S.C.C. No. 02316 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Macdonald, Hallett and Chipman, JJ.A. and HER MAJESTY THE QUEEN Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on December 15, 2007. G. F. Philip Romney for the Appellant Kenneth W. F. Fiske for the Respondent Appeal Heard: December 7, 1990 Judgment Delivered: December 7, 1990 THE COURT: Appeal dismissed per oral reasons for judgment of Macdonald, J.A.; Hallett and Chipman, JJ.A. concurring. Publishers of this case please take note that s. 59 (2) of the Children's Services Act applies and may require editing of this judgment or its heading before publication. Section 59 (2) provides: "59 (2) No report of hearing or proceeding under this Act in which the name of the child or his parent or guardian or in which the identity of the child is otherwise indicated shall be published, broadcast or otherwise made public by any person without the special leave of the judge. 1976, c. 8, s. 59." The reasons for judgment of the Court were delivered orally by: MACDONALD, J.A.: The appellant was convicted after trial in the County Court Judge's Criminal Court for District Number Two on bill of indictment alleging that he sexually assaulted his stepdaughter between July 1, 1987 and August 31, 1989. The girl was 11 years old when the alleged assaults began. The child's testimony was that the sexual acts took place primarily at her home, usually on Friday nights when her mother was working and her sister had gone to visit her brother and his girlfriend. The complainant said that the sexual activities started out as fondling and eventually to full sexual intercourse. She also testified that the appellant attempted anal intercourse with her but she said she thought that he was unsuccessful. The complainant also testified that the appellant had intercourse with her at cottage. The complainant's mother, sister, brother and the latter's girlfriend flatly contradicted the complainant as to the time she says the acts took place. Her sister testified that except for two Fridays during the time in question she was home every Friday night with the complainant and nothing untoward occurred. There was no contradiction of the complainant's testimony of the sexual assault at the cottage. The appellant's defence was complete denial of the allegations. Two medical doctors gave evidence from which the reasonable and rational conclusion could be drawn that the complainant had had sexual intercourse, both vaginal and anal, on numerous occasions. The Crown also called social worker trained in counselling families and children. She was qualified by the court to give opinion evidence with respect to recognizing, accepting and counselling with respect to symptoms of child sexual abuse. She testified that she interviewed the complainant and others involved in the case and concluded that the child exhibited many of the symptoms often found in children who have been sexually abused, such as depression, attempts to block out recollection of events, low self‑esteem, lack of trust in others and an inability to be specific as to details. In R. v. G.B. et al (1988), 1988 CanLII 208 (SK CA), 65 Sask.R. 134 at 149, Wakeling, J.A., said: think it can now be taken that evidence of an expert, in the nature of that given by Dr. Wollert as to the psychological and physical conditions which frequently arise as result of sexual abuse of child, is admissible. It provides assistance to the trial judge in concluding whether an assault has occurred." On appeal to the Supreme Court of Canada, R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57, 56 C.C.C. (3d) 161, Madame Justice Wilson, speaking for the court said (p. 220): "... agree with Wakeling J.A.'s conclusion that the expert evidence in this case was well within the bounds of acceptable and admissible testimony and that in cases of sexual assault against children the opinon of an expert often proves invaluable." On this point, see also R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] S.C.R. 852, C.R. (3d) 329 at 357. In our opinion, the evidence of the social worker in this case was admissible. It provided assistance to the trial judge in concluding whether an assault had occurred. The trial judge reviewed the evidence in detail and referred specifically to the testimony of the other members of the complainant's family that contradicted her evidence that the sexual assaults occurred on Friday night at her home. In R. v. B.(G.), supra, Madame Justice Wilson said (pp. 219‑220): "...While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children\'s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the \'reasonable adult\' is not necessarily appropriate is assessing the credibility of young children." It is probable that the complainant was not sexually molested every Friday night by the appellant. The last referred to comments of Wilson, J., are relevant to the present case. It follows, in our view, that even though the complainant must have been mistaken as to the number of Friday nights she was sexually molested, such misconception on her part, under all the circumstances of this case, does not destroy her credibility. The trial judge noted that the evidence of the complainant had been consistent and given in reasonable manner. He said that if the evidence was only that of the appellant and the complainant "it would be something of standoff". He went on, however, to refer to the evidence of the social worker and of the two medical doctors. He then found that the complainant had given her evidence in creditable manner and one worthy of belief and proceeded to convict the appellant. The one rather disturbing feature of this case is that the Crown called as witness Miss. V. who was counsellor at the junior high school attended by the complainant. Miss. V. testified that on September 8, 1989, the complainant came to her office in rather distraught condition. After being questioned by Miss. V., the complainant said she was having difficulty with her stepfather. In response to direct questions put to her by Miss. V., the child said that her stepfather had touched her breasts and inside her pants. She said that that had been going on for several years. Those were the only details of sexual assault that she gave to Miss. V.. Defence counsel objected to the evidence of Miss. V. on the ground, as understand the record, that it related to period of time outside the time frame of the information. The learned trial judge, however, ruled that the evidence of Miss. V. was admissible, not to prove the commission of the offence, but as going to the credibility of the complainant. Miss. V. was competent to testify regarding the complainant's emotional state. Her evidence, however, of what the latter told her was hearsay and inadmissible. The trial judge therefore, in our opinion, erred in law in allowing such evidence and as treating it as relevant to the complainant\'s credibility if, in fact, that is what he actually did. Other passages contained in the record and in the decision clearly indicate to us that the trial judge was aware that any evidence that could be categorized as "oath helping" was not to be considered. The question then is whether the admission of the hearsay evidence of Miss. V. was an error so grave as to call for a quashing of the conviction. After consideration of the entire record, we have concluded that it does not. We have reached this conclusion for the following reasons. The medical evidence establishes beyond doubt that the complainant had been the victim of repeated acts of both vaginal and anal intercourse. These were sexual assaults. The only issue, therefore, was the identity of the person who had committed such sexual assaults. The trial judge found that the complainant's evidence had been consistent throughout and had been given in reasonable manner "worthy of belief". It is to be noted that the sexual assaults with which we are here concerned are really the acts of intercourse, yet all the complainant told Miss. V. was that her stepfather had touched her breasts and inside her pants. Finally, the learned trial judge found that over the time frame covered by the information he was left "in little doubt that opportunities could and did present themselves for E.L.H. to have had relationship with [the complainant]." Although such opportunity may not have been exclusive, it appears that it was close to being so. The trial judge went on to say that "the evidence is that she (the complainant) was kept close to home ... and apparently it was very strict home. The mother did not allow [either the complainant or her sister] to be absent from home, did not allow them normal social interchange with other young people ...". The trial judge then went on to say that he believed the evidence of the complainant as to the fact that there were times when she was alone with her stepfather. Under the circumstances, we would therefore invoke the curative provisions of s. 686(1)(a)(iii) of the Code and hold that the error of the trial judge in admitting in evidence what the complainant told Miss. V. did not result in any substantial wrong or miscarriage of justice. In Yebes v. The Queen, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, 36 C.C.C. (3d) 417, the Supreme Court of Canada said that the function of the Court of Appeal was to determine on the whole of the evidence whether the verdict is one that properly instructed jury, acting judicially, could reasonably have rendered. The court went on to say that while the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re‑examine and, to some extent, reweigh and consider the effect of the evidence. This we have done and have concluded that the verdict of the trial judge was one that he could reasonably have reached on the evidence before him. In result, the appeal against conviction is dismissed. J.A. Concurred in: Hallett, J.A. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA 1990 S.C.C. No. 02316 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the COUNTY COURT, JUDGE'S CRIMINAL COURT FOR DISTRICT NUMBER TWO BETWEEN: HER MAJESTY THE QUEEN E.L.H. HEARD BEFORE: The Honourable Judge Gerald B. Freeman PLACE HEARD: Bridgewater, Nova Scotia DATES HEARD: April 26, 1990 and June 11, 1990 COUNSEL: Lloyd Tancock, Esq. for the Prosecution G. F. Philip Romney, Esq. for the Defence CASE ON APPEAL S.C.C. No. 02316 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: MACDONALD, J.A. (orally)
Where a child's testimony as to repeated acts of sexual assault was not accurate as to precise details of the time and place of the events, but was otherwise reasonable and consistent, the inexactitude did not destroy the child's credibility. Evidence of an expert specializing in recognizing symptoms of child sexual abuse was admissible evidence to assist the trial judge in assessing whether an assault took place. However, evidence of the complainant's school counsellor was inadmissible as hearsay, but notwithstanding, its admission was not so grave an error as to call for a quashing of the conviction. The conviction was determined to have been a verdict which a jury acting judicially could reasonably have rendered.