New trial ordered for father in alleged sex abuse over judge’s treatment of factual errorThis 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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