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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. O.M., 2014 ONCA 503

DATE: 20140704

DOCKET: C54107

Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

O.M.

Appellant

Brian Snell, for the appellant

Stacey D. Young, for the respondent

Heard: March 5, 2014

On appeal from the convictions entered on June 8, 2010 by Justice W. Brian Trafford of the Superior Court of Justice, sitting without a jury.

Cronk J.A.:

A. introduction

[1] The appellant, O.M., was charged on a multi-count indictment with a series of historical sexual assaults and related offences involving his three daughters, T.P, L.W., and A.S., and assault simpliciter charges regarding A.S. The incidents were alleged to have occurred when T.P. was 10 or 11-years old, L.W. was 13-years old, and A.S. was approximately 15-years old, on occasions when they were visiting the appellant or, in the case of A.S., when she was briefly living with him and his common-law wife, D.R.

[2] In June 2010, following a trial by judge alone, the appellant was convicted of three counts of sexual assault (all three complainants), two counts of sexual interference (T.P. and L.W.), and one count of sexual exploitation and two counts of assault simpliciter (A.S.). On September 23, 2010, he was sentenced to 42 months in jail.

[3] The appellant appeals his convictions on numerous grounds.

B. facts

[4] The appellant is the biological father of the complainants, each of whom was born to a different mother. The complainants lived with their respective mothers in childhood, separate and apart from the appellant. When they were each about 8 to 10 years of age, they began to spend time with their father.

[5] By the time of trial, T.P. was 16 years of age. She testified about four incidents of sexual assault by the appellant that she said occurred when she was 10 or 11-years old and visiting her father and D.R. T.P. said that, on each occasion, she awoke from sleep to find the appellant touching or attempting to touch her vagina, either directly or over her clothing.

[6] L.W. was 24-years old by the time of trial. In her evidence, she recounted one instance of sexual assault by the appellant that she said had occurred in 1998 when she visited him in Windsor, Ontario, for her 13th birthday. She said that, during this visit, she was awakened from sleep by the appellant touching her vagina with one or two fingers.

[7] A.S. was 20-years old when she testified. She described a sexual assault arising out of an incident in August 2005, when she was 15-years old and living with the appellant and D.R. A.S. said that she was up late one night when the appellant arrived home and began making sexually inappropriate remarks to her. She felt uncomfortable and went to the bathroom. The appellant came into the bathroom and closed and locked the door behind him. He placed his hands on A.S. and started moving them up and down the sides of her breasts to her waist. He eventually put his hand into her pants, and attempted to digitally penetrate her vagina, over her underwear. A.S. was crying and repeatedly asked the appellant what he was doing. She eventually pushed the appellant away and left the bathroom.

[8] A.S. also said that the appellant physically abused her at various times between July 2005 and June 2006, when she was 15 and 16-years old. She testified that, on a number of occasions, the appellant became upset with her and slapped her, making her nose bleed. On one occasion in March 2006, the appellant grabbed her by the neck, put her in a chokehold, and punched her in the face and head. A.S. also said that in June 2006, in a separate incident, the appellant assaulted her with a baseball bat.

[9] The appellant testified. He denied that he sexually assaulted any of the complainants. With respect to A.S.’s physical assault allegations, he admitted that he once hit A.S. in the face, but said that she suffered no injuries. He claimed that he never struck A.S. on any other occasion.

[10] The appellant’s common-law wife, D.R., also testified. Much of her evidence confirmed the appellant’s denials of any unlawful conduct in relation to his daughters. D.R. figured prominently in T.P. and A.S.’s narrative of events. According to T.P., D.R. returned home at the end of one of the assaultive incidents involving T.P., participated in two of the assaultive incidents by allegedly intervening in support of T.P. and, on another occasion, permitted the appellant to take T.P. to a hotel where one of the alleged sexual assaults occurred. A.S. testified that she complained to D.R. about the appellant’s sexual assault of her. Thus, on both T.P. and A.S.’s accounts, D.R. was aware of the appellant’s assaultive conduct. D.R., however, denied that she was aware of or had witnessed, participated in, or been told of any of the assaultive incidents.

C. trial judge’s decision

[11] The Crown brought a similar act application at the outset of trial. For reasons I will discuss later, the trial judge dismissed the application. His ruling on this application is not at issue on this appeal.

[12] As a result of his ruling on the similar act application, the trial judge undertook detailed and separate reviews of the evidence of each complainant. He found that their descriptions of the essential nature of the assaults they claimed to have suffered were “more or less consistent” (T.P.) or “substantially consistent” (A.S. and L.W.) in their police statements and in their testimony at the appellant’s preliminary inquiry and at trial, and that the frailties in their evidence did not significantly detract from the substance of their accounts of the offences of which the appellant was convicted.

[13] The trial judge considered, and rejected, the appellant’s evidence regarding the events at issue, specifically, his denials of the assaultive incidents. He also rejected D.R.’s evidence where it confirmed the appellant’s denial of the complainants’ allegations.

[14] In his reasons, the trial judge averted to the Crown’s burden of proof, referenced the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 concerning reasonable doubt, and those set out in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134 governing the assessment of children’s testimony, and reviewed other factors relevant to the credibility and reliability of each of the witnesses. He ultimately held that the Crown had met its burden of proof to the requisite criminal standard and that the whole of the evidence did not give rise to a reasonable doubt regarding the appellant’s culpability for the crimes of which he was convicted.

D. issues

[15] The appellant mounts a multi-faceted attack on the trial judgment. Broadly stated, he principally argues that the trial judge erred:

(1) in his approach to the evidence at trial, in several respects;

(2) in his treatment of certain of the evidence concerning the alleged sexual assault of L.W.;

(3) in his assessment of A.S.’s credibility, by ignoring his own self-direction arising from Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, 136 D.L.R. (3d) 89; and

(4) by finding that the Crown had established a lack of motive by the complainants to fabricate.

E. analysis

(1) Trial Judge’s Approach to the Evidence

[16] The appellant’s overarching contention is that the trial judge’s assessment of the evidence is infected by what he terms a “Gostick error”. In R. v. F.(J.) (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1, at para. 90, this court summarized the decision in R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.) in these terms:

In [Gostick] … this court warned against an approach to the evidence which bases credibility decisions on demeanour, approaches the evidence with a harsher standard of scrutiny for the defence than for the Crown witnesses and which accepts the complainants’ evidence as true, then proceeds to discredit the contrary evidence. [Citations omitted.]

[17] The appellant maintains that each of these errors is manifest in this case. As set out in his factum, he submits that:

Rather than focusing on whether there was a reasonable doubt, the trial judge set out to decide whom to believe. He believed the complainants – and thereby discredited the defence evidence for that reason alone, while minimizing or ignoring inconsistencies, improbabilities and gaps in the complainants’ evidence.

[18] I would reject this submission.

[19] At the outset, I emphasize that the trial judge’s appreciation of the evidence and his credibility and reliability findings attract significant deference from this court. Absent palpable and overriding error, there is no basis for appellate intervention with the trial judge’s rulings on these issues: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20, citing H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; R. v. D.T., 2014 ONCA 44, at paras. 76 and 80; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. The consideration of the appellant’s challenges to the trial judge’s assessment of the evidence and his factual findings must proceed with this deferential standard of review at the forefront.

(a) Treatment of Frailties in the Complainants’ Evidence

[20] Relying on Gostick, the appellant argues that the trial judge erred by ignoring, minimizing or improperly discounting inconsistencies, improbabilities and gaps in the complainants’ evidence identified by the defence at trial.

[21] I disagree. In my view, the trial judge’s reasons indicate that he was alert to the major weaknesses in the testimony of each complainant and took specific account of them when assessing their credibility and reliability.

[22] It is unnecessary to recite the many deficiencies in the complainants’ evidence emphasized by the appellant at trial. The important point is that when his reasons are read as a whole, it is clear that the trial judge appreciated the frailties in the complainants’ evidence relied on by the defence, specifically and carefully considered many of those frailties, and assigned to them the weight that he regarded as appropriate.

[23] For example, with respect to T.P., the trial judge identified numerous inconsistencies in her testimony regarding the assaultive incidents that she described. He also addressed aspects of her evidence that he viewed as “inherently implausible”. In each instance, he explained why he did not regard these inconsistencies and implausibilities as detracting from T.P.’s overall credibility and reliability concerning the core of her abuse allegations. Similarly, in respect of A.S. and L.W., the trial judge considered many of the inconsistencies relied on by the defence and provided specific reasons why, in his view, they were of only minor or peripheral significance.

[24] The trial judge’s careful approach to the assessment of A.S.’s credibility and reliability is particularly noteworthy. A.S. alleged that her father engaged in a course of physical abuse of her between July 2005 and June 2006 – ultimately involving an assault with a baseball bat in June 2006 – and that he sexually assaulted her in August 2005. The trial judge noted the evidence of A.S.’s history of emotional difficulties, including several failed suicide attempts and suicidal ideation. He was also mindful that no expert evidence was called at trial concerning the impact, if any, of A.S.’s emotional condition on her ability to observe, recollect and narrate the circumstances of an alleged offence.

[25] In these circumstances, the trial judge decided to be “exceptionally cautious” in his assessment of A.S.’s credibility and reliability in determining the appellant’s guilt or innocence. As I will discuss further in these reasons, he therefore refused to accept her testimony about the assaults she alleged, as proof beyond a reasonable doubt of the alleged incidents, absent confirmatory evidence.

[26] This approach undoubtedly favoured the defence. So, too, did the trial judge’s decision to treat each of the physical assaults alleged by A.S. as a separate assault requiring proof by the Crown beyond a reasonable doubt, notwithstanding that A.S. alleged, in effect, one continuing course of physically assaultive conduct by the appellant for about one year. As the trial judge noted, this was “a more rigorous standard [of evaluation] than the defendant was entitled to” on the physical assault charges.

[27] These measures reveal the trial judge’s careful approach to the assessment of A.S.’s credibility and reliability. The trial judge’s wary approach to A.S.’s evidence undermines the suggestion that he ignored, minimized or improperly discounted the frailties in her testimony. Indeed, it suggests exactly the opposite.

[28] Moreover, the trial judge was not obliged to address each piece of evidence and every alleged inconsistency in the complainants’ evidence posited by the defence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 32 and 64; Dinardo, at para. 30; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17. That he did not assign the same significance to the deficiencies in the complainants’ evidence urged by the defence does not mean that his treatment of them was flawed.

[29] I note that the appellant also argues that the trial judge erred by addressing the deficiencies in each complainant’s evidence in a “piece-meal” fashion, rather than considering whether, viewed as a whole, they gave rise to a reasonable doubt.

[30] Again, I disagree. On several occasions, the trial judge expressly stated that he had assessed the vulnerabilities in the complainants’ evidence both individually and collectively, and in the context of the evidence as a whole. His reasons afford no basis to conclude that he did not do precisely what he said he had done.

[31] I would reject this ground of appeal.

(b) Demeanour

[32] I also do not accept the appellant’s argument, advanced primarily in his factum, that the trial judge placed improper or disproportionate reliance on the complainants’ demeanour while testifying.

[33] The trial judge regarded T.P.’s and A.S.’s tearful demeanour and, in T.P.’s case, her voice tone, at various points during their testimony as relevant to the assessment of their credibility and the reliability of their evidence on the points at issue. Although less particularized in his reasons, I accept that in evaluating her credibility, the trial judge also had regard to L.W.’s demeanour while testifying.

[34] It is well-established that testimonial demeanour is a proper consideration in the evaluation of a witness’s credibility: see e.g., R. v. J.J.B., 2013 ONCA 268, 305 O.A.C. 201, at para. 112. In this case, the trial judge provided cogent reasons as to why he viewed the demeanour of each witness, at specific points in their testimony, as significant. Moreover, demeanour was only one of many factors considered by him in his assessment of each complainant’s credibility and reliability. (In the case of T.P., it was one of eight specific factors listed by the trial judge; in the case of A.S., it was one of 10 factors with respect to the sexual assault she alleged; and, in L.W.’s, case it was one of 11 factors).

[35] In these circumstances, in my opinion, it cannot fairly be said that the trial judge over-emphasized the complainants’ demeanour, or treated it as a controlling factor in his assessment of their credibility and reliability.

(c) Alleged Reversal of Burden of Proof and W.(D.) Error

[36] The appellant next argues that the trial judge erred by assessing the complainants’ credibility as if the appellant’s guilt had already been established, thereby reversing the burden of proof, undermining the reasonable doubt standard, and leaving no room for the defence evidence to raise a reasonable doubt.

[37] In my view, the trial judge’s reasons do not support this claim. The reasons indicate that the trial judge was alert throughout to the reasonable doubt standard and the principles articulated in W.(D.)regarding the presumption of innocence and the Crown’s burden to prove its case beyond a reasonable doubt. At several points in his reasons, the trial judge expressly cautioned himself on these important principles and noted that they applied to his assessment of the evidence as a whole. He also explicitly recognized that a verdict of guilt cannot be based on a credibility contest, that is, on a choice between the defence evidence and that of the Crown, and that a more stringent level of scrutiny cannot be applied to the defence evidence than that applied to the Crown’s evidence.

[38] After identifying these governing principles, he summarized his approach to the evidence in this fashion, at p. 39:

[T]he presumption of innocence and the onus on the Crown to prove its case beyond a reasonable doubt must be applied, in letter and spirit, thereby giving practical recognition to their importance in a free and democratic society, like ours. This is the approach that I have taken in arriving at judgment in this case.

[39] The appellant argues that, having correctly identified the Crown’s burden of proof and the W.(D.) principles, the trial judge erred by rejecting, as false, the appellant’s denials of the alleged assaults because of the strength of the Crown’s case. He points, for example, to the trial judge’s statement in his analysis of the evidence concerning the sexual assault of A.S., at p. 110, that: “I reject [the appellant’s] denial as false and otherwise not sufficiently reliable to raise a reasonable doubt that he sexually assaulted [A.S.] because of the strength of the case for the Crown.”

[40] Based on this and similar statements by the trial judge, the appellant submits that the trial judge misconstrued this court’s decision in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, 218 O.A.C. 37, leave to appeal to S.C.C. dismissed, [2007] S.C.C.A. No. 69 and the Supreme Court’s decision in R. v. R.E.M. According to the appellant, those cases concern only the sufficiency of a trial judge’s reasons and do not stand for the proposition that an accused’s evidence can be rejected because a complainant is believed or because the Crown mounts a strong prosecution.

[41] I would reject this submission as framed.

[42] It is elementary that a complainant’s credibility cannot be established by assuming the accused’s guilt. Nor can an accused’s evidence be rejected simply because the evidence of a complainant is accepted. W.(D.) precludes this “either/or” approach to the assessment of credibility. Instead, under the third step of W.(D.), the trial judge must ask whether, although she may not believe the accused’s evidence, a reasonable doubt arises on the whole of the evidence that she does accept.

[43] Contrary to the appellant’s submission, the trial judge in this case clearly appreciated and properly applied these critical principles. Throughout his reasons, he frequently reminded himself of the Crown’s burden, directed himself to the whole of the evidence to determine whether it gave rise to a reasonable doubt, and confirmed that he had taken account of the evidence as a whole, including the appellant’s testimony, when determining whether the Crown had established the alleged offences beyond a reasonable doubt.

[44] For example, in connection with T.W.’s allegation of sexual assault, the trial judge rejected the appellant’s testimony denying the assault on two grounds: (1) he found that the appellant was not sufficiently credible to raise a reasonable doubt, “looking at the evidence as a whole”; and (2) because of the strength of the Crown’s case. The trial judge reached a similar conclusion concerning the appellant’s denial of the August 2005 sexual assault of A.S. With respect to this offence, in addition to his general consideration of the strength of the Crown’s case, the trial judge identified 10 specific factors that led him to conclude that the appellant’s denial of the sexual assault of A.S. was “false and otherwise…not sufficiently reliable to raise a reasonable doubt”.

[45] The trial judge did not err by factoring the strength of the Crown’s case into his credibility and reliability analyses and by relying on it as one basis for rejecting the appellant’s denials of the alleged assaults. This court has held that an accused’s evidence may be rejected based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence of the prosecution’s witnesses. In R. v. J.J.R.D., at para. 53, Doherty J.A. said:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

See also R. v. Windibank, 2012 ONCA 237, [2012] O.J. No. 1604, at para. 6; R. v. D.R., 2012 ONCA 253, at paras. 4 and 5; and R. v. D.T., at para. 71.

[46] The recent decision of the Supreme Court in Vuradinis instructive on this point. In Vuradin, as here, the appellant argued that the trial judge erred by first finding the complainant credible, and then using that finding to reject the conflicting evidence of the appellant, thereby effectively “choosing” the Crown’s evidence over that of the defence: Vuradinat para. 24. The appellant acknowledges that this argument mirrors his own in this case.

[47] In rejecting this argument in Vuradin, the Supreme Court concluded, at para. 25, that the trial judge in that case had merely articulated general principles of law that might be used in assessing the evidence of the accused. The court elaborated, at paras. 27-28:

In the result, the trial judge rejected the appellant’s testimony. In Boucher, Charron J. (dissenting in part) stated that when a trial judge rejects an accused’s testimony, “it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind” (para. 59). Similarly, in R.E.M., McLachlin C.J. stated that “the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt” (para. 66).

Here, the appellant was not believed. The Crown’s case was considered with the appellant’s denial in mind, and the trial judge concluded, as he was entitled to do, that his denial did not raise a reasonable doubt.

See also the recent decision of this court in R. v. J.W., 2014 ONCA 322.

[48] In this case, the trial judge provided clear and detailed reasons for accepting the evidence of each complainant and rejecting the appellant’s denials of wrongdoing. He specifically considered whether the evidence as a whole gave rise to a reasonable doubt and held that it did not. Indeed, the necessity to consider whether the whole of the evidence gave rise to a reasonable doubt is a recurring theme in the trial judge’s reasons.

[49] In my view, the trial judge did not err in his appreciation and application of the burden of proof and the W.(D.) principles. To the contrary. His reasons reveal that the Crown’s burden and the W.(D.) requirements permeated his entire approach to the evaluation of the evidence.

(d) Assessment of the Credibility and Reliability of Child Witnesses

[50] The appellant submits that the trial judge further erred by failing to take proper account of the principles governing the assessment of the reliability of the evidence of child witnesses. Again, I disagree.

[51] As I have said, the trial judge was alert to the approach to the assessment of children’s evidence mandated by the Supreme Court of Canada in R. v. W.(R.). At p. 42 of his reasons, he noted the Supreme Court’s direction in R. v. W.(R.), at p. 134, that when the evidence of an adult witness concerns 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.” He also observed, at p. 42, that: “[t]he credibility of any witness, including children, is to be considered in the context of the witness’ capability, mental or otherwise, in the circumstances of the case.” This accords with McLachlin J.’s caution in R. v. W.(R.), at p. 144, quoted by the trial judge at p. 42:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.

See also R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30. The trial judge expressly indicated that he approached the assessment of the complainants’ credibility in accordance with these principles.

[52] It is true that the trial judge did not specifically mention the reliability of child witnesses when discussing the directions afforded by R. v. W.(R.). However, based on his reasons, it is clear that he understood that contradictions in a child’s testimony should not be accorded the same effect as similar contradictions in an adult’s testimony. Rather, the evidence of child witnesses must be approached with common sense. The trial judge stated, at pp. 39-40:

The evidence of children is not to be treated as evidence that is inherently unreliable or to be treated with special caution. It may be incorrect to apply to them the same standards one would expect of an adult in similar circumstances.

[53] These statements derive from R. v. W.(R.). In particular, at pp. 40-41, the trial judge quoted the following passages from R. v. W.(R.), at pp. 142-143:

The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. … The repeal of provisions creating a legal requirement that children’s evidence be corroborated does not prevent the judge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of the particular case, it will have fallen into error.

As Wilson J. emphasized in B.(G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

[54] These excerpts from R. v. W.(R.) are concerned, in part, with the reliability of the evidence of child witnesses. The trial judge’s reliance on these excerpts confirms his appreciation of the principles governing the assessment of the reliability, as well as the credibility, of child witnesses. When evaluating the complainants’ testimony, the trial judge focused on both their credibility and reliability. That he critically assessed the reliability of the complainants’ evidence is manifest, for example, in his finding that while the appellant physically assaulted A.S. in June 2006, the assault did not involve the use of a weapon (a baseball bat), as A.S. had alleged.

[55] In short, I see no merit to this ground of appeal.

(2) Other Grounds of Appeal

[56] The appellant raises several other grounds of appeal, many of which, at heart, also concern the trial judge’s approach to the evidence. I will address these grounds in turn.

(a) Treatment of Evidence Concerning Sexual Assault of L.W.

[57] Apart from his more generalized attack on the trial judge’s approach to the evidence, discussed above, the appellant argues that the trial judge erred in three specific respects in his treatment of the evidence regarding L.W.’s sexual assault allegation. He complains that the trial judge erred: (1) by interpreting the appellant's remarks during a conversation with L.W. as an admission of guilt; (2) by relying on inadmissible hearsay evidence to anchor his conclusion that the appellant sexually assaulted L.W.; and (3) by using his disbelief of the appellant’s denial of a conversation with A.S.’s mother (T.S.), about the sexual assault of L.W. as a basis for convicting the appellant of this offence.

(i) Finding of an Admission of Guilt

[58] L.W. testified at trial that, years after her own experiences of abuse and after her sister A.S. alleged abuse by the appellant, she had a conversation with the appellant during which she confronted him regarding what he had done to her (L.W.). She claimed that he responded to this confrontation by saying that “he didn’t remember doing that”, “he [knew] that [she was] not lying”, “if [she] said he did it, then he did it, but he just doesn’t remember doing that” and “he’s really sorry if he did”, and “[she had] no reason to lie”. L.W. elaborated that the appellant apologized to her, but “[made] it clear that he did not remember” (the “Confrontation”).

[59] At trial, the appellant denied that the Confrontation had ever occurred.

[60] The trial judge accepted L.W.’s account of the Confrontation and rejected, as false, the appellant’s denial of it. He also concluded that the nature of the appellant’s responses to L.W. during the Confrontation constituted an admission by him of his sexual assault of her.

[61] Before this court, the appellant does not challenge the trial judge’s finding that the Confrontation occurred, or the nature of the remarks said to have been made by him during the Confrontation. Rather, he submits that the trial judge’s interpretation of his remarks during the Confrontation is unreasonable.

[62] The appellant points, especially, to the conditional nature of the statements attributed to him, and to L.W.’s evidence that he told her that he had no memory of his alleged sexual assault of her. The appellant says that, even on L.W.’s version of the Confrontation, he clearly did not accept responsibility for or confess to a sexual assault. The trial judge’s finding to the contrary, therefore, was unreasonable.

[63] I would not accede to this argument. The trial judge accepted, and the appellant does not contest, the content of his statements during the Confrontation. On their face, some of the words uttered by the appellant can be interpreted as an acknowledgement by him of the sexual assault alleged by L.W. – “if [she] said he did it, then he did it”, [L.W.] had “no reason to lie” and he knew that L.W. was not lying. On the evidence accepted by the trial judge, the appellant did not respond to the Confrontation by denying that he had committed the offence against L.W., nor did he question the veracity of her accusation. Rather, he acknowledged that L.W. was not lying and accepted that if she said a sexual assault had occurred, it did occur. He then apologized to L.W.

[64] In my view, it was open to the trial judge to conclude, based on the evidence he accepted regarding the circumstances of the Confrontation and the nature of the statements made by the appellant during the Confrontation, that the appellant’s words constituted an admission by him of the sexual assault that L.W. alleged.

(ii) Alleged Improper Reliance on Hearsay Evidence

[65] A.S. testified that in early 2004, when L.W. was about to give birth to her daughter, she spoke to L.W. about whether L.W. would permit the appellant to visit her child. According to A.S., L.W. replied, “that would never happen because she didn’t want things to happen to her daughter that happened to her.”

[66] L.W. testified after A.S. She indicated that the appellant had never seen his granddaughter and she did not remember his ever asking to see her. L.W. was not asked, and did not say, that she prevented the appellant from seeing her daughter because of the appellant’s prior sexual abuse of her.

[67] The appellant testified that he made arrangements in 2004 to see L.W.’s daughter. He claimed that when he attended at the appointed time to meet L.W. and his granddaughter, L.W. “wasn’t there”, and that this was not the only time that this happened.

[68] The appellant submits that the trial judge erred by using A.S.’s account of her alleged discussion with L.W. as confirmatory evidence that the appellant sexually assaulted L.W. He maintains that A.S.’s evidence of L.W.’s alleged statement to her was inadmissible hearsay that could not be used as positive evidence of the appellant’s guilt. Further, since L.W. testified and did not confirm A.S.’s version of the discussion, A.S.’s evidence on this issue was also unreliable.

[69] I would not accept these submissions.

[70] First, I do not agree that A.S.’s account of L.W.’s alleged statement to her was inadmissible hearsay evidence. In my view, this evidence was admissible under the “state of mind” exception to the rule against hearsay.

[71] The trial judge regarded A.S.’s evidence of L.W.’s alleged statement to her as some circumstantial evidence of L.W.’s state of mind, at the time of her daughter’s birth, concerning the alleged sexual assault. The “state of mind” or “present intention” exception to the rule against hearsay “permits the admission into evidence of statements of intent or of other mental states for the truth of their contents”: R. v. Starr, 2000 SCC 40, at para. 169. To be admissible under the exception, the state of mind must be relevant, and the statement must be made in a natural manner and not under circumstances of suspicion: Starr at para. 168; R. v. T.J., 2014 ONCA 321, at para. 33. Although the Supreme Court has clarified aspects of the rule against hearsay in post-Starr cases, the traditional exceptions to the rule remain presumptively intact: see R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 34.

[72] In this case, there was no evidence that L.W.’s alleged statement to A.S. was not made in a natural manner, or that it was made in circumstances of suspicion. The evidence of the alleged statement was relevant since it was probative of L.W.’s state of mind when her daughter was born concerning the appellant’s past assaultive conduct. As a result, in my view, the prerequisites for invocation of the “state of mind” exception to the rule against hearsay were satisfied and the evidence was admissible under this exception.

[73] In any event, and more importantly, the trial judge regarded L.W.’s failure to arrange for her daughter to meet the appellant – the child’s grandfather – as circumstantial evidence of L.W.’s state of mind regarding the sexual assault that was consistent with the fact of the assault. I agree. Apart from L.W.’s alleged statement to A.S., the evidence of L.W.’s conduct denying the appellant access to his granddaughter – conduct that the appellant himself confirmed – was consistent with L.W.’s claim that she had been sexually assaulted by the appellant and with the fact of that assault.

[74] It was this factor, and not L.W.’s alleged statement to A.S., that the trial judge focused on in his recitation of the many considerations that led him to conclude that the appellant had sexually assaulted L.W. He summarized these considerations as follows, at pp. 55-56 of his reasons:

Thus, looking at the evidence as a whole, including the testimony of the [appellant], I am satisfied beyond a reasonable doubt that the [appellant] touched [L.W.’s] vagina on her thirteenth (13th) birthday in December 1998. [L.W.] was a straightforward, careful and credible witness. She has, consistent with the alleged sexual assault, not permitted her father to be near her daughter. [L.W.] does not have a motive to fabricate the alleged sexual assault. She did not collude with [A.S.] and [T.P.], deliberately or intentionally, and her conversations with them have not significantly affected her evidence about the alleged sexual assault. She did not actively seek to complain to the police, but cooperated with them because she believed her father’s conduct was wrong and wanted to help him. The conversations with her father about his own molestation as a child are striking, in that they were unlikely fabricated by [L.W.] and were falsely denied by the [appellant], and included an admission that he sexually assaulted her. The [appellant] also falsely denied the conversation with [A.S.’s mother] relating to the rumours that he sexually abused [L.W.] because, in my view, of the substance of the rumours. The prior inconsistent statements of [L.W.] and her inability to recall certain aspects of the alleged sexual assault are not important to me. The history of [L.W.’s] complaints does not detract from her credibility. The [appellant] is not sufficiently credible to raise a reasonable doubt that he sexually assaulted [L.W.], looking at the evidence as a whole. [Emphasis added.]

[75] Several of these factors are particularly powerful. Most notable, on the trial judge’s findings, was the fact of the appellant’s admission during the Confrontation of his sexual assault of L.W., discussed above. Also telling was the evidence of T.S. (A.S.’s mother), that she confronted the appellant concerning rumours of him sexually touching L.W. The appellant denied the fact of this conversation with T.S., a denial that the trial judge concluded was false and a transparent effort by the appellant to distance himself from the assault of L.W.

[76] When the trial judge’s reasons are read as a whole, it is apparent that it was not A.S.’s account of her discussion with L.W. that the trial judge regarded as significant in assessing the appellant’s culpability for the sexual assault of L.W. Rather, it was the fact that the appellant never met L.W.’s daughter – his own granddaughter – as the appellant himself confirmed in his testimony – together with the numerous other considerations identified by the trial judge that grounded the appellant’s conviction for this offence. In my opinion, viewed in their entirety, these considerations overwhelmingly supported the appellant’s conviction for the sexual assault of L.W.

(iii) Alleged Improper Reliance on Disbelief of Appellant

[77] The appellant also contends that the trial judge erred by using his disbelief of the appellant’s denial of a conversation with T.S. (A.S.’s mother) concerning the sexual assault of L.W. as circumstantial evidence of his guilt, contrary to the principles enunciated by this court in R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545, leave to appeal to S.C.C. dismissed, [1998] S.C.C.A. No. 450. Once again, in my view, the trial judge’s reasons belie this contention.

[78] It is well-established that, absent independent evidence of concoction, a trier of fact may not infer concoction from the disbelief of an accused’s testimony and use that finding of concoction as evidence of guilt: Coutts at para. 15. As the Coutts court warned, this type of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond a reasonable doubt.

[79] In this case, as I have already mentioned, T.S. testified that she spoke to the appellant about rumours that he had sexually touched L.W. According to T.S., the appellant brushed off the allegations and said that L.W.’s mother was making things up. At trial, the appellant denied that this conversation with T.S. had ever occurred.

[80] On appeal, the appellant maintains that the trial judge misused this evidence by finding not only that the disputed conversation between T.S. and the appellant occurred, but also that the appellant falsely denied that the conversation had taken place in a “transparent attempt to distance himself from [L.W.]” and “because the subject matter of the conversation with [T.S.] was the alleged sexual abuse of [L.W.], even though he denied the rumours during their conversation” (at pp. 50 and 54).

[81] I disagree. In my view, the trial judge’s reasons reveal no impermissible use of T.S.’s testimony regarding her discussion with the appellant. It was obviously open to the trial judge to accept T.S.’s evidence that this discussion took place and to reject the appellant’s denial of it. It was in the specific context of assessing the appellant’s credibility that the trial judge considered, and accepted, T.S.’s evidence of the fact of her conversation with the appellant concerning his rumoured abuse of L.W. This is made clear by the trial judge’s opening comments on this issue, when he stated at pp. 53-54:

Eleventh, the [appellant] testified that he did not sexually assault [L.W.] on her thirteenth (13th) birthday and, further, that he was not in Windsor in December 1998 because of his busy work schedule.

Respectfully, I reject his evidence as false and, in my view, he is not sufficiently credible to raise a reasonable doubt that he sexually assaulted [L.W.], looking at the evidence as a whole.

[82] These introductory comments, and the trial judge’s ensuing discussion of the frailty of the evidence supporting the appellant’s claim of a work-related alibi on the day of L.W.’s 13th birthday, confirm that the trial judge used T.S.’s evidence of her discussion with the appellant, not as circumstantial evidence of the appellant’s guilt, but, rather, as evidence relevant to his assessment of the appellant’s credibility.

[83] It was in this context that the trial judge found that the appellant had lied about whether the discussion with T.S. took place. He accepted that the discussion occurred and disbelieved the appellant’s denial of it. He did not proceed from this disbelief to a guilty verdict. Having assessed the appellant’s credibility, he accepted L.W.’s evidence, based on numerous factors, quoted above. I see no reversible error in the trial judge’s treatment of this evidence.

(b) Alleged Collusion

[84] The appellant next argues that the trial judge erred by concluding that collusion did not affect the reliability of the complainants’ testimony. He submits that the trial judge failed to properly consider the possibility that the complainants’ evidence at trial, consciously or unconsciously, was coloured by their admitted pre-trial conversations regarding their assault allegations and that the potential for collusion among the complainants could raise a reasonable doubt.

[85] As I have said, at the outset of trial, the Crown brought an application seeking to have the complainants’ testimony admitted as similar act evidence. The trial judge dismissed the application after the complainants had testified on the basis that the Crown, at the time of the application, had failed to establish that the complainants did not collude with one another concerning their allegations. In contrast, in his reasons for judgment, the trial judge concluded that the possibility of collusion by the complainants was not a significant factor in his assessment of their credibility and reliability.

[86] The appellant submits that the trial judge’s finding concerning collusion in his similar act ruling is tantamount to a holding that collusion in fact occurred among the complainants, and that this holding is inconsistent with his findings regarding collusion in his reasons for judgment. The appellant points, especially, to the trial judge’s statement in his similar act ruling that: “I am not satisfied on a balance of probabilities that the Crown has proven [that the complainants] did not collude with one another.” The appellant says that this statement logically amounts to an affirmative finding of collusion.

[87] The appellant further submits that there was evidence at trial that unconscious collusion might be in play in respect of the testimony of each of the three complainants. He argues, for example, that the trial judge erred by rejecting the possibility of unconscious collusion by the complainant L.W. on the basis that he had already concluded that the appellant was guilty of the crimes alleged.

[88] I would reject these submissions for several reasons.

[89] First, the trial judge found that no conscious or deliberate collusion occurred. I did not understand the appellant to challenge this finding.

[90] Second, contrary to the appellant’s contention, I see no inconsistency between the trial judge’s analysis with respect to collusion in his reasons for judgment and his consideration of collusion in his similar act ruling.

[91] The trial judge’s similar act ruling focuses on whether the Crown, at the time of the similar act application, had demonstrated that the proffered evidence of similar acts was not tainted by collusion. In holding that the Crown had failed to establish, on a balance of probabilities and at that stage of the trial, that unconscious collusion did not take place, the trial judge did not go on to find that collusion, in fact, had occurred. His ruling simply reflects his finding that, at the time of the similar act application, the Crown had failed to demonstrate that no possibility of collusion existed.

[92] Moreover, outside of the similar act context, the Supreme Court has held that evidence of collusion is relevant insofar as it goes to the reliability of the evidence in question: R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 SCR 474. In Burke, Sopinka J. wrote, at para. 45, that a trier of fact must determine:

[W]hat weight, if any, is to be given to evidence that is alleged to have been concocted by means of collusion or collaboration. Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose. [Emphasis in original.]

See also R. v. F.(J.) (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.).

[93] The trial judge in this case did not ignore the defence claim of collusion. He was obliged to consider any evidence bearing on the reliability of the complainants’ evidence, including the possibility of collusion. Having heard all the evidence, he addressed this claim head on. Ultimately, he accepted the Crown’s argument that the circumstances surrounding the sexual assaults described by the complainants were materially different, thus rendering the possibility of collusion remote.

[94] This finding is supported by the evidentiary record. As the trial judge noted, unconscious colouring of each complainant’s testimony was unlikely where, as here, specific, discrete assaultive acts were alleged. Having considered the possibility of conscious or unconscious collusion by the complainants, the trial judge was entitled to reject that possibility as remote.

(c) Trial Judge’s Self-Direction Concerning Vetrovec v. The Queen

[95] The appellant advances a specific challenge to the trial judge’s approach to the assessment of A.S.’s evidence. He submits that, having instructed himself to decline to accept A.S.’s testimony as proof beyond a reasonable doubt of any of the alleged offences, absent confirmatory evidence, the trial judge then ignored this self-direction when convicting the appellant of sexual assault and sexual exploitation in relation to A.S.

[96] I would not accede to this argument. First, and importantly, this was not a case where A.S. was of unsavoury character such that a ‘Vetrovec-like’ warning was required as a matter of law. That said, given the apparent weaknesses in aspects of her testimony, which the trial judge recognized, prudence mandated careful evaluation of her credibility and reliability.

[97] Second, as I attempted to emphasize earlier in these reasons, the trial judge in fact followed the cautionary course to the assessment of A.S.’s evidence that he had voluntarily charted. At the outset of his consideration of her testimony, he noted the evidence of A.S.’s past emotional and mental health-related problems and, in light of that evidence, indicated that he had determined to be “exceptionally cautious in [his] assessment of her credibility and the reliability of her evidence”. I have earlier alluded to his refusal, in the absence of confirmatory evidence, to accept A.S.’s testimony as proof beyond a reasonable doubt of the offences she alleged.

[98] That the trial judge did employ this cautionary approach is apparent from his analysis of the evidence concerning A.S.’s physical assault allegations. The trial judge undertook a detailed review of the evidence pertaining to each of the physical assaults alleged by A.S., including of the appellant’s evidence concerning the relevant incidents. His reasons reveal that, in the absence of evidence confirmatory of the reliability of the material aspects of A.S.’s testimony, he rejected her version of events regarding these assaults. For example, for reasons he explained, the trial judge accepted A.S.’s evidence that the appellant physically assaulted her in June 2006. However, he expressly held that in the absence of confirmatory evidence, he was not satisfied beyond a reasonable doubt that this assault involved the use of a weapon – a baseball bat – as A.S. had alleged. He also rejected aspects of A.S.’s testimony about other alleged physical assaults by the appellant, where proof of the assaults rested exclusively on A.S.’s evidence.

[99] Third, the trial judge turned to A.S.’s allegation of sexual assault only after conducting an extensive and separate review of each of her physical assault allegations. By that point in his analysis, the trial judge had already accepted, based on independent confirmatory evidence, many of the details of A.S.’s testimony.

[100] The trial judge went on to find that parts of the evidence of T.S. (A.S.’s mother) were both confirmatory of elements of A.S.’s testimony and “truthful reliable evidence”. This included T.S.’s evidence of A.S.’s disclosure to her, in July 2008, of the appellant’s sexual abuse of her and the circumstances surrounding A.S.’s subsequent decision to disclose this abuse to the police. The trial judge also found, contrary to D.R.’s evidence, that A.S. complained to D.R. of the appellant’s sexual abuse shortly after it occurred.

[101] In total, the trial judge identified 10 separate considerations that drove him to accept A.S.’s testimony regarding the sexual assault. In so doing, he provided clear reasons for his rejection of the appellant’s denial of the sexual assault and for his conclusion that A.S.’s testimony concerning this assault was both credible and reliable.

[102] Finally, I agree with the Crown’s submission that the trial judge was entitled to accept A.S.’s evidence about the sexual assault, even in connection with aspects of that assault that were not otherwise independently confirmed, if he was satisfied on the totality of the evidence that A.S. was telling the truth. For reasons he explained, he was so satisfied.

[103] In all these circumstances, I see no basis for appellate intervention with the trial judge’s conclusion on this issue.

(d) Finding of Lack of Motive to Fabricate

[104] The appellant’s last ground of appeal concerns his submission that the trial judge erred by finding that the Crown had established the complainants’ lack of a motive to fabricate. In my view, this submission must also fail.

[105] It was the theory of the defence at trial that the complainants had fabricated their allegations against the appellant. In her closing submissions, defence counsel at trial argued that each of the complainants had a motive to fabricate – e.g. that L.W. and A.S. did not have good relationships with their father and both had asked him for various types of financial and other assistance, which he refused.

[106] In his reasons, the trial judge considered and responded to the defence position on this issue. With respect to L.W., he commented, at p. 45, “in my view, this is a case where the Crown has proven an absence of a motive of [L.W.] to fabricate the alleged sexual assault.” He made similar findings concerning T.P.’s lack of a motive to fabricate her allegations against the appellant (at p. 58) and A.S.’s lack of a motive to fabricate her description of her disclosure to D.R. of the appellant’s sexual assault of her (at pp. 86-87). In other instances, however, as with some of A.S.’s allegations of physical abuse by the appellant, the trial judge concluded that the Crown had not proven an absence of a motive by A.S. to fabricate (at p. 85).

[107] I accept that the absence of evidence of a demonstrated motive to fabricate must be distinguished from affirmative proof of no motive to fabricate. As this court noted in R. v. L.(L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44, citing R. v. B.(R.W.) (1993), 24 B.C.A.C. 1 (C.A.), at para. 28: “it does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth.”

[108] In this case, in my opinion, there is no basis to conclude that the trial judge confused the absence of evidence of a motive to fabricate with the absence of such a motive. In his reasons, the trial judge expressly addressed the evidence relied on by the defence in support of the claim that each of the complainants had a motive to fabricate their allegations, rejected the suggestion of fabrication, and provided reasons for so doing. At no point did he suggest that because no motive to fabricate had been demonstrated, the complainants must be telling the truth. Rather, the absence of an established motive to fabricate was merely one factor that he considered when assessing each complainant’s credibility. The trial judge did not err by proceeding in this fashion. In R. v. Batte, (2000) 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449, at para. 121, this court confirmed that: “[t]he presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.”

[109] It was open to the trial judge to find an absence of apparent motive by the complainants to fabricate. His reasons provide no support for the conclusion that he regarded this finding as conclusive of whether the complainants were telling the truth. To the contrary. His reasons make it abundantly clear that he considered numerous factors, including the defence evidence, in assessing the complainants’ credibility.

[110] I would, therefore, reject this ground of appeal.

F. DISPOSITION

[111] This trial involved multiple complainants and numerous allegations of historical sexual and physical abuse. The trial judge’s reasons are comprehensive and considered. In arriving at his factual findings and verdicts, he took account of the whole of the evidence, including the appellant’s denials of the assaultive incidents involving his daughters, the parties’ positions and the issues raised by them, and the Crown’s burden of proof. In my view, his credibility and reliability findings attract deference from this court, as does his overall evaluation of the evidence.

[112] Accordingly, for the reasons given, I would dismiss the appeal.

Released:

“JUL 4 2014” “E.A. Cronk J.A.”

“EAC” “I agree G.J. Epstein J.A.”

“I agree M.L. Benotto J.A.”