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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
Panel: Gillese, Huscroft and Trotter JJ.A.
Between
Her Majesty the Queen Respondent
and
R.A. Appellant
Counsel:
- Howard L. Krongold, for the appellant
- Rachel Young, for the respondent
Heard: May 3, 2017
On appeal from: The conviction entered on December 17, 2015 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting without a jury, with reasons reported at 2015 ONSC 7494.
OVERVIEW
1The appellant was convicted of sexual interference, invitation to sexual touching, and sexual assault against a minor pursuant to ss. 151, 152, and 271 of the Criminal Code, R.S.C. 1985, c. C-46, respectively. The trial judge stayed the sexual assault and invitation to sexual touching counts pursuant to Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The appellant was sentenced to 20 months' imprisonment followed by 2 years' probation for sexual interference. He appeals his conviction only.
2The offences were committed against the complainant, the daughter of D.D., when she was between the ages of three and five-years old. The appellant was approximately 40 years old when he committed these offences. He was in a conjugal relationship with the complainant's mother, D.D., and had moved into her apartment. The appellant often looked after the complainant while D.D. was at work. The offences involved the appellant having the complainant masturbate his penis until he ejaculated.
3The appellant testified at trial and categorically denied the allegations.
4The trial judge found that the appellant "testified in a straightforward manner, that he was not evasive and did not exaggerate, embellish or colour his evidence", and that he "withstood cross-examination without a blemish." However, the trial judge accepted the complainant's evidence in its entirety and found the appellant guilty beyond a reasonable doubt.
5The appellant raises two grounds of appeal. First, he submits that the trial judge failed to resolve a critical inconsistency in the complainant's evidence and failed to explain why he accepted the complainant's evidence and rejected the appellant's. This ground was the focus of the appellant's submissions during oral argument. Second, the appellant submits that the trial judge failed to consider innocent explanations for the complainant's knowledge of a penis and sexual acts in determining whether a reasonable doubt arose.
6I would dismiss the appeal for the reasons that follow.
THE EVIDENCE AT TRIAL
7The Crown tendered two video statements and called two witnesses: the complainant and her mother, D.D. The first video statement was recorded by D.D. on her cell phone at home shortly after the complainant first disclosed the allegations against the appellant to her. The second video statement was an interview recorded by the police several days later. Both video statements were admitted on consent under s. 715.1 of the Criminal Code. The complainant adopted and affirmed the truth of her video statements at trial.
8In the statement recorded by D.D., the complainant explained that she "shook [the appellant's] bird, then white stuff came out." The complainant said that she did not take off her pants, but that the appellant took off his pants and underpants and told her to shake his "bird". She demonstrated by holding D.D.'s index and middle fingers and shaking them. The complainant said that the appellant made her do this three times. The video also shows the complainant using a bubble blowing wand and a toy unicorn to demonstrate to D.D. what the appellant made her do. She also used a white stuffed poodle to represent the "white stuff" coming out of the bubble wand.
9The complainant made similar allegations in the video statement recorded by the police. She used a stuffed bear to represent the appellant and a pen to represent his "bird". She shook the police officer's finger to demonstrate how she shook the appellant's "bird". She said that "white stuff came out" and again said that this happened three times. She said that she remained clothed and that the appellant did not touch her.
10In her testimony at trial, the complainant described the appellant's "bird" as "white …just like a tree something that has a – like a mushroom stem. … like a mushroom stem and then it had like a puffy thing around it." In response to a question from the trial judge, she said that there was a "little triangle" at the top of the "stem" with a hole. The complainant also drew a picture of the appellant's penis ejaculating.
11The complainant testified that the appellant told her to come to D.D.'s room and that he was on the bed while she stood on the floor. The complainant testified that "white stuff" came from the appellant's "bird" that looked like "milk or cream" and that the appellant pulled his pants up after the white stuff came out. The complainant stated that she washed her hands in the kitchen because the white stuff was all over them. She described the temperature of the white stuff as "cold".
12The complainant testified that she had never seen the appellant and D.D. "wrestling" on the bed with their clothes off. She did not think she had seen a "bird" on television or in a movie, but in cross-examination she testified that she thought she had seen a "bird" in a movie she watched at home. She stated that the "bird" in the movie did not look like the appellant's, that no one shook it, and that no "white stuff" came out of it. The complainant testified, further, that she watched the movie "Seed of Chucky" with D.D. and the appellant during one of the regular movie nights they had. In that movie, a doll is depicted masturbating (without a penis being shown) and holding a cup of white fluid. Another doll is seen holding a turkey baster with white fluid in it.
13In re-examination, the complainant testified that she was not allowed to watch any parts of movies in which people were naked and that D.D. would put a pillow over her or cover her eyes so she could not see the television.
14D.D. testified that the complainant and the appellant "were like best friends." She confirmed that the complainant had seen the Seed of Chucky movie and some horror movies, but said that they did not show male anatomy. D.D. stated that she did not let the complainant watch nudity in movies and would cover her eyes with a pillow or her hands.
15D.D. testified that the complainant entered her bedroom on one occasion when she and the appellant were naked and having sex. The appellant was on top of her but they covered up quickly with a blanket and the complainant did not really see anything. She did not know how long the complainant was in her bedroom before she observed her, but said that she remained for three to five seconds. D.D. testified that the appellant's penis was not exposed.
16The appellant testified and categorically denied all the allegations.
17The appellant testified that he had a great relationship with the complainant. He confirmed that they watched the Seed of Chucky movie and some other horror movies. He said that D.D. covered the complainant's eyes during nude scenes in some cases, but there were times that she did not.
18The appellant testified that the complainant entered the bedroom he shared with D.D. on at least three occasions. On the first occasion, the complainant observed the appellant and D.D. naked and having sex in the "doggie-style" position for an unknown period of time. He believed that she saw his erect penis for "maybe a second" on this occasion. On the second occasion, the complainant entered their bedroom and walked straight to the bed. The appellant testified that he and D.D. were completely covered and the complainant had no opportunity to see his penis. On the third occasion, the complainant walked into the bedroom while they were having sex, with D.D. on her back and the appellant on top of her. He could not recall whether they were covered at the time.
19The appellant also testified that two pornography videos were kept in D.D.'s CD rack behind other videos, but that he did not think the complainant had ever seen them.
(1) The Inconsistency
20The inconsistency arises out of a hearsay statement the complainant made to D.D., which D.D. testified prompted her to make the video recording of the complainant's allegations on her cell phone.
21D.D. testified that the complainant disclosed the sexual abuse allegations against the appellant to her spontaneously. The complainant said that she had seen the appellant's "bird" and that he had chased her around the apartment and tried to put it in her mouth (the "oral sex allegation"). D.D. testified that she began video recording her daughter on her cellphone after this initial disclosure.
22The complainant did not repeat the oral sex allegation in her mother's cell phone recording, the interview she gave to the police, or her testimony. On the contrary, in cross-examination she testified that the appellant never tried to put his "bird" in her mouth and that she never told her mother that he had tried to do so. The complainant gave the following evidence:
Q: Okay and [the appellant] never chased you around the house with his bird?
A: No.
Q: No. Okay and he never – you never tried to put your bird – his bird in your mouth, did he?
A: No.
Q: And you never told your mom that he tried to put his bird in your mouth?
A: No.
Q: Okay.
A: That wasn't even true.
Q: Cause that's just not true, right?
A: Right.
23The appellant also specifically denied the oral sex allegation:
Q: She – you heard her say to her mother, just – that you chased her around the house and tried to stick your penis in her mouth. Your bird in her mouth, you heard her say that?
A: I did.
Q: Did that ever happen?
A: Absolutely not.
(2) The Hearsay Application
24D.D.'s testimony proceeded as a blended voir dire. The Crown adduced three hearsay statements from D.D., and argument on their admissibility was reserved to the end of the Crown's case.
25The first involved the oral sex allegation. The oral sex allegation was part of a larger statement that included a description of the appellant's penis – in particular, a blue vein that ran up his "bird" – and description of the "white stuff" as warm, contrary to the complainant's testimony that it was cold.
26The other two hearsay statements were made by the complainant to D.D. the day after she first disclosed to D.D. what had happened.
27In the first of these statements, the complainant described the appellant's "bird". She said that it was smaller than her father's and looked more like the "bird" of her four year-old cousin. The complainant told D.D. that she had seen her father's penis when she walked in on him in the bathroom, before he covered himself with a towel. In the second, the complainant said that "little mouse drops" had come from the appellant's "bird", rather than the large volume she had indicated in the video using a stuffed animal.
28Crown counsel took the position that the hearsay statements were essentially corroborative of the rest of the evidence. He acknowledged that there were inconsistencies but submitted that the statements were detailed, particular, and an unprompted disclosure to D.D. of things that the complainant would otherwise not necessarily know.
29Defence counsel focused on the admission of the statement made prior to the making of the cell phone video, submitting that it was unreliable because, among other things, D.D. testified that she did not recall everything that the complainant said to her prior to making the video. Defence counsel also argued that the statement was unnecessary because the complainant provided evidence through her testimony and video evidence had been admitted.
30The parties' submissions did not focus on the oral sex allegation. In his reply submissions, Crown counsel submitted that some or all of the hearsay statement involving the oral sex allegation was admissible "for the fact that it was said or for context, background, and narrative in terms of the way the disclosures came out. I mean, there – there's different possibilities in terms of Your Honour's ultimate determination as to the use and admissibility of this evidence."
The Trial Judge's Reasons
(1) Hearsay Ruling
31The trial judge found that D.D. did not begin her cell phone recording until the complainant had made certain utterances.
32He recognized that the hearsay statements made by the complainant to D.D. were presumptively inadmissible. However, in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, the Supreme Court held that hearsay statements that fall outside recognized exceptions may nevertheless be admissible if they meet the threshold criteria of reliability and reasonable necessity. The trial judge also relied on this court's decision in Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641 at 657 (C.A.), in which Doherty J.A. explained:
[If a] tribunal is satisfied that despite the viva voce evidence of the child, it is still 'reasonably necessary' to admit the out-of-court statement in order to obtain an accurate and frank rendition of the child's version of the relevant events, then the necessity criterion set down in Khan is satisfied. [Citation omitted.]
33The trial judge's analysis of the admissibility issue is set out in this brief passage:
The unrecorded statements of [the complainant] to her mother are all part of a spontaneous and unsolicited free flow of thought by her, that is to say the child. The statement she made the following day was again initiated entirely by her and intended to clarify a certain matter, namely the amount of "white stuff" which she said she had actually encountered during the represented episodes with the accused and her size comparison of the penis of the accused. Nothing she said in these statements at issue raised with me a concern of reliability.
Her age and the sensitive nature of the evidence in my view meet the test of reasonable necessity. I find that the probative value of this evidence outweighs any prejudice to the accused. On a threshold basis, these statements will be admitted.
(2) Reasons for Conviction
34The trial judge reminded himself that his verdict was not to be based on a choice between the evidence of the accused and the evidence of the Crown. He also acknowledged the need to be guided by the three-part test set out in R. v W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. He also reminded himself not to apply adult tests for credibility to the evidence of the child complainant, in accordance with R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 and R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122.
35The trial judge neither explicitly accepted nor rejected the appellant's testimony. At para. 22 of his reasons he stated only that he accepted defence counsel's submission that the appellant "testified in a straightforward manner, that he was not evasive and did not exaggerate, embellish or colour his evidence", and that he "withstood cross-examination without a blemish". The trial judge noted that there was no corroboration of the allegations, but he recognized that none was required.
36The trial judge acknowledged that the complainant gave some contradictory evidence. He referred specifically to the discrepancy in her description of the "white stuff", which she described as being both warm and cold. The trial judge also considered the complainant's conflicting evidence as to whether she had ever seen a "bird" on television or in a movie. He found that the evidence that she had seen the accused's penis while he was naked in bed with D.D. or while he was in the shower, and that her description of "white stuff" came from the imagination of a child having watched the movie "Seed of Chucky", did not rise above the level of a possibility.
37The trial judge found that the complainant's initial disclosure of the sexual abuse was unprompted and spontaneous. The complainant told D.D. that she had seen the appellants "bird" and that he had chased her around the apartment and tried to put it in her mouth. The trial judge found that this disclosure prompted D.D. to begin recording what the complainant was saying and demonstrating on her cell phone, albeit that the precise timing of when the cell phone recording began was unclear.
38The trial judge noted that the complainant gave a detailed description of the sexual abuse, demonstrating what had occurred using her stuffed toys. She said that she remained on the floor, fully clothed, while the appellant lay on the bed. She stated that he did not touch her. She described the ejaculation as "mouse drops" that she washed from her hands with soap. She demonstrated the act of male masturbation with hand gestures. She clarified to her mother that the volume of "white stuff" that came from the accused was less in volume than the stuffed poodle that she had used to demonstrate. She provided a detailed description of a penis.
39The trial judge found that these pieces of evidence were genuine and truthful and accepted the entirety of her evidence. He added that the complainant had enjoyed the appellant's company and got along with him like good friends. Given such a relationship, it was difficult to accept that the complainant would manufacture a story without substance.
40The trial judge concluded, at para. 28: "On the basis of the very particulars of the evidence [the complainant] gave as I just recounted and considering all of the evidence, including the denial by the accused, I am satisfied beyond a reasonable doubt the Crown has proved its case."
ANALYSIS
(1) The First Ground of Appeal
Did the trial judge fail to resolve a critical inconsistency and fail to explain why he accepted the complainant's evidence and rejected the appellant's?
41The appellant submits that the hearsay statement made prior to the video recording made by D.D. – that the appellant had tried to put his "bird" into the complainant's mouth and chased her around the apartment – was a very different allegation than the one the appellant was convicted of committing. The appellant characterizes this as a critical inconsistency that the trial judge neither acknowledged nor resolved when assessing the complainant's credibility. The appellant submits that the trial judge "does not appear to have harboured any doubt that this statement was made", and notes that the allegation that the appellant attempted to put his penis into the complainant's mouth was entirely unsubstantiated; it was denied at trial by the complainant as well as the appellant. In these circumstances, it was essential for the trial judge to determine "how one statement could bear the entire weight of the conviction while the other was, it appears, false".
42The Crown takes the position that the inconsistency was not significant in the context of the trial. The evidence did not come from the complainant herself; it came from the complainant's mother, D.D., and defence counsel did not cross-examine her on the statement. Moreover, the statement was never adopted by the complainant. On the contrary, in cross-examination she testified that she did not make the statement to D.D. and that the incident did not happen. The inconsistency was not mentioned by either counsel as a factual issue that had to be resolved, and it was not necessary for the trial judge to resolve it. The appellant's convictions all related to the masturbation incidents, not to attempted oral sex, and it is reasonable to infer that the trial judge did not find that attempted oral sex had occurred, and that the issue "did not have to be explicitly taken into account in assessing the complainant's credibility, because it was no longer in play after her cross-examination".
43The principles that govern this ground of appeal are not in doubt.
44First, the trial judge's credibility findings are owed significant deference on appeal. They should not be interfered with unless they "cannot be supported on any reasonable view of the evidence": R. v. P.(R.), 2012 SCC 22, [2012] 1 S.C.R. 746; and R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 7.
45Second, significant testimonial inconsistencies should be addressed because, as the Supreme Court noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21, the accused is entitled to know "why the trial judge is left with no reasonable doubt". However, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons: R. v. R.(C.), 2010 ONCA 176, 260 O.A.C. 52, at para. 48.
46Third, an appellate court should not interfere with a trial judge's findings of credibility if the core of the complainant's allegations against an appellant remain largely intact on a review of the entirety of the evidence: R. v. Roy, 2017 ONCA 30, at para. 14; R. v. Barua, 2014 ONCA 34, 315 O.A.C. 83, at paras. 7-8; and R. v. Marleau (2005), 2005 CanLII 8667 (ON CA), 197 O.A.C. 29 (C.A.), at para. 7.
47Applying these principles, I would reject this ground of appeal.
48A reading of the record as a whole demonstrates that the inconsistency was not a live issue at trial. Not only did the complainant never adopt the oral sex allegation attributed to her by D.D., she rejected it clearly when it was put to her. She testified that the appellant never chased her or attempted to put his "bird" in her mouth, and that she never told D.D. that he had done so. D.D. was not cross-examined on the statement.
49Neither the Crown nor defence counsel submitted that the oral sex allegation was an inconsistency that needed to be resolved by the trial judge. This is not surprising, as the oral sex allegation statement was unrelated to the allegations of masturbation that formed the basis for the charges against the appellant.
50At trial, defence counsel addressed the oral sex allegation only briefly in the course of his closing submissions as follows:
As well, and I appreciate children are young and their memories change, there are other discrepancies between what [the complainant] testified to in what she told her mother and I – I'm sure your honour has noted those inconsistencies about saying, "No, he never chased me. No, he never tried to stick it in my mouth" contrary to what she's alleged to have told her mother at the first disclosure …
51Plainly, the oral sex allegation inconsistency identified by defence counsel was simply one issue amongst others. It was not a significant inconsistency that had to be resolved by the trial judge in making his credibility findings. Defence counsel did not take the position that it was the sort of major inconsistency that appeal counsel now submits it to be.
52When the trial judge's reasons are read as a whole, it is reasonable to infer that although he accepted that the complainant made the statement to D.D., he did not find that attempted oral sex occurred. His reference to the oral sex allegation at the outset of his decision demonstrates that he used it as narrative of how the complainant's allegations against the appellant came to light and the spontaneous nature of her disclosure to D.D. He accepted that the complainant "spontaneously blurted out" the statement to her mother that last year she had "seen [the appellant's] bird, that he tried to put it in her mouth, and that he [then] chased her around the apartment."
53This was a credibility case, and at the end of the day the core of the complainant's allegations were unaffected by the inconsistency. They remained consistent throughout. The complainant provided graphic details as to how the assaults took place. The trial judge reviewed the evidence, cognizant of the shortcomings of the child complainant's evidence, and ultimately decided to accept her evidence in its entirety.
54The trial judge's analysis reflects a careful and sensitive approach to the evidence as a whole and I see no error that would allow this court to intervene.
55Although the trial judge's reasons are relatively brief, they are responsive to the live issues in the case and the parties' key arguments: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20. The trial judge properly instructed himself as to the law, and in particular the requirements set out in W.D. The appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant's evidence, but nor did he reject it simply because he accepted the complainant's evidence.
56The trial judge was entitled to reject the appellant's evidence "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence": R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 53. That is what occurred in this case.
(2) The Second Ground of Appeal
Did the trial judge fail to consider innocent explanations for the complainant's knowledge of a penis and sexual acts in determining whether a reasonable doubt arose?
57The appellant submits that there were alternative explanations for the complainant's knowledge of the appearance of a male penis and the act of masturbation. These included the evidence that she thought she saw a "bird" in a movie; that the white fluid in the Seed of Chucky movie looked like that which came from the appellant; D.D.'s evidence that the complainant saw the penises of her father and younger cousin and compared them to the appellant's; and the appellant's evidence that the complainant could have seen his erect penis when she walked in on him and D.D. having sex.
58The appellant argues that, in dismissing the alternative explanations for the complainant's knowledge, the trial judge in effect reversed the burden of proof. The appellant accepts that the trial judge properly characterized the alternative explanations as "possibilities", but submits that he wrongly disregarded them because they were not proven to be true.
59There is no merit to this ground of appeal.
60The Crown argued, based on the Supreme Court's decision in Khan, that the complainant's knowledge of sexual acts and her ability to demonstrate the act of masturbation – knowledge she could not be expected to have otherwise – was relevant to the credibility and reliability of her testimony.
61It was not incumbent on the appellant to explain how the complainant acquired the sexual knowledge she had, or to prove that the alternative explanations for her knowledge were true, and the trial judge did not suggest otherwise. He considered the alternative explanations proffered by the appellant for the complainant's knowledge of the appearance of a penis and the act of masturbation, and concluded that the evidence on those issues did "not rise above the level of a possibility". In other words, the evidence did not raise a reasonable doubt.
62The trial judge did not set out his findings on every aspect of the evidence in detail, but he was not required to. A mere possibility that alternative explanations are true does not raise a reasonable doubt. Reasonable doubt depends upon reasonable possibility, not conjecture: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 36-43.
CONCLUSION
63The appellant has shown no basis that would allow this court to intervene.
64I would dismiss the appeal.
Grant Huscroft J.A.
I agree E.E. Gillese J.A.
DISSENTING OPINION
65I have had the benefit of reading the carefully prepared reasons of my colleague, Huscroft J.A. I agree with how he would dispose of the second ground of appeal. However, I respectfully disagree with his conclusion on the first, concerning the complainant's prior inconsistent statement.
66I believe the inconsistency is significant. Given the trial judge's very positive findings about the appellant's presentation as a witness, his failure to address the complainant's inconsistent statement constitutes a reversible error that requires a new trial.
67My colleague has recounted the underlying facts comprehensively. I need not repeat them. However, I would characterize certain trial events somewhat differently.
68The inconsistent statement at issue was the complainant's very first disclosure of her allegations. But it was never repeated – not in the iPhone video; not in her other statements to D.D.; not to the police; and not at trial. In her trial testimony, the complainant denied that the appellant chased her around the apartment and tried to put his penis in her mouth. Moreover, she even denied making the statement to D.D.
69After the complainant testified, the Crown (not Ms. Young) applied to have this statement (and others) admitted for its truth, based on R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531. The appellant resisted the application. The trial judge admitted the evidence on this basis, finding threshold reliability had been established.
70On appeal, the Crown attempts to downplay the significance of the inconsistent statement. Ms. Young emphasizes that the evidence did not come from the complainant herself; instead, it arose during D.D.'s testimony. She also observes that the complainant never adopted this statement in cross-examination, and in fact denied that the incident happened. Consequently, the Crown submits that the inconsistency cannot "fairly be laid at the complainant's feet, particularly since it was not explored with her mother…in cross-examination." I disagree.
71There can be no doubt that the complainant's initial statement to D.D. was a prior inconsistent statement. It was proved through D.D. that, on an earlier occasion, the complainant said something different from her in-court testimony. Far from suggesting that the complainant did not make this statement, the Crown succeeded in having it admitted for its truth.
72The potential impact on credibility of such a statement is clear, even when the witness denies making it: see R. v. Mannion, 1986 CanLII 31 (SCC), [1986] 2 S.C.R. 272, at pp. 277-278. In R. v. M. (A.), 2014 ONCA 769, 123 O.R. (2d) 536, this court allowed an appeal from convictions for sexual offences. The appeal focused on the adequacy of the trial judge's reasons in light of frailties in the evidence, including prior inconsistent statements of the complainant. As the court said, at para. 12:
Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, (1995), [1994] S.C.C.A. No. 390 (S.C.C.). Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions. [Emphasis added.]
73The complainant's failure to adopt her previous statement, and her denial of having made it, did not mitigate its impeachment value, as the Crown seems to suggest. A witness need not admit to having made a previous statement before it can be used for impeachment purposes.
74Although the complainant did not adopt her previous statement, it nevertheless became admissible for its truth when the Crown succeeded on its Khan application. The Crown vouched for its reliability at that stage, and again during closing submissions. It cannot now retreat from this position because the statement turned out to have impeachment value as a prior inconsistent statement. This should have been obvious when the Khan application was made.
75Moreover, the Crown's criticism of defence counsel's (not Mr. Krongold) failure to explore the issue in his cross-examination of D.D. is misplaced. Defence counsel had D.D. confirm that the complainant repeated the statement "a couple of times." It was entirely appropriate for counsel to leave well enough alone and rely on the inconsistency; he was not obliged to assist in resolving it.
76I respectfully disagree with my colleague's conclusion at para. 48, above, that the inconsistency "was not a live issue at trial." The appellant testified about the statement. He acknowledged playfully chasing the complainant around the apartment "all the time", but denied trying to put his penis in her mouth. Moreover, defence counsel referred to this inconsistency in his closing submissions (see the excerpt in para. 50, above). While it may not have been defence counsel's primary focus, the issue was squarely in play.
77I accept that trial judges are not required to address every inconsistency that arises on the record. However, this leeway has limits. I return to M. (A.), in which the court addressed this issue, at para. 14:
A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.), at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. c. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.), at para. 31. [Emphasis added.]
78In R. v. H. (D.), 2016 ONCA 569, 338 C.C.C. (3d) 251, Feldman J.A. quoted part of the passage directly above and said, at para. 35:
As the Supreme Court stated in R. v. Dinardo, at paras. 26-27, the failure to articulate how credibility concerns are resolved, particularly in the face of significant inconsistencies in a complainant's testimony, may constitute reversible error, as an accused is entitled to know why the trial judge is left with no reasonable doubt.
See also R. v. A.N., 2017 ONCA 647, at para. 16.
79In his reasons, the trial judge said that the complainant "gave some contradictory evidence." However, he failed to specifically evaluate the prior inconsistent statement, one that he found provisionally reliable when admitting it on the basis of Khan.
80The trial judge placed great emphasis on the fact that, given the positive relationship that the complainant admitted to having with the appellant, it was unlikely that she would fabricate the allegations against him. However, he never explicitly rejected the appellant's evidence. I repeat the trial judge's general appraisal of the appellant's evidence:
I accept the submission of [defence counsel] that the accused testified in a straight forward manner, was not evasive and did not exaggerate, embellish or colour his evidence. He withstood cross-examination without a blemish. Essentially his position is that the incidents related by [the complainant] with which he is charged did not occur. There is no evidence to corroborate the allegation, but of course, none is required. [Emphasis added.]
81Because the complainant's inconsistent statement was so at odds with the rest of her evidence, it could not be ignored. After all, the statement was admitted for its truth. In these circumstances, and as a witness who "withstood cross-examination without a blemish", the appellant was entitled to know why the complainant's evidence was capable of establishing his guilt beyond a reasonable doubt.
82I would allow the appeal and order a new trial.
Released: September 14, 2017
G.T. Trotter J.A.
