Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(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

(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: 2024-07-03 Docket: COA-23-CR-1016

Before: Sossin, Monahan and Madsen JJ.A.

Between:

His Majesty the King Appellant

and

G.H. Respondent

Counsel: Eunwoo Lee, for the appellant Paul Calarco and Michael Bartlett, for the respondent

Heard: June 21, 2024

On appeal from the acquittal entered by Justice Martha Zivolak of the Ontario Court of Justice, dated August 29, 2023.

Reasons for Decision

[1] The Crown appeals from the acquittal of the respondent on charges of sexual exploitation, invitation to sexual touching, exposure to a person under 16, and sexual assault. The Crown seeks a new trial on the basis that the trial judge erred by relying on stereotypical reasoning in her assessment of the complainant’s credibility and reliability, and by emphasizing peripheral inconsistencies in the complainant’s evidence in the context of childhood abuse.

[2] For the reasons that follow, we allow the appeal and order a new trial.

Background

[3] The complainant moved into the respondent’s home the summer before she started Grade 6. It was a very busy home, housing many family members. The complainant alleged that, in the 10 years that she lived with the respondent, he regularly sexually assaulted her. The acts alleged included the respondent grabbing her breasts, vaginally assaulting her on one occasion, and regularly forcing her to perform oral sex and masturbate him.

[4] The complainant alleged that, when she was younger, the assaults would occur when she would take naps in the respondent’s room. As she got older, the assaults allegedly occurred when the complainant would go on “scrap runs” with the respondent (during which the respondent collected scrap items for money). In addition, the complainant alleged the respondent would supply her with alcohol and drugs. The complainant alleged that the abuse continued, even when she moved out of the home, whenever she would come back to visit her mother.

[5] The trial turned on credibility and reliability. The trial judge pointed to several inconsistencies in the complainant’s evidence including inconsistencies relating to when she moved into the respondent’s home, when the scrap runs took place, when the doorhandle on her room was removed, how she became undressed when the vaginal sexual assault occurred, when she moved out of the home, and when the assaults stopped occurring.

[6] The trial judge also repeatedly commented on the complainant’s explanations, or lack thereof, as to why she continued to nap and go on scrap runs with the respondent even though she knew she would be sexually assaulted.

[7] For example, the trial judge stated in reviewing the complainant’s evidence:

… she continued to nap with [the respondent] during this period of time, notwithstanding the sexual assaults occurring. She does not have an explanation except that she liked to nap. She knew it would happen. She continued to nap with [the respondent] until the napping opportunity, as indicated, came to an end.

[8] Subsequently, the trial judge returned to this theme in the context of the scrap runs:

Why did she go on scrap runs? A variety of reasons were given, mainly that she likes to go into a car, she finds it relaxing. Sometimes her family would say, you should go and get some fresh air. But she always knew that she would be sexually assaulted on those runs because it was always the same… she knew it was going to happen, but that she voluntarily went, in any event, on the scrap runs because she liked to be in a car.

[9] The trial judge then returned to her concerns over why the complainant engaged in these activities in her summary of her assessment of the complainant’s evidence:

But the repeated indications that [the complainant] would engage in the behaviour that she claims she did, to go for a ride because she liked to go for a ride, even during periods of time when she was out of the house. Those explanations as to why she would come back and engage in the activity she claims she engaged in and the various versions of how it came about of a material nature, again simply leave me with being unable to accept her evidence. It cannot support a conviction. I cannot rely on it beyond a reasonable doubt.

[10] Finally, the trial judge noted that many people resided in the respondent’s home and that they were all regularly present as no one worked outside of the home. This made the complainant’s evidence about the number of times that the respondent assaulted her “very difficult” to rely on. Although the trial judge acknowledged that some confusion over dates could be explained by the fact that the alleged assaults were dated and spanned over a long period of time, the trial judge concluded that she could not rely on the complainant’s evidence as she was “careless with the truth and perhaps she simply is lying and adding versions as she goes along”.

[11] The respondent denied every allegation of sexual impropriety and denied supplying the complainant with drugs. The trial judge noted that he was “clearly a very unsophisticated witness” and was at times inconsistent. The respondent admitted, to his detriment, that he would lie to police if it helped him in a circumstance. Nonetheless, applying the rationale in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge was left with reasonable doubt based on his evidence.

[12] Even if the trial judge had not been left with doubt based on the respondent’s evidence, she could not rely on the complainant’s evidence given that it was “so fraught with material inconsistencies and various versions of the same events” demonstrating “a disregard and a carelessness for the truth”.

[13] Accordingly, all charges were dismissed by the trial judge.

Issues

[14] The Crown raises two grounds of appeal:

The trial judge erred by relying on stereotypical reasoning which had a material effect on the verdict; and
The trial judge erred by emphasizing peripheral inconsistencies in the complainant’s evidence in the context of testimony of childhood abuse.

Analysis

[15] The Crown argues that the trial judge’s assessment of the complainant’s credibility was influenced by impermissible stereotypical reasoning.

[16] According to the Crown, the trial judge was fixated on the reasons why the complainant would continue to nap with the respondent, or go on scrap runs with him, despite “knowing what would happen”. The trial judge came back to this same point six times in her reasons and then emphasized it again in her conclusions about the complainant’s credibility.

[17] The Crown argues that the complainant did not need to provide any explanation for going on scrap runs. The fact that she continued to go on scrap runs with the respondent was logically irrelevant to deciding whether she was sexually abused. The Crown highlights that these passages in the trial judge’s reasons suggest that the trial judge found it was inconsistent that the complainant would know that a sexual assault would likely occur, yet go on the scrap runs anyway. In doing so, the trial judge presumed that a victim of sexual abuse would not continue to engage with her abuser.

[18] The Crown relies on R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 63, where Paciocco J.A. held that, “it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility.” The Crown asserts that, in particular, it is a stereotype that a complainant would avoid their assailant or change their behaviour towards their assailant, and it is an error to employ such reasoning.

[19] The respondent argues that this approach to common sense assumptions has been overtaken by R. v. Kruk, 2024 SCC 7, 433 C.C.C. (3d) 301, and in any event, the trial judge was not employing stereotypes about how a potential victim of sexual assault might behave, but rather assessing the explanations offered by the complainant and whether they were credible. As the respondent put it in his factum, “Her Honour was not generalizing, but evaluating the evidence of this particular complainant, and finding it lacking, due to numerous inconsistencies that could not be reconciled.”

[20] We accept the Crown’s position that the trial judge’s reasons, and her repeated focus on concerns with the complainant’s explanation of why she continued to engage in certain activities with the respondent notwithstanding the risk of further assault, give rise to an inference that she engaged in stereotypical reasoning. As the Supreme Court has emphasized on many occasions, there is no expected or proper way for a victim of abuse to act, particularly a victim of childhood abuse: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2; Kruk, at para. 192, per Rowe J. (concurring).

[21] Kruk does not provide assistance to the respondent. The Supreme Court clarified that its rejection of a rule against ungrounded common-sense assumptions did not alter or erode in any way the existing rules which do not permit stereotypical reasoning in relation to the expected or appropriate conduct of a victim of sexual assault: Kruk, at paras. 41-45, 54, 57, and 96.

[22] We also do not accept the distinction drawn by the respondent between stereotypical reasoning being limited to how a victim of an assault might act or respond, as opposed to the evaluation of a complainant’s explanation for why they did respond in a particular way. Stereotypical reasoning can apply in both types of assessments. In this case, the trial judge’s assessment of the complainant’s credibility gives rise to an inference that she did not accept the complainant’s testimony because it was inconsistent with how the trial judge believed a victim of assault would or should act in the face of future risk of assaults.

[23] That does not, of course, end the analysis. The remaining question is whether the trial judge’s error “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14; and R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at paras. 13-15.

[24] The Crown submits that the stereotypical reasoning was a central factor in the trial judge’s assessment of the complainant’s credibility, and the fact that the trial judge expressed other concerns regarding the complainant’s credibility is not a bar to finding that this error had a material effect on the verdict. To adopt the question as framed by this court in J.C., at para. 73, even if the trial judge offered other reasons for the impugned conclusion, can it safely be said that the trial judge would have reached the same conclusion without the error?

[25] In this case, we are of the view that the answer is no. Notwithstanding the other inconsistencies in the complainant’s evidence mentioned by the trial judge or the trial judge’s clear conclusion that the testimony of the respondent on its own was sufficient to give the trial judge a reasonable doubt, it is not possible to excise the influence of the trial judge’s stereotypical reasoning from the rest of her credibility and reliability analysis.

[26] This is most clearly established in A.B.A., where the trial judge relied on stereotypical reasoning about how a victim of sexual assault would or should behave when she evaluated the credibility of the complainant. The trial judge acquitted the accused in that case because she believed his testimony, and she gave several independent reasons for believing him that were not related to her assessment of the complainant’s testimony. However, this court found that her assessment of the complainant’s credibility “played a prominent role in her determination of whether to believe the [accused]”: at para. 16. In particular, the trial judge noted that the W.(D.) analysis required her, in assessing the believability of the accused, to consider his evidence in the context of the evidence of the complainant and that the accused’s believability would hinge in large part on whether or not she believed the complainant. She then went on to explain why she did not believe the complainant, applying the stereotypical reasoning. As a result, this court found that her determination of the accused’s credibility was inextricably linked to her legally flawed assessment of the complainant’s credibility.

[27] A similar point was made in R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 59, where, in finding that an acquittal should be overturned, this court stated: “Because the trial judge was required to consider the respondent’s evidence in light of all the evidence, including the complainant’s, it is not possible to divorce the trial judge’s acquittal of the respondent from his flawed reasoning.”

[28] In this case, it is clear as well that the trial judge’s stereotypical reasoning was “inextricably linked” to whether or not she believed the accused. The trial judge described inconsistencies between the complainant and the respondent’s testimonies, such as their evidence of napping together and drug use. She also contrasted both the complainant and the respondent’s evidence with that of the other witnesses’ evidence.

[29] On the basis of some of the inconsistencies in the respondent’s evidence, she had “a hard time believing everything he said.” Although the trial judge did not explain what part of the respondent’s evidence raised a reasonable doubt, it is clear that her approach to assessing his evidence was linked to her assessment of the complainant’s evidence. Even the reasonable doubt arising from the respondent’s evidence cannot be isolated from the trial judge’s legally erroneous assessment of the complainant’s credibility.

[30] For this reason, the appeal must be allowed, and a new trial ordered.

[31] In light of this conclusion, it is not necessary to examine in any detail the Crown’s second ground of appeal, that the trial judge also erred in her treatment of the complainant’s evidence of childhood abuse.

[32] However, it is worth reiterating that when an adult testifies about events which occurred when she was a child, the Supreme Court has stated that “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying”: R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134. Other examples of inconsistencies which should be assessed in the context of the witness’s age at the time of the abuse include the frequency and duration of events, and the ability to recall precise details: R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32, at paras. 11, 14-15; and R. v. J.P., 2023 ONCA 570, at para. 37.