



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. W.M., 2020 ONCA 236

DATE: 20200324

DOCKET: C65108

Strathy C.J.O., Miller and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.M.

Appellant

W. John McCulligh, for the appellant

Caitlin Sharawy, for the respondent

Heard: March 6, 2020

On appeal from the conviction entered on
    May 30, 2017 by Justice John R. Sproat of the Superior Court of Justice.

Strathy C.J.O.:

[1]

The appellant appeals his convictions for sexual
    interference and sexual assault of his daughter, who was approximately four
    years and ten months of age at the time of the offences. A stay was entered in
    relation to the second count. He was sentenced to four years imprisonment and
    ancillary orders were made.

[2]

For the reasons that follow, I would allow the
    appeal and order a new trial.

The Evidence

[3]

The childs mother testified that the incident
    came to light after the Childrens Aid Society (CAS) informed her that the
    child had engaged in sexualized behaviour at school. The mother had some
    knowledge of her husbands past, discussed below, which prompted her to ask her
    daughter, did daddy touch your vagina? The child replied, yes. The mother told
    the child that if her father ever touched her again, she should run and get
    her. The mother ultimately notified the police, and the appellant was charged.

[4]

Shortly after the alleged incident, the child
    made a video statement. It was admitted in evidence at trial and she adopted it
    as true. She said that her father had touched her vagina with his hand, over
    her pyjamas, while he was standing beside her bed. She claimed that she had
    screamed for her mother, who came into the room and said, Did dad touch your
    vagina again? She replied yes.

[5]

In the course of trial preparation, the child
    disclosed a second incident in which she alleged that the appellant had touched
    her vagina with a spoon or a round object. At trial, she said that she was in
    bed sleeping when the appellant, who was standing beside her bed, pulled down
    her pyjamas and touched her vagina. She did not see the spoon, but the object
    was metal, smooth, and circle-shaped. She said that the spoon incident took
    place when she was five years old and that it occurred before the touching with
    the hand. She said that she forgot to tell the officer who took her statement
    about the touching with the spoon.

[6]

There were some inconsistencies in the
    complainants evidence. This was not surprising in view of the childs age when
    the events were alleged to have occurred, and the passage of about two years
    between those events and the trial. There were also some inconsistencies
    between the mothers evidence and the childs.

[7]

The appellant testified and denied the
    allegations.

[8]

The trial judge admitted similar fact evidence
    of offences that the appellant pleaded guilty to in 1998:

a.

between 1985 and 1987, when he was 13 to 15
    years old, he sexually assaulted a three to five-year-old child he was
    babysitting, lifting her night clothes and touching her vagina;

b.

between 1995 and 1997, when he was 23 to 25
    years old, he sexually assaulted a five to seven-year-old child, going into her
    bedroom while she was sleeping, exposing her body and touching her vagina.

[9]

In addition to convictions for the offences
    above, the appellant testified that he was convicted in 2000 for dangerous
    operation of a motor vehicle, possession of proceeds of crime, and break and
    enter. He was convicted again in 2008 for possession of a weapon, assault with
    a weapon, and theft under $5,000.

[10]

The appellant testified that he himself had been
    sexually abused as a child while in the care of the CAS. He said that he knew
    what he was doing was wrong at 13-15 years old, but he did not appreciate just
    how wrong it was. He said that he better understood the wrongfulness of his
    actions in 1995-97 when he was 23-25 years old, but nevertheless did what he
    knew to be wrong because of the sexual gratification he received. However, the
    1998 conviction drove home for him how wrong it was. He testified that he was
    a changed man as of 1998 because of his better understanding and his resolve
    to change.

[11]

The appellant testified that he had received sex
    offender treatment while in custody at the Ontario Correctional Institute for
    the 2000 convictions. He testified that prior to commencing the sex offender
    course, he underwent phallometric testing, and his understanding of the results
    was that he was not a pedophile. He also said that the treatment helped him
    learn how to  better understand the feelings of others, to be accountable to
    the victims, and to learn how to empathise, to have victim empathy. He looked
    at his own triggers  and stressors, and why [he] did what [he] did. In
    addition, the appellant testified that as a result of the motor vehicle
    accident that resulted in his 2000 conviction, he had suffered physical injuries
    that affected his ability to get an erection and left him unable to experience
    sexual gratification in the way he had before.

[12]

In cross-examination, the appellant testified
    that he did not have any concerns about re-offending because of: (1) his
    increased appreciation of the wrongness of his actions as a result of the 1998
    conviction and the 2000 sex offender course; and (2) the physiological changes
    in his body as a result of the 2000 motor vehicle accident.

The Trial Judges Reasons

[13]

The trial judge correctly described the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. These principles apply
    to the assessment of evidence in cases of sexual assault and outline the common
    sense approach for assessing the evidence of young children, while at the same
    time respecting the presumption of innocence and the burden of proof in
    criminal cases.

[14]

The trial judge found that the complainant was
    credible, in the sense that she wanted to tell the truth. He found that the
    childs mother did not influence the childs evidence, either intentionally or
    unintentionally, and that the allegations of touching came from the complainant
    and not from her mother. The inconsistencies between the evidence of the mother
    and the child did not cause him to doubt the main points of the childs
    evidence.

[15]

The trial judge noted that the appellants
    cross-examination disclosed aspects of his evidence that were self-serving or
    exaggerated or contradictory. For example, he claimed that he was unable to
    achieve an erection after the motor vehicle accident in 2000, but it was
    pointed out to him that he had been able to father a child, the complainant,
    after that accident. He also initially claimed that he did not realize that
    touching a childs vagina was wrong when he was a young person, but
    acknowledged that the acts were done in private so that he would not be caught
    and ultimately agreed that he knew it was wrong.

[16]

In commenting on the appellants evidence in
    relation to the similar fact evidence, the trial judge observed:

He was asked if he had any concern of
    reoffending after
2008
. He said the sex offender
    treatment and other programs he took at the Ontario Correctional Institute in
2008
were such that he did not have a concern about
    reoffending. [Emphasis added.]

[17]

In assessing the weight of the similar fact
    evidence, the trial judge said:

I accept and take into account that [the
    appellant] received sex offender treatment while he was incarcerated. That
    evidence logically does tend to diminish the significance of the
    situational-specific propensity that [the appellant] had demonstrated in the
    conduct underpinning his convictions for offences in 1985 to 1987, and 1995 to
    1997.

I do note, however, that
implicit in [the appellants] evidence, that he received and
    benefited from sex offender treatment in 2008, is that he still had some need
    of treatment at that time
. He still needed to manage his impulses and
    learn to empathize with victims and learn to recognize triggers and stressors
    that lead to this behaviour. In other words,
the
    situation-specific propensity that demonstrated itself in 1985 to 1987, and
    1990 to 1997 was also present in 2008
. Given that
this
    propensity persisted or at least demonstrated itself over the period 1985 to
    2008
, there is every reason to believe it would still be a factor in
    2015. No one would suggest that any treatment program is a hundred percent
    effective.

So, while I factor the treatment program into
    my analysis, it certainly does not preclude consideration of
the long-standing situation-specific propensity that [the
    appellant] had to touch female children inappropriately
.  The
    significance of similar fact evidence lies in the improbability of coincidence.
    I think there is virtually no chance that coincidence explains [the appellant] having
    a criminal record for touching prepubescent females on the vagina while they
    are in his care and sleeping, and this complainant making the same allegation.
    [Emphasis added.]

[18]

Ultimately, the trial judge did not accept the
    appellants denial of the allegation and stated that the Crown evidence he
    accepted satisfied him of the appellants guilt beyond a reasonable doubt.

Grounds of Appeal

[19]

The appellant raises three grounds of appeal:

1. The trial
    judge erred in his application of
W.(D.)
and misapplied the burden of
    proof;

2. The trial
    judges reasons were insufficient in that they failed to adequately address inconsistencies
    in the Crowns evidence; and

3. The trial
    judge misapprehended the appellants evidence concerning his sexual offender
    treatment and this error had a material impact on the conviction.

[20]

As I would allow the appeal on the third ground,
    I do not find it necessary to address the other two.

Analysis

(1)

Legal Principles for the Misapprehension of
    Evidence

[21]

A new trial is required when the appellant has
    met the stringent standard for determining whether a misapprehension of
    evidence resulted in a miscarriage of justice, as set out in
R. v.
    Morrissey
(1995), 22 O.R. (3d) 514, at p. 541, see also
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. Specifically, the
    misapprehension of evidence must go to substance rather than detail, it must be
    material rather than peripheral to the reasoning, and the errors must play an
    essential part not just in the narrative of the judgment, but in the reasoning
    process resulting in a conviction:
Lohrer
, at para. 2. If the
    appellant can show that the conviction was based on a misapprehension of
    evidence, the appellant is entitled to a new trial even if the evidence, as
    actually adduced at trial, was capable of supporting a conviction:
Morrissey
,
    at p. 541.

[22]

The impact of a misapprehension of evidence is
    particularly marked in cases where the principle issue is credibility. In such
    cases, it is essential that the findings be based on a correct version of the
    actual evidence, as wrong findings on what the evidence is destroy the basis
    of findings of credibility:
Morrissey
, at p. 541, citing
Whitehouse
    v. Reimer
(1980), 116 D.L.R. (3d) 594 (Alta. C.A.).

(2)

Application

(a)

The Factual Error

[23]

The trial judges reasons quoted above, at para.
    17, contain a misapprehension of the evidence. The uncontested evidence was
    that the appellant received sex offender treatment in the Ontario Correctional
    Institute while he was in custody in
2000
, not in
2008
. Based on the factual error with respect to the
    date of treatment, the trial judge also found that it was implicit in the
    appellants evidence that he still needed treatment in 2008, ten years after
    his previous offence.

(b)

Impact of the Misapprehension of Evidence

[24]

The misapprehension of evidence affected the
    trial judges reasons for conviction in two interconnected ways: (1) it led the
    trial judge to find that the appellants propensity to offend was likely active
    in 2015, when the offences were alleged to have occurred; and (2) the trial
    judge found, implicitly, that the treatment did not reduce the probative value
    of the similar fact evidence.

(i)

Propensity to Offend in 2015

[25]

The trial judge found the fact that the
    appellant required sex offender treatment in
2008
was evidence that his propensity was still active in
2008
,
    and therefore, the propensity was likely active in 2015, the time of the charged
    offences. This factual error led the trial judge to believe that there was
    evidence of an ongoing propensity that persisted for a 23-year period (from
    1985 to 2008). This mistaken finding of fact factored into the trial judges
    rejection of the appellants evidence that he had benefitted from treatment and
    was confident that he would not re-offend as a result.

[26]

Under the correct timeline, the appellants evidence,
    including his claim of confidence, would have been more credible. Properly
    understood, the evidence demonstrated that the appellant had received sexual
    offender treatment in 2000, within three years of his previous offence in 1998.
    Furthermore, the propensity had not demonstrated itself in the 15 years after
    treatment.

(ii)

Weight of the Similar Fact Evidence

[27]

Second, the factual error affected the weight of
    the similar fact evidence. This is because treatment could be viewed as an intervening
    event that diminished the probative value of the similar fact evidence: see
R.
    v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 132. The trial judge correctly
    recognized this in his reasons, stating that treatment logically does tend to
    diminish the significance of the situational-specific propensity. However, the
    factual error would have impacted the trial judges assessment of treatment as
    an intervening event.

[28]

In analyzing the similar fact evidence, the
    trial judge considered how much time had passed between incidents of
    demonstrated propensity. As discussed, the trial judge reasoned that the
    propensity exhibited in the similar fact offences was still a factor in 2015
because
of the factual error that the appellant received
    sexual offender treatment in 2008, only seven years before. This line of
    reasoning would not have been available on the correct timeline of treatment in
    2000. In actuality, the appellant had received treatment eight years earlier,
    meaning 15 years had passed between treatment and the charged offences 

more than twice as
    long as the trial judge believed. This is a material length of time that would
    have affected the trial judges assessment of the appellants evidence that he
    had benefitted from treatment, and relatedly, the extent to which treatment
    could be considered an intervening event that diminished the probative value
    of the similar fact evidence.

Conclusion

[29]

I am satisfied that the appellant has met the
    stringent standard for determining whether a misapprehension of evidence led
    to a miscarriage of justice. In the present case, the similar fact evidence
    played a significant role in the conviction, as did the trial judges
    discounting of the appellants evidence concerning the effect of the sexual offender
    treatment. The misapprehension of the evidence was material and played an
    essential part in the trial judges reasoning process. In cases predicated on
    credibility, such as this one, it is essential that the findings be based on a
    correct version of the actual evidence:
Morrissey
, at p. 541.

[30]

I would allow the appeal and order a new trial.

G.R.
    Strathy C.J.O.

I
    agree. Trotter J.A.



B.W. Miller J.A. (dissenting):

[31]

I have had the benefit of reading the reasons of
    the Chief Justice and have come to a different conclusion about the materiality
    of the trial judges misapprehension of evidence, which compels a different
    result. As explained below, I do not believe that the trial judges
    misapprehension of evidence played an essential role in the reasoning process
    resulting in the conviction. Accordingly, I would dismiss the appeal.

[32]

As I understand the trial judges reasons,
    nothing in his reasoning turns on the year in which the appellant undertook sex
    offender treatment at the Ontario Correctional Institute. The trial judge
    considered a number of factors in rejecting the appellants testimony and
    determining his guilt beyond reasonable doubt. One of these was the similar
    fact evidence, and I agree that this evidence carried considerable force. But
    several other factors led the trial judge to conclude that elements of the
    appellants testimony were self-serving or exaggerated or contradictory. All
    of these factors undermined the appellants evidence. Conversely, the trial
    judge found the complainant to be credible and reliable, despite the
    inconsistencies in her testimony. The evidence, taken together, convinced the
    trial judge of the appellants guilt beyond reasonable doubt.

[33]

With respect to the similar fact evidence, the
    trial judge drew a powerful conclusion from the appellants prior convictions:
    there is virtually no chance that coincidence explains [the appellant] having
    a criminal record for touching prepubescent females on the vagina while they
    are in his care and sleeping, and this complainant making the same allegation.
    He reached this conclusion, notwithstanding the appellants voluntary
    enrollment in a sex offender treatment program, for two reasons.

[34]

First, he started from the common sense
    assessment that such a treatment program would not be completely effective.
    That is, it could not be asserted that because the appellant took a course for
    sexual offenders, that he would therefore no longer pose a risk of
    re-offending. And indeed the appellant did not assert that. He argued that he was
    a changed man as of 1998, as a result of his convictions for sexual offences.
    On his evidence, it was his new awareness and resolve in 1998, as a result of
    his convictions, that meant he would not re-offend. He testified that the OCI
    course was beneficial, but he did not credit the course with bringing out the
    dramatic change that he said occurred. The trial judge of course rejected the
    appellants evidence that the 1998 convictions wrought the changes he said they
    did.

[35]

Second, the trial judge concluded that because
    the appellant testified that he benefitted from sex offender treatment, then he
    must, at the time he chose to undertake the treatment, still have had a
    propensity towards touching the vaginas of young girls for his sexual
    gratification. If he had no such propensity, the trial judge reasoned, he would
    not have chosen to undertake the sexual offender course.

[36]

From the evidence of the prior convictions and
    that the appellant implicitly acknowledged a propensity towards touching young
    girls for sexual gratification, the trial judge reasoned to a further
    conclusion: that the situation-specific propensity that manifested itself in
    the sexual assaults of 1985-87 and 1990-97  a considerable stretch of time 
    was still operative when the appellant took the course at OCI, which the trial
    judge incorrectly dated to 2008.

[37]

Nothing turns, in my view, on the fact that the
    trial judge misstated the year in which the appellant conceded that he still
    had a propensity towards sexual touching of young girls. It was one data point
    in an extended analysis. Whether it was 2000 or 2008 (as the trial judge
    misstated), the salient point was that it was a long-held propensity (whether
    it was 15 years or 23 years), and the fact of having completed a treatment
    program at OCI (whenever it was completed) did not blunt its significance.

[38]

On appeal, the appellant argues that if the
    trial judge had used the correct date of 2000, the appellant would have
    benefitted from the additional datum that the appellant had not had any negative
    incidents for a 15-year period post incarceration, rather than 7 years. This
    would have bolstered the appellants credibility in arguing that he did not
    commit the offence.

[39]

I do not find this argument persuasive. It was
    not advanced at trial. The appellant did not argue at trial that the length of
    time that had passed since he took the OCI course on sexual assault  and more
    specifically his positive behaviour during that time  blunted the similar fact
    evidence. The fact of having taken the OCI sexual assault course was accepted
    as being capable, as a matter of logic, of diminishing the significance of the
    similar fact evidence. The fact that it did not diminish its significance, in
    the trial judges final analysis, was not due to how little time had passed
    since the course was completed or how long the appellant had been of apparently
    good behaviour. It was because the trial judge doubted the efficacy of the
    course  a course that the appellant himself did not significantly credit for
    making him a changed man and unlikely to re-offend.

[40]

In any event, the appellants conviction did not
    hinge on the similar fact evidence.

[41]

First, the trial judge had ample reason to
    disbelieve the appellant, quite apart from the similar fact evidence. He
    testified that he did not understand the wrongfulness of touching a childs
    vagina because of his own experiences as a victim of sexual assault, but then
    admitted in cross-examination that he knew it was wrong to sexually assault a
    child. He testified that a car accident rendered him unable to sustain an
    erection and experience sexual gratification as before, but conceded in
    cross-examination that, as he had fathered a child since the accident, he could
    indeed sustain an erection. He testified that he told the complainants mother
    about his convictions before they had a child together, which the trial judge
    found to be implausible in the circumstances and contradicted by the mothers
    own testimony that his disclosure was far more general than he claimed.

[42]

Second, the trial judge subjected the
    complainants testimony to scrutiny before accepting her core allegations. He
    found her to be credible in the sense of wanting to tell the truth. He
    determined that her mother did not influence her reporting of the sexual
    assault, whether deliberately or inadvertently. Although her mother asked the
    complainant leading questions about whether her father had touched her vagina,
    she also offered the complainant innocent explanations for her fathers
    behaviour, such as that he was cleaning her. The complainant rejected these
    explanations. The trial judge found the complainants allegations to be
    specific enough to not be figments of her imagination. While the trial judge
    noted several aspects of the complainants evidence that were factually incorrect,
    such as her age at the time of the incidents and her behaviour following the
    incidents, he properly recognized the peripheral nature of these
    inconsistencies, given the complainants age. I reject the appellants
    arguments with respect to the complainants testimony.

[43]

For all of these reasons, I cannot agree that
    the trial judges error meets the test set out in
R. v. Lohrer
, 2004
    SCC 80, [2004] 3 S.C.R. 732. The appellant has not demonstrated that the error
    figured prominently in the reasoning process which led to crucial findings of
    credibility and reliability:
Morrissey
(1995), 22 O.R. (3d) 514, at
    p. 541. Nor has he shown that it played an essential part not just in the
    narrative of the judgment but in the reasoning process resulting in a conviction:
Lohrer
, at para. 2, citing
Morrissey
(1995), at p. 541.

[44]

As the central thrust of the appeal focuses on
    the trial judges misapprehension of the evidence, I would dismiss the appeal.

Released: GS     MAR 24 2020

B.W. Miller J.A.


