R. v. A.M.,

• Jurisdiction: Ontario
• Judge: Hoy, A.C.J.O., MacFarland and Watt, JJ.A.
• Neutral Citation: 2014 ONCA 769
• Citation: 2014 ONCA 769,(2014), 325 O.A.C. 365 (CA),123 OR (3d) 536,123 O.R. (3d) 536,325 O.A.C. 365,(2014), 325 OAC 365 (CA),325 OAC 365
• Date: 03 September 2014
• Court: Court of Appeal (Ontario)

R. v. A.M. (2014), 325 O.A.C. 365 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. NO.001

Her Majesty the Queen (respondent) v. A.M. (appellant)

(C56081; 2014 ONCA 769)

Indexed As: R. v. A.M.

Ontario Court of Appeal

Hoy, A.C.J.O., MacFarland and Watt, JJ.A.

November 4, 2014.

Summary:

The complainant, one of the accused's siblings, alleged years of sexual abuse by the accused in the family home.

The Ontario Superior Court convicted the accused of sexual interference and sentenced him accordingly. The accused appealed from the conviction.

The Ontario Court of Appeal allowed the appeal, ordering a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The accused was convicted of sexual interference - In allowing the accused's appeal on the basis of deficiencies in the trial judge's assessment of credibility, the Ontario Court of Appeal set out a number of principles regarding the assessment of evidence and of a trial judge's reasons - These included principles regarding the assessment of the credibility of an adult witness who testified regarding events that occurred when he or she was a child and the significance of inconsistencies between the evidence given at trial and statements made previously - Where a case turned largely on determinations of credibility, the reasons' sufficiency had to be considered in light of the deference generally afforded to trial judges on credibility findings - While it was rare for deficiencies in a credibility analysis to warrant appellate intervention, a trial judge's failure to articulate sufficiently how credibility and reliability concerns were resolved could constitute reversible error - See paragraphs 8 to 20.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The complainant, one of the accused's siblings, alleged years of sexual abuse by the accused in the family home - The accused was convicted of sexual interference - The Ontario Court of Appeal allowed the accused's appeal, ordering a new trial - The trial judge's reasons revealed legal error in the assessment of evidence - Because the complainant's credibility was impeached and the reliability of her evidence was challenged, the trial judge had to apply the proper legal principles to evaluate her testimony, articulate how the credibility concerns were resolved and explain why her testimony left him with no reasonable doubt as to the accused's guilt - There were two principal errors here - First, the trial judge assessed the complainant's evidence as if she was a child witness when she (at age 19) was not - Second, the trial judge characterized an admitted "hyperbole" by the complainant under oath at the preliminary inquiry as "hyperbole, a common form of literary emphasis" and thus "a badge of credibility" - The exaggeration was a prior inconsistent statement about a material issue - At best, it reflected carelessness - Left unexplained, it tended to impeach the witness' credibility, rather than enhance it - See paragraphs 21 to 26.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses - [See both Courts - Topic 583 ].

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - [See second Courts - Topic 583 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See both Courts - Topic 583 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See both Courts - Topic 583 ].

Criminal Law - Topic 5007

Appeals - Indictable offences - Review of verdicts - Where verdict based on findings of credibility - [See both Courts - Topic 583 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See both Courts - Topic 583 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 1, footnote 1].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 9].

R. v. Kendall, [1962] S.C.R. 469, refd to. [para. 12].

R. v. M.G. (1994), 73 O.A.C. 356; 93 C.C.C.(3d) 347 (C.A.), leave to appeal refused (1995), 188 N.R. 319; 86 O.A.C. 80 (S.C.C.), refd to. [para. 12].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 14].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 14].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 15].

R. v. Curto (W.) (2008), 234 O.A.C. 238; 230 C.C.C.(3d) 145; 2008 ONCA 161, refd to. [para. 15].

R. v. Ay (1994), 59 B.C.A.C. 161; 98 W.A.C. 161; 93 C.C.C.(3d) 456 (C.A.), refd to. [para. 15].

R. v. Vuradin (F.) (2013), 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 16].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, 2002 SCC 27, refd to. [para. 18].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 18].

R. v. Gostick (W.) (1999), 121 O.A.C. 355; 137 C.C.C.(3d) 53 (C.A.), refd to. [para. 25].

R. v. D.D.S. (2006), 242 N.S.R.(2d) 235; 770 A.P.R. 235; 207 C.C.C.(3d) 319; 2006 NSCA 34, refd to. [para. 25].

Counsel:

Carlos Rippell, for the appellant;

Philippe G. Cowle, for the respondent.

This appeal was heard on September 3, 2014, by Hoy, A.C.J.O., MacFarland and Watt, JJ.A., of the Ontario Court of Appeal. On November 4, 2014, the court released the following endorsement.