R. v. S.O., 2019 NLCA 42

S.O. (appellant) v. Her Majesty the Queen (respondent) (18/98) Indexed As: R. v. S.O. 2019 NLCA 42 4 C.A.N.L.R. 604 Court of Appeal of Newfoundland and Labrador Hoegg, O’Brien and Goodridge JJ.A. July 10, 2019 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identifythe person described in this judgment as the complainant shall not be published in any documents, broadcast or transmitted inany way.

Summary: S.O. was convicted of sexual assault, invitation to sexual touching and sexual interference in relation to one complainant. The offencesoccurred when the complainant was between the ages of six and nine, and the appellant was between 14 and 17 years old. The appellantappeals his conviction on the basis that the judge misapprehended the evidence of both S.O.’s aunt, who testified for the defence, andthe medical evidence respecting the complainant’s injury. Held: Appeal dismissed.

Hoegg J.A. (O’Brien and Goodridge JJ.A. concurring): The law respecting the misapprehension of evidence by the trial judge andassessing the credibility of witnesses is engaged (paragraphs 14-18). The judge did not misapprehend the evidence of S.O.’s aunt. The judge stated her concern respecting the aunt’s credibility and explainedher reasons for this concern. The trial judge’s credibility assessment and her application of the principle of reasonable doubt in light ofthe evidence were in accordance with the law (paragraphs 19-21).

The judge made no error in her description or assessment of the medical evidence respecting the complainant’s injury (paragraphs 22-28). Cases cited: R. v. Vokurka, 2013 NLCA 51, aff’d 2014 SCC 22, [2014] 1 S.C.R. 498 Stassis v. Amicus Bank, 2014 NLCA 38, 356 Nfld. & P.E.I.R. 80 Faryna v. Chorny (1951), (BC CA), [1952] 2 D.L.R. 354, (B.C.C.A.) R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 Counsel: Derek Hogan, for the appellant; Arnold Hussey Q.C. for the respondent.

The appeal was heard on May 21, 2019 before Hoegg, O’Brien and Goodridge JJ.A. The following judgment was filed on July 10, 2019 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [ 1 ] On June 21, 2018, S.O. was convicted of sexual assault, invitation to sexual touching and sexual interference in relation to one complainant. The offences took place between January 1, 2000 and December 31, 2004, when the complainant was between 6 and 9 years old and S.O. was between 14 and 17 years old.

S.O. was convicted as a youth, and sentenced to a custodial sentence of eight months followed by four months supervision and nine months probation. He appeals his conviction. BACKGROUND [ 2 ] S.O. and the complainant were neighbours. They and others spent a lot of time together, often at S.O.’s home where they played video games in the basement. The complainant testified that on at least 20 occasions S.O. had laid her down on a blanket in the laundry area of the basement where he sexually assaulted her and had her touch his private parts. On at least one of these occasions he attempted intercourse with her.

The complainant stated that the sexual assaults took place primarily in the basement area of S.O.’s home, although she identified his bedroom and a friend’s cabin as places where he had also assaulted her. [ 3 ] During the eight-day trial, seven witnesses testified for the prosecution. S.O. gave evidence in his own defence and he called two witnesses. [ 4 ] The Trial Judge summarized the complainant’s evidence as follows: She believed she was 6 or 7 years old when the accused began to sexually assault her.

She stated that the accused would lay her on a blanket in the laundry area, take off her pants and underwear, and he would touch her vagina with his hands, his mouth, and his penis. She touched--she did not believe that anyone else was present when this happened and that it happened about every other weekend. She said that the accused - -also attempted to put his penis in her vagina and that either the first or second time it happened, she had a lot of bleeding. At [S.O.]'s suggestion, she explained the injury to--by telling her family that she fell on her bike. She ran home screaming.

Her parents brought her to the Janeway, the Janeway Children's Hospital, and she was examined. She estimated that she was 7 or 8 years old, so this incident would have happened in 2002. [The complainant] advised that the accused sexually assaulted her in his bedroom and at a friend's cabin. Also sexually assaulted her at-- in his bedroom and at a friend's cabin. Oftentimes, the assaults involved touching her outside of her clothing, and she testified that [S.O.] ejaculated on her hands, on her belly, and in her mouth.

She testified that shortly before [S.O.] and his mother moved from [the street where they lived], when she was 10 or 11 years old, her older brother found inappropriate conversations between her and the accused on a computer. She cannot remember much about the content of the messages, but she remembers that the accused would also expose himself to her on the webcam. The accused warned her not to tell anyone about these messages. He told her that he did not want anyone to get into trouble, and if people found out about the messages, they could not be friends anymore.

Her brother showed the messages to her father, and her father stormed next door and confronted either the accused or [his mother] about the messages. The sexual abuse stopped after the accused moved away. [ 5 ] Dr. Robert Porter, an emergency physician at the Janeway Hospital on June 19, 2002, testified that the complainant was brought to the hospital on that date by her parents in relation to bleeding from her genital area. The Janeway records show that the complainant reported that she injured herself by the “seat falling off her bike”. Dr.

Porter testified that the complainant had a hematoma on her perineum (the area between the vagina and the rectum) and dried blood was seen in the posterior fornix, which is the part of the vulva closest to the rectum. The complainant was not examined internally due to her age. [ 6 ] After S.O. moved away, the complainant saw him at a dance, after which they began to communicate on Facebook. At one point she demanded he apologize for sexually abusing her as a child and she subsequently received two apologies from his Facebook account.

Mitchell Keeping, an expert in forensic methods of handling and examining digital evidence, especially Facebook evidence, confirmed the apologies came from S.O.’s Facebook account. [ 7 ] The complainant’s brother testified that the children played together frequently in the basement of the offender’s home. He said he recalled an incident when he walked behind blankets that were hung in the laundry area of S.O.’s basement and saw S.O. in a sit-up position over his sister. He said that S.O. told him in an angry voice to get out, and he did.

He said he now realizes that S.O. was hurting his sister and he feels badly about it. The complainant’s brother had no memory of his sister hurting herself on her bike or of the bleeding incident. He did recall that a few years later the complainant asked him to delete S.O.’s sexually inappropriate messages to her from the family computer. Instead of deleting them, he accidentally saved them. These messages were later found by another of the complainant’s brothers who showed them to their father, who “stormed over” to the offender’s home to address the situation.

[8] The complainant’s mother confirmed the neighborly relationships, taking her daughter to the hospital to assess the bleeding fromher genital area, and the incident respecting when the messages were found on the computer. Regarding the bleeding incident, shetestified that the complainant had told her that she had fallen on her bike. [9] S.O. testified that the sexual contact with the complainant had never happened. He denied any knowledge of the computermessage incident and of the complainant’s father storming over to his house to address the situation.

S.O. also denied seeing thecomplainant at a dance and having any subsequent Facebook contact with her, including sending the apologies. He said he believes theFacebook apologies sent to the complainant were from his former girlfriend, as she had access to his Facebook account. S.O.’s formergirlfriend did not testify. [10] S.O.’s cousin and S.O.’s aunt testified for the defence. S.O.’s cousin confirmed that the children played together but he did notrecall the complainant and her brother being at the offender’s residence “that much”.

S.O.’s aunt said that the complainant and herbrother did play with S.O. at S.O.’s house from time to time. She volunteered that the complainant was “an obnoxious child who wasconstantly bugging people”. She also said she knew “bits and pieces” about the computer incident and recalled the complainant’s father“freaking out” about it, but she did not recall any resulting change in the relationship between the two families. [11] The Judge described the case as a credibility case.

She did an extensive review of the evidence and relevant law, and concludedthat the Crown had proved the charges against S.O. beyond a reasonable doubt: I am satisfied that the Crown has proven the elements of these three offences beyond a reasonable doubt. The Crown witnesses werecredible, [the complainant] was forthright, and she did not attempt to excuse her own behaviour when it did not show her in a favorablelight. [the complainant’s brother] was also credible.

It was clear that he did not know the particulars of the abuse perpetrated upon hissister, but he did remember that one incident of seeing [S.O.] in the laundry area of the accused's basement. He would have been veryyoung when he saw this, but he cried during his testimony, because at the time, he did not understand what was happening, but he wasupset that he did not protect his sister. [The complainant's mother’s] evidence was straightforward.

She did not overstate or exaggerate.All of [the complainant’s family members] withstood, but were not shaken, during a very thorough cross-examination. [12] The Judge said that she did not find the defence evidence to be credible: I did not find the evidence of the Defence to be credible. [S.O.’s cousin and aunt], and the accused went through great lengths to suggestthat [S.O.] would never have had an opportunity to carry out these offences. But this is simply not believable when tested against thetotality of the evidence.

I do not accept that [S.O.’s aunt] would have driven S.O. to school every day of his school career, that she spentso much time at her sister's home despite the fact that she had four children of her own, that [S.O.’s mother] never finished work before5:30, or that S.O. was never alone in his home, even as a teenager. I do not accept that the accused would never have had theopportunity to commit these offences.

This does not stack up, to use the phrase from DDS, when considered with the uncontradictedevidence that the next door nelghbours--that they were next door neighbours, that [the complainant], [the complainant’s brother], and[S.O.’s mother] were very fond of each other, that the [complainant and her brothers] loved video games, and the accused had a greatgaming system. The Judge went on to say: The biggest concern that I had with the credibility of the accused and [S.O.’s aunt] was their apparent lack of knowledge about theallegation of inappropriate computer contact between S.O. and [the complainant].

There was a police file opened into an allegation ofchild luring against the accused, but he knew nothing about it … The Judge then concluded: When I test this testimony against the totality of the evidence, or again, to quote Justice Saunders in DDS, "When I consider how thisevidence stands in harmony with the other evidence pertaining to it," particularly the evidence that a child luring Investigation had beenstarted in 2007, the evidence of the vaginal injury suffered by [the complainant], the evidence of what [the complainant’s brother] sawrespecting the accused hovering over the complainant in the laundry area of the basement while he was distracted with video games, andthe Facebook apology, I am satisfied that the Crown has proven these charges beyond a reasonable doubt, and I'm convicting S.O. of thethree counts as set out in the Information.

ISSUES [13] S.O. states two issues on appeal. First, he submits that the Judge misapprehended S.O.’s and his aunt’s evidence respecting theirknowledge of the deterioration in relations between the two households following the discovery of the inappropriate sexual computermessages and their knowledge of the complainant’s father’s visit to the offender’s home to address the situation.

He argues that theJudge speculated that S.O. and his aunt knew more about the incident than they let on, and says that the Judge effectively found that theymisled the Court by denying (in S.O.’s case) and downplaying (in his aunt’s case) their level of knowledge of the incident. Second, S.O.submits that the Judge misapprehended the evidence of injury to the complainant following the bleeding incident. He argues that theJudge’s description of the complainant’s injury as vaginal rather than perineal shows her misapprehension of the doctor’s evidence.

LAW [14] The law respecting misapprehension of evidence was set out by this Court in R. v. Vokurka, 2013 NLCA 51, aff’d 2014 SCC 22,[2014] 1 S.C.R. 498 at paragraph 20: [20] In R. v. MacIsaac, 2013 NLCA 26, Rowe J.A. summarized the law relating to misapprehension of evidence: [16] The test for misapprehension of evidence was set out by Doherty J.A. in R. v. Morrissey (1995), (ON CA), 97C.C.C. (3d) 193 (Ont. C.A.), at paragraph 83:

A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substanceof the evidence, or a failure to give proper effect to evidence. [17] The misapprehension of the evidence must be such that it could have affected the verdict. As Laskin J.A. wrote in R. v. G.(G.),(1995) 8922 (ON CA), (ON CA), 97 C.C.C. (3d) 362 (Ont.

C.A.), at paragraph 59: When an appellate court finds error, it has a duty to consider the nature of the error, its effect on the verdict, and when the verdict isrendered by a judge alone, on the reasoning process by which the verdict was reached. Obviously not every error in the apprehension orappreciation of evidence or in the drawing of a conclusion from evidence warrants quashing a conviction. But s. 686(1)(a)(

i) of theCriminal Code requires this court to intervene if the error leads to an unreasonable verdict, or if the error is an error of law which cannotbe cured by s. 686(1)(b)(iii), or if the error results in a miscarriage of justice. [18] In R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, Binnie J. wrote at paragraph 2: Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance ratherthan to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles are surmounted, thereis the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential partnot just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [21] To this

summary I would add the statement of LeBel J., speaking for the majority in R. v. Sinclair, 2011 SCC 40, [2011] 3S.C.R. 3, to the effect that there is no misapprehension of the evidence if the alleged error is one which the trial judge “may” havecommitted. Rather, the error must be one that is “readily obvious” and was actually committed. [15] As noted above, the Judge described this case as a credibility case.

Her concern about S.O.’s and S.O.’s aunt’s evidence aboutthe computer messaging incident relates directly to her assessment of their credibility. [16] Assessing the credibility of witnesses is the province of trial judges, and many factors inform the result. Deference is owed totheir assessments unless clear error is demonstrated. [17] This Court addressed the issue in Stassis v. Amicus Bank, 2014 NLCA 38, 356 Nfld. & P.E.I.R. 80, wherein White J.A. endorsedthe time-tested approach to assessing credibility set out by the British Columbia Court of Appeal at page 357 of Faryna v.

Chorny(1951), (BC CA), [1952] 2 D.L.R. 354, (B.C.C.A.): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions … … The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothethe trial judge with a divining insight into the hearts and minds of the witnesses.

And a court of appeal must be satisfied that the trialjudge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it canbe tested in the particular case. [18] The comments of McLachlin C.J. in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 respecting reasons for credibility findings alsopertain. At paragraphs 48-51, she stated: 48 The sufficiency of reasons on findings of credibility … merits specific comment.

The Court tackled this issue in Gagnon …Bastarache and Abella JJ., at para. 20, observed that "[a]ssessing credibility is not a science".

They went on to state that it may bedifficult for a trial judge "to articulate with precision the complex intermingling of impressions that emerge after watching and listeningto witnesses and attempting to reconcile the various versions of events", and warned against appellate courts ignoring the trial judge'sunique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge's. 49 While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual … In short, assessing credibility is a difficult anddelicate matter that does not always lend itself to precise and complete verbalization. 50 … "In a case that turns on credibility... the trial judge must direct his or her mind to the decisive question of whether the accused'sevidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt" (para. 23). … (Emphasis added.) ANALYSIS [19] S.O.’s argument respecting the Judge’s alleged misapprehension of his and his aunt’s evidence focuses on the Judge’s comment“the biggest concern I have with the credibility of the accused and [his aunt] was their apparent lack of knowledge about the allegation ofinappropriate computer contact”.

S.O. maintains that the Judge had no basis on which to conclude that his denial of knowledge of theincident was false or that his aunt knew more about it than she acknowledged. He says that the Judge’s concern was based oninappropriate speculation. [20] In this case, the Judge stated that she found the Crown witnesses credible, and explained why. She stated she did not find thedefence evidence credible, and explained why. She went on to say that her biggest concern about their credibility was their evidencerespecting the inappropriate computer messaging.

The Judge specified why their evidence in that regard caused her this concern, sayingthat S.O.’s aunt’s testimony on the issue was evasive, and that the evidence of both S.O. and his aunt did not “stand in harmony” with theother evidence pertaining to the incident, particularly when assessed in relation to the fact that a child luring investigation was started in

2007, the evidence of the complainant’s vaginal injury, the complainant’s brother’s evidence, and the Facebook apology. [ 21 ] A judge is entitled to disbelieve a witness’s evidence and to say so. A judge is also entitled to be struck in a particular way by particular evidence, and to say so. In this case the Judge was struck by S.O.’s and his aunt’s evidence respecting the computer messaging, describing it as her biggest concern about their credibility. She considered their evidence, was not mistaken as to the substance of it, and explained the reasons why she rejected it ( Vokurka , at paragraph 20).

Her treatment of it was not inappropriately speculative. She simply did not believe the evidence of S.O. and his aunt on the point. It is not misapprehension of evidence to disbelieve a witness’s evidence. When the Judge considered their evidence in the context of the evidence as a whole, she did not find it credible and she did not accept it. Her credibility assessments and her application of the principle of reasonable doubt were in accordance with established law.

Misapprehension Respecting the Complainant’s Injury [ 22 ] The Judge found that the complainant’s evidence respecting S.O.’s intercourse or attempted intercourse with her was corroborated by the complainant’s mother’s evidence and the evidence of Dr. Porter, who testified about the complainant’s hospital consultation respecting the genital bleeding. [ 23 ] When the complainant testified, she used the word “vagina” to describe the location of her injury. Dr. Porter, using technical medical language, described the complainant’s injury as “a hematoma on her perineum” and noted that there was “blood on her vulva”.

He testified that the complainant was not internally examined due to her age. The vulva is the tissue surrounding the opening of the vagina; the vagina is an internal organ. The perineum is the area between the vulva and the anus. As noted above, the Judge described the complainant’s injury as vaginal. [ 24 ] S.O. alleges that the Judge misapprehended Dr. Porter’s evidence. The alleged misapprehension is based on the Judge’s description of the complainant’s injury as vaginal rather than perineal.

S.O. made no argument respecting the blood found on the complainant’s vulva, which is the opening to the vagina. [ 25 ] S.O. does not explain why the Judge’s use of the word “vaginal” rather than “perineal” matters. Presumably the Judge’s use of this word, if found to constitute misapprehension, could result in Dr.

Porter’s evidence, or some of it, not being able to be used to corroborate the complainant’s evidence. [ 26 ] The fact of the matter is that the complainant testified that on one of the occasions when she was sexually assaulted in S.O’s basement intercourse occurred or was attempted and she developed bleeding. She then ran home crying with the admonition from S.O. that she was not to divulge what caused the bleeding.

The complainant’s parents took her to the hospital for assessment, where it was confirmed that there had been bleeding in her genital area resulting in a hematoma on her perineum and blood on her vulva. [ 27 ] The complainant was between seven and eight years old at the time. Her vulva, vagina and perineum constituted her small genital area. The fact that a hematoma formed on her perineum and that blood was observed on her vulva is consistent with intercourse or attempted intercourse, especially considering the complainant’s age and the fact that she was not examined internally.

In any event, where blood collected or was found in her genital area was not a key issue in the case. The Judge’s description of the complainant’s injury as vaginal, which is the term most often used in sexual assault cases, does not belie misapprehension of the doctor’s evidence or affect her characterization of it as corroborative of the complainant’s testimony. Moreover, even if it could be said that the Judge misapprehended Dr.

Porter’s evidence, which she did not do, it would not likely have affected her reasoning or the result, given the abundance of other evidence – like the Judge’s acceptance of the complainant’s evidence, the testimony of the complainant’s brother, and the Facebook apology supporting the convictions ( Vokurka , at paragraph 20). [ 28 ] Accordingly, the Judge made no error in her apprehension of the medical evidence respecting the complainant’s injury. [ 29 ] In the result, the Judge committed no error in her apprehension of the evidence in this case. I see no merit in either ground of appeal.

Accordingly, I would dismiss S.O.’s appeal. Appeal dismissed.