WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 20210621 Docket: C67883

Before: Doherty, Trotter and Thorburn JJ. A.

Between:

Her Majesty the Queen Respondent

and

G.C. Appellant

Counsel: Mark Ertel and Jon Doody, for the appellant Rebecca Schwartz, for the respondent

Heard: June 4, 2021 by video conference

On appeal from the convictions entered on September 18, 2019 by Justice Geoffrey Griffin of the Ontario Court of Justice.

Reasons for Decision

The Issues

[1] The appellant G.C. appeals his convictions for sexual assault involving three complainants, S.J., H.J. (together referred to as “the first two complainants”) and J.W. (“the third complainant”). The appellant was convicted of sexual assault and sexual exploitation of the first two complainants, and sexual assault of the third complainant.

[2] The convictions turned on the trial judge’s assessment of the credibility of the complainants and the appellant when viewed in the context of the evidence as a whole, and the Crown’s obligation to prove the charges beyond a reasonable doubt.

[3] The appellant claims that (a) the trial judge offended the rule in R. v. W.(D.), [1991] 1 S.C.R. 742, by considering and accepting the complainants’ evidence before considering the appellant’s evidence; (b) he erred in rejecting the appellant’s evidence without providing a considered and reasoned acceptance of the evidence; and (c) he erred in relying on the absence of a proven motive as the basis to accept the third complainant’s evidence.

The Trial Judge’s Reasons for Judgment

[4] The trial judge gave detailed oral reasons for judgment.

[5] At the outset, he explained the applicable standard and burden of proof, and the rule in W.(D.). He recognized that the key question is whether, on the evidence as a whole, the trier of fact is satisfied of the accused’s guilt beyond a reasonable doubt.

[6] In conducting his analysis of the evidence, the trial judge reviewed each complainant’s evidence as well as the evidence of the other crown witnesses including other family members and an employee of the Children’s Aid Society, the points raised by the defence, and he explained why he accepted each complainant’s evidence.

[7] Before considering the appellant’s evidence, the trial judge cautioned himself that “the acceptance of the evidence of the complainants by no means ends the matter as it is essential that the evidence of [the appellant], as well as all the defence evidence, should be assessed in light of the whole of the evidence” to determine whether he was left with a reasonable doubt. He then reviewed the appellant’s evidence, separately laying out the appellant’s evidence respecting the allegations of each complainant.

[8] In respect of the allegations made by the first two complainants, the trial judge recognized that the appellant was under no obligation to prove anything and that “the fundamental concepts of onus of proof” and proof beyond a reasonable doubt must be considered. He also held there was no specific aspect of the appellant’s evidence that caused him to disbelieve the appellant. However, when he considered the appellant’s evidence in the context of all the evidence and contrasted it with these complainants’ testimony, he concluded that both complainants were telling the truth and that he had “no reasonable doubt about the charges at all” (save for one that was dismissed and is not the subject of this appeal). He was therefore satisfied beyond a reasonable doubt that the appellant was guilty of sexually assaulting and sexual exploitation of the first two complainants.

[9] The trial judge accepted the evidence of the third complainant, rejected the appellant’s evidence, and was satisfied beyond a reasonable doubt that the appellant sexually assaulted her. He found the appellant’s evidence respecting this allegation to be “problematic”, as parts of his evidence were inconsistent or “contrary to common sense”. He also found the appellant’s reaction to the allegation troubling. In contrast, he found the complainant’s actions in the face of the alleged assaults to be logical, and held that it would have made no sense for her to sabotage her living arrangements with the appellant and his spouse, which she sought out and enjoyed, by making a false allegation and concluded that the complainant’s testimony about the appellant’s apology to her had “the ring of truth.”

Analysis and Conclusion

[10] In cases such as this, the Supreme Court of Canada has recently cautioned that appellate courts “must not finely parse the trial judge’s reasons in search for error”: R. v. G.F., 2021 SCC 20, at para. 69. The Court emphasized both the strong deference due to a trial judge’s credibility findings and the presumption that trial judges must be taken to know the law. The presumption applies with particular force when it comes to settled principles. As the Court said, at para. 75 of G.F., “trial judges do not need to provide detailed maps of well-trod paths”. The Court further observed, at paras. 76-79, that reasons which are “imperfect” or language which is “ambiguous” does not per se require allowing an appeal.

[11] The issues raised by the appellant all relate to the proper application of bedrock legal principles and fall on the “well-trod” path referred to by the Supreme Court of Canada.

[12] The trial judge’s reasons demonstrate an understanding of the presumption of innocence and the application of the burden of proof faced with irreconcilable versions of events. The trial judge referred to the three-step analysis laid down in R. v. W.(D.) early in his reasons and instructed himself on the applicable legal principles on at least three occasions. He succinctly and accurately put forward the defence – first, the appellant’s denials were sufficiently credible to at least raise a doubt; second, the complainant’s evidence was not sufficiently reliable to carry the burden of proof.

[13] With one exception, the trial judge found the evidence of the first two complainants “totally believable”. However, the trial judge did not convict on the basis of that assessment, nor did he arrive at that conclusion without regard to the appellant’s evidence. While he candidly acknowledged that he could not point to anything in the appellant’s denial that would cause him to reject the appellant’s evidence regarding the first two complainants, he correctly observed the appellant’s evidence was not to be assessed in isolation, but rather in the context of the entirety of the evidence, including but not restricted to that of the complainants.

[14] The trial judge concluded that on the totality of the evidence, bearing in mind the onus of proof, he believed the first two complainants, beyond any reasonable doubt. His reasons provide a considered and reasoned explanation for accepting the complainants’ evidence and his conclusion that he was satisfied beyond a reasonable doubt of the appellant’s guilt.

[15] As noted in R. v. R.A., 2017 ONCA 714, 421 D.L.R. (4th) 100, at para. 55, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307, an accused person is not entitled to an acquittal simply because his evidence does not raise any obvious problems. His evidence may be rejected “based on considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” which may provide “as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence”: R. v. J.J.R.D. (2006), 218 O.A.C. 37 (C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69. This is what the trial judge did in this case.

[16] With respect to the third complainant, the trial judge accepted the third complainant’s evidence and gave reasons for rejecting the appellant’s evidence regarding the third complainant’s allegation.

[17] The appellant claims the trial judge erred in treating the evidence of the third complainant as demonstrating that she had no motive to fabricate. The appellant argues this was not a case of proved absence of motive, but rather a case of the absence of evidence of a motive to fabricate.

[18] In our view, the trial judge’s observation that the third complainant “appears to have no motive to make false allegation” was not a finding that the Crown had proved there was no motive, as the appellant suggests, but rather that the third complainant had no apparent motive to fabricate her evidence. It was open to the trial judge to make that finding and take it into account when assessing the third complainant’s credibility. In any event, the trial judge’s consideration of whether she had a motive to fabricate appears to have played a very minor role in his credibility assessment.

[19] For these reasons, we dismiss the appeal.

“Doherty J.A.”

“Gary Trotter J.A.”

“J.A. Thorburn J.A.”