COURT OF APPEAL FOR ONTARIO
Paciocco, Favreau and Wilson JJ.A.
BETWEEN
His Majesty the King
Respondent
and
N.P.
Appellant
Julia Kirby and Colleen McKeown, for the appellant
Anjali Rajan, for the respondent
Heard: November 14, 2024.
On appeal from the conviction entered by Justice David M. Stone of the Ontario Court of Justice on May 12, 2023.
REASONS FOR DECISION
1After a trial in the Ontario Court of Justice, the appellant was convicted of: sexual interference contrary to s. 151 (x6); sexual assault contrary to s. 271 (x6); and assault with a weapon contrary to s. 267 (x2), all contrary to the Criminal Code, R.S.C. 1985, c. C-46. The complainant was his stepdaughter. The appellant is appealing all convictions except for one of the assault with a weapon convictions.
2The appellant argues that the trial judge misapprehended the evidence, made findings relevant to credibility that were not supported by the evidence, and failed to conduct a proper analysis under the R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, framework, such that his decision was flawed and must be set aside. We do not agree. The following reasons explain why we dismiss the appeal.
A. Background
3The family unit formed when the appellant and A.J., the complainant’s mother, began dating and moved in together around 2011. The appellant stepped into the role of stepfather. The appellant and A.J. eventually had another child together, V.P., who is the complainant’s half-sister. All four members of the family testified at trial.
4The complainant testified that the abuse started when she was a young child, approximately six years of age, and continued over the course of several years until she was fourteen. V.P. witnessed some of the abuse and was a Crown witness at trial. A.J., on the other hand, was a witness for the defence at trial. The appellant testified and denied all sexual abuse allegations and any sexual impropriety with the complainant generally.
5In August 2021, the complainant told her cousin about an incident of sexual abuse that V.P. witnessed. The cousin told his mother, the complainant’s aunt, who in turn told A.J. This led to A.J. asking the complainant about the incident, and the complainant, V.P., and A.J. leaving the home for a few days before returning at a later date.
B. The Evidence
6The complainant testified that the sexual abuse generally occurred while A.J. was working in the evenings. It included kissing, licking, touching her vagina, oral sex, and vaginal intercourse. The complainant further testified that V.P. knew of the abuse and witnessed some of it. The complainant and V.P. had a codeword that they used to describe when the appellant would try to sexually touch the complainant. V.P. confirmed much of the complainant’s evidence and testified that she saw the appellant inappropriately kiss the complainant and more.
7The appellant denied all inappropriate behaviour. A.J. testified that she never saw the appellant touch her daughter inappropriately nor was she aware that the appellant hit the complainant with a belt, despite all three other witnesses agreeing that the appellant used a belt for discipline. A.J. testified that when she asked the complainant about the appellant’s actions, the complainant recanted some of what she had previously said the appellant did to her.
C. Analysis
8The appellant raises three main issues on appeal. First, he argues that the trial judge erred in applying the burden of proof by failing to consider exculpatory evidence at the second and third stages of the W.(D.)analysis. Second, the trial judge misapprehended material evidence about the complainant recanting her allegations to her mother. Finally, the trial judge erred in analyzing the complainant’s evidence.
9We will address each ground of appeal below.
(1) The W.(D.) analysis
10The appellant submits that the trial judge failed to engage in a proper W.(D.)analysis, particularly as it related to A.J.’s testimony. Noting that the analysis was brief, the appellant contends that the trial judge referred to W.(D). only with respect to his testimony, and did not apply the burden of proof to other exculpatory evidence, most significantly, A.J.’s testimony. The appellant argues this is problematic because A.J.’s evidence was exculpatory on key points, it contradicted the complainant’s testimony, and the trial judge did not reject A.J.’s evidence in its entirety. We are not persuaded that the trial judge erred in applying W.(D.). The trial judge made it clear that not only did he find that material aspects of A.J.’s evidence were not credible, but that her testimony was “one-sided.”
11In R. v. T.D., 2024 ONCA 860, at para. 37, Dawe J.A. articulated the function of the W.(D.) instruction as follows:
The W.(D.) formulation helpfully explains the practical operation of the fundamental principle that the Crown must prove the accused’s guilt beyond a reasonable doubt. However, it is “not a sacrosanct formula that serves as a straitjacket for trial courts”, nor is it one that trial judges are “required to slavishly follow and delineate in their reasons”: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29; R. v. Karnes, 2013 ONCA 605, at para. 10.
12We are satisfied that the trial judge understood and considered the rule in W.(D.) when evaluating all of the evidence, notwithstanding that he featured the rule only when addressing the appellant’s testimony. The trial judge properly set out the three branches of the W.(D.) analysis, demonstrating a clear understanding of its requirements. He demonstrated his awareness of the relevant legal principles and reiterated the presumption of innocence. He gave thorough reasons for rejecting A.J.’s evidence and why it did not leave him with a reasonable doubt. He also articulated why he accepted the evidence of the complainant and of V.P.
13The trial judge stated that he did not accept the appellant’s evidence that any sexual contact was accidental, considering the complainant’s evidence, which was supported by V.P., and he noted:
The rest of Mr. P.’s evidence denying the sexual components or the sexual purpose of his contacts with [the complainant] is tainted by the denials where he is plainly not telling the truth. I do not believe his evidence at all with respect to the night of the August 2021 event wherein he was in bed with both girls, kissing and touching [the complainant].
14Although the trial judge recognized certain inconsistencies between the complainant’s and A.J.’s evidence, these were peripheral details. The trial judge considered all of the evidence and explained why he was persuaded beyond a reasonable doubt of the appellant’s guilt. He correctly set out the law and applied the relevant principles with no error. An appeal to this court is not an opportunity to retry the credibility findings of the trial judge by parsing his reasons in a piecemeal fashion.
(2) Alleged misapprehension of the evidence
15The appellant asserts that the trial judge misapprehended certain evidence such that it affected his reasoning process. Specifically, the appellant alleges that the trial judge misapprehended material evidence about the events in August 2021, when A.J. received a phone call from her sister telling her about the complainant’s allegations of sexual abuse. According to the appellant, the trial judge relied on a narrative that was unsupported by witness testimony and originated from his own conjecture. We do not agree.
16In R. v. B.W., 2024 ONCA 412, this court noted that the threshold for appellate intervention based on the trial judge’s misapprehension of the evidence is a stringent one: at para. 56. The onus is on the appellant to demonstrate that (1) the misapprehension goes to the substance of the evidence and is not merely a peripheral detail; (2) the misapprehension is material to the trial judge’s reasoning; and (3) striking the misapprehension leaves the verdict on unsteady footing: B.W., at para. 56; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; R. v. Gill, 2019 ONCA 902, at para. 10. The appellant failed to satisfy his burden on this strict standard.
17The trial judge made findings of credibility concerning the testimony of the witnesses, as he was entitled to do, and his analysis is entitled to deference from this court absent palpable and overriding error: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 82; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10; Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at paras. 32-33. The trial judge carefully reviewed A.J.’s evidence: “On the matters relating to the present charges, her evidence was more one-sided. In my respectful view, that one side was her own side.” In particular, A.J. denied any awareness of the appellant using a belt to discipline the complainant, even though he admitted it in his own testimony.
18Furthermore, when A.J. was told about the abuse, the trial judge found that her response was to sharply question her daughter. We do not agree with the appellant’s submission that there was no evidence to support this characterization. A.J. recounted the conversation and the trial judge was entitled to conclude that this was sharp questioning. The trial judge rejected A.J.’s evidence on the issue of the assaults, specifically her lack of awareness around the appellant’s use of a belt to discipline the complainant, stating: “This is a choice on the part of [A.J.] to give false evidence. She had a bias. When I take that together with her evidence about the August 2021 events, including the separation, I cannot place any faith in her evidence.” The appellant identified two examples where the trial judge accepted A.J.’s testimony. Neither could give rise to a reasonable doubt. We see no error in the trial judge’s understanding or evaluation of A.J.’s evidence.
19The trial judge found the complainant to be a very credible witness and V.P. to be honest and an “independent observer.” The trial judge was entitled to find that her evidence supported the complainant, notwithstanding the minor discrepancies the appellant notes. The trial judge did not accept the appellant’s evidence, noting at times, he was “plainly not telling the truth.”
20While the appellant submits that the trial judge failed to account for the complainant’s recantation of her evidence to her mother, we do not accept this submission. We do not agree that the conversation between the complainant and A.J. in August 2021 amounted to a recantation of her allegations concerning her stepfather. Rather, the trial judge explained that the manner in which A.J. questioned her daughter affected her responses. The trial judge’s reasons confirm that he was alive to the recantation issue and considered it in determining the impact of the event on the complainant’s credibility. The trial judge carefully contextualized this issue and still found the complainant to be a credible witness. That finding was available to the trial judge on the evidence and it is entitled to deference from this court. We see no error in his analysis.
21A trial judge is tasked with making credibility findings and is in the best position to do so: Kruk, at para. 89. Moreover, this court should not interfere with credibility findings unless they “cannot be supported on any reasonable view of the evidence”: R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 7; R. v. Griffin, 2023 ONCA 559, 429 C.C.C. (3d) 231, at para. 37. Here, the trial judge gave cogent reasons for his credibility findings. He explained why he did not accept A.J. or the appellant’s evidence. The trial judge set out why he found the complainant to be a “very credible witness”, and he did the same for V.P., finding her to be “unquestionably” honest. He also addressed inconsistencies in their evidence and still found it to be fundamentally credible. The trial judge did not make findings of fact that were clearly unsupported by the evidence, as the appellant suggests. The trial judge was in the best position to determine the credibility of the witnesses and his findings are entitled to deference from this court. We see no error in his analysis.
(3) Errors in analyzing the complainant’s evidence
22Finally, the appellant argues that the trial judge erred in his analysis of the complainant’s evidence by failing to resolve material inconsistencies between her and V.P.’s evidence. More particularly, the material inconsistencies surrounded what happened between the sisters when the appellant assaulted the complainant in front of V.P. The appellant alleges inconsistencies between the complainant and V.P.’s use of their codeword and whether V.P. physically interfered with the sexual abuse she witnessed.
23We disagree. The alleged inconsistencies are not material such that “an honest witness is unlikely to be mistaken”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 13. Furthermore, “a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence”: A.M., at para. 14, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64.
24As previously mentioned, the trial judge adequately explained why he found both the complainant and V.P. to be fundamentally credible. He considered inconsistencies in the evidence and clearly contextualized it in the broader factual landscape. The trial judge accepted the core of the complainant and V.P.’s evidence. He was not required to resolve every minor inconsistency in doing so.
25In essence, this appeal is based on an attack on the trial judge’s credibility findings. This is not the role of an appellate court. We are reminded of the Supreme Court of Canada’s guidance in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 76:
Despite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged.
26The trial judge had a difficult task in determining a case of child sexual abuse. He engaged in a thorough analysis that does not disclose any reversible errors.
D. Disposition
27The appeal is dismissed.
“David M. Paciocco J.A.”
“L. Favreau J.A.”
“D.A. Wilson J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
