IN THE COURT OF APPEAL OF ?· That’s not right. Q Excuse me can you say that again? You played what?…

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Citation: R v CJ, 2018 MBCA 65 Date: 20180604 Docket: AY16-30-08625 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Jennifer A. Pfuetzner B E T W E E N : ) Z. M. Jones HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) C. R. Savage ) for the Respondent - and - ) ) Appeal heard: C. J. ) December 1, 2017 ) (Young Person) Appellant ) Judgment delivered: ) June 4, 2018 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act (see section 110(1)). NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify any child victim or child witness that is connected with an offence committed by a young person that is being dealt with under the Youth Criminal Justice Act (see section 111(1)). BEARD and MONNIN JJA Introduction [1] The accused, a 17-year-old young offender, was charged with one count of sexual interference, one count of invitation to sexual touching and one count of sexual exploitation. After a short trial, in brief oral reasons, the trial judge convicted him on the first two counts and stayed the third. He imposed a sentence of probation. Page: 2 [2] The accused appeals the convictions. For our purposes, the only ground of appeal that need be considered is that the trial judge misapprehended the evidence leading to an unfair trial and a miscarriage of justice. [3] For the reasons that follow, we agree that the trial judges analysis of the evidence led to an unfair trial and that a new trial should be ordered. Background [4] The complainant, a six-year-old child, her mother and her two-year-old sister were visiting her mothers childhood friend, S. J. The accused, then 17 years old, was the foster son of S. J.s mother and was staying at S. J.s house on the day in question. The complainant and her sister were sent off to a nearby park with the accused. They were gone for approximately 45 minutes. A few minutes after their return, the younger sister was heard by some of the adults present to say, CJ [the accused], da, perogy. The mothers evidence was that she and her children referred to their vaginas as perogy. The child accompanied the words with gestures around her genitalia. [5] The complainant left shortly thereafter with her mother and sister and, on the way home, was asked by her mother if anything had occurred at the park. Initially, the complainant referred to it being a secret but, on further questioning, said that the accused had showed her, [his] wiener and asked her to touch him and also that he had licked her vagina. The mother returned immediately to her friends house and confronted the accused, who denied that anything untoward had happened at the park. [6] A few weeks after the incident, the complainant gave a videotaped Page: 3 interview to the police which was entered at trial pursuant to section 715 of the Criminal Code. In that videotaped statement, she said that the accused had made her touch his penis and had licked her vagina. She stated that this occurred at the monkey bars, one of the two play structures in the park, the other one being a set of swings. When cross-examined at trial on the statement, she remembered little of what had occurred. [7] The accused testified at trial and maintained his denial that anything untoward had occurred between him and the complainant other than he testified that: Q Okay. Did [B] do -- make anything in the sand? A Well she made a tail and she said [CJ] look, it looks like a wiener. So I said [B] dont talk like that. Thats not right. Q Excuse me can you say that again? You played what? A (Inaudible) she said, come [CJ] look, it looks like a wiener. Q Oh okay. A So I said [B] dont talk like that. Thats not right. And she said it feels like one too. And (inaudible) felt [Js] so I told her not to talk like that anymore. So I went over, broke the pile of sand. And lifted her up out of the sand box. Or sand pit. And we all walked over to the teeter totters. [8] In cross-examination, he clarified that to say it just looked like a big pile of sand. He later indicated that [the complainant] seemed kind of mad that I broke it. He also said that the complainant seemed to stay a little annoyed at him which he assumed was because he had broken the pile of sand. When asked why he had not advised her mother that she had been speaking inappropriately, he testified that he did not wish to get her into trouble and be Page: 4 subjected to punishment. [9] The accused confirmed under cross-examination that he did not tell S. J. or the complainants mother about the penis in the sand and that the first time it was mentioned was when he gave his statement to the police some time later. [10] The trial judge questioned the accused at some length, including about the sand under the play structure. The accused described it to the trial judge like a sandbox where the top layer was dry but, if you dug a bit deeper, it was wet. When asked how the complainant could make a structure from that kind of sand, his answer was, piled up, like she just kind of pulled it all together and then kind of pushed. When asked about its size, the trial judge asked him to compare it to a water jug found in the courtroom and the following exchange took place: Q Up to here? So it looked like that? So it was -- the dimensions would be similar. This is about six inches high and three inches wide. Is that what it was like? A Kind of. Q Pardon? A Kind of, yeah. [11] He was further questioned by the trial judge as to whether the complainants hands had been dirty: Q With her hands? So her hands must have been pretty dirty then when she finished doing that? A (Inaudible) told her to wipe it off on the grass. Page: 5 [12] The only evidence with respect to the complainants state of cleanliness that day was that given by her mother, who testified that she gave the complainant a bath that night and that there was no indication that anything had happened to her. She was not asked if there were significant amounts of sand or dirt on the complainants hands or on her body. The Trial Judges Decision [13] As indicated, the trial judge gave brief oral reasons for his decision. He first reviewed the evidence and then proceeded to perform a W(D) analysis (see R v W(D), [1991] 1 SCR 742). It is the first part of the analysis, his review of the accuseds evidence, which is relevant for the purposes of this appeal. [14] The trial judge indicated that he did not believe the accused and explained that his reasons for doing so were twofold. [15] Firstly, he did not accept the accuseds comment that the complainant was angry with him because he had destroyed the mound as the explanation was made at too late a stage and was not made when given an opportunity to do so by S. J. Further, he found it unreasonable because there was no collateral evidence as to how he knew [that she was angry] which, in the trial judges view, impacted on his credibility. [16] Secondly, he did not believe the accuseds evidence that the complainant had constructed the structure in the sand, as described, because, in the trial judges view, the sand under the play structure was not of the type to have allowed it to be moulded by the complainant. The accuseds response that the complainant may have dug a little deeper into wet sand was rejected by the trial judge as being inconsistent with the complainants state of Page: 6 cleanliness when she returned home. In the trial judges estimation, the complainant would have been filthy at the time when she returned to her mother and there was no comment from her mother about that being the case. In summary, he found that the explanation given by the accused as to the construction of the structure in the sand was not believable and that affected his assessment of the accuseds credibility. [17] The trial judge found the evidence from the statement of the complainant, which he stated was clear and straightforward, as well as forthright, to be sufficient to convict. Issues [18] There are two issues to be determined on this appeal: (a) whether the trial judge misapprehended the evidence; and (b) if he did, whether that misapprehension played an essential part in his reasoning process which resulted in his convicting the accused. [19] It is only if those two issues are answered in the affirmative that it can be said that the accused has not received a fair trial and was the victim of a miscarriage of justice. The Law [20] The accuseds appeal is based on section 686(1)(a) of the Criminal Code, which reads as follows: Page: 7 Powers 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice. [21] This appeal is not one of an unreasonable verdict which cannot be supported by the evidence. There was other evidence before the trial judge that, if believed, was sufficient to support a conviction. Rather, the issue is whether, in his analysis of the accuseds evidence, the trial judge misapprehended it in a manner which led to a faulty reasoning process and an unfair trial. [22] The leading case is R v Morrissey (1995), 97 CCC (3d) 193 (Ont CA), where Doherty JA explained as follows (at p 221): When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a true verdict. Convictions resting on a misapprehension Page: 8 of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [emphasis added] [23] The decision in Morrissey was confirmed by the Supreme Court of Canadas decision in R v Lohrer, 2004 SCC 80, as setting a stringent standard. As Binnie J said (at paras 2, 8): The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a conviction. In our view, the statement of Rothman J.A. in C. (R.) [R v C(R) (1993), 81 CCC (3d) 417 (SCC)] and the statement of Doherty J.A. in Morrissey both correctly emphasize the centrality (or essential part) the misapprehension of the evidence must play in the trial judges reasoning process leading to the conviction before the trial judgment will be set aside on appeal on that basis. [24] The governing principles which flow from Morrissey and Lohrer were discussed by Watt JA in R v Mahmood, 2011 ONCA 693 (at paras 46-48): A misapprehension of evidence may involve a failure to take into account an item or items of evidence relevant to a material issue, or it may have to do with a mistake about the substance of the evidence. A misapprehension of evidence may also reflect a failure to give proper effect to evidence: R. v. Morrissey (1995), Page: 9 22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), at p. 538 O.R. Every misapprehension of evidence does not render a trial unfair or result in a miscarriage of justice. An appellate court must determine the nature and extent of an alleged misapprehension and its significance to the decision under review, whether a determination of admissibility or a final conclusion about guilt. Rulings on admissibility and final verdicts must be based exclusively on evidence adduced at trial: Morrissey, at p. 541 O.R. The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to the reasoning of the trial judge, in other words, the reasons must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment: R. v. Lohrer, [2004] 3 S.C.R. 732, [2004] S.C.J. No. 76, 2004 SCC 80, at para. 2. [25] That the misapprehension of evidence can include an assessment of credibility was discussed by Simmons JA in R v CB, 2017 ONCA 862, where she wrote (at paras 44-45): [T]he appellant must show that the trial judges misapprehension of the evidence was central to the trial judges reasoning. The misapprehension must be substantial, material, and play an essential role in the decision to convict: Morrissey, at pp. 538-540. This can include evidence that goes to elements of the crime charged, assessments of credibility, and proof beyond a reasonable doubt, so long as the misapprehension was essential to the conviction. [footnotes omitted] With regard to credibility assessments, only where the assessment is central to the decision to convict and only where an alleged misapprehension is central to that credibility assessment can there [be] a case for miscarriage of justice. [footnote omitted] [emphasis added] [26] As well, the drawing of an improper inference or conclusion, which Page: 10 leads to a misapprehension of the evidence, can also be the basis of a fatal error (see R v DNS, 2016 MBCA 27 at para 59). [27] Finally, in what can be considered as going to the fairness of the trial as opposed to merely a misapprehension of the evidence, courts have commented on the unfairness of criticising a witness for not providing evidence that was not asked for either in examination or cross-examination (R v Hilton, 2016 ABCA 397 at para 25). [28] In short, if the trial judge made a mistake as to the substance of evidence or failed to give it proper effect, then a miscarriage of justice may occur. Standard of Review [29] A trial judges credibility findings are owed a significant amount of deference upon appellate review. They should only be interfered with on appeal if they are unreasonable or, in other words, they display palpable and overriding error (see Housen v Nikolaisen, 2002 SCC 33). It will be the exception where a trial judges assessment of credibility is overturned. An appellate court should not parse the trial judges reasons seeking error but, rather, should consider them as a whole with the view of understanding the trial judges reasoning. [30] However, that does not mean that trial judges are immune from review or that credibility findings are unassailable. The jurisprudence referred to above confirms that, where a trial judges reasoning displays palpably flawed evidentiary findings, which are essential to the decision, it can lead to a finding of a miscarriage of justice (see Morrissey; Lohrer; and R v CLY, 2008 SCC 2. Page: 11 Analysis [31] In this case, the trial judge, in embarking upon his W(D) analysis, started, as is the custom, with a review of the accuseds testimony. He found two areas of concern upon which he expressed the view that they negatively affected his assessment of the accuseds credibility. Turning to each of those areas in the order he addressed them in his reasons, they were: (a) the lack of a proper explanation by the accused as to how he was aware that the complainant was angry with him and the timing of that disclosure; and (b) the accuseds evidence with respect to the complainant creating a mound in the sand depicting a penis. The Complainants Anger [32] In his reasons for judgment, the trial judge expressed two concerns about the accuseds evidence with respect to the allegation that the complainant was angry with him. On the one hand, he stated that he would have expected the explanation that it was because of his breaking up the sand mound to normally have been provided at an earlier time than it was. He was also concerned by the lack of any collateral evidence from the accused as to how the accused knew the complainant was angry. [33] The lack of a timely disclosure of the explanation by the accused is certainly one of the factors which the trial judge could have used in his assessment of the credibility of the accused. However, the same cannot be said for a lack of collateral evidence from the accused. There was no obligation on the accused to provide the basis upon which he reached a conclusion that the complainant was angry with him. Furthermore, he was never asked that question either by the Crown or by the trial judge in his Page: 12 lengthy questioning. [34] A similar situation was encountered in Hilton where the trial judge, in his reasons, reached negative conclusions as to the accuseds credibility based in part on his failure to provide or clarify information. On appeal, the majority commented as follows (at para 24): The accused must be treated fairly when the court is determining whether his evidence raises a reasonable doubt. On several occasions the trial judge criticized the appellant for failing to explain certain things, and failing to provide details of what were collateral events. However, the appellant was never asked to provide the supposedly missing explanations or details. Apart from the effect this has on shifting the burden of proof, it is simply unfair to criticize a witness for not providing evidence that was not asked for either in examination or cross-examination. It was clear that, in this case, the lack of an explanation was an important part of the trial judges reasoning on the accuseds credibility. The Sand Mound [35] The second aspect of the credibility finding which is of concern is the use made by the trial judge of the condition of the sand in the play area of the park and the complainants cleanliness on returning from the park. The relevant part of the trial judges reasons on this aspect are as follows: Im concerned about this suggestion that she had constructed a structure which [the accused] offered the carafe of water on the table, on the court tables, and I suggested to him that the carafe was about six inches tall and three inches wide and he said yes, that was about what she had constructed. I find it hard to imagine that in the kind of sand thats found under the bottom of these play structures which is pounded daily by children playing in these areas. This was not a sandbox where sand is piled up. Its really just a footing under a play area. I find it hard to imagine that Page: 13 anybody could mound anything that could resemble a penis. In any way. And to describe a mound as a penis, it didnt seem to me to be a plausible explanation. I dont believe that kind of sand could be molded. And then his explanation when I suggested to him that it was implausible or that the sand would be molded like that. He said well she dug down into the under sand, or the wet sand underneath. And what hes really referring to I think is that theres probably clay down there. I think its, if that were the case this young girl would have been so covered in dirt and mud. Her fingernails, I know as anybody whos ever worked in a garden, let alone in a sand pile, knows you start digging with your hands and your fingernails are full of dirt or sand. I think that if she was actually doing that, she would have been, either her clothing or her hands and arms and face for that, would have been filthy at the time when she returned to her mother. There was no comment from her mother about her being dirty or having sand in her fingernails or sand anywhere in her body. [36] He then comments on the fact that the complainants mother, who had bathed the complainant that evening, made no mention of sand on her body which he would have expected if the sand was fluffy, mouldable or malleable. He concluded that this explanation was not believable and that finding impacted on his assessment of the accuseds credibility. [37] With respect, the trial judge misapprehended the evidence in order to draw an inference as to the consistency of the sand which was not available to him on the evidence before him. [38] The evidence as to the condition of the sand under the play structure consisted of photographs and the testimony of the accused. The photographs of the play structure where the events are said to have occurred were taken from a distance and do not provide a close-up view of the condition or quality of the sand underneath it. While there is a reference to the sand being similar to that under the swings, of which there is a picture from a closer angle, there is little definition in the picture allowing any conclusion to be drawn as to its Page: 14 consistency. [39] The accuseds evidence on the mound, which he said was constructed by the complainant, was not that it was an intricate sculpture. It is simply referred to as a tail and that it looked like a wiener. The accused referred to it also as a pile of sand. He also, under questioning by the trial judge, referred to the sand as similar to a sandbox. He indicated that the top layer was dry and, if digging a bit deeper, it would turn wet. The accused stated as follows: A (Inaudible) piled up, like she just kind of pulled it all together and then kind of pushed (inaudible). Q So how high was it? A Like just a regular pile of sand. [40] The trial judge then referred the accused to a water jug and suggested dimensions of six inches high by three inches wide to which the accused answered [k]ind of. Under questioning from the trial judge, the accused then indicated that the complainants hands had been dirty and that he had advised her to wipe them off on the grass. [41] It is from this evidence that the trial judge drew two conclusions: (a) that the sand under the play structure was not of sufficient consistency to allow the creation of what the accused had described; and (b) if it had, there would have been evidence from the complainants mother that evening that the complainant was dirty as a result of playing in such sand. Page: 15 [42] The trial judge relied on these two conclusions to find that the accuseds explanation regarding the complainants sand structure was not believable and that providing that explanation impacted negatively on his assessment of the accuseds credibility. [43] Both conclusions relate to factual findingsthe consistency of the sand and the complainants state of cleanliness. There was no direct evidence, other than the accuseds evidence related to the complainant making the mound, regarding either finding. While a trial judge can draw conclusions or make factual findings in the absence of direct evidence, there must be sufficient other evidence to support that factual finding so that it is not merely speculation or a guess. This was explained as follows in McWilliams1 (at para 31:80): Triers draw inferences from facts in order to conclude the existence of further facts. . . . An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established by evidence adduced at trial. It is a fact which is inferred, not a belief. Put differently, once primary facts are found to be proven, in drawing the inference the Court is making a finding of fact. The process of drawing inferences from evidence is not . . . the same as speculating even where the circumstances permit an educated guess. [44] In R v Mustard (G), 2016 MBCA 40, Mainella JA stated as follows 1 The Honourable Mr. Justice S Casey Hill, Professor David M Tanovich & Louis P Strezos, eds, McWilliams Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters, 2017) vol 3 (loose-leaf revision 18:1), ch 31 Page: 16 (at para 31): The law recognises a distinction between speculation and evidence (see R v DC, 2012 SCC 48 at para 27, [2012] 2 SCR 626). A proper inference can only be made where there are objective facts on the record to support it and logic reasonably allows the inference to be drawn from those objective facts (see Caswell v Powell Duffryn Associated Colleries, Ltd, [1940] AC 152 at 169-70 (HL); and Cloutier v The Queen, [1979] 2 SCR 709 at 731). [45] The problem with the trial judges conclusion regarding the sand mound is that the other evidence did not support the conclusion that a pile of sand could not be created in the manner described by the accused. There was simply no evidence before the Court that the sand lacked the required consistency to form a simple mound and, in coming to that conclusion, the trial judge was engaging in impermissible speculation. [46] On the issue of the condition of the complainant, the trial judge made two errors. [47] First, the trial judges finding that the complainant would have been so covered in dirt and mud was based on his finding that theres probably clay down there, that is, under the sand. That finding, however, was purely speculative as there was no evidence that there was any clay, dirt or mud where the complainant was digging. The accused was never asked about clay, dirt or mud and, when he was questioned, he said that the complainant was digging in sand and that she built the mound of sandnot clay, dirt or mud. Thus, it was a mistake of fact to find that the complainant was digging in clay or that she was covered in dirt and mud. [48] Further, as to the condition of the complainant when seen by her Page: 17 mother when giving the complainant her bath, the only evidence the mother gave was as follows: Q Did you inspect or -- after [B] said these things did you sort of check her out? A Yes I bathed her that evening. Q Okay. A Usually I allow [her] to bath by herself (inaudible) I bathed her. Q Okay. Was there any indication that anything had happened to her? A No. Q No? A (Inaudible). Q Physical signs at all? A None. The complainants mother was not asked either by the Crown or the trial judge about the complainants condition of cleanliness or whether there was evidence of sand, dirt, mud or clay on her. There was simply no evidence in that regard. [49] The trial judges reasons indicate that the consistency of the sand to make mounds, the presence of clay and the complainants state of cleanliness were important factors leading him to ascribe a lack of credibility to the accuseds testimony and to reject that testimony. Based in part on these findings, he went on to find that he did not have a reasonable doubt as to the accuseds culpability. Page: 18 [50] As we have said earlier, this is not an issue of whether the remaining evidence, separate from the accuseds testimony, was sufficient to support the trial judges finding of guilt. As was stated in Morrissey (at p 221): If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [51] In this case, it is simply that, in analysing the accuseds testimony, the trial judge did so in a manner that was unfair to the accused and vitiated the proper balancing of that evidence in the trial overall. It rendered the trial unfair and resulted in a miscarriage of justice. New Evidence and Reasonableness of the Verdict [52] We have read the dissenting opinion of our colleague, Pfuetzner JA. We disagree on whether the trial judge misapprehended the evidence and drew improper inferences. Otherwise, we are in general agreement. [53] The admissibility of the new evidence goes to the issue of the reasonableness of the verdict. We agree that its introduction is not warranted as it fails to meet the Palmer criteria (see Palmer v The Queen, [1980] 1 SCR 759). [54] We agree that, were it not for the misapprehension of the accuseds evidence, there was sufficient evidence to warrant a conviction and the accuseds ground of appeal on the issue of the reasonableness of the verdict should be dismissed. Page: 19 Conclusion [55] For the reasons set out above, we would find that there was a misapprehension of the evidence which led to a miscarriage of justice as a result of which we would order a new trial. Beard JA Monnin JA Page: 20 PFUETZNER JA (dissenting): Introduction [56] I have read the reasons of my colleagues for allowing this appeal and ordering a new trial on sexual offences under sections 151, 152 and 153(1) of the Criminal Code. We differ on the important question of the correct legal standard to be used to review the conviction of the accused. In my respectful view, in allowing this appeal absent palpable and overriding error, the role of the trial judge to weigh the evidence and assess credibility has been usurped. Issues [57] The majority concludes that the trial judge made significant errors in assessing the credibility of the accused: first, that the trial judge unfairly criticised the accused for failing to explain how he knew that the complainant was angry with him; and, second, that the trial judge misapprehended the evidence which led to a miscarriage of justice. First IssueUnfair Criticism of the Accused [58] The majority suggests that it was unfair for the trial judge to have made a negative credibility finding against the accused because he did not, nor was he asked to, provide any detail in his evidence as to how he knew the complainant was angry with him at the park. [59] In my respectful view, this first issue has nothing to do with misapprehension of evidence as the factors going into a credibility assessment are not reviewed on the same standard as a misapprehension of evidence. [60] A trial judge is entitled, and indeed is required, to assess the Page: 21 credibility of the witnesses that appear before him or her. As stated by Bastarache and Abella JJ in R v Gagnon, 2006 SCC 17 (at para 20): Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L. [HL v Canada (Attorney General), 2005 SCC 25], that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [emphasis added] [61] This case turned on credibility. The trial judges reasons show that he simply did not find the accuseds story compelling because he did not offer any detail as to how he knew the complainant was angry with him and he did not tell anyone this story until some time after the events. The trial judge made no palpable and overriding error in making this negative credibility assessment and there was no unfairness to the accused in him doing so. There is no basis to intervene in the trial judges assessment. Second IssueMisapprehension of Evidence [62] I turn now to the majoritys second ground for allowing the appealthat there was a misapprehension of evidence leading to a miscarriage of justice. This Court, in R v Whiteway (BDT) et al, 2015 MBCA 24, explained a misapprehension of evidence as follows (at para 32): A misapprehension of evidence may refer to a mistake as to the substance of evidence, a failure to consider evidence relevant to a material issue or a failure to give proper effect to evidence (R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161 at para. 83; and R. v. Sinclair, 2011 SCC 40 at para. 13, [2011] 3 S.C.R. 3). A misapprehension of the evidence is not to be confused with a Page: 22 different interpretation of the evidence than the one adopted by the trial judge (R. v. Lee, 2010 SCC 52 at para. 4, [2010] 3 S.C.R. 99). It is insufficient that the judge may have misapprehended the evidence; the error must be readily obvious (Sinclair at para. 53). [emphasis added] [63] As they explain in their reasons, my colleagues are troubled by certain factual inferences drawn by the trial judge that they would not have drawn. [64] The first impugned inference relates to the consistency of the sand under the play structure. The majority rejects the trial judges inference that the sand could not have been formed into what they refer to as a simple mound. With respect, a sand pile that is six inches high by three inches wide, as described by the accused, is not a simple mound. In their reasons, in my respectful view, my colleagues do not point out where the trial judge made a mistake as to the substance of evidence or how there is an error that is readily obvious (R v Sinclair, 2011 SCC 40 at para 53). Instead, my colleagues merely express the concern that the photographs of the play structure were taken from a distance and do not provide a close-up view of the sand. My colleagues also refer to the accuseds various descriptions of the pile made by the complainant as a tail, a wiener and a pile of sand, and his description of the sand as similar to a sandbox with the top layer dry and the sand wet if one dug a bit deeper. My colleagues provide no other reason for their conclusion that the trial judge did misapprehend, as opposed to may have misapprehended, evidence when he found that a pile of sand could not be created in the manner described by the accused. [65] Second, the majority takes issue with the trial judges inference that the complainant was not unusually dirty after returning from the park. Again, Page: 23 with respect, the majority fails to indicate the readily obvious error that the trial judge made in drawing this inference. The trial judge had the evidence of the complainants mother that she carefully examined the complainant when she bathed her that evening and didnt notice anything out of the ordinary. It is difficult for me to accept the reasoning that a trial judge cannot reasonably rely on the careful observations of a concerned mother to infer that a child was not unusually dirty or sandy when being bathed. The fact that the complainants mother was not specifically asked if the complainant was dirty by either Crown or defence counsel does not prevent the trial judge from drawing the inference he did. The entire purpose of drawing inferences is to make findings of fact when there is no direct evidence precisely on point. [66] Finally, my colleagues conclude that the trial judge engaged in impermissible speculation when he inferred that there was clay, dirt or mud under the sand. However, the accused described the sand as the top layers dry. (Inaudible) dig a bit deeper itd turn wet and youd get like rocks and all that. Based on the accuseds evidence, it was entirely reasonable for the trial judge to have inferred that there was clay, dirt or mud where the complainant was digging. [67] In my respectful view, the trial judge made no mistakes as to the substance of evidence or any other readily obvious error. The inferences he drew were not inconsistent with the evidence and were informed by common sense and experience. This case is unlike Morrissey [(1995), 97 CCC (3d) 193 (Ont CA)], where the judge made several mistakes as to the substance of witnesses evidence that were readily apparent when the judges reasons were reviewed together with the trial transcripts. [68] Respectfully, the majority has merely come to a different Page: 24 interpretation of the evidence and is mistakenly characterising the trial judges interpretation as a misapprehension of the evidencean approach warned against by the Supreme Court of Canada in R v Lee, 2010 SCC 52. Not every judge might have drawn the inferences that the trial judge did. However, this is not the legal test and it is certainly not a sufficient basis upon which to find a miscarriage of justice and order a new trial. The role of this Court is not to re-weigh the evidence and come to different conclusions than the judge at first instance who had the advantage of observing and hearing the witnesses first-hand. Proper Legal TestUnreasonable Verdict [69] As I have explained, in this case, there has been no misapprehension of evidence. Nor has there been a legal error, such as a misapplication of the test in R v W(D), [1991] 1 SCR 742. [70] The only remaining basis upon which the appeal could succeed is if the verdict is unreasonable or cannot be supported by the evidence (see section 686(1)(a)(i) of the Criminal Code). This is the proper standard upon which the trial judges reasons should be reviewed. The standard was summarized by Deschamps J in R v RP, 2012 SCC 22 (at para 9): To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC Page: 25 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190). [emphasis added] [71] One principle that can be derived from RP is that, if a judge makes a palpable and overriding error in drawing a factual inference that is essential to the verdict, the verdict is unreasonable. This is consistent with prior jurisprudence of the Supreme Court of Canada confirming that the standard of review for findings of fact and factual inferences is palpable and overriding error (see Housen v Nikolaisen, 2002 SCC 33 at para 23; R v Clark, 2005 SCC 2 at para 9; and HL v Canada (Attorney General), 2005 SCC 25 at para 74). [72] In addition, it is consistent with more recent case law that says a palpable and overriding error is both obvious and one that goes to the very core of the outcome of the case (Canada v South Yukon Forest Corporation, 2012 FCA 165 at para 46; see also Benhaim v St-Germain, 2016 SCC 48 at para 38). [73] Similarly, at stated in Benhaim (at para 39): Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 (CanLII), (TRANSLATION) a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions. [74] In RP, Deschamps J further explained the role of an appellate court reviewing the reasonableness of a verdict when credibility is the primary issue (at para 10): Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of Page: 26 appeal that reviews a trial courts assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they cannot be supported on any reasonable view of the evidence (R. v. Burke, [1996] 1 S.C.R. 474, at para. 7). [emphasis added] [75] The Supreme Court of Canada has stated on many occasions that the standard of review of a trial judges credibility assessment is the demonstration of palpable and overriding error (see Schwartz v Canada, [1996] 1 SCR 254 at para 32; R v Gagnon, 2006 SCC 17 at para 10; R v NS, 2012 SCC 72 at para 25; R v WH, 2013 SCC 22 at paras 30-31; and R v Vuradin, 2013 SCC 38 at para 11. Review of Factual Inferences and Credibility Assessment [76] Bearing in mind the proper standard of review, the factual inferences drawn by the trial judge are entitled to deference. As I have explained, none of the factual inferences singled out for criticism by my colleagues is contradicted by, or incompatible with, the evidentiary record. Moreover, the inferences are reasonably available from the evidence taken as a whole (R v ON, 2017 ONCA 923 at para 9). [77] Fundamentally, this case turns on the trial judges credibility assessments; particularly his negative assessment of the credibility of the accused. Key is the trial judges conclusion that the sand-pile event, as described by the accused, did not happen. He made this finding based on more than just inferences drawn regarding the consistency of the sand and the lack of dirt or sand on the complainant. He did not believe the accuseds story that the complainant was angry with him for breaking her sand pile. In addition, Page: 27 the trial judge didnt believe the accuseds claim that the six-year-old complainant said a mound of sand looked and felt like a wiener when the trial judge said, [a]nd to describe a mound as a penis, it didnt seem to me to be a plausible explanation. [78] The accuseds credibility must be assessed in the context of all of the evidence adduced at trial. The complainant (whose evidence the trial judge found to be credible) immediately disclosed what happened at the park but never mentioned making a sand pile or being angry with the accused. Further, the trial judge had the admissible evidence of the complainants sisters statement (CJ, da, perogy) and her gestures toward her genitalia. [79] At the end of the day, the trial judges vital finding that the accused was not a credible witness is supportable on the evidence and great deference is owed. [80] As I have indicated, the proper legal issue in this case is the reasonableness of the trial judges verdict. My colleagues concede that the verdict was reasonable and I agree. The trial judge assessed the credibility of the two main witnessesthe accused and the complainant. Those assessments are reasonably supportable on the evidence. He disbelieved the accused and believed the complainant. The evidence he accepted was, as noted by my colleagues, sufficient to support a conviction. Fresh Evidence Motion of Accused [81] The accused brought a motion to admit fresh evidence which can be dealt with briefly. The proffered evidence does not meet two of the criteria in Palmer v The Queen, [1980] 1 SCR 759. First, it is not credible or reasonably capable of belief as it consists of affidavit hearsay. Second, the evidence is Page: 28 such that, even if believed, it could not reasonably be expected to have affected the result at trial. Conclusion [82] I would dismiss the motion to adduce fresh evidence and dismiss the appeal. Pfuetzner JA