Overturned sex assault charge destined to attract critics

Law360 Canada (November 11, 2024, 11:18 AM EST) --

John L. Hill

When A.R. and J.E. moved to Ontario in 2012, A.R.’s daughter from a previous relationship, T.R.S., stayed behind to live with her father. But when T.R.S. was 11 years old, her father became terminally ill and could not take care of T.R.S. A.R., and J.E. agreed to take her in.

A.R. and J.E. were having troubles in their relationship and fought frequently. In 2017, A.R. slapped her daughter, resulting in T.R.S. receiving a bloody nose. The incident was reported to the Children’s Aid Society (CAS). Eventually, T.R.S.relocated to live with her grandmother.

In the spring of 2020, T.R.S. made another complaint. She earlier reported that while residing with A.R. and J.E., her mother became employed and was not at home for extended periods. It was while her mother was away that J.E. fondled and digitally penetrated her. She was 12 when she moved away to live with her grandmother in 2017. T.R.S. claimed that she had told the CAS of the abuse, but the agency was concerned only with the girl’s mistreatment by her mother. This time, three years later, a complaint was made to the police.

J.E. was charged with sexual offences and stood trial in the Ontario Court of Justice in 2021. He was convicted of sexual interference and sentenced to four and a half years of imprisonment in 2022. A conviction for sexual assault was stayed under Kienapple v. The Queen, [1975] 1 S.C.R. 729. He appealed his conviction and sentence to the Ontario Court of Appeal. Facing the unwritten expectation that children do not lie, the appellant’s counsel, Jessica Zita, a partner in the Toronto law firm Lockyer Zaduk Zeeh, faced the difficult challenge of convincing a three-judge panel that the trial judge, Justice Robert Horton, made a reversible error. The Court of Appeal issued its decision on Oct. 31, 2024 (R. v. J.E., 2024 ONCA 801).

The trial transcript contained evidence recorded from only three witnesses: The Crown called A.R., the complainant and J.E., who testified on his own behalf. No CAS witness was called. At trial, the complainant’s mother denied her daughter ever told her of J.E.’s assaults.

The appellant’s counsel was further hindered in that the allegations of abuse were at times when the mother was at work or asleep and could not directly refute any of her daughter’s statements. However, the defence counsel regarded A.R.’s testimony as necessary because A.R. denied that her daughter reported sexual misconduct supposedly first reported shortly after the criminal act took place. Further, she denied she had been absent from the house when an attempt to have intercourse with T.R.S. was said to have happened.

The appeal court found the trial judge erred in dealing with these matters. If the trial judge had not accepted the complainant’s testimony on these issues and found A.R.’s denials plausible, the issue of the complainant’s testimony on these points could have been grounds to question the credibility and reliability of all her allegations. The trial judge took a wrong analytic approach by rejecting the mother’s testimony as not independently corroborated. The three legal errors made in rejecting A.R.’s testimony included the following: (1) the criminal standard of proof beyond a reasonable doubt does not apply to individual items of evidence (R. v. Morin, [1988] 2. S.C.R. 345; R. v. Miller, (1991), 5 O.R. (3d) 678(C.A.)), (2) the criminal standard of proof applies only to the Crown’s case and the particulars of the charge with the defence not having to prove any contested facts and (3) A.R.’s evidence did not need independent corroboration before it could contribute to reasonable doubt. On appeal, the Crown conceded these errors.

Even though the mother’s evidence was not determinative of the issue, it remained important in assessing reasonable doubt. In this case, the trial judge further erred by not explaining why he accepted the complainant’s evidence beyond his failure to be satisfied with A.R.’s credibility.

The defence on appeal also pointed out that the trial judge’s reasons were inadequate and improperly reversed the onus of proof by rejecting the appellant’s evidence and rejecting J.E.’s denial as nothing more than “benign” facts.

The appeal court’s reasons state that the trial judge erred by improper analysis. Rather than applying the criminal burden of proof to the Crown’s case, the trial judge had to critically assess T.R.S.’s testimony in light of the evidence, including A.R.’s testimony, even if it did not affirmatively accept A.R.’s evidence as proved to be true. The trial judge’s reasons do not show he engaged in this essential analysis.

The conviction was set aside, and a new trial was ordered.

Some will be critical of this decision because sexual assaults are often under-reported and difficult to prosecute. While our sympathies lie with T.R.S. if her allegations are true, the court must apply proper analysis and appropriately determine guilt if our judicial institutions are to be respected.

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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