R. v. Sanichar, 2012 ONCA 117

CITATION: R. v. Sanichar, 2012 ONCA 117

DATE: 20120222

DOCKET: C50224

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Harry Persaud Sanichar

Appellant

Mark Halfyard, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: November 2, 2011

On appeal from convictions entered by Justice F.C.J. Newbould of the Superior Court of Justice, sitting without a jury, on June 26, 2008.

R.A. Blair J.A.:

BACKGROUND

[1] Mr. Sanichar seeks to set aside convictions imposed by Justice F.C.J. Newbould of the Superior Court of Justice on June 26, 2008 relating to a variety of charges involving physical and sexual abuse of the complainant. The abuse is alleged in the indictment to have occurred from 1980 through 1984 when the complainant was approximately 8 to 12 or 13 years old. The appellant was also convicted of additional counts of sexual assault and assault on the complainant during a visit by her to the appellant’s home in 1989.

[2] On behalf of the appellant, Mr. Halfyard argues that the trial judge failed to analyze the complainant’s credibility and reliability properly. I agree that the trial judge failed to conduct a proper reliability analysis in relation to the complainant’s testimony, particularly in light of the historical nature of the allegations in this case and the absence of evidence in certain important areas.

[3] For the reasons that follow, I would allow the appeal and order a new trial.

FACTS

[4] The complainant alleged that she had been physically and sexually abused by the appellant from the time he came into her family until her mother’s death in 1984. The appellant is the complainant’s step-father and uncle. The appellant’s brother is the complainant’s biological father and was married to the complainant’s mother. The complainant’s biological father died when the complainant was about 3 years old and a few years later the appellant married the complainant’s mother.

[5] The charges in the indictment centred primarily on events that occurred between 1980 and 1984 when the complainant, who was born on September 9, 1971, was roughly between the ages of 8 and 12 or 13, although there were also allegations concerning a later period of time when she returned to stay with the appellant in 1989. In the result, the appellant was convicted of rape, indecent assault, buggery, gross indecency, sexual assault (x2), assault with a weapon and assault. Some of the convictions were stayed on the basis of the principles set out in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[6] The complainant was 36 years old when she testified. She was the only witness called by the Crown and the entire case rested on her credibility and reliability.

[7] With two exceptions, the acts of abuse covered by the indictment occurred at various places in three different residences where the family lived between 1980 and 1984: the Collinsgrove Road townhouse (1980-81); the Orton Park apartment (1982); and the Swansea Mews townhouse (Spring 1982 - May 1984). There is no need to outline the allegations in great detail. They were for the most part general in nature.

[8] Suffice to say that the complainant described the appellant as a serial sexual and physical abuser who assaulted her on a regular basis over a lengthy period of time when she was a child. On her evidence, the abuse happened during a period that pre-dated the indictment as well. The alleged sexual assaults generally included fondling and digital penetration, oral sex, vaginal intercourse, a few incidents of anal sex and some exposure to child pornography. They occurred often and whenever the appellant “felt like it” – at least weekly, according to the complainant. The alleged physical abuse included the appellant’s hitting the complainant with his hands and feet, and with belts, knives and other household objects such as a brass statue, a plastic sculpture, a meat cleaver and a spatula. The complainant also described many incidents of physical abuse allegedly perpetrated against her mother and her brother. These incidents of abuse were said to be regular and constant as well.

[9] The evidence also disclosed allegations of sexual abuse by the appellant prior to the period covered by the indictment. Two incidents were described in some detail, and took on some significance as the trial evolved. The first was portrayed – in what the defence urged was suspiciously striking detail for someone who would have been around 5 years of age at the time – as follows:

... I remembered the house and wearing a pink blouse and I was about five years old and he bought a croquet set for my brother and he told us that he had gifts for us both, and he sent my brother in the backyard to go play with the croquet set and I asked him what my present was and he said a massage and he got baby oil and started rubbing my body with it and I remember ... he got on me and he pushed his penis into me and it hurt and I screamed and it hurt a lot and I bled and that was the first time I remember him doing that with me. And when I was crying, he told me that “someday we’ll get it in the hole”.

[10] The second pre-indictment incident is said to have incurred in 1979 or 1980, just before the complainant’s birthday in September. She testified that her mother caught the appellant fondling her breasts and genitals in her bedroom. The appellant said he was just trying to show her how to make her bed. The complainant testified that the appellant was charged as a result of this incident and that he left the home for a time but then returned. There was little change in his behaviour after his return. The record contains very little information about this “charge”.

[11] Two other episodes that the complainant said took place outside of the home were also canvassed. The trial judge ultimately rejected her testimony with respect to these episodes, but they remain significant to his analysis of the evidence.

[12] The appellant apparently owned a restaurant called “Manny’s” (his nickname) and he also worked for a car dealership known as Jim Davidson Motors. The complainant testified that the appellant sexually assaulted her repeatedly in the back room of the restaurant at times when she would be doing her homework there, by fondling her over her clothing, digitally penetrating her and forcing her to perform fellatio on him and to masturbate him. She testified as well that, although she did not recall intercourse at the restaurant, the appellant did have intercourse with her in the office at Jim Davidson Motors after business hours in a black chair.

[13] In a statement made to the RCMP in 2005, however, the complainant told the police three times that no oral sex had occurred in the back room of the restaurant. At trial, she had no explanation for that inconsistency other than to suggest that “you remember different things on different days” and to fall back on a post-statement visit she made to a certain trailer that apparently triggered memories of the abuse she suffered both in the back room of the restaurant and at Jim Davidson Motors because of the similarity in decors. The trial judge excluded this evidence, not because he found it to be fabricated, but because he concluded it would be unsafe to act on her revived memory of what had happened in the back room of the restaurant and at the car dealership.

[14] In 1984 – when the complainant was 12 or 13 years old – her mother died, apparently of health issues related to alcohol abuse. It is common ground that the complainant blames the appellant for her mother’s death. The defence alleged that the complainant hated him and that her hatred culminated in a vitriolic letter written to the appellant during the Christmas period in 2003 and sent in early January 2004 – and distributed to others in his family – in the lead up to the charges. The appellant says the letter provides compelling evidence of a motive to fabricate and that the trial judge did not properly assess the letter from that perspective. I will return to this issue, and the letter, shortly.

[15] Following her mother’s death, the complainant and her brother continued to live with the appellant for a short while and, according to the complainant, the abuse stopped and the appellant became “kind of nice.” At some point in about 1984 the Children’s Aid Society became involved. The complainant told the CAS worker that there had not been any sexual abuse since an earlier allegation in 1980. The trial judge accepted her explanation for this discrepancy: she had truthfully reported abuse to the CAS on an earlier occasion, but it had only left her exposed to further abuse when the appellant returned after a short absence following those earlier charges.

[16] In any event, the children were removed from the appellant’s care shortly after the mother’s death and the complainant and her brother stayed with various relatives for the next four years, until the complainant was about 16. The complainant testified that during this period she reported the abuse to the police, on one occasion, and to a school counsellor, on another. The report to the police arose in circumstances where she said she had been molested by a stranger in a nearby park. When she was being interviewed by the police about that incident, she said, she divulged the prior abuse by the appellant.

[17] At the time of this police interview, the complainant was living with an aunt – the appellant’s sister. She testified that the aunt became agitated when she began to relate the allegations of abuse by the appellant to the police. The aunt was in the kitchen, out of sight of the police officer, but within the complainant’s line of sight, and was waving a kitchen utensil and shaking her head to signal that the complainant should stop talking.

[18] The complainant also said that she reported the appellant’s abuse to her high school counsellor: “I don’t know if it was a number of sessions”, she testified, “or a passing reference to, I, I really don’t recall how much or how in depth we talked about it.”

[19] Neither the police nor the school authorities had any records of the complainant having made any such statements, and there was no evidence that either the police or the school authorities had reported these allegations to the CAS.

[20] The final allegations of physical and sexual abuse related to a five or six month period when the complainant moved back in with the appellant sometime in early 1989, when she was 17. She moved back, she said, because the appellant told her that her younger sister, Jeannette (the daughter of the appellant and the complainant’s mother) was anorexic and lonely and that she missed her older sister and needed her as a role model. The relationship, normal at first, soon turned violent again. The appellant began questioning the complainant about her male friends, asking if she was sleeping with them, and calling her abusive names. There was one further incident of inappropriate sexual touching at a restaurant, and a few days thereafter a physical altercation that resulted in her moving out again and going to live with the appellant’s mother for about two years.

[21] The complainant testified that in September 1989 she spoke to the police at her school about the appellant attacking her. She does not recall whether she told the police about the prior abuse at that time. Nothing further came of this because her grandmother did not want her to press charges and told her that if she did, she could no longer live there. She needed a place to live.

[22] In 1994 the complainant moved to Vancouver where she has continued to reside, except for a few months in 1996 when she returned to Toronto after Jeannette had a baby. She had little, if any, contact with the appellant during this period until a telephone call in January, 2003. At that time, the appellant called Jeannette’s home when the complainant was visiting. The complainant testified that during this call the appellant told her she was “godless and evil”, that he mockingly apologized for what he had done and at one point laughed and “said he wasn’t sorry for the abuse.” During that same visit, she says, her nephew (by then, about six years old) asked her if his grandpa had hurt her and started to cry. At about the same time, the complainant says the appellant was harassing one of her friends in Vancouver over her friendship with the complainant. These three incidents – the mocking telephone call, the question and reaction of her nephew, and the treatment of her friend – provided the incentive for the Christmas letter referred to earlier. The complainant said that she believed the appellant “wasn’t stopping. He’s scaring people. He’s still trying to get to me, even though I live across the country”. When she visited Jeannette at Christmas 2003, she “decided as a Christmas present to myself I would send the letter.” Her intention, she said, was “to scare [the appellant] away.”

[23] In the appellant’s submission, the letter epitomizes the hatred the complainant bears towards him and that hatred provides the true motivation for what he argues are the false charges against him. While the letter does refer to some allegations of physical and sexual abuse, it is more or less venomous in other respects as well. In it, for example, she stated:

• You preached years of “Bhakti,”[^1] stockpiled scripture, offered empty rote prayer, in your arrogance thinking these desperate attempts will spare you eternal damnation, reincarnation as some disgusting cockroach or what have you.
• As self-professed Guru you shirk all parental onus and instead impede [Jeanette’s] small, traumatized family by mooching support, companionship and medical care.
• You are no priest, Manny. You were never even a proper son, brother, husband, uncle, father or man. You are a power hungry, sadistic, spoiled brat of a man-child.
• You exaggerate illness to use now as always: to excuse your violence when we were young; to get fraudulent support/tax benefits when your daughter lived in my custody; and to use your daughter’s family as slaves still (emphasis in original).
• I can only imagine what else you’ve done to [Jeanette] as a child. What few things I do know – verbal abuse and smashing of ribs hospitalizing her for example – leave her permanently scarred. So it is that she came into my care, anorexic, attempting suicide, self-mutilating her body with nails and blades while just a teenager. You gave me not so much as a scrap of food or clothing to help as I spent my youth raising her through her worst times.
• You killed my mother through slow, agonizing torture…
• You brought disgrace on my beautiful father’s name…
• If you ever again come after me and mine, even look in my direction, you will experience the abuse you visited upon us all yourself in your prison cell. Every day until you die and I laugh, dance & spit upon your grave.

[24] A year later the complainant wrote to Toronto police stating that she had been abused by the appellant and expressing her concern that the appellant had at that time unsupervised access to her nephew. The police investigated. The complainant gave the 2005 statement to the RCMP referred to above. The charges were laid against the appellant later that year.

ANALYSIS

Overview

[25] At the outset of his reasons, the trial judge reviewed all of the pertinent principles of law – reasonable doubt, the burden of proof, and the way in which the evidence of adults testifying as to events that occurred during their childhood should be assessed. He referred to the need to consider both credibility and reliability in assessing the complainant’s evidence.

[26] The trial judge then engaged in a thorough and careful examination of the complainant’s testimony. He said on a number of occasions that he found it to be “sincere,” “honest,” or “truthful,” and explained why. He recognized and addressed the inconsistencies between her testimony and what she told the CAS in 1984 and the RCMP in 2005, and accepted her explanations for these inconsistencies. Where he did not accept the complainant’s evidence – with respect to the alleged incidents in the back room of Manny’s restaurant and at Jim Davidson Motors, because he found it unsafe to rely on the complainant’s “revived memory”, he excluded that evidence.

[27] In addition, the trial judge addressed his mind to the various arguments put forward by the defence: the complainant’s delay in reporting; the contradictions between her testimony and what she told the CAS in 1984 and the RCMP in 2005; motive to fabricate; the duty of police and school authorities to report her alleged disclosure to them in the mid-1980’s and later in 1989; the Christmas 2003 letter; and the argument that the complainant would not have gone back to live with the appellant in 1989 if he had previously abused her.

[28] If the foregoing were all there were to consider on the appeal, there would be no basis for interfering with the trial judge’s decision. But there is more. The problem does not lie so much in his overview of the law or in his review of the evidence. His reasons are very careful and thorough in those respects. The problem lies in his application of the relevant principles of law.

[29] As noted at the outset of these reasons, the trial judge did not engage in a proper reliability analysis respecting the complainant’s evidence. In particular, he erred in the manner in which he dealt with the lack of evidence respecting whether or not the police and school officials had an obligation to – and did or did not – report to child welfare authorities the allegations of abuse the complainant said she made to them, if in fact she did make them. This, in effect, shifted the onus to the appellant to establish that the school officials and police did have an obligation to report, rather than considering whether the lack of evidence of any follow-up by the police or school officials, itself, could give rise to a reasonable doubt about the reliability of the complainant’s evidence that she did report allegations of abuse to the police and school officials (and, therefore, on the reliability of her evidence as a whole).

Reliability

[30] Although the trial judge alluded at the outset of his reasons to the importance of being satisfied about the reliability, as well as the credibility, of the complainant’s testimony, ultimately he did not undertake a proper reliability assessment. The focus of his reasons was on credibility in the sense of sincerity and believability.

[31] There can be no doubt – as Ms. Bartlett-Hughes reminds us – that findings of credibility and reliability are peculiarly within the domain of the trial judge and only rarely overturned on appeal. As this Court noted in R. v. R.W.B. (2003), 2003 CanLII 48260 (ON CA), 174 O.A.C. 198, at para. 9:

The role of a trial judge as a listener and observer of the evidence cannot be overstated. The trial judge is in the best position to make findings with respect to the credibility and reliability of the witness and therefore appellate courts must be deferential to the assessment of credibility made at trial.

[32] See also R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 10-12.

[33] The deference that follows from this notion is premised on the proper application of the relevant legal principles, however.

[34] Even if the complainant appeared to be “sincere,” “truthful,” and “honest” – as the trial judge noted several times throughout his reasons – and even if the complainant believed what she was saying, it does not follow necessarily that what she was saying was reliable. Credibility alone, in this sense, is not enough. This is particularly important where the accused is facing charges based entirely on allegations of historical physical and sexual abuse, and where also -- as here – there were serious reliability issues.

[35] Memory is fallible. Courts have long recognized that even an apparently convincing, confident and credible witness may not be accurate or reliable and that it is risky to place too much emphasis on demeanour alone where there are contradictions and inconsistencies in the evidence: see R. v. McGrath, [2000] O.J. No. 5735 (S.C.), at paras. 10-14; R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, at pp. 515-18; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295, at pp. 311-15. As Finlayson J.A. noted in Stewart, at pp. 516-17:

It is evident from his reasons that the trial judge was impressed with the demeanour of the complainant in the witness box and the fact that she was not shaken in cross-examination. I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant’s allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness’s testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record: see R. v. Norman for a discussion on this subject. [Citations omitted, emphasis added.]

[36] Here, a regular theme in the trial judge’s acceptance of the complainant’s testimony was that she was “sincere,” she was “honest,” she was “doing her best to be truthful.” But he does not appear to have focussed on whether her testimony was reliable or accurate. David M. Paciocco and Lee Stuesser describe the distinction between “credibility” and “reliability” in this context as follows in their text, The Law of Evidence, rev. 5th ed. (Toronto: Irwin Law, 2010), at p. 29:

“Credibility” is often used to describe the honesty of a witness. “Reliability” is frequently used to describe the other factors that can influence the accuracy of testimony, such as the ability of the witness to make the relevant observation, to recall what was observed, and to communicate those observations accurately.

[37] The allegations in this case relate to events that occurred many years before the trial, when the complainant was a little girl and a teenager. She was 36 when she testified.

[38] In such cases – cases evolving out of allegations of distant events, including allegations involving historical acts of physical and sexual abuse – particular caution and scrutiny are called for in approaching the reliability of evidence. Rosenberg J.A. highlighted the need to be cautious about relying upon adult memories of childhood impressions in R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at p. 29. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred.

[39] Minden J. discussed these cautionary considerations in McGrath, at paras. 11-14:[^2]

Much of the author's focus is on the need for a particularly rigorous approach to issues of reliability given the frailties of memory of distant events: see: R. v. S.(W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.). The trier of fact's experience and knowledge about human nature and memory may serve to betray rather than guide in cases of this kind: see also R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.). Accordingly, careful scrutiny must be paid to the evidence: see R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.).

A number of factors should be kept in mind. A witness' difficulty in recollection due to the passage of time must not lead to an "undiscriminating acceptance" of his or her evidence. A trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistencies between present testimony and prior accounts. Such inconsistencies may disclose unreliability: see, for example, R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.). There must be a rigorous analysis of whatever independent, extrinsic evidence still exists.

A trier of fact must be aware that an apparently honest, confident or convincing witness may not necessarily be an accurate witness: see R. v. Norman, supra. Nor does an abundance of detail in the recounting of an event necessarily imply an accurate memory. As well, a trier must bear in mind the "subtle and not so subtle influences" that may have over time distorted memory.

The influences upon the life of a witness over the course of many years also make it difficult to fairly assess an apparent lack of motive to fabricate. In this context, the trier must be particularly vigilant to ensure that the burden of proof is not shifted to the accused. A trier of fact must be alive to the fact that passage of time provides more opportunities for collusion or contamination between multiple complainants. This must be kept in mind when assessing the probative value of similar act evidence.

[40] Following that review, Minden J. concluded, at para. 15:

Finally, in the overall assessment of the evidence, there is a special need to self-instruct on the frailties of evidence concerning events from the distant past. Trials concerning distant events may call for a direction to proceed cautiously before acting on unconfirmed evidence, even in a case in which the particular circumstances do not otherwise mandate a special warning. In the application of the reasonable doubt standard, a trier of fact must be especially mindful of the absence of evidence that might have been available had the matter been prosecuted at an earlier date.

[41] I agree. The idea that trial judges should consider the “need to self-instruct on the frailties of evidence concerning events from the distant past” is a sensible one for all of the reasons summarized in McGrath. Each case will depend upon its own circumstances, and I do not mean to suggest that some type of formal instruction need necessarily be given. Where, however – as here, and in this type of case generally – there are objective reasons to scrutinize carefully the reliability of a witness whose testimony is central to the proof of guilt, the trial judge’s reasons should demonstrate that he or she is alert to the frailties of, and the risks associated with, such evidence, and to the need to address it with that careful scrutiny.

[42] In underscoring these considerations, I am not seeking merely to duplicate the principles that apply to the assessment of the evidence of an adult witness testifying about events that occurred when the witness was a child. Those principles – as articulated by the Supreme Court of Canada in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 133-34 – were properly addressed by the trial judge. But they do not speak to the reliability concerns that arise due to a significant passage of time between experience and testimony in cases involving historic allegations. W. (R.) is focussed on the need to consider the evidence of the adult testifying as to childhood events “in the context of the age of the witness at the time of the events to which she is testifying”: see para. 26. The McGrath cautions deal with a broader worry: the inherent frailties attaching to evidence that attempts to reconstruct distant events through the prism of memory that may be coloured or distorted by the erosive impact of time and life experience.

[43] The concerns flagged in McGrath are important here. Had the trial judge conducted a proper reliability analysis with them in mind, he might have been more attentive to (i) the need in these circumstances to look for some confirmatory evidence where such evidence should have been available, particularly given the inconsistencies and contradictions in the complainant’s testimony; (ii) the concern that an abundance of detail in cases involving distant events may not necessarily imply an accurate memory;[^3] (iii) the absence of evidence to support the complainant’s testimony in key areas; and, (iv) the worry that the simple vicissitudes and influences of life over a long period can have an impact on such things as motive and reliability.

[44] All of these factors were in play in this case. There was little, if any, independent confirmation of the complainant’s evidence and there were significant examples of an absence of evidence that might reasonably have been expected to exist to support her testimony in important areas, if it was accurate – most particularly her testimony that she had reported the abuse to police and school authorities sometime between 1984 and 1987, and her testimony that her brother had been abused. In addition, as Mr. Halfyard submits, the trial judge did not question whether the complainant’s detailed memory of things that happened to her in the distant past might be a by-product of the influence of the complainant’s life experiences on her memory. Rather, the trial judge simply accepted – without this analysis – that her detailed recall was the sign of a “remarkable memory”, and used it instead to bolster his confidence in her testimony.

[45] The trial judge did consider some of the weaknesses in the complainant’s testimony. However, he resolved inconsistencies and overlooked a lack of corroborating evidence by accepting the sincerity or believability – as opposed to the reliability – of the complainant’s testimony. The trial judge considered the weaknesses in the complainant’s testimony by assessing them against the defence position and asking himself whether or not the defence had persuaded him. This led to a failure to apply the doctrine of reasonable doubt properly to evidence – or the absence of evidence – that could raise a reasonable doubt in favour the defence. I turn to that issue now.

The Failure to Apply Reasonable Doubt Principles Properly to the Evidence or Absence of Evidence

[46] Closely aligned with the trial judge’s failure to conduct a proper reliability analysis was his piecemeal approach to analysing the complainant’s evidence without standing back and asking himself whether – even though he accepted her explanations – the various factors that could favour the defence taken together could nonetheless give rise to a reasonable doubt and, more specifically, whether the absence of evidence in material areas could be the basis for a reasonable doubt: R v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. As the trial judge noted, the defence does not have to prove anything.

[47] As mentioned above, the trial judge did address the various points raised on behalf of the appellant by way of defence. This was a perfectly proper analytical approach, as far as it went. Having done so, however, it was incumbent on the trial judge to take the further step of asking himself whether – even though he accepted the complainant’s testimony in relation to the various areas of attack mounted by the defence – the inconsistencies and other problems raised by the appellant in relation to the evidence, taken together, could give rise to a reasonable doubt as to guilt.

[48] Consider, for example, the following:

• The complainant, on her own version of events, had lied to the CAS in 1984 (denying that there had been any physical or sexual abuse between 1980 and 1984); and,
• She was untruthful again when making her allegations to the RCMP in 2005 (denying that there had been any oral sex in the back room of the restaurant);
• Importantly, there was a total absence of evidence to support her allegations that she reported the abuse to the police and later to a school counsellor, and there was no evidence of any follow-up by the police or school officials;
• The trial judge’s error – which I will address in a moment – in concluding that he required evidence to establish whether the school and police authorities were obliged to disclose her allegations to child welfare authorities, and his consequent rejection of the defence position in this regard, made the failure to consider the absence of evidence point worse from a reasonable doubt perspective;
• The complainant’s evidence that she did not want to go to the police because when the police had been contacted on the first occasion in 1979-80, the abuse had only worsened thereafter, may have been inconsistent with the statement in a letter she wrote to the Toronto Police Service on February 23, 2005 that “there may be other reports due to numerous domestic violence calls”; and
• Although the trial judge concluded it would be unsafe to rely on the complainant’s testimony about the alleged sexual abuse in the back room of the restaurant and at Jim Davidson Motors because her recollection was tainted by “revived memory” syndrome, he failed to consider whether the same phenomenon might have coloured or distorted other aspects of her testimony as well.

[49] Had the trial judge related these various considerations to the doctrine of reasonable doubt, he might well have concluded that the Crown had not established the issue of guilt beyond a reasonable doubt. Respectfully, he failed to do so.

[50] Instead, what he did, in effect, was to assess the factual underpinning for each argument raised by the defence separately and decide that he was not persuaded on that particular point: he accepted the complainant’s explanation, or there was some other basis for explaining away the defence position. He then moved on to a consideration of the next defence argument and disposed of it in the same fashion, with the same result (except for the two instances of “revived memory”).

[51] The difficulty with this approach to the evidence is that it runs the risk of the trier applying the burden of proof on a piecemeal basis, rather than on the whole of the evidence, and in doing so, shifting the burden to the defence: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 358-62; R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, at p. 77. Here, the trial judge’s reasons do not demonstrate that he in fact took the next step and weighed the evidence or absence of evidence favouring the defence in the context of the evidence as a whole and did so against the test of whether it might raise a reasonable doubt, individually or cumulatively, in that context.

The Absence of Evidence

[52] The way in which the trial judge approached the absence of documentary evidence to support the complainant’s testimony that she had reported her abuse to the police and to the school officials in the mid-1980’s, illustrates this error. As noted above, the absence of evidence can be a particularly important factor in the reasonable doubt analysis in cases involving allegations of historical abuse.

[53] At trial, the appellant relied heavily – as a compelling factor giving rise to a reasonable doubt – on the absence of any evidence in the form of police or school records confirming that the complainant had reported the abuse to those authorities or indicating that they had taken any follow-up steps as a result. And if there were a reasonable doubt about whether her evidence that she had reported the abuse was reliable, that, in turn could cast a reasonable doubt on whether her allegations as a whole were reliable. Instead of considering the absence of such evidence in this light, however, the trial judge was at pains to explain why it did not necessarily follow from the absence of such evidence that the complainant did not report.

[54] The trial judge observed that the Crown is not required to call any particular witness to establish that records did or did not exist, thereby suggesting that it was for the defence to do so – a subtle shift in burden as well. He went on to say this regarding the complainant’s alleged report to the school authorities:

There is no evidence in this case whether school records existed at the time but have since been destroyed or whether in fact, there are no records, and it may be that there are records. We don’t have any evidence on this. The Crown says that without evidence that there is a lack of a record at the time or that there is a record that contradicts what [the complainant] said, it cannot be said that she did not make any disclosure to her counsellor. I accept that position. It makes sense. [Emphasis added.]

[55] One might expect that, if the Crown had access to occurrence or other reports to corroborate the complainant’s testimony that she reported the abuse, the Crown would have disclosed that evidence and led it to rebut the defence’s fabrication argument. Instead, the trial judge appears in the passage cited above to have come close to proceeding on the basis that there may have been records, or at least on the basis that the absence of evidence concerning such records was a neutral factor in terms of the complainant’s credibility. That aside, however, the issue is not whether, in fact, the complainant did report the abuse as she said, in spite of the absence of evidence supporting that testimony. The issue is whether the absence of evidence supporting that testimony formed the basis for a reasonable doubt that she reported the abuse as she said.

[56] The trial judge’s treatment of the defence position respecting the absence of police records to support the complainant’s evidence that she reported the abuse to them is also instructive. He applied the foregoing analysis regarding the report to the school authorities to the absence of police records as well and concluded this part of his reasoning with the following comments:

Whether the police followed up from what [the complainant] had told the police officer is not in evidence. It may be that the police officer looked up records and saw a reference to the 1980 charges against Mr. Sanichar and thought the matter was closed. If there was no follow-up, it may be because the complaint that brought the officer to the house was the groping by a stranger in the park. It may be that [the complainant] minimized what she was saying because of her aunt’s actions and dissuading her from talking about it. It may be that the police officer felt counselling for [the complainant] would be the appropriate action. All of this is speculation, of course, but I cannot conclude on the evidence that [the complainant] did not disclose something to the police officer about what her stepfather had done to her in the past.

I accept [the complainant’s] evidence of what happened with the police officer as truthful. It is something she clearly remembered and something she remembered with considerable detail. [Emphasis added.]

[57] Respectfully, this passage does not demonstrate that the trial judge approached this evidence – the absence of police records and follow-up or the absence of school records and follow-up – from the perspective of asking whether it gave rise to a reasonable doubt. Rather, it suggests that he had not been persuaded by the defence that no records existed to contradict the complainant’s testimony and, therefore, concluded that she had in fact reported the abuse. The next step in the analysis – perhaps more subtle – was to conclude that her testimony as to the allegations of abuse was confirmed. This was not a permissibile line of reasoning, in my view, because it failed to evaluate the inconsistencies and contradictions, and the absence of evidence in important areas, through the lens of the doctrine of reasonable doubt.

The Duty to Report

[58] Another aspect of the trial judge’s reasoning process heightens my concern over his approach to the assessment of the reliability of the complainant’s evidence. He rejected the defence position that the school authorities and the police would have had an obligation to report the complainant’s allegations to the CAS and that, if she had in fact reported, there would be some evidence of follow-up by the authorities. He did so on the basis that “there [was] no evidence before [him] that disclosing things to the authorities was a practice back in the mid-80’s or a requirement.” Instead of considering whether the absence of evidence of follow-up could give rise to a reasonable doubt, the trial judge concluded that “it is too speculative to support a conclusion that [the complainant] did not disclose something to the counsellor ... because there is no evidence before me of follow-up.”

[59] With respect, the trial judge erred in rejecting the defence position on disclosure obligations based on an absence of evidence of the practice in the mid-80s. This error was significant for his assessment of the reliability of the complainant’s evidence. At the relevant time, s. 68 of the Child and Family Services Act, S.O. 1984, c. 55 mandated that such officials report suspicions of child abuse to a Children’s Aid Society. The requirement to do so was not a matter of practice (which might require evidence), but a matter of law (which did not).

[60] Ms. Bartlett-Hughes points out that the reporting requirement did not apply to children aged 16 or older. However, the complainant’s disclosure to the school and the police was said to have taken place sometime in the 1984-1987 time frame. The complainant did not turn 16 until September, 1987. There is nothing in the record to suggest that the complainant made her alleged disclosure after that time.

[61] Given the reporting requirement, it seems unlikely – had the complainant reported the abuse as she said she did, in the time period in which she said she did – that there would be an absence of any record of the report or of any follow-up to that report on the part of both the police and the school authorities. This was a powerful consideration that needed to be addressed in the reasonable doubt analysis. Moreover, the trial judge’s approach to the requirement to report allegations of abuse could only have tainted his finding that the complainant had in fact reported her allegations to the authorities, as she said she had. Based on his reasons, that tainted finding, in turn, appears to have played a significant role in the trial judge’s finding that the complainant’s testimony was credible and reliable and, ultimately, that the appellant was guilty.

CONCLUSION

[62] The verdict in this case is not unreasonable in the sense that a properly instructed trier of fact could not have made findings of guilt on the record. It is nonetheless unsafe to uphold the conviction, in my view, for the reasons I have outlined above. This was a case arising out of alleged acts of historical physical and sexual abuse. The trial judge did not conduct a proper inquiry into the reliability of the complainant’s testimony, as opposed to merely assessing her sincerity or apparent truthfulness. This error was compounded by his failure to apply the principles of reasonable doubt to the aspects of the evidence in the Crown’s case that could be said to favour the defence, as illustrated by his flawed approach to the requirement that the police and school authorities report allegations of physical and sexual abuse – were they made – to the Children Aids Society.

[63] In all the circumstances, I am satisfied that the appeal should be allowed and a new trial directed, and I would so order.

“R.A. Blair J.A.”

“I agree E.A. Cronk J.A.”

Laskin J.A. (Dissenting):

[64] I have read the reasons of my colleague, Blair J.A. He would allow the appeal, set aside the convictions and order a new trial. He would do so for two reasons. First, he concludes that the trial judge did not properly assess the reliability of the complainant’s evidence. Second, he concludes that the trial judge failed to consider whether the absence of documentary evidence that might have corroborated the complainant’s evidence gave rise to a reasonable doubt.

[65] I respectfully disagree with both of these conclusions. Throughout his lengthy reasons, the trial judge considered not just the credibility, but the reliability of the complainant’s evidence. Indeed, at several points he did so expressly. He addressed various concerns about the complainant’s testimony that bore on the accuracy of her evidence. And, perhaps most important, he held that it would be unsafe to act on two of the alleged incidents of sexual abuse and disregarded the complainant’s evidence of those incidents. He did so not because he found her evidence lacking in credibility, but because he found that her evidence on those two incidents was not sufficiently reliable.

[66] The trial judge also considered the effect of the absence of police and school records, but remained convinced beyond a reasonable doubt of the appellant’s guilt on the basis of the complainant’s evidence. That was his call to make. I would dismiss the appeal.

(1) The Case

[67] My colleague has thoroughly reviewed the evidence. In brief, the appellant was charged with 12 counts of sexually and physically abusing his step-daughter. The counts covered the period 1980 to 1984 when the complainant was between nine and thirteen years old, although she gave evidence of sexual abuse beginning when she was five years old.

[68] The Crown’s case consisted entirely of the evidence of the complainant. She was 36 years old when she testified. The appellant did not testify. The trial judge convicted him on all counts.

(2) Credibility and Reliability

[69] I accept that reliability is not the same as credibility; that is well established. Credibility has to do with the honesty or veracity of a witness’ testimony. Reliability has to do with the accuracy of a witness’ testimony. Many cases of mistaken identification have shown that a credible witness may give unreliable evidence.

[70] The reliability of a witness’ testimony is often gauged by the witness’s ability to observe, recall and recount the events at issue: see R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. The passage of time may have an effect on the witness’ ability to do so accurately. For this reason, my colleague suggests that in cases, such as this one, of historical sexual abuse, “the idea that trial judges should consider the “need to self-instruct on the frailties of evidence concerning events from a distant past” is a sensible one”. Perhaps it is, but the trial judge cannot be criticized for not expressly self-instructing along these lines.

[71] This court’s decision in R. v. Betker (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421, shows that the self-instruction proposed by my colleague is not legally required. In that case an accused was convicted of sexual abuse following a trial before a judge and jury. On appeal, the appellant argued that because of the age of the charges (25 years old) and because the Crown’s case rested on the complainant’s evidence, the trial judge should have warned the jury to proceed with caution before acting on the evidence of the complainant. Moldaver J.A. rejected this argument:

Regardless, the law is clear that the decision to caution the jury along the lines suggested by the appellant is discretionary on the part of the trial judge. The mere fact of a significant passage of time between the alleged offences and the laying of the charges does not, in itself, mandate such a caution: at p. 428.

If no special warning is required in a jury trial, then a trial judge is not required to self-instruct in a judge alone trial.

[72] Further, although credibility and reliability are distinct concepts, they both involve factual determinations that, as my colleague notes, attract significant deference from a reviewing court: see R. v. R.W.B. (2003), 2003 CanLII 48260 (ON CA), 174 O.A.C. 198, at para. 9. An appellate court should not interfere with a trial judge’s assessment of the reliability of a complainant’s evidence simply because it would have arrived at a different result.

(3) The Trial Judge Considered and Assessed the Reliability of the Complainant’s Evidence

[73] The trial judge’s reasons must be assessed in the context of the live issues before him. The defence forcefully attacked the complainant’s credibility. In closing, defence counsel maintained that she was a liar and that she had fabricated her evidence because of her hatred of the appellant, whom she blamed for her mother’s death.

[74] The trial judge, however, rejected the defence’s claim of fabrication. He found the complainant to be an honest, sincere and truthful witness, and he gave reasons for why he found her credible. My colleague does not suggest he erred in his credibility finding. Nor do I.

[75] In addition to attacking the complainant’s credibility, the defence raised concerns about the reliability of her evidence. Thus, reliability was also a live issue at trial. However, in my opinion, it was an issue that the trial judge was very much aware of. His reasons show at least three ways in which he considered and properly assessed the reliability of the complainant’s evidence.

[76] First, at several places in his reasons the trial judge expressly adverted to the need to consider the reliability of the complainant’s evidence. For example:

• In the opening paragraph of his reasons, the trial judge said: “The real issue in this case is whether the events alleged to form the basis of the crimes charged ever took place or have been proven with sufficiently reliable evidence. [Emphasis added.]
• Several pages later, before embarking on a detailed review of the evidence, the trial judge said: “The defence raises both the credibility and reliability of [the complainant’s] evidence. I must therefore consider both of these in assessing her evidence.” [Emphasis added.]
• Later in his reasons, the trial judge noted that the complainant had been undergoing counselling but commented that “it does not mean, however, she is making up her evidence or that her evidence is not reliable”. [Emphasis added.]

[77] Second, the trial judge addressed specific aspects of the complainant’s evidence that raised reliability concerns. He began by instructing himself in accordance with R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, on how to assess the evidence of an adult testifying to events that occurred when she was a child. He then considered a number of matters that may have affected the reliability of the complainant’s testimony. For example:

• The complainant’s acknowledged hatred of her step-father.
• The “general and not specific” nature of the complainant’s evidence about when various incidents took place was.
• The inconsistency between what the complainant told the RCMP about what occurred in the back of the restaurant and what she said about that incident in her evidence in chief.
• The Children’s Aid Society’s interview of the complainant when she was 12 years old in which the complainant denied that she had been sexually abused.
• The complainant’s “evidence of her memory on some things put to her in cross-examination may not have been entirely consistent”.
• The complainant’s detailed memory of various incidents that occurred when she was young.

[78] Third, and as I said at the outset of my reasons, perhaps most important, the trial judge did not convict the appellant in respect of two particular incidents because the complainant’s evidence on each incident, though sincere and credible, was simply not reliable. The first incident concerned an allegation of oral sex in the back of the appellant’s restaurant, and the second incident concerned an allegation of sexual activity at Jim Davidson’s Motors.

[79] The trial judge set out the defence position:

It is also put by the defence that [the complainant] has a substantial contradiction in her evidence regarding the fellatio she says she was forced to perform in the back room of the restaurant. There is no doubt that [the complainant] said one thing to the RCMP in 2005. She said she could not remember any fellatio taking place there and another thing at the preliminary hearing and at the trial when she said that forced fellatio did occur at that place.

[80] The trial judge then explained why he thought it would be unsafe to accept the complainant’s evidence on these two incidents:

[The complainant’s] explanation, as I have referred to, is that the incident came back into her mind after being in the trailer, and I have already referred to that evidence.

I accept the sincerity of [the complainant’s] evidence on this point. She may well have had a mistaken recollection of this when she talked to the RCMP. However, in my view, it would be unsafe to act on her evidence of the oral sex that she described as having taken place in the back room of a restaurant, and I disregard that evidence. I do so not because I think her evidence is fabricated. To the contrary. I do not think it is fabricated, and I accept the explanation regarding the trailer incident as reviving her memory as evidence honestly given, but I believe it would be unsafe to act on that revived memory of oral sex in the back room of the restaurant, and I will disregard that evidence.

For the same reason, [the complainant’s] evidence of what occurred at Jim Davidson’s Motors must be disregarded because [the complainant] said it was being in the trailer that triggered her memory of that as well.

[81] The trial judge’s principal reason for finding that it would be unsafe to act on the complainant’s evidence concerning those two incidents is that her testimony may have been prompted by a “revived memory” from visiting the trailer. My colleague criticizes the trial judge for not considering whether a “revived memory” may have coloured or distorted other aspects of her evidence. I cannot agree with this criticism. As the above quoted passage illustrates, the complainant admitted that the visit to the trailer had triggered her memory. I see no evidence in the record even to suggest that her evidence about other incidents of sexual abuse was similarly triggered. Indeed, from 1980 onward the complainant consistently maintained that the appellant had sexually abused her.

[82] Throughout his reasons the trial judge appreciated that he had to assess the reliability as well as the credibility of the complainant’s evidence; he did so. His assessment is deserving of deference and I am not persuaded of any basis to interfere with it.

(4) The Trial Judge Considered Whether the Absence of Documentary Evidence Gave Rise to a Reasonable Doubt

[83] Blair J.A. finds that the trial judge erred by failing to consider whether the absence of police records and school records to support the complainant’s allegations gave rise to a reasonable doubt. He makes the related point that the trial judge also erred in rejecting the defence’s position that the police and school authorities had an obligation to report suspected abuse to the Children’s Aid Society. The trial judge said that he had no evidence that reporting to the Children’s Aid Society was a practice or even a requirement in the mid-1980’s; my colleague relies on s. 68 of the Child and Family Services Act, S.O. 1984, c. 55, which required authorities to report allegations of abuse unless the child was 16 years of age or older.

[84] I do not agree that the trial judge erred in his treatment of the absence of police and school records documenting the complainant’s allegations of sexual abuse. I begin with two contextual points. First, at the beginning of his reasons the trial judge discussed the meaning of a reasonable doubt and noted that it “arises logically from the evidence or the lack of evidence” (emphasis added). Second, the trial judge would have been well aware of the appellant’s position that the absence of records gave rise to reasonable doubt because this was a central theme of the defence’s closing submissions. Defence counsel argued that the lack of corroboration of the complainant’s story was “devastating”; and he especially focused on the lack of records to confirm her allegations.

[85] Against this background the trial judge specifically addressed “the lack of documentary records”. He dealt both with the absence of school records and the absence of police records documenting the complainant’s claim of sexual abuse. He found the complainant to be truthful and what a counsellor or a police officer may or may not have done with the disclosure to be in the realm of pure speculation.

[86] My colleague takes the position that the trial judge’s approach effectively placed a burden on the appellant to show that records existed. I do not agree. The trial judge stated: “I cannot conclude on the evidence that [the complainant] did not disclose something to the police officer about what her stepfather had done to her in the past.” In saying this, the trial judge was not looking for the defence to persuade him that no records existed. He was merely expressing his belief that the complainant’s testimony was unshaken by their absence. The absence of records did not prove that the complainant was truthful, but it also did not cast doubt on her evidence. For the trial judge it was a neutral factor.

[87] Although he did not use these exact words, he concluded that the absence of records did not give rise to a reasonable doubt – in other words, the absence of records did not undermine his belief in the complainant’s testimony, which he gave detailed reasons for accepting. Even without evidence to corroborate the complainant’s testimony, the trial judge was satisfied that on the record before him “that the Crown has proven beyond a reasonable doubt that the sexual and physical assaults described by [the complainant] in her evidence, in fact, took place.”

[88] In my view, he was reasonably entitled to reach that conclusion. The complainant was vague about what she disclosed to the school counsellor and when she disclosed it. In her words she did “recall how much or how in depth (they) talked about it”. And she could not be sure how old she was – she could have been anywhere between 14 and 17 when she talked to the school counsellor.

[89] Moreover, when she talked to the counsellor, she was not living with the appellant and was not being sexually assaulted by him. Even if the complainant was under 16 at the time and the statute required the school counsellor to report the abuse, the complainant’s circumstances may have led the counsellor to believe that a report was unnecessary. In the light of these considerations, the trial judge was entitled to accept the complainant’s evidence, absent evidence contradicting her.

[90] The trial judge was also entitled to conclude that the absence of police records did not undermine the complainant’s credibility. Again, when the complainant spoke to the police officer she was living with her aunt, not the appellant, and was not being abused by him. For any number of reasons, as the trial judge noted, the police officer may have thought it unnecessary to document the past abuse.

(5) Conclusion

[91] For these brief reasons, I am not persuaded that the trial judge erred in finding the appellant guilty of sexually and physically abusing his step-daughter. I would dismiss his appeal.

“John Laskin J.A.”

RELEASED: February 22, 2012

[^1]: The Sanskrit word for “to belong to” or “worship”. The Appellant is an ordained Hare Krishna Monk.

[^2]: Minden J. relied heavily on an article prepared by Marc Rosenberg (now Rosenberg J.A.) and delivered at the 1995 Canadian Appellate Court Seminar: “Issues Arising in Criminal Prosecution for Distant Events” (Quicklaw reference ADGN/RP-005).

[^3]: See Rosenberg, “Issues Arising In Criminal Prosecution for Distant Events”, at paras. 126-127.