R. v. D.A.R., 2012 NSCA 31

NOVA SCOTIA COURT OF APPEAL Citation: R. v. D.A.R. , 2012 NSCA 31 Date: 20120322 Docket: CAC 354647 Registry: Halifax Between: D.A.R. Appellant v. Her Majesty the Queen Respondent Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code Judge: The Honourable Justice Peter M. S. Bryson Appeal Heard: January 26, 2012 Subject: Criminal law. Sexual offences. Criminal Code ss. 156 and 157. Evidence. Similar fact evidence.

Summary: D.A.R. appeals convictions for indecent assault and gross indecency. He says that similar fact evidence was admitted without a voir dire , and was improperly used by the trial judge. He also argues that the judge erred in assessing credibility. Issue: 1. Admissibility of “ similar fact ” evidence 2. Use of that evidence 3. Credibility

Result: Appeal dismissed. Evidence of other sexual activity was admitted for narrative and context. It was not admitted as evidence of similar “ facts ” or “ acts ” . Trial judge did not use this evidence to convict. He was aware of its potentially prejudicial effect. While erroneous reasoning could constitute an “ unreasonable verdict ” within the meaning of s. 686(1) (a)(

i) of the Criminal Code (per R. v. Sinclair , 2011 SCC 40 ), the trial judge ’ s reasons were sound. Moreover, he did not err in his assessment of credibility. This information sheet does not form part of the court ’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 20 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. D.A.R. , 2012 NSCA 31 Date: 20120322

Docket: CAC 354647 Registry: Halifax Between: D.A.R. Appellant v. Her Majesty the Queen Respondent Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: Pursuant to s. 486.4 of the Criminal Code Judges: Saunders, Beveridge and Bryson, JJ.A. Appeal Heard: January 26, 2012, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bryson, J.A.; Saunders and Beveridge, JJ.A. concurring. Counsel: Craig M. Garson, Q.C. and Cory Roberts, for the appellant Kenneth W. F. Fiske, Q.C., for the respondent Order restricting publication – sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences:

(

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii). Reasons for judgment : [ 1 ] D. R. was charged with indecent assault and gross indecency contrary to ss. 156 and 157 of the Criminal Code , R.S.C. 1978 c.-34. The alleged offences occurred at Truro between June 1978 and December 1980. Mr. R. was an adult at the time and the complainant, L. K., was under the age of 14. Mr. K. and his mother, V. K., testified for the Crown. Mr. R. testified in his own defence. [ 2 ] The Crown led evidence of sexual activity between D. R. and L. K. during the same period, in Prince Edward Island ( “ PEI ” ), where Mr. K. ’ s family had a family cottage. Mr.

R. objected that this was prejudicial evidence of bad character and should not be admitted. The court ruled otherwise. After a short trial, the Honourable Justice N. M. Scaravelli convicted Mr. R. ( 2011 NSSC 192 ). [ 3 ] Mr. R. now appeals, arguing that evidence of sexual activity in PEI should not have been admitted at trial. Alternatively, Mr. R. submits that if admissible, the trial judge should have limited its use to the purpose for which it had been admitted. Finally, Mr. R. argues that the judge erred in his assessment of his credibility. Despite the able argument of counsel for Mr.

R., I am not persuaded that the trial judge erred. For the reasons that follow, I would dismiss the appeal. Facts: [ 4 ] In 1977, V. K. hired Mr. R. to assist in the renovation of the livingroom in the family home in Truro. Mr. R. was also hired to help in the renovation of one of the family ’ s cottages in PEI. That cottage was renovated between the period 1978 to 1980. One of L. K. ’ s older brothers was married in Truro at the end of August *. About that time, Ms. K. terminated the family ’ s relationship with Mr. R.. [ 5 ] The trial proceeded in Truro on February 21 and 22, 2011.

At the beginning of the trial, the Crown sought admission of evidence of sexual activity on PEI involving L. K. and D. R., for the purposes of narrative and context of the relationship between the two. Following submissions by the parties, Justice Scaravelli decided that he would admit the evidence. Mr. K. described two incidents in PEI. The first occurred at Cavendish Beach. Mr. K. was sitting in an overturned lifeguard ’ s chair. He testified that Mr. R. tickled and poked him over his clothing in his chest area and eventually in the area of his genitals. Mr. K. thought this odd. The two then walked to Mr.

R. ’ s car in the parking lot. Mr. K. says Mr. R. approached him from behind, put his arms around him and then put his hands inside L. K. ’ s shorts, fondling his genitals. Mr. K. testified that Mr. R. told him that this was “ something best kept between us ” .

[ 6 ] L. K. gave evidence of another incident in PEI when he was lying on a sand dune and Mr. R. performed oral sex upon him while Mr. K. was lying on his back. Mr. K. could not recall the date or year. [ 7 ] L. K. testified that occasionally Mr. R. stayed overnight at the family home in Truro while he was doing renovations on the house. L. K. ’ s bedroom contained two single beds and when Mr. R. stayed overnight he slept in one of the beds. L. K. said that on more than one occasion, Mr. R. fondled his genitals under his pyjamas. On two other occasions he performed oral sex upon L.

K. while he was standing in the middle of the floor. The second time this happened, Mr. K. experienced an orgasm. Mr. R. requested that L. K. reciprocate, but after briefly putting his mouth on Mr. R. ’ s penis, he withdrew. [ 8 ] L. K. said that he tried to avoid Mr. R. when he was staying in his bedroom by pretending he was asleep, wearing headphones or having a friend over for the night, or arranging to spend the night somewhere else. [ 9 ] Towards the end of August 1980, Mr. K. told his mother that D. R. had “ approached him ” . When Mr. R. next attended the family residence, Mrs.

K. confronted him and the relationship with the family terminated. [ 10 ] Mr. R. testified, denying any sexual activity with L. K.. He provided detailed evidence of the work that he did for the family and visits to the beach in PEI with L. K. as well as staying in Mr. K. ’ s room in Truro. While there was physical contact between them, Mr. R. denied sexual activity of any kind with Mr. K.. [ 11 ] Mr. R. appeals his conviction under s. 675(1) (

a) of the Criminal Code . Issue 1 - Admissibility of Evidence of Sexual Activity in PEI: [ 12 ] Both the Crown and defence agree that similar fact evidence of discreditable conduct is prima facie inadmissible. However, if the Crown can establish on a balance of probabilities that the evidence is relevant to a live issue at trial, the court has a discretion to receive it if satisfied that the probative value of the evidence outweighs its prejudicial effect ( R. v. Handy , 2002 SCC 56 , at paras. 47 and 48 and R. v.

C.J. , 2011 NSCA 77 where Handy is extensively reviewed by this Court). [ 13 ] The trial judge ’ s ruling on the admissibility of evidence concerning sexual activity in Prince Edward Island was relatively brief and warrants repetition in full: I have considered this issue in the context of the nature of the charges before the Court and the charge before the Court relates to sexual activity that is alleged to have occurred in Truro, the Province of Nova Scotia, between the 1st of June, 1978 and the 31st day of December, 1980, and the Crown has indicated it wishes to call evidence of sexual activity occurring in the Province of Prince Edward Island during a similar time period.

The Crown submits that the evidence is part of the narrative, it’s contextual, that the evidence deals with how the relationship between the complainant and the accused developed, the nature of the relationship. Also this evidence assists in explaining the complainant’s conduct to the date of the charges, or I should say disclosure. Defence objects to the admission of this evidence on the grounds that the evidence is not probative; it can't be used for the truthfulness of the charge. Also that the evidence would be prejudicial and that the Crown is attempting to use evidence of bad character.

I have reviewed the authorities submitted. The charges before the Court relate to alleged historical sexual abuse by an adult involving a child at the time. The nature of the relationship between the parties and the context in which the alleged abuse occurred are material issues. The conduct of the complainant is also a material issue in trials of this nature. In terms of prejudice, the Crown is not submitting, nor, in fact, can the Court use such evidence as confirmation of the truthfulness of the

allegations of events alleged to have occurred in Nova Scotia. As a result, I'm going to allow the evidence. Voir Dire [14] The need for a voir dire was first raised by counsel for Mr. R. on appeal. Mr. R. had other counsel at trial. At trial, the Crowndid not seek to introduce evidence of what transpired in PEI as similar fact evidence. It was not admitted on that basis. [15] The parties agree that the first stage of the Handy analysis requires identification of the issue to which the proffered evidencerelates. The trial judge then conducts a probative value versus prejudicial effect analysis. In this case, Mr.

R. argues that the trial judgedid not do that analysis and, moreover, could not do that analysis because there was no proper voir dire. Since the trial judge didn'treally know what evidence was coming, he couldn't do the necessary analysis to determine admissibility. [16] By way of example, Mr. R. cites Justice MacLellan in R. v. Kennedy, [1993] N.S.J. No. 339, (N.S.S.C.) at para. 31: 31 Applying this criteria to the case at hand, I find that it was improper for the Trial Judge to make a ruling on the admission of thesimilar fact evidence here without first hearing the evidence.

I believe the procedure should have been that the trial judge would hear allthe similar fact evidence to be tendered by the Crown and then after assessing that evidence determine whether it had met the tests as setout in the case law concerning the reception of such evidence. By ruling in advance that the similar fact evidence was admissible, theTrial Judge did not allow himself the opportunity to properly decide whether it was admissible. [17] In reply, the Crown says that what occurred at trial was effectively a voir dire. There was no question of proper disclosure. There had been a preliminary inquiry.

The defence did not say it did not know what evidence would be forthcoming. [18] In the alternative, the Crown argues that the court need not hear evidence from the witnesses themselves before ruling onadmissibility. The Crown refers to R. v. Truscott (2006), (ON CA), 216 O.A.C. 217, at para. 17 and following,particularly at para. 24. [19] In the further alternative, the Crown argues that Mr. R. waived a voir dire, and that counsels’ submissions were sufficient. TheCrown relies upon four cases: R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449, at paras. 41 and 44; R. v. Mafi, (BC CA), [1998] 114 B.C.A.C. 161; R. v.

Tran, 2001 NSCA 2, at 17, 19 and 20; and R. v. S.G.T., 2010 SCC 20. In myview, this jurisprudence stands for the proposition that a failure to hold a voir dire is not fatal if the admissibility of the impugnedevidence is properly tested and the accused is not prejudiced. In the context of this judge alone case, the real threshold question iswhether the evidence was properly admitted – ie., did the process followed afford the accused the protection which a voir dire isintended to provide? That is a question of substance, not form.

In a judge alone trial, the absence of a formal voir dire should not befatal, if the process served the substantive purpose of having one. [20] In this case, the Crown made it clear what the nature of the evidence was. In my view, this was sufficient for the court toconsider admissibility in light of the governing legal principles. Relevant Issues: [21] Issues in question are grounded in the facts alleged in the charge in the Indictment. They include defences that are actuallyadvanced or may reasonably be anticipated (Handy, para. 74).

Moreover, how the accused conducts his defence can affect issues towhich otherwise discreditable evidence is also relevant. [22] As Handy instructs, the Court must conduct its probative-prejudicial balancing in relation to live issues at trial. This is whatCrown counsel said at trial about those issues (Transcript, pp. 6-10):

...is anticipated to provide evidence of . . . of matters which occurred during this period of time and as part of the narrative this willinclude, it is anticipated, evidence about related matters, somewhat similar matters, which occurred outside the jurisdiction of theProvince of Nova Scotia, which occurred in Prince Edward Island. The Crown intends to present that evidence for the purposes of establishing a narrative and establishing the relationship between Mr. K.and the accused and for the purpose of explaining certain of the actions of the . . . of the complainant at the time.

It is noted, obviously,that this could be considered to be evidence of disreputable conduct or discreditable conduct which occurred but . . . which occurs . . .which has occurred outside of the . . . the bounds of the indictment, given that they are limited, of course, to what occurred in theProvince of Nova Scotia. So it is important, I think, that we want to canvass this issue with My Lord . . . before we get into . . . beforewe get into the matter. . . . ...to provide to the Court some indication as to . . . for example, issues of, well, why did he wait as long as he did?

What was therelationship between himself and Mr. K.- . . . Mr. R. over that period of time? How did that relationship change from day one to . . . tothe . . . the termination of that relationship? How did the various acts that were complained of in Nova Scotia, how did they relate tomaterially . . . or how did they differ materially from what happened in Prince Edward Island? What relationship or what impact thosedifferences that he perceived had in relation to what was in his mind about what he was going to report or what he wasn't going toreport?

And, obviously, the Crown would submit that it is relevant to such . . . to such issues as the credibility of the complainant and his. . . his relationship with the accused over that period of time. With respect to the live issues at trial, the judge ruled: The charges before the Court relate to alleged historical sexual abuse by an adult involving a child at the time. The nature of therelationship between the parties and the context in which the alleged abuse occurred are material issues.

The conduct of the complainantis also a material issue in trials of this nature. [Transcript, pp. 25–26] [23] Narrative evidence may be admissible for a variety of purposes: to understand the unfolding of events surrounding an offence(R. v. Magloir (2003), 2003 NSCA 74 , 178 C.C.C. (3d) 310 (N.S.C.A.), at para. 23); to explain why the abuse was notterminated by the victim or why the perpetrator was not reported to authorities (R. v. J.E.F. (1993), (ON CA), 85C.C.C. (3d) 457, at 11 (Ont. C.A.)); to test credibility (R. v. O.B., 1995 NSCA 220 , 1995 N.S.J. No. 499 (N.S.C.A.).

In R. v.Assoun, 2006 NSCA 47, at para. 177, this Court endorsed the foregoing examples, amongst others: [177] We agree with the Crown’s outline of the purposes for which narrative evidence such as that of Ms. Gazzard may be relevant, andwith its conclusion. The appellant has therefore not satisfied us on the first part of this argument, that Ms. Gazzard’s contextual evidencewas not relevant as narrative. Without her contextual evidence, in the form in which it was given as opposed to in a

summary form, thejury would not have been able to properly evaluate the alleged admission or Ms. Gazzard’s credibility and reliability. [24] In this case, Mr. R.’s evidence and submissions also made innocent association and accident issues (Handy, paras. 44 & 91). [25] During cross-examination, Mr. R. testified: Q. So when Mr. K. testifies about you being in their home multiple times, fondling him on occasions, and performing oral sex, he'smistaken in that? A. He is mistaken. [Transcript, p. 247, line 15-18]

During submissions, Mr. R. ’ s counsel suggested: MR. BRIGHT : Yet a credible witness can be honestly mistaken. [Transcript, p. 252, line 18] . . . MR. BRIGHT : But in this particular case, you have Mr. K. who has a relatively poor recollection of many of the detailed items. [Transcript, p. 261, lines 9-10] . . . MR. BRIGHT : I had said at the start of my submissions to you that there was a double analysis to be made with witnesses with respect to credibility and reliability. So I said you may recall the witness who isn't credible can never be reliable, but a reliable witness can be honestly mistaken.

And here, we have an honest mistake, and I think it fair to put it that way, with respect to Mr. K.. [Transcript, p. 290, lines 21-22, p. 291, lines 1-5] [ 26 ] Clearly, Mr. R. was arguing that Mr. K. was mistaken about the actus reus of the alleged offences. Notwithstanding this, the trial judge reiterated the basis upon which the PEI evidence was admitted: [28] The evidence of alleged acts in Prince Edward Island during the time period covered in the indictment are not the subject of the charges.

The evidence was admitted as part of the narrative to provide context as to the relationship between L.K. and D.R. when the alleged sexual abuse started. Prejudice: [ 27 ] Mr. R. faults the trial judge for not instructing himself on the issue of prejudice. He says that the judge did not analyze the admissibility of the proffered evidence. The trial judge failed to mention Handy . Mr. R. submits that the evidence of sexual activity on Prince Edward Island was highly prejudicial with little or no probative value. Any need for a narrative could have been addressed in a cursory way or through Mr. K. ’ s mother, V.

K.. The trial judge then improperly used the PEI evidence as propensity evidence concerning what allegedly transpired in Truro. These were errors of law that could not be cured under s. 686(1) (b)(iii) of the Criminal Code . [ 28 ] It is true that the trial judge ’ s decision on the admissibility of the PEI evidence is brief. He does not mention Handy . However, the submissions to the trial judge on this issue occupied the better part of 15 pages of transcript. The case law discussed correctly identified the principles that Handy describes .

The general rule that evidence of discreditable conduct is prima facie inadmissible was conceded in argument by the Crown before the trial judge. The need to show that the proposed evidence was relevant and material; that the probative value must outweigh prejudicial effect, were all canvassed. [ 29 ] In his decision, the trial judge said that he had reviewed the authorities cited by counsel. He noted the requirement that the evidence be probative and observed that it was prejudicial to Mr. R..

In terms of prejudicial effect, the judge acknowledged the Crown ’ s submission that the PEI evidence could not be used to confirm the truthfulness of the alleged events in Truro. [ 30 ] While the judge ’ s ruling did not explicitly balance probative value against prejudicial effect, it is clear that he was aware of the governing principles – crucially that the PEI evidence could not be used by him to infer guilt from disposition. Without the PEI evidence, the court would have been left without context or explanation for what allegedly transpired in Truro. It shows that Mr.

R. had effectively become a family friend. He stayed with them. He was trusted. He was involved in family recreation. Like Mr. R. ’ s

suggestion that what occurred at the beach in Cavendish was something “best kept between us”, it helps explain why Mr. K. did notcomplain immediately. [31] With respect to the brevity of the judge’s reasons when ruling on admissibility, it is important to recall that this was a judgealone trial and judges are not obliged to refer to every fact or principle upon which they have relied in the writing of their decisionprovided that they address key issues (R. v.

T.E.H., 2011 NSCA 117): [26] Further, the court in R.E.M. makes it clear that a trial judge is not required to recite all of the evidence in his or her reasons, aslong as he or she grappled with the live issues at trial, and that a trial judge’s failure to explain why he or she rejected a denial of thecharges is not necessarily a deficiency: [64] ...The foregoing discussion of the law establishes that a trial judge is not obliged to discuss all of the evidence on any givenpoint, provided the reasons show that he or she grappled with the substance of the live issues on the trial.

It is clear from the reasons thatthe trial judge considered the accused’s evidence carefully, and indeed accepted it on some points. In these circumstances, failure tomention some aspects of his evidence does not constitute error. This also applies to the third objection, that the trial judge failed to makegeneral comments about the accused’s evidence. ... . . . [66] Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground forfinding the reasons deficient.

The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’sevidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasonsfor accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimonyon specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where itconflicted with evidence of the complainant that he accepted.

No further explanation for rejecting the accused’s evidence was required.In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonabledoubt. [27] When reviewing the judge’s reasons for sufficiency, we are to proceed with deference. We are not to substitute our opinion forthat of the trial judge.

We are to take a functional approach and ask ourselves whether her reasons in their entire context, considered inlight of the evidentiary record, the submissions of counsel and the live issues at trial, reveal the basis for the verdict reached. Do herreasons indicate that she seized the substance of the critical issues at trial? We are to ensure the judge dealt with material contradictionsand any difficult or novel issues of law. We are to recognize the inherent difficulties in enunciating why one finds one witness credibleand another not.

We are to remember that the judge is not required to deal with all of the evidence in his or her reasons and thatreasonable inferences need not be stated. We are to consider whether the reasons, in context, sufficiently inform the parties of the basisof the verdict, provide public accountability and permit meaningful appellate review. [32] Mr. R. rightly points out that the two types of prejudice which Handy describes as flowing from discreditable conduct evidenceare moral prejudice and reasoning prejudice. The former tempts the trier of fact to convict the accused because he is a “bad person”.

The latter risks conviction because the trier of fact is distracted by events peripheral to the charge or charges that the accused actuallyfaces. In this case, Mr. R. argues that the trial judge became distracted by the PEI evidence – that he did not acknowledge or weigh thereasoning prejudice inherent in this evidence. [33] In contrast, the Crown quotes from Watt J.A. in R. v.

J.M., 2010 ONCA 117 at para. 88: 88 Second, the presumptive inadmissibility of evidence of similar acts reflects the general prohibition of the law against the use ofcharacter evidence as circumstantial proof of conduct, thus guilt: Handy at para. 31. The prohibition guards against reasoning prejudice(confusion because of evidence of multiple incidents and consequent unwarranted reliance on often suspect evidence about theoffence(

s) charged) and moral prejudice (findings of guilt based on bad personhood). In trials by judge alone, like this case, the dangerthat a conviction will be rooted in either reasoning or moral prejudice is significantly lessened: R. v. B. (T.) (2009), 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 28-30; R. v. Cresswell, [2009] ONCA 95, at para. 10; R. v. MacCormack, [2009] ONCA 72, at paras.56, 68, 69.

[34] With respect to prejudice, the Crown argues that the evidence of similar acts in this case are those of Mr. K., not a third party. This is not a case where discreditable evidence from a third party is used to enhance the complainant’s credibility (R. v. D.S.F. (1999), (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.) at para. 33). In other words, if the trier of fact does not believe thecomplainant, it is less likely that evidence of similar facts from the same complainant would enhance his credibility. [35] In this case, the time period of the similar facts fell within the period described in the Indictment.

The PEI evidence involvesacts of fondling and oral sex, similar to the conduct for which Mr. R. was charged in the Indictment. The sexual impropriety in Trurooccurred in private, in L.K.’s bedroom. The PEI similar fact evidence occurred out-of-doors, although it was effectively in private (R. v.L.B. (1997), (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.) at para. 37). There were really no intervening events, exceptgeography – PEI versus Nova Scotia. In the circumstances, it is not a material distinction. [36] In my view, the trial judge did not err in admitting the evidence of sexual conduct in Prince Edward Island.

Issue 2 - Use of the PEI Evidence: [37] Again, Mr. R. faults the trial judge for not instructing himself as to the proper use of the PEI evidence. It was not necessary forhim to do so. The question is whether he used that evidence for an improper purpose. Mr. R. goes on to argue that the trial judge didso. He points to the extensive cross-examination of Mr. R. by Crown counsel at trial regarding events in PEI. Mr.

R. concludes in hisfactum: 55 On the basis of this evidence, the trial Judge decided not to believe the Appellant because, according to the trial Judge, he had“carefully crafted his evidence to undermine the Crown’s case” by “placing himself at the scene of the alleged sexual activity and othersurrounding events” (Decision at para. 34). 56 This conclusion by the trial Judge rested almost exclusively on evidence regarding the alleged incidents in PEI rather thanevidence concerning the charges in the Indictment.

Any of the evidence where the Appellant’s evidence could be said to closelyresemble that of the Crown’s, as suggested by the trial Judge, concerned the alleged incidents in PEI, not in Nova Scotia. [38] With respect, nothing in the judge’s decision indicates that he relied upon evidence of discreditable, similar acts in PEI. Thereis no suggestion in the judge’s reasoning that he inferred guilt from evidence of bad character which could be implied from Mr. R.’sprior misconduct. Nor did he use the PEI evidence to conclude that Mr. K. was credible and Mr. R. was not.

Having said that, narrativeand contextual evidence may be used and relied upon for the issue of Mr. K.’s credibility (Assoun, para. 176-177). [39] The only possible allusion to the PEI evidence is found when discussing points in common between the evidence of Mr. R. andMr. K.: [38] In this case, except for the denial of sexual activity, much of D.R.’s evidence confirms the Crown’s evidence.

In this regard, Irefer to the time lines set out in the Indictment, the evidence of D.R. being alone with L.K.—staying overnight in L.K.’s house in Truro—sleeping in L.K.’s bedroom—being undressed in L.K.’s presence in the bedroom—prior physical contact including poking and ticklingthe complainant. [40] Mr. R. argues that the poking and tickling occurred at Cavendish Beach in PEI and must mean that the trial judge relied on thisevidence. Two points can be made in reply. First, the trial judge did not explicitly identify PEI in this discussion.

Second, even if thatcan be inferred, the finding of guilt is not based on that evidence. In any event, it could go to the issue of mistake – a question raised bythe defence, (paras. 23 to 26 above). Issue 3 - Credibility: [41] Here Mr. R. asserts that the trial judge erred in the manner of his analysis of Mr. R.’s credibility. But with respect, the

appellant’s argument conflates two distinct points: (

a) The verdict was unreasonable because it was based on illogical reasoning; (

b) The trial judge made a palpable and overriding error of fact when assessing Mr. R.’s credibility. [42] The second argument is the well known one of whether or not a properly instructed jury acting judicially could have reasonablyrendered the verdict at trial: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at paras. 23 to 25. The test is equally applicableto a jury trial or a trial before a judge without a jury: R. v. Biniaris, 2000 SCC 15, at para. 37. (

a) Illogical Reasoning [43] More recently, the Supreme Court acknowledged that appellate review could include setting aside a verdict as unreasonablebecause the trial judge’s reasons are illogical or irrational: R. v. Beaudry, 2007 SCC 5; R. v. Sinclair, 2011 SCC 40. Also see: R. v.B.W., 2012 NSCA 13, at para. 20; R. v. Veinot, 2011 NSCA 120, at para. 9; R. v. MacIntosh, 2011 NSCA 111, at para. 146. [44] Mr. R. attacks the trial judge’s determination of credibility as unreasonable citing Justice Fish’s dissent in Beaudry (acceptedby the majority with respect to the proper test applying to a s. 686(1)(a)(

i) analysis). Justice Fish said: 97 ...No one should stand convicted on the strength of manifestly bad reasons — reasons that are illogical on their face, or contraryto the evidence — on the ground that another judge (who never did and never will try the case) could but might not necessarily havereached the same conclusion for other reasons. ... . . . 98 ...But where reasons do exist, a verdict cannot be reasonable within the meaning of s. 686(1)(a)(

i) if it is made to rest on findingsof fact that are demonstrably incompatible, as in this case, with evidence that is neither contradicted by other evidence nor rejected by thejudge. [Emphasis in original] [45] In Sinclair, Justice Fish explained the difference between Yebes and Beaudry: [14] While a misapprehension of the evidence may help to establish that a verdict is unreasonable within the meaning of Yebes andBiniaris, Beaudry does not govern an error of this sort. [15] Rather, the Beaudry test addresses the reasonableness of the judge’s verdict, notably by scrutinizing the logic of the judge’sfindings of fact or inferences drawn from the evidence admitted at trial.

A trial judge who is mistaken as to the evidence admitted at trialmisapprehends the evidence, inviting appellate scrutiny under Lohrer, not Beaudry; a trial judge who is not mistaken as to the evidencebut reaches a verdict by an illogical or irrational reasoning process commits an error under Beaudry, not Lohrer. These are conceptuallydistinct errors.

To conflate them is to disregard the rationale of Beaudry and the jurisprudential gap it has filled. [16] An appellate court will thus be justified in intervening, pursuant to Beaudry, where a trial judge draws an inference or makes afinding of fact that is (1) plainly contradicted by the evidence relied on for that purpose by the judge, or (2) demonstrably incompatiblewith evidence that is not otherwise contradicted or rejected by the trial judge. [46] Mr. R.’s argument that the trial judge’s reasons are “illogical” arises from the following finding of the trial judge:

[34] My impression of the Accused, D.R., is that he carefully crafted his evidence to undermine the Crown’s case. Rather than ablanket denial, he placed himself at the scene of the alleged sexual activity and other surrounding events described by the Complainantand his mother, and gave detailed but harmless explanations of his conduct.

Unlike the admitted lack of specific recollection includingdates and times from the Complainant and his mother, D.R.’s evidence is striking and unbelievably clear in detail, recollecting events of30 years ago that would have been totally insignificant to him at the time, including the exact number of times he spent overnight at thefamily’s Truro residence. The passage of time is an important factor in this case. [35] I do not believe D.R.’s evidence that he stayed overnight in Truro on only two occasions. [47] Mr.

R. summarizes his criticism of the trial judge here by arguing: 61 The trial Judge concluded that the Appellant was not credible because his memory was too good. ... 62 The trial Judge’s decision to disbelieve the Appellant because he has a good memory is “illogical...” With respect, this is to ascribe a conclusion to the trial judge which he did not express and apparently did not reach. Mr. R.’s argumenthere assumes the conclusion it wishes to reach, ie., because he testified to many details, he is therefore credible and reliable.

Heelaborates as follows: 64 The trial Judge disbelieved the Appellant because he was able to remember specific details; despite the fact the Appellant had ademonstrable good memory for past details and dates. This is evident from the trial Judge’s reasons at para. 34 where he comments thatthe “passage of time is an important factor in this case”. For some reason, unexplained and unexplainable, the trial Judge found that thepassage of time made the Complainant’s vague evidence more believable yet the Appellant’s evidence unbelievable. It is not illogical to say that the evidence of Mr.

K. is more believable notwithstanding that it is vague owing to the passage of timebecause Mr. K. was then a child (see McLachlin, J. (as she then was) in R. v. R.W., quoted in para. 50 below). With respect, the trialjudge’s reasoning is not illogical. It is not plainly contradicted by evidence relied on by the trial judge nor is it demonstrablyincompatible with evidence that is otherwise uncontradicted or rejected by the trial judge. Hence, Beaudry has no application to thiscase. (

b) Factual Error re Credibility [48] It is possible to overturn a verdict on the basis that it is unreasonable because a trial judge has made a palpable and overridingerror when assessing credibility. But it is difficult to do owing to the deference accorded the trial judge. As Justice Fichaudsummarized in R. v. Abourached, 2007 NSCA 109, at 48: [48] ...It is possible to overturn a verdict as unreasonable based on palpable and overriding error in the assessment of credibility: R. v.Burke, (SCC), [1996] 1 S.C.R. 474; R. v. Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621 at ¶ 10, 20.

But the trialjudge’s special advantages in assessment of the evidence and credibility demand substantial deference from the appeal court: R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122, at pp. 131-2; R. v. Clark, 2005 SCC 2 , [2005] 1 S.C.R. 6, at ¶ 9; Gagnon,supra at ¶ 10-11, 19-20; R. v. R.D., 2006 SCC 51 , [2006] 2 S.C.R. 610 adopting the dissenting reasons of Dutil, J.A., 2005QCCA 1167 , [2005] Q.J. No. 17811 (Q.C.A.) at ¶ 104-7. [49] Justice Hamilton explained in T.E.H.: [30] Assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization;

[30] Assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization;R.E.M., ¶ 28 and 29. The judge’s reasons give some indication why she disbelieved Mr. H.. She explained that she found hisexplanations of touching DB’s person and genitalia, but without a sexual purpose, made no sense against the background of suspicionand paranoia Mr. H. had about DB, given DB’s propensity to report things to his guidance counsellor and DB’s father’s indication to Mr.H. in the Spring of 2009 that DB “was somewhat attracted” to Mr. H.. [50] Mr.

R. emphasized the Crown’s reliance on mistaken evidence to support his case on credibility. It is correct that Mr. R. wasmore accurate than Mr. K. and his mother about the date when the family returned from PEI in August 1980. It is true that the Crowninitially relied upon this disparity in the evidence to suggest that Mr. R. was wrong. But the Crown corrected that evidence in a post trialsubmission. So Mr. R.’s accuracy on this point was specifically drawn to the trial judge’s attention and clearly considered by him. [51] Mr.

R. contrasts his own detailed evidence with the vague “surrounding circumstance” evidence from L. K.. There are tworesponses to this. First, it is not surprising that an adult does not give detailed evidence of surrounding circumstances of events decadesold when he was a child. Justice McLachlin (as she then was) recognized this in R. v.

W.(R.) (1992), (SCC), 74 C.C.C.(3d) 134, (S.C.C.) at p. 144: It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult”or “child” standards – to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developmentsin the law’s approach to children’s evidence have been designed to dispel.

Every person giving testimony in court, of whatever age, is anindividual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development,understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred whenshe was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to herevidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters suchas time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [Emphasis added] [52] Secondly, Mr. K.’s evidence was not vague with respect to the events on which the charges themselves were based. The trialjudge said: [32] In analysing credibility of the witnesses in this case, I am also mindful that the events were alleged to have occurred more than30 years ago.

In this regard, the Complainant, L.K., was candid in not specifically recalling surrounding details, including dates andtimes. This is also understandable in the context of his age at the time. I found L.K. to be a credible witness. He was able to clearly giveevidence surrounding the sexual activity, including evidence that would be embarrassing to him, such as ejaculating for the first timefrom oral sex and placing his mouth on D.R.’s penis. I find that L.K. did not embellish his evidence.

There were no inconsistencies inhis evidence of sexual activity, nor was this evidence challenged in cross-examination. [53] This is not a case like Burke ( (SCC), [1996] 1 S.C.R. 474), where the trial judge’s credibility findings wereoverturned because the verdict was founded on evidence from a witness who had demonstrably exaggerated and fabricated numerousinstances of alleged abuse. The complainant’s evidence in Burke was also internally inconsistent and contradicted by other credibleevidence. [54] The trial judge’s finding in this case was that Mr.

R. was not credible in part because he tailored his testimony to that of theCrown in order to undermine the Crown’s evidence, (para. 46 above). There was ample evidence of this on the record. For example,Mr. R. described an instance when he was staying overnight in Mr. K.’s room in Truro. He had reached for his clothing bag in the darkon a bed in which Mr. K. was sleeping. Mr. R. explained that he mistook the bed that Mr. K. was sleeping in for the one that he wasexpected to use. Clearly, Mr. R. was implying that any touching felt by Mr. K. was inadvertent.

Likewise, he tried to suggest that Mrs.K.’s termination of the relationship with the family may have emanated from a sense of guilt because he claimed that she hugged andkissed him on the neck the night before (this latter detail not put to her in cross-examination). The trial judge was not persuaded thatMrs. K. would so publicly display her alleged sense of “guilt”. In each case, Mr. R. was trying to provide an innocent explanation forevents. The trial judge’s observation that Mr. R. accommodated his evidence to that of the Crown had a reasonable foundation.

Conclusion: [55] The evidence of similar facts in PEI was properly admitted. No improper use was made of this evidence by the trial judge. The trial judge’s reasons were not illogical. There was a reasonable basis for his findings which cannot be disturbed by this Court. Iwould dismiss the appeal.

Bryson, J.A. Concurred in: Saunders, J.A. Beveridge, J.A.