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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.J.B., 2013 ONCA 268

DATE: 20130429

DOCKET: C46464 & C49995

Juriansz, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.B.

Appellant

J.J.B., acting in person on the appeal from the convictions under s. 163.1 of the Criminal Code and the appeal from sentence

Ian R. Smith, for the appellant on the appeal from the convictions under ss. 271, 152 and 151 of the Criminal Code

Leslie Paine, for the respondent

Heard: November 21, 2012

On appeal from the conviction entered on November 27, 2006 by Justice Peter G. Jarvis of the Superior Court of Justice, sitting without a jury.

Juriansz J.A.:

A. Facts

[1] This is an appeal from the judgment of a judge of the Superior Court of Justice sitting without a jury that convicted the appellant of sexual offences relating to three young girls: his daughter V.B., and her friends J.L. and M.J. In relation to each complainant, the appellant was convicted of sexual assault, invitation to touch for a sexual purpose, and sexual touching. The girls were between the ages of six and eight at the time of the offences. The appellant’s daughter would stay with him on weekends at his apartment, and her friends, who lived in the same building, would visit her in the appellant’s apartment.

[2] The allegations came to light when a third friend, C.V., spoke to an older sister who contacted the police. The appellant faced the same charges in connection with C.V. However, C.V. did not testify at trial and the charges relating to her were dismissed.

[3] The police obtained electronically-recorded statements from J.L. and M.J. The girls alleged that the appellant had made them touch his penis while they were in his apartment visiting V.B. The police then entered the appellant’s apartment to urgently search for V.B. During the search, they discovered the images that gave rise to the child pornography charges. The images included pictures of V.B. naked.

[4] The appellant was also charged and convicted of two counts of possession of child pornography and two counts of making child pornography. No submissions were advanced by duty counsel or by the appellant on these convictions. I would dismiss his appeal from them.

[5] V.B. initially gave a video statement on May 5, 2002 in which she denied any wrongdoing by her father. V.B. then had a number of counselling sessions with a social worker, J.M. After these counselling sessions, V.B. made a second video statement, on December 20, 2002. In the second statement V.B. made similar allegations to those of the other girls, i.e. that the appellant had her touch his penis. In her second statement, V.B. also said that the appellant had touched her vagina and that she had seen the appellant touching M.J. and C.V. as well. V.B., J.L. and M.J. testified at trial adopting their previously electronically-recorded statements under s. 715.1 of the Criminal Code.

[6] The appellant testified. He flatly denied the allegations and claimed the girls must have colluded and fabricated the evidence because he would discipline them when they played at his apartment. The defence also argued that V.B. had been inappropriately influenced by the social worker. The appellant denied knowledge of the pornographic images and testified that others, who were allowed to use his computer, were responsible for the child pornography found on it.

[7] The trial judge rejected the appellant’s testimony finding him to be a “complete liar” who was “without conscience and a completely unreliable witness.” The trial judge admitted the evidence relating to each of the girls as similar fact evidence on the charges relating to the others. He found there was no evidence that V.B.’s testimony had been tainted by the social worker and accepted her evidence at trial. He convicted the appellant of the charges in relation to each of V.B., M.J. and J.L. As mentioned, he dismissed the charges in relation to C.V.

[8] After rendering judgment, the trial judge retired. A different judge sentenced the appellant, finding him to be a dangerous offender.

B. The positions of the parties

(1) The Appellant’s Position

[9] The appellant’s overarching ground of appeal is that the reasons of the trial judge are inadequate. The appellant’s argument focuses on three areas.

[10] First, the appellant submits that the testimony of the three girls was “confused, confusing and contradictory” and that the trial judge failed to explain how he resolved the differences in their testimony. He says that the trial judge’s reasons do nothing more than simply state his conclusions and that his vague and general summary of the evidence is inaccurate and shows that he misapprehended the evidence.

[11] The appellant mounted a particular attack on the trial judge’s finding that:

Subject to what follows [the girls’] evidence in common asserted that on many occasions, in the case of [V.B.], several cases in the case of [M.J.], and in a few cases in the case of [J.L.][1], they had been inveigled to touch [the appellant’s] penis and he in turn had been allowed to touch their private parts.

[12] The appellant argues that the evidence of the three girls contained little in common. He further argues that this general summary of the evidence is inaccurate. The extent of the inaccuracy, he submits, demonstrates the trial judge misapprehended the evidence. For example, he argues that M.J. testified she touched the appellant only once, not on several occasions, and that the appellant did not touch M.J.

[13] The appellant submits that the following passages show how the trial judge does nothing more than state and restate his conclusions:

I am led to conclude that [the appellant] did, in fact, take advantage of the young girls, [V.B.], [J.L.] and [M.J.] on a number of occasions within the times specified in the charges. There is no explanation for their testimony other than the facts which can account for it. I am not swayed by the assertion that the girls testified out of spite, or colluded to falsely accuse [the appellant].

This is simply not supported by the evidence. The fact that the girls’ evidence does not dovetail at all times gives the lie to such a suggestion. The taped interviews convinced me that none of them had the guile or experience to ever conceive of such a scheme. I consider their evidence to be both credible, reliable and necessary in the circumstances.

The evidence of very young witnesses is almost always difficult to follow in a direct way. I appreciate that there was upwards of a year to a year and a half between the last of these assaults and the police interviews. Treatment such as that which these girls have received from a person who owed them a duty of trust is not easily forgotten nor was it here. I find the girls to be credible witnesses. The truth shone through their testimony. They exhibited pluck and intelligence and did their best in the circumstances. Their evidence is entirely worthy of belief. [Emphasis added.]

[14] The second area the appellant attacks is how the trial judge dealt with V.B.’s evidence. He submits that the trial judge paid no heed to the substantial evidence that the testimony of V.B. was influenced by her interaction with the social worker.

[15] The appellant points out that the social worker was present with the police during the second interview, read what was written in the activity book and had V.B. adopt what had been read. The social worker had written the contents of the activity book and the passages that were read out to and adopted by V.B. The appellant submits these passages contained words she did not understand such as “uncomfortable” and “abuse”. He submits the trial judge failed to grapple with any of these issues and failed to consider whether they should cause him concern about the reliability of the second statement.

[16] Instead, the appellant says, the trial judge simply stated that V.B.’s statement supporting her father did not “reflect on her credibility in any way” and her second statement incriminating him was “compelling and consistent with the events having occurred”. These comments, the appellant says, are simply conclusions without any explanation.

[17] The third area the appellant attacks is the trial judge’s failure to carry out a proper analysis of the probative value of the similar fact evidence given the many inconsistencies between the evidence of the three complainants. The trial judge failed to explain why, in admitting the similar fact evidence, he found there was no evidence of collusion among the three girls.

(2) The Crown Position

[18] The Crown concedes the trial judge’s reasons do not contain a detailed analysis of the evidence. The Crown submits, however, that despite their deficiencies, the reasons, when read as a whole in the context of the evidence and the arguments at trial, leave the appellant with no doubt as to why he was convicted.

C. Analysis

(1) General Principles

[19] The errors alleged by the appellant must be assessed in light of the established law on sufficiency of reasons and the deference accorded to the trial judge’s credibility assessments.

[20] Reasons are reviewed for their functionality, not their eloquence. As stated in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25-26, an appeal will only be allowed where the reasons are so deficient as to foreclose meaningful appellate review.

[21] Further, reasons for judgment cannot be assessed standing alone: “reasons for judgment must be examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced”: R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252, at para. 32 (Ont. C.A.). See also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3.

[22] Where the reasons relate to the assessment of credibility, the sufficiency of reasons must be assessed in light of the deference accorded to trial judges’ credibility findings: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R., at para. 26. An appeal court must defer to the trial judge on findings of credibility, absent palpable and overriding error: see H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 53. Thus, “[r]arely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”: Dinardo, at para. 26.

[23] The trial judge has the significant advantage of seeing and hearing the evidence of witnesses: see R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 131. This deference acknowledges the difficulties both in assessing credibility and articulating the reasons a person is believable. As the court said in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[24] It is only where the reviewing court has considered all of the evidence before the trier of fact, and determined that the credibility determination cannot be reasonably supported by that evidence, that the court can overturn it: see R. v. Gagnon, at para. 10.

(2) The Evidence at Trial

[25] In this case the trial record is especially important in considering the sufficiency of the trial judge’s reasons. It is of course impractical to set out all the evidence in the record. This was a credibility case in which the trial judge totally and emphatically rejected the appellant’s testimony, and accepted the testimony of the complainants. Knowledge of the testimony of the appellant and three young girls’ testimony is vital to understanding the trial judge’s comments about that testimony.

[26] I have reviewed the transcripts of the testimony and viewed the video recordings of the girls’ interviews. There is much the transcripts fail to capture: demeanour, nods, facial expressions, silent pauses before responses, and people speaking at the same time. I find it necessary to set out extensive passages from the transcripts to explain my analysis of the issues.

(i) The police interview of M.J.

[27] The following excerpts are from the transcript of the police interview of M.J. on May 4, 2002. M.J. was eight years old at the time of the interview.

Question:…You had mentioned something to your mom, something that happened to you. I was wondering could you tell me about it.

Answer: That’s if I can remember.

Question: If you can remember, that’s fine. No that’s fine. You try – try to do your best. Can you remember when this happened? Was it today? Today is Saturday. Um was it Friday? Don’t know? Can you tell me what happened?

Answer: I was playing with my friend [V.B.] and then my – my friend’s dad told me to…

Question: --- It’s okay, take your time. Take all the time you need. We’re here to help you and – and try to find out what happened. So you mentioned your friend [V.B.]. You were playing with [V.B.], sorry at – at her dad’s? Okay.

Answer: And then he told me to touch it and if I didn’t do it, I wasn’t not [sic] able to be playing with my friend again.

Question: Okay um when you’re saying that [V.B.]’s dad said touch it, do you know what he meant by that? Can you remember? You’re – you’re okay. You can tell me. Uh if you want to wait for little bit – it’s – it’s upsetting? Okay. Are you gonna be okay? Okay. But I need – I know you’re only – I know you’re only eight but I – I got to find out what exactly happened because no one else needs to go through this. Right? You wouldn’t want nobody else too. And so we’re kind of like dependent on you a little bit to be able to tell us what happened. And I know you said touch it. But do you – can you tell me maybe where he wanted you to touch? Can you point? What about on your little bear? No? Anyhow you mentioned um that if you didn’t do this, that you wouldn’t be uh be able to play with [V.B.] again? [V.B.]? Okay. Well what happened after that?

Answer: I washed my hands.

Question: Did you touch it what he wanted you to touch? Sorry yes, no? Yeh I need you to speak up because remember the microphone needs to pick up your voice. I know you’re nodding yes but I – are you saying yes or no? [Emphasis added.]

Answer: Yes

Question: Okay. Um you washed your hands afterwards and what happened after that?

Answer: And then I started to play with my friend again.

[28] Later, the interview continued after establishing that her friend is V.B., that V.B. is six or seven years old and that her father’s name is J.

Question:… And after you were playing with your friend [V.B.], what happened then?

Answer: And then he told me to touch it again.

Question: Okay. Did you touch it again? Okay. And where did this happen at? Where was this at?

Answer: At his house.

[29] After trying to establish when this occurred in relation to her sister’s birthday the interview continued.

Question: … Now when this – when this happened when [the appellant] wanted you to touch it, was there anybody else there with you?

Answer: Just [V.B.].

Question: Just [V.B.]? Was [V.B.] there when this happened? Now did she see you touch it what he wanted you to touch? Okay. Has anything else ever happened? Was [V.B.] asked to do this? What did [V.B.] do?

Answer: She touched it.

Question: How did she touch it? With her hand or.

Answer: With her hand.

Question: With her hand? Okay. And when you uh – when you touched it, did you use your hand too? Okay. And what did [V.B.] do after this?

Answer: She began to play with me.

Question: Did she talk to you about this at all? Okay. I know I’m – I know I’m gonna ask you a question. I know it’s probably gonna be hard for you but if you can remember help me – uh we’ll see. When he wanted you to touch him, what exactly did he want you to do?

Answer: He wanted me to rub it.

Question: Okay. The first time? The first time that it happened? Is that what he wanted you to do? And the second time? Both times? Okay. And did you do that? Okay. Did he tell you to stop or did you just stop on your own?

Answer: I just stopped on my own.

Question: Okay. And when you stopped on your own – what – what did you do? Did you run out or?

Answer: I went to go wash my hands with soap.

Question: Okay. Okay. How did that make you feel?

Answer: Sad.

[30] M.J. talks about this happening before Christmas as well as after Christmas. In fact on my reading, she makes reference to three specific occasions on which the appellant made her touch his penis. The whole of her testimony implies she was describing a regular occurrence.

(ii) The police interview of J.L.

[31] J.L. was interviewed by police on May 4, 2002 when she was seven years old. After the interviewer established that J.L. and M.J. used to play with V.B. at her apartment, and that M.J. moved out last year, J.L. had this to say:

Question: Last year. Okay and what about [V.B.]? Is she your friend?

Answer: Not so much.

Question: Okay why isn’t she your friend?

Answer: Because it’s her father, there’s her father…

[32] The interviewer then establishes that V.B.’s father’s name is J. and the interview continues:

Question: Okay do you like – do you like [V.B.]?

Answer: Used to.

Question: You used to. Okay. Do you like her father?

Answer: No.

Question: No?

Answer: No.

Question: Okay can you tell me what you don’t like about him?

Answer: He used to tell me and [M.J.] and [C.V.] to come where his computer is.

Question: Okay. Can you tell me what happened when he asked you guys to come to the computer?

Answer: He told us to sit on his lap.

Question: Uhhuh. And did something happen then?

Answer: Uhhuh.

Question: I know you might be scared but it’s okay.

Answer: I don’t want to say.

[33] The interviewer then changes the subject and talks to J.L. about movies she’s seen and other such things before returning to the subject of going to V.B.’s apartment.

Question: So what made you not like going there?

Answer: It was her father.

Question: Uhhuh. Can you tell me a bit more about her father?

Answer: Uh I don’t want to tell it – I don’t want to tell it. It’s too…

Question: But alright it’s too hard.…

Answer: It’s hard to tell. It’s hard.

Question: Well we’ll start slowly okay?

Answer: Okay.

[34] After talking about other matters the interview returned to the subject of V.B.’s father.

Question: Okay. Did something else happen that made you not like him?

Answer: Yes.

Question: Can you tell me a bit about that?

Answer: Too hard.

Question: I know but it’s something that you got to talk to us about. Okay?

Answer: Uhhuh.

Question: I know it’s gonna be hard to explain everything but I think you’re a pretty brave girl aren’t you. I want you to take a deep breath and just start talking about it.

Answer: Um. I don’t know.

Question: Cause what you have to say is pretty important. Okay? And we wouldn’t be here talking to you if it wasn’t important.

Answer: When we sit on his lap, he makes us touch his…

Question: Tell us the word you would use.

Answer: Part.

Question: His part? Okay. What part?

Answer: You know where the bottom. The bottom part.

[35] J.L. goes on to say she knows the Spanish word for a female private part, but does not know the word for a male private part. She indicates that when they sat on the appellant’s lap at the computer their picture would be on the computer showing what’s happening.

Question: Okay. So what happened when he asked you guys to sit on his lap?

Answer: I already told you.

Question: Hum?

Answer: I already told you.

Question: No I need you to tell me more about it.

Answer: Uh that’s it and then he – then he – we went back what we were doing.

Question: Okay who did he ask first?

Answer: Well he asks [V.B.] first.

Question: Okay.

Answer: His own daughter.

Question: And what did he – do you remember what he said to [V.B.]?

Answer: No.

Question: Okay and what did [V.B.] do when he asked her to sit on his lap.

Answer: We did the same thing, all we have to just do that.

Question: Okay can you tell first of all with [V.B.], what did he do?

Answer: Same thing.

Question: You know that he – I don’t know what he did to [V.B.] so I need you to explain to me.

Answer: He did the same thing that he did to me and [C.V.] and [M.J.].

Question: Okay and what’s that?

Answer: I told you.

Question: I know but I forget all the time.

Answer: He made us touch his part.

Question: Okay. And how – what did he say to – what did he say to [V.B.]?

Answer: He said don’t tell your mom this.

[36] After discussing some other matters, the interview continued.

Question: And when you guys are at the computer, and he asked [V.B.] to touch him, what did [V.B.] do?

Answer: She did it.

Question: Okay. Do you remember what he’s wearing at the time?

Answer: He was wearing black pants. I don’t remember his t-shirt.

Question: Uhhuh. Okay and how did she [sic] get [V.B.] – how did he [V.B.] to touch her?

Answer: He pulled her hand.

Question: Uhhuh and what did he do her hand?

Answer: He made her touch here. [Emphasis added.]

[37] J.L. also described what she saw the appellant do to C.V.:

Question: And what happened when he asked [C.V.]?

Answer: He did the same thing that he did to [V.B.].

Question: Okay. Can you tell me again what he did to [C.V.]?

Answer: Put her hand and he made her touch his private part. [Emphasis added.]

Question: Okay. And he had his clothes on.

Answer: Um.

Question: How did – how did she touch his private part?

Answer: well like here – he put her… [Emphasis added.]

Question: Uhhuh…

Answer: He put her hand there.

Question: Right.

Answer: Right here. [Emphasis added.]

[38] J.L. described the appellant’s acts with M.J. and her:

Question: Okay. And what happened when he asked [M.J.]?

Answer: The same thing that he did to [C.V.].

Question: Okay and what about when he had asked you?

Answer: Same thing he did to – with [M.J.] but I didn’t want to.

Question: Okay what did he do to you?

Answer: He did the same thing he did to [C.V.] and [M.J.] and [V.B.].

Question: Okay can you just explain again?

Answer: Made us touch his private part.

Question: Okay do you remember how many times that happened?

Answer: Well every time – once.

Question: Once?

Answer: Yeh.

Question: Just the one time he ever or…

Answer: Yeh…

Question: Or was it more than once?

Answer: A lot of times. I don’t know how many times but a lot of times.

[39] The following excerpt is from later in J.L.’s interview:

Question: Yeh? Okay. Do you remember if he’s… this touching stuff started before you were six or after you were six?

Answer: All the time when I was four and five, and six. Not now.

(iii) The second police interview of V.B.

[40] V.B. was first interviewed by the police on May 5, 2002 when she was six years old and in grade 1. In that interview, she denied any misconduct by her father.

[41] On December 20, 2002, after she had turned seven, V.B. was interviewed by the police again. The social worker she had been seeing was present, and the police officer allowed the social worker to do the initial questioning. V.B. was reluctant to talk. The transcript shows that V.B.’s response when the social worker asked “can you tell me what you told me about um when you went to visit at your dad’s house?” was “inaudible sound”. When V.B. persisted in saying she didn’t remember, the social worker asked whether it would help “if we looked at your book to remember?” At this point the police officer intervened to ask “what is this book?” The social worker explained that the book was an “activity book” in which the social worker would write down what activities they did, what V.B. liked and didn’t like. The book also contained a history page in which V.B. had told the social worker all about herself.

[42] The social worker read general passages about V.B.’s life history and V.B. confirmed them. The social worker then read this passage:

We got treats for doing the sexual abuse. We would listen to what my dad said. My daddy made me uncomfortable when he touched me at the private, when he touched me under my clothes. Every time I went to visit my dad he made me uncomfortable. We got treats for touching my dad at the private, sometimes on top of his clothes, sometimes under his clothes. We got five treats for doing what my dad told us to do. My friends were in the same room. They were doing the same as my dad told me, sometimes at the same time, sometimes at different times. They were touching my dad at the privates.

[43] V.B. agreed with this passage. The police officer then took over the interview, asking questions without any reference to the book. The social worker’s questioning of V.B., including the preliminary questions, covers 8 pages of transcript. The police officer’s questioning continues on for 13 pages.

Question: [V.B.], how did you feel after you played these games with your dad?

Answer: Um, not so good.

Question: Why do you think you felt not so good?

Answer: Don’t know.

[44] Later, when the police officer asked whether her clothes would be on or off during the touching, there is this passage:

Answer: Sometimes on, sometimes off.

Question: Okay. How did you feel when your dad touched you?

Answer: Uncomfortable.

Question: Yeah. And where would he touch you, [V.B.]?

Answer: Um – on the private.

Question: Okay. And can – can you show me where that is?

Answer: No.

Question: Okay. Can you maybe show me on the bear where that is?

Answer: Um – I don’t think –

Question: Well, you’ve got the bear there. Could you show me where the bear’s privates would be – where your dad was touching the bear’s privates, where it would be.

Answer: Here. [Indicating the pubic area of the bear.]

[45] Later in the interview, there is this passage:

Question: You told [J.M.] that um your dad told you not to tell anyone, right? And how often would he say that to you?

Answer: Umm, every time.

Question: Every time? Did you wanna tell someone?

Answer: Um-hum.

Question: Who did you wanna tell, honey?

Answer: My mom.

Question: Yeah – And – and why did you wanna tell your mom?

Answer: Because I know it wasn’t right.

Question: Good. How did you know it wasn’t right?

Answer: I don’t know.

Question: You just felt…

Answer: I felt it.

[46] V.B. described what she saw the appellant do with her friends:

Question: When your friends were there, did you see your dad touching them? Who did you see your dad touching…

Answer: [M.J.]…

Question: Um-hum.

Answer: And [C.V.].

Question: And where would he touch them?

Answer: Um – the same as me.

Question: Okay. And where would that be?

Answer: The private.

Question: Did you ever see [M.J.] touch your dad?

Answer: Um-hum.

Question: Okay. And where would she touch your dad?

Answer: Where he told her to.

Question: Okay. And where would that be.

Answer: Umm – I don’t remember.

Question: You don’t quite remember? Okay. And what about [C.V.]? Did you ever see your dad touch [C.V.]?

Answer: Um-hum.

Question: Okay. And where would he touch her?

Answer: Um – private.

[47] On November 19, 2004, V.B. testified at trial. Before the recorded statement was played, the Crown attorney questioned her at length. The Crown attorney first asked her about computer and board games she played with her dad and then asked:

Question: Okay. And any other type of games? Ah did you always like the games that you played with your dad?

Answer: Ah not all.

Question: Okay, which one did you not like?

Answer: There were some games that he played that made me feel uncomfortable.

Question: Okay. Can you tell me what made you feel uncomfortable?

Answer: No.

Question: Okay. Why is that?

Answer: Because um… because the games um they didn’t really have any names.

Question: Okay. Can you tell me what ah – how would you play this game? What would you have to do, just tell me that?

Answer: That was up to my dad.

Question: Okay, all right. And the people game can you tell me um in terms of you, would you have to do something or would someone else be doing something? Can you tell me?

Answer: Usually my dad told us what to do.

Question: Okay. And what would you do when your dad told you what to do it?

Answer: I would do what he said.

Question: Okay. And why was that?

Answer: Because he was my dad.

Question: Okay. Did you ever tell anyone about these games?

Answer: I wanted to but my dad told me not to.

Question: What did he say?

Answer: He just told me not to tell anyone.

Question: Okay. Did you ever tell your mommy?

Answer: I was going to but that was when my dad told me not to.

Question: Okay. Did you and your friends, [C.V.] or [M.J.] or [J.L.], did you ever talk about these games?

Answer: No.

[48] The Crown attorney asked V.B. about the social worker:

Question: Okay. And when you were telling [the social worker] things, were you being ah – were you lying or were you telling the truth?

Answer: I was telling the truth.

Question: Okay. Would you ever lie about things to [the social worker]--

Answer: No.

[49] The video recording of V.B.’s December 20, 2002 statement was played, and the Crown attorney asked V.B. some more questions.

Question: Okay. And what was [the social worker] reading?

Answer: Um it was a book that we made together.

Question: Okay. Can you tell me who wrote in the book?

Answer: [the social worker].

Question: Okay. And what did she write in the book?

Answer: She wrote um what I said.

Question: Okay. And were you telling the truth or were you telling a lie to [the social worker]?

Answer: The truth.

Question: Okay. And the questions that [the police officer] asked you, did you hear those?

Answer: Yes.

Question: Were you telling the truth to [the police officer] or were you lying about something?

Answer: I was telling the truth.

Question: Okay. Everything that you saw in the videotape was it the truth or was it a lie?

Answer: Truth.

Question: Did somebody tell you to say those things?

Answer: No.

Question: Okay. Did [the police officer] tell you to say those things?

Answer: No.

Question: What about [the social worker]?

Answer: No.

Question: Who told – what about the things that you were telling [the social worker], can you tell me how do you know those things?

Answer: It came from my mind.

[50] After this testimony, the trial judge ruled V.B.’s second statement was admissible under s. 715.1 of the Criminal Code and gave reasons that I will refer to later.

[51] After the trial judge ruled the second statement admissible, V.B.’s examination-in-chief continued. V.B. continued to avoid answering questions about exactly what the games with her father involved. She continued to say the games made her uncomfortable, that she and her friends did the things that her dad told them to, and that he told them to do “things that I didn’t like”, but she would not say what the games were.

[52] The Crown attorney then asked her to write down on a piece of paper “what happened that made you feel uncomfortable?” After V.B. had written something, the Crown attorney coaxed her to put down her head and read what she had written. She read “he told me to touch him in his private part and my friends too.” After this she became more forthcoming. She went on to say that sometimes her dad was wearing clothes and sometimes he wasn’t, that this would happen sometimes in the bedroom and sometimes in the living room, that she saw what her friends had to do. She identified her friends as M.J., C.V. and sometimes J.L. She confirmed that she knew what a boy’s private part was, what the name for it was, and where it was located. On a diagram she placed an X that correctly identified the anatomical location of a boy’s penis.

[53] The cross-examination of V.B. focused on the preparation of the activity book. V.B. verified that it was all written by the social worker and that when she said something the social worker would write it down right away. V.B. said she learned the words “uncomfortable”, “abuse” and “private part” from the social worker. At trial she spelled “abuse” correctly but could not say what it meant.

[54] V.B. also agreed that she had had a few opportunities to look at her second video statement, that she understood the questions that were asked, and that the police officer and the social worker had asked her questions before the recorder was turned on. She explained what a secret was and confirmed that she told the social worker “my dad told me to keep this secret and not tell anybody about it.”

(iv) Evidence of the appellant

[55] In examination-in-chief, the appellant admitted he knew the girls, and they would sometimes come over to the apartment to play with V.B., but he denied ever touching any of the girls inappropriately. He described an incident at his daughter’s birthday party where a dispute arose over a Barbie doll that led him to discipline the girls. He said he sometimes had problems with the girls misbehaving when they visited, and if they did, he would kick them out. The defence pointed to his disciplining the girls as motivation for the girls to fabricate the allegations. The appellant also testified that the birthday party was the one and only time all four girls were ever together at his apartment.

[56] The appellant denied any knowledge of the thousands of pieces of pornography that were on his computer. He testified that his brother-in-law and a young man he called “Mark Evins”, along with 10 other young men, had access to his computer and were responsible for the pornographic images.

[57] The appellant claimed he had an alibi for April 30, 2002, when the computer had been used to access child pornography. The appellant testified he had travelled by train to visit his mother on April 30, 2002. After police investigation of the appellant’s alibi claim, the Crown led evidence of a Via Rail employee that the appellant had travelled on May 1, not April 30, 2002.

[58] In cross-examination, the appellant became angry and combative with the Crown attorney. He agreed with the Crown attorney that all four of the girls had been at his apartment together on occasions other than the birthday party, but said this was only before his wife left, not after. He denied that V.B. came to visit him prior to her birthday party, or that the girls visited his apartment prior to the birthday party. He said that after the birthday party in 2001, one or two of the girls might come over at a time to play with V.B., but never J.L. He denied that any of the girls ever slept over. He also disputed the suggestion that he was always the only adult when they came over, suggesting that his brother-in-law was often there and that a number of other men would be in and out to use his computer for a fee. He denied ever inviting the girls to sit on his lap and touch his penis, or touching them inappropriately.

(3) The Trial Judge’s Reasons in Context

(i) Reasons regarding the appellant’s testimony

[59] No objection is or could be taken to the sufficiency of the trial judge’s reasons for rejecting the appellant’s testimony. The trial judge provided a detailed explanation for finding him to be a “complete liar”.

[60] The trial judge concluded that the Crown had established the falsity of the appellant’s alibi beyond a reasonable doubt and this seriously impacted his credibility.

[61] Quite apart from the failed claim of alibi, the trial judge noted that none of the people who the appellant claimed had been in his apartment and used his computer were called to testify. There was no evidence that was “even slightly convincing that the brother-in-law continued to live at the…apartment”. The trial judge found that there was no evidence that a man named “Mark Evins” used the computer. In fact, “Mark Evins” was a pseudonym that the appellant used in his computer chats with children, the trial judge concluded. The basis of that conclusion, the trial judge explained, was a handwritten note that was “particularly striking”. The trial judge stated that “Mark Evins” and the 10 other young men the appellant claimed had used his computer were “part of a systemic plan by [the appellant] to disguise his unlawful activities.”

[62] There was evidence that “objectively linked [the appellant] to the computer”. There were pictures personal to him and his family. Photographs of the appellant’s daughter on his computer showed her, at about age 6, in various suggestive poses, naked or partially clothed. The trial judge found this objective evidence undermined the appellant’s denial of the sexual offenses involving his daughter and emphasized that these photographs confirmed “his prurient interest in his own daughter”.

[63] There was also a picture of the appellant’s son “wearing clothing, which allowed his genitals to be exposed.” The trial judge did not attempt to interpret this picture and used it only to conclude it linked the appellant to the other pictures on the computer.

[64] The trial judge explained that another reason for disbelieving the appellant was his demeanour while testifying. The trial judge described how the appellant became “progressively more evasive and argumentative” during cross-examination. He “became increasingly irritated, agitated and aggressive” and “more desperate and more creative…His efforts to extricate himself were obvious and not worthy of belief.” At one point the appellant had accused the Crown attorney of lying.

[65] In summary, the trial judge stated he did not believe the appellant’s evidence as it applied to any issue of substance in this case. The trial judge’s careful and detailed reasons more than adequately serve the purpose of informing the appellant why his testimony denying any inappropriate behaviour with the young girls was not believed and did not give rise to a reasonable doubt as to his guilt.

[66] Having rejected the appellants’ evidence, the trial judge instructed himself on the principles of R v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, and stated that he “must then consider the case against him”.

[67] The trial judge’s reasons as a whole must be considered with this context in mind.

(ii) Reasons for credibility findings and summary of the evidence

[68] The appellant argues the trial judge’s summary of the girls’ “evidence in common” reflects a misapprehension of the evidence in that it fails to take into account the differences in the girls’ testimony. He does not, however, take issue with the trial judge’s similar fact ruling. Rather, he submits that the trial judge’s misapprehension of the evidence impacted his analysis of the probative value of the similar fact evidence.

[69] This argument is without merit.

[70] Courts have long recognized the increased difficulty in assessing the credibility of children as compared to adults. As the Supreme Court of Canada explained in R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at p. 54, although a child’s testimony must not be subject to a lower standard of proof than an adult’s:

[A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult…While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

[71] Every person testifying in court is a unique individual and her credibility and evidence must be assessed with regard to criteria appropriate to her mental development, understanding, and ability to communicate: see R. v. W.(R.), at p. 134. When evidence is given pertaining to events that occurred in childhood, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying”: R. v. W.(R.), at p. 134.

[72] The trial judge recognized these principles. He said,

The evidence of very young witnesses is almost always difficult to follow in a direct way. I appreciate that there was upwards of a year to a year and a half between the last assaults and the police interviews… [and later] I consider the essence of the children’s testimony to have been consistent and the acts described by them were very similar, if not identical. [Emphasis added.]

[73] The transcript excerpts make apparent that the similarities in the girls’ evidence were obvious and many, and for the most part directly corroborative of each other in that the girls each witnessed the appellant’s behaviour with the others.

[74] The excerpts show how hesitant and ill at ease the girls were during the interviews. The interviewers, while taking care to avoid leading, often posed a second or even third question while the child remained silent. This must be kept in mind in understanding the children’s eventual responses.

[75] It is apparent that the girls tended to talk about general patterns of behaviour and the interviewers faced considerable challenges in encouraging them to describe specific events. Much of what the appellant sees as inconsistency may be traced to a failure to discern when the girls are talking generally and when they are describing specific events on particular occasions.

[76] An apt example is the appellant’s submission that the trial judge’s finding that M.J. had been inveigled to touch the appellant’s penis on “several occasions” reflects a misapprehension of the evidence. The appellant submits that M.J. testified she touched the appellant’s penis only once. It is true she provided a detailed description of only one particular occasion where she touched the appellant. She told of an occasion when the appellant wanted her to rub his penis, she did so, and afterwards washed her hands with soap. Her testimony however refers to other incidents when she did so and she speaks about the touching happening regularly. Her evidence amply supports the trial judge’s inference that this occurred on other occasions. Moreover, direct testimony of both V.B. and J.L. corroborated M.J.’s general testimony.

[77] The appellant is correct about the detail that M.J. did not testify that the appellant touched her private parts. However, direct testimony from the other girls supported this finding.

[78] In any case, the appellant’s touching of the girls’ private parts was not an essential element of the offences for which he was convicted. The Crown’s position was that all three charges were made out not by the fact that he had touched their private parts with his hands, but that he had touched their hands with his private parts. The Crown attorney made this clear during the course of the trial on two occasions in responding to the trial judge’s direct questions about the factual basis for the various counts.

[79] What is key is that each of the girls provided clear, specific and corroborated testimony that the appellant made the girls touch his penis. This was all the Crown had to prove to secure convictions on the charges.

[80] In any event, I am not persuaded that the trial judge misapprehended the evidence about the appellant touching M.J.’s private parts. In his similar fact ruling, he did not include the appellant’s touching of the girls’ private parts in his list of the similar facts they alleged.

[81] The trial judge’s reasons show he was alive to the differences in the girls’ evidence. Immediately before the passage the appellant most criticizes, the trial judge remarked that their evidence did not always fit with one another and that they were less than firm about many details in cross-examination. He highlighted many of the differences. V.B. said she was sometimes clothed and sometimes naked when these events occurred, while [J.L.] and M.J. said they were always clothed. The appellant sometimes wore pants and sometimes was exposed when these incidents occurred. The trial judge observed that “the girls’ evidence does not dovetail at all times”.

[82] Looking at the trial judge’s reasons as a whole, it is clear that he kept in mind the Supreme Court’s guidance in R. v. B.(G.) and R. v. W.(R.) that contradictions in a child’s testimony relating to peripheral details do not necessarily undermine their credibility as they might for an adult. It is necessary to take into account the witness’ mental development, understanding, and ability to communicate.

[83] In my view, the appellant seeks to make entirely too much of the trial judge’s use of the phrase “their evidence in common”. The girls’ testimony taken together supports the trial judge’s general conclusion that “the essence of the children’s testimony” was consistent and “the acts described by them were very similar, if not identical”.

[84] I do not accept that the trial judge misapprehended the evidence in any material respect.

(iii) Reasons for concluding V.B.’s evidence was not tainted by the social worker

[85] The appellant’s main submission is that the trial judge did not explain why he accepted V.B.’s evidence in the face of considerable evidence that clearly established the potential that V.B.’s evidence was tainted by the social worker. He points to the evidence that:

• The social worker had met regularly with V.B. over a period of months and discussed with her what had taken place with her father.

• Everything written in the activity book about what V.B. said was written by the social worker, not by V.B.

• The social worker attended the second police interview and did most of the initial questioning of V.B.

• The social worker read portions of the activity book to V.B. before the interview began.

• When V.B. was not forthcoming at the beginning of the second interview, the social worker read from the activity book.

[86] The appellant submits that the following passage from the activity book suggests the social worker did not record what V.B. said accurately. He contends that a child of V.B.’s age would be unfamiliar with the words “sexual abuse” and “uncomfortable” as used in this passage from the activity book:

We got treats for doing the sexual abuse. We would listen to what my dad said. My daddy made me uncomfortable when he touched me at the private, when he touched me under my clothes. Every time I went to visit my dad he made me uncomfortable. We got treats for touching my dad at the private, sometimes on top of his clothes, sometimes under his clothes.

[87] The appellant submits that there was considerable evidence of the potential that V.B.’s testimony could have been tainted by the social worker. He submits the trial judge did not deal with this evidence and, in effect, ignored the question of the social worker’s influence on V.B. He submits that the trial judge simply said he found V.B.’s second statement to be “compelling and consistent with the events having occurred” and concluded, without explanation, that there was no evidence of influence by the social worker or any indication of such influence.

[88] The appellant argues that V.B.’s statement being “consistent with the events having occurred” is not a reason for believing it. This reasoning, he says, shows the trial judge must have misapprehended the evidence in order to conclude there was no evidence of influence.

[89] I agree with the appellant’s submission that where there is clear and considerable evidence of the potential that a witness may have been tainted such as exists in this case, the trial judge must explain why he or she accepts the testimony of the witness. That said, in this case the trial judge provided several sound reasons why he accepted the evidence of V.B in the face of this evidence.

[90] The trial judge’s reasons for accepting V.B.’s testimony are brief, and to properly understand them it is necessary to consider them in the context of the whole of his reasons and what transpired at trial. As the court said in R. v. Gagnon, at para. 19: “appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error.”

[91] The trial judge delivered detailed reasons in his ruling on the Crown’s s. 715.1 application to admit V.B.’s statement. Those reasons must be considered together with his reasons for judgment. In those reasons, the trial judge commented that after V.B. had disclosed nothing during her first interview on May 5, 2002, “the [Children’s Aid Society] had referred V.B. to a social worker who saw her frequently over the intervening months.” He noted that “[t]he worker utilized a book in which she recorded the details of V.B.’s life and circumstances.” He recounted that it was the social worker who “…contacted [the police] and arrangements were made for V.B. to be brought to the station for another video interview” and that “[t]he results this time was much more helpful to the Crown in that V.B. remembered and discussed several instances of sexual abuse involving herself alone or with her friends in various combinations with her father being the assailant.” The trial judge noted that V.B. testified “that she remembered the occasion and that she answered the questions truthfully” and adopted the videotape interview.

[92] The trial judge set out the defence arguments that the videotape statement should not be admitted. The defence argued that the second statement had not been made within a reasonable time, that the first interview had negated the second, and that the second was probably highly influenced by the social worker.

[93] In regard to the reasonable time argument, the trial judge noted that considering that the alleged perpetrator was her father and that she apparently had been told to tell no one, “it was hardly surprising a child of such tender years would not have come forward earlier”. Responding to the defence’s second argument, he added that “her inability to cooperate at the first interview indicates that she was not emotionally able to deal with these difficult issues when first confronted by them.”

[94] In regard to the defence’s third argument, the trial judge noted that “[t]he authorities discussed the intervention of third parties and their effect on the veracity of such statements. This is a question of weight and not admissibility.”

[95] He ruled that the second statement would be admitted and that the influence of the intervening social worker was a question of weight not admissibility. He also ruled that the “first videotape was relevant to the question of the weight to be given to the second videotape” and admitted it into evidence as well “to be used as considered appropriate by defense counsel.”

[96] During V.B.’s testimony the trial judge “expressed some concern that V.B. could have been influenced by the number of interviews with the social worker.” He commented to counsel that “the social worker had not been called as a witness”. Crown counsel reminded him “that there is no requirement on the Crown to call each and every witness that might be called in a case.”

[97] In his final reasons, the trial judge offered several succinct reasons for accepting the testimony of V.B. despite the evidence indicating the potential she had been influenced by the social worker.

[98] First, the trial judge explained that “V.B.’s testimony [was] corroborated by the testimony of the other children”. In fact, V.B. had described the same actions and context as had M.J. and J.L. – the appellant would have the girls rub his penis with their hands, most often while he was seated before the computer.

[99] In weighing the similar fact evidence of M.J. and J.L. in assessing V.B.’s testimony, the trial judge noted there was no evidence that V.B. had access to the recorded interviews of the other children or was told what they had to say, or that the children colluded in any way. Clearly he was concerned that the social worker might have been a conduit between the other girls and V.B. But as he observed, neither side had called the social worker.

[100] In point of fact there was no evidence at trial that the social worker had counselled the other children or even met them. There was no evidence from the social worker about her interaction with V.B. The only evidence in the record was what V.B. had said in the video statement and at trial: that what the social worker had read from the activity book was what she had told the social worker.

[101] It seems to me that the trial judge’s statement that there was “no evidence” of influence by the social worker was justified. There was considerable evidence of the potential for influence, but no direct evidence that V.B. had actually been influenced.

[102] Second, the trial judge found there was objective confirmation of the appellant’s interest in his daughter. He referred to the photographs of V.B. on the appellant’s computer taken when she was six showing her in various suggestive poses naked or partially clothed. He said these confirmed “his prurient interest in his own daughter”.

[103] Third, the trial judge accepted V.B.’s testimony at trial as reinforced by the photographs and corroborated by the other girls. He said he found her testimony at trial “to be truthful and reliable”. His remark that a reason for believing what she said in her second statement was that it was “compelling and consistent with the events having occurred” simply means the statement was consistent with testimony he otherwise accepted, that the events occurred.

[104] Fourth, the trial judge explained that V.B.’s first interview provided no reason to detract from her credibility in any way. He said “There are many reasons why a child of tender years might choose to support a parent regardless of circumstances.” He saw no need to speculate about why V.B. did not implicate her father in the first interview.

[105] When his brief reasons are considered in the proper context, the trial judge provided an adequate explanation of why he accepted V.B.’s testimony in the second statement despite the evidence about the social worker’s involvement. The only evidence at trial was that the social worker had accurately recorded what V.B. had told her. V.B.’s statement was consistent with her testimony at trial, which he believed. It was supported by the direct testimony of the other girls, the similar fact evidence, and the photographs of V.B. in the nude. There was no need to explain what motivated her first statement.

(iv) Reasons for accepting the girls’ evidence

[106] The appellant also submitted that the trial judge provided no real reasoning for rejecting the defence’s contention that the girls had colluded.

[107] When the record at trial is considered, however, it is immediately apparent that there was no evidence whatsoever that the girls colluded. M.J. had moved away and J.L. testified she no longer played with V.B. The trial judge did say that the “assertion that the girls testified out of spite, or colluded to falsely accuse [the appellant]” was “simply not supported by the evidence.” In his ruling on the Crown’s similar fact application he said “I find no credible evidence that establishes that the victims colluded in formulating their evidence, or were involved in a plot to falsely accuse [the appellant]”. He need not have said anything more.

[108] The appellant criticizes the trial judge’s remark that he rejected the possibility of collusion, fabrication and collaboration among the complainants because:

The motives suggested for such fabrication do not ring true. Such an effort on their part would have required a sophistication and venality far beyond their years….None of them had the guile or experience to ever conceive of such a scheme.

[109] The appellant also pointed to the trial judge’s remarks that “The truth shone through [the girls’] testimony. They exhibited pluck and intelligence and did their best in the circumstances”, that the girls’ evidence was “compelling and highly probative”, and that he “was convinced of the truthfulness of [the girls’] evidence.”

[110] The appellant criticized these remarks as devoid of legal reasoning. The criticism appears to have some force if the remarks are considered in isolation.

[111] When, however, the remarks are considered in the context of the reasons and the trial process as a whole, their meaning is readily apparent. The trivial disciplining of the girls by the appellant did not provide a credible motive for fabricating false allegations. If the girls had colluded to tell a false story they would have simply told it. The defence theory required not only a colluded story but feigned reluctance to tell it and tortured discomfort in telling it. The concoction and carrying out of such a scheme was inconsistent with the girls’ demeanour in giving their evidence.

[112] In assessing credibility, the trial judge was entitled to give his impression of the young witnesses. The trial judge found the girls’ demeanour to support his finding that they were credible witnesses. Review of the videotapes and the transcripts supports his observation about their demeanour. He had already concluded that the theory of collusion the appellant put forward at trial was “simply not supported by the evidence”.

(v) The trial judge’s conclusion

[113] The trial judge instructed himself on the approach to assessing credibility mandated by the Supreme Court in its decision R. v. W.(D.). He said that “nothing in [the appellant’s] evidence caused me to have a reasonable doubt about his guilt” and concluded that the Crown had proved its case beyond a reasonable doubt. Earlier, I reviewed the trial judge’s ample and detailed reasons for disbelieving the appellant’s evidence.

[114] The trial judge concluded by stating he was satisfied beyond a reasonable doubt the appellant was guilty of the sexual offences charged. His reasons exhibit no error. His conclusion regarding the pornography charges is not raised in this appeal.

D. Additional issues

[115] The Crown concedes that the sexual interference convictions ought to be stayed pursuant to R. v. Kineapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, as they arise from the same conduct as the sexual assault convictions. The three sexual interference convictions in relation to V.B., M.J. and J.L. are stayed.

[116] The only submission on sentence advanced on behalf of the appellant was that, if his appeal was successful, the finding he was a dangerous offender would have to be revisited. I would refuse leave to appeal sentence.

E. Conclusion

[117] In rejecting the appellant’s submissions about the sufficiency of the trial judge’s reasons I keep in mind what Binnie J. said at para. 26 of Sheppard, “The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself”.

[118] I would conclude that the trial judge’s reasons, considered as a whole in the context of the evidence and what transpired at trial, are adequate to justify and explain the result.

[119] The appellant knows full well why he was found guilty. The trial judge did not believe him but found him to be a complete liar. The trial judge believed the evidence of each of the girls that the appellant caused them to touch his penis. His denial did not give rise to a reasonable doubt.

[120] I would order the sexual interference convictions be stayed and dismiss the remainder of the appeal.

“R.G. Juriansz J.A.”

“I agree David Watt J.A.”

“I agree Gloria Epstein J.A.”

Released: April 29, 2013

[1] The trial judge says “[C.V.]” here, but from the entirety of his reasons, in context, it is clear he misspoke, and meant J.L. He found the appellant not guilty of offences against C.V.