CITATION:
R. v. Sanichar, 2012 ONCA 117

DATE: 20120222

DOCKET: C50224

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Harry Persaud Sanichar

Appellant

Mark Halfyard, for the appellant

Christine Bartlett-Hughes, for the
          respondent

Heard:  November 2, 2011

On appeal from convictions entered by Justice F.C.J. Newbould
          of the Superior Court of Justice, sitting without a jury, on June 26, 2008.

R.A. Blair J.A.:

BACKGROUND

[1]

Mr. Sanichar seeks to set aside convictions imposed by Justice F.C.J. Newbould
    of the Superior Court of Justice on June 26, 2008 relating to a variety of
    charges involving physical and sexual abuse of the complainant.  The abuse is
    alleged in the indictment to have occurred from 1980 through 1984 when the
    complainant was approximately 8 to 12 or 13 years old.  The appellant was also
    convicted of additional counts of sexual assault and assault on the complainant
    during a visit by her to the appellants home in 1989.

[2]

On behalf of the appellant, Mr. Halfyard argues that the trial judge failed
    to analyze the complainants credibility and reliability properly.  I agree
    that the trial judge failed to conduct a proper reliability analysis in
    relation to the complainants testimony, particularly in light of the
    historical nature of the allegations in this case and the absence of evidence
    in certain important areas.

[3]

For the reasons that follow, I would allow the appeal and order a new
    trial.

FACTS

[4]

The complainant alleged that she had been physically and sexually abused
    by the appellant from the time he came into her family until her mothers death
    in 1984.  The appellant is the complainants step-father and uncle.  The appellants
    brother is the complainants biological father and was married to the
    complainants mother.  The complainants biological father died when the
    complainant was about 3 years old and a few years later the appellant married
    the complainants mother.

[5]

The charges in the indictment centred primarily on events that occurred
    between 1980 and 1984 when the complainant, who was born on September 9, 1971,
    was roughly between the ages of 8 and 12 or 13, although there were also
    allegations concerning a later period of time when she returned to stay with
    the appellant in 1989.  In the result, the appellant was convicted of rape,
    indecent assault, buggery, gross indecency, sexual assault (x2), assault with a
    weapon and assault.  Some of the convictions were stayed on the basis of the
    principles set out in
R. v. Kienapple,
[1975] 1 S.C.R. 729.

[6]

The complainant was 36 years old when she testified.  She was the only
    witness called by the Crown and the entire case rested on her credibility and
    reliability.

[7]

With two exceptions, the acts of abuse covered by the indictment occurred
    at various places in three different residences where the family lived between
    1980 and 1984: the Collinsgrove Road townhouse (1980-81); the Orton Park apartment
    (1982); and the Swansea Mews townhouse (Spring 1982 - May 1984).  There is no
    need to outline the allegations in great detail.  They were for the most part
    general in nature.

[8]

Suffice to say that the complainant described the appellant as a serial
    sexual and physical abuser who assaulted her on a regular basis over a lengthy
    period of time when she was a child.  On her evidence, the abuse happened
    during a period that pre-dated the indictment as well.  The alleged sexual
    assaults generally included fondling and digital penetration, oral sex, vaginal
    intercourse, a few incidents of anal sex and some exposure to child pornography.
    They occurred often and whenever the appellant felt like it  at least weekly,
    according to the complainant.  The alleged physical abuse included the
    appellants hitting the complainant with his hands and feet, and with belts,
    knives and other household objects such as a brass statue, a plastic sculpture,
    a meat cleaver and a spatula.  The complainant also described many incidents of
    physical abuse allegedly perpetrated against her mother and her brother.  These
    incidents of abuse were said to be regular and constant as well.

[9]

The evidence also disclosed allegations of sexual abuse by the appellant
    prior to the period covered by the indictment.  Two incidents were described in
    some detail, and took on some significance as the trial evolved.  The first was
    portrayed  in what the defence urged was suspiciously striking detail for
    someone who would have been around 5 years of age at the time  as follows:

... I remembered the
    house and wearing a pink blouse and I was about five years old and he bought a
    croquet set for my brother and he told us that he had gifts for us both, and he
    sent my brother in the backyard to go play with the croquet set and I asked him
    what my present was and he said a massage and he got baby oil and started
    rubbing my body with it and I remember ... he got on me and he pushed his penis
    into me and it hurt and I screamed and it hurt a lot and I bled and that was
    the first time I remember him doing that with me.  And when I was crying, he
    told me that someday well get it in the hole.

[10]

The second pre-indictment incident is said to have incurred in 1979 or
    1980, just before the complainants birthday in September.  She testified that
    her mother caught the appellant fondling her breasts and genitals in her
    bedroom.  The appellant said he was just trying to show her how to make her
    bed.  The complainant testified that the appellant was charged as a result of
    this incident and that he left the home for a time but then returned.  There
    was little change in his behaviour after his return.  The record contains very
    little information about this charge.

[11]

Two other episodes that the complainant said took place outside of the
    home were also canvassed.  The trial judge ultimately rejected her testimony
    with respect to these episodes, but they remain significant to his analysis of
    the evidence.

[12]

The appellant apparently owned a restaurant called Mannys (his
    nickname) and he also worked for a car dealership known as Jim Davidson
    Motors.  The complainant testified that the appellant sexually assaulted her
    repeatedly in the back room of the restaurant at times when she would be doing
    her homework there, by fondling her over her clothing, digitally penetrating
    her and forcing her to perform fellatio on him and to masturbate him.  She
    testified as well that, although she did not recall intercourse at the
    restaurant, the appellant did have intercourse with her in the office at Jim
    Davidson Motors after business hours in a black chair.

[13]

In a statement made to the RCMP in 2005, however, the complainant told
    the police three times that no oral sex had occurred in the back room of the
    restaurant.  At trial, she had no explanation for that inconsistency other than
    to suggest that you remember different things on different days and to fall
    back on a post-statement visit she made to a certain trailer that apparently
    triggered memories of the abuse she suffered both in the back room of the
    restaurant and at Jim Davidson Motors because of the similarity in decors.  The
    trial judge excluded this evidence, not because he found it to be fabricated,
    but because he concluded it would be unsafe to act on her revived memory of
    what had happened in the back room of the restaurant and at the car dealership.

[14]

In 1984  when the complainant was 12 or 13 years old  her mother died,
    apparently of health issues related to alcohol abuse.  It is common ground that
    the complainant blames the appellant for her mothers death.  The defence
    alleged that the complainant hated him and that her hatred culminated in a
    vitriolic letter written to the appellant during the Christmas period in 2003
    and sent in early January 2004  and distributed to others in his family  in
    the lead up to the charges.  The appellant says the letter provides compelling
    evidence of a motive to fabricate and that the trial judge did not properly
    assess the letter from that perspective.  I will return to this issue, and the
    letter, shortly.

[15]

Following her mothers death, the complainant and her brother continued
    to live with the appellant for a short while and, according to the complainant,
    the abuse stopped and the appellant became kind of nice.  At some point in
    about 1984 the Childrens Aid Society became involved.  The complainant told
    the CAS worker that there had not been any sexual abuse since an earlier
    allegation in 1980.  The trial judge accepted her explanation for this
    discrepancy: she had truthfully reported abuse to the CAS on an earlier
    occasion, but it had only left her exposed to further abuse when the appellant
    returned after a short absence following those earlier charges.

[16]

In any event, the children were removed from the appellants care
    shortly after the mothers death and the complainant and her brother stayed
    with various relatives for the next four years, until the complainant was about
    16.  The complainant testified that during this period she reported the abuse
    to the police, on one occasion, and to a school counsellor, on another.  The
    report to the police arose in circumstances where she said she had been molested
    by a stranger in a nearby park.  When she was being interviewed by the police
    about that incident, she said, she divulged the prior abuse by the appellant.

[17]

At the time of this police interview, the complainant was living with an
    aunt  the appellants sister.  She testified that the aunt became agitated
    when she began to relate the allegations of abuse by the appellant to the
    police.  The aunt was in the kitchen, out of sight of the police officer, but
    within the complainants line of sight, and was waving a kitchen utensil and
    shaking her head to signal that the complainant should stop talking.

[18]

The complainant also said that she reported the appellants abuse to her
    high school counsellor: I dont know if it was a number of sessions, she
    testified, or a passing reference to, I, I really dont recall how much or how
    in depth we talked about it.

[19]

Neither the police nor the school authorities had any records of the
    complainant having made any such statements, and there was no evidence that
    either the police or the school authorities had reported these allegations to
    the CAS.

[20]

The final allegations of physical and sexual abuse related to a five or
    six month period when the complainant moved back in with the appellant sometime
    in early 1989, when she was 17.  She moved back, she said, because the
    appellant told her that her younger sister, Jeannette (the daughter of the
    appellant and the complainants mother) was anorexic and lonely and that she
    missed her older sister and needed her as a role model.  The relationship,
    normal at first, soon turned violent again.  The appellant began questioning the
    complainant about her male friends, asking if she was sleeping with them, and
    calling her abusive names.  There was one further incident of inappropriate sexual
    touching at a restaurant, and a few days thereafter a physical altercation that
    resulted in her moving out again and going to live with the appellants mother
    for about two years.

[21]

The complainant testified that in September 1989 she spoke to the police
    at her school about the appellant attacking her.  She does not recall whether
    she told the police about the prior abuse at that time.  Nothing further came
    of this because her grandmother did not want her to press charges and told her
    that if she did, she could no longer live there.  She needed a place to live.

[22]

In 1994 the complainant moved to Vancouver where she has continued to
    reside, except for a few months in 1996 when she returned to Toronto after
    Jeannette had a baby.  She had little, if any, contact with the appellant
    during this period until a telephone call in January, 2003.  At that time, the
    appellant called Jeannettes home when the complainant was visiting.  The
    complainant testified that during this call the appellant told her she was
    godless and evil, that he mockingly apologized for what he had done and at
    one point laughed and said he wasnt sorry for the abuse.  During that same
    visit, she says, her nephew (by then, about six years old) asked her if his
    grandpa had hurt her and started to cry.  At about the same time, the
    complainant says the appellant was harassing one of her friends in Vancouver
    over her friendship with the complainant.  These three incidents  the mocking
    telephone call, the question and reaction of her nephew, and the treatment of
    her friend  provided the incentive for the Christmas letter referred to
    earlier.  The complainant said that she believed the appellant wasnt
    stopping.  Hes scaring people.  Hes still trying to get to me, even though I
    live across the country.  When she visited Jeannette at Christmas 2003, she
    decided as a Christmas present to myself I would send the letter.  Her
    intention, she said, was to scare [the appellant] away.

[23]

In the appellants submission, the letter epitomizes the hatred
    the complainant bears towards him and that hatred provides the true motivation
    for what he argues are the false charges against him.  While the letter does
    refer to some allegations of physical and sexual abuse, it is more or less
    venomous in other respects as well.  In it, for example, she stated:

·

You preached years of Bhakti,
[1]
stockpiled scripture, offered empty rote prayer, in your arrogance thinking
    these desperate attempts will spare you eternal damnation, reincarnation as
    some disgusting cockroach or what have you.

·

As self-professed Guru you shirk all parental onus and instead
    impede [Jeanettes] small, traumatized family by mooching support,
    companionship and medical care.

·

You are no priest, Manny. You were never even a proper son,
    brother, husband, uncle, father or man.  You are a power hungry, sadistic,
    spoiled brat of a man-child.

·

You exaggerate illness to use now as always: to excuse your
    violence when we were young; to get fraudulent support/tax benefits when your
    daughter lived in
my
custody; and to use your daughters family as
    slaves still (emphasis in original).

·

I can only imagine what else youve done to [Jeanette] as a
    child. What few things I do know  verbal abuse and smashing of ribs
    hospitalizing her for example  leave her permanently scarred. So it is that
    she came into my care, anorexic, attempting suicide, self-mutilating her body
    with nails and blades while just a teenager. You gave me not so much as a scrap
    of food or clothing to help as I spent my youth raising her through her worst
    times.

·

You killed my mother through slow, agonizing torture

·

You brought disgrace on my beautiful fathers name

·

If you ever again come after me and mine, even look in my
    direction, you will experience the abuse you visited upon us all yourself in your
    prison cell. Every day until you die and I laugh, dance & spit upon your
    grave.

[24]

A year later the complainant wrote to Toronto police stating that she
    had been abused by the appellant and expressing her concern that the appellant
    had at that time unsupervised access to her nephew.  The police investigated.
    The complainant gave the 2005 statement to the RCMP referred to above.  The
    charges were laid against the appellant later that year.

ANALYSIS

Overview

[25]

At the outset of his reasons, the trial judge reviewed all of the
    pertinent principles of law  reasonable doubt, the burden of proof, and the
    way in which the evidence of adults testifying as to events that occurred
    during their childhood should be assessed.  He referred to the need to consider
    both credibility and reliability in assessing the complainants evidence.

[26]

The trial judge then engaged in a thorough and careful examination of
    the complainants testimony.  He said on a number of occasions that he found it
    to be sincere, honest, or truthful, and explained why.  He recognized and
    addressed the inconsistencies between her testimony and what she told the CAS
    in 1984 and the RCMP in 2005, and accepted her explanations for these
    inconsistencies.  Where he did not accept the complainants evidence  with
    respect to the alleged incidents in the back room of Mannys restaurant and at Jim
    Davidson Motors, because he found it unsafe to rely on the complainants
    revived memory, he excluded that evidence.

[27]

In addition, the trial judge addressed his mind to the various arguments
    put forward by the defence: the complainants delay in reporting; the
    contradictions between her testimony and what she told the CAS in 1984 and the
    RCMP in 2005; motive to fabricate; the duty of police and school authorities to
    report her alleged disclosure to them in the mid-1980s and later in 1989; the
    Christmas 2003 letter; and the argument that the complainant would not have
    gone back to live with the appellant in 1989 if he had previously abused her.

[28]

If the foregoing were all there were to consider on the appeal, there
    would be no basis for interfering with the trial judges decision.  But there
    is more.  The problem does not lie so much in his overview of the law or in his
    review of the evidence.  His reasons are very careful and thorough in those
    respects.  The problem lies in his application of the relevant principles of
    law.

[29]

As noted at the outset of these reasons, the trial judge did not engage
    in a proper reliability analysis respecting the complainants evidence.
In particular, he erred in the manner in
    which he dealt with the lack of evidence respecting whether or not the police
    and school officials had an obligation to  and did or did not  report to
    child welfare authorities the allegations of abuse the complainant said she
    made to them, if in fact she did make them.  This, in effect, shifted the onus
    to the appellant to establish that the school officials and police did have an
    obligation to report, rather than considering whether the lack of evidence of
    any follow-up by the police or school officials, itself, could give rise to a
    reasonable doubt about the reliability of the complainants evidence that she
    did report allegations of abuse to the police and school officials (and,
    therefore, on the reliability of her evidence as a whole).

Reliability

[30]

Although the trial judge alluded at the outset of his reasons to the
    importance of being satisfied about the reliability, as well as the
    credibility, of the complainants testimony, ultimately he did not undertake a
    proper reliability assessment.  The focus of his reasons was on credibility in
    the sense of sincerity and believability.

[31]

There can be no doubt  as Ms. Bartlett-Hughes reminds us  that
    findings of credibility and reliability are peculiarly within the domain of the
    trial judge and only rarely overturned on appeal.  As this Court noted in
R.
    v. R.W.B.
(2003), 174 O.A.C. 198, at para. 9:

The role of a trial
    judge as a listener and observer of the evidence cannot be overstated.  The
    trial judge is in the best position to make findings with respect to the
    credibility and reliability of the witness and therefore appellate courts must
    be deferential to the assessment of credibility made at trial.

[32]

See also
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at
    paras. 10-12.

[33]

The deference that follows from this notion is premised on the proper
    application of the relevant legal principles, however.

[34]

Even if the complainant appeared to be sincere, truthful, and
    honest  as the trial judge noted several times throughout his reasons  and
    even if the complainant believed what she was saying, it does not follow
    necessarily that what she was saying was reliable.  Credibility alone, in this
    sense, is not enough.  This is particularly important where the accused is
    facing charges based entirely on allegations of historical physical and sexual
    abuse, and where also -- as here  there were serious reliability issues.

[35]

Memory is fallible.  Courts have long recognized that even an apparently
    convincing, confident and credible witness may not be accurate or reliable and
    that it is risky to place too much emphasis on demeanour alone where there are
    contradictions and inconsistencies in the evidence: see
R. v. McGrath
,
    [2000] O.J. No. 5735 (S.C.), at paras. 10-14;
R. v. Stewart
(1994), 18
    O.R. (3d) 509, at pp. 515-18;
R. v. Norman
(1993), 16 O.R. (3d) 295, at
    pp. 311-15.  As Finlayson J.A. noted in
Stewart
, at pp. 516-17:

It is evident from his
    reasons that the trial judge was impressed with the demeanour of the
    complainant in the witness box and the fact that she was not shaken in
    cross-examination.
I am not satisfied, however, that a positive finding of
    credibility on the part of the complainant is sufficient to support a
    conviction in a case of this nature where there is significant evidence which
    contradicts the complainants allegations
.  We all know from our personal
    experiences as trial lawyers and judges that honest witnesses, whether they are
    adults or children, may convince themselves that inaccurate versions of a given
    event are correct and they can be very persuasive.
The issue, however, is
    not the sincerity of the witness but the reliability of the witnesss
    testimony.  Demeanour alone should not suffice to found a conviction where
    there are significant inconsistencies and conflicting evidence on the record
:
    see
R. v. Norman
for a discussion on this subject. [Citations omitted, emphasis
    added.]

[36]

Here, a regular theme in the trial judges acceptance of the
    complainants testimony was that she was sincere, she was honest, she was doing
    her best to be truthful.  But he does not appear to have focussed on whether
    her testimony was reliable or accurate.  David M. Paciocco and Lee Stuesser
    describe the distinction between credibility and reliability in this
    context as follows in their text,
The Law of Evidence
, rev. 5th ed. (Toronto:
    Irwin Law, 2010), at p. 29:

Credibility is often
    used to describe the honesty of a witness. Reliability is frequently used to
    describe the other factors that can influence the accuracy of testimony, such
    as the ability of the witness to make the relevant observation, to recall what
    was observed, and to communicate those observations accurately.

[37]

The allegations in this case relate to events that occurred many years
    before the trial, when the complainant was a little girl and a teenager.  She
    was 36 when she testified.

[38]

In such cases  cases evolving out of allegations of distant events,
    including allegations involving historical acts of physical and sexual abuse  particular
    caution and scrutiny are called for in approaching the reliability of
    evidence.  Rosenberg J.A.  highlighted the need to be cautious about relying
    upon adult memories of childhood impressions in
R. v. M.(B.)
(1998), 42
    O.R. (3d) 1 (C.A.), at p. 29.  Memories become increasingly frail over time.
    Evidence that might have existed had the matter been dealt with earlier may
    have disappeared.  Or it may become contaminated.  Life experiences can colour and
    distort the memory of what occurred.

[39]

Minden J. discussed these cautionary considerations in
McGrath
,
    at paras. 11-14:
[2]

Much of the author's focus is on the need for a particularly rigorous
    approach to issues
of reliability given the frailties of memory of
    distant events: see: R. v. S.(W.)
(1994), 90 C.C.C. (3d) 242
(Ont. C.A.). The trier of fact's experience and knowledge about human nature
    and memory may serve to betray rather than guide in cases of this kind: see
    also R. v. M.(B.)
(1998), 130 C.C.C. (3d) 353
(Ont. C.A.). Accordingly
, careful scrutiny must be
paid
    to the evidence: see R. v. Norman
(1993), 87 C.C.C. (3d) 153
(Ont. C.A.).

In that regard, a
    number of factors should be kept in mind. A witness' difficulty in recollection
    due to the passage of time must not lead to an "undiscriminating
    acceptance" of his or her evidence. A trier of fact must pay particular
    attention to serious inconsistencies in the account, as well as to significant
    inconsistencies between present testimony and prior accounts. Such
    inconsistencies may disclose unreliability: see, for example, R. v. G.G.
(1997), 115 C.C.C. (3d) 1
(Ont. C.A.). There must be a rigorous analysis of whatever independent,
    extrinsic evidence still exists.

A trier of fact must be
    aware that an apparently honest, confident or convincing witness may not
    necessarily be an accurate witness: see R. v. Norman, supra
. Nor does an abundance of detail in the recounting of an
    event necessarily imply an accurate memory. As well, a trier must bear in mind
    the "subtle and not so subtle influences" that may have over time
    distorted memory.

The influences upon the
    life of a witness over the course of many years also make it difficult to
    fairly assess an apparent lack of motive to fabricate. In this context, the
    trier must be particularly vigilant to ensure that the burden of proof is not
    shifted to the accused. A trier of fact must be alive to the fact that passage
    of time provides more opportunities for collusion or contamination between
    multiple complainants. This must be kept in mind when assessing the probative
    value of similar act evidence.

[40]

Following that review, Minden J. concluded, at para. 15:

Finally, in the overall
    assessment of the evidence, there is a special need to self-instruct on the
    frailties of evidence concerning events from the distant past.  Trials
    concerning distant events may call for a direction to proceed cautiously before
    acting on unconfirmed evidence, even in a case in which the particular
    circumstances do not otherwise mandate a special warning.  In the application
    of the reasonable doubt standard, a trier of fact must be especially mindful of
    the absence of evidence that might have been available had the matter been
    prosecuted at an earlier date.

[41]

I agree.  The idea that trial judges should consider the need to
    self-instruct on the frailties of evidence concerning events from the distant
    past is a sensible one for all of the reasons summarized in
McGrath
.  Each
    case will depend upon its own circumstances, and I do not mean to suggest that
    some type of formal instruction need necessarily be given.  Where, however  as
    here, and in this type of case generally  there are objective reasons to
    scrutinize carefully the reliability of a witness whose testimony is central to
    the proof of guilt, the trial judges reasons should demonstrate that he or she
    is alert to the frailties of, and the risks associated with, such evidence, and
    to the need to address it with that careful scrutiny.

[42]

In underscoring these considerations, I am not seeking merely to
    duplicate the principles that apply to the assessment of the evidence of an adult
    witness testifying about events that occurred when the witness was a child.
    Those principles  as articulated by the Supreme Court of Canada in
R. v.
    W.(R.)
, [1992] 2 S.C.R. 122, at pp. 133-34  were properly addressed by the
    trial judge.  But they do not speak to the reliability concerns that arise due
    to a significant passage of time between experience and testimony in cases
    involving historic allegations.
W. (R.)
is focussed on the need to
    consider the evidence of the adult testifying as to childhood events in the
    context of the age of the witness at the time of the events to which she is
    testifying: see para. 26.  The
McGrath
cautions deal with a broader worry:
    the inherent frailties attaching to evidence that attempts to reconstruct
    distant events through the prism of memory that may be coloured or distorted by
    the erosive impact of time and life experience.

[43]

The concerns flagged in
McGrath
are important here.  Had the
    trial judge conducted a proper reliability analysis with them in mind, he might
    have been more attentive to (i) the need in these circumstances to look for
    some confirmatory evidence where such evidence should have been available,
    particularly given the inconsistencies and contradictions in the complainants
    testimony; (ii) the concern that an abundance of detail in cases involving
    distant events may not necessarily imply an accurate memory;
[3]
(iii) the absence of evidence to support the complainants testimony in key
    areas; and, (iv) the worry that the simple vicissitudes and influences of life over
    a long period can have an impact on such things as motive and reliability.

[44]

All of these factors were in play in this case.  There was little, if
    any, independent confirmation of the complainants evidence and there were
    significant examples of an absence of evidence that might reasonably have been
    expected to exist to support her testimony in important areas, if it was accurate
     most particularly her testimony that she had reported the abuse to police and
    school authorities sometime between 1984 and 1987, and her testimony that her
    brother had been abused.  In addition, as Mr. Halfyard submits, the trial judge
    did not question whether the complainants detailed memory of things that
    happened to her in the distant past might be a by-product of the influence of
    the complainants life experiences on her memory. Rather, the trial judge simply
    accepted  without this analysis  that her detailed recall was the sign of a
    remarkable memory, and used it instead to bolster his confidence in her
    testimony.

[45]

The trial judge did consider some of the weaknesses in the complainants
    testimony.  However, he resolved inconsistencies and overlooked a lack of
    corroborating evidence by accepting the sincerity or believability  as opposed
    to the reliability  of the complainants testimony.  The trial judge
    considered the weaknesses in the complainants testimony by assessing them
    against the defence position and asking himself whether or not the defence had
    persuaded him.  This led to a failure to apply the doctrine of reasonable doubt
    properly to evidence  or the absence of evidence  that could raise a
    reasonable doubt in favour the defence.  I turn to that issue now.

The Failure to Apply Reasonable Doubt Principles Properly
    to the Evidence or Absence of Evidence

[46]

Closely aligned with the trial judges failure to conduct a proper
    reliability analysis was his piecemeal approach to analysing the complainants
    evidence without standing back and asking himself whether  even though he
    accepted her explanations  the various factors that could favour the defence
    taken together could nonetheless give rise to a reasonable doubt and, more
    specifically, whether the absence of evidence in material areas could be the
    basis for a reasonable doubt:
R v. Lifchus
, [1997] 3 S.C.R. 320.  As the
    trial judge noted, the defence does not have to prove anything.

[47]

As mentioned above, the trial judge did address the various points
    raised on behalf of the appellant by way of defence.  This was a perfectly
    proper analytical approach, as far as it went.  Having done so, however, it was
    incumbent on the trial judge to take the further step of asking himself whether
     even though he accepted the complainants testimony in relation to the
    various areas of attack mounted by the defence  the inconsistencies and other
    problems raised by the appellant in relation to the evidence, taken together,
    could give rise to a reasonable doubt as to guilt.

[48]

Consider, for example, the following:

·

The complainant, on her own version of events, had lied to the
    CAS in 1984 (denying that there had been any physical or sexual abuse between
    1980 and 1984); and,

·

She was untruthful again when making her allegations to the RCMP
    in 2005 (denying that there had been any oral sex in the back room of the
    restaurant);

·

Importantly, there was a total absence of evidence to support her
    allegations that she reported the abuse to the police and later to a school
    counsellor, and there was no evidence of any follow-up by the police or school officials;

·

The trial judges error  which I will address in a moment  in
    concluding that he required evidence to establish whether the school and police
    authorities were obliged to disclose her allegations to child welfare
    authorities, and his consequent rejection of the defence position in this
    regard, made the failure to consider the absence of evidence point worse from a
    reasonable doubt perspective;

·

The complainants evidence that she did not want to go to the
    police because when the police had been contacted on the first occasion in
    1979-80, the abuse had only worsened thereafter, may have been inconsistent
    with the statement in a letter she wrote to the Toronto Police Service on
    February 23, 2005 that there may be other reports due to numerous domestic
    violence calls; and

·

Although the trial judge concluded it would be unsafe to rely on
    the complainants testimony about the alleged sexual abuse in the back room of
    the restaurant and at Jim Davidson Motors because her recollection was tainted
    by revived memory syndrome, he failed to consider whether the same phenomenon
    might have coloured or distorted other aspects of her testimony as well.

[49]

Had the trial judge related these various considerations to the doctrine
    of reasonable doubt, he might well have concluded that the Crown had not
    established the issue of guilt beyond a reasonable doubt.  Respectfully, he
    failed to do so.

[50]

Instead, what he did, in effect, was to assess the factual underpinning
    for each argument raised by the defence separately and decide that he was not
    persuaded on that particular point: he accepted the complainants explanation,
    or there was some other basis for explaining away the defence position.  He
    then moved on to a consideration of the next defence argument and disposed of
    it in the same fashion, with the same result (except for the two instances of
    revived memory).

[51]

The difficulty with this approach to the evidence is that it runs the risk
    of the trier applying the burden of proof on a piecemeal basis, rather than on
    the whole of the evidence, and in doing so, shifting the burden to the defence:
    see
R. v. Morin
, [1988] 2 S.C.R. 345, at pp. 358-62;
R. v. B. (G.)
,
    [1990] 2 S.C.R. 57, at p. 77.  Here, the trial judges reasons do not
    demonstrate that he in fact took the next step and weighed the evidence or
    absence of evidence favouring the defence in the context of the evidence as a
    whole and did so against the test of whether it might raise a reasonable doubt,
    individually or cumulatively, in that context.

The Absence of Evidence

[52]

The way in which the trial judge approached the absence of documentary
    evidence to support the complainants testimony that she had reported her abuse
    to the police and to the school officials in the mid-1980s, illustrates this
    error.  As noted above, the absence of evidence can be a particularly important
    factor in the reasonable doubt analysis in cases involving allegations of
    historical abuse.

[53]

At trial, the appellant relied heavily  as a compelling factor giving
    rise to a reasonable doubt  on the absence of any evidence in the form of
    police or school records confirming that the complainant had reported the abuse
    to those authorities or indicating that they had taken any follow-up steps as a
    result.  And if there were a reasonable doubt about whether her evidence that
    she had reported the abuse was reliable, that, in turn could cast a reasonable
    doubt on whether her allegations as a whole were reliable.  Instead of
    considering the absence of such evidence in this light, however, the trial
    judge was at pains to explain why it did not necessarily follow from the absence
    of such evidence that the complainant did not report.

[54]

The trial judge observed that the Crown is not required to call any
    particular witness to establish that records did or did not exist, thereby
    suggesting that it was for the defence to do so  a subtle shift in burden as
    well.  He went on to say this regarding the complainants alleged report to the
    school authorities:

There is no evidence in
    this case whether school records existed at the time but have since been
    destroyed or whether in fact, there are no records,
and it may be that there
    are records
.  We dont have any evidence on this.  The Crown says that
without
    evidence that there is a lack of a record
at the time
or that there is a
    record that contradicts
what [the complainant] said, it cannot be said that
    she did not make any disclosure to her counsellor.  I accept that position.  It
    makes sense. [Emphasis added.]

[55]

One might expect that, if the Crown had access to occurrence or other
    reports to corroborate the complainants testimony that she reported the abuse,
    the Crown would have disclosed that evidence and led it to rebut the defences
    fabrication argument.  Instead, the trial judge appears in the passage cited
    above to have come close to proceeding on the basis that there may have been
    records, or at least on the basis that the absence of evidence concerning such
    records was a neutral factor in terms of the complainants credibility.  That
    aside, however, the issue is not whether, in fact, the complainant did report
    the abuse as she said, in spite of the absence of evidence supporting that
    testimony.  The issue is whether the absence of evidence supporting that
    testimony formed the basis for a reasonable doubt that she reported the abuse
    as she said.

[56]

The trial judges treatment of the defence position respecting the absence
    of police records to support the complainants evidence that she reported the
    abuse to them is also instructive.  He applied the foregoing analysis regarding
    the report to the school authorities to the absence of police records as well and
    concluded this part of his reasoning with the following comments:

Whether the police followed up from what [the
    complainant] had told the police officer is not in evidence.
It may be
that the police officer looked up records and saw a reference to the 1980
    charges against Mr. Sanichar and thought the matter was closed.  If there was
    no follow-up,
it may be
because the complaint that brought the officer
    to the house was the groping by a stranger in the park.
It may be
that
    [the complainant] minimized what she was saying because of her aunts actions
    and dissuading her from talking about it.
It may be
that the police
    officer felt counselling for [the complainant] would be the appropriate
    action.
All of this is speculation
, of course, but
I cannot conclude
on the evidence
that [the complainant] did not disclose something
to
    the police officer about what her stepfather had done to her in the past.

I accept [the
    complainants] evidence of what happened with the police officer
as truthful
.
    It is something she clearly remembered and something
she remembered with
    considerable detail
. [Emphasis added.]

[57]

Respectfully, this passage does not demonstrate that the trial judge
    approached this evidence  the absence of police records and follow-up or the
    absence of school records and follow-up  from the perspective of asking
    whether it gave rise to a reasonable doubt.  Rather, it suggests that he had
    not been persuaded by the defence that no records existed to contradict the
    complainants testimony and, therefore, concluded that she had in fact reported
    the abuse.  The next step in the analysis  perhaps more subtle  was to
    conclude that her testimony as to the allegations of abuse was confirmed.  This
    was not a permissibile line of reasoning, in my view, because it failed to
    evaluate the inconsistencies and contradictions, and the absence of evidence in
    important areas, through the lens of the doctrine of reasonable doubt.

The Duty to Report

[58]

Another aspect of the trial judges reasoning process heightens my
    concern over his approach to the assessment of the reliability of the
    complainants evidence.  He rejected the defence position that the school
    authorities and the police would have had an obligation to report the
    complainants allegations to the CAS and that, if she had in fact reported,
    there would be some evidence of follow-up by the authorities.  He did so on the
    basis that there [was] no evidence before [him] that disclosing things to the
    authorities was a practice back in the mid-80s or a requirement.  Instead of
    considering whether the absence of evidence of follow-up could give rise to a
    reasonable doubt, the trial judge concluded that it is too speculative to
    support a conclusion that [the complainant] did not disclose something to the
    counsellor ... because there is no evidence before me of follow-up.

[59]

With respect, the trial judge erred in rejecting the defence position on
    disclosure obligations based on an absence of evidence of the practice in the
    mid-80s.  This error was significant for his assessment of the reliability of
    the complainants evidence.  At the relevant time, s. 68 of the
Child and
    Family Services Act
, S.O. 1984, c. 55 mandated that such officials report
    suspicions of child abuse to a Childrens Aid Society.  The requirement to do
    so was not a matter of practice (which might require evidence), but a
matter
    of law (which did not)
.

[60]

Ms. Bartlett-Hughes points out that the reporting requirement did not
    apply to children aged 16 or older.  However, the complainants disclosure to
    the school and the police was said to have taken place sometime in the
    1984-1987 time frame.  The complainant did not turn 16 until September, 1987.  There
    is nothing in the record to suggest that the complainant made her alleged
    disclosure after that time.

[61]

Given the reporting requirement, it seems unlikely  had the complainant
    reported the abuse as she said she did, in the time period in which she said
    she did  that there would be an absence of any record of the report or of any
    follow-up to that report on the part of both the police and the school
    authorities.  This was a powerful consideration that needed to be addressed in
    the reasonable doubt analysis.  Moreover, the trial judges approach to the
    requirement to report allegations of abuse could only have tainted his finding
    that the complainant had in fact reported her allegations to the authorities,
    as she said she had.  Based on his reasons, that tainted finding, in turn,
    appears to have played a significant role in the trial judges finding that the
    complainants testimony was credible and reliable and, ultimately, that the
    appellant was guilty.

CONCLUSION

[62]

The verdict in this case is not unreasonable in the sense that a
    properly instructed trier of fact could not have made findings of guilt on the
    record.  It is nonetheless unsafe to uphold the conviction, in my view, for the
    reasons I have outlined above.  This was a case arising out of alleged acts of
    historical physical and sexual abuse.  The trial judge did not conduct a proper
    inquiry into the reliability of the complainants testimony, as opposed to merely
    assessing her sincerity or apparent truthfulness.  This error was compounded by
    his failure to apply the principles of reasonable doubt to the aspects of the
    evidence in the Crowns case that could be said to favour the defence, as
    illustrated by his flawed approach to the requirement that the police and
    school authorities report allegations of physical and sexual abuse  were they
    made  to the Children Aids Society.

[63]

In all the circumstances, I am satisfied that the appeal should be
    allowed and a new trial directed, and I would so order.

R.A. Blair J.A.

I agree E.A. Cronk
    J.A.

Laskin J.A. (Dissenting):

[64]

I
    have read the reasons of my colleague, Blair J.A.  He would allow the appeal,
    set aside the convictions and order a new trial.  He would do so for two
    reasons.  First, he concludes that the trial judge did not properly assess the
    reliability of the complainants evidence.  Second, he concludes that the trial
    judge failed to consider whether the absence of documentary evidence that might
    have corroborated the complainants evidence gave rise to a reasonable doubt.

[65]

I
    respectfully disagree with both of these conclusions.  Throughout his lengthy
    reasons, the trial judge considered not just the credibility, but the
    reliability of the complainants evidence.  Indeed, at several points he did so
    expressly.  He addressed various concerns about the complainants testimony
    that bore on the accuracy of her evidence.  And, perhaps most important, he
    held that it would be unsafe to act on two of the alleged incidents of sexual
    abuse and disregarded the complainants evidence of those incidents.  He did so
    not because he found her evidence lacking in credibility, but because he found
    that her evidence on those two incidents was not sufficiently reliable.

[66]

The
    trial judge also considered the effect of the absence of police and school
    records, but remained convinced beyond a reasonable doubt of the appellants
    guilt on the basis of the complainants evidence.  That was his call to make.
    I would dismiss the appeal.

(1)       The Case

[67]

My
    colleague has thoroughly reviewed the evidence.  In brief, the appellant was
    charged with 12 counts of sexually and physically abusing his step-daughter.
    The counts covered the period 1980 to 1984 when the complainant was between
    nine and thirteen years old, although she gave evidence of sexual abuse
    beginning when she was five years old.

[68]

The
    Crowns case consisted entirely of the evidence of the complainant.  She was 36
    years old when she testified.  The appellant did not testify.  The trial judge
    convicted him on all counts.

(2)       Credibility and Reliability

[69]

I
    accept that reliability is not the same as credibility; that is well
    established.  Credibility has to do with the honesty or veracity of a witness
    testimony.  Reliability has to do with the accuracy of a witness testimony.
    Many cases of mistaken identification have shown that a credible witness may
    give unreliable evidence.

[70]

The
    reliability of a witness testimony is often gauged by the witnesss ability to
    observe, recall and recount the events at issue: see
R. v. H.C.
, 2009 ONCA
    56, 241 C.C.C. (3d) 45, at para. 41.  The passage of time may have an effect on
    the witness ability to do so accurately.  For this reason, my colleague
    suggests that in cases, such as this one, of historical sexual abuse, the idea
    that trial judges should consider the need to self-instruct on the frailties
    of evidence concerning events from a distant past is a sensible one.  Perhaps
    it is, but the trial judge cannot be criticized for not expressly
    self-instructing along these lines.

[71]

This
    courts decision in
R.
    v. Betker
(1997), 115 C.C.C. (3d) 421, shows that the
    self-instruction proposed by my colleague is not legally required. In that case
    an accused was convicted of sexual abuse following a trial before a judge and
    jury.  On appeal, the appellant argued that because of the age of the charges
    (25 years old) and because the Crowns case rested on the complainants
    evidence, the trial judge should have warned the jury to proceed with caution
    before acting on the evidence of the complainant. Moldaver J.A. rejected this
    argument:

Regardless,
    the law is clear that the decision to caution the jury along the lines
    suggested by the appellant is discretionary on the part of the trial judge.
    The mere fact of a significant passage of time between the alleged offences and
    the laying of the charges does not, in itself, mandate such a caution: at p. 428.

If
    no special warning is required in a jury trial, then a trial judge is not
    required to self-instruct in a judge alone trial.

[72]

Further,
    although credibility and reliability are distinct concepts, they both involve
    factual determinations that, as my colleague notes, attract significant
    deference from a reviewing court: see
R.
    v. R.W.B
. (2003), 174 O.A.C. 198, at para. 9. An appellate court
    should not interfere with a trial judges assessment of the reliability of a
    complainants evidence simply because it would have arrived at a different
    result.

(3)       The Trial Judge Considered and Assessed the
    Reliability of the Complainants Evidence

[73]

The
    trial judges reasons must be assessed in the context of the live issues before
    him.  The defence forcefully attacked the complainants credibility.  In
    closing, defence counsel maintained that she was a liar and that she had
    fabricated her evidence because of her hatred of the appellant, whom she blamed
    for her mothers death.

[74]

The
    trial judge, however, rejected the defences claim of fabrication.  He found
    the complainant to be an honest, sincere and truthful witness, and he gave
    reasons for why he found her credible.  My colleague does not suggest he erred
    in his credibility finding.  Nor do I.

[75]

In
    addition to attacking the complainants credibility, the defence raised
    concerns about the reliability of her evidence.  Thus, reliability was also a
    live issue at trial. However, in my opinion, it was an issue that the trial
    judge was very much aware of.  His reasons show at least three ways in which he
    considered and properly assessed the reliability of the complainants
    evidence.

[76]

First,
    at several places in his reasons the trial judge expressly adverted to the need
    to consider the reliability of the complainants evidence.  For example:

·

In the
    opening paragraph of his reasons, the trial judge said: The real issue in this
    case is whether the events alleged to form the basis of the crimes charged ever
    took place or have been proven with
sufficiently
    reliable
evidence. [Emphasis added.]

·

Several pages
    later, before embarking on a detailed review of the evidence, the trial judge
    said: The defence raises both the
credibility
    and reliability
of [the complainants] evidence. I
must therefore consider both of
    these
in assessing her evidence. [Emphasis added.]

·

Later in his
    reasons, the trial judge noted that the complainant had been undergoing
    counselling but commented that it does not mean, however, she is making up her
    evidence or that her evidence is not
reliable
.
    [Emphasis added.]

[77]

Second,
    the trial judge addressed specific aspects of the complainants evidence that
    raised reliability concerns.  He began by instructing himself in accordance
    with
R. v. W.(R.)
,
    [1992] 2 S.C.R. 122, on how to assess the evidence of an adult testifying to
    events that occurred when she was a child.  He then considered a number of
    matters that may have affected the reliability of the complainants testimony.
    For example:

·

The
    complainants acknowledged hatred of her step-father.

·

The general
    and not specific nature of the complainants evidence about when various
    incidents took place was.

·

The
    inconsistency between what the complainant told the RCMP about what occurred in
    the back of the restaurant and what she said about that incident in her
    evidence in chief.

·

The
    Childrens Aid Societys interview of the complainant when she was 12 years old
    in which the complainant denied that she had been sexually abused.

·

The
    complainants evidence of her memory on some things put to her in
    cross-examination may not have been entirely consistent.

·

The
    complainants detailed memory of various incidents that occurred when she was
    young.

[78]

Third,
    and as I said at the outset of my reasons, perhaps most important, the trial
    judge did not convict the appellant in respect of two particular incidents
    because the complainants evidence on each incident, though sincere and
    credible, was simply not reliable.  The first incident concerned an allegation
    of oral sex in the back of the appellants restaurant, and the second incident
    concerned an allegation of sexual activity at Jim Davidsons Motors.

[79]

The
    trial judge set out the defence position:

It is also
    put by the defence that [the complainant] has a substantial contradiction in
    her evidence regarding the fellatio she says she was forced to perform in the
    back room of the restaurant.  There is no doubt that [the complainant] said one
    thing to the RCMP in 2005.  She said she could not remember any fellatio taking
    place there and another thing at the preliminary hearing and at the trial when
    she said that forced fellatio did occur at that place.

[80]

The
    trial judge then explained why he thought it would be unsafe to accept the
    complainants evidence on these two incidents:

[The
    complainants] explanation, as I have referred to, is that the incident came
    back into her mind after being in the trailer, and I have already referred to
    that evidence.

I accept
    the sincerity of [the complainants] evidence on this point. She may well have
    had a mistaken recollection of this when she talked to the RCMP.  However, in
    my view, it would be unsafe to act on her evidence of the oral sex that she
    described as having taken place in the back room of a restaurant, and I
    disregard that evidence.  I do so not because I think her evidence is
    fabricated.  To the contrary.  I do not think it is fabricated, and I accept
    the explanation regarding the trailer incident as reviving her memory as
    evidence honestly given, but I believe it would be unsafe to act on that
    revived memory of oral sex in the back room of the restaurant, and I will
    disregard that evidence.

For the
    same reason, [the complainants] evidence of what occurred at Jim Davidsons
    Motors must be disregarded because [the complainant] said it was being in the
    trailer that triggered her memory of that as well.

[81]

The
    trial judges principal reason for finding that it would be unsafe to act on
    the complainants evidence concerning those two incidents is that her testimony
    may have been prompted by a revived memory from visiting the trailer.  My
    colleague criticizes the trial judge for not considering whether a revived
    memory may have coloured or distorted other aspects of her evidence.  I cannot
    agree with this criticism.  As the above quoted passage illustrates, the
    complainant admitted that the visit to the trailer had triggered her memory.  I
    see no evidence in the record even to suggest that her evidence about other
    incidents of sexual abuse was similarly triggered.  Indeed, from 1980 onward
    the complainant consistently maintained that the appellant had sexually abused
    her.

[82]

Throughout
    his reasons the trial judge appreciated that he had to assess the reliability
    as well as the credibility of the complainants evidence; he did so.  His
    assessment is deserving of deference and I am not persuaded of any basis to
    interfere with it.

(4)       The Trial Judge Considered Whether the
    Absence of Documentary Evidence Gave Rise to a Reasonable Doubt

[83]

Blair
    J.A. finds that the trial judge erred by failing to consider whether the
    absence of police records and school records to support the complainants
    allegations gave rise to a reasonable doubt.  He makes the related point that
    the trial judge also erred in rejecting the defences position that the police
    and school authorities had an obligation to report suspected abuse to the
    Childrens Aid Society.  The trial judge said that he had no evidence that
    reporting to the Childrens Aid Society was a practice or even a requirement in
    the mid-1980s; my colleague relies on s. 68 of the
Child and Family Services Act
, S.O.
    1984, c. 55, which required authorities to report allegations of abuse unless
    the child was 16 years of age or older.

[84]

I
    do not agree that the trial judge erred in his treatment of the absence of
    police and school records documenting the complainants allegations of sexual
    abuse.  I begin with two contextual points.  First, at the beginning of his
    reasons the trial judge discussed the meaning of a reasonable doubt and noted
    that it arises logically from the evidence or the
lack of evidence
 (emphasis added).
    Second, the trial judge would have been well aware of the appellants position
    that the absence of records gave rise to reasonable doubt because this was a
    central theme of the defences closing submissions.  Defence counsel argued
    that the lack of corroboration of the complainants story was devastating;
    and he especially focused on the lack of records to confirm her allegations.

[85]

Against
    this background the trial judge specifically addressed the lack of documentary
    records.  He dealt both with the absence of school records and the absence of
    police records documenting the complainants claim of sexual abuse.  He found
    the complainant to be truthful and what a counsellor or a police officer may or
    may not have done with the disclosure to be in the realm of pure speculation.

[86]

My
    colleague takes the position that the trial judges approach effectively placed
    a burden on the appellant to show that records existed.  I do not agree.  The
    trial judge stated: I cannot conclude on the evidence that [the complainant]
    did not disclose something to the police officer about what her stepfather had
    done to her in the past.  In saying this, the trial judge was not looking for
    the defence to persuade him that no records existed.  He was merely expressing
    his belief that the complainants testimony was unshaken by their absence.  The
    absence of records did not prove that the complainant was truthful, but it also
    did not cast doubt on her evidence.  For the trial judge it was a neutral
    factor.

[87]

Although
    he did not use these exact words, he concluded that the absence of records did
    not give rise to a reasonable doubt  in other words, the absence of records
    did not undermine his belief in the complainants testimony, which he gave
    detailed reasons for accepting.  Even without evidence to corroborate the
    complainants testimony, the trial judge was satisfied that on the record
    before him that the Crown has proven beyond a reasonable doubt that the sexual
    and physical assaults described by [the complainant] in her evidence, in fact,
    took place.

[88]

In
    my view, he was reasonably entitled to reach that conclusion.  The complainant
    was vague about what she disclosed to the school counsellor and when she
    disclosed it.  In her words she did recall how much or how in depth (they)
    talked about it.  And she could not be sure how old she was  she could have
    been anywhere between 14 and 17 when she talked to the school counsellor.

[89]

Moreover,
    when she talked to the counsellor, she was not living with the appellant and
    was not being sexually assaulted by him.  Even if the complainant was under 16
    at the time and the statute required the school counsellor to report the abuse,
    the complainants circumstances may have led the counsellor to believe that a
    report was unnecessary.  In the light of these considerations, the trial judge
    was entitled to accept the complainants evidence, absent evidence
    contradicting her.

[90]

The
    trial judge was also entitled to conclude that the absence of police records
    did not undermine the complainants credibility.  Again, when the complainant
    spoke to the police officer she was living with her aunt, not the appellant,
    and was not being abused by him.  For any number of reasons, as the trial judge
    noted, the police officer may have thought it unnecessary to document the past
    abuse.

(5)       Conclusion

[91]

For
    these brief reasons, I am not persuaded that the trial judge erred in finding
    the appellant guilty of sexually and physically abusing his step-daughter.  I
    would dismiss his appeal.

John Laskin J.A.

RELEASED:  February 22, 2012

[1]
The Sanskrit word for to belong to or worship.  The Appellant
    is an ordained Hare Krishna Monk.

[2]
Minden J. relied heavily on an article prepared by Marc Rosenberg
    (now Rosenberg J.A.) and delivered at the 1995 Canadian Appellate Court
    Seminar: Issues Arising in Criminal Prosecution for Distant Events (Quicklaw
    reference ADGN/RP-005).

[3]
See Rosenberg, Issues Arising In Criminal Prosecution for Distant
    Events, at paras. 126-127.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

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

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Schofield, 2012
    ONCA 120

DATE: 20120222

DOCKET: C50780

OConnor A.C.J.O. and MacPherson and Rouleau
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Thomas Schofield

Appellant

Brian H. Greenspan and Jill D. Makepeace, for the
    appellant

Elise Nakelsky, for the respondent

Heard:  February 10, 2012

On appeal from the conviction by Justice Alexander Sosna
    of the Superior Court of Justice dated May 22, 2009 and the sentence imposed on
    January 10, 2010.

MacPherson J.A.
:

A.

introduction

[1]

In 2008, the appellant was charged with four counts of indecent
    assault.  The Crowns position was that the appellant had sexually abused four
    young girls who had lived in his neighbourhood in the Oshawa area in the early
    1970s.  Following a 12-day judge-alone trial, the appellant was convicted on
    two charges and acquitted on two other charges. The trial judge imposed a
    sentence of 3 ½ years imprisonment.

[2]

At the appeal hearing, the appellants principal ground of appeal was
    that the trial judge had convened a mid-trial conference in his chambers
    involving himself and both counsel.  The trial judge expressed his opinion
    about both the weakness of the appellants testimony and some problems with the
    Crown case and urged counsel to try to resolve the case.

[3]

The appellant was not present at this in-chambers conference. The
    appellant contends that this violated s. 650(1) of the
Criminal Code
which provides that an accused  shall be present in court during the whole of
    his or her trial.

[4]

The Crown concedes that, given the contents of the discussion in the
    in-chambers conference, s. 650(1) of the
Criminal Code
was violated.
    However, the Crown contends that this is a proper case for the application of
    the proviso in s. 686(1)(b)(iv) of the
Code
to preserve the verdict.

[5]

If the appellant was successful on this ground of appeal, the remedy
    would be an order for a new trial.  However, the appellant also submits that
    the trial judges conviction with respect to two complainants was an
    unreasonable verdict.  If successful on this ground of appeal, the remedy would
    be an acquittal.

[6]

At the conclusion of the oral argument at the appeal hearing, the court
    announced that the appeal would be allowed on the s. 650(1) issue, that the
    proviso would not be applied, and that the unreasonable verdict ground of
    appeal failed.  Accordingly, the court would order a new trial.

[7]

The court indicated that reasons in support of these conclusions would
    follow shortly.  These are the reasons.

B.

discussion

(1)

The s. 650(1) issue

(a)

Facts

[8]

After the conclusion of the Crown case, including the testimony of the
    four complainants, the appellant chose to testify. As soon as he finished his
    testimony, his wife testified.  After her testimony, the court rose for the
    lunch break.

[9]

During the lunch break, the trial judge summoned both counsel to his
    chambers.  The appellant did not attend.

[10]

Both
    trial counsel were very experienced counsel. The Crown counsel, Paul Murray,
    had 17 years experience; defence counsel, Alan Risen, had 34 years experience.

[11]

The
    chambers discussion was not recorded. Nor did anyone, judge or counsel, refer
    to it after court resumed in the afternoon. However, both counsel provided
    affidavits for the purpose of the appellants fresh evidence application on the
    appeal and both were cross-examined on their affidavits. The result is a fairly
    clear and uncontentious description of the purpose and contents of the
    in-chambers conference initiated by the trial judge.

[12]

In
    his affidavit, Mr. Risen states:

6.       In the privacy of his chambers, the trial Judge
    initiated a discussion in which he encouraged me to resolve the case.  Although
    I cannot remember the exact words that he used, the message which the trial
    Judge conveyed was unequivocal; that this was the last opportunity for the Applicant/Appellant
    to resolve the case, and to minimize the potential sentence that he would face
    if he were convicted at the conclusion of the trial.  I clearly recall the
    trial Judge commenting that the Applicant/Appellant didnt do too well in
    cross-examination, or words to that effect.  In response, I advised the Judge
    that several defence witnesses would be called, who would confirm essential
    aspects of the Applicant/Appellants evidence and contradict the evidence of
    the complainants.  I also pointed out that there were serious contradictions
    and inconsistencies in the evidence of the complainants.  Notwithstanding my
    comments, I was left with the understanding that the trial Judge was strongly
    suggesting that the defence case had been seriously undermined by the poor
    performance of the Applicant/Appellant in the witness stand.

7.       The trial Judge then indicated to the Crown that there
    were also some problems with the Crowns case.  This appeared to me to be an
    attempt by the Judge to encourage the Crown to engage in resolution discussions
    with the defence.

8.       The issue of sentence was not discussed and the trial
    Judge offered counsel the opportunity to speak to another jurist about a
    possible resolution.  He advised that Justice Shaughnessy was free to discuss
    the matter.  In light of subsequent instructions which I received from the
    Applicant/Appellant, this was not pursued.  The sole purpose of the trial Judge
    initiating the attendance of counsel in chambers was to encourage resolution.
    No other issues were raised by the trial Judge at this time.

[13]

After
    the in-chambers conference, which lasted about 5 to 10 minutes, counsel had a
    discussion outside chambers.  Mr. Risen told Mr. Murray that he was
    uncomfortable with the meeting with the judge and felt that it put him in a very
    difficult position with his client who had just testified and had always
    maintained his innocence.  Mr. Murray responded with an offer of a recommended
    conditional sentence if the accused pleaded guilty to three of the four
    offences.  Mr. Risen discussed this option with his client and wife.  The
    accused rejected the offer and the trial continued that afternoon with more
    defence witnesses.

(b)
The law

[14]

In
    its factum, the Crown says this:

The respondent concedes that the appellant should not have been
    excluded from the in-chambers discussion.  Any conversation ought to have taken
    place in the appellants presence, in open court, and on the record.

[15]

In
    my view, this is an appropriate concession that flows naturally from the
    leading cases interpreting s. 650(1) of the
Criminal Code
.

[16]

The
    leading case in this area is the decision of this court 30 years ago in
R.
    v. Hertrich
(1982), 137 D.L.R. (3d) 400.  In that case, Martin J.A.
    discussed the rationale for a predecessor to the current s. 650(1), at p. 426:

The essential reason the accused is entitled to be present at
    his trial is that he may hear the case made out against him and, having heard
    it, have the opportunity of answering it:
R. v. Lee Kun
(1915), 11 Cr.
    App. R. 293.  The right of the accused to be present at his trial, however,
    also gives effect to another principle.  Fairness and openness are fundamental
    values in our criminal justice system.  The presence of the accused at all
    stages of his trial affords him the opportunity of acquiring first-hand
    knowledge of the proceedings leading to the eventual result of the trial.  The
    denial of that opportunity to an accused may well leave him with a justifiable
    sense of injustice.  Indeed, in my view, an examination of the Canadian
    decisions shows that the latter principle is, in fact, the implicit and
    overriding principle underlying those decisions.

In
R. v. Barrow,
[1987] 2 S.C.R. 694, at 706-707,
    Dickson C.J.C. cited and specifically endorsed this passage from
Hertrich
.

[17]

In
    several major cases, appellate courts have held that the openness principle set
    out in
Hertrich
requires the presence of the accused at discussions
    held in a judges chambers: see, for example,
R. v. James,
2009 ONCA
    366, 95 O.R. (3d) 321;
R. v. Simon
, 2010 ONCA 754, 104 O.R. (3d) 340;
R.
    v. F.E.E.
, 2011 ONCA 783, 286 O.A.C. 109;
R. v. Walker
2010 SKCA
    84, 258 C.C.C. (3d) 36.

[18]

Not
    every in-chambers discussion is prohibited, especially if the discussion is of
    a preliminary nature, does not involve any final determination and is recounted
    in open court in the presence of the accused: see
Simon
at para.
    117.  The test in each case is whether the context and contents of the
    in-chambers discussions involve [the accuseds] vital interests: see
Hertrich
at p. 428.

[19]

In
    this case, the Crown concedes, properly in my view, that the in-chambers
    discussion about possible resolution affected the vital interests of the
    accused.  It could hardly be otherwise, given the trial judges explicit
    comments about his impressions of the accuseds own testimony.

[20]

Before
    leaving this issue, I want to make one other observation.  The first problem
    with the in-chambers conference in this case is the one I have just discussed:
    because of s. 650(1), it needed to take place in the presence of the accused.

[21]

In
    my view, there is a second, and equally serious, problem with the in-chambers
    conference.  That problem is the actual contents of the discussion and, in
    particular, the trial judges negative comments about the appellants
    just-finished testimony.  Those comments, even if they had been made in the
    presence of the appellant, seriously compromised the trial judges
    impartiality, particularly since this was a judge-alone trial.

[22]

An
    almost identical situation arose many years ago in
R. v. Roy
(1976),
    32 C.C.C. (2d) 97 (Ont. C.A.).  In mid-trial, a trial judge called counsel into
    his chambers, made comments about the evidence, and encouraged counsel to
    consider a plea resolution.  No resolution was achieved, the trial continued,
    and the accused was convicted.

[23]

On
    appeal, this court set aside the conviction and ordered a new trial.  In reasoning
    that stands the test of time and, in my view, is apposite to this appeal,
    Brooke J.A. said at pp. 98-99:

A judge conducting a trial without the intervention of a jury
    is of course the trier of fact and determines the question of guilt or
    innocence.  In my opinion he cannot initiate such a discussion after entering
    upon the trial and hearing evidence and still preserve the appearance of
    impartiality and being of an open mind, which qualities are so essential to a
    fair trial and the meaning of the presumption of innocence.  The fact that he
    initiates such a discussion and sends counsel to the accused with talk of pleas
    of guilty and terms of sentence could reasonably result in apprehension by the
    accused that the judge presiding at his trial had reached some conclusions
    about the case.  It does not hurt to repeat again that justice must appear to
    be done.  This is not limited simply to what is seen from the floor of the
    courtroom or by the public but includes what transpired here.  It is also vital
    that justice must appear to be done, to the accused man in particular.  In
    those circumstances we think the trial lacked this quality and therefore it
    cannot stand.

(c)
The proviso

[24]

The
    Crown contends that the proviso in s. 686(1)(b)(iv) of the
Criminal Code
should be applied in this case because the appellant has failed to demonstrate
    any prejudice flowing from his absence at the in-chambers discussion, either in
    terms of his ability to properly defend himself and receive a fair trial or the
    broader sense of prejudice to the appearance of justice.

[25]

The
    test for the application of the proviso was enunciated by Watt J.A. in
Simon
,
    at para. 123:

To determine whether a breach of s. 650(1) may be salvaged by
    the application of the proviso in s. 686(1)(b)(iv) requires a consideration of
    all the circumstances surrounding the violation.  Relevant factors may
    include, but are not limited to:

i.        the nature and extent of the exclusion,                              including
    whether it was inadvertent or                             deliberate;

ii.       the
    role or position of the defence counsel     in initiating or concurring in the
    exclusion;

iii.      whether
    any subjects discussed during the   exclusion were repeated on the record or          otherwise
    reported to the accused;

iv.      whether
    any discussions in the accuseds     absence were preliminary in nature or    involved
    decisions about procedural,           evidentiary or substantive matters;

v.       the
    effect, if any, of the discussions on the    apparent fairness of trial
    proceedings; and

vi.      the
    effect, if any, of the discussions on         decisions about the conduct of
    the defence.

[26]

The
    exclusion of the appellant from the in-chamber discussion was deliberate; the
    trial judge invited only counsel to the meeting.

[27]

Defence
    counsel did not initiate the exclusion of his client; nor did he concur in the
    exclusion.

[28]

The
    subjects discussed in-chambers in the absence of the accused were not repeated
    on the record; however, they were reported to the accused by his counsel.

[29]

The
    discussions involved very important substantive matters, including the trial
    judges stated impressions of the accuseds testimony.

[30]

In
    my view, the in-chambers discussion had a profound effect on the apparent
    fairness of the trial proceedings.  On this point, I adopt what Richards J.A.
    said in
Walker
, at para. 36:

In my view, this is the sort of situation where larger concerns
    about the administration of justice operate to render s. 686(1)(b)(iv)
    inapplicable.   The trial judge in this case no doubt acted
    innocently and there is no suggestion that she was biased or impartial in fact.
    However, this is not the point.  The perception of fairness and
    impartiality is an essential characteristic of the criminal justice system and
    it must be guarded rigorously. The decision to provide counsel with an
    assessment of the case and inquire about the state of plea bargaining
    necessarily worked to significantly undercut the important notion that justice
    must not only be done, but must be seen to be done.  The judge was
    presiding over a criminal trial.  It was critical that she be perceived as
    being wholly impartial and as not having prejudged the outcome of the
    proceedings.

[31]

On
    the final factor, there is no suggestion that the in-chambers discussion had
    any effect on decisions about the conduct of the defence.  The trial continued
    and the defence called the rest of its witnesses.

[32]

Taking
    these factors together, in my view they tell strongly in favour of the
    appellant.  He was excluded from an in-chambers conference where the trial
    judge explicitly discussed his testimony.  Moreover, the trial judges
    commentary about his testimony was negative.  The result is that the appearance
    of judicial impartiality was compromised.  Accordingly, the proviso in s.
    686(1)(b)(iv) should not be applied.

(2)
The unreasonable verdict
    issue

[33]

It
    is necessary to address this issue because the result of the appellants
    success on the first ground of appeal is an order for a new trial.  If the
    appellant is successful on its unreasonable verdict ground of appeal, the
    result would be an acquittal.

[34]

The
    appellant submits that the trial judge ignored vital defence evidence provided
    by witnesses other than the appellant that contradicted material aspects of the
    Crown case, erred by repeatedly ignoring or forgiving internal inconsistencies
    in the evidence of the Crown witnesses, and did not recognize that certain
    aspects of the complainants allegations were highly improbable and warranted
    consideration by the trial judge as to their credibility and reliability.

[35]

I
    do not accept this submission.  This was a difficult trial.  It involved events
    that took place about 35 years before the trial and related to alleged sexual
    activity involving very young girls.  In my view, the trial judge was acutely
    aware of the difficulties of proof in such a case.  His reasons are
    comprehensive and balanced and support the conclusions he reached.  Indeed, on
    the record before him, the two acquittals and two convictions are entirely
    reasonable.  Accordingly, I would dismiss this ground of appeal.

C.

Disposition

[36]

I
    would grant the appellants application to admit the fresh evidence relating to
    the in-chambers conference, allow the appeal, set aside the convictions, and
    order a new trial.

Released: February 22, 2012 (D.OC.)

J.C. MacPherson J.A.

I agree D. OConnor A.C.J.O.

I agree Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Simmons, 2012 ONCA 94

DATE:  20120213

DOCKET: M40773 (C32002)

Rosenberg and Hoy JJ.A. and Swinton J. (
ad
    hoc
)

BETWEEN

Her Majesty The Queen

Respondent

and

Roy Arnold Simmons

Applicant (Appellant)

Kristin Bailey, for the applicant

Jennifer Woollcombe, for the respondent

Heard: January 17, 2012

An application to reopen the appeal against conviction of
    manslaughter entered by Justice Robert MacKinnon of the Superior Court of
    Justice on April 12, 1999.

By The
    Court
:

[1]

The applicant, Roy Simmons, applies to re-open his appeal from
    conviction for manslaughter. The applicant abandoned his conviction appeal in
    March 2000. He proceeded with his sentence appeal and his sentence was reduced
    from three years imprisonment to 18 months. For the following reasons, the
    application is dismissed.

[2]

The victim of the offence was the applicants three month old
    grandson. At about 7:00 a.m. on May 1, 1994, the applicant took over care of
    the child, while the childs mother, the applicants daughter, went back to
    sleep. The applicant awoke his daughter some time later to say that the child
    was not breathing. She blew into his face to attempt to revive him. According
    to the mother, the applicant administered some blows to the childs back and
    attempted C.P.R. The child was taken by ambulance to the local hospital and
    then to the Hospital for Sick Children. The child had no signs of brain
    function. A CAT scan and radiological examination showed that the brain was
    grossly swollen and there was a significant skull fracture.

[3]

The autopsy was conducted by Dr. Charles Smith. He found scalp
    bruising on the left side corresponding to the skull fracture. There was
    subdural and subarachnoid hemorrhages, cerebral edema (swelling of the brain),
    retinal hemorrhage in the right eye and hemorrhage to both optic nerves.

[4]

The applicant gave various accounts of the events after he took
    over care of the child. He told Dr. Katy Driver, a paediatrician at The
    Hospital for Sick Children, that he fed the child and was attempting to burp
    him when the child went limp. He then put the child on the kitchen table to
    start C.P.R. He held the childs nose and breathed into his mouth. The
    applicant told the critical care chief that while he was feeding the child, the
    child went limp and stopped breathing. He made some efforts to start his
    breathing, including holding him upside down and then placed him on the kitchen
    table to try to perform some type of resuscitation. He blew into the childs
    mouth and pressed on his chest cavity.

[5]

The applicant was tried and convicted twice for the offence of
    manslaughter. His appeal from conviction after the first trial was allowed and
    a new trial ordered. He was tried again and convicted. It is the appeal from
    that second conviction that the applicant seeks to re-open.

[6]

Dr. Smith testified at both trials that the childs injuries were
    the result of blunt force impact. There were also some findings that may have been
    associated with shaking but he could not say with certainty that the child was
    shaken. Dr. Driver, the paediatrician at The Hospital for Sick Children,
    testified that the autopsy findings were indicative of Shaken Baby Syndrome.
    She did not believe that a blow to the head alone would account for all of the
    childs injuries.

[7]

The theory of the defence was accident. Cross-examination of the
    Crown experts suggested that it was the theory of the defence that the childs
    head accidentally came in contact with the kitchen table while the applicant
    was holding him upside down by the feet and hitting his back to try and revive
    him. However, the applicant did not testify and there was no admissible
    evidence that this was the manner in which the child was injured. This theory
    was inconsistent with the accounts the applicant gave to the physicians treating
    the child.

[8]

The prosecution also adduced evidence from the applicants
    upstairs neighbours. They testified that the victim was a fussy, colicky baby.
    The applicant frequently demonstrated his impatience with the child by yelling.
    On one occasion one of the neighbours saw the applicant pat the child in a
    manner that he thought was too strong while the child was held upside down.

[9]

The applicant has filed an affidavit in support of his
    application to re-open his appeal. In the affidavit he states that he filed an
    inmate appeal from conviction on April 22, 1999 and from sentence on May 11,
    1999. He states that he was brought to court for his inmate appeal on March 20,
    2000. The lawyer who acted for him on his first appeal told him that if he
    abandoned his conviction appeal he would argue his sentence appeal that day. He
    was anxious to proceed with his sentence appeal since he had already spent over
    five years in custody and wanted to be released and get on with his life. He
    therefore abandoned the conviction appeal and proceeded with the sentence
    appeal.

[10]

The applicant does not provide an explanation in his affidavit as
    to what he did after he took over care of the child on the morning of May 1,
    1994.

[11]

In his affidavit, the applicant states that despite abandoning
    his appeal from conviction he has always maintained his innocence. He explains
    his failure to testify in this way:

While I always wished to tell the jury my story, a large part
    of my decision not to testify was because of the evidence of Dr. Charles Smith
    and Dr. Katy Driver regarding Shaken Baby Syndrome.

[12]

The applicant states that he decided to try to re-open his appeal
    as a result of The Inquiry into Pediatric Forensic Pathology in Ontario (The
    Goudge Inquiry).

[13]

The applicant relies on two expert reports. A very brief report
    from Dr. Saukko, a professor of forensic medicine, states that the evidence of
    Dr. Smith was not reasonable and balanced and that the question of whether the
    death was accidental or non-accidental could not be determined on the medical
    evidence alone. The death should have been classified as undetermined.

[14]

Dr. Avis, a forensic pathologist, similarly states that it is not
    possible to determine the manner of death and it should be described as undetermined.
    He states that there is no evidence to support Dr. Smiths testimony that he
    suspected a shaking injury. Dr. Avis also says this in his report:

I have not been provided an explanation as to how the injuries
    to [T.W.] may have occurred. A review of the material provided suggests that
    the injuries occurred as a result of Mr. Simmons holding [T.] upside down by
    the ankles while attempted to dislodge obstructing material from the airways by
    applying blows to [T.s] back. Presumably, during this effort a blow was
    accidentally delivered to the head resulting in forward movement of the head
    and subsequent impact with a table.
I do have considerable difficulty with
    such an explanation
.
[Emphasis added.]

[15]

The parties agree that this court has jurisdiction to re-open an appeal
    that, as here, was abandoned and not dismissed on its merits. They also agree
    on the test for re-opening, namely whether it is in the interests of justice to
    re-open. The applicants case to re-open this appeal turns on the proposition
    that the better understanding of Shaken Baby Syndrome as a result of the Goudge
    Inquiry suggests that his conviction may have been a miscarriage of justice.

[16]

In our view, it is not in the interests of justice to re-open the
    appeal. Several factors lead to that conclusion. The applicant has not
    satisfactorily explained the original decision to abandon the appeal. The
    objective evidence does not support the explanation that the applicant
    abandoned the conviction appeal so that his sentence appeal could proceed on
    March 20, 2000. The materials to argue both conviction and sentence appeal were
    available on March 20 and the appeals could have been argued at that time,
    albeit as an inmate appeal. That said, we do not place much emphasis on this
    factor. We would be reluctant to allow an abandoned appeal to stand if the
    result was a wrongful conviction.

[17]

More importantly, the applicant has not established that his case
    is a possible wrongful conviction. This case did not turn on Shaken Baby
    Syndrome, nor did it turn on the kind of evidence from Dr. Smith that was so
    heavily criticized in the Goudge Inquiry. Shaken Baby Syndrome is said to be
    characterized by the triad of symptoms: hypoxicischemic encephalopathy,
    subdural hemorrhage and retinal hemorrhage. The theory behind the syndrome is
    that the infant has been shaken to death causing this triad of injuries. This
    case is different. Here there was a significant skull fracture that could not
    have been caused simply by shaking. There was other circumstantial evidence suggesting
    that the infant was intentionally assaulted. The applicant had given different
    accounts of his actions with the child, none of which could account for an
    accidental blow to the head. He did not testify at trial and has still not
    provided an innocent explanation that would account for the skull fracture. At
    his trials, there was no burden on the applicant to disprove his guilt.
    However, to re-open his appeal he has the burden of at least establishing the
    possibility of a miscarriage of justice. His affidavit and the expert reports
    do not raise that possibility. Especially in light of the report from Dr. Avis,
    the applicant had to know that it was important that he provide some
    information to explain what happened.

[18]

The issue at the applicants second trial was whether the
    injuries were caused by accident in the course of resuscitative efforts or
    intentionally inflicted. The defence position was clearly placed before the
    jury and in a manner favourable to the defence. For example, in the recharge the
    trial judge told the jury the following:

Doctor Driver gave evidence, of course. And, in reviewing her
    evidence earlier today, I told you that defence counsel asked Doctor Driver to
    assume on a hypothetical basis that a misdirected blow at the baby could cause
    the babys head to impact the table and Doctor Driver was asked to make the
    assumption that could cause the fracture and the right-side bruising. I told
    you that you would have to consider whether this underlying assumption was
    proven by circumstantial evidence. That was an incorrect instruction. What you
    will have to consider, is whether the underlying assumption is proven or, you
    are left in a reasonable doubt about it by circumstantial evidence of same.

[19]

In conclusion, this case did not turn on Shaken Baby Syndrome but
    on the cumulative circumstantial evidence including the unexplained skull
    fracture. This was the applicants opportunity to provide that explanation. He
    did not.

[20]

Accordingly, the application to re-open the appeal is dismissed.

Signed:        M. Rosenberg J.A.

Alexander Hoy
    J.A.

K. Swinton J.
    (ad hoc)

RELEASED: FEBRUARY 13, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Snider, 2012
    ONCA 119

DATE: 20120221

DOCKET: C53650

Laskin, Blair JJ.A. and Brown R.S.J (
Ad Hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Lee Snider

Appellant

Vincenzo Rondinelli, for the appellant

Jennifer Woollcombe, for the respondent

Heard: February 16, 2012

On appeal from the conviction entered on September 23,
    2010 and the sentence imposed on February 3, 2011 by Justice Michael J. Epstein
    of the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The sentence appeal is dismissed as abandoned.  On his appeal from his
    conviction for aggravated assault, the appellant argues that the trial judge
    misapplied s. 34(2) and s. 37 of the
Criminal Code
.  We disagree.

[2]

The trial judge properly applied these provisions and made findings of
    fact that fully justified his rejection of self-defence.  For the trial judge
    the critical time in the unfolding of the dispute between the complainant and
    the appellant was when the appellant got out of the car.  At that point, the
    trial judge found that the appellant became the aggressor and self-defence was
    no longer available.

[3]

On the conviction for possession of a weapon dangerous to the public
    peace, it was implicit, if not explicit, in the trial judges reasons that once
    the appellant got out of the car his purpose for possession of the knife
    changed from a lawful one to a dangerous one.

[4]

The conviction appeal is dismissed.