Updated: Dec 20, 2020
The appellant was convicted of multiple offenses from historical sexual assault, towards the young daughter, S.M., of his former common-law spouse, A.W. The appellant met A.W. in 2001 and moved in together four months later. The household was characterized by dysfunction, rampant drug use, violence, and neglect. S.M. testified at the trial of the abuse starting in B.C. This included sexual touching, forced oral sex, and vaginal intercourse, sometimes by forced consumption of marijuana or sleeping pills. In 2005, S.M. contacted Children’s Aid Society (“CAS”) to tell them she and her siblings were being neglected; she did not report sexual abuse to CAS at the time. S.M. wrote at length of the sexual abuse in a book, as part of a grade 12 writing project. She subsequently reported the abuse to police in Ottawa in 2012. E.M. and A.W. also reported incidents of physical abuse by the appellant. The appellant was convicted of assault, assault with a weapon, sexual assault, sexual interference, invitation to sexual touching, administering a stupefying, or overcoming drug. The appellant appeals his convictions.
i) The Appellant appealed the standard of credibility of S.M.
The trial judge assessed the credibility of S.M., using the criteria applicable to adult witnesses. In this assessment, it is clear that the trial judge is allowed to make allowances for errors because she was recalling memories that were formed through perceptions of a child. The trial judge found S.M. to be credible.
ii) The Appellant appealed the use of his criminal record
The trial judge noted the appellant’s lengthy criminal record and used this criminal record to speak to the appellant’s credibility and the likelihood of committing the offenses he was accused of. The ONCA did not agree the appellant’s criminal record was an appropriate matter for the trial judge to consider in assessing credibility.
iii) The Appellant appealed material inconsistencies
The appellant argued that there were material inconsistencies. A trial judge is entitled to deference in determining the significance to place on any inconsistencies in the evidence. The appellant did not make out the claim that the trial judge did not consider material evidence when making credibility assessments.
iv) The trial judge applied uneven scrutiny
The appellant claimed that the trial judge held his evidence to a more rigorous standard than that of S.M. The trial judge made very clear that he preferred S.M.’s evidence. Additionally, the trial judge gave reasons as to why he disbelieved the appellant’s evidence. His evidence was inconsistent and contradictory. The trial judge did not err in the manner in which he assessed the evidence of the witnesses.
v) The Appellant appealed that the rule in Browne v Dunn had been violated
There is no merit on this ground of appeal, the remarks the trial judge made on Browne v Dunn did not add to his reasons for judgment.
The appeal is dismissed.
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