WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-06-12

Docket: C59098

Judges: Feldman, Watt and Huscroft JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

C.F.

Appellant

Counsel

James Lockyer and Philip Campbell for the appellant

Philippe Cowle for the respondent

Hearing

Heard: December 1, 2016

On appeal from: the convictions entered on February 20, 2014 by Justice Gisele M. Miller of the Superior Court of Justice, sitting without a jury.

Decision

Huscroft J.A.:

Overview

1The appellant has twice been tried and convicted of sexual offences involving two teenaged girls from the Netherlands who stayed at his family home for several weeks, one in 1997 and the other in 2001. The appellant's convictions at his first trial were overturned by this court on appeal and a new trial was ordered: 2013 ONCA 62.

2The principal issue on this appeal is whether the trial judge erred in her treatment of the evidence from the appellant's first trial – evidence proffered by the appellant in an attempt to undermine the credibility and reliability of one of the complainants. The appellant brings a fresh evidence application in support of this argument, seeking to have transcripts of the evidence of one of the witnesses from the first trial admitted.

3The appellant further argues that the trial judge misapprehended evidence and assessed the evidence of the complainants and the appellant with uneven scrutiny.

4For the reasons that follow, I would not admit the fresh evidence and would dismiss the appeal.

Background

5The complainants are the daughters of J.M., a former friend and business associate of the appellant from the Netherlands. F.M., then 14 years of age, visited Canada and stayed with the appellant and his family for several weeks during the summer of 1997. The appellant, then aged 35, was married to his first wife, K.F., with whom he had two sons, ages two and four. J.M.'s other daughter, M.M., stayed with the appellant and his family for several weeks during the summer of 2001, when she was 15 years old.

6In 2006, F.M. and M.M. told each other that they had each been sexually involved with the appellant during their visits. They gave statements to the Dutch police in February 2007 and video-recorded statements to the Halton Regional police in September 2008, following which the appellant was charged.

7The appellant was initially charged with four counts of sexual assault and six counts of sexual exploitation. He was acquitted of the four sexual assault counts on a directed verdict. A jury convicted him of four counts of sexual exploitation but acquitted him of the two other exploitation charges.

8This court allowed the appellant's conviction appeal with the Crown's consent, quashed his convictions, and ordered a new trial. The acquittals from the appellant's first trial stood.

9The appellant was retried on four counts of sexual exploitation, two against each complainant. The trial judge found the appellant guilty on all four counts.

The Evidence at the Second Trial

(1) F.M.

10F.M. testified that she was treated as a mature young woman by the appellant and K.F. She recounted discussions with K.F. and the appellant concerning sexuality that included the appellant's sexual prowess, his sex life with his wife, his penis, orgasms, and thong underwear. She testified that the appellant bought thong underwear for her.

11F.M. testified that a series of sexual acts took place with the appellant during her visit, often while K.F. and/or the appellant's children were nearby. The acts began shortly after she arrived. F.M. testified that the appellant gave her a massage and asked her to remove her shirt and bra. F.M. complied and the appellant massaged her breasts. On another occasion, F.M. said that she saw the appellant naked in his bedroom, showing his genitalia and acting flirtatiously.

12F.M. testified that she performed fellatio on the appellant on a regular basis. She described several incidents, including fellating the appellant after she awoke to find his penis in her face; being summoned on the house intercom to come to the basement by the appellant and performing fellatio at his request; and fellating the appellant as he drove to the family cottage, while his sons were in the back seat of the car. At the cottage, she described skinny-dipping with the appellant and said that he inserted his fingers into and licked her vagina. She also performed fellatio on the appellant in the cottage kitchen.

13F.M. testified that the appellant never told her not to tell anyone and never forced her to do anything. On the contrary, she testified that she was comfortable with the appellant and was attracted to him, and that she was sometimes proactive in initiating the sexual activity. She did not think it was wrong, apart from the fact that the appellant was married.

14F.M. testified that for a long time she never discussed what had occurred with anyone, except for a soccer training friend on her return to the Netherlands, and then not in detail. Several years later, when her sister M.M. was contemplating visiting Canada and staying at the appellant's home, F.M. said that she cautioned her about going "because things had happened" between her and the appellant. However, she did not provide any details about what had happened. She warned her sister not to let the appellant give her a massage.

15F.M. testified that she recalled having a drink with the appellant some years later, when he visited her family in the Netherlands, and that she told him she could ruin his life.

(2) M.M.

16M.M. gave a similar description of F.M.'s warning. She testified that F.M. told her she should not go to Canada because sexual things had happened with the appellant, and she was concerned the same things would happen to her. She said that F.M. did not describe in detail what had happened, but told her not to allow the appellant to give her a massage.

17M.M. decided to go to Canada despite F.M.'s warning, and stayed at the appellant's home for several weeks during the summer of 2001. She testified that the appellant massaged her and touched her breasts. She found the encounter "a little bit interesting" and said that the appellant was very nice to her. On another occasion, he kissed her with his tongue in her mouth, performed cunnilingus and licked her anus. She then performed fellatio on the appellant. M.M. said that the appellant made her feel special and mature.

18M.M. testified that the appellant never told her not to tell anyone and that she did not discuss her sexual encounters with the appellant with K.F. She said that the appellant drove her to upstate New York to allow her to see F.M., who was about to commence studies in the United States, and although F.M. asked her if anything had happened, she told her it had not.

(3) The "Mouse Incident"

19The "mouse incident" refers to an incident of sexual touching alleged by M.M. to have occurred at the appellant's cottage. At the first trial, the appellant was acquitted of the sexual exploitation charge that arose out of this allegation. The mouse incident was not related to the sexual exploitation charges the appellant was facing at the second trial.

20Nevertheless, defence counsel sought permission to cross-examine M.M. and call evidence to rebut the allegation in order to undermine her credibility and reliability concerning the sexual exploitation charges at the second trial.

21Crown counsel initially objected to defence counsel's cross-examination request, but later withdrew his objection, provided that he was permitted to re-examine M.M. without complaint that he was splitting his case. The Crown objected outright to defence counsel's request to call contradictory evidence on the basis that it violated the collateral fact rule.

22The trial judge allowed the defence request. She reasoned that neither issue estoppel nor the collateral fact rule prevented the appellant from cross-examining M.M. on the mouse incident and calling contradictory evidence. With respect to issue estoppel, the trial judge noted that the mouse incident had been litigated at the appellant's first trial. However, contradicting M.M. would accord with, rather than undermine, the jury's verdict. The rationale underlying the doctrine of issue estoppel – fairness to the accused, judicial finality, and coherence of the criminal process – would not be undermined by allowing the appellant to contradict M.M.

23The trial judge then concluded that contradicting M.M. on the mouse incident would not run afoul of the collateral fact rule. She reasoned that the probative value of the proposed evidence was significant: it was proffered to show M.M. made a false allegation against the same appellant around the same time as the allegations before the court. She found the potential prejudice contemplated by the collateral fact rule – prolonged litigation and distraction – to be low.

24The trial judge thus allowed defence counsel to cross-examine M.M. on the mouse incident and to call evidence to rebut the allegation. In addition to the appellant, the defence called two witnesses to contradict M.M.'s version of events: V.B. and D.M – both guests at the appellant's cottage that night. The Crown was permitted to re-examine M.M. on issues raised in cross-examination, and to call rebuttal evidence before closing its case. The Crown called A.H., another guest staying at the appellant's cottage when the mouse incident occurred.

25M.M. testified that she was sleeping on the floor at the appellant's family cottage. Following a commotion caused by a mouse, she was invited to share a bed with the appellant and K.F. in the master bedroom. She testified that she did so and that the appellant touched her vagina and put at least one of his fingers inside her. M.M testified that she awoke next morning in the appellant's bed.

26A.H., who worked with K.F., was a guest at the cottage at the time. She testified that M.M. was upset following the mouse incident and that K.F. had invited M.M. to sleep in the master bedroom with her and the appellant, or in their bed. A.H. said that M.M. went into the master bedroom. She did not recall seeing M.M. the next day until everyone was up and about.

27The testimony of M.M. and A.H. was contradicted by two other guests at the cottage, as well as the appellant.

28V.B., who also worked with K.F., testified that she saw the appellant and K.F. come out of their bedroom following the mouse incident, but did not hear her offer to let M.M. sleep in the master bedroom. Nor did she see M.M. go into their bedroom. V.B. said that M.M. slept on the couch in the living room and was sleeping on the couch when she awoke the next morning.[1]

29D.M., who worked for the appellant and K.F. as a nanny, testified that she was sleeping on the floor alongside M.M. when the mouse ran over them. She said that she did not hear K.F. offer to let M.M. sleep in her bed with the appellant, nor did she see M.M. go into the master bedroom. She testified that she saw M.M. sleeping on the couch the next morning as she got breakfast for the appellant's children.

(4) The Appellant

30The appellant categorically denied that any sexual acts had taken place with either complainant.

31He testified that K.F. discussed sexuality with F.M. but denied that he participated in the discussions. He denied that he gave F.M. thong underwear and that he had ever gone skinny-dipping at the cottage, and with F.M. in particular. He testified that the area in question was covered in sharp zebra mussels that made it unsuitable for swimming.

32In answer to the question whether there was an intercom system in the basement of his home, the appellant testified "not that I recall". The appellant acknowledged that he met with one of the complainants in Holland while on a business trip but denied that either complainant told him she could ruin his life.

33The appellant testified he agreed to drive M.M. to New York so that she could see her sister F.M. after M.M. missed her return flight to the Netherlands.

34As to the mouse incident, the appellant testified that K.F. did not suggest that M.M. sleep in their bed and that she did not do so. His double bed at the cottage would have been very crowded with three people in it. The appellant testified that M.M. was asleep on the couch the next morning when he awoke.

The Trial Judge's Decision

35Credibility was the central issue at trial. The trial judge acknowledged the need to apply the approach set out by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742. She emphasized that she was not simply choosing between evidence given by the other witnesses and the appellant's testimony, and that the onus was on the Crown to establish guilt beyond a reasonable doubt. She noted that acceptance of compelling evidence of a complainant may provide a reasonable basis for rejecting an accused's denial of allegations: R. v. J.J.R.D., 215 C.C.C. (3d) 252, leave to appeal refused, [2007] S.C.C.A. No. 69.

36The trial judge dealt first with the mouse incident.

37She found that the guests at the cottage, A.H., V.B., and D.M., were all honestly attempting to tell the truth, and all were credible. The trial judge described K.F. as an "obvious 'missing' witness", as she could confirm or deny whether M.M. had spent the night in her bed, and said the decision not to call her was a factor to be considered.

38The trial judge accepted the evidence of A.H. and M.M. that K.F. invited M.M. to sleep in the appellant's bedroom following the mouse incident, and that M.M. and K.F. entered the bedroom together. She concluded that this finding neither compromised nor enhanced M.M.'s credibility on the exploitation allegations.

39The trial judge recognized the need to consider the exploitation allegations separately. She acknowledged that the complainants had discussed their respective experiences with the appellant with each other, and it was possible that this may have affected the reliability of their testimony.

40The trial judge discussed the appellant's evidence in detail. She noted his categorical denial of the allegations and his assistance in producing records that helped establish the relevant timelines during the complainants' visits. She acknowledged that the appellant would have had to establish a relationship of trust with the complainants within a relatively short time in order to engage them in the sexual activity alleged.

41However, the trial judge stated that she had difficulty with the appellant's testimony in several respects. She described the appellant as "frequently confrontational … and on occasion evasive". She found that his response to cross-examination was disproportional, given that the Crown's questions were posed with courtesy and respect.

42The trial judge found that the appellant exaggerated the extent to which the nanny, D.M., had stayed overnight during the summers of 1997 and 2001 in an attempt to minimize the opportunity he would have had to commit the offences alleged.

43The trial judge found that the appellant's testimony that he did "not believe" the intercom system went throughout the house was contradicted by D.M., and was an attempt to discredit F.M.'s testimony that the appellant had summoned her to the basement using the intercom system.

44The trial judge acknowledged the frailties in F.M.'s testimony, including its vagueness. She considered that it was understandable given the passage of time, but found that it did impact the reliability of her testimony. She noted, however, that F.M.'s credibility was enhanced by her refusal to "embroider" her account, as well as her insistence that the appellant had not forced her to do anything and that she had initiated much of the sexual contact.

45The trial judge acknowledged the risk the appellant ran in bringing the complainants together in New York, but considered that it would have been a risk to the appellant's career and friendship with J.M. had he refused to make the trip. She noted that F.M. did not do all that she could have to dissuade M.M. from coming to Canada to stay with the appellant, but considered that she was reluctant to reveal what had occurred between her and the appellant, given M.M.'s determination to make the trip. The trial judge rejected as speculative the possibility that F.M. and M.M. had influenced each other's memories.

46The trial judge accepted F.M.'s testimony as to the sexual acts she described relating to counts 1 (fellatio) and 2 (cunnilingus) of the indictment and rejected the appellant's evidence where it conflicted. She did not believe the appellant's evidence that there was no sexual contact between him and F.M., and found that his evidence did not raise a reasonable doubt.

47The trial judge similarly reviewed the frailties in M.M.'s evidence, including vagueness at points, which affected its reliability. As with F.M., M.M.'s credibility was enhanced by her refusal to embellish her account, despite being invited to do so by defence counsel. Concerning the suggestion that M.M.'s memory had been influenced by F.M., the trial judge noted that the sexual acts she alleged were different from those alleged by F.M., and involved the appellant French kissing her and licking her anus.

48The trial judge accepted M.M.'s testimony as to the sexual acts alleged in count 3 (touching with hands) and count 4 (touching with mouth), and rejected the appellant's evidence where it conflicted. She did not believe the appellant's evidence that there was no sexual contact between him and M.M. and found that his evidence did not raise a reasonable doubt.

Issues on Appeal

49The appellant submits that the trial judge erred:

1. in dealing with the evidence concerning the mouse incident;
2. in rejecting the appellant's testimony based on misapprehensions of the appellant's evidence; and
3. in further misapprehending material evidence; and
4. in applying different standards of scrutiny to Crown and defence evidence.

50The appellant brings a fresh evidence application concerning the mouse incident. I deal with each of these issues in turn.

(1) The Mouse Incident

The Fresh Evidence Application

51The appellant sought leave to have V.B.'s evidence from the first trial admitted as fresh evidence. V.B.'s testimony from the second trial was not transcribed because it was not recorded, presumably the result of a mistake or malfunction. However, V.B.'s testimony from the second trial was summarized in the trial judge's decision.

52I would reject the fresh evidence application.

53The test for the admission of fresh evidence from Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775 is well known. Fresh evidence:

1. should generally not be admitted if, by due diligence, it could have been adduced at trial;
2. must be relevant, in that it bears upon a decisive or potentially decisive issue in the trial;
3. must be credible, in the sense that it is reasonably capable of belief; and
4. must be such that if believed, and when taken with the other evidence at trial, it could reasonably be expected to have affected the result.

54The Crown concedes that the first and third Palmer requirements are met, but submits that the evidence is not relevant and could not affect the result in this case. I agree. The appellant did not suggest that the trial judge's summary of V.B.'s evidence was in any way defective. On the contrary, counsel for the appellant acknowledged at the hearing that the fresh evidence was helpful, rather than critical, and that the trial judge's summary of V.B.'s evidence did not conflict with her testimony from the first trial. The transcript was simply more complete.

The Alleged Morin Error

55In his factum, the appellant submits that the trial judge erred in requiring the defence to prove that the mouse incident was "demonstrably false" in order to challenge the complainant's credibility. Once the evidence concerning the mouse incident was admitted, it was part of the evidence for all purposes and should have been considered in determining whether there was reasonable doubt on the exploitation charges before the court. Instead, the trial judge applied the reasonable doubt test to individual pieces of evidence, rather than the evidence as a whole. At the hearing of the appeal, counsel for the appellant described this as a "classic Morin error": see R. v. Morin, [1992] 3 S.C.R. 286; and R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 31.

56I would reject this submission.

57Although the trial judge erred in restricting her consideration of the mouse incident evidence by applying the demonstrably false standard, the error was harmless. Because the trial judge accepted M.M. and A.H.'s evidence that M.M. was invited to sleep in the appellant's bedroom, the mouse incident evidence could only have positively affected M.M.'s credibility while undermining the appellant's. Thus, the separate consideration of the mouse incident did not harm the appellant and may have worked to his advantage.

i. The Collateral Fact Rule

58The collateral fact rule prohibits calling evidence solely to contradict a witness on a collateral fact. The rule does not impact the scope of cross-examination, but rather limits what contradictory evidence can be called to refute a witness's answer. The rule seeks to preserve trial efficiency and avoid confusion and distraction by preventing the litigation of issues that have only marginal relevance. See generally, David Watt, Watt's Manual of Criminal Evidence, (Toronto: Thompson Reuters Canada, 2016), at p. 316.

59The mouse incident involved collateral facts, as the rule is traditionally understood. Whether the appellant's sexual encounter with M.M. at the cottage occurred was neither material nor relevant to the material facts in issue concerning the sexual exploitation charged in the indictment. It was relevant only to M.M.'s credibility. Thus, although defence counsel could cross-examine M.M. about the mouse incident, in the normal course the collateral fact rule precluded the calling of rebuttal evidence to contradict her version of events.

60Nevertheless, in the circumstances of this case, the trial judge did not err in admitting the rebuttal evidence. The collateral fact rule is not absolute. As the Supreme Court recognized in R. v. R.(D.), [1996] 2 S.C.R. 291, evidence that undermines a witness's credibility may escape the exclusionary reach of the collateral fact rule if credibility is central to the case against an accused.

61The three accused in R.(D.) were charged with sexually assaulting D.'s three young children. They sought to undermine the complainants' credibility by cross-examining their therapist on her interview techniques to prove that the children had been coached or manipulated. The majority of the Supreme Court held, at p. 313, that the accused was entitled to contradict the complainants:

The credibility of the children was at the heart of the case against the appellants…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.

62The sexual touching in this case was alleged by the same complainant against the same accused during the same timeframe as the exploitation counts in the indictment, albeit that they occurred at a different location – the family cottage rather than the family home. If the alleged touching did not occur, M.M.'s credibility and reliability – central to the case – would be compromised significantly. In these circumstances, it was open to the trial judge to conclude that the probative value of the evidence outweighed its prejudicial effect and that rebuttal evidence should be permitted.

63This court has twice refused to permit an accused to cross-examine a complainant on prior sexual assault allegations and then call the alleged perpetrators to contradict the complainant, on the basis that the evidence would offend the collateral fact rule: R. v. Riley (1992), 11 O.R. (3d) 151, leave to appeal refused, [1993] 2 S.C.R. x; and R. v. B.(A.R.) (1998), 41 O.R. (3d) 361, aff'd 2000 SCC 30, [2000] 1 S.C.R. 781.

64However, the concerns underpinning the decisions in Riley and B.(A.R.) do not arise in this case. The prior sexual assault allegations in those cases were made against third parties, and the court was rightly concerned about confusing the process by introducing a litany of marginally relevant issues for the trier of fact to decide. As the majority in B.(A.R.) noted, at p. 366:

[T]he tactic of the defence is directed to creating confusion by having the jury consider not one criminal case but four or five in the hope that by discrediting at least one of her allegations of sexual abuse, he can raise a reasonable doubt as to the Crown's case on the charges on which it elected to proceed.

In other words, the proposed evidence would cause the very mischief the collateral fact rule is supposed to prevent.

65The mouse incident evidence was not aimed at "creating confusion". It was limited to a specific sexual allegation made by one of the complainants against the accused. It did not unduly lengthen or complicate the proceedings, nor did it introduce a sideshow of ancillary issues that had to be resolved. Finally, M.M. was not unfairly surprised by the cross-examination – she had testified concerning the mouse incident at the appellant's first trial.

66In my view, the evidence was properly admitted.

ii. The Demonstrably False Standard

67If the trial judge had simply gone on to find that the evidence did not undermine M.M.'s credibility, there would be no basis for complaint. However, the trial judge stated: "I cannot find that the evidence given by [M.M.] in respect of the mouse incident to be demonstrably false".

68In my view, she erred in doing so.

69The language of demonstrable falsehood flows from this court's decision in Riley. In refusing to admit evidence concerning sexual assault allegations by the complainant against a third party, the court stated, at p. 154:

The only legal basis of which we are aware that would justify the cross-examination of this complainant along the lines suggested would be in order to lay the foundation for a pattern of fabrication by the complainant of similar allegations of sexual assault against other men. This should not be encouraged unless the defence is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false.

70Riley does not establish a higher evidentiary threshold ­­­– demonstrable falsehood – that must be met before evidence rebutting a prior sexual assault allegation may be considered. Rather, Riley limits the scope of cross-examination on a prior allegation. Properly understood, this passage in Riley is no more than an iteration of the basic evidentiary principle that only relevant evidence is admissible: see e.g. R. v. Cloutier, [1979] 2 S.C.R. 709, at pp. 730-31. If the defence is unable to establish that a complainant has recanted a prior allegation or that it is demonstrably false, the fact the allegation was made loses its relevance: see R. v. M.T., 2012 ONCA 511, at paras. 45-50.

71Thus, once the trial judge decided to allow cross-examination and to admit contradictory evidence on the mouse incident, the appellant did not have to establish that the allegation was demonstrably false before it could be considered.

72However, the trial judge's error was harmless.

73Once the trial judge found that M.M. was invited to sleep in the appellant's bedroom, the mouse incident could only undermine the appellant's credibility and/or reliability and bolster M.M.'s credibility and/or reliability on the sexual exploitation allegations that were before the court. In other words, the evidence could only have hurt the appellant's case. As a result, the trial judge's decision not to use the mouse incident in making her credibility findings – the so-called "classic Morin error" – did not prejudice the appellant. If anything, the error enured to his benefit.

The Failure to Call K.F. as a Witness

74The appellant submits that the trial judge erred by drawing an adverse inference from the failure of the defence to call K.F. as a witness.

75I would reject this submission.

76It would have been improper to draw an inference of guilt from the failure of the appellant to call K.F., but that did not occur. Although the trial judge described K.F. as an "obvious 'missing' witness" and said that not calling her was a factor to be considered, she also stated that K.F. would have been a compellable witness for either or the Crown or the defence. In other words, her testimony could have confirmed or contradicted the appellant's evidence. The trial judge said nothing further about K.F., and there is no basis to suggest that she drew an erroneous inference against the appellant.

Failure to Explain the Rejection of the Testimony of D.M. and V.B.

77The appellant submits that the trial judge failed to explain her decision to reject the evidence of D.M. and V.B., and that she wrongly differentiated their evidence from that of A.H. on the basis that A.H. had a positive memory of what had occurred, whereas D.M. and V.B. had no recollection that K.F. had invited M.M. to sleep in the appellant's bedroom and had not seen her go toward the bedroom.

78I would reject this submission.

79Testimony that a particular event occurred is not necessarily better evidence than testimony that it did not. But in any event, the positive characterization of A.H.'s memory does little work in the context of the analysis as a whole. The trial judge accepted that A.H., D.M., and V.B. all were attempting to tell the truth and that each of them was credible. There were necessarily inconsistencies and shortcomings in their evidence years after the incident. However, the trial judge was entitled to accept the evidence of A.H. and she did so. A.H. had a memory of the incident that, as the Crown submitted, would be peculiar for her to make up or imagine. Her memory coincided with M.M.'s evidence. Contrary to the appellant's submission, the trial judge did not err in stating that A.H. had no reason to give evidence favourable to M.M. A.H. testified that she had "nothing but love and respect" for the appellant. The trial judge's reasons on this point were relatively brief, but they are not inadequate.

(2) Misapprehensions of the Evidence in Rejecting the Appellant's Testimony

80The appellant submits that the trial judge misapprehended the evidence in numerous respects in the course of rejecting his testimony. This includes questions about:

1. the appellant's accounting records;
2. the reason for M.M. visiting his home;
3. whether he treated F.M. and M.M. like family;
4. the start date of the nanny and the departure of the au pair;
5. the purchase of a bicycle for F.M.;
6. how often D.M. slept over;
7. the completeness of the appellant's credit card records;
8. why the appellant retained receipts relating to the visit of M.M.; and
9. whether an intercom system operated throughout the house.

81In my view there is no merit to this submission. The alleged misapprehensions can be dealt with briefly.

82The first three alleged misapprehensions invite the court to parse the transcript and to characterize the exchanges differently than the trial judge. This is not the proper function of an appellate court. The trial judge had the advantage of hearing the relevant testimony and observing the appellant's demeanour. Her findings are entitled to deference, and there is no basis for this court to interfere with them.

83Alleged misapprehensions 4, 5, and 6 concern issues going to the appellant's opportunity to commit the offences. The trial judge found that the appellant's answers were inaccurate and contradicted by other evidence that she was entitled to accept. In these circumstances, it was open to the trial judge to find that the appellant had attempted to minimize his opportunity to commit the offences.

84Alleged misapprehension 7 relates to the appellant's credit card records. Although the appellant testified that he had included all of the records from the relevant period, the trial judge stated that a review of the records showed that they did not cover the entire period F.M. was in Canada. The Crown properly concedes that it would have been better if the contradiction had been put to the appellant, but the matter was insignificant in the context of the reasons as a whole. Alleged misapprehension 8, which concerns whether the appellant claimed or would not have claimed business expenses related to M.M.'s visit, is inconsequential.

85Alleged misrepresentation 9 concerns the intercom in the appellant's home. The appellant testified that the intercom in the house operated between the kitchen and front door. When asked whether there was an intercom between the basement office and any other room in the house, the appellant stated: "No, sir, not that I recall." Asked whether there was an intercom anywhere else in the house, the appellant answered: "I don't believe so."

86In contrast, D.M. testified that the intercom went through the whole house. She stated that it played music during the day and allowed users to speak from one room to another. In cross-examination, she acknowledged that she did not think it went to the basement but was not sure, because she did not spend time in the basement. She did remember it being on the second floor of the house, and that it was right outside the appellant's bedroom.

87The Crown describes this as an instance of the appellant being caught in a lie. The trial judge did not put it this way, but she did find that the appellant's testimony, that he "did not believe" the intercom went throughout the house, was an attempt to discredit F.M.'s testimony. This finding was open to the trial judge and there is no basis to impugn it.

88In summary, the trial judge did not misapprehend the appellant's evidence in any material way. The findings she made were open to her on the record.

(3) Further Misapprehensions of the Evidence

89The appellant submits that the trial judge misapprehended the evidence concerning the state of the area at the family cottage where F.M. testified that she skinny dipped with the appellant, as well as the evidence concerning the appellant's trip to New York State with M.M.

Skinny-Dipping

90The appellant testified that the area in which the skinny-dipping was alleged to have occurred was rocky and full of sharp zebra mussels, and as a result was unsuitable for swimming. He produced a photograph of the beach that showed a group of children, including F.M., wearing shoes. The appellant submits that the trial judge erred in drawing an adverse inference against the appellant for failing to call further evidence from many other potential witnesses on the conditions, and overlooked the photographic evidence. The appellant asserts that judicial notice can be taken that the submerged rocks were likely to be covered by zebra mussels.

91I would reject this submission.

92There was no direct evidence confirming the appellant's testimony and the appellant did not raise the matter with F.M. when she testified. Further, although a photograph provided some circumstantial evidence that could corroborate the appellant's testimony, the trial judge noted that none of the photographs showed the conditions of the water to be unusual. Finally, this was not an appropriate case for taking judicial notice; the swimming conditions at the appellant's cottage are neither notorious nor capable of immediate and accurate demonstration by reference to sources of indisputable authority.

The Trip to New York State

93The appellant argues that he would not likely have taken M.M. to see F.M. and allowed the two sisters to spend time alone if he had done what either or both of them alleged. The appellant notes that the trial judge acknowledged that the appellant took a risk in bringing the complainants together, but submits that she wrongly rejected the defence argument by speculating about the risk the appellant would have run with the girls' father, J.M., if he had refused to make the trip.

94There is no merit to this submission.

95The trial judge's finding was supported by evidence about the appellant's friendship with J.M. and the importance of maintaining his business relationship with him. There was risk either way, and in these circumstances the trial judge made a finding that was open to her.

(4) Different Standards of Scrutiny

96Finally, the appellant submits that the trial judge applied different standards of scrutiny for assessing the testimony of the appellant and the complainants.

97This ground of appeal is often raised, but seldom established. That is so because, as Laskin J.A. noted in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39"credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations." In order to succeed, the appellant must be able to show something in the reasons or the record that demonstrate that different standards were applied in assessing the evidence: R. v. J.H. (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

98The appellant submits that the trial judge was "unfairly critical" of the appellant's evidence; that she "did not cut the Appellant any slack because of the passage of time"; and that she was "far more generous and understanding" when it came to assessing the complainants' testimony. The appellant describes the trial judge's treatment of the shortcomings of the complainants' evidence as using "eerily similar" language.

99There is no merit to this submission.

100The trial judge was alive to the difficulties in the case. The passage of time made it difficult for the complainants to be precise about the events they were describing and difficult for the appellant to defend against their complaints. But when the record is viewed as a whole, it simply cannot be said that the trial judge did not approach the evidence in an evenhanded manner. The appellant's problem is not with the way in which his evidence was scrutinized; it is with the fact that the trial judge did not believe his evidence.

101The trial judge was aware of the possibility of collusion by the complainants. She noted key differences in their accounts: F.M. said that the appellant had never kissed her, while M.M. said that he did kiss her; and M.M. said that the appellant licked her anus while F.M. made no such claim. The appellant's description of the language chosen by the judge in discussing the evidence of the complainants as "eerily similar" is, in my view, unwarranted.

102The weakness of the uneven scrutiny ground of appeal in this case is matched by the baldness of its assertion. The appellant groups several defence arguments, including the unlikelihood that the appellant would act so recklessly with the daughters of his friend; his limited opportunity to have committed the offences; the presence of his wife, nanny, friends and his own children; and the appellant's action in taking M.M. to New York to see F.M., and states simply that they were "dismissed in a manner that suggested that the trial judge was applying different standards of scrutiny". This does not begin to approach the burden required to establish an uneven scrutiny argument. Nor, for the reasons outlined above, can it be said that the trial judge applied different standards of scrutiny in rejecting the evidence of D.M. and V.B. concerning the mouse incident. It is simply the case that the trial judge preferred the evidence of M.M. and A.H., and she was entitled to do so.

Conclusion

103Credibility was central to this case. At the end of the day, the trial judge did not believe the appellant; believed the complainants; and found that the guilt of the appellant was established beyond a reasonable doubt. There is no basis to impugn her decision.

104I would dismiss the application to admit the fresh evidence and dismiss the appeal.

Released: June 12, 2017

Grant Huscroft J.A.

I agree. K. Feldman J.A.

I agree. David Watt J.A.

1V.B.'s testimony was not transcribed at the second trial. This account is taken from the trial judge's summary. The appellant's application to bring fresh evidence – the transcript of V.B.'s testimony from the first trial – is addressed below.