R. v. D.M.G., 2022 NSCA 42

Nova Scotia Court of Appeal Citation: R. v. D.M.G. , 2022 NSCA 42 Date: 20220414 Docket: CAC 505425 Registry: Halifax Between: D.M.G. Appellant/Respondent on cross-appeal v. Her Majesty the Queen Respondent/Appellant on cross-appeal Restriction on Publication: Sections 486.4 and 486.5 of the Criminal Code Judge: The Honourable Justice Cindy A. Bourgeois Appeal Heard: April 14, 2022, in Halifax, Nova Scotia Written Release May 26, 2022 Subject: Sexual interference; Sexual assault; Insufficiency of Reasons

Summary: The appellant, D.M.G., was charged with single counts of sexual interference (s. 151) and sexual assault (s. 271) under the Criminal Code of Canada , R.S.C. 1985, c. C-46 . The complainant was his 9-year-old cousin with whom he resided. At trial it was undisputed that there had been physical contact between the two. The complainant testified the appellant would hug her from behind and move her body against him. She said she could feel his “pee-pee” pressing against her “bum-bum”. They were always fully clothed. The appellant testified.

He acknowledged he frequently hugged the complainant and engaged in horseplay with her, but the contact was not sexual in nature or intent. He said the complainant was mistaken when she said she felt his penis pressing against her. He suggested she may have felt his cellphone, or a lighter, or perhaps his pocket knife. The trial judge found the appellant guilty of sexual interference, contrary to s. 151 of the Code . However, the trial judge then gave the appellant “the benefit of the doubt” and acquitted him of sexual assault, contrary to s. 271. The appellant appealed his conviction for sexual interference.

He said it was impossible to understand based on the record and his reasons, how the trial judge arrived at the differing verdicts. The appellant pointed to a number of other concerning aspects of the trial judge’s reasons. The Crown cross-appealed and challenged the appellant’s acquittal of the sexual assault charge. It said the trial judge ought to have entered convictions under both charges and then stayed the sexual assault conviction instead of entering an acquittal.

In their submissions on appeal, both parties were of the view that given the evidentiary record, and in particular the entirely overlapping nature of the conduct complained of, it was not possible for a conviction to be sustained for sexual interference, yet an acquittal be entered for sexual assault. Issues: a. What did the trial judge mean when he gave the appellant “the benefit of the doubt” regarding the sexual assault charge? b. Are the trial judge’s reasons sufficient to permit appellate review?

Result: Appeal allowed and both charges returned for a new trial. The Crown’s cross-appeal dismissed. When the trial judge gave the appellant “the benefit of the doubt” this meant he had a reasonable doubt in the legal sense. The Court declined to interpret the trial judge’s use of this wording in his oral reasons as merely common parlance. It held legal significance. The trial judge’s reasons were insufficient to permit effective appellate review.

It was unclear how the trial judge was able to convict the appellant of sexual interference, when he was not satisfied beyond a reasonable doubt with respect to the sexual assault offence. In these circumstances, the two verdicts could not be reconciled, and the trial judge provided no logical path in his reasons to ascertain how he reached the differing outcomes. 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 7 pages. Nova Scotia Court of Appeal Citation: R. v.

D.M.G. , 2022 NSCA 42 Date: 20220414 Docket: CAC 505425 Registry: Halifax Between: D.M.G. Appellant/Respondent on cross-appeal v. Her Majesty the Queen Respondent/Appellant on cross-appeal Restriction on Publication: Sections 486.4 and 486.5 of the Criminal Code Judges: Wood C.J.N.S., Scanlan and Bourgeois JJ.A.

Appeal Heard: April 14, 2022, in Halifax, Nova Scotia Written Release May 26, 2022 Held: Appeal allowed and cross-appeal dismissed, per reasons for judgment of Bourgeois J.A.; Wood C.J.N.S. and Scanlan J.A. concurring Counsel: Jonathan Hughes, for the appellant/respondent on cross-appeal Erica Koresawa, for the respondent/appellant on cross-appeal 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 victim 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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213,

271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4 , on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Reasons for judgment: [ 1 ] The appellant, D.M.G., was charged with single counts of sexual interference (s. 151) and sexual assault (s. 271) under the Criminal Code of Canada , R.S.C. 1985, c. C-46 . The complainant was his 9-year-old cousin with whom he resided. [ 2 ] It was undisputed that there had been physical contact between the two. The complainant testified the appellant would hug her from behind and move her body against him. She said she could feel his “pee-pee” pressing against her “bum-bum”. They were always fully clothed. [ 3 ] The appellant testified at trial.

He acknowledged he frequently hugged the complainant and engaged in horseplay with her but the contact was not sexual in nature or intent. He said the complainant was mistaken when she said she felt his penis pressing against her. He suggested she may have felt his cellphone, or a lighter, or perhaps his pocket knife. [ 4 ] The trial judge, Judge Michael Sherar of the Nova Scotia Provincial Court, found the appellant guilty of sexual interference, contrary to s. 151 of the Code .

However, the trial judge then gave the appellant “the benefit of the doubt” and acquitted him of sexual assault, contrary to s. 271. [ 5 ] The appellant appeals his conviction for sexual interference. He says it is impossible to understand based on the record and his reasons how the trial judge arrived at the differing verdicts. The appellant points to a number of other concerning aspects of the trial judge’s reasons. He also appeals the sentence imposed—a 24-month less-a-day period of incarceration followed by one year of probation and ancillary orders.

As will become apparent, it is not necessary to address the appropriateness of the sentence. [1] [ 6 ] The Crown cross-appeals and challenges the appellant’s acquittal of the sexual assault charge.

It says the trial judge ought to have entered convictions under both charges and then stayed the sexual assault conviction instead of entering an acquittal. [ 7 ] In their submissions before this Court, both parties are of the view that given the evidentiary record, and in particular the entirely overlapping nature of the conduct complained of, it was not possible for a conviction to be sustained for sexual interference, yet an acquittal be entered for sexual assault. [ 8 ] After having heard from the parties, the Court advised the appellant’s appeal was allowed, the conviction for sexual interference set aside and a new trial ordered on both counts.

We further advised that the Crown's cross-appeal was dismissed. Written reasons to follow were promised. These are the reasons. The trial judge’s reasons [ 9 ] The trial was not lengthy. The issues in dispute were also limited. As noted earlier, the appellant did not deny there had been physical contact. The defence focused upon whether the Crown had proven beyond a reasonable doubt the nature of the touching as required under s. 151 and s. 271 respectively.

In short, the defence submitted there was reasonable doubt as to whether the physical contact was “for a sexual purpose” or of “a sexual nature”. [ 10 ] Immediately following the submissions of counsel, the trial judge rendered his decision. His oral reasons were brief. I will set them out in their entirety: The Crown must prove their case beyond a reasonable doubt and we all know that the test is that enunciated by the Supreme Court of Canada and elsewhere in the Lifchus case. The trier of fact must be sure that the elements of the offence are made out. We have a triumvirate here.

We have [TG], the aunt of [DG], a 21-year old man and [T] is also the mother of [LG], a nine-year old child. [TG] was acting in loco parentis of her nephew, [DG], because he lived at home with her for a considerable period of time.

[DG’s] mom either was unable to take care of her son or made him available to stay with [T]. As [T] outlines, her nephew wasn't able to provide money for his living with her so he did a lot of babysitting. He babysat [L] and [L]’s sister. Many times [T] outlines that she had to go out, [DG] was called either over or while at the residence, and asked to take care of [L]. So there were numerous times that [L] was alone with her cousin [DG], who she considered a brother.

In 2018 she describes that her cousin would have her down in his bedroom which was in the basement of the family residence and that he would come from behind, hold a hug around her and that he would gyrate upon her. She was asked what was taking place. She described it as his peepee was touching her bum bum. When it was suggested as an alternative by Defence counsel that this was just horseplay, she denied that, including Mr. [DG] says there wasn't horseplay but he says there was a lot of contact. He hugged his cousin both in front and behind many times, both in the presence of [TG] and otherwise.

When [L] was asked whether this was all just an accident or so and that nothing really untoward happened, she replied: "That's a lie, that's a big lie.'' And I think [LG] is absolutely correct. A 21-year old man involved with a little nine-year old girl should not be grasping her from behind, either rubbing his crotch, his lighter, his pen knife into the genital area, the anus area, the rectal area of a nine-year old.

I can only presume, and I arrive at the inevitable conclusion, that it was done for a sexual purpose. [DG] did this time and again to satisfy himself, not to satisfy his little nine-year old cousin to make her feel happy. She spoke eloquently, describing time and again what occurred and I believe every word she said. I do not believe Mr. [DG] when he explains it was all in fun. He didn't do it, it couldn't be his penis. It could have been a lighter. There was contact. There was contact time and time again. And when was that contact? When was he hugging her from behind?

When there was nobody else around, nobody who could tell the story. [L], is she making this up? She was upset that it happened and that it could possibly continue to happen, but she was scared that her cousin, [DG] , could go to jail if she told. She wasn't out to set him up. She's still concerned that she'll have no contact with [DG] . [DG] was an adult. She was a little girl. There's no con c ept of consent. Quite frankly, sir, I find you guilty under the provisions of

Section 151. I'll give you the benefit of the doubt on the charge under

Section 271 but you're guilty under the provisions of 151. Every person who, for a sexual purpose, touches directly or indirectly with a part of a body or with an object, any part of the body of a person under the age of 16 years is guilty of an offence punishable on

summary conviction. I am sure, beyond a . reasonable doubt, that you committed that act, those acts, within the time period alleged and within the jurisdiction alleged by yourself upon the person of your cousin. You, sir, are guilty. (Emphasis added) Issues [ 11 ] To resolve the appeal and cross-appeal, there are only two issues that the Court needs to address, namely: 1. What did the trial judge mean when he gave the appellant “the benefit of the doubt” regarding the sexual assault charge? 2. Are the trial judge’s reasons sufficient to permit appellate review?

Analysis What did the trial judge mean when he gave the appellant “the benefit of the doubt” regarding the sexual assault charge? [ 12 ] At the heart of the Crown’s cross-appeal is its view the trial judge had conclusively determined all necessary elements of both offences had been established beyond a reasonable doubt. As a result, his failure to enter a conviction on the sexual assault charge was an error of law. The Crown says the correct approach was to enter convictions on both charges, and then stay the conviction under s. 271. [ 13 ] In response, the appellant says this Court should not accept the Crown’s

interpretation of the trial judge’s reasons, and specifically points to his identification of “doubt” in relation to the sexual assault charge. The appellant says the trial judge must have had a doubt about the nature of the touching that resulted in the acquittal. The Crown counters with the argument the trial judge was using the term “benefit of the doubt” in its colloquial manner, not in the legal sense of a reasonable doubt. [ 14 ] As the Supreme Court of Canada has recently reminded us, in reading trial reasons where there are multiple

interpretations, that which reflects a proper application of the law is to be presumed ( R. v. G.F. , 2021 SCC 20 at para. 79 ). I repeat the trial judge’s words for ease of reference: [DG] was an adult. She was a little girl. There's no con c ept of consent. Quite frankly, sir, I find you guilty under the provisions of

Section 151. I'll give you the benefit of the doubt on the charge under

Section 271 but you're guilty under the provisions of 151. Every person who, for a sexual purpose, touches directly or indirectly with a part of a body or with an object, any part of the body of a person under the age of 16 years is guilty of an offence punishable on

summary conviction. [ 15 ] I reject the Crown’s submission that the word “doubt” should be viewed as the trial judge engaging in common, non-legal parlance. The trial judge was in the midst of explaining why a conviction was entered in relation to the sexual interference charge, and why an acquittal followed under s. 271. To accept the Crown’s argument, this Court would have to find the trial judge, in the midst of delivering his verdict from the bench, did not intend use the word “doubt” in its ordinary legal sense.

[ 16 ] In my view, to adopt the Crown’s submission, this Court would have to accept the trial judge adopted a laissez-faire approach to his duty to give reasons. However, doing so would be contrary to the presumption the trial judge was applying the law correctly—that is, a “doubt” was a reasonable doubt relating to the s. 271 charge, resulting in the acquittal. [ 17 ] As noted earlier, the trial judge’s reasons were brief.

However, I accept that when he said the “benefit of the doubt” resulted in the appellant’s acquittal, it is because the evidence did not establish all of the necessary elements to sustain a conviction for sexual assault beyond a reasonable doubt. Are the trial judge’s reasons sufficient to permit appellate review? [ 18 ] An appellate court’s approach to reviewing the sufficiency of the trial judge’s reasons is well-established. In R. v. R.E.M. , 2008 SCC 51 , Chief Justice McLachlin writing for the Court, summarized as follows: [35] In

summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are deliv​ered (see Sheppard , at paras. 46 and 50; Morrissey , at p. 524).

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

(3) In determining whether the logical con​nection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial. This

summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles. [ 19 ] Having considered the evidentiary record, the submissions of the parties, and the trial judge’s reasons, I am of the view they are insufficient to permit effective appellate review. In reaching that conclusion, I note as follows: • As stated earlier, there was no dispute respecting the acts underpinning the offences charged. The appellant acknowledged he had frequently hugged the complainant.

The only issue in dispute was whether the Crown had established beyond a reasonable doubt the nature of the touching gave rise to culpability under s. 151 and s. 271 respectively; • The reasons suggest the trial judge was satisfied the touching was of such a nature that sexual interference was established. That is, the trial judge was satisfied beyond a reasonable doubt the appellant intended to directly or indirectly touch the complainant for a sexual purpose. Sexual interference is a specific intent offence ( R. v. B.J.T., 2019 ONCA 694 at para. 37 ; R. v.

N.F.D.W. , 2021 NSCA 91 at para. 44 ); • The appellant’s acquittal for sexual assault means the trial judge was not satisfied the Crown had proven all the necessary elements of that offence beyond a reasonable doubt; • It is helpful to set out the necessary elements for conviction under s. 271. These were recently summarized in R. v. Al- Rawi , 2021 NSCA 86 at para. 89 as follows: … • The actus reus of sexual assault requires the Crown to prove three things:

i) touching; ii) of an objectively sexual nature; iii) to which the complainant did not consent. The first two elements are assessed objectively; however, the third is assessed by virtue of the complainant’s subjective state of mind regarding the touching ( Ewanchuk at para. 25; G.F at para. 25). • At the mens rea stage, the Crown must establish (

i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting or was reckless or wilfully blind as to the absence of consent ( Ewanchuk at para. 42; R. v.

Barton , 2019 SCC 33 at para. 87 and G.F. at para. 25 ); … • Given touching was acknowledged and the complainant’s age foreclosed any argument relating to consent, the only element upon which the trial judge’s doubt could have rested was whether the touching was “of an objectively sexual nature”; • It is clear from the submissions of defence counsel at trial that the nature of the touching was the central issue from the appellant’s perspective. The main argument advanced was that it was not sexual in nature, and the appellant’s evidence should give rise to reasonable doubt.

The acquittal suggests the trial judge may have accepted this argument, but that is not clear. What is clear is that he had doubt about something, the existence of which precluded a conviction for sexual assault; and • It is impossible to reconcile, given the nature of the evidence and the main issue in dispute (the nature of the touching) how the trial judge reached different verdicts.

Having found a doubt regarding the nature of the touching for one charge, it is unclear how the same doubt did not give rise to an acquittal for the other. [ 20 ] It is not clear how the trial judge was able to convict the appellant of sexual interference, when he expressed doubt in relation to the sexual assault offence. There is no logical path that explains how these differing conclusions were reached. I agree with the appellant and the Crown that the factual circumstances underpinning this matter are such that the differing verdicts cannot be reconciled on the basis of the reasons.

In these circumstances, it was incumbent on the trial judge to explain how he was able to reach the differing

verdicts. The reasons are insufficient as they do not permit effective appellate review. Disposition [ 21 ] The appeal is allowed. The appellant’s conviction under s. 151 of the Code and resulting sentence are set aside. The Crown’s cross-appeal is dismissed. [ 22 ] The appellant acknowledged that should his appeal be successful, both charges ought to be returned for a new trial. Given the lack of clarity of the trial judge’s reasons, and that a conviction under s. 271 is a possible outcome on this record, I agree that both charges should be returned to the court below for a new trial. Bourgeois J.A. Concurred in: Wood C.J.N.S. Scanlan J.A.