



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), (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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03,
    280, 281, 346 or 347,

(ii) an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 4,
    1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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
    complainant of the right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. A.M.,
    2014 ONCA 769

DATE: 20141104

DOCKET: C56081

Hoy A.C.J.O., MacFarland and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A. M.

Appellant

Carlos Rippell, for the appellant

Philippe G. Cowle, for the respondent

Heard: September 3, 2014

On appeal from the conviction entered on May 24, 2012 and
    the sentence imposed on September 13, 2012 by Justice Kenneth A. Langdon of the
    Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

A.M. appeals his conviction of sexual interference.
[1]
He says the trial judge made several errors in assessing the evidence adduced
    at trial, and as a result, erroneously concluded the Crown had proven its case
    beyond a reasonable doubt. He also submits his trial counsel did not provide
    effective legal assistance and seeks leave to appeal his sentence.

[2]

We conclude the trial judge made reversible errors in his reasons for
    judgment. It is therefore unnecessary to consider either the claim of
    ineffective assistance of counsel or the sentence appeal.

The Background Facts

[3]

The complainant, one of A.M.'s
    siblings, alleged years of sexual abuse in the family home. The abuse began
    when A.M. had the complainant masturbate him until he ejaculated. Thereafter,
    the abuse consisted of acts of oral sex occurring at least once and,
    eventually, two or three times a week. The incidents occurred, for the most
    part, in an upstairs hallway in the family home. From there, A.M. could see
    whether anyone was heading upstairs.

[4]

The complainant told her mother about
    the abuse, but the conduct continued. To protect herself, the complainant had a
    friend, A.B., move into her room in the family home. Nevertheless, according to
    the complainant, the abuse continued, albeit with a reduced frequency.

[5]

The complainant and her mother argued
    about A.B.'s constant presence in the family home. Her mother insisted A.B. had
    to leave. Concerned the abuse would become more frequent if A.B. left, the
    complainant disclosed to her mother, for the second time, what A.M. had been
    doing to her. A.M. was kicked out of the house, but returned the next day. The
    complainant left the family home and moved into A.B.'s home.

[6]

The appellant did not testify or call
    any witnesses at trial.

The Grounds of Appeal

[7]

A.M. alleges the trial judge's reasons reflect
    error in:


i.

the manner of assessing the
    complainant's testimony;


ii.

failing to address the numerous inconsistencies and improbabilities in
    the complainant's evidence; and


iii.

using a prior consistent statement made by the complainant to buttress
    her credibility as a witness and the reliability of her account.

The Governing
    Principles

[8]

Several basic principles inform our decision regarding the trial judge's
    reasons for judgment.

[9]

First, every witness, irrespective of age, is an individual whose
    credibility and evidence should be assessed according to criteria appropriate
    to his or her mental development, understanding, and ability to communicate:
R.
    v. W. (R.)
,

[1992] 2 S.C.R. 122, at p. 134.

[10]

Second,
    no inflexible rules mandate when a witness' evidence should be evaluated
    according to "adult" or "child" standards. Indeed, in its provisions regarding
    testimonial capacity, the
Canada Evidence Act
, R.S.C., 1985, c. C-5,
    eschews any reference to "adult" or "child", preferring the terms "14 years or
    older" and "under 14 years of age'. An inflexible, category-based system would
    resurrect stereotypes as rigid and unyielding as those rejected by the recent
    developments in our approach to children's evidence:
W. (R.)
, at p.
    134.

[11]

Third,
    despite this flexibility, there are some guiding principles. Generally, where
    an adult testifies about events that occurred when she was a child, her
    credibility should be assessed according to the criteria applicable to adult
    witnesses. However, the presence of inconsistencies, especially on peripheral
    matters such as time and location, should be considered in the context of her
    age at the time the events about which she is testifying occurred:
W. (R.)
,
    at p. 134. See also,
R. v. Kendall
, [1962] S.C.R. 469.

[12]

Fourth,
    one of the most valuable means of assessing witness credibility is to examine
    the consistency between what the witness said in the witness box and what she
    has said on other occasions, whether or not under oath:
R. v. G. (M.)
(1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C.
    refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness'
    testimony at trial, or between their trial testimony and statements previously given.
    Inconsistencies may also emerge from things said differently at different
    times, or from omitting to refer to certain events at one time while referring
    to them on other occasions.

[13]

Inconsistencies
    vary in their nature and importance. Some are minor, others are not. Some
    concern material issues, others peripheral subjects. Where an inconsistency
    involves something material about which an honest witness is unlikely to be
    mistaken, the inconsistency may demonstrate a carelessness with the truth about
    which the trier of fact should be concerned:
G. (M.)
, at p. 354.

[14]

Fifth,
    A trial judge giving reasons for judgment is neither under the obligation to
    review and resolve every inconsistency in a witness' evidence, nor respond to
    every argument advanced by counsel:
R. v
.
M. (R.E.)
, 2008 SCC
    51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and
    explain how she or he has resolved major inconsistencies in the evidence of
    material witnesses:
G. (M.)
, at p. 356;
R. v. Dinardo
, 2008
    SCC 24, [2008] 1 S.C.R. 788, at para. 31.

[15]

Sixth,
    prior consistent statements of a witness are not admissible for their truth:
R.
    v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 7. Mere repetition
    of a story on a prior occasion does not make the in-court description of the
    events any more credible or reliable:
R. v. Curto
, 2008 ONCA 161, 230
    C.C.C. (3d) 145, at paras. 32, 35;
R. v. Ay
(1994), 93 C.C.C. (3d) 456
    (B.C.C.A.), at p. 471.

[16]

Seventh,
    in reviewing reasons for sufficiency, we must ask ourselves whether the
    reasons, taken as a whole and considered with,

•

the evidentiary record;

•

the submissions of counsel; and

•

the live issues at trial

reveal the basis for the verdict reached:
M.
    (R.E.)
, at para. 55;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R.
    639, at paras. 12, 15.

[17]

Eighth,
    where a case turns largely on determinations of credibility, the sufficiency of
    reasons must be considered in light of the deference generally afforded to
    trial judges on credibility findings. It is rare for deficiencies in a trial
    judge's credibility analysis, as expressed in the reasons for judgment, to
    warrant appellate intervention:
Vuradin
, at para. 11;
Dinardo
,
    at para. 26.

[18]

Nevertheless,
    the failure of a trial judge to sufficiently articulate how credibility and
    reliability concerns are resolved may constitute reversible error:
Vuradin
,
    at para. 11;
Dinardo
, at para. 26;
R. v. Braich
, 2002 SCC 27,
    [2002] 1 S.C.R. 903, at para. 23. After all, an accused is entitled to know why
    the trial judge had no reasonable doubt about his or her guilt:
R. v.
    Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21.

[19]

Similarly,
    we take it as self-evident that a legal error made in the assessment of
    credibility may displace the deference usually afforded to a trial judge's
    credibility assessment and may require appellate intervention.

[20]

Finally,
    when evaluating a trial judge's credibility analysis, there is no principled
    reason to distinguish between cases involving oath against oath from those in
    which no competing oath has been offered.

The Principles Applied

[21]

In
    our view, the reasons of the trial judge, read as a whole and in the context of
    the issues raised and evidence given at trial, reveal legal error in his
    assessment of the evidence. Although we acknowledge that deficiencies in a
    trial judge's credibility analysis rarely merit appellate intervention (
Vuradin
,
    at para. 11;
Dinardo
, at para. 26), in this case, the trial judge's
    reasons are fatally flawed. As a result, the conviction cannot stand.

[22]

In
    this case, as in many, the ultimate result turned largely on the trial judge's
    assessment of the credibility of the witnesses and the reliability of their
    evidence. The Crown's case against A.M. stood or fell on the basis of the
    complainant's evidence. However, her credibility was impeached and the reliability
    of her evidence challenged.

[23]

Accordingly,
    it was essential to a fair trial that the trial judge apply the proper legal
    principles to evaluate her testimony, articulate how the credibility concerns
    were resolved, and explain why her testimony left him with no reasonable doubt
    of A.M.'s guilt:
Gagnon
, at para. 21;
Vuradin
, at para. 11;
Dinardo
,
    at para. 26;
Braich
, at para. 23.

[24]

In
    our view, the trial judge's credibility analysis is marred by two principal
    legal errors.

[25]

First,
    the trial judge assessed the complainant's evidence as if she were a "child"
    witness. She was not. The complainant was 19 years old when she testified at
    trial about abuse that extended over a decade, until about her 17
th
birthday. Her testimony was that of an adult regarding events that first
    occurred when she was a child and continued well into her teenage years. The
    trial judge was obliged to assess her credibility according to the criteria
    applicable to adult witnesses, not the somewhat lessened standard of scrutiny
    associated with child witnesses:
W. (R.)
, at p. 134;
R. v. Gostick
(1999), 137 C.C.C. (3d) 53 (Ont. C.A.), at paras. 12-13;
R. v. S. (D.D.)
,
    2006 NSCA 34, 207 C.C.C. (3d) 319, at para. 54. While the trial judge was
    entitled to apply a less exacting standard to peripheral matters that occurred
    during the complainant's childhood, he erred in assessing the complainant's
    credibility as if she were testifying as a "child":
W. (R.)
, at p.
    134-135.

[26]

Second,
    the trial judge characterized an admitted "exaggeration" by the complainant
    under oath at the preliminary inquiry as "hyperbole, a common form of literary
    emphasis" and thus "a badge of credibility". The admitted exaggeration was a
    prior inconsistent statement about a material issue given under oath. It is
    difficult to see how a prior statement under oath inconsistent with sworn
    testimony at trial, especially regarding a material issue, could serve as a
    credibility enhancer. At best, the exaggeration reflects a carelessness for the
    truth when testifying under oath. Left unexplained, this would tend to impeach
    the witness' credibility rather than enhance it:
R. v. G. (M.)
, at p.
    354.

Conclusion

[27]

For
    these reasons, the conviction cannot stand. In a case that turned on findings
    of credibility and an assessment of reliability, the trial judge's credibility
    analysis reflected fundamental legal errors and ultimately failed to
    sufficiently explain how the credibility and reliability concerns were
    resolved. The appeal is allowed, the conviction and conditional stay set aside,
    and a new trial directed on the counts of sexual assault and sexual
    interference.

"Alexandra Hoy
    A.C.J.O."

"J. MacFarland J.A."

"David Watt J.A."





[1]

A conviction for sexual assault was stayed on the basis of
Kienapple
    v. R.
, [1978] 1 S.C.R. 729.


