COURT FILE NO.: 7961/19
DATE: 2019-11-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Marie Eve Talbot, Counsel for the
Respondent
Respondent
- and -
L.M.
Eric D. McCooeye, Counsel for the
Appellant
Appellant
HEARD: October 21, 2019
GAREAU J.
REASONS ON APPEAL
[1] This is an appeal from the Ontario Court of Justice to the Superior Court of Justice, which was heard October 21, 2019.
[2] Mr. L.A.M. was charged with the following offences as set out in an Information dated September 16, 2016 as follows:
Count 1, L.A.M. of H[…] Ht. Wawa, Ontario, between the 1st day of August 2016 and the 31st day of August 2016 at the Town of Wawa in the said Region, did for a sexual purpose touch E.S., a person under the age of sixteen directly with a part of his body, to wit: his finger, contrary to section 161 of the Criminal Code, and further that;
Count 2, that L.A.M. between August 1st, 2016 and September 2016, at the Town of Wawa in the said Region, did commit an assault on E.S., contrary to section 266 of the Criminal Code, and further that;
Count 3, that L.A.M. between August 1st, 2016 and September 16th, 2016, at the Town of Wawa in the said Region, did commit an assault on E.S. contrary to section 266 of the Criminal Code, and further that;
Count 4, that L.A.M. between August 1st, 2016 and August 31, 2016 at the Town of Wawa in the said Region, did commit a sexual assault on E.S., contrary to section 271 of the Criminal Code, and further that;
Count 5, that L.A.M. between August 1st 2016 and September 16, 2016 at the Town of Wawa in the said Region, did, while being bound by a probation order made by Ontario Court of Justice on January 5, 2016, fail without reasonable excuse to comply with such order, to wit: keep the peace and be of good behaviour, contrary to section 733.1(1) of the Criminal Code.
[3] Mr. L.A.M. entered a plea of not guilty to the aforementioned charges and a trial took place in November 6, 7, and 8, 2017 in Wawa, Ontario.
[4] For oral reasons delivered on February 12, 2018 by the Honourable Justice R. Villeneuve, L.A.M. was convicted of Counts 1 and 5 in the Information, namely that for a sexual purpose did touch E.S., a person under the age of 16 with a part of his body, his finger, contrary to section 151 of the Criminal Code, and breach of probation, namely, that he failed to keep the pace and be of good behaviour. Count 2 (assault) was dismissed; Count 3 (assault) was withdrawn; and Count 4 (sexual assault) was stayed on the Kienapple principle. Mr. L.A.M. received a custodial sentence.
[5] Mr. L.A.M. appeals his convictions to this court.
FACTS
[6] The appellant is the husband of A.M.. Ms. A.M. had a child from a previous relationship, namely E.S.. E.S. was 10 years of age when she testified at the trial and 9 years of age at the time of the complaint. The appellant, Ms. A.M., E.S. and another child all lived together in the same home in Wawa, Ontario. This lasted for approximately six years.
[7] A.M. was pregnant and often her child C. slept in the same bed as her. As a result, the appellant slept on a couch in the downstairs living room or in E.S.’s bed when she was at school.
[8] At the trial, the appellant testified that occasionally he would masturbate and ejaculate while in E.S.’s bed. The bedding on E.S.’s bed would be washed approximately every two weeks.
[9] On the night in question, E.S. was feeling ill. She was sweating and had diarrhea. For this reason she went to bed wearing only her underwear. It was the evidence of the complainant that,
I woke up in the middle of the night with my dad in my bed and touching me around right here [referring to her vaginal area] and I did not like that but I was still half asleep and I was all like get out of my room, get out of my room twice and then he went and got out...and then he said you’re so mean...and then I was looking for my panties and then I only had to wear my jeans that are really tight and really small. Then I went back to bed and I fell asleep right away...
[10] In providing further details, the complainant testified that the appellant touched the middle of her vagina and the area around it with his two fingers. The complainant testified that at one point she turned and faced the appellant in her bed and observed that the appellant was holding his penis and “whipping it”. The complainant testified that she heard the appellant whisper “oh yeah” and that she felt a substance land around her vagina and drip down all over her leg. The complainant described the substance as being white in colour with a funny smell.
[11] It was the evidence of the complainant that she wiped the substance off her leg with a blue towel that she found under her bed. That towel was identified at the trial by the complainant as the towel depicted in Exhibit 1, photograph 13.
[12] The complainant testified that the blood on her bed was from a bloody nose that she had and was not related to the incident.
[13] The complainant’s mother, A.M., testified at the trial and confirmed that sometimes when E.S. was not at home the appellant would sleep in her bed because it was more comfortable than the couch he was accustomed to sleeping on.
[14] A.M. testified that it would be unusual for E.S. to wear jeans because she preferred comfortable pants. The learned trial judge found that A.M. testified as follows:
On the day of the alleged sexual assault she didn’t note anything unusual with the complainant other than the complainant was wearing her jeans that morning. That was unusual for her.
The Crown concedes that A.M. did not testify that she saw E.S. wear jeans the morning after the sexual assault and that the trial judge was in error when he made that finding.
[15] In her evidence, the complainant indicated that she would try to get her younger brother in trouble and that she had long wanted the appellant out of the house. In her evidence, the complainant indicated that she didn’t like the appellant because he drank, smoked, and broke the car window of her mother.
[16] The forensic evidence at the trial indicated that the appellant’s semen was found on one of the fitted sheets on E.S.’s bed. No semen was found on the towel the complainant testified that she used to clean herself after the sexual assault.
[17] The appellant testified at the trial. He described a good relationship with E.S.. He testified that he slept in her bed three or four times a week, but never while the complainant was in it. He did testify that he would masturbate in the complainant’s bed usually one or two times a week.
[18] Specifically, the appellant in his evidence at trial denied touching the complainant’s vagina or ejaculating on her.
[19] The appellant testified that he would clean himself but that it was unlikely that he would wash the bedding on the complainant’s bed every time after he masturbated in her bed.
DECISION OF THE LEARNED TRIAL JUDGE
[20] Justice Villeneuve gave oral reasons in which he accepted the evidence of the complainant and rejected the evidence of the appellant. In accepting the evidence of the complainant, the learned trial judge stated the following in his reasons:
Certain inconsistencies have been pointed out in the complainant’s evidence. During her video statement she had to be focused and refocused on the details of the sexual assault. As the statement progressed, she elaborated on the assault in greater detail. Her mother intimated that she lied frequently. I found, however, that during her examination in-chief she was consistent, and she adopted her video statement. Her description of the act of masturbation was very accurate, in my view. She admits that she could be difficult at times at home, and that she would blame things on her younger brother. She admitted that she would sometimes strike out at the defendant in anger, biting him or head-butting him. She was not afraid to admit those things. Upon reviewing the photographic evidence, and in particular a blood stain on the bed as I indicated earlier, she was quick to absolve the defendant of any responsibility for that, indicating that was a result of another incident, being a bloody nose. I found the complainant to be a credible witness. Her accounting of what occurred in her bed was realistic and supported by the forensic evidence as to the presence of semen on her bedding. Her wearing her jeans the next morning and her mother noting that, further corroborates the complainant’s evidence. I believe her. [Emphasis added.]
[21] In rejecting the evidence of the appellant, the learned trial judge provided the following comments in his reasons:
The defendant’s evidence as to the presence of his semen is unbelievable, in my view. His explanation for the presence of his semen is not capable of belief. That a father would ejaculate on his daughter’s bed and not wash that bedding afterwards is incredible. I do not accept his allegations on the evidence of sexual assault and sexual interference.
[22] As noted by Justice Villeneuve in his reasons, “A consideration of his evidence [referring to the appellant’s evidence], does not cause me to have a reasonable doubt.” Justice Villeneuve goes on further in his reasons to state that, “I find that the Crown’s evidence does satisfy me beyond a reasonable doubt that between August 1, 2016 and September 16, 2016 the defendant did sexually assault and sexually interfere with the complainant, in removing her panties, fondling her vagina, and ejaculating on her body. He did, accordingly, fail to keep the peace and be of good behaviour in contravention of the probation order of Justice Dunn, dated January 5, 2016.”
THE GROUNDS OF APPEAL
[23] The appellant advanced two grounds of appeal, which can be summarized as follows:
(a) That there was a palpable and overring error by the trial judge in finding that A.M. testified that “on the day of the alleged sexual assault she didn’t notice anything unusual with the complainant, other than the complainant was wearing her jeans that morning. That was unusual for her”, and that this erroneous finding impacted the trial judge’s assessment of credibility;
(b) That the trial judge made an error of inferred fact and a palpable and overring error in inferring that the appellant would not ejaculate in his daughter’s bed without washing the bedding. The appellant takes the position that there was no evidence before the trial judge to make this inference, and in using this inference in the assessment of credibility to reject the evidence of the appellant, the trial judge made a palpable and overring error.
THE STANDARD OF REVIEW
[24] As indicated in paragraph 23 of Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.) the standard of review for findings of fact and inferences drawn from findings of fact is palpable and overridng error.
[25] Both Crown counsel and defence counsel on this appeal agree that it is this standard of review that applies in this appeal.
[26] As noted by the Ontario Court of Appeal in R. v. D.T., 2014 ONCA 44, [2014] O.J. No. 255, “An appellate court may only intervene in a trial judge’s credibility analysis if that analysis is the subject of a palpable and overriding error.” The Ontario Court of Appeal in Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 described the palpable and overring error standard as follows:
The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen v. Nikolaisen, [2002 SCC 33](https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html), [2002] 2 S.C.R. 235, at paras. [5-6]. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, [1996 CanLII 217 (SCC)](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii217/1996canlii217.html), [1996] 1 S.C.R. 254, at para. [35].
DISCUSSION/ANALYSIS
[27] As to the first ground of appeal, it is important to examine very carefully the words used by Villeneuve J. in his judgment when assessing the credibility of the complainant. Justice Villeneuve assesses the evidence of the complainant beginning at line 19 on page 232 of the transcript, and concludes his assessment on page 233, starting at line 7 as follows:
I found the complainant to be a credible witness. Her accounting of what occurred in her bed was realistic and supported by the forensic evidence as to the presence of semen in her bedding. Her wearing her jeans the next morning and her mother’s noting that, further corroborates the complainant’s evidence. I believe her. [Emphases added.]
[28] Undoubtedly there was a misapprehension in the evidence by the trial judge in that there was no evidence at the trial from the complainant’s mother that the complainant was wearing jeans the next morning, and therefore no corroboration of the complainant’s evidence on this point, as mistakenly concluded by the trial judge. There is no doubt that this factual error is plain and obvious. As noted in the jurisprudence, in addition to the error being “plain” and “obvious”, the misapprehension of the evidence must also be substantial, material, and play an essential role in the decision to convict. (See: R. v. Lohrer, 2004 SCC 80, 2004 S.C.C. 80; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.))
[29] As noted in the respondent’s factum with regard to credibility assessments, a misapprehension of evidence will amount to a miscarriage of justice only where the credibility assessment is central to the decision to convict and only where the alleged misapprehension is central to that credibility assessment. (See: R. v. C.B., 2017 ONCA 862)
[30] The case involving the appellant was all about credibility. The appellant testified at trial and the contest centred around whether his evidence would be believed or whether the evidence of the complainant would be believed.
[31] In my view, the belief of the trial judge that the evidence of A.M. corroborated the complainant’s evidence about putting jeans on after being sexually assaulted was central in his decision to believe the evidence of the complainant. I reach this conclusion by the very words used by the trial judge in accepting the evidence of the complainant. The trial judge states in his reasons that, “her wearing her jeans the next morning and her mother’s noting that further corroborates the complainant’s evidence”. That the trial judge finds corroboration in the evidence of the complainant by the evidence of the complainant’s mother to conclude that “I believe her” can lead to no other conclusion that the mother’s evidence with respect to the jeans was central to the trial judge’s overall assessment of the credibility of the complainant.
[32] The error in misapprehending the evidence of A.M. led to a decision about credibility that might have not been the same absent the error. To apply the considerations of “palpable and overriding error” set out in Waxman, the error committed by the trial judge in misapprehending the evidence of A.M. is one that is obvious, clear and plain to see. There simply was no evidence from A.M. that she saw the complainant wearing jeans the morning after the alleged sexual assault. With respect to the impact of this error on the result and the credibility assessment of the complainant, the error in the finding of fact played an essential role in the trial judge’s assessment of credibility in his conclusion that the evidence of the complainant was corroborated and his ultimate decision to accept the evidence of the complainant. The error made goes directly to the issue, that is, the reliability or credibility of the complainant’s evidence. The conclusion of credibility relating to the complainant was prominently based on this palpable error and therefore the finding of credibility was vitiated by an overriding error.
[33] I would allow the appeal on this first ground of appeal.
[34] As to the second ground of appeal, this relates to what the appellant refers to as an “error of inferred fact” or an error in the inference drawing process. As with the first ground of appeal, this error must be obvious, clear and plain to see, and material or significant to a finding made by the trial judge.
[35] The second ground of appeal relates to the following comments made by the trial judge in his reasons:
The defendant’s evidence as to the presence of his semen is unbelievable, in my view. His explanation for the presence of his semen is not capable of belief. That a father would ejaculate on his daughter’s bed and not wash that bedding afterwards is incredible. I do not accept his allegations on the evidence of sexual assault and sexual interference. (Page 233, lines 15-24, Transcript of Proceedings)
[36] The aforementioned comments are the only assessment made by the trial judge about the credibility of the accused, and based on that assessment, the trial judge does not accept the evidence of the accused. Although the trial judge recites the evidence given by the accused in prior paragraphs of his judgment, this is a recitation of the evidence only and not an analysis. The fact that these comments made by the trial judge are the only comments made by him as to why he rejects the evidence of the accused, in my view make the trial judge’s conclusion that a father would not ejaculate in his daughter’s bed and wash the sheets central to his assessment of the credibility of the accused and to his not accepting the evidence of the accused.
[37] While it is true that a trial judge is permitted to rely on common sense propositions about the likelihood of human behaviour, Justice Villeneuve did not do this but rather imposed a personal view or belief for which there is no basis of common experience, and more importantly, no evidentiary foundation.
[38] There was no evidence led at the trial on which the trial judge could come to a conclusion that a father would wash the sheets of his daughter’s bed after he had ejaculated in that bed. To base an assessment of credibility on conclusions not grounded in common sense or on facts adduced in evidence is not only a palpable and overriding error but amounts to a miscarriage of justice. The verdict might have been different had the error not been made.
[39] Where the trial judge relies on his own theory, the evidence must fully support it. I reach the same conclusion as Hennessy J. in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. S.G., [2011] O.J. No. 3363 that the trial judge relied on his own theory in the absence of evidence supporting that theory and that, “The trial judge drew inferences that were not supported by the evidence on which he relied for his final decision. This amounted to an overriding and palpable error”, (para. 37).
[40] Accordingly, I would allow this appeal on the second ground as well.
[41] In conclusion, the appeal is allowed, the convictions against L.A.M. are set aside, and a new trial is ordered.
Gareau J.
Released: November 14, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.M.
REASONS ON APPEAL
Gareau J.
Released: November 14, 2019