R v CJ, 2018 MBCA 65

Citation: R v CJ, 2018 MBCA 65 Date: 20180604 Docket: AY16-30-08625 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Jennifer A. Pfuetzner BETWEEN : ) Z. M. Jones her majesty the queen ) for the Appellant ) Respondent ) C. R. Savage ) for the Respondent - and - ) ) Appeal heard: c. j. ) December 1 , 2017 ) (Young Person) Appellant ) Judgment delivered: ) June 4, 2018 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act (see section 110(1)).

NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify any child victim or child witness that is connected with an offence committed by a young person that is being dealt with under the Youth Criminal Justice Act (see section 111(1)). BEARD and monnin JJA Introduction [ 1 ] The accused, a 17-year-old young offender, was charged with one count of sexual interference, one count of invitation to sexual touching and one count of sexual exploitation. After a short trial, in brief oral reasons, the trial judge convicted him on the first two counts and stayed the third.

He imposed a sentence of probation. [ 2 ] The accused appeals the convictions. For our purposes, the only ground of appeal that need be considered is that the trial judge misapprehended the evidence leading to an unfair trial and a miscarriage of justice. [ 3 ] For the reasons that follow, we agree that the trial judge’s analysis of the evidence led to an unfair trial and that a new trial should be ordered. Background [ 4 ] The complainant, a six-year-old child, her mother and her two-year-old sister were visiting her mother’s childhood friend, S. J. The accused, then 17 years old, was the foster son of S.

J.’s mother and was staying at S. J.’s house on the day in question. The complainant and her sister were sent off to a nearby park with the accused. They were gone for approximately 45 minutes. A few minutes after their return, the younger sister was heard by some of the adults present to say, “CJ [the accused], da, perogy.” The mother’s evidence was that she and her children referred to their vaginas as “perogy”.

The child accompanied the words with gestures around her genitalia. [ 5 ] The complainant left shortly thereafter with her mother and sister and, on the way home, was asked by her mother if anything had occurred at the park. Initially, the complainant referred to it being a secret but, on further questioning, said that the accused had “showed her, [his] wiener and asked her to touch him” and also that he had licked her vagina. The mother returned

immediately to her friend’s house and confronted the accused, who denied that anything untoward had happened at the park. [ 6 ] A few weeks after the incident, the complainant gave a videotaped interview to the police which was entered at trial pursuant to

section 715 of the Criminal Code . In that videotaped statement, she said that the accused had made her touch his penis and had licked her vagina. She stated that this occurred at the monkey bars, one of the two play structures in the park, the other one being a set of swings. When cross-examined at trial on the statement, she remembered little of what had occurred. [ 7 ] The accused testified at trial and maintained his denial that anything untoward had occurred between him and the complainant other than he testified that: Q Okay. Did [B] do -- make anything in the sand?

A Well she made a tail and she said [CJ] look, it looks like a wiener. So I said [B] don’t talk like that. That’s not right. Q Excuse me can you say that again? You played what? A (Inaudible) she said, come [CJ] look, it looks like a wiener. Q Oh okay. A So I said [B] don’t talk like that. That’s not right. And she said it feels like one too. And (inaudible) felt [J’s] so I told her not to talk like that anymore. So I went over, broke the pile of sand. And lifted her up out of the sand box. Or sand pit.

And we all walked over to the teeter totters. [ 8 ] In cross-examination, he clarified that to say “it just looked like a big pile of sand.” He later indicated that “[the complainant] seemed kind of mad that I broke it.” He also said that the complainant seemed to stay a little annoyed at him which he assumed was because he had broken the pile of sand. When asked why he had not advised her mother that she had been speaking inappropriately, he testified that he did not wish to get her into trouble and be subjected to punishment. [ 9 ] The accused confirmed under cross-examination that he did not tell S.

J. or the complainant’s mother about the “penis in the sand” and that the first time it was mentioned was when he gave his statement to the police some time later. [ 10 ] The trial judge questioned the accused at some length, including about the sand under the play structure. The accused described it to the trial judge “like a sandbox” where the top layer was dry but, if you dug a bit deeper, it was wet. When asked how the complainant could make a structure from that kind of sand, his answer was, “piled up, like she just kind of pulled it all together and then kind of pushed”.

When asked about its size, the trial judge asked him to compare it to a water jug found in the courtroom and the following exchange took place: Q Up to here? So it looked like that? So it was -- the dimensions would be similar. This is about six inches high and three inches wide. Is that what it was like? A Kind of. Q Pardon? A Kind of, yeah. [ 11 ] He was further questioned by the trial judge as to whether the complainant’s hands had been dirty: Q With her hands? So her hands must have been pretty dirty then when she finished doing that?

A (Inaudible) told her to wipe it off on the grass. [ 12 ] The only evidence with respect to the complainant’s state of cleanliness that day was that given by her mother, who testified that she gave the complainant a bath that night and that there was no indication that anything had happened to her. She was not asked if there were significant amounts of sand or dirt on the complainant’s hands or on her body. The Trial Judge’s Decision

[13] As indicated, the trial judge gave brief oral reasons for his decision. He first reviewed the evidence and then proceededto perform a W(

D) analysis (see R v W(D), (SCC), [1991] 1 SCR 742). It is the first part of the analysis, his review ofthe accused’s evidence, which is relevant for the purposes of this appeal. [14] The trial judge indicated that he did not believe the accused and explained that his reasons for doing so were twofold. [15] Firstly, he did not accept the accused’s comment that the complainant was angry with him because he had destroyed themound as the explanation was made at too late a stage and was not made when given an opportunity to do so by S. J.

Further, he found itunreasonable because there was no “collateral evidence as to how he knew [that she was angry]” which, in the trial judge’s view,impacted on his credibility. [16] Secondly, he did not believe the accused’s evidence that the complainant had constructed the structure in the sand, asdescribed, because, in the trial judge’s view, the sand under the play structure was not of the type to have allowed it to be moulded by thecomplainant.

The accused’s response that the complainant may have dug a little deeper into wet sand was rejected by the trial judge asbeing inconsistent with the complainant’s state of cleanliness when she returned home. In the trial judge’s estimation, the complainantwould have been filthy at the time when she returned to her mother and there was no comment from her mother about that being thecase. In

summary, he found that the explanation given by the accused as to the construction of the structure in the sand was notbelievable and that affected his assessment of the accused’s credibility. [17] The trial judge found the evidence from the statement of the complainant, which he stated was clear andstraightforward, as well as forthright, to be sufficient to convict. Issues [18] There are two issues to be determined on this appeal: (

a) whether the trial judge misapprehended the evidence; and (

b) if he did, whether that misapprehension played an essential

part in his reasoning process which resulted in his convicting theaccused. [19] It is only if those two issues are answered in the affirmative that it can be said that the accused has not received a fairtrial and was the victim of a miscarriage of justice. The Law [20] The accused’s appeal is based on section 686(1)(

a) of the Criminal Code, which reads as follows: Powers 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, 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. [21] This appeal is not one of an unreasonable verdict which cannot be supported by the evidence. There was other evidencebefore the trial judge that, if believed, was sufficient to support a conviction.

Rather, the issue is whether, in his analysis of theaccused’s evidence, the trial judge misapprehended it in a manner which led to a faulty reasoning process and an unfair trial. [22] The leading case is R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 (Ont CA), where Doherty JAexplained as follows (at p 221): When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice?

The nature and extent of themisapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdictmust be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of theevidence and those errors play an essential

part in the reasoning process resulting in a conviction, then, in my view, the accused'sconviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of thesubstance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneousto the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it mustfollow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, asactually adduced at trial, was capable of supporting a conviction.

[emphasis added] [23] The decision in Morrissey was confirmed by the Supreme Court of Canada’s decision in R v Lohrer, 2004 SCC 80, assetting a stringent standard. As Binnie J said (at paras 2, 8): The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to thereasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive ratherthan disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoningprocess resulting in a conviction”.

In our view, the statement of Rothman J.A. in C. (R.) [R v C(R) (1993), (SCC), 81 CCC (3d) 417 (SCC)] and thestatement of Doherty J.A. in Morrissey both correctly emphasize the centrality (or “essential part”) the misapprehension of the evidencemust play in the trial judge’s reasoning process leading to the conviction before the trial judgment will be set aside on appeal on thatbasis. [24] The governing principles which flow from Morrissey and Lohrer were discussed by Watt JA in R v Mahmood, 2011ONCA 693 (at paras 46-48): A misapprehension of evidence may involve a failure to take into account an item or items of evidence relevant to a material issue, or itmay have to do with a mistake about the substance of the evidence.

A misapprehension of evidence may also reflect a failure to giveproper effect to evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), at p. 538O.R. Every misapprehension of evidence does not render a trial unfair or result in a miscarriage of justice. An appellate court must determinethe nature and extent of an alleged misapprehension and its significance to the decision under review, whether a determination ofadmissibility or a final conclusion about guilt.

Rulings on admissibility and final verdicts must be based exclusively on evidenceadduced at trial: Morrissey, at p. 541 O.R. The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehensionof evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to the reasoning of the trialjudge, in other words, the reasons must play an essential

part in the reasoning process resulting in a conviction, not just in the narrative ofthe judgment: R. v. Lohrer, [2004] 3 S.C.R. 732, [2004] S.C.J. No. 76, 2004 SCC 80, at para. 2. [25] That the misapprehension of evidence can include an assessment of credibility was discussed by Simmons JA in R v CB,2017 ONCA 862, where she wrote (at paras 44-45): [T]he appellant must show that the trial judge’s misapprehension of the evidence was central to the trial judge’s reasoning. Themisapprehension must be substantial, material, and play an essential role in the decision to convict: Morrissey, at pp. 538-540.

This caninclude evidence that goes to elements of the crime charged, assessments of credibility, and proof beyond a reasonable doubt, so long asthe misapprehension was essential to the conviction. [footnotes omitted] With regard to credibility assessments, only where the assessment is central to the decision to convict and only where an allegedmisapprehension is central to that credibility assessment can there [be] a case for miscarriage of justice. [footnote omitted] [emphasis added] [26] As well, the drawing of an improper inference or conclusion, which leads to a misapprehension of the evidence, canalso be the basis of a fatal error (see R v DNS, 2016 MBCA 27 at para 59). [27] Finally, in what can be considered as going to the “fairness of the trial” as opposed to merely a misapprehension of theevidence, courts have commented on the unfairness of criticising a witness for not providing evidence that was not asked for either inexamination or cross-examination (R v Hilton, 2016 ABCA 397 at para 25). [28] In short, if the trial judge made a mistake as to the substance of evidence or failed to give it proper effect, then amiscarriage of justice may occur.

Standard of Review [29] A trial judge’s credibility findings are owed a significant amount of deference upon appellate review. They should onlybe interfered with on appeal if they are unreasonable or, in other words, they display palpable and overriding error (see Housen vNikolaisen, 2002 SCC 33). It will be the exception where a trial judge’s assessment of credibility is overturned.

An appellate courtshould not parse the trial judge’s reasons seeking error but, rather, should consider them as a whole with the view of understanding thetrial judge’s reasoning. [30] However, that does not mean that trial judges are immune from review or that credibility findings are unassailable. The

jurisprudence referred to above confirms that, where a trial judge’s reasoning displays palpably flawed evidentiary findings, which are essential to the decision, it can lead to a finding of a miscarriage of justice (see Morrissey ; Lohrer ; and R v CLY , 2008 SCC 2 . Analysis [ 31 ] In this case, the trial judge, in embarking upon his W(

D) analysis, started, as is the custom, with a review of the accused’s testimony. He found two areas of concern upon which he expressed the view that they negatively affected his assessment of the accused’s credibility. Turning to each of those areas in the order he addressed them in his reasons, they were: (

a) the lack of a proper explanation by the accused as to how he was aware that the complainant was angry with him and the timing of that disclosure; and (

b) the accused’s evidence with respect to the complainant creating a mound in the sand depicting a penis. The Complainant’s Anger [ 32 ] In his reasons for judgment, the trial judge expressed two concerns about the accused’s evidence with respect to the allegation that the complainant was angry with him. On the one hand, he stated that he would have expected the explanation that it was because of his breaking up the sand mound to normally have been provided at an earlier time than it was.

He was also concerned by the lack of any collateral evidence from the accused as to how the accused knew the complainant was angry. [ 33 ] The lack of a timely disclosure of the explanation by the accused is certainly one of the factors which the trial judge could have used in his assessment of the credibility of the accused. However, the same cannot be said for a lack of collateral evidence from the accused. There was no obligation on the accused to provide the basis upon which he reached a conclusion that the complainant was angry with him.

Furthermore, he was never asked that question either by the Crown or by the trial judge in his lengthy questioning. [ 34 ] A similar situation was encountered in Hilton where the trial judge, in his reasons, reached negative conclusions as to the accused’s credibility based in part on his failure to provide or clarify information. On appeal, the majority commented as follows (at para 24): The accused must be treated fairly when the court is determining whether his evidence raises a reasonable doubt.

On several occasions the trial judge criticized the appellant for failing to explain certain things, and failing to provide details of what were collateral events. However, the appellant was never asked to provide the supposedly missing explanations or details. Apart from the effect this has on shifting the burden of proof, it is simply unfair to criticize a witness for not providing evidence that was not asked for either in examination or cross-examination. It was clear that, in this case, the lack of an explanation was an important part of the trial judge’s reasoning on the accused’s credibility.

The Sand Mound [ 35 ] The second aspect of the credibility finding which is of concern is the use made by the trial judge of the condition of the sand in the play area of the park and the complainant’s cleanliness on returning from the park. The relevant part of the trial judge’s reasons on this aspect are as follows: I’m concerned about this suggestion that she had constructed a structure which [the accused] offered the carafe of water on the table, on the court tables, and I suggested to him that the carafe was about six inches tall and three inches wide and he said yes, that was about what she had constructed.

I find it hard to imagine that in the kind of sand that’s found under the bottom of these play structures which is pounded daily by children playing in these areas. This was not a sandbox where sand is piled up. It’s really just a footing under a play area. I find it hard to imagine that anybody could mound anything that could resemble a penis. In any way. And to describe a mound as a penis, it didn’t seem to me to be a plausible explanation. I don’t believe that kind of sand could be molded. And then his explanation when I suggested to him that it was implausible or that the sand would be molded like that.

He said well she dug down into the under sand, or the wet sand underneath. And what he’s really referring to I think is that there’s probably clay down there. I think it’s, if that were the case this young girl would have been so covered in dirt and mud. Her fingernails, I know as anybody who’s ever worked in a garden, let alone in a sand pile, knows you start digging with your hands and your fingernails are full of dirt or sand.

I think that if she was actually doing that, she would have been, either her clothing or her hands and arms and face for that, would have been filthy at the time when she returned to her mother. There was no comment from her mother about her being dirty or having sand in her fingernails or sand anywhere in her body. [ 36 ] He then comments on the fact that the complainant’s mother, who had bathed the complainant that evening, made no mention of sand on her body which he would have expected if the sand was “fluffy, mouldable” or “malleable”.

He concluded that this explanation was not believable and that finding impacted on his assessment of the accused’s credibility. [ 37 ] With respect, the trial judge misapprehended the evidence in order to draw an inference as to the consistency of the sand which was not available to him on the evidence before him. [ 38 ] The evidence as to the condition of the sand under the play structure consisted of photographs and the testimony of the accused.

The photographs of the play structure where the events are said to have occurred were taken from a distance and do not provide a close-up view of the condition or quality of the sand underneath it. While there is a reference to the sand being similar to that under the swings, of which there is a picture from a closer angle, there is little definition in the picture allowing any conclusion to be drawn as to its consistency. [ 39 ] The accused’s evidence on the mound, which he said was constructed by the complainant, was not that it was an intricate sculpture.

It is simply referred to as “a tail” and that it looked like a “wiener.” The accused referred to it also as a “pile of sand.” He also, under questioning by the trial judge, referred to the sand as similar to a “sandbox.” He indicated that the top layer was dry and, if digging a bit deeper, it would turn wet. The accused stated as follows: A (Inaudible) piled up, like she just kind of pulled it all together and then kind of pushed (inaudible).

Q So how high was it? A Like just a regular pile of sand. [40] The trial judge then referred the accused to a water jug and suggested dimensions of six inches high by three incheswide to which the accused answered “[k]ind of.” Under questioning from the trial judge, the accused then indicated that thecomplainant’s hands had been dirty and that he had advised her to wipe them off on the grass. [41] It is from this evidence that the trial judge drew two conclusions: (

a) that the sand under the play structure was not of sufficient consistency to allow the creation of what the accused had described;and (

b) if it had, there would have been evidence from the complainant’s mother that evening that the complainant was dirty as a result ofplaying in such sand. [42] The trial judge relied on these two conclusions to find that the accused’s explanation regarding the complainant’s sandstructure was not believable and that providing that explanation impacted negatively on his assessment of the accused’s credibility. [43] Both conclusions relate to factual findings—the consistency of the sand and the complainant’s state of cleanliness.

There was no direct evidence, other than the accused’s evidence related to the complainant making the mound, regarding either finding. While a trial judge can draw conclusions or make factual findings in the absence of direct evidence, there must be sufficient otherevidence to support that factual finding so that it is not merely speculation or a guess. This was explained as follows in McWilliams[1](at para 31:80): Triers draw inferences from facts in order to conclude the existence of further facts. . . .

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwiseestablished by evidence adduced at trial. “It is a fact which is inferred, not a belief”.

Put differently, once primary facts are found to be proven, “in drawing the inference theCourt is making a finding of fact”. “The process of drawing inferences from evidence is not . . . the same as speculating even where the circumstances permit an educatedguess”. [44] In R v Mustard (G), 2016 MBCA 40, Mainella JA stated as follows (at para 31): The law recognises “a distinction between speculation and evidence” (see R v DC, 2012 SCC 48 at para 27, [2012] 2 SCR 626).

Aproper inference can only be made where there are objective facts on the record to support it and logic reasonably allows the inference tobe drawn from those objective facts (see Caswell v Powell Duffryn Associated Colleries, Ltd, [1940] AC 152 at 169-70 (HL); andCloutier v The Queen, (SCC), [1979] 2 SCR 709 at 731). [45] The problem with the trial judge’s conclusion regarding the sand mound is that the other evidence did not support theconclusion that a pile of sand could not be created in the manner described by the accused.

There was simply no evidence before theCourt that the sand lacked the required consistency to form a simple mound and, in coming to that conclusion, the trial judge wasengaging in impermissible speculation. [46] On the issue of the condition of the complainant, the trial judge made two errors. [47] First, the trial judge’s finding that the complainant “would have been so covered in dirt and mud” was based on hisfinding that “there’s probably clay down there”, that is, under the sand.

That finding, however, was purely speculative as there was noevidence that there was any clay, dirt or mud where the complainant was digging. The accused was never asked about clay, dirt or mudand, when he was questioned, he said that the complainant was digging in sand and that she built the mound of sand—not clay, dirt ormud.

Thus, it was a mistake of fact to find that the complainant was digging in clay or that she was covered in dirt and mud. [48] Further, as to the condition of the complainant when seen by her mother when giving the complainant her bath, the onlyevidence the mother gave was as follows: Q Did you inspect or -- after [B] said these things did you sort of check her out?

A Yes I bathed her that evening. Q Okay. A Usually I allow [her] to bath by herself (inaudible) I bathed her. Q Okay. Was there any indication that anything had happened to her? A No. Q No? A (Inaudible). Q Physical signs at all? A None. The complainant’s mother was not asked either by the Crown or the trial judge about the complainant’s condition of cleanliness orwhether there was evidence of sand, dirt, mud or clay on her.

There was simply no evidence in that regard. [49] The trial judge’s reasons indicate that the consistency of the sand to make mounds, the presence of clay and thecomplainant’s state of cleanliness were important factors leading him to ascribe a lack of credibility to the accused’s testimony and toreject that testimony.

Based in part on these findings, he went on to find that he did not have a reasonable doubt as to the accused’sculpability. [50] As we have said earlier, this is not an issue of whether the remaining evidence, separate from the accused’s testimony,was sufficient to support the trial judge’s finding of guilt. As was stated in Morrissey (at p 221): If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow thatthe appellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if the evidence, as actuallyadduced at trial, was capable of supporting a conviction. [51] In this case, it is simply that, in analysing the accused’s testimony, the trial judge did so in a manner that was unfair tothe accused and vitiated the proper balancing of that evidence in the trial overall. It rendered the trial unfair and resulted in a miscarriageof justice. New Evidence and Reasonableness of the Verdict [52] We have read the dissenting opinion of our colleague, Pfuetzner JA. We disagree on whether the trial judgemisapprehended the evidence and drew improper inferences.

Otherwise, we are in general agreement. [53] The admissibility of the new evidence goes to the issue of the reasonableness of the verdict. We agree that itsintroduction is not warranted as it fails to meet the Palmer criteria (see Palmer v The Queen, (SCC), [1980] 1 SCR 759). [54] We agree that, were it not for the misapprehension of the accused’s evidence, there was sufficient evidence to warrant aconviction and the accused’s ground of appeal on the issue of the reasonableness of the verdict should be dismissed.

Conclusion [55] For the reasons set out above, we would find that there was a misapprehension of the evidence which led to amiscarriage of justice as a result of which we would order a new trial. JA JA PFUETZNER JA (dissenting):

Introduction [56] I have read the reasons of my colleagues for allowing this appeal and ordering a new trial on sexual offences undersections 151, 152 and 153(1) of the Criminal Code. We differ on the important question of the correct legal standard to be used toreview the conviction of the accused. In my respectful view, in allowing this appeal absent palpable and overriding error, the role of thetrial judge to weigh the evidence and assess credibility has been usurped.

Issues [57] The majority concludes that the trial judge made significant errors in assessing the credibility of the accused: first, thatthe trial judge unfairly criticised the accused for failing to explain how he knew that the complainant was angry with him; and, second,that the trial judge misapprehended the evidence which led to a miscarriage of justice.

First Issue—Unfair Criticism of the Accused [58] The majority suggests that it was unfair for the trial judge to have made a negative credibility finding against theaccused because he did not, nor was he asked to, provide any detail in his evidence as to how he knew the complainant was angry withhim at the park. [59] In my respectful view, this first issue has nothing to do with misapprehension of evidence as the factors going into acredibility assessment are not reviewed on the same standard as a misapprehension of evidence. [60] A trial judge is entitled, and indeed is required, to assess the credibility of the witnesses that appear before him or her.

As stated by Bastarache and Abella JJ in R v Gagnon, 2006 SCC 17 (at para 20): Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L. [HL v Canada (Attorney General), 2005 SCC 25], that in the absence of a palpable andoverriding error by the trial judge, his or her perceptions should be respected. [emphasis added] [61] This case turned on credibility.

The trial judge’s reasons show that he simply did not find the accused’s storycompelling because he did not offer any detail as to how he knew the complainant was angry with him and he did not tell anyone thisstory until some time after the events. The trial judge made no palpable and overriding error in making this negative credibilityassessment and there was no unfairness to the accused in him doing so. There is no basis to intervene in the trial judge’s assessment.

Second Issue—Misapprehension of Evidence [62] I turn now to the majority’s second ground for allowing the appeal—that there was a misapprehension of evidenceleading to a miscarriage of justice. This Court, in R v Whiteway (BDT) et al, 2015 MBCA 24, explained a misapprehension of evidenceas follows (at para 32): A misapprehension of evidence may refer to a mistake as to the substance of evidence, a failure to consider evidence relevant to amaterial issue or a failure to give proper effect to evidence (R. v. Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161 atpara. 83; and R. v.

Sinclair, 2011 SCC 40 at para. 13, [2011] 3 S.C.R. 3). A misapprehension of the evidence is not to be confused with adifferent

interpretation of the evidence than the one adopted by the trial judge (R. v. Lee, 2010 SCC 52 at para. 4, [2010] 3 S.C.R. 99). Itis insufficient that the judge may have misapprehended the evidence; the error must be readily obvious (Sinclair at para. 53). [emphasis added] [63] As they explain in their reasons, my colleagues are troubled by certain factual inferences drawn by the trial judge thatthey would not have drawn. [64] The first impugned inference relates to the consistency of the sand under the play structure.

The majority rejects thetrial judge’s inference that the sand could not have been formed into what they refer to as “a simple mound”. With respect, a sand pilethat is six inches high by three inches wide, as described by the accused, is not a simple mound. In their reasons, in my respectful view,my colleagues do not point out where the trial judge made a mistake as to the substance of evidence or how there is an error that is“readily obvious” (R v Sinclair, 2011 SCC 40 at para 53).

Instead, my colleagues merely express the concern that the photographs of theplay structure were taken from a distance and do not provide a close-up view of the sand. My colleagues also refer to the accused’svarious descriptions of the pile made by the complainant as “a tail”, a “wiener” and a “pile of sand”, and his description of the sand assimilar to a sandbox with the top layer dry and the sand wet if one dug a bit deeper.

My colleagues provide no other reason for theirconclusion that the trial judge did misapprehend, as opposed to may have misapprehended, evidence when he found that a pile of sandcould not be created in the manner described by the accused. [65] Second, the majority takes issue with the trial judge’s inference that the complainant was not unusually dirty afterreturning from the park. Again, with respect, the majority fails to indicate the “readily obvious” error that the trial judge made indrawing this inference.

The trial judge had the evidence of the complainant’s mother that she carefully examined the complainant whenshe bathed her that evening and didn’t notice anything out of the ordinary. It is difficult for me to accept the reasoning that a trial judgecannot reasonably rely on the careful observations of a concerned mother to infer that a child was not unusually dirty or sandy whenbeing bathed. The fact that the complainant’s mother was not specifically asked if the complainant was dirty by either Crown or defencecounsel does not prevent the trial judge from drawing the inference he did.

The entire purpose of drawing inferences is to make findingsof fact when there is no direct evidence precisely on point.

[66] Finally, my colleagues conclude that the trial judge engaged in impermissible speculation when he inferred that therewas clay, dirt or mud under the sand. However, the accused described the sand as “the top layer’s dry. (Inaudible) dig a bit deeper it’dturn wet and you’d get like rocks and all that.” Based on the accused’s evidence, it was entirely reasonable for the trial judge to haveinferred that there was clay, dirt or mud where the complainant was digging. [67] In my respectful view, the trial judge made no mistakes as to the substance of evidence or any other readily obviouserror.

The inferences he drew were not inconsistent with the evidence and were informed by common sense and experience. This case isunlike Morrissey [(1995), (ON CA), 97 CCC (3d) 193 (Ont CA)], where the judge made several mistakes as to thesubstance of witnesses’ evidence that were readily apparent when the judge’s reasons were reviewed together with the trial transcripts. [68] Respectfully, the majority has merely come to a different

interpretation of the evidence and is mistakenly characterisingthe trial judge’s

interpretation as a misapprehension of the evidence—an approach warned against by the Supreme Court of Canada in Rv Lee, 2010 SCC 52. Not every judge might have drawn the inferences that the trial judge did. However, this is not the legal test and itis certainly not a sufficient basis upon which to find a miscarriage of justice and order a new trial. The role of this Court is not to re-weigh the evidence and come to different conclusions than the judge at first instance who had the advantage of observing and hearingthe witnesses first-hand.

Proper Legal Test—Unreasonable Verdict [69] As I have explained, in this case, there has been no misapprehension of evidence. Nor has there been a legal error, suchas a misapplication of the test in R v W(D), (SCC), [1991] 1 SCR 742. [70] The only remaining basis upon which the appeal could succeed is if the verdict is unreasonable or cannot be supportedby the evidence (see section 686(1)(a)(

i) of the Criminal Code). This is the proper standard upon which the trial judge’s reasons shouldbe reviewed. The standard was summarized by Deschamps J in R v RP, 2012 SCC 22 (at para 9): To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987] 2S.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 a properlyinstructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected 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, 2007 SCC 5, [2007]1 S.C.R. 190). [emphasis added] [71] One principle that can be derived from RP is that, if a judge makes a palpable and overriding error in drawing a factualinference that is essential to the verdict, the verdict is unreasonable.

This is consistent with prior jurisprudence of the Supreme Court ofCanada confirming that the standard of review for findings of fact and factual inferences is palpable and overriding error (see Housen vNikolaisen, 2002 SCC 33 at para 23; R v Clark, 2005 SCC 2 at para 9; and HL v Canada (Attorney General), 2005 SCC 25 at para 74). [72] In addition, it is consistent with more recent case law that says a palpable and overriding error is both “obvious” andone that “goes to the very core of the outcome of the case” (Canada v South Yukon Forest Corporation, 2012 FCA 165 at para 46; seealso Benhaim v St-Germain, 2016 SCC 48 at para 38). [73] Similarly, at stated in Benhaim (at para 39): Or, as Morissette J.A. put it in J.G. v.

Nadeau, 2016 QCCA 167, at para. 77 , (TRANSLATION) “a palpable and overridingerror is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions.” [74] In RP, Deschamps J further explained the role of an appellate court reviewing the reasonableness of a verdict whencredibility is the primary issue (at para 10): Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court of appealthat reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [emphasis added] [75] The Supreme Court of Canada has stated on many occasions that the standard of review of a trial judge’s credibilityassessment is the demonstration of palpable and overriding error (see Schwartz v Canada, (SCC), [1996] 1 SCR 254 atpara 32; R v Gagnon, 2006 SCC 17 at para 10; R v NS, 2012 SCC 72 at para 25; R v WH, 2013 SCC 22 at paras 30-31; and R v Vuradin,2013 SCC 38 at para 11.

Review of Factual Inferences and Credibility Assessment [76] Bearing in mind the proper standard of review, the factual inferences drawn by the trial judge are entitled to deference. As I have explained, none of the factual inferences singled out for criticism by my colleagues is contradicted by, or incompatible with,the evidentiary record. Moreover, the inferences are “reasonably available” from the evidence taken as a whole (R v ON, 2017 ONCA923 at para 9). [77] Fundamentally, this case turns on the trial judge’s credibility assessments; particularly his negative assessment of thecredibility of the accused.

Key is the trial judge’s conclusion that the sand-pile event, as described by the accused, did not happen. He

made this finding based on more than just inferences drawn regarding the consistency of the sand and the lack of dirt or sand on thecomplainant. He did not believe the accused’s story that the complainant was angry with him for breaking her sand pile.

In addition, thetrial judge didn’t believe the accused’s claim that the six-year-old complainant said a mound of sand looked and felt like a “wiener”when the trial judge said, “[a]nd to describe a mound as a penis, it didn’t seem to me to be a plausible explanation.” [78] The accused’s credibility must be assessed in the context of all of the evidence adduced at trial. The complainant(whose evidence the trial judge found to be credible) immediately disclosed what happened at the park but never mentioned making asand pile or being angry with the accused.

Further, the trial judge had the admissible evidence of the complainant’s sister’s statement(“CJ, da, perogy”) and her gestures toward her genitalia. [79] At the end of the day, the trial judge’s vital finding that the accused was not a credible witness is supportable on theevidence and great deference is owed. [80] As I have indicated, the proper legal issue in this case is the reasonableness of the trial judge’s verdict. My colleaguesconcede that the verdict was reasonable and I agree. The trial judge assessed the credibility of the two main witnesses—the accused andthe complainant.

Those assessments are reasonably supportable on the evidence. He disbelieved the accused and believed thecomplainant. The evidence he accepted was, as noted by my colleagues, sufficient to support a conviction. Fresh Evidence Motion of Accused [81] The accused brought a motion to admit fresh evidence which can be dealt with briefly. The proffered evidence does notmeet two of the criteria in Palmer v The Queen, (SCC), [1980] 1 SCR 759. First, it is not credible or reasonably capableof belief as it consists of affidavit hearsay.

Second, the evidence is such that, even if believed, it could not reasonably be expected tohave affected the result at trial. Conclusion [82] I would dismiss the motion to adduce fresh evidence and dismiss the appeal. JA