R. v. MacIsaac, 2013 NLCA 26

Date: 20130418 Docket: 12/41 Citation: R. v. MacIsaac , 2013 NLCA 26

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : AARON ALEXANDER MACISAAC APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201104G0079 Appeal Heard: March 6, 2013 Judgment Rendered: April 18, 2013 Reasons for Judgment by Rowe J.A. Concurred in by Hoegg J.A. Dissenting as to Conviction Appeal by Welsh J.A. Counsel for the Appellant: Derek Hogan

Counsel for the Respondent: Robin Fowler Rowe J.A.: FACTS [ 1 ] Aaron MacIsaac appeals his conviction for two counts of sexual interference ( s. 151 (

a) of the Criminal Code ) and two counts of uttering threats ( s. 264.1(1) (

a) of the Criminal Code ). He also appeals his sentence. I will deal with his appeal against conviction. [ 2 ] The appellant was charged with the offences noted above and with two counts of sexual assault ( s. 271 of the Criminal Code ) and one count of assault ( s. 266 of the Criminal Code ). [ 3 ] At his trial, there were two witnesses, C.A.W. (the mother of two young children) and N.W. (her older child). Mr. MacIsaac did not testify. [ 4 ] Ms. W. testified that she and Mr. MacIsaac began to live together in February 2007. Up to June, she and Mr. MacIsaac were usually in the apartment with the two boys.

The exception was when Ms. W. went to aerobics, 7:00 to 8:30 p.m., Monday to Friday. (In June 2007, N.W. was 5 years 3 months old and J.W. was 17 months old.) [ 5 ] The trial judge summarized the rest of Ms. W.’s testimony as follows: [5] Ms. W. testified that the following factors caused her to stop going to aerobics in mid-June 2007: 1) At that time N. advised her Mr. MacIsaac had hit J. “up the side of the head”. When she asked Mr. MacIsaac about this he stated he might have slapped J.’s fingers; 2) By this time, when Mr. MacIsaac was drinking, he had become abusive towards Ms.

W., both physically and verbally; and 3) Ms. W. had noticed several negative changes in the boys’ behaviour over the time she was going to aerobics. [ 6 ] Ms. W. also testified that: 1) In mid-August 2007 N. told her that Mr. MacIsaac had been touching both J. and himself in their private areas and had threatened to kill them. 2) Several days later, while she was in bed pretending to be asleep, with Mr. MacIsaac on one side of her and N. on the other, Mr. MacIsaac put his hands in the vicinity of N.’s penis. 3) The next day she and Mr. MacIsaac had a major confrontation which led to Ms.

W. and the two children leaving the apartment. [6] The critical testimony at trial was by N.W. When he testified he was just under 10 years old. The trial judge wrote: At trial, N. presented as intelligent, sincere and of appropriate maturity for his age. He listened carefully to questions and replied in a brief straight-forward manner. He was generally a credible witness. [ 7 ] The trial judge noted several inconsistencies between N.W.’s testimony and that of his mother. The judge concluded: I accept that N. is more likely to be mistaken about these details than Ms.

W. but given his age at the time, approximately five years of age, I do not find that these inconsistencies, either individually or cumulatively, affect the overall credibility of his testimony. [ 8 ] The trial judge went on to say: [17] The evidence before me shows some inconsistencies between what N. said at trial and what he said in two statements to the police, one taken in 2007 and the other in 2010. I note that N. testified that he could not remember giving a statement to the police on either occasion and, accordingly, he could not, at trial, remember what he had said in either statement.

No details as to the circumstances surrounding the taking of those statements from N. were presented in evidence. The inconsistencies were, essentially, as to the touching of J. and/or N. by the accused, involving Mr. MacIsaac ’s penis, a curling iron, scissors, lip balm or lipstick. [18] As well, in cross-examination N. testified that discussions he had with his mother since his initial disclosure, including their last discussion a few days before the trial, helped him remember: 1) That Mr. MacIsaac touched J.’s bum with his penis; 2) That Mr. MacIsaac touched N.’s bum with a curling iron; and 3) That Mr.

MacIsaac put lipstick or lip balm on J.’s bum, rubbed it and kissed it. [19] These inconsistencies and these discussions are such as to raise a reasonable doubt that Mr. MacIsaac in touching either J. or N. used his penis, a curling iron, scissors, lip balm or lipstick in a sexual manner. [20] However, N.W. was unequivocal in his testimony that Mr. MacIsaac touched him and J. with his hands, in their private parts, being the penis and the bum, on a lot of occasions.

I find the credibility of this testimony is not affected by the inconsistencies about other methods of touching and that N. did not require conversations with his mother to assist in remembering this touching. N. testified that such touching occurred both when he and J. were naked and, when they were clothed, under their clothes. He testified as to the rooms in the apartment in which such touching occurred although, not surprisingly, he could not relate each type of incident to particular

rooms. He stated that such touching occurred when his mother was either at aerobics, asleep in the apartment, at the residence of herparents who lived nearby or outside the house by the door for a smoke. [21] Essential elements of the charge of sexual interference are that: 1) The victim was under 14 years of age at the time of the incident or incidents in question; 2) The accused touched the victim; and 3) The touching was for a sexual purpose.

Having reviewed all of the evidence before me and assessed the credibility of N.W., I am satisfied that all of the elements of the offenceof sexual interference have been established beyond a reasonable doubt in regard to Counts 3 and 4. Mr. MacIsaac touched with his handboth J.W. and N.W. on numerous occasions on their penis and their bum for his own sexual purpose.

Accordingly, convictions areentered on Counts 3 and 4. [9] The trial judge stayed the two counts for sexual assault, applying the rule against multiple convictions (the Kienappleprinciple). [10] Regarding the two counts of uttering threats, the trial judge wrote: [24] N.W. testified that when Mr. MacIsaac was inappropriately touching J. and/or him he would say to them that: 1) He was going to kill them; and/or 2) He would slice J.’s throat with scissors; if they told anyone.

N. testified this made him feel scared and was why he waited a while before telling his mother of the touchingincidents. [25] Based on my overall assessment of the credibility of N.W., I am satisfied beyond a reasonable doubt that Mr. MacIsaac statedto N. that he would kill N. and J. if they told of his inappropriate touching of them, with the intent of intimidating N.

Accordingly, oneach of Counts 6 and 7 a conviction is entered. [11] The charge of assault on J.W. was dismissed as N.W. did not refer to it in his testimony, save to relate that he had told hismother about it. [12] The trial judge reviewed case law concerning the testimony of child witnesses (R. v. W.(R.), (SCC), [1992] 2S.C.R. 122, at paragraphs 24-26). ISSUES [13] The appellant sets out three issues:

(1) Are the verdicts unreasonable or cannot be supported by the evidence per s. 686(1)(a)(

i) of the Criminal Code?

(2) Did the trial judge misapprehend material evidence per s. 686(1)(a)(iii) of the Criminal Code?

(3) Did the trial judge give insufficient reasons for accepting the complainant’s evidence per s. 686(1)(a)(ii) of the Criminal Code? ANALYSIS [14] The test for an unreasonable verdict was set out by the Supreme Court in R. v.

Biniaris 2000 SCC 15, [2000] 1 S.C.R. 381: 36 The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannotbe supported by the evidence has been unequivocally expressed in Yebes as follows: [C]urial review is invited whenever a jury goes beyond a reasonable standard. . . . [T]he test is ‘whether the verdict is one that a properlyinstructed jury acting judicially, could reasonably have rendered’. (Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 185 (quoting Corbett v.

The Queen, (SCC), [1975] 2 S.C.R.275, at p. 282, per Pigeon J.).) That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court todetermine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and,within the limits of appellate disadvantage, weigh the evidence. … . 37 The Yebes test is expressed in terms of a verdict reached by a jury. It is, however, equally applicable to the judgment of ajudge sitting at trial without a jury.

The review for unreasonableness on appeal is different, however, and somewhat easier when thejudgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, thereviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain theunreasonable conclusion reached, and justify the reversal. … . [15] This straight-forward formulation has been made more complex by R. v. Beaudry, infra; R. v. Sinclair, infra; and R. v. R.P.,infra, referred to below by my sister Welsh.

That said, the Yebes-Biniaris formulation remains the core of the test for unreasonable

verdict; the subsequent cases identifying modalities by which an unreasonable verdict may arise. [16] The test for misapprehension of evidence was set out by Doherty J.A. in R. v. Morrissey (1995), (ON CA),97 C.C.C. (3d) 193 (Ont. C.A.), at paragraph 83: A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substanceof the evidence, or a failure to give proper effect to evidence. [17] The misapprehension of the evidence must be such that it could have affected the verdict. As Laskin J.A. wrote in R. v.

G.(G.),(1995) (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.), at paragraph 59: When an appellate court finds error, it has a duty to consider the nature of the error, its effect on the verdict, and when the verdict isrendered by a judge alone, on the reasoning process by which the verdict was reached. Obviously not every error in the apprehension orappreciation of evidence or in the drawing of a conclusion from evidence warrants quashing a conviction. But s. 686(1)(a)(

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

Once those hurdles are surmounted, thereis the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential partnot just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [19] The test for sufficiency of reasons was set out by McLachlin C.J.C. in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, atparagraph 35: In

summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context ofthe evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard,[2002 SCC 26 , [2002] 1 S.C.R. 869] at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connectionbetween the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdictis unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to theevidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial. [20] An unreasonable verdict (ordinarily) results in an acquittal. Misapprehension of evidence usually results in a new trial (thoughmisapprehension of evidence can be a factor leading to the conclusion that the verdict was unreasonable).

Failure to provide sufficientreasons results in a new trial. [21] Counsel for the appellant mounted what I would call a “combined attack” on the trial judge’s decision, mixing elements ofunreasonable verdict, misapprehension of the evidence and insufficiency of reasons throughout his submissions. [22] The appellant concedes that “the trial judge did not mistake evidence.” (Factum, paragraph 40.) Rather, he offers the followingcriticisms, each being in the nature of errors of omission: (1) failure to consider that N.W. had a motive to fabricate evidence in order to protect himself, his brother and his mother from Mr.McIsaac; (2) failure to give due regard to the lack of particulars in the allegations by N.W.; and (3) failure to give due regard to N.W.’s suggestibility at the prompting of his mother; put another way, failure to recognize that N.W.had no independent recollection of the alleged offence. [23] Regarding the motive to fabricate, appellant’s counsel wrote (at paragraph 32 of the Factum): The trial judge disregarded N.W.’s motive to fabricate his allegations.

This motive was compelling: the appellant broke his mother’sproperty in front of him and verbally and physically abused her. One would expect that any child, including this child, would want toprotect his mother from this abuse for her sake and for his own because she was caring for him. After months of this abuse, his eventualdisclosure betrayed his knowledge of its consequence – that the appellant could be removed from the home because he could go to jail. [24] However, the appellant’s counsel at trial (different from that on appeal) did not put this matter in issue.

N.W. was notquestioned by counsel respecting any motive to lie, and the appellant was long removed from N.W.’s life when he testified at trial. Thus,on appeal, counsel for the appellant is saying that the trial judge erred by failing to address non-existent evidence and an argument thatwas never made. This cannot succeed. [25] Points (2) and (3) above are closely related.

They amount to this: did N.W.’s testimony set out a reliable, persuasive basis forconvicting the appellant or was the testimony so lacking in detail and so influenced by the mother that it should not have been the basisfor the convictions? [26] As to lack of detail, this submission is not persuasive. There is no requirement to provide any given degree of detail. N.W. was

consistent and unequivocal in his assertion that Mr. MacIssac had touched him and his younger brother sexually on many occasions. He testified to where in the apartment the sexual touching had occurred, that it occurred when his mother was either at aerobics, asleep at home, visiting her own mother or outside for a smoke, and that the touching occurred both when he was naked and clothed.

Further, it is hardly surprising that N.W.’s evidence was not more detailed given that he was testifying about events that had occurred almost five years before, when he was barely five years old. [ 27 ] As to the mother suggesting to N.W. what had occurred, the trial judge was alert to this. In paragraph 18 of his decision (reproduced above), the trial judge refers to N.W. having discussions with his mother that “helped him remember” three specific incidents.

In paragraph 19, the trial judge refers to these discussions as a basis for having reasonable doubt concerning the three incidents. [ 28 ] By contrast, in paragraph 20, the trial judge referred to other incidents and stated “I find the credibility of this testimony is not affected by the inconsistencies about other methods of touching [the three incidents just referred to] and N. did not require conversations with his mother to assist in remembering this touching.” (Emphasis added.) [ 29 ] Thus, the trial judge was alert to the point made by counsel for the appellant; he expressly addressed it in his reasons.

Counsel for the appellant invites this Court to second-guess the trial judge and substitute its own views on credibility. That is not our role. We are not the 13th juror. [ 30 ] There is no basis in law for setting aside the findings of the trial judge. Accordingly, the appeal against conviction is denied.

SUMMARY AND DISPOSITION [ 31 ] The appeal against conviction is dismissed. I concur in the reasons of Welsh J.A. concerning sentence. Thus, the appeal against sentence is allowed. In the circumstances, as described by Welsh J.A., the sentence is varied to time served as of the date of this decision. ______________________________ M. H. Rowe J.A. Hoegg J.A. [ 32 ] I agree that the appeal against conviction should be dismissed for the reasons set out by my colleague Rowe J.A.

I agree with my colleague Welsh J.A. that the appeal against sentence should be allowed, and the sentence varied to time served as of the date of this decision. ______________________________ L. R. Hoegg J.A. Welsh J.A. (Dissenting as to Conviction Appeal) [ 33 ] For the following reasons, I reach a conclusion different from my colleagues on the issue of Mr. MacIsaac’s appeal against conviction. I would allow, rather than dismiss, the appeal. In addition, following are my reasons for allowing the appeal against sentence.

APPEAL AGAINST CONVICTION [ 34 ] In appealing his convictions for sexual interference and uttering a threat, Mr. MacIsaac submits that the trial judge erred primarily by failing to consider the evidence as a whole and by providing insufficient reasons to articulate how credibility concerns, central to proof of the offences, were resolved. Legal Basis for Allowing the Appeal [ 35 ]

Section 686 of the Criminal Code provides the authority for a court to dispose of an appeal:

(1) On the hearing of an appeal against a conviction …, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where

... (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), … [36] In assessing the submissions of the appellant, consideration must be given to which of subparagraphs (

i) to (iii) of paragraph (a)may apply. For example, in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paragraphs 38, 43 and 47, Binnie J., for the Court,recognized that error based on insufficiency of reasons given by a trial judge may fall under any one of these three subparagraphs. (Seealso: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3.) [37] In this case, Mr. MacIsaac relies on all three bases for allowing the appeal under section 686(1)(a). I begin with subparagraph(i), unreasonable verdict. [38] The principles applicable when there is an allegation of unreasonable verdict are summarized in R. v.

R.P., 2012 SCC 22,[2012] 1 S.C.R. 746. Deschamps J., for the majority wrote: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.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 aproperly instructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected 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, 2007SCC 5, [2007] 1 S.C.R. 190). [39] For the reasons discussed below, applying the R.P. test in this case, it cannot be said that the trial judge’s verdict isunreasonable. This is because this is a situation where the failure to provide sufficient reasons, in effect, prevents the analysis undersubparagraph (i). [40] However, the same difficulty does not arise under subparagraph (ii) which involves an error on a question of law.

Applying thatprovision, an error of law resulting in the appeal being allowed arises from the trial judge’s failure to give reasons sufficient to reveal thathe was alive to issues raised by the evidence, where such issues are relevant and necessary to assessing credibility and, therefore,whether the charges were proven beyond a reasonable doubt.

Sufficiency of Reasons [41] In Sheppard, Binnie J. explained that a deficiency of reasons may result in an error of law under section 686(1)(a)(ii) of theCriminal Code where “in the opinion of the appellate court, the deficiency precludes meaningful appellate review of the correctness ofthe decision” (paragraph 43, italics in original). [42] In considering whether the trial judge erred by providing insufficient reasons, relevant factors are summarized in R. v. R.E.M.,supra: [35] …

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connectionbetween the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at theverdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to theevidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial. … [43] Where, as here, assessment of a witness’ credibility is a critical factor in determining a verdict, Charron J., for the Court, in R. v.Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, explained: [26] At the trial level, reasons “justify and explain the result” (Sheppard, [2002 SCC 26, [2002] 1 S.C.R. 869], at para. 24).

Where acase turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference affordedto trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons forjudgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved mayconstitute reversible error (see R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v.

Gagnon, [2006]1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know “why the trial judge is left with no reasonable doubt”: … (Emphasis added.) [44] It is convenient to begin in this case with the trial judge’s failure to address the question of a possible motive for N.W. tofabricate the allegations. In R. v.

Francois, (SCC), [1994] 2 S.C.R. 827, at pages 836 to 837, McLachlin J., for theCourt, distinguished between factors, such as demeanour of a witness, which would not be susceptible of review on appeal, and those,such as motive to fabricate, which may be susceptible of such review: … The reasoning here is that the witness may not have been telling the truth for a variety of reasons, whether because of inconsistenciesin the witness’s stories at different times, because certain facts may have been suggested to her, or because she may have had reason to

concoct her accusations. In the end, the jury must decide whether, despite such factors, it believes the witness’s story, in whole or inpart. That determination turns not only upon such factors as the assessment of the significance of any alleged inconsistencies or motivesfor concoction, which may be susceptible of reasoned review by a court of appeal, but on the demeanour of the witness and the commonsense of the jury, which cannot be assessed by the court of appeal.

The latter domain is the “advantage” possessed by the trier of fact, beit judge or jury, which the court of appeal does not possess and which the court of appeal must bear in mind in deciding whether theverdict is unreasonable: R. v. W. (R.), [ (SCC), [1992] 2 S.C.R. 122]. [45] In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, Charron J., for the Court, accepted that “motive to fabricate is an indexof reliability” (paragraph 99). It is a relevant consideration in assessing credibility. [46] I do not accept the view of my colleagues that evidence regarding the question of motive was non-existent.

While N.W. was notquestioned about a possible motive, the child’s mother offered relevant testimony from which an inference of motive could be drawn. She testified that Mr. MacIsaac broke property in front of the children and that he verbally and physically abused her. She testified thatMr. MacIsaac had threatened her, that she was very frightened of him and of what he would do if she left him, and that she was “soscared” of him that she “didn’t know what to do”.

With respect to the reaction of N.W., she testified that “anyone that age would bescared of someone who was breaking things and screeching and saying mean things”. [47] N.W.’s mother testified that she had taught him about inappropriate touching because “there’s a history of some sexual assaultsthat happened in my family”, involving one of her brothers in particular. At trial, N.W.’s mother adopted the following portion of astatement she gave to the police: [N.W.] made a serious comment that started this conversation about abuse.

I was doing the dishes in the kitchen at the sink. [N.W.] wasplaying with his brother on the floor. He got up to come to the sink and said to me, “Mom, Aaron [Mr. MacIsaac] is a prick. [J.] is yourbaby right Mom?” “Yes, he is” I answered. “He’s not Aaron’s baby.” I said to him, “Sweetie, is there a reason you’re telling me these things?” He replied, “Aaron put scissors to [J.’s] neck and told me that he would cut [J.’s] neck right across.

Why would he put scissors to [J.’s]neck and say he would hurt him? “Did Aaron do something wrong, [N.]?” His reply, “Remember, Mom, you told me that no one was allowed to touch my privates but Aaron did Mom. I told him my Mom saidno one was allowed to touch my privates. He said that you never said that.” “Yes, Mommy told you that no one was allowed to touch your privates. Are you sure Aaron touched you?” “Yes.” “What about [J.]?” “Yes Mom.” “Is that why you told me, [N.]?” “Mom, can we call the cops on Aaron and put him in jail?” [48] The reference to Mr.

MacIsaac as “a prick” and the request to have him put in jail, considered in the context of the atmosphereof fear in the small apartment, provides a basis on which an inference could be drawn that N.W. had a motive to fabricate his allegations. It cannot be assumed that the trial judge would have drawn this inference, but the evidence was such that it constituted a relevant factorrequiring consideration in the assessment of N.W.’s credibility. [49] The circumstances in this case may be contrasted with the situation described in Khelawon.

Charron J. referred to concernswith accepting the hearsay evidence of the mother of a young child in a sexual assault case, R. v. Khan, (SCC), [1990] 2S.C.R. 531. In Khan, the statements made by a young child to her mother were ruled admissible as an exception to the hearsay rule. Drawing from that decision, Charron J. wrote: [67] … McLachlin J., in the following oft-quoted statement, summarized [the characteristics that would answer concerns withaccepting hearsay evidence] in this way: I conclude that the mother’s statement in the case at bar should have been received.

It was necessary, the child’s viva voce evidencehaving been rejected. It was also reliable. The child had no motive to falsify her story, which emerged naturally and withoutprompting. Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its ownpeculiar stamp of reliability. Finally, her statement was corroborated by real evidence [the presence of semen]. [p. 548] The facts also revealed that the statement was made almost immediately after the event. That feature removed any concern aboutinaccurate memory.

The fact that the child had no reason to lie alleviated the concern about sincerity. Because the statement was madenaturally and without prompting, there was no real danger that it came about because of the mother’s influence.

Most importantly, asstated in the above excerpt, the event described was one that would ordinarily be outside the experience of a child of her age giving it a“peculiar stamp of reliability”. … [50] In the circumstances of the case now before this Court, the question of motive to fabricate the allegations was a live issueflowing from the evidence of N.W.’s mother, particularly viewed in the context of other evidence and inferences that could be drawn. For example, in considering this issue, the question arises as to why N.W. waited to engage his mother in the above conversation. His

mother had educated N.W. about inappropriate touching, and yet, he did not report his allegations until after what he described as “a lot” of incidents had occurred over a period of time. [ 51 ] Assessing whether N.W. had a possible motive to fabricate the allegations must be considered in the context of the evidence as a whole.

It is the combination of all the evidence, including that discussed below, and possible inferences arising therefrom, that underscores the requirement for the trial judge here to have addressed issues such as motive in order to provide sufficient reasons to justify and explain the verdict. [ 52 ] Before proceeding with other submissions on the evidence, I would note that defence counsel, who was not counsel on the appeal, did not raise the issue of a possible motive to fabricate the allegations in his submissions at trial.

This does not release the trial judge from the requirement to address the evidence, and possible inferences to be drawn from it. Here, evidence that could suggest a motive for fabricating the allegations would be relevant to assessing credibility, an important consideration since credibility was central to proof of the offence. In raising this issue on appeal, counsel was not raising a “new issue” in the sense that fresh evidence was required. There is no bar to an appellant making submissions different from those made at trial where the record includes the necessary supporting evidence.

That said, I would reiterate the importance of counsel providing comprehensive assistance to the court at the time of trial. (See, for example, R. v. J.R.K. , 2011 NLCA 52 , 309 Nfld. & P.E.I.R. 161, at paragraph 9 ; R. v.

Druken , 2002 NFCA 23, 211 Nfld. & P.E.I.R. 219, at paragraph 46 .) [ 53 ] Another consideration arising from the trial judge’s decision is his comment on inconsistencies related to statements N.W. made to the police (2012 NLTD(G) 68): [17] The evidence before me shows some inconsistencies between what N. said at trial and what he said in two statements to the police, one taken in 2007 and the other in 2010. I note that N. testified that he could not remember giving a statement to the police on either occasion and, accordingly, he could not, at trial, remember what he had said in either statement.

No details as to the circumstances surrounding the taking of those statements from N. were presented in evidence. The inconsistencies were, essentially, as to the touching of J. and/or N. by the accused, involving Mr. MacIsaac’s penis, a curling iron, scissors, lip balm or lipstick. [ 54 ] Before considering the effect of the inconsistencies on the trial judge’s decision, I would note that he made no further comment on N.W.’s failure to remember giving a statement to the police. It is understandable that he might have forgotten the statement given in 2007 when he was five years old.

However, when the statement was given in 2010, N.W. was eight years old. At that age, one would expect a child to remember an occasion such as giving a statement to the police. The trial judge described N.W. at trial, when he was aged nine years, eleven months, as presenting “as intelligent, sincere and of appropriate maturity for his age” (paragraph 14).

N.W.’s apparent failure to remember speaking to the police is a factor relevant to assessing his credibility, but was not referenced in that context by the trial judge. [ 55 ] The trial judge next referred to discussions N.W. had with his mother: [18] As well, in cross-examination N. testified that discussions he had with his mother since his initial disclosure, including their last discussion a few days before the trial, helped him remember: [the incidents involving Mr.

MacIsaac’s penis, a curling iron, scissors, lip balm or lipstick]. [19] These inconsistencies and these discussions are such as to raise a reasonable doubt that Mr. MacIsaac in touching either J. or N. used his penis, a curling iron, scissors, lip balm or lipstick in a sexual manner. [ 56 ] Having rejected these allegations as not proven, the trial judge then went on to find that the evidence did establish that the general allegations of touching had been proven beyond a reasonable doubt: [20] However, N.W. was unequivocal in his testimony that Mr.

MacIsaac touched him and J. with his hands, in their private parts, being the penis and the bum, on a lot of occasions. I find the credibility of this testimony is not affected by the inconsistencies about other methods of touching and that N. did not require conversations with his mother to assist in remembering this touching. N. testified that such touching occurred both when he and J. were naked and, when they were clothed, under their clothes. He testified as to the rooms in the apartment in which such touching occurred although, not surprisingly, he could not relate each type of incident to particular rooms.

He stated that such touching occurred when his mother was either at aerobics, asleep in the apartment, at the residence of her parents who lived nearby or outside the house by the door for a smoke. [ 57 ] That assessment must be considered in light of the trial judge’s earlier rejection of the evidence and allegations that dealt with unusual, what might be termed “bizarre”, incidents involving a curling iron and lipstick. Those incidents, as described by N.W., are the kind that a child could be expected to remember independently because of their unusual nature.

However, the trial judge was not satisfied beyond a reasonable doubt that those incidents occurred or were remembered independently. Nonetheless, the decision does not address any effect this testimony may have had in respect of N.W.’s credibility.

That is, the judge did not, for example, consider whether the testimony demonstrated an inclination by N.W. to fabricate or to be prone to suggestion or influence by his mother, factors that may affect his credibility regarding other allegations. [ 58 ] Indeed, the judge accepted as proven very general allegations of inappropriate touching of both N.W. and his brother, stating simply that N.W.’s credibility was not affected by the rejection of the other allegations, that the inconsistencies in the evidence regarding the rejected allegations did not arise in respect of the remaining allegations, and that N.W.’s mother had not assisted in his memory of those events.

The trial judge did not advert to or deal with potential concerns arising from the evidence regarding N.W.’s general allegations of inappropriate touching. [ 59 ] N.W. testified that the incidents, involving Mr. MacIsaac touching the boys’ private areas with his hands, occurred “a lot”, throughout the small apartment, when his mother was not in the room or was sleeping. Without any explanation by the trial judge, it is not apparent how inconsistencies in N.W.’s testimony as to those events might have been expected to arise.

In the absence of such explanation, viewed in the context of N.W.’s testimony on the very unusual allegations, the absence of inconsistencies is not a persuasive basis on which to assess whether the charges on the general allegations were proven beyond a reasonable doubt.

[60] Regarding the comment that N.W. had not been influenced or assisted by his mother in remembering the general allegations, thetrial judge did not deal with other relevant evidence. For example, when N.W. first raised the allegations with his mother, he indicatedthat his brother had also been assaulted, but this was in response to a specific question from his mother. Further, the trial judge noted: [6] … [N.W.’s mother] testified that over a period of time she elicited further details of Mr.

MacIsaac’s activities with the childrenfrom N. and then reported the matter to the police. [61] In addition, the trial judge failed to explain why the allegations that were described in only very general terms had been provenbeyond a reasonable doubt when all the allegations involving any detailed description were dismissed as unproven. For example, hedismissed N.W.’s mother’s testimony that “while she was in bed pretending to be asleep, with Mr. MacIsaac on one side of her and N. onthe other, Mr. MacIsaac put his hands in the vicinity of N.’s penis” (paragraph 6).

The judge concluded: [23] I note that the incident in August 2007 in [N.W.’s mother’s] bed, described by [her], has not been established beyond areasonable doubt to constitute either sexual interference or sexual assault on N.W. [N.W.’s mother] testified N. was asleep with pyjama[sic] pants on and his hands over his penis area outside his pyjamas. She testified that what she saw when she lifted the bed covers wasMr. MacIsaac’s hands above N.’s hands. There was no evidence that Mr.

MacIsaac touched N. on this occasion, an essential element ofthe offence of sexual interference, or that on this occasion he applied force to N., an essential element of the offence of sexual assault, orthat he attempted to do so. [62] Credibility, particularly the testimony of N.W., was central to proof of the offences in this case. The testimony had to beanalyzed in the context of the evidence as a whole. That evidence was such as to raise issues which, taken together, could affect theassessment of whether the charges were proven beyond a reasonable doubt.

In that situation, it was necessary for the trial judge to advertto and deal with several factors arising from the evidence, including: N.W.’s knowledge regarding inappropriate touching; his mother’sprompting, which N.W. admitted led him to remember certain unusual events, and which may indicate the child was prone to suggestion;a potential motive that may have led him to fabricate the allegations; N.W.’s failure to independently remember the unusual or bizarreallegations which were found not to have been proven; the fact that his mother “elicited further details” from N.W. before going to thepolice; and the fact that, as an eight year old, within months of the trial, he did not remember talking to the police. [63] The trial judge’s failure to deal with such issues leaves this Court unable to conduct a meaningful review of the correctness ofthe decision.

In particular, the reasons fail to articulate how credibility concerns were resolved. In the result, the necessary logicalconnection between the verdict and the basis for the verdict is not apparent. Effect of the Trial Judge’s Errors [64] Accordingly, I would set aside the convictions. However, given the nature of the trial judge’s errors, this is not a situationwarranting the entering of acquittals.

As noted in Dinardo: [32] … Where the trial judge’s reasoning is not apparent from the reasons or the record, as in the instant case, the appeal court oughtnot to substitute its own analysis for that of the trial judge (Sheppard, at paras. 52 and 55). [65] In the result, I would set aside the convictions and order a new trial. SENTENCE APPEAL [66] Mr. MacIsaac was sentenced to a total of twenty-seven months imprisonment in respect of the four charges on which he wasconvicted. The trial judge allowed a credit of fifteen months and five days for time Mr. MacIsaac spent in custody prior to sentencing.

This was on the basis of one day credit for each day he was incarcerated. In the result, on May 30, 2012, Mr. MacIsaac was sentenced toa term of imprisonment of eleven months and twenty-six days. (See: decision of the trial judge, (NL SC), 2012NLTD(G) 86, 324 Nfld. & P.E.I.R. 1, at paragraphs 25 to 29.) [67] Mr. MacIsaac’s appeal against sentence is limited to one issue, the credit given for the time he was in custody prior tosentencing. He makes two submissions, in the alternative.

First, he submits that credit should have been calculated based on thelegislative provision in force at the time of commission of the offence. A credit of two days for each day in custody could have beenexpected. Alternatively, he submits that he should have been credited with one and one-half days for each day in custody under thecurrent Criminal Code provision. [68] The offences were committed between January 1 and August 31, 2007. However, Mr. MacIsaac was not charged until August15, 2010. On August 17, 2010, he was denied judicial interim release.

These dates are critical because, before February 22, 2010, theCriminal Code did not specify any limit on the credit to be given for time spent in custody prior to sentencing. This was a matter ofdiscretion to be exercised by the trial judge. Generally, credit of two days for each day in custody was applied (R. v. Leyte, 2010 NLCA8, 293 Nfld. & P.E.I.R. 310, at paragraph 7; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at paragraph 28). [69] However, that situation changed on February 22, 2010 when amendments to

section 719 of the Criminal Code came into forceplacing limits on the trial judge’s discretion. The

section now provides, in relevant parts:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each dayspent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody …

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record. [70] In submitting that the provision in force prior to the 2010 amendment applies in this case, Mr. MacIsaac relies on the date on

which the offence was committed, rather than the date on which he was charged, as being the relevant date. The Crown, in responding that the relevant date is the date on which the charge was laid, relies on

section 5 of the Truth in Sentencing Act , SC 2009, c. 29, which provides: Subsections 719(3) to (3.4) of the Act, as enacted by

section 3, apply only to persons charged after the day on which those subsections come into force. (Emphasis added.) [ 71 ] The language chosen by the legislators must be carefully construed, giving effect to every word. In particular, if the word “only” had not been included, it would be clear that the new provision was meant to apply to every person charged after the amendment came into force. The provision, without “only”, would read: “[The relevant subsections] apply to persons charged after the day on which those subsections come into force”.

This is not the same as saying that the provisions “apply only to persons charged” after that day. [ 72 ] The word “only” has the effect of imposing a limitation on application of the provision rather than specifying to whom the provision must apply. That is, the effect of including “only” is simply to preclude the application of the provision to anyone charged before the amendment comes into force. In contrast to the language where “only” is excluded,

section 5 of the Act does not say that everyone charged after the amendment comes into force must or will be covered by the new law. [ 73 ] The rationale underlying the use of “only” and the particular language chosen is apparent from

section 11(

i) of the Canadian Charter of Rights and Freedoms , which says: Any person charged with an offence has the right … (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. [ 74 ] Consistency between the current

section 719 of the Code ,

section 5 of the Act and

section 11(

i) of the Charter is achieved by giving effect to the word “only”. Based on the following analysis, the effect is that, if a person committed an offence prior to February 22, 2010, but was charged after that date, that person would be entitled to application of the pre-amendment legislation, giving the trial judge discretion in crediting time served, including applying the general practice of two days credit for each day in custody. [ 75 ] I begin with the components of

section 11(

i) of the Charter . These are: punishment consequent upon conviction for an offence, a variation of that punishment between the time of commission of the offence and the time of sentencing, and the offender’s right to the benefit of the lesser punishment. [ 76 ] Clearly, a term of incarceration is punishment. The amendment to the Criminal Code restricting credit to one or one and one- half days for time served in custody prior to sentencing constitutes a variation in punishment. Punishment under the pre-amendment legislation may amount to lesser punishment, as referenced in

section 11(

i) of the Charter , because originally the discretion of the trial judge was unfettered and, generally, an offender would have been credited with two days for each day in custody. [ 77 ] Assuming application of the Charter guarantee, the relevant time is the time of commission of the offence. The use of the word “only” in

section 5 of the Act achieves a result that is consistent with the Charter by providing access to the benefit of a lesser punishment where, either the person was charged before February 22, 2010 or, while the charge was laid after that date, the offence was committed prior to that date. [ 78 ] I do not accept the view expressed in R. v. Clarke , 2013 ONCA 7 , at paragraph 19 , that the words of

section 5 of the Act “admit of only one meaning”, that is, that the amended provisions would “apply to the sentencing of all persons charged after the Act came into force” because, otherwise, it would be necessary to read into

section 5 the words, “persons charged with an offence committed” after the amendment came into force. As discussed above, this

interpretation fails to consider the limiting effect of the word “only” and is inconsistent with

section 11(

i) of the Charter . [ 79 ] In the result, in this case, the trial judge erred in concluding that the Criminal Code , as amended on February 22, 2010, must be applied, and that “the former practice of two for one credit for time served in remand does not apply in this matter” (paragraph 27). The trial judge gave no reasons for crediting one rather than one and one-half days for each day Mr. MacIsaac was in custody prior to sentencing. The inference may be drawn that the trial judge believed that special circumstances were required to merit credit of one and one-half days. I note, in passing, that such an

interpretation has not been adopted by the Ontario, Nova Scotia or Manitoba Courts of Appeal ( R. v. Summers , 2013 ONCA 147 ; R. v. Carvery , 2012 NSCA 107 ; R. v. Stonefish , 2012 MBCA 116 ). The issue has not been considered by this Court. [ 80 ] The trial judge having erred in law in determining the credit to be applied to Mr. MacIsaac’s pre-sentence custody, the reduction in sentence of fifteen months and five days must be set aside. Applying the correct legislative provision, in the circumstances, credit in excess of one day for each day in custody would be appropriate. Mr.

MacIsaac has less than two months remaining in his sentence. In the circumstances, I would vary his sentence to time served as of the date of this decision. [ 81 ] To summarize, I would allow the appeal against conviction. However, in view of the contrary conclusion of my colleagues dismissing the appeal against conviction, I would allow the appeal against sentence, and would vary the sentence to time served as of the date of this decision. ______________________________

B. G. Welsh J.A.