R v WM 2020 ONCA 236/ 2020 SCC 42

Updated: May 28, 2021


WM was accused of sexually assaulting his 4-year-old daughter, specifically for touching her vagina while she slept, alongside two other incidents. His daughter, SA, gave video testimony about the assault, which was admitted into trial as evidence. Along with this evidence, the trial judge allowed similar fact evidence (which is evidence of past misconduct for the purpose of inferring a person, has committed similar acts in the past). WM was accused of sexual assault of a 3- to 5-year-old between 1985 - 1987, in which he was accused of touching their vagina. Again between 1995 - 1997, WM was accused of sexually assaulting a child between the ages of 5 to 7 years old by touching her vagina in her sleep. WM testified he was also sexually assaulted as a child. Additionally, he testified that after his conviction he became a “changed man.” He testified that he went to sexual offender treatment, while in custody for being convicted in 2000 for unrelated charges, one of which included dangerous operation of a motor vehicle, which left him injured. He claimed this injury left him unable to experience sexual gratification, including erections.

The trial judge found the complainant, SA, was credible because all she wanted to do was tell the truth. He found the testimony of SA was not influenced by her mother. The trial judge also found that WM’s evidence was “self-serving” and contradictory. For example, WM claimed he was unable to have an erection, yet he fathered a child, SA, after the accident. Further, WM acknowledged that when he was younger, he did not appreciate that touching a child’s vagina was wrong, but also acknowledged he did so in private so he would not get caught.

In the trial judge’s judgment, he observed incorrectly, that WM went to sex offender treatment in 2008, when it was actually 2000. The trial judge discussed the propensity of WM to touch tender-aged female children inappropriately from 1985 to 2008 (23 years) and found there was still every reason for these impulses to still be a factor in 2015 (when he was accused), because no treatment is 100% effective. The trial judge recognized the lack of coincidence of WM’s past criminal record of touching tender-aged females on the vagina as they slept, and SA making the same allegation. Because of the incorrect dates, WM appealed to a higher court on the ground of misapprehension (misunderstood) evidence, concerning the wrong date attributed to his sexual offender treatment.


The only ground of appeal accepted by the Ontario Court of Appeal (ONCA) was that the trial judge misapprehended (misunderstood) the Appellant’s evidence concerning his sexual offender treatment, and that this error had a “material impact” (an impact that affects the course or outcome of a proceeding), on the conviction.

The appellate judges looked at the legal principle of the misapprehension of evidence, which states that a new trial is required when the appellant has met the stringent standard for determining whether a misapprehension (misunderstanding) of evidence resulted in a miscarriage of justice. They looked at R v Morrissey and considered the fact that the misapprehension of evidence must go to the substance of the issue, must be material, and the errors must be an essential part of the judgment in the reasoning process, resulting in a conviction.

Factual Error

The appellate judges recognized the factual error the trial judge made, which led him to believe there was evidence of an ongoing propensity that persisted for a 23-year period. Properly understood, the evidence demonstrated that the Appellant had received sexual offender treatment in 2000, within three years of his previous offence in 1998. Therefore, the propensity to offend in this way did not demonstrate itself for 15 years after treatment.

Impact of the Misapprehension of Evidence

This misapprehension affected the trial judge’s reasons for conviction because it led the trial judge to find the Appellant’s propensity (a natural inclination) to offend was likely active in 2015. Thus, the trial judge found, implicitly, that the treatment did not reduce the weight put on the similar fact evidence (the fact that WM was accused of this before).

Weight of Similar Fact Evidence

The factual error affected the weight of similar fact evidence. 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 be available for the correct timeline of treatment occurring in 2000. 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 ONCA allowed the appeal and ordered a new trial.


Justice Miller wrote for the dissent (against the majority of ONCA) and did not believe the trial judge’s misapprehension of evidence played an essential role in the reasoning process resulting in the conviction. The trial judge considered a number of factors in rejecting the Appellant’s testimony and determining his guilt beyond a reasonable doubt. One of the factors was the similar fact evidence, and he agreed it carried considerable force, but all the factors undermined the Appellant’s evidence in addition to the complainant being sound, credible, and reliable, despite the inconsistencies in her testimony. The evidence, taken together, convinced the trial judge of the Appellant’s guilt beyond a reasonable doubt. The trial judge noted it was no coincidence that the complainant accused the Appellant of the exact same thing he had done in the past to similar young females her age. Justice Miller also looked at how the trial judge concluded that because the Appellant testified that he benefitted from sex offender treatment, then he must, at the time he chose to undertake the treatment, still have had a propensity toward touching the vagina of young girls for his sexual gratification. If he had no such propensity, the trial judge reasoned he would not have chosen to undertake the sexual offender course. Whether it was 2000 or 2008, the main point was that it was a long-held propensity (whether 15 years or 23 years), and the fact of having completed a treatment program did not blunt its significance.

Justice Miller looked at the basis for the appeal in which the Appellant argued that if the trial judge had used the correct date, the Appellant would have benefitted, because this would have supported the Appellant’s credibility. The trial judge’s final analysis was not based on how little time passed since the completion of the treatment or how long the Appellant was on good behavior; instead, it was based on the lack of credibility and belief the trial judge found for the Appellant. Justice Miller did not agree that the error played an essential role in the narrative or the reasoning process resulting in a conviction.

On Appeal to the Supreme Court of Canada (SCC)

The SCC agreed with the dissent for the reasons laid out by Justice Miller. They allowed the appeal and reinstated the Appellant’s conviction.

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