R. v. L.H., 2015 NLCA 34

Date: 201507 29 Docket: 14/45 Citation: R. v. L.H. , 2015 NLCA 34 Section 110(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a person as having been dealt with under this Act applies to this judgment. Section 111(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : L. H.

APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Clarenville Appeal Heard: April 14, 2015 Judgment Rendered: July 29, 2015 Reasons for Judgment by Welsh J.A. Concurred in by Rowe and Harrington JJ.A.

Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Elaine Reid Welsh J.A.: [ 1 ] The appellant was convicted as a young offender of two counts of sexual interference contrary to

section 151 of the Criminal Code and one count of invitation to sexual touching contrary to

section 152 . At issue in the appeal is whether the trial judge erred in applying the law relevant to assessing the evidence of the accused and the complainant who was also a young person. Similar fact evidence, the evidence of children and the meaning of reasonable doubt are discussed. BACKGROUND [ 2 ] The complainant testified that from the time he was about four years old, there had been sexual incidents occurring between himself and the appellant. The incident on which the charges were based occurred when he was twelve years old and the appellant was sixteen years old.

The appellant had asked him to touch his penis and, after initially refusing, he complied, moving his hand up and down the appellant’s erect penis for a couple of seconds. In addition, he testified that the appellant had rubbed his erect penis against his buttocks about twenty times before the complainant got angry and pushed him off, and that this had happened when he gave in to the appellant’s persistent request. [ 3 ] In an oral decision, the trial judge convicted the appellant based on his conclusion that he believed the complainant and not the appellant.

ISSUES [ 4 ] At issue is whether the trial judge erred in: (1) the manner in which he dealt with the complainant’s evidence of alleged prior incidents; (2) stating and applying principles with respect to assessing the credibility and reliability of the evidence of children; and (3) his application of the principle of reasonable doubt. ANALYSIS Use of Alleged Previous Incidents [ 5 ] The complainant was permitted to testify regarding alleged previous incidents of a sexual nature between himself and the appellant.

The judge instructed himself as follows (transcript at pages 40 to 41): The charges in the case before me relate to an incident that occurred in 2011, not before that date. The evidence that there were previous incidents of a sexual nature between the accused and the complainant is only one factor to consider in whether the Crown has proven these charges beyond a reasonable doubt.

I note that in this case the Crown has made no application for similar fact evidence and that this evidence was only brought in to explain the relationship [involving sexual incidents] between these two persons during their lives. [ 6 ] The principles that apply to evidence of alleged misconduct outside the subject matter of the charge are discussed in R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908. In that case, during a voir dire , the Crown applied to adduce evidence of the accused’s ex- wife as similar fact evidence.

Binnie J., for the Court, set out the fundamental principle: [31] The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no more than blacken his character is inadmissible. … The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. … … [33] Subsequently, and most famously, the general exclusionary rule was laid down by Lord Herschell …: It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. [34] The court spoke there of “criminal acts”, but this has been broadened to include any proffered “similar facts” of a discreditable nature … . … [36] The exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial. … … [41] While emphasizing the general rule of exclusion, courts have recognized that an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse … . [ 7 ] In

summary,

[55] Similar fact evidence is thus presumptively inadmissible.

The onus is on the prosecution to satisfy the trial judge on a balance ofprobabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs itspotential prejudice and thereby justifies its reception. [8] In addition, Binnie J. provided an analytical framework to assist courts in applying the principles engaged when similar factevidence is proffered. [9] As applied to this appeal, the Crown did not proceed by way of a voir dire, nor did counsel submit that this was similar factevidence.

However, alleged previous incidents for which no offence was charged would prima facie constitute similar fact evidence. Toclassify such evidence as demonstrating a relationship of conduct between the complainant and accused does not relieve the trial judgefrom applying correct principles to determine its admissibility. As explained in Handy: [61] In other words, while identification of the issue defines the precise purpose for which the evidence is proffered, it does not (andcannot) change the inherent nature of the propensity evidence, which must be recognized for what it is.

By affirming its true character,in my view, the Court keeps front and centre its dangerous potential. [10] In this case, the absence of an application for admission of similar fact evidence by the Crown did not release the trial judgefrom the obligation to apply the principles set out in Handy. In fact, the trial judge failed to undertake the necessary analysis.

I refer, forexample, to these comments made in his oral decision (transcript at pages 46 to 47): Again, I have to note that it would be difficult for a person of the complainant’s age to differentiate between what occurred between theages of four to twelve and hence the confusion in the previous incidents. However, I do believe that when describing what actuallyoccurred in the [context] of the last incident, then the [complainant’s] evidence is credible. I note that as regards the previous incidents,the Crown had discretion to lay charges but they did not do so.

In fact, I think it’s fair to comment that the choice by the Crown toexercise discretion in only laying one charge in this case made sense when the only detailed evidence that the complainant could givewas with relation to the most recent event. The complainant’s confusion about prior incidents affected his recall and, hence, I’m sureaffected the Crown’s decision not to lay any further charges.

Also, I think it is fair to state that it would be difficult for the acc – for thecomplainant in addressing the contact between him and the accused that occurred over several years not to be influenced, to a certaindegree, by the previous incidents. He obviously was affected by them and that was clear on the stand. The complainant testified ofseveral family meetings in the past but his mother only confirmed one meeting. This is, again, an inconsistency but it relates to theprevious incidents upon which the person was confused.

I would suggest that this is a peripheral issue when dealing with the mostrecent event that occurred. … … I have no doubt that the accused sexually abused the complainant and, in fact, has done so for many years although he was notcharged with a previous incident. … [11] Having said that the purpose for which the evidence was adduced was to demonstrate the relationship involving sexual conductby the complainant and the appellant from the time they were young boys, the trial judge in fact used the evidence to conclude that thecomplainant was credible.

This formed the basis of his conclusion that the offences had been proven. The judge failed to recognize thathis use of the evidence engaged the principles regarding similar fact evidence set out in Handy. As a result, he failed to conduct thenecessary analysis balancing the probative value of the evidence against its prejudicial effect. This constituted an error in law.

Becausethe evidence of alleged previous incidents was central to the trial judge’s disposition of the charges, the appropriate remedy is a newtrial. [12] While it is unnecessary to deal with the remaining issues raised by the appeal, I would make the following observations. Assessing the Evidence of a Child [13] In assessing the credibility of the complainant’s evidence, the trial judge relied on the decision in R. v. H.S.B., 2008 SCC 52,[2008] 3 S.C.R. 32.

I note that the focus in H.S.B. was not the manner in which the evidence of a child should be assessed, but whetherthe judge had provided sufficient reasons for his verdict.

Regarding the assessment of the complainant’s credibility, McLachlin C.J.C.,for the Court, referred to the trial judge’s approach: [15] The trial judge explained his view of why any errors in the complainant’s testimony did not undermine her credibility as to thecentral issue of whether the offences were committed; he said that much of the testimony was unchallenged, that the inconsistencies andcontradictions in her testimony were related to peripheral matters and that frailties in her testimony were attributable to the difficulty ofrecalling childhood events.

It is thus reasonable to infer from the reasons that, despite any errors in the complainant’s testimony, thereremained a body of credible evidence capable of proving the offences beyond a reasonable doubt.

The trial judge’s reasons thus explainthe basis for the verdict reached. … [14] In assessing the evidence of the complainant in this case, the trial judge, citing H.S.B., stated the proposition that: … If the evidence of a child on the core and fundamental elements of a charge is not inconsistent and confusing, then it is more likely tobe true, credible and reliable. [15] That statement, taken in isolation, would be valid as applied to any witness.

However, where the witness’ evidence alsoinvolves inconsistent testimony, the trial judge must consider what effect, if any, the inconsistencies have in determining the witness’credibility. That is the approach described in H.S.B. For a discussion of principles applicable to assessing the evidence of children see,for example, R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122, at pages 132 to 134. Reasonable Doubt

[16] Finally, I would reiterate the importance of the language, “reasonable doubt”, when determining whether charges against anaccused have been proven. Use of that language continually reminds the judge of the required standard of proof. In this case, the trialjudge concluded (transcript at page 47): After considering the evidence of the complainant and the evidence in totality, I believe that the complainant’s description of whatoccurred in the last event, or the last incident, has a definite air of reality about it.

Two cousins on a sleep over are playing video games,eating takeout food, wrestling, and staying up late. I am convinced beyond a reasonable doubt that the physical contact described by thecomplainant did occur in the last incident.

When the evidence of the complainant is considered and the evidence as a whole isconsidered, I find that the complainant’s evidence as to the physical and sexual contact between he and the accused in the last incident isreliable and trustworthy and is, in fact, in harmony with the probabilities which a practical and informed person would readily recognizein that place and in the conditions and context of what existed at that time and place.

The complainant’s evidence on this makes senseand is in accordance with the probabilities in the case. (Emphasis added.) [17] When considering whether an offence has been proven beyond a reasonable doubt, references to “air of reality” and in“harmony” or “accordance” with the “probabilities” indicate a failure to apply the stringent “reasonable doubt” test which is fundamentalto our criminal justice system. For a discussion of the meaning of reasonable doubt see, for example, R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at paragraph 39.

SUMMARY AND DISPOSITION [18] In

summary, the trial judge erred by failing to apply the law with respect to similar fact evidence to the complainant’s testimonyregarding alleged previous incidents. In the result, I would allow the appeal, set aside the convictions, and order a new trial. ___________________________________ B. G. Welsh J.A. I Concur: ___________________________________ M. H. Rowe J.A. I Concur: ___________________________________ M. F. Harrington J.A