



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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 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; 2005, c. 43, s.
    8(3)(b).

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. M.C., 2014 ONCA 307

DATE: 20140423

DOCKET: C54917

Hoy A.C.J.O., LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.C.

Appellant

Mark Halfyard, for the appellant

Gavin MacDonald, for the respondent

Heard: February 12, 2014

On appeal from the conviction entered on May 25, 2011 by
    Justice Ferguson of the Superior Court of Justice, sitting without a jury.

LaForme J.A.:

I.        INTRODUCTION

[1]

The appellant was convicted of sexual
    assault and sexual exploitation of his neighbours five-year-old daughter while
    she was at his house with his children on September 2, 2009. The complainant,
    J.E.-J. alleged that, in the course of tickling games  described at trial as
    tickle monster and zerbert monster  that she and the appellant played, he
    performed oral sex on her and digitally penetrated her.

[2]

Forensic analysis revealed the presence of amylase, a component found in
    high levels in saliva, and the appellants DNA on J.E.-J.s underwear. The
    trial judge found that the DNA and amylase were from the appellants saliva,
    and not any other bodily fluid. In her reasons she finds that she is in
    agreement with [the forensic expert] that the saliva was not transferred onto
    the underwear by any means other than oral sex by the appellant. She came to
    this conclusion, however, based on a misapprehension of the expert evidence. I
    will say more about this later since it underpins what I think is a persuasive
    ground of appeal.

II.       BACKGROUND

[3]      The appellant and his family were close
    neighbours of J.E.-J. and her family. The appellants daughter, M.C., and J.E.-J.
    were best friends. At the time of the offences, they were six and five years
    old, respectively. M.C. and her younger brother would often visit J.E.-J.s
    home, and J.E.-J. and her younger sister also spent time at M.C.s home.

[4]      On September 2, 2009, M.C. and her younger
    brother were playing at J.E.-J.s home. At approximately 5:30 p.m., the
    appellant arrived there to bring his children home for dinner. He invited
    J.E.-J. and her sister to come play with his children after dinner. At around
    6:30 p.m., J.E.-J. came to the appellants home with her sister. She was
    wearing a sun dress and underwear. The appellants wife was not at home during
    J.E.-J.s visit because she was at a softball game. J.E.-J. returned home later
    that evening. She did not change her underwear that night and was wearing the
    same pair the following day.

[5]      Around mid-afternoon on September 3, J.E.-J.
    and her family went to visit her grandmother. During the visit, J.E.-J.
    disclosed to both her mother and grandmother that the appellant had touched
    [her], given her zerberts on her vagina, and digitally penetrated her. J.E.-J.s
    mother contacted J.E.-J.s father; once he arrived, they went to the police
    station together.

[6]      The police took J.E.-J. to the Lakeridge
    Health Centre where at around 6:00 p.m. her underwear was seized and later
    submitted to the Centre for Forensic Science for examination. Testing done on
    her underwear detected the appellants DNA on the waistband and the front panel
    of her underwear.

III.      EVIDENCE AT TRIAL

(a)

The complainants statement

[7]      J.E.-J. gave a videotaped statement to the
    police on September 4, two days after the incidents. The video was admitted at
    trial for the truth of its contents.

[8]      J.E.-J. stated that she, the appellant and his
    children had been playing games called tickle monster and zerbert monster. As
    she described the games, the appellant chased the children and tickled them or
    blew zerberts on them

the appellant
    would apply his lips to the skin and blow air to make a noise.

[9]      During the game, J.E.-J. chased the appellant
    into his bedroom, where he blew zerberts on her stomach, her underwear, and
    then her vagina. She stated that he put his finger in her vagina, and that she
    told him to stop. The appellant, she said, put her hand down his pants and
    forced her to touch his penis, but that she did not see his penis.

[10]    The appellants two children were both in the
    room at the time of the incidents, but J.E.-J. said that they did not see
    anything. The appellant told J.E.-J. that the game was a secret.

(b)

The appellants statement

[11]    The appellant did not testify at trial, but his
    videotaped interview with police, which he provided on September 4, 2009, was
    entered into evidence. In it he confirmed that he played tickle monster and
    zerbert monster with the children, and that he gave J.E.-J. zerberts on her arm
    and tummy. He said that he cannot remember being alone on the bed with J.E.-J.

(c)

Viva voce
evidence

[12]    J.E.-J., her mother, her friend (the
    appellants daughter) M.C., and Margaret Henry, an expert in forensic biology,
    testified at trial. The defence called no evidence.

[13]    J.E.-J., seven years old at the time of trial,
    testified that the appellant used his tongue when giving her zerberts and that
    he touched her vagina with his tongue. She explained that M.C. and her brother
    were running in and out of the room, and that the appellant would stop whenever
    they entered the room. She maintained, contrary to her prior statement, that
    she had seen the appellants penis, and she provided a detailed description of
    it.

[14]    M.C. also provided a video statement shortly
    after the incident, and that statement was adopted at trial. M.C. testified
    that she joined the appellant and J.E.-J. in the game after she had finished
    cleaning her room. She recalled that the appellant blew four or five zerberts
    on J.E.-J.s stomach while J.E.-J. was on the bed, but she only saw one and
    heard the others. M.C. later testified that she could not remember how many
    zerberts had been given.

[15]    J.E.-J.s mother, C.E.-J., testified that her
    daughter disclosed to her that she had been assaulted by the appellant on the
    day after the incidents. C.E.-J. recalled that, on the night of September 2,
    J.E.-J. got out of bed several times and couldnt get settled. While at her
    grandmothers on September 3, J.E.-J. told her mother that the appellant was
    blowing zerberts on [her] nunu and he touched [her]. C.E.-J. also testified
    that, while her daughter mostly watched childrens programs, she would
    sometimes watch T.V. unsupervised. This was confirmed in J.E.-J.s testimony,
    where J.E.-J. indicated that she had also seen adult shows like
Everybody
    Loves Raymond.
According to C.E.-J., her daughters world shattered when
    her allegations ended her friendship with M.C.

[16]    Margaret Henry  the forensic biology expert 
    testified that tests had been performed on three areas of J.E.-J.s seized
    underwear: (i) the crotch, (ii) the front panel, and (iii) the waistband. The
    DNA of a major male profile, which the appellant did not dispute was his,
[1]
was recovered from the waistband and from the front panel. None of the
    appellants DNA was recovered from the crotch.

[17]    Ms. Henry explained that the deposit on the
    front panel contained a mixture of DNA from J.E.-J. and from the appellant. The
    front panel had a total of approximately 322 nanograms of DNA. Testing also
    found DNA from J.E.-J. and the appellant on the waistband, as well as DNA from
    another individual that was not suitable for analysis because there was very
    little of it. The waistband contained approximately 24 nanograms of DNA. Ms.
    Henry did not say in either case how much of the DNA was the appellants.

[18]    All three areas of the underwear tested
    positive for amylase, a digestive enzyme that is found in a number of bodily
    fluids, including perspiration. It is found in especially high levels in
    saliva. However, Ms. Henry was clear that amylase staining and the presence of
    DNA did not necessarily correlate, and that she could not say how much of the
    DNA originated from the same source as the amylase. In other words, if the
    amylase
were

from
    saliva, Ms. Henry could not say how much of the 322 nanograms of DNA originated
    from the saliva, and how much originated from another source.

[19]    Based on the reaction times and testing, Ms.
    Henry stated that the amylase deposits on the crotch and front panel were
    likely from saliva, while the amylase on the waistband could have been from a
    number of bodily fluids. She could not rule out secondary transference onto the
    underwear from saliva that was deposited on J.E.-J.s hand or stomach. In terms
    of the DNA found, however, Ms. Henry stated that, given the volume of DNA,
    there was likely a bodily fluid present.

[20]    I will say more about this evidence, especially
    the forensic evidence and the testimony of Ms. Henry, in my analysis below.

IV.     THE TRIAL DECISION

[21]    In finding the appellant guilty of sexual
    assault and sexual exploitation, the trial judge concluded that J.E.-J. was a
    credible witness. She instructed herself to consider the credibility of J.E.-J.
    in the context of her age, pursuant to
R. v. W.(R.)
, [1992] 2 S.C.R.
    122, and
R. v. B.(G.)
, [1990] 2 S.C.R. 30, and to apply the principles
    of
R. v. W.(D.)
, [1991] 1 S.C.R. 742, in assessing whether the Crown
    had established its case beyond a reasonable doubt.

[22]    The trial judge found that J.E.-J.s best
    recollection of the events was in her police statement, and that the
    contradictions between this statement and her
viva voce
evidence did
    not warrant an adverse credibility finding. In her view, the inconsistencies
    were insignificant, and the videotaped statement was an accurate reflection of
    the events, and of inestimable assistance in ascertaining the truth:
R v.
    F. (C.C.)
, [1997] 3 S.C.R. 1183, at para. 21.

[23]    The trial judge rejected the defences argument
    that J.E.-J. had a motive to fabricate because she was seeking attention from
    her mother. She concluded that J.E.-J. did not learn about oral sex and digital
    penetration from television. She also found that there was some value in the
    corroborative evidence raised by the Crown, including evidence from M.C. and
    Ms. Henry.

[24]    Addressing the forensic evidence, the trial
    judge found that it was the appellants saliva, and not any other bodily fluid,
    that was on J.E.-J.s underwear. She was in agreement with Ms. Henry that the
    saliva was not transferred onto the underwear by any means other than oral sex
    by the appellant on J.E.-J.

[25]    The trial judge did not find the appellants
    position credible in light of all the evidence. She noted that his position was
    in contradiction with the expert evidence and that the appellants daughter
    confirmed that she saw her father tickling and blowing zerberts on J.E.-J.s
    tummy.

V.      THE ISSUES

[26]    The appellant challenges the trial judges
    decision on this appeal on three grounds. First, he argues that the trial judge
    misapprehended the nature of the forensic evidence. Second, he argues that the
    trial judges reasons for rejecting the appellants evidence were conclusory.
    Third, he contends that the trial judge failed to conduct her
W.(D.)
analysis in light of all the evidence that supported the defence.

[27]    The Crown argues that the trial judge did not
    make the errors complained of. But that even if she did misapprehend the
    evidence, the Crown says it was not essential to her credibility findings. That
    is, she thoroughly and carefully analyzed J.E.-J.s evidence and ultimately
    found that the evidence was credible and reliable.

[28]    The Crown submits that the trial judge observed
    that corroboration was not necessary, and that she was satisfied on the
    evidence before her that the appellant had committed offences for which he was
    convicted. The Crown says none of the errors alleged by the appellant regarding
    the forensic evidence were essential to her favourable credibility finding with
    respect to J.E.-J.

[29]    I believe the trial judge critically
    misapprehended the forensic evidence, including the testimony of Ms. Henry. As
    I will explain, she then relied on this misapprehended evidence to decide the
    crucial issues in this case: credibility and reliability. My analysis of this
    issue, I believe, disposes of the appeal and subsumes the other issues advanced
    by the appellant. I would, in the end, allow the appeal in order to prevent a
    miscarriage of justice.

VI.     ANALYSIS

[30]    The appellant submits that the trial judge
    misapprehended the forensic evidence in several respects. First, he argues that
    she incorrectly found the appellants DNA in the crotch of the J.E.-J.s
    underwear. Second, he argues that the trial judge incorrectly found that the
    entire 322 nanograms on the front panel of the underwear consisted of the
    appellants DNA, and was thus too much to be the result of transference. Finally,
    the appellant argues that the trial judge erred in finding that the reaction
    time and amount of amylase was consistent with saliva and not other bodily
    fluids. I find the first two arguments compelling, and thus do not find it
    necessary to address the third.

[31]    A misapprehension of evidence may refer to a
    failure to consider evidence relevant to a material issue, a mistake as to the
    substance of the evidence, or a failure to give proper effect to evidence:
R.
    v. Morrissey
(1995), 22 O.R. (3d) 514, at pp. 538-540. Here, the appellant
    argues that the trial judge made a mistake as to the substance of the evidence,
    and the mistake resulted in a miscarriage of justice.

[32]    Not every misapprehension of evidence renders a
    trial unfair and results in a miscarriage of justice. An appellate court must
    determine the nature and extent of an alleged misapprehension and its
    significance to the decision under review, whether a determination of
    admissibility or a final conclusion about guilt:
Morrissey
, at
    p. 541.

[33]    Where a misapprehension of evidence is advanced
    as a ground of appeal the standard of review applied is stringent. That is, the
    misapprehension must be material to the reasoning of the trial judge and must
    play an essential part in the reasoning process resulting in a conviction, not
    just in the narrative of the judgment:
R. v. Lohrer
, 2004 SCC 80,
    [2004] 3 S.C.R. 732, at para. 2. If such a material misapprehension is made
    out, it follows that the appellant did not receive a fair trial, and was the
    victim of a miscarriage of justice. This is so even if the evidence was capable
    of supporting a conviction:
Morrissey,
at p. 541.

(a)

The misapprehended evidence

[34]    The expert evidence, as I said earlier, consisted
    of opinions from a forensic biologist, Ms. Henry, who works at the Centre for
    Forensic Science in Toronto. Her expertise is in body fluids, DNA analysis and
    interpretation. Although I have gone through some of her evidence above, I will
    repeat it here in more depth, for convenience.

[35]    Two areas of J.E.-J.s underwear tested
    positive for amylase: one area encompassing the crotch and front panel of the
    underwear, and the other the waistband. Ms. Henry believed the amylase was from
    saliva, particularly in the crotch and front panel area, although she conceded
    that it was possible that there were other bodily fluids there that we didnt
    test for. Three pieces of the underwear were then tested for DNA  one from
    each of the crotch, the front panel and the waistband.

[36]    Ms. Henry testified that: (i) a moderate
    amount of DNA  24 nanograms  was recovered in the waistband area; (ii) a
    substantial amount of DNA  322 nanograms  was recovered in the front panel
    area; and (iii) only J.E.-J.s DNA was recovered from the inner lining of the
    crotch area. That is, the appellants DNA was not in the crotch of the
    underwear.

[37]    Regarding the substantial amount of DNA
    recovered from the front panel, Ms. Henry testified that it is a mixture of
    DNA from the complainant and the [appellant]. There was no evidence as to how
    much of the DNA belonged to the appellant, either as a direct measurement or a
    ratio. In cross-examination Ms. Henry accepted that if someone was to lick the
    vaginal area of someone and they put their underwear on, one would expect to
    see some transfer in the crotch of the underwear.

[38]    It is important to note that in addition to the
    underwear, an external vaginal swab was taken from J.E.-J. and was also tested
    for DNA. The only DNA recovered from the swab was attributable to J.E.-J.

(b)

The use by the trial judge

[39]    The trial judge interpreted the forensic
    evidence and found, among other things, that: (i) [T]here was a substantial
    deposit of DNA in the
crotch
area of J.E.-J.s underwear (322 ng) and
    a
significant
deposit in the waist band (24 ng) (emphasis added); and
    (ii) the 322 nanogram finding of DNA in the
crotch
area is too much
    to be the subject of a transference (emphasis added).

[40]    In her summary of the forensic evidence, the
    trial judge completely fails to distinguish between the three relevant areas of
    the underwear, which were tested by the expert. Specifically, the appellants
    DNA was located on the front panel and waistband; not in the crotch area. Her
    322 nanogram finding of DNA in the crotch area, again, was recovered from the
    front panel; not the crotch. And, less importantly, the waistband deposit was
    described by Ms. Henry as moderate, not significant.

[41]    Further, the trial judge appears to
    misunderstand the evidence when she wrote that the 322 nanogram DNA deposit is
    too much to be the subject of transference. The hypothetical the Crown provided
    to the expert presupposed both that the saliva had dried before transference
    and that the entire quantity

of the 322 nanograms was the appellants
    DNA. Ms. Henrys evidence was that transference would occur more readily if the
    saliva were wet. And, as the appellant correctly points out, the forensic
    evidence was that this deposit contained a mixture of J.E.-J.s DNA and the
    appellants DNA, thus making the possibility of transference much more
    plausible.

[42]    Finally, the trial judge makes no reference to,
    and does not include in her analysis, the evidence of the external vaginal
    swab, which had no DNA from the appellant.

[43]    The trial judge correctly recognized that this
    was a case that depended largely on credibility and reliability of witnesses.
    She instructs herself on the applicable law related to this, namely,
W.(D.)
and
R. v. B.D.
, 2011 ONCA 51, 273 O.A.C. 241. In addition, the trial
    judge correctly instructed herself that corroborative evidence need not
    specifically implicate the accused; however, the evidence must be capable of
    restoring the triers faith in the witnesss testimony:
R. v. Kehler
,
    2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 12-13. Unfortunately, she relied on
    evidence she misapprehended in conducting her credibility and reliability
    assessments.

[44]    The trial judges misapprehension of the
    forensic evidence becomes material to her reasoning through her use of it in
    two ways that play an essential part in her reasoning process. First, she
    relies on it to bolster the credibility and reliability of J.E.-J. Second, she
    uses this evidence and testimony to discredit and find unreliable the
    appellants denial given in his police statement.

(i)

The credibility of the complainant

[45]    The trial judge found that J.E.-J.s evidence
    was credible and reliable on the basis of her testimony alone. The Crown argues
    that it is clear that the trial judge was satisfied beyond a reasonable doubt,
    based on this evidence alone, that the appellant had committed the offences for
    which he was convicted, separate and apart from the testimony of the expert and
    the need for corroboration evidence.  I disagree.

[46]    In spite of the trial judges finding on
    J.E.-J.s evidence alone, she went to considerable lengths to find
    corroboration evidence. This included reliance on the evidence of the appellant
    and the forensic evidence. In my view, J.E.-J.s evidence had sufficient flaws
    to it such that it was prudent for the trial judge to look for, and rely on,
    evidence to corroborate it, even in light of the different standard for
    credibility applied to child witnesses discussed above. In particular, I would
    point to J.E.-J.s trial evidence about seeing the appellants penis.

[47]    Her statement to the police  which the trial
    judge preferred over her evidence at trial, and which the trial judge described
    as an accurate reflection of the events and as of inestimable assistance in
    ascertaining the truth  includes the following:

Q:      No? Okay. Have you ever seen [the accuseds]
    private parts?

A:      No.

Q:      No? Okay. Have you ever touched [the
    accuseds] private parts?

A:      No.

Q:      Okay. Has [the accused] ever asked you to touch
    his private parts?

A:      Yes, that was on Wednesday, but I didnt want to.

[48]    There can be no doubt that the issue of whether
    or not the J.E.-J. saw the appellants penis was a specific focus of the police
    inquiry. The account by J.E.-J. completely changed when she testified at trial.

[49]    Her evidence at trial was that she saw the
    accuseds penis, which she described in some detail, including making a gesture
    indicating its size. She testified that she saw it when he was rubbing his
    finger in her vagina. When the Crown inquired as to why she did not tell the
    police officer about seeing the accuseds penis, she did not offer an
    explanation. She did not know why.

[50]    In spite of this, the trial judge held that
    this did not negatively impact on her credibility. Using language from the
    Supreme Court in
R. v. F.(C.C.)
, [1997] 3 S.C.R. 1183, at para. 47, the
    trial judge finds that the inconsistencies are insignificant" and finds
    the video more reliable than the evidence elicited at trial. Again, she
    relies on videotaped evidence made within two days of the events as accurate
    and as of inestimable assistance in ascertaining the truth, and rejects the
    evidence elicited in cross-examination.

[51]    The trial judge acknowledged that there were
    inconsistencies in J.E.-J.s testimony, especially her evidence about the
    appellants penis. She dealt with it as follows:

While I must heed these inconsistencies:
R. v. Stewart,
    supra
, I do not find that they have an adverse inference against the
    witness credibility:
R. v. B.(G.), supra. R. v. W. (R.)
.,
supra
.
    Moreover, in accordance with
R. v. Stewart, supra,
and
R. v. B
    (R.W.), supra,
I do not find that the inconsistencies, while central to
    the charges, diminish the reliability of J.E.-J.s evidence. In particular, to
    reiterate
R. v. B.(G.), supra
: While children may not be able to
    recount precise details and communicate the when and where of an event with
    exactitude, this does not mean that they have misconceived what happened to
    them and who did it. Further, to repeat Justice Watt in
R. v. H.C.
,
supra
,
    Flaws, such as contradictions, in the testimony of a child may not toll so
    heavily against credibility and reliability as equivalent flaws in the
    testimony of an adult.

I therefore find that J.E.-J was a credible witness and
    accurately recounted what happened to her that evening, despite the minor
    inconsistencies of the location(s) of the other children during the sexual
    assault and her failure to tell the police officer that she had viewed the
    accuseds penis. I find that the accused did perform oral sex and digital
    penetration on J.E.-J. and forced her to touch his penis.

[52]    The evidence about his penis, however, is not a
    detail of the when and where of the assault, nor is this a contradiction; it
    is about the nature of the assault itself. It is the kind of inconsistency that
    should engender caution as to the reliability of the witness, even a child
    witness. While the trial judge says that she does not need corroboration
    evidence to rely on and believe J.E.-J.s testimony, as I said earlier, I think
    it was prudent in these circumstances to search for some.

[53]    The trial judge held that: J.E.-J.s account
    of the [appellant] licking and zerberting her vaginal area is corroborated by
    Ms. Henrys evidence. I find, in agreement with Ms. Henry, that the saliva was
    not transferred onto J.E.-J.s underwear by touch or any means other than the
    performance of oral sex by the accused on J.E.-J.

[54]    Unfortunately, the trial judges interpretation
    of Ms. Henrys evidence, which she relied on to corroborate J.E.-J.s police
    statement account, is based on a serious misapprehension. To repeat, there was
    no DNA from the appellant recovered in the crotch area of the underwear. And,
    as Ms. Henry testified; if someone was to lick the vaginal area of someone and
    they put their underwear on, one would expect to see some transfer in the
    crotch of the underwear. Ms. Henry also could not rule out the possibility of
    transference or the presence of another bodily fluid other than saliva, as
    discussed above.

[55]    In my view, rather than corroborating the
    account given by J.E.-J., Ms. Henrys evidence casts some doubt on it. Ms.
    Henrys evidence  correctly apprehended  would not give comfort to the trial
    judge that J.E.-J. can be trusted in her assertion that the appellant licked
    and zerberted her vaginal area as the trial judge found. The trial judges
    misapprehension of Ms. Henrys evidence, relied on to corroborate J.E.-J.s
    allegations, is material to her reasoning and played an essential part in the
    reasoning process resulting in a conviction.

(ii)

The credibility of the appellant

[56]    The trial judge first breaks down the
    appellants statement to the police and lists specific portions of it. These
    include:

·

they had been playing tickle monster and zerbert monster throughout
    the house, including the master bedroom;

·

he gave J.E.-J. zerberts on her arm and tummy;

·

When asked if he gave J.E.-J. a zerbert on her bare belly he
    answered [u]m, if  well like not on purpose, but I mean say were just
    playing around, like same with my daughter if  if- I dont know; and,

·

he was never on the bed alone with J.E.-J. when he gave her a
    zerbert on her belly.

[57]    The trial judge found that, on all of the
    evidence, the appellants denial was not credible. She found that it is in
    contradiction with the expert evidence. Furthermore, she wrote that [h]is
    daughter confirmed that she saw her daddy tickling and zerberting her friends
    tummy.

[58]    I disagree with the trial judges analysis. Rather
    than contradicting the denial of the appellant, the trial judge could
    reasonably have interpreted Ms. Henrys evidence as confirming the appellants
    version of events. Her evidence that the appellants DNA was recovered on the
    waistband and front panel of J.E.-J.s underwear are not counter to his account
    of giving J.E.-J. zerberts on her arm and tummy. And, her evidence that his
    DNA was not recovered from the crotch area is capable of supporting his denial
    of the allegations.

[59]    Ms. Henrys evidence  correctly apprehended 
    was capable of giving some comfort to the trial judge that the appellant could
    be trusted in his denial of licking and zerberting her vaginal area. The trial
    judges misapprehension of Ms. Henrys evidence, which she relied on to weaken
    the veracity of the appellants denial, is material to her reasoning and played
    an essential part in the reasoning process resulting in a conviction.

[60]    I would add that the trial judges reliance on
    the appellants daughter [seeing] her daddy tickling and zerberting her
    friends tummy as confirmatory evidence is troubling. It only confirms what he
    has admitted to, namely, he gave J.E.-J. zerberts on her arm and tummy.
    Again, rather than providing a basis to disbelieve the appellant, it actually
    is in line with his version of events.

[61]    Finally, I would also point out that the
    results of the external vaginal swab  which the trial judge did not consider 
    are at odds with J.E.-J.s account of the appellant licking and zerberting her
    vaginal area. On the other hand, the results tend to support the appellants
    denial that he did so. To repeat, forensic testing recovered DNA from only
    J.E.-J.; none from the appellant. While, as Ms. Henry pointed out, this could
    be explained by the lapse of time between when the alleged assault occurred and
    when the swab was taken the following afternoon, there is no indication that
    the trial judge considered this piece of evidence at all in her reasoning.

VII.    CONCLUSION

[62]    The trial judge, as I said, correctly observed
    that this case depended largely on credibility. Accordingly, it was important
    for the trial judge to ensure that the Crowns requisite burden of proof was
    met through credible and reliable evidence. This, as she correctly noted,
    required her to follow the principles mandated in
W.(D.)
and
B.D.
While the trial judge seems to have followed these principles when assessing
    the evidence and concluding that the appellant was guilty, she unfortunately did
    so by deciding the issues of credibility and reliability based on a misapprehension
    of critical evidence material to these issues.

[63]    Had the trial judge considered all of the
    evidence, and apprehended the forensic evidence and testimony of Ms. Henry
    correctly, it would have been apparent to her that at its highest the evidence
    was nonaligned. That is, it confirmed that the appellant did zerbert J.E.-J.s
    tummy, as he admits and J.E.-J. contends. It does not, however, confirm that
    the appellant pulled her underwear down, touched his lips to her vagina, [o]n
    the skin, and blew zerberts on it.  Indeed, some of Ms. Henrys evidence and
    the results of the external vaginal swab tend to support the opposite.

[64]    Apprehending the forensic evidence correctly,
    the trial judge could arguably have concluded her
W.(D.)
analysis very
    differently. First, the correct forensic evidence might have provided a basis
    for her to believe the denial of the appellant, or at least have a reasonable
    doubt as to his guilt. Second, the evidence apprehended correctly could have
    led the trial judge to conclude that the evidence proffered by the Crown was
    insufficient to prove beyond a reasonable doubt that the appellant is guilty of
    the offences charged.

[65]    Having decided this appeal as I have, it
    becomes unnecessary for me to specifically address the remaining two grounds
    advanced by the appellant. In many respects the additional grounds are
    incorporated into the foregoing analysis and conclusions.

VIII.   DISPOSITION

[66]    For these reasons I would allow the appeal, set
    aside the conviction and order a new trial.

Released: AH April 23, 2014

H.S. LaForme J.A.

I agree. Alexandra
    Hoy A.C.J.O.

I agree. G. Pardu
    J.A.





[1]
The dispute was on the issue of transference, quantity, quality and location of
    the biological samples that were obtained, rather than whether it was the
    appellants DNA. Given this, I will refer to the major male profile as the
    appellants DNA.



