



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to
    records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section
    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent
    disclosure by school) or (1.15) (information to be kept separate), 45(2)
    (destruction of records) or 46(1) (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.C., 2018 ONCA 779

DATE: 20180925

DOCKET: C64372

Strathy C.J.O., Doherty and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.C.

(A young person in the meaning of the
Youth
    Criminal Justice Act
)

Appellant

Lauren M. Wilhelm, for the appellant

Andrew Hotke, for the respondent

Heard: September 18, 2018

On appeal from the conviction
    entered by Justice Robert Main of the Ontario Court of Justice, dated July 17,
    2017.

REASONS FOR DECISION

[1]

This was essentially a two-witness case. The complainant, the
    appellants half-sister, alleged that the appellant sexually assaulted her when
    she was 5 and the appellant was 13. The appellant testified and denied the
    allegations.

[2]

The trial judge found the appellant guilty on all charges arising out of
    the alleged sexual activity. The appellant appeals from conviction.

[3]

The appellant raises three grounds of appeal. We need address only the
    argument that the trial judge misapplied the burden of proof. In considering
    this submission, the reasons for judgment must be read as a whole. We also
    proceed on the assumption that trial judges understand and properly apply fundamental
    legal principles unless the appellant clearly demonstrates to the contrary.

[4]

We are satisfied that the appellant has met that burden in this case.
    The trial judge believed the complainant and gave detailed reasons for coming
    to that conclusion. However, having made that credibility assessment, the trial
    judge effectively moved directly to convictions without regard to the burden of
    proof and without any explanation for his outright rejection of the appellants
    denial.

[5]

Two passages from the trial judges reasons are important. The first
    appears at the beginning of his analysis. The trial judge observed:

This decision is uniquely challenging, as the analytical tools
    of
R. v. W.D.
are not readily available, even though this is a case
    involving straight credibility.

[6]

The trial judge offered no explanation for his conclusion that the
    analytical tools of
R. v. W.D.
 had no application. Both counsel had
    urged the trial judge to apply that analysis to the evidence.

[7]

In
R. v. W.D.
, [1991] 1 S.C.R. 742, the court emphasized that,
    given the burden of proof on the Crown, criminal cases cannot be reduced to
    credibility contests. The court offered a three-step formula to assist triers
    of fact in the proper application of the burden of proof in cases which turn on
    the credibility of witnesses who have given different versions of the relevant
    events.

[8]

As acknowledged by the trial judge, this was a straight credibility
    case. It was exactly the kind of case that required an application of the
    principles set down in
W.D.

[9]

The Crown submits that the trial judge was not disavowing
    any reliance on the
W.D.
principles
, but was indicating that the optional three-step formula
    used in
W.D.
to describe those
    principles was inappropriate to this case. We cannot accept that submission. Nowhere
    in his reasons does the trial judge address the
W.D.
principles. Specifically, he does not consider
    whether, despite his finding that the complainant was credible and the
    appellant was not, the Crown had proved the case beyond a reasonable doubt. The
    trial judge treated his credibility assessments as determinative of the
    outcome.

[10]

A further indication
    that the trial judge misapplied the burden of proof is found in his
    observations about the evidence of the accused. These observations were made
    after a full review of the complainants evidence. Without reference to the
    substance of the appellants evidence, the trial judge said the following:

We must start off with an acknowledgement that some denials may
    be valid, where someone is accused of something they did not do. The accuseds
    denial must be looked at in the context of all of the evidence. As such, it is
    truly implausible that he did not initiate contact with his little sister. That
    is not to say that, in the balance, her evidence is better than the accuseds
    denial. If her evidence is better, it is because it is true, and leads to an
    inevitable conclusion. Here I am repeating myself, but I do reject the
    accuseds denial.

[11]

With
    respect, the first sentence in the above passage misstates the burden of proof.
    One does not begin the assessment of an accuseds evidence from the premise
    that he might be telling the truth. One begins from the premise that the
    accused is presumed innocent. It is for the Crown to prove beyond a reasonable
    doubt that the accuseds denial is false.

[12]

The
    remainder of the above-quoted passage strongly suggests that the trial judge
    decided the case by assessing the credibility of the competing versions of
    events. He described the appellants version as truly implausible without any
    explanation for why he came to that conclusion, and he described the
    complainants evidence as true. As the trial judge said, those credibility
    assessments led to the inevitable conclusion that the appellant was guilty.
    That approach failed to take into account the burden of proof and the
    possibility of an acquittal, even if the credibility assessments favoured the
    complainant.

[13]

As
    the court indicated at the end of oral argument, the error with respect to the
    burden of proof is fatal to the convictions. The convictions on counts two and three
    are quashed and the provisional stay on count one is set aside. A new trial is
    ordered on all counts.

G.R. Strathy C.J.O.

Doherty J.A.

L.B. Roberts J.A.


