WARNING

This appeal is subject to a mandatory publication ban under s. 278.9. This section of the Criminal Code provides:

278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 278.3;

(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or

(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

CITATION: R. v. C.B., 2022 ONCA 572

DATE: 20220803

DOCKET: C69047

Roberts, Paciocco and Favreau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.B.

Appellant

David M. Humphrey and Michelle M. Biddulph, for the appellant

Vallery Bayly, for the respondent

Heard: June 29, 2022

On appeal from the conviction entered on September 17, 2020 by Justice Susan J. Woodley of the Superior Court of Justice.

REASONS FOR DECISION

OVERVIEW

1After a judge alone trial at the Superior Court, the appellant, C.B., was convicted of having committed sexual offences against his daughter, K.B., when she was between 13 and 16 years of age. He appeals those convictions, claiming that the trial judge erred: (1) by refusing to review the complainant’s personal journals during a third-party records application; (2) by failing to consider the complainant’s motive to lie; and (3) in assessing the credibility of K.B., and of C.B., who testified. The latter ground of appeal has multiple components that we will identify below.

2At the end of the hearing, we dismissed grounds of appeal (2) and (3), with reasons to follow. We would also dismiss the first ground of appeal, and therefore the appeal itself. These are our reasons on all grounds of appeal. These reasons were released only to the parties on July 19, 2022, because s. 278.9(1) of the Criminal Code, R.S.C. 1985, c. C-46 imposes a publication ban relating to the third‑party records application. The parties advised in further submissions, after the Crown had consulted the complainant, that they have no objection to the full publication of our reasons. We have determined that it is in the interests of justice for this court to exercise its inherent jurisdiction and publish these reasons, without redaction: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294.

THE REFUSAL TO REVIEW THE PERSONAL JOURNALS

3C.B. brought a pre-trial third-party records application to obtain production of K.B.’s personal journals, which C.B. had previously read. He provided supporting evidence that the personal journals contained no allegations of sexual assault but included statements by K.B. disclosing that there was an acrimonious conflict between them relating to household rules. C.B.’s position was and is that K.B.’s animosity against C.B. over these rules provided her with the motivation to falsely accuse him of sexual abuse in an effort to get him out of the house and liberate herself from his control. C.B. argues that the journals are the best evidence verifying the intensity of that animosity.

4However, on three occasions, the trial judge denied the third-party records application without reviewing the personal journals. She did so on two, alternative bases. First, she found that C.B. had not shown that the personal journals were “likely relevant”, a decision that she based on her finding that C.B. had alternative sources of evidence to establish the material components of his motive theory. Second, she found after balancing competing considerations that it was not necessary in the interests of justice to produce the personal journals. Since s. 278.5 of the Criminal Code, R.S.C. 1985, c. C-46 permits a review of third-party records by a judge only where both of these two components are satisfied – likely relevance and a review of the third-party records being necessary in the interests of justice – the trial judge effectively found that C.B.’s application failed on both elements of the applicable test. C.B. argues that the trial judge erred in making each of these determinations.

5First, he argues that the trial judge erred by considering the availability of other evidence of K.B.’s animosity against C.B. over household rules, when deciding that the personal journals were not “likely relevant”. C.B. points out that in R. v. K.C., 2021 ONCA 401, 157 O.R. (3d) 161, at para. 126, Fairburn A.C.J.O. said that the sole question for resolution in assessing the likely relevance of third‑party records is whether there is case-specific information showing a reasonable possibility that the third-party record contains logically probative evidence. In support of this proposition, Fairburn A.C.J.O. relied upon Supreme Court of Canada authority in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 45, citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 22. C.B. argues that since the logical relevance of the third-party records has nothing to do with the availability of other evidence, the trial judge erred by finding that the likely relevance test was not met because C.B. had other means of establishing K.B.’s alleged motive to falsely accuse him of sexual abuse.

6However, there is authority that appears to support the approach taken by the trial judge. In R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 75, Doherty J.A. went beyond logical relevance and considered the availability of other evidence when discussing likely relevance.

7We need not address whether Batte is in fact in conflict with K.C. and with the Supreme Court of Canada authority Fairburn A.C.J.O. relied upon, nor need we resolve what the law requires to establish “likely relevance”, because in this case the trial judge decided that even if she was mistaken about the likely relevance of the personal journals, the application would fail in any event on the second precondition of s. 278.5(1) since it would not be necessary in the interests of justice to review the personal journals. She reasoned that the availability of other evidence that C.B. could use to pursue his motive theory diminished the importance to C.B. of the personal journals in making full answer and defence. Yet those personal journals carry an extremely high expectation of privacy for a teenager such as K.B. Ordering their review would prejudice K.B.’s personal dignity and it would also discourage the reporting of sexual offences.

8We are not persuaded that the trial judge erred in coming to this conclusion, which is a discretionary determination of an application judge, entitled to deference: R. v. L.M., 2014 ONCA 640, 122 O.R. (3d) 257, at para. 39. Nor are we persuaded by any of the specific challenges C.B. makes to the balancing the trial judge conducted.

9In particular, we reject C.B.’s submission in the appellant’s factum that the trial judge “double counted” the availability of evidence about motive from other sources by considering it both when assessing likely relevance and when deciding whether a review of the personal journals was necessary in the interests of justice. This submission disregards the fact that the trial judge made the latter determination in the alternative, on the assumption that the private journals were likely relevant. Therefore, it cannot be said that this factor was double counted.

10Nor are we persuaded that the fact that C.B. read the personal journals reduced K.B.’s reasonable expectation of privacy, thereby lowering her interest in keeping them private from judicial review. The decision in R. v. R.S.B., 2005 CanLII 51174 (Ont. C.A.) that C.B. relies upon in support of this contention is distinguishable. The Court in R.S.B. found a complainant’s privacy interest in a diary to be diminished because “she wrote what she did because she knew the appellant read her diary”: at para. 5. In effect, the complainant in R.S.B. used the diary as a method of corresponding with the accused. In contrast, in this case the complainant took steps to stop C.B. from reading her diary. We agree with the Crown that it would be perverse in these circumstances to permit C.B. to rely on his own earlier breach of K.B.’s privacy as lowering her expectation of privacy so that he can again cause her privacy to be breached by judicial inspection.

11We also reject C.B.’s submission that the trial judge erred by failing to consider that the personal journals are the best evidence of animus. The fact that the trial judge did not explicitly address this “best evidence” argument in her reasons for decision is not a dependable indication that she failed to appreciate the role the personal journals could play. She clearly understood the use that C.B. intended to make of them and, after meticulously itemizing the alternative evidence he had to advance his motive theory, she determined that the interests of justice are best achieved by preserving the privacy of the journals and permitting C.B. to pursue his motive theory using this other evidence. We see no basis for interfering with that determination.

12Finally, we see no basis for finding error in the trial judge’s consideration of the impact that judicial inspection would have on the reporting in future cases of sexual assault allegations, or the chilling effect that judicial inspection could have on therapeutic journaling. Trial judges are required to consider these factors before conducting a review, pursuant to ss. 278.5(2)(f) and (g), respectively. These considerations address the impact that judicial inspection may have, not on the case under consideration, but on other cases in the future. There was therefore no need for the trial judge to have case-specific evidence relating to these chilling effects before she could consider them as factors in deciding whether to conduct a review.

13Nor was there any need for evidence that K.B. was herself engaged in therapeutic journaling. Had her personal journals been reviewed, it would have stood as an example to other complainants, including those who do engage in therapeutic journaling, that a trial judge may choose to inspect private journals in cases of this kind, thereby contributing to the chilling effects that ss. 278.5(2)(f) and (g) address.

14To be clear, we are not suggesting that private journals should never be inspected by judges or produced to the accused so that chilling messaging will not be sent. Quite the contrary. We are suggesting that before a trial judge orders judicial inspection of private third-party records, they must consider the message that will be sent about the circumstances in which privacy may have to yield to judicial inspection. The trial judge was entitled to find that in all the circumstances of this case, the case for judicial inspection of K.B.’s personal journals was not strong enough to warrant the consequences that judicial inspection could cause, including potentially discouraging reporting and therapeutic journaling.

15We therefore dismiss this ground of appeal.

THE MOTIVE TO LIE

16At trial, C.B. argued as a key plank in his defence that K.B. was motivated to make false sexual abuse allegations against C.B. in order to liberate herself from the strict household rules he imposed. He argues that the trial judge erred by not addressing K.B.’s motivation to make false allegations when assessing K.B.’s credibility.

17We reject this ground of appeal because we are persuaded that the trial judge was fully alive to this issue and considered it. Not only was it obvious from the three attempts to produce third-party records that C.B.’s motive theory was a key plank in his defence, but the trial judge described C.B.’s motive theory at the outset of her decision. She then recounted in detail on multiple occasions material evidence relevant only to the motive theory.

18Although she did not use the word “motive” in the analysis section of her decision, the trial judge explicitly rejected aspects of the motive theory by finding that C.B. was unable to provide any examples of K.B. breaking the rules, or being disrespectful, as he was alleging. The trial judge also explicitly rejected as untruthful C.B.’s claim that he read K.B.’s personal journals because of his concern arising from the breakdown in their relationship. She reasoned that C.B. in fact began reading the personal journals before their relationship was shown to have broken down, around the time the sexual abuse allegedly began occurring.

19Moreover, the trial judge accepted K.B.’s testimony, which included evidence that she was angry with her father because he sexually abused her. In doing so the trial judge said that she “cannot agree that KB’s behaviour reflects any attempt to engage in deceptive or false behavior.” We recognize that this comment was made by the trial judge amidst a number of observations the trial judge had made about the complainant’s demeanour, but it cannot be read in isolation. In the context of a case where C.B. was arguing that K.B. was acting out of motivation to bring deceptive and false sexual abuse allegations against C.B., this comment must fairly be read as a general rejection of K.B.’s motive-based challenge to C.B.’s credibility.

20To be sure, it would have been possible and preferable for the trial judge to have provided a direct and dedicated statement expressly setting out her findings relating to C.B.’s motive theory, but perfection is not required. When the reasons are read as a whole in the context of the evidence and argument, it is clear that the trial judge’s pathway for decision included consideration and rejection beyond a reasonable doubt of C.B.’s contention that K.B. lied out of animus and to liberate herself from the restrictive rules he imposed.

21We therefore reject this ground of appeal.

THE CREDIBILITY EVALUATIONS

22C.B. brings multiple challenges to the trial judge’s evaluation of the credibility and reliability of K.B.’s testimony, and of the testimony he gave. We are not persuaded that the trial judge committed any material errors either of law or of fact in assessing the credibility of K.B. or C.B. Moreover, the decisions she arrived at are reasonable and entitled to deference.

23We will begin by addressing C.B.’s submission that the trial judge applied unfair scrutiny in assessing his own evidence. C.B. relies primarily on two of the trial judge’s findings to make out this ground of appeal.

24First, C.B. argues that the trial judge made inconsistent findings relating to the spontaneity of the denial of guilt he made upon arrest. He bases this argument on the fact that she admitted this denial into evidence as a “spontaneous statement made upon arrest” under the exception in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161 but then found in her reasons for judgment that the denial was not reliable evidence of innocence because it was not a spontaneous denial.

25On closer examination, however, these findings are not inconsistent. This can be seen when the trial judge’s admissibility ruling is read in its entirety. In that ruling, the trial judge held that C.B.’s denial was made spontaneously upon arrest, but she then went on to find that the denial was not reliable enough to admit under the principled hearsay exception. She found that C.B. had ample time to think of a response prior to making the denial because he had been aware of the sexual assault allegation for approximately three hours before his arrest and making that denial. Put otherwise, in admitting the statement, she focused on how spontaneous the disclosure was relative to the arrest, but in assessing the reliability of the denial, both in examining the reliability component of the principled exception and in considering the weight to be given to the denial in deciding the merits of the case, she considered how spontaneous it was relative to his knowledge of the allegation. There is therefore no inconsistency in the rulings. Instead, they refer to spontaneity in two different contexts.¹

26Second, we do not accept C.B.’s submission that the trial judge acted inconsistently and unfairly by recognizing that because of C.B.’s poor mental health, she should not rely on his “stilted” and “over-exaggerated” demeanour during his testimony, only to then rely on his “artificial, non-spontaneous and over‑exaggerated” reaction during the Edgar denial to diminish its weight as proof of his innocence. The two situations differ. Put simply, with respect to the trial testimony the question was whether C.B.’s demeanour should be used to diminish the credibility or reliability of his evidence, but with respect to his Edgar denial the issue was whether his demeanour when denying his guilt supported in inference of innocence. Not unlike in the case of a “spontaneous utterance” admitted as an exception to the hearsay rule, the probative value of an Edgar denial arises, if at all, from the reaction of the accused. Regardless of the cause of the failure of an accused to project an innocent reaction to an arrest, without it there is little indicium of reliability to draw on. We see no error or inconsistency in the trial judge’s reasoning.

27Moreover, contrary to the submission that the trial judge subjected C.B.’s evidence to unfair scrutiny, there were strong reasons offered by the trial judge for rejecting his testimony. She found that C.B. was unable to give concrete examples of his disintegrating relationship with K.B. before the sexual assault allegations emerged. She disbelieved his explanation for reading K.B.’s personal journals because the timing did not support that claim but did support the Crown theory that C.B. was reading the personal journals to see if K.B. was recording the sexual assaults that were occurring. She also relied on C.B.’s indignant denial to looking down the necklines of K.B.’s tops before she went out, which denial was flatly contradicted by the testimony of his wife, E.B.

28We therefore find no basis for interfering with the trial judge’s assessment of C.B.’s credibility. Nor do we see reason to interfere in her assessment of K.B.’s credibility.

29First, we do not accept that the trial judge gave undue weight to K.B.’s demeanour. Although she referred to K.B.’s demeanour on a number of occasions in her decision, this is not entirely surprising given the detailed reasons she provided for the decisions she made. Notably, the trial judge cautioned herself about undue reliance on demeanour evidence but more importantly, provided extensive and diverse reasons for believing K.B. beyond a reasonable doubt. She noted the genuineness and naivety of K.B.’s descriptions of the sexual activity; her ability to withstand the challenge of cross-examination over three days; the logical, straightforward and plausible explanations she gave for inconsistencies in her evidence, including the progressive disclosure of further allegations of abuse; and the confirmation of material components of her narrative by the testimony of her mother, E.B. The confirmation E.B. provided included that K.B. did, in fact, begin sleeping with her door closed as she claimed, she did abruptly begin to refuse to watch movies in the theatre room as she claimed, and the decency checks that K.B. claimed her father was conducting by making her bend over to determine if he could see down her top in fact occurred.

30Nor do we find material error in the trial judge’s decision to prefer the evidence of K.B. where it conflicted with the evidence of the church counsellor K.V. on points of detail relating to the timing and specifics of the disclosures of sexual abuse. The effect of this ruling was to remove from consideration inconsistencies between the evidence of K.B. and K.V. that C.B. was relying upon to challenge K.B.’s testimony. The trial judge was conscious of these inconsistencies, and it was for her to determine what to make of them.

31To be sure, one comment made by the trial judge in addressing these inconsistencies was poorly worded. Specifically, the trial judge explained her decision to prefer K.B.’s account of the conversations she had with K.V. by saying that whereas K.V. was a busy counsellor who did not take notes, K.B. “was directly and intimately involved in the alleged assaults”. We agree with C.B. that it would indeed be circular and illogical to reason that a witness is likely to be speaking accurately about what happened to them because they were involved in what happened to them. But it is not circular or illogical to recognize that making a sexual assault allegation to a counsellor is a noteworthy event for the person making the allegation, such that they are more likely to recall the disclosure than a busy church counsellor who sees many people and who has not kept notes. This may well have been what the trial judge meant to convey. In any event, even if she had engaged in circular and illogical reasoning in preferring K.B.’s version of the sexual assault disclosure to K.V.’s version, this reasoning error would not warrant interfering with the trial judge’s decision given the other more central reasons she gave for finding K.B. to be a credible witness.

32Nor do we find error in the trial judge’s treatment of E.B.’s evidence. She understood and gave appropriate effect to E.B.’s evidence, which, as outlined above, did support a number of the points of detail in K.B.’s narrative. We are not troubled by the trial judge’s comments that E.B. did not have knowledge of the sexual assaults. In our view, the trial judge was not presuming when she said this that the sexual assaults had occurred. The trial judge was addressing the fact that initially E.B. did not believe the allegations, yet despite this, made observations and provided information that supported K.B.’s narrative. As for the points of inconsistency between the evidence of K.B. and E.B. that C.B. relies upon, they are neither clear nor significant. We find no error in the trial judge’s failure to mention them.

CONCLUSION

33The appeal is therefore dismissed.

Footnotes

1. 1We should not be taken to be endorsing the approach the trial judge took when evaluating the spontaneity of the denial of guilt for the purposes of her Edgar ruling. This court’s decision in R. v. Badhwar, 2011 ONCA 266, 270 C.C.C. (3d) 129 illustrates that the admissibility of a denial made upon arrest depends on whether the denial is so spontaneous that the accused would not have had time to “think things out”: at paras. 20‑21. Moldaver J.A. (as he then was) found that Mr. Badhwar’s statement made upon arrest did not meet the Edgar spontaneity requirement because Mr. Badhwar knew about the allegation for five hours before he was arrested, giving him ample time to think things out.