R. v. B., J.

R. v. B., J. Collection Decisions of the Court of Appeal Date 1998-09-24 Docket numbers C27397 Judges Finlayson, George Duncan; Weiler, Karen Merle Magnuson; Rosenberg, Marc Subject Criminal Decision Content DATE: 19980924 DOCKET: C27397 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) and J. B. (A Young Person) (Appellant) BEFORE: FINLAYSON, WEILER and ROSENBERG JJ.A. COUNSEL: Murdoch J. Carter, for the appellant Erika Chozik, for the respondent HEARD: September 14, 1998 ENDORSEMENT [1] The appellant J. B., a young person, was convicted on charges of sexual assault and sexual interference, contrary to ss. 271 and 151 of the Criminal Code, respectively, before Judge J. Kukurin in the Ontario Court (Provincial Division). He now appeals his convictions. The complainant on both charges was the appellant's step-sister. At the time of the acts alleged, she was six years old and the appellant was thirteen years old. The appellant was a regular visitor to the complainant's home, as he would often spend weekends with his father and his second family, which included the complainant. The complainant testified that the appellant engaged in a number of sexual acts with her including at least one act of sexual intercourse. [2] Central to this appeal are certain discrepancies in the allegations made by the complainant against the accused, and the trial judge's self instruction on the issue of credibility. [3] The Crown's first witness was the complainant's mother. She testified as to various conversations she had with the complainant. The Crown then called the complainant. Pursuant to s. 16 of the Canada Evidence Act, the complainant, who was seven years old at the time of the trial, was not sworn as a witness, but was permitted to testify as the trial judge was satisfied that she could answer questions having promised to tell the truth. Pursuant to s. 715.1 of the Code, the Crown then introduced video tapes of two interviews conducted at the offices of the Children's Aid Society on July 12, 1996, and August 16, 1996. Both were admitted by the trial judge, and their admissibility is not at issue. A Children's Aid worker also testified. [4] The appellant gave evidence and testified that on no occasion had the complainant ever seen him naked, nor that he ever bathed her, tickled her, or even physically played with her, except by grabbing her arms and putting her on the couch. He denied having ever touched the complainant in the manner alleged. [5] There are significant discrepancies in the testimony of witnesses for the Crown, but because of the disposition that we propose, we do not propose to analyse the evidence in any detail. This appeal can be decided on the adequacy of the self- instruction of the trial judge on the burden of proof. In our view, it was unsatisfactory. The trial judge improperly characterised the issue before him as a contest of credibility when he said at the outset of his reasons: Not surprisingly, the issue reduces down primarily to credibility. Whom does one believe the complainants or the accused. [6] The trial judge did not charge himself in the language of R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 at 409-411 (S.C.C.). Had he done so, he would have had to ask himself if the testimony of the appellant, even if disbelieved, was sufficient to raise a reasonable doubt as to the guilt of the appellant. Instead, the trial judge reviewed the evidence of the appellant and commented favourably on his demeanour. He referred to the fact of his absolute denial of the allegations against himself, but at no time stated that he disbelieved him or even that he preferred the evidence of the complainant to his. [7] The complainant was seven years old at the time of the trial. Her evidence was unsworn. She had earlier given a videotape of her evidence which contained significant discrepancies from what she said at trial. The trial judge did not give himself any warning about her testimony even while admitting that the discrepancies existed. Some of these discrepancies, which were characterised by the trial judge as "incremental disclosures", were discounted by the trial judge because "they were not uncommon with children because they do not think like adults". There is no expert testimony to support this statement with respect to the substantial discrepancies of the testimony of the complainant in this case. [8] Further, the trial judge found support for the complainant's testimony in her emotional behaviour at the time of the alleged assaults, which behaviour subsided after disclosure. There is no basis to support a connection between this conduct and the sexual abuse complained of. It should not have been relied upon as "observed behaviour to support what [the complainant] has said was taking place between her, particularly when considered temporally". [9] Accordingly, we are all of the view that the appeal must be allowed, the conviction below set aside and a new trial ordered.