



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    information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. J.S.W., 2013 ONCA 593

DATE: 20130930

DOCKET: C56284

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S.W.

Appellant

Erika Chozik, for the appellant

Roger A. Pinnock, for the respondent

Heard: June 26, 2013

On appeal from the conviction entered by Justice Simon C.
    Armstrong of the Ontario Court of Justice on March 19, 2012.

Tulloch J.A.:

A.

INTRODUCTION

[1]

On March 19, 2012, the appellant was convicted of sexual assault and
    sexual interference, contrary to ss. 271(1) and 151 of the
Criminal Code
. 
    Both counts relate to allegations made by the appellants daughter, C.B.

[2]

The appellant appeals both convictions, alleging that the trial judge
    erred in law by:

(i)    improperly assessing the appellants credibility;

(ii)   failing to critically assess the complainants evidence
    by applying a different standard to the credibility of the complainant and the
    defence witnesses; and

(iii)  misapprehending evidence bearing on the complainants
    credibility and the appellants testimony.

[3]

For reasons that follow, I would allow the appeal on grounds (i) and
    (ii) and order a new trial.

B.

THE EVIDENCE AT TRIAL

[4]

There were three witnesses called at trial.  The sole witness for the
    Crown was the appellants daughter, C.B.

[5]

The witnesses for the defence were the appellant and C.Bs friend, G.B.

[6]

On April 29, 2000, the appellant was convicted of sexual assault against
    another of his daughters, which occurred when she was fourteen years old.

[7]

In the year 2000, the appellant ended his relationship with C.B.s
    mother after a six or seven year relationship in which they had three children
    together, including C.B.  There was irregular contact between the appellant and
    his children until 2005, at which time some of the children routinely stayed at
    the appellants apartment on weekends.

[8]

C.B. continued to go to the appellants home for weekend visits until
    early 2010, although the charges relate to an incident that occurred in the
    year 2006.

The evidence for the Crown

The complainants evidence

[9]

C. B. was sixteen years old at the time of trial.

[10]

C.B.
    first recalled visiting the appellant when she was eight or nine years old. 
    She and her brother stayed at the appellants apartment on alternate weekends. 
    The apartment had one bedroom, and there were two couches in the living room. 
    She either slept on the couch or on the bed, and she slept either alone, or
    with her brother or father.

[11]

At
    some point when she was in Grade 5, C.B. stayed at the appellants apartment. 
    C.B. was not sure what day or month she was there, but she recalled that her
    cousin also was there for the weekend.  She went to sleep in the bedroom at
    around 9:00 or 10:00 at night.  She woke up some time later to find that the
    appellant was moving his hand back and forth across her vagina.  This event
    lasted about one minute, and was performed on top of her pajamas.  She was not
    able to see the appellant in the darkness.

[12]

In
    her statement to the police, C.B. stated that the appellant put his fingers
    into her vagina.  At trial, she clarified that statement to mean that he put
    his fingers in between.

[13]

According
    to C.B., she then got up and went to the washroom for a few minutes.  She then went
    to the couch in the living room and listened to an iPod for a while.  When the
    appellant came out of the bedroom, she realized that it must have been her
    father who had touched her because he was the one in the bedroom.  The
    appellant then sat next to her on the couch, and rubbed the left side of her
    chest, over her pajamas, for about one minute until she moved away from him. 
    She then watched television, and may have fallen asleep.  She did not recall
    what her father did for the rest of the night.

[14]

Counsel
    for the Crown asked C.B. if any other touching had occurred that night. C.B.
    denied that there had been any other touching.  In cross-examination, C.B.
    stated that the appellant had licked her foot when she was in the bedroom.  Her
    evidence was that she had not mentioned that event in her examination in chief
    because she did not consider licking to be touching, and that it was not
    significant enough to mention.

[15]

In
    her statement to the police, C.B. stated that the appellant tried to speak to
    her about those events the next day, but at trial her testimony was that the
    appellant never spoke to her about them.  C.B. did not mention these events to
    her mother or brother, even though she knew that the conduct was inappropriate
    and wrong.  She did not tell her mother that she did not want to go back to the
    appellants apartment.  Her evidence at trial was that nothing like the events
    of that night occurred either before or after the night in question.  She
    continued to go to the appellants home every other weekend for the next three
    years, but stopped going to the appellants home because she found it to be
    boring there.

[16]

Sometime
    in the years 2008-2009, when C.B. was in Grade 8, she called the Kids Help
    Phone Line and told the operator what had happened.  She was informed as to
    numbers that she could call for help, but she did not follow up and make any
    calls.

[17]

The
    next person that C.B. told about the incident was her friend, G.B.  That
    conversation occurred sometime between February and June 2010.  C.B. then spoke
    to her therapist, and then to the police in July 2010.

Evidence for the Defence

The appellants evidence

[18]

The
    appellant denied that he committed any of the acts alleged by C.B.

[19]

According
    to the appellant, he often had his son, his nephew and C.B. all attend at his
    home for weekend visits.  The children often used the swimming pool, and the
    other apartment facilities such as the spa or sauna. At night, they watched
    television or played video games.  He believed that C.B. wanted to stop coming
    to his home in the year 2010 because he did not have internet access, and she
    had nothing to do.

[20]

The
    appellant testified that in the year 2010 he began to drink to excess.  Prior
    to that, he did not drink when he had the children with him.

[21]

On
    the day of his arrest, two police officers arrived at the appellants home. 
    The officers told the appellant that C.B. had alleged that he fondled her at
    his apartment.

[22]

The
    trial judge placed considerable emphasis on the statements that were then made
    by the accused to the police officers, so I will set them out in detail.

The appellants first statement to the police

[23]

The
    appellants first statement to the police went as follows:

Det.
    Coleman:       All right. All right.  So do you know what this investigation is
    about?

J.W.:  
    Well, you told me initially, but Im not really sure what the allegations are.

Det.
    Coleman:       Okay, so, um  uh, your daughter [C.B.]

J.W.:  Uh-huh.

Det.
    Coleman:       has come forward and said that you sexually assaulted her while
    you were living at the apartment in Richmond Hill.

J.W.:  Uh-huh.

Det.
    Coleman:       Um, and by that, I mean, um, fondle  you fondled her.

J.W.:Uh-huh.

Det.
    Coleman:       Okay? Uh, did that ever happen?

J.W.:  Um, I dont think so.

Det.
    Coleman:       Okay.  You dont think so or  or you

J.W.:  I dont  I dont believe so, no.

[24]

According
    to the appellant, he did not know what the police officers were talking about. 
    He tried to recall the five years that C.B. had been coming to his home on
    weekends in order to think if anything could have been construed by C.B. as a
    fondling, including when they played in the pool, and one time when he
    physically pulled C.B. off her brother when they were fighting.

[25]

Also
    according to the appellant, he began to suffer blackouts in 2010 due to his
    overuse of alcohol.  When he was initially confronted with the allegation of
    fondling, at an unspecified time during the five years that C.B. stayed at his
    apartment, he thought at first that he might have done something when he had a
    blackout.  However, by the time of trial, and knowing that the alleged event
    related to the year 2006, he knew that he was not drinking when he was around
    the children, and he was not drinking excessively during that year.

The appellants
    second statement to the police

[26]

The appellants second statement to the police was made during the same
    initial interview, but occurred closer to the end of the interview, when the
    following exchange occurred:

Det.
    Coleman:       All right.  Um, all right.  Do you think this is something
    [C.B.] would make up?

J.W.:            Im
    not sure.  Im not  uh, I dont know.  Im not  no, Im not  I cant say if
     if she would make it up.  I cant say that.

Det.
    Coleman:       Okay. All right.  And youre not  youre not sure if it
    happened or not, is  is kinda the

J.W.:            Yeah.

Det. Coleman:       what I got

J.W.:  Yeah, I dont

Det. Coleman:       from

J.W.:  I
    dont  I dont believe it happened, no.

Det.
    Coleman:       Okay.  Could it have happened though?

J.W.:  Well,
    they visited and stuff, I guess, so, I guess you could  you could  you could
    say, logically.  Uh

[27]

According
    to the appellant, he was trying to show respect toward C.B.   He did not want
    to say that she was lying without knowing the specifics of the allegation and
    what she might have perceived to constitute fondling.

[28]

I
    note at this point that the appellant was not asked by the police if, in the
    year 2006, he rubbed C.B.s chest and vagina and licked her foot at night when
    she was sleeping over at his apartment.  Such a question could have elicited a
    firmer denial than was obtained by asking the appellant if, at some point in
    five years, he ever did anything that could be construed as fondling.


The
    Evidence of G.B
.

[29]

C.B.
    and G.B. were friends since Grade 7.  They ended up in the same high school. 
    According to G.B., a few days after the March break in the year 2010, C.B. told
    her that her father had touched her in a sexual manner.  This conversation
    arose after a class at school when the topic of sexual assault and rape was
    discussed.

[30]

G.B.
    testified that she was told by C.B. that C.B.s father touched C.B. under her
    clothes more than once.  She did not know how often it occurred, and it could
    have been only maybe twice.  As a result, C.B. told G.B. that C.B. did not
    want to go to her fathers apartment anymore because she did not feel safe
    there.

[31]

In
    her statement to the police, G.B. admitted that she had a bad memory, but she
    testified at trial that she was confident that her recollection of what she had
    been told by C.B. was accurate.

C.

THE REASONS OF THE TRIAL JUDGE

[32]

The
    trial judge identified credibility as the central issue in the case.   He began
    by examining the evidence provided by the appellant.  An examination of the
    reasons of the trial judge as a whole indicates that the main, if not the sole,
    reason the trial judge discounted the appellants own evidence was his
    responses to the questions initially posed by the police officers.

[33]

With
    regard to the two statements made by the appellant to the police, the trial
    judge noted:

In my opinion, your responses in these two passages of your
    police statement are self-evidently bizarre; they are not the type of answers
    one would reasonably expect to be given.  What I take from these two passages,
    sir, is that you were given several opportunities to deny the allegations of sexual
    assault, by fondling, that had been made against you, and you did not do so. 
    Instead, you said you didnt think or believe such conduct took place, that you
    were not sure if the fondling happened or not, and that because C visited you
    at your apartment, the fondling logically could have happened.  For the reasons
    I have given, I found that your attempts to explain these answers in court were
    neither credible nor convincing.

[34]

The
    trial judge then discounted the inconsistencies between the evidence of C.B.
    and her friend, G.B., because G.B. had an admittedly bad memory that could not
    have improved by the time of trial.  When G.B. testified that she had been told
    by C.B. that the assaults might have occurred just twice, that could have meant
    twice in one night.  The trial judge found that G.B. also might have mistakenly
    recalled C.B. as stating that the touching occurred under the clothes, and not
    on top of the clothes.

[35]

The
    appellants evidence was not believed by the trial judge, nor was the trial
    judge left with reasonable doubt because of the appellants evidence.  As a
    result, and in accordance with the analysis in
R. v. W.(D.)
, [1991] 1
    S.C.R. 742, the trial judge went on to consider whether the Crown had proven
    the guilt of the appellant beyond a reasonable doubt.

[36]

The
    trial judge found C.B. to be credible. She had a good memory of the events of
    the night in question and did not try to embellish her evidence.  The trial
    judge did not find that there were unexplainable inconsistencies in her
    evidence.  He accepted that C.B. neglected to initially mention in her evidence
    that the appellant had licked her foot because it was too minor to mention, and
    did not constitute touching.  Also, he noted that although C.B. struggled to
    identify where in her vaginal area she had been touched by the appellant, there
    was no inconsistency in her evidence because her statement to the police that
    she had been touched inside her vagina could have meant over her clothes and
    slightly into her vagina.

[37]

As
    a result, the trial judge was convinced beyond a reasonable doubt of the
    appellants guilt.  He found the appellant to be guilty of both counts, and
    sentenced the appellant to 444 days of imprisonment followed by two years
    probation.

The appellants position

[38]

The
    appellant maintains that there were several internal inconsistencies in the
    evidence of C.B.  For example, she could not explain how the appellant could
    have licked her foot in bed if he was lying on the bed the way she had
    originally described.  She testified that she never spoke to the appellant
    about the event, but she had told the police that he tried to talk to her about
    it.  Her statement to the police that the appellant put his fingers into her
    vagina is much different from her testimony at trial of touching her in
    between.

[39]

The
    appellant further states that there were inconsistencies between the evidence
    of C.B. and the other witness.  For example, G.B. was confident that C.B. told
    her the touching was under her clothes, and that it occurred on more than one occasion. 
    That is to be contrasted with the evidence of C.B. that it happened on one
    night, and over her clothes.

[40]

Also,
    the appellants evidence was that the events did not occur at all on the one
    night in question or at any time during the five years that C.B. stayed at his
    apartment.

The respondents position

[41]

The
    respondent states that the reasons of the trial judge were thoughtful,
    considered and were supported by the evidence.  The findings of the trial judge
    with regard to issues of credibility should be accorded considerable deference.

D.

ANALYSIS

[42]

The
    first issue I wish to address is the trial judges assessment of the
    appellants credibility.

Issue 1:       Did the trial judge err in law in his assessment of the
    appellants credibility?

[43]

The
    appellant argues that it was wrong in law for the trial judge to reject the
    appellants evidence because the appellant was given several opportunities to
    deny the allegations, but failed to do so.

[44]

The
    appellant further argues that it is notoriously difficult to judge how someone
    should react when confronted by the police with an allegation of a criminal
    charge.  An accuseds demeanour in reaction to criminal allegations is of
    limited, if any, probative value because any inference arising from demeanour
    rests on an assumption of how a normal person would react to the
    allegations.  In support of this proposition, the appellant relies on the
    decisions
R. v. Levert
(2001), 150 O.A.C. 208 (C.A.), at paras.
    24-28; and
R. v. Baron and Wertman
, (1976),
14 O.R.
    (2d) 173
(C.A.).

[45]

Finally,
    the appellant argues that the trial judge misapprehended the evidence, leading
    to a miscarriage of justice.  In that regard, the appellant states that a
    misapprehension of the evidence includes a mistake as to the substance of the
    evidence, failure to consider evidence relevant to a material issue, or a
    failure to give proper effect to that evidence:
R. v. Morrissey
(1995),
    22 O.R. (3d) 514 (C.A.).

[46]

In
    this case, it was not the demeanour of the appellant that led the trial judge
    to reject the appellants evidence, rather it was the fact that the appellant
    failed to state unequivocally that he had not fondled his daughter when he was
    given the opportunity to do so. It was the opinion of the trial judge that an
    unequivocal denial was the response that would reasonably have been expected in
    the circumstances.

[47]

In
    fact, the appellant told the police that he did not believe that he did
    anything that could be construed by C.B. as fondling.  The appellant did not
    state that C.B. was lying, as he easily could have done.  His failure to make
    an unequivocal denial without knowing the specifics of the allegation should
    not have been automatically construed as evidence that his testimony was
    incredible.  Further, the appellants willingness to consider the possibility
    that he might have done something improper due to recent alcohol overuse and
    resulting blackouts should not have led automatically to a finding that his
    evidence was incredible.

[48]

In
    my view, the trial judge erred in dismissing the appellants evidence because
    of the appellants two statements cited above, and the appellants explanations
    for those statements given at trial.

[49]

The
    appellant was not told where, when, or how the appellant was alleged to have
    fondled the complainant.  Had the appellant been told the specifics of the
    allegations, and had the appellant then told the police that he was not sure,
    or logically could have, rubbed the complainants chest and vagina and licked
    her foot when she stayed at her apartment in the year 2006, then clearly his
    evidence would be suspect and could have been discounted.  However, he was not
    initially given that information.  To completely discount the entire evidence
    of an accused because he did not immediately and unequivocally deny a vague
    allegation constitutes an error of law on the part of the trial judge:
Levert
,
    at paras. 27-28.

[50]

The
    appellant twice denied to the police that he fondled his daughter.  He may have
    been having difficulty reconciling what he was being told his daughter had said
    to the police with his belief that his daughter would not tell a lie.

[51]

As
    a result, for this reason alone I would set aside the finding of guilt and
    order a new trial.

Issue 2:       Did the trial judge fail to critically assess the
    complainants evidence by applying a different standard to the credibility of
    the complainant and the defence witnesses?

[52]

The
    appellant argues that the trial judge was wrong to find that C.B. had a good
    memory, given the number of details of the event that she was unable to recall,
    such as whether she went to sleep after the alleged events.  Further, the trial
    judge failed to properly consider the inconsistencies within her evidence, and
    the contradictions between her evidence and the evidence of the other
    witnesses.

[53]

The
    appellant also argues that the trial judge applied a different standard of
    scrutiny to the complainants evidence and the evidence of the defence
    witnesses.  The appellant states that the trial judge unconditionally accepted
    the complainants evidence despite the inconsistencies, then rejected the
    evidence of the two defence witnesses out of hand.

[54]

The
    Crown argues that the trial judge pointed to the concerns raised by the
    appellant, and that the trial judge articulated his reasons for nevertheless
    accepting the evidence of CB.  The Crowns position is that those reasons were
    entitled to deference.

[55]

A
    court should intervene to prevent a miscarriage of justice where the appellant
    can show that the trial judge applied different standards in assessing the
    credibility of the witnesses
: R. v. J.H.
(2005)
, 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-65.

[56]

It
    is an error of law to subject the evidence of the accused to a different and
    stricter level of scrutiny than that of the complainant.  That error of law can
    lead to a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the
Criminal Code
:
R. v. Minuskin
(2003), 68 O.R. (3d) 577
    (C.A.).

[57]

I
    am satisfied that once the trial judge discounted the appellants own evidence,
    based on a flawed assessment of the import of the appellants statements to the
    police, the trial judge then applied a different level of scrutiny to the
    complainants evidence as opposed to that of the defence witnesses.  Important
    inconsistencies in the complainants evidence were dismissed, such as the fact
    that the complainant told the police she had been touched by the appellant
    under her clothes and inside her vagina, which statement was corroborated as
    having been reported to the complainants friend, but then was changed at trial
    to having been touched over her clothes and in between.

[58]

The
    trial judge did not satisfactorily explain why he was not troubled that the
    complainant would fail to state that the appellant licked her foot that night, ostensibly
    because she considered it to be unimportant and did not constitute touching.

[59]

I
    note that had the trial judge placed the same standard of reasonableness of the
    expected responses to the evidence of the complainant, then one might expect
    C.B. to volunteer the information that the appellant licked her foot when asked
    if he touched her.  The trial judge accepted that the complainant did not
    consider licking to be touching based on a dictionary definition of touching. 
    Clearly there was an issue as to what constituted touching, as there might be
    an issue as to what constitutes fondling.  The complainants confusion was
    accepted, while the appellants confusion was discounted.

[60]

As
    a result, I would also allow the appeal on the basis that different standards
    were applied by the trial judge when assessing the credibility of the
    witnesses.

Issue 3:       Was the verdict unreasonable?

[61]

A
    conviction may be set aside if it is one of the rare cases when the courts
    assessment of credibility cannot be supported on any reasonable view of the
    evidence:
R. v. Burke
,
[1996] 1 S.C.R. 474, at paras. 5-7, 33.

[62]

The
    appellant argues that where the reasons of the trial judge demonstrate that he
    or she failed to grasp an important point, or has chosen to disregard it,
    leading to the conclusion that the verdict was not one which the trier of fact
    could reasonably have reached, the verdict is unreasonable:
R. v. W.H.
,
    2013 SCC 22, 359 D.L.R. (4th) 442 at paras. 26-29;
R. v. Beaudry
, 2007
    SCC 5, [2007] 1 S.C.R. 190; and
R. v. Sinclair
, 2011 SCC 40
,
[2011]
    3 S.C.R. 3.

[63]

This
    ground of appeal does not succeed.  The verdict in this case was one which the
    trial judge could reasonably have reached.

E.

Conclusion

[64]

I
    am convinced, for the reasons already stated, that the trial judge might not
    have reached the same verdict had he not completely discounted the appellants
    own evidence.

[65]

As
    a result of the foregoing, I would allow the appeal and order a new trial.

Released: JL September 30, 2013

M. Tulloch J.A.

I agree. J. Laskin
    J.A.

I agree. G.R. Strathy
    J.A.


