Citation: R v CJ, 2018 MBCA 65 Date: 20180604

Docket: AY16-30-08625

IN THE COURT OF APPEAL OF MANITOBA

Coram: Madam Justice Holly C. Beard

Mr. Justice Marc M. Monnin

Madam Justice Jennifer A. Pfuetzner B E T W E E N :

) Z. M. Jones

HER MAJESTY THE QUEEN ) for the Appellant

)

Respondent ) C. R. Savage

) for the Respondent

- and - )

) Appeal heard:

C. J. ) December 1, 2017 )

(Young Person) Appellant ) Judgment delivered:

) June 4, 2018

NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any

information that could identify a person as having been dealt with under the

Youth Criminal Justice Act (see section 110(1)).

NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any

information that could identify any child victim or child witness that is

connected with an offence committed by a young person that is being dealt with

under the Youth Criminal Justice Act (see section 111(1)).

BEARD and MONNIN JJA

Introduction

[1] The accused, a 17-year-old young offender, was charged with one

count of sexual interference, one count of invitation to sexual touching and

one count of sexual exploitation. After a short trial, in brief oral reasons, the

trial judge convicted him on the first two counts and stayed the third. He

imposed a sentence of probation.

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[2] The accused appeals the convictions. For our purposes, the only

ground of appeal that need be considered is that the trial judge

misapprehended the evidence leading to an unfair trial and a miscarriage of

justice.

[3] For the reasons that follow, we agree that the trial judge’s analysis

of the evidence led to an unfair trial and that a new trial should be ordered.

Background

[4] The complainant, a six-year-old child, her mother and her two-year-

old sister were visiting her mother’s childhood friend, S. J. The accused, then

17 years old, was the foster son of S. J.’s mother and was staying at S. J.’s

house on the day in question. The complainant and her sister were sent off to

a nearby park with the accused. They were gone for approximately

45 minutes. A few minutes after their return, the younger sister was heard by

some of the adults present to say, “CJ [the accused], da, perogy.” The

mother’s evidence was that she and her children referred to their vaginas as

“perogy”. The child accompanied the words with gestures around her

genitalia.

[5] The complainant left shortly thereafter with her mother and sister

and, on the way home, was asked by her mother if anything had occurred at

the park. Initially, the complainant referred to it being a secret but, on further

questioning, said that the accused had “showed her, [his] wiener and asked

her to touch him” and also that he had licked her vagina. The mother returned

immediately to her friend’s house and confronted the accused, who denied

that anything untoward had happened at the park.

[6] A few weeks after the incident, the complainant gave a videotaped

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interview to the police which was entered at trial pursuant to section 715 of

the Criminal Code. In that videotaped statement, she said that the accused

had made her touch his penis and had licked her vagina. She stated that this

occurred at the monkey bars, one of the two play structures in the park, the

other one being a set of swings. When cross-examined at trial on the

statement, she remembered little of what had occurred.

[7] The accused testified at trial and maintained his denial that anything

untoward had occurred between him and the complainant other than he

testified that:

Q Okay. Did [B] do -- make anything in the sand?

A Well she made a tail and she said [CJ] look, it looks like a

wiener. So I said [B] don’t talk like that. That’s not right.

Q Excuse me can you say that again? You played what?

A (Inaudible) she said, come [CJ] look, it looks like a wiener.

Q Oh okay.

A So I said [B] don’t talk like that. That’s not right. And she

said it feels like one too. And (inaudible) felt [J’s] so I told

her not to talk like that anymore. So I went over, broke the

pile of sand. And lifted her up out of the sand box. Or sand

pit. And we all walked over to the teeter totters.

[8] In cross-examination, he clarified that to say “it just looked like a

big pile of sand.” He later indicated that “[the complainant] seemed kind of

mad that I broke it.” He also said that the complainant seemed to stay a little

annoyed at him which he assumed was because he had broken the pile of sand.

When asked why he had not advised her mother that she had been speaking

inappropriately, he testified that he did not wish to get her into trouble and be

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subjected to punishment.

[9] The accused confirmed under cross-examination that he did not tell

S. J. or the complainant’s mother about the “penis in the sand” and that the

first time it was mentioned was when he gave his statement to the police some

time later.

[10] The trial judge questioned the accused at some length, including

about the sand under the play structure. The accused described it to the trial

judge “like a sandbox” where the top layer was dry but, if you dug a bit deeper,

it was wet. When asked how the complainant could make a structure from

that kind of sand, his answer was, “piled up, like she just kind of pulled it all

together and then kind of pushed”. When asked about its size, the trial judge

asked him to compare it to a water jug found in the courtroom and the

following exchange took place:

Q Up to here? So it looked like that? So it was -- the

dimensions would be similar. This is about six inches high

and three inches wide. Is that what it was like?

A Kind of.

Q Pardon?

A Kind of, yeah.

[11] He was further questioned by the trial judge as to whether the

complainant’s hands had been dirty:

Q With her hands? So her hands must have been pretty dirty

then when she finished doing that?

A (Inaudible) told her to wipe it off on the grass.

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[12] The only evidence with respect to the complainant’s state of

cleanliness that day was that given by her mother, who testified that she gave

the complainant a bath that night and that there was no indication that anything

had happened to her. She was not asked if there were significant amounts of

sand or dirt on the complainant’s hands or on her body.

The Trial Judge’s Decision

[13] As indicated, the trial judge gave brief oral reasons for his decision.

He first reviewed the evidence and then proceeded to perform a W(D) analysis

(see R v W(D), [1991] 1 SCR 742). It is the first part of the analysis, his review

of the accused’s evidence, which is relevant for the purposes of this appeal.

[14] The trial judge indicated that he did not believe the accused and

explained that his reasons for doing so were twofold.

[15] Firstly, he did not accept the accused’s comment that the

complainant was angry with him because he had destroyed the mound as the

explanation was made at too late a stage and was not made when given an

opportunity to do so by S. J. Further, he found it unreasonable because there

was no “collateral evidence as to how he knew [that she was angry]” which,

in the trial judge’s view, impacted on his credibility.

[16] Secondly, he did not believe the accused’s evidence that the

complainant had constructed the structure in the sand, as described, because,

in the trial judge’s view, the sand under the play structure was not of the type

to have allowed it to be moulded by the complainant. The accused’s response

that the complainant may have dug a little deeper into wet sand was rejected

by the trial judge as being inconsistent with the complainant’s state of

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cleanliness when she returned home. In the trial judge’s estimation, the

complainant would have been filthy at the time when she returned to her

mother and there was no comment from her mother about that being the case.

In summary, he found that the explanation given by the accused as to the

construction of the structure in the sand was not believable and that affected

his assessment of the accused’s credibility.

[17] The trial judge found the evidence from the statement of the

complainant, which he stated was clear and straightforward, as well as

forthright, to be sufficient to convict.

Issues

[18] There are two issues to be determined on this appeal:

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

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

in his reasoning process which resulted in his convicting the

accused.

[19] It is only if those two issues are answered in the affirmative that it

can be said that the accused has not received a fair trial and was the victim of

a miscarriage of justice.

The Law

[20] The accused’s appeal is based on section 686(1)(a) of the Criminal

Code, which reads as follows:

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Powers

686(1) On the hearing of an appeal against a conviction or

against a verdict that the appellant is unfit to stand trial or

not criminally responsible on account of mental disorder,

the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground

that it is unreasonable or cannot be supported

by the evidence,

(ii) the judgment of the trial court should be set

aside on the ground of a wrong decision on a

question of law, or

(iii) on any ground there was a miscarriage of

justice.

[21] This appeal is not one of an unreasonable verdict which cannot be

supported by the evidence. There was other evidence before the trial judge

that, if believed, was sufficient to support a conviction. Rather, the issue is

whether, in his analysis of the accused’s evidence, the trial judge

misapprehended it in a manner which led to a faulty reasoning process and an

unfair trial.

[22] The leading case is R v Morrissey (1995), 97 CCC (3d) 193

(Ont CA), where Doherty JA explained as follows (at p 221):

When will a misapprehension of the evidence render a trial unfair

and result in a miscarriage of justice? The nature and extent of the

misapprehension and its significance to the trial judge's verdict

must be considered in light of the fundamental requirement that a

verdict must be based exclusively on the evidence adduced at trial.

Where a trial judge is mistaken as to the substance of material parts

of the evidence and those errors play an essential part in the

reasoning process resulting in a conviction, then, in my view, the

accused's conviction is not based exclusively on the evidence and

is not a “true” verdict. Convictions resting on a misapprehension

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of the substance of the evidence adduced at trial sit on no firmer

foundation than those based on information derived from sources

extraneous to the trial. If an appellant can demonstrate that the

conviction depends on a misapprehension of the evidence then, in

my view, it must follow that the appellant has not received a fair

trial, and was the victim of a miscarriage of justice. This is so even

if the evidence, as actually adduced at trial, was capable of

supporting a conviction.

[emphasis added]

[23] The decision in Morrissey was confirmed by the Supreme Court of

Canada’s decision in R v Lohrer, 2004 SCC 80, as setting a stringent standard.

As Binnie J said (at paras 2, 8):

The misapprehension of the evidence must go to the substance

rather than to the detail. It must be material rather than peripheral

to the reasoning of the trial judge. Once those hurdles are

surmounted, there is the further hurdle (the test is expressed as

conjunctive rather than disjunctive) that the errors thus identified

must play an essential part not just in the narrative of the judgment

but “in the reasoning process resulting in a conviction”.

In our view, the statement of Rothman J.A. in C. (R.) [R v C(R)

(1993), 81 CCC (3d) 417 (SCC)] and the statement of Doherty J.A.

in Morrissey both correctly emphasize the centrality (or “essential

part”) the misapprehension of the evidence must play in the trial

judge’s reasoning process leading to the conviction before the trial

judgment will be set aside on appeal on that basis.

[24] The governing principles which flow from Morrissey and Lohrer

were discussed by Watt JA in R v Mahmood, 2011 ONCA 693 (at paras 46-

48):

A misapprehension of evidence may involve a failure to take into

account an item or items of evidence relevant to a material issue,

or it may have to do with a mistake about the substance of the

evidence. A misapprehension of evidence may also reflect a

failure to give proper effect to evidence: R. v. Morrissey (1995),

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22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), at p. 538 O.R.

Every misapprehension of evidence does not render a trial unfair

or result in a miscarriage of justice. An appellate court must

determine the nature and extent of an alleged misapprehension and

its significance to the decision under review, whether a

determination of admissibility or a final conclusion about guilt.

Rulings on admissibility and final verdicts must be based

exclusively on evidence adduced at trial: Morrissey, at p. 541 O.R.

The standard applied where an appellant advances

misapprehension of evidence as a ground of appeal is stringent.

The misapprehension of evidence, when advanced as a ground to

impeach a final verdict, must be material, not merely peripheral to

the reasoning of the trial judge, in other words, the reasons must

play an essential part in the reasoning process resulting in a

conviction, not just in the narrative of the judgment: R. v. Lohrer,

[2004] 3 S.C.R. 732, [2004] S.C.J. No. 76, 2004 SCC 80, at

para. 2.

[25] That the misapprehension of evidence can include an assessment of

credibility was discussed by Simmons JA in R v CB, 2017 ONCA 862, where

she wrote (at paras 44-45):

[T]he appellant must show that the trial judge’s misapprehension

of the evidence was central to the trial judge’s reasoning. The

misapprehension must be substantial, material, and play an

essential role in the decision to convict: Morrissey, at pp. 538-

540. This can include evidence that goes to elements of the crime

charged, assessments of credibility, and proof beyond a reasonable

doubt, so long as the misapprehension was essential to the

conviction. [footnotes omitted]

With regard to credibility assessments, only where the assessment

is central to the decision to convict and only where an alleged

misapprehension is central to that credibility assessment can there

[be] a case for miscarriage of justice. [footnote omitted]

[emphasis added]

[26] As well, the drawing of an improper inference or conclusion, which

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leads to a misapprehension of the evidence, can also be the basis of a fatal

error (see R v DNS, 2016 MBCA 27 at para 59).

[27] Finally, in what can be considered as going to the “fairness of the

trial” as opposed to merely a misapprehension of the evidence, courts have

commented on the unfairness of criticising a witness for not providing

evidence that was not asked for either in examination or cross-examination

(R v Hilton, 2016 ABCA 397 at para 25).

[28] In short, if the trial judge made a mistake as to the substance of

evidence or failed to give it proper effect, then a miscarriage of justice may

occur.

Standard of Review

[29] A trial judge’s credibility findings are owed a significant amount of

deference upon appellate review. They should only be interfered with on

appeal if they are unreasonable or, in other words, they display palpable and

overriding error (see Housen v Nikolaisen, 2002 SCC 33). It will be the

exception where a trial judge’s assessment of credibility is overturned. An

appellate court should not parse the trial judge’s reasons seeking error but,

rather, should consider them as a whole with the view of understanding the

trial judge’s reasoning.

[30] However, that does not mean that trial judges are immune from

review or that credibility findings are unassailable. The jurisprudence referred

to above confirms that, where a trial judge’s reasoning displays palpably

flawed evidentiary findings, which are essential to the decision, it can lead to

a finding of a miscarriage of justice (see Morrissey; Lohrer; and R v CLY,

2008 SCC 2.

Page: 11

Analysis

[31] In this case, the trial judge, in embarking upon his W(D) analysis,

started, as is the custom, with a review of the accused’s testimony. He found

two areas of concern upon which he expressed the view that they negatively

affected his assessment of the accused’s credibility. Turning to each of those

areas in the order he addressed them in his reasons, they were: (a) the lack of

a proper explanation by the accused as to how he was aware that the

complainant was angry with him and the timing of that disclosure; and (b) the

accused’s evidence with respect to the complainant creating a mound in the

sand depicting a penis.

The Complainant’s Anger

[32] In his reasons for judgment, the trial judge expressed two concerns

about the accused’s evidence with respect to the allegation that the

complainant was angry with him. On the one hand, he stated that he would

have expected the explanation that it was because of his breaking up the sand

mound to normally have been provided at an earlier time than it was. He was

also concerned by the lack of any collateral evidence from the accused as to

how the accused knew the complainant was angry.

[33] The lack of a timely disclosure of the explanation by the accused is

certainly one of the factors which the trial judge could have used in his

assessment of the credibility of the accused. However, the same cannot be

said for a lack of collateral evidence from the accused. There was no

obligation on the accused to provide the basis upon which he reached a

conclusion that the complainant was angry with him. Furthermore, he was

never asked that question either by the Crown or by the trial judge in his

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lengthy questioning.

[34] A similar situation was encountered in Hilton where the trial judge,

in his reasons, reached negative conclusions as to the accused’s credibility

based in part on his failure to provide or clarify information. On appeal, the

majority commented as follows (at para 24):

The accused must be treated fairly when the court is determining

whether his evidence raises a reasonable doubt. On several

occasions the trial judge criticized the appellant for failing to

explain certain things, and failing to provide details of what were

collateral events. However, the appellant was never asked to

provide the supposedly missing explanations or details. Apart

from the effect this has on shifting the burden of proof, it is simply

unfair to criticize a witness for not providing evidence that was not

asked for either in examination or cross-examination.

It was clear that, in this case, the lack of an explanation was an important part

of the trial judge’s reasoning on the accused’s credibility.

The Sand Mound

[35] The second aspect of the credibility finding which is of concern is

the use made by the trial judge of the condition of the sand in the play area of

the park and the complainant’s cleanliness on returning from the park. The

relevant part of the trial judge’s reasons on this aspect are as follows:

I’m concerned about this suggestion that she had constructed a

structure which [the accused] offered the carafe of water on the

table, on the court tables, and I suggested to him that the carafe

was about six inches tall and three inches wide and he said yes,

that was about what she had constructed. I find it hard to imagine

that in the kind of sand that’s found under the bottom of these play

structures which is pounded daily by children playing in these

areas. This was not a sandbox where sand is piled up. It’s really

just a footing under a play area. I find it hard to imagine that

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anybody could mound anything that could resemble a penis. In

any way. And to describe a mound as a penis, it didn’t seem to me

to be a plausible explanation. I don’t believe that kind of sand

could be molded. And then his explanation when I suggested to

him that it was implausible or that the sand would be molded like

that. He said well she dug down into the under sand, or the wet

sand underneath. And what he’s really referring to I think is that

there’s probably clay down there. I think it’s, if that were the case

this young girl would have been so covered in dirt and mud. Her

fingernails, I know as anybody who’s ever worked in a garden, let

alone in a sand pile, knows you start digging with your hands and

your fingernails are full of dirt or sand. I think that if she was

actually doing that, she would have been, either her clothing or her

hands and arms and face for that, would have been filthy at the

time when she returned to her mother. There was no comment

from her mother about her being dirty or having sand in her

fingernails or sand anywhere in her body.

[36] He then comments on the fact that the complainant’s mother, who

had bathed the complainant that evening, made no mention of sand on her

body which he would have expected if the sand was “fluffy, mouldable” or

“malleable”. He concluded that this explanation was not believable and that

finding impacted on his assessment of the accused’s credibility.

[37] With respect, the trial judge misapprehended the evidence in order

to draw an inference as to the consistency of the sand which was not available

to him on the evidence before him.

[38] The evidence as to the condition of the sand under the play structure

consisted of photographs and the testimony of the accused. The photographs

of the play structure where the events are said to have occurred were taken

from a distance and do not provide a close-up view of the condition or quality

of the sand underneath it. While there is a reference to the sand being similar

to that under the swings, of which there is a picture from a closer angle, there

is little definition in the picture allowing any conclusion to be drawn as to its

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consistency.

[39] The accused’s evidence on the mound, which he said was

constructed by the complainant, was not that it was an intricate sculpture. It

is simply referred to as “a tail” and that it looked like a “wiener.” The accused

referred to it also as a “pile of sand.” He also, under questioning by the trial

judge, referred to the sand as similar to a “sandbox.” He indicated that the top

layer was dry and, if digging a bit deeper, it would turn wet. The accused

stated as follows:

A (Inaudible) piled up, like she just kind of pulled it all

together and then kind of pushed (inaudible).

Q So how high was it?

A Like just a regular pile of sand.

[40] The trial judge then referred the accused to a water jug and

suggested dimensions of six inches high by three inches wide to which the

accused answered “[k]ind of.” Under questioning from the trial judge, the

accused then indicated that the complainant’s hands had been dirty and that

he had advised her to wipe them off on the grass.

[41] It is from this evidence that the trial judge drew two conclusions:

(a) that the sand under the play structure was not of sufficient

consistency to allow the creation of what the accused had

described; and

(b) if it had, there would have been evidence from the

complainant’s mother that evening that the complainant was

dirty as a result of playing in such sand.

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[42] The trial judge relied on these two conclusions to find that the

accused’s explanation regarding the complainant’s sand structure was not

believable and that providing that explanation impacted negatively on his

assessment of the accused’s credibility.

[43] Both conclusions relate to factual findings—the consistency of the

sand and the complainant’s state of cleanliness. There was no direct evidence,

other than the accused’s evidence related to the complainant making the

mound, regarding either finding. While a trial judge can draw conclusions or

make factual findings in the absence of direct evidence, there must be

sufficient other evidence to support that factual finding so that it is not merely

speculation or a guess. This was explained as follows in McWilliams1 (at

para 31:80):

Triers draw inferences from facts in order to conclude the

existence of further facts.

. . .

An inference is a deduction of fact that may logically and

reasonably be drawn from another fact or group of facts found or

otherwise established by evidence adduced at trial.

“It is a fact which is inferred, not a belief”. Put differently, once

primary facts are found to be proven, “in drawing the inference the

Court is making a finding of fact”.

“The process of drawing inferences from evidence is not . . . the

same as speculating even where the circumstances permit an

educated guess”.

[44] In R v Mustard (G), 2016 MBCA 40, Mainella JA stated as follows

1

The Honourable Mr. Justice S Casey Hill, Professor David M Tanovich & Louis P Strezos, eds, McWilliams’

Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters, 2017) vol 3 (loose-leaf revision 18:1),

ch 31

Page: 16

(at para 31):

The law recognises “a distinction between speculation and

evidence” (see R v DC, 2012 SCC 48 at para 27, [2012] 2 SCR

626). A proper inference can only be made where there are

objective facts on the record to support it and logic reasonably

allows the inference to be drawn from those objective facts (see

Caswell v Powell Duffryn Associated Colleries, Ltd, [1940] AC

152 at 169-70 (HL); and Cloutier v The Queen, [1979] 2 SCR 709

at 731).

[45] The problem with the trial judge’s conclusion regarding the sand

mound is that the other evidence did not support the conclusion that a pile of

sand could not be created in the manner described by the accused. There was

simply no evidence before the Court that the sand lacked the required

consistency to form a simple mound and, in coming to that conclusion, the

trial judge was engaging in impermissible speculation.

[46] On the issue of the condition of the complainant, the trial judge made

two errors.

[47] First, the trial judge’s finding that the complainant “would have

been so covered in dirt and mud” was based on his finding that “there’s

probably clay down there”, that is, under the sand. That finding, however,

was purely speculative as there was no evidence that there was any clay, dirt

or mud where the complainant was digging. The accused was never asked

about clay, dirt or mud and, when he was questioned, he said that the

complainant was digging in sand and that she built the mound of sand—not

clay, dirt or mud. Thus, it was a mistake of fact to find that the complainant

was digging in clay or that she was covered in dirt and mud.

[48] Further, as to the condition of the complainant when seen by her

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mother when giving the complainant her bath, the only evidence the mother

gave was as follows:

Q Did you inspect or -- after [B] said these things did you sort

of check her out?

A Yes I bathed her that evening.

Q Okay.

A Usually I allow [her] to bath by herself (inaudible) I bathed

her.

Q Okay. Was there any indication that anything had

happened to her?

A No.

Q No?

A (Inaudible).

Q Physical signs at all?

A None.

The complainant’s mother was not asked either by the Crown or the trial judge

about the complainant’s condition of cleanliness or whether there was

evidence of sand, dirt, mud or clay on her. There was simply no evidence in

that regard.

[49] The trial judge’s reasons indicate that the consistency of the sand to

make mounds, the presence of clay and the complainant’s state of cleanliness

were important factors leading him to ascribe a lack of credibility to the

accused’s testimony and to reject that testimony. Based in part on these

findings, he went on to find that he did not have a reasonable doubt as to the

accused’s culpability.

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[50] As we have said earlier, this is not an issue of whether the remaining

evidence, separate from the accused’s testimony, was sufficient to support the

trial judge’s finding of guilt. As was stated in Morrissey (at p 221):

If an appellant can demonstrate that the conviction depends on a

misapprehension of the evidence then, in my view, it must follow

that the appellant has not received a fair trial, and was the victim

of a miscarriage of justice. This is so even if the evidence, as

actually adduced at trial, was capable of supporting a conviction.

[51] In this case, it is simply that, in analysing the accused’s testimony,

the trial judge did so in a manner that was unfair to the accused and vitiated

the proper balancing of that evidence in the trial overall. It rendered the trial

unfair and resulted in a miscarriage of justice.

New Evidence and Reasonableness of the Verdict

[52] We have read the dissenting opinion of our colleague, Pfuetzner JA.

We disagree on whether the trial judge misapprehended the evidence and drew

improper inferences. Otherwise, we are in general agreement.

[53] The admissibility of the new evidence goes to the issue of the

reasonableness of the verdict. We agree that its introduction is not warranted

as it fails to meet the Palmer criteria (see Palmer v The Queen, [1980] 1 SCR

759).

[54] We agree that, were it not for the misapprehension of the accused’s

evidence, there was sufficient evidence to warrant a conviction and the

accused’s ground of appeal on the issue of the reasonableness of the verdict

should be dismissed.

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Conclusion

[55] For the reasons set out above, we would find that there was a

misapprehension of the evidence which led to a miscarriage of justice as a

result of which we would order a new trial.

Beard JA

Monnin JA

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PFUETZNER JA (dissenting):

Introduction

[56] I have read the reasons of my colleagues for allowing this appeal

and ordering a new trial on sexual offences under sections 151, 152 and 153(1)

of the Criminal Code. We differ on the important question of the correct legal

standard to be used to review the conviction of the accused. In my respectful

view, in allowing this appeal absent palpable and overriding error, the role of

the trial judge to weigh the evidence and assess credibility has been usurped.

Issues

[57] The majority concludes that the trial judge made significant errors

in assessing the credibility of the accused: first, that the trial judge unfairly

criticised the accused for failing to explain how he knew that the complainant

was angry with him; and, second, that the trial judge misapprehended the

evidence which led to a miscarriage of justice.

First Issue—Unfair Criticism of the Accused

[58] The majority suggests that it was unfair for the trial judge to have

made a negative credibility finding against the accused because he did not,

nor was he asked to, provide any detail in his evidence as to how he knew the

complainant was angry with him at the park.

[59] In my respectful view, this first issue has nothing to do with

misapprehension of evidence as the factors going into a credibility assessment

are not reviewed on the same standard as a misapprehension of evidence.

[60] A trial judge is entitled, and indeed is required, to assess the

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credibility of the witnesses that appear before him or her. As stated by

Bastarache and Abella JJ in R v Gagnon, 2006 SCC 17 (at para 20):

Assessing credibility is not a science. It is very difficult for a trial

judge to articulate with precision the complex intermingling of

impressions that emerge after watching and listening to witnesses

and attempting to reconcile the various versions of events. That is

why this Court decided, most recently in H.L. [HL v Canada

(Attorney General), 2005 SCC 25], that in the absence of a

palpable and overriding error by the trial judge, his or her

perceptions should be respected.

[emphasis added]

[61] This case turned on credibility. The trial judge’s reasons show that

he simply did not find the accused’s story compelling because he did not offer

any detail as to how he knew the complainant was angry with him and he did

not tell anyone this story until some time after the events. The trial judge

made no palpable and overriding error in making this negative credibility

assessment and there was no unfairness to the accused in him doing so. There

is no basis to intervene in the trial judge’s assessment.

Second Issue—Misapprehension of Evidence

[62] I turn now to the majority’s second ground for allowing the appeal—

that there was a misapprehension of evidence leading to a miscarriage of

justice. This Court, in R v Whiteway (BDT) et al, 2015 MBCA 24, explained

a misapprehension of evidence as follows (at para 32):

A misapprehension of evidence may refer to a mistake as to the

substance of evidence, a failure to consider evidence relevant to a

material issue or a failure to give proper effect to evidence

(R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161 at para. 83; and

R. v. Sinclair, 2011 SCC 40 at para. 13, [2011] 3 S.C.R. 3). A

misapprehension of the evidence is not to be confused with a

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different interpretation of the evidence than the one adopted by the

trial judge (R. v. Lee, 2010 SCC 52 at para. 4, [2010] 3 S.C.R. 99).

It is insufficient that the judge may have misapprehended the

evidence; the error must be readily obvious (Sinclair at para. 53).

[emphasis added]

[63] As they explain in their reasons, my colleagues are troubled by

certain factual inferences drawn by the trial judge that they would not have

drawn.

[64] The first impugned inference relates to the consistency of the sand

under the play structure. The majority rejects the trial judge’s inference that

the sand could not have been formed into what they refer to as “a simple

mound”. With respect, a sand pile that is six inches high by three inches wide,

as described by the accused, is not a simple mound. In their reasons, in my

respectful view, my colleagues do not point out where the trial judge made a

mistake as to the substance of evidence or how there is an error that is “readily

obvious” (R v Sinclair, 2011 SCC 40 at para 53). Instead, my colleagues

merely express the concern that the photographs of the play structure were

taken from a distance and do not provide a close-up view of the sand. My

colleagues also refer to the accused’s various descriptions of the pile made by

the complainant as “a tail”, a “wiener” and a “pile of sand”, and his description

of the sand as similar to a sandbox with the top layer dry and the sand wet if

one dug a bit deeper. My colleagues provide no other reason for their

conclusion that the trial judge did misapprehend, as opposed to may have

misapprehended, evidence when he found that a pile of sand could not be

created in the manner described by the accused.

[65] Second, the majority takes issue with the trial judge’s inference that

the complainant was not unusually dirty after returning from the park. Again,

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with respect, the majority fails to indicate the “readily obvious” error that the

trial judge made in drawing this inference. The trial judge had the evidence

of the complainant’s mother that she carefully examined the complainant

when she bathed her that evening and didn’t notice anything out of the

ordinary. It is difficult for me to accept the reasoning that a trial judge cannot

reasonably rely on the careful observations of a concerned mother to infer that

a child was not unusually dirty or sandy when being bathed. The fact that the

complainant’s mother was not specifically asked if the complainant was dirty

by either Crown or defence counsel does not prevent the trial judge from

drawing the inference he did. The entire purpose of drawing inferences is to

make findings of fact when there is no direct evidence precisely on point.

[66] Finally, my colleagues conclude that the trial judge engaged in

impermissible speculation when he inferred that there was clay, dirt or mud

under the sand. However, the accused described the sand as “the top layer’s

dry. (Inaudible) dig a bit deeper it’d turn wet and you’d get like rocks and all

that.” Based on the accused’s evidence, it was entirely reasonable for the trial

judge to have inferred that there was clay, dirt or mud where the complainant

was digging.

[67] In my respectful view, the trial judge made no mistakes as to the

substance of evidence or any other readily obvious error. The inferences he

drew were not inconsistent with the evidence and were informed by common

sense and experience. This case is unlike Morrissey [(1995), 97 CCC (3d)

193 (Ont CA)], where the judge made several mistakes as to the substance of

witnesses’ evidence that were readily apparent when the judge’s reasons were

reviewed together with the trial transcripts.

[68] Respectfully, the majority has merely come to a different

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

interpretation as a misapprehension of the evidence—an approach warned

against by the Supreme Court of Canada in R v Lee, 2010 SCC 52. Not every

judge might have drawn the inferences that the trial judge did. However, this

is not the legal test and it is certainly not a sufficient basis upon which to find

a miscarriage of justice and order a new trial. The role of this Court is not to

re-weigh the evidence and come to different conclusions than the judge at first

instance who had the advantage of observing and hearing the witnesses first-

hand.

Proper Legal Test—Unreasonable Verdict

[69] As I have explained, in this case, there has been no misapprehension

of evidence. Nor has there been a legal error, such as a misapplication of the

test in R v W(D), [1991] 1 SCR 742.

[70] The only remaining basis upon which the appeal could succeed is if

the verdict is unreasonable or cannot be supported by the evidence (see

section 686(1)(a)(i) of the Criminal Code). This is the proper standard upon

which the trial judge’s reasons should be reviewed. The standard was

summarized by Deschamps J in R v RP, 2012 SCC 22 (at para 9):

To decide whether a verdict is unreasonable, an appellate court

must, as this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, and

R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36,

determine whether the verdict is one that a properly instructed jury

or a judge could reasonably have rendered. The appellate court

may also find a verdict unreasonable if the trial judge has drawn

an inference or made a finding of fact essential to the verdict that

(1) is plainly contradicted by the evidence relied on by the trial

judge in support of that inference or finding, or (2) is shown to be

incompatible with evidence that has not otherwise been

contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC

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40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry,

2007 SCC 5, [2007] 1 S.C.R. 190).

[emphasis added]

[71] One principle that can be derived from RP is that, if a judge makes

a palpable and overriding error in drawing a factual inference that is essential

to the verdict, the verdict is unreasonable. This is consistent with prior

jurisprudence of the Supreme Court of Canada confirming that the standard

of review for findings of fact and factual inferences is palpable and overriding

error (see Housen v Nikolaisen, 2002 SCC 33 at para 23; R v Clark, 2005 SCC

2 at para 9; and HL v Canada (Attorney General), 2005 SCC 25 at para 74).

[72] In addition, it is consistent with more recent case law that says a

palpable and overriding error is both “obvious” and one that “goes to the very

core of the outcome of the case” (Canada v South Yukon Forest Corporation,

2012 FCA 165 at para 46; see also Benhaim v St-Germain, 2016 SCC 48 at

para 38).

[73] Similarly, at stated in Benhaim (at para 39):

Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167,

at para. 77 (CanLII), (TRANSLATION) “a palpable and

overriding error is in the nature not of a needle in a haystack, but

of a beam in the eye. And it is impossible to confuse these last

two notions.”

[74] In RP, Deschamps J further explained the role of an appellate court

reviewing the reasonableness of a verdict when credibility is the primary issue

(at para 10):

Whereas the question whether a verdict is reasonable is one of law,

whether a witness is credible is a question of fact. A court of

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appeal that reviews a trial court’s assessments of credibility in

order to determine, for example, whether the verdict is reasonable

cannot interfere with those assessments unless it is established that

they “cannot be supported on any reasonable view of the

evidence” (R. v. Burke, [1996] 1 S.C.R. 474, at para. 7).

[emphasis added]

[75] The Supreme Court of Canada has stated on many occasions that the

standard of review of a trial judge’s credibility assessment is the

demonstration of palpable and overriding error (see Schwartz v Canada,

[1996] 1 SCR 254 at para 32; R v Gagnon, 2006 SCC 17 at para 10; R v NS,

2012 SCC 72 at para 25; R v WH, 2013 SCC 22 at paras 30-31; and

R v Vuradin, 2013 SCC 38 at para 11.

Review of Factual Inferences and Credibility Assessment

[76] Bearing in mind the proper standard of review, the factual inferences

drawn by the trial judge are entitled to deference. As I have explained, none

of the factual inferences singled out for criticism by my colleagues is

contradicted by, or incompatible with, the evidentiary record. Moreover, the

inferences are “reasonably available” from the evidence taken as a whole

(R v ON, 2017 ONCA 923 at para 9).

[77] Fundamentally, this case turns on the trial judge’s credibility

assessments; particularly his negative assessment of the credibility of the

accused. Key is the trial judge’s conclusion that the sand-pile event, as

described by the accused, did not happen. He made this finding based on more

than just inferences drawn regarding the consistency of the sand and the lack

of dirt or sand on the complainant. He did not believe the accused’s story that

the complainant was angry with him for breaking her sand pile. In addition,

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the trial judge didn’t believe the accused’s claim that the six-year-old

complainant said a mound of sand looked and felt like a “wiener” when the

trial judge said, “[a]nd to describe a mound as a penis, it didn’t seem to me to

be a plausible explanation.”

[78] The accused’s credibility must be assessed in the context of all of

the evidence adduced at trial. The complainant (whose evidence the trial

judge found to be credible) immediately disclosed what happened at the park

but never mentioned making a sand pile or being angry with the accused.

Further, the trial judge had the admissible evidence of the complainant’s

sister’s statement (“CJ, da, perogy”) and her gestures toward her genitalia.

[79] At the end of the day, the trial judge’s vital finding that the accused

was not a credible witness is supportable on the evidence and great deference

is owed.

[80] As I have indicated, the proper legal issue in this case is the

reasonableness of the trial judge’s verdict. My colleagues concede that the

verdict was reasonable and I agree. The trial judge assessed the credibility of

the two main witnesses—the accused and the complainant. Those

assessments are reasonably supportable on the evidence. He disbelieved the

accused and believed the complainant. The evidence he accepted was, as

noted by my colleagues, sufficient to support a conviction.

Fresh Evidence Motion of Accused

[81] The accused brought a motion to admit fresh evidence which can be

dealt with briefly. The proffered evidence does not meet two of the criteria in

Palmer v The Queen, [1980] 1 SCR 759. First, it is not credible or reasonably

capable of belief as it consists of affidavit hearsay. Second, the evidence is

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such that, even if believed, it could not reasonably be expected to have

affected the result at trial.

Conclusion

[82] I would dismiss the motion to adduce fresh evidence and dismiss the

appeal.

Pfuetzner JA