COURT OF APPEAL FOR ONTARIO
DOHERTY and LASKIN JJ.A.
E T W E E N :
MAJESTY THE QUEEN
H. Greenspan and
) Sharon E. Lavine
Respondent ) for
ROBERT J. MORRISSEY ) Scott
) David Lepofsky
) Heard: September 16, 1994
arrived, the appellant was a parish priest in Daysland, Alberta. He had been a
priest for twenty years and, by all accounts, had been a valued and respected
member of the communities in which he lived and served as a priest. At the
same time the appellant was performing his duties in Daysland, the Ontario
Provincial Police began an investigation into allegations that inmates at St.
John's Training School in Uxbridge, Ontario had been sexually and physically
abused by members of the Christian Brothers in the 1950's and 1960's. St.
John's housed adolescent males sent there by the juvenile justice system.
While there, the boys lived in large dormitories, attended school, and did
various jobs around the institution. The Christian Brothers, a religious
teaching order associated with the Catholic Church, operated the institution.
The appellant was a Christian Brother and worked at St. John's in 1960-61 as
the grade 8 teacher and a dormitory supervisor. He took the name Frederick
Morgan when he became a Brother and was known at the school as Brother
Frederick. The appellant was 20 years old when he was assigned to St. John's.
As a result of
a public request by the police for information, several former inmates came
forward and alleged that they had been sexually and physically abused by one
or more of the Christian Brothers. Some of these complainants identified the
appellant as their assailant. The appellant found himself facing seven
allegations arising out of events which had occurred 30 years earlier. The
charges referred to a time span of some 4 years, (August 1960 to August 1964),
involved four complainants and can be summarized as follows:
♦ With respect to
the complainant F.P., charges of indecent assault, gross indecency and
attempted buggery (counts 1, 2 and 6).
♦ With respect to
the complainant B.G., one count of indecent assault (count 3).
♦ With respect to
the complainant G.S., one count of indecent assault and one count of assault
(counts 4 and 5).
♦ With respect to
the complainant A.S., one count of assault causing bodily harm (count 7).
judge acquitted the appellant on the counts involving G.S., convicted him on
the five counts involving the three other complainants, and imposed sentences
totalling 18 months. The appellant appeals conviction and sentence. There is
no appeal from the acquittals.
in support of the four charges involving F.P. and B.G. described a course of
sexual abuse perpetrated by the appellant. The Crown relied on the evidence of
F.P. and B.G., school records, the personnel record of the appellant, and
similar fact evidence from another inmate to make its case on these counts.
involving A.S. related to a single incident of alleged physical abuse. The
Crown contended that the appellant struck A.S. on the side of the head with his
hand. The force of the blow perforated A.S.'s eardrum. The Crown relied on
the evidence of A.S., two other inmates who it was said witnessed the assault,
medical records pertaining to A.S. and school records to establish the
appellant's guilt on this charge.
As I read the
evidence, the defence challenged both the contention that the assaults
occurred, and the complainants' identification of the appellant as the
perpetrator. The appellant testified and denied the allegations. He admitted
that on occasion he put his arm around various inmates at St. John's in a
friendly or consoling manner, but denied any of the sexual or physical
improprieties alleged by the complainants. The defence also called extensive
character evidence and expert evidence from two witnesses. That evidence was
proffered to support the position that the appellant was not the sort of person
who would have engaged in the conduct described by the complainants. The
expert evidence was directed to the allegations involving sexually abusive
judge gave extensive reasons for judgment. Using the school records he
narrowed the time period during which the assaults could have occurred. Those
records showed that the appellant was at St. John's between September 1960 and
the end of 1961 when he was transferred to Montreal. The records also showed
that while F.P. and B.S. were at St. John's on various occasions, they were
there when the appellant was there only between the middle of October 1961 and
the end of 1961. Consequently, if the assaults they alleged occurred and were
committed by the appellant, they had to have occurred between the middle of
October 1961 and the end of that year. With respect to the count involving
A.S., the trial judge found, relying on hospital records, that A.S. suffered
the injury to his ear in December 1960. Both A.S. and the appellant were at
the school at that time.
II. THE CONVICTION
A. The grounds of appeal.
raises the following issues:
(i) Was the verdict with respect to the count involving A.S.
(ii) Did the trial judge err in law in his treatment of the defence
(iii) Did the trial judge err in law in his treatment of the defence
expert psychiatric evidence?
(iv) Did the trial judge proceed on the assumption that the
appellant had committed the offences alleged against him?
(v) Did the trial judge limit his assessment to the credibility of
the complainants instead of considering whether apart from their credibility,
their evidence was sufficiently reliable to warrant convictions?
(vi) Did the trial judge fail to consider the evidence of the
appellant in arriving at his verdicts?
(vii) Did the trial judge resort to speculation in holding that
certain evidence supported inferences which buttressed the evidence of B.S. and
(viii) Did the trial judge misapprehend the evidence of B.G. and F.P.,
and did that misapprehension occasion reversible error?
ground of appeal challenges the conviction on the charge involving A.S. The
remaining grounds of appeal relate primarily to the four counts involving F.P.
B. Was the conviction on count 7 unreasonable?
that at dinner time one evening two other inmates, Fred Briggs and Donald
Shildrick, were engaged in horseplay and one of them pushed A.S. out of the
line waiting to go into dinner. Brother Frederick, who was supervising, asked
A.S. if he was "fooling around". When A.S. denied it, the appellant
struck A.S. on the side of the head with his open hand. A.S. was uncertain
about the exact date of the assault. He placed it in January or February of
1961. Medical records indicated that he suffered the injury to his eardrum in
December of 1960. The injury as described in those records was consistent with
A.S. having been struck on the side of the head with an open hand. As a result
of the blow, A.S. suffered a perforated eardrum which later required corrective
that he complained about the assault to the nurse at St. John's, the doctors at
the hospital, and his mother. The hospital records confirmed that A.S.
complained about being struck by a "Brother", but did not identify
the Brother. A.S.'s mother also confirmed that A.S. had complained to her
about being struck by Brother Frederick. Briggs and Shildrick both testified
that they recalled the appellant striking a student on the side of the head
with his open hand while the students were lining up for dinner one night.
Neither could recall the student who was struck.
description of the appellant as he appeared in 1960 was inaccurate in several
respects. He maintained, however, that he was certain that it was the
appellant, whom he knew as Brother Frederick, who assaulted him. There was no
other Brother Frederick at St. John's. A.S. also picked the appellant's
photograph out of a group of photographs of the Brothers who were at the
institution in the early 1960's. It was suggested to A.S. that he recalled the
appellant because the appellant had taught him for a number of months while he
was at St. John's. A.S. could not recall being taught by the appellant,
however, the school records showed that A.S. was in the appellant's grade eight
consideration of all of the relevant evidence, including the appellant's, I
cannot say the verdict is unreasonable. There is overwhelming evidence that
A.S. was hit by a Brother and suffered bodily harm. The evidence identifying
the appellant as the person who inflicted the blow is perhaps less cogent but
still meets the reasonableness standard of review: R. v. Francois,
1994 CanLII 52 (SCC),  2 S.C.R. 827 at 835-38.
C. Did the trial judge err in his treatment of the
defence character evidence?
judge addressed the character evidence in his reasons.
... As this evidence relates to his honesty
it is to be considered as going to his credibility as a witness. As it
relates to his reputation for morality it calls for a consideration of whether
or not this accused is the type of person who would commit crimes having the
immoral nature of the crimes alleged....
judge next observed that the illicit sexual activity referred to in the
allegations was the sort of thing that if it had occurred would be unknown to
those likely to be aware of an accused's general reputation in the community.
In making this observation as to the limited evidentiary value of reputation
evidence in cases involving allegations of abuse against children, the trial
judge anticipated the comments of Sopinka J. in R. v. Profit 1993 CanLII 78 (SCC), (1993), 85
C.C.C. (3d) 232 at 248, (S.C.C.) reversing 1993 CanLII 78 (SCC), (1992) 85 C.C.C. (3d) 232 (Ont.
judge did not, however, remove the character evidence from the evidentiary
mix. He went on to instruct himself that the evidence was relevant both to his
assessment of the credibility of the complainants and the credibility of the
accused. This approach finds support in the reasons of Goodman J.A., speaking
for the majority in this Court, in Profit, supra at p. 239. I do not
understand the Supreme Court of Canada to have disagreed with that aspect of
I see no error
in the trial judge's treatment of the character evidence.
D. Did the trial judge err in his treatment of the
expert psychiatric evidence?
led evidence from two experts, Dr. Orchard, a psychiatrist and Dr. Resnick, a
psychologist. Both examined the appellant. Dr. Orchard testified that
assuming one person had committed all of the acts alleged against the
appellant, it was likely that the perpetrator of the offences was a homosexual
paedophile. In his view, the appellant was not a homosexual paedophile. Dr.
Resnick came to a similar conclusion. It was his opinion that the appellant
was heterosexual and did not display any personality disorders suggesting a
propensity towards paedophiliac behaviour.
Dr. Collins, a
psychiatrist called by the Crown in reply, challenged both opinions and the
means used by the defence experts to arrive at those opinions. He testified
that one could not identify a paedophile through clinical study, especially
where the subject denied any paedophiliac tendency. Dr. Collins was also of
the view that the person who committed the offences was not necessarily a
homosexual or a paedophile. He suggested two other possibilities, neither of
which need be explored in these reasons.
admissibility of the expert evidence was not contested at trial. On appeal,
the Crown, relying on R. v. Mohan 1994 CanLII 80 (SCC), (1994), 89 C.C.C. (3d) 402 (S.C.C.),
submitted that the evidence was not admissible. I will assume admissibility
and proceed directly to the arguments arising out of the trial judge's
treatment of that evidence in his reasons.
judge appreciated the purpose for which the evidence was proffered and the
conflict between the defence and Crown experts. He accepted the evidence of
the Crown expert as he was entitled to do. In accepting that evidence, the
trial judge found that there was no clinically identifiable profile of a
paedophile, that he could not say whether the appellant was a paedophile at the
time of the trial or in 1960-61, and that the offences charged were not
necessarily committed by a paedophile.
judge set out several reasons for rejecting the opinions advanced by the
defence experts. With one exception, these reasons are fully supported by the
evidence adduced at trial. The exception is contained in this extract from the
trial judge's reasons:
...Dr. Orchard first requested Dr.
Resnick to carry out the MMPI and Rorschach tests on the accused and only
then and thereafter interviewed the accused after having seen the
conclusions of the psychologist.... [Emphasis in the reasons.]
in fact, had interviewed the appellant before he referred him to Dr. Resnick
and before he reviewed Dr. Resnick's report.
I do not
regard this error as fatal. The trial judge's misapprehension of a part of
the evidence does not, standing alone, render his verdicts unreasonable,
constitute an error in law, or result in a miscarriage of justice. The impact
of that error on the trial judge's reasoning process and the product of that
process must be assessed.
Here, the trial judge's mistaken belief that Dr. Orchard did not interview the
appellant before sending him to Dr. Resnick provided but one of several bases
for the trial judge's expressed preference for the evidence of the Crown
expert. The error was irrelevant to the trial judge's finding that paedophiles
did not have an identifiable clinical profile. That finding alone neutralized
the defence experts' evidence. Examined in the context of the trial judge's
entire analysis of the expert evidence, this isolated misapprehension of one
piece of that evidence did not have any impact on the trial judge's overall
assessment of the expert evidence or on the conclusions he reached in relation
to that evidence.
E. Did the trial judge proceed on the assumption
that the appellant had committed the offences alleged?
In support of
his submission that the trial judge ignored the presumption of innocence and
proceeded in direct contradiction to that fundamental principle, counsel relies
on four passages from the extensive reasons delivered by the trial judge. The
first passage appears after the trial judge had made certain non-controversial
findings as to when the various complainants and the appellant were at St.
John's. The trial judge then said:
... If any of the events complained of in
fact occurred, they had to have occurred within that short time frame.
submits that the phrase "the events complained of" refers only to the
assaultive acts. He contends that the trial judge's finding that the assaults
had to have occurred while the appellant was at St. John's demonstrates that
the trial judge presumed that the appellant was the perpetrator of those
assaults. With respect, this is a tortured interpretation of the passage from
the trial judge's reasons. "The events complained of" consisted not
of acts unconnected to any actor, but of acts allegedly committed by the
appellant. The trial judge was merely stating that if the complainants had
been assaulted by the appellant as they alleged, then the assaults had to have
occurred during the "short time frame" that the complainants and the
appellant were both at St. John's.
Even if the
passage set out above was ambiguous and could bear either the interpretation I
place on it or the interpretation advanced on behalf of the appellant, I would
adopt my interpretation. Trial judges are presumed to know the law: R. v.
Burns 1994 CanLII 127 (SCC), (1994), 89 C.C.C. (3d) 193 at 199-200 (S.C.C.). That presumption
must apply with particular force to legal principles as elementary as the presumption
of innocence. Where a phrase in a trial judge's reasons is open to two
interpretations, the one which is consistent with the trial judge's presumed
knowledge of the applicable law must be preferred over one which suggests an
erroneous application of the law: R. v. Smith (D.A.) 1989 ABCA 187 (CanLII), (1989), 95 A.R.
304 at 312-13 (C.A.) aff'd., 1990 CanLII 99 (SCC),  1 S.C.R. 991.
In any event,
it is wrong to analyze a trial judge's reasons by dissecting them into small
pieces and examining each piece in isolation as if it described, or was
intended to describe a legal principle applied by the trial judge. Reasons for
judgment must be read as a whole: R. v. C.R. 1993 CanLII 142 (SCC), (1993), 81 C.C.C. (3d) 417
(Que. C.A.), per Rothman J.A. in dissent at 419; dissenting reasons adopted by
the Supreme Court of Canada reflex, (1993), 81 C.C.C. (3d) 428; R. v. Telmosse
(1945), 83 C.C.C. 133 at 138 (S.C.C.). Furthermore, they must be read with an
appreciation of the purpose for which they were delivered. Where a case turns
on the application of well settled legal principles to facts as found after a
consideration of conflicting evidence, the trial judge is not required to
expound upon those legal principles to demonstrate to the parties, much less to
the Court of Appeal, that he or she was aware of and applied those principles.
reasons for judgment, the trial judge is attempting to tell the parties what he
or she has decided and why he or she made that decision. The reasons should be
responsive to issues raised at trial and must be read in the context of the
entire trial. Reasons for judgment should offer assurance to the parties that
their respective positions were understood and considered by the trial judge in
arriving at his or her conclusion: R. v. Smith, supra, at
pp. 313-14; M. Taggartt, "Should Canadian Judges be Legally Required
to Give Reasoned Decisions in Civil Cases", (1983) 33 U. Toronto L.J. 1 at
pp. 5-6; A. Hooper, "Criminal Procedure - Trial Without Jury-Obligation
to Give Reasons for Judgment", (1970) 48 Can. Bar Rev. 584. In cases like
this, where the result turns on fact-finding and not on the application of
contested legal principles, it is appropriate that the reasons should focus on
telling the parties what evidence was believed and why it was believed.
judge's reasons cannot be read or analyzed as if they were an instruction to a
jury. Instructions provide a road map to direct lay jurors on their journey
toward a verdict. Reasons for judgment are given after a trial judge has
reached the end of that journey and explain why he or she arrived at a
particular conclusion. They are not intended to be, and should not be read as
a verbalization of the entire process engaged in by the trial judge in reaching
judgment are not required as a matter of law in criminal cases: R. v.
MacDonald, 1976 CanLII 140 (SCC),  2 S.C.R. 665 at 672. That is not to say, however, that
reasons should not be given. Reasons for judgment enhance the quality of
justice and should be encouraged. Appellate courts can offer that
encouragement by approaching reasons for judgment, not as if they were intended
to be a dissertation on the applicable law or a comprehensive catalogue of the
evidence, but rather as an attempt by the trial judge to articulate the
conclusions reached and the bases for those conclusions. Appellate courts must
resist the invitation to microscopically examine reasons for judgment, lest
trial judges decide that silence is indeed golden.
I do not
propose to set out the remaining three passages relied on by the appellant in
support of this ground of appeal. My conclusion with respect to the passage
quoted above applies to those three passages. Considered alone or in
combination, they do not lead me to conclude that the trial judge presumed
guilt in assessing the evidence and arriving at his verdicts.
F. Did the trial judge err in law in limiting his
assessment to the credibility of the complainants instead of considering
whether their evidence, even if credible, was sufficiently reliable to warrant
evidence can raise veracity and accuracy concerns. The former relate to the
witness's sincerity, that is his or her willingness to speak the truth as the
witness believes it to be. The latter concerns relate to the actual accuracy
of the witness's testimony. The accuracy of a witness's testimony involves
considerations of the witness's ability to accurately observe, recall and
recount the events in issue. When one is concerned with a witness's veracity,
one speaks of the witness's credibility. When one is concerned with the
accuracy of a witness's testimony, one speaks of the reliability of that
testimony. Obviously a witness whose evidence on a point is not credible
cannot give reliable evidence on that point. The evidence of a credible, that
is honest witness, may, however, still be unreliable. In this case, both the
credibility of the complainants and the reliability of their evidence were
attacked on cross-examination.
At the outset
of his reasons the trial judge observed:
The passage of time since the alleged
incidents have caused great difficulty to all of the witnesses including the
accused in trying to recall exactly what transpired at the training school over
30 years ago. Obviously, the credibility of the witnesses and the accuracy
of their memory of the events are very important issues in this trial.
judge recognized the importance of both credibility and reliability. He also
stressed the passage of time as a key feature in the case. The passage of time
impacts on the reliability of evidence as opposed to the credibility of
witnesses. While the trial judge's subsequent references were to the
credibility of key witnesses and did not refer specifically to the reliability
of their testimony, he did address factors which were relevant to both. For
example, he returned to the significance of the passage of time when
considering the testimony of the complainants. He also referred to other
factors (eg. prior inconsistent statements) which were relevant to both the
witnesses' credibility and the reliability of the witnesses' testimony.
Lastly, the trial judge actually found parts of the evidence of B.G. to be
unreliable and yet found him to be a credible, that is, honest witness. This
treatment of B.G.'s evidence leaves no room for the argument that the trial
judge did not appreciate the distinction between reliability and credibility
and did not consider both in assessing the evidence of the complainants.
G. Did the trial judge err in law in that he failed
to consider the evidence of the appellant in arriving at his verdicts?
testified at length although much of his testimony related to non-contentious
matters. Given the nature of the allegations and the 30 years that had passed
since the events in question, it is not surprising that the appellant could not
offer much more than a blanket denial.
judge neither reviewed the evidence of the appellant, nor gave reasons for
rejecting the evidence of the appellant where it stood in contradiction to that
given by the complainants. The absence of any review of the appellant's
evidence and the failure to set out express reasons for rejecting the
contentious parts of his evidence does not necessarily demonstrate that the
trial judge failed to consider that evidence in arriving at his verdicts: R.
v. Burns, supra, at p. 199. The trial judge indicated on three occasions
that a consideration of the appellant's evidence formed part of his
deliberations. He noted that the passage of time was an important
consideration in assessing the appellant's testimony. He also observed that
the character evidence called by the defence was a significant feature when
assessing the evidence of the appellant. Furthermore, the trial judge
indicated specifically that he had considered the evidence of the appellant
along with the evidence of F.P. and B.G. in addressing the allegations
judge's conclusion based upon a consideration of all of the evidence, that the
evidence of the complainants combined with the other supporting evidence
satisfied him beyond a reasonable doubt that the appellant had committed the
assaults made any separate exposition of his reasons for rejecting the contrary
evidence of the appellant unnecessary. The trial judge clearly considered all
of the evidence including the appellant's and rejected the appellant's denials
because they were inconsistent with the conclusions that he had arrived at
based upon his assessment of all of the evidence. While it would have been
preferable for the trial judge to deal expressly with the appellant's evidence,
I would not hold that his failure to do so demonstrates that he did not give
full and fair consideration to the evidence of the appellant.
H. Did the trial judge resort to speculation in
holding that certain evidence supported inferences which buttressed the evidence
of F.P. and B.S.?
was a Christian Brother from 1958 to the summer of 1962. He returned in 1967
and left again in 1969. While a Brother, the appellant, like other Brothers,
applied to renew his vows each year. A record of the results of these
applications was kept in a book referred to as the Chapter of Vows. Although
no witness was called to explain how the process worked, how the records were
made, or how they were kept, it would appear that a group of Brothers voted on
each application for renewal and that the votes were recorded in the Chapter of
Vows along with a brief comment on the progress of each applicant.
first sought to introduce the parts of the Chapter of Vows pertaining to the
appellant during the case for the Crown. She relied on s. 30 of the Canada
Evidence Act, R.S.C. 1985, c. C5. The trial judge refused to admit the
documents as the appellant's counsel had not been given the appropriate
notice. In the course of so ruling he said:
Well, I certainly don't need any more
documents which we cannot interpret.
The main concern of the Crown was to give
the court and counsel the opportunity to have everything that we have before
the court should it be relevant to where this gentleman was at a particular
time. [Emphasis added.]
At this stage of the trial
Crown counsel offered the documents for a very limited purpose.
In the course
of his examination-in-chief, the appellant made brief reference to the Chapter
of Vows and the application process described above. He indicated that he
applied to renew his vows in the spring of 1962 and was told that he was not
suited to be in the Christian Brothers. The appellant also indicated that he
returned to the Brothers in 1967, but was again told in 1969 that he could not
renew his vows. He testified that by 1969 he had told his superior that he was
interested in the priesthood. This apparently counted against the appellant
when he applied to renew his vows.
cross-examination of the appellant, Crown counsel addressed the admissibility
of the relevant pages of the Chapter of Vows for a second time. She indicated:
... It is now my view that the character of
the accused has clearly been put in issue and more particularly, his character
during that period of time and the comments in the Chapter of Vows or certainly
the comment of the community in which he lived that determined whether or not
he be permitted to take his vows and what their views of him were at that time
and it is my position they are relevant. It is also my position, in fairness
to the accused, I should address them directly and then seek to adduce those documents
appear that Crown counsel considered the entries in the Chapter of Vows to be
relevant to the appellant's character.
judge held that Crown counsel could cross-examine on the contents of the
Chapter of Vows stating:
I think reasonable cross-examination is
proper, without badgering the witness, and I am going to permit her to do that
bearing in mind that she will have to prove to your satisfaction and to mine,
of course, that this is a public record before I will grant her permission to
introduce it under s. 30. I am granting that permission assuming it can be
proved to be a public record...
cross-examined on the contents of the Chapter of Vows relating to the years
1959-62 and 1967-69. She read each entry in its entirety to the appellant and
asked him to comment on it. The appellant had not seen the documents until
after he was charged, knew nothing about their contents or creation and could
offer no explanation for any of the comments in the book. The Crown did not
call any reply evidence relating to the Chapter of Vows.
dated February 25, 1961 indicated that 11 Brothers voted in favour of the
appellant renewing his vows and none voted against him. The comments beside
the vote were all positive. This vote took place about 2 months after A.S. was
assaulted. The trial judge made no use of this entry.
dated April 15, 1962, some four or five months after the alleged assaults on
F.P. and B.G., showed 2 votes in favour of allowing the appellant to renew his
vows and 12 against. The comment beside the vote read:
Devoted to class work and rel. obligations,
evidence of emotional immaturity and of indiscretion. Pleasant character.
said that shortly after April 15, 1962 he was told that he would not be allowed
to renew his vows. He had no knowledge of and no explanation for the comments
set out above.
does not challenge the admissibility of the excerpts from the Chapter of Vows,
although on the record before this court it is difficult to understand the
basis upon which they were received.
The appellant does, however, take strong exception to the use the trial judge
made of the April 15, 1962 entry. After reviewing the evidence of F.P., the
trial judge then went on to outline the independent evidence which he regarded
as confirmatory of the testimony of F.P. In the course of that outline he
I also have regard to the excerpt from the
Chapter of Vows Exhibit 43, in which an entry was made on the 15th of April,
1962 that the accused was refused his vows by a vote of 12 to 2 with the
observation noted, inter alia, "evidence of emotional immaturity
and of indiscretion". This would lead to an inference that he had
experienced some sort of problem in the preceding months and is consistent with
the evidence of F.P. and B.G.
submits that no such inference could be drawn and that it is pure speculation
to conclude that the reference to an "indiscretion" in the April 15,
1962 entry was a reference to the incidents complained of by F.P. and B.G.
A trier of
fact may draw factual inferences from the evidence. The inferences must,
however, be ones which can be reasonably and logically drawn from a fact or
group of facts established by the evidence. An inference which does not flow
logically and reasonably from established facts cannot be made and is condemned
as conjecture and speculation. As Chipman J.A. put it in R. v. White 1994 CanLII 4004 (NS CA), (1994),
89 C.C.C. (3d) 336 at 351 (Nfld. C.A.):
These cases establish that there is a
distinction between conjecture and speculation on the one hand and rational
conclusions from the whole of the evidence on the other. The failure to
observe the distinction involves an error on a question of law...
judge drew two inferences from the April 15, 1962 commentary. The first was
explicit. He inferred that the appellant "had experienced some sort of
problem in the preceding months". The second inference was implicit in
the trial judge's conclusion that the commentary was "consistent with the
evidence" of F.P. and B.G. It could only be consistent with that evidence
if the trial judge inferred that the "problem" related either to the
incidents described by F.P. and B.G. or to their complaint about the
appellant. The April 15, 1962 commentary had probative value as supportive of
the evidence of F.P. and B.G. only if this second inference was a logical and
I agree with
the appellant's submission that no such inference was available. The word
"indiscretion" is ambiguous, the author or authors of the commentary
unknown, the information on which it was based undisclosed, and the process
through which it was produced a total mystery. I must conclude that the trial
judge reached beyond the realm of reasonable inference in holding that the
April 15, 1962 commentary was consistent with and therefore provided support
for the evidence of F.P. and B.G. Only through speculation could one link the
commentary to any part of the testimony of the two complainants.
judge went beyond reasonable inference on a second occasion. The appellant
taught grade 8 at St. John's. He taught grade 4 when he was transferred to
Montreal and again when he was subsequently sent to De la Salle School in
Toronto. The trial judge observed:
It may also be significant that his
assignment at those schools was in teaching lower grades than grade eight.
significance escapes me. The appellant testified that he was sent to Montreal
to replace a certain teacher. There was no evidence to the contrary and no
other explanation as to why he was assigned to teach grade four. In oral
argument, Crown counsel submitted that the assignment to teach a lower grade
was somehow a demotion and was consistent with a complaint having been made
against the appellant by F.P. and B.G. There is nothing in the evidence or
common experience to support this hypothesis.
reasons, the trial judge appears to have regarded the assignment of the
appellant to teach a lower grade as providing some independent support for the
evidence of F.P. and B.G. As there is no reasonable inference from that
evidence capable of supporting the evidence of either complainant, the trial
judge erred in giving that evidence any evidentiary value.
judge erred in law by drawing factual conclusions based on speculation and not
reasonable inferences. Unless the Crown can demonstrate that the error caused
no substantial wrong or miscarriage of justice, the convictions touched by that
error must be quashed. In seeking to invoke the proviso, the Crown may rely on
findings of fact made by the trial judge to the extent that those findings are
not tainted by legal error: R. v. Haughton 1994 CanLII 73 (SCC), (1994), 93 C.C.C. (3d) 99 at
107 (S.C.C.); R. v. Whitley, a decision of the Supreme Court of Canada,
released December 1, 1994. The legal error made in this case was relied on by
the trial judge in the course of his assessment of the credibility of F.P. and
B.G. and the reliability of their evidence. The error figured directly in his
ultimate conclusion that the complainants were credible and their evidence was
reliable. Since those conclusions are tainted by the error, they cannot be
relied on by the Crown in support of an argument that the error occasioned no
substantial wrong or miscarriage of justice. Once the findings that the
complainants were credible and their evidence reliable are set aside, it cannot
be said that no trier of fact, properly instructed and acting reasonably, could
have acquitted on counts 1, 2, 3 and 6. The curative proviso cannot be applied
to the conviction on those counts. This error, however, had no impact on the
conviction involving the complainant A.S. (count 7) and I would apply the curative
proviso to save that conviction.
I. Did the trial judge misapprehend the evidence
of F.P. and B.G., and did that misapprehension occasion reversible error?
F.P. and B.G.
were close friends at St. John's and testified to events which involved both of
them. They also testified that they had discussed their abuse at the hands of
the appellant while they were at St. John's. The trial judge found that their
evidence was consistent on several material points. That finding, combined
with his conclusion that F.P. and B.G. had no opportunity to jointly concoct
their evidence, was central to his conclusion that both were credible and
reliable witnesses. The appellant submits that the trial judge misapprehended
the evidence in several respects and that this misapprehension tainted his
conclusion that the evidence of the two complainants was consistent and
therefore, mutually corroborative.
F.P. was first
sent to St. John's in October of 1961. He remained there until August of
1962. He returned in November of 1962 and remained there until August of
1963. His third and final stay at St. John's began in October of 1963 and
ended in August of 1964. F.P. was almost 13 years old when he arrived at St.
John's in October of 1961. He was assigned to the appellant's dormitory. B.G.
arrived at St. John's about the same time and was also placed in the
appellant's dormitory. F.P. and B.G. became good friends although, according
to F.P., B.G. was moved to a different dormitory a few months later.
that about three weeks or a month after his arrival he was playing soccer on
the sports field with the other boys. The appellant was supervising the game
and then became involved. He tackled F.P. and while on the ground placed his
hand inside F.P.'s shorts and squeezed and fondled his penis. F.P. testified
that he was shocked by this act, looked to the sky and saw the image of Jesus
Christ. F.P.'s parents were devout Roman Catholics. F.P. said that he was the
only one approached by the appellant during the game and that the appellant
"singled" him out.
A few days
after the incident on the soccer field, F.P. was assigned to clean up the
appellant's room which adjoined the dormitory. F.P. said that he was sexually
assaulted by the appellant on a number of occasions when he was in the
appellant's room. The assaults included fondling, simulated anal intercourse,
at least one attempt at anal penetration, and at least one act of fellatio.
These incidents happened after the dinner hour, but usually before lights out
in the dormitory. The other boys were in the dormitory.
adamant that he did not discuss any of these assaults with any of the other
Brothers at St. John's, nor with his parents until much later. He did tell
some of the other inmates including B.G. F.P. testified that he and B.G.
discussed the abuse of them by the appellant although he could not recall the
details of that conversation. He specifically could not recall ever telling
B.G. that the appellant had assaulted him by coming to his bed late in the
evenings and fondling him while he was lying in his bed in the dormitory. F.P.
saw no improper contact involving B.G. and the appellant.
that shortly before Christmas of 1961 he was told by B.G. that his father was
coming to visit. F.P. recalled that it was on a Sunday and that B.G.'s father
was driving a 1956 Meteor. He said that he and B.G. ran to the car and B.G.
referred to the driver as "dad". F.P. and B.G. then had a
conversation with this man in which they complained about the conduct of the
appellant. According to F.P., B.G.'s father then went to see Brother Adrian,
the supervisor of the institution, and very shortly after that the appellant
was transferred to another institution. F.P. said that this occurred around
Christmas of 1961. He indicated that he had no direct involvement in the
complaint apart from speaking to B.G.'s father.
B.G. was 14
years of age when he first arrived at St. John's. He was there from October
of 1961 until June 1962 and again from December, 1962 to August, 1963.
According to B.G., he and F.P. lived in the same dormitory for virtually the
entire period that B.G. was at St. John's. During his first stay (October,
1961 to June, 1962) they lived in Brother Mark's dormitory and during his
second stay (December, 1962 to August, 1963) they lived in the appellant's
dormitory. B.G.'s testimony that he lived in a dormitory supervised by the
appellant during his second stay at St. John's was clearly wrong. The
appellant had left the school a year earlier.
that during his first stay at St. John's the appellant would sometimes
supervise the outdoor games. He said that the appellant would often wrestle
with various boys including himself and F.P. When he was doing so, he would
"kind of let his hands wander all over you, like feel your breasts and
your buttocks and your crotch area". B. G. referred to this as horseplay
which took on a sexual connotation. He also said that it was a common
occurrence on the playground and happened to many of the boys although he
noticed that the appellant seemed to pay more attention to F.P. than anybody else.
B.G. had no recollection of any specific incident on the playground involving
F.P. and the appellant. According to B.G., these incidents on the playground
began within a few months of his arrival in October 1961. At another point in
his testimony he indicated that they occurred in the spring.
testified that he was assaulted in the washroom by the appellant on two
occasions. On one occasion, the appellant came up behind B.G. and grabbed him
in the crotch area while B.G. was standing in front of a urinal. He said that
the appellant felt his testicles and penis. B.G. also said that he was
confronted by the appellant on at least two occasions in the stairwell. On one
occasion, the appellant "cornered" him and rubbed his breast and
crotch. On the second occasion, B.G. pushed the appellant backward and got
away from him.
B.G. was asked
when these various incidents occurred. He said that most of the incidents
occurred while he was in Brother Mark's dormitory during his first stay at St.
John's. He was also asked the following question and gave the following
Q. While you were in Brother
Frederick's dorm did anything further occur to you?
cross-examination B.G. said that the incidents in the washroom occurred only
during his first stay at St. John's and that the incident in the stairwell
occurred near the end of his first stay (April to June of 1962).
B.G. said that
he and F.P. became friends and on occasion discussed their abuse at the hands
of the appellant. B.G. testified that F.P. told him that the appellant came to
F.P.'s bed in the dormitory late at night and molested him while F.P. was lying
in bed. F.P. gave no such evidence and could not recall whether or not he had
so described the assault to B.G. F.P. did not tell B.G. about the assaults
which occurred in the appellant's room.
extensive evidence about the complaints which led to the removal of the
appellant from St. John's. B.G. fixed the time of the complaints by reference
to an incident involving his escape from St. John's. He testified that he had
not tried to escape during his first stay at St. John's, but that he had
escaped on 4 occasions during his second stay. The school records indicated
that his first escape during his second stay was in December of 1962. There
was no suggestion that records made any reference to an escape during his first
stay. B.G. testified that after one of these escapes, and he believed it may
have been the one in December 1962, he fled to St. Catharines where he met with
his family including his brother. He told his brother that he was being beaten
by the Brothers. He made no mention of sexual molestation because he was too
embarrassed. He and his brother returned to St. John's and his brother went
to see Brother Adrian. B.G. did not attend this meeting. A few weeks passed
after the meeting and nothing changed at the school. B.G. and F.P. discussed
what should be done and B.G. decided to go see a Brother Francis. He went to
Brother Francis and told him that he and F.P. were being molested by the
appellant and asked if anything could be done about it. B.G. described Brother
Francis as one of the kinder Brothers at St. John's. B.G. also asked to see
the supervisor, Brother Adrian. A few days later he was called to the office
and explained to Brother Adrian that he and F.P. were being molested. B.G.
believed that F.P. was also interviewed privately by Brother Francis and
Brother Adrian. A short time later, B.G. and F.P. were told to see Brother
Adrian together. According to B.G.:
We just explained to him what was going on
and that and two or three weeks after that, maybe even a month, Brother
Frederick was transferred somewhere.
cross-examination, B.G. indicated that he told Brother Francis basically what
he had described in his examination-in-chief. He told Brother Adrian that the
appellant was "bothering us and feeling us up and that". He said
that similar disclosures were repeated when he and F.P. went to see Brother
that F.P. did help clean the appellant's room while they were living in the
dormitory supervised by the appellant. He had no evidence to give with respect
to anything that may have happened to F.P. while he was in the appellant's
room. B.G. confirmed that upon arriving at St. John's he was told by other inmates
that the appellant was "a queer".
judge reviewed the evidence of F.P. and B.G. He acknowledged there were
inconsistencies between their versions of events, particularly with respect to
the year in which the events occurred. He preferred the evidence of F.P. on
this point. He went on to conclude:
Lastly, F.P. and B.G. who have not seen
each other for thirty years have nevertheless given testimony that is
substantially corroborative of each other's version of the events. [Emphasis added.]
judge reiterated this conclusion when addressing the appellant's liability on
the counts involving F.P. and again when considering the appellant's liability
on the count involving B.G.
the trial judge to have used the word "corroborative" in its modern
non-technical sense as evidence independent of a witness's testimony rendering
it more probable that the witness's testimony is true: R. v. B.(G.)
1990 CanLII 115 (SCC), (1990), 56 C.C.C. (3d) 161 at 178-180 (S.C.C.). I also accept the proposition
that, where joint concoction is excluded, the fact that two complainants give
evidence which is consistent on material matters may make the evidence of one
complainant confirmatory of the evidence given by the other complainant: R.
v. P. (P.N.) reflex, (1993), 81 C.C.C. (3d) 525 at 538-40 (Nfld. C.A.).
judge's finding that the evidence of B.G. was consistent with that given by
F.P. is, however, undermined by several mistakes made by the trial judge as to
the substance of B.G.'s evidence. The mistakes include the following:
♦ The trial judge
indicated on at least two occasions that B.G. testified that the assaults
occurred during his second stay at St. John's when he was living in the
appellant's dormitory. In fact, B.G. testified that most, if not all, of the
assaults occurred during the latter part of his first stay at St. John's when
he was living in Brother Mark's dormitory. He described most, if not all, of
these assaults as occurring after Christmas of 1961 and before the end of June
♦ The trial judge
found that B.G.'s second stay at St. John's commenced at a time subsequent to
or "almost concurrent to" the appellant's departure from the
institution. In fact, according to B.G. and the school records, his second
stay at St. John's commenced a year after the appellant had left.
♦ The trial judge
found that B.G. testified that his brother went to Brother Adrian to complain
about the appellant bothering B.G. and F.P. In fact, B.G. testified that he
did not tell his brother about any sexual abuse committed by the appellant.
Rather, he told his brother that he and the others who had escaped with him
(not F.P.) had been physically abused while at the institution. According to
B.G., his brother went to complain about that physical abuse. There is no
evidence from B.G. that he said anything to his brother about F.P. or sexual
♦ The trial judge
found that F.P. testified that B.G.'s father spoke to Brother Adrian about the
appellant. The trial judge went on to say that B.G. "could not recall
that". In fact, B.G. expressly testified that his father never visited
St. John's and that it was his brother who made a complaint about physical
♦ The trial judge
found that B.G. testified that both he and F.P. were living in the appellant's
dormitory when the incidents occurred. B.G. testified to the contrary. He
said most, if not all, of the assaults occurred while he was in Brother Mark's
dormitory, and he specifically said there were no further incidents of sexual
abuse involving him when he was in the appellant's dormitory.
errors were repeated and compounded when the trial judge turned to the specific
features of B.G.'s evidence which he regarded as consistent with and,
therefore, confirmatory of the evidence of F.P. The trial judge said that
B.G.'s evidence that the appellant wrestled with students on the soccer field
and fondled them while doing so was consistent with F.P.'s evidence. It was,
except for the fact that B.G. described these activities as a daily occurrence
on the playing field involving many of the boys and most commonly F.P. F.P.
said that it happened once and he was singled out by the appellant.
judge also regarded B.G.'s evidence that he and F.P. discussed the appellant's
abuse of them as confirmatory of F.P.'s evidence that he had discussed the
abuse with B.G. This finding of consistency ignores B.G.'s evidence that F.P.
told him that the assaults occurred late at night when the appellant would come
to F.P.'s bed in the dormitory. According to B.G., F.P. said nothing about
having been assaulted while in the appellant's room. F.P. did not testify to
any such conversation with B.G. and denied during his evidence that the
appellant assaulted him while he was in his bed in the dormitory.
in my view, most significantly, the trial judge found that the evidence of F.P.
and B.G. as to how the complaint was made against the appellant was different
in "detail" but "essentially" the same. This finding does
not accurately reflect the evidence on this point. F.P. testified that he and
B.G. met with B.G.'s father shortly before Christmas of 1961 and that after
this meeting B.G.'s father went to Brother Adrian to complain about the
appellant's conduct toward B.G. and F.P. According to F.P., the appellant was
transferred shortly after B.G.'s father went to visit Brother Adrian. B.G.
testified that his twenty-one year old brother made a complaint of physical
abuse probably around Christmas of 1962. B.G. did not suggest that F.P. had
any prior knowledge of, or any involvement in, the complaint made by his
brother. B.G. went on to testify that after his brother's efforts produced no
results, he and F.P. discussed what they should do about the appellant. As a
result of these discussions, B.G. said that he went first to Brother Francis
and then to Brother Adrian to complain about the appellant's sexual abuse of
himself and F.P. B.G. also said that he believed that F.P. went alone to speak
to each Brother and that on one occasion he and F.P. were summoned to Brother
Adrian's office to discuss their allegations of sexual abuse against the
appellant. It was a few weeks after this joint meeting that the appellant was
characterize these two stories as differing only in detail with respect to the
identity of the complainant and the timing of the complaint. On F.P.'s
version, he played no direct role in the making of the complaint and would not
have played any such role because of his distrust of the Brothers. On B.G.'s
version, his brother made no complaint involving F.P. or sexual abuse by the
appellant, and it was only after B.G. and F.P. went separately and jointly to
Brother Adrian (and Brother Francis) and made specific complaints of sexual
abuse against the appellant that their complaints resulted in the transfer of
the appellant. B.G. and F.P. described very different complaint processes
leading to the removal of the appellant. Their evidence is substantially
inconsistent on the point.
In my opinion,
the trial judge misapprehended the evidence of B.G. in several respects. In
fairness, I should add that the evidence of B.G. was lengthy and even with the
assistance of a transcript and of the luxury of time for repeated readings of
that evidence, it was not easy to distil the net effect of B.G.'s evidence on
I will now
address the effect of the trial judge's misapprehension of the evidence.
Submissions premised on an alleged misapprehension of evidence are commonplace
in cases tried by a judge sitting without a jury. A misapprehension of the
evidence may refer to a failure to consider evidence relevant to a material
issue, a mistake as to the substance of the evidence, or a failure to give
proper effect to evidence. Where, as in the case of Crown appeals from
acquittals (s. 676(1)(a)) and appeals to the Supreme Court of Canada pursuant
to s. 691, the court's jurisdiction is predicated on the existence of an error
of law alone, characterization of the nature of the error arising out of the
misapprehension of evidence becomes crucial. The jurisprudence from the
Supreme Court of Canada demonstrates the difficulty in distinguishing between
misapprehensions of the evidence which constitute an error of law alone and
those which do not: R. v. Harper 1982 CanLII 11 (SCC), (1982), 65 C.C.C. (2d) 193 (S.C.C.); R.
v. Schult, 1985 CanLII 20 (SCC),  2 S.C.R. 592; R. v. Roman 1989 CanLII 113 (SCC), (1989), 46 C.C.C. (3d)
321 (S.C.C.); R. v. B.(G.)(No. 3) 1990 CanLII 115 (SCC), (1990), 56 C.C.C. (3d) 181 (S.C.C.);
R. v. Morin reflex, (1992), 76 C.C.C. (3d) 193 (S.C.C.). The recent trend in
that court suggests that most errors which fall under the rubric of a
misapprehension of evidence will not be regarded as involving a question of
law: R. v. Morin, supra; J. Sopinka, S.M. Gelowitz, The Conduct of
an Appeal (1993), p. 85-89.
The need, for
jurisdictional purposes, to classify a misapprehension of the evidence as an
error of law, as opposed to an error of fact or mixed fact and law, does not
arise in this court where the appeal is from conviction in proceedings by way
of indictment. Section 675(1)(a) gives this court jurisdiction to consider
grounds of appeal which allege any type of error in the trial proceedings. The
wide sweep of s. 675(1)(a) manifests Parliament's intention to provide
virtually unobstructed access to
a first level of appellate review to those convicted of indictable offences.
The scope of
this court's power to quash convictions is commensurate with the broad
jurisdiction given to it by s. 676(1)(a). Section 686(1)(a) provides that:
(1) On the hearing of an appeal against a
conviction or against a verdict that the appellant is unfit to stand trial or
not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is
of the opinion that
(i) the verdict
should be set aside on the ground that is unreasonable or cannot be supported
by the evidence,
(ii) the judgment of
the trial court should be set aside on the ground of a wrong decision on a
question of law, or
(iii) on any ground
there was a miscarriage of justice;
granted in that section are qualified to some extent by s. 686(1)(b)(iii)
and s. 686(1)(b)(iv). For present purposes I need reproduce only
(b) [the Court of Appeal] may dismiss the
that the court is of the opinion that on any ground mentioned in subparagraph
(a)(ii) the appeal might be decided in favour of the appellant, it is of the
opinion that no substantial wrong or miscarriage of justice has occurred,
686(1)(a) provides three distinct bases upon which this court may quash a
conviction, each shares the same underlying rationale. A conviction which is
the product of a miscarriage of justice cannot stand. Section 686(1)(a)(i) is
concerned with the most obvious example of a miscarriage of justice, a
conviction which no reasonable trier of fact properly instructed could have
returned on the evidence adduced at trial. Section 686(1)(a)(ii) read along
with s. 686(1)(b)(iii) presumes that an error in law produces a miscarriage of
justice unless the Crown can demonstrate the contrary with the requisite degree
of certainty. Section 686(1)(a)(iii) addresses all other miscarriages of
justice not caught by the two preceding subsections. In so far as the
operation of s. 686(1)(a) is concerned, the distinction between errors of law
and all other types of error has only one significance. Where the error is one
of law the Crown bears the burden of demonstrating that the error did not
result in a miscarriage of justice. Where the error is not one of law alone
the appellant bears that burden.
In my opinion,
on appeals from convictions in indictable proceedings where misapprehension of
the evidence is alleged, this court should first consider the reasonableness of
the verdict (s. 686(1)(a)(i)). If the appellant succeeds on this ground an
acquittal will be entered. If the verdict is not unreasonable, then the court
should determine whether the misapprehension of evidence occasioned a
miscarriage of justice (s. 686(1)(a)(iii)). If the appellant is able to
show that the error resulted in a miscarriage of justice, then the conviction
must be quashed and, in most cases, a new trial ordered. Finally, if the
appellant cannot show that the verdict was unreasonable or that the error
produced a miscarriage of justice, the court must consider the vexing question
of whether the misapprehension of evidence amounted to an error in law (s.
686(1)(a)(ii)). If the error is one of law, the onus will shift to the Crown
to demonstrate that it did not result in a miscarriage of justice (s.
the reasonableness of the verdict pursuant to s. 686(1)(a)(i), this court must
conduct its own, albeit limited, review of the evidence adduced at trial: R.
Burns, supra, at p. 198-99. This court's authority to declare a conviction
unreasonable or unsupported by the evidence does not depend upon the
demonstration of any errors in the proceedings below. The verdict is the error
where s. 686(1)(a)(i) is properly invoked. A misapprehension of the evidence
does not render a verdict unreasonable. Nor is a finding that the judge
misapprehended the evidence a condition precedent to a finding that a verdict
is unreasonable. In cases tried without juries, a finding that the trial
judge did misapprehend the evidence can, however, figure prominently in an
argument that the resulting verdict was unreasonable. An appellant will be in
a much better position to demonstrate the unreasonableness of a verdict if the
appellant can demonstrate that the trial judge misapprehended significant evidence:
R. v. Burns, supra, at p. 200.
I need not
pursue the relationship between a misapprehension of the evidence and an
unreasonable verdict any further. On the evidence adduced in this case and
bearing in mind the errors made by the trial judge in his appreciation of that
evidence, I cannot say that the convictions of counts 1, 2, 3, and 6 were
I turn next to
s. 686(1)(a)(iii). This subsection is not concerned with the characterization
of an error as one of law, fact, mixed fact and law or something else, but
rather with the impact of the error on the trial proceedings. It reaches all
errors resulting in a miscarriage of justice and vindicates the wide
jurisdiction vested in this court by s. 675(1). The long reach of s.
686(1)(a)(iii) was described by McIntyre J., for a unanimous court, in R. v.
Fanjoy 1985 CanLII 53 (SCC), (1985), 21 C.C.C. (3d) 312 at 317-18 (S.C.C.):
...A person charged with the commission of
a crime is entitled to a fair trial according to law. Any error which occurs
at trial that deprives the accused of that entitlement is a miscarriage of
Fanjoy, like most cases where s.
686(1)(a)(iii) has been invoked, involved prosecutorial or judicial misconduct
in the course of the trial: e.g. see R. v. Stewart reflex, (1991), 62 C.C.C.
(3d) 289 (Ont. C.A.); R. v. R. (A.J.) 1994 CanLII 3447 (ON CA), (1994), 20 O.R. (3d) 405 (C.A.).
Such conduct obviously jeopardizes the fairness of a trial and fits comfortably
within the concept of a miscarriage of justice. Nothing in the language of the
section, however, suggests that it is limited to any particular type of error.
In my view, any error, including one involving a misapprehension of the
evidence by the trial judge must be assessed by reference to its impact on the
fairness of the trial. If the error renders the trial unfair, then s.
686(1)(a)(iii) requires that the conviction be quashed.
When will a
misapprehension of the evidence render a trial unfair and result in a
miscarriage of justice? The nature and extent of the misapprehension and its
significance to the trial judge's verdict must be considered in light of the
fundamental requirement that a verdict must be based exclusively on the
evidence adduced at trial. Where a trial judge is mistaken as to the substance
of material parts of the evidence and those errors play an essential part in
the reasoning process resulting in a conviction then, in my view, the accused's
conviction is not based exclusively on the evidence and is not a
"true" verdict. Convictions resting on a misapprehension of the
substance of the evidence adduced at trial sit on no firmer foundation than
those based on information derived from sources extraneous to the trial. If an
appellant can demonstrate that the conviction depends on a misapprehension of
the evidence then, in my view, it must follow that the appellant has not
received a fair trial, and was the victim of a miscarriage of justice. This is
so even if the evidence, as actually adduced at trial, was capable of
supporting a conviction.
I am satisfied
that the trial judge's errors with respect to the content of the evidence of
B.G. were significant and resulted in a miscarriage of justice. The trial
judge treated the evidence of F.P. and B.G. as if it was consistent on all
significant points relating to the events surrounding the assaults except for
the year in which those assaults actually occurred. In fact, as indicated
above, there were other inconsistencies between the evidence of the two
complainants which went unnoticed by the trial judge as a result of his
misapprehension of the substance of the evidence. Similarly, the trial judge
regarded the complainants' evidence concerning their initial complaint about
the appellant as consistent save for minor details such as the exact familial
relationship between B.G. and the person first complained to by him. Here too,
the trial judge's misapprehension of the content of the evidence obscured
numerous differences in the versions of events described by the two
complainants. The cumulative effect of these errors was significant in that it
infected the very core of the reasoning process which culminated in the
conviction of the appellant on the four counts involving F.P. and B.G. Without
the finding of mutual confirmation, the trial judge may not have found either
F.P. or B.G. to be credible and their evidence to be reliable. Those findings
were essential to the verdicts rendered by the trial judge.
observation of Laycraft J.A. in Whitehouse v. Reimer 1980 ABCA 214 (CanLII), (1980), 116 D.L.R.
(3d) 594 (Alta. C.A.) has application here. In that case, the trial judge was
faced with two conflicting versions of the relevant event. He found in favour
of the plaintiff but in doing so misstated the evidence on three significant
factual issues. In ordering a new trial, Laycraft J.A., speaking for a
unanimous court, said at p. 595:
Where a principal issue on a trial is
credibility of witnesses to the extent that the evidence of one party is
accepted to the virtual exclusion of the evidence of the other, it is essential
the findings be based on a correct version
of the actual evidence. Wrong findings on what the evidence is destroy the
basis of findings of credibility.
has demonstrated significant errors in the trial judge's understanding of the
substance of the evidence. He has further demonstrated that those errors
figured prominently in the reasoning process which led to crucial findings of
credibility and reliability, and then to crucial findings of fact. In these
circumstances, the appellant has met the onus of showing that the convictions on
the counts relating to F.P. and B.G. constitute a miscarriage of justice.
Those convictions must be quashed and a new trial ordered.
As I have
concluded that the misapprehension of the evidence by the trial judge produced
a miscarriage of justice, it is not necessary for me to decide whether that
error constituted an error in law. I will, however address that issue. In my
opinion, the trial judge's mistaken apprehension of the content of the evidence
of a witness cannot be classified as an error in law. There is no suggestion
that he did not consider all of the relevant evidence (R. v. Harper, supra)
or that he misdirected himself on the applicable law and thereby misapprehended
the evidence (R. v. B.(G.)(No. 3), supra). The trial judge addressed
his mind to all of the evidence and as revealed by his reasons for judgment,
was simply mistaken as to what was said by B.G. in his evidence. That error
was made in his fact-finding capacity and is not, in my view, an error in law:
R. v. Telmosse, supra, at pp. 138-39.
III. CONCLUSION WITH
RESPECT TO THE CONVICTION APPEAL
convictions on counts 1, 2, 3, and 6 must be quashed and a new trial ordered.
Neither the trial judge's mistakes as to the content of some of the evidence,
nor his resort to speculative conclusions had any impact on the conviction on
count 7. The appeal from that conviction should be dismissed.
IV. THE SENTENCE
necessary to consider only the sentence imposed on the charge of assault
causing bodily harm. The trial judge imposed a sentence of 1 month. Given my
conclusion that there must a new trial on the other counts, the assault on A.S.
must be viewed as a single isolated act for sentencing purposes. Considering
the passage of time between the offence and the conviction, the appellant's
relative youth when the offence occurred, and the exemplary life he has led
over the last 30 years, I do not regard further incarceration at this point as
necessary or appropriate. I would reduce the sentence to time served.
In the result,
I would quash the convictions on counts 1, 2, 3, and 6 and direct a new trial.
I would dismiss the appeal from the conviction on count 7, grant leave to
appeal the sentence imposed on that count, allow the appeal, and reduce the
sentence to time served.
COURT OF APPEAL
OSBORNE, DOHERTY and LASKIN JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ROBERT J. MORRISSEY
U D G M E N T
The relationship between
mistakes with respect to the substance of the evidence and this court's power
to quash a conviction is developed below in the context of the final ground of
appeal advanced by the appellant.
As admissibility was not challenged,
the record for appeal purposes does not set out in full the submissions made by
counsel on the admissibility of the documents.
Where the ground of appeal does
not allege an error in law, the appellant must receive leave to appeal. In
Ontario, at least, leave to appeal poses no bar. All grounds of appeal are
considered on their merits in a single hearing.