



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), (2.1), (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, 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);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

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. S.R., 2022 ONCA 192

DATE: 20220308

DOCKET: C68687

van Rensburg, Nordheimer and
    George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.R.

Appellant

Maija Martin, for the appellant

Mark Luimes, for the respondent

Heard: January 31, 2022 by
    video conference

On appeal from the conviction entered on
    January 16, 2020 by Justice Irving W. André of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was found guilty of one count each
    of sexual assault, touching for a sexual purpose and invitation to touching for
    a sexual purpose. The trial judge conditionally stayed the sexual assault count
    under
Kienapple
, and entered convictions on the other two charges. The
    appellant appeals his convictions.

[2]

For the reasons that follow, we allow the
    appeal, set aside the convictions, and direct a new trial.

[3]

The events giving rise to the charges were
    alleged to have occurred in 2015 and 2016 when the complainant, M.B., was eight
    and nine years old. She had been attending karate classes at a martial arts gym
    or dojo. The appellant was 60 years old at the time, and had been her
    instructor for a couple of years. M.B. alleged several instances of
    inappropriate touching by the appellant at the gym. M.B. eventually complained
    to her father and reported the incidents to the police. The appellant was
    arrested and charged the same day.

[4]

M.B. was 12 years old at the time of the trial.
    Her police statement was introduced in evidence under s. 715.1 of the
Criminal
    Code
, and she testified. M.B.s father and the appellant also testified.

[5]

M.B. testified that, when she and the appellant were
    alone, the appellant had on five or six occasions removed his pants and
    underwear and exposed his penis to her in the practice area, and on one
    occasion he told her to grab his penis in order to throw him. She testified
    that the appellant had reached under her top and tickled her breast while the
    other students were on a water break, and that, on another occasion, he had looked
    inside her pants in the girls change room during a water break.

[6]

The appellant testified through an interpreter.
    He denied that he had touched M.B. inappropriately, that he had ever taken off
    his clothes in front of her, or that he had exposed his penis and invited her
    to touch it. He testified that he was never alone with M.B., who was a member
    of a class with several students, and that there was a glass door, which was
    always open, but no curtain between the gym area and the room where parents
    would wait for their children. He also initially testified that he had a good
    relationship with M.B.s father, but he went on to recount various
    disagreements they had, including a confrontation over M.B.s sister eating
    candy in the dojo, which he claimed had taken place the day that M.B.s father
    confronted him with M.B.s allegations.

[7]

The trial judge stated that he disbelieved the
    appellants evidence and that it was incapable of raising a reasonable doubt
    in the Crowns case. He found M.B.s evidence both credible and reliable, and he
    concluded that, based on the totality of the evidence that he accepted, the
    Crown had proven the offences beyond a reasonable doubt.

[8]

The appellant raises three grounds of appeal,
    which he contends individually or together warrant a reversal of his
    convictions and a new trial: (1) the trial judges assessment of his
    credibility was based on material misapprehensions of his evidence; (2) the
    trial judge did not assess the credibility or reliability of the evidence of M.B.s
    father, and did not consider whether parts of his evidence, together with the
    appellants evidence, were capable of raising a reasonable doubt; and (3) the
    trial judge erred in concluding that M.B. had no motive to lie, and in treating
    this as affirmative evidence that she was telling the truth.

[9]

We turn now to the first ground of appeal. The
    appellant asserts that the trial judge misapprehended his evidence in three
    respects. The first two misapprehensions, which are conceded by the Crown, are
    relevant to the appellants opportunity to commit the offences, which was a
    live issue at trial.

[10]

First, the trial judge wrongly believed that the
    Crown had established an inconsistency in the appellants evidence stemming
    from his statement to the police about whether there was a curtain separating
    the practice area from the waiting area. The trial judge stated:

[The appellant] testified that he never had a
    curtain in the practice area that restricted the view of parents of the dojo.
    In cross-examination the Crown put to him that he told the police that there
    was a curtain. When confronted by this discrepancy, [the appellant] replied
    regarding his statement to the police that, I was nervous. My brain shut
    down.

[11]

In fact, there was no such exchange. The
    appellant testified that there was no curtain in the studio, which was inconsistent
    with M.B.s evidence, but consistent with that of her father. While the
    appellant provided a statement to the police at the time of his arrest, there
    was no evidence that he spoke about a curtain. The appellant was not confronted
    with any apparent inconsistency on this point. He did state that he was nervous
    and that his brain shut down while speaking to police, but this was not in relation
    to comments made about a curtain.

[12]

The second misapprehension of the appellants
    evidence was in the trial judges statement that the appellant testified in-chief
    that he did not keep track of which students did not attend his classes, but
    stated in cross-examination that he did. Again, the trial judge was pointing
    to an inconsistency in the appellants evidence that did not exist. The appellant
    did not testify that he did not keep track of the students attendance: his
    evidence in chief was that the number of students in his classes fluctuated,
    and in cross-examination he testified that he knew how many students were there
    because he had papers for them.

[13]

The third alleged misapprehension of the
    appellants evidence was with respect to the appellants failure to inform the
    police about his disagreements with the complainants father. The trial judge
    stated that the appellant conceded that he never told the police about the
    problem he testified that he had with M.B.s father concerning the fathers
    distribution of religious flyers at the gym, and replied that the police never
    asked him about that. The trial judge identified this as a significant
    omission given the appellants testimony that he had this problem with M.B.s
    father for a long time. However, the appellant gave a number of reasons why he
    had not told the police about the problem he had with the flyers, including that
    his English was not good. In his re-examination, he was asked whether the
    police had asked him about his relationship with the father, and he responded
    no.

[14]

We agree that, in each of these instances, the
    trial judges misstatements of the appellants testimony reveal a
    misapprehension of the evidence. However, a
mere
    misstatement or inaccuracy in a trial judge's treatment of the evidence does
    not constitute a reversible error. The test for concluding that a misapprehension
    of evidence has resulted in a miscarriage of justice, such as to warrant
    setting aside a conviction, is stringent.
The court will
    interfere only where the misapprehension is of
substance
rather than
    detail, is
materia
l rather than peripheral to the trial judges
    reasoning, and the error plays an
essential part in the reasoning process
,
    not just of the narrative:
R. v. Cloutier
, 2011
    ONCA 484, 272 C.C.C. (3d) 291, at para. 60.

[15]

Where the alleged misapprehension is respecting
    evidence used to assess credibility, the decision whether a miscarriage of
    justice has occurred turns on the extent to which the misapprehended evidence
    played a role in the trial judges credibility assessment:
R. v. Alboukhari
, 2013 ONCA 581, 310
    O.A.C. 305, at paras. 36-37. If the trial judge mischaracterized parts of the
    accuseds evidence that were central to the assessment of credibility, there is
    more likely to be a miscarriage of justice:
Alboukhari
, at para. 38, citing
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R. 5, and
Whitehouse
    v. Reimer
(1980), 34 A.R. 414 (C.A.).

[16]

The appellant submits that the trial judges
    misapprehensions of his evidence were substantial and material, in that they
    played a central role in his credibility assessment. The Crown contends that,
    while there were two errors, they were in respect of only secondary aspects of
    the trial judges credibility assessment, and that the trial judges rejection
    of the appellants evidence and his conclusion that it did not raise a
    reasonable doubt are firmly supported by other aspects of the trial judges
    analysis.

[17]

In our view, the trial judges misapprehensions of
    the appellants evidence, and in particular the first two, which are conceded
    by the Crown, were substantial errors that played a central role in the trial
    judges assessment of the appellants credibility, and as such in his reasoning
    process in finding the appellant guilty. Since this was a case that turned on
    credibility, the misapprehensions resulted in a miscarriage of justice.

[18]

In coming to this conclusion, we have considered
    and rejected the Crowns submission that the misapprehensions of the
    appellants evidence were minor, and therefore not substantial. We also disagree
    with the Crowns submission that the trial judges misapprehensions of the
    appellants evidence did not form part of his reasoning about the appellants
    credibility, that they were, according to the Crown, on a secondary list, and
    that the trial judges finding that the defence evidence was incredible was
    driven instead by his wholesale rejection of the appellants evidence about the
    actions of M.B.s father (as being a possible motive for the allegations).

[19]

The misapprehensions of the appellants evidence
    did not involve peripheral or inconsequential matters, and they were central to
    the trial judges credibility analysis. The trial judges credibility
    assessment did not, as the Crown suggests, turn on the trial judges rejection
    of the appellants evidence about the actions of M.B.s father. While the trial
    judge used the word incredible to describe the appellants evidence about the
    actions of M.B.s father, this was not, as the Crown argues, the trial judges rejection
    of the core defence narrative. Rather, the trial judge rejected a specific
    aspect of the appellants evidence, that related to a possible motive for the
    complainant to have lied.

[20]

Indeed, after addressing this point, the trial
    judge immediately stated that there were other aspects of the appellants
    testimony that made him seriously question his credibility. After listing four
    such aspects, including the three misapprehensions identified above, the trial
    judge stated:

Viewed in isolation, these concerns may not be
    regarded as significant. Cumulatively, however, they have led me to disbelieve
    [the appellants] testimony and to conclude that his testimony is incapable of
    raising a reasonable doubt in the Crowns case.

[21]

Accordingly, the trial judges reasons make it
    clear that his assessment of the appellants credibility depended on all of the
    circumstances he identified, including the evidence he misapprehended, which
    suggested that the appellant had been impeached. This led the trial judge, in
    his
W.(D.)
analysis, to both reject the appellants evidence and to
    conclude that it was incapable of raising a reasonable doubt. For these
    reasons, we are satisfied that this ground of appeal has merit.

[22]

While this is sufficient to allow the appeal, we
    briefly address the remaining grounds of appeal.

[23]

The appellants second ground of appeal, that
    the trial judge failed to address the credibility and reliability of the
    evidence of M.B.s father, has two parts. The first is that the trial judge
    failed to apply a
W.(D.)
analysis to an exculpatory utterance elicited
    as part of the Crowns case: the evidence of M.B.s father that, when he
    confronted the appellant with M.B.s allegation, the appellant responded that
    nothing happened.

[24]

We see no error here. Because the general denial
    by the appellant lacked probative value, the trial judge was not required to
    link this evidence to his
W.(D.)
analysis: see
R. v. P.S.
,
    2019 ONCA 637, at paras. 47 and 53. The minimal relevance of this exchange is underscored
    by defence counsels failure to mention it in closing submissions: see
R.
    v. Frater
, 2020 ONCA 624, at para. 22.

[25]

The second argument on the second ground of
    appeal is that the trial judge erred in not assessing the evidence of M.B.s
    father, when there were contradictions between the evidence of the complainant
    and her father, and the fathers evidence was consistent in certain respects
    with that of the appellant. The trial judge failed to consider, as he was
    invited by the appellants trial counsel to do, whether the evidence of M.B.s
    father, together with the appellants evidence, raised a reasonable doubt.

[26]

The Crown contends that the trial judges treatment
    of the evidence of M.B.s father was sufficient and responsive to the issues in
    the trial. The trial judge reviewed the evidence of M.B.s father in his
    reasons and adverted to it in his analysis of M.B.s credibility. There was no
    obligation for the trial judge to resolve every discrepancy in the evidence.

[27]

The appellant points to aspects of the evidence
    of M.B.s father that contradicted M.B.s evidence and were consistent with his
    own: whether there was a curtain between the practice and waiting areas (M.B.
    said there was, while her father and the appellant said that there was not);
    whether the appellant had left M.B. with other parents when her father was late
    to pick her up (M.B. denied this had happened, while her father and the
    appellant agreed that it had happened occasionally); whether M.B.s sister had
    been in the practice area (M.B. said she was never there, while her father and
    the appellant said she had been there and ran around); and whether M.B.s
    father sometimes stayed to watch the lessons (M.B. said no, while her father
    and the appellant were consistent that this sometimes happened).

[28]

These aspects of the evidence of M.B.s father
    might or might not have played a role in the credibility assessments of both
    the appellant and the complainant. In our view, however, it was an error for the
    trial judge to have failed to conduct such an assessment. Before rejecting the
    appellants evidence and concluding that it was incapable of raising a
    reasonable doubt, the trial judge ought to have referred to and assessed the
    credibility of the evidence of M.B.s father. While a trial judge is not
    required to deal with every piece of evidence in a trial, where, as here, there
    are aspects of the evidence of a witness that contradict the complainants
    evidence and support the evidence of the accused, the trial judge should
    demonstrate that he has taken such evidence into account in his
W.(D.)
analysis: see
R. v. Smith
, 2020 ONCA 782, 69 C.R. (7th) 126, at paras.
    12 and 26-28;
R. v. C.G.
, 2021 ONCA 809, 407 C.C.C. (3d) 552, at
    paras. 57-61; and
R. v. Clouthier
, 2012 ONCA 636, at paras. 12-16.

[29]

As for the third ground of appeal, the appellant
    contends that the trial judge, in convicting him, improperly relied on what he
    found to be a proven absence of motive for M.B. to have lied. The appellant
    points to two passages in the trial judges reasons: first, where the trial
    judge stated, there is an absence of motive for M.B. to have lied about the
    allegations, and later when he said, I cannot identify any evidence that M.B.
    had a motive to lie. At best, there was an absence of a proven motive, which
    could have been a factor in assessing her credibility, so long as it did not
    drive the analysis:
R. v. Ignacio
, 2021 ONCA 69, 400 C.C.C. (3d) 343, at
    para. 59, leave to appeal refused, [2021] S.C.C.A. No. 127.

[30]

However, a fair reading of the trial judges
    reasons suggests that he rejected the motive alleged by the defence, and he
    considered the apparent absence of M.B.s motive to lie as a factor in
    assessing her credibility. This is apparent from his citation of
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412,
immediately following the first impugned passage, and the acknowledgment later
    in his reasons that the complainant could have had some hidden motivation. As
    in
Ignacio
, at para. 35, the trial judge was required to consider
    motive to fabricate due to the defence allegation that the complainant had a
    motive to fabricate. In its closing submissions, Crown counsel argued that,
    although it had not proven an absence of motive beyond a reasonable doubt, the
    absence of evidence of motive was a factor to be considered in the overall
    assessment of the evidence. After looking at the evidence, and rejecting the
    appellants account of his confrontation with M.B.s father over her sister
    eating candy in the dojo, the trial judge was entitled to conclude that there
    was no evidence of a motive to fabricate, and then to consider this as one
    factor in his assessment of the complainants credibility. Contrary to the
    appellants submission, the trial judge did not mistake a lack of evidence of a
    motive for a proven absence of motive to lie.

[31]

For these reasons we allow the appeal, set aside
    the appellants convictions, and direct a new trial on all of the charges.

K.
    van Rensburg J.A.

I.V.B.
    Nordheimer J.A.

J.
    George J.A.


