Court File and Parties

SUMMARY CONVICTION APPEAL COURT FILE NO.: 77/15 DATE: 20160715 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – B.P. (YOA) Appellant

Counsel: Sunita Malik, for the Crown Mark C. Halfyard, for the Respondent

HEARD: June 13, 2016

McWatt J.

FURTHER AMENDED REASONS FOR JUDGMENT

Introduction

[1] The appellant was tried before Justice T. Cleary of the Ontario Court of Justice at the Scarborough Courthouse in Toronto, on August 11, 12, 13 and 27, 2015. The reasons for judgment were delivered on September 4, 2015. He was found guilty of sexual assault, sexual interference and invitation to sexual touching. The matter was adjourned for sentencing. The charge of Sexual Interference was stayed pursuant to the principles set out in R. v. Kienapple. The appellant appeals his convictions.

[2] This was a four witness trial (along with one additional witness on a voir dire). The only issues for the trial judge to decide were credibility and reliability. With respect to the actual incident, there were no other witnesses other than the victim and the appellant. Both of them testified. The victim was aged 9 at the time of the incident and suffered from number of disabilities, including autism, anxiety disorder, seizure disorder and a syndrome known as Prader-Willi, which affects his hypothalamus. He never feels that he has had a sufficient amount to eat. This disorder has weakened tone in his muscles and, according to his mother, sometimes his thought processes appear to be a bit slow. The victim and the appellant both testified that they attended the choir room in the basement of St. Rose of Lima Church on June 22, 2014. After the mass ended, both stayed for the choir practice. After the snack was provided by the victim’s mother, Ms. P. T., she went to volunteer at the library which was only a few minutes away from the choir room. The victim and the appellant both confirm the chronology of events that led them to the bathroom. Both confirm that the victim was told to wash his hands by the appellant. And, both returned to the choir room.

[3] Where they differed in their testimony was the victim testified that he was kissed by the appellant and was told to lick and touch the appellant’s penis while they were in a washroom stall and they are “now” friends. The appellant denied this, but testified that he helped the complainant with his belt buckle and pants to assist him in going to the bathroom.

The Grounds for the Appeal

[4] The appellant raises 4 grounds of appeal:

1. That the trial judge applied the wrong standard when deciding the threshold reliability of the complainant’s hearsay statement through his mother;
2. that the trial judge discounted a major reliability concern with respect to the complainant’s mother’s evidence;
3. that the trial judge conducted no review or analysis of the appellant’s evidence against the burden of proof; and
4. that the trial judge engaged in impermissible speculation when he found the complainant would have no prior knowledge of the sexual activity he described.

Analysis

The Hearsay Statement

[5] The complainant told his mother about the bathroom incident when choir practice was done. The trial judge admitted the mother’s statement about what her son told her as an exception to the hearsay rule.

[6] After listening to her son, the mother spoke to the choir master, but told him she was still trying to determine what had happened. She later called police and the complainant gave a videotape statement.

[7] At trial, the complainant could not remember telling his mother anything and denied any knowledge of what he was supposed to have said to his mother.

[8] Hearsay evidence is presumptively inadmissible. It can be admitted in certain contexts where it is both necessary and reliable. Hearsay is not excluded because it is irrelevant. It is generally excluded because of the inherent difficulties in testing its reliability depending on whether those difficulties can be alleviated. The burden of establishing the exception to the hearsay rule is on the proponent of the statement on the balance of probabilities. The courts have recognized two ways to satisfy threshold reliability; either there is a sufficient basis to assess the truth and accuracy, using substitutes for cross-examination (procedural reliability); or that there are circumstances under which the statement was made which provide guarantees that the statement is reliable or trustworthy (substantive reliability). Where a proponent attempts to establish reliability based on the substantive reliability, the trial judge must also consider the presence of corroborating or conflicting evidence. (R v. Chretien, 2014 ONCA 403 at para. 54; R v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 93; R v. Taylor, 2012 ONCA 809 at para. 30; R. v. Kanagalingam, 2014 ONCA 727 at para. 31).

[9] The admissibility of hearsay is a question of law. The ultimate determination of whether the utterance is admissible is entitled to deference, absent an error in principle (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517 at para. 81, R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720).

[10] The appellant asserts that the trial judge found that the complainant’s statements to his mother met the threshold of reliability in the absence of any reliable grounds. Justice Cleary also suggested that the onus on the Crown was a “low hurdle”. The burden of proof is on the Crown as the proponent of the hearsay statement to establish threshold reliability on a balance of probabilities. Whether that is what the trial judge meant or not, there were other issues that made his ruling of admissibility of the mother’s hearsay statement problematic.

[11] There were no procedural guarantees to this hearsay statement such as oath, affirmation and the statement was not recorded. The complainant could not recall making any statements to his mother, so while he was available as a witness, he was not available to be cross-examined on this issue. As there were no concerns about necessity for the statement, the issue turned on the substantive reliability and whether or not there were circumstantial guarantees of inherent trustworthiness for it. The trial judge found the following factors supportive of reliability:

• There was no evidence of motive to lie;
• There was no prompting or leading questions asked of the complainant; and
• The statement was “relatively contemporaneous.”

[12] The trial judge made no mention of the fact that the complainant gave a modified account of what he allegedly told his mother when he spoke to police. He told police that he “bit” the perpetrator’s penis. There were reliability concerns that could not be explored because of the lack of cross-examination of the complainant. The factors that the trial judge did not consider but should have, to assess the admissibility of the statement were:

• The complainant liked to please people and wanted friends and would often say things to get people to like him;
• He appeared to have no idea how serious the allegations were;
• The complainant was “suggestible”;
• He called all sorts of people “his friends” – including people who bullied him;
• There were people who bullied and teased him, which could have suggested alternative sources for the information and other potential perpetrators;
• There were some conflicting evidence, such as location of the assault (whether it happened at church or school) and when it might have occurred; and,
• Beyond attending the bathroom with a person from choir, there was little confirmation for his story.

[13] The trial judge did not, in his reasons, consider any of the evidence that suggested the statement was unreliable, which he was required to do. This amounted to an error in the context of the complainant’s evidence at trial, which was inconsistent. He affirmed his videotape statement, but also testified that nothing happened in the bathroom.

The Mother’s Evidence

[14] The mother’s overwhelming courthouse misidentification affected her overall credibility as well as the admissibility of the hearsay statement. The trial judge gave undue weight to the mother’s evidence – especially in the face of her adamant belief in what she clearly did not see. The trial judge found this clear mistake on the mother’s part had little effect on her reliability overall because there was insufficient information for him to discount her evidence.

[15] Given that one of the issues in the case for the complainant’s evidence was identification of the appellant as the perpetrator, the mother’s evidence of her son’s response to seeing who she thought was the appellant should have given the trial judge good reason not to rely on the mother as a credible witness in the trial.

[16] In the circumstances, his findings, which stem from her evidence, amount to error.

Analysis of the Appellant’s Evidence

[17] The trial judge did not consider the appellant’s evidence when assessing whether the Crown had proven the case beyond a reasonable doubt. He stated:

“The only significant difference between the testimony of B.P. and the testimony of G.T. about what happened in the bathroom is relatively narrow in terms of total content as to what G.T. said happened, the alleged offence, and the accused’s denial but that there was some contact with clothing but not as complained of.

I accept the evidence of the complainant and reject that of the accused regarding their contact in the bathroom and having rejected the denial of the accused I have no reasonable doubt from the totality of the evidence. There is a finding of guilt on each of the three charges”.

[18] I agree with counsel for the appellant that this is not a case like R. V. J.J.R.D., , [2006] O.J. No. 4749 (C.A.), where there is strong evidence corroborating the complainants’ evidence and supporting the complainant’s version of events to sufficiently undermine the accused’s credibility.

[19] In R. v. Strong, [2001] O.J. No. 1362 (C.A.) at para. 9, the court found that where the appellant’s evidence is plausible, a rejection of it without explanation is unsatisfactory. The absence of any explanation for totally rejecting an appellant’s evidence suggests that he was disbelieved because the complainant was believed. That approach ignores the burden of proof.

[20] The Ontario Court of Appeal has, over the years, denounced that approach in R. v. Dore, [2004] O.J. No. 2009 (C.A.) at para. 4; R. v. Y.M., , [2004] O.J. No. 2001 (C.A.) at paras. 30 and 31; and R. v. Tzarfin, , [2005] O.J. No. 3531 (C.A.) at para. 11.

[21] The trial judge erred in failing to properly weigh the appellant’s evidence in the framework of W.D.

Speculation About The Complainant’s Knowledge About The Sexual Act He Complained Of

[22] Since I have agreed with the appellant that the trial judge erred, as set out above, I will only note here that I also agree that this ground of appeal succeeds and say simply that there was no evidence before him from which to draw an inference that the complainant would have no knowledge of the sexual activity he complained about and he erred in finding so (R. v. Morrissey (1995), , 97 C.C.C. (3d) 193 (Ont. C.A.) at 209).

Conclusion

[23] As a result of the foregoing, the appeal is granted, the convictions quashed and a new trial is ordered.

McWatt J.

Released: July 15, 2016

SUMMARY CONVICTION APPEAL COURT FILE NO.: 77/15 DATE: 20160715 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – B.P. Appellant FURTHER AMENDED REASONS FOR JUDGMENT McWatt J. Released: July 15, 2016