



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    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)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    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)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. M.J., 2011
          ONCA 278





DATE:
          20110407



DOCKET: C50252



COURT OF APPEAL FOR ONTARIO



Laskin, Sharpe and MacPherson JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



M.J.



Appellant



Craig Parry, for the appellant



Benita
Wassenaar
, for the respondent



Heard and released orally: April 6, 2011



On appeal from the finding of guilt entered on December 2,
          2008, and the disposition imposed on March 17, 2009, by Justice Margaret F.
          Woolcott of the Ontario Court of Justice.



ENDORSEMENT



[1]

The appellant stood trial on an information that
    charged him with sexual interference, invitation to sexual touching and sexual
    assault.

[2]

The trial took place on a single day, December 2, 2008.
    There were two witnesses, the complainant, aged 15, and the appellant, aged 19.
    Their testimony centered on sexual activities the complainant alleged took
    place between the two boys, next-door neighbours, for several years when the
    complainant was about 10 to 13 years old and the appellant was about 14 to 17
    years old.

[3]

The trial judge rendered her decision at the conclusion
    of the trial. She convicted the appellant on all three charges. He appeals his
    conviction. He abandoned his sentence appeal.

[4]

The appellant contends that the trial judge did not
    properly apply the criminal standard of proof in this case. Crucial components
    of this failure, asserts the appellant, were the trial judges treatment and
    non-treatment of serious inconsistencies between the complainants statement to
    the police and his testimony at the trial, her reasoning and lack thereof with
    respect to her rejection of the appellants testimony, and her formulation of
    her ultimate conclusion that the Crown had proved the case against the
    appellant beyond a reasonable doubt.

[5]

We admire the trial judges attempt to provide the
    parties with a comprehensive oral judgment at the end of a long trial day. We
    also recognize that an appellate court must be careful not to scrutinize too
    critically the oral reasons of a judge working in a busy trial court,
    especially when those reasons are anchored, at bottom, in her assessment of the
    credibility of only two witnesses, a youthful complainant and a youthful
    accused
who
chose to testify in his defence.

[6]

However, in the end we accept the appellants
    submissions on this appeal. The trial judges reasons, read as a whole, do not
    satisfy us that she properly applied the criminal standard of proof in this
    case.

[7]

The trial judge acknowledged that there were
    inconsistencies between the complainants police statement and his trial
    testimony. The complainant told the police that the sexual activities occurred 7
    or 8 or 25 or 30 times. He testified that they took place every time the boys
    met, hundreds of times. In his testimony, he acknowledged that these
    descriptions were vastly different. The complainant conceded in his testimony
    that yeah, thats another guess. He said that the sexual activity both
always
and
never
occurred when the appellant was babysitting him.
    Unfortunately, the trial judge ignored many significant inconsistencies or
    stated them baldly without addressing their impact.

[8]

The trial judge also appeared to treat the appellants
    testimony (we emphasize that both the complainant and the appellant were young
    people) quite critically. She said that he made cross-examination difficult
    because he asserted a blanket denial of all the alleged incidents. She stated,
    improperly, that the appellant could not give any reason why the complainant
    would have wanted to tell stories about him. She tended to inflate the
    appellants age and reduce the complainants age throughout her reasons,
    thereby creating an inaccurate age differential between the two boys.

[9]

Finally, and most importantly, the trial judges
    statement of her ultimate conclusion is, with respect, problematic. The trial
    judge was unable to find that any specific incident of abuse  relating to
    date, location or activity  actually took place. Moreover,  near the end of her reasons, she said:

I find myself in the position of not believing that
    the events  that is to say that the events vis-à-vis their frequency,
    vis-à-vis the exact details of the events, vis-à-vis always the exact location
    and the timing of the events  I find myself unable to make a finding that Mr.
    M. was accurate with respect to that. Having said that, however, I am not in a
    position of rejecting the evidence of Mr. M. when he says to me that there were
    sexual occurrences between him and Mr.
J..
And, I am
    not in a position of rejecting that those occurrences were on an ongoing basis.
    And, I am not in a position of rejecting that those occurrences included being
    touched by Mr. J., being invited by Mr. J. to touch Mr. J. and being
    sexually assaulted by Mr. J., i.e.
sodomization
.

[10]

This combination of a fairly sweeping rejection of the
    complainants evidence relating to important components of the alleged sexual
    activities and an almost half-hearted reliance on the residue of his testimony
    are not, in our view, sufficient to ground a conviction on the criminal
    standard of proof.

[11]

The appeal is allowed, the convictions are set aside,
    and a new trial is ordered.

J. I. Laskin J.A.

J. C. MacPherson J.A.

Robert J. Sharpe J.A.


