Court of Appeal for Ontario

Date: 20241129 Docket: COA-23-CR-0959

Pepall, Copeland and Dawe JJ.A.

Between

His Majesty the King Respondent

and

T.D. Appellant

Counsel: Paul Socka, for the appellant Meghan Tait, for the respondent

Heard: October 25, 2024

On appeal from the convictions entered on June 15, 2023, by Justice Russell M. Raikes of the Superior Court of Justice.

Dawe J.A.:

[1] The appellant T.D. was tried on sexual offence charges against four different complainants. He was found guilty of paired counts of sexual assault and sexual interference in relation to two of the complainants, B.S. and B.B., but the sexual assault counts were stayed pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729. He was acquitted on thirteen other counts, including all of the charges relating to the other two complainants.

[2] T.D. appeals against his convictions only. For the following reasons, I would dismiss his appeal.

Overview

[3] The appellant was at different times in romantic relationships with both B.S. and B.B.’s mothers.

[4] The charges relating to the first complainant, B.S., were particularized as having been committed between January 1, 2010 and May 31, 2013. It was alleged that the appellant committed these offences while he was in a relationship with B.S.’s mother. In June 2013, after the appellant’s relationship with B.S.’s mother ended, he left Ontario and went to work in Alberta. When he later returned to Ontario, he began a new relationship with B.B.’s mother. The charges relating to B.B. were particularized as having occurred between May 1, 2014 and February 1, 2015. It was alleged that the appellant committed these offences while his relationship with B.B.’s mother was ongoing.

[5] The appellant advances three main grounds of appeal, although some of his grounds have multiple component parts. Two of these grounds relate to the charges involving B.S., while the third relates to the charges involving B.B. I will address these grounds of appeal chronologically, starting with the two grounds relating to the charges involving B.S., and then moving to the ground of appeal relating to the charges involving B.B.

The two grounds of appeal relating to B.S.

B.S.’s allegations

[6] B.S. was 17 years old at the time of trial. She testified that she first met the appellant when she was around 6 years old and was living with her mother and siblings on what I will call C. Street. Her mother introduced the appellant as her friend but it eventually became clear to B.S. that the appellant was her mother’s boyfriend. Later, the family moved to a different community, where they lived in a townhouse on what I will call M. Street.

[7] B.S. did not recall if the appellant ever stayed overnight at the family home on C. Street, but testified that she remembered him staying over frequently after they moved to M. Street. B.S. was “pretty sure” that the family moved to M. Street after she finished grade one, and then lived there while she was in grade two.

[8] B.S. described the sleeping arrangements at the M. Street residence, explaining that her mother and the appellant had slept in a bedroom in the basement while B.S. and her siblings had bedrooms on the top floor. She also testified that when her mother was not home, the appellant would sometimes have her come down to the basement, get into bed with him, and let her use his cell phone to text her mother. B.S. recalled that while she used his phone, she heard the appellant breathing heavily from under the covers. However, the trial judge noted that there was “no suggestion in [B.S.’s] evidence that [the appellant] touched her sexually during the times she went to the basement at his behest.”

[9] The first set of charges relating to B.S., Counts 10 and 11, arose out of her allegation that on one occasion the appellant had once touched the outside of her genitals to remove sand after the family came back from the beach. In closing submissions, Crown counsel invited the trial judge to acquit the appellant on these counts. The trial judge took up this invitation, explaining that although he accepted B.S.’s evidence about what had happened, he was not satisfied beyond a reasonable doubt that the touching had been either of a sexual nature or motivated by a sexual purpose.

[10] The two charges on which the appellant was found guilty in relation to B.S., Counts 12 and 13, related to a single incident that B.S. said probably happened when she was in grade two, which on her evidence was when the family was living on M. Street. She testified that she awoke one morning to find the appellant under the blankets in her bed. She was lying on her back, her pajama pants and panties had been pulled down, and the appellant was licking her genitals. She pushed him away, and he said, “you don’t like it?”, then left the room. Later that same school year, the appellant’s relationship with B.S.’s mother ended and he stopped coming over.

[11] The appellant denied B.S.’s allegations. His evidence was that he broke up with B.S.’s mother before the family moved from C. Street to M. Street, and that he never stayed over at the M. Street townhouse. He described the circumstances of the breakup in detail, testifying that it happened in May 2013, a few weeks before he went to work in Alberta. The appellant’s sister T.P., who also lived on C. Street and was friends with B.S.’s mother, confirmed that to her knowledge the appellant’s relationship with B.S.’s mother ended while the family was still living on C. Street.

[12] In cross-examination, the appellant was asked whether he had ever called the police to obtain assistance collecting his belongings from the M. Street residence. When he said he had no memory of doing this, the Crown showed him an Ontario Provincial Police (“OPP”) occurrence report and asked if it refreshed his memory. The report described a request from the appellant asking the OPP in the community where the M. Street house was located to assist him retrieving his belongings from B.S.’s mother’s residence. He replied that the report did not refresh his memory, although he accepted that the occurrence report was genuine.

[13] The trial judge rejected the appellant’s denial that the licking incident had happened. He also rejected the appellant’s and T.P.’s evidence that the appellant’s relationship with B.S.’s mother ended before the family moved from C. Street to M. Street. The trial judge found that “[e]ither [T.P.] was mistaken or she was simply unaware that it continued.”

[14] Conversely, the trial judge accepted B.S.’s evidence about the licking incident, stating:

[B.S.] was consistent in her description of what happened and who did it. She was unmoved from that description and who sexually abused her in cross-examination. I am satisfied beyond a reasonable doubt that the sexual touching she described – the licking of her vagina by the [appellant] - occurred. I find her evidence to be credible and reliable and I accept it.

I accept her evidence that the relationship between the [appellant] and her mother continued after their move to [M. Street]. However, whether the licking incident happened on [C. Street] or on [M. Street] is a peripheral detail which, given [B.S.’s] age at the time of the incident, is a fact about which she may be simply mistaken.

The appellant’s grounds of appeal

The trial judge’s treatment of B.S.’s lie to the police

[15] When B.S. was first interviewed by the police in 2021, she told them that she had not disclosed the allegations about the appellant to anyone. At trial, B.S. testified that she had disclosed to a friend what happened to her when she was in grade seven or eight. In her evidence-in-chief, she explained why she did not tell the police about this earlier disclosure:

I still didn't say anything because I was kind of afraid that I would get in trouble or someone would get mad at me, so I just didn't say anything. I only told my friend that that had happened to me, but obviously I told her not to tell anybody, 'cause I didn't plan on telling anybody ever.

[16] B.S. was then cross-examined about having told the police that she had not previously disclosed her allegations to anyone. She explained that she had been “scared”, adding:

I knew I told my friend, I just was keeping that to myself because I wasn't sure what was going on and I wasn't sure if I was going to get in trouble for telling someone. I don't know what to say. I told one person.

[17] The trial judge accepted B.S.’s explanation, stating:

I am mindful that [B.S.] lied to police when she said that she told no one else about the incident. I accept her explanation. She did not want her friend to get into trouble. That makes sense to me given her age at the time she spoke to police, the circumstances under which she was at the police station, and her loyalty to her friend.

[18] The appellant’s first ground of appeal with respect to the charges relating to B.S. takes issue with the trial judge’s treatment of B.S.’s acknowledged lie to the police, on two different bases.

[19] First, the appellant argues that the trial judge should have also considered the possibility that B.S. had been truthful with the police, and had lied at trial when she testified about her prior disclosure to her friend. I would not give effect to this argument. The appellant’s trial counsel did not suggest this alternative possibility to B.S., nor did he make any mention of B.S.’s lie during his closing submissions. The trial judge cannot be faulted for not expressly addressing in his reasons a possibility that was neither raised nor argued.

[20] Second, the appellant argues that the trial judge misapprehended the evidence when he incorrectly stated that B.S. had explained her lie to the police on the basis that she did not want to get her friend in trouble. Her actual evidence was that she had been afraid of getting in trouble herself.

[21] I agree that the trial judge incorrectly recalled B.S.’s testimony on this point. However, I am not persuaded that this error was “material rather than peripheral to the reasoning of the trial judge”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; see also R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221. The trial judge’s reasons as a whole make clear that he simply did not think that B.S.’s lie to the police had any significant impact on her credibility. Indeed, as I noted above, the appellant’s trial counsel also made no mention of the lie either during B.S.’s cross-examination or during his closing submissions. In these circumstances, there is no realistic prospect that the trial judge would have viewed things differently had he not misremembered B.S.’s evidence on this peripheral point.

[22] I would accordingly not give effect to this ground of appeal.

The trial judge’s misuse of the OPP occurrence report

[23] The appellant’s second ground of appeal in relation to the counts involving B.S. focuses on the trial judge’s rejection of what he characterizes as his “alibi” evidence. The trial judge rejected the evidence of the appellant and his sister T.P. that the appellant’s relationship with B.S.’s mother ended before the family moved to M. Street. He also rejected the appellant’s evidence that he never stayed over at the M. Street townhouse.

[24] The appellant takes particular issue with the trial judge’s references to the OPP report, which the Crown showed to the appellant during cross-examination in a failed attempt to refresh his memory. The OPP report was not admitted into evidence for the truth of its contents, nor was its accuracy established.

[25] In his reasons, the trial judge stated:

In cross-examination, the [appellant] was confronted with an OPP occurrence report from May 2013 related to an incident between he and [B.S.’s mother] regarding retrieval of his possessions from her home on [M. Street] in [name of community]. He admitted that incident occurred including date and place but could not recall it.

When summarizing T.P.’s evidence, the trial judge also noted that she “had no knowledge of the incident related to the May 2013 OPP occurrence report.”

[26] The appellant makes three main arguments. First, he argues that the trial judge erred by relying on the unproven OPP report to reject what the appellant characterizes as an alibi defence. Second, he argues that the trial judge made a related error by not subjecting the appellant’s sister’s testimony to the second branch of the W.(D.) analysis, and considering whether, even if he did not affirmatively accept her evidence about when B.S. and her family moved, her testimony nevertheless raised a reasonable doubt about the appellant’s guilt: R. v. W.(D.), [1991] 1 S.C.R. 742. Third, the appellant contends that the trial judge erred by finding that the residence where the alleged licking incident occurred was a “peripheral detail”.

[27] At the outset, I do not agree that the appellant’s defence to these charges can be properly characterized as an alibi. As Watt J.A. explained in R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 49:

[T]he Latin word “alibi” means “elsewhere”. When used in the context of criminal prosecution, an alibi is a claim that a person, usually a person charged with a crime, was elsewhere when the allegedly criminal conduct took place and thus it was impossible for him or her to have committed it. [Italics in original; citations omitted.]

Here, the appellant was not claiming that it would have been impossible for him to have ever gone into the complainant’s bedroom and licked her genitals. Indeed, he did not dispute that he had been a regular overnight visitor at the family’s home before he and B.S.’s mother broke up in May 2013. Rather, his defence was that he could not have committed this offence at the M. Street home, because B.S. and her family only moved there after the breakup and he never visited the family or slept over at that particular residence.

[28] However, while the Crown’s position at trial was that the licking incident had occurred at the M. Street home, this was not something the Crown was obliged to prove. Counts 12 and 13 particularized the charged offences as having been committed in the community where the M. Street home was located “and elsewhere in the Province of Ontario”. Since B.S. testified that she specifically recalled the appellant frequently staying overnight at the M. Street home, the appellant and his sister’s contrary evidence on this point had the potential to cast doubt on B.S.’s testimonial credibility and reliability. Nevertheless, even if their evidence had not been entirely rejected, this would not have made it impossible for the Crown to prove the essential elements of the charged offences, as they had been particularized.

[29] Turning to the appellant’s specific arguments, I agree that the OPP report was never admitted for the truth of its contents. Crown counsel showed it to the appellant in an unsuccessful attempt to refresh his memory. It was then filed as a lettered exhibit, but the Crown never sought to have the report admitted for the truth of its contents under an exception to the hearsay rule.

[30] I also agree that the trial judge appears to have misapprehended the evidence when he stated both that the occurrence report concerned “retrieval of [the appellant’s] possessions from [B.S.’s mother’s] home on [M. Street]”, and that the appellant had “admitted” that the incident described in the report had occurred, “including date and place”.

[31] The occurrence report described the appellant going to an OPP detachment in the community where the M. Street residence was located on May 31, 2013. The appellant had requested a police escort to pick up his personal property, which B.S.’s mother had left out for him on the back patio of her residence. However, the report did not specifically state that this residence was located on M. Street. Moreover, while the appellant did not dispute the authenticity of the report, his evidence was that it did not refresh his memory. In these circumstances, the appellant was not in a position to “admit” that the incident described in the report had, in fact, occurred.

[32] That said, it is not clear from the trial judge’s reasons that he attached any significance to his mistaken conclusion that the appellant had “admitted” going to the M. Street residence on May 31, 2013 to pick up his belongings. Even if the occurrence report had been substantively admissible, it would not have contradicted the appellant’s evidence that B.S.’s mother and her family only moved to M. Street after their breakup earlier in May 2013, and that he never “spen[t] time” at the M. Street residence. Likewise, the trial judge’s reasons do not indicate that he relied on the OPP report as a basis for rejecting T.P.’s evidence about the timing of the family’s move to M. Street. His comment that T.P. “had no knowledge of the incident related to the May 2013 OPP occurrence report” accurately summarized her evidence on this point in cross-examination but did not go any further.

[33] Rather, the trial judge’s reasons as a whole reveal that he rejected the appellant and T.P.’s evidence about the timing of the family’s move to M. Street because he accepted B.S.’s “evidence that the relationship between the [appellant] and her mother continued after their move to [M. Street].” That was a conclusion he was entitled to draw as the trier of fact, based on his assessment of all of the witnesses’ credibility and reliability.

[34] In any event, the trial judge went on to state that he considered the question of “whether the licking incident happened on [C. Street] or on [M. Street]” to be a peripheral detail about which B.S., who was a young child at the time, “may be simply mistaken.”

[35] In my view, this was also a conclusion the trial judge was entitled to draw on the evidence. B.S. had not described the licking incident in a way that suggested that it could only have taken place at the M. Street residence. Rather, her evidence was simply that the incident occurred in her bedroom, and that she had her own bedroom at both residences. While B.S. did not challenge the suggestion put to her by both Crown and defence counsel that the licking incident had occurred at M. Street, her evidence about this seems to have been tied to her memory of the incident occurring when she was in grade two and was attending school in the community where M. Street is located.

[36] As McLachlin J. (as she then was) explained in R. v. (W.) R., [1992] 2 S.C.R. 122, at p. 134:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, 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.

It was reasonably open to the trial judge to treat the question of whether the licking incident took place in B.S.’s bedroom at C. Street or M. Street as a peripheral matter. The same is true for the related question of whether B.S. might be mistaken about the licking incident having occurred when she was in grade two.

[37] It follows that I also do not agree with the appellant’s submission that it was an error for the trial judge not to apply the second step of W.(D.) to T.P.’s evidence. The W.(D.) formulation helpfully explains the practical operation of the fundamental principle that the Crown must prove the accused’s guilt beyond a reasonable doubt. However, it is “not a sacrosanct formula that serves as a straitjacket for trial courts”, nor is it one that trial judges are “required to slavishly follow and delineate in their reasons”: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29; R. v. Karnes, 2013 ONCA 605, at para. 10. In this case, having found the question of when B.S. and her family moved to M. Street to be a “peripheral detail”, the trial judge was not required to further explain why T.P.’s evidence about the timing of the move did not leave him with a reasonable doubt about the appellant’s guilt on Counts 12 and 13.

[38] For these reasons, I would not give effect to this ground of appeal.

The Ground of Appeal relating to B.B.

B.B.’s allegations

[39] The charges relating to the second complainant, B.B., were prosecuted on the basis that they captured a series of alleged incidents that could be treated as an ongoing single transaction: see e.g. R. v. Hulan, [1969] 2 O.R. 283 (C.A.).

[40] B.B. was 16 years old at the time of trial. She testified that after her parents separated, her mother continued to live in their original residence on what I will call D. Street for a short period. Her mother then moved to a different community and resided on what I will call B. Street. B.B.’s father moved back into the D. Street residence when her mother moved out. B.B. alternated between the D. Street and the B. Street residences and continued to attend school in the community where D. Street was located.

[41] B.B. testified that she first met the appellant when she was in grade one and her mother was still living on D. Street. When her mother moved to B. Street, the appellant moved in with them. About a year and a half later, her mother moved back to D. Street and lived in a different residence, a townhouse.

[42] B.B. originally testified that during the time that her mother lived on B. Street, the appellant would regularly sexually assault her in the bunk bed she shared with her sister. She maintained that he would get into bed with her and touch her breasts, and sometimes insert his fingers or his penis into her vagina. She testified that during one of these incidents, the appellant had her perform oral sex on him and ejaculated into her mouth. B.B. agreed in cross-examination that she had not disclosed the oral sex incident to the police.

[43] B.B. also described two other incidents that she said both occurred on the same day. She testified that the appellant drove her to his mother’s house, sexually assaulted her in his truck during the drive, and then sexually assaulted her again in his bedroom at his mother’s house.

[44] During her evidence-in-chief, and initially in cross-examination, B.B. maintained that no sexual touching occurred at the D. Street townhouse. However, later in cross-examination she changed her evidence, and said that the sexual touching had continued after her mother moved to the D. Street townhouse.

[45] The appellant denied sexually assaulting B.B. at either residence, or in his truck. He also denied having ever driven B.B. to his mother’s house, and maintained that at the relevant time he had owned a Jeep rather than a truck. However, he agreed that he had access to a flatbed truck owned by his employer. The appellant’s mother likewise testified that she only recalled B.B. coming to her residence when accompanied by her mother and siblings.

[46] The trial judge accepted B.B.’s evidence, finding her testimony “clear, consistent, and direct”, and noting “[i]t seemed to me that she testified truthfully about events that were 7-9 years ago and that happened when she was 7-9 years old.” He rejected the appellant’s testimony, and concluded:

When I consider the whole of the evidence pertaining to these two charges, including that of the [appellant] and his mother, I am satisfied that [B.B.’s] evidence is credible and reliable. I am satisfied beyond a reasonable doubt that she was sexually abused by the [appellant] in the manner she described in his truck, at his mother’s home on his bed, and in her bedroom during the time he was in a romantic relationship with [B.B.’s mother].

I do not believe the [appellant] that no sexual activity took place with [B.B.]. I do not believe him that he was never alone with [B.B.] in his truck, in his bedroom in [his mother’s house], or that he never came into her bedroom at night in her home when he was sleeping over to engage in sexual activity. I find that the [appellant’s] evidence does not raise a reasonable doubt.

The ground of appeal

[47] The appellant argues that the trial judge erred by taking an unduly forgiving approach to B.B.’s evidence in two areas: (1) her changing evidence about whether the appellant had sexually assaulted her at the D. Street townhouse, and (2) B.B. having only remembered the oral sex incident where the appellant ejaculated in her mouth at trial.

[48] The appellant agrees that the trial judge correctly instructed himself about the proper approach to assessing the testimony of child witnesses, by quoting the passage from (W.) R. that I have previously excerpted: (W.) R., at p. 134. However, the appellant contends that the discrepancies in B.B.’s evidence with respect to the locations of the sexual assaults and regarding the oral sex incident could not properly be treated as “peripheral matters”.

[49] It is well-settled that a “trial judge’s determination of the significance of inconsistencies and related problems in the testimony of any witness, like any other matter going to credibility, must be given considerable deference on appeal”: R. v. Marshall, 2013 ONCA 113, at para. 11; see also R. v. Saleh, 2022 ONCA 735, at para. 22.

[50] In this case, the trial judge addressed and explained why he was satisfied that these issues did not cause him to have any substantial concerns about B.B.’s credibility or reliability.

[51] With respect to the evolution of B.B.’s evidence about whether the sexual assaults continued after the move to the D. Street townhouse, the trial judge explained:

I note that [B.B.] was clear that the sexual activity started when she was roughly seven and ended when she was nine. Her mother lived [at the B. Street residence] for 12-18 months. She was uncertain when the relationship between her mother and [the appellant] ended but thought it was before the move from [the B. Street residence] to the townhouse [on D. Street]. It makes sense that she would associate the end of sexual activity with the [B. Street] home given that she believed the relationship between her mother and the [appellant] ended before the move from [B. Street]. She was consistent that the sexual incidents in the home occurred in the bedroom that she shared with her sister. I do not view her evidence that the sexual activity occurred in both [the B. Street and D. Street] homes to be a material inconsistency in these circumstances.

[52] The trial judge also gave specific reasons for not treating B.B.’s failure to mention the oral sex incident in her police statement as significant, explaining:

With respect to her failure to disclose an incident of oral intercourse to police, she was candid when she indicated that she could not recall why she did not. This is not a case where [B.B.] organized her thoughts or made notes as reminders before she saw police. It was just another school day when she was suddenly and without warning taken by her father to see police. It came out of left field. I do not, in these circumstances, attach the significance to her omission to police that defence counsel urges to me to do. She forgot. It was one incident among many. That she did not recall it in the moment when speaking with police does not strike as misleading.

[53] In my view, the weight to attach to these issues were matters for the trial judge to determine, in his role as the trier of fact. His reasons for deciding that they were not significant do not disclose any palpable and overriding error that would justify appellate intervention. I would accordingly not give effect to this ground of appeal.

Disposition

[54] For these reasons, I would dismiss the appeal.

Released: November 29, 2024 “S.E.P” “J. Dawe J.A.” “I agree. S.E. Pepall J.A.” “I agree. J. Copeland J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.