D.R. APPELLANT AND: HIS MAJESTY THE KING RESPONDENT, 2022 NLCA 64

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. D.R., 2022 NLCA 64 Date: December 12, 2022 Docket Number: 202001H0019 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify theperson described in this judgment as the complainant or a witness shall not be published in any document or broadcast or transmitted inany way. BETWEEN: D.R. APPELLANT AND: HIS MAJESTY THE KING RESPONDENT Coram: O’Brien, Goodridge and Knickle JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 201804G0232 Appeal Heard: May 9, 2022 Judgment Rendered: December 12, 2022 Reasons for Judgment by: O’Brien J.A. Concurred in by: Goodridge and Knickle JJ.A. Counsel for the Appellant: Self-Represented Counsel for the Respondent: Sheldon Steeves Authorities Cited: CASES CITED: R. v. D.R., 2019 NLSC 217; Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729; R. v. D.R., 2020NLSC 28; R. v. P.H., 2022 NLCA 37; R. v. Dove, 2022 NLCA 6; R. v. Barnes, 2021 NLCA 15; R. v. S.O., 2019 NLCA 42, 4 C.A.N.L.R.604; R. v.

K.P., 2019 NLCA 37, 4 C.A.N.L.R. 493; R. v. Hiscock, 2016 NLCA 74, 1 C.A.N.L.R. 354; R. v. G.F., 2021 SCC 20; R. v.Gerrard, 2022 SCC 13; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Burke, (SCC), [1996] 1 S.C.R. 474;Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352; R. v. Brunelle, 2022 SCC 5; R. v. B.(G.), (SCC), [1990] 2S.C.R. 30; R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32; R. v. S.S.B., 2017 NLCA 33, 1 C.A.N.L.R. 759; R. v. Smith, 2021 SCC 16; R.

v. W.(D.), (SCC), [1991] 1 S.C.R. 742. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46, sections 151, 271. O’Brien J.A.: OVERVIEW [1] D.R. was convicted, by a Supreme Court judge, of sexual assault contrary to

section 271 of the Criminal Code, R.S.C. 1985, c.C-46. He is appealing the conviction. [2] Mr. R argues that the judge erred by accepting the complainant’s evidence, which Mr. R contends was inconsistent and notcredible. Mr.

R also maintains that the judge erred by misapprehending his testimony, and by finding that the alleged touching of thecomplainant was for a sexual purpose. [3] For the reasons that follow, I would conclude that no error is apparent in the judge’s consideration of the evidence or in thejudge’s credibility assessment and findings. [4] As no error has been established, there is no basis for appellate intervention. Accordingly, I would dismiss the appeal. BACKGROUND [5] Mr. R. is the complainant’s grandfather. The judge’s decision on conviction (R. v.

D.R., 2019 NLSC 217, hereafter D.R.),indicates that the complainant was 11 years old at the time of the alleged offence and that the complainant and his siblings had beenliving with, and were under the care of, his grandparents (Mr. R and his wife, the complainant’s grandmother) at the time. [6] The judge noted that the “essence of the charges is an allegation that [Mr. R] fondled the complainant’s penis on twooccasions while the two shared a bed during an overnight visit to the home of a relative” (D.R., at para. 2). [7] The evidence at trial was that Mr.

R had been drinking with others in the relative’s shed until after midnight on the night inquestion. When Mr. R returned to the house and went to the bedroom, the complainant was there, using his laptop. After a briefconversation, they went to sleep in the same bed. [8] The complainant and Mr. R both testified at trial. The complainant’s evidence was that, during the night, Mr. R had fondledhis penis on two separate occasions. Mr. R “denied that he touched the complainant in the manner alleged” (D.R., at para. 20). [9] The judge considered all the evidence, including the testimony of Mr.

R, the complainant, and other witnesses, and concludedthat the Crown had proved the offence of sexual assault beyond a reasonable doubt. As a result, Mr. R was convicted. Procedural background [10] With respect to the procedural background, Mr. R was charged with one count of sexual interference under

section 151 of theCriminal Code and one count of sexual assault under

section 271. [11] He was originally convicted of sexual interference, and the sexual assault charge was stayed pursuant to the decision of theSupreme Court of Canada in Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729. [12] Before sentencing occurred this was reversed; that is, on the Crown’s application, and with the agreement of Mr. R’s counsel,the judge vacated the stay of conviction on the sexual assault charge (s. 271) and entered a conviction on that charge.

The sexualinterference charge (s. 151) was then stayed, again in accordance with the principles outlined in Kienapple. (See Transcript, February 13,2020, at 4, 5, 10-12, and the decision on sentence, R. v. D.R., 2020 NLSC 28, at paras. 1-2). [13] In the result, Mr. R was ultimately convicted of one count of sexual assault (Transcript, February 13, 2020, at 11-12; decisionon sentence, R. v. D.R., 2020 NLSC 28, at para. 2). [14] Mr. R was sentenced to eight months in prison, followed by probation for two years, and he has indicated that the custodialportion of his sentence has been served.

The Crown filed a notice of cross-appeal with respect to the sentence, but subsequentlyabandoned the sentence appeal. Accordingly, the present appeal concerns the conviction only. ISSUES [15] The following issues were considered on appeal: 1. Did the judge err by finding the complainant credible and accepting his evidence? 2. Did the judge err by misapprehending Mr. R’s evidence? 3. Did the judge err by finding that the alleged touching was for a sexual purpose?

ANALYSIS Issue 1: Did the judge err by finding the complainant credible and accepting his evidence? Reviewing credibility findings [16] Credibility findings are findings of fact. Recognizing a trial judge’s unique position to observe witnesses as they testify, it hasbeen frequently held by this Court that credibility findings are not lightly displaced on appeal. See, for example, R. v. P.H., 2022 NLCA37, at paras 14-17; R. v. Dove, 2022 NLCA 6 at paras. 18-19; R. v. Barnes, 2021 NLCA 15, at para. 44; R. v. S.O., 2019 NLCA 42, 4C.A.N.L.R. 604, at para. 16; R. v.

K.P., 2019 NLCA 37, 4 C.A.N.L.R. 493, at para. 26; and R. v. Hiscock, 2016 NLCA 74, 1 C.A.N.L.R.354, at para. 17. [17] The Supreme Court of Canada has also consistently affirmed this approach, including recently in R. v. G.F., 2021 SCC 20, atpara. 99, and R. v. Gerrard, 2022 SCC 13, at para. 3. [18] However, while affording deference to credibility findings, an appellate court must not “abdicate its responsibility forreviewing the record to see whether the findings of fact are reasonably available” (R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, atpara. 21; see also R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, at para. 5). [19] Unless an appellate court finds a palpable and overriding error (see Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R.352, at paras. 36-39), credibility findings should not be disturbed and the judge’s “perceptions should be respected” (Gagnon, at para.20). See also R. v. Brunelle, 2022 SCC 5, at paras. 8-9, and Gerrard, at para. 3. [20] For the reasons that follow, having reviewed the record I would conclude that no palpable and overriding error has been shownin the judge’s credibility assessment and finding that the complainant was credible.

The judge’s review of the complainant’s evidence [21] The judge reviewed the complainant’s evidence at trial. The complainant testified that Mr. R fondled his penis on two separateoccasions during the night that they slept together in the same bed at their relative’s home. The complainant further testified that, afterthe second occasion, he went to the living room where his grandmother (Mr. R’s wife) asked him why he was upset, and that he told herwhat had occurred. The complainant also testified that Mr.

R apologized to him about a month after the incident. [22] The judge summarized the complainant’s evidence regarding the incident, as follows: [15] … [The complainant] said that the incident occurred during an overnight visit to [a relative’s house] on a trip … with hisgrandparents. He did not recall his sisters accompanying them on the trip. He and [Mr. R] were to sleep in the spare bedroom, but he didnot recall requesting this arrangement. The adults were in the shed and he watched a movie with his cousin. He then spent some time onhis laptop and went to bed. He was awake when [Mr. R] came into the room.

He then fell asleep, on his side facing the wall againstwhich the bed abutted. He awoke in the night to find [Mr. R] had his hand down [the complainant’s] pajama pants. [Mr. R] grabbed thecomplainant’s penis and started pulling on it. He never stopped for almost five minutes. [The complainant] moved away as far as hecould and rolled onto his stomach. [Mr. R] then removed his hand and went to sleep, as did [the complainant]. However, [thecomplainant] woke again in the middle of the night to find [Mr. R] again with his hand down his pants, grabbing his penis and pulling onit.

This time the incident lasted less than a minute until [the complainant] got up and left the bedroom. He went to the living room andstarted using his laptop. He was confused by the incident. [16] [The complainant] says that it was getting light when he went into the living room. About half an hour later [his grandmother]came into the room and asked what he was doing awake. He started crying and told her that [Mr. R] had touched him. He recalls thathis grandmother started laughing and told him that [Mr.

R] had probably thought that it was her he was touching in the bed. [Thecomplainant] felt that [his grandmother] did not care about the revelation. [17] [The complainant] testified that he never told anyone else about the incident for some time. However, he said that about a monthafter the incident, [Mr. R] apologized to him for having touched him. He says that this occurred while the two were driving … in a KiaSorento owned by his grandparents. [23] Having considered the complainant’s testimony, the judge found the complainant to be credible and accepted his evidenceregarding what had occurred.

The alleged error [24] Mr. R’s position is that the judge erred by finding the complainant to be credible. He maintains that the complainant was lyingwhen he testified that Mr. R had touched the complainant’s penis as alleged. [25] Mr.

R argues that the complainant was not credible because he was mistaken about, or could not recall, certain details relatingto the visit to the relative’s home. [26] These details included the following: when they had travelled to the home for the overnight visit; whether the complainant’ssiblings had been with them on the visit; whether the original plan was that the complainant or the complainant’s grandmother (Mr. R’swife) was supposed to share the bed with Mr.

R; and whether the complainant’s grandmother was already present in the living roomwhen the complainant went there, after the second incident, and spoke with her about what had happened. [27] The judge was aware of Mr. R’s position that the complainant’s testimony about these details rendered his entire evidenceunreliable, and reviewed the complainant’s testimony respecting these details:

[34] [The complainant] did not recall, or was mistaken about, certain circumstances on the periphery of the conduct he alleges on thepart of [Mr. R]. He could not recall the date or specific season when the offence allegedly occurred. He said that his sisters were not onthis overnight trip to [the relative’s] house. He said that it was always the plan that he and [Mr. R] would stay in the bed together thatnight, but this was contradicted by the adult witnesses who testified that the original plan was that [Mr.

R] and [the complainant’sgrandmother] would sleep in that bed. [The complainant] said that his grandmother was not in the living room when he got out of bed,but she said that she was asleep there and woke to find [the complainant] sitting there. [28] However, the judge determined that these details were peripheral, and not central, to the complainant’s allegations against Mr.R., describing them as “relatively insignificant matters on the periphery of the events” (D.R., at para. 35). For example, the date of theincident was not in issue, and had been confirmed by other witnesses.

Further, while the complainant’s siblings went on the visit to therelative’s home, there was no evidence they were present when the alleged sexual assault occurred. There was also evidence that,whatever the original plan for the sleeping arrangements might have been, the complainant and Mr. R ultimately shared the same bed atthe relative’s home. [29] Finally, while the complainant’s grandmother may have already been in the living room when the complainant left thebedroom and went there, immediately after the second incident, this was not considered significant.

Regardless of who was in the livingroom first, the record indicates that the complainant and his grandmother both testified that they had a conversation there alone, beforeother family members woke up, during which the complainant became upset and told his grandmother what he alleged Mr. R to havedone the previous night. [30] The judge concluded that these peripheral details did not raise any concern “about [the complainant’s] credibility regarding theessential events” (D.R., at para. 35).

With respect to the essential events, the judge was satisfied that the complainant was a crediblewitness, noting that “the complainant gave a plausible version of these events”, and that the complainant’s evidence “was consistent withthat of other Crown witnesses and even with that of [Mr. R] in most essential respects” (D.R., at para. 42). [31] In terms of consistency with the evidence of other witnesses, the record indicates that the complainant’s testimony that he andMr. R had slept in the same bed was confirmed by other witnesses, including Mr. R.

The complainant’s evidence about his disclosure tohis grandmother, namely that “[h]e started crying and told her that [Mr. R] had touched him” (D.R., at para. 16) was consistent with thegrandmother’s evidence that the complainant was upset and told her that that [Mr. R] had touched him, and that she “understood that thetouching had been sexual in nature” (D.R., at para. 13). [32] The complainant’s evidence that Mr. R apologized to him was consistent with the grandmother’s testimony that she “spoke to[Mr.

R] about the touching reported to her by [the complainant]”, either the same day or shortly thereafter, and that “she told [Mr. R] that[the complainant] had reported to her that [Mr. R] had touched him inappropriately” (D.R., at paras. 14 and 31). This was inconsistentwith Mr. R’s evidence that his wife had not told him about the complainant’s allegation at that time, and that he did not apologize. Thejudge stated that “[Mr.

R] was asked about this [i.e. whether his wife had told him of the complainant’s allegation] at trial, and he saidthat he did not remember this conversation but conceded that it had possibly occurred” (D.R., at para. 31). [33] Mr. R identified two additional circumstances where, he argued, the complainant’s testimony was inconsistent, and thereforenot credible. The judge considered both these circumstances and concluded they did not undermine the complainant’s credibility withrespect to his core evidence about the sexual assault. [34] First, the police had investigated Mr.

R regarding an unrelated complaint of sexual misconduct against another person. In thecourse of this unrelated investigation, the police had spoken with the complainant who, the judge noted, had “denied that [Mr. R] haddone anything inappropriate toward him.” The judge accepted the complainant’s explanation at trial that, when speaking to police at thattime, “he did not report the acts…because he was scared” (D.R., at para. 40). [35] Second, the complainant previously stated that he “had not slept in the same bed as [Mr. R] again following the night that [Mr.R] allegedly touched him”.

The complainant later testified that he and Mr. R had slept in the same bed subsequently; once when hissiblings slept with them in the same room and another time, on New Year’s Eve, when the “whole family had rented an apartment for thenight”.

The judge did not find that this oversight went to the essential elements and noted that it “is plausible that a young teenagerbeing questioned by police concerning allegations against his grandfather would, under such stress, forget this event” (D.R., at para. 41). [36] The judge indicated that the young age of the complainant, both when the incident was alleged to have occurred and when hetestified at trial, was also a consideration. In this regard, the judge referenced the Supreme Court of Canada’s observation in R. v.

B.(G.), (SCC), [1990] 2 S.C.R. 30, at 55, that: “While children may not be able to recount precise details and communicatethe when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it”. [37] With respect to the first circumstance, regarding the timing of the complainant’s disclosure of the allegations, the judge notedthat “neither delay in disclosure nor the immediacy of disclosure are probative of whether the alleged acts occurred” (D.R., at para. 6).

With respect to the second circumstance, “regarding whether there was a change in the relationship between [the complainant] and [Mr.R] following the alleged fondling”, the judge observed that “there is no uniform way in which victims of sexual offences respond …”(D.R., at para. 7).

No error has been identified in the credibility assessment and finding [38] A review of the judge’s reasons and the record reveals that the judge’s determination that the complainant was credible wasgrounded in the evidence at trial and “reasonably available” on the record (Gagnon, at para. 21). [39] It is not an appellate court’s role to “simply substitute its opinion for that of the trial judge with respect to the assessment of thecredibility of witnesses” …“without clearly identifying a palpable and overriding error in [the judge’s] analysis” (Brunelle, at para. 9). Inthe present case, while Mr.

R has alleged that the judge erred in assessing the complainant’s credibility, no palpable and overriding errorhas been identified or established.

[40] The judgment indicates that the judge carefully considered the complainant’s testimony and ultimately determined that certainperipheral details about which he was mistaken, or could not recall, were inconsequential to the core allegation, and did not underminethe complainant’s overall credibility (D.R. at para. 35).

The judge also observed that, in many respects, the complainant’s evidence wassupported by the evidence of other witnesses. [41] It is also apparent from the judge’s consideration of the complainant’s evidence that the judge was aware of and alive to anyinconsistencies, and properly considered these in the analysis of the complainant’s credibility. The judge addressed any inconsistenciesin the complainant’s testimony and concluded that these were not material to the complainant’s core evidence about the sexual assault,or were otherwise explained in context.

This did not constitute an error in the judge’s credibility analysis (see, for example, R. v. H.S.B.,2008 SCC 52, [2008] 3 S.C.R. 32, at paras. 14-15; and R. v. S.S.B., 2017 NLCA 33, 1 C.A.N.L.R. 759, at paras. 2-3). [42] Accordingly, and consistent with principles of appellate review of credibility assessments (see for example Gagnon, at para.20, Gerrard, at para. 2; and Brunelle, at paras. 8-9), as no error has been shown, appellate intervention in this circumstance isunwarranted, and the judge’s credibility finding should not be disturbed. Issue 2: Did the judge err by misapprehending Mr.

R’s evidence? [43] The test as to when a misapprehension of evidence might attract appellate intervention has been considered on many occasions. The Supreme Court of Canada, in R. v. Smith, 2021 SCC 16, recently described the threshold to be met in these terms: [2] Determining whether a misapprehension of evidence has caused a miscarriage of justice requires that the appellate court assessthe nature and extent of the error and its significance to the verdict (R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d)193 (Ont. C.A.), at p. 221).

It is a stringent standard, met only where the misapprehension could have affected the outcome (R. v. Lohrer,2004 SCC 80, [2004] 3 S.C.R. 732, at para. 7). [44] At trial, Mr. R denied touching the complainant. On appeal, Mr. R. argued that the judge misapprehended his evidence, anddid not appreciate that he had denied any wrongdoing. [45] In the supplementary notice of appeal, Mr. R described his position on this issue as follows: … I believe that I have grounds for appeal because the judge misapprehended my main point of evidence, which is that I did not doanything.

Throughout my testimony I said that I did not do what I was accused of. I came in and went to sleep and woke up the nextmorning. However the judge presented that as a “lack of memory” and said that I “did not remember the incident happening” which isnot what I stated. To me the difference of not remembering and saying that I did not do what I am accused of doing puts in reasonabledoubt. [46] However, a review of the judgment indicates that the judge did understand that Mr. R’s evidence included a denial. This isclearly set out in paragraph 20 of the judgment, where the judge stated “[Mr.

R] denied that he touched the complainant in the manneralleged in the indictment”. The judge also refers to Mr. R’s denial at paragraph 29, stating: “[Mr. R] denied the allegation against him. He was asked on direct whether he committed the act alleged and he responded that he did not. That was the only evidence given by[Mr. R] directly addressing the allegation in the indictment”. [47] The judge situated Mr. R’s denial in the context of his evidence that he fell asleep and did not recall anything happening duringthe night in question. This does not amount to a misrepresentation of Mr.

R’s evidence that he denied touching the complainant, butrather is consistent with Mr. R’s testimony that he had no recollection of events after he fell asleep. The judge considered Mr. R’stestimony that he went to the bedroom and that, after a brief conversation with the complainant, Mr. R testified that he “conked out’ and“slept through the night”. The judge noted Mr. R’s evidence that he “remembers nothing else of the night” and “woke up just beforenoon” (D.R., at para.19). [48] While the judge understood that Mr. R denied the allegation, the judge also noted that Mr.

R “said that he did not have anymemory of any event from the time he went to sleep until he woke up nine hours later” (D.R., at para. 29). The judge thus consideredMr. R’s denial in the context of his overall evidence: [29] … The denial by [Mr. R] really states the position that he does not remember the incident happening. I make this observationnot in respect of imposing an onus on [Mr. R] to prove anything, but only in order to properly consider the credibility of his testimony. [49] In the result, the judge acknowledged, considered, and ultimately rejected Mr.

R’s denial: [32] I therefore do not credit or believe the denial expressed by [Mr. R], which was the only evidence offered in defence to thecharge. His lack of memory of the night during which the offence allegedly occurred is an insufficient basis on which to acquit him as itdoes not raise a reasonable doubt as to his guilt. [50] Although he rejected Mr. R’s denial, the judge noted that “[Mr. R] does not have an onus to prove his innocence”. The judgeobserved that, consistent with the analytical framework described by the Supreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, there was a requirement to assess “the credibility of the complainant and the evidence as a whole”, in orderto determine if the offence had been proved beyond a reasonable doubt (D.R., at para. 33). The judge then proceeded with the R. v. W.(D.) analysis accordingly. [51] While an appellate court may intervene in an appropriate case where there has been a misapprehension of the evidence, areview of the record in the present case does not reveal any misapprehension of Mr. R’s evidence by the judge. The judge’sinterpretation of the evidence is wholly consistent with Mr.

R’s testimony. As a result, there is no error in this respect and appellateintervention would be inappropriate. Issue 3: Did the judge err by finding that the alleged touching was for a sexual purpose?

[ 52 ] In his notice of appeal, Mr. R argued that the judge erred in finding that Mr. R had touched the complainant for a sexual purpose. [ 53 ] The judge stated his finding on this point as follows: [43] I find that the touching proven by the Crown was for a sexual purpose. The nature of the touching described by the complainant was such that no reasonable person could see it directed to any other purpose than the sexual gratification of [Mr.

R] and the violation of the sexual integrity of the complainant. [ 54 ] And the judge stated the following with respect to the nature of the touching, in the Transcript of February 13, 2020, at 11-12: I found that the touching was for a sexual purpose, finding that the nature of the touching was such that no reasonable person could be directed towards any other purpose but sexual. Similarly, I find that the body part that [Mr.

R] touched and the nature of the contact, the fondling, was such that I have no hesitation in finding that the touching violated the sexual integrity of the complainant and it was of a sexual nature. The complainant did not consent and in fact, the complainant being only eleven years old at the time, could not in law consent to this touching. [ 55 ] Mr. R disputes the judge’s finding that the touching was for a sexual purpose. However, the testimony of the complainant, which the judge accepted, provided an evidentiary basis for this finding. Conversely, other than Mr.

R’s denial of having touched the complainant, which the judge rejected, there was no evidence to support Mr. R’s contention that there had been no touching for a sexual purpose. [ 56 ] There is nothing in the record to indicate that the judge erred in respect of this finding. DISPOSITION [ 57 ] In the result, and for the reasons provided above, I would dismiss the appeal. _____________________________ F. P. O’Brien J.A. I concur: _____________________________ W.H. Goodridge J.A. I concur: _____________________________ F.J. Knickle J.A.