WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Burnie, 2013 ONCA 112

DATE: 20130222

DOCKET: C53111

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Burnie

Appellant

William V. Reid, for the appellant

Gillian E. Roberts, for the respondent

Heard: September 18, 2012

On appeal from the convictions entered on October 25, 2010 by Justice J. Christopher Corkery of the Superior Court of Justice, sitting without a jury.

Tulloch J.A.:

(1) OVERVIEW

[1] The appellant was charged with two counts of sexual assault, two counts of touching for a sexual purpose a person under the age of fourteen and one count of simple assault.

[2] The appellant was a substitute teacher and the two female complainants were grade six and seven students. The two incidents giving rise to the charges occurred in the same school on two different days one week apart. The evidence led at trial consisted mainly of that given by two complainants and two witnesses. Each witness was a female classmate of one of the complainants and gave evidence concerning each incident. At the unopposed request of the Crown, the trial judge admitted video statements given by the complainants and witnesses to the police. These statements were played in court and adopted by the complainants and witnesses in their examinations in-chief pursuant to s. 715.1 of the Criminal Code. The complainants and witnesses were cross-examined on their interaction with each other prior to the revelation of these incidents to a teacher, the school principal and ultimately the police. During the trial, the school principal and one teacher also testified briefly.

[3] The evidence was heard over three days and the trial was adjourned for submissions. Those submissions did not form part of the record before this court. At the commencement of the trial, the Crown applied for the admission of each incident as similar fact evidence in support of the other. The appellant opposed this application. While the trial judge did not rule on the admissibility of the similar fact application during the course of the trial, he did admit the similar fact evidence and indicated this during his reasons for judgment.

[4] At the end of the trial, the trial judge reserved his judgment and delivered his reasons orally. Included in these reasons was his ruling granting the similar fact evidence application, as well as convicting the appellant of the sexual assault and sexual touching counts for each complainant. The Crown did not pursue the simple assault charge. Accordingly, it was dismissed.

[5] The matter was adjourned for sentence and the trial judge ultimately sentenced the appellant to 90 days in jail, to be served intermittently and to be followed by a period of probation. The judge also ordered that he provide a sample of his DNA, register as a federal sex offender, and abstain from the possession of weapons..

[6] The appellant appeals his conviction and sentence on the basis that the trial judge’s reasons for conviction were not sufficient to permit meaningful appellate review.

[7] I find the trial judge’s reasons fall short with respect to his treatment of the evidence in this case, in particular, that the complainants and the witnesses had the opportunity to collude in his treatment of the conflicting evidence elicited by the defence. For the reasons that follow, I would allow the appeal, set aside the appellant’s convictions and order a new trial.

(2) FACTS

[8] In light of the disposition I would order, I review the facts only insofar as is necessary to understand the nature of the evidence and the issues for this court to decide. I stress that nothing I say, particularly with regard to any apparent inconsistencies in the evidence, should be taken as an assessment of the credibility or strength of the evidence. Those would be issues for the new trial judge to determine guided by the appropriate legal principles.

(a) May 13th, 2008 Incident:

(i) Evidence of E.M.

[9] On May 13th, 2008, the appellant was working as a substitute teacher in a grade 7 class. E.M. and A.S. were students in that class. E.M.’s evidence was that she was eating lunch with a group of students in the classroom when the appellant approached her group to ask some of the boys to settle down. E.M.’s friend A.S. called to her from across the room. She rose to go see her. She testified that while she was standing, however, the appellant “grabbed her butt” on the right cheek of her buttocks with his left hand for “like five seconds”. It ended when she walked away. She testified that nobody from the group she was sitting with appeared to have seen this. Afterward, she approached her friend A.S. and asked her to attend the washroom with her. While in the washroom, E.M. disclosed to A.S. what had just happened to her. E.M. agreed in cross-examination that A.S. made it clear to her that she had not seen what had happened. According to E.M., upon the girls’ return to the classroom, the appellant removed sunglasses from A.S.’s face and made a comment to her. Later that day, E.M. told another friend about the appellant grabbing her buttock. However, E.M. did not tell anyone else, including teachers, the principal or her parents about what had happened that day.

(ii) Evidence of A.S.

[10] A.S. indicated in her video statement to the police and testified under cross-examination that she saw what happened to E.M.. However, there were discrepancies between her story and E.M.’s. A.S.’s evidence was that the touching of E.M. occurred earlier in the day, that it was while E.M. was seated and that the appellant had his foot up near where E.M. was seated. In addition, A.S. testified that immediately after the touching, E.M. called out to her by name in a relatively quiet room and told her what had happened. Her evidence was that the two girls then went to the washroom where she told E.M. that she had seen the appellant touch her. A.S. also indicated that the incident involving the appellant removing her sunglasses and making a comment to her happened before the incident involving E.M.. A.S. claimed quite adamantly that she saw the appellant grab the buttock of E.M. and she demonstrated the touch in her video statement to the police. A.S. also indicated in her video statement to the police that they reported what happened to an educational assistant later the same day.

(b) May 20th, 2008 Incident

[11] A week later, on May 20th, 2008, the appellant was working as a substitute teacher in a grade 6 class in the same school. A student in that class alleged that the appellant touched her sexually as well.

(i) Evidence of B.N.

[12] B.N. and A.B. were students in the grade six class taught by the appellant on May 20, 2008. B.N. indicated that prior to the end of the class she approached the appellant in the classroom near the front blackboard and tapped him on the shoulder. He turned and put his arm on her shoulder to ask what she wanted, and he slid his hand down her back. She told him that she needed to leave a few minutes early to help out in another class and she indicated that “his hand slipped down to my bum…and he wouldn’t let go…until a couple of guys needed him at the back…and he took his hand off and went to the back table.” B.N.’s evidence was that, following the touch, she went back to her work. However, later that day she told her friend A.B. that the appellant had touched her and they decided to tell their regular teacher when she returned the next day.

(ii) Evidence of A.B.

[13] In her videotaped statement to police and in court, A.B. indicated that she saw the appellant put his hand down B.N.’s back but did not see him touch her buttocks. However, she indicated that immediately after this, B.N. came to the back of the room and told her that the appellant had “smacked” her buttocks and later, that he had “touched” her buttocks. A.B. also testified in cross-examination about how at a recess later that day she and B.N., and E.M. and A.S., among others, had discussed the incidents from the previous week:

[W]e all got together and discussed it, and that’s when we decided that we were going to do something about it.

[E.M.], [A.S.], and [B.N.], and me. And I can’t remember.

We all discussed what happened to each other and we made a game plan and we went and told.

[14] B.N. and A.B. first went to their teacher the next day to report their incident. The principal was absent that day. The following day, however, he called all the girls down to his office and upon hearing some of what they had to say asked them to write down brief statements about what had happened. Subsequent to this, the girls individually gave their video statements to the police. The very brief handwritten statements were entered as exhibits in the trial, as well as a one page typed statement/report prepared and signed by the principal. The video statements given by E.M., A.S., B.N. and A.B. and transcripts of the statements were also entered as exhibits in the trial.

(3) DECISION BELOW

[15] The trial judge’s decision was delivered orally. He thoroughly summarized the evidence of the two complainants, which comprised the majority of the judgment.

[16] While the trial judge described the two complainants’ evidence at length, he dismissed the evidence of the two purported eyewitnesses to the two incidents in relatively short order. With respect to the witness A.S., the trial judge acknowledged that her “version of what transpired differs from [E.M.]’s version.” He noted that:

In her video-taped statement and also in cross-examination, [A.S.] tries to answer all the questions put to her; however, her answers sometimes do not match the questions.

She mixes her opinions and thoughts about what others are experiencing with her own observations. She reflects on what happened in a train of thought that is not always chronological. She makes frequent use of the word "like" and in doing so, it is unclear from the context whether she is using the word to accurately relate, to speculate, to guess, or to just provide her best recollection of what she saw and heard. She does not always complete her sentences or thoughts. I have no doubt that [A.S.] tried her best to provide full and honest answers to the questions put to her; however, I found the evidence in her statement and in her cross-examination to be of limited probative value.

[17] With respect to the other witness, A.B., the trial judge observed:

In her statement and in her cross-examination, [A.B.] confuses times and dates. She cannot remember details. At times she provides one version of events and then hesitates and corrects herself or says that she cannot remember. She makes references to having flashbacks. I am unable to rely upon any of the evidence of [A.B.].

[18] In his ruling on the similar fact evidence, the trial judge referenced R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, summarizing many of the salient principles from that leading case. After noting that potential prejudice inherent in the admission of similar fact evidence is reduced significantly in a judge alone trial, he addressed one of the appellant’s main concerns at trial:

It is pointed out by the defence that in the circumstances of this case there is a significant possibility for collusion. The girls talked with each other. They discussed what had happened.

[19] Without further analysis, the trial judge then immediately ruled:

Nevertheless, I am satisfied on the facts of this case that the probative value outweighs the prejudicial effect, and that I may consider the similar fact evidence of the two counts involving the allegations against [B.N.] and [E.M.] as evidence that the acts occurred.

[20] Then, after briefly summarizing the positions of the Crown and defence, his holding was entirely set out in the single final paragraph:

Having carefully reviewed the evidence of [E.M.] and [B.N.], in particular; and having considered their statements to the police, their evidence in court, their cross-examination, and the statements prepared for the principal, I am satisfied beyond a reasonable doubt that their version must be accepted. I am satisfied beyond a reasonable doubt that Mr. Burnie touched the buttocks of [E.M.] and [B.N.]. I am also satisfied beyond a reasonable doubt that the touching of their buttocks was for a sexual purpose. Accordingly, I find Mr. Burnie guilty on all counts.

[21] Other than the trial judge’s summary of the evidence of the two complainants, his brief dismissal of the evidence of the other witnesses and his ruling on the similar fact evidence, this paragraph was the only analysis apparent from his judgment on which he based his finding of guilt.

(4) ISSUES

[22] The appellant raises the following issues on appeal:

1. Did the trial judge subject the Crown’s case to the scrutiny required to justify a criminal conviction?

2. Did the trial judge give proper reasons for accepting the evidence of E.M. and B.N.?

3. Did the trial judge properly assess the evidence in accordance with the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742?

4. Should the B.N. and E.M. incidents have been admitted against each other as similar acts?

5. Did the trial judge err in convicting the appellant on both counts involving E.M. and both counts involving B.N.?

6. Did the trial judge err in sentencing the appellant?

[23] The appellant subsequently abandoned his sentence appeal. In the analysis below, I will focus on the second, third and fourth issues. In my view, the resolution of these issues is dispositive of the appeal. In respect of the fifth issue, the respondent concedes that the appellant should have been convicted of only one count for each incident of sexual touching pursuant to the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. I agree with the respondent’s concession. However, in light of the disposition I would order, it is not necessary for me to address the matter further.

[24] The respondent argues that the trial judge’s findings of credibility and reliability are factual determinations, which are exclusively within the trier of fact’s domain. As such, these findings attract significant deference from a reviewing court. Furthermore, the reasons for judgment are adequate in the circumstances, as the trial judge was not required to address every inconsistency and resolve every factual detail. Finally, the respondent submits that there was ample basis upon which to support the trial judge’s conclusion.

[25] The respondent submits that this was a relatively simple case. The case stood to be determined on whether the Crown witnesses were sufficiently credible and reliable to establish the allegations of sexual touching beyond a reasonable doubt. There was an ample basis upon which to support the trial judge’s conclusion.

[26] The respondent further submits that the trial judge did not err in his application of R. v. W.(D.), [1991] S.C.R. 741as the appellant did not testify or call a positive defence. Thus, the case stood to be determined at the third step of W.(D.): were the Crown witnesses sufficiently credible and reliable to prove the case beyond a reasonable doubt? Accordingly, the respondent argues, the trial judge proceeded correctly.

[27] Finally, the respondent submits that the trial judge did not err in considering B.N. and E.M.’s evidence across their counts. There is no basis to conclude that the trial judge erred in the application of the well-established test for the admission of similar fact evidence. The trial judge explicitly acknowledged the evidence in this case that the complainants discussed what happened and what they ought to do about it. However, there was no evidence of actual collusion, or tainting, or that the discussions influenced their evidence in any way. In the alternative, even if the trial judge erred in failing to determine on a balance of probabilities whether the evidence of E.M. and B.N. was tainted by collusion, this could not have affected the verdict as credibility was the only issue in the trial and the trial judge was clearly satisfied that both complainants were credible in and of themselves.

(5) ANALYSIS

(a) The Adequacy of the Trial Judge’s Reasons

[28] It is a well-established legal principle that the reasons a judge gives in a criminal trial without a jury fulfill an important function in the trial process and where that function goes unperformed, the judgment may be vulnerable to reversal on appeal: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

[29] Speaking on behalf of the Supreme Court in Sheppard, Justice Binnie noted, at para. 21, that it is a reviewing court’s task, “not so much to extol the virtues of giving full reasons, which no one doubts, but to isolate those situations where deficiencies in the trial reasons will justify appellate intervention and either an acquittal or a new trial”.

[30] As the court laid out in Sheppard, at para. 28:

The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge's reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge's decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.

[31] However, the Court also emphasized, at para. 33, that the absence or inadequacy of reasons is not a freestanding ground of appeal:

A more contextual approach is required. The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case.

[32] The Court formulated three categories of cases in which deficient reasons could occasion such prejudice:

1. Allegation of unreasonable verdict cases;

2. Allegation of error of law cases; and

3. Miscarriage of justice cases.

[33] Upon my review of the record, the present case falls under the second category of cases. Under this category, the issue is whether, short of an unreasonable verdict, the trial judge’s reasons fail to articulate reasons in relation to key issues. If so, the appropriate remedy is to order a new trial. As Justice Binnie described, at para. 42, “for purposes of appellate review, the duty to give reasons is driven by the circumstances of the case rather than abstract notions of judicial accountability.” Again, he explained, at para. 46:

[W]here the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. [Emphasis removed.]

[34] Finally, in his helpful but non-exhaustive propositions of law, at para. 55, Justice Binnie makes two points that are apposite to the present case:

Reasons acquire particular importance when a trial judge is called upon to…resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.

While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.

[35] Two issues permeate the record in this case. First, there was ample evidence of the opportunity for the complainants and witnesses to have colluded. The trial judge acknowledged as much when he indicated, albeit in his summary of the appellant’s position on the similar fact application, that “[t]he girls talked with each other. They discussed what had happened.”.

[36] While I accept that there was no direct evidence that specific collusion or even a motive to collude existed, there was at least the opportunity for the complainants and the witnesses to have influenced and contaminated each other’s independent perspectives and recollections of the events through their communication of the events with each other, and their interaction leading up to and during their revelation of the events to their teacher and the principal. As this court held in R. v. B.(C.) (2003), 2003 CanLII 32894 (ON CA), 171 C.C.C. (3d) 159, at para. 40:

Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events.

While this by no means necessarily makes the complainants’ or witnesses’ evidence valueless, the opportunity for collusion must nonetheless be adequately addressed in this case.

(b) The Opportunity for Collusion

[37] The Supreme Court stated in Handy, at para. 104, that if “collusion is present, it destroys the foundation on which admissibility is sought”. This is because “the trial judge cannot assess the ‘objective improbability of coincidence’ without addressing the issue of whether the apparent coincidence is in fact the product of collusion”: Handy, at para. 106.

[38] In this case, there was evidence that E.M. and A.S. were “best, best friends” and B.N. and A.B. were “close friends”. More importantly, there was evidence of some communication among the complainants and witnesses. Therefore, before admitting the similar fact evidence, the trial judge was obligated to consider whether the Crown had proven on a balance of probabilities that the evidence was not tainted by collusion. This requirement is “inherent in deciding whether, as a matter of law, the evidence has sufficient probative value to overcome the prejudice” of its admission: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33,at para. 41. Once he admitted the evidence, the trial judge was required to decide what weight, if any, to assign to it. Here, he was the trier of fact. Only once he concluded that he should accord the evidence some weight could the trial judge use the testimony of one complainant to support the credibility of the other complainant.

[39] This issue was addressed by this court in R. v. F.(J.) (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.). At para. 86, Feldman J.A. noted:

The Supreme Court has recently addressed the seriousness of the possibility that evidence has been tainted by collusion in the context of the treatment of similar fact evidence. In the cases of R. v. Handy and R. v. Shearing, the court held that before admitting similar fact evidence, the trial judge must be satisfied of its reliability and exclude it if not satisfied on a balance of probabilities that the evidence is not tainted by collusion. Once admitted, the jury must still be warned to assess the evidence carefully and to consider whether it can be considered reliable given the possibility of deliberate or accidental tainting by collusion among the witnesses (Shearing at para. 44). [Citations omitted.]

[40] Unfortunately, other than the trial judge’s brief reference that “[i]t is pointed out by the defence that in the circumstances of this case there is a significant possibility for collusion”, the trial judge failed to otherwise mention the possibility of collusion in his judgment. It could be that he nonetheless appropriately considered it in his ultimate decision on the guilt of the accused. If he did, the appellant could be assured that the verdict was arrived at properly.

[41] However, it could be that the trial judge failed to consider the possibility of collusion when he considered the effect of the similar fact evidence in his ultimate decision on the guilt of the accused. If he did, there was a reversible error of law in his reasoning. As this court also held in B.(C.), when similar fact evidence is admitted and there is evidence of the possibility of collusion, which falls short of tainting the evidence so as to render it inadmissible, a trial judge must nonetheless instruct a jury of their “duty to consider the possibility of collusion when assessing what effect to give to the similar fact evidence that they had heard.” (See paras. 42-45.) Likewise, it was the duty of the trial judge in this case, as the trier of fact, to instruct himself to consider the possibility of collusion in his assessment of what effect to give the similar fact evidence in his ultimate decision on the guilt of the accused on the whole of the evidence.

[42] The difficulty in this case is that on the reasons given, we cannot know if he did or did not do so. As such, on this issue, we are left in the position, in the terms used in Sheppard, where we cannot be sure of the path taken by the trial judge. There is more than one view of how the trial judge may have decided guilt and one such view would clearly constitute reversible error.

(c) Failure to Explain how the Complainants’ Version of Events was Accepted

[43] The second issue that permeates the record in this case is the significant conflicting evidence between the complainants and the respective witnesses. Clearly, the thrust of the appellant’s strategy throughout his trial was to highlight the inconsistencies in the accounts of the incidents, as between the complainants and witnesses, as well as internally within the evidence of the complainants and witnesses over time.

[44] In the end, it was also clear the trial judge accepted the evidence of the complainants and had significant difficulties with the evidence of the witnesses. While he well may have completely rejected the evidence of the witness A.B., being “unable to rely upon any of [her] evidence,” he merely indicated that he found the evidence of A.S. to “have limited probative value”. In either case, in his ultimate decision he made no mention whatsoever of the significant conflicts between their evidence and the evidence of the complainants.

[45] As this court made clear in R. v. R.W.B., [2003] O.J. No. 3086 (C.A.), at paras. 2 and 9, the trial judge need not deal with each and every inconsistency, and is in the best position to determine credibility and reliability. This court will defer where the trial judge gave adequate consideration to the submissions of counsel regarding the frailties of the evidence.

[46] In this case, however, the trial judge did not conduct any analysis of the complainants’ credibility or reliability at all. Whether he scrutinized the reliability of their evidence to the same extent as that given by the witnesses A.S. and A.B. is not clear from his reasons. While he ultimately stated that he accepted the complainants’ version of events beyond a reasonable doubt, it is impossible to chart the path he took to that conclusion.

[47] Once again, it may be that the trial judge appropriately considered the conflicting and sometimes confusing evidence of the witnesses while considering the evidence of the complainants. However, on the reasons given it may also be that he gave no consideration in his ultimate decision of even the residual probative value there may have been at least in the evidence of A.S.. I do not know. In the terms used in Sheppard, there are significant inconsistencies or conflicts in the evidence, which the trial judge has circumvented without explanation. While the respondent is correct that the appellant did not testify or call a positive defence, the appellant did vigorously challenge the evidence by eliciting conflicting evidence that was capable of calling into question the credibility and reliability of the evidence of the complainants, the central issue in this case. This court recently dealt with the scope of W.(D.) in R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197. Blair J.A., speaking for the court, carefully and thoroughly reviewed the proper application of W.(D.), and concluded at para. 114:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. [Emphasis added.]

[48] In fairness to the trial judge, B.D. was decided after his decision in the present case. Nonetheless, in a case in which the main thrust of the defence is directed at eliciting conflicting evidence from the complainants and the eyewitnesses to the alleged offences, it was incumbent on the trial judge to have at least considered whether those conflicts or inconsistencies raised a reasonable doubt about the evidence supporting a conviction. From his reasons, particularly the culminating paragraph, which is the heart of the decision, it is not apparent that he did so. While we might assume he did, Sheppard makes it clear that, “[e]ven learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.” In the circumstances of this case, the deficiency in the reasons precludes me from properly carrying out this appellate function.

(6) DISPOSITION

[49] For these reasons, I would set aside the convictions and order a new trial. It is within the discretion of the Crown to decide whether it is in the interest of justice to proceed with a new trial.

Released: “JL” February 22, 2013

“M. Tulloch J.A.”

“I agree J.I. Laskin J.A.”

“I agree R.G. Juriansz J.A.”