Her Majesty the Queen v. Slatter

[Indexed as: R. v. Slatter]

Ontario Reports

Court of Appeal for Ontario

Doherty, Pepall and Trotter JJ.A.

October 8, 2019

148 O.R. (3d) 81 | 2019 ONCA 807

Case Summary

Criminal law — Trial — Reasons for judgment — Sufficiency — Accused convicted of sexual assault — Trial judge's reasons failing to adequately address highly suggestible complainant's reliability — Trial judge erroneously finding that complainant's evidence was self-corroborating — Trial judge failing to explain why he rejected defence evidence — Reasons for judgment so deficient that they foreclosed meaningful appellate review — Accused's appeal allowed.

The accused was convicted of sexual assault. The complainant was a young woman with an intellectual disability who had been placed with friends of the accused. When the complainant disclosed the alleged assaults, she initially claimed that the accused had touched her while they were walking dogs. Over time, the allegations became more serious and included claims that she had been "raped" by the accused. The accused testified at trial, denying any sexual contact with the complainant. His wife testified in support of his defence. An expert witness called by the Crown testified that people with intellectual disabilities are highly predisposed to being more suggestible and to acquiesce in what is put to them, that the complainant was in the 75th percentile for suggestibility within the overall population and that a person like the complainant is more vulnerable to suggestibility when the questioner is a person in authority, like a police officer or caregiver. The accused appealed his conviction.

Held, the appeal should be allowed.

Per Trotter J.A. (Doherty J.A. concurring): The trial judge's reasons suffered from several deficiencies which, taken together, foreclosed meaningful appellate review. First, his reasons failed to adequately address the complainant's reliability, which was the central issue at trial. The defence had relied on the Crown expert's evidence that the complainant was highly suggestible, a feature that was evident during one of her police interviews. That evidence was not mentioned, let alone addressed, in the trial judge's reasons. Second, in an important passage in his reasons, the trial judge appeared to find that the complainant's evidence was self-corroborating, when it was not. Lastly, the trial judge failed to explain why he rejected the evidence offered by the accused and his wife, and in fact did not explicitly state that he rejected their evidence, although it was clear that he did. His reasons, read as a whole, did not show that he rejected the defence evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the complainant's evidence. If that was his reason for rejecting the defence evidence, he did not say so in his reasons. Moreover, his reasons for accepting the complainant's evidence were tainted by error. The verdict was set aside and a new trial was ordered.

Pepall J.A. (dissenting): In the context of the whole of the record, it was evident that the trial judge grasped the substance of the case and that the basis for his verdict was obvious. He was alive to the issue of the complainant's reliability, and its subset of suggestibility. A review of the transcript of the evidence at trial revealed that the complainant was not unduly suggestible to persons in authority, and was unwilling to agree with anything put to her. That would have been abundantly clear to the trial judge, who listened to observe the complainant testify. Moreover, there was a paucity of evidence to form the foundation for suggestibility. The trial judge did not improperly rely on the complainant's evidence as being self-corroborating. The trial judge did not err in failing to explain his reasons for rejecting the defence evidence. His rejection of the accused's evidence was implicit in his reasoned acceptance of the complainant's evidence. The trial judge's reasons allowed for meaningful appellate review and were adequate.

Cases Referred To

R. v. H. (D.), 2016 ONCA 569, 338 C.C.C. (3d) 251 — considered

Other cases referred to:

Statutes Referred To

Criminal Code, R.S.C. 1985, c. C-46, ss. 153.1, 271

APPEAL

APPEAL by the accused from the conviction entered by Tausendfreund J. of the Superior Court of Justice on December 18, 2017.

Robert J. Reynolds, for appellant.

Caitlin Sharawy, for respondent.

TROTTER J.A. (DOHERTY J.A. concurring):

A. Introduction

[1] The appellant, Thomas Slatter, was convicted of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, and found not guilty of sexual exploitation of a person with a disability under s. 153.1. He was sentenced to 27 months' imprisonment. He appeals against his conviction.

[2] The trial judge found that, sometime between 2009-2013, the appellant committed sexual assaults on the complainant, J.M., a woman in her early 20s with an intellectual disability.

[3] J.M. was assisted in the community by an organization called Pathways to Independence ("Pathways"). She was placed with a couple, Lorraine and Ernie Cole, in a development called "Kenron Estates" near Trenton, Ontario. The appellant and his wife, Heather, were neighbours and good friends of the Coles.

[4] J.M. testified that the sexual assaults occurred when she went dog-walking with the appellant. The assaults happened at various locations. The conduct ranged from fondling to unprotected intercourse. The appellant testified and denied any sexual contact with J.M. The appellant's wife testified in support of his defence.

[5] The appellant submits that the trial judge committed a number of errors in his reasons for judgment. He argues that the trial judge did not properly assess J.M.'s reliability, erroneously found her evidence to be self-corroborating and failed to explain why the defence evidence did not raise a reasonable doubt.

[6] I would allow the appeal and order a new trial. As discussed below, the trial judge's reasons suffer from several deficiencies which -- taken together -- foreclose meaningful appellate review. First, the reasons fail to adequately address J.M.'s reliability. This was the central issue at trial. The appellant relied on the evidence of an expert witness called by the Crown who testified that J.M. was highly suggestible, a feature that was evident during one of her police interviews. This evidence is not mentioned, let alone addressed, in the trial judge's reasons. Second, in an important passage in his reasons, the trial judge appeared to find that J.M.'s evidence was self-corroborating, when it was not. Lastly, the trial judge failed to explain why he rejected the evidence offered by the appellant and his wife. Indeed, the trial judge did not explicitly state that he rejected their evidence, although it is now clear that he did. His reasons for doing so remain a matter of speculation, impervious to review. It is for these reasons that the verdict must be set aside.

B. Factual Overview

(1) Introduction

[7] J.M. was born in 1991. She was 26 years old at the time of trial. She was a few years younger when the events giving rise to this case occurred. The local Children's Aid Society was involved in J.M.'s life from a very early age. She was made a Crown ward as a child, and since turning 18 has received support from Pathways. J.M. was placed with the Coles at 17, and continued to live with them until she disclosed the abuse.

(2) Expert Evidence

[8] As part of its case, the Crown called Dr. Jessica Jones, a forensic clinical psychologist and professor of psychiatry. She was qualified to give expert evidence on the cognitive ability of adults with developmental disabilities and whether J.M.'s disability affected her capacity to give consent in a social-sexual setting.

[9] Dr. Jones diagnosed J.M. as having an intellectual developmental disorder. This was described as a mild disability, placing J.M.'s intellectual functioning at the bottom two per cent of the general population. Academically, J.M. functions at the level of someone in the range of ten to 12 years. Nevertheless, she demonstrated strong communication skills at trial.

[10] In terms of adaptive functioning, Dr. Jones said that J.M. requires "a substantial level of supports day-to-day". Employees of Pathways testified that J.M. was unable to care for herself in terms of preparing her own food and taking medications. They also described J.M. as being very trusting and easily taken advantage of by others. These observations are consistent with Dr. Jones' testimony on how these qualities are engaged in the context of consent. Dr. Jones explained that J.M. is capable of consenting to sexual activity. However, J.M.'s ability to consent would be impaired by an "unequal relationship with a person of trust or authority". In a social-sexual relationship with such a person, she may acquiesce more easily. As noted below, J.M. testified that she did not consent to any sexual activity with the appellant.

[11] Dr. Jones also provided an opinion about J.M.'s predisposition to being overly suggestible when questioned. In this case, the focus was on the manner in which J.M. was questioned by persons in authority about her allegations of sexual assault.

[12] Generally, people with intellectual disabilities are "highly predisposed to being more suggestible and [to] acquiesce". In Dr. Jones' opinion, J.M. is in the 75th percentile for suggestibility within the overall population, "[b]ut average compared to other people with intellectual disabilities". Suggestibility decreases if the subject of discussion is "more personalized, significant and emotive to the person". Sexual assault would fall into this category. Moreover, if the information is both visual and verbal, the person is less likely to be suggestible, "meaning that they're able to recall that information more and less likely to change their answer".

[13] Dr. Jones testified that a person like J.M. is more vulnerable to suggestibility when the questioner is a person in authority, like a police officer or a caregiver. Questioners must be careful to avoid asking questions that press for a particular response because a person with an intellectual disability may acquiesce and provide what he or she perceives to be the desired response. In other words, such an individual will be more likely to respond to a leading question by agreeing with what the questioner suggests, even when the suggestion is unintentional. The individual will have a heightened propensity to acquiesce and provide an affirmative response when he or she is uncertain about something.

[14] Dr. Jones further testified that, when a highly suggestible person is questioned repeatedly, it may result in the provision of new information not previously disclosed, and/ or by the modification or distortion of information given before. Because answers may be influenced by the content and presentation of the questions, it is difficult to assess the reliability of information provided unless there is an accurate record of the questioning that elicited the response.

[15] Dr. Jones reviewed a transcript from J.M.'s first interview with a police officer on September 10, 2013. Dr. Jones observed "multiple" examples of leading questions or forced-choice questions where J.M. changed or distorted what she had said before. But there were also examples "where the information stayed the same". Dr. Jones explained that J.M.'s level of suggestibility is not static, but rather depends on the facts and the question posed "to her, whether it is pressured or not". She said that "[t]here are numerous examples where [J.M.] stayed with the same answer and then numerous examples where she went back to [the] initial answer". Dr. Jones was not asked to provide examples of the phenomena she described. Defence counsel at trial did not ask for a recording or transcript of this interview to be entered into evidence.

(3) The Sexual Assault Allegations

[16] As discussed in more detail below, J.M. initially alleged that the appellant had touched her. Over time, the allegations developed into conduct far more serious and included allegations that she had been "raped" by the appellant.

[17] The underlying context of the allegations was J.M.'s involvement in walking the appellant's dogs. J.M.'s weight concerned the Coles. They thought it would be good for J.M. if she were to walk the appellant's dogs in order to get more exercise.

[18] J.M. gave inconsistent accounts of walking the dogs. At one point in her trial testimony, she said that she never walked the dogs with Heather Slatter. At the preliminary inquiry, J.M. said she would "sometimes" walk the dogs with Heather. As she explained at trial, "[O]nce in a blue moon. That's what I mean by sometimes."

[19] J.M. testified that most of the assaults occurred at locations in or around Kenron Estates. Below, I summarize the allegations associated with each location.

(a) The Melansons' Home

[20] Larry and Sherrie Melanson lived on Kenron Estates and were friends of the Slatters. J.M. said that the appellant checked in on the Melansons' home when they were away in Myrtle Beach. J.M. went with the appellant on one of these visits. Once inside the Melansons' home, the appellant removed J.M.'s clothes, put his fingers in her vagina and then fondled and sucked her "boobs". She was laying on the bed at the time. J.M. said she did not want these things to happen. The incident ended when she told the appellant that they should "get going". They returned to the Slatters' trailer where she was offered a cold drink. She took one and left.

(b) The Pooch Path

[21] J.M. described driving with the appellant and the dogs to a part of a conservation area called the "Pooch Path". They visited this location more than once. J.M. testified that the appellant sometimes brought a beige blanket. The appellant would touch her vagina (by putting two fingers inside) and her "boobs". She also said that "sometimes there [would] be sex included". This occurred off the path, among the trees and tall grass. The appellant took off J.M.'s clothes and laid down the blanket. Then, J.M. explained, "[H]e tries sticking it in me" and "[h]e succeeds". When this occurred, the dogs were either tied up or loose. J.M. said that the appellant sometimes used a condom; at other times he did not. The appellant would throw away the used condom and packaging in the tall grass.

[22] J.M. said this happened more than once at "several spots" off the Pooch Path. She once said, "Please don't" to the appellant. The appellant once told her, "If you're going to tell anybody, I will deny it."

(c) The Coles' Residence

[23] J.M. testified that the appellant sometimes came to her home when she was alone. J.M. described one incident when the appellant came over when she was cleaning the house. The appellant took J.M.'s clothes off, and then his own and had sexual intercourse with her. Similar incidents occurred on other occasions.

[24] J.M. testified that the Slatters frequently visited the Coles on Friday nights to play cards. J.M. remained in her room. J.M. said that the appellant would leave the table to use the washroom and stop by J.M.'s bedroom to touch her "butt" and "boobs", sometimes above the clothing, and sometimes under. J.M. was cross-examined on her police statement in which she said that the appellant did not touch her when other people were around. In relation to these Friday night card games, she said: "Most of the time it was just me and him."

[25] On another occasion, the appellant let himself into the Coles' trailer and came into the bathroom where J.M. was showering. The appellant bathed her with a "scrunchie". In cross-examination, it was suggested to J.M. that this did not happen because there would have been water all over the bathroom. J.M. agreed that there was, and that she had cleaned it up with towels afterwards.

(d) The Dairy Queen Incident

[26] The appellant did maintenance work. He invited J.M. to come with him one time when he was going to cut a lawn. He promised to take her to the Dairy Queen. J.M. said that the appellant "[felt] me up" while she sat in the passenger seat of his vehicle. He had one hand on the steering wheel and reached across with his other to touch her. In a statement to the police, J.M. said that the appellant touched her over her clothing; at trial, she said it was both under and over her clothing.

(e) The Airbase Incident

[27] J.M. testified that the Coles and the Slatters would socialize at the local air force base (CFB Trenton) some Friday evenings. The appellant volunteered by operating the BBQ while the others were inside the building. J.M. was allowed to be outside on these nights until an incident occurred. J.M. was texting on her phone when the appellant leaned over and kissed her on the forehead and cheeks. After that occurred, Mrs. Cole told J.M. to stay inside. J.M. never returned to this event.

(f) The Abandoned House

[28] J.M. described other incidents at an abandoned building, which was a ten-minute walk from Kenron Estates. J.M. said they engaged in "doggie style sex". The appellant had his hands on J.M.'s hips and touched her breasts. J.M. was unsure of how many times it happened at this location.

[29] In cross-examination, J.M. was asked about whether she saw a safe in the building. J.M. said that she never went inside the building because there was broken glass everywhere.

(g) The Slatters' Home

[30] J.M. testified that the appellant sometimes had intercourse with her at the Slatters' home, in the main bedroom. The appellant removed J.M.'s clothing and his own and placed it on the floor. The appellant once told J.M. that, if she lost weight, she would be a skinny girl with big breasts.

(4) Disclosure of the Sexual Assaults

[31] At trial the defence argued that because of J.M.'s level of suggestibility, she was influenced by others -- perhaps unwittingly so -- when she disclosed her allegations against the appellant. The appellant contends that, as J.M. spoke to various people, most of whom were persons in authority, she alleged increasingly serious sexual conduct. Consequently, it is necessary to review the sequence of disclosures in this case.

[32] In July of 2013, J.M. had a discussion with her friend, A.C., at summer camp. A.C. testified that she and J.M. were discussing men that they liked or had sex with. During this conversation, J.M. said that there was a neighbour of hers with whom she had sex. J.M. reported that the neighbour kissed her and touched her inappropriately. J.M. smirked and giggled during this conversation. A.C. said that J.M. smiles a lot -- "that's just her". In cross-examination, A.C. adopted a previous statement in which she reported asking J.M. if she had wanted the sexual activity to occur. J.M. changed the subject without answering. A.C. did not report the conversation to anyone because J.M. did not say that the sexual activity was without her consent.

[33] J.M. also testified about this conversation. She explained that she and A.C. were discussing "stuff that happened to us". Although she could not recall her exact words, J.M. recalled telling A.C. that she was having sex with a middle-aged neighbour. On cross-examination, she denied making the story up.

[34] In August of 2013, J.M. told Mrs. Cole that the appellant had touched her breasts. Mrs. Cole called the appellant to confront him with this allegation. J.M. said that she overheard the appellant on the phone and heard him say, "[N]o ma'am, I didn't." The appellant and his wife confirmed that this happened in the way that J.M. described it. Mrs. Cole did not testify at trial. There was no evidence as to the exchange between Mrs. Cole and J.M. that preceded this allegation and the call.

[35] On September 9, 2013, J.M. disclosed the sexual assaults to Stacey Callahan, a case worker with Pathways. A few months earlier, in July 2013, Ms. Callahan had asked J.M. if her relationship with the appellant was "unhealthy". J.M. denied that it was. When Ms. Callahan met with J.M. and Mrs. Cole on September 9, 2013, J.M. said, "You're right. Tom's been touching me." J.M. did not provide any details at the time. However, Ms. Callahan learned that J.M. had disclosed the touching to Mrs. Cole two to three weeks earlier.

[36] The next day, September 10, 2013, Ms. Callahan took J.M. to see her supervisor at Pathways, Darlene Brennan. J.M. told Ms. Brennan what the appellant had done to her. Ms. Brennan called the police to report the matter. Ms. Brennan told the police that J.M. said she had been "raped" by the appellant. Ms. Brennan insisted that the word "raped" came from J.M. She denied that she was the first to use this word. Ms. Brennan acknowledged that this important detail was not recorded in her notes. However, she testified that J.M. would not use an expression such as "sexual assault".

[37] J.M. met with a police officer, Paul Maybee, that same day. The interview was recorded. This was the interview referred to by Dr. Jones. In this interview, J.M. told P.C. Maybee that she was having "flashbacks" of things that happened to her in the past. At trial J.M. said that she did not tell P.C. Maybee everything that happened. She said that she was uncomfortable because "he is a male". J.M. had not expressed this concern about P.C. Maybee before trial.

[38] Shortly after the interview with P.C. Maybee, the case was assigned to Detective Amy Simpson. Det. Simpson arranged to meet J.M., along with Ms. Brennan, at the Pooch Path on September 13, 2013. This was the first time Det. Simpson met J.M. The purpose of the meeting was for J.M. to point out where the incidents had happened. They walked along the path and J.M. pointed to various locations where she said she was sexually assaulted. The three also looked for condoms and packaging but were unsuccessful. Det. Simpson testified that, given the passage of time, she did not expect to find any such debris. Importantly, none of this encounter, which lasted for about an hour, was recorded.

[39] Ms. Brennan took J.M. for an interview with Det. Simpson on September 17, 2013. On the way, J.M. pointed to the abandoned house close to the Coles' residence and said the appellant sexually assaulted her at this location. There was no record of this conversation. J.M. then gave her formal statement to Det. Simpson.

[40] Arrangements were made to have J.M. see a counsellor, Mary Joan Brinson. During these sessions Ms. Brinson took notes, which defence counsel used to cross-examine J.M. at trial. Ms. Brinson's notes indicated that J.M. said the abuse began "shortly after she was placed with [the Coles]", i.e., around four years earlier. Defence counsel pointed out this was inconsistent with J.M.'s statement to Ms. Callahan -- made just a few days earlier -- that the assaults began in early 2013.

[41] Confronted with this inconsistency, J.M. admitted that she told different things to different people. J.M. said she remembered more about the incidents as time went on. J.M. denied the suggestion that she made up the allegations against the appellant because she was often in conflict with Lorraine Cole.

[42] J.M. was asked why, when Stacey Callahan first asked about her relationship with the appellant, she denied that it was "unhealthy". J.M. said that, while she never wanted any of the sexual contact to happen, she liked walking the dogs.

(5) Defence Evidence

[43] The appellant accepts that the trial judge provided an accurate summary of the defence evidence in his reasons for judgment. I highlight several aspects of this body of evidence.

[44] The appellant and his wife testified. Both gave evidence contradicting J.M. on the circumstances surrounding the alleged incidents. The appellant denied any sexual contact between himself and J.M.

[45] The appellant testified that J.M. was vulnerable and subject to being taken advantage of by others. He thought J.M. acted as though she were 12-13 years old. The appellant agreed that the Coles entrusted him with J.M.'s safety.

[46] While J.M. testified that the dog-walking occurred predominantly with the appellant and that she walked the dogs with Heather Slatter "once in a blue moon", the appellant and his wife testified that Heather Slatter was more involved than the appellant. The appellant said that he and Heather Slatter had taken J.M. to the Pooch Path. Once he had been there alone with J.M., his wife knew about it.

[47] The appellant and his wife checked on the Melansons' home when they were away. The appellant denied ever taking J.M. with him on these short visits.

[48] The appellant denied making the remark about J.M. becoming a thin girl with large breasts. He agreed that J.M. had weighed herself at his home, but stated it was at her insistence. Given that J.M. was walking their dogs to lose weight, it made sense that she wished to monitor her progress. Heather Slatter testified that J.M. made a habit of weighing herself at their home about once a month.

[49] The appellant acknowledged being alone with J.M. at the Coles' home on two occasions. He went there because J.M. asked him to fix a closet on one occasion, and the toilet on another. He denied that any sexual activity took place. The appellant also acknowledged that he and his wife often played cards with the Coles on Friday nights. He acknowledged that he had seen J.M.'s room but denied that he ever walked to J.M.'s room to touch her.

[50] The appellant agreed that he and J.M. walked the dogs to the abandoned house on two occasions. They once saw a deer, which J.M. acknowledged seeing. The second time they saw a large safe in the house. The appellant reported the details of both visits to his wife.

[51] The appellant admitted taking J.M. to the Dairy Queen on the way home from a job. He denied touching J.M. Similarly, the appellant denied any impropriety at CFB Trenton. He said that he leaned over and asked J.M. whether she was texting her boyfriend. He denied kissing her. But he acknowledged that J.M. never returned to these gatherings because of what happened that night.

[52] The appellant denied ever having condoms. Heather Slatter said there had been no condoms in their house for 30 years. The appellant denied that he owned a beige blanket or ever took a blanket to the Pooch Path. Heather Slatter said that they did not own a beige blanket; they only had dark green or blue moving blankets.

[53] The appellant acknowledged the call from Mrs. Cole concerning the allegation that he had touched J.M.'s breasts. Heather Slatter was also aware of the call; however, she said that it did not concern her.

C. The Reasons for Judgment

[54] The trial judge found the appellant not guilty of sexual exploitation based on insufficient evidence of what the appellant said to J.M. during the incidents.

[55] The trial judge concluded that the Crown had proved the offence of sexual assault. He found no inconsistency in the evidence of the accused or his wife and expressed no criticism of their evidence. However, after his examination of J.M.'s evidence, many aspects of which the trial judge found had "the ring of truth", he was satisfied of the appellant's guilt beyond a reasonable doubt.

D. Issues on Appeal

[56] The appellant raises three issues on appeal, all focused on the adequacy of the trial judge's reasons. The appellant submits that the trial judge erred by (1) not properly assessing the reliability of J.M.'s evidence and failing to address the expert evidence of her suggestibility; (2) engaging in illogical reasoning that led him to find that J.M.'s evidence was self-corroborating; and (3) failing to provide reasons for rejecting the evidence of the appellant and his wife.

E. Analysis

(1) Failure to Assess Reliability

[57] The appellant submits that, while the trial judge thoroughly examined J.M.'s credibility, he failed to address his mind to the reliability of her evidence, especially her propensity for suggestibility. He asserts that the trial judge's reasons are insufficient for this reason.

[58] A functional approach governs appellate review of the sufficiency of reasons. The relevant inquiry is "whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel": R. v. Dinardo, 2008 SCC 24, at para. 25; R. v. Vuradin, 2013 SCC 38, at para. 10. "An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review": Dinardo, at para. 25.

[59] Under this deferential approach, a trial judge need not "review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel": R. v. M. (A.), 2014 ONCA 769, at para. 14. However, "major inconsistencies in the evidence of material witnesses" should be addressed and explained: R. v. H. (D.), 2016 ONCA 569, at para. 35. Accordingly, failure "to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error": M. (A.), at para. 18.

[60] As this court has pointed out, credibility and reliability are not the same thing. "Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue": R. v. C. (H.), 2009 ONCA 56, at para. 41. Thus, "[c]redibility . . . is not a proxy for reliability: a credible witness may give unreliable evidence": C. (H.), at para. 41; R. v. Morrissey, at p. 526 O.R.

[61] Both credibility and reliability were live issues in this case. From the outset of the trial, J.M.'s suggestibility -- a factor related to her reliability -- was an important plank in the defence position. The Crown led the evidence of Dr. Jones to prove elements of both offences. However, defence counsel thoroughly cross-examined Dr. Jones on J.M.'s suggestibility.

[62] In his closing submissions, defence counsel repeatedly stressed the importance of this aspect of Dr. Jones' evidence. Based on Supreme Court of Canada authority (i.e., R. v. D. (D.), 2000 SCC 43), defence counsel acknowledged that "incremental disclosure is common amongst children and alone not a reason to disbelieve". However, he emphasized that his position extended beyond incremental disclosure. As he argued:

Here it is incremental disclosure with unrecorded interviews with a vulnerable suggestive witness whose evidence can be changed by questioning. So I suggest to you that's different that the girl who comes forward and says to the police one thing, says a bit more at the preliminary inquiry, says a little bit more at trial. It's not what happens here. It's a developing story that gets wider as she's asked about it, but we don't have those interviews.

And even when we do have the interviews, there [are] leading questions in them. There [are] questions that change her answers, as the doctor pointed out about the first interview.

[63] Defence counsel combined the suggestibility theme with his submission that many aspects of J.M.'s account were implausible. He highlighted numerous instances in which J.M.'s evidence was contradicted by the defence evidence.

[64] I agree with the appellant that the trial judge failed to directly address J.M.'s reliability. The trial judge's reasons focus almost exclusively on J.M.'s credibility or sincerity as a witness. The trial judge isolated several aspects of her evidence that he found to have "the ring of truth", leading him to find the allegations proved beyond a reasonable doubt.

[65] The trial judge referred to the evidence of Dr. Jones in relation to J.M.'s general intellectual abilities and how her testimony should be approached, as required by the Supreme Court in R. v. W. (R.). Almost immediately after quoting from this decision, the trial judge said:

I find and accept that any frailties in the evidence of the complainant, as to timing and frequency of events and any difficulties she had in describing and recollecting certain incidents, represent the kind of evidence I would expect from children or witnesses with intellectual disabilities.

[66] Although the trial judge relied on Dr. Jones' evidence in this context, he failed to mention her evidence concerning J.M.'s suggestibility. The issue was clearly grounded in the evidentiary record. It was emphasized in defence counsel's closing submissions. Yet, because there is no attempt to address or reconcile this evidence in the trial judge's reasons, we are left to speculate whether the trial judge appreciated the significance of this evidence and the role (if any) that it played in his ultimate findings.

[67] Crown counsel on appeal acknowledges that the trial judge did not expressly find J.M. to be a reliable witness, nor did he specifically address the issue of suggestibility. Nevertheless, the Crown observes that J.M.'s reliability was discussed during closing submissions, and submits that the trial judge's reasons, when considered as a whole, reveal that he was alive to the issue of reliability and that, in substance, he did in fact address the issue.

[68] As the Crown points out, a trial judge's reasons must be read in the context of the entire record and should not be dissected into small pieces: Morrissey, at pp. 524-25 O.R. However, "[r]easons for judgment should offer assurance to the parties that their respective positions were understood and considered by the trial judge in arriving at his or her conclusion": Morrissey, at p. 525 O.R. In this case, the trial judge's reasons offer no such assurance.

[69] The Crown further submits that J.M.'s testimony does not reveal that she was a particularly suggestible witness. I agree that J.M. seemed to "hold her own" while being questioned by counsel and the trial judge. The Crown also submits that the level of detail in J.M.'s evidence makes it unlikely that all of her allegations were suggested to her by others. Further, the Crown contends that the appellant's argument is based on speculation about what may have been said to J.M. in the days following her disclosure to Ms. Callahan, and others.

[70] These are plausible arguments. They were advanced by the Crown at trial. But they were not addressed by the trial judge. As the Crown correctly submits, a trial judge's findings on the credibility and reliability are entitled to deference: R. v. Gagnon, 2006 SCC 17, at para. 23. The problem in this case is that there is nothing upon which to defer on the issue of suggestibility. The trial judge made no finding. He may have found this evidence to be inconsequential. He may have inadvertently overlooked this aspect of Dr. Jones' evidence. It is a matter of speculation. The Crown essentially asks this court to review the record and, even in light of Dr. Jones' evidence, find that J.M.'s reliability was not compromised by her suggestibility during the early stages of the investigation. This was a matter for the trial judge. It is beyond the scope of proper appellate review.

[71] I acknowledge that there are parts of the trial judge's reasons that seem to allude to reliability considerations. However, his treatment of reliability is minimal and clearly incidental to his focus on J.M.'s credibility. In this case, it was critical that the trial judge at least consider the evidence concerning J.M.'s heightened suggestibility. His reasons give no indication that he did.

[72] I would allow the appeal on this ground.

(2) Illogical Reasoning

[73] The appellant points to a passage in the trial judge's reasons as being illogical and improperly bolstering J.M.'s evidence. The trial judge reviewed nine aspects of J.M.'s evidence which he found "to have the ring of truth". Arguably, this list contains one factor that relates to J.M.'s reliability (relating to the W. (R.) point addressed in para. 65, above); however, the overwhelming focus is on credibility. After reviewing these points, the trial judge said:

Other aspects of her evidence refer in substantial detail to certain events and places. Those are the abandoned house, the BBQ at CFB Trenton, the trip to Belleville with the stop at the Dairy Queen on the way home and the Pooch Park. Despite certain inconsistencies in her evidence, I find these varying particulars and details of places and events corroborate her evidence and add to her credibility. I am satisfied beyond a reasonable doubt that sexual encounters between the accused and the complainant occurred over at least a two-year period from 2011 to 2013. I find that the sexual encounters included sexual touching and sexual intercourse.

[74] The appellant contends that the underscored passage signals that the trial judge found that J.M.'s evidence was self-corroborating. The Crown submits that, although the trial judge could have been much clearer in his reasons, he was referring to parts of J.M.'s evidence that were corroborated by other evidence.

[75] I agree with the appellant that, taken at face value, the trial judge appeared to find that the various locations and contexts related to the allegations made J.M.'s account more trustworthy. To the extent that the trial judge was identifying aspects of J.M.'s evidence that were confirmed by other evidence, as the Crown suggests, the confirmation involved nothing more than neutral or background factors. There was nothing that confirmed the sexual assault allegations themselves. The trial judge provided no analysis for his conclusion that the aspects of the evidence that he identified confirmed J.M.'s evidence and enhanced her trustworthiness.

[76] Again, we are left to speculate -- this time about what the trial judge meant in this passage. However, it is clear this was important to the trial judge because in the very next sentence of his reasons, he found that the allegations were proved beyond a reasonable doubt.

[77] Standing alone, I would not allow the appeal based on this ambiguous passage in the trial judge's reasons. However, in combination with the error identified above in relation to reliability and suggestibility, this aspect of the trial judge's reasons impacts on the last ground of appeal dealing with the failure to explain the rejection of defence evidence.

(3) Failure to Explain Rejection of Defence Evidence

[78] The appellant submits that the trial judge erred in failing to explain why he rejected the defence evidence. He contends that this too undermines meaningful appellate review. The Crown argues that the trial judge's rejection of the appellant's evidence is explained by his considered and reasoned acceptance beyond a reasonable doubt of the truth of J.M.'s evidence.

[79] The trial judge referred to the evidence of the appellant and his wife in considerable detail. Turning to conflicts between the evidence of J.M. and the appellant, the trial judge said:

Based on the inconsistencies in the evidence of the complainant and the improbabilities of certain events she described, I am urged to find that the evidence of the complainant is not reliable.

There is no inconsistency in the evidence of the accused. His was an outright denial that any of this happened. Accordingly, I must carefully assess the evidence of the complainant.

[80] I disagree that the appellant's consistency as a witness can be explained by his evidence being an "outright denial". In sexual assault cases, especially when the complainant is a child or a person with an intellectual disability, the testimony of an accused will almost always include an "outright denial".

[81] There was more to the appellant's evidence (and that of his wife). The appellant testified at length and was cross-examined extensively by the Crown on all aspects of J.M.'s allegations. Many parts of his evidence were supported by his wife's testimony. The trial judge did not explicitly reject the appellant's evidence. He failed to make any finding about the evidence of his wife. He gave no indication why their evidence did not raise a reasonable doubt.

[82] Although a trial judge is not required to explain how he or she resolved all nuances or inconsistencies in the evidence, major inconsistencies must be resolved. Fundamentally, an accused is entitled to know why his or her evidence did not leave the trial judge with a reasonable doubt: Gagnon, at paras. 20-21; Dinardo, at para. 26; and H. (D.), at para. 35.

[83] The Crown argues that the trial judge's reasons, when read as a whole, show that he rejected the defence evidence "based on a considered and reasoned acceptance beyond a reasonable doubt" of J.M.'s evidence: see R. v. D. (J.J.R.), at para. 53.

[84] If this was the reason for rejecting the defence evidence, the trial judge did not say so in his reasons. It does not necessarily follow that, because a trial judge rejects an accused person's evidence without saying why, it must be because of a "considered and reasoned acceptance" of conflicting evidence. The qualifiers -- "considered and reasoned" -- are important and their application must be clear from the reasons for judgment: see, e.g., R. v. N. (A.), 2017 ONCA 647, at paras. 17-19; H. (D.). Their application is not clear in this case.

[85] The trial judge's errors in dealing with J.M.'s evidence identified above prevent a finding that his rejection of the defence evidence was based on an acceptance of J.M.'s evidence that was authentically "considered and reasoned". The trial judge's reasons for accepting J.M.'s evidence are tainted by error.

[86] This point is illustrated by this court's decision in H. (D.), a sexual assault case, in which the trial judge acknowledged several inconsistencies between the complainant's testimony and that of her mother, related to the circumstances surrounding disclosure of the assaults. The trial judge concluded the accounts of the complainant and her mother were "roughly consistent" and dismissed any inconsistencies as "peripheral": H. (D.), at paras. 37, 47-49.

[87] On appeal, Feldman J.A. held that the trial judge erred in failing to resolve important discrepancies between the evidence of the complainant and her mother, and by failing to address a possible motive to fabricate: at para. 48. Feldman J.A. reviewed other errors by the trial judge: she failed to resolve inconsistencies among the complainant's own accounts and did not explain significant conclusions that "did not accord with . . . logic": at paras. 32, 54-55. Given "the totality of the errors", Feldman J.A. concluded that the decision did "not amount to 'a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence'": at para. 71.

[88] I reach the same conclusion in this case. Given the trial judge's errors in dealing with J.M.'s evidence, his acceptance of her evidence was not "considered and reasoned", within the meaning of D. (J.J.R.), and not a legitimate basis for rejecting the evidence of the appellant and his wife.

[89] I would allow this ground of appeal.

F. Conclusion

[90] I would allow the appeal and order a new trial on the count of sexual assault.

PEPALL J.A. (dissenting):

A. Introduction

[91] This is yet another case in which sufficiency of reasons is advanced as a ground of appeal. No reasons are required in a jury trial, but we do demand more of a trial judge. This case addresses the extent of that demand.

[92] The appellant was convicted of the sexual assault of a complainant who has an intellectual and developmental disability. Although the appellant raises three grounds of appeal, this appeal primarily focuses on the need for the trial judge to expressly address in his reasons the defence submission that the complainant was suggestible. Does this alleged failure render the trial judge's 28-page reasons for decision insufficient, thus requiring a new trial? My colleagues respond affirmatively and would allow the appeal and order a new trial. I would not. These are my reasons.

B. Ground One: Reliability

[93] The appellant submits that the trial judge failed to grapple with the issue of the reliability of the complainant's testimony, particularly her suggestibility. With respect, I disagree.

[94] In my view, the trial judge's reasons allow for meaningful appellate review and are adequate. In the context of the whole of the record, it is evident that the trial judge grasped the substance of the case and that the basis for his verdict is obvious. He considered the complainant's evidence on the core issue of her repeated sexual assaults by the appellant to be reliable and credible, and based on the evidence before him, he was satisfied that the appellant was guilty beyond a reasonable doubt. There is no reason to interfere with the execution of his role as a trial judge.

[95] First, I will briefly address the content of the trial judge's reasons. Then, I will discuss the evolution of the law on sufficiency of reasons, followed by a discussion on the assessment of a witness' reliability. I will close with an analysis of why the trial judge's reasons allow for appellate review and are adequate.

(1) Trial Judge's Reasons

[96] I do not propose to repeat the factual background provided by my colleague, but I will provide some additional facts and a brief overview of the trial judge's reasons.

[97] In describing the facts, the trial judge found that the complainant was a person with an intellectual and developmental disability, and that the manner in which she testified in court was similar to a young person in the range of ten to 12 years of age. He noted that the complainant was between the ages of 17 and 22 when the sexual assaults were said to have occurred. She was unable to live independently due to her developmental disabilities, and therefore lived with her former foster parents, Arnold and Lorraine Cole, as she needed the support of foster parents and Pathways to Independence, an organization that supports adult persons with developmental disabilities, in the affairs of daily living. The appellant and his wife were neighbours of the Coles.

[98] The trial judge referenced some of Dr. Jessica Jones' testimony and her opinion, reviewed the complainant's evidence of the numerous incidents of sexual assault that had occurred over the course of many years and in many locations, and described the disclosure made by the complainant.

[99] The trial judge summarized the appellant's testimony, and that of his wife, Heather Slatter. The appellant acknowledged being in the various locations identified by the complainant. However, he denied that he ever touched the complainant sexually or had come into contact with her in a sexual manner. I will return to the appellant's testimony below when discussing the outcome of the BBQ incident.

[100] The trial judge reminded himself that he must and would be guided by the principles of R. v. W. (D.), and proceeded to recite them. Relying on R. v. Vuradin, 2013 SCC 38, he noted that a verdict of guilty must not be based on a choice between the evidence of the accused and the evidence of the Crown.

[101] The trial judge first addressed the components of count two, whether the accused was guilty of sexual exploitation of a person with a disability under s. 153.1 of the Criminal Code, R.S.C. 1985, c. C-46. He reasoned that he was satisfied beyond a reasonable doubt that the accused was at all material times in a position of trust towards the complainant. He was also satisfied that the complainant was at all material times a person with a mental disability.

[102] The trial judge considered whether the appellant counselled the complainant to touch his penis for a sexual purpose. He noted that the complainant's evidence on this issue was sparse -- it included the appellant having slapped the complainant's behind and telling her that she had a nice butt; telling her after a sexual contact between the two that if she were to ever tell anyone, he would deny it; and, after a sexual encounter at the Slatter house, telling her that she had a nice body and a nice bum and if she lost weight she would be skinny with big breasts. The complainant stated that the appellant did not say anything either before, during, or after the various sexual encounters between the two.

[103] The trial judge could find no evidence that would constitute counselling of the complainant by the accused, and therefore determined that the Crown had failed to prove beyond a reasonable doubt all of the elements of count two.

[104] He then turned to count one, whether between January 1, 2009 and September 8, 2013, the accused had sexually assaulted the complainant, contrary to s. 271 of the Criminal Code. The trial judge noted that the appellant had testified and denied all sexual contact. The trial judge stated that there was no inconsistency in the evidence of the accused, his was an outright denial that any of this had happened. Accordingly, the trial judge instructed himself to carefully assess the evidence of the complainant. As I will subsequently discuss, he did just that.

[105] The trial judge concluded that he was satisfied beyond a reasonable doubt that sexual encounters between the appellant and the complainant occurred over at least a two-year period from 2011 to 2013, and that the encounters included sexual touching and sexual intercourse.

[106] The question for this court to consider is whether the trial judge's reasons for decision were sufficient? Did the trial judge fail to address the reliability of the evidence of the complainant and the defence submission relating to the complainant's suggestibility?

(2) Evolution of Law on Sufficiency of Reasons

[107] To place this appeal in context, it is helpful to briefly review the Supreme Court of Canada's jurisprudence on sufficiency of reasons in a criminal case. The Supreme Court of Canada's decision in R. v. Sheppard, 2002 SCC 26, marked a considerable evolution in the law on sufficiency of reasons. In that case, the trial judge's reasons consisted of one sentence.

[108] Binnie J., writing for the court, described the factors that animate the consideration of sufficiency of reasons. An appellant has to show not only a deficiency in the reasons, but that the deficiency caused prejudice to the exercise of his or her the right to an appeal in a criminal case: at para. 33. The test is whether the reasons perform their function of allowing an appeal court to review the correctness of the trial decision: at para. 25. The purport of the ten principles Binnie J. identified, at para. 55, bear repetition.

(i) The delivery of reasons is part of accountability for the discharge of the responsibilities of the office of a judge.

(ii) An accused should not be left in doubt about why a conviction has been entered. Reasons for decision may be important to clarify the basis for conviction, but on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met.

(iii) Lawyers may require reasons to assist in advising on a potential appeal, but, on the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record.

(iv) Not every failure or deficiency in the reasons provides a ground of appeal.

(v) Reasons perform an important function in the appellate process. Where the functional needs of reasons are not satisfied, the appellant court may order appropriate remedial action.

(vi) Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.

(vii) Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge's reasons provide the equivalent of a jury instruction.

(viii) The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision.

(ix) While it is presumed that judges know the law with which they work day in and day out, and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.

(x) Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in such a case for a new trial.

[109] In R. v. Gagnon, 2006 SCC 17, Bastarache and Abella JJ. noted that finding an error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, do they prevent appellate review: at para. 13. In other words, the court concluded that even if the reasons are objectively inadequate, they sometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record: para. 13.

[110] In R. v. M. (R.E.), 2008 SCC 51, the Supreme Court of Canada elaborated on the general principles to be applied when considering the sufficiency of reasons:

(i) Reasons in Context -- Sufficiency of reasons should be judged in their entire context by what the trial judge has stated in the context of the record, the issues, and the submissions of counsel at trial: at para. 37.

(ii) The Degree of Detail Required -- The degree of detail required in the reasons varies with the circumstances: at para. 44. At a minimum, it is required "that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the [trial] judge has seized the substance of the matter": at para. 43. The object of the exercise is not to show how the judge arrived at his or her conclusion in a "watch me think" fashion: at para. 17. It is rather to show why the judge made that decision: at para. 17.

(iii) Findings on Credibility -- In a case that turns on credibility, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt: at para. 50. However, this does not mean that the trial judge is required to enter into a detailed account of the conflicting evidence: at para. 50.

(iv) Role of Appellate Courts in Assessing Sufficiency of Reasons -- An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge's perceptions of the facts: at para. 54. The trial judge is in the best position to determine matters of fact, and in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected: at para. 54. Thus, the appellate court, proceeding with deference, must ask itself whether the reasons, in their entire context, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached: at para. 55. If the answer to this question is affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal: at para. 56. The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence: at para. 56. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law: at para. 56. Appellate courts must guard against sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons: at para. 56. This is neither the duty nor the right of the appellate courts: at para. 56.

[111] In that case, McLachlin C.J.C. noted that the trial judge had given reasons for accepting the complainant's evidence. It followed of necessity that he rejected the accused's evidence where it conflicted with the complainant's. No further explanation for rejecting the accused's evidence was required. In such a context, the convictions themselves raised a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt: at para. 66.

[112] In R. v. Dinardo, 2008 SCC 24, Charron J., writing for the court, noted that where credibility is a determinative issue, deference is in order and intervention will be rare: at para. 26. She added [at para. 30]:

[T]here is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel.

[113] In that case, the court was also dealing with a complainant who was mentally challenged. She had a history of making up stories to get attention, but more significantly, her testimony had wavered on the central issue of whether the accused had committed the assault in question: at para. 29. The court found that the trial judge's failure to avert to these matters left the court in doubt whether he had directed his mind to the central issue of credibility. I will return to this issue to explain why, in my view, this case is very different from the case under appeal.

[114] The most recent decision from the Supreme Court on sufficiency of reasons is Vuradin. Before the court, counsel for the appellant submitted that the reasons of the trial judge did not explain why the trial judge accepted the evidence of the complainant, despite live credibility issues: at para. 9. The trial judge also did not address the appellant's evidence or explain why it was rejected: at para. 9.

[115] Karakatsanis J., writing for the court, stated that the core question in determining whether the trial judge's reasons are sufficient is: "Do the reasons, read in context, show why the [trial] judge decided as he did on the counts relating to the complainant": at para. 15. In Vuradin, the trial judge's reasons did satisfy this threshold. The trial judge had found the evidence of the complainant compelling and while the trial judge was not obliged to discuss all of the evidence on any given point or answer each and every argument of counsel, he had recognized the live issues relating to the complainant's credibility: at paras. 16-17. Read in context, the trial judge's reasons revealed that he rejected the appellant's denial: at para. 18.

[116] Lastly, in considering sufficiency of reasons, one should be reminded of Doherty J.A.'s observations on complexity R. v. D. (J.J.R.), at para. 33:

Nor should appellate courts overestimate the complexity of most criminal litigation or underestimate the ability of those involved in the trial process to understand the reasons for the outcome. Most criminal trials, even the difficult ones, are not particularly complicated. Most accused, even those who vehemently disagree with the result, understand only too well why they were convicted. Once again, I return to the words of Binnie J. in Sheppard, supra, at para 60:

[I]n the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned. Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it.

(3) Reliability

[117] Although they share certain attributes, credibility and reliability are different concepts. Credibility deals with a witness' veracity or truthfulness, while reliability addresses the accuracy of a witness' testimony. Accuracy engages consideration of a witness' ability to accurately observe, recall and recount: R. v. C. (H.), 2009 ONCA 56, at para. 41.

[118] Like credibility, reliability is a factual determination. It is within the province of the trial judge. It is the trial judge who has the opportunity to hear and observe all of the witnesses. This reality anchors the principle that when reviewing reasons for sufficiency, an appellate court should start from a stance of deference towards a trial judge's perception of the facts R. v. M. (R.E.), at para. 56:

The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law.

[119] In assessing the reliability of a witness' testimony, each case must be considered on its own facts: R. v. A. (S.), at p. 23 O.R. In that case, without requiring that each factor be addressed, this court listed a number of non-exhaustive factors that may be considered in appraising the reliability of a child complainant's statement in a sexual assault case. This included medical evidence, the age and immaturity of the child, the language used in the statement, the relative spontaneity of the statement, the passage of time between the statement and the alleged assaults and the absence of any details in the statement referable to the time, place or circumstances in which the assault occurred: at pp. 22-23 O.R. Passage of time is another factor that may be relevant to the assessment of reliability: R. v. Morrissey, at p. 526 O.R.

(4) Dr. Jones' Evidence

[120] Before this court, the appellant argued in his factum that the trial judge had failed to grapple with the central issue of the reliability of the complainant's testimony. In oral argument, counsel for the appellant accepted that the trial judge considered reliability, but failed to address the complainant's suggestibility. In particular, the appellant relied on the testimony of Dr. Jones that people with intellectual disabilities are more likely to be suggestible, especially when the questioner is in a position of authority or trust.

[121] Dr. Jones' evidence was that the complainant was suggestible to biased question as compared to the "normative" population at the 75th percentile. An average "normal" person is at the 50th percentile; the complainant was at the 75th percentile. Dr. Jones also testified that if the information is personal, significant, and emotive, a person with an intellectual disability is less suggestible. A sexual assault would decrease suggestibility because it is not only personal and significant, but it is also highly emotive.

[122] As the Crown and defence consented to the admission of this expert evidence and no argument was advanced on whether it was properly admitted, I make no comment or conclusion on its admissibility or the weight to be given all of the Dr. Jones' evidence.

(5) Analysis

[123] As McLachlin C.J.C. stated in M. (R.E.), appellate courts considering the sufficiency of reasons should read them in their entire context, with the evidentiary record, the issues, and the submissions of counsel at trial.

[124] In my view, the trial judge was unquestionably alive to the issue of reliability, and its subset of suggestibility, and his reasons meet the principles articulated in the Supreme Court's jurisprudence. The complainant never wavered on the core issue of whether the appellant had committed sexual assault. The trial judge "seized the substance of the matter", was satisfied of her reliability, and the basis for his verdict was obvious. I will explain why this is so.

(a) Reliability and Defence Closing Argument

[125] In closing argument, defence counsel stated that his submissions were with respect to the reliability of the witnesses, and that this was a case not as much about credibility as it was about reliability. The trial judge was engaged in many exchanges with defence counsel during his closing submissions with respect to the reliability of the witnesses.

[126] In one such exchange, the trial judge acknowledged that there were reliability issues and that this was obvious from the complainant's evidence. The trial judge began to observe that the complainant spoke of a number of disparate events that had occurred. He was then interrupted by defence counsel who stated that the complainant was 75 per cent more likely to have things suggested to her and change her answers than the average population. The trial judge acknowledged this comment.

[127] In particular, counsel argued that the court should have great concern about the reliability of the complainant's evidence because things were said to her that she then appeared to adopt. The trial judge responded, at p. 713:

Trial Judge: [L]et me tell you what I'm struggling with and that is that yes, there are reliability issues. That's obvious from her evidence. Yet, nevertheless, she speaks of a number of rather disparate events that happened . . .

Counsel: Yes.

Trial Judge: . . . and in different locations, and over a period of time.

Counsel: Yes

Trial Judge: A girl who is operating under some mental restraints. If it were one incident, if it were two incidents, I can understand, but here we have a girl, rather of somewhat limited mental ability, who tells us about a whole series of events over a number of years. Did she make it all up?

[128] And then later, at pp. 721-22:

Trial Judge: [B]ut I'm still struggling with this, and I think I raised it before, and that is that -- and assist me with that -- and that is that because she gives evidence or gave statements by way of disclosures and then testified about a whole series, over a number of years incidents, as to one in the truck, one in the Cole residence, at least it happened in the Cole residence under different circumstances, it happened in the Slatter house, it happened in Larry and Sherrie's place -- well, we can all recall -- it happened all over the place, according to her. What I am struggling with is because her disclosure takes in a large period of time and different circumstances and different locations, you still say that at the end of the day I should say, because of her difficulties that she has in understanding, in speech, in recollection, that it should raise a reasonable doubt. I mean, that's obviously, I think, what you're likely going to say at the conclusion.

Counsel: No question.

[129] When defence counsel returned to the 75 per cent figure stating that people with intellectual disabilities are more likely to be suggestible, and that this was more likely to occur when the questioner was a person in authority, the trial judge responded, at p. 728: "Right. But there is no evidence that Darlene Brennan had suggested anything to her about the abandoned house." The complainant had described in considerable detail the sexual assaults that had taken place at an abandoned house. The person in authority, whom the defence speculated had induced the suggestibility, was social worker, Darlene Brennan. There was nothing in the record that served to anchor any allegation of suggestibility with respect to any sexual assault at the abandoned house. In the appellant's testimony, following that of the complainant and Darlene Brennan, the appellant confirmed that he and the complainant went to an abandoned house.

(b) Reliability and the Trial Judge's Reasons

[130] In addition to his observations made during closing arguments, the trial judge's reasons also reveal that he was alive to the issue of the complainant's reliability. At para. 43, he stated:

Counsel for the accused summarized the evidence of the complainant and advanced the position that her evidence is full of inconsistencies to the extent that I should conclude that her evidence is unreliable. I will now review that part of the complainant's evidence, which is said to be inconsistent.

[131] Then, at para. 44, he stated:

Based on inconsistencies in the evidence of the complainant and the improbabilities of certain events she described, I am urged to find that the evidence of the complainant is not reliable.

[132] He also made the following findings of fact that reflect a consideration of whether he could rely on the complainant's evidence in spite of the shortcomings identified by defence counsel, at para. 48:

The accused stated to her that if she ever told about their sexual encounters that he would deny it. If he did not make this statement, I must ask myself if she made it up and if so, whether she had the mental acuity to do so.

I find and accept that any frailties in the evidence of the complainant, as to the timing and frequency of events and any difficulties she had in describing and recollecting certain incidents, represent the kind of evidence I would expect from children or witnesses with intellectual disabilities.

[133] The trial judge also addressed the argument relating to the improbable sequence of events relating to the complainant's sexual encounter with the appellant at the abandoned building, and explained the improbability argument advanced by the defence on the subject of the brief encounters on the evenings of the card games at the Cole's house, at para. 48.

Her vivid description of her sexual encounter with the accused at the abandoned building was in short order followed by a return to the Slatter house. There she was given a diet pop and had small talk with Heather Slatter. On the one hand, it might appear as an improbable sequence of events. On the other hand, it might speak to the complainant having become accustomed to sexual contact with the accused.

Regarding her attendance with the accused at the home of Larry and Sherrie, the question arises as to how she knew that they were away in Myrtle Beach? The information likely came from either the accused or from Heather Slatter. However, Heather Slatter did not state that her dog walks with the complainant ever included a visit to this home. Accordingly, I find that it likely came from the accused who attended at this home with the complainant on their dog walks. I find this to be an example of the accused and the complainant being alone together. Other such examples are the Cole and Slatter homes, the abandoned house and the Pooch Park. They were, if nothing else, places of opportunity.

[134] The trial judge found that the Friday evening card games at the Coles' became an opportunity for the appellant on his way to the bathroom to briefly look in on the complainant and fondle her: at para. 48. These were likely but brief encounters: at para. 48. His absence from the card game would be explained by his bathroom visit: at para. 48.

[135] Although defence counsel had discussed suggestibility in his closing submissions, when he listed issues that called into question the complainant's reliability, the list did not include suggestibility. The trial judge proceeded to review each of these inconsistencies and improbabilities as described by the defence. This was the characterization adopted by the defence. It is noteworthy that the trial judge adhered to the defence argument in this regard. I accept that many of these issues went to credibility, but it was defence counsel who organized his submissions in this manner and the trial judge merely responded to them. Moreover, some of them did encompass reliability. It is evident from a review of the trial judge's reasons that the trial judge was clearly "seized of the substance of the issue" of the complainant's reliability.

(c) Transcript Reveals No Air of Reality of Suggestibility Submission

[136] A review of the transcript of the evidence at trial reveals that the complainant was not unduly suggestible to persons of authority, and was unwilling to agree with anything put to her. This would have been abundantly clear to the trial judge who listened to and observed the complainant testify.

[137] Her exchanges with the trial judge, most certainly a person of authority, provide such an example. For instance, at p. 241, the complainant was describing the dog walks and who attended with her. The trial judge asked: "Oh sometimes it might be just you and Heather?", to which the complainant responded: "She [Heather Slatter] wasn't always there." The trial judge repeated: "She was always there", and then again: "What do you mean she was always there?" The complainant proceeded to correct the judge, "She wasn't always, she wasn't always there."

[138] Her exchanges with defence counsel, arguably another person of authority, provide further such examples. When the complainant was cross-examined by defence counsel, at p. 292, the defence counsel said: "But you didn't tell her [Lorraine Cole] THE whole story. You didn't tell her about the sexual intercourse. . . . Because you didn't remember it when you talked to her." The complainant responded: "I did remember it, it's just I didn't know how to say it."

[139] There are many examples like these in the transcript that reveal that the complainant was not unduly suggestible, and was unwilling to agree with anything put to her.

[140] I also note the trial judge's comments made during closing submissions that the complainant "knows how to draw the line and she knows how to push back and follow through on what she wants to do", and "[w]hen something is important to her, she knows how to push back". This undercuts the appellant's suggestibility argument.

(d) Absence of Factual Foundation

[141] The argument of suggestibility lacked a factual foundation to anchor the expert's generalized opinion. It was so lacking in merit that while the trial judge was alive to the issue, there was no need to directly advert to it. There was a paucity of evidence that linked any "suggestions" of sexual assault to the numerous and detailed descriptions of sexual assaults described by the complainant. The complainant's statement to the police was not placed in evidence, nor was her interview with Dr. Jones, and there was no written record of conversations between the complainant and social workers. As the Crown at trial noted, there was no suggestion of any words such as rape, doggy style, or the events surrounding the bathing in the shower, going to the Dairy Queen, kissing at the BBQ, or sex at the abandoned house having been suggested to the complainant. Indeed, Darlene Brennan testified that the complainant used the term "rape" first, not she. The complainant's description of her encounters with the appellant were extremely detailed and inconsistent with the claim that the complainant was simply parroting what had been suggested to her. On the issue of susceptibility to suggestion, there is no evidence of any suggestion that the detail of the events was manufactured. It is one thing to say that a witness is susceptible to suggestion; however, there has to be a suggestion to be suggestible to. Here, there was none. It was mere speculation.

[142] The trial judge stated that he need not respond to every argument. He had engaged with defence counsel on the issue of suggestibility. By any measure it had no air of reality. There was no need for him to address the matter in his reasons.

(e) BBQ Evidence

[143] Moreover, the evidence on the BBQ incident serves to lend support to both the accuracy and the veracity of the complainant's testimony.

[144] The complainant testified that her former foster parents, Mr. and Mrs. Coles, the appellant and his wife, Mrs. Slatter, and she regularly attended Friday night BBQs at the CFB Trenton airport base. Mr. and Mrs. Cole and Mrs. Slatter would "hang out" inside the building; the appellant and the complainant would be outside.

[145] The appellant testified that the complainant would be out at the BBQ with him. Someone complained about an interaction between him and the complainant saying that he was kissing her on the check or on the forehead of something. The appellant acknowledged that that was what had been said, but disagreed. He denied that it was a little affectionate kiss because she was a good friend. He also acknowledged that the complainant had to stay inside the building after that, and that was somebody's rule.

[146] The complainant testified that the appellant did the barbequing and she was allowed outside the building -- that was, until an incident happened. She testified that she was texting and the appellant leaned over and was being inappropriate; he was kissing her on the forehead and on the cheeks. Mrs. Cole told the complainant that she could not go out to the BBQ anymore; she had to stay inside. The complainant stopped going to the BBQ after this.

[147] Mrs. Slatter testified that she was aware of the complaint and that Mrs. Cole was asked to bring the complainant inside.

[148] The trial judge found as follows, at para. 48:

Regarding the BBQ incident, I note that the complainant did not say that the accused had asked her about her texting. She said that he kissed her on the forehead and cheek. In any event, this physical closeness of these two at the BBQ caused her to be told to go inside. After this incident, she stopped attending these Friday functions at the Air Base. I prefer and accept the evidence of the complainant regarding this incident.

[149] The incident served to undermine the appellant's testimony that he never touched the appellant sexually.

(6) Conclusion on Ground One

[150] In summary, it is clear from the reasons that the trial judge considered the complainant's reliability and credibility concerns, commented where necessary, and was satisfied beyond a reasonable doubt of the appellant's guilt. Unlike in Dinardo, there really was no question of the accuracy of her testimony that she had been sexually assaulted by the appellant. The trial judge appreciated the difference between credibility and reliability, and adequately addressed reliability in his reasons. His reasons were not perfect. However, in my view, he was unquestionably alive to the real material issues before him, dealt with them in substance, and there can be no doubt that he was satisfied beyond a reasonable doubt of the appellant's guilt. He had the advantage of seeing and hearing the various witnesses' testimony. The reasons allow for meaningful appellate review. Reading the proceedings as a whole, I conclude that this ground of appeal should not succeed.

[151] This is for five reasons: (1) a review of defence counsel's closing submissions reveals that the trial judge was alive to the issue of the complainant's reliability, and its subset of suggestibility; (2) a review of the trial judge's reasons also reveals that the trial judge was alive to the issue of the complainant's reliability, of which suggestibility is a subset; (3) a review of the transcript of evidence at trial undermines the allegation of suggestibility; (4) there was a paucity of evidence to form the foundation for suggestibility; and (5) the evidence of the BBQ incident lends support to both the accuracy and veracity of the complainant's testimony.

[152] To rule as my colleagues do demands a standard of perfection and is, with respect, inconsistent with the principles articulated by the Supreme Court of Canada. This ground of appeal should be dismissed.

C. Ground Two: Confirmation of Details

[153] The appellant also submits that the trial judge improperly relied on the complainant's evidence as being self-corroborating. I agree with my colleagues that standing alone, the appeal should not be allowed based on the impugned passage in the trial judge's reasons.

[154] It is entirely proper to rely on the fact that many details in the complainant's account were confirmed by other people, thus restoring faith in the reliability of the complainant's testimony. The trial judge could have been clearer and more precise with his language. Given the context, it is reasonable to treat his comment as referring to confirmation of details by other witnesses. The appellant, his wife and Mr. Cole confirmed elements of the complainant's evidence on the abandoned house, the BBQ incident, the Dairy Queen outing and the Pooch Park. This went to the reliability of the complainant's evidence. Moreover, the trial judge's comment was directly responsive to the Crown's closing submissions to that effect, and should be considered in that context. I would not give effect to this ground of appeal.

D. Ground Three: Appellant's Evidence

[155] The appellant submits that the trial judge erred in failing to explain his rejection of the defence evidence. I disagree.

[156] The trial judge instructed himself on W. (D.) and cautioned himself that this case was not a credibility contest: at paras. 30-31 and 45-46. He knew that he had to look at the whole of the evidence to determine whether he was left with a reasonable doubt: at para. 31. He recognized that he would be assessing the complainant's evidence "in the same manner as [he] would the evidence of a child in the range of 10-12 years", and that her evidence was to be approached from a "common sense" perspective: at para. 47.

[157] Implicit in his reasoned acceptance of the complainant's evidence was his rejection of the appellant's evidence. As stated in M. (R.E.), at para. 66, where a complainant's evidence conflicts with that of an accused and the trial judge gives reasons for accepting a complainant's evidence, it follows:

. . . of necessity that [the trial judge] rejected the accused's evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused's evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt.

[158] Not surprisingly, given that the appellant's evidence was an outright denial, the trial judge focused his analysis on the complainant's evidence. When read as a whole, it is clear why the trial judge reasoned that he was compelled to accept the complainant's evidence and reject that of the defence. The trial judge was alive to the frailties in the complainant's evidence, and looked for and found confirmatory evidence to restore his faith in the accuracy and reliability of her version. He expressly addressed potential improbabilities in her evidence but did not find her version of events to be improbable. The details surrounding the incident at the BBQ were confirmed by other witnesses, as well as the fact that after this incident, the complainant stopped attending the Friday BBQs. He attributed frailties in her evidence on timing and frequency of events to her intellectual and developmental disabilities and this did not cause him to doubt the veracity and accuracy of her version of events. He noted specific details such as her description of the shower incident where "she cleaned up the water on the floor in the bathroom", her evidence that the appellant told her "if she lost weight, she could be skinny with big breasts", and her description of her sexual encounters with a "middle-aged neighbour" when she made her first disclosure to a young cabin mate at camp. No further explanation was required.

[159] In his analysis, my colleague relies on R. v. H. (D.), 2016 ONCA 569 and R. v. N. (A.), 2017 ONCA 647; however, those were both very different cases.

[160] In H. (D.), a decision not relied upon by the appellant, there were a myriad of errors by the trial judge, a failure to address a possible motive to fabricate the allegations, and other complexities, including conclusions that did not accord with logic. The appeal was allowed given "the totality of the errors": at para. 71. This is not the case here.

[161] In N. (A.), in very brief reasons, this court allowed an appeal involving convictions for sexual offences. The sexual offences were two in number and historical in nature, having occurred more than 30 years earlier. There was no confirmatory evidence supporting the testimony of the complainant. Again, this is not the case here.

[162] Instead, this court's decision in R. v. A. (R.), 2017 ONCA 714, affirmed 2018 SCC 13, bears more similarity to this appeal than those cases. In A. (R.), this court had occasion to consider the appellant's argument that the trial judge failed to resolve a critical inconsistency in the complainant's evidence, and failed to explain why he accepted the complainant's evidence and rejected the appellant's evidence. Similar to the case under appeal, in A. (R.), the trial judge neither explicitly accepted nor rejected the appellant's testimony. He found that the appellant had testified in a straightforward manner, was not evasive and withstood cross-examination: at para. 35. The trial judge also acknowledged that the complainant gave some contradictory evidence: at para. 36. However, the majority found that a reading of the record as a whole demonstrated that the trial judge responded to the live issues in the case: at para. 48. The trial judge was entitled to reject the appellant's evidence based on his considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence: at para. 56. The majority thus dismissed the appeal.

[163] The reasons of the trial judge in this case did not set out every detail in the case. However, based on the Supreme Court's jurisprudence, the reasons did not have to. Implicit in the trial judge's reasoned acceptance of the complainant's evidence was his rejection of the appellant's evidence. I would dismiss this ground of appeal.

E. Conclusion

[164] In conclusion, in my view, the trial judge's reasons readily permit meaningful appellate review and leave no doubt as to why the trial judge decided as he did. This was not a complex case and the appellant would understand why he was convicted. Unlike in Dinardo, the complainant, in spite of her extensive cross-examination, never resiled from her core allegations of numerous sexual assaults by the appellant. Sexual assault, the central issue in this case, was not suggested to the complainant. That was her independent evidence. She never told different things to different people on this fundamental point.

[165] R. v. I. (D.A.), 2012 SCC 5, was a sexual assault case involving a child who was mentally disabled and the issue of testimonial competence. McLachlin C.J.C. wrote, at para. 1: "The challenge for the law is to permit the truth to be told, while protecting the right of the accused to a fair trial and guarding against wrongful conviction."

[166] Here, the appellant had a fair trial. I see no basis to order another one. For these reasons, I would dismiss the appeal.

Appeal Allowed

End of Document

Her Majesty the Queen v. Slatter

Case Summary

Cases Referred To

Statutes Referred To

APPEAL

TROTTER J.A. (DOHERTY J.A. concurring):

A. Introduction

B. Factual Overview

(1) Introduction

(2) Expert Evidence

(3) The Sexual Assault Allegations

(a) The Melansons' Home

(b) The Pooch Path

(c) The Coles' Residence

(d) The Dairy Queen Incident

(e) The Airbase Incident

(f) The Abandoned House

(g) The Slatters' Home

(4) Disclosure of the Sexual Assaults

(5) Defence Evidence

C. The Reasons for Judgment

D. Issues on Appeal

E. Analysis

(1) Failure to Assess Reliability

(2) Illogical Reasoning

(3) Failure to Explain Rejection of Defence Evidence

F. Conclusion

PEPALL J.A. (dissenting):

A. Introduction

B. Ground One: Reliability

(1) Trial Judge's Reasons

(2) Evolution of Law on Sufficiency of Reasons

(3) Reliability

(4) Dr. Jones' Evidence

(5) Analysis

(a) Reliability and Defence Closing Argument

(b) Reliability and the Trial Judge's Reasons

(c) Transcript Reveals No Air of Reality of Suggestibility Submission

(d) Absence of Factual Foundation

(e) BBQ Evidence

(6) Conclusion on Ground One

C. Ground Two: Confirmation of Details

D. Ground Three: Appellant's Evidence

E. Conclusion

Appeal Allowed

Cited By (13 cases)

R. v. D.D., 2025 ONCJ 355

R. v. Bowman, 2024 ONSC 6987

R. v. K.N., 2024 ONCJ 599

R. v. P.P., 2024 ONCJ 596

R. v. Hutchinson, 2024 ONCJ 488

R. v. Grizzle, 2024 ONCJ 300

R. v. P.H., 2023 ONCJ 208

R. v. T.O., 2023 ONCA 222

R. v. Scott, 2022 ONCA 317

R. v. J.B., 2022 ONCA 214

This Proceeding

Judges

Counsel

Parties

Areas of Law