New trial ordered for father in alleged sex abuse over judge’s treatment of factual error
This article first appeared in the Lawyer’s Daily.An Ontario father will be retried for alleged sexual offences against his daughter after the Court of Appeal ruled a trial judge misapprehended evidence concerning his previous criminal record.
According to the ruling in R v. W.M. 2020 ONCA 236, a trial judge originally sentenced the appellant to four years imprisonment after convicting him of sexual interference and sexual assault of his then-4-year-old daughter in 2015.
The trial judge admitted similar fact evidence of sexual assault offences against young children the appellant pleaded guilty to in 1998, but misstated the date of his sexual offender treatment as 2008, when he had completed the course in 2000.
Writing for the 2-1 majority on the Appeal Court panel, Chief Justice George Strathy found the factual error affected the trial judge’s assessment of both the accused’s propensity to offend in 2015, and the weight he gave the similar fact evidence, meeting the “stringent standard” for determining whether a misapprehension of evidence led to a miscarriage of justice.
“In the present case, the similar fact evidence played a significant role in the conviction, as did the trial judge’s discounting of the appellant’s evidence concerning the effect of the sexual offender treatment. The misapprehension of the evidence was material and played an essential part in the trial judge’s reasoning process,” Justice Strathy wrote in the March 24 judgment, allowing the appeal and ordering a new trial.
After representing W.M. at trial, Brampton, Ont. criminal lawyer Jack McCulligh says he carried out the appeal on a pro bono basis when legal aid officials declined to support the case.
“He’s very happy,” McCulligh said of his client, who remains incarcerated while trying to arrange a surety for bail ahead of a fresh trial.
“So he could be happier,” McCulligh added.
Joseph Neuberger, Neuberger and Partners LLP
“The Court of Appeal had to be strong to overturn the decision, because of the compelling similar fact evidence presented by the prosecution, but I think they arrived at the correct conclusion,” said Joseph Neuberger of Toronto criminal defence firm Neuberger and Partners LLP, who was not involved in the case. “The factual error flowed right through the decision and had a profound effect in driving the trial judge’s reasoning towards conviction.”
According to the ruling, the charges against W.M. related to two alleged incidents in which his young daughter accused him of touching her vagina.
At trial, the judge heard he had previously pleaded guilty in 1998 to sexual assault for touching the vaginas of two girls under the age of 7 – one while he was still a teenager and the other when in his mid-20s.
The appellant testified at trial that he was a “changed man” after the 1998 conviction and was unconcerned about relapse in part due to sex offender treatment he received in 2000 while serving a sentence for a number of unrelated property crimes.
But after misstating the date of the treatment as 2008, the trial judge’s decision noted that it was “implicit” in the appellant’s evidence that he was still in “some need of treatment at that time,” more than a decade after his last offence.
In his majority opinion, Justice Strathy wrote that the factual error led the trial judge to believe that the appellant’s propensity to offend was likely still active in 2015, when the new offences were alleged to have occurred.
“Under the correct timeline, the appellant’s evidence, including his claim of confidence, would have been more credible,” the decision reads.
In addition, the majority of the panel found the error affected the weight given by the trial judge to the similar fact evidence because it interfered with his assessment of the treatment program as an “intervening event” diminishing its probative value.
“As discussed, the trial judge reasoned that the propensity exhibited in the similar fact offences was still a factor in 2015 because of the factual error that the appellant received sexual offender treatment in 2008, only seven years before. This line of reasoning would not have been available on the correct timeline of treatment in 2000,” Justice Strathy concluded.
Aaron Harnett, criminal defence lawyer
Toronto criminal defence lawyer Aaron Harnett was not involved in the case, but frequently represents clients faced with sexual assault allegations, when similar fact evidence involving past offences may come into play.
“It really puts defendants in a terrible position, because they are defending themselves not only against the case that brings them to court, but also against that past behaviour,” he said. “The power and potency of similar fact evidence is so great that judges have to be extremely careful in cases where it plays a significant role in leading to a conviction.”
That’s particularly so in the emotionally heightened context of child sexual abuse allegations, Harnett added.
“It’s as a result of the recognition of the potential for the distortion of the process that the Court of Appeal showed such caution in sending it back for a new trial,” he said.
In his dissent, Justice Bradley Miller wrote that he would have dismissed the appeal because he did not believe the trial judge’s misapprehension of the evidence had a material impact on his conviction of W.M.
“Nothing turns, in my view, on the fact that the trial judge misstated the year in which the appellant conceded that he still had a propensity towards sexual touching of young girls,” Justice Miller concluded. “Whether it was 2000 or 2008 (as the trial judge misstated), the salient point was that it was a long-held propensity.”
Ontario’s Crown Law Office did not respond to requests for comment, but McCulligh said it has yet to decide whether to appeal to the Supreme Court of Canada.
Justice Miller’s dissenting opinion means the Crown would not require leave to appeal to the nation’s top court, but Harnett said he would be surprised if it will take up the option of an automatic hearing.
“The Crown will have another opportunity to prove its case in any event at the new trial,” he explained.
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For the third time within recent weeks Toronto defence lawyer Joseph Neuberger has had criminal allegations that arose in family court dismissed against his clients. But, while he achieved favourable results for his clients, Neuberger says he’s concerned by what he thinks is a trend of false allegations made in family matters jumping to the criminal courts to be used as leverage in the prior proceedings. Read More.False domestic abuse allegations cause long-standing trauma
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Proposed changes to Canada’s sex assault laws — that would make a complainant’s relevant sexual communications presumptively inadmissible — are a direct attack on an individual’s right to make full answer and defence, says Toronto criminal lawyer Joseph Neuberger. “It will just lead to wrongful convictions,” says Neuberger, founding partner with Neuberger & Partners LLP. this is unconstitutional.” Read MoreEvidence key consideration in historical sex assault cases
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Duffy verdict may impact cases against other senators
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By Joseph Neuberger
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By Joseph Neuberger
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Marcella Zoia denies that she posted the infamous video of her throwing the chair to social media, but the crown says she did. Catherine McDonald has more. Learn More. (https://globalnews.ca)Great volunteers help cue up Billiards with the Bar fundraiser.
Everyone is invited to enjoy a relaxing evening of pool, music, and great food as Neuberger & Partners LLP, Hull & Hull LLP, and the Toronto Lawyers Association host the annual Billiards With the Bar fundraiser on Nov. 14, says Toronto criminal lawyer Joseph Neuberger. Read MoreDifficult legal road to prove Minassian not criminally responsible.
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As Canadian judges struggle with the new so-called "Ghomeshi Rules" in accusations of sexual assault, many innocent men may go to prison. Former CBC radio host Jian Ghomeshi was acquitted of sexual assault in a sensational, high profile trial back in 2016. Each of the complainants were deemed by Judge Horkins in that case to have "breached her oath to tell the truth" and even the media, who were mostly salivating for a conviction, had to admit that Ghomeshi should not have been convicted. Read More (www.thepostmillennial.com).SCC dissenting voices speak volumes in sexual assault case.
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The growing concern to address sexual assault allegations on university campuses has resulted in a new vigilance to investigate and litigate allegations against students and faculty with little to no protection of the accused person's fundamental.Identification evidence is all about reliability: Neuberger
Juries must be very careful when assessing the reliability of eyewitness evidence, as there is a very good chance it is incorrect, says Toronto criminal lawyer Joseph Neuberger. Read More.Rape shield amendments interfere with access to justice
A recent case illustrates how amendments to the rape shield provisions of the Criminal Code have "thrown criminal litigation into insane disarray," says Toronto criminal lawyer Joseph Neuberger. Read moreTroubling legislation results from 'knee-jerk' reactions
Hashtag activism and the government's reaction to it have led to bad law, particularly the elimination of peremptory jury challenges, the reduction in preliminary inquiries, and the curtailing of defence rights in sexual assault trials, Toronto criminal lawyer Joseph Neuberger tells. Read More.Joseph Neuberger's media roundup
Toronto criminal lawyer Joseph Neuberger is frequently called upon by the media to be a trusted source for their news stories, particularly for his focus on criminal law matters. Here is the most recent list: Read moreSCC hearing provides hope on relationship evidence.
Toronto criminal lawyer Joseph Neuberger says he is encouraged by a Supreme Court of Canada (SCC) hearing on the admissibility of relationship evidence in cases of sexual assault. Read moreAre police violating your rights by testing for sobriety without cause?
"The argument that you haven't done anything wrong so you should have nothing to hide, does that mean police shouldn't need search warrants to search our homes and our computers?" Neuberger said. Read more (The Globe And Mail).Canada is using online outrage to make dangerous changes to the criminal code.
Almost a year ago, Prime Minister Trudeau and his Minister of Justice took to Twitter to undermine the Canadian public's faith in our own legal system. Read more (The Post Millennial).Latest drinking and driving legislation 'unfathomable:' Neuberger
"Troubling" legislation that allows police to demand a breath sample two hours after a driver has parked their car will eventually be contested at the Supreme Court, predicts Toronto criminal lawyer Joseph Neuberger, whose firm is often retained to run constitutional challenges. Read moreNew law may jail innocent people.
Youtube Link Some laws passed by our government are enacted in ways that are later deemed to be unconstitutional. It happens. And it usually takes years before a successful challenge makes it all the way to Supreme Court to be overturned. Read More(The Post Millennial).Fight against Bill C-51 just beginning: Neuberger
The legal profession will rise up to challenge the constitutionality of the federal government's proposed Bill C-51 once it becomes law, says Toronto criminal defence lawyer Joseph Neuberger. Read morePower to demand breath samples strips civil liberties: Neuberger.
Giving police the power to demand a mandatory breath sample from any driver they lawfully stop is an "unnecessary" erosion of civil liberties that will clog the courts with challenges for years, Toronto criminal lawyer Joseph Neuberger tells Global News Radio. Read moreScrutiny heightens on NCR findings
Two high-profile criminal proceedings in Toronto have again put a spotlight on the issue of defendants who are found not criminally responsible as a result of mental illness and what needs to be shown before this finding is accepted. Read more (Law Times)Neuberger urges police discretion in period of marijuana transition.
Police should use discretion with members of the public as they become accustomed to new laws surrounding marijuana possession, Toronto criminal lawyer Joseph Neuberger writes in The Lawyer's Daily. Read moreWill cannabis criminal records be expunged after legalization?
Before Oct. 16, 2018, an adult possessing 30 grams of cannabis is breaking the law. If convicted of possession, that person will have a criminal record. On and after Oct. 17, 2018, possessing that cannabis will be perfectly legal. But a person's criminal record for possessing cannabis will remain. Read moreBilliards event chalks up record sum to feed the hungry
The annual Billiards with the Bar charity event celebrated its fifth anniversary in style, pocketing a record sum to feed the hungry, former Toronto Lawyers Association (TLA) president Joseph Neuberger tells AdvocateDaily.com. Read moreStay serves setback to cops who delay right to counsel: Neuberger
Police who delay an arrested person's right to counsel have suffered another setback in Ontario Superior Court after Toronto criminal lawyer Joseph Neuberger recently won a stay of charges against a man caught with a backpack full of stolen opioids. Read MoreFifth Billiards with the Bar fundraiser: Lawyers Feed the Hungry marks 20 years
Fun, food and fundraising make for the perfect combination at the annual Billiards with the Bar charity event, former Toronto Lawyers Association (TLA) president Joseph Neuberger tells AdvocateDaily.com. Read MoreWhat to expect if police suspect you are driving on drugs.
It is no mystery why Ontario law enforcement and safety advocates urge drivers to stay off the road after they have been using any substances that may result in impairment. Driving under the influence of drugs, even certain prescription drugs, raises the possibility that you will be involved in a motor vehicle accident that could cause you or others to suffer serious or fatal injuries. Read More