R. v. R. (D.), [1996] 2 SCR 291

R. v. R. (D.), [1996] 2 S.C.R. 291

 

Donald Leo R., Helen Susan R.

and Donald George W.                                                                      Appellants

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. R. (D.)

 

File No.:  24766.

 

Hearing and judgment:  January 30, 1996.

 

Reasons delivered:  June 20, 1996.

 

Present:  Lamer C.J. and  L’Heureux‑Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for saskatchewan

 

                   Criminal law ‑‑ Evidence ‑‑ Hearsay ‑‑ Young child telling foster mother and physician that her father had sexually abuse her ‑‑ Child unable to remember incident at trial ‑‑ Whether out‑of‑court statements made by child admissible.

 

                   Criminal law ‑‑ Evidence ‑‑ Expert witness ‑‑ Defence expert in area of sexually abused children prevented by trial judge from testifying about his conclusions on the reliability of the children’s memories of specific events ‑‑ Whether expert testimony should have been admitted.

 

                   Criminal law ‑‑ Evidence ‑‑ Cross‑examination ‑‑ Credibility of witnesses ‑‑ Children alleging that they were sexually and physically abused by accused ‑‑ Therapist present during police interviews of children ‑‑ Defence not permitted to use transcripts of interviews to cross‑examine therapist on interview techniques employed ‑‑ Defence seeking to show that children may have been coached or manipulated ‑‑ Whether trial judge erred in restricting cross‑examination ‑‑ Whether children’s credibility a collateral issue.

 

                   Criminal law ‑‑ Evidence ‑‑ Sufficiency ‑‑ Accused convicted of sexual assault ‑‑ Children’s testimony against one accused similar to their testimony against another accused ‑‑ Whether evidence too weak to support conviction.

 

                   Criminal law ‑‑ Trial ‑‑ Verdicts ‑‑ Trial judge convicting accused of sexual assault while acquitting them of gross indecency ‑‑ Whether trial judge’s findings inconsistent.

 

                   Criminal law ‑‑ Trial ‑‑ Verdicts ‑‑ Inadequate reasons ‑‑ Accused convicted of assault causing bodily harm ‑‑ Trial judge failing to address troublesome evidence and to identify basis on which she convicted accused ‑‑ Whether new trial should be ordered.

 

                   The appellants were charged with several counts alleging sexual and physical abuse against three children.  D.R. and H.R. are the natural parents of the complainants, and D.W. was H.R.’s boyfriend.  The parents’ failure to take care adequately of the children led to their placement in the K. family.  At that time, the son was seven years old and the twin daughters were five.  After the children visited D.R.’s residence for an overnight stay, Mrs. K. noticed blood stains on one of the young girls’ underwear.  When she asked her what had happened, the girl said that her daddy had “touched” her.  The next day, a physician examined the girl and concluded that she had been subjected to non‑accidental trauma of the genital area.  The girl told the physician that her "daddy spanked my bum then he put his fingers in my bum, it hurt".  All three children were observed by Mr. and Mrs. K. to be hyperactive and difficult to control.  They appeared to be sexually overt, and were often found kissing and hugging, or naked together in the playroom.  The young boy’s behaviour deteriorated so badly that he had to be placed in a second foster home, where he made allegations that he and his sisters had been sexually abused by the K. family.  As a result, the twins were placed in a new foster home.  All three children were examined by a physician who found medical evidence consistent with sexual abuse.  Subsequently, the children began making multiple allegations of sexual abuse against their birth parents, D.W., the K. family and many K. family relatives.  The police officer assigned to investigate the allegations interviewed the children at length in videotaped sessions.  A child therapist was present at these interviews.

 

                   At trial, the children testified that the appellants had performed sexual acts on them and had forced them to perform sexual acts on the appellants.  The young boy also stated that his mother had stabbed him with a knife to get blood and had burnt him with a lighter, and one of the young girls said that her father had cut her back and her vagina with a knife.  Her sister was unable to recall the "touching and spanking" incident but the trial judge ruled that her statements to Mrs. K. and the physician were admissible.  A defence expert, who was qualified as an expert in the area of child development and characteristics of child abuse, testified that the children’s memories of their parents and of what happened when they lived with them was verbal memory, which is learned, and not visual memory, which is based on experience.  The trial judge prevented the expert from testifying about his conclusions on the reliability of the children’s memories of specific events, finding that to do so would usurp the function of the court in making findings of credibility.  In an attempt to discredit the child witnesses, or prove that the children had been coached or manipulated, the defence sought to cross‑examine the child therapist on the interview techniques employed during the interviews conducted by the police using copies of the transcripts of those interviews.  The trial judge refused to permit the use of the transcripts in the cross‑examination of the therapist, essentially because they related to the children’s credibility, a collateral issue.  The trial judge found the medical and psychological evidence to be consistent with evidence that the children were sexually abused over a period of time and by persons close to them.  She reviewed the testimony of the children and was satisfied beyond a reasonable doubt that the children had suffered sexual abuse at the hands of each appellant.  However, she was left with a reasonable doubt as to whether the children were made to touch the private parts of the appellants, and as to whether intercourse ever occurred.  As a result, she entered convictions on sexual assault, and acquitted all the appellants of gross indecency.  She convicted D.R. and H.R. of two counts of assault, and acquitted all the appellants on the remaining counts of assault.  After the trial, Mr. K.’s father pleaded guilty to charges of sexual assault against the R. children.  On appeal, the appellants sought to have his certificate of conviction admitted as fresh evidence, but were not successful.  The majority of the Court of Appeal upheld the appellants’ convictions.

 

                   Held (Cory and Iacobucci JJ. dissenting in part and L’Heureux‑Dubé J. dissenting):  The appeal should be allowed and an acquittal entered in the case of D.W.  The appeal should be allowed and a new trial ordered in the cases of D.R. and H.R.

 

                   Per Lamer C.J. and Sopinka and Major JJ.:  The trial judge erred in admitting the young girl’s out‑of‑court statements to Mrs. K. and the physician.  These statements were not sufficiently reliable to be admissible.  There was evidence suggesting that the girl’s brother may have assaulted her at D.R.’s residence at the time in question and also evidence that the children tended to lie to cover up the sexual activity that took place between them.  In the result, her statements are as consistent with the hypothesis that she was protecting her brother as they are with her having been sexually assaulted by D.R.  No circumstantial guarantee of trustworthiness has been established.

 

                   The testimony of the defence expert should have been admitted as an evidentiary basis upon which the children’s credibility could have been judged.  His testimony was relevant to the issue of the reliability of the children’s memories of their birth parents, memories which he suggested had been "learned" and which could not be independently recalled.  The children’s credibility was central to the disposition of the case, and considering the nature of the children’s evidence, any explanation of their otherwise incredible behaviour could only aid the trier of fact in accurately assessing their credibility.

 

                   Given the importance of the right to cross‑examine witnesses, and the fact that the issue of the children’s credibility was not collateral but central to the allegations against the appellants, they should have been allowed to cross‑examine the child therapist using the transcripts of the interviews.  Any evidence that might have cast doubt on the children’s credibility, or that might show that they had been coached or manipulated, was evidence that would have been crucial to the appellants’ case.  Whether the therapist was an expert on interview techniques is immaterial, as the scope of cross‑examination of an expert is not restricted to his or her area of expertise.  The fact that the appellants might have made other use of the transcripts, or introduced them into evidence, is irrelevant in determining whether they were wrongly restricted in their cross‑examination of the therapist.

 

                   With respect to D.W.’s sexual assault conviction, the children’s testimony of the abuse they suffered by different appellants was often identical.  While identical evidence is not necessarily unreliable, similarity of evidence is a factor to be considered when assessing its weight.  This is particularly true where, as here, questions had arisen regarding the possible effect of verbal repetition on the children’s memories.  Given the weakness of the evidence supporting D.W.’s conviction, an acquittal must be entered.  In the cases of D.R. and H.R., there was additional evidence that might indicate that the children had been sexually abused while they were living with their birth parents.  However, the children’s testimony supporting the charges of sexual assault was too intertwined with their testimony supporting the charges of gross indecency to be logically severable.  The trial judge either had to believe the children’s testimony to be credible and convict on both, or she had to entertain a reasonable doubt on the whole of the evidence and acquit.  There is an irreconcilable inconsistency in the trial judge’s findings.  The inconsistent findings resulted when the trial judge erred in law by applying a finding of fact to different questions of law in a manner that was not uniform.  The error was not so serious as to make all the verdicts unreasonable, but since there was an error of law, a new trial rather than an acquittal should be directed for D.R. and H.R. on the sexual assault charges.

 

                   With respect to the convictions of D.R. and H.R. for assault causing bodily harm, the trial judge referred to some evidence that might constitute such an assault, but did not deal with the bizarre and contradictory evidence relating to the assault allegations.  Although trial judges are not always required to give reasons, where, as in this case, there is confused and contradictory evidence, the trial judge should give reasons for his or her conclusions.  Here, the trial judge erred in law by failing to address the troublesome evidence and by failing to identify the basis on which she convicted D.R. and H.R. of assault.  This is an error of law necessitating a new trial.

 

                   Per McLachlin J.:  It was open to the trial judge to find that the children had been sexually assaulted, but to have a reasonable doubt as to whether the acts of gross indecency had occurred.  In addition to the children’s testimony there was an abundance of medical and psychological evidence to support the charges of sexual assault.  No similar supporting evidence was available in respect of the gross indecency charges.  When dealing with the crucial issue of identity, however, the trial judge erred in law in characterizing the medical and psychological evidence as evidence capable of supporting the inference that D.R. and H.R. were the perpetrators of the sexual assaults on the three children.  The vast majority of this evidence was simply not capable of supporting such an inference.

 

                   Per Cory and Iacobucci JJ. (dissenting in part):  Major J.’s reasons are agreed with except that rather than acquit D.W., it is appropriate in this case to direct a new trial for him as well as the other appellants.  It is true that some of the children’s evidence was bizarre and, in some instances, suspiciously identical.  Nevertheless, in looking at all the circumstances of the case, there is some evidence from the children’s testimony that is sufficient to warrant the holding of a new trial rather than entering an acquittal.

 

                   Per L’Heureux‑Dubé J. (dissenting):  The trial judge was correct in admitting the young girl’s statements.  Out‑of‑court statements are admissible as evidence of the truth of their content, as long as they meet the criteria of “necessity” and “reliability”.  Here, the statements were necessary because the child had no recollection at trial of the incident described in the statements.  As well, the circumstances of the statements provided a guarantee of reliability:  the statements were made very shortly after the alleged attack and to different persons on separate occasions.  They were also consistent with one another and with the medical evidence.  The statements, which indicated that the young girl had been sexually assaulted by D.R., were not equally consistent with the hypothesis that she was protecting her brother.  The evidence does not suggest that the children ever falsely accused adults of having touched them in order to conceal their own sexual activity.  Moreover, the question was not whether the trial judge should believe the young girl’s statements, but whether she should be able to consider the statements at all.  Any possibility of fabrication was not so compelling that it warranted excluding the statements altogether.

 

                   The trial judge was also correct in declining to hear the defence expert’s conclusions on the reliability of the children’s testimony.  The determination of credibility is a matter for the judge or jury, and a trier of fact does not normally require assistance in this task.  The trial judge permitted the expert to give evidence on the theoretical distinction between visual and verbal memory.  However, even assuming that this theory falls within the category of matters which lay people may not understand if they are not explained to them by an expert in child memory development, the expert’s evidence suggests that, once the theory had been explained, its application to actual testimony did not require special expertise.  In this case, given that all the children were cross‑examined on whether they could actually remember certain events or whether they had merely come to believe them through repetition, the trial judge was well able to determine for herself, without hearing the expert’s conclusions, whether the children’s recollections were real and whether their testimony was reliable.

 

                   The trial judge’s reluctance to permit the defence to impeach the children’s credibility in its cross‑examination of the child therapist is understandable because credibility is a collateral issue, not a fact in issue. Matters which relate solely to credibility can only be canvassed in cross‑examination of the witness whose credibility is sought to be impeached.  Here, however, the details of the interview procedure did have relevance which went beyond the children’s credibility.  If there were evidence that the police investigator had influenced the children’s identification of their abusers in the course of interviewing them, it would bear directly on the question of identity, a fact in issue.  The trial judge ought thus to have permitted the defence to refresh the therapist’s memory using any suitable materials, including the transcripts of the interviews.  There is no likelihood, however, that the verdict would have been any different had the defence been allowed to refresh her memory.  If there had been any coaching or manipulation during the interviews, the defence would have sought to introduce the transcripts themselves as evidence.  It declined to do so and even declined to cross‑examine the police investigator on the subject.

 

                    With respect to the sufficiency of the evidence on D.W., the similarity of the children’s descriptions of the abuse was not so grave a flaw that no reasonable judge could have convicted D.W.  The children were testifying as to the essential details of the assaults and it was the role of the trial judge to decide whether or not to believe them.  She had the opportunity to see and hear the children on the stand.  Moreover, the children were cross‑examined on the issue of memory corruption, and an expert testified on the subject.  Having heard all of this evidence, the trial judge was entitled to believe, beyond a reasonable doubt, that D.W. had sexually assaulted the children.  In the absence of an error of law or a finding which cannot reasonably be supported on the evidence, a trial judge’s findings in relation to credibility will not be overturned on appeal.

 

                   The convictions for sexual assault entered against D.R. and H.R. are not based on an error of law and should not be overturned.  Inconsistency in the verdicts would be a ground of appeal if the combination of verdicts were one which no reasonable trier of fact would have rendered.  In such case, the appeal would not be based on an error of law but on the unreasonableness of the verdicts.  Here, the verdicts are clearly not inconsistent.  On the evidence, a trier of fact could reasonably convict D.R. and H.R. of sexual assault while acquitting them of gross indecency.  Their convictions therefore cannot be attacked as inconsistent.  Nor is there any basis for concluding that the trial judge committed an error of law.  There is no principle of law which required the trial judge to believe or disbelieve the children’s evidence in its entirety.  The trial judge’s factual findings  led to the conclusion that the appellants were guilty of sexual assault and not guilty of gross indecency, and there is no overriding principle of "uniformity" that required the trial judge to convict or acquit the appellants of both offences.

 

                   As well, the convictions of D.R. and H.R. for assault causing bodily harm should not be set aside and a new trial ordered simply because the trial judge’s reasons did not address the confusing evidence or separate fact from fiction.  The absence of reasons or an omission from the reasons are not in themselves an error of law.  Since the trial judge’s reasons do not disclose a material error in the interpretation or application of the law, in the appreciation of the evidence, or in the handling of the trial, there is no basis for overturning the convictions.  The trial judge in fact gave meticulous oral reasons, in which she thoroughly summarized the evidence, and set out her approach to the children’s evidence and all the essential findings on which the verdicts are based.  Although the reasons do not deal exhaustively with the evidence, there is no indication that she disregarded or failed to appreciate any of it.

 

                   The Court of Appeal was correct in ruling that the certificate of conviction of Mr. K’s father was inadmissible on appeal because it could not reasonably have affected the outcome of the trial. 

 

Cases Cited

 

By Major J.

 

                   Referred to:  Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Marquard, [1993] 4 S.C.R. 223; R. v. Burns, [1994] 1 S.C.R. 656; Attorney‑General v. Hitchcock (1847), 1 Ex. 91, 154 E.R. 38; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Yebes, [1987] 2 S.C.R. 168.

 

By L’Heureux‑Dubé J. (dissenting)

 

                   R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Marquard, [1993] 4 S.C.R. 223;

Kelliher (Village of) v. Smith, [1931] S.C.R. 672; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. G.B. (1988), 65 Sask. R. 134, aff’d [1990] 2 S.C.R. 30;  R. v. Cargill, [1913] 2 K.B. 271; R. v. Hrechuk (1950), 10 C.R. 132; R. v. Rafael (1972), 7 C.C.C. (2d) 325; Latour v. The Queen, [1978] 1 S.C.R. 361; R. v. Cassibo (1982), 70 C.C.C. (2d) 498; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. Burns, [1994] 1 S.C.R. 656; R. v. Mulvaney (1988), 27 O.A.C. 318; R. v. Thomas (1993), 24 C.R. (4th) 249; R. v. Peterson (1996), 89 O.A.C. 60; Koury v. The Queen, [1964] S.C.R. 212; R. v. McLaughlin (1974), 2 O.R. (2d) 514; R. v. McShannock (1980), 55 C.C.C. (2d) 53; R. v. McIntyre (1992), 40 M.V.R. (2d) 178; R. v. Giovannetti, [1991] O.J. No. 47 (QL); R. v. Hynes (1994), 134 N.S.R. (2d) 134; R. v. Yuen (1996), 70 B.C.A.C. 122; R. v. Morin, [1992] 3 S.C.R. 286; R. v. Smith, [1990] 1 S.C.R. 991, aff’g (1989), 95 A.R. 304; R. v. C. (R.), [1993] 2 S.C.R. 226; R. v. Tortone, [1993] 2 S.C.R. 973; R. v. Barrett, [1995] 1 S.C.R. 752; R. v. Shropshire, [1995] 4 S.C.R. 227; MacDonald v. The Queen, [1977] 2 S.C.R. 665; R. v. McMaster, [1996] 1 S.C.R. 740; Harper v. The Queen, [1982] 1 S.C.R. 2; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. L. (D.O.), [1993] 4 S.C.R. 419.

 

Statutes and Regulations Cited

 

Criminal Code , R.S.C., 1985, c. C‑46 , s. 686(1) (b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].

 

Authors Cited

 

Ewaschuk, E. G.  Criminal Pleadings & Practice in Canada, 2nd ed.  Aurora, Ont.:  Canada Law Book, 1987 (loose‑leaf updated May 1996, release 28).

 

McGillivray, Anne.  “Abused Children in the Courts:  Adjusting the Scales After Bill C‑15” (1990), 19 Man. L.J. 549.

 

Mewett, Alan W.  Witnesses.  Scarborough, Ont.:  Carswell, 1991 (loose‑leaf updated 1995, release 1).

 

Paciocco, David M.  "The Evidence of Children:  Testing the Rules Against What We Know" (1996), 21 Queen’s L.J. 345.

 

Phipson on Evidence, 14th ed.  By M. N. Howard, Peter Crane and Daniel A. Hochberg.  London:  Sweet & Maxwell, 1990.

 

Sopinka, John, and Mark A. Gelowitz.  The Conduct of an Appeal.  Toronto:  Butterworths, 1993.

 

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada.  Toronto:  Butterworths, 1992.

 

                   APPEAL from a judgment of the Saskatchewan Court of Appeal (1995), 98 C.C.C. (3d) 353, 131 Sask. R. 81, 95 W.A.C. 81, dismissing the appeal of the accused from their conviction on various offences involving the sexual and physical abuse of children.  Appeal allowed and acquittal entered in the case of D.W., L’Heureux‑Dubé, Cory and Iacobucci JJ. dissenting.  Appeal allowed and new trial ordered in the case of D.R. and H.R., L’Heureux‑Dubé J. dissenting.

 

                   Roger J. Kergoat, for the appellant D.R.

 

                   John D. Hillson, for the appellant H.R.

 

                   Donald L. MacKinnon, for the appellant D.W.

 

                   Kenneth W. MacKay, Q.C., for the respondent.

 

                   The judgment of Lamer C.J. and Sopinka and Major JJ. was delivered by

 

1                 Major J. -- On January 30, 1996 the following judgment of the Court was delivered by the Chief Justice:

 

                   In the case of D.W., the appeal is allowed, and an acquittal is entered.  Dissenting, Justices Cory and Iacobucci would have ordered a new trial; Justice L'Heureux-Dubé would dismiss.

 

                   In the case of D.R. and H.R., the appeal is allowed and a new trial is ordered.  Dissenting, Justice L'Heureux-Dubé would dismiss.

 

                   Reasons to follow.

 

The following are the reasons of the majority:

 

2                 This appeal arose from the trial and conviction of the appellants  for sexual abuse and assault of the three complainant children.  Donald Leo R. (D.R.) was convicted of three counts of sexual assault and two counts of assault causing bodily harm, and acquitted of two counts of incest, three counts of gross indecency and two counts of assault.  Helen Susan R. (H.R.) was convicted of three counts of sexual assault and two counts of assault causing bodily harm, and acquitted of one count of incest, three counts of gross indecency and four counts of assault.  Donald George W. (D.W.) was convicted of three counts of sexual assault, and acquitted of two counts of gross indecency and one count of assault. 

I.  Facts

 

3                 The appellants D.R. and H.R. are the natural parents of the complainants, Michael R., who was born in 1979, and Michelle R. and Kathleen (Kathy) R., twins who were born in 1982.  The appellant D.W. is the boyfriend of H.R., now divorced from D.R.  All the appellants are deaf; only D.W. is able to speak.

 

4                 The appellants were jointly charged with several counts of sexual assault and gross indecency, and one count of assault, arising out of alleged incidents involving the children between January 1, 1983 and December 31, 1989.  In this time period the children ranged in age from one to ten.  D.R. and H.R. were also charged with incest and several additional counts of assault causing bodily harm.

 

5                 D.R. and H.R. were married in 1979 when she was 21 and he was 48.  She had a drinking problem, and their relationship was unstable.  The couple had difficulty raising their children.  The Department of Social Welfare was involved as early as 1983, when the twins were hospitalized because of malnutrition.  By 1986, H.R. was spending most of her time away from the home, and began a relationship with D.W.  As a result, primary care for the children fell on D.R.  His failure to adequately take care of the children led to their placement in the K. foster home in February 1987.  At that time, Michael was seven years old and the twins were five.  The children had frequent unsupervised visits with D.R. until September 1987.  They had only sporadic, supervised visits with H.R. and D.W.

 

6                 All three children were observed by Mr. and Mrs. K. to be hyperactive and difficult to control.  They appeared to be sexually overt, and were often found kissing and hugging, or naked together in the playroom.  Mrs. Garnet Francis taught Michael from September 1986 to the spring of 1989 in a special class for problem children, and noted his aggressive sexual behaviour that included inappropriate touching of other children, undressing, and inviting other children and staff to have sex with him.  Similar observations were made of the twins who later attended the same school.

 

7                 In September 1987, the children visited D.R.'s residence for an overnight stay.  When they returned to the K. home, Mrs. K. noticed blood stains on Michelle's underwear.  When she asked Michelle what had happened, Michelle said that her daddy had “touched” her.  The next day, Mrs. K. took Michelle to Dr. McKenna for a physical examination.  Dr. McKenna concluded that Michelle had been subjected to non-accidental trauma of the genital area.  Michelle told the doctor that "my deaf daddy spanked my bum then he put his fingers in my bum, it hurt".  At trial, Michelle was unable to recall anything about the incident.

 

8                 By December 12, 1989, Michael's behaviour had deteriorated so badly that the K. family was unable to continue taking care of him.  He was removed from the K. home and placed in the foster care of Mr. and Mrs. T.  Some time after his arrival at the T. residence, Michael made allegations that he and his sisters had been sexually abused by the K. family.  As a result, the twins were removed to the T. residence on May 29, 1990.  On June 5, 1990, all three children were examined by Dr. Yelland who found some medical evidence consistent with sexual abuse.

 

9                 Subsequently, the children began making multiple allegations of sexual abuse against their birth parents, D.W., the K. family and many K. family relatives.  In addition, the children claimed that while in the care of their birth parents, they had been witness or party to the killing and eating of babies, as well as the eating and drinking of faeces, blood and urine.  At that time, the children began treatment with Ms. Carol Bunko-Ruys, a child therapist.

 

10               Sergeant Dueck, a Saskatoon police officer assigned to investigate the allegations, interviewed the children at length in videotaped sessions.  The therapist was present at interviews conducted during October and November of 1990. 

 

11               Dr. Yelland reexamined the children on May 31, 1991, and found further evidence of injuries that he believed was consistent with the types of physical and sexual abuse alleged by the children.

 

12               Based upon the medical evidence and police investigation, the appellants were charged with sexually and physically abusing the children.  Mr. and Mrs. K., and several members of their family, including Mr. K.'s father, Peter K., were separately charged with offences arising out of the alleged sexual assault of the children.  After the trial of the appellants, Peter K., who had earlier been convicted of an unrelated sexual assault on two neighbourhood girls, pled guilty to charges of sexual assault against the R. children.  The remaining charges against the K. family were either withdrawn or stayed.

 

13               The appellants were tried by Batten J., sitting without a jury.  At the trial, which lasted 22 days, all three children testified under oath.  The accused D.R. also gave evidence.  D.R. was convicted of three counts of sexual assault and two counts of assault causing bodily harm, and acquitted of two counts of incest, two counts of assault and three counts of gross indecency. 

 

14               H.R. was convicted of three counts of sexual assault and two counts of assault causing bodily harm, and was acquitted of one count of incest, four counts of assault and three counts of gross indecency. 

 

15               D.W. was convicted of three counts of sexual assault, and acquitted of two counts of gross indecency and one count of assault. 

 

16               All the convictions were appealed to the Saskatchewan Court of Appeal, which, by majority, dismissed the appeals: (1995), 98 C.C.C. (3d) 353, 131 Sask. R. 81, 95 W.A.C. 81.  Vancise J.A. dissented.  The appellants bring this appeal as of right based on the dissent.

 

II.  Judicial History

 

A.  Saskatchewan Court of Queen's Bench

 

17               The trial judge accepted the evidence that the children acted out and were sexually aggressive at school and in the K. home.  She also accepted the evidence of Michelle's out-of-court statements that her father had "touched her".  She reviewed the results of Dr. Yelland's two examinations of the children, and reviewed the history of the children's relationship with their birth parents.  She accepted the expert evidence given by Dr. Santa Barbara and Dr. Elterman with respect to their description of the behaviour of sexually abused children.

 

18               The trial judge found the medical and psychological evidence to be consistent with evidence that the children were sexually abused over a period of time and by persons close to them.  She reviewed the testimony of the children, and assessed it in light of the expert evidence regarding the memory of children, and in light of the children's age at trial, state of traumatization, age at the time of the alleged incidents and demeanour when testifying.  She canvassed the testimony of each of the three children, including testimony by Michael that his mother had stabbed him with a knife to get blood and had burnt him with a lighter; testimony by Kathy that her father had cut her back and her vagina with a knife; and testimony by all three children that sexual acts had been performed on them by the appellants, and that the children in turn had been forced to perform sexual acts on the appellants.

 

19               The trial judge found the children's memories of bad touching to have been recounted accurately and credibly.  She noted, however, that the children at times created answers and details to dispose of questions put to them at trial, and that the surrounding details of the abuse, such as time and frequency, were often uncertain and confused.  She was unable to separate many of the children's beliefs between reality and misconception, but found that the testimony of D.R. helped to explain some of the bizarre testimony of the children.  For instance, D.R. testified that the children believed they were eating faeces and drinking urine, even though they were not.  While the trial judge accepted D.R.'s evidence that the children were mistaken on this point, she rejected the rest of his testimony.

 

20               The trial judge was satisfied beyond a reasonable doubt that the children had suffered sexual abuse at the hands of each accused.  However, she was left with a reasonable doubt as to whether the children were made to touch the private parts of the accused, and as to whether intercourse ever occurred.  As a result, she entered convictions on sexual assault, and acquitted the accused of gross indecency and incest.  She convicted D.R. and H.R. of two counts of assault, and acquitted all the accused on the remaining counts of assault.

 

B.  Saskatchewan Court of Appeal

                  

                   (1)  Cameron J.A. for the Majority

 

21               Cameron J.A. found that the trial judge had not improperly restricted the appellants from cross-examining Ms. Bunko-Ruys using the transcripts of the videotaped interviews between the children and Sergeant Dueck.  He stated that since Ms. Bunko-Ruys was not qualified to express an opinion regarding the interview techniques used and their possible influence on the memories of the children, she could not be cross-examined on those matters.

 

22               Cameron J.A. concluded that Michelle's out-of-court statements were admissible as they were necessary.  He also held that the trial judge's assessment of the reliability of the statements was based on her findings of fact, with which he could not interfere.  Even if there was an error in the admission of the statements, their exclusion would not have made a difference in the outcome of the trial, as Cameron J.A. would have invoked s. 686(1)(b)(iii) of the Criminal Code,  R.S.C., 1985, c. C-46 . 

 

23               On the issue of whether the examination of the appellants' expert, Dr. Elterman, had been unduly restricted, Cameron J.A. agreed with the trial judge that it had not, as Dr. Elterman had left to clear implication what he was prevented from stating explicitly.

 

24               Cameron J.A. found that the trial judge's findings of credibility were not unreasonable, having regard to the great deference to be accorded to trial judges and the inherent limits of an appellate court in reviewing determinations of credibility.  Cameron J.A. found that the verdicts in this case were not unreasonable.

 

25               Finally, Cameron J.A. concluded that the evidence of Peter K.'s certificate of conviction was not admissible because it did not satisfy all the criteria laid down in Palmer v. The Queen, [1980] 1 S.C.R. 759.  In particular, he found the admission of the evidence would not have affected the outcome of the trial. 

 

                   (2)  Vancise J.A., Dissenting

 

26               On the subject of fresh evidence, Vancise J.A. appeared to believe that the certificate confirming the conviction of Peter K. was admitted as fresh evidence during the appeal.  He stated that the new evidence was directly relevant to the issue of the identity of the perpetrator of the sexual assaults.

 

27               Vancise J.A. found that Michelle's out-of-court statements were necessary, but not sufficiently reliable.  He referred to evidence indicating that the assault on Michelle might have been carried out by Michael, and found that Michelle's statements were as consistent with protecting Michael as with telling the truth. 

 

28               On the issue of Dr. Elterman's evidence, Vancise J.A. found it to be admissible as an evidentiary basis on which the trial judge could make determinations of credibility.

 

29               Vancise J.A. found that the trial judge erred in restricting the cross-examination of Ms. Bunko-Ruys, as the issue of the credibility of the children was not collateral, but the main issue in the case. 

 

30               Vancise J.A. then noted that nothing in the trial judge's reasons indicated the basis on which she found the appellants guilty.  Further, the evidence that might have led to the sexual assault and the assault convictions was contradicted by other evidence and the trial judge did not deal with the contradictory evidence, nor did she deal with the improbable circumstances surrounding the allegations testified to by the children.

 

31               He concluded evidence of sexual assault was too intricately wound up with the evidence of gross indecency, that the trial judge should not have had a reasonable doubt on gross indecency while convicting on sexual assault.  The verdicts were unreasonable.  Vancise J.A. would have quashed the convictions.

 

III.  Issues

 

1.Were Michelle's out-of-court statements sufficiently reliable to have been admitted at trial?

 

2.Should Dr. Elterman have been permitted to testify as to the type of memory the children had of specific incidents of alleged abuse?

 

3.Were the appellants entitled to cross-examine Ms. Bunko-Ruys using the transcripts of the videotaped interviews?

 

4.Was the evidence sufficient to support D.W.’s conviction for sexual assault?

 

5.Were the trial judge’s findings regarding D.R. and H.R. inconsistent in respect of the sexual offences?

 

6.Were the trial judge’s reasons inadequate in respect of D.R.’s and H.R.’s convictions for assault?

 

7.Should the certificate confirming the conviction of Peter K. for sexual assault have been admitted as fresh evidence?

 

IV.  Analysis

 

A.  Out-of-Court Statements

 

32               When the R. children returned to the K. foster home after an unsupervised overnight stay at D.R.'s residence in September 1987, Mrs. K. noticed blood on Michelle's underpants.  She asked her what had happened, and Michelle replied "daddy touched me".  The next day, Mrs. K. took Michelle to Dr. McKenna for an examination.  Dr. McKenna testified that Michelle told her that "my deaf daddy spanked my bum and then he put his fingers in my bum, it hurt".  The question of the admissibility of these statements arose because Michelle was unable to remember anything about the incident.

 

33               In R. v. Khan, [1990] 2 S.C.R. 531, it was held that in order for out-of-court statements to be admitted for the truth of their contents, the statements must be both necessary and reliable. 

 

34               The requirement of reliability was elaborated on in R. v. Smith, [1992] 2 S.C.R. 915. It is not necessary that the statements be absolutely reliable, but a circumstantial guarantee of trustworthiness must be established in order for the statements to be admitted.  The statements will be inadmissible where the hearsay evidence is equally consistent with other hypotheses.

 

35               In my opinion, Michelle's statements were not sufficiently reliable to be admitted.  There was evidence suggesting that Michael may have assaulted Michelle at D.R.'s residence at the time in question.  In particular, Michael admitted to having had sex with both his sisters in the bathroom at D.R.'s home on the visit in question.  D.R. testified that he had found Michelle and Michael together in the bathroom on the same day that Mrs. K. noticed the blood spots on Michelle's underpants.  As well, there was evidence that the children tended to lie to cover up the sexual activity that took place between them.  In the result, Michelle's statements are as consistent with the hypothesis that she was protecting Michael as they are with her having been sexually assaulted by D.R. No circumstantial guarantee of trustworthiness has been established.  The trial judge erred in admitting the statements. 

 

B.  Dr. Elterman's Evidence

 

36               The defence called Dr. Elterman, who was qualified as an expert in the area of child development and characteristics of child abuse.  Dr. Elterman testified that children have two types of memories: visual memory, which is based on experience, and verbal memory, which is learned.  Dr. Elterman testified that the children's memories of their parents and of what happened when they lived with their parents was verbal memory.  He stated:

 

. . . it was quite clear to me after speaking to all three of them that their recollections of their birth parents, and what happened there, is what you can call verbal memory.  In other words, they say it because they say that, "I know that it happened, but I can't remember it happening", whereas when they talk about what happened at the [K's] they can both -- they can both say it and remember it, and they also have visual memories.  And I asked Michael whether he had pictures in  his mind, whether he has visual memories of things that took place in his parents' home, and he said no.  So his memory of what happened is one of information.

 

37               The appellants wanted to elicit further information from Dr. Elterman regarding what the complainants told him they could remember visually or verbally about specific events.  The trial judge prevented Dr. Elterman from testifying about his conclusions on the reliability of the children's memories of specific events, finding that to do so would usurp the function of the court in making findings of credibility. 

 

38               This Court considered the principles to be applied in the case of expert testimony introduced to explain human behaviour in R. v. Marquard, [1993] 4 S.C.R. 223.  McLachlin J., for the majority, said, at p. 249:

 

. . . there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact.

 

39               Expert testimony is admissible even if it relates directly to the ultimate question which the trier of fact must answer.  In R. v. Burns, [1994] 1 S.C.R. 656, at p. 666, McLachlin J., writing for the Court, said:

 

While care must be taken to ensure that the judge or jury, and not the expert, makes the final decisions on all issues in the case, it has long been accepted that expert evidence on matters of fact should not be excluded simply because it suggests answers to issues which are at the core of the dispute before the court. . . .

 

40               Dr. Elterman's testimony was relevant to the issue of the reliability of the children’s memories of their birth parents, memories which he suggested had been "learned" and which could not be independently recalled.  The credibility of the children was central to the disposition of the case, and considering the nature of the children's evidence, any explanation of their otherwise incredible behaviour could only aid the trier of fact in accurately assessing their credibility.  Dr. Elterman's testimony should have been admitted as an evidentiary basis upon which the children's credibility could have been judged. 

 

C.  Cross-Examination of Ms. Bunko-Ruys

 

41               Ms. Bunko-Ruys was the children's therapist.  She was qualified as an expert in the behavioural, social and emotional characteristics of sexually abused children.  Ms. Bunko-Ruys had been present during the videotaped interviews of the children conducted by Sergeant Dueck.  The appellants sought to cross-examine Ms. Bunko-Ruys on the interview techniques employed during those interviews using unproved copies of the transcripts of those interviews.  They were seeking to discredit the child witnesses, or prove that the children had been coached or manipulated.  They did not seek to admit the transcripts into evidence, nor did they question Sergeant Dueck or Dr. Elterman about the interview techniques used.  The trial judge refused to permit the use of the transcripts in the cross-examination of Ms. Bunko-Ruys.  She was concerned that, if the evidence was to be used to show that there had been coaching or manipulation, it was collateral.

 

42               The test for whether an issue is collateral was set out by Pollock C.B. in Attorney-General v. Hitchcock (1847), 1 Ex. 91, 154 E.R. 38, at p. 42:

 

. . . the test, whether the matter is collateral or not, is this:  if the answer of a witness is a matter which you would be allowed on your part to prove in evidence ^__ if it have such a connection with the issue, that you would be allowed to give it in evidence ^__ then it is a matter on which you may contradict him.

 

43               The credibility of the children was at the heart of the case against the appellants.  The appellants would have been entitled to lead evidence on the effect of the interview techniques on the memories of the children and accordingly, met the test in Hitchcock.  Any evidence that might have cast doubt on the children's credibility, or that might show that the children had been subjected to coaching and manipulation, was evidence that would have been crucial to the appellants' case.

 

44               Cross-examination is a fundamental aspect of a fair trial:  see R. v. Osolin, [1993] 4 S.C.R. 595.  This principle was also recognized in R. v. Seaboyer, [1991] 2 S.C.R. 577, where McLachlin J., for the majority, said, at p. 608:

 

                   The right of the innocent not to be convicted is dependent on the right to present full answer and defence.  This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution.

 

45               Thus, given the importance of the right to cross-examine witnesses, and the fact that the issue of the children's credibility was central to the allegations against the accused, the trial judge erred in restricting the cross-examination of Ms. Bunko-Ruys.  Whether Ms. Bunko-Ruys was an expert on interview techniques is immaterial, as the scope of cross-examination of an expert is not restricted to his or her area of expertise.  The fact that the appellants might have made other use of the transcripts, or introduced them into evidence, is irrelevant in determining whether the appellants were wrongly restricted in their cross-examination of Ms. Bunko-Ruys.  The appellants should have been allowed to cross-examine Ms. Bunko-Ruys using the transcripts of the interviews.

 

D.  Sufficiency of Evidence

 

46               All three appellants were convicted of sexual assault.  The medical and psychological evidence led at trial established that the children had been sexually abused, but by whom? 

 

47               The children's testimony of the abuse they suffered by different appellants was often identical.  For example, the trial judge referred to Michael's testimony about D.R. that he "put his penis in my bum, and I put my penis in his bum, and then he made me suck his penis".  She then referred to Michael's testimony about D.W. that he "put his penis in my bum, and I put my penis in his bum, and then I sucked his penis".  While identical evidence is not necessarily unreliable, similarity of evidence is a factor to be considered when assessing its weight.  This is particularly true in the circumstances of this case, where questions had arisen regarding the possible effect of verbal repetition on the memories of the children.  The other evidence supporting the conviction of D.W. for sexual assault was similar to that described above and, on the facts of this case, was incapable of sustaining a conviction.

 

E.  Inconsistency of Findings

 

48               Unlike D.W., in the cases of D.R. and H.R., there was at least some additional evidence at trial, from Mrs. K., and Mrs. Francis, that might indicate that the children had been sexually abused while they lived with their birth parents. 

 

49               The trial judge stated that she was satisfied that the children recounted their memories of improper touching accurately and credibly.  She accepted the children’s testimony in regard to the sexual acts performed on them by the appellants, but entertained a reasonable doubt as to whether the children were forced to perform sexual acts on the appellants.  She convicted the appellants of sexual assault, while acquitting them of gross indecency.  However, the children’s testimony supporting the charges of sexual assault was too wound up with their testimony supporting the charges of gross indecency to be logically severable.  The evidence of the children did not separate their memories of the offences; rather their recollections linked the commission of the offences of sexual assault and gross indecency.  In the circumstances of this case, the trial judge either had to believe the children’s testimony to be credible and convict on both, gross indecency and sexual assault, or she had to entertain a reasonable doubt on the whole of the evidence and acquit.  There is an irreconcilable inconsistency in the trial judge’s findings.

 

50               My colleague L’Heureux-Dubé J., in her reasons, states that inconsistent findings are a ground of appeal only where the verdicts are unreasonable.  I disagree.  There are circumstances where inconsistent findings are serious enough to render a verdict unreasonable, in which case an acquittal will be entered.  There are also circumstances where inconsistent findings do not make a verdict unreasonable, but result from an error of law committed by the trial judge, necessitating a new trial.  In my view, this case is an example of the latter.  The inconsistent findings here resulted when the trial judge erred in law by applying a finding of fact to different questions of law in a manner that was not uniform.  The trial judge, when determining whether the elements of the offences of sexual assault and gross indecency had been proven, applied her findings of credibility to those questions inconsistently.  This error was not so serious as to make all the verdicts unreasonable, given the test for reasonableness set out in R. v. Yebes, [1987] 2 S.C.R. 168.  However, as there was an error of law, a new trial rather than an acquittal should be directed for D.R. and H.R. on the sexual assault charges.

 

F.  Inadequate Reasons

 

 

51               The trial judge convicted H.R. of  two counts of assault causing bodily harm against Michael R.  D.R. was convicted of one count of assault causing bodily harm against Kathy R., and one count of assault causing bodily harm against Michelle R.  Unfortunately, the trial judge did not identify the evidence on which she was basing those convictions.

 

52               The trial judge did refer to some evidence that might constitute assault causing bodily harm.  In particular, she referred to Michael's testimony that his mother had stabbed him with a knife to get blood, and that she alone had burnt him with a lighter.  She noted that Dr. Yelland's medical examination in 1991 revealed scars on Michael's body that were consistent with healed burns, and healed knife wounds.  The trial judge also referred to evidence led by Kathy that her father had cut her vagina and back with a knife.  Dr. Yelland's examination of Kathy revealed a seven-centimetre "S"-shaped scar on her back compatible with a healed cut by a sharp object, like a knife.  The trial judge also noted that Dr. Yelland's examination of Michelle revealed scars consistent with cuts and healed second and third degree burns.

 

53               However, the trial judge did not deal with the bizarre and contradictory evidence relating to the assault allegations.  For example, when Kathy testified that her father had cut her back, she claimed first that she had to get stitches and stay overnight in a hospital.  Then she testified that her hospital stay lasted three weeks.  However, there were no records of any such hospital stay.  Additionally, there was no medical evidence to support that Kathy or Michelle had ever been penetrated by a knife.  There was evidence from Mr. K. that Michael had confessed to attempting to insert a butter knife into Kathy's vagina.  There was evidence that the children, and  Michael in particular, used to play with knives and fire.  Michael testified that Mrs. K., his sisters, and Grandpa V. used to burn him.  Michael also testified that when his mother cut him with a knife, she had tied him to a post outside, cut him, collected five drops of blood, and let him go.  She then tried to tie him up again, but he got away and ran into the house, where everything was normal again.

 

54               It is my view that the trial judge erred in law by failing to address the confusing evidence, and failing to separate fact from fiction. In Burns, supra, McLachlin J., writing for the Court, stated, at p. 665:

 

                   This statement should not be read as placing on trial judges a positive duty to demonstrate in their reasons that they have completely appreciated each aspect of relevant evidence.  The statement does not refer to the case where the trial judge has failed to allude to difficulties in the evidence, but rather to the case where the trial judge's reasons demonstrate that he or she has failed to grasp an important point or has chosen to disregard it, leading to the conclusion that the verdict was not one which the trier of fact could reasonably have reached.

 

55               McLachlin J. clearly set out the law regarding the requirement of trial judges to give reasons in Burns.  However, it should be remembered that Burns dealt with a situation where the Court of Appeal agreed the trial judge had evidence before him to support the conclusion he reached, but overturned the verdict due to lack of reasons.  The above-quoted passage does not stand for the proposition that trial judges are never required to give reasons.  Nor does it mean that they are always required to give reasons.  Depending on the circumstances of a particular case, it may be desirable that trial judges explain their conclusions.  Where the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly reveals the trial judge’s reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere.  Equally, in cases such as this, where there is confused and contradictory evidence, the trial judge should give reasons for his or her conclusions.  The trial judge in this case did not do so.  She failed to address the troublesome evidence, and she failed to identify the basis on which she convicted D.R. and H.R. of assault.  This is an error of law necessitating a new trial.

 

G.  Admission of Fresh Evidence

 

56               After the appellants' trial had been disposed of, Peter K., the father of Mr. K., pled guilty to charges of sexual assault against each of the R. children.  The appellants sought to have his certificate of conviction admitted as fresh evidence.

 

57               The test for the admission of fresh evidence was articulated in Palmer, supra, and remains the appropriate test.  As this appeal has been decided on other grounds, it is unnecessary to deal with this issue.

 

V.  Disposition

 

58               My colleague L’Heureux-Dubé J. points out that sexual abuse of children is prevalent in our society and difficult to prosecute.  My inability to agree with her disposition of this case is not a failure to recognize these difficulties but a reluctance to depart from the presumption of innocence and the requirement of proof beyond a reasonable doubt.

 

59               In the result, I would allow the appeal.  Given the weakness of the evidence supporting his conviction for sexual assault, I would enter an acquittal in respect of D.W.  I would order a new trial in respect of D.R. and H.R. on the charges of sexual assault and assault causing bodily harm on which they were convicted.

 

                   The following are the reasons delivered by

 

                   L’Heureux-Dubé J. (dissenting) --

 

I.   Introduction

 

I.                 The appellants, Donald Leo R. (D.R.), Helen Susan R. (H.R.) and Donald George W. (D.W.), were convicted of various assault offences, including sexual assault, in respect of abuse perpetrated against the three children of D.R. and H.R. between 1983 and 1989 when the children ranged in age from one year to ten years old.  The Saskatchewan Court of Appeal upheld the convictions, with Vancise J.A. dissenting.  The appellants made a further appeal to this Court as of right and, after the hearing of the appeal before us, the appeal was allowed with reasons to follow.  I dissented, for the following reasons.

 

II.                       The facts are set out in the reasons of Justice Major and need not be repeated at length here.  Suffice it to say that there has never been any doubt that the complainants were abused.  At trial, medical evidence clearly established that Michael R. (born 1979), Michelle R. (born 1982) and Kathy R. (born 1982) had been subjected to severe sexual and physical abuse.  The children suffered serious psychological trauma as a result of their ordeal, and experienced considerable difficulty giving evidence at trial.

 

III.                      Since the medical evidence was so compelling, identity was the only real issue at trial, as far as many of the charges were concerned.  After a 22-day trial, Batten J. concluded that, whatever the other deficiencies in the children's testimony, the children were at least correct in identifying the appellants as the people who had abused them.  As a result, she found the appellants guilty on most of the assault counts, including the counts of sexual assault.  However, the trial judge entertained a reasonable doubt as to whether the complainants had been forced to commit sexual touchings on the appellants, and as to whether intercourse and certain other acts had occurred.  Accordingly, she acquitted the appellants of gross indecency, incest, and some of the assault counts. 

 

IV.                     My colleagues are of the view that the convictions must be overturned.  Writing on their behalf, Major J. refers to three supposedly incorrect evidentiary rulings.  In my opinion, however, two of the rulings were not erroneous at all, and the insignificant error committed in the third ruling in no way invalidates the convictions.

 

V.                       Major J. also takes issue with the trial judge’s reliance on the children's testimony.  According to my colleague, no reasonable trial judge could believe the children’s testimony about D.W., because their description of the abuse was too similar in form to their testimony about D.R.  As well, he says that as a matter of law, the children’s evidence against D.R. and H.R. had to be found credible or not credible in its entirety.  I, however, take a very different view.  The trial judge, having heard the children’s extensive testimony from beginning to end, and the abundant medical and other evidence which supported the children’s account, was entitled to believe the children’s testimony, at least in part.  Neither the fact that the children claimed to have been victimized in the same way by both male appellants, nor the fact that part of the evidence was disbelieved, made it unreasonable or wrong in law for the trial judge to convict D.R., H.R., and D.W. on the strength of the evidence that was believed.

 

VI.                     Finally, my colleague states that the trial judge committed an error of law by not giving adequate reasons.   Yet we have never held that a trial judge’s verdict may be appealed solely on the basis of an omission from the reasons.  A trial verdict is reversible only for a material error in the interpretation or application of the law, in the appreciation of the evidence, or in the handling of the trial.  Since the trial judge’s reasons disclose no such error, there is no basis for overturning the convictions.

 

VII.                    I propose to deal first with the three evidentiary rulings which, according to Major J., were erroneous.

 

II.  Rulings on Admissibility of Evidence

 

A)  Michelle's Out-of-Court Statements

 

VIII.                   At issue here are two statements made by Michelle in 1987, when she was five years old.  She had just returned to the home of foster parents Mr. and Mrs. K. after an overnight visit at the home of D.R.  Mrs. K. discovered what appeared to be blood on Michelle’s underpants and, when Mrs. K. asked what had happened, Michelle said, “daddy touched me”.  Mrs. K. took Michelle to Dr. McKenna, who examined Michelle and determined that she had been subjected to non-accidental trauma of the genital area.  Michelle told the doctor that D.R. had “spanked my bum then he put his fingers in my bum, it hurt”.  The trial judge ruled that both statements were admissible as evidence of the truth of their content. 

 

IX.                     In the past, Michelle’s statements might have been excluded automatically by virtue of the rule against hearsay evidence.  However, in R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, and R. v. B. (K.G.), [1993] 1 S.C.R. 740, a new approach was articulated.  Under this new approach, out-of-court statements are admissible as evidence of the truth of their content, as long as they meet the criteria of “necessity” and “reliability”.  As the Chief Justice observed in B. (K.G.), at p. 787, reliability need not be established with certainty:

 

What the reliability component of the principled approach to hearsay exceptions addresses is a threshold of reliability, rather than ultimate or certain reliability.

 

In the case at bar, the statements were clearly necessary, because Michelle had no recollection at trial of the incident described in the statements.  As well, the circumstances of the statements provided a guarantee of reliability: the statements were made very shortly after the alleged attack; the two statements, made on separate occasions and to different people, were consistent with one another; they were also consistent with the medical evidence, which clearly indicated that Michelle had been assaulted.

 

X.                       Despite these indicia of reliability, Major J. contends that the statements were unreliable and ought not to have been admitted.  My colleague points to evidence that Michelle might have been assaulted by Michael during the overnight visit, and that the children tended to lie to cover up the sexual activity that took place between them.  He concludes that Michelle’s statements are "as consistent with the hypothesis that she was protecting Michael as they are with her having been sexually assaulted by D.R." (para. 35).

 

XI.                     On my reading of the trial record, however, Major J.’s alternative hypothesis is unfounded.   The evidence does not suggest that the children ever falsely accused adults of having touched them in order to conceal their own sexual activity.  Defence counsel cross-examined Michael and Michelle extensively on the sexual activity that took place between them, and their responses indicate that, when they wanted to cover up their sexual activity, they simply denied that they were doing anything: Transcript, at pp. 316, 348-49, 365-66 and 1631.

 

XII.                    Moreover, it is important to remember that the trial judge was ruling on admissibility, not belief.  The question was not whether the trial judge should believe the statements, but whether she should be able to consider the statements at all.  Commenting on the decision of the Court of Appeal in this case, Professor Paciocco has questioned whether the position adopted by the dissenting judge (and now by my colleague Major J.) is in keeping with this fact: D. M. Paciocco, "The Evidence of Children: Testing the Rules Against What We Know" (1996), 21 Queen’s L.J. 345, at p. 377.  The possibility of fabrication is not so compelling in this case that it warranted excluding the statements altogether.  This Court's decision in Khan emphasized the need for "increased flexibility in the interpretation of the hearsay rule to permit the admission in evidence of statements made by children to others about sexual abuse": Khan, supra, at p. 543.  The trial judge was correct to rule that the statements were admissible.

 

B)  Dr. Elterman's Testimony

 

XIII.                   Dr. Elterman, a psychologist, was a defence witness qualified to give evidence in the “area of child development and characteristics of child abuse”.  The trial judge allowed him to testify as to the distinction between “visual” memory and “verbal” memory.  In essence, visual memory flows from having seen or experienced the event described, and denotes the ability to actually recall the event.  Verbal memory is little more than a learned belief that the event happened without any real recollection of the event.  When Dr. Elterman proceeded to describe his interviews with the children and his conclusion that their memories were learned rather than actually recalled, the trial judge sustained an objection by the Crown and ruled that Dr. Elterman would not be permitted to testify as to his conclusions on the reliability of the children’s memories. 

 

XIV.                  According to Major J., the trial judge erred in excluding this part of Dr. Elterman's testimony because "any explanation of [the children's] otherwise incredible behaviour could only aid the trier of fact in accurately assessing their credibility" (para. 40).

 

XV.                    However, it is a long-standing rule that the determination of credibility is a matter for the judge or jury.  A trier of fact does not normally require assistance in this task and, consequently, experts are not usually permitted to testify on credibility.  McLachlin J. made this point, on behalf of the majority, in R. v. Marquard, [1993] 4 S.C.R. 223, at p. 248:

 

Credibility must always be the product of the judge or jury's view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter: see R. v. B. (G.) (1988), 65 Sask. R. 134 (C.A.), at p. 149. . . . Credibility is a matter within the competence of lay people.  Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis.  The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror.  Moreover, the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict.  Finally, credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties.  All these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of witnesses.

 

XVI.                  By way of exception, expert evidence will be admissible when it relates to a subject-matter on which ordinary people are unlikely to form a correct judgment if unassisted by persons with special knowledge: Kelliher (Village of)  v. Smith, [1931] S.C.R. 672, at p. 684; R. v. Abbey, [1982] 2 S.C.R. 24, at p. 42; R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 870; Marquard, supra, at p. 249, per McLachlin J., and at p. 265, per L’Heureux-Dubé J.; R. v. Mohan, [1994] 2 S.C.R. 9, at p. 23.  Courts have recognized, for example, that special assistance will sometimes be required when assessing the evidence of children.  In Marquard, supra, McLachlin J. said, at pp. 248-49:

 

                   On the other hand, there may be features of a witness's evidence which go beyond the ability of a lay person to understand, and hence which may justify expert evidence.  This is particularly the case in the evidence of children.  For example, the ordinary inference from failure to complain promptly about a sexual assault might be that the story is a fabricated afterthought, born of malice or some other calculated stratagem.  Expert evidence has been properly led to explain the reasons why young victims of sexual abuse often do not complain immediately.  Such evidence is helpful; indeed it may be essential to a just verdict.

 

Dr. Elterman's evidence on the theory of memory is far removed from the kind of expert opinion which is ordinarily admitted in relation to children's testimony — expert opinion “as to the psychological and physical conditions which frequently arise as a result of sexual abuse of a child": R. v. G.B. (1988), 65 Sask. R. 134 (C.A.), at p. 149, per Wakeling J.A., aff’d [1990] 2 S.C.R. 30; Marquard, supra, at p. 267, per L'Heureux-Dubé J., and at p. 249, per McLachlin J.  However, since the trial judge did not exclude this part of Dr. Elterman's evidence, I am prepared to accept, for the sake of argument, that the theoretical distinction between visual and verbal memory falls within the category of matters which lay people may not understand if they are not explained to them by an expert in child memory development.

 

XVII.                 The same cannot be said of Dr. Elterman's conclusions as to whether the R. children had verbal or visual memory of the incidents at their birth home.  Dr. Elterman's description of the interviews suggests that, once the theory had been explained, the application of the theory to actual testimony was quite straightforward and did not require any special knowledge or expertise: see Transcript, at pp. 2833-35.  At the trial itself, all of the children were cross-examined on whether they could actually remember certain events or whether they had merely come to believe them through repetition: see, e.g., Transcript, at pp. 274-75, 279-83, 305, 805-6, 850 and 1664.  The trial judge was well able to determine for herself, without further assistance from Dr. Elterman, whether the children's recollections were real and whether their testimony was reliable.  She committed no error in declining to hear Dr. Elterman's conclusions on this issue.

 

C)  Cross-Examination of Ms. Bunko-Ruys

 

XVIII.                Ms. Bunko-Ruys, a therapist, was called by the Crown and qualified as an expert witness to give evidence concerning “the behavioural, social and emotional characteristics of sexually abused children”.  Her opinions were based in part on having observed the children while Sergeant Dueck, a police investigator, was interviewing them.  In Ms. Bunko-Ruys’ opinion, the children had been sexually abused and traumatized early in their emotional development.

 

XIX.                   The defence cross-examined Ms. Bunko-Ruys on these matters, as well as the procedure followed at the interviews.  One theory of the defence was that the children’s account might have been affected, perhaps inadvertently, by the manner in which questions were put to them at the interviews.  When Ms. Bunko-Ruys was unable to recall certain details of the interviews, defence counsel sought to “refresh her memory” by showing her a transcript of the interviews.  However, the trial judge ruled that the transcript could not be used, essentially because it related to the credibility of the complainants, a collateral issue.

 

XX.                    One can easily understand Batten J.’s reluctance to permit the defence to impeach the children's credibility in its cross-examination of Ms. Bunko-Ruys.  Credibility is a collateral issue, not a fact in issue.  Subject to a few exceptions which have no application here, matters which relate solely to the credibility of a witness can only be canvassed in cross-examination of the witness whose credibility is sought to be impeached: R. v. Cargill, [1913] 2 K.B. 271 (C.C.A.); R. v. Hrechuk (1950), 10 C.R. 132 (Man. C.A.), at p. 135; R. v. Rafael (1972), 7 C.C.C. (2d) 325 (Ont. C.A.), at p. 330; Latour v. The Queen, [1978] 1 S.C.R. 361, at p. 367; R. v. Cassibo (1982), 70 C.C.C. (2d) 498 (Ont. C.A.), at p. 506; Phipson on Evidence (14th ed. 1990), at p. 263; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at pp. 883-84; A. W. Mewett, Witnesses (1991 (loose-leaf)), at para. 11.1(a) and (b); E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. 1987 (loose-leaf)), vol. 1, at para. 16:12010.  In other words, the children’s credibility could only be impeached by cross-examining the children themselves.

 

XXI.                   However, on the facts of this case, it appears that the details of the interview procedure did have relevance which went beyond the children's credibility.  If there were evidence that Sergeant Dueck had influenced the children’s identification of their abusers in the course of interviewing them, it would bear directly on the question of identity, a fact in issue.  Therefore, the trial judge was correct to allow the defence to question Ms. Bunko-Ruys in an effort to show that coaching or manipulation during the interviews had tainted the children’s identification of the appellants.  When Ms. Bunko-Ruys was unable to recall the details of the interviews, the trial judge ought also to have permitted the defence to refresh her memory using any suitable materials, including the transcript of the interviews.

 

XXII.                 I am persuaded, however, that refreshing Ms. Bunko-Ruys’ memory would not have had the slightest impact on the verdict.  The transcript of the interviews was in the possession of the defence, and, if there had been any coaching or manipulation during the interviews, the defence would surely have sought to introduce the transcript itself as evidence.  In fact, the defence not only declined to introduce the transcript; it even declined to cross-examine Sergeant Dueck, the person who actually interviewed the children, about whether there had been coaching or manipulation.  I can only conclude that the device of refreshing Ms. Bunko-Ruys’ memory would have yielded nothing but out-of-context questions and answers from the transcript when, in fact, no coaching or manipulation occurred at the interviews.  In my opinion, there is no likelihood that the verdict would have been any different even if the defence had been allowed to refresh Ms. Bunko-Ruys’ memory.

 

D)  Conclusion on Evidentiary Rulings

 

XXIII.                It comes as no surprise that the appellants, who have been convicted of very serious offences, have grasped at every minute imperfection in the handling of the trial in an attempt to have the convictions overturned.  However, Batten J. was extremely conscientious.  Despite the length and complexity of the trial, my colleague Major J. has called into question just three of the rulings she made during the trial.  In my view, only one of those rulings was incorrect, and this technical error had no effect on the verdicts.

 

III.   The Trial Judge's Assessment of the Evidence

 

XXIV.                In addition to the three evidentiary rulings, Major J. also argues that there were errors in the trial judge’s assessment of the children’s credibility.

 

XXV.                 At the outset, I would observe that appellate courts are extremely reluctant to interfere with credibility findings made by a trial judge.  In R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 131, McLachlin J. explained the rule as follows:

 

The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted?  That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial.  This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King, [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), [1989] 2 S.C.R. 446, at pp. 465-66.  The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses.

 

In the absence of an error of law or a finding which cannot reasonably be supported on the evidence, a trial judge’s findings in relation to credibility will not be overturned on appeal.

 

XXVI.                The trial judge’s findings in the case at bar clearly call for deference.  During the 22 days of the trial, Batten J. saw and heard over a dozen witnesses, including the present and former foster parents of the children, the children’s teachers, the police officer who had investigated the abuse, and physicians and other professionals who had worked with or examined the children.  Most importantly, she heard at great length from the children, who were cross-examined fully on every weakness in their testimony.  Because the children experienced considerable stress and discomfort while testifying, the trial judge’s opportunity to observe their non-verbal conduct was an invaluable advantage in the assessment of their evidence.  We should be very reluctant indeed to interfere with the trial judge’s findings of credibility on the basis of an ex post facto review of the transcript. 

 

A)  Sufficiency of Evidence on D.W.

 

XXVII.              According to Major J., the evidence against D.W. was too weak to support his conviction for sexual assault.  My colleague appears to be troubled by the fact that the children’s testimony against D.W. was similar in form to their testimony against D.R.  In Major J.’s view, no reasonable judge would convict D.W. in light of this weakness; as a result, my colleague would enter an acquittal in respect of D.W.

 

XXVIII.             I do not share my colleague’s concern about the form of the children’s testimony against the male appellants.  It is true that the children’s testimony often took the form of allegations that the accused “put his penis in my bum, and I put my penis in his bum, and then I sucked his penis”.  However, the children were testifying as to the essential details of the assaults, and I am quite unable to imagine what variations my colleague would have preferred to see in their accounts.  If a child is sexually assaulted by two people, and decides to report the assaults, must the child vary his description of the two assaults so as to avoid being disbelieved? 

 

XXIX.                In W. (R.), supra, at p. 133, this Court recognized that the assessment of children’s evidence requires sensitivity to the special characteristics of children:

 

                   The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children.  One finds emerging a new sensitivity to the peculiar perspectives of children.

 

It may be, for example, that children having limited experience and linguistic skills will not recount their experiences as an adult would, and, in particular, that they will not vary the structure or wording of the account with each retelling. 

 

XXX.                 In any event, it was the role of the trial judge to decide whether or not to believe the children.  The trial judge had the opportunity to see and hear the children on the stand, an advantage which we cannot hope to duplicate simply by reading the trial transcript.  Moreover, the children were cross-examined on the issue of memory corruption, and an expert testified as to the possibility of memory corruption: Transcript, at pp. 274-75, 279-83, 305, 805-6, 850, 1664, and 2792-2940. Having heard all of this evidence, the trial judge was entitled to believe, beyond a reasonable doubt, that D.W. had sexually assaulted the children.  Unlike Major J., I do not believe that the similarity of the children’s descriptions of the abuse was so grave a flaw that no reasonable judge could have convicted D.W.

 

XXXI.                We have held many times, most recently in R. v. Burns, [1994] 1 S.C.R. 656, at p. 663, that “the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial”.  Still less do such doubts entitle a court of appeal to substitute an acquittal.

 

B)  Inconsistent Findings Regarding D.R. and H.R.

 

XXXII.               The majority would also overturn the sexual assault convictions entered against D.R. and H.R., although my colleagues Major and McLachlin JJ. differ as to the reasons for doing so.  While Major J. holds that the trial judge’s findings are inconsistent, McLachlin J. argues that the medical and psychological evidence was incapable of supporting the inference that D.R. and H.R. had sexually assaulted the children.

 

XXXIII.             According to Major J., the children’s evidence was presented in such a manner that “the trial judge either had to believe the children's testimony to be credible and convict on both, gross indecency and sexual assault, or she had to entertain a reasonable doubt on the whole of the evidence and acquit” (para. 49).  Major J. concludes that in believing only part of the children’s evidence, the trial judge made “inconsistent findings” and committed an error of law.  He would order a new trial.

 

XXXIV.             However, a trial judge commits an error of law if he or she errs in respect of some principle of law or as to the legal effect of undisputed facts: R. v. Morin, [1992] 3 S.C.R. 286, at pp. 294-96.  Clearly, we are not dealing here with undisputed facts.  Moreover, there is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety.  Indeed, the contrary proposition seems indisputable: a trier of fact may believe a witness’s testimony in whole, in part, or not at all.  See, for example, R. v. Mulvaney (1988), 27 O.A.C. 318 (C.A.); R. v. Thomas (1993), 24 C.R. (4th) 249 (B.C.C.A.), at p. 253; R. v. Peterson (1996), 89 O.A.C. 60 (C.A.).  There is therefore no basis on which it can be said that the trial judge committed an error of law.

 

XXXV.              I would agree that inconsistency in the verdicts — a combination of verdicts which no reasonable trier of fact would have rendered on the evidence — would be a ground of appeal.  However, in such a case, the appeal would not be based on an error of law, but on the unreasonableness of the verdicts.  This Court recognized the principle in Koury v. The Queen, [1964] S.C.R. 212, but it is Evans J.A.’s formulation, in R. v. McLaughlin (1974), 2 O.R. (2d) 514 (C.A.), at p. 519, which has come to be universally accepted:

 

If the verdicts are violently at odds and the same basic ingredients are common to both charges then the conviction will be quashed but the onus is on the appellant to show that no reasonable jury who had applied their minds to the evidence could have arrived at that conclusion.

 

See R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at pp. 55-56; Mulvaney, supra; R. v. McIntyre (1992), 40 M.V.R. (2d) 178 (Man. C.A.), at pp. 181-82; R. v. Giovannetti, [1991] O.J. No. 47 (C.A.); R. v. Hynes (1994), 134 N.S.R. (2d) 134 (C.A.), at p. 136; Peterson, supra; R. v. Yuen (1996), 70 B.C.A.C. 122.

 

XXXVI.             Applying this principle to the case at bar, it is clear that the verdicts are not inconsistent in the least.  As McLachlin J. states in her reasons, there was considerable medical and other corroborative evidence to support the sexual assault charges, including physical evidence of scarring and psychological evidence of hypersexualized behaviour attributable to prolonged sexual abuse from a young age.  By contrast, the gross indecency charges rested entirely on the children’s testimony that they had been forced to touch D.R. and H.R. sexually.  Corroboration is by no means a requirement for a finding of credibility; nevertheless, the existence of independent evidence establishing that the children had been sexually assaulted could only strengthen the Crown’s case on the sexual assault charges.  On the evidence presented at trial, a reasonable trial judge could find the appellants guilty of sexual assault while entertaining doubt as to whether they had committed gross indecency.

 

XXXVII.            It is not surprising, therefore, that Major J. refrains from holding that the convictions against D.R. and H.R. are unreasonable.  Major J. nevertheless asserts that the findings are inconsistent; however, if an impugned combination of verdicts could reasonably be rendered by a trier of fact properly directed as to the law, then I fail to see how they can be said to be inconsistent.  

 

XXXVIII.           According to Major J., the “inconsistency” results from an error of law which the trial judge committed “by applying a finding of fact to different questions of law in a manner that was not uniform” (para. 50).  This argument was not raised by the dissenting judge in the Court of Appeal or by any of the appellants before us, and, in addition, it is unfounded.  As Major J. himself observes, the trial judge made the following findings of fact: “[s]he accepted the children’s testimony in regard to the sexual acts performed on them by the appellants, but entertained a reasonable doubt as to whether the children were forced to perform sexual acts on the appellants” (para. 49). Applying the law to these two factual findings, the trial judge properly found the appellants guilty of the offence involving sexual acts performed on the children — sexual assault — and not guilty of the offence of gross indecency, which required proof that the children had been forced to perform sexual acts on the appellants. When a trial judge’s factual findings lead to the conclusion that an accused is guilty of one offence and not guilty of another offence, there is no overriding principle of “uniformity” that requires the trial judge to convict the accused of both offences or else acquit the accused of both. 

 

XXXIX.             For her part, my colleague McLachlin J. does not argue that the trial judge’s findings are inconsistent.  Instead, she writes that the medical and psychological evidence was “not capable of supporting an inference that D.R. and H.R. were the perpetrators of the sexual assaults”, and concludes that the trial judge “erred . . . by relying on the medical and psychological evidence to establish not only that the sexual assaults had occurred but also that they had been perpetrated by D.R. and H.R.” (para. 118).  McLachlin J. appears to be arguing, as does the majority in the case of D.W., that the evidence against D.R. and H.R. was insufficient to support a finding that they were guilty of sexual assault.  It is unclear, if McLachlin J. believes that the evidence is “not capable” of supporting the convictions, why she does not take this analysis to its logical conclusion, and enter acquittals in respect of D.R. and H.R. 

 

XL.                    In fact, there was ample evidence to support the trial judge’s finding that the appellants were guilty of sexual assault.  The trial judge did not rely solely on the medical and psychological evidence in order to establish the identity of the perpetrators.  Rather, she convicted the appellants because she believed the children’s testimony describing the assaults and identifying the appellants as the perpetrators.  As with any other testimony, the children’s testimony about the sexual assaults was more credible because it was corroborated by medical evidence, including Dr. McKenna’s observations after the children’s overnight stay at the home of D.R., and psychological evidence which indicated, as McLachlin J. observes, “hypersexualized behaviour said to arise almost always out of prolonged sexual abuse from a young age” (para. 117).  The trial judge committed no error in her treatment of this corroborative evidence, or in finding that the children’s testimony about the sexual assaults was credible.  The trial judge was therefore entitled to conclude that D.R. and H.R. were guilty of sexual assault.

 

C)  Inadequate Reasons

 

XLI.                   Finally, Major J. would set aside the convictions of D.R. and H.R. for assault causing bodily harm, and order a new trial, on the ground that the trial judge failed to “address the confusing evidence” and to “separate fact from fiction” (para. 54), i.e., to state specifically which parts of the evidence were disbelieved.  However, we have never held that a new trial can be ordered simply because the reasons do not deal with deficiencies in the evidence.  My colleague’s assertion contradicts our unanimous decision in Burns, supra.  At p. 664, McLachlin J. wrote:

 

                   The Court of Appeal’s main concern was not that there was insufficient evidence to support the verdicts of guilty, nor that those verdicts were unreasonable, but that the trial judge’s reasons failed to indicate that he had considered certain frailties in the complainant’s evidence. . . .

 

                   Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)(a).  This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points. . . .

 

While we have often acknowledged the wisdom of providing reasons, we have never strayed from the proposition that the absence of reasons or an omission from the reasons are not in themselves an error of law.  See, for example, our unanimous decisions in R. v. Smith, [1990] 1 S.C.R. 991, aff’g (1989), 95 A.R. 304 (C.A.);  Morin, supra,  at p. 296; R. v. Barrett, [1995] 1 S.C.R. 752, at p. 753; R. v. Shropshire, [1995] 4 S.C.R. 227, at p. 251;  and R. v. McMaster, [1996] 1 S.C.R. 740, at para. 27, per Lamer C.J., and at para. 40, per L’Heureux-Dubé J.; and our decisions in MacDonald v. The Queen, [1977] 2 S.C.R. 665, at p. 672; R. v. C. (R.), [1993] 2 S.C.R. 226, and R. v. Tortone, [1993] 2 S.C.R. 973, at p. 985.

 

XLII.                  Major J. would derogate from this established rule by making the insufficiency of reasons a ground of appeal in cases where the evidence is “confused”.  There is irony in the fact that my colleague provides no reasons, let alone a compelling reason, for this change in the law.

 

XLIII.                 Indeed, there are good reasons to retain the traditional rule.  McLachlin J. described some of them in Burns, supra, at p. 664:

 

                   This rule makes good sense.  To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably.  Trial judges are presumed to know the law with which they work day in and day out.  If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.

 

XLIV.                The rule also reflects the “fundamental premise in the law of appellate review” that an appeal is from an order, and not from the reasons for the order: J. Sopinka and M. A. Gelowitz, The Conduct of an Appeal (1993), at p. 4.  It has always been open to an appellate court to draw inferences about the validity of a verdict or order from the reasons given by the trial judge.  For example, if important facts are omitted from the reasons — facts so important that a judge would not have left them out unless they had been overlooked or excluded from consideration — then a court of appeal may well infer from their absence that the decision was made without regard to a material fact.  Alternatively, in situations where the trial judge’s conclusion seems unreasonable a priori, a court of appeal may look to the reasons for some explanation which might persuade it that the verdict was not unreasonable.  See, for example, MacDonald, supra, at p. 672, per Laskin C.J.; Harper v. The Queen, [1982] 1 S.C.R. 2, at p. 14, per Estey J.; and Burns, supra, at p. 665, per McLachlin J.  In every such case, however, the only essential question is whether the verdict itself is sound, for “[t]he issue is the reasonableness of the finding not an absence or insufficiency of reasons”: Barrett, supra, at p. 753. 

 

XLV.                  In any event, it is incorrect to suggest that the trial judge did not give reasons for her conclusions in the case at bar.  On the contrary, she gave meticulous oral reasons for her verdicts.  The nature of oral reasons was explained in R. v. Smith (1989), 95 A.R. 304 (C.A.), by Côté J.A., whose opinion was adopted unanimously by this Court ([1990] 1 S.C.R. 991). At pp. 313-14, Côté J.A. wrote:

 

                   When this trial judge pronounced oral judgment, he was not debating; he had decided what the law was. He did not offer a legal treatise in his oral judgment. He was doubtless telling a number of lay people in the courtroom, notably the accused, what motivated the decision he had made. Anything which he said was given in telegraphic fashion, leaving legally‑trained counsel to fill in the rest by using their knowledge of the argument just heard, of the law, and of what had become obvious during the trial.

 

                                                                   . . .

 

                   A trial judge sitting alone need not give any reasons for disbelieving defence evidence: R. v. Soo (1965), 56 W.W.R. (N.S.) 189 (B.C.C.A.), and cases cited. Nor are very brief reasons for it a ground of appeal: ibid.

 

 

Batten J. told counsel that she had made an effort to condense the tremendous quantity of evidence to a summary of manageable size.  Nonetheless, her reasons are much more than “telegraphic”.  The trial judge’s 15-page summary of the evidence is admirably thorough and relevant, and the rest of her reasons carefully set out her approach to the children’s evidence and all of the essential findings on which the verdicts are based.  It is true, of course, that the reasons do not deal exhaustively with the evidence, or indicate specifically that the trial judge disbelieved the “bizarre” testimony to which my colleague refers at par. 53.  However, the observations which Major J. made in Tortone, supra, at p. 985, apply with equal force here:

 

                   Although the trial judge did not deal exhaustively with the evidence in reaching his decision, there is no reason to conclude that he was not able to appreciate the evidence.  On the contrary the trial judge gave reasons on the evidence for his conclusions.  This was adequate, particularly as there is no requirement for a trial judge to comment upon all the evidence in his reasons for judgment: R. v. Morin, [1992] 3 S.C.R. 286, at p. 296; R. v. C. (R.), [1993] 2 S.C.R. 226.

 

In the case at bar, the trial judge’s conclusions are sound, and there is no indication that she disregarded or failed to appreciate any of the evidence.  On the contrary, she gave lengthy reasons on the evidence for her conclusions.  I can find no basis in the reasons for overturning the convictions.

 

IV.Admissibility of Fresh Evidence on Appeal

 

XLVI.                Among the people charged with sexual offences in relation to assaults on the complainants was Mr. K.’s father, Peter K.  Following the appellants’ trial, Peter K. pleaded guilty to charges of having sexually assaulted the complainants.  The appellants sought to have the certificate of conviction admitted as evidence on appeal, relying on Palmer v. The Queen, [1980] 1 S.C.R. 759. 

 

XLVII.               Because Major J. disposes of the appeal on other grounds, he does not find it necessary to deal with this issue.  For my part, I agree with Cameron J.A. in the Court of Appeal that the fresh evidence is inadmissible on appeal because it could not reasonably have affected the outcome of the trial.  The trial judge was aware that Peter K. had been charged with sexually assaulting the complainants and that he had been convicted, earlier, of sexually assaulting two neighbourhood girls.  It is sufficient that the trial judge considered this fact, together with all of the other evidence, in determining whether the appellants were guilty of the acts they were alleged to have committed.

 

V.   Conclusion and Disposition

 

XLVIII.              Sexual abuse of children is, sadly, one of the more prevalent crimes in our society: R. v. L. (D.O.), [1993] 4 S.C.R. 419, at p. 439, per L’Heureux-Dubé J.; Paciocco, supra, at p. 346.  It is also notoriously difficult to prosecute.  Because of the power imbalance between the victim and the perpetrator, and the fact that there are usually no witnesses to the crime other than the assailant and the young victim, it has been called “the perfect crime”: L. (D.O.), supra, at p. 442, per L’Heureux-Dubé J.  See also A. McGillivray, “Abused Children in the Courts: Adjusting the Scales After Bill C-15” (1990), 19 Man. L.J. 549, at pp. 550-51 and 572.

 

XLIX.                Accordingly, this case stands out, not only because of the severity of the abuse suffered by the complainants, but also because of the strength of the Crown’s case against the appellants.  The Crown was fortunate to have medical evidence establishing that the children had been sexually and physically abused, and psychological and other evidence suggesting that the abuse occurred over a long period of time and at a young age.  The Crown was also fortunate in that the children were willing and able to testify as to what had occurred to them.  While Major J. calls into question the reliability of the children’s evidence, there is no reason to believe that the children would falsely identify their parents and their mother’s boyfriend as the people who had assaulted them for so many years. 

 

L.                       Indeed, the record shows that everyone involved in the case took great pains not to do anything that might influence the children’s account.  For example, when the children first came forward with allegations of abuse, their foster parents scrupulously avoided "correcting" the children's account, "suggesting" to them that parts of the account were not believable, or doing anything that might taint the case: Transcript, at pp. 1718-19 and 1890-93.  Later, the children were instructed not to read any transcript of their testimony at the preliminary inquiry and not to discuss the abuse with one another: Transcript, at pp. 1605-8. 

 

LI.                      Given the strength of the Crown’s case, and all of the precautions that were taken in respect of the children’s evidence, it is hardly surprising that, at the conclusion of the trial, Batten J. was convinced beyond a reasonable doubt that the appellants were guilty of having assaulted the children. 

 

LII.                     With respect, I disagree with my colleagues’ decision to overturn the convictions.  The trial judge’s assessment of the children’s credibility was eminently reasonable, and Major J.’s criticisms of the verdicts are based on propositions of law for which there exists neither precedent nor justification.  As for the three supposed errors on points of evidence, I have concluded that just one of the rulings was erroneous.  The error had no impact on the verdict, and, consequently, no purpose would be served by subjecting the children to the agony of another trial.  This is a proper case for the application of s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 .

 

LIII.                   In the result, I would dismiss the appeal.

 

                   The following are the reasons delivered by

 

 

LIV.            Cory and Iacobucci JJ. (dissenting in part) -- We are in agreement with the reasons of Justice Major except that rather than acquitting D.W. we would order a new trial for him as well as D.R. and H.R.

 

LV.             The trial judge convicted D.W. of sexually assaulting the children but acquitted him on the charges of gross indecency.  As Major J. observes the conviction was based solely on the testimony of the children.  In his view, the trial judge made errors of law and, given the weakness of the evidence supporting his conviction, Major J. would enter an acquittal for D.W.  It is true that some of the children’s evidence was bizarre and in some instances it was suspiciously identical.  Yet the fact remains that the children were sexually abused.  The only issue was by whom.  The reasons given by the trial judge for convicting the accused D.W. of these serious charges on this evidence were unsatisfactory and the conviction cannot be sustained.  Nevertheless in looking at all the circumstances of this case, there remains some evidence from the children's testimony that is sufficient in our view to warrant the holding of a new trial rather than entering an acquittal.  In this respect, the trial judge considered the children’s testimony sufficiently convincing to convict D.W. of sexual assault.  In these circumstances rather than acquit we believe it appropriate to direct a new trial for D.W. as well as the other appellants.

 

                   The following are the reasons delivered by

 

LVI.            McLachlin J. -- While I agree with Justice Major as to the disposition of this appeal, I would characterize the error committed by the trial judge in convicting D.R. and H.R. of sexual assault somewhat differently.

 

LVII.          Major J. suggests that the trial judge erred in law by failing to apply in a uniform manner her finding as to the children’s credibility.  Since the trial judge found the children’s testimony to be credible, and since their testimony regarding the incidents of sexual assault could not logically be severed from their testimony about the incidents of gross indecency, Major J. suggests that the trial judge was compelled to arrive at the same verdict on both charges.  On this theory, the only consistent application of the credibility finding would have been to convict D.R. and H.R. of both sexual assault and gross indecency.

 

LVIII.         Major J.’s approach implies that the only relevant evidence in respect of the sexual assault and gross indecency charges was the testimony of the children.  In fact, there was an abundance of medical and psychological evidence to support the charges of sexual assault.  This evidence consisted of physical indicia, such as scarring, as well as hypersexualized behaviour said to arise almost always out of prolonged sexual abuse from a young age.  No similar supporting evidence was available in respect of the gross indecency charges.  It was therefore open to the trial judge to have found that the children had been sexually assaulted, but to have had a reasonable doubt as to whether the acts of gross indecency had occurred.

 

LIX.            Having found that the children had been sexually assaulted, it remained for the trial judge to deal with the crucial issue of identity.  At this stage, the trial judge erred, in my respectful opinion, by relying on the medical and psychological evidence to establish not only that the sexual assaults had occurred but also that they had been perpetrated by D.R. and H.R.  The vast majority of this evidence was simply not capable of supporting an inference that D.R. and H.R. were the perpetrators of the sexual assaults.

 

LX.             The children’s allegations of abuse were initially directed at the K. family, with whom they had lived from February 1987 until late 1989 or early 1990.  Thereafter, the allegations expanded to include D.R. and H.R., with whom the children had no unsupervised contact since mid-October 1987.  Thus, there were essentially two distinct periods during which abuse was alleged to have occurred.  The difficulty with virtually all of the medical and psychological evidence was that it was as consistent with the abuse having been perpetrated by the K. family as by D.R. and H.R.  Dr. Yelland examined the children in 1990 and 1991 and found indications of sexual and physical abuse.  Based on his estimates as to the ages of the various scars and burns on the children’s bodies, Dr. Yelland testified that he was unable to rule out the possibility that “everything happened after the children went into . . . the [K.] foster home”.

 

LXI.            Evidence bearing specifically on the time period when the children were living with their parents was given by Mrs. Francis, Michael’s teacher.  She testified that during the 1986-87 school year, Michael was sexually aggressive, immature, and liked to cross-dress.  Although there was some improvement in his behaviour after being transferred to the K. family home, his behaviour worsened from September 1987 onward, deteriorating to such an extent that he failed to complete the 1988-89 school year.  Even if this evidence was capable of supporting an inference that the sexual assaults were perpetrated on Michael by his parents, it is silent as to the identity of the perpetrator(s) of the sexual assaults on the two girls.  This suggests error on the part of the trial judge in identifying D.R. and H.R. as the perpetrators of the sexual assaults on the girls, and possible error in identifying D.R. and H.R. as the perpetrators of the sexual assaults on Michael.

 

LXII.           I conclude that the trial judge erred in law in characterizing the medical and psychological evidence as evidence capable of supporting the inference that D.R. and H.R. were the perpetrators of the sexual assaults on the three children. It follows that I would dispose of the appeal in the manner proposed by Major J.

 

                   Appeal allowed and acquittal entered in the case of D.W., L’Heureux‑Dubé, Cory and Iacobucci JJ. dissenting.  Appeal allowed and new trial ordered in the case of D.R. and H.R., L’Heureux‑Dubé J. dissenting.

 

                   Solicitors for the appellant D.R.:  Ebert, Sim, Crookshanks & Associates, Saskatoon.

 

                   Solicitors for the appellant H.R.:  Hillson, Lawrence, Cooper & Soder, North Battleford.

 

                   Solicitors for the appellant D.W.:  Quon Ferguson MacKinnon Walters, Saskatoon.

 

                   Solicitor for the respondent:  The Office of the Attorney General for Saskatchewan, Regina.