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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 DATE: 20211116 DOCKET: C67069
Paciocco, Nordheimer and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
C.G. Appellant
Counsel: Eric S. Neubauer, for the appellant Vallery Bayly, for the respondent
Heard: October 13, 2021 by video conference
On appeal from the convictions entered by Justice Stephen T. Bale of the Superior Court of Justice on March 29, 2019.
1C.G. appeals from his convictions for sexual assault, sexual interference, invitation to sexual touching and breach of recognizance.1 For the following reasons, I would allow the appeal and order a new trial.
A. Background
2The charges arose out of allegations made by the complainant, TH, who was between the ages of 11-14 years old at the time of the events. The appellant’s and TH’s families were very close. They travelled together and went on vacation together. TH and K, the appellant’s daughter, were cousins and best friends, and would often sleep over at each other’s houses continuously for weeks on end. TH alleged that the appellant had sexually assaulted her during some of her sleepovers with K.
3TH gave evidence through her statement to the police, pursuant to s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46. She also gave viva voce evidence. She was the only witness for the Crown. The appellant testified in his own defence. He offered a straightforward denial of the allegations. He stated that he never entered K and TH’s room in the night, and never sexually touched TH. The defence also called members of the appellant’s family as witnesses.
4TH’s evidence was that during some of the sleepovers at K’s house, at some point in the night, the appellant would attend the bed where she and K were sleeping, touch TH’s breasts and vagina under her clothes, including digital penetration, and occasionally make her touch and rub his penis, sometimes to the point of ejaculation. He would do this with one hand while standing over TH, never getting into bed with her. No words would be spoken. TH would feign sleep during the assaults.
5TH stated that the location of the assaults changed because the location of K’s room changed. At first, K shared a room on the upper floor of the home with her younger sister, each sleeping in a single bed positioned across from each other. In 2016 or 2017, K started sleeping in a makeshift bedroom in the basement. TH had difficulty distinguishing between the assaults that occurred upstairs and those that occurred downstairs. She believed more had occurred in the basement bedroom. In either case, TH testified that the assaults occurred while she was sleeping in bed with K.
6TH could not give concrete details about when the assaults started, or how frequently they occurred. At times, she guessed about these details, giving rise to inconsistencies. She testified she could not remember the last time an assault occurred but thought perhaps it was in the preceding several months. TH estimated she had been assaulted 15 times (or possibly more) over the course of the preceding three years. TH said, in her statement to the police, that the timing of the assaults during the night varied, depending on when K fell asleep and when the appellant got home from his night shifts at work. The assaults could occur at two, four, or even after seven o’clock in the morning. In each case, she would be awake and K, along with everyone else in the house, was asleep.
7In terms of the details of the assaults, TH testified that she would repeatedly roll away from the appellant, resisting, in an effort to remain on her stomach. In response, the appellant would forcefully roll her onto her back, again and again, in order to facilitate the assault. TH testified at trial that this occurred notwithstanding that she and K were so close in bed that they were touching. TH testified that neither K, nor K’s sister, who was in the opposite bed, woke up when this occurred. TH also testified that no one woke when the appellant entered the upstairs bedroom, notwithstanding that there was evidence that the house creaked – most notably, the bedroom’s older flooring loudly creaked when anyone entered.
8K’s evidence was that there was no room between her and TH in the bed. When they slept, they were touching each other. She described how the pair would be elbowing one another, or accidentally kick one another, or even roll on top of each other. She testified that inevitably, when this occurred, both woke up – sometimes falling right back to sleep, sometimes not. The Crown challenged K regarding what occurred when one of the pair had to go to the bathroom. K responded that if she had to go to the bathroom, and was against the wall, she would have to climb over TH and invariably wake her up.
[9] TH gave varying evidence about her sleeping position, which she offered to explain how she tried to avoid the appellant’s assaults. On different occasions, she said: (a) that she would always ask K to allow her to sleep on the inside of the bed, against the wall, to avoid the appellant having access to her; ((b) that K always slept on the inside, against the wall; (c) that she asked to sleep on the inside, but that K wanted to sleep on the inside, against the wall, because K sleepwalked; (d) that it was possible she had asked to sleep on the outside, not the inside, to prevent K from sleepwalking; (e) that she may have requested the outside sleeping position to avoid risk to K, notwithstanding her fear of the appellant’s assaults, and notwithstanding she had never seen K sleepwalk in the many times she had slept over.
10In contrast, K confirmed that she used to sleepwalk and in the past TH had predominantly slept on the outside, closest to the door. This was at TH’s request and was not K’s preference. K testified that since her move to the basement, things had changed. She no longer sleepwalked. TH and K alternated who slept on the inside, closest to the wall. It was no longer routine for TH to be on the outside. The appellant and his wife both recalled there being some discussion of TH sleeping on the outside of the bed, and believed TH slept on the outside.
11The appellant and his wife both testified that the appellant worked nights for the last 17 years, and specifically, the 10:30 p.m. to 7:00 a.m. shift for the last eight years. For all but two nights per week, the appellant was not home overnight. The nights the appellant was home, he and his wife spent the evenings together. For this reason, and because their house was not large, his wife could not recall a time in the evenings where the appellant was home, but she did not know where he was for 10-15 minutes or more. She conceded the appellant might briefly go downstairs to retrieve something or attend the basement to switch off a light left on, but denied that there was any significant time when she did not know her husband’s whereabouts in the home.
12All witnesses agreed that the upstairs bedroom had a very creaky floor. This was corroborated by video evidence filed as an exhibit at trial. K testified that, whether upstairs or downstairs, she did not believe it was possible that someone could enter her room without waking her up. K attributed this to the creaky floor, being a light sleeper, the clattering of the clothes hangers on the back of the upstairs bedroom door, the creaky stairs to the basement, and the general way sound travelled in the house.
13The appellant testified that his wife was a terrible sleeper, woke up easily, and would ask where he was going if he went to the bathroom during the night. His wife confirmed that she was a poor sleeper, and always woke up when the appellant would get up at night. She indicated that she had never woken up and found the appellant missing from the room. She testified that she did wake up at times because of creaks in the house or because the family dog was moving around. She explained that she usually was the one who investigated these noises, even when the appellant was home.
14TH stated that, out of fear of reattending K’s house, she reluctantly told her mother what had happened. She testified that she only went to speak with the police because her mother made her go. She expressed that she delayed disclosing because she was scared it would break up their very close family and that she would not be believed.
15Prior to TH disclosing the allegations, another one of K’s friends had alleged that the appellant had touched her breast. This allegation was the subject of separate charges against the appellant. TH indicated that her fears of disclosing were informed by this other allegation. TH stated that she feared that, like this other complainant, she would not be believed, and her friendship with K would cease.
16In cross-examination, TH was confronted with the fact that she had made an unprompted offer to testify on behalf of the appellant in any trial involving this other allegation. She said she did not know whether she made such an offer, but conceded it was possible. She also testified that it was possible she had expressed that the appellant was not “capable of doing such a thing”, but she did not think she had said so. TH agreed this offer did not make sense if the appellant was abusing her, too.
17One of the issues at trial was the nature and extent of discussions between the defence witnesses. The appellant’s wife testified that the appellant’s trial counsel showed her TH’s police statement while she was in his office with the appellant. The appellant’s wife was shocked by what she learned, because the statement was different from what TH originally disclosed. The appellant’s wife testified that, during long breaks in TH’s video statement, she and the appellant discussed the allegations with trial counsel, including why the allegations could not be true.
18The appellant’s wife was cross-examined extensively on what information she shared about the allegations with her children. She indicated that K had overheard a family meeting and was therefore aware of the allegations from the outset. The appellant’s wife testified that K’s sister was also made aware that TH alleged that the appellant had sexually touched her during sleepovers. However, the appellant’s wife testified that in all of her discussions with her daughters, she was “a mother first” and was questioning them to find out whether the appellant had, in fact, touched anyone, and to provide a safe space for her daughters to disclose. When her daughters expressed their view that their father was innocent, the appellant’s wife reassured them that she believed this to be true as well.
B. THE TRIAL JUDGE’S REASONS
19The trial judge began his reasons by considering the reliability of the defence evidence, that is, the evidence of the appellant, his wife, and both of their daughters, K and her sister. The Crown argued that the defence evidence was unreliable because of the pre-trial discussions that had occurred among the witnesses. Although the Crown was not suggesting that these witnesses had advertently colluded, he did submit that the defence evidence was tainted by “inadvertent collusion”.
[20] On this issue, the trial judge said, at para. 17: While I do not dismiss the defendant’s evidence on this ground alone, the collusion is a factor to be taken into account in the final weighing of the evidence at the end of the trial.
21The trial judge next turned to TH’s evidence. The defence had submitted that the evidence of TH was unreliable because she was inconsistent in several respects, such as regarding the number of assaults, the length of time that the assaults lasted, and the sleeping positions as between her and K.
[22] The trial judge rejected this submission. He found that it offended the rule about after-the-fact conduct in such cases. In doing so, he quoted from R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218, where the Alberta Court of Appeal said, at para. 42: Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “ must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse”. [Emphasis in original; citations omitted.]
[23] The trial judge went on to say that the defence argument was, in essence, an argument that TH did not act in a manner that would have been expected if her allegations were true, and that an adverse inference should be drawn. The trial judge rejected that submission. He found, at para. 28: In this case, in considering the complainant’s conduct, the court must consider it in context: she was afraid to report the touching because of the close bond between her family and K’s family; her close bond with K and [the appellant’s wife] would be jeopardized if she changed her behaviour and refused to sleep over at their house; she would have to explain her changed behaviour, notwithstanding that she was not yet ready to disclose; and again, the touching had taken place, perhaps, ten or fifteen times, over a three-year period.
24Finally, in dealing with the challenges to TH’s evidence, the trial judge addressed the defence submission that TH’s allegations were inconsistent with her willingness to testify on behalf of the appellant regarding the allegation made by another friend of K’s. The defence argued that, if the appellant had assaulted TH, as she claimed, she would not have been willing to voluntarily offer to testify that the appellant was not the type of person who would do such things. The trial judge rejected this argument, again on the basis that it offended the after-the-fact conduct principle he had earlier cited. He also rejected the defence submission that, in general, the evidence of TH should not be believed.
[25] Having dealt with those issues, the trial judge then, in the final paragraph of his reasons, addressed the issue of the guilt of the appellant. He said, at para. 35: Defence counsel argues that the entire story told by the complainant is implausible, both because the accused would be taking a significant risk, and because he could not have committed the offences, without waking someone else in the house. However, after considering the complainant’s evidence, and the defence evidence, in the context of the trial evidence as a whole, and for the reasons given, I am unable to accept the evidence of the accused, and find that it does not raise a reasonable doubt as to his guilt. I do accept the evidence of the complainant, and find on the basis of that evidence that Crown counsel has proved the accused’s guilt, on all counts, beyond a reasonable doubt.
C. ANALYSIS
26In my view, the trial judge made three fundamental errors in his reasons leading to the convictions. One error deals with the issue of collusion; the second error deals with the lack of analysis of the competing evidence; and the third error deals with the application of the principles from R. v. W. (D.), [1991] 1 S.C.R. 742. A new trial is required as a result of these fundamental errors.
(1) Collusion
27The trial judge said that collusion was a factor in assessing the defence evidence. While the trial judge did not characterize the collusion as between “advertent collusion” and what is commonly called “inadvertent collusion”, as the Crown submitted before us, a fair reading of his reasons demonstrates that the trial judge acceded to the Crown’s submission that the defence evidence was tainted by “inadvertent collusion”. The difficulty with the trial judge’s conclusion on this point is two-fold. First, it is implicit in his comments that the trial judge accepted that the evidence of the defence witnesses was diminished by this “inadvertent collusion”. Yet the trial judge never explains how he took the “inadvertent collusion” into account in his assessment of the defence evidence, apart from stating that he does not dismiss the defence evidence on this ground alone. Second, in spite of his evident acceptance that tainting had occurred, the trial judge failed to explore how the “inadvertent collusion” altered the evidence of each of the defence witnesses, if at all.
[28] As I have intimated, the term “collusion” has been used to describe two different phenomena. The first is deliberate or “advertent collusion”, that is, where witnesses get together and fashion their evidence in concert in order to appear to be reciting a consistent and reliable story. The other, commonly referred to as “inadvertent collusion”, occurs where one witness discusses the events with another witness with the consequence that the evidence of one or both of them may be altered. Put another way, a witness’ evidence may be “inadvertently” impacted by the fact that they have heard the evidence of other witnesses which “can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events”: R. v. B. (C.) (2003), 171 C.C.C. (3d) 159 (Ont. C.A.), at para. 40. This point was made in R. v. F. (J.) (2003), 177 C.C.C. (3d) 1 (Ont. C.A.), where Feldman J.A. said, at para. 77: The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.
29While the issue of collusion most often arises when a court is considering the admissibility of similar fact evidence, it is an issue that has relevance to the evaluation of a witness’ evidence in general.
30As this case illustrates, it is unfortunate that the term “inadvertent collusion” has been coined. As I will explain, “advertent collusion” affects the credibility of evidence. “Inadvertent collusion”, or accidental tainting, does not do so. It affects only the reliability of such evidence. As a result, an entirely different analysis is required in determining the impact that “inadvertent collusion” may have on the evidence in question. Yet the term “inadvertent collusion” obscures this because the term “collusion” connotes conspiracy, which is a credibility concern. It would be better if the term “inadvertent collusion” was avoided and replaced by the term “inadvertent tainting”. Given that the term “inadvertent collusion” was used during the matter before us, I will continue to refer to “inadvertent collusion” but as I say, that is a term that would best be avoided going forward.
31I will begin with advertent collusion. It is self-evident that this first form of collusion is particularly problematic. Deliberate collusion among witnesses will inevitably undermine the credibility of the evidence given. No court would be comfortable relying on evidence from witnesses who have gotten together and decided on what they are going to say when questioned under oath, at least not without independent corroborating evidence establishing that their evidence is reliable, notwithstanding the collusion.
[32] The second form of collusion, “inadvertent collusion”, is more difficult. The fact that one witness has heard what another witness will say, or for that matter has even discussed what another person’s recollections were, does not mean that either witness is not telling the truth, or is not giving their independent recollection, or that their evidence has been tainted. Indeed, even where the evidence of one of the parties to the discussion is inadvertently affected by what another person has said, the account of that other person may not change. For example, in this case, it is possible that when, during the joint meeting with the defence lawyer, the appellant’s wife offered reasons why the appellant could not be guilty, the appellant did innocently incorporate those reasons into his testimony, but that does not mean that his wife’s observations were inaccurate or that her testimony had changed as a result of their discussion. Nor does it necessarily follow that the appellant’s testimony became unreliable. He may have recognized from his own knowledge the truth and importance of what his wife had observed. The key point is that, unlike advertent collusion which corrupts the evidence of all participants, where inadvertent collusion has occurred, a close examination is required to determine what impact that innocent sharing of information may have had on the evidence of each of the witnesses who is a party to the exchange. As Sopinka J. said in R. v. Burke, [1996] 1 S.C.R. 474, at para. 45: Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose. [Emphasis in original.]
33The problem in this case is that the trial judge does not address whether the fact that the defence witnesses discussed the events, thus giving rise to the possibility of inadvertent collusion, did, in fact, lead to one or more of them altering their evidence and, if so, in what respect.
[34] This problem is part of a larger concern with respect to the trial judge’s treatment of the defence evidence. There is no weighing of the defence evidence at all. Rather, the trial judge moved from his generic conclusion on the collusion issue directly to considering the evidence of the complainant. He never returned to the defence evidence, and more importantly to the appellant’s evidence, and never engaged in the weighing of it that he had earlier said he would do. This same situation arose in R. v. Burnie, 2013 ONCA 112, 294 C.C.C. (3d) 387, where Tulloch J.A. said, at paras. 41-42: [I]t was the duty of the trial judge in this case, as the trier of fact, to instruct himself to consider the possibility of collusion in his assessment of what effect to give the similar fact evidence in his ultimate decision on the guilt of the accused on the whole of the evidence. The difficulty in this case is that on the reasons given, we cannot know if he did or did not do so. As such, on this issue, we are left in the position, in the terms used in Sheppard, where we cannot be sure of the path taken by the trial judge. There is more than one view of how the trial judge may have decided guilt and one such view would clearly constitute reversible error.
35Had the trial judge undertaken an analysis of the defence evidence, in light of the possibility of inadvertent collusion, he would have had to consider that there was independent evidence that tended to support at least some of the evidence provided by the defence witnesses, which was incapable of being tainted by collusion. In particular, on this point, there was the uncontradicted evidence, supported by video evidence, of the creaking of the bedroom floor. However, this evidence is not mentioned by the trial judge. He does not address how that evidence might have supported the defence position, and thus discounted any problems arising from the suggestion of collusion. Simply put, the witnesses could not have colluded to make the floor creak.
36To a similar effect was the evidence of the hangers on the bedroom door that would have made noise if the door was opened. This evidence is also not mentioned by the trial judge, although it was not challenged at trial. Again, inadvertent collusion would not undermine the probative value of this evidence.
37As indicated, the trial judge was obliged to consider whether, if there was inadvertent collusion, it actually affected the evidence of the various defence witnesses. In that regard, the trial judge had to consider the nature of the discussions that took place between these witnesses. For example, the trial judge had to consider the explanation of the appellant’s wife that she spoke with their daughters because she wanted, as a mother, to provide an opportunity for them to safely disclose if they had witnessed any improper conduct by the appellant. It was with that stated purpose in mind that she spoke to their daughters about the allegations. The trial judge had to consider whether the content of the discussions, in those circumstances, led to any impairment of the evidence given.
38In considering the impact of any inadvertent collusion with respect to each individual witness, the trial judge also had to consider that one of those witnesses was the appellant. As the Crown acknowledged in closing submissions, the appellant could not be found to have been tainted by collusion only through his access to, and review of, the disclosure in the case, which included the police statement of TH. The trial judge could not approach the issue of collusion in the same fashion with respect to the appellant as he might with respect to the other defence witnesses, because of the appellant’s right to disclosure. And, once again, the trial judge had to consider whether those discussions led to any impairment of the evidence given.
39Lastly, the trial judge would also have had to consider that these discussions occurred among members of the same family, i.e., father, mother, and daughters, faced with serious allegations made against one parent. Some discussion was inevitable in those circumstances. The impact of those discussions, if any, was the crucial issue. In the end result, none of this analysis was done. Simply put, the trial judge’s collusion analysis is too general and conclusory to constitute a proper evaluation of the evidence offered by each defence witness.
40Consequently, we are left in the same position as this court was left in Burnie. I am unable to determine the impact, if any, of the finding of “inadvertent collusion” on the trial judge’s assessment of the credibility and reliability of each of the defence witnesses. This problem is exacerbated by the fact that the trial judge clearly said that he was not prepared to use collusion as a basis to reject the defence evidence. It was then incumbent on the trial judge to address this issue in his W. (D.) analysis, including why the defence evidence did not raise a reasonable doubt, given that collusion alone was not a basis for rejecting the defence evidence. As I shall discuss later in these reasons, there was no such analysis.
(2) The Absence of Analysis of the Competing Evidence
41The trial judge moved from his finding regarding “inadvertent collusion”, as it related to the defence evidence, to his consideration of TH’s evidence. He dealt with many, but not all, of the issues raised regarding the credibility and reliability of TH’s evidence. It is notable, however, that the trial judge did not engage in a similar assessment of the evidence of the defence witnesses. Indeed, he never returned to the defence evidence, save for a generalized comment about the appellant’s evidence at the end of his reasons.
42The appellant says that the trial judge failed to address certain critical flaws in TH’s evidence. The respondent says that the trial judge was not obliged to address each and every issue that was raised as it related to TH’s evidence. While the respondent is correct that a trial judge is not required to address each and every piece of evidence, a trial judge is required to address crucial evidence that bears directly on the credibility and reliability of a witness.
43In this respect, there were two particularly important pieces of evidence that directly impacted on TH’s evidence, but which the trial judge did not address. One is TH’s evidence that the appellant, in committing the assaults, had to roll her over forcefully as she attempted to remain on her stomach to avoid the unwanted touching. This evidence is of particular significance, given that TH was sharing the bed with K. Indeed, the evidence was that they were so close together that they were touching while they slept. Yet, on TH’s evidence, the appellant forcefully rolled her over in order to assault her without ever waking K. The surface improbability of that being able to take place required the trial judge’s attention. He was obliged to resolve that issue in terms of his conclusion that TH’s evidence established the guilt of the appellant beyond a reasonable doubt. Yet this resolution never took place.
44The second important piece of evidence related to the opportunity for the appellant to commit these offences. In that regard, the evidence was that the appellant worked night shifts, that he was only home on two nights per week, that he spent the nights when he was home with his wife, that his wife was a light sleeper who said she would be awoken if the appellant left their bed, and that she could not recall any instance of her awaking and finding the appellant absent. In addition to this evidence, of course, is the evidence of the creaky floors in the house.
[45] All of this evidence led to the obvious submission from the defence that the appellant had no opportunity to commit the offences without being discovered. The trial judge’s response to this defence submission is of concern for two reasons. One is that the trial judge does not deal with this submission directly in his reasons. The other is the manner in which the trial judge dealt with it during closing submissions. At that time, the trial judge said: As far as why would he take that risk, I think sex offenders take incredible risks all the time and, so you, I mean, you hear, well why would he ever take that risk when somebody was next door or whatever it was, but that’s just the nature of those – of that type of offence, and that’s why in this court, the majority of the cases that we hear are sex offences… Because they’re prepared to take those incredible risks.
46It is unclear to me how the trial judge may have used his view, on this point, in deciding this case. It cannot reasonably be disputed that some sex offenders take incredible risks, and trial judges are entitled to reject an implausibility argument that is based on the unlikelihood that the accused would have taken the risks required to commit the offence with which they are charged. But here, the trial judge appears to be expressing a universal truth that all sex offenders take incredible risks, which would constitute an inappropriate stereotype about how sex offenders behave. Even if the trial judge was not intending to express a universal truth, he was at least of the view that incredible risk-taking is commonplace. If that was the trial judge’s approach, then he erred in doing so. Not only is it arguable that this too would be an inappropriate stereotype about how sex offenders behave, judicial notice cannot be taken of such a contention as if it was a fact. Assuming such a fact could be established, it would require a proper evidentiary foundation. A third possibility is that the trial judge was relying on his personal knowledge or experience as proving that fact. This also would be an error. A trial judge cannot judicially notice a fact within his or her personal knowledge unless the criteria of notoriety or immediate demonstrability are present: R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 50-54. In either event, while the trial judge mentions the risk point in the final paragraph of his reasons, he fails to deal with it.
[47] The failure of a trial judge to address material evidence constitutes a misapprehension of the evidence. As Doherty J.A. said in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538: A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.
48The two pieces of evidence to which I have referred were relevant to a material issue, that is, the credibility and reliability of TH’s evidence. The trial judge’s failure to both mention these pieces of evidence, and to deal with them in his analysis, constitutes an error. In this case, given its importance in the overall W. (D.) analysis, to which I now turn, this constitutes an error of law that has the effect of rendering the verdicts unreasonable.
(3) The W. (D.) Analysis
[49] The principle from the decision in W. (D.) is well-known. Yet it has caused more than its fair share of problems in its application since the principle was enunciated more than thirty years ago. It is, perhaps, worthwhile setting out the principle again, as taken from p. 758 of the decision: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
50Since the decision, the application of the principle has been written about frequently, and its proper application both debated and refined. For the purposes of this case, two refinements of the principle are relevant. One is that it is not necessary for a trial judge, sitting alone, to recite the principle in its precise terms as it appears above: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7; R. v. Debassige, 2021 ONCA 484, at para. 127. It is sufficient that the principle was, in fact, applied, even if not expressly recited.
51In this case, the only application of the principle appears in the final paragraph of the trial judge’s reasons, as I have set out in para. 25 above. While that brief mention would be sufficient to show that the trial judge was alert to the principle, what is missing in this case is any analysis leading up to the trial judge’s conclusion as to its proper application. In particular, there is no discussion or analysis of the appellant’s evidence, or why the trial judge rejected it, or why the trial judge found that it did not raise a reasonable doubt, either on its own or in conjunction with the rest of the defence evidence.
[52] That problem leads into a consideration of the second refinement of the principle from W. (D.). That second refinement arises from this court’s decision in R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69. In that case, the issue of a trial judge’s failure to provide express reasons for rejecting the accused’s evidence, in the context of the application of the principle from W. (D.), was raised. In concluding that the trial judge’s reasons for rejecting the accused’s evidence were capable of being discerned from the record, Doherty J.A. said, at para. 53: An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [Emphasis added.]
53The decision in D. (J.J.R.) permits a conclusion that a trial judge’s “considered and reasoned acceptance” of the complainant’s evidence is a sufficient basis to explain the trial judge’s rejection of an accused person’s evidence and, similarly, to explain why that evidence does not raise a reasonable doubt. In that case, Doherty J.A. set out all of the trial judge’s findings regarding his acceptance of the complainant’s evidence and, importantly, the confirmation of it that could be found in the complainant’s diary, a contemporaneous record of the events. Indeed, Doherty J.A. referred to the diary’s “credibility enhancing effect” in his reasons: at para. 54.
[54] The decision in D. (J.J.R.) provides a route for an appellate court to be satisfied that, despite the failure to follow the step-by-step analysis from W. (D.), the trial judge nevertheless properly applied it. What the decision in D. (J.J.R.) does not do, however, is provide an answer to the failure of a trial judge to avert to exculpatory evidence that stands unchallenged. The failure to advert to such evidence, and to address it, means that the acceptance of the complainant’s evidence is neither considered nor reasoned. This point was made in R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, where Paciocco J.A. said, at para. 33: In contrast, those same terms, “considered and reasoned”, offer no guidance to a trier of fact about when it is appropriate to convict in the face of exculpatory evidence that has no obvious flaws.
55It is the problem identified in C.L. that arises in this case. There was clear exculpatory evidence, much of which was undisputed. That evidence included the creaky bedroom floor, the clothes hangers on the door, the evidence regarding the appellant’s wife being a light sleeper, the hours during the night when the appellant was at work, the rolling over of TH, and like matters. The trial judge fails to address any of this evidence, or explain why it would not, at least, raise a reasonable doubt. As a result, his analysis of the evidence of TH does not provide a “reasoned and considered” basis for believing her evidence beyond a reasonable doubt, in the face of exculpatory evidence from the appellant.
56The respondent strives to avoid these problems by characterizing the trial judge’s reasons as being generally sufficient and, also, by invoking the principle derived from R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, that an appellate court “must not finely parse the trial judge’s reasons in a search for error”: at para. 69. The decision in G.F. reaffirms the important message that appeal courts should not be too ready to overturn the factual conclusions made by trial judges and should not assume that errors have occurred when errors are not evident. However, G.F. does not direct appeal courts to overlook or disregard material reasoning errors, nor does it dispense with the need for trial judges to give adequate reasons for their decisions before stigmatizing and punishing someone as a sex offender.
57The Crown’s submission that we should not interfere with the trial judge’s decision in this case ignores the fundamental problems that exist in the trial judge’s reasoning. I do not suggest that trial judges are required to show that they considered every piece of evidence or that they have responded to each and every argument raised by counsel. However, that approach does not obviate the need for trial judges to address significant pieces of evidence that have a direct impact on the issue of guilt. The reasons must explain the “what” and the “why”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17. More specifically, trial judges are obliged to address significant exculpatory evidence, the presence of which makes a finding of guilt beyond a reasonable doubt unthinkable, or at least highly unlikely, absent a thorough explanation of why it does not.
58The respondent explains the trial judge’s conclusion by saying that “once the trial judge weighed the evidence he had found to be tainted along with his acceptance of the complainant’s evidence, he rejected the appellant’s evidence and found it did not raise a reasonable doubt.” While that is undoubtedly an accurate recitation of the trial judge’s reasons, like those reasons, this submission fails to provide the necessary explanation as to why the trial judge found that the evidence proved the offences beyond a reasonable doubt. More importantly, that submission does not explain why the unchallenged exculpatory evidence failed to raise a reasonable doubt.
[59] This requirement is central to the purpose for reasons. It is so the accused and the public can know why the conclusion was reached, along with providing the opportunity for meaningful appellate review. This point has been made in many decisions of the Supreme Court of Canada and of this court. It is aptly put in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, where the majority said, at para. 21: This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt.
[60] The trial judge does not address the exculpatory evidence. He does not explain why that exculpatory evidence did not corroborate the appellant’s denial of the events, nor, at the very least, why it did not raise a reasonable doubt. The trial judge’s reasons do not perform the fundamental purpose for which reasons are required. Those failures mean that this court cannot be satisfied that the fundamental point made in G.F., at para. 82, has been answered: [W]hether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.
61To borrow the language of G.F., the reasons in this case are not “factually sufficient”: at para. 71. A review of the record does not provide that sufficiency. Indeed, it does the opposite. It reveals the exculpatory evidence, which is left unmentioned and unaddressed in the trial judge’s reasons. Even if one completely rejects the evidence of the appellant, his wife, and their daughters, on the basis that their evidence is “tainted” – a conclusion that the trial judge himself was not prepared to make – this does not explain why the appellant’s denial of the events was not found to raise a reasonable doubt, when it can be seen as being corroborated by the exculpatory evidence offered.
D. Conclusion
62The appeal is allowed, and a new trial is ordered.
Released: November 16, 2021 “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “I agree. David M. Paciocco J.A.” “I agree. J.A. Thorburn J.A.”
