


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(1), (2), or (3) of the
Criminal Code
shall continue. These sections of the
Criminal
    Code
provide:

486(1)          Any proceedings against
    an accused shall be held in open court, but the presiding judge or justice may
    order the exclusion of all or any members of the public from the court room for
    all or part of the proceedings if the judge or justice is of the opinion that
    such an order is in the interest of public morals, the maintenance of order or
    the proper administration of justice or is necessary to prevent injury to
    international relations or national defence or national security.

(2)      For the purpose of subsection
    (1), the proper administration of justice includes ensuring that.

(a) the interests of the witnesses under
    the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are
    involved in the proceedings are protected.

(3)      If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the
    prosecutor or the accused applies for an order under subsection (1), the judge
    or justice shall, if no such order is made, state, reference to the circumstances
    of the case, the reason for not making an order.  R.S., c. C-34, s. 442;
    174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C.
    1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9;
    1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29;
    2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s.
    15; 2005, c. 43, ss. 4 and 8(3)(a).




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.N., 2017 ONCA 647

DATE: 20170810

DOCKET: C61414

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

BETWEEN

Her Majesty the Queen

Respondent

and

A.N.

Appellant

Christine Mainville, appearing as duty counsel

A.N., acting in person

Tracy Kozlowski, for the respondent

Heard: July 12, 2017

On appeal from the conviction entered on August 24, 2015
    by Justice J.D. Nadelle of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant appeals his convictions of sexual offences arising out of
    two incidents the complainant testified occurred 33 years ago, when the appellant
    babysat the complainant. At the time, the appellant was 14 years of age and the
    complainant  his cousin  was just short of her sixth birthday.

[2]

Because of his age at the time of the alleged incidents, the appellant
    was tried in Youth Court. The appellant testified. He acknowledged that he had
    babysat the complainant, but denied the incidents occurred. The trial judge
    concluded that there was nothing in [the appellants] evidence that would
    justify me in concluding that he is not believable or credible except for the
    existence of conflicting evidence of [the complainant]. The trial judge found
    the complainant to be reliable and credible and, invoking this courts decision
    in
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252, rejected the
    appellants evidence based on his acceptance of the conflicting evidence of the
    complainant.

[3]

The trial judge convicted the appellant of having sexual intercourse
    with a person under the age of 14 years without her consent (then s. 146 of the
Criminal Code
) and one count of indecent assault (formerly s. 149 of
    the
Code
). He stayed the charge of having sexual intercourse with a
    female person without consent (formerly s. 144 of the
Code
) and one
    count of indecent assault under the principles set out in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729. The appellant was sentenced to 90 days custody and
    supervision (served as 60 days jail, intermittent, and 30 days' supervision).

[4]

With the assistance of Duty Counsel, the appellant advances four grounds
    of appeal:

1.

The trial judge erred in his application of
J.J.R.D.
by
    rejecting the appellants testimony based on his acceptance of the
    complainants testimony without a considered and reasoned analysis of that
    testimony and the whole of the evidence;

2.

The trial judge erred in failing to adequately assess the reliability of
    the complainants evidence;

3.

Having determined that he required confirmation of the complainants
    evidence, the trial judge failed to identify any such confirmation; and

4.

The trial judge provided insufficient reasons to convict the appellant.

[5]

For the following reasons, we agree with the appellant that the trial
    judge erred in his application of
J.J.R.D
. Given that conclusion, and
    the overlapping nature of the appellants grounds of appeal, we need not
    separately address the remaining grounds of appeal. We allow the appeal, set
    aside the convictions, and order a new trial.

[6]

To provide the necessary background, we first provide a summary of the
    trial judges reasons.

The trial judges reasons

[7]

As indicated above, the trial judge found that there was nothing in the
    appellants evidence that the alleged incidents did not occur that would
    justify concluding that he was not credible.

[8]

The trial judge noted that when, in a criminal trial, it comes down to a
    complainants testimony versus that of the accused, it is important that the
    trier of fact seek out confirmatory evidence that supports the complainants
    evidence.

[9]

He also noted that in addition to the inconsistencies between the
    appellants and the complainants evidence, there were inconsistencies between
    the complainants and her mothers evidence.

[10]

He found that the complainants recollection of the events giving rise
    to the charges was excellent: She was able to recall, with precision, details
    of how the assault evolved, the circumstances before and after the assault, and
    what she was doing before the assaults and what occurred afterwards.

[11]

In contrast, the mother testified that she had undergone operations to
    her head and things had been erased. Details were buried in her memory and her
    memory came and went. Because of this, the trial judge was reluctant to place
    much reliance on her evidence. Where the mothers evidence conflicted with that
    of the complainant, the trial judge accepted the evidence of the complainant.

[12]

He wrote as follows:

I find [the complainant] to be reliable and credible. I have
    already mentioned her ability to recall and relate in detail the assaultive
    behaviours of the accused. I might add, the evidence discloses no motive to
    fabricate and if she was of a mind to make up the facts of the sexual assaults,
    she could have made the second incident a much worse scenario. In addition,
    [the complainant] gave her evidence in a calm and measured manner. She was
    articulate and unshaken in cross-examination.

[13]

The trial judge indicated that in finding that the appellant had been
    proven guilty beyond a reasonable doubt, he had followed
J.J.R.D.
,
    which held that the rejection of an accuseds evidence may be derived from a
    considered and reasoned acceptance beyond a reasonable doubt of the truth of
    conflicting credible evidence.

[14]

Both the complainant and M., the appellants sister, testified about a
    third incident, often referred to at trial as the sticker book incident, which
    occurred about two years after the parameters of the charge. The Crown
    submitted that M.s evidence about the sticker book incident was confirmatory
    evidence that supported the complainants evidence. The trial judge was
    satisfied beyond a reasonable doubt as to the appellants guilt without
    considering the evidence about the sticker book incident. Therefore, he
    concluded that it was unnecessary to rule on the admissibility of that
    evidence.

The principle in
J.J.R.D.

[15]

At para. 53 of
J.J.R.D.
, Doherty J.A. wrote for the court that,
    An outright rejection of an accuseds evidence based on a considered and
    reasoned acceptance beyond a reasonable doubt of conflicting credible evidence
    is as much an explanation for the rejection of an accuseds evidence as is a
    rejection based on a problem identified with the way the accused testified or
    the substance of the accuseds evidence.

[16]

Rejection of an accuseds evidence based on the acceptance of a
    complainants conflicting evidence constitutes reversible error if the
    acceptance, beyond a reasonable doubt, is not considered and reasoned:
R.
    v. D.H.
, 2016 ONCA 569, 338 C.C.C. (3d) 251.

Analysis

[17]

The issue of the reliability of a complainants evidence is heightened
    where, as in this case, the complainant testifies to events she alleges
    occurred several decades before, when she was a young child.

[18]

We agree that the trial judges acceptance of the complainants evidence
    was not considered and reasoned, in accordance with
J.J.R.D.

[19]

The trial judge was not required, as a matter of law, to seek out
    confirmatory evidence in order to make a finding of guilt. Nonetheless, in his
    reasons, the trial judge identified what, in the circumstances of the case, was
    necessary for him to reach a considered and reasoned acceptance of the
    complainants evidence beyond a reasonable doubt  the existence of
    confirmatory evidence supporting that of the complainant. However, the trial
    judge in his reasons failed to identify any independent evidence that
    strengthened his belief in the veracity of the complainants evidence. By the
    standard he set, his acceptance of the complainants evidence was not
    considered and reasoned. Moreover, it is not clear that the evidence that the
    trial judge admitted includes any confirmatory evidence that supports the
    complainants evidence.

[20]

Given the foregoing conclusion, it is unnecessary for us to address the
    appellants other arguments.

Disposition

[21]

We allow the appeal, set aside the convictions and order a new trial.
    The admissibility of the evidence about the sticker book incident shall be
    determined, if required, on the re-trial.

Released: AH  August 10, 2017

Alexandra Hoy
    A.C.J.O.

Janet Simmons J.A.

David Brown J.A.


