Why reasoning error leads to new trial after sex assault appeal

Law360 Canada (December 12, 2024, 11:01 AM EST) --

John L. Hill

A stepfather, S.H., was convicted and sentenced to seven years imprisonment for historical sexual assaults on his two stepdaughters. The two stepdaughters were the Crown’s only witnesses. The case turned on their credibility. The trial judge found both complainants wholly credible and reliable and listed three factors that caused him to “doubt” the appellant’s testimony.

Citing an Ontario appeal court’s decision in R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), the trial judge stated that he “outright reject[ed]” the appellant’s evidence based on his “considered and reasoned acceptance beyond a reasonable doubt of the conflicting evidence” of the stepdaughters.

S.H. appealed the conviction and sentence. The Ontario Court of Appeal ruled in favour of the appeal on Oct. 2024 (R. v. S.H., 2024 ONCA 776). The Crown agreed that the trial judge had made two errors in law, but these could be rectified by the appeal court’s intervention in applying the curative proviso.

The trial judge rejected S.H.’s exculpatory testimony on two grounds. One of the complainants said a sexual assault occurred while S.H. was playing an episode of Naked News (a television show in which a naked woman read the news). S.H. told the court that the broadcast was not an aired program, inferring it had to be streamed. Later, he denied knowing what Naked News was.

Secondly, the trial judge discredited S.H.’s testimony by citing his record of driving without a licence while suspended and without insurance. Although not the main deciding factor, the judge found that this showed his disregard for the law and affected his credibility.

The Ministry of Transportation record was entered as an exhibit at the trial judge’s suggestion. It was not the Crown’s position that it was entered to support an inference about S.H.’s propensity to break the law or to demean his credibility as a witness.

Ian Kasper, duty counsel appearing for S.H., went further and raised a rather unique argument. He cited s. 12 of the Canada Evidence Act, which “permits cross-examination as to convictions for offences under all federal statutes.” He argued that this holding should be understood as implicitly exempting offences under provincial statutes (R. v. Watkins, 70 C.C.C. (3d) 341 (Ont. C.A.)). The appeal court found it unnecessary to decide on this issue since the Crown conceded that the Ministry of Transportation record had been improperly used but that any damage could be mitigated using the curative proviso.

The Crown agreed that the trial judge had misconstrued S.H.’s denial of seeing Naked News by saying that he did not know about the show, did not have Internet service, and did not get City TV, which had been broadcast in the early 2000s.

The appeal court accepted the words of Justice David Doherty in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) that “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.” The curative proviso has no application where a misapprehension of evidence has caused a miscarriage of justice (R. v. Minuskin (2003), 68 O.R. (3d) 577 (C.A.)).

The appeal court also rejected the Crown’s contention that the error concerning Naked News could be severed and that the conviction could stand on the trial judge’s main reasoning. The appeal court again relied on the J.J.R.D. case and refused to assume that the trial judge would necessarily have entirely rejected the appellant’s exculpatory evidence if he had not already concluded that other aspects of S.H.’s evidence caused doubt. Further, the Court of Appeal could not weigh the degree to which the driving record improperly influenced the trial judge. It has been held in R. v. Caporiccio, 2017 ONCA 742, that assessments of a witness’s credibility are holistic by nature.

Further, there was little else in the trial judge’s reasoning to uphold his rejection of S.H.’s testimony and acceptance of the complainant’s version of events. However, there was no reason why the stepdaughters’ testimony should be accepted. This was not a case where the evidence was so overwhelming that S.H.’s conviction on the charges relating to a complainant could be treated as inevitable, even if the trial judge had not made the errors that the Crown now concedes.

The trial judge accepted in totality that one of the complainants was only two or three years old and agreed her memory did not flush out until age six. Further, she said some of her memories came in the form of “night terrors.”

Duty Counsel Ian Kasper contended that the trial judge made a reasoning error similar to that identified by the Saskatchewan Court of Appeal in R. v. Van Deventer, 2021 SKCA 163, by treating his acceptance of the complainants’ evidence as automatically requiring him to reject the appellant’s exculpatory testimony.

The fine work of duty counsel allowed the Court of Appeal to agree that a self-represented appellant should have a new trial.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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