



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. Hemsworth, 2016 ONCA 85

DATE: 20160129

DOCKET: C59383

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Hemsworth

Appellant

Zachary Kerbel, for the appellant

Mary Ellen Hurman, for the respondent

Heard: September 17, 2015

On appeal from the conviction entered on June 27, 2014
    and the sentence imposed on November 18, 2014 by Justice John S. Fregeau of the
    Superior Court of Justice.

Epstein J.A.:

OVERVIEW

[1]

After a one-day trial, the trial judge convicted
    the appellant of sexual assault and stayed a charge of sexual interference, on
    the basis of
Kienapple v. R.
[1975] 1. S.C.R.
    729.  The conduct giving rise to the charges allegedly took place during the
    1993-94 school year when the complainant was a grade eight student and the
    appellant was his gym teacher and basketball coach.

[2]

This is a quintessential credibility case. The
    outcome of the trial turned entirely on the trial judges assessment of the testimony
    of the only two witnesses   the complainant and the appellant.

[3]

The complainant described an incident after
    basketball practice when he was in the boys change area.  He testified that
    the appellant fondled his penis, testicles, and buttocks. Approximately 20 years
    later, the complainant disclosed the assault.

[4]

The appellant denied assaulting the complainant.
    The defence theory was that the complainant had fabricated the allegation and
    disclosed it to the mother of his child to forestall being denied access to his
    son. According to the defence, the complainant targeted the appellant because
    he was notorious in the small town of Dryden, Ontario where the conduct allegedly
    occurred. The appellant had been convicted of indecent assault on three female
    students in 2002.

[5]

In this conviction appeal, the appellant argues that
    in assessing his credibility, the trial judge misapprehended certain evidence
    and overemphasized the appellants
demeanour.
The appellant
    also submits that the trial judge applied a harsher level of scrutiny to the
    appellants evidence than to the complainants evidence, thereby undermining
    the appellants ability to raise a reasonable doubt. The appellant submits that
    any one of these errors is sufficient to
warrant
    appellate intervention.

[6]

I agree that the trial judges rejection of the
    appellants evidence is tainted by legal error. I would therefore allow the
    appeal and order a new trial.

BACKGROUND

The Complainants Testimony

[7]

At the time of the incident, the complainant was
    in grade eight. He was passionate about sports, especially basketball. The
    complainant testified that on the occasion in issue, he stayed late after
    practice to shoot hoops with a friend.  After his friend left, the complainant
    went to the boys change room to get into street clothes before going home. After
    about a minute, the appellant entered the room. According to the complainant, the
    appellant came up to the complainant, removed the complainants gym shorts and
    underwear and, using his left hand, fondled the complainants penis and
    testicles.  The appellant also put his right hand on the complainants
    buttocks. The complainant testified that the appellant told him he was not
    hurting him and that he, the complainant, should go home and
practise
.  The encounter lasted between five and eight minutes.

[8]

The complainant did not report the incident at
    that time.  In his words, he stayed the course.  He explained that sports and
    grades were important to him and that he both looked up to the appellant and
    was intimidated by him.

[9]

In his testimony, the complainant described
    another incident involving the appellant that took place a few years later,
    when the complainant was in high school.  The appellant was helping with the
    volleyball team and after a game, approached the complainant, pinched the back
    of his neck and, getting very close to him, complimented him on his playing. According
    to the complainant, this incident caused him to recall the appellants actions
    in the change room.

[10]

The complainant recounted that, by this time, he
    had started dating girls and had come to appreciate that the appellants
    conduct was wrong. This realization made him feel scared, guilty, and
    embarrassed. According to the complainant, these feelings intensified and when
    he was in college, he turned to drugs and alcohol to deal with the impact the
    abuse had on him.

[11]

The complainant also said that sometime in 2011,
    he disclosed the alleged conduct during a disagreement with his then girlfriend
    and the mother of his son.  He gave the following evidence about this
    disclosure:

Q.      Right. And in fact, [the childs
    mother] gave you an ultimatum that unless you got your  and I'll use her words
     "shit together, she was not going to let you see your child or her.
    Remember that happening?

A.      I remember her being really upset with
    me and I remember she may have said that, yes. She was really upset when I,
    when I went to pick up my stuff at her sister's.



Q.      And she described it as a big falling
    out but you just described it as a fight.  Is that fair?

A.      Yeah, it was a fight and she was
    fairly upset with me.

Q.      Okay. And during that part of that
    fight she told you to get your shit together and get some help and unless you
    got counselling, that her and [the child] were going to keep their distance and
    not see you until you got some help. Do you remember her telling you that?

A.      Yeah, she had grown tired of my
    drinking, obviously, throughout our relationship.

[12]

The complainant was cross-examined in
    considerable detail about three prior convictions for sexual assault.  He
    admitted to pleading guilty to all three charges but denied the aggravated
    factual allegations underlying the offences as put to him by defence counsel.

The Appellants Testimony

[13]

At the time of trial, the appellant was 66 years
    old and had retired, after 31 years of teaching. He taught physical education
    and coached the volleyball, baseball, and basketball teams. He estimated that
    he had taught between 2,500 and 3,000 students over the course of his career. The
    appellant testified that in fact he had no recall of teaching or coaching the
    complainant. But he did not dispute that he had.

[14]

The appellant testified that it was possible
    that students were permitted to stay behind after basketball practice 
    although that was a rare occurrence. He denied that he had sexually assaulted
    the complainant, and did not recall ever being inside the boys' change room
    when there was only one student present.

[15]

The appellant also gave evidence about his
    criminal record. He testified that he pleaded guilty to three counts of
    indecent assault on a female on September 30, 2002, in relation to incidents
    that took place in the 1970s. According to the appellant, the criminal
    proceedings were followed closely in local newspapers. After serving his one-year
    sentence, the appellant moved away from Dryden.

REASONS FOR CONVICTION

[16]

In his reasons, the trial judge provided a
    detailed review of the evidence of the two witnesses and then concluded with
    his assessment of their credibility.

The Trial Judges Assessment of the
    Complainants Credibility

[17]

The trial judge described the complainants
    evidence in chief as clear and consistent.  He noted that the complainant was
    able to recall details of what took place in the change room on the day in
    question  the appellants actions, his words, and his attire.

[18]

The trial judge noted that cross-examination had
    been directed at impugning the complainants credibility on three issues  his
    previous convictions, the circumstances surrounding his disclosure, and his evidence
    at the preliminary inquiry.  The trial judge found that the complainants credibility
    had not been significantly diminished.

[19]

As previously mentioned, the complainant denied
    aggravated versions of events put to him in cross-examination concerning his prior
    convictions.  However, defence counsel did not attempt to prove the versions
    put to the complainant. Although the trial judge felt that the complainant may
    have minimized his actions in regard to two of the convictions, the trial judge
    reasoned that, in the circumstances where the terms of the plea bargain were
    not clear, this evidence did not negatively impact the complainants
    credibility.

[20]

The trial judge described the inconsistencies in
    the complainants trial testimony and his testimony at the preliminary inquiry about
    what led to his disclosure as a strange discrepancy in the evidence. 
    However, at para. 76, the trial judge found that [w]hile it [did] affect his credibility
    to a degree, [he was] not prepared to discount [the complainants] entire
    testimony because of it.

[21]

The trial judge rejected the defence suggestion
    that the complainant had ulterior motives for making allegations against the
    appellant, in part because he found there was no evidence capable of supporting
    the defence position that the complainant targeted the appellant because he had
    a criminal record.

[22]

Ultimately, the trial judge found the
    complainant to be a strong witness whose recall was good and whose credibility
    was not seriously eroded on cross[-] examination.

The Trial
    Judges Assessment of the Appellants Credibility

[23]

The trial judge described the appellant as a
    person who testified in a careful fashion  his evidence lacked spontaneity.

[24]

The trial judge was also troubled by the
    appellants evidence about how he met his responsibilities to the students
    after gym classes as opposed to after sports practices.  He found that the
    appellant had carefully contrasted how he carried out his monitoring
    responsibilities after gym class with those after practice, in order to
    eliminate any opportunity to have committed the offences as described by the
    complainant.

[25]

The trial judge then concluded that the
    appellant, upon realizing that his evidence about how he carried out his
    monitoring responsibilities was inconsistent and illogical, corrected himself
    when he testified that he smoked his cigarette close to an exit door and then
    returned to the hallway to wait until all the students had left.

[26]

Finally, citing

R. v. W.(D.)
,
    [1991] 1 S.C.R. 742, the trial judge instructed himself that, in assessing the
    appellants evidence, he was required to consider the substance of [the
    appellants] evidence, the way in which [he] testified, and also weigh it
    against conflicting Crown evidence. The trial judge summarized his assessment
    of the appellants testimony saying that he was troubled both by the
    appellants demeanour when testifying and some aspects of his evidence.

[27]

The
    trial judge concluded that he did not believe the appellant and that his
    evidence did not raise a reasonable doubt.

ISSUES

[28]

The
    appellant submits that the trial judge erred by:

1.

misapprehending the appellants evidence regarding his post-practice
    routine;

2.

overly relying on the appellants demeanour in assessing his
    credibility; and

3.

applying a different level of scrutiny to the evidence of the appellant
    than to that of the complainant.

ANALYSIS

1.

Did the trial judge misapprehend evidence relating to where the
    appellant was when the boys went to the change room?

[29]

The
    appellant submits that the trial judges conclusion that the appellant gave
    inconsistent and illogical evidence about how he monitored the students after
    gym classes and after sports practices, and then corrected his testimony, constitutes
    a misapprehension of his evidence.

[30]

For
    the reasons that follow, I would give effect to this submission.

The Appellants Evidence about how he Monitored the Students

[31]

The appellant
gave the following evidence about
    how he met his supervisory obligations to students after gym class:

Q.      Could you explain your routine, with
    respect to whether its team events or your gym classes, how you would conduct
    yourself after the class was over?

A.      Okay.  After the class was over I
    would dismiss the students, they would go up to the change room and I would go
    and stand where that perpendicular hallway met the main hallway and I would
    stand there and wait for the students to come out into the little side hallway
    until the bell rang and then I would dismiss them.

Q.      Okay. Was there any, were there any
    occasions that you actually went into, say, the boy's change room?

A.      The only time I ever, well the reason
    I was standing where I was standing was that I could keep track of the kids
    that were in the hallway and, but I could also hear if there was any ruckus
    going on in the boys' change room and that would be the only time I would go
    in.

[32]

After sports practices, however, the routine was
    somewhat different. In response to questions posed by defence counsel about how
    he met his post-practice monitoring obligations, the appellant testified as
    follows:

Q.      Okay. Was there any sort of routine
    for you at the end of practices that you recall?

A.      Oh, yes.

Q.      And what was that?

A.      Your Honour, I'm a smoker and so at
    the end of practice as soon as I dismissed them I'd go out for a smoke.

[33]

In cross-examination, the Crown asked for
    clarification:

Q.      And you said that your routine was to
    always go out for a cigarette after you dismissed them?

A.      When you smoke for 50 years, yes.

[34]

Following re-examination, the trial judge questioned
    the appellant further about his after-class and after-practice routines. The
    appellant confirmed that after classes he would wait outside the change rooms
    to monitor students. The trial judge then asked the following:

THE COURT: And the same [after-class routine] would
    not have applied after practices after school? You simply dismissed them from
    the gym and it was not your responsibility to monitor change room behaviour
    after practices?

A.      The players that I chose, one of the
    things that I chose them for was their ability to accept responsibility and the
    teams were fairly tightknit friends, friends-wise, and I never had a, I've
    never had a problem with a team in a change room, both in Pinewood, but also in
    away tournaments.



THE COURT: When you said you went for a smoke,
    I assumed you meant you went outside.

A.      Yes.



THE COURT: The children were left unsupervised
    and you were not required to monitor student behavior after practices.

A.      If you can still picture the
    perpendicular hallway, the other exit, or the other end of it which is ten feet
    away from the change rooms was the exit outside and that's where I had my
    smoke. I wasn't more than 15, 20 feet from them. And then I would come in and
    wait until all of them were gone, because they had to get, be picked up and
    what have you. I never left a student in the building by themselves,
    unattended. The kids would wait by the main door and there's a lost and found
    box called the box, the red box, and they would wait there until their rides
    picked them up and I'd be standing there with them, kibitzing and what have
    you, and then they would be gone.

Misapprehension of the Evidence

[35]

At paras. 81 and 82 of his reasons, the trial judge
    noted that the appellants careful contrasting of his after-class and
    after-practice routines was one particular aspect of his testimony that the
    trial judge found troubling:

His [the appellants] evidence was that he
    monitored student behaviour from just outside the change rooms following gym
    classes but exited the school for a cigarette following the after school
    practices. This would eliminate any opportunity to have committed the offences
    as suggested by the complainant.

Upon realizing that this was inconsistent with
    his responsibility to monitor student behaviour in both instances and
    illogical, the defendant corrected himself and testified that he had his
    cigarette at an exit close to the change rooms and then returned and waited
    until all students had left.

[36]

In
    my view, these paragraphs reflect a misapprehension of the appellants evidence
    in two respects.

[37]

First,
    I see nothing inconsistent or illogical about the appellants description about
    how and why he conducted his monitoring responsibilities after a gym class differently
    than after a sports practice.  It stands to reason that a sports team would be
    a more responsible and cohesive unit than a gym class and that the members of a
    sports team would require less careful supervision.  Moreover, no evidence was
    called to challenge the appellants explanation of how the two groups differed
    and why those differences allowed for variation in how the appellant fulfilled
    his monitoring obligations.

[38]

Second,
    and more importantly, I do not agree with the trial judges conclusion that the
    appellant corrected his evidence with respect to this point.  When responding
    to the trial judges questions, the appellant did not alter any previous
    testimony. Rather, he expanded upon his evidence in examination-in-chief and
    under cross-examination, providing more details to explain the differences
    between dismissing students after a gym class and dealing with members of a
    basketball team who are leaving after a practice.

[39]

Having
    concluded that the trial judge misapprehended the appellants monitoring
    evidence, the question is whether the misapprehension is material.

[40]

Not
    every misapprehension of evidence by a trial judge will justify this courts
    intervention. The misapprehension must be material. In
R. v. Sinclair
,
    2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56, Lebel J. discussed the concept of
    materiality and the test for appellate intervention:

For a misapprehension of evidence to be material within the
    meaning of the
Lohrer
test, it must go to a central element of the
    trial judges reasoning on which the conviction is based. As Binnie J.
    correctly stated in
Lohrer
, the standard described by Doherty J.A. in
Morrissey
is a stringent one. In other words, an error in the assessment of the evidence
    will amount to a miscarriage of justice only if striking it from the judgment
    would leave the trial judges reasoning on which the conviction is based on
    unsteady ground. [Citations omitted.]

[41]

In
    my view, it is clear that the trial judge erred by misapprehending the
    appellants evidence  in finding that his testimony about how he monitored
    students was inconsistent and illogical and was later corrected.  And, this
    misapprehension was material as it was one of only two factors the trial judge
    relied upon in rejecting the appellants evidence.

2.

Did the trial judge overly rely on the appellants demeanour in
    assessing his credibility?

[42]

The
    appellant submits that the trial judge also erred by placing too much weight on
    the appellants demeanour in assessing his credibility.

[43]

For
    the reasons that follow, I agree with this submission.

Legal Principles

[44]

This
    court has repeatedly cautioned against giving undue weight to demeanour
    evidence because of its fallibility as a predictor of the accuracy of a
    witnesss testimony:
Law Society of Upper Canada v. Neinstein
, 2010
    ONCA 193, 99 O.R. (3d) 1, at para. 66;
R. v. Rhayel
, 2015 ONCA 377,
    324 C.C.C. (3d) 362. As I indicated in
Rhayel
, at para. 85, [i]t is
    now acknowledged that demeanour is of limited value because it can be affected
    by many factors including the culture of the witness, stereotypical attitudes,
    and the artificiality of and pressures associated with a courtroom.

[45]

Although
    the law is well settled that a trial judge is entitled to consider demeanour in
    assessing the credibility of witnesses, reliance on demeanour must be
    approached cautiously: see
R. v. S. (N.)
, 2012 SCC 72, [2012] 3 S.C.R.
    726, at paras. 18 and 26. Of significance in this case is the further principle
    that a witnesss demeanour cannot become the exclusive determinant of his or
    her credibility or of the reliability of his or her evidence:
R. v. A. (A.)
,
    2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131;
R. v. Norman
(1993),
    16 O.R. (3d) 295 (C.A.), at pp. 313-14.

The Trial Judges Reliance on the Appellants Demeanour

[46]

It
    is of note that the trial judge started his assessment of the appellants
    credibility by expressing his  concern about how the appellant testified:

It was my impression that the [appellant] testified in a
    careful fashion which lacked any spontaneity.  He appeared to me to be a
    witness who was prepared and aware of what his evidence should be to raise a
    reasonable doubt as opposed to a retired teacher wrongfully accused of fondling
    a young male 20 years ago.

[47]

This
    paragraph troubles me for two reasons.

[48]

First,
    the trial judge found the appellants credibility was diminished because he
    testified in a manner that was too careful. The problem I have with this is that
    the trial judge had no reference point.  He did not know how the appellant normally
    expressed himself. Moreover, the appellants careful fashion of testifying may
    relate to such factors as the unfamiliar atmosphere of the courtroom, the
    artificiality of the circumstances under which the appellant was being asked to
    provide information and the pressure he was under given what was at stake.

[49]

Second,
    I am concerned by the trial judges finding that the appellant testified more
    like someone trying to raise a reasonable doubt than someone wrongfully accused
    of sexually assaulting a student. The trial judge provided no insight as to how
    he arrived at that conclusion, particularly how the differences between the two
    types of testimony might manifest themselves. General assertions such as this
    are, with respect, not only unhelpful but also defy appellate review.

[50]

Although
    the trial judge was entitled to consider the appellants demeanour in assessing
    his credibility, he erred by considering factors that had little, if any, evidentiary
    foundation, and by generally over-emphasizing how the appellant appeared in the
    witness box.

[51]

Again,
    the error must be material.  In my view, it is. It must be remembered that the
    trial judges assessment of the appellants demeanour was one of only two
    factors the trial judge relied on in rejecting the appellants evidence. 
    Against that background, and given the singular importance of the appellants
    testimony, the errors the trial judge made in factoring the appellants
    demeanour into the trial judges assessment of the appellants credibility were
    material.

3.

Did the trial judge apply a different level of scrutiny to the defence
    evidence compared to that of the Crown?

[52]

The
    appellant submits that the trial judge erred in applying a harsher standard of
    scrutiny to the appellants evidence than to the complainants. The trial judge
    unfairly criticized him for simply denying the allegations against him but
    overlooked or discounted many inconsistencies in the complainants evidence.

[53]

I
    have already concluded that the trial judges rejection of the appellants
    testimony was based on two errors.  In my view, each error was material.  Taken
    together, there is no question in my mind that the verdict cannot stand. It is
    therefore unnecessary for me to consider this third ground of appeal.

DISPOSITION

[54]

For these reasons, I would allow the appeal, set aside the
    conviction and lift the stay.  I would order a new trial on both charges.

Released: January 29, 2016 (EAC)

Gloria
    Epstein J.A.

I
    agree E.A. Cronk J.A.

I
    agree David Brown J.A.


