2013 NBCA 49, 2013 NBCA 49

COURT OF APPEAL OF NEW BRUNSWICK 79-12-CA J.-G. O. APPELLANT J.-G. O. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE J.-G.O. v. R., 2013 NBCA 49 J.-G.O. c.

R., 2013 NBCA 49 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’'honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Provincial Court: February 10, 2012 (conviction) Appel d’une décision de la Cour provinciale : Le 10 février 2012 (déclaration de culpabilité) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: [2012] N.B.J.

No. 294 Procédures préliminaires ou accessoires : [2012] A.N.-B. n o 294 Appeal heard: June 26, 2013 Appel entendu : Le 26 juin 2013 Judgment rendered: August 8, 2013 Jugement rendu : Le 8 août 2013

Counsel at hearing: For the appellant: James J. Matheson For the respondent: Cameron H. Gunn Avocats à l'audience : Pour l’appelant : James J. Matheson Pour l’intimée : Cameron H. Gunn THE COURT The appeal is dismissed. LA COUR Rejette l’appel. The following is the judgment delivered by THE COURT [1] On February 10, 2012, a judge of the Provincial Court convicted J.-G. O. of having sexuallyassaulted his daughter in 2008 when she was 9 years old. The conviction, under s. 271(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46was grounded on the testimony of the complainant – twelve years old at the time of trial – who testified that on a single occasion herfather had sexually assaulted her. The nature of the sexual act is irrelevant to the disposition of the father’s current appeal fromconviction. [2] The father raises two grounds of appeal.

He argues that the Provincial Court judge rendered averdict that is “unreasonable or cannot be supported by the evidence” and that the judge “erred in failing to consider the effect of thecomplainant’s failure to disclose the alleged sexual assault for over half a year.” With respect, both of these grounds are unmeritorious,and the appeal can be summarily dismissed. [3] As everyone has acknowledged, it is not the role of this Court to retry the case. There is alsoagreement that the principles that govern appellate review based on the reasonableness of a verdict are those set out in R. v.

Yebes, (SCC), [1987] 2 S.C.R. 168, [1987] 2 S.C.J. No. 51 (QL); R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Beaudry,2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; and more recently summarized in R. v. R.P., 2012SCC 22, [2012] 1 S.C.R. 746 as follows: To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987] 2S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007]1 S.C.R. 190).

Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appealthat reviews a trial court's assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interferewith those assessments unless it is established that they "cannot be supported on any reasonable view of the evidence" (R. v. Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [paras. 9-10] [Emphasis added.]

[4] The more recent decision of R. v. W.H., 2013 SCC 22, [2013] S.C.J. No. 22 (QL), does notchange these principles. In that case, the Court was concerned with the reasonableness of a jury verdict. For the Court, Cromwell J. notedthat in judge alone cases there is “an expanded reasonableness review of verdicts” that “does not apply to reasonableness review of a juryverdict” (para. 26).

More importantly, in W.H., the Court acknowledges that the traditional test of verdict unreasonableness applies incases where the verdict is based on witness credibility and that, in applying it, “the court of appeal must show great deference to the trierof fact’s assessment of witness credibility given the advantage it has in seeing and hearing the witnesses’ evidence” (para. 30). [5] Applying these principles to this case, we cannot conclude that the verdict was unreasonable.The verdict is not the product of illogical or irrational reasoning. It is rather the product of a credibility finding.

There was no inferenceor finding of fact essential to the verdict that was “‘ [added inside quotation mark] plainly contradicted by the very evidence from whichit was drawn’ or upon which it has been made to rest” (Beaudry at para. 105 and Sinclair at para. 19). In addition, the verdict was not theproduct of an inference or a finding of fact that was “‘demonstrably incompatible’ with evidence that is neither contradicted by otherevidence nor rejected by the trial judge” (Beaudry, at para. 79, and Sinclair at para. 21).

In the present case, the complainant testified tothe alleged sexual assault; she was cross-examined and certain weaknesses in her testimony were exposed. No evidence contradicted heron the essential ingredients of the crime charged, and, in the end, the trial judge believed her on these key points. More importantly, hewas not left with any reasonable doubt.

It was, in our view, reasonably open for the judge to believe her on these points and to convict. [6] As for the appellant’s contention that the trial judge should have considered the delay in thecomplainant’s disclosure of the assault, there is simply no requirement in law for the judge to have done any more than he did, which isto consider the timing of the disclosure as a circumstance in the factual mosaic of the case.

The doctrine of recent complaint has beenrightfully relegated to the jurisprudential wasteland and there is, as a result, no presumptive adverse inference to be drawn from a delayin reporting a crime of sexual assault: R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122, [1992] 2 S.C.J. No. 56 (QL) at para. 30;R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 60-63; and R. v. Hasan, 2003 NBCA 44, 260 N.B.R. (2d) 171, at para. 20. Thetiming of disclosure is simply “one circumstance to consider in the factual mosaic of a particular case.

A delay in disclosure, standingalone, will never give rise to an adverse inference against the credibility of the complainant”, because “there is no inviolable rule on howpeople who are the victims of trauma like a sexual assault will behave”: D.D. at para. 65. Even if we were to allow for the possibilitythat, in exceptional cases, the timing of disclosure might be of more relevance than being simply one of the circumstances, there isnothing in the factual matrix of the present case that could possibly bring it into the realm of any type of exception.

The timing of thedisclosure in this case was not critical to anything. As the trial judge specifically noted, the 12-year-old complainant testified she hadbeen embarrassed by what had happened and delayed disclosure because of the embarrassment she felt. Although, on the facts as foundby the trial judge, the complainant had done nothing for which she needed to be embarrassed, her sentiment is one that is neverthelessunderstandable, and the trial judge evidently found it had no relevance whatsoever to her credibility. We agree. [7] For these reasons the appeal is dismissed. _______________________________ J.C.

MARC RICHARD, J.A. _______________________________ B. RICHARD BELL, J.A. _______________________________ KATHLEEN A. QUIGG, J.A.