WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4 or 486.6 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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.

(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.

COURT OF APPEAL FOR ONTARIO

DATE: 20240118 DOCKET: C70221

Fairburn A.C.J.O., Favreau and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

J.L., a young person Appellant

Counsel: Owen Goddard and Janani Shanmuganathan, for the appellant Lilly Gates, for the respondent

Heard: November 2, 2023

On appeal from the conviction entered by Justice Bernd E. Zabel of the Ontario Court of Justice on July 22, 2021.

Favreau J.A.:

A. Introduction

[1] The appellant was found guilty on two counts of sexual assault, one count of choking the complainant while committing a sexual assault and one count of uttering death threats.

[2] The appellant submits that the trial judge’s reasons are insufficient. Specifically, the appellant argues that the trial judge erred by failing to even acknowledge material inconsistencies in the complainant’s evidence, let alone seek to resolve them. The appellant further argues that the trial judge failed to recognize and address the complainant’s motive to fabricate.

[3] I agree. This is one of those very rare cases where a failure to acknowledge and resolve material inconsistencies in a critical witness’s evidence results in an insufficiency of reasons.

[4] The central issue at trial was the complainant’s credibility. There were multiple internal inconsistencies in her evidence and inconsistencies between her evidence and the evidence of other witnesses. Defence counsel’s closing submissions focused entirely on these inconsistencies and on a possible motive to fabricate. Despite the evident issues with the complainant’s credibility and the emphasis of defence counsel’s closing submissions, in his reasons the trial judge only summarized the complainant’s evidence in-chief and provided a generic statement that he found her credible and that any inconsistencies in her evidence were on peripheral matters.

[5] In the circumstances of this case, this was insufficient and I would allow the appeal on that basis.

B. Background

[6] The appellant and the complainant were high school classmates. They dated for approximately three months, starting in April 2019. At the relevant time, the appellant was 16 years old and the complainant was 15 years old.

[7] The complainant said the appellant sexually assaulted her on two separate occasions during their relationship.

[8] The first incident occurred in April 2019, when the appellant and the complainant were spending the night at the residence of the complainant’s sister. They were both there to help the complainant’s sister move the following day. The complainant said that she woke up in the night to find the appellant on top of her, with his penis in her vagina, and that he kept his hand over her mouth and put his other hand on her throat at times during the assault. She claimed that she blacked in and out of consciousness during the assault.

[9] According to the complainant, the second incident occurred approximately one week later in the appellant’s bedroom at his house. The complainant claimed that the appellant forced her to have vaginal intercourse.

[10] The incident of uttering death threats occurred shortly after the second incident. The complainant said that she told the appellant that she did not “want to do anything that day”, and he told her that, if she told anyone, he would “get her jumped or killed”.

[11] The complainant broke up with the appellant in July 2019, after learning that the appellant had “cheated” on her.

[12] Later that summer, following the break-up, the appellant made social media posts stating that he had sex with the complainant. The complainant was then subjected to harassment by others in their circle.

[13] The complainant first disclosed the sexual assaults to a friend, around the time of the harassment arising from the social media posts. She next disclosed the sexual assaults to her mother and her sister in May 2020, after which she went to the police with her mother.

[14] The witnesses for the Crown at trial were the complainant, the complainant’s mother and sister, and the complainant’s friend to whom she had first disclosed the assaults. The appellant did not testify. The only witness called by the defence was the appellant’s mother.

[15] The primary focus of defence counsel’s closing submissions were the multiple inconsistencies in the complainant’s evidence. Defence counsel reviewed these inconsistencies in detail and argued that they should raise a reasonable doubt. Defence counsel also suggested that the complainant had a motive to fabricate. The trial Crown’s closing submissions acknowledged that there were multiple inconsistencies in the complainant’s evidence, but invited the judge to reconcile these on the basis of the complainant’s age and the passage of time, among other factors. The trial Crown also addressed the motive to fabricate and sought to provide explanations that would “neutralize” such a motive.

C. Trial judge’s reasons

[16] The trial judge found the appellant guilty on all charges.

[17] In his reasons, the trial judge started by making general statements about his assessment of the evidence, including the witness’s credibility and reliability:

The onus is on the Crown to prove the guilt of the accused young person beyond a reasonable doubt, and in determining if the Crown has met the onus placed upon it, I’ve carefully reviewed all the evidence presented and in so doing, I’ve weighed the evidence and drawn all reasonable and permissible inferences from it. I have assessed both the credibility and reliability of the witness’s testimony and, as well, have considered the submissions of counsel, the case law referred to . Lastly, I’m mindful of the instructions to trial judges from the Supreme Court of Canada in W.D.

I will now highlight the relevant portions of the admissible evidence and make my rulings and findings…. [Emphasis added.]

[18] The trial judge then reviewed the evidence of each witness. He started with the complainant’s evidence, but only summarized her evidence in-chief and did not touch on what had been covered in cross-examination. Indeed, the trial judge did not refer to any inconsistency elicited by defence counsel during cross-examination. This was notable because, as referred to above, in defence counsel’s lengthy closing submissions, those inconsistencies were central to the defence position that the complainant’s evidence was so lacking in credibility and reliability that the Crown had failed to prove the appellant’s guilt beyond a reasonable doubt.

[19] Rather than acknowledging any of the inconsistencies, the trial judge simply stated that the complainant had not been “significantly contradicted under cross-examination”, that any inconsistencies were “minor and mostly on peripheral matters”, and that she remained “very firm” and denied “all contrary suggestions placed to her by the defence.” On this basis, the trial judge found the complainant to be credible and reliable.

[20] The trial judge also briefly summarized the evidence of the other witnesses, stating that he found them credible and reliable. The only exception was the appellant’s mother who, contrary to the complainant’s version of events, denied that she had invited the complainant to her home for dinner on one occasion. While the trial judge found that the mother was a credible witness, he concluded that she was mistaken about this fact.

[21] Without any further analysis of the evidence, the trial judge concluded by finding the appellant guilty on all counts:

In conclusion, considering the totality of evidence presented to me, including my rulings on credibility, I find the defence evidence does not raise a reasonable doubt. However, on the evidence I have accepted, I find the Crown has proven the guilt of the accused young person on each count as arraigned beyond a reasonable doubt, and there’ll be findings of guilty registered on all counts.

D. Analysis

[22] The only ground of appeal raised by the appellant is the sufficiency of the trial judge’s reasons. The appellant claims that the reasons are incapable of appellate review because the trial judge failed to address the complainant’s alleged motive to lie and failed to address any of the inconsistencies in the complainant’s evidence, as well as inconsistencies between her evidence and her sister’s evidence.

[23] I agree with the appellant. This is a rare case in which the trial judge’s reasons do not permit appellate review.

(1) General principles

[24] Poor reasons on their own do not justify judicial intervention. Judicial intervention is only warranted where the reasons amount to an error of law because they foreclose meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25, 28.

[25] The court is to take a functional and contextual approach in reviewing a trial judge’s reasons: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 69. The Supreme Court has instructed that appellate courts are not to “finely parse” trial decisions, searching for errors; rather, “they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: G.F., at para. 69. In other words, reasons will be insufficient if they fail to articulate what was decided and why it was decided.

[26] Trial judges do not have an obligation to address all issues raised or all the evidence presented at trial. However, as the Supreme Court stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55, the reasons must demonstrate that the trial judge understood and grappled with the critical issues, including contradictory evidence, at trial:

The appellate court, proceeding with deference, must ask itself whether the reasons considered with the evidentiary record, the submissions of counsel and the live issues at trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions . If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue. [Emphasis added.]

[27] As the Supreme Court cautioned in R.E.M., at para. 49, the reviewing court is to be mindful that articulating findings of credibility can be challenging. Nevertheless, reasons dealing with findings of credibility must show that the trial judge “seized the substance of the issue”, which “may require at least some reference to [the] contradictory evidence”: R.E.M., at para. 50. As held in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31, where the complainant’s truthfulness is a live issue and where there are significant inconsistencies in the complainant’s testimony, trial judges must demonstrate that they are alive to the issue and explain how they have reconciled these significant inconsistencies.

(2) Application of the principles to this case

[28] In this case, as reviewed above, the trial judge’s reasons consist of little more than a description of the complainant’s evidence in-chief and a conclusory statement that the trial judge found her to be a credible witness. By approaching the reasoning process in this way, the trial judge’s reasons do not allow for meaningful appellate review because it is not possible to discern whether he grappled with two important issues in the case: 1) significant inconsistencies in the complainant’s evidence and 2) the complainant’s alleged motive to lie. I address both these deficiencies below.

(a) The trial judge failed to address significant inconsistencies in the complainant’s evidence

[29] In closing submissions, defence counsel focused on the complainant’s credibility, and on what she described as several material inconsistencies between her police statement, the evidence she gave at the preliminary inquiry, and her examination in-chief and on cross-examination at trial. Going through these inconsistencies was the main focus of defence counsel’s submissions.

[30] For instance, the defence put forward numerous inconsistencies, fairly acknowledging that some were more peripheral than others. Nevertheless, the core of the defence position was the fact that there were numerous, irreconcilable inconsistencies that undermined the complainant’s credibility and the reliability of her evidence. For example:

a. The complainant was confronted with the fact that she had said she was invited to the appellant’s home by his mother to celebrate his brother’s birthday. Yet, the brother’s birthday was six months after the alleged incident. b. The complainant was also confronted with the fact that she had originally said that when she went to the appellant’s home, she was greeted by the appellant’s mother and brother. Yet, she later acknowledged that the mother was at work when she arrived and the brother was in his room. c. The complainant first said that the reason she broke up with appellant was that she was afraid of him. Yet, she later acknowledged that she was upset over the fact that he had “cheated” on her. d. The complainant said that, after having been sexually assaulted at her sister’s home, she attempted to avoid the appellant the following day. However, her sister testified that the complainant and the appellant held hands and were behaving like they were on their “honeymoon” that day. As defence counsel noted, she was not pointing to this inconsistency as a “myth and stereotype as to how a victim of sexual assault should or shouldn’t be behaving after-the-fact”, but as relevant to the “stark contrast and inconsistency with her sister’s evidence.” e. The complainant was also inconsistent in relation to where and when the alleged threat took place, giving three different versions of where and when the threat occurred in her testimony in-chief, her cross-examination, and her police statement.

[31] These were not trivial inconsistencies. They formed a core feature of defence counsel’s closing submissions. Even the trial Crown spent significant time during her submissions addressing the inconsistencies and attempting to explain them by reference to, among other things, the complainant’s age and the passage of time between the events and the trial. This highlights that no one thought that the inconsistencies could be ignored.

[32] Yet, this is what the trial judge did. He ignored the inconsistencies, many of which could only fairly be described as material in nature. Not only did the trial judge fail to resolve any inconsistencies, but he also failed to acknowledge that the inconsistencies existed other than by stating generically that any inconsistencies were peripheral. Indeed, as mentioned before, he only reviewed the complainant’s evidence in-chief.

[33] While there may have been a path for reconciling these inconsistencies as submitted by the Crown, the trial judge’s failure to acknowledge and grapple with any inconsistencies make his reasons wholly insufficient. In the circumstances, it is not possible to know whether the trial judge was alive to the inconsistencies in the complainant’s evidence and, if so, whether and how he reconciled them.

(b) The trial judge failed to address the issue of whether the complainant had a motive to fabricate

[34] The trial judge also did not address the issue of whether the complainant had a motive to fabricate.

[35] The potential motive to fabricate arose from the timing of the complainant’s disclosure of the assaults to her friend and to her mother and sister. The complainant first disclosed the sexual assaults to her friend after the appellant stated on social media, via Snapchat “story”, that he had sex with the complainant, and after he contacted her on social media to ask why she would not admit that they had sex. As a result of this Snapchat “story”, the complainant was subject to harassment on social media. It was in this context that the complainant first disclosed the two sexual assaults to her friend.

[36] The complainant disclosed the sexual assaults to her mother and sister in May 2020. She initially stated that she first disclosed the sexual assaults to her mother, and that she did so at a time when she was spending a lot of time alone in her room and in conflict with her mother. Her evidence was that, in response to questions from her mother, she “blurted” out that the appellant sexually assaulted her. In cross-examinations, it was suggested to her that she made up the sexual assaults as a way to deal with her mother’s questions. She then responded, in contradiction to her earlier evidence, that she had first disclosed the sexual assaults to her sister and that she had done so at a time when she was not angry.

[37] At trial, defence counsel cross-examined the complainant on the issue of the timing of her disclosures, suggesting that she fabricated the assaults as a response to the social media harassment and then as a reaction to her mother’s questioning. In addition, in closing submissions, defence counsel submitted that the complainant had a motive to fabricate. Yet, in his reasons, the trial judge did not address this issue. In fact, the trial judge did not even refer to it or acknowledge that it was a live issue. This is despite the fact that the trial Crown, in closing submissions, fairly conceded that she had to “neutralize” this allegation.

[38] The respondent argues that the motive to fabricate was not a significant issue, in part because the complainant’s friend was not even aware of the social media posts. However, this is beside the point. While there may be a valid explanation for rejecting the defence theory that the complainant had a motive to fabricate, the trial judge’s reasons do not allow this court to assess whether and how the trial judge grappled with this issue: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, leave to appeal refused, [2021] S.C.C.A. No. 127, at para. 35; R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 30.

(3) Conclusion on sufficiency of reasons

[39] On their own, the failure to address some of the specific inconsistencies or the motive to fabricate may not be sufficient for a finding that the reasons are insufficient. Notably, the Supreme Court and this court have been clear that trial judges are not required to address every inconsistency in the evidence: R. v. L.T., 2019 ONCA 535, at para. 2; R. v. Tootiak, 2021 ONCA 356, at para. 5. However, cumulatively, I agree with the appellant that it is not possible to understand why, given the significant inconsistencies in the complainant’s evidence and the potential motive to fabricate, the trial judge nevertheless concluded that the complainant’s evidence was credible and reliable. It was not sufficient for him to describe her evidence in chief and to then conclude that he found her evidence credible and reliable without addressing any of the inconsistencies in her evidence. There is no formula for showing that a trial judge has grappled with a witness’s inconsistencies in deciding that the witness is nevertheless credible and their evidence is reliable on essential issues. However, to be capable of review, the reasons must nevertheless show that the trial judge grappled with the essential issues at trial. The reasons in this case fail to do so, and they are therefore not capable of appellate review.

(4) This is not a proper case for the court to look to the record to support the trial judge’s conclusions

[40] In argument, the respondent submitted that, if the court found that the reasons were insufficient, the court could nevertheless look to the record to support the trial judge’s findings. Indeed, in Sheppard, at para. 55, the Supreme Court stated that reasons may be sufficient when the basis for the trial judge’s conclusion is “apparent from the record, even without being articulated”. However, this does not mean that, in cases such as this one, appellate courts are required to conduct credibility assessments afresh, particularly ones that require the reconciliation of multiple inconsistencies that go to material issues and ones that require the reconciliation of alleged motives to fabricate, none of which was even acknowledged by the trial judge.

[41] This argument was made by the Crown and rejected in Dinardo, at para. 34, where the Supreme Court stated that, in the face of contradictory evidence from a complainant, “[w]ithout some explanation in his reasons for judgment, there is simply no way to know how the trial judge satisfied himself that the complainant was a credible witness.” Similarly, in R. v. J.C., 2023 ONCA 101, having found the reasons insufficient on one of the counts on which the appellant was found guilty, this court held that it was not possible to resolve the “live issues” on that count based on the record alone: at para. 13. To resolve the issue would require the court “to step into the shoes of the trial judge, weigh the evidence, and redo his assessments of credibility and reliability”, which this court said is not the role of an appellate court: at paras. 12-13. The same concerns arise in this case.

E. Disposition

[42] I would allow the appeal and order a new trial.

Released: January 18, 2024 “J.M.F.”

“L. Favreau J.A.”

“I agree. Fairburn A.C.J.O.”

“I agree. J. Copeland J.A.”