R. v. K.P., 2019 NLCA 37

K.P. (appellant) v. Her Majesty the Queen (respondent) (17/62) Indexed As: R. v. K.P. 2019 NLCA 37 4 C.A.N.L.R. 493 Court of Appeal of Newfoundland and Labrador White, Harrington and O’Brien JJ.A. June 5, 2019 RESTRICTION ON PUBLICATION: A

section 486.4 Criminal Code publication ban is in effect in relation to any information that could identify the complainant.

Summary: The appellant, KP, was convicted on two counts of sexual interference, one count of sexual exploitation, and four counts of sexual assault in relation to his stepdaughter, and one breach of probation, contrary to sections 151 , 153(1) (a), 271 and 733.1(1) of the Criminal Code and sentenced to six years imprisonment. KP appealed the convictions and sentence arguing the judge erred in applying the law relating to circumstantial evidence, in unevenly scrutinizing the evidence, in failing to apply the law on credibility determinations, in misapprehending evidence, and in imposing an unfit sentence.

Held: Appeal dismissed. White and O’Brien JJ.A. (Harrington J.A. concurring): The conviction relating to one of the counts of sexual assault related to an incident of sexual touching that occurred in a camper trailer and was based on circumstantial evidence. KP argues that the judge erred in his application of the law relating to circumstantial evidence in this context.

In the present case, the judge reviewed the law relating to circumstantial evidence, considered the totality of the evidence presented at trial regarding the camper trailer incident, identified the circumstantial evidence supporting conviction and concluded that the only reasonable inference to be drawn from the evidence was that KP sexually assaulted the complainant. The judge concluded that proposed alternative inferences did not raise a reasonable doubt. The inferences drawn and conclusion reached by the judge were reasonably open to him.

There is no error in this respect and appellate intervention is not warranted. KP argues that the judge erred in unevenly scrutinizing the evidence by subjecting evidence favourable to the accused to a much greater degree of scrutiny than evidence favourable to the complainant. For an argument of uneven scrutiny to succeed an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently.

Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence. Rather, t he appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant. In the present case, it has not been shown that the judge actually applied different standards of scrutiny. Rather, the judge explained why he rejected the testimony of the appellant.

The judge was aware of inconsistencies in the testimony of the Crown witnesses and considered these in assessing their credibility. No error is apparent in this regard. KP contends that the judge erred by accepting the complainant’s evidence before considering KP’s evidence, which subtly shifted the burden of proof to KP. The judgment in the present case makes numerous references to the Crown’s obligation to prove guilt beyond a reasonable doubt .

The fact that the judge in the present case found the complainant to be credible, and the sequence in which the trial judge set out findings of credibility, does not establish that the judge lost sight of a paramount principle like reasonable doubt or shifted the burden of proof from

the Crown to KP. There is no error in this regard. KP submits that the judge misapprehended the evidence in two respects: first, relating to whether KP was present at the camper trailerwhen it was dark, and second, relating to whether the complainant’s cousin was mistaken in her testimony regarding the date of anincident alleged to have occurred in the complainant’s bedroom. A misapprehension of evidence may refer to a failure to consider relevant evidence, a mistake as to the substance of the evidence or afailure to give proper effect to the evidence.

To constitute a misapprehension of the evidence, the error must be readily obvious andactually committed. The judge found that while the complainant was sleeping in the trailer, she awoke momentarily when she felt vaginal pain, butimmediately fell back to sleep. She woke again when she heard others approach the trailer, at which time she noticed KP inside thetrailer. She testified that it was dark when she woke first, and light when she woke the second time. The judge placed little significanceon how much light the complainant noticed from inside a camper-trailer in these circumstances.

There was no error, and certainly noreadily obvious error, actually committed by the judge, and the requirements for a misapprehension of evidence are not satisfied in thiscircumstance. Regarding the second alleged misapprehension of evidence, the judge clearly understood that the complainant’s cousin was mistaken interms of the time period involved, but accepted that she had not been untruthful regarding the substance of what had occurred, andassessed the evidence in light of his overall finding regarding her credibility. In this respect, again as there was no error. KP was sentenced to six years’ imprisonment.

KP argued that the three-year sentences for the individual counts of sexual assault weredemonstrably unfit. KP also submitted that the ultimate sentence of six years was demonstrably unfit and upholding it would offend theparity principle. However, the principle of parity is secondary to the fundamental principle of proportionality. Determining a proportionate sentence is a highly individualized exercise, requiring consideration of the gravity of the offence and thedegree of responsibility of the offender. The judge’s reasons make it clear that he was alive to the circumstances of the offence and the offender.

He referred to the relevant caselaw and determined what would be an appropriate sentence for each individual offence before adjusting for totality. There is no basis tofind that the three-year sentence for the assaults which occurred between October 2012 and January 2015 was demonstrably unfit. WhileKP’s actions during a subsequent assault in February 2015 were reprehensible, they were not as egregious as his actions between October2012 and January 2015, and they occurred over a shorter period of time. Accordingly, an appropriate sentence on this conviction wouldbe one year of imprisonment, served concurrently.

A reduction in the sentence for that conviction does not, itself, lead to a reduction inthe overall sentence. The assault at the camper trailer in June 2016 involved a single incident, but the three-year sentence was notdemonstrably unfit. While it was open to the sentencing judge to impose a lower sentence than a total of six years, there was no error in principle, and thesentence is not outside the applicable range nor manifestly unfit for these serious crimes. As such, in recognition of the significantdeference owed to the fitness of a sentence, there is no basis for appellate intervention.

The appeals against both conviction and the six-year total sentence are dismissed. Cases cited: R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 R. v. Dipnarine, 2014 ABCA 328 R. v. Day, 2016 NLCA 52 R. v. Radcliffe, 2017 ONCA 176 R. v. Hiscock, 2016 NLCA 74

R. v. Best, 2016 NLCA 10, 375 Nfld. & P.E.I.R. 89 R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 R. v. Morin, (SCC), [1988] 2 S.C.R. 345 R. v. Vokurka, 2013 NLCA 51, aff’d 2014 SCC 22 R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (Ont. C.A.) R. v. Sinclair, 2011 SCC 40 R. v. Butler, 2019 NLCA 21 R. v. L.H., 2011 NLCA 4, 303 Nfld. & P.E.I.R. 76 R. v. Thompson, 2017 SKCA 33 R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 R. v. A.B., 2015 NLCA 19, 365 Nfld. & P.E.I.R. 160 R. v. V.N.R., 2014 BCCA 24 R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211 R. v.

D.D. (2002), (ON CA), 58 O.R. (3d) 788, 163 C.C.C. (3d) 471 (Ont. C.A.) R. v. Medeiros, 2014 ONCA 602 Counsel: Robby Ash, for the appellant; Sheldon Steeves, for the respondent. This appeal was heard on March 6, 2018 before White, Harrington and O’Brien JJ.A.

The following judgment was filed on June 5, 2019 by White and O’Brien JJ.A. for the Court. ______________________________________________________________ White and O’Brien JJ.A.: Overview [1] Following a trial in the Provincial Court of Newfoundland and Labrador the appellant, KP, was convicted on two counts ofsexual interference, one count of sexual exploitation, four counts of sexual assault, and one breach of probation, contrary to sections 151,153(1)(a), 271 and 733.1(1) of the Criminal Code. He was acquitted on one count of sexual exploitation (R. v. K.P., (N.L. Prov.

Ct.)). [2] The Provincial Court judge sentenced KP to six years in prison and made a number of ancillary orders (R. v. K.P., (N.L. Prov. Ct.)). [3] KP is appealing the convictions and sentence. He submits the judge erred in applying the law relating to circumstantialevidence, in unevenly scrutinizing the evidence, in failing to apply the law as set out in R v.

W.(D.), (SCC), [1991] 1S.C.R. 742 (S.C.C.), in misapprehending evidence, and in imposing an unfit sentence. [4] For the reasons which follow, we would conclude that the judge did not err in his analysis or conclusion regarding theconvictions or the six-year sentence. As such, we would dismiss the appeal. Background [5] The complainant (referred to in the trial judgment and herein as A), was KP’s stepdaughter from 2005 until 2015.

During thistime period, KP and A’s mother were in a common-law relationship, and KP lived with A, her mother, and A’s sister (B). [6] The convictions involve incidents which the judge found had occurred in three different locations: the family cabin, the familyhome and a camper trailer. [7] On June 5, 2016, an incident occurred at a camper trailer which led to KP being charged with sexually assaulting A. During the

police investigation into this incident, A reported earlier sexual incidents involving KP which the judge found to have occurred between 2012 and 2015, at the family cabin and in A’s bedroom in the family home. [ 8 ] The judge described the June 5, 2016 camper trailer incident, and outlined the criminal charges which resulted from that incident and the earlier ones as follows: [2] On June 5, 2016, at around 5:30 a.m., KP entered a camper-trailer in which A was asleep. KP pulled down A’s pants and panties and placed something into A’s vagina. A’s sister (

B) and her cousin (

C) happened to arrive at the camper- trailer shortly after this occurred. Both of them saw KP sitting on the bed in which A was sleeping, with his pants down around his ankles. [3] The police were contacted and KP was arrested and charged with having sexually assaulted A on June 5, 2016, and as a result, having breached a probation order he was bound by at the time, contrary to sections 271 and 733.1(1) of the Criminal Code of Canada , R.S.C. 1985. In addition, KP was charged with the offences of sexual interference, sexual exploitation, and sexual assault, relating to the time period of 2012 to 2015, contrary to sections 151 , 153(1) (

a) and 271 of the Criminal Code . In total, KP is charged with nine offences… [ 9 ] Further details regarding the camper trailer incident were provided at paragraph 29 of the judgment: [29] A testified that when she awoke she noticed that the pajama pants she had put on before going to bed and her panties had been pulled down near her knees. She did not know how this occurred.

A testified that KP pulled up her pants and panties after her sister and her cousin arrived and just before he left the camper-trailer. [ 10 ] The earlier incidents, which the judge found to have occurred between 2012 and 2015 at the family cabin and in A’s bedroom in the family home, were described by the judge as follows: The Earlier Incidents: [39] A testified that KP had lived with her, her sister and her mother. She regarded him as being her stepfather.

A indicated that KP and her mother separated in the “fall” of 2015. [40] A testified that the first incident occurred at the family’s cabin “around” the time that she was in grade six or seven and would have been eleven or twelve years of age.

(1) At The Family Cabin: [41] A testified that she, her mother and KP were at the family cabin. She described waking up and finding KP with his hands “down her pants.” A indicated that KP was “rubbing” her vagina and “pressing hard” on her vagina. A indicated that KP tried to place his finger inside her vagina, but did not do so. She described pretending that she was waking up, hoping KP would stop and leave her bedroom.

(2) In A’s Bedroom: [42] A testified that a number of similar incidents occurred inside her bedroom at her residence. She described KP entering her bedroom, “breathing heavily”, and staring at her or touching her vagina. A indicated that she was not sure how many times such incidents occurred. She suggested he entered her room “over fifty times” and touched her “more than twenty times.” … [50] A testified that the incidents in her bedroom continued to occur after the first incident until KP was placed in custody.

She indicated that it then continued after he was released from custody. [51] The evidence presented at the trial established that KP was in custody [for offences unrelated to the present matters] from June 11, 2012 until November 7, 2013 and from November 7, 2015 until April 15, 2016. Issues [ 11 ] KP submits that the judge erred as follows: 1. In applying the law relating to circumstantial evidence with respect to the camper trailer incident; 2.

In unevenly scrutinizing the evidence by subjecting evidence which was favourable to the accused to a much greater degree of scrutiny than evidence favourable to the complainant; 3. In failing to apply the law as set out in R. v. W.(D.) , by shifting the burden of proof to KP; 4. In misapprehending certain evidence; and 5. In imposing an unfit sentence. The issues to be considered on this appeal are whether the judge erred in any of these respects.

Analysis Issue 1: Circumstantial evidence and the camper trailer incident [12] The conviction relating to the camper trailer incident was based on circumstantial evidence. KP argues that the judge erred in hisapplication of the law relating to circumstantial evidence in this context. [13] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, the Supreme Court of Canada discussed the proper approach to betaken when dealing with circumstantial evidence.

The Supreme Court stated (paragraph 55) that, where the Crown’s case depends oncircumstantial evidence, the question is whether the trier of fact “could reasonably be satisfied that the accused’s guilt was the onlyreasonable conclusion available on the totality of the evidence”. The Court also noted (paragraph 56) that circumstantial evidence neednot totally exclude other conceivable inferences, and that it is for the trier of fact to determine “if any proposed alternative way oflooking at the case is reasonable enough to raise a doubt”.

The Court stated: [55] … Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially,could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: Yebes,at p. 186; R. v. Mars (2006), at para. 4; R. v. Liu (1989), 1989 ABCA 95 , 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R., 2003ABCA 148; R. v. Cardinal (1990), 1990 ABCA 115 , 106 A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), (SKCA), 97 Sask.

R. 66 (C.A.), at paras. 28 and 31. [56] The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22. The court noted that“[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simplybecause “the alternatives do not raise a doubt” in the jury’s mind.

Most importantly, “[i]t is still fundamentally for the trier [of] fact todecide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.” The judge’s treatment of the circumstantial evidence [14] The judge reviewed the evidence in detail, made numerous findings of fact based on the evidence, and concluded that KPsexually assaulted A at the camper trailer on June 5, 2016. The judge stated the following with respect to the evidence: [123] The evidence establishes that when [A’s boyfriend] X returned to the cabin KP was there.

The evidence also establishes that KPlearned that A was alone in the camper-trailer and left in his truck, purportedly to return home. However, as we now know he did notreturn home. Instead, KP drove to the camper-trailer where A was alone, entered the camper-trailer and pulled his pants and underweardown. KP had been drinking alcohol, but he was able to drive. I conclude that KP was not affected by alcohol to the point that he wouldnot have known where he was going, where he was, or what he was doing. I conclude that KP purposely drove to the camper-trailer withthe intent of sexually assaulting A.

I conclude that he entered the camper-trailer and pulled his pants and underwear down for this solepurpose. [124] … The evidence establishes that A was awoken by a pain she felt in the area of her vagina. She fell back to sleep. [125] A was not able to testify as to exactly what caused the pain in her vaginal area other than describing it feeling like something bighad been placed into her vagina. The evidence establishes that Dr. K noted that A’s vaginal area was red and sore. The evidence alsoestablishes that someone pulled A’s pants and panties down to the area of her knees while she was asleep.

We know that KP pulled A’spants and panties up after being caught with his own pants down. … [127] When the evidence is considered in its totality, it clearly establishes that someone entered the camper-trailer while A was asleep,pulled down her pants and panties without waking her and inserted something into her vagina. [128] The evidence establishes that A was awoken again after hearing her sister and her cousin’s laughter and footsteps outside thecamper-trailer. The evidence also establishes that at this same time, A heard KP say: “Oh fuck.” I accept this evidence as accurate.

Why did KP say “Oh Fuck” when B and C arrived at the camper-trailer? He did so because he was caught in the act of sexuallyassaulting A. KP had been caught with his pants down. [129] I accept as accurate, B’s evidence of having seen KP sitting on the edge of the bed near the door with his pants pulled down to hisankles. B’s evidence is corroborated by C’s evidence. C also described seeing KP sitting on the bed in which A was lying with his pantson the floor near his ankles. I conclude that KP began to pull his pants up when he heard B and C approaching the camper-trailer.

Itwas, however, too late. [130] Interestingly, when C opened the door of the camper-trailer, KP immediately closed it. Why? I conclude that KP closed the doorso that he could pull his pants up and pull up the panties and pajamas A was wearing and which he had pulled down before B and Cunexpectedly arrived. KP was not performing a step-fatherly act. He was attempting to conceal a crime. [131] The evidence presented establishes that approximately ten to fifteen minutes after KP left the camper-trailer he began to send textmessages to B.

I conclude that in these text messages KP pretended that he did not know what B was “talking about.” Interestingly, inthe text messages KP suggested to B that he was unable to “remember anything” after a “drinking game” and that “maybe” he “thought”he “was home and going to bed.” However, in a statement KP provided to the police on June 5, 2016, he told the officer interviewinghim that he “could recall everything that happened” on June 5, 2016. I conclude that KP lied to B. [132] In the interview with the police officer, KP does not suggest that he took his pants down because he thought he was home.

Rather,he indicated to the officer that he purposely went to the camper-trailer to “check” on A. KP told the officer that he was going to “liedown and have a nap” and decided as a result to take his pants off. Of course, KP could have slept in the same bed as his step-daughterwhile remaining fully clothed.

[133] KP told the officer who interviewed him that “it was pretty quick because like I say my pants was off and then I realized what I was doing like. Fuck I don’t have nothing [sic] to put on. Just like that so I put my pants back on and lie down. I never got a chance to lie down.” [ 15 ] Having reviewed the evidence, the judge concluded that KP had sexually assaulted A: [134] These are lies. KP did not go to the camper-trailer to check on A. He went there to sexually assault her when he learned that she was alone.

KP entered the camper-trailer, pulled down both A’s pants and panties and his own pants and underwear. He then sexually assaulted A by placing something into her vagina. Did the judge err in respect of the circumstantial evidence? [ 16 ] KP did not testify at trial. He did provide a statement to police which was admitted into evidence.

The judge (at paragraph 97) noted KP’s position that “what occurred at the camper-trailer was a ‘misunderstanding’ ”, and summarized KP’s submission “that A did not identify KP as having touched her in a sexual manner; and that the vaginal pain that A described could have been caused by events other than a sexual assault”. [ 17 ] KP argues that an alternative inference could reasonably have been drawn from the evidence that no sexual assault had occurred or, alternatively, in the event there had been a sexual assault, that someone other than KP was responsible for it (perhaps A’s boyfriend or some other unidentified individual).

KP submits that these possible alternative inferences created a reasonable doubt. [ 18 ] At paragraph 42 of Villaroman, the Supreme Court of Canada referenced the Alberta Court of Appeal decision in R. v. Dipnarine , 2014 ABCA 328 , which stated that alternative inferences made from circumstantial evidence must be “reasonable, not just possible”. [42] The second is from R. v. Dipnarine , 2014 ABCA 328 , 584 A.R. 138 , at paras. 22 and 24-2 5 . The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. [ 19 ] In Villaroman (paragraph 67 ) the Supreme Court held that the appellate court in that case had erred “… by focusing on hypothetical alternative theories and, at times, engaging in speculation rather than on the question of whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him.” [ 20 ] The Supreme Court further held in Villaroman (paragraph 71 ) that such an analysis “… overlooks the important point made in Dipnarine that it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation.

The trier of fact’s assessment can be set aside only where it is unreasonable.” [ 21 ] Similarly, in R v.

Day , 2016 NLCA 52 , this Court, citing Villaroman , stated that “… circumstantial evidence does not have to exclude entirely other conceivable inferences, but rather such alternatives must not raise a reasonable doubt” (paragraph 3). [ 22 ] In the present case, the judge reviewed the law relating to circumstantial evidence (paragraphs 68-71), considered the totality of the evidence presented at trial regarding the camper trailer incident, identified the circumstantial evidence supporting conviction and concluded that the only reasonable inference to be drawn from the evidence was that KP sexually assaulted A.

The judge concluded that proposed alternative inferences did not raise a reasonable doubt. [ 23 ] The inferences drawn and conclusion reached by the judge were “reasonably open to him” ( Villaroman , paragraph 67 ). As the judge’s assessment and rejection of the proposed alternative inferences, and his drawing of the line “that separates reasonable doubt from speculation”, was not unreasonable ( Villaroman , paragraph 71 ), there is no error in this respect and appellate intervention is not warranted.

Issue 2: Uneven scrutiny of the evidence [ 24 ] KP argues that the judge erred in unevenly scrutinizing the evidence by subjecting evidence favourable to the accused to a much greater degree of scrutiny than evidence favourable to the complainant. KP’s argument that the judge unevenly scrutinized the evidence relates directly to the judge’s credibility findings. [ 25 ] In R. v.

Radcliffe , 2017 ONCA 176 , at paragraph 23 , Justice Watt of the Ontario Court of Appeal considered an argument relating to uneven scrutiny of evidence by a trial judge, and observed that this is a “difficult argument to make successfully”, as ultimately this argument often involves credibility assessments which are “the province of the trial judge”, attracting “significant appellate deference”. [ 26 ] This Court has also noted that findings of credibility are “within the purview of the trial judge” and are not to be lightly interfered with on appeal (see , for example, R. v.

Hiscock , 2016 NLCA 74 , at paragraph 17 ). [ 27 ] In the present case, KP had provided an out of court statement to police regarding what had happened at the camper trailer. The judge determined that KP’s statement was inconsistent with text messages KP had sent to B (A’s sister) within minutes after B had seen KP at the trailer with A.

The judge ultimately concluded that KP’s out of court statement was untruthful and rejected it. [ 28 ] However, KP contends that the testimony of several Crown witnesses, including A, B, and D (A’s cousin), also contained inconsistencies, but that their evidence was not wholly rejected by the judge. KP therefore submits that the judge applied a different standard of scrutiny to KP’s evidence when compared to the scrutiny applied to the evidence given by A, her sister (

B) and cousin (D). KP maintains that the inconsistencies should have caused the judge to reject their evidence. [ 29 ] To properly assess KP’s argument of uneven scrutiny, it is useful to review the alleged inconsistencies and consider how the judge dealt with the evidence of the respective witnesses, starting with KP’s evidence.

The judge’s assessment of KP’s evidence [ 30 ] KP did not testify at trial. The judge considered an exchange of text messages between KP and B, which exchange occurred in the early morning of June 5, 2016, within minutes after B had witnessed KP with his pants down in the camper trailer. The judge also considered KP’s out of court statement which KP provided to police later in the day on June 5, 2016. The judge concluded that KP had not been truthful in either circumstance. [ 31 ] In the text messages, KP stated he “can’t remember anything …but maybe I thought I was home and going to bed I don’t know”.

The judge referred to the text messages as follows: [30] B testified that approximately ten to fifteen minutes after KP left the camper-trailer she received a text message from him. This text message and a number of subsequent text messages from KP to B were photographed by the police and entered as an exhibit. The stream of text messages, commencing at 5:35 a.m. on June 5, 2016, were the following: KP: U gone to bed B: No I’m not lose my number you fucking piece of shit KP: What you talking about B: You fucking knows what I’m talking about.

Now fuck off KP: B I don’t want [sic] are you talking about B: Oh really? Fuck you. Why did you have your fucking pants off when me and C got there?!?!? Fuck you.

You fucking pervert We fucking caught you so fuck off KP: Can u call me please I did not do what u think I did so please here me out Call me please I can’t remember anything after the drinking game but maybe I thought I was home and going to bed I don’t know. [31] B testified that there had been some “drinking games” at the cabin, but she also indicated that when KP left the cabin he was “not drunk.” [ 32 ] The judge also considered KP’s out of court statement to police. As KP did not testify at trial, the statement was not subject to cross-examination.

In his statement, KP described the camper trailer incident as a “big misunderstanding”. He indicated that he had gone to the trailer to check on A, decided to take a nap there, took off his pants, realized he didn’t have any “sleeping shorts” and, while his pants were down, B and C appeared at the trailer. The judge stated: [57] KP was interviewed by the police on June 5, 2016.

The interview was audio and video recorded. [58] In the interview, KP denies having touched KP [ sic ] in 2012 or at any other time. [59] In relation to what occurred on June 5, 2016, at the camper-trailer, KP referred to it as a “big misunderstanding.” KP told the officer interviewing him that he had gone to the camper-trailer to check on A. KP indicated that after he entered the camper-trailer he decided to stay because he felt he had drank too much to drive home.

He indicated that he was “going to lie down for a nap.” [60] KP told the officer that he was going to “lie down and have a nap and wait for the other kids to come up and when they comes [ sic ] up then I will leave, right?” KP indicated that “not thinking, I guess, I took my pants off, and then when I realized it I said well I don’t have no sleeping shorts cause I puts [ sic ] sleeping shorts on to sleep, right?” [61] KP told the officer that he “could recall everything that happened” on June 5, 2016.

He indicated that “it was pretty quick because like I say my pants was off and then I realized what I was doing like. Fuck I don’t have nothing [ sic ] to put on. Just like that so I put my pants back on and lie down. I never got a chance to lie down.” [ 33 ] Having considered KP’s evidence, the judge concluded that KP was not truthful and that his evidence did not create a reasonable doubt: [103] I conclude that KP lied to the police. I also conclude that KP lied to B in his text messages to her on June 5, 2016.

I conclude that KP purposely attempted to mislead the police as to what occurred on June 5, 2016, and that he did so to cover up his criminal activity. The statement KP provided to the police does not cause me to have a reasonable doubt in relation to any of the charges laid against him. The judge’s assessment of the complainant’s evidence [ 34 ] KP submits there were inconsistencies in A’s evidence which should have impacted the judge’s assessment of her credibility.

For example, there was conflicting evidence as to whether A had used the term “raped” when she went to the local hospital the morning of June 5, 2016 and described what had occurred in the camper trailer earlier that morning. The evidence of A and the investigating police officer was that A had not used that term, while the evidence of a nurse at the hospital indicated otherwise. [ 35 ] KP argues that A’s evidence was inconsistent, as at trial she denied having stated she had been “raped” when there was evidence

that she had used that term at the hospital. KP submits that the judge did not appropriately scrutinize A’s evidence in this respect. [ 36 ] The judge considered the evidence on this issue, and held that it did not negatively impact A’s credibility or the reliability of her evidence: [136] Constable Garland testified that A was initially seen by a nurse at 7:54 a.m.

Constable Garland indicated that before A spoke to anyone at the hospital, A had told her that she thought she had been “digitally penetrated” while asleep at the camper-trailer, but she was “not raped.” A testified that she did not tell the nurse that she had been “raped.” [137] As we have seen, however, the nurse who had the initial contact with A at the hospital was sure that A referred to having been “raped.” However, the evidence also establishes that A was described by Doctor K as being “shy” and of having provided non-verbal responses to a number of questions asked of her.

In addition, A had just been sexually assaulted by her step-father. She is taken by the police to the hospital and asked to describe what occurred. I am not satisfied that A referred to being raped, but if she had I would not place significant emphasis on such a comment in the circumstances I have described. A complainant’s every utterance in a stressful situation can be parsed for inconsistencies, but it should not be done with the expectation that such inconsistency is abnormal or necessarily significant.

To do so is to ignore the realities of a person in the complainant’s position having to describe a personal and sexual matter to a stranger. [138] The evidence presented in relation to what occurred at the hospital does not affect A’s credibility or reliability as a witness. [ 37 ] Having considered A’s evidence, the judge noted that “not all of her evidence is free of contradiction or inconsistency”, but he found A to be “a credible and trustworthy witness”: [102] A testified in a very clear and direct fashion. She responded directly to the questions asked of her.

I found her to be a credible and trustworthy witness. I believe and accept the evidence she provided at the trial as being honest and accurate. Not all of her evidence is free of contradiction or inconsistency, but a standard of perfection is not required among human witnesses and those who expect it miscomprehend the difficulty of testifying and describing for the police (or others) a sexual incident. The judge’s assessment of B’s evidence [ 38 ] B (A’s sister) testified that she had witnessed KP with his pants down at the camper trailer.

B’s testimony was accepted by the trial judge on this point, and it was consistent with the testimony of another witness, C, who also saw KP at the trailer. [ 39 ] KP does not contest that he was at the trailer when B and C arrived there, or even the fact that his pants were down at that time.

However, he submits that the judge should not have believed the evidence of B due to an unrelated inconsistency in her testimony which, KP submits, was not appropriately assessed by the judge. [ 40 ] This unrelated inconsistency was that B testified at trial that she had been previously told by A that KP had sexually assaulted A on occasions prior to the camper trailer incident in 2016.

However, before the trial, B had denied that A had told her about any prior sexual assaults. [ 41 ] The judge indicated that while this inconsistency “negatively affects [B’s] credibility, [it was] not to the point that I reject all of her evidence…” (paragraph 141). [ 42 ] KP submits that the judge’s failure to reject all of B’s evidence indicates an unequal level of scrutiny applied to the evidence. However a judge, having considered the evidence of a witness, can decide to accept all, some or none of the evidence (see , for example, R. v. Best , 2016 NLCA 10 , 375 Nfld. & P.E.I.R. 89 at paragraph 6 ).

In this case, the judge noted that B’s evidence relating to the camper trailer incident “received significant corroboration” (paragraph 141), which was an important consideration. In this circumstance, the judge was certainly not compelled to reject all of B’s evidence, especially given that B’s testimony was corroborated by others. The judge’s assessment of D’s evidence [ 43 ] D (A’s cousin) testified that she had, on occasion, stayed at A’s house and slept in A’s bedroom. She testified that, on one occasion, after she and A had gone to sleep, she awoke and saw KP standing in the bedroom.

The judge noted that D testified KP was “wearing boxers”, “touching his penis” and “breathing hard” (paragraph 115 of the judgment). There was no indication in D’s testimony that KP had touched either A or D on that occasion. [ 44 ] D testified that the event in question occurred in December 2015, but her recollection on the date was clearly incorrect as KP was in jail in December 2015, serving a sentence for unrelated matters. [ 45 ] The judge acknowledged “that D was mistaken as to the time period involved”, but did not conclude that D had fabricated the evidence or was being dishonest.

The mistake as to the time period, in the judge’s assessment, did not vitiate D’s testimony, as the judge found D to be “a credible and honest witness” and he did “not believe D made this incident up” (paragraph 115). Did the judge err by unevenly scrutinizing the evidence? [ 46 ] KP’s main submission regarding uneven scrutiny of the evidence is that the judge erred in disbelieving him and rejecting his evidence outright, while not wholly rejecting the evidence of A, B and D, whose evidence also contained inconsistencies. [ 47 ] As this Court has stated in R. v.

Best , 2016 NLCA 10 , it is a trial judge’s duty to consider the evidence of each witness and determine whether some, all or none of the evidence is accepted or rejected: [6] Regardless of the Judge's general comments about the Complainant's credibility, regard must be had to basic principles about the assessment of a witness's credibility. A judge or any trier of fact can accept "all, some or none" of a witness's evidence. In other words,

because a judge accepts a witness's testimony on some points does not mean that he or she must accept that witness's testimony on all orany other points. Conversely, a judge need not reject a witness's evidence on all or any other points because he or she does not acceptthat witness's evidence on some points.

It is a trial judge's duty to consider and weigh individual pieces of evidence, including thetestimony proffered by individual witnesses, in the context of all the evidence, and he or she does not err in accepting some and rejectingother evidence from the same witness provided that he or she applies the applicable law and gives adequate reasons for his or herdecision. [48] The judgment demonstrates that, in rejecting KP’s evidence, the judge was alive to the competing theories as to what happened inthe camper trailer and that he made a determination regarding KP’s credibility based on the evidence as a whole: [94] Ms.

Duffy [Crown counsel] submitted that A was an honest and credible witness whose evidence was corroborated. Ms. Duffyargued that KP was caught “with his pants down” on June 5, 2016, and that this led to A disclosing the earlier sexual assaults. … [95] Ms. Duffy submitted that KP’s statement to the police was concocted. She suggested that it is inconsistent with what KP said inhis text messages to B immediately after the incident at the camper-trailer. Ms. Duffy argued that KP provided a false statement to thepolice after having an “opportunity to think” about what he was going to say. Ms.

Duffy submitted that KP went to the camper-trailerbecause he had been told by X that A was there alone. … [97] Mr. Ash [Defence counsel] submits that what occurred at the camper-trailer was a “misunderstanding.” Mr. Ash argued that KP’sexplanation for what occurred at the camper-trailer was a reasonable one.

He also pointed out that there was no “biological evidence” toconnect KP to having sexually assaulted A in the camper-trailer; that A did not identify KP as having touched her in a sexual manner;and that the vaginal pain that A described could have been caused by events other than a sexual assault. … [100] Finally, Mr.

Ash submitted that KP provided a “frank and forthright” statement to the police which I should either accept asaccurate or which should cause me to have a reasonable doubt as to whether KP committed any of the offences with which he is charged. [49] In assessing the evidence of A, B and D, the judge was aware of potential issues which might negatively impact their credibilityand the reliability of their evidence.

For example, the judge addressed the conflicting evidence regarding whether the complainant hadstated she had been “raped”, he noted that B’s testimony about what B saw at the camper trailer was corroborated by others, and heacknowledged that D was mistaken regarding the time period in question. [50] The Ontario Court of Appeal in Radcliffe (paragraph 24) held that, for an argument of uneven scrutiny to succeed : … an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessedcredibility differently.

Nor is it enough to show that the trial judge failed to say something she or he could have said in assessingcredibility or gauging the reliability of evidence … [51] Rather, the bar is higher.

The Court in Radcliffe noted (at paragraph 25) that “the appellant must point to something, whether inthe reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards ofscrutiny in assessing the evidence of the appellant and complainant …”. (Emphasis in original.) [52] Further, as stated in Radcliffe, the fact a judge accepts the evidence of a complainant and rejects an accused’s evidence “does notmove the yardsticks on an argument based on uneven scrutiny” (paragraph 28). [53] In the present case, it has not been shown that the judge “actually applied different standards of scrutiny” (Radcliffe, paragraph25).

Rather, the judge “explained why he rejected the testimony of the appellant”, was not “unreasonable or hyper critical in his approachor findings”, and his reasons were “firmly grounded in the evidence” (Radcliffe, paragraph 31). The judgment demonstrates that thejudge was aware of inconsistencies in the testimony of A, B and D and considered these in assessing their credibility. No error isapparent in this regard. Issue 3: Failing to apply the law as set out in R. v.

W.(D.), by shifting the burden of proof to KP [54] KP is not arguing that the judge erred by failing to refer specifically to the Supreme Court of Canada’s decision in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. [55] Rather, KP submits the judge erred in not properly following the “roadmap” contained in R. v. W.(D.).

Specifically, KPcontends that the manner in which the judge assessed and accepted the complainant’s evidence resulted in the burden of proof shiftingfrom the Crown to KP. [56] The judge found (paragraph 102 of the judgment) the complainant to be a “credible and trustworthy witness” whose evidencewas “honest and accurate”, while in the following paragraph (103) the judge stated that KP “lied to the police”, “lied to B in his textmessages to her”, and concluded that “KP purposely attempted to mislead the police as to what occurred on June 5, 2016, and that he didso to cover up his criminal activity”.

In the result, the judge found that KP’s statement to police “does not cause me to have a reasonabledoubt in relation to any of the charges laid against him” (paragraph 103). [57] In KP’s submission, the judge erred by accepting the complainant’s evidence before considering KP’s evidence, which subtlyshifted the burden of proof to KP. [58] The issue of a “subtle shift” in the burden of proof arising from a judge’s acceptance of a complainant’s evidence was consideredby the Supreme Court of Canada in R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5.

[59] The majority of the appellate court in C.L.Y had “rejected C.L.Y.’s argument that the trial judge, by considering the evidence of[the complainant] first, had shifted the burden of proof contrary to [the Supreme Court of Canada’s] instruction in R. v. W.(D.)”.

Inrejecting the argument that a shift had occurred, the majority of the appellate court noted that the trial judge understood that making adetermination regarding credibility did not mean the accused was guilty, and further, that the judge did not “leap from her credibilityfinding directly to conviction”, but had “applied the principles of reasonable doubt” (C.L.Y., paragraph 3). [60] The majority of the Supreme Court of Canada in C.L.Y. noted that “what W.(D.) offered was a helpful map…”, the purpose ofwhich was to ensure “… the verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, basedon the whole of the evidence, [triers of fact] are left with a reasonable doubt as to the accused’s guilt…” (C.L.Y., paragraph 8). [61] In C.L.Y., the majority of the Supreme Court of Canada agreed with the majority of the appellate court in concluding that the trialjudge’s finding that the complainant was credible, and the “sequence in which the trial judge set out her findings of credibility”, did notshift the onus to the accused to prove that he was not guilty.

The majority decision of the Supreme Court of Canada in C.L.Y stated onthis point: [12] The trial judge’s reasons reveal that she understood that a finding that the girl was credible did not mean that the onus shifted to theaccused to show that he was not guilty. I find it difficult to see how the sequence in which the trial judge set out her findings ofcredibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramountlegal principle like reasonable doubt. Did the judge fail to apply the law as set out in R. v.

W.(D.), by shifting the burden of proof to KP? [62] While not specifically referencing the Supreme Court of Canada’s decision in R. v. W.(D.), the judgment in the present casemakes numerous references to the Crown’s obligation to prove guilt beyond a reasonable doubt. [63] The judge referenced the applicable principles throughout the judgment. He described the Crown’s onus early in the decision(paragraph 4) and at a later point (paragraph 101): [4] KP pleaded not guilty to all of the charges laid against him and a trial was conducted.

The sole issue which I have to determine iswhether the Crown has proven beyond a reasonable doubt that KP committed any of these offences. … [101] As noted earlier, KP is charged with nine offences.

Each of these offences must be considered based upon the evidence relevant tothat offence and a conviction can only be entered if the Crown has proven beyond a reasonable doubt that KP committed the specificoffence with which he is charged. … [64] The judge explained the presumption of innocence at paragraph 65: [65] Every person charged with a criminal offence in Canada is presumed to be innocent until the Crown has proven beyond areasonable doubt that she or he committed the offence with which that person is charged. The onus of proof, as regards proving guilt,never switches from the Crown to the accused.

In deciding whether the Crown has proved its case to the criminal standard I mustconsider the whole of the evidence and I may only convict if I am satisfied that the Crown has established the accused’s guilt beyond areasonable doubt. [65] And he discussed the principle of reasonable doubt at paragraph 67: [67] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada indicated that proof beyond areasonable doubt “does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolousdoubt.” In R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144, however, the Court pointed out that the burden of proof placed uponthe Crown lies “much closer to absolute certainty than to a balance of probabilities.” [66] The judge specifically discussed the burden of proof in the context of assessing KP’s out of court statement at paragraph 64: [64] In

summary, rejecting an accused’s persons out of court statement does not equate with proof of guilt.

A trial judge who rejectssuch a statement as implausible must still consider the totality of the evidence and determine if the Crown has proven the accusedperson’s guilt beyond a reasonable doubt. [67] The judge also considered the evidence going to each specific charge against KP in relation to the above law and concluded, forthe reasons provided in the judgment, that eight charges against KP had been proved beyond a reasonable doubt and one charge had not. [68] The judge dealt separately with the evidence relating to the incidents at the family cabin, the family home and the camper trailer,as follows: The Incident at the Family Cabin (sections 151, 153(1)(a), and 271): [143] The evidence establishes beyond a reasonable doubt that when A was a young girl, approximately eleven or twelve years of age,she awoke in her bedroom at the family’s cabin.

She awoke because KP had his hands “down her pants.” The evidence establishesbeyond a reasonable doubt that KP rubbed A’s vagina and pressed his hand against A’s vagina. [144] I am satisfied beyond a reasonable doubt that when A was approximately eleven or twelve years of age, KP touched her at thefamily cabin for a sexual purpose and in circumstances of a sexual nature. I am also satisfied that at the time, KP was in a position oftrust and authority in relation to A. However, the evidence does not establish that at the time A was a “young person” as defined insection 153(2) of the Criminal Code.

[145] As a result, KP is convicted of breaching sections 151 and 271 of the Criminal Code [counts one and three] and acquitted ofbreaching section 153(1)(

a) of the Criminal Code [count two]. A Number of Incidents at the Family Home (sections 151, 153(1)(

a) and 271): [146] The evidence establishes beyond a reasonable doubt that a number of similar incidents occurred inside A’s bedroom at herresidence. The evidence establishes beyond a reasonable doubt that on a number of occasions, KP entered A’s bedroom after she hadgone to sleep. … [147] The evidence establishes beyond a reasonable doubt that on one occasion KP digitally penetrated A’s vagina. This incidentoccurred while A’s mother was asleep with her in her bed.

The evidence establishes beyond a reasonable doubt that KP reached over A’smother, who was asleep, and placed his fingers into A’s vagina. … [149] I am satisfied beyond a reasonable doubt that KP touched A in her bedroom for a sexual purpose and in circumstances of a sexualnature. I am also satisfied that at the time, KP was in a position of trust and authority in relation to A. I am also satisfied that for aportion of this time, A was a “young person” as defined in section 153(2) of the Criminal Code. [150] As a result, KP is convicted of breaching sections 151, 153(1)(

a) and 271 of the Criminal Code [counts four, five and six]. A Number of Incidents at the Family Home between February 1, 2015 and February 28, 2015 (section 271): [151] The evidence establishes beyond a reasonable doubt that on numerous occasions after KP was released from custody (April 29,2014 to November 7, 2015), he entered A’s bedroom after she had gone to sleep.

The evidence establishes beyond a reasonable doubtthat KP would at times be breathing “heavily”, that he would either stare at A or touch her vagina. [152] I am satisfied beyond a reasonable doubt that KP touched A in her bedroom in circumstances of a sexual nature and without herconsent. As a result, KP is convicted of breaching

section 271 of the Criminal Code [count seven]. The Incident at the Trailer on June 5, 2016 (sections 271 and 733.1(1)): [153] The evidence establishes beyond a reasonable doubt that on June 6, 2016, that after KP learned that A was alone in the camper-trailer he left the cabin in his truck and drove to the camper-trailer where A was alone. The evidence establishes beyond a reasonabledoubt that KP entered the camper-trailer, pulled down A’s pants and panties and pulled down his own pants and underwear.

Theevidence establishes beyond a reasonable doubt that KP inserted something into A’s vagina, but it is not possible to determine what heinserted. The evidence establishes beyond a reasonable doubt KP drove to the camper-trailer with the intent of sexually assaulting A. Iconclude that he entered the camper-trailer and pulled his pants and underwear down solely for this purpose. [154] I am satisfied beyond a reasonable doubt that KP touched A in the camper-trailer in circumstances of a sexual nature and withouther consent. As a result, KP is convicted of breaching

section 271 of the Criminal Code [count eight]. I am satisfied that at the time,KP was bound by a probation order which he breached by failing to keep the peace and be of good behavior, contrary to

section 733.1(1)of the Criminal Code [count nine]. [69] The judgment indicates that the judge reviewed in detail the evidence of all witnesses at the trial (including the evidence of KP)and considered the positions of the Crown and Defence before making determinations regarding the credibility of KP and thecomplainant. [70] As in C.L.Y., the fact that the judge in the present case found the complainant to be credible, and the “sequence in which the trialjudge set out … findings of credibility”, does not establish that the judge “lost sight of a paramount principle like reasonable doubt”(C.L.Y, paragraph 12) or shifted the burden of proof from the Crown to KP. [71] It is clear from the judgment that the judge assessed what the Supreme Court of Canada in C.L.Y. (paragraph 6) described as the“paramount question”, namely “whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt ofthe accused (R. v.

Morin, (SCC), [1988] 2 S.C.R. 345, at p. 361)”. [72] There is no error in this regard and no basis for appellate intervention. Issue 4: Misapprehension of the evidence [73] KP submits that the judge misapprehended the evidence in two respects: first, relating to whether KP was present at the campertrailer when it was dark, and second, relating to whether D (A’s cousin) was mistaken in her testimony regarding the date of an incidentalleged to have occurred in the complainant’s bedroom. [74] In R. v.

Vokurka, 2013 NLCA 51, aff’d on other grounds 2014 SCC 22, this Court considered the law respectingmisapprehension of evidence, and referred to the Ontario Court of Appeal decision in R. v. Morrissey (1995), (ONCA), 22 O.R. (3d) 514 (Ont. C.A.), which stated that misapprehension of evidence may refer to “a failure to consider relevant evidence, amistake as to the substance of the evidence or a failure to give proper effect to the evidence”. [75] This Court, in Vokurka, summarized the law regarding misapprehension of evidence as follows: [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. … [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”. [76] Further, as Justice Hoegg noted in Vokurka, the Supreme Court of Canada in R. v.

Sinclair, 2011 SCC 40, held that, to constitutea misapprehension of the evidence, the error must be “readily obvious” and “actually committed”. [77] This point, that a misapprehension of evidence requires more than an “apparent” mistake that the trial judge “may havecommitted”, but must be “readily obvious”, was made by the Supreme Court in Sinclair, as follows: [53] When reasons are reviewed on appeal, silence should not be taken to mean acceptance (R. v. O’Brien, 2011 SCC 29, [2011] 2S.C.R. 485, at para. 16).

In my opinion, for an appellate court to decide to order a new trial on the basis of a miscarriage of justiceresulting from a misapprehension of the evidence, more is needed than an “apparent” mistake (e.g., an error that the trial judge may havecommitted) in the reasons. A court of appeal should not, in applying the Lohrer test, order a new trial unless the trial judge has made areal error; its decision cannot be speculative. The plain language or the thrust of the reasons must disclose an actual mistake.

When sucherrors are in fact committed, appellate courts have no difficulty in explaining why they caused the trial judge’s reasoning process to befatally flawed and where they may be found in the reasons. In such situations, the errors are readily obvious. [78] Further, the majority in Sinclair cautioned against the dissecting or parsing of a trial judge’s reasons in this context: [54] In R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, Abella J. observed that in the oft-cited decision in R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont.

C.A.), on which the Lohrer test is based, Doherty J.A. had rightly “caution[ed]appellate judges not to dissect, parse, or microscopically examine the reasons of a trial judge” (para. 11). … Did the judge misapprehend the evidence? [79] Regarding the first alleged misapprehension of the evidence, KP argued that the evidence was that A was sexually assaultedwhen it was dark outside, and that KP was not present in the camper trailer until it was light. [80] The judge was aware of KP’s position, and summarized it as follows: [98] Mr.

Ash submitted that the evidence establishes that it was “light outside” when KP left to go to the trailer and that based on A’sdescription of the timing of the sexual assault (it was dark outside), KP could not have been the person who committed the offence. [81] The evidence was that KP, B, C and others had been together in the early morning hours of June 5, 2016, drinking at a cabin nearthe camper trailer.

A had also been at the cabin, but she had left and returned to the camper trailer to sleep. [82] The judge found (paragraph 123) that when KP learned A was alone and sleeping in the camper trailer, KP left the cabin anddrove to the trailer in his truck. B and C left the cabin approximately ten to fifteen minutes after KP had left in his truck, and theywalked to the trailer, which was described as approximately a ten-minute walk. [83] B testified regarding the lighting conditions in the early morning of June 5, 2016.

B’s evidence was that when she and C walkedto the camper trailer, ten to fifteen minutes after KP had left, “it wasn’t pitch black dark and it wasn’t sunshine either.” [84] The judge found that while A was sleeping in the trailer, she awoke momentarily when she felt vaginal pain, but immediately fellback to sleep. She woke again when she heard B and C approach the trailer, at which time A noticed KP inside the trailer, sitting on thebed where she had been sleeping, and heard KP say “Oh fuck.” The judge found that KP then pulled up A’s pants and underwear, andpulled up his own pants before leaving the trailer.

A testified that it was dark when she woke first, and light when she woke the secondtime. [85] The judge placed “little significance on how much light the complainant noticed from inside a camper-trailer” in thesecircumstances, noting that A had been asleep, woke momentarily and fell back to sleep quickly (paragraph 126). When A woke thesecond time, she never went back to sleep, but rather stayed awake and told B and C what had occurred, and reported the incident to thepolice.

There was no evidence as to how much time had passed between the first and second times that A woke. [86] The judge considered A’s testimony in the context of the totality of the evidence, stating: [126] A testified that it was dark when she was initially awoken by the vaginal pain she felt. Other evidence indicates that it was lightoutside when KP drove to the camper-trailer from the cabin. However, it was by all accounts early in the morning. We know, forinstance, that the first text message from KP to B was at 5:35 a.m.

A had been temporarily awoken by pain she felt in the area of hervagina, but she fell back to sleep quickly. I place little significance upon how much light she noticed from inside a camper-trailer underthese circumstances. [127] When the evidence is considered in its totality, it clearly establishes that someone entered the camper-trailer while A was asleep,

pulled down her pants and panties without waking her and inserted something into her vagina. [ 87 ] Applying the test of misapprehension of evidence from Morrissey , as set out above in Vokurka (paragraph 20), there was no “failure to consider evidence relevant to a material issue” in this instance, as the judge dealt with the evidence directly. There was also no mistake as to the “substance of the evidence”, as the judge clearly stated the evidence and outlined KP’s position.

Finally, in terms of the requirement to “give proper effect to the evidence”, the judge considered the evidence of lighting conditions in the context of the evidence as a whole, which he was required to do. [ 88 ] KP contends that the judge misapprehended the evidence on this point.

However the judge’s assessment of the evidence, when considered in the context of B’s testimony regarding the lighting conditions, the complainant’s particular circumstances being awoken and quickly falling back to sleep, and the broader context of the totality of the evidence, cannot be said to be unreasonable or to constitute a misapprehension of the evidence. [ 89 ] Informed by the Supreme Court of Canada’s guidance in R. v.

Sinclair , there was no error, and certainly no “readily obvious” error, “actually committed” by the judge, and the requirements for a misapprehension of evidence are not satisfied in this circumstance. [ 90 ] Regarding the second alleged misapprehension of evidence, which dealt with whether D (A’s cousin) was mistaken in her testimony regarding the date of an incident alleged to have occurred in A’s bedroom, this was considered above in the context of whether there had been uneven scrutiny of the evidence. [ 91 ] As discussed above, the judge noted that D testified that KP had entered A’s room while A and D were sleeping there, and D described waking and seeing KP “wearing boxers”, “touching his penis”, and “breathing hard” (paragraph 115 of the judgment).

D remembered this to have occurred in December 2015, but KP was in jail at that time so it could not have occurred then. [ 92 ] As noted above, the judge clearly understood that D was mistaken in terms of the time period involved, but accepted that D had not been untruthful regarding the substance of what had occurred, and assessed the evidence in light of his overall finding regarding D’s credibility. In this respect, again as there was no error, and certainly no “readily obvious” error, committed by the judge, there was no misapprehension of the evidence in this regard.

Issue 5: Fitness of the sentence [ 93 ] After adjusting for totality, KP was sentenced to six years’ imprisonment. This sentence was broken down as follows: 1. for the sexual assault offence which occurred at the family cabin and involved one incident, contrary to

section 271 of the Criminal Code , a period of nine months of imprisonment, consecutive [count three]; 2. for the sexual exploitation offence which occurred at the family residence in A’s bedroom between October 1, 2012 and January 25, 2015, contrary to

section 153 of the Criminal Code , a period of two years of imprisonment, consecutive [count five]; 3. for the sexual assault offence which occurred at the family residence in A’s bedroom between October 1, 2012 and January 25, 2015, contrary to sections 271 of the Criminal Code , a period of three years of imprisonment, concurrent [count six]; 4. for the sexual assault offence which occurred at the family residence in A’s bedroom between February 1, 2015 and February 28, 2015, contrary to

section 271 of the Criminal Code , a period of three years of imprisonment, concurrent [count seven]; 5. for the sexual assault offence which occurred at the camper trailer on June 5, 2016, contrary to

section 271 of the Criminal Code , a period of three years of imprisonment, consecutive [count eight]; and 6. for the breach of probation offence which occurred on June 5, 2016, contrary to

section 733.1(1) of the Criminal Code , a period of three months of imprisonment, consecutive [count nine]. [ 94 ] It is KP’s position that this sentence is excessive, and should be reduced. KP does not challenge the trial judge’s treatment of his pre-sentence custody or the ancillary orders that were made. [ 95 ] KP has not claimed that the trial judge erred in his approach to the totality analysis.

Rather, he takes issue with the sentence for certain individual offences, and the ultimate result. [ 96 ] Specifically, KP has argued that the three-year sentence for sexual assaults between October 2012 and January 2015, the three- year sentence for the sexual assaults during February 2015, and the three-year sentence for the sexual assault at the trailer in June 2016 were demonstrably unfit.

KP also submits that the ultimate sentence of six years was demonstrably unfit, and that an appropriate sentence, adjusted for totality, would be a two to three-year sentence. [ 97 ] The principles relating to an appeal challenging the fitness of a sentence were recently canvassed by Hoegg J.A. of this Court in R. v. Butler , 2019 NLCA 21 as follows: [35] The fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society (section 718 of the Code ).

This goal is meant to be achieved by application of the principles and objectives set out in the Code and interpreted in the jurisprudence to the facts and circumstances of each case. [36] The Supreme Court of Canada has made it clear that sentencing an offender is a “highly individualized exercise that goes beyond a purely mathematical calculation” ( R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 ). At paragraph 58 the Court stated that sentencing: … involves a variety of factors that are difficult to define with precision.

This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. …

[37] The jurisprudence also makes clear “that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the natureof the offence and the circumstances of the offender” and that imposing a fit sentence “requires the judge to weigh the objectives ofsentencing in a manner that best reflects the circumstances of the case” and that “[n]o one sentencing objective trumps the other and itfalls to the sentencing judge to determine which objectives of sentencing merit the greatest weight” in any particular case (R. v.Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43).

Sentencing judges are regarded as being in a better position than appellatecourt judges to determine appropriate sentences and therefore deference is owed to their sentencing decisions (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at paras. 91-92). [38] The above principles do not mean that all sentences imposed by sentencing judges are unassailable.

Errors of law in the course ofimposing sentence can justify interference by an appellate court if the error had an impact on the sentence imposed, and the fitness of asentence under appeal is always a potential issue, regardless of whether the sentencing judge made an error of law or principle (Lacasseat paragraph 11). [39] The above principles do mean that when an appellate court overturns, modifies or otherwise interferes with a sentence on the basisthat it is unfit, the sentence must be something more than “on the high side” or “on the low side” or “outside the range”.

Rather, thestandard for appellate intervention is that the sentence must be “demonstrably unfit” (Lacasse at paragraph 52). [40] Lacasse also provides guidance on how the fitness of a sentence is to be determined. At paragraph 53, the Court states that aninquiry into fitness must be focused on the fundamental principle of proportionality stated in

section 718.1 of the Criminal Code, whichprovides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. [41] Proportionality is determined both on an individual basis and by comparing the case in issue with similar cases, all the while takinginto account the sentencing objectives set out in sections 718 and 718.2 of the Code (Lacasse at paragraphs 53-54).

Accordingly, asentence will be demonstrably unfit if it is disproportionate to the conduct underlying the offence and constitutes a marked departurefrom sentences imposed for similar conduct. [98] KP has not claimed that the judge committed an error in law or error in principle in his sentencing decision. Rather, the focus ofhis argument is that the trial judge’s sentence is demonstrably unfit and therefore warrants appellate intervention. [99] At the sentencing hearing, the Crown sought a sentence of four to five years’ imprisonment, while KP argued that a sentence oftwo to three years would be sufficient.

The trial judge appropriately notified counsel that he was considering imposing a sentence greaterthan requested by the Crown, and received further submissions from both counsel. [100] In support of his argument, KP has referred to the decision in R. v. L.H., 2011 NLCA 4, 303 Nfld. & P.E.I.R. 76 where this Courtconsidered an appeal of a three-year sentence for sexual assault against the accused’s adopted daughter when she was between the agesof 9 and 12.

The conduct involved rubbing her body, digital penetration, and oral sex. [101] On appeal, this Court reduced the sentence for sexual assault from three years to two.

This was primarily driven by a finding thatthe sentencing judge had misapprehended the evidence on the number of occurrences of oral sex, by concluding that it happened “often,”when the evidence only supported it having occurred once. [102] While the decision does state that “the case law, where there is no sexual intercourse, does not support a sentence of 3 years forsexual assault,” this was not the basis on which the sentence was actually reduced (paragraph 76).

As such, this decision does not standfor the absolute proposition that a three-year sentence for sexual assault not including intercourse will always be demonstrably unfit. [103] More recently, in R. v. Thompson, 2017 SKCA 33, the Saskatchewan Court of Appeal considered the sentence of an accused who,under the pretext of massage therapy, would sexually assault a family friend who had an intellectual disability.

The assault involvedtouching her genitals and digital penetration, and occurred regularly over a period of almost ten years. [104] The Court of Appeal increased the sentence from 22 months’ imprisonment to three years. The Court found that it was an error inprinciple to find the assault “not major” due to the lack of penile penetration. The Court found that while the presence of penilepenetration may be an aggravating factor, the absence is not mitigating. [105] Speaking in general terms not specific to sexual offences, the Supreme Court of Canada in R. v.

Lacasse, 2015 SCC 64, [2015] 3S.C.R. 1089 cautioned against rigid adherence to judicially defined “categories” of conduct for sentencing purposes: [60] In other words, sentencing ranges are pri​marily guidelines, and not hard and fast rules: Nasogaluak, at para. 44. As a result, adeviation from a sentencing range is not synonymous with an error of law or an error in principle.

Sopinka J. stated this clearly inMcDonnell, although he was referring in that case to categories of assault: . . . in my view it can never be an error in principle in itself to fail to place a particular offence within a judi​cially created category ofassault for the purposes of sen​tencing. . . .

If the categories are defined narrowly, and deviations from the categorization are generallyreversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the ap​pellate courts.[para. 32] [61] Any other conclusion would have the effect of authorizing appellate courts to create categories of offences with no real justificationand accord​ingly intervene without deference to substitute a sentence on appeal.

But the power to create catego​ries of offences lies withParliament, not the courts: McDonnell, at para. 33. [106] This rejection of a categorical approach to sentencing was followed by the trial judge in the present case: [92] Of course, a lack of vaginal intercourse occurring does not necessarily lessen the seriousness of an offence. It does not makeoffences in which it has not occurred less serious than every offence in which such intercourse has occurred. In this case, for instance, onJune 5, 2016, KP placed something big into A’s vagina.

The evidence did not establish that it was his penis, but it can hardly be said that

this somehow significantly lessens the seriousness of this offence. [93 ] In addition, we know that the sexual abuse of children causes long-term, life-long devastating effects regardless of whether vaginal penetration has occurred. [ 107 ] Counsel for KP has referred this Court to cases from this jurisdiction which, he argues, demonstrate lower sentences being given for more severe conduct. With the exception of L.H. , referred to above, the cases referred to are trial level decisions. [ 108 ] Thus, the argument goes, to uphold the individual three-year and overall six-year sentences would offend the parity principle codified in

section 718.2 (

b) of the Criminal Code . This principle stands for the notion that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [ 109 ] However, as noted by the Supreme Court of Canada in Lacasse (paragraph 54 ), the principle of parity is “secondary to the fundamental principle of proportionality” as codified in

section 718.1 of the Criminal Code . As such, while parity is a relevant consideration, it must not be given priority over the fundamental concern of proportionality. [ 110 ] Determining a proportionate sentence is a highly individualized exercise, requiring consideration of the gravity of the offence and the degree of responsibility of the offender. Specific to the context of sexual offences against children, this Court in R. v. A.B. , 2015 NLCA 19 , 365 Nfld. & P.E.I.R. 160 articulated 15 non-exhaustive factors that can be relevant in determining an appropriate sentence.

The trial judge considered the factors as follows in his sentencing decision: 1. Position of trust, more serious where the offender is in a position of authority: [118] KP was in significant position of trust and authority in relation to A. 2. Age of the victim, being less serious where the victim is close to the age of consent: [119] A’s age is statutorily aggravating and she did not consent to any of the sexual activity which occurred. 3. Significant age difference between the parties : [120] A significant age difference existed. 4.

Sexual encounters occurring over a period of time: [121] The sexual abuse of A by KP extended over a significant period of time. 5. Manipulation of the victim: [122] There is no evidence of specific manipulation of A, but this was not necessary because of the relationship involved. 6. Planned or calculated conduct by the offender: [123] The sexual abuse which occurred was planned and deliberate. KP would enter A’s bedroom later at night while other individuals in the house were asleep. In June of 2016, KP drove to the camper-trailer with the intent of sexually assaulting A. 7.

Knowledge of and acting on the victim’s vulnerability: [124] KP knew in June of 2016 that A was alone in the camper-trailer. KP knew that as a young girl to whom he was a parental figure that A was extremely vulnerable. 8. Continuation of conduct after being warned: [125] There is no evidence KP was warned. 9. Particular impact on the victim: [126] The impact has been significant. 10.

Lack of remorse or acceptance of responsibility; placing of blame on the victim or others; limited appreciation of the harm caused; minimization of the offence: [127] Lack of remorse is not a factor to be considered in this case. 11. Previous criminal record: [128] KP has a criminal record. 12. Prospects for rehabilitation and risk of re-offending: [129] The risk assessments have been referred to. 13. Positive pre-sentence report: [130] The report is at times very positive.

14. Guilty plea: [131] KP does not receive the benefit of a guilty plea as a mitigating factor. 15. Willingness to access counselling: [132] KP told the author of the pre-sentence report that “he will not participate in any counselling or programming related to sexually deviant behaviour.” [ 111 ] The judge’s reasons make it clear that he was alive to the circumstances of the offence and the offender.

He referred to the relevant case law and determined what would be an appropriate sentence for each individual offence before adjusting for totality. [ 112 ] KP argues that the three-year sentence for the sexual assaults between October 2012 and January 2015 was demonstrably unfit. [ 113 ] KP was convicted of entering A’s room at night while she was asleep, and staring at her while breathing heavily. The judge found that on at least 20 occasions during this timeframe, KP would touch A’s genitals and, on one occasion, he digitally penetrated her.

During that incident, the evidence was that A’s mother was sleeping in the bed with A. A’s mother was on sleeping medication and KP had attempted to wake A’s mother prior to assaulting A. [ 114 ] A was between the ages of 13 and 16 when this conduct occurred. KP was her stepfather, and in a position of trust and authority. The conduct was over a prolonged period of time, although interrupted for significant periods when KP was in custody for unrelated convictions. [ 115 ] In R. v.

V.N.R. , 2014 BCCA 24 , the British Columbia Court of Appeal considered the sentence appeal of a father who repeatedly entered his daughter’s room while she was sleeping, pulled down her underwear, and touched her genitals. Over time, the conduct escalated to digital penetration, and took place while the daughter was between the ages of 14 and 16. [ 116 ] The accused in V.N.R. appealed his two and one-half year sentence. In upholding the trial judge’s sentence, the Court of Appeal remarked as follows: [19] The sentence imposed by the trial judge was well w

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