, notwithstanding the absence of a proven sexual intent, the touching was committed in circumstances of a sexual nature. Had the majority considered that question, its conclusion with regard to the counts involving penile touching would, I believe, have been different.

Sufficiency of the Evidence

Section 686(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46, provides that an appellate court may allow an appeal where it is of the opinion that the verdict should be set aside on the basis that it is unreasonable or cannot be supported by the evidence. The section reads as follows:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand trial, or against a special verdict of not guilty on account of insanity, the court of appeal

(a)may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. . .

The effect of this section was considered in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168. McIntyre J., writing for the Court, set out the principles to be applied by an appellate court when acting pursuant to the provisions of s. 686. He wrote at p. 186:

The function of the Court of Appeal, under s. 613(1)(a)(i) [now s. 686(1)(a)(i)] of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence.

Yebes also addressed the position and role of this Court when considering the application of the sufficiency provision. McIntyre J. stated (at p. 186):

This Court, in considering an appeal where the sole issue raised is the application of s. 613(1)(a)(i) of the Code, must put itself in the place of the Court of Appeal and, pursuant to the powers given in s. 623(1) [now s. 695(1)] of the Code, consider the matter anew, and if error be found make such order as the Court of Appeal should have made.

It is clear that this Court must determine, upon a reading of all the evidence, whether the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered. This requires an examination of the evidence and to some extent a reweighing and a reconsideration of the effect of that evidence. Therefore, it is necessary to return to the evidence and the trial judge's findings in relation to it.

J. M. testified that the respondent rubbed the back of his hand up and down on his (J. M.'s) penis. He stated that the rubbing lasted a few seconds and that it occurred on a number of occasions when he went to the teacher's desk to have his work checked. The majority of the Court of Appeal suggested that there was a discrepancy in the child's evidence in that he had recanted and stated that the touching had occurred on only one occasion. With respect, I cannot agree. A careful reading of the evidence indicates that when J. M. testified during cross-examination that the penile touching had happened once, he was referring to how many times it might have occurred during the course of a single day.

D. T. testified that the acts in question occurred at the teacher's desk when he went up to get help with his work. He testified that the respondent had rubbed the back of his hand up and down on his (D. T.'s) penis. He said that the rubbing had occurred on more than one occasion.

While the respondent testified that he had never knowingly touched a pupil in the genital area, it is significant that he admitted that the alleged penile touching might have occurred. His position was simply that any conduct which did take place had no sexual connotation. The respondent conceded that the boys were normal 10-year-old, grade 4 students and that there was nothing unusual about them. He agreed that there was nothing that would indicate that they would be dishonest, vicious or vindictive or "anything along those lines".

In essence, there appears to be little factual conflict between the evidence of the boys and that of the respondent; the sole dispute between the Crown and defence positions at trial pertained to whether there was any sexual context to the touching. This was the trial judge's view of the matter with which I fully agree.

It is true that in the portions of his reasons set out earlier, the trial judge appeared to consider the evidence of all the complainants together and to use the evidence cumulatively to bolster his findings in relation to each count. However, it must be borne in mind that on numerous occasions the trial judge properly instructed himself as to the need to consider each count individually and to make individual determinations in relation to each count. The following excerpts show that he began with the correct approach:

... I have to take each complainant, whether a sexual assault was committed.

... the Crown is required to prove the guilt of an accused beyond a reasonable doubt, and in this case this applies to each of the seven counts.

It is that degree of proof which convinces the mind and satisfies the conscience that the Crown has proven all essential ingredients of the offence; in this case, it would apply to each count. There would have to be proof beyond a reasonable doubt of each count.

I must determine whether the Crown in respect of each count has proven the guilt of the accused beyond a reasonable doubt.

So that's what the Crown is required to prove in this case and for each count. It may be that, you know, hypothetically, the - you would have to take each count and look at it separately and make a decision.

The seventh ingredient the Crown must prove -- not the seventh in this one, but another ingredient -- is that the assault was of a sexual nature in each case.

As well, it is worthy of note that the trial judge carefully reviewed the testimony of each of the complainants individually and made an assessment of the specific evidence given by each of the boys. He also reviewed the testimony of the respondent and the defence witnesses.

Most importantly, the trial judge made independent findings in relation to the credibility of the boys. These findings appear to be untainted by his global consideration of the evidence. The trial judge was particularly struck by the youthfulness of the complainants. As young boys, they would have no reason to fabricate their allegations and in light of their ages, it would be unlikely that they would conjure up claims of sexual abuse. With regard to the evidence that the youngsters gave, he had this to say:

The - we had the seven complainants - seven complainants who I found were forthright and responsive. We all saw them get on the stand, and their evidence to me was reasonable and consistent. And they were thoroughly cross-examined. They weren't harassed in any way, but they were thoroughly examined by Mr. Burke. And we saw them there, and even the accused has said that he does not question their honesty; and I also find that their evidence consisted of the truth.

The - I'm not sure if it's seven, but most of them got down here in the Courtroom and sat by the Court Clerk and also showed the lawyers the acts. They described the acts. And in their testimony, both in examination in chief by Mr. Henheffer and by Mr. Burke, they - we recall that their evidence, they - on the act complained of, they did not change their evidence.

The - as I've said, the seven witnesses, the boys, were forthright and responsive.

Now, I'm convinced beyond a reasonable doubt that the seven boys told the truth. [Emphasis added.]

Thus, the trial judge expressly found the boys' evidence to be reasonable and consistent under cross-examination. He considered the boys themselves to be forthright, responsive and frank. Most importantly of all, he found that they were honest and truthful. After a complete review of all the evidence, he concluded by stating that he was convinced beyond a reasonable doubt that the boys told the truth.

Considered separately, the evidence of both J. M. and D. T. met all the requirements necessary to establish a sexual assault under Chase. Each boy testified that the respondent had rubbed him on the penis. Given that the trial judge was satisfied beyond a reasonable doubt of the truthfulness of the boys' testimony, there was clearly evidence upon which the convictions could properly be based.

It is the trial judge who had the inestimable advantage of seeing and hearing the evidence of the complainants and the respondent. It is the trial judge who was in a unique position to make the requisite findings of fact and credibility based not only on the oral testimony, but also on the actions and demeanour of the witnesses. It can never be forgotten that there is more than the oral evidence which may quite properly influence a trial judge in assessing the credibility of witnesses. Here the trial judge fulfilled his obligations when he reviewed and assessed the evidence and came to a conclusion with regard to it. I am satisfied, not only that his findings were reasonable, but that they were in fact correct.

The advantage a trial judge has in assessing the credibility of witnesses is demonstrated by this case. It will be remembered that the boys, in addition to their oral testimony, demonstrated the nature of the assaults. Unfortunately, the demonstrations were not described for the record. Therefore, it must be assumed that they were no more damaging to the respondent than the oral testimony. Still, the demonstration evidence is a further factor to be taken into account in any consideration of the findings of fact and credibility made by the trial judge.

Reasonable findings of fact of a trial judge based on evidence accepted as convincing beyond a reasonable doubt should not be lightly disturbed. Here the statement by the trial judge that he was convinced beyond a reasonable doubt that each of the seven boys told the truth overrides any errors he may have made with regard to the cumulative effect of the boys' testimony. Even when considered separately, the testimony of both J. M. and D. T., evidence which the trial judge found to be truthful beyond a reasonable doubt, provided a firm evidentiary basis for the conviction of the respondent on the two counts in question. The test of sufficiency has been met.

Conclusion

In all the circumstances and in light of the particular facts of this case, I would allow the appeal and restore the convictions on counts two and seven.

Appeal allowed and new trial ordered, L'Heureux-Dubé, Gonthier and Cory JJ. dissenting in part.

Solicitor for the appellant: The Department of Justice, St. John's.

Solicitors for the respondent: O'Dea, Strong, Earle, St. John's.