



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young person
    as a young person dealt with under this Act.

111. (1)
Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138. (1)
Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985,

(a)       is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)       is guilty of an
    offence punishable on summary conviction.






CITATION:
R. v. A.J.S., 2011
          ONCA 566



DATE: 20110829



DOCKET: C51673



COURT OF APPEAL FOR ONTARIO



Feldman, Blair and Watt J.J.A.



BETWEEN:



Her Majesty The Queen



Respondent



and



A.J.S. (a young person)



Appellant



Gavin S. MacKenzie, for the appellant



Susan Reid, for the respondent



Heard: July 26, 2011



On appeal from conviction entered by Justice Steven Clark of
          the Ontario Court of Justice, dated September 18, 2009 and sentence imposed,
          dated January 18, 2010.



E N D O R S E M E N T





[1]

The appellant, a 13-year-old boy at the time of the
    alleged offences, was convicted of two counts of sexual assault on a five-year-old
    boy. Both the complainant and the appellant testified. The appellant denied the
    offences.

[2]

The appeal against conviction is based on the ground of
    inadequacy of the reasons for judgment. In particular, the appellant submits
    that where the live issue at trial was the credibility and reliability of the
    two main witnesses, the complainant and the appellant, the reasons fail to
    disclose any meaningful explanation for rejecting the appellants evidence.

[3]

The reasons for judgment are almost 55 pages in length.
    The first 34 pages contain a review of the evidence of each witness; in the
    next nine, the trial judge sets out the positions of the parties; this is
    followed by 5 and 1/2 pages of general legal and evidentiary principles
    relevant to the issues in the case, including how to assess the evidence of
    young children and of a defendant who denies the allegations. He also comments
    on the complainants testimony, which he finds to be honest and straightforward
    with only minor inconsistencies from the complainants video statements. The
    last 4 and 1/4 pages constitute the balance of the trial judges findings, in
    which he analyzes the evidence under the framework set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742 (
W.(D.)
).

[4]

The trial judge begins by giving three reasons for
    rejecting the appellants evidence.

[5]

First, the 15-year-old appellant made an unvarnished
    denial, rather than giving an interpretation of what may have happened. On
    this point, the trial judge stated: The Court finds that there is no ring of
    innocence or truth to this but, in fact, a denial of convenience.

[6]

Second, the appellants evidence was inherently
    improbable and implausible. The trial judge explained that he made this
    finding not because he believed the complainant, but because on the whole of
    the evidence, the appellants evidence cannot be true.

[7]

Third, the trial judge was applying common sense and
    everyday experience. In so doing, he stated that he was not considering as a
    factor the appellants silence or his failure to explain himself to the
    complainants parents.

[8]

The trial judge then turned to the second branch of the
W(.D.)
analysis, where he found that
    none of the defence evidence raised a reasonable doubt.

[9]

Finally, on the third branch of the test, the trial
    judge first concluded that the complainants evidence was compelling, with very
    specific details. He also referred to the evidence of the parents as being
    corroborative of the childs evidence, stating that it restore[d] the Courts finding
    and acceptance of the complainants account of what took place. The trial
    judge did not, however, explain how the parents, who were not witnesses to any
    of the alleged events but only heard about them after the fact from the
    complainant, could corroborate the complainants evidence, other than by
    oath-helping.

[10]

The trial judge next addressed two aspects of the
    complainants behaviour and reconciled them with his conclusion that the
    complainant was telling the truth. The first was his change in behaviour,
    including feeling dirty, and being fearful of touching food because his hands
    had touched the genitals of the appellant. The trial judge found that these
    changes constituted a building block to the foundation leading inevitably to guilt
    beyond a reasonable doubt. The second aspect was the timing of the
    complainants disclosure. The trial judge was satisfied that there were good
    reasons for the complainants initial failure to disclose, and that that factor
    did not raise a reasonable doubt.

[11]

The trial judge then concluded that for the stated
    reasons, the case had been proved beyond a reasonable doubt.

[12]

The adequacy of reasons as a basis for appellate
    interference with the verdict of a trial judge has been the subject of a number
    of recent decisions of the Supreme Court of Canada, including:
R. v. Sheppard
, [2002] 1 S.C.R. 869;
R. v. Braich
, [2002] 1 S.C.R. 903;
R. v. Gagnon,
[2006] 1 S.C.R. 621;
R. v. R.E.M.
, [2008] 3 S.C.R. 3; and
R. v. Dinardo
, [2008] 1 S.C.R. 788.

[13]

The reasons must respond to the live issues in the
    case, and will only be viewed as insufficient where they foreclose meaningful
    appellate review: see
Dinardo
at
    para. 25, citing
Sheppard
at para.
    25.) In
Gagnon
, the court stated at
    para. 21 that where the charge is serious, and the evidence of a child and an
    adult accused are in conflict, the accused is entitled to be able to understand
    from the reasons why his or her evidence did not raise a reasonable doubt. In
Dinardo
, the court specifically reiterated
    the latter proposition (para. 35).

[14]

In this case, the complainant was a very young child 
    only five years old. Although the appellant is not an adult, he is entitled to
    the same rights regarding the process used to convict him and the explanation
    of that conviction. The complainant gave two video statements to police that
    were made exhibits pursuant to s. 715.1 of the
Criminal Code
. The second statement was as a result of the
    complainant remembering more things and telling his mother that he wanted to
    tell the officer about them. At the trial, he testified outside the courtroom
    pursuant to s. 486.2(1) of the
Criminal
    Code
, intermittently over a multi-day period.

[15]

Although the trial judge first stated that he found the
    complainants testimony compelling, he then went on to discuss the fact that
    it was the parents corroborative evidence that restored the Courts confidence
    in accepting the complainants evidence, suggesting that the trial judge may
    have had concerns about the complainants evidence without the corroborating
    value of the parents evidence. It may be that the trial judge was referring
    only to corroborating the times that the complainant was left alone with the
    appellant, but the trial judge does not make that clear.

[16]

In light of the age of the complainant, the problems
    with his testimony alluded to by the trial judge, and his reliance upon
    corroboration from the parents who had no first-hand knowledge of the
    allegations, it was incumbent on the trial judge to explain more fully how he
    reconciled these problems in the face of the appellants denial, which was not
    a denial of the times that the two were together, but merely that any sexual
    contact had occurred.

[17]

In rejecting the appellants denial as one of
    convenience, the trial judge did not acknowledge that it is very difficult for
    anyone to prove a negative. To the contrary, he seemed to require the appellant
    to interpret what may have happened, i.e., to effectively speculate about why
    the complainant said what he did.  Nor does
    the trial judge explain how someone who denies that anything happened could give
    an interpretation of what may have happened. The trial judge also discounted
    the evidence given by the appellant and other defence witnesses about the
    complainant hitting him and others in the testicles or crotch-grabbing, referring
    to this as a somewhat corollary or collateral issue that did not inspire any
    doubt but only formed part of the history of events.

[18]

This case involved very serious charges. As stated by
    the Supreme Court of Canada, the appellant was entitled to understand why his
    evidence did not raise a reasonable doubt. The three reasons the trial judge
    gives for rejecting the appellants evidence are generic and conclusory, and
    provide no insight into his reasoning or the basis for reaching the conclusion
    he did.

[19]

As a result, the appeal is allowed and a new trial is
    ordered. We note that out of a total sentence of 100 days in custody plus 50
    days of community service, the appellant has served 77 days in custody, a
    significant portion of the custodial part of his sentence. In those
    circumstances, the Crown may consider it more appropriate not to proceed with a
    second trial.

K. Feldman J.A.

R.A. Blair J.A.

David Watt J.A.


