COURT OF APPEAL FOR ONTARIO
DATE: 20230824 DOCKET: C69219
Simmons, Paciocco and Zarnett JJ.A.
BETWEEN
His Majesty the King Respondent
and
Tyler Griffin Appellant
Counsel: James Foy and Arash Ghiassi, for the appellant Amanda Heydon, for the respondent
Heard: February 8, 2023
On appeal from the conviction entered on December 11, 2020 by Justice Patricia C. Hennessy of the Superior Court of Justice.
1Following a judge-alone trial, the appellant was convicted of sexual exploitation and uttering death threats [1] in relation to his then 16-year-old stepdaughter. The trial judge sentenced the appellant to six-years’ imprisonment. The appellant appeals from the convictions.
2The complainant alleged that the appellant sexually assaulted her and threatened to kill her in July 2017 while the two were on a trip to the appellant’s family camp located on an island in Northern Ontario. The appellant testified at trial and denied that any sexual misconduct occurred during the trip or that he threatened to kill the complainant.
3The appellant raises two main issues on appeal.
4First, he submits that the trial judge erred in rejecting his evidence by relying on a “common-sense” assumption, not grounded in the evidence. This assumption was that any stepfather would physically comfort his stepdaughter in a time of need.
5Second, he submits that the trial judge reversed the burden of proof by starting from the presumption that the complainant was telling the truth and then asking whether the appellant had raised a reasonable doubt through challenges to the complainant’s evidence. The trial judge then used additional ungrounded common-sense assumptions and stereotypes to explain away frailties in the complainant’s evidence.
6For the reasons that follow, I would dismiss the appeal.
A. Background
7The appellant began a common law relationship with the complainant’s mother when the complainant was nine or ten years old. He had a child with the complainant’s mother and lived with the complainant’s mother and her family for much of the period between 2010 and 2016.
8The evidence at trial indicated the complainant and the appellant got along well while they lived together, sharing interests and activities. She considered him as her stepfather and his and her mother’s child as her brother. However, the complainant had a difficult relationship with her mother and left home at age 14, about two years before the events at issue. At the time of the events, there was a peace bond between the complainant and her mother and the complainant’s mother was withholding access to her younger half-brother from the complainant in what the complainant perceived was retaliation.
9After leaving home, the complainant became enmeshed in the Sudbury drug culture. She began taking a lot of speed and accumulating drug debts. She had no stable housing, was not in contact with her mother or siblings, and had no adult guidance outside the drug culture.
10A few months before the events at issue, the complainant, who was 16 years old at the time, was taken to an unknown location and harmed by two men (the “Chelmsford men”) to whom she owed drug money. Following this experience, a mutual friend put her back in touch with the appellant, who was then 34 years old.
11The appellant had not had any contact with the complainant since he separated from her mother. He testified, “there was … no tie, no connection, no reason to be in touch.” Further, he was involved in both criminal and family court proceedings with the complainant’s mother at the time and working out of town. However, although reluctant at first, once he learned why the complainant was trying to get in touch with him, he began communicating with her through text messages and phone calls and offered to provide her with guidance and advice. According to him, he also telephoned the Chelmsford men to tell them to stop harassing the complainant. After his contact with them, he said his level of concern for the complainant became very real.
12At some point, the complainant and the appellant discussed spending some time together at the appellant’s island family camp. At least part of the purpose of the trip was to give the complainant a break from the chaos in her life and an opportunity to recalibrate [2]. On the evening of Monday, July 17, 2017, the appellant picked her up at the Spanish River marina and took her to the island camp by boat.
13There are two buildings on the island, a main camp with a kitchen, two bedrooms and a living space; and a sleep camp with one bedroom and several beds. No one else was present on the island when the appellant and the complainant arrived.
14The complainant testified that, soon after arriving on the island, the appellant offered her cocaine. The two then stayed up all night, getting high on cocaine and talking. At some point the following day the complainant laid down on a bed in the sleep camp to try to get some sleep. The appellant laid down beside her on the bed, began sexually touching her, and performed oral sex on her. He then put her on a mattress on the floor and had unprotected intercourse with her. According to the complainant, after the sexual assault, the appellant said this was “fucked up” and that if she told anyone he would have to kill her. She also claimed that while he was sexually assaulting her the appellant made statements along the lines, “you remind me of your mother” and “dirty stepdaughter.”
15The complainant and the appellant spent the next few days on the island together until the appellant was able to borrow a car on July 20, 2017 and drive the complainant back to Sudbury. While on the island, the appellant encouraged the complainant to get control of her life. The complainant testified that the appellant made promises to her, including that he would give her a large amount of cocaine, presumably for her to sell, set her up in a real estate situation, and possibly give her a place to live.
16Following their return from the camp, the complainant did not see the appellant but texted him many times. She asked him for money, wanted to know where he was, and asked him to call her.
17The complainant disclosed that something had happened at camp to two friends. The two friends testified at trial but gave accounts of the complainant’s disclosures that differed from her account.
18The appellant testified that he and the complainant stayed up most of their first night at the camp talking and smoking marijuana. According to him, they both slept in one bedroom in the main camp that night but on separate beds. He denied that they used cocaine and also denied any sexual touching or threats. The appellant asserted that while on the island he encouraged the complainant to clean up her life and agreed to help her and possibly find a place to live in Sudbury and let her live with him if she did so. But he wanted her to take steps to organize her debts, stay off hard drugs, and go to school. He denied promising to give her drugs or to set her up in a real estate situation. After returning from the trip, he felt discouraged because she was not living up to her end of the bargain. But he was still in touch with her by phone and had a face-to-face encounter with the Chelmsford men.
19The allegations came to light after the complainant’s mother telephoned her in October 2017. The two had been out of touch for some time. The complainant’s mother had received court documents concerning her family law proceeding with the appellant which apparently included suggestions that the complainant had made comments about her mother to the appellant. During the call, the complainant acknowledged going to the appellant’s camp, ostensibly to spend time with her brother, and disclosed the sexual assault. The complainant’s mother took her to the police station within a couple of days. The complainant subsequently gave three statements to the police.
The positions of the parties at trial
20The defence position at trial was that the complainant's version of events was improbable in light of the appellant’s actions in trying to help her both before and after the trip to the island. Defence counsel at trial (not appellate counsel) also argued that the complainant had a motive to fabricate to assist her mother in her pending court proceedings with the appellant. Further, defence counsel pointed to the complainant’s persistent communications with the appellant following the trip, numerous alleged inconsistencies in her evidence, and an alleged lack of detail in her description of the sexual assault as undermining the credibility and reliability of her evidence. While acknowledging that the appellant had admitted sharing marijuana with the complainant and sleeping in the same room, defence counsel submitted that his evidence was “acceptable” and made “the most sense.”
21The Crown argued that the complainant was consistent in her evidence concerning her core allegations regarding the offences. Relying on R. v. J.J.R.D. (2006), 2006 ONCA 40088, 215 C.C.C. (3d) 252, (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, the Crown submitted that if the trial judge accepted the complainant’s evidence, she could reject the appellant's evidence without having to identify specific flaws in it. In any event, the Crown submitted that certain aspects of the appellant’s evidence did not make sense, including his stated level of concern for the complainant but lack of contact with her following the trip.
The trial judge’s reasons
22At the outset of her reasons, the trial judge noted that the complainant was 16 years old at the time of the alleged events and that it was undisputed that the appellant was in a position of trust and authority to her. The issues were therefore focused on whether the sexual assault and threats occurred and the credibility of the witnesses.
23After summarizing the evidence, the trial judge reviewed the applicable law including the presumption of innocence, the burden and standard of proof, and the elements of the offences. She correctly set out the test from W.(D.) [3], and then turned to her analysis. She first considered and rejected the appellant's evidence at steps one and two of W.(D.).
24She said “[t]he step three W.(D.) analysis requires the court to look at all of the evidence to determine if a reasonable doubt arises.” She reviewed the many defence challenges to the complainant’s credibility and rejected all of them, including the defence claim that the complainant had a motive to fabricate, as being either unfounded or peripheral. She found that the complainant’s “basic account of the sexual assault and the threat at camp remain[ed] unaltered after a cross-examination that focused ... on minor inconsistencies, on peripheral matters from statement to statement.” She also found the complainant’s core evidence on disclosure reliable. She concluded, “[o]n the third step of W.(D.) I am satisfied beyond a reasonable doubt on the guilt of the accused based on the evidence of the complainant, which I accept.”
Issues and Analysis
(1) Did the trial judge err by relying on a common-sense assumption not grounded in the evidence as one of two key reasons for rejecting the appellant’s evidence?
25When addressing steps one and two of her W.(D.) analysis, the trial judge identified “some troubling aspects” of the appellant's evidence that led her to reject his evidence and conclude that it did not raise a reasonable doubt. The appellant submits that, in relation to the first issue she identified, the trial judge erred by relying on a common-sense assumption, not grounded in the evidence, that any stepfather would physically comfort his stepdaughter in a time of need, as a basis for rejecting his evidence.
26As part of her step one and two W.(D.) analysis the trial judge said:
There were, however, some troubling aspects to the evidence of the [appellant]. When the [appellant] says that he spent hours talking with [the complainant] and that her stories stirred at his heartstrings and broke his heart, and that they slept in the same room, he also denies he ever touched [the complainant] in any way other than to give her a hand getting out of the boat. He denies any comfort touching.
As a matter of human experience this seems implausible. The [appellant] did not explain why he would not offer [the complainant], who he considered a stepdaughter, a touch of comfort. His evidence suggested that he was prepared to deny anything that might suggest sexual touching, and I do not accept this evidence. [Emphasis added.]
27Later, when summing up her W.(D.) analysis, the trial judge said:
On the third step of W.(D.) I am satisfied beyond a reasonable doubt on the guilt of the accused based on the evidence of the complainant, which I accept.
While I have noted the frailties in the complainant's evidence, they do not cause me to have a doubt, either alone or in combination with all of the evidence in this case.
I reject the evidence of the accused and his denials. I am not left in a reasonable doubt by it or by any of the evidence.
I reject his evidence that he never touched the complainant, not even once during their three and a half days on the island.
I find that this particular evidence was meant to try to convince the court that he could not or would not have touched her sexually if he had not touched her in comforting. [Emphasis added.]
28The appellant submits that this reasoning reflects several problems. First, the trial judge’s statement that the appellant only touched the complainant while giving her a hand out of the boat misapprehends the evidence, albeit in a minor way. When asked during cross-examination about touching the complainant while on the island, the appellant also referred to a “hey, long time no see” hug when she arrived at Spanish.
29Second, and more importantly, the appellant submits that the trial judge’s finding that it was implausible as a matter of human experience that the appellant would not offer the complainant a touch of comfort when she was recounting her stories rests on a generalized assumption about how a stepfather is expected to act when hearing a heart wrenching story about a traumatic event that happened to their stepdaughter. The appellant says the trial judge made her finding of implausibility only by making an assumption about how a stepfather would act in the circumstances and comparing the appellant’s conduct to that assumed standard.
30The appellant submits that the trial judge’s reasoning violates the rule against ungrounded common-sense assumptions, which requires that trial judges avoid speculative reasoning that invokes common-sense assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 58. The legal error consists of the trial judge making an assumption about the behaviour of a hypothetical stepfather figure and comparing the appellant’s behaviour to that hypothetical standard.
31Such reasoning, says the appellant, is the only explanation for the trial judge’s further statement that the appellant did not explain why he would not offer the complainant, whom he considered a stepdaughter, a touch of comfort. The appellant was not asked during cross-examination why he did not offer the complainant a touch of comfort while she was recounting her stories. The appellant contends that the trial judge’s statement is the product of the trial judge’s further assumption that, since any human would have offered a touch of comfort in the circumstances, if the appellant did not do so, he would have spontaneously explained why not. Had the trial judge been focused on evidence relevant to how the appellant was likely to have behaved in the circumstances, there would have been no need for the appellant to provide an explanation.
32Further, the appellant asserts that also inherent in the trial judge’s reasoning is an additional ungrounded common-sense assumption that any teenage stepdaughter would have engaged in, or welcomed, comfort touching in the circumstances.
33The appellant submits that there was no evidence led at trial from either the appellant or the complainant that could support a finding that they had a physically affectionate relationship. Accordingly, the trial judge’s reasoning in this respect rests solely on the appellant’s failure to meet a hypothetical standard and is not grounded in any evidence concerning the nature of the relationship between this stepfather and this stepdaughter.
34In addition, apart from the fact that the trial judge’s reasoning was impermissible, the appellant submits that it led her to conclude that the appellant did engage in comfort touching with the complainant. She found his denial of comfort touching implausible and said she did not accept “this evidence.” This led her to conclude that the appellant was lying in order to distance himself from anything that might suggest sexual touching, a finding that was extremely damaging to the appellant’s credibility.
35Finally, relying on R. v. Tran, 2023 ONCA 11, the appellant submits that the trial judge’s reliance on this line of reasoning was unfair. The comfort touching issue was never raised in submissions by either of the parties nor did the trial judge raise it herself before making her findings. Yet, this line of reasoning, including the appellant’s failure to explain why he did not engage in comfort touching when he was not asked for an explanation, became a key plank in the trial judge’s rejection of the appellant’s evidence.
36I would not accept these submissions.
37As a starting point, a trial judge’s credibility findings are entitled to particular deference: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11. Credibility findings should not be interfered with unless they “cannot be supported on any reasonable view of the evidence”: R. v. Burke, [1996] 1 S.C.R. 474, 1996 SCC 229, at para. 7.
38Articulating reasons for findings of credibility is challenging. In reviewing credibility findings, an appellate court should not undertake a word‑by‑word analysis of the reasons. Further, a review of a trial judge’s reasons must not turn into a line-by-line search for errors: R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at paras. 13 and 33. Rather, an appellate court must examine whether the reasons, taken as a whole, reflect reversible error when considered within the context of the trial record. Credibility findings must also be assessed in light of the presumption of the correct application of the law: see G.F. at paras. 69, 81-82.
39Importantly, the rule against ungrounded common-sense assumptions does not prohibit using human experience about human behaviour to interpret evidence. Rather it prohibits “using ‘common-sense’ or human experience to introduce new considerations, not arising from the evidence, into the decision-making process, including considerations about human behaviour”: J.C., at para. 61.
40In the context of the record and her reasons as a whole, I do not read the trial judge’s reasons as being premised on ungrounded common-sense assumptions or as comparing the appellant’s behaviour to that of a hypothetical stepfather, as claimed by the appellant. Rather, I read her findings as an assessment of the plausibility of the appellant’s overall account grounded in his own evidence concerning his interactions with the complainant and his reaction to her account of her circumstances. Further, I do not read the trial judge’s finding of implausibility or rejection of his denials as meaning she was satisfied the appellant engaged in comfort touching. Rather, I read these findings as meaning she concluded that the appellant’s evidence was contrived. Finally, I do not consider the trial judge’s findings in any way unfair.
41During his testimony, the appellant portrayed himself as a supportive and empathetic protector of the complainant. He testified that he did not hear the complainant’s first-hand account of her experience with the Chelmsford men or know the extent to which she had been hurt and remained in danger until they got to the island. The precise nature of the complainant’s experience with the Chelmsford men was never fully explored in evidence, at least in part because of a s. 276 Criminal Code issue. However, the appellant did testify that the complainant had been “severely hurt,” meaning “injured.” He also described her ongoing situation arising from her dealings with the Chelmsford men. He said, “[she] feared for her life,” and “it was missing person to be if these guys carried on.” He described a message to the complainant from one of the Chelmsford men which he saw while on the island as a “direct threat to life.” He stated that he had “grave concern” for the complainant because of the Chelmsford men and that he was afraid for her because her “legitimate life was in jeopardy.” At one point during examination in-chief, he said, a “lot came to light as far as where she was at” and his “heart broke for her” while on the island.
42Nonetheless, during cross-examination, the appellant denied that he had touched the complainant in any way after they arrived on the island and firmly rejected the Crown’s suggestion that he ever engaged in “comfort touching” in response to being told about the complainant’s dealings with the Chelmsford men:
Q. …I'm just going to switch gears here... A. Yes. Q. and I want to talk about your time on the island. At any point during your stay there did you have any physical contact with [the complainant]? A. No. Q. None whatsoever? A. Maybe a hand out of the boat. Q. Okay. A. But, no. Q. Did you ever hug her at all during your stay there? A. Not that I recall. I — when she got to Spanish, actually, it was like a “hey, long time no see” hug. Q. Okay. But other than that you don't recall any... A. No. Q. other kind of touching occurring? A. No. Q. Okay. Even when she was telling you about the incident with the Chelmsford guys there was no type of... A. No. Q. comfort touching? A. No, certainly not. That was a — no. [Emphasis added.]
43As can be seen from this exchange, when asked about physical contact with the complainant, the appellant’s evidence started off with a blanket denial of touching, followed by subsequent concessions of specific instances where he recalled touching the complainant, but then a reassertion that there was no physical contact for the remainder of their time on the island and then a firm denial of any comfort touching.
44Against the backdrop of this exchange, the appellant’s description of the complainant’s situation and his self-portrayal as her protector and the other evidence, the trial judge made the impugned findings, which I reproduce for convenience:
There were, however, some troubling aspects to the evidence of the [appellant]. When the [appellant] says that he spent hours talking with [the complainant] and that her stories stirred at his heartstrings and broke his heart, and that they slept in the same room, he also denies he ever touched [the complainant] in any way other than to give her a hand getting out of the boat. He denies any comfort touching.
As a matter of human experience this seems implausible. The [appellant] did not explain why he would not offer [the complainant], who he considered a stepdaughter, a touch of comfort. His evidence suggested that he was prepared to deny anything that might suggest sexual touching, and I do not accept this evidence. [Emphasis added.]
45As I have said, I do not read the trial judge’s reasons as comparing the behaviour of the appellant to a hypothetical stepfather, as the appellant argues. Rather, I read the trial judge as assessing whether the appellant’s overall story was plausible. She found that it was not and therefore concluded, not that he had engaged in comfort touching, but that his story was contrived. In my view, her assessment was firmly grounded in the evidence that was before her.
46As set out above, the appellant testified that he first learned the full extent of the complainant’s situation when they got to the island. As noted by the trial judge, he claimed to have spent hours listening to her stories, that his heart broke for her and that they were comfortable enough with each other to sleep in the same room. He also acknowledged giving the complainant a hug when she arrived at the marina and being in a “selfie” with the complainant while they were on the island in which they are shown as being only inches, if that far, apart.
47All of the foregoing evidence points to the real likelihood that, if the appellant’s account of his discussions with the complainant and his reaction to them were true, when listening to the complainant’s account of her encounter with the Chelmsford men, the appellant would have offered some form of comfort touch to the complainant, even if only a hand on her hand or a hand on her shoulder. This likelihood is not premised on an ungrounded common-sense assumption but rather on the appellant’s own description of his evolving understanding of the complainant’s plight, his emotional reaction to their discussions, and the physical closeness he acknowledged sharing with her by giving her a hug when she arrived at the marina, sleeping in the same room with her and as depicted in the selfie.
48Read fairly, in saying, “[a]s a matter of human experience this seems implausible” and, later, “I reject his evidence that he never touched the complainant [while on the island]”, the trial judge was not making a finding that the appellant engaged in comfort touching, as the appellant argues. Rather, she was finding that his overall portrayal of himself as it pertained to his discussions with the complainant and his reactions to her stories – and yet his denial of any form of comfort touching – were contrived.
49Whether the appellant engaged in comfort touching was not the trial judge’s point. Her point was that his evidence did not add up. Had it been truthful, rather than being so firm in his denial of comfort touching in his exchange with the Crown, he would have explained, for example, that he and the complainant were not physically affectionate.
50I am reinforced in my conclusion by the trial judge’s findings concerning the second troubling aspect of the appellant’s evidence that she identified, namely his failure to follow up on his promises of help after the trip to the island. The trial judge said:
The more troubling aspect of the evidence of the [appellant] was his staunch assertion that he knew [the complainant] was without any support - and he was committed to helping her, he kept his promises to her.
The [appellant] was challenged on this assertion that he remained committed to helping [the complainant] after the Island visit. The text evidence does not support the [appellant’s] position. In fact, it contradicts the [appellant] being either helpful or available to [the complainant] after the Island.
When asked on cross-examination why he didn't respond to [the complainant’s] text[s] or request[s] for help, the appellant offered various excuses and he testified that maybe he did call her between the texts. The text messages show repeated requests to the accused to call her or tell her where he was. The [appellant] said in cross-examination, maybe I called her. I was busy keeping up my end of the deal by finding the [Chelmsford] men. I spoke to her multiple times a day during that period.
I found the [appellant’s] responses to these questions to be evolving, convenient, and contrived as he tried to explain that he had not been ignoring her calls for help. I do not accept that he was being truthful on this point and that his evidence on this point does not raise a reasonable doubt.
[The appellant] said that he also knew that [the complainant] was being taken care of, that even when he was without a phone, that she had a phone number for his mother or his friends. I find that his excuses were not consistent with his evidence that he was committed to helping [the complainant] get her life sorted.
The texts which cover the weeks and months following the Island are inconsistent with this evidence.
51These findings demonstrate that the trial judge’s overall conclusion was that the appellant’s evidence was contrived. The impugned finding was but one brief further illustration of that conclusion.
52Assessing the record and the trial judge’s reasons as a whole, I conclude that the trial judge rejected the appellant’s denial of comfort touching as being contrived based on her assessment of his evidence concerning his interactions with the complainant and his reaction to and intentions with respect to her situation. As I have said, the trial judge was not measuring the appellant’s testimony against the yardstick of a hypothetical stepfather, but rather the stepfather the appellant claimed to be. I am not persuaded that the trial judge made a finding that the appellant engaged in comfort touching or that she relied on an ungrounded common‑sense assumption in making her findings.
53Finally, I am not persuaded that the trial judge’s finding on this issue was procedurally unfair because no one raised the issue in closing submissions.
54In Tran, the appellant was convicted of fraud. A co-accused pleaded guilty to fraud and acknowledged falsely crediting almost $300,000 through the company he worked for to credit cards in the appellant’s name. The appellant testified and denied knowing that the credit card transactions were fraudulent. The trial judge found it “far-fetched” that the appellant and the co-accused had not communicated after the appellant’s arrest, an issue never raised at trial. In allowing the appeal, this court held, at para. 25:
Thus, a central reason the trial judge gave for rejecting the evidence of both the appellant and Mr. Ha … was never raised either in cross-examination or in submissions by Crown counsel at trial. As a result, the appellant had no opportunity to address the trial judge’s concerns about concoction either in his evidence or in submissions at trial. Further, because of this procedural unfairness, and the fact that the issue only arose in the reasons for judgment, trial counsel for the appellant had no opportunity to object. [Emphasis added]
55Tran is distinguishable. This is not a case where the comfort touching issue arose for the first time in the trial judge’s reasons, giving the appellant no opportunity to respond. Rather, the issue arose during the appellant’s cross‑examination, and was accordingly part of the evidence that the trial judge had to grapple with. Defence counsel at trial had the opportunity to re‑examine the appellant on the issue or address it in submissions. He did not do so. Trial judges are required to make their findings based on the whole of the evidence adduced at trial. While it should not be the usual case, they are not prohibited from making findings based on evidence not referred to during submissions.
(2) Did the trial judge reverse the burden of proof?
56The appellant submits that the trial judge reversed the burden of proof and that this can be seen at both a structural level in terms of how she approached her task and at a more granular level in terms of how she treated specific areas of evidence. I will deal with these arguments in turn.
57At a structural level, the appellant contends that the trial judge’s reasons demonstrate that she started from a presumption that the complainant was telling the truth and proceeded to explain why the appellant’s arguments did not displace that presumption.
58The appellant points to page 16 of the trial judge’s reasons where she commenced step three of her W.(D.) analysis by saying:
The step three W.(D.) analysis requires the court to look at all of the evidence to determine if a reasonable doubt arises.
59This statement, says the appellant, creates the impression that the trial judge is starting her step three W.(D.) analysis by accepting that he is guilty unless and until a reasonable doubt is found.
60Soon after setting out this starting point, the trial judge acknowledged that the appellant claimed there were problems with the complainant’s evidence, but said her task was to attempt to distinguish them to determine if the core of the complainant’s allegations remained intact:
The [appellant] argued that the complainant’s evidence was replete with inconsistencies, improbabilities, and omissions. The court must therefore assess the complainant’s evidence, identify any inconsistencies, and distinguish them - distinguish before [sic] major and peripheral inconsistencies, and determine whether the core of the allegations remain intact. And I rely on the authority of R. v. R.A., 2017 ONCA 714, at para. 46 [Emphasis added.]
61Here, the appellant says, the trial judge relied incorrectly on language describing the role of an appellate court. In using such language to describe her role as a trial judge she was effectively giving deference to the complainant and again starting from a presumption of guilt.
62The trial judge then reviewed and rejected each of the issues raised by the appellant and concluded by saying that none of them caused her to have a doubt:
While I have noted the frailties in the complainant’s evidence, they do not cause me to have a doubt, either alone, or in combination with all of the evidence in this case. [Emphasis added.]
63Overall, says the appellant, the structure of the trial judge’s reasons shows that she started from a presumption of guilt and proceeded on the basis that she was going to accept the Crown’s evidence unless the appellant could demonstrate some reason why she should not do so. Given that she rejected the appellant’s criticisms of the complainant’s evidence, she concluded that the Crown had proved its case beyond a reasonable doubt without ever critically assessing the reliability and credibility of the complainant’s evidence in the context of the evidence as a whole. Put another way, the appellant submits that the trial judge never assessed whether the complainant’s evidence was credible; she only addressed the appellant’s arguments to the contrary.
64I would not accept the appellant’s submissions for the following reasons.
(a) The trial judge’s approach to complainant’s credibility did not reverse the burden of proof
65I begin by noting that the trial judge correctly set out the burden of proof, the presumption of innocence and the proper formulation of the W.(D.) analysis at pages 10, 12 and 13 of her reasons, prior to the impugned step three W.(D.) formulation, which appears at page 16. In doing so, she correctly instructed herself, at pages 12 to 13, that at step three of the W.(D.) analysis, she must ask the following question:
[I]f I am not left in reasonable doubt by the evidence of the accused, I must ask myself, whether on the basis of the evidence, which I do accept, whether I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
66Although I agree that the page 16 step three formulation is imperfectly expressed, read in the context of her earlier proper statement, I am not persuaded that it reveals a reversal of the burden of proof. For ease of reference, at page 16, the trial judge said,
The step three W.(D.) analysis requires the court to look at all of the evidence to determine if a reasonable doubt arises.
67Read fairly, this single sentence that the appellant impugns was merely a shorthand reminder to herself. When the trial judge’s reasons are examined as a whole, they do not indicate a shifting of the burden to the appellant to demonstrate a reasonable doubt.
68In addition to the proper formulation of the W.(D.) analysis pointed out above, immediately after the impugned sentence the trial judge noted,
Because the Crown’s case rests on the complainant’s evidence, credibility and reliability of the complainant is the primary focus.
69While the appellant argues that the trial judge failed to assess the complainant’s credibility, read fairly and as a whole, her reasons indicate that she did so. At various points in her reasons on step three of W.(D.), the trial judge indicated that she found the complainant’s evidence to be “clear”, “consistent”, “not shaken on cross-examination”, and “doing her best to recount the various encounters she had with [the appellant]”. Ultimately, on the W.(D.) analysis, the trial judge concluded,
On the third step of W.(D.) I am satisfied beyond a reasonable doubt on the guilt of the accused based on the evidence of the complainant, which I accept.
While I have noted the frailties in the Complainant’s evidence, they do not cause me to have a doubt, either alone, or in combination with all of the evidence in this case.
I reject the evidence of the accused and his denials. I am not left in a reasonable doubt by it or by any of the evidence. [Emphasis added.]
70Reading her reasons as a whole, it cannot be said that the trial judge imposed a burden of proof on the appellant and started her analysis from a presumption of guilt. Her reasons reflect a proper understanding of the relationship between reasonable doubt and the assessment of credibility and its application to the case at hand: see R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 50-51.
(b) The trial judge’s approach to inconsistencies in complainant evidence did not reverse the burden of proof
71The appellant submits that this reversal of the burden of proof error is also demonstrated in the trial judge’s treatment of inconsistencies in three areas of the complainant's evidence that the appellant argued undermined her credibility: the complainant’s phone use on the island, her contact with the appellant after the trip, and her disclosure of the allegations. Further, the appellant contends that trial judge’s treatment of these areas of evidence was marred by additional errors. She either explained away inconsistencies in this evidence using ungrounded common‑sense assumptions or failed to address or resolve the inconsistencies at all.
Phone use on the island
72The complainant testified that the appellant looked through her phone, deleted messages, and monitored and restricted her phone use on the island.
73The trial judge found that the text messages in evidence contradicted the complainant’s evidence and showed that she used her phone frequently, including sending many messages trying to find a way home. She also made the following specific findings:
I don't accept that the [appellant] was monitoring [the complainant’s] phone use. I accept that the [appellant] urged the [complainant] to stay off her phone and remove herself from the reach of the drug culture, and that at least one time, he may have taken her phone to see who she was texting, and one time to change the music.
On cross-examination [the complainant] agreed [the appellant] only took her phone once.
I find that [the complainant’s] evidence on this point is, at the least, exaggerated. On the one hand [the complainant] testified that the [appellant] looked at her phone and deleted some messages. On the other hand she agreed that she was able to send many texts and kept possession of her phone.
It is understandable that a 16 year old would chafe at any suggested restrictions on her phone use. I do note that [the complainant] was not straightforward on this point however I find it a peripheral point that does not go to the core allegations. [Emphasis added.]
74The appellant contends the trial judge made several errors in these passages. First, she relied on an ungrounded common-sense assumption about a teenager’s reaction to restrictions on phone use to minimize and excuse the complainant’s significant inconsistency.
75Second, while finding the complainant’s evidence concerning phone use was at least exaggerated and not straightforward, she excused the complainant’s inconsistency as peripheral – when clearly it was not. The complainant confirmed in her evidence that she was concerned that the appellant would kill her if he saw her sending a message asking someone to come and get her – a piece of evidence that went squarely to one of the elements of the uttering threats charge.
76Third, in finding this inconsistency was peripheral, the trial judge applied a lesser standard of scrutiny to the complainant’s evidence compared to the standard she applied to the appellant's evidence. The trial judge did so by holding, for example, that he gave “evolving, convenient and contrived” explanations when challenged about his commitment to helping the complainant after the trip.
77I would not accept these submissions.
78First, I am not persuaded that the trial judge was relying on a common-sense assumption not grounded in the evidence to minimize and excuse the complainant’s inconsistency when she said, “it is understandable that a 16‑year‑old would chafe at any suggested restrictions on her phone use”.
79There was ample evidence in the record that the complainant was very attached to her phone. The appellant testified that she “had her phone in one hand … the entire week.” Further, the complainant acknowledged sending multiple messages while on the island, including messages asking for help to get off the island, while she “went along with it” to convince the appellant everything was fine.
80Although perhaps an unfortunate turn-of-phrase, in my view, in making the impugned statement, the trial judge was merely assessing the complainant’s exaggeration from the complainant’s perspective, namely, the perspective of a 16‑year‑old young woman who had become unused to any adult supervision, who was now stranded on an island with her stepfather and who was obviously very attached to her phone. Further, and in any event, the impugned statement did not explain away the inconsistency, it was the finding that the inconsistency was peripheral that did so.
81Second, I reiterate that credibility findings are the province of the trial judge and attract a high degree of deference on appeal: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183 at para 39; G.F. at para. 99; Vuradin at para. 11. The appellant’s argument, in essence, is that the complainant’s inconsistencies regarding her phone use on the island were entitled to greater weight than that given to them by the trial judge.
82It is not for this court to re-weigh this evidence on appeal. The trial judge considered the inconsistencies in the complainant’s evidence regarding the phone use and did not accept that the appellant was monitoring her phone, as the complainant had alleged, and described her evidence to be “exaggerated” and the complainant to be “not straight forward” on this issue. She did not ignore the inconsistency or its impact on the complainant’s credibility. She assessed the evidence and found that the inconsistency was peripheral.
83The fact that the complainant testified that she was concerned that the appellant would kill her if he saw her sending a message asking someone to come and get her does not undermine this assessment. The complainant gave specific evidence about death threats she claimed the appellant made that established the elements of the uttering death threats offence. The complainant’s evidence regarding her state of mind concerning phone use did not go directly to establishing those elements.
84It was for the trial judge to assess whether the complainant’s exaggerations and lack of straightforwardness in relation to phone use in any way affected the complainant’s credibility concerning her more specific evidence relating to the threats. She concluded it did not. Again, disagreement with the weight assigned to inconsistencies does not give rise to reversible error: A.A., at para. 124.
85Finally, I do not accept that the trial judge’s findings on this issue demonstrate that she applied a lesser standard of scrutiny to the complainant’s evidence than the standard she applied to the appellant's evidence. In G.F., the Supreme Court of Canada noted that the argument of uneven scrutiny is premised on the presumption that “the testimony of different witnesses necessarily deserves parallel or symmetrical analysis,” whereas “the focus must always be on whether there is reversible error in the trial judge’s credibility findings”: at para. 100. The court went on to observe that in appellate cases that have accepted an uneven scrutiny argument, courts have been able to identify some specific error in the credibility assessment. The appellant has identified no such error here.
Contact with the appellant after the trip to the island
86The complainant testified that following the trip to the island she was afraid of the appellant. Among other things, she said she was afraid because he wanted to kill her. She also said after he dropped her off in Sudbury she was so afraid of him that she stayed in a basement apartment for two months and barely went outside. However, in contrast to that evidence, the complainant testified that she was frustrated that the appellant was not keeping his promises to her and repeatedly texted him asking him to contact her.
87The trial judge concluded that, “[c]onsidering all the evidence on this point, the post Island relationship and feelings, and fear … [the complainant’s] evidence and her frequent communication with the [appellant]” were not inconsistent.
88Among other things, the trial judge said she understood the complainant’s evidence about fear of the appellant as being tied to his threats on the island which were meant to frighten her from disclosing what went on at the island. The trial judge did not understand the evidence to mean that the complainant was frightened “of the accused as the accused.” Similarly, the trial judge found that the appellant reinforced in the complainant a fear that “bad things could happen if she disclosed [the] incident [with the Chelmsford men].”
89Concerning the issue of promises, the trial judge found the complainant’s evidence “somewhat confused” concerning exactly what they were or whether they were mutually understood. She also found “much of the evidence on the text messages and the relationship between [the complainant] and the [appellant]” following their return from the island “difficult to decipher.” The text messages showed that the complainant was, however, adamant in her text messages that the appellant was not keeping his promises.
90The appellant submits that the trial judge’s analysis on this issue reveals both a subtle shifting of the burden of proof and a failure to resolve a material inconsistency. While the text messages were sufficiently clear to undermine the appellant’s evidence, they were too equivocal to undermine the complainant’s evidence. Further, the appellant submits the trial judge failed to resolve the significant inconsistency in the complainant’s evidence that she was too afraid of the appellant to leave a basement apartment for two months and yet frustrated that he did not remain in contact with her following their return from the island.
91I would not accept these submissions.
92The appellant’s argument on the shifting of the burden is, in essence, once again an argument that the trial judge applied a higher level of scrutiny to his evidence as compared to the evidence of the complainant. He says the trial judge found that his text messages were sufficiently clear to undermine his evidence but not so with respect to the complainant’s text messages.
93However, the issue relating to the appellant’s evidence was his claim that he remained committed to helping the complainant following their return from the island. The trial judge rejected his assertion for two reasons. First, she found that the text messages showed that he failed to respond to repeated requests from the complainant to contact her. Second, he found the appellant’s response to questions about why he did not contact her to be “evolving, convenient, and contrived.” These findings were open to the trial judge on the basis of the record before her.
94On the other hand, the issue arising from the text messages in relation to the complainant’s evidence related to the apparent inconsistency between her claimed fear of the appellant in the face of her persistent text messages to him trying to get him to fulfill his promises to her.
95The trial judge found the evidence as contained in the text messages concerning the relationship between the appellant and the complainant following the island visit difficult to decipher because of the jargon used and some of the messages being put to her without full context. She also found the complainant’s evidence about the appellant’s promises “somewhat confused.” Nonetheless, the trial judge found that “whatever the exact promises were, or whether they were mutually understood, [the complainant] remained adamant in her text communications with [the appellant] that he was not keeping his promises.”
96Thus, although the trial judge found the complainant’s text messages difficult to decipher, she was able to find that the complainant persistently texted the appellant following her return from the island despite her stated fear of him. In the circumstances, I fail to see how the trial judge held the appellant to a higher standard of scrutiny than the complainant. She made findings against the appellant based on the appellant’s failure to respond to the complainant’s messages and her assessment of his oral evidence. While the complainant’s text messages may have been somewhat confusing, the trial judge also made the finding that the complainant was persistently texting the appellant following their return despite her stated fear of him.
97The trial judge concluded that the complainant’s evidence about her fear of the accused was not inconsistent with the evidence of her frequent communications with him. I am satisfied that this finding was open to the trial judge on the record before her. The trial judge found that the complainant’s fear was premised on the appellant’s threats that he would have to kill her if she told anyone what happened on the island and his advice that bad things could happen if she disclosed her experience with the Chelmsford men. The trial judge concluded that this did not amount to a fear of the appellant in general. However, the complainant’s communications with the appellant were aimed at getting him to fulfill his promises. The complainant explained the basis for this apparent contradiction on more than one occasion in her evidence. Among other things, she said,
[A]fter talking to an adult about it … that’s when I started to realize that, like, there was something wrong with what was happening with me because I was supposed to wait for [the appellant] to bring me - he promised me coke, he promised me, like, a place. He promised me a lot of things, right, and he didn't even really try to speak to me after promising all these things after what happened. So after what happened to me, I was kind of considering to, like, at least take advantage of what happened to me and get something to at least help further my future and my life so at the time a half ounce of coke was money to me. It was something so I could eat supper that night, you know.
Yes. And once again I'm going to say the same thing; I was fearful and I didn't understand why he disappeared. After your stepfather or someone comes into your life, never mind has sex with you, that I didn't know how to perceive the situation, I didn't have any adults to talk to, so I kept messaging him asking him what's going on. It felt like he had — why wasn't he answering me? It felt like he had just had sex with me and ditched me. [Emphasis added.]
98The trial judge’s finding that there was no inconsistency between the complainant’s fear of the appellant and her contact with him after the island was grounded in the record and is entitled to deference.
Disclosure of the allegations
99The complainant testified that she told a friend, who later became her boyfriend, and another male friend (the “male friend”) about the sexual assault shortly after returning from the island. Both of these witnesses testified for the Crown. According to the male friend, the complainant did not tell him about a sexual assault but rather about beatings that left bruises on her body. According to the complainant's boyfriend, the complainant told him only that “her stepfather did some stuff to her.” However, the complainant testified that she shared more detail with her boyfriend than the male friend including “how much coke, what happened with the sex, where was it, everything.”
100Among other things the trial judge said the following about this evidence:
The evidence from all three suffers from reliability and memory issues. We know they were all involved heavily in drugs at the time. I find that [the complainant] did make some disclosure to [the male friend and the boyfriend] on her return. However, the exact timing and details of that disclosure is not specific.
I do not find it unusual that a teenage girl would not give details of a sexual assault to two teenage boys who are her friends. I find no material inconsistencies in the evidence of the disclosure.
101The appellant submits that the trial judge’s findings concerning the evidence of these witnesses demonstrates her approach of starting from a presumption of guilt and reversing the burden of proof. Instead of considering whether the inconsistencies in their evidence gave rise to a reasonable doubt, she excused them by saying the witnesses suffered from reliability and memory problems. This approach did not resolve the credibility problem raised by the witnesses’ failure to corroborate the complainant’s evidence that she told them about the sexual assault. Moreover, the trial judge’s statement that she did not find it unusual that a teenage girl would not provide details of a sexual assault to teenage boys was not only a resort to a generalized stereotype, but it also flew in the face of the complainant’s evidence that she made that disclosure.
102I would not accept these submissions.
103The trial judge assessed the evidence and grappled with the fact that the complainant, her boyfriend, and her male friend’s evidence on the issue of disclosure did not completely align. She did not ignore the differences in their testimony but found that there were “no material inconsistencies in the evidence of the disclosure.” While the disclosure witnesses did not corroborate the details regarding the sexual assault, they did corroborate the complainant’s evidence that she made some form of disclosure to them. This assessment was squarely one for the trial judge to make and is entitled to deference. Her conclusion did not amount to a reversal of the burden of proof.
104Finally, the trial judge’s statement that she did not find it unusual that a teenage girl would not give details of a sexual assault to two teenage male friends was grounded in the evidence. The male friend testified that the complainant showed him bruises and said she was hit, but nothing further. The complainant’s boyfriend – who was not her boyfriend at the time of the disclosure – also testified that she did not go into details with him about the assault on the island. He said that “it was really hard for her to talk about it.” While it would have been preferable had the trial judge avoided generalized language, I am not persuaded her statement reveals reversible error.
Disposition
105Based on the foregoing reasons, I would dismiss the appeal.
Released: August 24, 2023 “J.S.” “Janet Simmons J.A.” “I agree. David M. Paciocco J.A.” “I agree. B. Zarnett J.A.”
[1] A sexual assault charge was stayed pursuant to Kienapple v. R., [1975] 1 S.C.R. 729, 1974 SCC 14. [2] The evidence of the appellant and complainant was conflicting concerning whether there was a possibility that the complainant's three-year-old stepbrother would be part of the visit to the island. [3] R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 SCC 93.
