R. v. T.M., (2014) 328 O.A.C. 153 (CA)

• Judge: Doherty, Laskin and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Tuesday March 18, 2014
• Jurisdiction: Ontario
• Citations: (2014), 328 O.A.C. 153 (CA);2014 ONCA 854

R. v. T.M. (2014), 328 O.A.C. 153 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.011

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

(C55875; 2014 ONCA 854)

Indexed As: R. v. T.M.

Ontario Court of Appeal

Doherty, Laskin and Feldman, JJ.A.

December 1, 2014.

Summary:

The appellant was convicted of six counts of historical sexual abuse; five counts against his step-daughter S.M., and one count against his biological daughter J.M. He was sentenced to four years in prison. The appellant appealed his convictions, raising the following grounds of appeal: (1) the trial judge erroneously found that the appellant "of his own initiative, without prompting by the Crown Attorney", claimed J.M. had manipulated S.M. to falsely accuse him; (2) the trial judge erred by failing to address material inconsistencies between the accounts of the two complainants; (3) the trial judge erred by relying on the appellant's demeanour in the courtroom during the complainants' testimony to reject his evidence.

The Ontario Court of Appeal dismissed the appeal.

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.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses - The appellant appealed his convictions for historical sexual abuse against his step-daughter S.M., and his biological daughter J.M. - The appellant submitted that there were significant inconsistencies between the evidence of the two complainants and that the trial judge erred by failing to address them - The Ontario Court of Appeal did not agree with this submission - The court agreed with the trial judge's characterization of the inconsistencies in the evidence of J.M. and S.M. as minor - Because the inconsistencies were minor and did not bear on the central issues in the case, the trial judge did not err by failing to address them in detail - See paragraphs 45 to 49.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The appellant appealed his convictions for historical sexual abuse against his step-daughter S.M., and his biological daughter J.M. - The appellant submitted that the trial judge erred by relying on the appellant's demeanour when he was not on the witness stand giving evidence as a basis to reject his evidence - The Ontario Court of Appeal stated that "I would be troubled by the trial judge's rejection of the appellant's evidence if I thought it was based solely or even primarily on the appellant's demeanour outside the witness box. But I do not think that it was. Even discounting the trial judge's saving comment, at most he placed modest reliance on the appellant's courtroom demeanour. I do not think any 'manifest unfairness' arises from his having done so. He gave other cogent reasons for rejecting the appellant's evidence. ... And significantly, the trial judge's considered acceptance of the credibility of the complainants' evidence was itself a reason and compelling explanation for his rejection of the appellant's evidence ... It would have been better had the trial judge at least alerted the appellant that he may comment on his courtroom demeanour so that the appellant had an opportunity to explain his behaviour. But even though the trial judge did not do so, his modest reliance on the appellant's demeanour outside the witness box did not cause a miscarriage of justice. I would not give effect to this ground of appeal" - See paragraphs 50 to 70.

Criminal Law - Topic 5220

Evidence and witnesses - Burden of proof - Explanations by an accused - [See Criminal Law - Topic 5434].

Criminal Law - Topic 5434

Evidence and witnesses - Cross-examination of accused - Improper or abusive questioning - What constitutes - The appellant appealed his convictions for historical sexual abuse against his step-daughter S.M., and his biological daughter J.M. - The appellant contended that the trial judge misapprehended the evidence when he found that the appellant "of his own volition" or "of his own initiative" put forward the theory that J.M. had manipulated S.M. to falsely accuse him of sexual abuse - Instead, it was the Crown who, in cross-examining the appellant, initially and repeatedly asked the appellant to speculate why the complainants would falsely accuse him - The appellant said that the trial judge failed to curtail that impermissible line of questioning - The trial judge then erroneously relied on that improper cross-examination and the appellant's failure to provide an explanation why the complainants would falsely accuse him to find the complainants credible and the appellant guilty - In doing so, the trial judge artificially bolstered the complainant's credibility and reversed the burden of proof - The Ontario Court of Appeal dismissed this ground of appeal - The trial judge's comment was fair - Before the Crown began his cross-examination of the appellant, the defence had put forward the position that the complainants had contrived or fabricated their allegations - The Crown's cross-examination of the appellant was fair and it did not shift the burden of proof - The trial judge did not put an onus on the appellant to show that the complainants had a motive to fabricate - See paragraphs 32 to 44.

Evidence - Topic 4022

Witnesses - Credibility - Considerations - Demeanour - [See Criminal Law - Topic 4379].

Cases Noticed:

R. v. Rose (E.) (2001), 143 O.A.C. 163; 53 O.R.(3d) 417 (C.A.), refd to. [para. 37].

R. v. L.L. (2009), 249 O.A.C. 99; 96 O.R.(3d) 412; 2009 ONCA 413, refd to. [para. 37].

R. v. Owens (1986), 18 O.A.C. 125; 33 C.C.C.(3d) 275 (C.A.), dist. [para. 53].

R. v. Belowitz (1990), 38 O.A.C. 189; 56 C.C.C.(3d) 402 (C.A.), refd to. [para. 60].

R. v. Levert (G.) (2001), 150 O.A.C. 208; 159 C.C.C.(3d) 71 (C.A.), refd to. [para. 64].

R. v. Baltrusaitis (V.C.) (2002), 155 O.A.C. 249; 58 O.R.(3d) 161 (C.A.), refd to. [para. 64].

R. v. Bennett (M.) (2003), 177 O.A.C. 71; 67 O.R.(3d) 257 (C.A.), leave to appeal refused (2004), 329 N.R. 395 (S.C.C.), refd to. [para. 64].

R. v. J.J.R.D. (2006), 218 O.A.C. 37; 215 C.C.C.(3d) 252 (C.A.), leave to appeal refused (2007), 370 N.R. 399 (S.C.C.), refd to. [para. 68].

Authors and Works Noticed:

Wigmore, Dean, Wigmore on Evidence (Chadbourn Rev. 1979), vol. 2, para. 274(2) [para. 56].

Counsel:

Michael Lacy and Bradley Greenshields, for the appellant;

Jocelyn Speyer, for the respondent.

This appeal was heard on March 18, 2014, before Doherty, Laskin and Feldman, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Laskin, J.A., and was released on December 1, 2014.