W A R N I N G

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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

CITATION: R. v. C.R., 2010 ONCA 176

DATE: 20100309

DOCKET: C49291

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C. R.

Appellant

Louis P. Strezos, for the appellant

Karen Papadopoulos, for the respondent

Heard: November 9, 2009

On appeal from the convictions entered by Justice G. M. Miller of the Superior Court of Justice, sitting without a jury, on June 20, 2008 and the sentences imposed by Justice Miller on August 29, 2008.

Cronk J.A.:

[1] The appellant, C.R., was convicted of two counts of sexual assault against his former girlfriend, J.P. He was sentenced to two and one-half years imprisonment on each count, to be served concurrently. He appeals against both conviction and sentence.

[2] C.R.’s trial before a judge sitting without a jury was a straightforward ‘he said – she said’ case. C.R. and J.P. were the only witnesses. Credibility, therefore, was the central issue. It was the defence position that J.P. fabricated her sexual assault allegations to exact revenge against C.R. for his alleged ill-treatment of her during their relationship and because, over J.P.’s objections, C.R. became intimately involved with J.P.’s younger sister after his relationship with J.P. ended.

[3] In support of his conviction appeal, C.R. argues that the trial judge erred by misapprehending important aspects of J.P.’s evidence, by minimizing significant inconsistencies in her testimony and, generally, by subjecting C.R.’s and J.P.’s evidence to an imbalanced level of scrutiny. On his sentence appeal, C.R. seeks to set aside his custodial sentence, on various grounds, and to substitute therefor a conditional sentence of nine to twelve months in respect of each offence.

[4] For the reasons that follow, I would dismiss both the conviction and the sentence appeals.

I. Facts

(1) The Relationship

[5] C.R. and J.P. are both cycling enthusiasts. At the relevant times, they also shared interests in photography and music. They met in the spring of 2003 at a cycling shop where C.R. was a regular customer and J.P. was a part-time employee. C.R. was then a 37-year old divorced man. J.P. was a 16 or 17-year old high school student.

[6] For several months, C.R. and J.P. engaged in friendly and, eventually, mutually flirtatious discussions during their encounters at the cycling shop. In approximately August of 2003, J.P. volunteered to assist C.R. at a photo shoot. They began to date shortly thereafter and almost immediately became involved in a sexually intimate relationship.

[7] Their relationship lasted for about 18 months. It ended in April of 2005 when J.P. broke-up with C.R. following her 19th birthday. By that time, J.P. was interested in another man. Nonetheless, at C.R.’s request, J.P. agreed to remain friends with C.R. and to go cycling with him on a bi-weekly basis.

[8] While they were dating, C.R. and J.P. engaged frequently in consensual sexual activities at C.R.’s home. However, throughout her relationship with C.R., J.P. suffered from irritable bowel syndrome with ulcerative colitis, which caused her pain, discomfort and rectal bleeding. On the trial judge’s findings, J.P. told C.R. of her condition and made it clear to him that she could not participate in anal intercourse although C.R. was interested in doing so.

[9] C.R. and J.P. also socialized with mutual friends, dined at C.R.’s house, attended concerts and cycled together. J.P. met various members of C.R.’s family. Over time, she began to spend several nights a week at C.R.’s house.

[10] J.P. claimed, however, that C.R. insisted that the intimate nature of their relation-ship remain secret. She explained that after they had been seeing each other for about one month, and after they had already engaged in sexual intercourse, she told C.R. that she was 17 years old. She said that C.R. was upset to learn this and made some comment that her age “made him a pedophile”. After learning her real age, he insisted that their relationship be kept secret because he thought that it was illegal for him to have sex with J.P. before she was 18 years of age, and “he would go to jail” for having done so.

[11] In contrast, C.R. maintained that when he met J.P., he thought she was 19 or 20 years old. He said that she did not tell him of her actual age until the late winter or early spring of 2004, several months after their sexual relationship was underway. He was surprised and upset to learn of her age, as he was uncertain of the legality of their sexual relations. He did not recall saying anything to J.P. about this concern or about “being a pedophile”. Rather, he told her that he would have to think about whether their relationship could continue. After he conducted research on the Internet and concluded that the legal age of consent for sexual relations was 14 years, he informed J.P. that he wished to carry on with their relationship.

[12] C.R. denied that he tried to hide the intimate nature of his relationship with J.P. He claimed that J.P. told him that “it wouldn’t be good for [her father] to know that we were together” and that her father, a policeman, was known to have a temper. C.R. therefore agreed with J.P. that her parents should not find out that their relationship was sexual. C.R. maintained that this agreement was unrelated to his concern about the legality of his sexual relations with J.P. He acknowledged that he introduced J.P. to his own parents and others as “my friend”, explaining that he avoided calling J.P. his “girlfriend” as he disliked the terms “girlfriend, boyfriend”.

(2) J.P.’s Sexual Assault Allegations

[13] J.P. alleged that C.R. sexually assaulted her on two occasions. The first incident took place in December of 2003. According to J.P., while she and C.R. were engaged in consensual vaginal intercourse, C.R. suddenly and without warning initiated anal intercourse. Notwithstanding her attempt to move away from him and her repeated protestations that she “couldn’t do it”, C.R. persisted and continued to thrust his penis into her anus (the “First Assault”). Although her testimony as to timing varied, J.P. ultimately testified at trial that C.R. stopped what he was doing within “a couple of seconds” of her request that he do so.

[14] J.P. further alleged that in August of 2005, about four months after she had broken up with him, C.R. again sexually assaulted her by engaging in forced vaginal intercourse with her at his house after the couple had finished a lengthy bike ride (the “Second Assault”).

[15] On J.P.’s account, this particular bike ride started and ended later than usual. When it became apparent that J.P. would not be able to bike home before dark, C.R. offered to drive her home. They went to C.R.’s nearby house to retrieve his car. However, on arrival, C.R. delayed the ride by having a shower and something to eat. J.P. also decided to shower in a separate bathroom near a spare bedroom.

[16] J.P. maintained that while she was in the bathroom, C.R. positioned himself outside the door and attempted to engage her in conversation. J.P. asked C.R. to leave so that she could exit the bathroom and obtain her clothes. C.R. refused and impeded her exit. J.P. eventually pushed past C.R. and went into the bedroom, wearing only a towel. C.R. followed her and pushed her onto the bed from behind, using his body weight. Despite resistance and objections from J.P., C.R. then lifted her towel and forced his penis into her vagina. The penetration was brief, lasting only a few seconds. It ended when J.P. became upset and started to cry. C.R. told J.P. that she really wanted to have sex with him. Shortly thereafter, J.P. telephoned her father to come and pick her up. When her father arrived, J.P. left with him, having little or no further discussion with C.R.

(3) C.R.’s Response

[17] C.R. denied any sexually assaultive conduct against J.P. and asserted that she had fabricated her sexual assault allegations.

[18] With respect to the First Assault, C.R. testified that he was inexperienced with anal intercourse. He said that he and J.P. discussed “trying anal intercourse”, that J.P. wished to try it as “it was something new for both of us” and, notwithstanding her medical condition, J.P. felt that she could try to participate in anal intercourse with the use of lubricants.

[19] C.R. claimed that he and J.P. engaged in anal intercourse only once, on a consensual basis and using lubricants, after they had been dating for almost one year. He said that the activity lasted about five minutes and ended prior to ejaculation. According to C.R., the couple later discussed having anal intercourse again and, as “it wasn’t anything fabulous”, they “just never did it again”.

[20] C.R. also denied the Second Assault. He acknowledged that he had gone for a bike ride with J.P. on the day in question and that they had returned to his house so that he could drive her home. He also confirmed that they took separate showers at his house and that he stood outside the bathroom door where J.P. was showering, attempting to engage her in conversation. However, he adamantly denied that any sexual activity – consensual or otherwise – took place. He said that when J.P. asked him to leave so that she could dress, he did so. He professed to not understand why J.P. was curt with him thereafter, or why she called her father for a ride home. On C.R.’s version of events, J.P. simply became annoyed and frustrated with his delay in driving her home.

[21] The day of the Second Assault marked the end of any type of relationship between C.R. and J.P. Apart from brief arrangements for J.P.’s return to C.R. of certain of his property and some angry calls from J.P. to C.R. when she learned of his interactions with her sister, C.R. and J.P. had no further contact.

(4) The Trial Judge’s Decision

[22] At trial, J.P. and C.R. provided differing descriptions of many aspects of their relationship, of the First and Second Assaults, and of the events following their last bike ride together. In these circumstances, the trial judge recognized that she was required to approach this case in accordance with the principles outlined in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. She properly directed herself as follows:

First, if I believe the evidence of the accused I must acquit. Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must be satisfied beyond a reasonable doubt on the basis of the evidence which I do accept, of the guilt of the accused.

[23] In her analysis of the evidence, the trial judge dealt first with C.R.’s testimony. She concluded, in effect, that his testimony was internally inconsistent, and that it “defie[d] common sense” and “[made] no sense” in several respects. Citing particular examples, the trial judge further observed that C.R. was “reluctant to concede even the smallest point” on cross-examination. Based on these considerations, she concluded as follows with respect to the first and second steps of the W.(D.) test:

Taking all of these factors into account, I do not believe [C.R.’s] evidence with respect to the incident of anal intercourse [the First Assault] and I do not believe his account of the events at his house following the last bike ride [the Second Assault]. I have further considered his evidence as it pertains to reasonable doubt and I conclude that his evidence does not leave me with a reasonable doubt with respect to either of those events.

[24] In accordance with the third step of W.(D.), the trial judge then turned to J.P.’s evidence to determine whether the Crown had proved its case beyond a reasonable doubt. She reviewed J.P.’s testimony about the First and Second Assaults, the defence attacks on her credibility, and what the trial judge called incidents of admitted “dishonest behaviour” by J.P. In the end, she found J.P.’s version of the First and Second Assaults credible and reliable, reasoning in part:

On the whole, I found J.P.’s accounts of the two events to be internally plausible. Her description of the events was such that it gave credit to [C.R.] for withdrawing soon after he appeared to recognize how much he was hurting her. She did not appear to exaggerate her evidence to portray [C.R.] in a bad light nor did she appear to minimize her own dishonest behaviour.

II. Issues

[25] There are two issues on the conviction appeal:

(1) Did the trial judge err in her assessment of J.P.’s credibility by misapprehending certain aspects of her evidence and by minimizing significant inconsistencies in her testimony?

(2) Did the trial judge err by subjecting C.R.’s evidence to a stricter standard of scrutiny than that applied to J.P.’s testimony?

[26] There are three issues on the sentence appeal:

(1) Did the trial judge err by characterizing the Second Assault as a breach of trust?

(2) Did the trial judge err by treating the First and Second Assaults as equally serious in nature, leading to the imposition of equivalent sentences of imprisonment?

(3) Did the trial judge err by imposing sentences that are excessive in the circumstances?

III. Analysis

A. Conviction Appeal

(1) Assessment of J.P.’s Credibility

[27] In this case, there is no suggestion that the trial judge failed to understand the multi-faceted defence challenge to J.P.’s credibility. Such a complaint would founder in the face of the trial judge’s relatively detailed reasons and numerous references to the specifics of C.R.’s attack on J.P.’s testimony.

[28] Instead, C.R. argues that the trial judge erred in her assessment of J.P.’s credibility by misapprehending, and discounting the inconsistencies in, J.P.’s testimony of: (i) whether she and C.R. participated in anal intercourse after the First Assault; (ii) her discussions with C.R. about anal intercourse; and (iii) her disclosure of the Second Assault to her mother. C.R. submits that these errors were central to the trial judge’s determination whether she believed J.P. under the third step of the W. (D.) analysis. I would reject this argument for the following reasons.

[29] At the outset, I observe that an appellant faces an up-hill battle to succeed on appeal with a misapprehension of evidence argument. A material misapprehension of the evidence by a trial judge compromises trial fairness, thereby justifying appellate inter-vention. However, a stringent standard applies to appellate reversal on this basis. In R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19, and in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1, the Supreme Court cited with approval the applicable test formulated by Doherty J.A. of this court in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at p. 541:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict. … If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [Emphasis added.]

See also R. v. H.C., 2009 ONCA 56, at para. 51 and R. v. T.T., 2009 ONCA 613, at para. 33.

[30] Thus, to warrant appellate interference, the misapprehension at issue “must be material rather than peripheral to the reasoning of the trial judge”. In addition, the error identified “must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”: Lohrer, at para. 2; C.L.Y., at para. 19. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error: T.T., at para. 33.

[31] Moreover, credibility is a question of fact. On factual matters, it is a reviewing court’s responsibility to afford due deference to the advantageous position of the trial judge who actually saw and heard the witnesses: R. v. Cresswell, 2009 ONCA 95, at para. 14; R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46.

[32] The analysis of the trial judge’s decision in this case must be guided by these two controlling principles. Against this backdrop, I will deal with each of the errors alleged by C.R.

(i) Evidence of Instances

of Anal Intercourse

[33] I see no error in the trial judge’s appreciation of J.P.’s trial testimony concerning whether she and C.R. attempted or engaged in anal intercourse after the First Assault. When this question was posed to her at C.R.’s preliminary inquiry, J.P. replied: “I don’t recall.” On cross-examination at trial, she acknowledged her preliminary inquiry testimony but said that she used the wrong word when she said “recall”. She stated that a second incident of anal intercourse with C.R. is something that she would remember and that it did not occur.

[34] C.R. submits that this was a significant inconsistency in J.P.’s testimony on an essential issue. He argues that, apart from simply reciting J.P.’s relevant evidence, the trial judge failed to come to grips with the inconsistency or to provide a reasoned explanation for its lack of import. He characterizes this as a “misapprehension” of the evidence by the trial judge.

[35] I disagree. It was open to the trial judge to accept J.P.’s explanation that she misspoke at the preliminary inquiry when she said that she did not “recall” whether another incident of anal intercourse occurred. The trial judge’s reasons are open to the conclusion that by identifying the inconsistency between J.P.’s preliminary inquiry testimony and her evidence at trial on this issue, and by recounting J.P.’s explanation for it, the trial judge was satisfied with J.P.’s explanation. Once J.P.’s explanation for the inconsistency was accepted by the trial judge, it lost its power to raise a reasonable doubt regarding C.R.’s guilt: see R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827, at p. 839.

[36] I note that C.R. and J.P. both testified that only one incident of anal intercourse occurred. They simply disputed the nature of that sexual encounter and the events surrounding it. The essential issue at trial was not whether the couple experimented with anal intercourse on more than one occasion (a proposition that even C.R. did not advance). Rather, the core issue was whether events of forced intercourse occurred in the manner and at the times alleged by J.P.

(ii) Evidence of Discussion

Regarding the First Assault

[37] I would also reject C.R.’s challenge to the trial judge’s treatment of J.P.’s evidence on the issue whether C.R. and J.P. discussed the First Assault after it occurred.

[38] C.R. stresses that during her examination-in-chief at trial, J.P. said that no such discussion took place. He maintains that this assertion was inconsistent with J.P.’s depiction of him as someone who was preoccupied, indeed “fixated”, on anal intercourse. It also conflicted, he says, with J.P.’s preliminary inquiry evidence that the couple had “definitely talked about anal sex quite a bit”, on “multiple” occasions and, finally, with a notation contained in a police officer’s notes, which apparently attributed to J.P. the following statement: “He made it out to be an accident.” C.R. argues that the trial judge erred by misapprehending, and minimizing the inconsistency in, this “fluctuating” evidence.

[39] This argument rests on the premise that J.P.’s evidence about an after-the-fact discussion with C.R. regarding the First Assault was in fact inconsistent and that the trial judge failed to appreciate or reconcile this inconsistency. In my view, this contention ignores the distinction in J.P.’s evidence between general discussions about anal sex and an incident-specific conversation with C.R. concerning the First Assault.

[40] It is true that, at trial, J.P. testified during her examination-in-chief that she did not discuss the First Assault with C.R. on the night that it occurred or thereafter. Later in her evidence, she said that she had no recall of such a discussion. However, she also indicated that she and C.R. had many discussions about anal intercourse. During cross-examination, J.P. provided the following evidence:

Q. You don’t recall ever after [the First Assault], ever talking to [C.R.] about it?

A. There are lots of things that I tried to forget, actually, because it is a very painful subject matter for me.

Q. Okay, and that’s not my question. My question is is it your evidence that you don’t recall ever speaking to [C.R.] about this incident after it happened?

A. He tried to convince me to have anal intercourse again so we did talk about anal intercourse I guess again.

Q. Sorry, are you saying you talked about having anal intercourse after this incident?

A. He wanted to. He, it was something that he was very fixated on.

Q. If that is true I assume if he wanted to try it again that there would have been discussion about the fact that according to you it did not go very well the first time?

A. It did not go well the first time, no.

Q. But if what you are saying is true that after this incident there was talk about trying to have anal intercourse again I am going to suggest it would be natural for the two of you to talk about the first time and how it didn’t go well for you, does that make sense?

A. I remember it, I, when I talk about, when I try to remember, I remember being in pain for a good week after that incident and trying not to let him know that I was in so much pain because it was embarrassing to me. I don’t recall any exact conversations or comments that were made.

Q. After this incident did you or did you not speak to [C.R.] about making another attempt to have anal inter-course?

A. I don’t recall.

[Emphasis added.]

[41] Thus, J.P. acknowledged having discussions with C.R. regarding anal intercourse, after the First Assault. Her testimony remained consistent, however, that she did not remember discussing the First Assault itself with him.

[42] J.P.’s evidence at the preliminary inquiry was to the same effect. Although C.R. relies on several passages from J.P.’s preliminary inquiry testimony in which she said that she and C.R. discussed anal sex “quite a bit” and “multiple times”, this evidence again concerned general discussions with C.R. about anal sex. C.R. failed to point to any excerpt from J.P.’s preliminary inquiry testimony in which she stated that she and C.R. discussed the First Assault after-the-fact.

[43] I reach a similar conclusion concerning the suggested inconsistency between J.P.’s trial testimony on this issue and the statement attributed to her to the effect that, “He made it out to be an accident.” This statement is recorded in notes prepared by a police officer – Sergeant Verrier – at a meeting held with J.P. in preparation for the preliminary inquiry. The notes were in point – rather than verbatim – form. At trial, the defence relied on this statement to argue that it was inconsistent with J.P.’s claim that she did not discuss the First Assault with C.R. after-the-fact.

[44] Sergeant Verrier’s meeting notes were not shown to J.P. prior to trial. Moreover, J.P. did not adopt the contents of the meeting notes at any time, although she also did not dispute their accuracy.

[45] When Sergeant Verrier’s meeting notes were put to her on cross-examination at trial, J.P. indicated, on three separate occasions, that she did not remember making the statement at issue. She then reiterated her earlier testimony that “I really don’t remember talking about it [the First Assault] afterwards.”

[46] The following exchange with defence counsel then occurred:

Q. Okay, but apart from what you remember or don’t remember saying to Sergeant Verrier, going back to this incident you are saying took place, was there anything said or done by [C.R.] wherein he made it out to be an accident?

A. I do not remember that happening.

Q. So in your evidence you can’t help us at all understand the comment – if you made it – “He made it out to be an accident”?

A. I may have been referring to what he said after, like maybe a day or two days after, but I don’t remember talking about it afterwards since it has been so long. [Emphasis added.]

[47] In answering these questions, J.P. did not resile from her earlier testimony that she did not remember making the statement in question. In the exchange quoted above, the last question put to J.P. assumed that she had made the statement. In her response to this question, J.P. reiterated that she did not remember any after-the-fact discussion with C.R. concerning the First Assault.

[48] In addition, and contrary to C.R.’s submission, the trial judge was mindful of the defence claim that J.P.’s evidence, generally, and her testimony regarding the First Assault, in particular, were replete with inconsistencies. When reviewing J.P.’s evidence, the trial judge cited many of these alleged evidential deficiencies in a section of her reasons entitled “Inconsistencies”. While she did not explicitly refer to each of the inconsistencies asserted by the defence, she was not obliged to do so.

[49] In my opinion, there is nothing in the trial judge’s reasons indicating that she erred in her appreciation of J.P.’s evidence regarding the First Assault, including her evidence about an after-the-fact discussion with C.R. about this incident, in a manner that could have affected the outcome. For example, the trial judge tackled ‘head-on’ the defence claim that J.P.’s testimony was at odds with the contents of Sergeant Verrier’s meeting notes, stating:

[81] It was put to J.P. that in the notes in respect to the incident involving anal intercourse, Sgt. Verrier noted that J.P. had said “I wasn’t yelling out no, stop.” J.P. responded “I’m a quiet person. I did not yell”. This is not inconsistent with J.P.’s testimony on the incident, wherein she said that she had told [C.R.] that she could not do it.

[82] It was put to J.P. that in the notes, following a description of the anal intercourse incident, it was noted by Sgt. Verrier “nothing said by either of us”. J.P. responded that she had not seen the notes. She maintained that the incident had occurred as she had described it at trial, with her telling [C.R.] “I can’t do this” and he replying with something like “Oh, come on”. A plain reading of the note as it was put to the witness in cross-examination leaves open the possibility that the note referred to the fact that J.P. and [C.R.] did not discuss the anal intercourse incident afterwards. This is consistent with J.P.’s evidence that she was too embarrassed to speak to him about it.

[83] It was put to J.P. that Sgt. Verrier noted “he made it out to be an accident, it was a sneaky, selfish thing to do.” J.P. testified that she did not recall saying those things but that she “trusted” Sgt. Verrier’s notes. She agreed that there was nothing said or done by [C.R.] after the incident which would support the statement that he made it out to be an accident. [C.R.] argues that J.P.’s attempt to resile from the statement is evidence of a calculated attempt to deprive [C.R.] of a potential defence.

[84] While it is troubling that J.P. did not recall saying those things to Sgt. Verrier, J.P.’s testimony about the anal intercourse incident did not at any time appear to be exaggerated or coloured in order to paint [C.R.] in a bad light. Although it is difficult to precisely characterize it when she testified that she had no memory of saying it, her comment to Sgt. Verrier that “he made it out to be an accident” may well have been a description of the act itself.

[50] The trial judge thus clearly understood the alleged inconsistencies between J.P.’s trial testimony and the contents of Sergeant Verrier’s meeting notes and explained her assessment of them.

[51] C.R. attacks, especially, the trial judge’s indication that the statement “He made it out to be an accident”, “may well have been a description of the act itself”. In my view, this was not an unreasonable observation. The statement apparently attributed to J.P. in Sergeant Verrier’s meeting notes is ambiguous. It is capable of being understood as J.P.’s own after-the-fact view of C.R.’s conduct in relation to the First Assault, as distinct from a description by J.P. of C.R.’s response in a specific discussion about the First Assault. I note that Sergeant Verrier’s meeting notes do not appear to tie the suggested conduct by C.R. to a specific time period. As a result, it is unclear whether the statement reflected J.P.’s own interpretation of C.R.’s conduct at the time of the First Assault, whether it referenced actual conduct by C.R. when the First Assault occurred or, whether it dealt with an attempt by C.R. to explain away the First Assault in a subsequent discussion with J.P.

[52] In the end, the exact meaning of the statement recorded in Sergeant Verrier’s meeting notes is of little moment. What is important is that the statement, which was never adopted by J.P., is reasonably capable of several interpretations – only one of which could be viewed as contradicting the suggestion that J.P. and C.R. had no post-event discussion about the First Assault. The trial judge grasped the significance of the alleged inconsistency. Moreover, as she observed, a second notation in Sergeant Verrier’s meeting notes read: “nothing said by either of us”. This appeared to corroborate J.P.’s claim that she and C.R. did not discuss the First Assault after-the-fact.

(iii) Evidence of Disclosure

to J.P.’s Mother

[53] Finally, C.R. also contends that the trial judge erred by failing to consider alleged inconsistencies in J.P.’s evidence of whether she disclosed the Second Assault to her mother. Again, I disagree.

[54] During her examinations-in-chief at C.R.’s preliminary inquiry and at trial, J.P. testified that she first disclosed C.R.’s assaultive conduct, in general terms, to her father sometime prior to April 2006. She also testified that she thereafter disclosed the details of C.R.’s conduct in a videotaped statement that she provided to Sergeant Verrier. Under cross-examination at the preliminary inquiry, J.P. also said that she told her mother during an “awkward car ride conversation” that C.R. had “raped” her. However, J.P. did not refer to this disclosure to her mother in her videotaped police statement. Further, the claim of this disclosure only emerged at trial, as it did during the preliminary inquiry, on cross-examination.

[55] C.R. argues that J.P.’s failure to remember, during her examination-in-chief at trial, that she had testified at the preliminary inquiry about such disclosure to her mother was a significant factor to be taken into account when assessing her credibility. He complains that the trial judge misapprehended, and failed to consider the inconsistency in, J.P.’s evidence on this issue, thereby leading to a flawed assessment of J.P.’s credibility. He further complains that the trial judge misapprehended and failed to consider two other material aspects of J.P.’s testimony about the disclosure to her mother, namely: (i) J.P.’s evidence about the timing of that disclosure; and (ii) her claim at trial that she did not recall the nature of her mother’s response to the disclosure. In my opinion, each of these complaints is belied by the record.

[56] Contrary to C.R.’s submission that the trial judge failed to consider the defence attack on J.P.’s evidence about the disclosure to her mother, the trial judge’s reasons reveal that she was alive to the defence position that J.P. fabricated this disclosure claim in order to bolster her credibility. The trial judge put it this way:

[91] [C.R.] argues that J.P.’s account of telling her mother that [C.R.] had raped her makes no sense and was a deliberate fabrication at the preliminary hearing in response to the suggestion that she had told no one of being sexually assaulted before Sgt. Verrier. [C.R.] argues that J.P.’s defence of this account is patently absurd and should cause the court great concern as to J.P.’s veracity.

[57] In her reasons, the trial judge specifically noted that, in her initial statement to Sergeant Verrier, J.P. did not mention this disclosure. The trial judge also noted that J.P.’s account of this disclosure emerged only on cross-examination at the preliminary inquiry and at trial. She commented: “In examination-in-chief at trial, J.P. described the conversation with her mother in response to being asked about when she had learned of her sister’s relationship with [C.R.]. She did not mention telling her mother that [C.R.] had raped her.”

[58] Thus, the reasons indicate that the trial judge understood the timing of J.P.’s evidence of her disclosure to her mother, including the sequence in which J.P. testified as to that disclosure, both at the preliminary inquiry and at trial. Moreover, in an exchange with Crown counsel during closing submissions, the trial judge focused in part on this precise issue by requesting Crown counsel for her submissions on the fact that in “a detailed description of [her] conversation [with her mother] to Sergeant Verrier”, J.P. failed to mention that she had disclosed the “rape” to her mother.

[59] The reasons also reveal that the trial judge was alive to J.P.’s evidence that she could not recall her mother’s response to this disclosure. After noting this evidence, the trial judge went on to observe: “J.P. testified that her mother just dropped the subject. J.P. explained that her mother is uncomfortable talking about anything like that and further J.P. was not at that point ready to talk about it.”

[60] Accordingly, in my view, there can be no doubt that the trial judge appreciated the nature and implications of the inconsistencies alleged by the defence concerning J.P.’s account of her disclosure to her mother.

[61] It is also inaccurate to contend, as C.R. does, that the trial judge failed “to come to grips” with this issue in her evaluation of J.P.’s credibility. As she did with many other aspects of the defence attack on J.P.’s credibility, the trial judge expressly addressed the matter, including the defence assertion that Crown counsel specifically asked J.P. about this disclosure at trial. The trial judge said:

[92] I note that J.P.’s description of the conversation to Sgt. Verrier was directed at explaining how she found out that her sister was involved with [C.R.]. Similarly in examination-in-chief at trial, J.P. described the conversation with her mother in response to being asked about when she had learned of her sister’s relationship with [C.R.]. I do not find it sinister that J.P. did not mention telling her mother she had been raped until defence counsel specifically asked her at the preliminary hearing “did you disclose to anyone else that [C.R.] had, according to you, sexually assaulted you?” [Emphasis added.]

[62] The trial judge concluded that neither in her interview with Sergeant Verrier, nor in her examinations-in-chief at the preliminary inquiry and at trial, was J.P. specifically asked whether she had disclosed the Second Assault to her mother. The trial judge accepted, as Crown counsel at trial urged her to do, that when confronted with a direct question, J.P. testified that she did make this disclosure.

[63] This interpretation of J.P.’s testimony is consistent with the record. It was therefore open to the trial judge to conclude, as she did, that there was nothing “sinister”, that is, untoward or suspect, in J.P.’s failure to mention, at an earlier point in her testimony, an event about which she had not been directly asked.

(iv) Conclusion

[64] In summary, I do not accept C.R.’s argument that the trial judge erred by misapprehending key aspects of J.P.’s evidence or by minimizing significant inconsistencies in her testimony. The trial judge reviewed J.P.’s evidence in detail. She did not overlook but, rather, went to considerable lengths to identify and address the frailties in her evidence, including the defence claims of inconsistencies and contra-dictions in her testimony. She also considered J.P.’s demeanour and candour when testifying, an advantage that is unavailable to this court. In effect, C.R. asks this court to re-try this case. That is not the function of an appellate court. I would not give effect to this ground of appeal.

(2) Uneven Scrutiny of the Evidence

[65] C.R.’s second ground of appeal is related to his first ground. He argues that the trial judge treated his evidence “differently, and less favourably, than [J.P.’s] evidence on similar points”. He submits that the trial judge was overly critical of his evidence, while failing to appreciate or take proper account of significant difficulties with J.P.’s testimony.

[66] The Crown accepts that it is an error of law for a trial judge to apply a stricter standard of scrutiny to the evidence of an accused than that used to assess the evidence of Crown witnesses: see R. v. T.T., at paras. 28 and 31; R. v. Owen (2001), 2001 3367 (ON CA), 150 O.A.C. 378, at para. 3; and R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), at paras. 13-14. Further, both parties agree that an onerous standard must be met by an appellant when advancing this ground of appeal. In R. v. J.H., at para. 59, Doherty J.A. of this court described this standard in this fashion:

This is a difficult argument to make successfully. … To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [Emphasis added.]

[67] After earnest consideration and careful review of the record, I have concluded that this ground of appeal cannot succeed in this case. To begin, I am unable to accede to C.R.’s claim that the trial judge “paid short shrift to the [defence] arguments related to [J.P.’s] inconsistencies and reviewed the evidence fairly summarily”. Nor do I agree with his submission that the trial judge failed to rigorously examine numerous inconsistencies and “shifting answers” in J.P.’s testimony.

[68] The trial judge’s reasons are 37 pages in length. After reviewing some of the background to C.R. and J.P.’s relationship and the legal principles governing her assessment of their credibility, the trial judge turned to C.R.’s evidence. Her review of his testimony comprises 11 and one-half pages of her reasons. It focuses on the salient features of C.R.’s evidence about the nature of his relationship with J.P., the First and Second Assaults and the events that followed the cessation of any contact between C.R. and J.P.

[69] The trial judge devoted similar attention to J.P.’s testimony. Seventeen pages of her reasons concern her evaluation of J.P.’s evidence. In 12 pages, the trial judge details her consideration of several factors that bore directly on J.P.’s credibility, as advanced by the defence. These included: (i) the timing of J.P.’s disclosure of C.R.’s assaultive conduct to the police; (ii) J.P.’s alleged motive for fabricating her allegations; (iii) the evidence of dishonest conduct by J.P.; (iv) numerous inconsistencies in J.P.’s evidence that the defence alleged undermined her credibility; and (v) the lack of confirmatory evidence supporting J.P.’s version of events.

[70] Of course, I do not suggest that the length of the trial judge’s reasons assures the even-handedness of the judicial analysis that underlies them. But in this case, given the length and content of her reasons, it can scarcely be said that the trial judge’s review of the evidence was inadequate or that she failed to grasp and deal with the defence challenge to J.P.’s credibility.

[71] At its core, C.R.’s complaint is that the trial judge disbelieved him and rejected his testimony on many issues that C.R. views as minor or peripheral to the central issue in the case, namely, whether he sexually assaulted J.P. in the manner and at the times alleged. In contrast, C.R. argues, the trial judge too readily cast aside or discounted the difficulties in J.P.’s evidence. I do not accept this characterization of the trial judge’s reasons. I turn first to her consideration of C.R.’s evidence.

[72] I acknowledge that several of the inconsistencies in C.R.’s evidence cited by the trial judge appear to be minor in nature or related to peripheral matters. But the assessment of credibility is not issue-specific. It is a cumulative process. Only when all the strengths and weaknesses of a witness’ testimony have been evaluated can a final credibility determination be made, based on all the witness’ evidence.

[73] In this case, when the trial judge’s reasons are read in their entirety, I am satisfied that she considered C.R.’s evidence as a whole and concluded that many factors justified its rejection. In addition to citing several inconsequential defects in C.R.’s evidence, the trial judge also rejected significant parts of his testimony on the basis that they were improbable or internally inconsistent. Of the many illustrations relied on by Crown counsel before this court, two examples suffice to make this point.

[74] First, as I have said, C.R. denied that the First Assault ever occurred. Instead, on his account, he and J.P. engaged in anal intercourse only once – on a consensual basis and with the assistance of lubricants – at a time when C.R. knew that anal intercourse posed a risk of aggravating J.P.’s ulcerative colitis. The trial judge rejected C.R.’s claim of consensual anal intercourse, essentially on the basis that it was improbable. In particular, she pointed out that although C.R. maintained that he knew of the risk of injury to J.P. from anal intercourse, he testified that he never asked J.P. “at any point during or after the event if it caused her pain or any complications”. Moreover, in the trial judge’s view, C.R.’s assertion that J.P. “seemed to be enjoying” the alleged consensual anal intercourse did not conform to C.R.’s description of a joint decision by the couple not to try it again although their relationship continued thereafter for about 16 months.

[75] These were cogent reasons to reject C.R.’s version of the anal intercourse engaged in by him with J.P. His claim that J.P. “seemed to be enjoying” herself during consensual anal intercourse is inconsistent with J.P.’s admitted rectal medical condition and, as noted by the trial judge, with the fact that C.R. and J.P. never again engaged in anal intercourse over a lengthy and sexually active relationship. The rejection of C.R.’s account of this key interaction with J.P. significantly undercut C.R.’s overall credibility including, especially, his denial of the First Assault.

[76] Second, C.R. described his own behaviour and interactions with J.P. on the night of the Second Assault as essentially jocular and lighthearted, characterized by innocuous conversation. Yet, he also admitted that J.P. eventually called her father for a ride home although C.R. had promised to drive her; that J.P. became increasingly annoyed, irritated and frustrated with him as he delayed taking her home; that J.P. left the house and sat on the outside steps to wait for her father; that C.R. remained in the house; that when he said goodbye to J.P., she made no reply; that he never saw J.P. socially again and their bi-weekly bike trips came to an abrupt end; that he sought no explanation from J.P. as to why this occurred or as to why J.P. was upset; and that he made no effort to revive their friendship.

[77] I agree with Crown counsel’s submission that this evidence was especially telling. In particular, C.R. testified that, as J.P. left his house with her father, he said “I’ll see you”. On C.R.’s evidence, he expected their friendship, including their cycling arrange-ments, to continue. But, when he did not see J.P. thereafter, he did nothing to seek out an explanation from her as to why their friendship and their bike rides were over. This occurred although C.R. testified that he continued to care about J.P. and to be concerned about her future.

[78] Thus, as the Crown submits, C.R. provided no rational explanation for the sudden collapse of his relationship with J.P. Moreover, his version of events regarding the Second Assault – namely, that nothing untoward had occurred – stood in stark contrast to his own description of J.P.’s conduct during and after her shower that night.

[79] This evidence provided a solid foundation for the trial judge’s rejection of C.R.’s account of events surrounding the alleged Second Assault. What, then, of the trial judge’s treatment of J.P.’s testimony?

[80] Although C.R. argues that the trial judge overlooked or minimized many inconsistencies in J.P.’s testimony, he points to only one specific example of what he terms imbalanced treatment of the evidence by the trial judge. C.R. submits that when examining J.P.’s and C.R.’s explanations as to how the First and Second Assaults affected their relationship, the trial judge discounted J.P.’s alleged failure to account for how the First Assault was later dealt with in her relationship with C.R., while also disregarding the fact that the couple’s sexual relationship continued for almost a year and a half thereafter. In contrast, C.R. says, the trial judge underscored and rejected his evidence of what occurred after the Second Assault on the basis that it contradicted his prior testimony and did not “hold water”. I would not give effect to this argument.

[81] This was not a case where the trial judge was entirely uncritical of J.P. or blind to the weaknesses in her testimony advanced by the defence. On the contrary, as I have said, the trial judge was cognizant of the inconsistencies in J.P.’s evidence. She did not gloss over them but, rather, specifically addressed them, in detail. She also considered, and rejected, the defence theory that J.P. fabricated her allegations of sexual assault. She regarded J.P.’s accounts of the First and Second Assaults as internally plausible and not overstated. Moreover, in her view, J.P. did not attempt to minimize her own admitted dishonest behaviour. These factors provided ample support for the trial judge’s acceptance of J.P.’s testimony.

[82] In contrast, as I have outlined, the trial judge regarded C.R.’s evidence of the First and Second Assaults as internally inconsistent and implausible in several respects. She also found that he was not forthcoming or candid in his testimony. These conclusions are supported by the transcript of his evidence. The trial judge examined closely, as she did J.P.’s version of events, C.R.’s description of what occurred during and after the assaultive incidents. She gave clear reasons for disbelieving his evidence and for holding that it did not give rise to a reasonable doubt.

[83] In all these circumstances, I conclude that C.R. has failed to meet his obligation to clearly demonstrate that the trial judge applied different standards of scrutiny in assessing his evidence and that of J.P. The trial judge’s reasons show that, on the central issue at trial, she accepted J.P.’s evidence and explained why she did so. In so doing, she attached lesser weight to the weaknesses in J.P.’s evidence than the defence urged upon her. She was entitled to do so. Accordingly, I would reject this ground of appeal.

B. Sentence Appeal

[84] C.R. challenges the trial judge’s sentencing disposition on three grounds. First, in his factum, he argued that the trial judge erred by characterizing the Second Assault as a violation of trust, an aggravating factor on sentence. In oral argument, however, counsel for C.R. did not pursue this argument. In my view, he was right not to do so.

[85] The trial judge recognized that C.R. did not occupy a traditional position of trust in relation to J.P. However, this court held in R. v. McGregor (2008), 2008 ONCA 831, 94 O.R. (3d) 500, at paras. 30-31, that any sexually intimate relationship between adults of the type entered into by J.P. with C.R. is founded on a certain amount of trust and confidence, at least to the extent that each participant may reasonably expect that he or she will not knowingly be exposed by the other to serious and obvious perils. Responsibly, in my view, C.R.’s counsel did not argue to the contrary.

[86] In this case, as the trial judge noted, J.P. was with C.R. and accompanied him to his home on the day of the Second Assault only because of their prior sexual relationship and the trust that anchored it. In this context, forced sexual intercourse by C.R. with J.P. violated that element of trust that informed their earlier relationship and grounded their continuing friendship. This was a proper consideration on sentencing.

[87] C.R. next submits that the trial judge erred by concluding that the First and Second Assaults were equally serious, leading to the imposition of equivalent sentences. He argues, on various grounds, that the First Assault was less serious than the Second Assault and that the trial judge wrongly equated the First Assault with a “full rape”. In particular, he stresses that the First Assault lasted only seconds and that C.R. stopped what he was doing on J.P.’s request. In these circumstances, he submits, the trial judge erred by failing to impose a shorter, conditional sentence in respect of the First Assault. I disagree.

[88] I recognize that, unlike the Second Assault, the First Assault occurred in circumstances where C.R. and J.P. were initially involved in consensual sexual vaginal intercourse. This is an important contextual distinction between the two assaultive incidents. Nonetheless, on the trial judge’s findings, the First Assault involved anal penetration, over J.P.’s objections, in circumstances where C.R. knew that anal intercourse could cause J.P. pain and discomfort due to her medical condition.

[89] Further, the short duration of the First Assault does not render it less than a full sexual assault. As a matter of law, the brevity of the incident does not detract from its character as sexual intercourse: Criminal Code, R.S.C. 1985, c. C-46, s. 4(5).

[90] I also agree with the Crown’s submission that characterizing the First Assault, as C.R. does, as merely a difficulty encountered in “negotiating sexual boundaries in an intimate relationship”, or to argue that its brevity reflects a lack of intention to cause harm or discomfort, is misconceived. On C.R.’s own evidence, J.P. was not prepared to consent to anal intercourse unassisted by lubricants. Nonetheless, C.R. engaged in anal intercourse with J.P., without lubricants, notwithstanding her protestations.

[91] In the end, while the First Assault might be viewed as less serious than the Second Assault, it makes little practical difference since the trial judge imposed concurrent, rather than consecutive, sentences for the two offences.

[92] Finally, I do not accept that the sentences imposed were excessive and unfit. The trial judge recognized, correctly, that while neither assault involved gratuitous violence, both were inherently violent. She considered the defence request for a conditional sentence, the principles that governed the fashioning of an appropriate sentence for these two separate offences and for this offender, and the applicable aggravating and mitigating factors. I am unable to say that she erred in rejecting a conditional sentence in the present case or that the sentences imposed constitute a marked departure from those imposed for similar offenders convicted of similar crimes. While a different trial judge might have imposed lesser sentences for one or both of these offences, or a non-custodial sentence of imprisonment for the First Assault, that does not render the sentences imposed unfit.

IV. Disposition

[93] For the reasons given, I would dismiss the appeal against conviction. I would grant leave to appeal sentence and dismiss the sentence appeal.

RELEASED:

“MAR -9 2010” “E.A. Cronk J.A.” “DOC” “I agree Dennis O’Connor A.C.J.O.”

“I agree David Watt J.A.”