



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4       (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or broadcast
    or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. N.M., 2012 ONCA 296

DATE:  20120508

DOCKET: C53628

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.M.

Appellant

F. Mirza, for the appellant

E. Carrington, for the respondent

Heard:  April 10, 2012

On appeal from the conviction entered by Justice Baltman
    of the Superior Court of Justice, sitting with a jury, on October 26, 2010.

Doherty J.A.:


I



OVERVIEW

[1]

The appellant was charged with two counts of sexual assault and one
    count of touching a person under the age of 14 for a sexual purpose.  Count 1 (sexual
    assault) and count 2 (touching for a sexual purpose) arose out of the same incident,
    which allegedly occurred on or about December 27, 2003.  Count 1 was not
    particularized.  Count 2 alleged that the appellant touched M.R. with his
    penis.  The third count in the indictment alleged that the appellant sexually
    assaulted M.R. in July 2006.  The jury convicted the appellant on count 1 and
    acquitted the appellant on counts 2 and 3.  The appellant appeals from his
    conviction.

[2]

I would allow the appeal.  The conviction rested entirely on the
    evidence of M.R.  In my view, having regard to the significant problems with
    M.R.s credibility, a conviction based exclusively on her evidence is not a
    verdict that a properly instructed jury, acting judicially, could render.  I
    need not address the other grounds of appeal.


II



THE EVIDENCE

(a)

Overview

[3]

M.R. and the appellant are related.  The appellant is the nephew of
    M.R.s grandparents.  She would refer to him as uncle.  At the time of the
    first alleged incident (December 27, 2003), M.R. was 12 years of age and the
    appellant was about 20 years of age.  M.R. was living with her grandparents.  The
    appellant had recently arrived in Canada from India.  He and M.R. would see
    each other at family gatherings.  They were not friendly and generally just
    said hi and bye to each other.

[4]

The second incident allegedly occurred some two and one half years after
    the first, in July 2006.  M.R. went to the police one month later.  She gave a
    videotaped statement to the police in which she described both incidents.  The videotape
    was admitted into evidence at trial.  M.R. testified that the allegations about
    the sexual abuse she made in that videotape were true.  She also gave further
    evidence.  M.R. was 19 years of age when she testified.

[5]

The appellant did not testify, but the defence did call two witnesses,
    the appellants mother and Ms. H., M.R.s grade six teacher during the 2003-2004
    school year.

(b)

The First Incident (Counts 1 and 2)

[6]

M.R. testified that on December 27, 2003, she was living with her grandparents
    and her five-year-old brother.  They went to visit the appellants parents who
    lived in a one-bedroom basement apartment.  At some time during the visit, M.R.
    and her brother went into the bedroom to watch television.  The adults remained
    in the living room talking and drinking tea.

[7]

M.R. and her brother were sitting at the foot of the bed watching
    television.  The appellant was in the bed asleep.  He woke up and invited M.R.
    to come up on to the bed.  She did so.  Her brother stayed on the floor at the
    foot of the bed watching television.

[8]

M.R.s description of the assault that followed was well summarized by
    the trial judge in her instructions to the jury:

He [the appellant] woke up, invited her [M.R.] onto the bed,
    and removed her sweater.  He told her that if she said anything to anyone, he
    would kill her.  He took her hand and put it down the front of his track pants
    and had her massage his penis.  He kissed her, pulled her tank top down and
    touched her breasts.  He unzipped her jeans and pulled them down to her knees. 
    He then turned her over on her side and tried to stick his penis in her anus.

Because her brother was turning around, she pulled up her jeans
    and put on her sweater and went out into the living room.  [The appellant]
    pulled up his pants and went to the bathroom.  She did not tell any of her
    relatives what had happened because she did not know how they would react.

[9]

M.R. was cross-examined on her description of the relevant events.  Some
    inconsistencies emerged.  For example, in M.R.s initial description, she did
    not mention being under the covers when the appellant pulled her pants down and
    lifted her shirt.  She later indicated she was under the sheets, perhaps in
    an effort to explain why her brother apparently did not see anything untoward. 
    I do not propose to refer to the other inconsistencies.  None were dramatic,
    and although relevant to M.R.s credibility, they were the kind of inconsistencies
    one often finds in witnesses accounts of events like this one.

[10]

M.R.s
    brother testified.  Not surprisingly, given his age at the relevant time, he had
    no recollection of the events described by M.R.

[11]

The
    appellants mother testified for the defence.  She recalled that on December
    26, 2003 (Boxing Day), the day before the alleged incident, her family purchased
    their first television set.  She recalled that the family put the television in
    the living room where the only cable hook-up in the apartment was located. 
    There was no television in the bedroom.  The appellants mother recalled everyone
    watching a movie on the television in the living room.   She testified that
    M.R. was not in the apartment on December 27, 2003.

(c)

The Alleged
    Disclosure of the First Incident

[12]

M.R.
    indicated that a few weeks after the alleged incident, she became concerned
    that she might be pregnant as her period was late.  She told her friend, A.O.,
    what had happened.  A.O. told her mother, Ms. O., who then arranged a meeting
    with M.R.s teacher, Ms. H.  According to M.R., she told Ms. O. and Ms. H. of everything
    the appellant had done to her.  In cross-examination, she repeatedly insisted
    that she told Ms. O. and Ms. H. everything in the video statement.  The video
    statement included all of the details of the alleged assault summarized above,
    in para. 9.

[13]

M.R.
    testified that there was some discussion with Ms. O. and Ms. H. about going to
    the doctor, but that she eventually got her period and nothing happened.  She
    did not go to the doctor.  She described Ms. O. as understanding, but indicated
    that Ms. H. acted as though M.R. was trying to get attention by making the
    allegations.

[14]

Ms.
    O. was called by the Crown.  She recalled her daughter telling her that M.R.
    had indicated that she believed she had been fondled by a family member,
    probably her uncle [the appellant].  Ms. O. spoke to M.R. on the telephone
    and she confirmed what M.R. had told Ms. O.s daughter.  Ms. O. arranged to
    meet with M.R. and Ms. H. the next day.

[15]

Ms.
    O. had only a vague recollection of any details provided to her by M.R.  She recalled
    M.R. saying that she had been sleeping in a room and when she woke up her
    buttons and bra clasp were undone, and her uncle [the appellant] was sleeping
    beside her.

[16]

In
    cross-examination, Ms. O. was referred to her statement to the police and her
    preliminary inquiry testimony to refresh her memory.  She adopted her prior
    testimony in which she indicated that M.R. did not give her any of the details
    about the sexual assault M.R. later gave in her statement to the police.  M.R.
    made no reference to kissing, fondling, masturbation, attempted anal
    intercourse or to any threats made to her by the appellant.

[17]

Ms.
    O. recalled that M.R. expressed some concern about being pregnant and going to
    the doctor.  Ms. O. told M.R. that she should speak to her grandmother, the
    school, a doctor, and the police.  Ms. O. left the matter in the hands of Ms.
    H.

[18]

Ms.
    H. was called by the defence.  She testified that Ms. O. and the complainant
    spoke to her at school.  Ms. O. told Ms. H. that M.R. had indicated to her that
    she awoke from a nap to find that her tank top strap had moved and her top was
    riding up on her belly.  M.R. was present when Ms. O. provided this summary of
    what she had been told by M.R.  Ms. H. told M.R. that she should feel free to
    speak to her about it and that if anything had happened, it was not M.R.s
    fault.  M.R. indicated to Ms. H. that she did not know how her strap had been
    moved, but she did not think she had been sexually or physically abused.  M.R. did
    not say her uncle was in the bed when she woke up.

[19]

Ms.
    H. was adamant that M.R. did not say anything about being sexually abused and
    specifically did not make any of the complaints contained in her later statement
    to the police.  Ms. H. testified that if M.R. had told her about any of those things,
    she would have immediately taken M.R. to the principal.  She regarded the
    reporting of sexual abuse as a top priority.

[20]

Ms.
    H. acknowledged that there was some reference to taking M.R. to the doctor for
    a pregnancy test.  She denied making any follow-up inquiries of M.R.

[21]

As
    far as Ms. H. was concerned, she and M.R. had a good relationship.  Ms. H.
    often tutored M.R. before and after school, and they would discuss M.R.s
    family circumstances from time to time.

[22]

In
    cross-examination, Ms. H. acknowledged that she was aware of her statutory duty
    to report abuse.  She made no report in this case because as far as she was
    concerned, there was no allegation by M.R. of any abuse.

[23]

The
    investigating officer was called in reply by the Crown.  He testified that when
    he first contacted Ms. H. about this matter, she immediately asked: this
    doesnt have to do with her uncle, does it?

(d)

M.R.s Fabrication of
    a Visit to the Doctor

[24]

At
    the commencement of her videotaped statement to the police, the investigating
    officer stressed to M.R. the need to tell the truth during the interview.  He
    made sure that M.R. understood the difference between the truth and a lie. 
    M.R. was 15 years of age.

[25]

In
    the course of the interview, the officer asked M.R. if she had told anyone about
    the first sexual assault.  M.R. launched into a detailed narrative in which she
    told the officer that she went to see Ms. H. because she thought she was
    pregnant.  Ms. H. went through her medical records and noticed that M.R.s
    doctor was also the doctor of one of her other students.  According to M.R.,
    Ms. H. spoke to the other students mother and arranged for that person (Ms.
    O.) to take M.R. to their doctor.  M.R. described the trip to the doctor with
    Ms. O. in some detail.  She named the doctor and identified the location of his
    clinic.  She also told the officer that the doctor had died.

[26]

The
    officer questioned M.R. about other matters, but then returned to her
    description of her trip to the doctor with Ms. O.  The officer told M.R. that
    he found it strange that the doctor had not reported the incident to the
    authorities.  M.R. promptly added more details about the visit with the doctor. 
    She described Ms. O.s discussion with the doctor when they arrived at his
    office.  She further indicated that she took the pregnancy test after Ms. O.
    and the doctor had spoken.  M.R. also told the police that Ms. O. arranged to
    have the pregnancy test results sent to her.  M.R. assured the investigating officer
    that Ms. O. would confirm everything M.R. had said about going to the doctor.

[27]

Everything
    M.R. said about the trip to the doctor was a lie.  About two years after giving
    her statement, and immediately before M.R. was scheduled to testify at the
    preliminary hearing, she admitted to the police that she had fabricated the
    story about the trip to the doctor with Ms. O.  There had been no such trip and
    M.R. had never been given a pregnancy test.

[28]

M.R.
    attempted to explain her lies to the police by saying she was scared and
    nervous and having problems at home when she gave the videotaped statement. 
    According to her  although there was conflicting evidence on this point  her
    grandfather had died a few weeks earlier.  M.R. offered no explanation for taking
    over two years to tell the truth.

(e)

The Second Alleged Incident

[29]

M.R. testified that in July 2006, she was sitting with the appellant and
    her brother in the appellants car parked at the home of relatives they were
    visiting. M.R. sat in the backseat and her brother and the appellant sat in the
    front seat.  The appellant reached back and put his hand on M.R.s stomach.  The
    appellant told M.R.s brother to go into the house to get the appellants cell
    phone.  After her brother had left the car, the appellant pulled M.R. forward
    and kissed her.  When the brother returned to the car, M.R. left the vehicle.

[30]

M.R.
    admitted in cross-examination that in July 2006 she was having problems at home
    and that her grandmother wanted her to move out of the house.  M.R. denied that
    she made up the allegation against the appellant to gain sympathy at home.

[31]

At
    trial, M.R.s brother adopted his videotaped statement to police in which he recalled
    being in the car with the appellant and M.R.  He recalled his sister lying in
    the backseat and he saw the appellant touch his sisters stomach.


III



analysis

[32]

This
    court has the obligation to review the reasonableness of convictions:
Criminal
    Code
,

s. 686(1)(a)(i).  In exercising that authority, the court
    must, to some extent, review both credibility assessments and factual findings
    made at trial.  It does so, however, bearing in mind both the advantaged
    position of the trier of fact and the limited scope of review.  The question
    for the appellate court is not what it would have decided, but whether a
    properly instructed trier of fact could reasonably have rendered a guilty
    verdict:
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-42.

[33]

The
    reasonableness review provides an important safeguard against miscarriages of
    justice.  In
Biniaris
, at para. 42, the court described the nature of
    that review in these terms:

To the extent that it [appellate review] has a subjective
    component, it is the subjective assessment of an assessor with judicial
    training and experience that must be brought to bear on the exercise of
    reviewing the evidence upon which an allegedly unreasonable conviction rests.  That
    in turn requires the reviewing judge to import his or her knowledge of the law
    and the expertise of the courts, gained through the judicial process over the
    years, not simply his or her personal experience and insight.

[34]

I
    understand
Biniaris
to instruct that the knowledge gained through the
    reviewing courts broad exposure to the criminal process provides insights into
    credibility assessments and fact-finding not available to jurors whose
    experience is generally limited to a single case.  Those insights must inform
    the reasonableness assessment.

[35]

My reasonableness assessment begins with the observation
    that this jury obviously had difficulty with M.R.s credibility.  The jury
    acquitted on
two of the three charges.  The
    three verdicts, considered together, indicate to me that the jury was not
    prepared to accept M.R.s evidence with respect to the second alleged
    incident.  As far as the first incident was concerned, the jury did accept
    M.R.s evidence to the extent of finding that something improper of a sexual
    nature had occurred between her and the appellant.  However, the jury was not
    prepared to accept M.R.s description of that encounter.

[36]

M.R.s allegation that
    she was sexually assaulted by the appellant in his bedroom on December 27, 2003,
    the only count on which the appellant was convicted, was unsupported in any
    material respect by any evidence independent of that provided by M.R.  That, of
    course, is no reason to declare the verdict unreasonable.  The jury was entitled
    to accept and act on M.R.s evidence even if it stood alone.  The absence of
    any evidence capable of offering any confirmation of M.R.s allegation on that
    charge does, however, make the assessment of her credibility central to the
    reasonableness of the verdict.

[37]

There are two serious
    problems with M.R.s credibility.  First, she lied to the police when she described
    the visit to the doctor with Ms. O. for a pregnancy test.  This was no simple
    isolated lie about some small part of her story.  This was a detailed fabrication. 
    The fabrication was also clearly premeditated.  M.R. had her narrative ready
    for the police when questioned by them.  Her failure to admit she lied for some
    two years, and her acknowledgement of the lies only at the point when she must
    have known she would be revealed as a liar in court, further undermines her
    credibility.

[38]

These lies do not
    suggest to me a spur of the moment misjudgement by a young person under
    questioning by the police.  Rather, they speak to a premeditated, albeit easily
    exposed, plan devised to make an allegation more credible.

[39]

The second problem
    with M.R.s credibility relates to the differences between her evidence as to
    what she told Ms. O. and Ms. H. and the evidence they gave about those
    disclosures.  Clearly, it was open to the jury to conclude that M.R. said
    something to Ms. O. and Ms. H. about a possible sexual assault by the appellant. 
    However, M.R.s evidence about her disclosure to Ms. O. and Ms. H. went much
    further than that.  She repeatedly insisted in her evidence that she told Ms.
    O. and Ms. H. all the details about the sexual assault that she gave to the
    police in her videotaped statement.  Those details included allegations of acts
    of masturbation and attempted anal intercourse as well as a death threat.

[40]

In my view, it defies
    common sense to suggest that Ms. O. or Ms. H. would not have immediately reported
    allegations of the kind that M.R. said she made to them to the authorities.   Consider
    Ms. H.s position.  She was M.R.s teacher and they had a good relationship. 
    Ms. H. was aware of her responsibilities to report allegations of abuse.  Why
    would Ms. H., if a student told her of an attempted rape by a family member,
    not report that allegation to the appropriate authorities?  Clearly, she would
    have.

[41]

Bringing judicial
    experience to bear, I think the only reasonable conclusion is that M.R. did not
    tell Ms. H. or Ms. O. about the sexual assaults that she described in her statement
    to the police some two and one half years later.  Her testimony that she did
    make those allegations to Ms. H. and Ms. O. is incredible and could not be
    accepted by a reasonable trier of fact acting judicially.  At best, a
    reasonable trier of fact could conclude that M.R. had expressed concern about a
    possible sexual assault of an unspecified nature by her uncle while she was
    asleep.

[42]

I am mindful of the admonition in
Biniaris
, at para. 38,
that appellate courts cannot
    find unreasonableness based solely on some vague unease about the adequacy of
    the evidence.  The appellate court must attempt to articulate the basis for its
    finding.  In non-jury cases, the trial judges reasons often will reveal the origins
    of an unreasonable verdict.  The task of articulating a basis for a finding of
    unreasonableness is more difficult in jury cases.  By law, jurors are not
    allowed to give any reasons for their verdict.  Juries leave no tracks for the
    appellate court to examine in assessing the reasonableness of their verdicts.

[43]

A
    review of the instructions given to a jury may, however, provide clues as to
    how the jury arrived at what the appellate court views as an unreasonable verdict. 
    Some of the trial judges instructions on matters relevant to M.R.s
    credibility provide insight into the jurys verdict in this case.

[44]

The
    trial judge gave the usual instructions concerning the credibility of
    witnesses, including M.R., and the relevance to credibility of inconsistent
    statements.  In reference to M.R.s admitted lies about the trip to the doctor
    and the pregnancy test, the trial judge said:

At this trial you heard [M.R.] testify that she did not go to
    see the doctor in January 2004, after she reported an assault to her teacher,
    [Ms. H.].  However, in the video statement she previously gave to Constable
    Steele she said that she and [Ms. O.] went to see Dr. [A.] and she underwent a
    pregnancy test.  She explained that when she gave the statement to Constable
    Steele she was scared and nervous, and she was not thinking properly because it
    was soon after her grandfather had died.

Not every difference or omission will be important.  You should
    consider the fact, nature and extent of any differences in deciding their
    importance to you and in deciding whether you believe or will rely upon the
    witnesss testimony. You should also consider any explanation that the witness
    gives for the differences.

[45]

The
    trial judges instructions are legally correct as far as they go.  They do not,
    however, highlight for the jury the potential significance of M.R.s lies about
    her trip to the doctor.  The trial judge does not go into the details of those
    lies or the way in which they were presented as part of a broader narrative to
    the police.  The potential significance to M.R.s credibility of these admitted
    lies may not have been brought home to this jury.  The trial judge also did not
    make any reference to M.R.s two-year silence about the lies, broken only on
    the eve of her testimony at the preliminary inquiry.  That long silence could
    hardly be explained by M.R.s nervousness or emotional state at the time she
    gave her videotaped statement.

[46]

The
    trial judges failure to tailor the credibility instruction to the specific
    nature of the lies told by M.R. leaves me with the strong impression that the
    jury would not regard M.R.s lies about going to the doctor as of more or less
    significance than other inconsistencies that may have emerged from the
    evidence.  Judicial experience tells me that those lies deserved much more emphasis
    in the assessment of M.R.s credibility.  A less generic instruction about
    credibility and one more tailored to the specific problems with M.R.s
    credibility would, I think, have provided more assistance to the jury.

[47]

The
    trial judge also gave no specific instruction concerning the inconsistencies
    between M.R.s evidence about what she disclosed to Ms. O. and Ms. H., and
    their own evidence about what they were told by M.R.  The trial judge referred
    to these differences only briefly when outlining the theory of the defence.  M.R.s
    evidence about her conversations with Ms. O. and Ms. H. was potentially
    significant given that these conversations occurred shortly after the first alleged
    assault.  On any reasonable view of the evidence, M.R.s version of those
    conversations was not credible.

[48]

It
    would have been helpful to the jury had the trial judge, in the instructions to
    the jury, focused on the different versions of M.R.s conversations with Ms. O.
    and Ms. H.  It would have also been helpful had the trial judge reviewed with
    the jury the evidence relevant to the likelihood of either or both Ms. O. and
    Ms. H. ignoring the kinds of allegations that M.R. testified she made to them. 
    By focusing on these matters, the instruction could have assisted the jury in
    its assessment of M.R.s credibility.

[49]

My
    references to the trial judges instructions are not made to assign legal
    error.  Nor do I suggest that some specific caution or warning about accepting M.R.s
    evidence was required as a matter of law.  My references to the instructions are
    intended to demonstrate that the trial judges credibility instructions were somewhat
    generic and did not come to grips as well as they might have with the specifics
    of this case and, in particular, two very important features of M.R.s
    evidence.  This jury did not have the benefit of a credibility instruction carefully
    tailored to the evidence that it had before it.  The absence of that kind of
    instruction helps to explain, in my view, why this jury returned what my judicial
    experience tells me was an unreasonable verdict.

[50]

The
    jury was satisfied that something happened on December 27, 2003 in the
    appellants bedroom.  Their verdict seems to be an application of the old adage
    where theres smoke theres fire.  Whatever the merits of that approach to
    fact finding in other contexts, it has no application in a criminal trial.


IV



CONCLUSION

[51]

I
    would allow the appeal, quash the conviction and enter an acquittal.

RELEASED: MAY 08 2012  DD

Doherty J.A.

I agree J.C.
    MacPherson J.A.

I agree Robert J.
    Sharpe J.A.


