



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    that could identify the complainant or a witness shall not be published in any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. C.B., 2017 ONCA 862

DATE: 20171109

DOCKET: C62072

Hoy A.C.J.O., Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.B.

Appellant

C.B., appearing in person

Howard Krongold, as duty counsel

Michael Bernstein, for the respondent

Heard: July 12, 2017

On appeal from the conviction entered on December 4, 2015
    by Justice William M. Le May of the Superior Court of Justice, with reasons
    reported at

R. v. C.B
.
, 2015 ONSC 7554.

Simmons J.A.:

A.

introduction

[1]

The appellant was charged with two counts of sexual interference and two
    counts of sexual assault arising from two incidents that occurred during the
    summer of 2009. The complainant is the appellants half-sisters daughter. The
    appellant was living with the complainant and her mother, C.S., during the
    period in which the alleged sexual assaults occurred. The appellant was 33 at
    the time; the complainant was 14.

[2]

Concerning the first incident, the complainant alleged that the
    appellant got on a bed she was sleeping in and digitally penetrated her during
    the second night of a two-night family stay in a hotel in Sault Ste. Marie (the
    hotel incident).

[3]

The appellant testified at trial and denied any sexual misconduct with
    the complainant. The trial judge acquitted the appellant of the two charges
    relating to the hotel incident. He said he did not believe the appellants
    evidence due to credibility problems in the appellants evidence as a whole.
    Nonetheless, the trial judge concluded that the appellants evidence together
    with the whole of the evidence gave rise to a reasonable doubt in relation to
    these charges.

[4]

The complainant alleged that the second incident occurred soon after
    their return from Sault Ste. Marie. On an occasion when the appellant was in
    the basement doing his laundry, she told the appellant that she was thinking
    about boys and sex, and stated that she was horny. The appellant told her to
    finger herself. Then, at her invitation, the appellant digitally penetrated her
    and performed oral sex on her until she told him to stop (the laundry room
    incident).

[5]

Although the appellant denied any sexual misconduct with the complainant,
    he acknowledged telling the complainant to finger herself after she told him
    she was horny (the laundry room conversation). During cross-examination, the
    appellant asserted that he did not tell C.S. about the laundry room
    conversation because he was concerned that a big commotion might ensue,
    similar to a previous argument following which the complainant threatened to
    kill herself and harm other people.

[6]

The trial judge found the appellant guilty of
    sexual assault and sexual interference in relation to the laundry room
    incident.
[1]
Among other things, he concluded that if there was any truth to the appellants
    assertions that he did not commit these offences or that the laundry room conversation
    was awkward, the appellant would have at least considered one of three courses
    of action, including telling C.S. about his conversation with the complainant.

[7]

On behalf of the appellant, duty counsel argued
    that the trial judge erred in his credibility analysis by failing to advert to
    material evidence when assessing the appellants credibility. In particular, he
    submits that the trial judge failed to advert to the appellants plausible
    explanation concerning why he did not tell C.S. about the laundry room conversation.

[8]

For the reasons that follow, I would allow the
    appeal, set aside the conviction and order a new trial.  Given this
    disposition of the appeal, it is unnecessary that I address the oral arguments
    advanced by the appellant.

B.

background

[9]

To provide context for my review of the trial
    judges reasons, I will briefly set out some of the evidence he reviewed concerning
    the parties living arrangements, the appellant, the complainant, the two
    incidents and a Facebook conversation between the complainant and the appellant
    that preceded the charges. Although the appellant was acquitted of the hotel
    incident, the trial judges analysis of the hotel evidence is a component of
    his overall credibility analysis. I will also review the appellants evidence
    concerning why he did not tell C.S. about the laundry room conversation.

(1)

The parties living arrangements

[10]

In March 2009, C.S. invited the appellant to
    move into a house with her, another of her brothers and the complainant. The
    appellant, C.S. and C.S.s other brother all had upstairs bedrooms; the
    complainant had a curtained-off bedroom in the basement near the laundry room.

(2)

The appellant

[11]

The appellant was working for a trucking company
    when he moved in with C.S. and the complainant. He was fired from that job in
    August 2009 and remained unemployed for a few weeks. In December 2009, the
    appellant moved to Ottawa abruptly without giving notice that he was leaving. Following
    the appellants departure, C.S. cashed one of his cheques from his employer.
    Although she left the appellant a note, he called the police. The police
    investigated but did not lay charges. The appellant eventually recovered the
    amount of the cheque from his employer by telling his employer the cheque had
    been stolen.

(3)

The complainant

[12]

The complainant turned 14 at the end of July
    2009. She suffered from depression as a child and, prior to the incidents at
    issue, was diagnosed with bi-polar disorder and anti-social personality
    disorder.

[13]

Shortly before the hotel incident, the
    complainant began taking a new medication that made her drowsy. During
    cross-examination, she acknowledged that if she did not take her medication,
    her judgment could become impaired, she could become hyperactive and could possibly
    experience hallucinations.

(4)

The hotel incident

[14]

In July 2009, the appellant, C.S. and the
    complainant went on a road trip to Sault Ste. Marie. They stopped on the way
    and picked up C.S.s nephew, D. The foursome stayed in Sault Ste. Marie in one
    hotel room for two nights. The complainant described the hotel room as
    containing a bathroom to the right of  the entrance and then two double beds on
    the right side of the room. The complainant and her cousin planned to share one
    bed, with the appellant and C.S. sharing the other. However, the sleeping
    arrangements did not proceed as planned.

[15]

At trial, C.S., the complainant, and the
    appellant provided conflicting accounts of the sleeping arrangements. C.S.
    testified that the appellant slept on the floor both nights. The complainant
    testified that on the second night, her mother moved from the first bed next to
    the bathroom to the second bed, and the appellant fell onto the floor between
    the first bed and the bathroom wall. The complainant moved to the now-empty
    first bed. The appellant testified that on the first night, he slept on the
    floor between the bed and the bathroom wall. On the second night he slept in a
    bed with C.S.

[16]

The complainant asserted that the appellant
    sexually assaulted her during the second night of the trip. According to her,
    during the night the appellant began to play with her hand. Then he got up on
    the bed and inserted his finger into her vagina. The appellant denied that any
    sexual misconduct occurred. When the complainant got into the bed next to him,
    he attempted to annoy her by making various noises and she attempted to hit him
    on the head.

(5)

The laundry room incident

[17]

The complainant and the appellant both testified
    that on an occasion when the appellant was picking up his laundry the
    complainant told the appellant that she was thinking about boys and sex. She
    told the appellant that she horny. Both also said the appellant told the
    complainant to finger herself. The complainant testified that she began to
    finger herself and asked the appellant if he wanted to help. She said he
    inserted his finger into her vagina and performed oral sex on her. When she
    asked him to stop, he stopped. The appellant denied touching the complainant.

(6)

The Facebook exchange that preceded the charges

[18]

Between December 2009 and July 2010, the
    appellant and the complainant were in contact on Facebook. In July 2010, they
    had a Facebook exchange about sex. Following that exchange, the complainant
    contacted the police and alleged that the appellant had sexually assaulted her
    on two occasions in 2009.

(7)

The appellants explanation concerning why he
    did not tell C.S. about the laundry room conversation

[19]

During cross-examination, the Crown challenged
    the appellant over his failure to inform
C.S. about the laundry room
    conversation. The appellant explained that he was concerned that telling C.S
    would cause a big commotion, similar to a previous argument in which the
    complainant threatened to kill herself and harm other people:

Q.      You never say to [C.S.], you know, your daughter [N.S.]
    said this really inappropriate thing to me yesterday before?

A.      No, I, I didnt.

Q.      Now, you talked to [C.S.] about other sexual stuff. You
    told us yesterday all sorts of sexual things that you talked to [C.S.] about [N.S.],
    but this was not the thing that you thought you should mention to [C.S.]?

A.      Well, [C.S.] said it to me that getting her a dildo.

Q.      But never in your concern for [N.S.]s well-being do
    you  Im assuming you had concern for her well-being. Am I right to assume
    that?

A.      Yes.

Q.      You never turned to [C.S.] and said, you know, Your 13
    year old child just essentially propositioned me sexually?

A.      I did not think of it at that time, because if I would
    have said something, big argument and who, who knows what [N.S.] would have
    done to herself.

Q.      So you kept it a secret for [N.S.]s benefit?

A.      Well, theres  yes, because Because there were times
    where something will  like, for instance, with the naked pictures on Facebook,
    that apparently someone else posted of [N.S.].

Q.      So thats something were never heard about.

A.      But, you see, like I said, at that time when that
    happened there was a big argument and big commotion between [C.S.] and [N.S.],
    and [N.S.] was, like, you know, shes going to go kill herself and harm other
    people. So, like, this would have been even worse.

Q.      So you decide youre going to keep it a secret?

A.      From [C.S.], yes.

C.

the trial judges
    reasons

[20]

After reviewing the evidence, the trial judge
    turned to his analysis. He noted this was a credibility case and that the
    principles in
R. v. W.(D.)
[2]
apply. He set out his findings concerning each incident separately.

[21]

Concerning the hotel incident, at para. 97 of
    his reasons, the trial judge said he did not find the [appellants] evidence
    to be believable as there [were] credibility problems in [the appellants]
    evidence as a whole. However, although he was satisfied there were some form
    of interplay between the appellant and the complainant during the night, at
    para. 98 of his reasons, he concluded that both [the appellants] evidence and
    the evidence taken as a whole raise[d] a reasonable doubt as to whether the
    interactions between the complainant and [the appellant] included a sexual
    assault or sexual touching.

[22]

The trial judge gave four reasons for this
    conclusion:

·

the evidence of the sleeping arrangements in the
    hotel room was unclear;

·

the complainants explanation for why the
    appellant stopped the assault was not clear and consistent;

·

it was possible that the new medication that the
    complainant had started was affecting her memory;

·

overall the details were not clear concerning
    what happened and when on the trip to Sault Ste. Marie.

[23]

Concerning the laundry room incident, at para.
    102 of his reasons, the trial judge said he did not believe the appellants
    evidence and that it did not raise a reasonable doubt for the following reasons:

·

the appellants description of his relationship
    with the complainant was internally inconsistent: on some occasions he said he
    wanted to be an inspiration to her while on other occasions he sought to
    minimize the amount of time he spent with her;

·

the appellants evidence about his employment
    situation was not completely candid  this, too, was an attempt to minimize the
    amount of time he spent with the complainant;

·

in general, the appellant attempted, in his
    evidence, to make things sound more favourable to him than they actually were;
    and

·

the appellant gave evidence about the
    complainant and her cousin passing notes in the car on the way home from Sault
    Ste. Marie, which the complainant and C.S. denied, in an attempt to demonstrate
    that the complainant was involved with her cousin.

[24]

At para. 103 of his reasons, the trial judge
    said there were other aspects of the appellants testimony that supported his rejection
    of the appellants evidence. However, as they also involved the complainants
    testimony, they were best dealt with in his analysis of whether the evidence,
    taken as a whole, raised a reasonable doubt.

[25]

The trial judge then turned to this question whether
    the evidence, when considered as a whole, raised a reasonable doubt. He began
    by observing, at para. 105, that the complainants credibility was enhanced by
    her evidence about the Facebook exchange whereas the appellants credibility
    was weakened. This was because the complainant acknowledged that the printed
    copy of the Facebook exchange adduced at trial was incomplete whereas the
    appellant initially attempted to avoid acknowledging he was involved in the
    exchange.

[26]

With respect to the specifics of the laundry
    room incident, the trial judge observed at para. 106, that the complainant and
    the appellant agreed on many aspects of the event. It was insignificant that
    the complainant and appellant described the timing of the laundry room incident
    differently. While they pointed to different months, both described the
    incident as occurring at the end of the summer, in either August, according to the
    complainant, or September, according to the appellant.

[27]

At paras. 107  108, the trial judge set out a
    specific basis for rejecting the appellants evidence concerning the laundry
    room incident and for accepting the complainants evidence beyond a reasonable
    doubt:

On cross-examination, [the appellant] stated
    that having a conversation with the Complainant about the fact that she was
    horny would have been awkward. However he did not take any steps to try and
    deal with this conversation. Specifically, he did not:

a)

Tell C.S. about the conversation, in spite of the fact that he had a
    relationship with C.S. in which he would discuss issues that C.S. was having
    with her daughter.

b)

Stop having contact with the Complainant because of the awkwardness
    of this conversation.

c)

Tell her that her comments [were] inappropriate because he is her
    uncle and she is only 14 years old.

If there was any semblance of reality to [the
    appellants] statement that he did not perform digital penetration or oral sex
    on the Complainant or that he found a conversation with the Complainant about
    sex awkward, then it is likely he would have at least thought about taking
    one of the steps. When these facts are considered against the backdrop of the
    evidence as a whole, I am of the view that the fact that the assault took place
    in the laundry room is proven beyond a reasonable doubt.

[28]

The trial judge then went on, at para. 109 of
    his reasons, to identify an aspect of the complainants evidence that
    reinforced his finding of guilt:

My conclusion is enhanced by the exchange that
    [the appellants] counsel had with the Complainant near the end of her second
    cross-examination. In that exchange, the Complainant candidly acknowledges
    that she was trying to get [the appellant] to participate in sexual activities
    with her, and that she succeeded in doing so.

D.

the positions of the
    parties on appeal

(1)     The appellant

[29]

On behalf of the appellant, duty counsel argued
    that lynchpin of the trial judges reasons for rejecting the appellants
    evidence concerning the laundry room incident is found at paras. 107 and 108 of
    his reasons.

[30]

As set out above, in those paragraphs, the trial
    judge noted that the appellant testified that having a conversation with the
    complainant in which she said she was horny was awkward. Nonetheless, the
    appellant failed to do anything about the conversation, including telling the
    complainants mother about it, breaking off contact with the complainant or
    telling the complainant her comments were inappropriate. The trial judge concluded
    that if there was any truth to the appellants assertion that he did not engage
    in sexual misconduct with the complainant or that he found their laundry room
    conversation awkward, the appellant would have at least considered one of those
    three courses of action.

[31]

Duty counsel submits that in reaching this
    conclusion, the trial judge failed to consider the whole of the evidence and
    therefore materially misapprehended the evidence. In particular, the trial
    judge failed to advert to the appellants explanation that he did not tell C.S.
    about the conversation because he was concerned that a big commotion would
    ensue and that the complainant might harm herself or others as a result.  Given
    the complainants history of mental illness and her evidence about being
    bullied, duty counsel submitted that the appellants explanation was plausible.
    Moreover, the trial judges failure to advert to, or make any findings
    concerning, the appellants explanation undermines what was the fundamental
    basis for rejecting the appellants evidence concerning the laundry room
    incident. Although the trial judge gave other reasons for rejecting the
    appellants evidence, paras. 107 to 108 were clearly the lynchpin of his
    credibility analysis concerning the laundry room incident.

(2)     The Crown

[32]

The Crown disputes duty counsels assertions
    that paras. 107 to 108 formed the lynchpin of the trial judges credibility findings
    concerning the laundry room incident. The trial judge gave many reasons for not
    accepting the appellants evidence and had already made it clear, at paras. 102
    and 103 of his reasons, that he rejected the appellants evidence.

[33]

In any event, the Crown submits that any failure
    to advert to the appellants explanation concerning why he did not tell C.S.
    about the laundry room conversation does not amount to a misapprehension of the
    evidence constituting reversible error. When making credibility findings, a
    trial judge need only explain the basis of his or her findings. Trial judges
    are not obliged to refer to every explanation advanced by an accused person
    when making findings of credibility.

E.

Discussion

[34]

I agree that paras. 107 to 108 of the trial
    judges reasons were the lynchpin of his credibility findings concerning the
    laundry room incident. I also agree that by making those findings without
    referring to the appellants explanation for not telling C.S. about the
    incident, the trial judge erred by failing to consider the whole of the
    evidence and materially misapprehending the evidence.

[35]

As a starting point, I reject the Crowns
    submission that, before reaching paras. 107 to 108, the trial judge had already
    rejected the appellants evidence at paras. 102 and 103. Viewed in isolation,
    paras. 102 and 103 may appear to reflect a rejection of the appellants
    evidence. However, unlike paras. 107 to 108, the reasons given at that stage
    for purportedly rejecting the appellants evidence were general in nature and
    seem to apply to the appellants evidence as a whole rather than to either of
    the specific incidents.

[36]

More importantly, in the opening section of
    para. 98 of his reasons, the trial judge stated that the [appellants]
    evidence and the evidence taken as a whole raised a reasonable doubt
    concerning whether the interplay between the complainant and the appellant
    during the hotel incident included a sexual assault or sexual touching. In
    itemizing his reasons for this finding, the trial judge noted that the evidence
    concerning the sleeping arrangements in the hotel room was sufficiently
    unclear that he could not determine with any level of certainty who was
    sleeping where on each of the two nights. Given that C.S.s evidence supported
    the complainants assertion that the appellant slept on the floor the second
    night, the trial judge must have relied, at least in part, on the appellants
    evidence. Had the trial judge rejected all of the appellants evidence, then
    there would be no dispute as to the sleeping arrangements.

[37]

Thus, although the trial judge may not have
    believed the appellants evidence, at para. 98 of his reasons, he acknowledged
    that, at least in relation to the hotel incident, the appellants evidence
    contributed to reasonable doubt.

[38]

In these circumstances, the trial judges
    general credibility findings, set out at paras. 102 and 103 of his reasons,
    cannot be read as a rejection of the whole of the appellants evidence. As I
    have said, at para. 98 of his reasons, the trial judge relied on at least part
    of the appellants evidence to find reasonable doubt.

[39]

Two additional considerations suggest that
    paras. 107 to 108 are the lynchpin of the trial judges credibility findings
    concerning the laundry room incident. First, the facial inconsistency between
    paras. 102 and 103 and para. 98 of the trial judges reasons undermines the
    force of the statements made at paras. 102 and 103. Second, in contrast to the
    general findings made at paras. 102 and 103, paras. 107 to 108 relate
    specifically to the laundry room incident.

[40]

I turn now to the significance of the trial
    judges failure to refer to the appellants evidence concerning why he did not
    tell C.S. about the laundry room incident.

[41]

Where a verdict is not unreasonable, an appeal
court must next
    determine whether an alleged misapprehension of evidence occasioned a
    miscarriage of justice under s. 686(1)(a)(iii) of the
Criminal Code
.
    To constitute a miscarriage of justice, the trial judge must have misapprehended
    evidence going to the substance of the evidence material to the trial judges
    reasoning process that resulted in conviction:
R. v. Lohrer
,

2004
    SCC 80, [2004] 3 S.C.R. 732, at para. 4.

[42]

To
    succeed on an appeal alleging misapprehension of evidence, the appellant must
    show two things.

[43]

First,
    the appellant must show that the trial judge did in fact misapprehend the
    evidence in that he or she: (1) failed to consider evidence relevant to a
    material issue; (2) was mistaken as to the substance of the evidence; or (3)
    failed to give proper effect to the evidence:
R. v. Morrissey
(1995),
    22 O.R. (3d) 514 (Ont. C.A.), at pp. 538-540.

[44]

Second,
    the appellant must show that the trial judges misapprehension of the evidence was
    central to the trial judges reasoning. The misapprehension must be
    substantial, material, and play an essential role in the decision to convict:
Morrissey
,
    at pp. 538-540.  This can include evidence that goes to elements of the crime
    charged
[3]
,
    assessments of credibility
[4]
,
    and proof beyond a reasonable doubt, so long as the misapprehension was
    essential to the conviction.

[45]

With
    regard to credibility assessments, only where the assessment is central to the
    decision to convict and only where an alleged misapprehension is central to
    that credibility assessment can there a case for miscarriage of justice.
[5]


[46]

Where
    such an alleged misapprehension involves a failure to allude to specific
    evidence, the claim can only succeed if the failure to allude to evidence
    demonstrates that the trial was unfair and the verdict was not a true verdict:
Morrissey
, at pp. 538-540.

[47]

In
    this case, the central issue in relation to the laundry room incident was
    credibility. And while the trial judge gave several reasons for at least
    purportedly rejecting the appellants evidence, and therefore concluding it did
    not raise a reasonable doubt, for the reasons I have explained, paras. 107 to
    108 of his decision are the lynchpin of his credibility assessment in relation
    to that incident.

[48]

In
    those paragraphs, the trial judge said that had there been any air of reality
    to the appellants evidence that he did not engage in sexual misconduct or that
    he found the laundry room conversation awkward, the appellant would have at
    least considered taking one of three steps. Those steps were telling C.S. about
    the conversation, ceasing conduct with the complainant or telling her that her
    comments were inappropriate.

[49]

As
    a starting point, the appellant never specifically described the conversation
    as awkward. More importantly, in reaching this conclusion the trial judge did
    not refer to the appellants explanation that he did not tell C.S. about the
    laundry room conversation out of concern that it would have led to a
    commotion between the complainant and her mother, which could have, in turn,
    caused harm to the complainant. Having regard to the complainants own evidence
    about her mental health, the appellants explanation was not implausible on its
    face. However, nowhere in his reasons did the trial judge refer to the
    appellants explanation. And although the explanation was given in response to
    a specific question concerning why the appellant did not speak to C.S., it was
    also capable of explaining why the appellant may not have adopted the other
    courses of action to which the trial judge referred.

[50]

The trial judge gave lengthy reasons in which he summarized and
    analyzed the relevant evidence. Considered in this light, and given the facial
    plausibility of the appellants explanation, in my view, the failure of the
    trial judge to refer to this evidence constitutes a misapprehension of the
    evidence giving rise to a miscarriage of justice. The fact that the trial judge
    gave additional reasons at paras. 105 and 109 explaining why he found the
    complainant credible, and concluded at para. 105 that the appellants
    credibility was weakened by the Facebook evidence does not detract from this
    conclusion. Paragraphs 107 to 108 were the lynchpin of the trial judges
    reasons for rejecting the appellants evidence. The trial judges failure to
    refer to the appellants evidence explaining why he did not act in the manner
    the trial judge would have anticipated undermines the logic and cogency of the
    trial judges reasoning.

F.

disposition

[51]

Based on the foregoing reasons, I would
    allow the appeal, set aside the conviction and order a new trial.

Released:

AH                                         Janet
    Simmons J.A.

NOV -9 2017                          I agree Alexandra
    Hoy A.C.J.O.

I agree
    David Brown J.A.





[1]

In his sentencing reasons, the trial judge stayed the sexual
    assault charge arising from the laundry room incident under the principles of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729.  The trial judge
    convicted the appellant of sexual interference in relation to that incident.



[2]

[1991] 1 S.C.R. 742.



[3]
See e.g.
R. v. Harding
, 2009 BCCA 74, 2009 CarswellBC
    347 at paras. 17-18.



[4]

See e.g.
R v. Bailey

(2009), 4
    W.C.B. (2d) 496 at paras. 37-41.



[5]

See e.g.

Bailey

at
    paras. 37-41.


