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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
(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.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(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.
(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.
(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.
(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 OF APPEAL FOR ONTARIO
Hoy A.C.J.O., Paciocco and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
W.O.
Appellant
R. Craig Bottomley, for the appellant
Tanya Kranjc, for the respondent
Heard: March 12, 2020
On appeal from the convictions entered by Justice Stephen T. Bale of the Superior Court of Justice on September 29, 2017.
1The appellant was found guilty of sexual assault, incest, and sexual interference. The conviction for sexual assault was conditionally stayed, presumably based on the principle in Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant was sentenced to seven years’ imprisonment.
2The complainant is his daughter. She testified that the appellant sexually assaulted her multiple times – beginning with touching and progressing to intercourse – during her access visits with him every other weekend over approximately a 10-month period beginning in February 2012. In this period, she was twelve and thirteen years of age. She also testified that the sexual assaults occurred in the basement of her paternal grandmother’s house, at her father’s trailer, and on a trip to Niagara Falls.
3The appellant did not testify at trial. The principal issue at trial was the credibility of the complainant, who was seventeen years of age at the time of trial.
4In his closing submissions at trial, the appellant’s trial counsel indicated he would confine his submissions to “three major areas”: the disclosure first made at trial that sexual assault also occurred during the trip to Niagara Falls; the evidence of the complainant about scars on her chest arising from an assault; and an email that the complainant sent to the appellant dated May 4, 2013, which he argued raises a reasonable doubt about the complainant’s motivation. He also addressed what he characterized as a “minor point”, arising out of the evidence of the complainant and her mother that the appellant sent the complainant inappropriate text messages.
5In his reasons, the trial judge addressed the “three major areas” raised by the appellant’s trial counsel. Despite the inconsistencies in the complainant’s evidence, he found her to be credible and reliable and was satisfied beyond a reasonable doubt of the appellant’s guilt.
6The appellant argues that in addressing the “three major areas”, the trial judge over-extended or improperly relied on the principles from R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, and R. v. D.P., 2017 ONCA 263, leave to appeal refused, [2017] S.C.C.A. No. 261, and in light of this error, “side-stepped” the inconsistencies in that evidence and failed to provide sufficient reasons for how he resolved them.
7The appellant also argues that the trial judge failed to address both the fourth, “minor point” raised by the appellant’s trial counsel in his closing submissions and the defence argument that the complainant had a motive to fabricate to thwart the appellant’s custody proceeding. The appellant argues that the trial judge’s failure to do so renders his reasons insufficient.
8I reject these arguments.
9I begin by briefly setting out the law relevant to these two arguments. Guided by those legal principles, I then address each area of evidence raised by the appellant in turn.
A. LEGAL PRINCIPLES
(1) D.D. and D.P.
10In D.D., at para. 63, the Supreme Court made clear that the significance of a complainant’s failure to make a timely complaint must not be the subject of any presumptive inference based upon stereotypical assumptions about how persons, particularly children, react to sexual abuse.
11In D.P., the complainant failed to disclose all the assaults in his first interview with the police. The trial judge in D.P. referred to D.D. and concluded that the complainant’s explanation for his failure to disclose all the assaults in his first interview was “perfectly plausible”. This court, at para. 30, quoted his observation that:
The decision to disclose is a difficult one that can be very painful for victims. It cannot be surprising that it would take [the complainant] more than one occasion to shed a burden that had been weighing on him for years.
12This court found no error in the trial judge’s assessment of the complainant’s credibility. It rejected the argument that there is a fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. It concluded, at para. 31, that “[t]he comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case” (emphasis added).
(2) Insufficient reasons
13Inadequacy of reasons does not provide a free-standing right of appeal. Rather, an appellant who argues insufficiency of reasons must show not only a deficiency in the reasons, but that the deficiency caused prejudice to the exercise of his or her right of appeal in a criminal case.
14The question is whether the reasons provide the basis for meaningful appellate review of the correctness of the trial judge’s decision. Trial judges are not held to an abstract standard of perfection. In evaluating a trial judge’s reasons, appellate courts must consider the time constraints and general press of business in the criminal courts: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 33, 53 and 55.
15An appellate court must ask itself if the reasons, in their entire context, considered with the evidentiary record, the submissions of counsel and live issues at trial, explain the basis for the verdict. If so, the reasons are not deficient, regardless of any lack of detail or other shortcomings. A trial judge need not describe every consideration in assessing credibility or reconcile every frailty in the evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 55-56.
16In particular, where a case turns on credibility, the Supreme Court has emphasized that deference is in order and that intervention will be rare. There is no need to prove that the trial judge considered every piece of evidence, or every argument raised by counsel: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788: at paras. 26, 30. However, a failure to articulate how issues of credibility were resolved can constitute a reversible error. An accused is entitled to know “why the trial judge is left with no reasonable doubt”, and appellate courts have a responsibility to review the record to ensure that the findings of fact are reasonably available: R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 20-21. See also R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 9-15.
B. ANALYSIS
(1) Where the assaults occurred
17The complainant gave a statement to the police on September 16, 2013, after she first told her mother that she had been assaulted. In this statement, made to Detective Constable Dekoker, the following exchange occurred:
D/C Dekoker: …And these times, the sexual intercourse part, that was at the trailer?
Complainant: (nods head yes)
D/C Dekoker: Did it happen -
D/C Dekoker: Any other place besides the trailer?
Complainant: Most of it was at the trailer. I think it was the odd weekend when we ended up going to his mom’s house, that it happened there.
D/C Dekoker: Okay, so –
Complainant: But I’m pretty sure it was all at the trailer.
18This statement was video-recorded and was adopted as evidence by the complainant during her examination-in-chief at trial, pursuant to s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46.
19During the complainant’s cross-examination, the appellant’s trial counsel asked her about a trip to Niagara Falls with her father in 2012 during the 10-month period when the complainant said the assaults occurred. To this point, there had been no mention of a trip to Niagara Falls. In response, the complainant testified that sexual intercourse with her father had also occurred on the trip to Niagara Falls.
20The appellant’s trial counsel confronted her with why she did not tell Detective Dekoker about this in 2013:
Q. …you told the officer everything that happened. Right?
A. Yeah. I guess I left Niagara out. I didn’t think it was relevant.
Q. So, you just forgot about the trip to Marineland – or pardon me – the trip to Niagara Falls when you gave the statement to the police?
A. I guess so. I – I don’t – I don’t know.
21In his closing submissions, the appellant’s trial counsel argued that the timing of the complainant’s disclosure of the Niagara Falls sexual assault suggested that she invented it in cross-examination: if the appellant were continuing to sexually assault her, as she alleged, it would have made no sense that he did not also do so in Niagara Falls, when just the two of them were in a hotel room. Accordingly, she made up that he also sexually assaulted her in Niagara Falls so that her story would be consistent. Further, her lack of detail about the sexual assault in Niagara Falls showed that the “precision and quality of her memory [was not] sufficient to prove this case beyond a reasonable doubt”. Finally, the appellant’s trial counsel argued that her testimony about the assaults in Niagara Falls contradicted her 2013 police statement in which she indicated that all the assaults occurred at her grandmother’s house or in her father’s trailer, reproduced above.
22In his reasons, the trial judge reviewed defence counsel’s arguments, specifically noting the complainant’s comment in her 2013 police statement that she was “pretty sure it was all at the trailer”. The trial judge explained why he concluded that this did not affect the complainant’s credibility:
Considering the reasons why victims of sexual assault often delay the disclosure of the assaults, or disclose them in a piecemeal way, and the disclosure narrative referred to by Crown counsel, I am unable to draw an adverse inference from the fact that the complainant did not mention the Niagara Falls allegations during the police interview”: at p. 9. [Emphasis added.]
23I am not persuaded that the trial judge erroneously over-extended the principles articulated in D.D. and D.P., or that he provided insufficient reasons with respect to the complainant’s evidence about where the assaults occurred.
24In this case, it is clear from the exchanges between Crown counsel and the trial judge and the trial judge’s review of defence counsel’s argument in his reasons that the trial judge grappled with the inconsistency between the complainant’s statement to Detective Dekoker and her evidence at trial. He did not rely on D.D. and D.P. to avoid engaging with the inconsistency. In rejecting the appellant’s trial counsel’s submission that the complainant’s evidence was not sufficiently credible or reliable to prove the offences beyond a reasonable doubt, the trial judge considered the circumstances revealed by the evidence – in particular, the circumstances about the disclosure narrative, which was referred to by Crown counsel at trial.
25The evidence about the disclosure narrative included the following. The alleged sexual assaults commenced in February 2012, when the complainant was twelve years of age. The complainant’s evidence was that the appellant told her that she would be in big trouble if she told anyone and that she told no one about what had happened until ten months after the last incident.
26In September of 2013, at the start of ninth grade, the complainant’s boyfriend of almost three months kept pushing her, prying “because he – he knew something was really bothering me. So, I told him.” That was on a Monday. He pushed her all week to see Guidance at school, but she didn’t want to talk to a stranger about it. The boyfriend told his mother and, on the Friday, when the boyfriend’s mother came to the school to watch the boyfriend’s football practice, the boyfriend’s mother told the complainant that if the complainant did not tell her mother, she would do something about it. On Sunday, September 15, 2013, the complainant finally told her mother, who immediately took her to the police station.
27The complainant’s evidence about this sequence of disclosure was corroborated by the complainant’s boyfriend and mother.
28The complainant provided her statement to Detective Dekoker the following day, on September 16, 2013. A review of the video recording of that statement reveals how difficult it was for the complainant to discuss what had happened.
29In the victim impact statement dated March 10, 2015, which the complainant wrote when she was fifteen, and which she adopted as true during her cross-examination at trial, she described how she felt in giving her statement:
I couldn’t sleep that night, I was so scared. I had kept this hidden for two years now and had no idea how to explain to the cop what had happened. I was never good talking about personal things to anyone I was so worried that I wouldn’t be able to get anything out. Luckily the detective was very nice and despite my fears I managed to open up.
30In her closing submissions, the Crown highlighted what she described as the “reluctant and slow” disclosure by the complainant pointing to her incremental disclosure, first to her boyfriend, then her mother, not giving details, and her use of ambiguous language when speaking to the police. The Crown characterized the complainant’s addition of details and occurrences as “a continuation of the progression of increasing level of comfort in talking about it as she matured and as she talked about it.” Crown counsel at trial argued that this narrative of reluctant disclosure was consistent with an honest account and at odds with a motive to fabricate.
31The trial judge’s conclusion that the comments in D.D. applied in this case was based on the circumstances revealed by the evidence, as D.P. permits. I see no error in the trial judge’s assessment of the impact of the complainant’s incremental disclosure on the complainant’s credibility. Read as a whole, the trial judge’s reasons show that he did not “side-step” the inconsistency regarding the Niagara Falls trip. Rather, he grappled with it and resolved it in a way that was not favourable to the appellant. Further, his reasons demonstrate that he engaged with shortcomings in the complainant’s evidence, and adequately explain why he found her credible nonetheless. It is clear that his reasons for finding the complainant credible, considered in the context of the evidentiary record and the submissions at trial, permit appellate review
(2) The scars
32The second inconsistency that the appellant argues the trial judge failed to engage with as a result of an over-extension of the principles from D.D. and D.P. arises out of the complainant’s evidence about scars on her chest from an assault. In her victim impact statement dated March 10, 2015, written when she was fifteen years of age, the complainant reflected on the effect of the abuse on her. She wrote that “every time I changed my clothes, I saw the scars – the physical ones, the ones that always reminded me of what happened.” Later in the statement she says “I still have physical scars that upset me, but have learned to overlook them.” She explained during cross-examination at trial that the scars referred to in her victim impact statement were from “cuts on [her] boobs” from the appellant dragging his teeth across them. She testified during cross-examination that she wrote the victim impact statement herself and that everything in it was true. She also testified that, “you know, every time I looked in the mirror I remembered what had happened”.
33After receiving this statement, the police interviewed her a second time, on March 23, 2015. The complainant did not adopt her March 23, 2015 police statement during trial and it was not in evidence. The Crown objected to the appellant’s trial counsel’s cross-examination of the complainant about her March 23, 2015 statement, without having first played or recited the relevant portions, arguing that he was inaccurately paraphrasing her statement and risked unfairly confusing her. This led to the video of this statement being played for the trial judge, in the absence of the complainant, and defence counsel subsequently providing an unofficial transcription of “sound bites” from that interview to the trial judge. According to the transcript, the “sound bites” provided included that the complainant said during this police interview that she could probably see the scars because she knew where they were, but she didn’t know if anybody else would be able to tell. During her cross-examination at trial, some excerpts of this March 23, 2015 police statement were put to her, but this was not one of them.
34During her cross-examination, the complainant’s testimony on the issue of when the scars had faded was confused. She testified that:
- at the time of her March 10, 2015 victim impact statement, the scars were fading but were not completely gone and might have still been visible;
- when she wrote her March 10, 2015 victim impact statement, she was sure she still had scars;
- she told a police officer in her March 23, 2015 police statement that the scars were there for a year to a year and a half, and that she was telling the truth in that statement;
- at the time of her March 23, 2015 police statement, the scars were starting to fade; and
- the scars were not visible at the time of her March 23, 2015 police statement.
35When pressed on these points throughout her cross-examination, she repeated that she could not remember when the scars faded.
36The appellant’s trial counsel argued that the complainant lied in her victim impact statement: it was “ridiculous” that the appellant’s teeth could have caused scars and it did not make sense that any scars would still be visible up to a year and a half after the last assault occurred. Whether there was physical evidence of the assaults was an important issue and the lie detracted from her credibility on the issue of whether the assaults occurred.
37In his reasons, the trial judge wrote that “the reasons why many victims of sexual abuse delay in reporting the abuse apply also to the details of the abuse.” He found that there was nothing surprising about the way the disclosure of the marks unfolded in this case. What was important for the complainant was “how the marks made her feel when she saw herself in the mirror”. He rejected the assertion that it was ridiculous that the appellant’s teeth could have caused the marks. As to the length of time that the marks were present, the trial judge held that “her evidence was that she really was not sure, and she noted that she would be able to see the marks, even if they were not visible to others, because she had known where they were.”
38The trial judge’s reasons make clear that, despite the delayed disclosure, he accepted that the appellant’s teeth had left marks on the complainant’s chest. Essentially, relying on her victim impact statement, he accepted that when the complainant looked at herself in the mirror, she remembered the marks – and how she acquired them – and still saw them. For him, what was important in the complainant’s evidence was how she felt when she looked at herself in the mirror. The trial judge did not “side-step” the alleged inconsistency about how long the marks lasted by improperly relying on D.D. and D.P. Rather, he resolved any alleged inconsistency because he found that the complainant’s evidence at trial was that she did not know how long the scars remained visible. While the trial judge’s explanation might have been clearer, this is not a reason for a new trial. His reasons are sufficient to permit appellate review.
39In his factum, the appellant also argues that in his reasons the trial judge improperly referred to what the complainant said in the March 23, 2015 police statement – namely that she would be able to see the marks, even if they were not visible to others, because she had known where they were – and the March 23, 2015 police statement was not in evidence. I note that counsel for the appellant at trial treated this statement as if it were evidence: he put this particular passage in the statement to the trial judge in his closing submissions. This may be why the appellant chose not to pursue this point in his oral submissions.
40When a judge refers to material not properly before him or her, this can be characterized as a misapprehension of evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 221; R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 61. However, the mere fact that a trial judge references material not in evidence does not mean that such material influenced the trial judge’s reasoning such that the appellant did not receive a fair trial, warranting appellate intervention: Morrissey, at p. 221; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; and R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at paras. 99-104.
41From a review of the entire transcript, the trial judge found the complainant’s evidence to be that she was not sure when the scars faded, and for this reason gave what the appellant has characterized as inconsistencies little weight. The point about the complainant being able to see the scars because she knew where they were was not central to the trial judge’s reasoning. I am satisfied that no miscarriage of justice occurred and would rely on the curative proviso in s. 686(1)(b)(iii) of the Criminal Code if necessary.
(3) The May 4, 2013 email
42What the appellant characterizes as the third inconsistency the trial judge failed to engage with as a result of an over-reliance on D.D. and D.P. arises out of the email which the complainant sent to the appellant dated May 4, 2013 – about six months after she says the abuse ended and about four months before her initial disclosure. The email begins, “I wrote this letter to you to try and explain to you why I’m upset and why I won’t talk to you.” The complainant sets out several complaints about the appellant’s behaviour since he acquired a girlfriend. For example, he did not attend her school events and took no interest in her graduation from the eighth grade. But she makes no mention of the sexual assaults.
43The complainant testified that while frustrated and upset with her father’s behaviour and while she wanted to visit and spend time with him, together with her sisters, as reflected in the May 4, 2013 email, at the same time she was also afraid of being assaulted again.
44Among other things, the appellant’s trial counsel argued that the email is inconsistent, and cannot be reconciled, with the sexual abuse the complainant alleges occurred. Why would she complain about the appellant not spending time with her, if he had been sexually abusing her, and she was afraid of him?
45The trial judge sufficiently articulated why he rejected this argument:
…this argument ignores the dynamics of the complainant’s relationship with her father. She wanted to spend time with him because he was her dad. She needed him to be a part of her life. The things she complained about were important to her. The abuse had stopped six months previously when the accused began a relationship with his girlfriend. And the same reasons why she delayed in disclosing the abuse would apply to her failure to mention it in the letter – she was not ready to deal with it.
46The trial judge did not over-extend the principles from D.D. and D.P. Rather, he properly applied those principles and, in conjunction with other evidence, he grappled with and resolved what the appellant’s counsel at trial argued were the major inconsistencies in the complainant’s evidence.
(4) The text messages
47The remaining purported inconsistency related to the complainant’s and her mother’s evidence that the appellant sent the complainant inappropriate text messages. The complainant said that the appellant sent her inappropriate text messages referring to her as “sexy” or “babe” or “just names that you would usually call a wife or a girlfriend, not your daughter”. The messages were not available at trial. While maybe not always right away, the complainant says she deleted the messages. However, her mother saw some texts and was angry about them. The mother testified that the texts were inappropriate and the appellant addressed the complainant as “babe” and “sweetheart”.
48The appellant argues that in his reasons the trial judge failed to address the inconsistency between the complainant’s and the mother’s evidence. The complainant said he used the term “sexy”; the mother said “sweetheart.”
49A trial judge need not “review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel”: R. v. A.M., 2014 ONCA 769, 123 O.R. 536, at para. 14.
50I am not persuaded that this was a major inconsistency that the trial judge was required to address in his reasons. Neither the mother nor the complainant testified that the mother saw all the text messages. Moreover, the mother did not say that there were no text messages that used the word “sexy”; it simply was not one of the examples she gave. Finally, the complainant’s evidence was consistent with her mother’s evidence that the appellant sent the complainant texts which were inappropriate. In the mother’s case, the texts she saw, among other things, caused the mother to contact The Children’s Aid Society with her concerns in September of 2012.
(5) The custody proceeding as a motive to fabricate
51The appellant’s final argument is that the trial judge failed to address the defence theory that the complainant fabricated the assaults because she did not want to live with her father. In his closing submissions, the appellant’s trial counsel did not identify this as one of his “three major areas” he would address.
52The complainant testified that she might have called the appellant after a fight with her mother and told him she wanted to come and live with him – “but I don’t know how much I actually meant that.” She was shocked when the appellant followed up on the conversation by attempting to enroll her in a different school and obtain custody. She was living “fulltime” with her mother and did not want to leave her school or live with the appellant. She disclosed the assaults shortly before the September 2013 custody hearing.
53While the appellant’s trial counsel questioned the complainant about her understanding of the custody proceedings between her parents, he never directly put to the complainant that she had fabricated the assaults because she did not want the appellant to have custody over her. His questioning of the complainant probed his theory that she did so because she was unhappy and angry about the appellant replacing her and her sisters with his girlfriend’s children and his lack of interest in her life since his relationship with his girlfriend. He argues that this was shown by the May 4, 2013 email. The appellant’s trial counsel put to the complainant that she fabricated the allegations against the appellant because she felt she had been replaced by his girlfriend’s sons. The complainant denied this.
54The mother’s evidence was that she was not concerned about the custody proceeding:
…I was fully aware that I would probably win. I had no doubt in my mind that he’d be able to take them, after walking out and being gone for a few years, that he would be able to take them away from me.
55Moreover, at the time of trial, the custody dispute had been resolved in favour of the mother.
56In her closing submissions, the Crown submitted that the argument that she anticipated that the defence counsel would make that the complainant “made this up” to avoid having to live with the appellant was not persuasive or credible: the mother had testified that the chance of the children going to live with the appellant was minor. And if the complainant were trying to thwart his custody efforts, why was she so reluctant to come forward? Moreover, the supposed custody motivation to fabricate was moot. It had been resolved.
57In his closing submissions, after addressing the May 4, 2013 email, which, as indicated above, he argued at some length supported his theory that the complainant made the allegations because she was unhappy and angry about the appellant replacing her and her sisters with his girlfriend’s children and his lack of interest in her life, the appellant’s trial counsel more briefly referred the trial judge to the complainant’s testimony about not wanting to change schools and noted that the custody hearing was scheduled approximately two weeks after the complainant disclosed the abuse. He continued, “[w]ith all of this going on in the background, there has to be a reasonable doubt about her motivation”.
58In the context of his submissions, the “all of this” was what the appellant’s trial counsel described as the complainant’s unhappiness and anger about the appellant replacing her and her sisters with his girlfriend’s children and his lack of interest in her life, which he argued was shown by the May 4, 2013 email – one of “the three major areas” addressed in his submissions – plus the appellant trying to enroll the complainant in a different school and obtain custody to which he made briefer reference. The motivation to fabricate was not presented as a fourth, separate point; it was framed as part of the argument about the May 4, 2013 email.
59The trial judge engaged the appellant’s trial counsel on these submissions. In response to trial counsel’s submission that if it were believable that the complainant invented the allegations, “that’s an acquittal”, the trial judge responded: “[n]o question of that.”
60The appellant’s counsel correctly states that, in his reasons, the trial judge did not refer to trial counsel’s reference to the complainant not wanting to change schools or live with the appellant. It was not the appellant’s main argument on the motive to fabricate, but, ideally, the trial judge would have done so. However, the trial judge specifically engaged Crown counsel on the supposed motive to fabricate to avoid having to live with the appellant and engaged the appellant’s trial counsel generally on the motive to fabricate during closing submissions. One of these exchanges is summarized in the trial judge’s reasons in the section on the May 4, 2013 email, which mirrors the way counsel for the appellant at trial organized his closing submissions. Trial judges are not held to a standard of perfection. Considering the trial judge’s reasons in the context of the record, including the submissions of counsel, as Dinardo, at para. 25, directs, it is clear that the trial judge seized the substance of the defence theory of motive to fabricate and was satisfied beyond a reasonable doubt that the complainant had not fabricated her allegations. In context, the trial judge’s reasons on this issue are sufficient.
C. Disposition
61For the reasons above, I would dismiss the appeal.
“Alexandra Hoy A.C.J.O.”
“I agree David M. Paciocco J.A.”
62I have reviewed my colleague’s reasons. I do not agree with her conclusion. The crux of my disagreement is a narrow one. It concerns the adequacy of the trial judge’s reasons and whether they justify and explain the verdict he reached.
63The requirement that judges give reasons for their decisions is well-established. It is a fundamental part of the judicial function. The purpose behind trial judges providing reasons for their decisions was explained in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, where Binnie J. said, at para. 24:
At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.
64This purpose was elaborated on in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, where McLachlin C.J. said, at para. 25:
The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functions reasons serve — to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal.
65My colleague appears to take the position that so long as an appellate court can engage in a meaningful review of the correctness of the trial judge’s decision, then the reasons have met their purpose. I disagree. As these authorities make clear, meaningful appellate review is only one of the purposes that reasons serve.
66Central to this case is whether the complainant’s evidence could satisfy the court of the appellant’s guilt beyond a reasonable doubt. Critical to that conclusion is an explanation of why issues raised by the complainant’s evidence did not raise that reasonable doubt. The appellant had the right to know why the trial judge accepted his daughter’s allegations in light of inconsistencies in her version of the events and also of conduct that might be seen to be inconsistent with her allegations. At the very least, the appellant had the right to an explanation as to why these inconsistencies did not raise a reasonable doubt. As stated in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21, “an accused is entitled to know why the trial judge is left with no reasonable doubt.” Further, “[i]nadequate reasons with respect to credibility may justify appellate intervention”: R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23.
67There were two distinct events that should have caused the trial judge some pause in terms of his acceptance of the complainant’s evidence: the alleged assaults in Niagara Falls and the allegations of scars on the complainant’s breasts. In addition, there was the overarching context in which the complainant’s allegations were made that had to be considered, that is, her parents’ custody battle.
(1) The Niagara Falls assaults
68In terms of the Niagara Falls assaults, it is important to remember that the complainant failed to mention these assaults at any point in time until she was cross-examined at trial. This is despite the fact that many months had passed since the complainant’s original reporting of the other assaults and the fact that she was directly asked, in her police interview, where the assaults had taken place and she replied, “pretty sure it was all at the trailer”. The trial judge’s response to this issue was to rely on the decision in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. He concluded that he was “unable” to draw an adverse inference from the fact that the complainant did not mention the Niagara Falls assaults earlier.
69The trial judge’s reference to D.D. is an inadequate explanation for his disposal of this issue as it relates to his credibility findings. As important as D.D. is for the purpose of dispelling stereotypical thinking about how victims of abuse would be expected to reveal abuse, it is not a panacea for every issue that arises in the credibility analysis of a complainant’s evidence. Yet I fear that is how the trial judge used it in this case.
70I first note that D.D., and the expert evidence that was at the centre of that decision, related to delayed disclosure, not piecemeal disclosure of the type that is present here. That said, I am aware that this court, in R. v. D.P., 2017 ONCA 263, leave to appeal refused, [2017] S.C.C.A. No. 261, said that the principles in D.D. were “potentially applicable” to both delayed disclosure and piecemeal disclosure. This court added to that observation, however, the proviso that its application would depend “on the circumstances revealed by the evidence in any particular case”: at para. 31. That proviso suggests that the application of the principles in D.D. to piecemeal disclosure requires a separate analysis in each case. No such analysis appears in the trial judge’s reasons.
71In addition, the context in which that observation was made in D.P. must be kept in mind. The situation in D.P. was one where the complainant first told the police about two assaults and then, a few months later, revealed a third assault. In other words, the complainant in that case revealed all of the assaults to the police in a relatively narrow time frame. In this case, the complainant made no mention of the Niagara Falls assaults when she spoke to the police in September 2013, despite the questioning I referenced above. The assaults were said to have occurred between February and November of 2012. The Niagara Falls trip occurred in the summer of 2012.
72In addition, the complainant was interviewed by the police again in 2015 about the scars on her breasts, a separate subject I will address shortly. Once again, the complainant did not say anything about being assaulted by her father when they were on the trip to Niagara Falls, even though the police were asking her about scars that the complainant said had been left on her breasts by her father’s teeth arising from his assaultive behaviour. About three years have now passed since the assaults were alleged to have occurred and one and a half years have passed since the complainant’s disclosure of the other assaults to the police.
73Second, the reference that the trial judge quoted from D.D. (which is found at para. 63, not para. 49 as cited by the trial judge) says that the failure to make a timely complaint must not be the subject “of any presumptive adverse inference”. The decision does not say that the issue of delay has no relevance to the credibility analysis. It simply says that a presumption is not to be invoked arising from any delay in reporting. Delay in reporting may still be relevant depending on the factual circumstances of the case. Piecemeal reporting may also be relevant. It requires some consideration of the reasons, if any, that are offered for the delayed or piecemeal disclosure and the surrounding circumstances.
74In this case, by way of example, the complainant had come forward to the police to reveal the assaults that she says her father committed. Having come to the decision to reveal such intimate events, a question would naturally be raised why she would not have mentioned the Niagara Falls assaults in the course of reciting these troubling events. In that regard, it is of some moment to remember that the complainant was on a special trip to Niagara Falls alone with her father. It would presumably be an event of some significance in her life, a special moment in her relationship with her father. If that special moment was violated through abusive conduct, one would think that the complainant would have revealed it to the police, at some point, given that she had then decided that she was able to reveal details of all of the other assaults.
75None of this is meant to suggest that the failure to mention the Niagara Falls assaults was fatal to the complainant’s credibility. What I do say is that the trial judge had to directly address the issue. He could not dismiss its relevance to the credibility analysis simply by relying on D.D., nor by seeking to demonstrate that he was not applying stereotypical thinking.
(2) The scars
76The other issue that arises is with respect to the scars on the complainant’s breasts. This issue arose in a somewhat unusual way. The complainant filled out a victim impact statement in March 2015. The victim impact statement was the first time that the complainant revealed the existence of the scars.
77After receiving the victim impact statement, and seeing this reference, the police interviewed the complainant about the scars. She told the police that the scars had been present for a long time – a year to a year and a half. The assaults, where the scars were said to have been occasioned, had occurred at least two years earlier. The complainant was inconsistent in whether the scars were still visible at the time she completed the victim impact statement. At different points, she said that she did not know whether the scars were visible; that the scars were not completely gone but were fading; that while the scars were fading, they might still be visible; and that when she wrote her victim impact statement, she was sure that the scars were visible. At trial, the complainant first said that the scars were “starting to fade” just before she completed her victim impact statement, and later said that they were not visible at that time.
78In his reasons, the trial judge referred to the complainant’s evidence on this point and quoted her as saying that the scars “had recently faded and that only she could see them”. That reference actually appears to be from the complainant’s statement to the police, that was referred to by counsel when issues arose between counsel on the use of the police statement. I cannot find where the complainant ever adopted that statement, or made an equivalent statement, in her evidence. The fact that the trial judge relied on a statement that was not properly in evidence before him is, itself, problematic: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221.
79In any event, the trial judge rejected the defence submission that the issue over the scars went to the complainant’s credibility. He did so, once again, on the basis that the understanding regarding delayed disclosure also applies to “the details of the abuse”. The trial judge said that there “was nothing surprising about the way disclosure of the marks unfolded in this case”. He then said:
What was important for the complainant was not so much the incident that caused the marks; but rather, how the marks made her feel when she saw herself in the mirror.
The trial judge also said that there “is nothing ridiculous” about the complainant’s evidence regarding how the marks were caused.
80In my view, the trial judge failed to address this issue in any meaningful way in terms of the complainant’s credibility. First, there is no evidence that the incident that caused the marks was not important to the complainant. To the contrary, her father’s assaultive behaviour was front and centre in terms of her concerns. Second, the idea that her father dragged his teeth across her breasts, in the course of a sexual assault, that caused scarring that lasted for a year to a year and a half is, on its surface, extremely troubling. While there was no medical evidence on this point, common knowledge would raise questions about whether such injuries could have occurred as described by the complainant. The evidence raised an obvious problem regarding the complainant’s credibility that simply could not be dismissed in the fashion that the trial judge did. It certainly could not be dismissed on the basis of delayed disclosure and the principles enunciated in D.D.
81On that point, my colleague says that the trial judge did not “side-step” this issue by improperly relying on D.D. and D.P., although she does allow that the trial judge’s reasons “might have been clearer”. That is more than a generous characterization of the trial judge’s reasons. The fact is that the trial judge did side-step this issue – something that he was not entitled to do.
(3) The custody battle
82Finally, overshadowing this entire case, is the fact that all of these events occurred in the context of an ongoing custody battle between the appellant and the mother. Indeed, the evidence is that the complainant made her statement to the police approximately two weeks before a hearing was to be held on her father’s application for custody. The trial judge makes no mention of this fact. Experience reveals that some parents will attempt to improve their chances of obtaining custody of their children by encouraging the children to make allegations of abuse, either physical or sexual. No matter how abhorrent that conduct may be, it does not change the fact that it occurs. It can provide a motive for fabrication. As observed by Doherty J.A. in R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 120:
It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence.
83The trial judge was required to consider this issue in the course of his analysis and conclusion, but there is nothing in his reasons to suggest that he did. That failure cannot be excused. It certainly cannot be excused by referring to the exchange between counsel and the trial judge during closing submissions. Appellate review of a trial judge’s decision is based on the reasons, not on exchanges with counsel. In any event, the exchange with counsel does not assist this court in deciding whether the trial judge actually took this factor into consideration and, if he did, how he did so. The fact that the trial judge acknowledged the consequences during submissions, does not mean that he applied those consequences in reaching his decision. This was a factor that directly related to the complainant’s credibility. It had to be both acknowledged and addressed. Neither occurred in this case.
84I understand that a trial judge’s credibility findings are entitled to deference. But that does not mean that they are immune from review. As was noted in D.P., at para. 6:
When an appellant alleges that a verdict based on a credibility assessment is unreasonable, this court must, to a limited extent, make its own assessment of the complainant's credibility.
85The function that reasons perform takes on special importance in a credibility case. It has been said that a trial judge’s findings on credibility “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record”: Sheppard, at para. 55.
86The need for reasons in support of credibility findings was front and centre in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. In finding the trial judge’s reasons inadequate in that case, Charron J. said, at para. 27:
As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant's testimony on the issue of whether she invented the allegations. I also conclude that the trial judge's failure to provide such an explanation prejudiced the accused's legal right to an appeal.
In my view, the same can be said for the trial judge’s reasons in this case.
87A further observation that Charron J. made in Dinardo also has application to the case here. She said, at para. 31:
In this case, the complainant's truthfulness was very much a live issue … While it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused, it was not open to him to do so without explaining how he reconciled the complainant's inconsistent testimony, particularly in light of the accused’s own evidence denying her allegations. [Emphasis added.]
88I repeat that I am not saying that the trial judge could not have accepted the complainant’s evidence in the final analysis. What I am saying is that the trial judge had to directly address the inconsistencies in the complainant’s evidence, and explain why they did not leave him with a reasonable doubt regarding the appellant’s guilt. This he failed to do. Simply repeating that he is not engaging in stereotypical thinking about how complainants may react in sexual assault cases does not, by itself, satisfy this necessary requirement. Understanding and avoiding stereotypical attitudes merely eliminates improper presumptions being applied. It does not relieve a trial judge from having to address serious inconsistencies in the evidence, or from having to explain why they do not raise a reasonable doubt.
89In the end result, I return to the purpose of reasons as enunciated in Sheppard. They are to explain the result to the parties so that “[t]he losing party knows why he or she has lost”: at para. 24. It is not sufficient that an appellate court may be able to dig through the record and figure out a route to explain the result that the trial judge did not express, as my colleague has so capably done. An accused person is entitled to a proper explanation in the first instance.
90I appreciate the point that Binnie J. made in Sheppard, when he said, at para. 24, “the requirement of reasons is tied to their purpose and the purpose varies with the context.” He also, at para. 29, repeated the point made by Laskin C.J. in Macdonald v. The Queen, 1976 140 (SCC), [1977] 2 S.C.R. 665 that “imposing a general duty on judges to give reasons, especially in the busy criminal courts, would risk ending up with ‘a ritual formula’ (p. 672) that would be of no real assistance to the parties or to a reviewing court”.
91In referring to those observations, I note that their origin is now more than forty years past. Times have changed, as has the manner in which trials are conducted. Pre-trials and trial management serve to streamline and focus the evidence in serious cases. Technology now greatly assists in the process of providing reasons. Consequently, the historic excuse of workload pressures in trial courts provides only limited justification, in the current climate, for deficiencies in reasons. Even accepting that the nature and volume of the trial work in the Ontario Court of Justice could rationalize a less rigorous standard being applied for reasons in that court, no such rationalization presents itself in the Superior Court of Justice. Trial judges in the Superior Court of Justice have sufficient time to craft proper reasons that fully address the issues raised in any given case. Time constraints do not provide any acceptable explanation for deficient reasons emanating from that court. Indeed, I suggest that time constraints do not provide justification in any case where serious criminal charges are involved.
92I repeat Binnie J.’s point that the purpose of reasons varies with the context. In that regard, it is to be remembered that the accused in Sheppard was charged with possession of stolen property, being two casement windows with a value of $429, not the most serious charge known to our criminal law. Nevertheless, the Supreme Court of Canada concluded that the perfunctory reasons given by the trial judge constituted an error of law.
93Contrast that situation, and result, with the case here. There can be few situations more serious for a parent than to be accused of abusing one of their children, much less be found guilty of that conduct. If a parent is to be found guilty of such an offence, then they are entitled to know, with clarity, why that result was reached. A convicted person should not have to guess at the reasons for their fate, nor should they have to await an appellate court explaining that which the trial judge failed to explain. To hold otherwise is simply not an acceptable approach for our justice system to take.
94The trial judge failed to properly address the inconsistencies in the complainant’s evidence and did not consider the context in which the allegations were made. The trial judge did not adequately explain why he concluded that the offence was proven beyond a reasonable doubt. The reasons fail to accomplish that goal for the appellant, and they fail to do so for the public at large. Consequently, the reasons fail to fulfill one of the fundamental purposes underlying the requirement for reasons.
95I would allow the appeal, set aside the conviction, and order a new trial.
Released: “AH” “JUNE 17 2020”
“I.V.B. Nordheimer J.A.”
