2014 NBCA 3, 2014 NBCA 3

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 158-12-CA D.M.S. APPELLANT D.M.S. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE D.M.S. v. R., 2014 NBCA 3 D.M.S. c.

R., 2014 NBCA 3 CORAM: The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Green CORAM : l'honorable juge Robertson l'honorable juge Bell l'honorable juge Green Appeal from a decision of the Provincial Court: August 10, 2012 October 31, 2012 Appel d'une décision de la Cour provinciale : le 10 août 2012 le 31 octobre 2012 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Appeal heard: September 26, 2013 Appel entendu : le 26 septembre 2013 Judgment rendered: January 9, 2014 Jugement rendu : le 9 janvier 2014 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : l'honorable juge Bell

Concurred in by: The Honourable Justice Robertson The Honourable Justice Green Souscrivent aux motifs : l'honorable juge Robertson l’honorable juge Green Counsel at hearing: For the appellant: Alison J. Ménard For the respondent: Marc P. Savoie Avocats à l'audience : Pour l’appelante : Alison J. Ménard Pour l’intimée : Marc P. Savoie THE COURT The appeal is allowed, the convictions are quashed and a new trial is ordered. LA COUR L’appel est accueilli, les déclarations de culpabilité sont annulées et la tenue d’un nouveau procès est ordonnée. The judgment of the Court was delivered by BELL, J.A. I.

Introduction [ 1 ] The appellant was born on August 23, 1961. The complainant, one of the appellant’s brothers, was born on September 21, 1968. On August 10, 2012, the appellant was convicted, by a judge of the Provincial Court, of indecently assaulting the complainant, another male person (s. 156 of the Criminal Code , R.S.C. 1970, c. C-46) and committing a gross indecency (s. 157 of the Code ) upon the complainant, between August 24, 1973 and December 31, 1978.

The prosecution was instituted by an Information titled in part, “Juvenile Delinquent Act”. [ 2 ] I would note parenthetically that the combined operation of ss. 158 and 160 of the Youth Criminal Justice Act , S.C. 2002, c. 1, directs that the Information should have been laid under that Act and not the Juvenile Delinquents Act, R.S.C. 1970, c. J-3. Regardless, that matter is not before us and nothing turns on it for purposes of this appeal. [ 3 ] On October 31, 2012, following a motion by the defence, the case was re-opened for additional evidence.

On the same date, the trial judge confirmed the conviction and sentenced the accused. As is evident, the appellant was required to respond, some 35 to 40 years later, to accusations of wrongs allegedly committed when he was a “child” as contemplated by the Juvenile Delinquents Act or a “young person” as that term was then defined in the Young Offenders Act , S.C. 1980-81-82-83, c. 110. [ 4 ] At trial, the Crown called two witnesses, the RCMP investigator and the complainant. The

appellant testified. He also called three other witnesses: an uncle with whom he lived during part of the time the complainant says the offences occurred, a brother, S.S., who lived in the same household as the complainant during all relevant times and V.P., the appellant’s spouse, who testified about social outings involving the complainant and the appellant and, generally, the relationship between the two prior to the revelation of the allegations to police. II.

Observations regarding the police investigation [ 5 ] In many historic sexual assault cases, the police and prosecutorial authorities are faced with a paucity of potential evidence. Often, the only potential sources of information are the complainant and the alleged perpetrator. Such cases are often precariously prosecuted as a “credibility contest” between the alleged victim and the accused. That did not have to be the case in this matter.

The determination of the issue of credibility, particularly with respect to the appellant and his brother, the complainant, could have been greatly facilitated by minimal investigative efforts. For example:

a) The complainant testified that both parents were alcoholics and they moved often. Establishing the chronology of events and residences where the offences occurred was a serious challenge to the Crown. The complainant testified that at one point he reported abuse to his grandmother and “she tried to have Social Services come in and take the kids away from my parents”. The police made no effort to contact relevant departments of government to determine whether any record existed of the grandmother’s report to “Social Services”. Confirmation of such a record would have aided in establishing the chronology of events and would have been useful in assessing credibility.

b) In attempting to establish the timeframe within which the complainant reported abuse to his grandmother, Crown counsel asked him about where he was living when he made the report to her. He was unsure about whether it was Steadman Street or Willow Street, but did say he was in hospital for removal of his appendix. The police made no effort to contact any hospital in or around the Moncton area to confirm whether the complainant had been a patient. Once again, confirmation of such a record would have assisted in establishing the chronology of events and assessing credibility.

c) The complainant testified that on one occasion, while living on McLaughlin Road, he went fishing with the appellant at which time the appellant “molested [him] in the woods”. When he threatened to tell his parents, the appellant apparently cut him “across the ankle”. The complainant testified that he had to go to the hospital as a result of the injury to his ankle. He testified that his parents made him “swear to God not to tell the truth” and that he had to “go to that hospital and say that I cut my leg by a barbed wire fence”. He did not say whether the lie related to the molestation or the cut.

Regardless, this is yet another example of where some attempt to obtain hospital records would have greatly assisted the court in assessing credibility. Does a record exist in a Moncton hospital of the complainant reporting a cut on his leg caused by barbed wire? The trial judge would never know.

d) The complainant testified that as a result of the dysfunctional conditions in the household, his sister, S. took him “out of his parents’ house” and “they put up a big stink and came and got me back”. S. appears not to have been interviewed by the police. Certainly, she was not called upon to testify to confirm the complainant’s statement about where he lived at relevant times or the circumstances surrounding her removal of him from the family residence.

e) The complainant testified that he was 10 years old when he lived on Ryan Road. He said “I know that for a fact”. He testified about abuse he suffered in a shed behind his family’s house. The complainant said the appellant was “with a girl on Ryan Road”. He said, “There was a bunch of us in the shed. I was ten years old. They all had sex with this girl and then made me have sex with her.” In addition to the appellant, the complainant named four other people (including the “girl”) by their first and last names, all of whom were, according to him, present when the incident occurred.

It appears none of those other people were questioned by police. [ 6 ] In response to questions on cross-examination, the police investigator acknowledged she did not “get any medical records for [the complainant]”.

In response to questions about whether any enquiries were made of “Child Protection or Social Development”, the police investigator responded, “No, I did not.” When asked about why she did not make enquiries, other than to the complainant, about others who lived at the various residences, her response was: “No, because I didn’t have any reason to disbelieve my victim – my complainant. […] Well, my victim was telling me that he [appellant] was there […] there’s no reason to investigate where – where the accused would’ve been residing […]”.

During her testimony the police investigator acknowledged the complainant’s family was a “big” one. Defence counsel then asked the police officer whether she tried to communicate with any of those family members in the course of her investigation. She responded that she had heard that they (the family members) “didn’t want to speak with the police at all”.

[ 7 ] Parenthetically, I am surprised police would not fully investigate a matter because they heard indirectly that someone did not want to talk to them. One would expect the police to make reasonable efforts to speak directly with potential witnesses to determine whether they might exonerate the suspect or support the complainant’s version.

It is painfully evident the police and prosecution proceeded in a “tunnel vision” fashion without any serious effort to investigate independent sources which could have confirmed or refuted the complainant’s version or aided in objectively assessing his credibility. [ 8 ] I would add that New Brunswick is a jurisdiction where prosecutorial authorities review files and approve charges that are to be laid by police.

The Attorney General’s office could, at any time, have requested the police conduct further enquiries of hospitals, social service departments or other potential witnesses, prior to approving charges. [ 9 ] It is against this backdrop that I now turn to the facts. III. Facts [ 10 ] In 2007, the complainant’s name was brought to the attention of the RCMP as a potential victim of crime. The investigator assigned to the file contacted him in November 2007, and on several other occasions over the course of the following year. On each of those occasions he refused to provide a statement to the police.

He did not want the matter investigated. In October 2008, he signed a document instructing the RCMP to cease their investigation on the understanding that it could be re-opened any time. The file was subsequently re-opened and charges were laid against the appellant on April 19, 2010. In the complainant’s own words, he decided to authorize the police to proceed with the investigation because he (the complainant) had beaten the “living hell” out of his wife. Apparently, the complainant linked his assault upon his wife to abuses he suffered as a child at the hands of the appellant.

The appellant advanced the theory that the allegations made by the complainant were a fabrication, concocted in part to alleviate the problems the complainant faced as a result of his assault on his spouse. [ 11 ] The complainant testified that he was raised in a family of six siblings and two alcoholic parents. He stated that the children were left to fend for themselves. He stated they had to steal groceries. They moved frequently. At one point in his testimony, he stated that they never lived at the same place more than two months. He stated that he never completed a full school year at the same school.

He testified that his oldest brother, A., did not live with the family and that during his upbringing those present were the appellant (the second eldest of the siblings), one other brother, S.S., who was three years older than him, and two sisters, both of whom were older than him. The complainant testified that during the relevant times, he was repeatedly assaulted by the appellant. Although he initially testified that the assaults occurred daily, he eventually moderated the frequency of the assaults to two times per week over a five year period.

The vast majority of the approximately 500 assaults occurred at the many residences in which the complainant was raised. He testified, among other things, that the appellant forced him to be his wife, committed acts of buggery, fellatio and masturbation, threatened him with a knife and a screwdriver, inserted a broom handle and a screwdriver into his rectum, burned him with a cigarette and forced him to have sex with a young woman when he was 10 years old.

During one part of his testimony, the complainant claimed the sexual encounter with the young woman was the last indecent act or act of gross indecency committed by the appellant against him. He later added that when he was 11 or 12 the appellant forced him to have sex with a male cousin in the Oromocto area. The complainant stated that after he left home at about the age of 14, he lived on the streets and ate out of dumpsters, due to alcohol and drug addiction. On direct examination and in cross-examination, he stated that he had been alcohol and drug free for 14 years.

At the conclusion of the complainant’s direct examination, Crown counsel asked if there was anything he would like to add. He replied, “I have not touched a drink or a drug in fourteen years. Thank you” (Transcript, June 11, page 62, lines 13 - 15).

During cross examination in June, 2012, the complainant said: “It’s been fourteen years since I’ve touched marijuana, alcohol or any other kind of drug except for what is prescribed from my doctor”. [Transcript, June 11, page 93, lines 14 - 16] [ 12 ] When asked at that same hearing whether he was doing any other “drugs” besides mescaline, the complainant responded “marijuana”. Following the finding of guilt but before conviction was entered and sentence imposed, the trial judge permitted the defence to re-open the case.

At the continuation of the trial on October 31, 2012, the complainant admitted he had been smoking marijuana since he was 10 years of age and in 2012 was smoking “ten or fifteen” marijuana cigarettes per day. He also stated that he is bipolar and is taking “marijuana instead of the medication”. He admitted that he never stopped using marijuana. In August 2012, the police seized 51 marijuana plants at the complainant’s residence.

When asked to explain how he could testify in June 2012 that he had been “clean” for 14 years and yet regularly consume marijuana since the age of 10, the complainant replied that he does not consider marijuana to be a drug. He said, “Listen, I’m gonna explain it to you again. Marihuana for me is not a drug.” Clearly, in June 2012, the complainant considered marijuana to be a drug. That view appears to have changed by October of the same year. The issue of whether the case should have been re-opened is not raised on appeal. [ 13 ] The appellant categorically denied all allegations made by the complainant.

As to the issue of

opportunity to commit the crimes, the appellant stated that for virtually all of the relevant time, he was not living in the same residence asthe complainant. Because of the dysfunctional family situation, he lived with aunts and uncles and his grandmother. He admits to havingbeaten the complainant on one occasion in the 1990s when the complainant came to his house while intoxicated. The appellant says thatduring that visit, the complainant insulted his wife, threatened his children and told him (the appellant) that he thought he had molestedhim as a child.

The actual words attributed to the complainant by the appellant were “I think you molested me [when I was a child]”(Transcript, June 11, page 280, lines 17 - 18). The appellant provided a detailed

summary of the places he lived, including a reformschool in Ontario, and the jobs he held that would have prevented him from being at the family residences as contended by thecomplainant. With respect to the incident involving the forced sex with a young woman when the complainant was 10, the appellantsays she was not his girlfriend; rather, she was S.S.’s girlfriend. He testified he was never present when any such incident occurred.

Theappellant testified to visiting with the complainant and his spouse on social occasions (dinner and karaoke) in and around 2005 and 2006and to providing the complainant with some work cutting wood and a place to live on one of his return trips from western Canada. [14] S.S. testified that he, not the appellant, was involved with the young woman in the shed. Hetestified that she, like all members of his family, was extremely poor and she asked him to “sell” her. He was effectively a young pimp toa young woman who was trying to survive.

He acknowledges the appellant was present on occasion when he (S.S.) “sold” her but sayshe never saw the appellant “touch” her. He recalled no incident where the appellant forced the complainant to have sex with the youngwoman. For that matter, he could not remember the complainant ever having had sex with her. He felt the complainant would have been“too young”. When asked whether the complainant was in the shed when sexual activity was going on S.S. said “no”.

In follow-upquestions he acknowledged the complainant could have been there (in the shed) when sexual activity occurred but concluded by saying“when I was there, he was never there”. S.S. testified to being regularly beaten by his father. His exact words were that he “[…] got theliving crap beat out of [him] pretty much every day”. He tried to ensure his father’s alcoholic rages were directed toward him rather thanothers in the family. He recalls his mother sleeping under his bed out of fear of his father. He testified about how he would steal food forthe family.

He testified about an occasion when the appellant was “sent away” because he (the appellant) caught his mother having sexwith an uncle. S.S. testified that the children were very close growing up because they had to take care of each other. He described agood relationship between him and the complainant. S.S. testified that he smoked marijuana with the complainant. [15] The appellant’s common law spouse, V.P., testified about two occasions when she and theappellant were invited to a prime rib dinner and karaoke at the complainant’s residence in approximately 2005 to 2006.

She testified thaton those visits the complainant smoked marijuana. [16] I readily acknowledge that an appellate court’s

summary of witnesses’ testimony does notconstitute a

summary of the findings of fact made by the trial judge. I intend to deal with relevant findings by the trial judge in the courseof my analysis of the grounds of appeal. IV. Grounds of Appeal [17] The appellant contends the trial judge erred by rendering an unreasonable verdict (which raisesa question of law) and in his assessment of credibility (which raises a question of fact). V. Analysis [18] Verdicts may be unreasonable pursuant to s. 686(1)(a)(

i) of the Criminal Code, R.S.C., 1985, c.C-46 for a variety of reasons, including: (1) the verdict could not properly be reached, on the evidence, by a properly instructed jury orjudge sitting alone, R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51 (QL), R. v. Biniaris, 2000 SCC 15,[2000] 1 S.C.R. 381; (2) misapprehension of the evidence, R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. C.L.Y. 2008 SCC 2,[2008] 1 S.C.R. 5; (3) fundamental flaws in the reasoning process (irrational or illogical reasoning), R. v. Beaudry, 2007 SCC 5, [2007] 1S.C.R. 190, R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3 at para. 17; and (4) failure to provide reasons which would permit meaningfulappellate review, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. [19] I am of the view the trial judge misapprehended the evidence and committed fundamental flawsin the reasoning process such that the principles set out in both R. v. Lohrer and R. v. Beaudry are engaged.

A. Misapprehension of the Evidence

(1) Misapprehension of the evidence regarding the timing of an assault by the appellant upon the complainant [ 20 ] The trial judge concluded the appellant had beaten the complainant after he found out the complainant had provided a statement to the police in 2009. The uncontradicted evidence of the appellant was that the complainant attended at his house in the mid-1990s, insulted him, his wife and his children and told him (the appellant) that he thought he had abused him (the complainant) as a child.

The appellant admitted to having beaten the complainant, kicked him out of his house and that the complainant then drove away and became involved in an accident, for which he was subsequently charged with impaired driving. The complainant also testified to the beating and the accident, adding that after that event he “quit drinking”. Based upon the complainant’s testimony at trial that he had been sober for 14 years, he placed the beating by his brother in the mid- to late-1990s. Clearly, the incident occurred at least 10 years prior to the date he provided a statement to the police.

The trial judge misapprehended the evidence of both the complainant and the appellant as it relates to the timing of the beating. The trial judge’s misapprehension that the beating occurred after the complainant’s report to police in 2009 played a significant role in his assessment of the appellant’s credibility.

(2) Misapprehension of S.S.’s testimony regarding the group sex incident in the shed [ 21 ] With respect to the group sex incident in the shed, S.S. testified on direct examination that the complainant was not present and was too young to participate in the group sex. On cross-examination, S.S. acknowledged that the complainant “could” have been there. The trial judge considered S.S.’s testimony corroborative of the complainant’s. He said that S.S. testified that the complainant was “probably there”. In reaching that conclusion the trial judge clearly misapprehended S.S.’s testimony.

The difference between concluding that a witness testified to the fact someone was “probably” present as opposed to “could have” been present is significant. S.S. never testified the complainant was “probably there”, and, in fact, testified that “when I was there, he was never there”.

(3) S.S.’s evidence regarding the genesis of the complainant’s nickname either misapprehended or ignored [ 22 ] In describing the group sex incident in the shed behind their home at Ryan Road, the complainant testified that the young woman said the sex act “tickled” her and thereafter he was tagged with the nickname “short dink”. S.S. testified the complainant acquired the nickname of “short dink” when he (the complainant) was a very young child. S.S. testified the complainant’s pants would not stay on and, as a result, an uncle apparently referred to him as “short dink”.

The trial judge regarded S.S.’s evidence of the nickname as somewhat corroborative of the complainant’s version of events. However, he did not conduct any analysis or make any observation about S.S.’s testimony in that regard. In addition to the misapprehension of the evidence as it relates to whether the complainant was “probably present” in the shed, the trial judge appears to have misapprehended or ignored S.S.’s recollection of the genesis of the complainant’s nickname.

Prior to accepting the complainant’s version, the trial judge had a responsibility to consider S.S.’s testimony of an alternative genesis for the nickname. Had he considered that testimony and rejected it, it was clearly open to him to accept the complainant’s version. However, the appellant is entitled to know how the trial judge resolved the credibility contest between S.S. and the complainant. The trial judge either misapprehended S.S.’s evidence or chose to ignore it in his assessment of the complainant’s credibility.

(4) Misapprehension of the complainant’s evidence regarding the date at which the abuse terminated [ 23 ] The trial judge concluded the appellant’s sexual abuse of the complainant continued until the complainant was “fourteen or fifteen” years of age. This would put the appellant at 21 or 22 years of age. This conclusion by the trial judge is contrary to the complainant’s own testimony wherein he provided two different dates for when the abuse ended. He initially said the last incident was that involving group sex on Ryan Road when he was 10.

He later said that when he was 11 or 12 he was forced by the appellant to have sex with a cousin in Oromocto. Given the timeframe encompassed by the charges against the appellant one might suggest that this misapprehension is a minor detail that does not affect the reasonableness of the verdict. I would respectfully disagree. The trial judge’s conclusion that the abuse continued two to four years beyond the date suggested by the victim demonstrates a failure to carefully deliberate the facts of the case. This misapprehension also goes to the issue of the assessment of credibility.

The trial judge was faced with two different statements from the complainant about when the abuse ended. Since the trial judge did not consider either version in determining when the abuse stopped, it is apparent he failed to consider their potential conflict in assessing the complainant’s credibility.

(5) Misapprehension of the complainant’s evidence regarding date of report to grandmother [ 24 ] The complainant, in his statement to police, informed them that the first person he told about the abuse was his sister, S., when he was approximately 30 years old. He testified that the first person he told was his grandmother, when he was 8 or 9 years old. He further testified that his grandmother died during the time she was trying to get Social Services involved. The appellant and the complainant both testified that their grandmother died when the complainant would have been approximately 15 years old.

If the grandmother died while trying to access Social Services as deposed to by the complainant, he could not have been 8 or 9 when he complained to her. The trial judge did not address this inconsistency in the complainant’s testimony. I am of the view the trial judge’s analysis of the credibility issue, discussed later in these reasons, demonstrates a misapprehension of the evidence or a failure to fully consider the complainant’s testimony (including its internal inconsistencies) in conjunction with that of other witnesses.

(6) Misapprehension of the purpose of the evidence related to the complainant’s drug use [ 25 ] The appellant, S.S., and V.P. all testified to the complainant’s use of marijuana during the 14 years prior to trial. As earlier indicated, the complainant was adamant he was clean and that he had not used any drugs, except prescribed medications, in the 14 years prior to trial. His assertions in this regard, as captured in the transcript, are set out below: Q. Okay. So how long have you been free of drugs? A. Fourteen years. Q. So from the moment that you count as – you know – giving up alcohol and drugs? A.

I have not touched cocaine in over twenty years – Q. Okay A. – or whatever – fifteen, twenty – yeah, it’d been twenty years now since I’ve touched cocaine or anything like that. It’s been fourteen years since I’ve touched marijuana, alcohol or any other kind of drug except for what is prescribed from my doctor. [Transcript, June 11, page 93, lines 6 - 16] [ 26 ] With respect to whether the complainant considered marijuana to be a drug, the following exchange is revealing: Q. Well, I’m just wondering what kind of drugs you were doing. A. Mescaline. Q.

Okay, so you were – you were – you were doing mescaline at that point. Were you doing other kinds of drugs? A. Marijuana [Transcript, June 11, page 74, lines 6 – 12] [ 27 ] After the publicity surrounding the execution of a search warrant at the complainant’s residence in August 2012, the case was reopened. The complainant then testified as follows:

Q. Okay. I understand that in late August this year the police executed a search warrant at that location? A. Correct. Q. And they did so not in relation to the residence but in relation to buildings that are on the back part of the property? A. Correct. Q. Okay. And when they did that they located a grow-op in the buildings at the back of the property? A. It wasn’t a grow-op, it was some plants, yes. Q. Okay. I understand there was approximately fifty plants? A. There was fifty-one. [Transcript, October 31, page 5, lines 6 - 17] […] Q.

Now did you – you saw there was a reference to the amount of marijuana joints that could be – A. 25,500. Q. Yes. A. Yeah. Q. Does that sound about right to you? A. That’s what they said, yes. [Transcript, October 31, page 12, lines 16 – 22] […] Q. Alright. A. It was pure natural stuff to smoke for myself. Q. Let’s –

A. 25,500 joints. You figure about ten to fifteen a day. Okay? At night. Q. Is that what you usually smoke? A. Yeah. Roughly. Q. Okay. [Transcript, October 31, page 13, lines 7 – 13] […] A. ‘Cause I’m bipolar, see, so I have a puff so I don’t get all crazy in my head and want to go after people like that. [Transcript, October 31, page 13, lines 22-23; page 14, line 1] […] Q. Okay. And this, as a result of this now you’re saying you smoke marijuana in order to counteract the effects of that medication? A. I don’t take the medication. I smoke marihuana instead of the medication.

I cannot function when I take that medication. Q. Okay. A. When I take that medication, I don’t want to do anything but put my head under a pillow and a blanket and that’s all I want to do. Q. Okay, so instead you smoke marihuana? A. That’s right. Q. Okay. And you indicated that you smoke ten to fifteen joints a day. A. Roughly. [Transcript, October 31, page 14, lines 19-23; page 15, lines 1 - 12] […] Q. Now, do you recall when you were here on June 11 th of this year testifying? A. Yes.

Q. You remember being here? A. Yes. Q. Do you remember what you said about drugs and alcohol? A. Yes. Q. What did you say? A. I don’t touch drugs and alcohol? Q. Okay. A. Marihuana’s not a drug for me. It’s – Q. Okay, but you included marihuana in the drugs and alcohol that you haven’t touched. A. Did I? Q. Yeah. A. Show me. [Transcript, October 31, page 16, lines 7 – 22] […] Q. Okay, so you’ve been prescribed things for your bipolar disorder – A. Correct. Q. – and for your depression but you don’t take those anymore. A. Correct. Q. Okay. And that’s by your own choice. A. That’s right. [Transcript, October 31, page 17, lines 19 - 23; page 18, lines 1 - 3]

[…] Q. Okay so, and you heard yourself say, “I would like to add something, I have not touched a drink or a drug in 14 years”? A. That’s right. Q. You said that? A. That’s right. Q. And that’s not true. A. That is true. Q. But – A. A drug – Listen, I’m gonna explain it to you again. Marihuana for me is not a drug. It’s the medication. A drug for me is when I intravenously inject myself with cocaine or heroin like I was an addict. That is drugs for me. […] Q.

Previously in your last testimony you indicated that you had not touched marihuana in 14 years and that’s not true according to the testimony you’re giving today. A. Where does it say marihuana? Q. Well we’ll listen to that too. [Transcript, October 31, page 25, lines 14 - 23; page 26, lines 1 - 4, 10-15] [ 28 ] With respect to this issue of the use of marihuana, the defence led the evidence to advance its contention that the complainant was untruthful and was simply making up the story as the trial unfolded. Parenthetically, I would note, that the complainant testified that the marijuana was for his own use.

Interestingly, based upon the amount seized and his testimony about the quantity he normally consumes, the police seized an approximate five year supply. The marihuana issue was, according to the appellant, one more piece in a long list of untruths told by the complainant, including the untruths about the appellant’s conduct toward him. The judge’s misapprehension about the purpose of the evidence of the complainant’s marijuana use is demonstrated in the following exchange: MS.

MENARD: […] Now I’m not trying to pass judgment on – on somebody smoking a joint or – or – or trying to take a drug that might calm them or … THE COURT: Sure you are.

MS MENARD: I’m not, because I know people smoke joints all the time. THE COURT: Sure you are. MS. MENARD: But the reason it’s important, okay, any – and- as Mr. [S.S.] indicated, hey it’s something we do. […] it’s important toconsider that from a credibility perspective […] [Transcript, June 22, page 162, lines 1 - 20] [29] The trial judge misapprehended an attack on credibility as an attack on character. The nuance isslight but it is evident in this case. The trial judge concluded that the marihuana issues were raised to show the complainant was not aperson of good moral fibre and hence, a liar.

That was not the position advanced by the defence. The defence never suggested that aperson who smokes marijuana is a person of bad character and, hence, a liar. The whole purpose of the marijuana debate was to showthat the complainant had lied and could not be believed with respect to the allegations made about the appellant. The trial judgemisapprehended that evidence and the argument in June, 2012, and appears not to have corrected his misapprehension in October whenthe issue re-surfaced.

(7) Misapprehension of the evidence regarding social interaction between the complainant and the appellant [30] Another misapprehension of the evidence that flows from the evidence admitted on the re-opening of the trial is that regarding the relationship between the appellant and the complainant in and around 2004 and 2005. In June,the appellant’s spouse, V.P., testified to having visited the complainant and his spouse at their home on two occasions within that timeframe, once for prime rib dinner and another for an evening of karaoke. She testified that on both occasions the complainant smokedmarijuana.

She further claimed that “all was friendly, with lots of joking and laughter”.

The trial judge set this up as a credibility issuebetween the appellant’s spouse and the complainant when he observed: This, of course, is in stark contrast with the testimony of the complainant, who described a very acrimonious relationship with his brotherwith virtually no contact for many years”. [Transcript, August 10, page 10, lines 3 – 6] [31] The trial judge accepted the complainant’s version that there had been no recent socialinteraction when he said: The accused also testified that everyone got along fairly well and called witnesses to suggest that up until his brother went to the police,the relationship was normal.

This is not in accord with the global evidence either. There is virtually no contact between family membersand it has been that way for a considerable period of time. [Transcript, August 10, page 22, lines 6 – 13] [32] The complainant’s recollection of social events with the appellant and his spouse, V.P., changedconsiderably on October 31, 2012.

He no longer denied the existence of the social events, he simply could not recall whether he usedmarihuana during those events. [33] Based upon the complete transcript of the trial, including the continuation on October 31, 2012,the trial judge clearly misapprehended the evidence when he concluded there had been “virtually no contact between family members”. After the evidence at the re-opening of the trial, the complainant’s testimony regarding “food and karaoke” no longer stood in “starkcontrast” to that of V.P. and the appellant.

The trial judge failed to revisit his findings on that issue in light of the new evidence.

(8) Misapprehension of the treatment of the appellant’s evidence as a “child witness” [34] I would make one final observation with respect to misapprehension of the evidence. At the timethe alleged offences would have commenced, and for a large part of their duration, both the appellant and the complainant were children. The trial judge, in referring to the assessment of the evidence, quite properly noted that the complainant was a “relatively young boy” atthe time of the allegations. He then observed that the assessment of his evidence must take into consideration his “age and maturity” atthe relevant time.

He quoted the court in R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122, [1992] 2 S.C.R., where McLachlin,J., as she then was, stated:

[…] In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [para. 26] [ 35 ] Much of the testimony of both the appellant and the complainant related to events which occurred during childhood.

With respect to those childhood events, the trial judge considered the complainant’s testimony within the context of his age at the time. This is particularly evident in the trial judge’s observations regarding what he described as “orgies” in the shed. I would note in passing that no person ever used the word “orgy” during the trial. The trial judge appears not to have considered the appellant’s testimony within the context of his age at the time of the events about which he was testifying, including the group sex allegation.

This, in my view, is an error and results in a misapprehension of large parts of the appellant’s testimony. A fair trial can only result when the trier of fact adopts a similar approach to the testimony of all witnesses who testify to events which occurred during their childhood. The jurisprudence in this regard is not designed to assist only complainants; see, R. v.

W.(R) , where McLachlin J. stated: […] Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. [para. 26] [Emphasis added.] [ 36 ] On the strength of these misapprehensions of the evidence, I would allow the appeal and order a new trial. However, the appellant has also raised concerns about the trial judge’s reasoning process, which I wish to address. C . Fundamental Flaws in the Reasoning Process

(1) Sexual deviance among family members [ 37 ] In the process of convicting the appellant the trial judge considered evidence that, in my view, demonstrates a flaw in his reasoning process. He said: […] [I]t is clear from all the other evidence, much of which has been substantiated by convictions resulting in jail terms, that sexual deviance was clearly an issue in this family. [Transcript, August 10, page 20, lines 8 - 12] [ 38 ] The “evidence” upon which the trial judge relies to make such a statement is summarized by him at pages 19 and 20 of his August 10 decision and includes the following: 1.

The complainant’s testimony that he was molested by his Aunt L. and Uncle G. I would note that “Aunt L. and Uncle G.” were never charged with any crime, were never convicted and their alleged conduct was not raised by the complainant with police authorities. There was no connection between that evidence and the allegations made against the appellant. This is evidence that arose from his “telling” of the story as the trial unfolded. I fail to appreciate its relevance to the guilt or innocence of the appellant. 2. Uncle G. was seen by the accused having sex with the accused’s mother […].

There is no evidence the complainant had knowledge about this fact during his childhood, yet it appears to be used by the trial judge to “bootstrap” the complainant’s testimony.

3. There were allegations by the complainant that his uncle made him have sex with [B.S.] who was his half-cousin. I fail to appreciate how a cousin’s encounter with the complainant is relevant to whether the appellant is guilty of the crimes alleged. 4. The accused’s father and brother, S.S., were convicted of sex crimes many years after the alleged incidents involving the appellant.

Once again, this information was unknown to the complainant during his childhood and was, in my view, inappropriately used to “bootstrap” his testimony. [ 39 ] I am of the view the trial judge’s use of the above evidence to support his conclusion that the appellant’s family was infected with “sexual deviance” and furthermore, to convict the appellant, demonstrates a flawed and illogical reasoning process in a criminal trial. The issue was never whether there was sexual deviance in the family.

The issue was exclusively whether the Crown had proven the appellant, a person presumed innocent, guilty beyond a reasonable doubt.

(2) Trial judge’s conclusion that the new evidence of the complainant’s marijuana “grow-op” would have no impact on his credibility assessment before hearing the evidence [ 40 ] As already indicated, the complainant testified in June 2012, that he had not used marijuana for 14 years. In August 2012, he was arrested for operating a marijuana grow-op. Defence counsel sought to re-open the case in order to cross-examine him with respect to his trial testimony in light of the grow-op evidence.

While the trial judge eventually permitted the complainant’s cross-examination on that issue (from which the Crown did not cross-appeal) the following exchange between defence counsel and the trial judge is relevant to the issue of the trial judge’s reasoning process: THE COURT: Well, the only thing that I see is that – is that the basis for reopening this trial is the fact that the complainant got busted for a marijuana grow-op. Is that what the basis of this motion is all about? MS.

MÉNARD : It’s essentially an issue with respect to credibility […] […] THE COURT: […] So the fact that he – the fact that he was growing fifty-one marijuana plants, I can quite frankly tell you is not going to affect my assessment of the overall credibility and the reasons that I gave. MS.

MÉNARD: Well, I guess if the Court is going to indicate that prior to hearing the motion, then there is probably – [Transcript, October 9, page 5, lines 3 - 9; page 7, lines 22-23; page 8, lines 1 – 6] [ 41 ] The trial judge’s conclusion, before having heard the evidence and the submissions of the parties, demonstrates legal error and an illogical reasoning process, one infused with bias.

(3) Circular reasoning, reversal of onus of proof

[42] The defining feature of our criminal law is that an individual is presumed innocent unless theCrown proves him or her guilty beyond a reasonable doubt. The onus is on the Crown throughout the trial and never shifts. Theaccused, presumed innocent until proven otherwise, need not raise any doubt about anything. The Crown must prove every element ofthe offence beyond a reasonable doubt. [43] The trial judge’s analysis contains an observation which, in my view, runs afoul of the conceptof proof beyond a reasonable doubt and reflects the lens through which he weighed much of the evidence.

It demonstrates both circularreasoning and a reversal of the onus. At pages 22 and 23 of the August 10 decision, the trial judge observes that the complainant ranaway from home as a young adolescent and lived on the streets as an intravenous drug user foraging in dumpsters in order to eat.

He thenconcludes the complainant “has been clearly scarred by something” and observes that “the complainant says it was because of the abusethat he suffered, which seems to be supported by the evidence.” The trial judge’s conclusion the complainant was scarred by“something”, immediately followed by the complainant’s hypothesis of the cause, demonstrates circular reasoning.

Rather than focus onthe “scars” to the complainant and the complainant’s theory of the cause, the trial judge’s focus should have been on whether the Crownhad proven the presumptively innocent person, the appellant, guilty beyond a reasonable doubt. By making the observation regarding the“scars” and by repeating the complainant’s hypothesis as to the cause, the trial judge essentially required the appellant to disprove thehypothesis, thereby reversing the onus (see, R. v. V.Y., 2010 ONCA 544, [2010] O.J.

No. 3336 (QL)). [44] The trial judge’s reversal of the onus is also evident in his concluding remarks: Because of the corroboration of much of the complainant’s testimony as set out above, and because of the physical scars whichcorroborate some of the physical harm suffered by him, his testimony is more believable in the context of the global evidence as I haveset it out and in the atmosphere of considerable sexual abuse by family members. Conversely, the testimony of the accused falls short inthat regard.

Accordingly, I accept the testimony of the complainant that he was abused as he described by his brother in the mannerdescribed. [Transcript, August 10, page 24, lines 10 – 20] [45] One does not conduct a criminal trial from the vantage that the victim is truthful and that his orher story must be countered by the party presumed to be innocent. To do so places a burden on the innocent party that is foreign to ourcriminal justice system. The danger signaled in R. v. W.(

D) is, in my view, exactly what occurred in this case. A criminal trial set up as acredibility contest runs the serious risk of reversing the onus of proof (see R. v. Wilson, 2013 NBCA 38, [2013] N.B.J. No. 304 (QL), atpara 29; R. v. Rhodes, 2011 MBCA 98, [2011] M.J. No. 396 (QL), at para 5; R. v. Doiron, 2013 NBCA 31, 405 N.B.R. (2d) 22, at para29; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152 at para. 9; and R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] 1S.C.J. No. 126 (QL)). The trial judge failed to conduct any deliberative comparison of the complainant’s testimony with that of V.P., S.S.or the appellant.

A probing analysis of all of the testimony would have reduced the risk of the misapprehensions referred to above and,would have reduced the risk of the trial judge reaching the conclusion that the appellant’s story had to be “more believable” than that ofthe complainant. VI. Conclusion [46] For all of these reasons I would allow the appeal and order a new trial before a different judgeof the Provincial Court if the Attorney General chooses to proceed. _________________________________ B. RICHARD BELL, J.A. WE CONCUR: __________________________________ J.T. ROBERTSON, J.A.

__________________________________ BRADLEY V. GREEN, J.A.