Case information

Criminal law — Evidence — Assessment — Misapprehension of evidence — Did the majority of the Ontario Court of Appeal err in law in concluding that the trial judge did not materially misapprehend the evidence?

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The appellant, B.B., was charged with sexual offences allegedly committed against his two stepdaughters on various dates between 1999 and 2005. He was convicted by the trial judge of sexual assault, based on forced sexual intercourse and oral sex, against only one of the complainants. The trial judge conditionally stayed a partly overlapping charge of sexual exploitation. The appellant appealed his conviction and argued that the trial judge misapprehended the evidence regarding the timing of the complainant’s sexual assault allegations. The majority of the Court of Appeal for Ontario dismissed the appeal. It found that the trial judge did not misapprehend the evidence, emphasizing that the complainant’s testimony about the assaults was detailed, coherent, and credible. Justice Dawe, dissenting, would have allowed the appeal, set aside the sexual assault conviction, lifted the conditional stay of proceedings on the charge of sexual exploitation, and ordered a new trial on those two charges. He concluded that that the trial judge misapprehended the complainant’s evidence in a manner that affected the reasoning path by which she found the appellant guilty on the sexual assault charge.