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| John L. Hill |
It is up to the reader to distill the pertinent facts upon which the court decided the conviction was proper. It seems that the following facts were proven at trial:
1. The complainant was the stepson of J.S.;
2. The conduct that resulted in the offence took place between 1976 and 1979, when the complainant was between the ages of 11 and 14;
3. The indecent assault involved J.S. removing the complainant’s underwear after J.S. ordered the complainant to remove his briefs. J.S. considered it unsanitary for the boy to sleep in his undershorts. The victim claimed sexual abuse commenced once the complainant’s genitals were exposed.
4. It was disputed when the alleged indecent assault took place. The complainant recalled telling his mother about the incident when he was 14. J.S. said the complaint was made in 1984 after J.S. had been accused of sexual acts involving young women. J.S. admitted wrongdoings in his treatment of girls but suggested that that should be an indication that his sexual orientation was heterosexual and not homosexual or incestuous.
2. The conduct that resulted in the offence took place between 1976 and 1979, when the complainant was between the ages of 11 and 14;
3. The indecent assault involved J.S. removing the complainant’s underwear after J.S. ordered the complainant to remove his briefs. J.S. considered it unsanitary for the boy to sleep in his undershorts. The victim claimed sexual abuse commenced once the complainant’s genitals were exposed.
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Defence counsel on appeal argued that the trial judge unfairly scrutinized the evidence. This was a problematic approach for the defence since the jurisprudence states that the onus is on the appellant to show that the trial judge applied different standards in assessing the Crown and the defence evidence (R. v. G.F., 2021 SCC 20).
The defence said that uneven scrutiny was shown by the fact that J.S.’s history of sexually offending against girls showed a lack of propensity to offend against boys. J.S.’s criminal record was evidence of his misbehaviour against females. He further testified that he had no sexual interest in boys. These arguments had been rejected by the trial judge by the finding that while the offences proven in an earlier proceeding had female complainants, they did not necessarily indicate an absence of sexual interest in boys. The Court of Appeal stated, “We see no error in this reasoning by the trial judge, and it does not form a basis to find uneven scrutiny of the evidence.”
The defence also claimed the trial judge erred in rejecting J.S.’s explanation of why he removed his stepson’s underwear as making “no sense” and being “implausible.” Even the complainant testified about J.S.’s criticism of the boy’s sleeping in his underwear. The complainant’s evidence was that sexual contact was made once his underwear was removed. J.S.’s explanation was to improve the unhealthy or unhygienic boy’s practice of sleeping in the clothes worn during the day.
The defence position that the trial judge was making a stereotypical assumption that removing undergarments was for sex purposes was rejected by the Court of Appeal. It stated simply that the trial judge’s findings were based on the evidence and not assumptions following R. v. Kruk, 2024 SCC 7.
The trial judge accepted that although the complainant remembered the sexual abuse when he was 18 in 1984, he also recalls telling his mother about the happenings at the time but was told he could not get therapy or speak to police about the ordeal. It is not a demonstration of inconsistency in giving testimony when the complainant is testifying about events that happened more than 40 years ago (R. v. W. (R.), [1992] 2 S.C.R. 122).
When discussing why a judge would accept an inculpatory version of the facts and discredit another innocent explanation, a judgment should contain several paragraphs outlining the trial judge’s compliance with R. v. W. (D.), [1991] 1 S.C.R. 742 in determining credibility. No such discussion took place in this 20-paragraph judgment.
Significant issues must be determined, which a more complex analysis could have addressed. This would serve the legal profession and the litigants in ensuring justice was done in this case. Appeal judgments serve not only the litigants but also inform others on how the courts are likely to determine similar issues in the future.
All this is not to say that the Court of Appeal erred in wrongly convicting an innocent appellant. Most likely, the Court of Appeal got it right. However, brevity at the expense of a fulsome review of the evidence and the law should not be praised.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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