



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. D.R., 2016 ONCA 162

DATE: 20160229

DOCKET: C59247

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.R.

Appellant

W. John McCulligh, for the appellant

Eric Siebenmorgen, for the respondent

Heard: February 23, 2016

On appeal from the conviction entered on May 2, 2014 by
    Justice S.R. Clark of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual offences in relation to two young
    boys. He was found guilty of two counts of sexual assault, two counts of sexual
    interference, and one count of invitation to sexual touching. The boys were
    approximately seven and nine years old when the offences were said to have
    occurred. The appellant appeals the convictions on the ground that the trial
    judge misapprehended the evidence.

[2]

The two boys are brothers who were living with their grandmother. The
    appellant began renting a room in her home in early 2010. The brothers alleged
    that the appellant touched their genitals and buttocks and, on one occasion,
    showed them pornography. The older brother said the appellant once told him to
    perform oral sex on him. When the complainant refused, the appellant
    masturbated next to him. Although there was a confrontation in the home about
    these issues in the spring of 2011, the grandmother took no action and the
    appellant was allowed to stay in the house. No disclosure was made to the
    authorities until 2013.

[3]

The trial took place in the Ontario Court of Justice sporadically over a
    number of days in 2014. The boys, then ages 11 and 13, testified. Their grandmother
    and the appellant did as well.

[4]

The main issue before the trial judge was credibility. The trial judge
    recognized this. He concluded that, although the appellant was not
    unimpressive as a witness, he did not believe him. He found that the
    appellants blanket denial of each event, simply cannot be true. The trial
    judge relied on one specific example to ground his finding. The example related
    to the appellants evidence about watching movies on a sofa with the boys and
    their grandmother. The appellant testified that the boys would lie on the sofa,
    one next to his grandmother and the other with his head on a cushion on the
    appellants lap. The trial judge fastened on this and concluded that the appellant
    changed his evidence during cross-examination to add that there was a cushion between
    him and the boy that had not been previously mentioned.

[5]

In fact, the appellant did not change his evidence during
    cross-examination. He mentioned the cushion in his examination-in-chief:

Q.      Do you recall  that everybody would watch a movie?

A.       I would sit at the end of one  like the long couch [the
    complainant] would lay on the long couch with his head in my lap

Q.      Would [the complainant] be next to you?

A.      Yes, prostrate  with his head on a pillow in my lap.

[6]

By the time the appellant was cross-examined, the parties had received
    transcripts of the appellants examination-in-chief. When the appellant
    referred to the cushion on his lap, the Crown suggested to him that he had not
    mentioned this in his examination-in-chief:

Q.      So now youre saying there was a cushion.

A.      Yes. He always had the couch cushion under his head.

[7]

The Crown pursued this line of questioning suggesting that he had not
    mentioned the cushion before.

[8]

This mischaracterization became the trial judges main articulated
    reason for rejecting the appellants testimony. At para. 94(7) of his reasons,
    he discussed the inconsistencies in the appellants testimony:

The most obvious [inconsistency] relates to that part of his
    evidence where he stated that when they were all sitting on the couch watching
    movies, [the complainant] would lay with his head in [the appellants] lap. He
    said nothing in his examinationin-chief about his head being on a cushion, but
    on cross-examination, he then must have realized that having a cushion covering
    his lap would somehow make it less suggestive of some form of intimacy. His
    explanation of not mentioning the cushion because he merely assumed that it
    would somehow be understood that this was the situation, is an absurdity. This
    is the start of many parts of his evidence which exposes and undermines his
    credibility and reliability, leaving the Court with the impression that he was
    making it up as he was going along, or as the Crown characterized it, he was a
    moving target.

[9]

The trial judge was mistaken when he said that the appellant said
    nothing about the cushion in his examination-in-chief.

[10]

A
    misapprehension of evidence must be material to justify this courts intervention:
R. v. Hemsworth
, 2016 ONCA 85, [2016] O.J. No. 505, at para. 40;
R.
    v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. In
R. v.
    Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56, LeBel J. explained
    that 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. This stringent
    standard is met in this case.

[11]

The
    trial judge concluded, based primarily on the misapprehension of the evidence
    about the cushion, that the credibility and reliability of the appellants
    testimony was undermined. He noted that [s]ome of the inconsistencies in his
    evidence were rather glaring. Yet he only referred to the cushion incident.
    During oral submissions, the Crown referred to other inconsistencies. We find
    none of them significant or glaring.

[12]

The
    main issue for the trial judge was credibility. His conclusion as to the
    credibility of the appellant was tainted by an error of fact. The error
    infected the core of his reasoning on the credibility of the appellant.
    Consequently, the convictions cannot stand.

[13]

The
    appeal is allowed, the convictions are quashed, and a new trial is ordered at
    the discretion of the Crown.

Robert J. Sharpe J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


