R. v. S., 2011 ONCA 566

Her Majesty the Queen v. A.J.S. (a young person) [Indexed as: R. v. S. (A.J.)] 106 O.R. (3d) 586 2011 ONCA 566 Court of Appeal for Ontario, Feldman, Blair and Watt JJ.A. August 29, 2011 Criminal law -- Trial -- Reasons for judgment -- Credibility -- Accused youth convicted of sexually assaulting five-year-old boy -- Trialjudge's reasons not enabling accused to understand why his evidence did not raise reasonable doubt -- Accused's appeal allowed. The accused, aged 13 at the time of the alleged offences, was convicted of sexually assaulting a five-year-old boy. Credibility was a liveissue at trial.

The accused testified and denied sexually assaulting the complainant. The trial judge believed the evidence of thecomplainant, whose evidence was described in the reasons as "compelling" and "detailed". The accused appealed, arguing that the trialjudge's reasons for judgment were inadequate. Held, the appeal should be allowed. The accused was entitled to understand why his evidence did not raise a reasonable doubt. The trial judge's reasons for rejecting theaccused's evidence were generic and conclusory, and provided no insight into his reasoning or the basis for reaching the conclusion hedid.

APPEAL by the accused from the conviction entered by S. Clark J. of the Ontario Court of Justice dated September 18, 2009. Cases referred toR. v. Braich, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29, 2002 SCC 27, 210 D.L.R. (4th) 635, 285 N.R. 162, J.E. 2002-583, 164 B.C.A.C. 1, 162 C.C.C. (3d) 324, 50 C.R. (5th) 92, 52 W.C.B. (2d) 359; R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No.24, 2008 SCC 24, EYB 2008-133045, J.E. 2008-1022, 77 W.C.B. (2d) 514, 374 N.R. 198, 231 C.C.C. (3d) 177, 293 D.L.R. (4th) 375, 57C.R. (6th) 48; R. v. Gagnon, [2006] 1 S.C.R. 621, [2006] S.C.J.

No. 17, 2006 SCC 17, 266 D.L.R. (4th) 1, 347 N.R. 355, J.E. 2006-961,207 C.C.C. (3d) 353, 37 C.R. (6th) 209, 69 W.C.B. (2d) 278; [page587] R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008SCC 51, 235 C.C.C. (3d) 290, 83 B.C.L.R. (4th) 44, EYB 2008-148153, J.E. 2008-1861, [2008] 11 W.W.R. 383, 260 B.C.A.C. 40, 60C.R. (6th) 1, 380 N.R. 47, 79 W.C.B. (2d) 321, 297 D.L.R. (4th) 577; R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002SCC 26, 210 D.L.R. (4th) 608, 284 N.R. 342, J.E. 2002-582, 211 Nfld. & P.E.I.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 52 W.C.B.(2d) 360; R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352,63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551, EYB 1991-67602 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46,ss. 486.2(1), 715.1 [as am.] Gavin S. MacKenzie, for appellant. Susan Reid, for respondent. [1] Endorsement BY THE COURT: -- The appellant, a 13-year-old boy at the time of the alleged offences, was convicted of two countsof sexual assault on a five-year-old boy. Both the complainant and the appellant testified.

The appellant denied the offences. [2] The appeal against conviction is based on the ground of inadequacy of the reasons for judgment. In particular, the appellant submitsthat where the live issue at trial was the credibility and reliability of the two main witnesses, the complainant and the appellant, thereasons fail to disclose any meaningful explanation for rejecting the appellant's evidence. [3] The reasons for judgment are almost 55 pages in length.

The first 34 pages contain a review of the evidence of each witness; in thenext nine, the trial judge sets out the positions of the parties; this is followed by 5[cents] pages of general legal and evidentiary principlesrelevant to the issues in the case, including how to assess the evidence of young children and of a defendant who denies the allegations.He also comments on the complainant's testimony, which he finds to be honest and straightforward, with only minor inconsistenciesfrom the complainant's video statements.

The last 4 pages constitute the balance of the trial judge's findings, in which he analyzes theevidence under the framework set out in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J.

No. 26 ("W. (D.)"). [4] The trial judge begins by giving three reasons for rejecting the appellant's evidence. [5] First, the 15-year-old appellant made an " 'unvarnished' denial", rather than giving an "interpretation of what may have happened".On this point, the trial judge stated: "The Court [page588] finds that there is no ring of innocence or truth to this but, in fact, a denial ofconvenience." [6] Second, the appellant's evidence was "inherently improbable and implausible".

The trial judge explained that he made this finding notbecause he believed the complainant, but because on the whole of the evidence, the appellant's evidence "cannot be true". [7] Third, the trial judge was applying common sense and everyday experience. In so doing, he stated that he was not considering as afactor the appellant's silence or his failure to explain himself to the complainant's parents. [8] The trial judge then turned to the second branch of the W. (D.) analysis, where he found that none of the defence evidence raised areasonable doubt.

[9] Finally, on the third branch of the test, the trial judge first concluded that the complainant's evidence was compelling, with veryspecific details. He also referred to the evidence of the parents as being corroborative of the child's evidence, stating that it "restore[d]the Court's finding and acceptance of the complainant's account of what took place".

The trial judge did not, however, explain how theparents, who were not witnesses to any of the alleged events but only heard about them after the fact from the complainant, couldcorroborate the complainant's evidence, other than by oath-helping. [10] The trial judge next addressed two aspects of the complainant's behaviour and reconciled them with his conclusion that thecomplainant was telling the truth. The first was his change in behaviour, including feeling dirty, and being fearful of touching foodbecause his hands had touched the genitals of the appellant.

The trial judge found that these changes constituted a "building block to thefoundation leading inevitably to guilt beyond a reasonable doubt". The second aspect was the timing of the complainant's disclosure.

Thetrial judge was satisfied that there were good reasons for the complainant's initial failure to disclose, and that that factor did not raise areasonable doubt. [11] The trial judge then concluded that for the stated reasons, the case had been proved beyond a reasonable doubt. [12] The adequacy of reasons as a basis for appellate interference with the verdict of a trial judge has been the subject of a number ofrecent decisions of the Supreme Court of Canada, including R. v. Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869, [2002] S.C.J.No. 30; R. v. Braich, 2002 SCC 27 , [2002] 1 S.C.R. 903, [2002] S.C.J.

No. 29; R. v. Gagnon, 2006 SCC 17 , [2006] 1S.C.R. 621, [2006] S.C.J. No. 17; R. v. M. (R.E.), 2008 SCC 51 , [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52; and R. v. Dinardo,2008 SCC 24 , [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24. [page589] [13] The reasons must respond to the live issues in the case and will only be viewed as insufficient where they "foreclose meaningfulappellate review": see Dinardo, at para. 25, citing Sheppard, at para. 25.

In Gagnon, the court stated, at para. 21, that where the charge isserious, and the evidence of a child and an adult accused are in conflict, the accused is entitled to be able to understand from the reasonswhy his or her evidence did not raise a reasonable doubt. In Dinardo, the court specifically reiterated the latter proposition (para. 35). [14] In this case, the complainant was a very young child -- only five years old. Although the appellant is not an adult, he is entitled tothe same rights regarding the process used to convict him and the explanation of that conviction.

The complainant gave two videostatements to police that were made exhibits pursuant to s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46. The second statement wasas a result of the complainant remembering more things and telling his mother that he wanted to tell the officer about them.

At the trial,he testified outside the courtroom, pursuant to s. 486.2(1) of the Criminal Code, intermittently over a multi-day period. [15] Although the trial judge first stated that he found the complainant's testimony "compelling", he then went on to discuss the fact thatit was the parents' corroborative evidence that "restored the Court's confidence in accepting the complainant's evidence", suggesting thatthe trial judge may have had concerns about the complainant's evidence without the corroborating value of the parents' evidence.

It maybe that the trial judge was referring only to corroborating the times that the complainant was left alone with the appellant, but the trialjudge does not make that clear. [16] In light of the age of the complainant, the problems with his testimony alluded to by the trial judge and his reliance uponcorroboration from the parents, who had no first- hand knowledge of the allegations, it was incumbent on the trial judge to explain morefully how he reconciled these problems in the face of the appellant's denial, which was not a denial of the times that the two weretogether, but merely that any sexual contact had occurred. [17] In rejecting the appellant's denial as one "of convenience", the trial judge did not acknowledge that it is very difficult for anyone toprove a negative.

To the contrary, he seemed to require the appellant to interpret "what may have happened", i.e., to effectively speculateabout why the complainant said what he did. Nor does the trial judge explain how someone who denies that anything happened couldgive an "interpretation of [page590] what may have happened".

The trial judge also discounted the evidence given by the appellant andother defence witnesses about the complainant hitting him and others in the testicles or "crotch-grabbing", referring to this as a somewhatcorollary or collateral issue that did not inspire any doubt but only formed part of the history of events. [18] This case involved very serious charges. As stated by the Supreme Court of Canada, the appellant was entitled to understand whyhis evidence did not raise a reasonable doubt.

The three reasons the trial judge gives for rejecting the appellant's evidence are generic andconclusory, and provide no insight into his reasoning or the basis for reaching the conclusion he did. [19] As a result, the appeal is allowed and a new trial is ordered. We note that out of a total sentence of 100 days in custody plus 50 daysof community service, the appellant has served 77 days in custody, a significant portion of the custodial part of his sentence. In thosecircumstances, the Crown may consider it more appropriate not to proceed with a second trial. Appeal allowed.