Nova Scotia Court of Appeal
Citation: R. v. N.F.D.W., 2021 NSCA 91
Date: 20211006
Docket: CAC 504767
Registry: Halifax
Between:
N.F.D.W.
Appellant
v.
Her Majesty the Queen
Respondent
Restriction on Publication: s. 486.4 of the Criminal Code
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Judge: |
The Honourable Justice Cindy A. Bourgeois |
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Appeal Heard: |
October 6, 2021, in Halifax, Nova Scotia |
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Written Release: |
January 21, 2022 |
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Subject: |
Sexual assault, Sexual interference, assessment of credibility |
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Summary: |
After a three-day trial, the appellant, N.F.D.W., was convicted in the Supreme Court of Nova Scotia of one count of sexual interference and one count of sexual assault against his son. He was acquitted of the same charges in relation to his daughter.
The appellant appealed his convictions. |
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Issues: |
(1) Did the judge commit fundamental errors in his credibility assessment of the appellant?
(2) Were the judge’s reasons insufficient? |
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Result: |
A review of the trial judge’s reasons, in light of the entirety of the record, demonstrates error justifying the Court’s intervention. In particular, the judge:
(a) misapprehended the appellant’s evidence, which gave rise to a faulty credibility assessment;
(b) provided insufficient reasons relating to other factors for finding the appellant incredible; and
(c) failed to consider corroborative evidence that may have positively impacted upon the appellant’s credibility and relate it to the essential elements of the offences for which the appellant was convicted. The appeal is allowed, and the convictions are set aside. A new trial is ordered. |
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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 18 pages.
Nova Scotia Court of Appeal
Citation: R. v. N.F.D.W., 2021 NSCA 91
Date: 20211006
Docket: CAC 504767
Registry: Halifax
Between:
N.F.D.W.
Appellant
v.
Her Majesty the Queen
Respondent
Restriction on Publication: s. 486.4 of the Criminal Code
|
Judges: |
Farrar, Bourgeois and Van den Eynden JJ.A. |
|
Appeal Heard: |
October 6, 2021, in Halifax, Nova Scotia |
|
Written Release |
January 21, 2022 |
|
Held: |
Appeal allowed, per reasons for judgment of Bourgeois J.A.; Farrar and Van den Eynden JJ.A. concurring |
|
Counsel: |
Mark A. Bailey, for the appellant Glenn Hubbard, 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 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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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).
Reasons for judgment:
[1] After a three-day trial, the appellant, N.F.D.W., was convicted by Justice Gregory Warner of the Supreme Court of Nova Scotia of one count of sexual interference and one count of sexual assault against his son. He was acquitted of the same charges in relation to his daughter.
[2] The appellant challenged his convictions, and this Court heard the appeal on October 6, 2021. After hearing from the appellant and the Crown, the panel advised the appeal was allowed, with written reasons to follow. Further, the panel reserved its decision on whether a new trial should be ordered, or acquittals entered.
[3] What follows are my reasons for allowing the appeal and why a new trial should be ordered.
Background
[4] By way of family background, the appellant is the father of three children. His oldest, the male complainant, resides with his mother. The appellant and his son’s mother separated when the son was very young. The son visited with his father, his father’s new partner, and younger half-siblings. The Crown alleged at trial that the allegations contained in the Indictment took place during these visits. For the purposes of these reasons, I will refer to the male complainant as the “son” or the “brother”. He testified at trial, as did his mother.
[5] Following his separation from his son’s mother, the appellant entered into a new relationship. He had two children from that union - the female complainant and a younger child. None of the allegations involved the appellant’s youngest child. I will hereafter refer to the female complainant as the “daughter” or the “sister”.
[6] The appellant was charged that between the 1st day of January, 2011 and the 1st day of August, 2017:
1. he touched his daughter for a sexual purpose, contrary to s. 151 of the Criminal Code;
2. he touched his son for a sexual purpose, contrary to s. 151 of the Criminal Code;
3. he invited, for a sexual purpose, his daughter to touch the body of his son, contrary to s. 152 of the Criminal Code;
4. he invited, for a sexual purpose, his son to touch the body of his daughter, contrary to s. 152 of the Criminal Code;
5. he committed a sexual assault on his daughter contrary to s. 271 of the Criminal Code; and
6. he committed a sexual assault on his son contrary to s. 271 of the Criminal Code.
[7] The Crown chose to proceed by way of preferred indictment. At trial, the Crown’s theory was the appellant had engaged in sexually inappropriate conduct with his son and daughter on multiple occasions. It was alleged he sexually interfered with the children both separately and on occasions when they were together. The allegations included he directed the children to sexually touch each other.
Evidence at trial
[8] The Crown called five witnesses at trial; namely, the daughter, the son, their respective mothers, and the investigating officer. The appellant testified as the sole witness on his own behalf. I will reference particular aspects of the evidence in more detail in my analysis but will provide an overview in order to put matters in context.
[9] The daughter’s mother testified:
• She and the appellant had been involved in a common-law relationship of nearly nine years. They had decided to separate in July 2017 and advised their children of such. The daughter was six years old at that time. The mother moved to her best friend’s home nearby, with the appellant remaining in the family home;
• For a few days following the separation, the parties carpooled to their respective jobs (they worked for the same company, but in different locations). The appellant left his tablet in the car. The mother began reviewing the history on the tablet. While doing so, a message was received from a woman. The mother pretended to be the appellant and responded. It became apparent to her the appellant and the woman had been engaging in a sexual relationship. The woman was a friend of the mother. The mother was angry and proceeded to the appellant’s place of work to confront him;
• On the same day she found a substantial amount of “disturbing” pornography on the appellant’s tablet. All of the videos depicted incestual sexual encounters that she described as “family porn”;
• She had purchased the tablet for the appellant as a Christmas gift in either December 2015 or December 2016. It was the only tablet the appellant had when they resided together;
• The discovery and nature of the pornography on the tablet was such that she became concerned the appellant may have acted inappropriately toward their children. This was especially so because her daughter had a history of being “over-sexualized”. She described that from the age of two, her daughter had frequently “humped” her blanket, both during the day and at night when going to sleep, and she frequently suffered from a red and sore vagina;
• The mother spoke to her daughter the following day. Her daughter disclosed the appellant had touched her sexually. Her daughter made similar disclosures to the mother’s best friend. The mother immediately called the police;
• The mother kept the appellant’s tablet in her possession until she turned it over to the police;
• She and the appellant had occasionally watched adult pornography together during their relationship, but it was always in private and on his laptop, not the tablet;
• Because both she and the appellant had worked during the relationship, her daughter was babysat primarily by her best friend; and
• When her daughter was starting primary, she went to a babysitter named [J] who resided in [***]. After a couple of months, she discontinued using this childcare arrangement due to concerns surrounding the babysitter’s son [L]. She explained:
So she came home one day and she told me that she knew what a stripper was, and I looked at her and said, Excuse me? And she told me what it was. And I said, How did you find that out? And she said, [L] told me. He was watching it on his video games he was playing. [L] was [J]’s son where [the daughter] was babysat who was older. I addressed it with [J].
[10] The son’s mother testified:
• She had been involved in a relationship with the appellant until 2008, and their son was one year old when they separated;
• The son visited with the father, but there was no set schedule:
It wasn’t a schedule. Basically it was just whenever he wasn’t working or whenever … basically when I would go to get child support money he would … I would take [the son], he would stay for supper, stay for a couple of hours, and I would pick him up after work, a couple-of-hour visits, suppers, some overnights, not many, and some holidays. And then it became once a month I’d say.
• The son was okay with going to visit his father as long as he knew his mother was coming to get him and he would not be staying overnight;
• At around the age of six, the son began bed-wetting as a symptom of later diagnosed diabetes;
• The son was physically able to use the bathroom when he was between three and four years of age, but she would check to see if he had flushed the toilet or urinated on the seat;
• She learned the details of the allegations the daughter was making against the appellant from the daughter’s mother. She visited with the daughter’s mother. The daughter’s mother had made detailed notes of the allegations the daughter had made to both her mother and the mother’s friend;
• She took a photograph on her cellphone of the notes the daughter’s mother had prepared, and later reviewed the allegations with her son in significant detail. This included allegations he had engaged in sexual contact and touching with his sister. In response to being told about his sister’s allegations, she reported her son’s reaction:
And he just kept putting his head in his hands. And he kept saying, I don’t want to believe this, I don’t want to believe this, but my sister could never make something like that up, or would lie about this or … just very confused. He was shocked.
• When asked whether the appellant had done anything to him, the son initially replied in the negative. Later in the conversation, the son disclosed the appellant had touched his penis in the bathroom when he was younger. He described the contact as a “flick” or a “poke”; and
• After having been told of his sister’s allegations, her son began having nightmares. He had never experienced nightmares previously, including when he had been visiting with the appellant.
[11] The daughter was nine years old when she testified. A videotaped statement she had given to investigators on August 3, 2017 was entered into evidence pursuant to s. 715.1 of the Criminal Code. In the video, adopted by the daughter at trial, she advised:
• She was six years old and had just finished primary;
• She knew she was meeting with the police officer because her daddy had been teaching her stuff that was “illegal”;
• Her mother had told her that her daddy teaching her to “hump” and watching bad videos was “illegal”;
• Her daddy would make her watch videos on his tablet that were not nice. The videos had naked people in them that would kiss each other’s private parts, and sometimes they would colour on each others bums and draw smiley faces on the bums. The people in the videos looked like teenagers. Sometimes she would watch the videos just with her daddy in the living room or in a tent, and sometimes her brother would be there when they watched the videos. Sometimes her mommy was home when they watched the videos and sometimes she was not;
• She and her daddy would also play a game on his tablet. When her brother was visiting, he would play it too. The game was about a King who would get people to kiss each other’s bums. Daddy would play the King. She would play the little village girl who wanted to become a princess and her brother would play a little village boy. To become a princess she had to make her character kiss other people’s bums;
• Her daddy taught her to hump when she was around two and he recorded it on his tablet. The same day he taught her to hump, her daddy got her and her brother to colour on his bum with crayons, and put their bums together;
• Her daddy touched her private parts, and daddy asked her to “wiggle” his penis. Her daddy also put his fingers down her throat; and
• Her daddy told her brother to touch her private parts and he did. Her brother also stuck his fingers up her nose and down her throat.
[12] In her evidence at trial, the daughter adopted the contents of her video statement and further advised:
• Her father had touched her private parts many times;
• Her brother was present on occasions when her father had touched her private parts and had seen the touching. Her brother had also touched her vagina in the presence of her father;
• She confirmed the videos she had watched were on her father’s tablet;
• She had touched her father’s penis only “once or twice”, but her brother was not present on these occasions. She could not recall if she touched his penis directly or through his clothing;
• She confirmed her father had recorded on his tablet the occasion when he had taught her to hump; and
• She never watched videos or played games on the tablet alone with her brother, her father was always present.
[13] The son was thirteen years old when he testified at trial. His evidence included:
• He lived with his mother and grandfather and was in Grade 8;
• After having become aware of his father inappropriately touching his sister, he disclosed to his mother that his father had also touched him;
• Hearing from his mother what his father had done to his sister made him “fully realize” what his father had done to him was wrong;
• His father touched his penis with his fingers on a number of occasions when he was visiting. This always occurred when he went to the bathroom. His father would wipe his penis after he finished “peeing” and would then touch his penis. He was around five years of age when the touching occurred. When he told his father to stop, he did;
• When he was five he would sometimes have a problem of hitting the seat when he went to “pee”;
• There were no other instances of inappropriate touching or behaviour between himself and his father;
• When he visited at his father’s home, his father’s partner (his sister’s mother) was “mostly home”;
• He never saw his father inappropriately touch his sister and he denied ever being asked to touch, or touching his sister inappropriately;
• He denied ever watching sexually explicit videos at any time with his father or sister;
• He denied having knowledge of, or playing a video game involving, a little village girl;
• He denied ever having drawn on his father’s bum alone or with his sister; and
• He denied ever having stuck his fingers up his sister’s nose, or down her throat.
[14] I will return to further aspects of the son’s evidence when discussing the trial judge’s credibility analysis.
[15] The Crown called a police officer with the Halifax Regional Police. She testified:
• In 2017, she was assigned to the Sexual Assault Investigative Team of the Major Crime Unit and was the lead investigator relating to the allegations pertaining to the appellant;
• After the children and their mothers had been interviewed by police, two search warrants were obtained as part of the investigation. The first was for a tablet, the second was for the appellant’s home in order to search for any other computer devices;
• The officer obtained the tablet directly from the daughter’s mother. This occurred within days of the police being contacted by the mother. It was turned over for technical analysis. No evidence of adult or child pornography was found on the tablet, nor anything else relevant to the investigation; and
• The search of the appellant’s home resulted in the seizure of a laptop and a SD card. No child pornography was found. The laptop contained adult pornography.
[16] The appellant gave evidence at trial. He testified:
• He had touched his son’s penis when he was around the age of five. He explained:
He was potty trained. He was able to obviously get on the toilet on his own. He did have some times where he was spraying on the toilet seat a lot and it was hitting the toilet seat and hitting himself at times. I had … my significant other was having issue with the fact that every time she went to the bathroom she didn’t think to look at the toilet seat and was sitting in the pee so I was monitoring him and trying to make sure that he was cleaning himself properly … .
The only times I can remember doing it, I would take a couple pieces of toilet paper, I would fold them over in my hand and I would tap the end of his bird if he had … I’m sorry, penis, if he had a drip or two. I would show him how you would wipe the seat and there was a couple of times where he’d hit the seat and it had sprayed back on him so I showed that you had to clean between yourself as well. That was the only contact I’ve ever made with [the son’s] penis.
• He denied touching his son for a sexual purpose, but rather for hygiene;
• With respect to his daughter, the appellant described her humping behaviour, and that her mother had taken her to the doctor. Following the appointments, he understood the behaviour was not normal, but also not abnormal and, as parents, they should monitor the situation. Although he was uncertain where this behaviour came from, he thought she may have been exposed to things at a babysitter’s house;
• He also described an incident when his daughter was five or six when she referenced knowing what a “stripper” was. Upon questioning, she advised that a boy, [L], had told her that a “stripper” was a woman who took her clothes off and danced for men. He indicated [L] was the son of the babysitter, [J], who resided in [***]. He expressed concerns that his daughter had also recently been talking about “bums”, and people touching other people’s “bums”, and she reported that [L] and the other boys at the babysitter’s talked about “bums” a lot;
• He explained the humping behaviour began when his daughter was around two to three years old, but that her talking about bums was a totally different time frame, when she was five or six and was going to the babysitter in [***];
• He denied ever sexually touching his daughter, or showing her inappropriate videos;
• He denied ever seeing or directing his son to sexually touch his daughter;
• He denied ever playing a video game with his children where people would kiss each other’s bums;
• He denied teaching his daughter or son how to hump;
• He denied having either child touch him sexually; and
• He advised he had not seen any of his children since August 2017.
The Trial Decision
[17] The trial judge rendered an oral decision shortly after the conclusion of submissions. He reviewed the evidence. The trial judge reviewed the legal principles, which, other than one error to be discussed below, were correctly set out. He then undertook his credibility analysis.
[18] The trial judge found both complainants to be credible. He found the appellant to be lacking in credibility. Because of the direct contradiction between the evidence of the daughter and the son regarding the son’s participation in the activities in question, the trial judge was left with a reasonable doubt regarding her evidence. Describing it as “one of the hardest decisions I’ve had to make” he reluctantly acquitted the appellant of the charges involving his daughter. Those acquittals have not been challenged on appeal.
[19] The trial judge said he was not left with a reasonable doubt regarding the counts relating to the son and found the appellant guilty of both sexual interference and sexual assault. His reasons will be set out below.
Issues
[20] On appeal, the appellant raises two complaints. He says the judge committed fundamental errors in his credibility assessment, and that his reasons are insufficient.
Analysis
[21] I am satisfied a review of the trial judge’s reasons, in light of the entirety of the record, demonstrates error justifying this Court’s intervention. In particular, the trial judge:
(a) misapprehended the appellant’s evidence which gave rise to a faulty credibility assessment;
(b) provided insufficient reasons relating to other factors for finding the appellant incredible; and
(c) failed to consider corroborative evidence that may have positively impacted upon the appellant’s credibility and relate it to the essential elements of the offences for which the appellant was convicted.
[22] Before looking at the trial judge’s credibility assessment and his reasons relating thereto, it is useful to set out the relevant legal principles. In R. v. Stanton, 2021 NSCA 57, Justice Derrick summarized the leading principles relating to the assessment of credibility at para. 67, notably:
• The focus in appellate review “must always be on whether there is reversible error in the trial judge’s credibility findings”. Error can be framed as “insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict” (R. v. G.F., 2021 SCC 20 at para. 100).
• Where the Crown’s case is wholly dependent on the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in the context of all the rest of the evidence (R. v. R.W.B., [1993] B.C.J. No. 758 at para. 28 (C.A.)).
• “Credibility findings are the province of the trial judge and attract significant deference on appeal” (G.F. at para. 99). Appellate intervention will be rare (R. v. Dinardo, 2008 SCC 24 at para. 26).
• Credibility is a factual determination. A trial judge’s findings on credibility are entitled to deference unless palpable and overriding error can be shown (R. v. Gagnon, 2006 SCC 17 at paras. 10–11).
• “Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events…” (Gagnon at para. 20).
• The exercise of articulating the reasons “for believing a witness and disbelieving another in general or on a particular point … may not be purely intellectual and may involve factors that are difficult to verbalize … In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization” (R. v. R.E.M., 2008 SCC 51 at para. 49).
• A trial judge does not need to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence (R.E.M. at para. 56).
• “A trial judge is not required to comment specifically on every inconsistency during his or her analysis”. It is enough for the trial judge to consider the inconsistencies and determine if they “affected reliability in any substantial way” (R. v. Kishayinew, 2019 SKCA 127 at para. 76, Tholl J.A. in dissent; upheld 2020 SCC 34 at para. 1).
• A trial judge should address and explain how they have resolved major inconsistencies in the evidence of material witnesses (R. v. A.M., 2014 ONCA 769 at para. 14).
[23] With respect to a trial judge’s reasons, the Supreme Court in G.F., reiterated that appellate courts should not unduly scrutinize, particularly where credibility findings are in question:
[76] Despite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged.
…
[79] To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review: Sheppard, at para. 54. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 10-12, citing R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 523-25. It is only where ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated: Sheppard, at para. 46. An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons are ambiguous — the appeal court must determine the extent and significance of the ambiguity.
(Emphasis added)
[24] As the above principles highlight, this Court must approach a review of the trial judge’s credibility findings with deference. His reasons are not to be parsed, but read as a whole and in light of the evidentiary record.
[25] I will begin with the trial judge’s treatment of the appellant’s evidence and his credibility analysis. The trial judge’s recounting of the appellant’s evidence was brief. He said:
[The appellant] testified. He was aware of the humping issue. He described what he understood the doctor [was] saying, that it was normal … it was not normal but not abnormal and simply keep an eye on it. He said there were issues with daycare. He appeared to the Court to be suggesting that [L], the son of [J], was the source of the over-sexualization. Most of the rest of his evidence was a simple denial of the accusations against him, that not being abnormal.
(Emphasis added)
[26] As noted earlier, the trial judge did not find the appellant to be credible. When assessing his credibility in relation to the charges pertaining to the son, the trial judge said:
[The appellant’s] evidence was problematic in several respects. I found it to be self-serving. Among the problematic aspects of it was his suggestion or attempt to point the finger to [L], son of [J], for [the daughter’s] over-sexualization for which he was aware Mom was attending doctors for advice in respect of. For those reasons I did not accept the accused’s evidence at all and it did not cause me any doubts with respect to the evidence I did accept which is that of [the son]. As a result of that, and applying that to the essential elements of the count number two and six, the elements of which overlap in this respect, I find the accused guilty.
(Emphasis added)
[27] The trial judge’s credibility assessment of the appellant was even shorter when considering the allegations pertaining to the daughter:
I do not believe Dad’s simple, short, self-serving denial or his lame conjecture about [L] being the cause of her sexualization.
(Emphasis added)
[28] It is helpful at this point to consider the objective of the credibility assessment in relation to the charges involving the son. There was no dispute that the appellant had touched his son’s penis. The critical issue for determination was whether the purpose or nature of the touching was sexual. The appellant said it was not. The Crown asserted it was. Assessing the credibility of the son and the appellant was an essential task for the trial judge.
[29] Besides noting the appellant’s evidence was self-serving, and his “lame” explanation for the daughter’s over-sexualization, the trial judge gave no other reason for not accepting his evidence. He gave no other explanation why the appellant’s evidence—that he was merely helping his son with hygiene in the bathroom—did not give rise to a reasonable doubt regarding the sexual purpose or nature of the touching.
Misapprehension of evidence
[30] In my view, the trial judge’s credibility assessment relating to the appellant was premised on a misapprehension of evidence. I will explain.
[31] Throughout the trial testimony, both the appellant and the daughter’s mother used the term “over-sexualization” only in relation to the humping behaviour. Both said it began when the daughter was around the age of two. Both also referenced the daughter attending a babysitter in [***] for a few months when she started primary (at age five), and there being concerns regarding her exposure to an inappropriate video game by the babysitter’s son. In cross-examination, the appellant made clear that these concerns arose in two different time frames. This was entirely supported by the evidence of the mother.
[32] Although the appellant questioned whether the humping behaviour could have been something learned earlier at a babysitter’s home, the only behaviour he related to “[L]” was his daughter’s reference to “strippers” as well as her incessant talking about “bums”. Further, it was only the humping behaviour that prompted a visit to the doctor, not any of the other concerns.
[33] I repeat the trial judge’s reasons for rejecting the appellant’s evidence:
[The appellant’s] evidence was problematic in several respects. I found it to be self-serving. Among the problematic aspects of it was his suggestion or attempt to point the finger to [L], son of [J], for [the daughter’s] over-sexualization for which he was aware Mom was attending doctors for advice in respect of. For those reasons I did not accept the accused’s evidence at all and it did not cause me any doubts with respect to the evidence I did accept which is that of [the son]. As a result of that, and applying that to the essential elements of the count number two and six, the elements of which overlap in this respect, I find the accused guilty.
(Emphasis added)
[34] A review of the evidence satisfies me the appellant did not “point the finger to [L]” as a source of the daughter’s humping behaviour. The appellant was blaming [L] for exposing his daughter to inappropriate video games (entirely consistent with the mother’s evidence) and the source of her frequent talk about “bums”. Of course it would be “lame” as suggested by the trial judge for the appellant to blame [L], whose mother started babysitting the daughter when she was five, for behaviour that began years earlier. However, the trial judge was mistaken about the appellant’s evidence, and this error went to the heart of his credibility assessment. On this basis alone, I would allow the appeal.
Other reason for finding the appellant incredible
[35] The trial judge’s other reason for finding the appellant to lack credibility—his evidence was self-serving—is also troublesome. The trial judge does not explain what made the appellant’s testimony self-serving and how it gave rise to a negative credibility finding. Although it is not clear, from his brief review of the appellant’s evidence, one could surmise the trial judge found his explanation of what the doctors said about the humping behaviour to be self-serving. Further, the trial judge’s reference to the appellant’s evidence primarily being a “simple denial of the allegations” could possibly be why he found it to be self-serving. One is left uncertain, based solely on the trial judge’s reasons, why the appellant’s evidence was found to be self-serving and detracting from his credibility.
[36] Further, a review of the evidentiary record does not assist in understanding why the trial judge reached this conclusion. The appellant’s evidence regarding what he understood the doctors had advised about the humping behaviour was consistent with the mother’s. Without more explanation, it would be troubling to find an accused’s evidence to be self-serving simply because it corresponded with what another witness had said. Given the presumption of innocence, it would be equally problematic for an accused’s simple denials, without further context, to be determined to be self-serving and a negative indicator of credibility.
Failure to consider potentially corroborative evidence
[37] The trial judge’s credibility assessment in relation to the appellant was also flawed due to his failure to consider evidence that was potentially supportive of the defence, and capable of raising a reasonable doubt regarding the purpose or nature of the touching. The appellant testified his purpose for touching his son’s penis was for hygienic purposes.
[38] He said the son was, on occasion, leaving “pee” on the toilet seat and he had noted his son’s underwear sometimes smelled of urine. He said this was why he was providing assistance to him in the bathroom. This explanation went to the crux of whether the appellant had touched the son for a sexual purpose (a required element of s. 151) and/or he had touched the son in a sexual nature (a required element for a conviction under s. 271).
[39] It should be remembered that the time frame of the touching was not certain. Both the son and the appellant thought it was when the son was “around” five years of age. They both testified the touching only took place in the bathroom, and that it was always associated with the son urinating. The son testified that as part of the touching, the appellant would wipe his penis after he had finished urinating. The son confirmed that sometimes he would leave “pee” on the seat when he went to the bathroom. His mother also testified she would check after he went to the bathroom when he was younger because he would sometimes leave urine on the seat. Further, the mother said that around the age of six, the son was bed-wetting due to complications of diabetes.
[40] From his reasons it is not clear whether the trial judge considered this evidence. It was not referenced either in his review of the trial evidence or as part of his credibility analysis. This evidence, if accepted, was corroborative of the appellant’s explanation for why he touched his son’s penis and supportive of his assertion that the touching was not for a sexual purpose or of a sexual nature. The appellant was entitled to know why the trial judge found him not to be credible and had no doubts as to the nature of the touching in the face of this evidence.
[41] The trial judge’s reasons do not permit this Court to ascertain whether he considered this corroborative evidence and, if so, how he related it to the essential elements to sustain the convictions. In his reasons the trial judge said:
The first two counts in the Indictment are that the … allege that the accused did, for a sexual purpose, first touch [the daughter] and secondly touch [the son]. The offences commonly described as sexual interference requires that the Crown prove beyond a reasonable doubt that the accused touched, for a sexual purpose, any part of the body of a person under the age of 16 years directly or indirectly with a part of the body or with an object.
[42] With respect to the allegation of sexual interference with the son, the trial judge noted:
I’m going to deal first with the counts number two and six which deal with [the son]. The first being that the accused did for a sexual purpose touch [the son] with a part of his body for a sexual purpose. There is no dispute and the evidence confirms that the accused does not deny, in the bathroom, touching [the son]’s penis. As his counsel indicated in closing submissions, the dispute is that it was for a sexual purpose.
Defence counsel asks me to find, based on the combination of the circumstances, the totality of the evidence, and in particular upon the evidence of [the appellant] and [the son], that somehow [the son] misunderstood the purpose of his touching or that I should find a reasonable doubt that the accused, for whatever reason, touched [the son] for a sexual purpose. A sexual purpose, I should probably say, is a term that includes for sexual gratification. It’s a crime of general intent, not specific intent.
(Emphasis added)
[43] The trial judge then proceeded to undertake a lengthy assessment of the son’s credibility. Immediately thereafter, the trial judge provided his reasons for rejecting the appellant’s evidence (as previously set out) and convicted him of both sexual interference and sexual assault. However, given the potentially corroborative nature of the evidence presented at trial, more was required.
[44] Contrary to the trial judge’s assertion, the offence of sexual interference is not a general intent offence. In R. v. B. J. T., 2019 ONCA 694, the Ontario Court of Appeal held:
37 The offence of sexual interference under s. 151 of the Criminal Code is made out when the accused, for a sexual purpose, directly or indirectly touches the body of a person who is under 16 years old. It is a specific intent offence, meaning that the offender must specifically intend that the touching is for a sexual purpose. The offender may also have another purpose or reason for the touching, but if he or she also has a sexual purpose, the offence is made out.
(Emphasis added)
See also R. v. Bone, 1993 CanLII 14711 (M.B.C.A.); R. v. Michel, 1994 CanLII 1336 (B.C.C.A.); and R. v. Scullion, 2009 ABCA 291.
[45] The trial judge did not make a specific finding that when he touched his son, the appellant did so with a sexual purpose. He did not explain how, in light of the evidence supportive of the appellant’s assertion it was purely for hygiene, he was left without reasonable doubt.
[46] Further, the trial judge did not set out the elements for a conviction under s. 271. In particular, there is no ability for this Court to assess whether the trial judge considered the totality of the evidence when he concluded the Crown had established the touching was of a sexual nature.
[47] For the reasons above, the appeal should be allowed and the convictions set aside.
Acquittal or new trial?
[48] Having set aside the convictions, the panel reserved decision on whether acquittals should be entered, or, a new trial ordered. With reluctance, I would order a new trial.
[49] I note in his Notice of Appeal and written submissions, the appellant’s sought remedy was for the convictions to be overturned and a new trial ordered. The possibility of an acquittal was only raised in the course of the appeal as a result of questions from the panel.
[50] Although the evidentiary record here could lead a trial judge to find a reasonable doubt regarding the purpose and nature of the touching and enter acquittals, that is not what this Court should consider in determining the appropriate outcome. Rather, the question is whether a conviction for either offence can be sustained on the record before us.
[51] Based on the evidentiary record, it would be open to a trial judge to infer from the circumstances that the touching was for a sexual purpose, notwithstanding the appellant’s assertion to the contrary. Further, a finding that a reasonable person would consider the touching to be sexual in nature is a possible outcome on this record. Although such conclusions would require a trial judge to address the potentially corroborative evidence and explain why it did not raise a reasonable doubt as to the appellant’s guilt, they are not precluded as possibilities on the record here. In such circumstances, the entering of acquittals would be inappropriate.
Disposition
[52] For the reasons outlined above, I would allow the appeal and set aside the convictions. I would order a new trial. It is for the Crown to decide whether that will be pursued.
Bourgeois J.A.
Concurred in:
Farrar J.A.
Van den Eynden J.A.