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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. R.M., 2014 ONCA 785

DATE: 20141107

DOCKET: C57526

Cronk, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.M.

Appellant

Frank Addario and Rebecca McConchie, for the appellant

Avene Derwa, for the respondent

Heard: September 12, 2014

On appeal from the convictions entered on June 5, 2013, by Justice N. Jane Wilson of the Ontario Court of Justice.

Gillese J.A.:

OVERVIEW

[1] The appellant was convicted, after a judge-alone trial, of one count of sexual assault and two counts of sexual exploitation of the complainant, his foster child. He was sentenced to 18 months’ imprisonment and a one-year term of probation.

[2] The appellant testified at the trial and denied ever having sexual contact with the complainant. At trial, the defence suggested that the complainant made up the allegations because she was infatuated with the appellant and fantasized about being his partner.

[3] The appellant’s appeal against conviction rests on his contention that the trial judge made a number of errors in her treatment of both his testimony and that of the complainant.

[4] In my view, the trial judge made none of the alleged errors. Consequently, I would dismiss the appeal.

BACKGROUND IN BRIEF

[5] In June of 2006, the complainant and her younger sister moved into the home of the appellant and his partner, CM. The complainant was 13 years old at the time of the move. She had had a very difficult childhood before the move and, as a result, was immature and naïve for her age. She felt happy and secure in her new home and enjoyed spending time with the first real family that she had ever had.

[6] The complainant alleged that in early May 2010, the appellant began to touch her sexually. She was 17 years old at that time. She said that the first incident of sexual touching took place on the day before Mother’s Day 2010, when the appellant touched her breasts and implied that he had an erection. After that incident, she testified that the appellant would fondle her breasts and vagina on a weekly basis, usually on the couch in the living room of the family home or in the appellant’s truck. The appellant was teaching the complainant how to drive. According to the complainant, the appellant touched her sexually many times when they were in his truck.

[7] The complainant turned 18 on August 5, 2010. On August 18, 2010, she and the appellant had intercourse. Although the complainant testified as to acts of intercourse and oral sex that took place after her 18^th birthday, those acts fell outside the scope of the Information.

[8] According to the complainant, the appellant ended the sexual relationship with her in January of 2011. He then began ignoring and avoiding her. In response, she started “going crazy” and acting out (“odd behaviour”). The complainant’s odd behaviour during this period included such things as sitting in the appellant’s truck, very early in the morning, waiting for him. This occurred even on days on which the appellant was not giving the complainant a ride to work. As well, the complainant would spend hours alone in the bush during this period. Her odd behaviour further included a change in her interactions with CM. Where the complainant and CM had once had a close relationship, during the time in which the complainant was exhibiting odd behaviour, their relationship deteriorated significantly and they fought on a daily basis.

[9] In late November 2011, the complainant told her close friends, ET and SR, about her sexual relationship with the appellant. She also sent them text messages in which she discussed what had happened. Although ET and SR encouraged the complainant to tell the police or someone else in a position of authority about the abuse, she refused because she did not want to lose her family.

[10] ET and SR disclosed the alleged abuse to the police on December 6, 2011.

[11] That evening, Officer Limlaw spoke with the complainant. She told him that in May 2010, while she was in the living room of the family home with the appellant, his hand touched her breast. Officer Limlaw testified that the complainant told him that when she woke up the next morning she wondered if the touching had been a dream. He also testified that the complainant told him that she had feelings for the appellant. Officer Limlaw understood her to mean sexual feelings. He further testified that the complainant refused to give a formal statement to the police. Officer Limlaw got the impression that the refusal was because the complainant did not want anything negative to happen to the appellant.

[12] The complainant, ET, SR, Officer Limlaw and Alicia Michaud, a worker with Family and Children’s Services in Renfrew County, testified at trial on behalf of the Crown. The text messages were admitted into evidence.

[13] The appellant also testified at trial. He denied that any touching of a sexual nature had taken place. As well, CM testified for the defence, saying that she never witnessed any sexual contact between the appellant and the complainant.

THE TRIAL DECISION

[14] The trial judge began the analytical part of her reasons for decision by identifying credibility as the key issue and noting that she needed to follow the principles laid down by the Supreme Court of Canada in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[15] The trial judge reviewed the appellant’s testimony in considerable detail before rejecting it. She then considered whether the appellant’s testimony, together with that of CM, raised a reasonable doubt as to his guilt. She found that it did not.

[16] Next, the trial judge considered the evidence as a whole and found that the Crown had met its burden, with the result that she was satisfied, beyond a reasonable doubt, of the appellant’s guilt.

[17] In reaching this conclusion, the trial judge gave lengthy reasons for accepting the complainant’s testimony, finding it both credible and reliable. She noted that the complainant’s evidence was not self-serving and that, despite the complainant’s “obvious naiveté” about sexual matters, she had described, in “considerable and accurate biological detail”, the various sex acts that had taken place. She also found that the complainant did exhibit the odd behaviour in 2011, about which the complainant had testified, and that the odd behaviour was consistent with the sexual relationship between the appellant and the complainant having ended. She further found that the complainant had not been shaken on cross-examination and that any inconsistencies in her testimony were peripheral or inconsequential.

THE ISSUES

[18] The appellant submits that the trial judge erred:

1. by reversing the burden of proof, when assessing his evidence;

2. by misapprehending his evidence regarding the complainant’s odd behaviour;

3. in finding that inadmissible and neutral evidence corroborated the complainant’s testimony; and

4. by misapprehending inconsistencies in the complainant’s evidence.

ANALYSIS

1. Did the trial judge reverse the burden of proof when assessing the appellant’s evidence?

[19] The appellant says that the trial judge rejected his evidence because she found his denials to be “simplistic, brief, and repetitive” and, for that reason, his evidence “did not satisfactorily answer the allegations”. The appellant submits that finding his evidence flawed because he was consistent in his denials and could not provide details of unremarkable events was legally erroneous and a failure to give effect to the presumption of innocence. The appellant further contends that the trial judge reversed the burden of proof by requiring him to provide an answer to the allegations when the legal burden was on the Crown to prove the allegations, not on him to disprove them.

[20] There are two branches to the appellant’s submission on this ground of appeal. I would accept neither.

Lack of Detail in the Appellant’s Testimony

[21] The first branch of the appellant’s argument is that the trial judge rejected his testimony because it lacked detail. He points to para. 160 of the trial judge’s reasons as support for this contention. Paragraph 160 reads as follows:

The Court rejects the evidence of [the appellant] with respect to the allegations for the following reasons:

1. His responses to the allegations were simplistic and often given before he understood the question. His responses to various allegations were styled similarly, in a brief fashion.

2. He gave evidence which was self-serving to the effect that the opportunity to commit the offence was not significant or non-existent. The Court refers to the above discussions with respect to his residence and the driving.

3. He denied and then minimized [the complainant’s] odd behaviour in the spring and fall of 2011.

[22] The appellant also points to the trial judge’s treatment of his testimony about Mother’s Day 2010, and says that she unfairly rejected his testimony due to a lack of detail. While I refer to this testimony as “Mother’s Day 2010”, it is worth bearing in mind that the first incident of sexual touching was alleged to have taken place the evening before Mother’s Day 2010, rather than on Mother’s Day 2010 itself.

[23] I do not accept that para. 160 shows that the trial judge rejected the appellant’s evidence because it lacked detail.

[24] Paragraph 160 is the concluding paragraph to the trial judge’s analysis of the appellant’s testimony. In it, the trial judge gives a brief summary of the three reasons that led her to reject the appellant’s testimony. It is true that in the first of the three reasons, the trial judge said that she found the appellant’s responses to be “simplistic” and often given before the questions were fully put to him. However, this seems to me to be a comment on the appellant’s demeanour. Certainly, on a plain reading of the first reason, it does not say that the trial judge rejected the appellant’s testimony because it lacked detail.

[25] However and in any event, the first reason does not stand alone. In para. 160, the trial judge gave three reasons for finding that the appellant’s testimony lacked credibility. The second reason was the self-serving nature of the appellant’s evidence, which minimized his opportunity to commit the offences. In this regard, the trial judge was unconvinced by the appellant’s testimony that he rarely had an opportunity to be alone with the complainant. At para. 139 of her reasons, the trial judge stated:

The Court rejects his evidence that he was not often alone in the house with [the complainant]. It appears patently clear that he was, and that sometimes that occurred in the living room, despite his very obvious (and unsuccessful) attempt to indicate otherwise during cross-examination.

[26] The third reason given by the trial judge for rejecting the appellant’s testimony relates to his minimization of the complainant’s odd behaviour in 2011. This matter is discussed more fully below in issue #2.

[27] Accordingly, it cannot fairly be said that para. 160 shows that the trial judge rejected the appellant’s testimony due to its lack of detail.

[28] I would add that although not expressly included in para. 160, a reading of the reasons as a whole reveals a further reason for the trial judge’s rejection of the appellant’s testimony, namely, that following a considered and reasoned analysis of the complainant’s testimony, she accepted it.

[29] I rely on para. 134 of the trial judge’s reasons, in particular, for this view. In para. 134, after acknowledging the need to examine the evidence in accordance with the framework laid down in W. (D.), the trial judge set out para. 53 of this court’s decision in R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252. In para. 53 of D. (J.J.R.), Doherty J.A., writing for the court, states:

The trial judge rejected totally the appellant’s denial because stacked beside [the complainant’s] evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. 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.

[30] I turn next to the appellant’s complaint that the trial judge unfairly rejected his testimony about Mother’s Day 2010 because it lacked detail.

[31] In para. 140 of her reasons, the trial judge stated that the appellant had testified “to the effect that he had a clear recollection of Mother’s Day 2010”. She then found that he did not have such a recollection.

[32] I agree that the trial judge overstated the appellant’s testimony when she said that he claimed to have a “clear recollection” of the day. When the appellant was asked if he could remember “in and around Mother’s Day 2010”, he responded, “I would say I would yes”.

[33] However, when para. 140 is read in context, I cannot agree that the trial judge placed undue weight on the lack of detail in the appellant’s recollection of Mother’s Day 2010. Instead, it is apparent that the trial judge rejected his testimony about the Mother’s Day 2010 incident because the appellant tried to suggest that he had no opportunity to commit the offence, and his vague testimony about the events on Mother’s Day 2010 did not allay her concerns in that regard.

[34] I will now deal briefly with R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), as the appellant relied on it for this ground of appeal. In my view, Norman does not assist the appellant. The facts and the trial judge’s treatment of the evidence in Norman are quite different from the present case.

[35] In Norman, the complainant alleged that she had been sexually assaulted at the age of thirteen, at a church corn roast. She claimed to have repressed her memories of the assault, only gradually remembering the incident some 15 years later, after extensive therapy.

[36] By the time of trial, the appellant had only a vague memory of the corn roast which had taken place 18 years earlier. He categorically denied that the assault had taken place. In addition, he denied ever having owned the clothes the complainant claimed he wore; led evidence from his doctor that, contrary to the complainant’s testimony, he did not have freckles on his penis nor had he ever been treated for a rash; demonstrated that prior to the date of the corn roast his hand had been disfigured by an amputation, which the complainant failed to mention despite describing his “large hands”; and led uncontradicted evidence that the car he owned at the time of the alleged assault was a different colour from that described by the complainant and her friend.

[37] The trial judge ignored some of the appellant’s evidence and rejected other parts of it, saying that it was inconsistent and selective. He also held the appellant and the complainant to different standards in their ability to recall long-ago events. He failed to appreciate that the appellant’s memories from what he claimed was an unremarkable event 18 years earlier were likely to be vague, and did not assess the appellant’s evidence in that light.

[38] Moreover, the trial judge failed to appreciate a significant aspect of the expert evidence on recovered memories, which was that witnesses with recovered memories honestly believe what they are saying, whether or not it is accurate.

[39] On appeal, this court overturned the conviction. It found that the trial judge erred in relying principally on the demeanour of the complainant and her friend without critically examining their evidence. “There was no attempt to reconcile inherent discrepancies in both of their testimonies or to resolve the significant contradictions between their evidence and that of the few independent witnesses” (p. 172).

[40] This court also criticized the trial judge’s treatment of the evidence, stating, at pp. 172-73, that he had “failed to give effect to the presumption of innocence”:

An innocent man is unlikely to have a detailed memory of distant uneventful occasions. Yet, unfortunately, the appellant’s inability to recall the minutiae of the corn roast appears to have been interpreted by the trial judge as “selective” recall. The appellant was ultimately called upon to justify his version of events, while his accusers’ inconsistencies were excused as being “insignificant when related to the charges”. Through this sort of reasoning, the trial judge effectively shifted the onus onto the accused to prove his innocence.

[41] In the present case, however, the trial took place some two years after the incidents in question, not 18 years afterwards as in Norman. And, there is nothing in the appellant’s testimony akin to that given by the appellant in Norman, in addition to his blanket denials. Moreover, as I have explained, the trial judge in this case did not reject the appellant’s testimony because of a lack of detail but for a combination of reasons, including his minimization of both his opportunity to commit the offences and the complainant’s odd behaviour.

[42] Furthermore, unlike in Norman, as discussed more fully below, the trial judge in this case addressed the inconsistencies in the complainant’s evidence. She did not hold the appellant and the complainant to different standards.

[43] For these reasons, I do not accept that the trial judge rejected the appellant’s testimony due to a lack of detail.

Alleged Reversal of the Burden of Proof

[44] The second branch of the appellant’s submission on this ground of appeal is that the trial judge reversed the burden of proof. In support of this submission, the appellant points to the words “did not satisfactorily answer the allegations” in para. 151 of the trial judge’s reasons. Paragraph 151 reads as follows:

The Court does not believe [the appellant] to the effect that he did not sexually assault [the complainant] during the relevant time. His answer to many of the questions, to the effect that “it never happened” did not satisfactorily answer the allegations, given their repetitive and generic nature. [Emphasis added.]

[45] The impugned words in para. 151 are part of one sentence in a 39-page judgment. It is trite law that a trial judge’s reasons are not to be dissected into small pieces and each piece examined in isolation. Rather, the reasons must be read as a whole: see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 204. When her reasons are read as a whole, it is apparent that the impugned words are the trial judge’s attempt to express why she did not find the appellant’s denials believable and do not constitute a reversal of the burden of proof.

[46] As previously indicated, the trial judge expressly directed herself to, and structured her analysis in accordance with, the W. (D.) principles. She gave cogent reasons for accepting the complainant’s evidence and rejecting that of the appellant. The trial judge also explicitly addressed whether the defence evidence as a whole raised a reasonable doubt. Further, she expressly considered whether, on the whole of the evidence, the Crown had proven the allegations beyond a reasonable doubt. In short, the reasons demonstrate that the trial judge was well aware that the burden of proof lay with the Crown and not the appellant.

[47] Accordingly, I would reject this ground of appeal.

2. Did the trial judge misapprehend the appellant’s evidence regarding the complainant’s odd behaviour?

[48] It will be recalled that one of the reasons given by the trial judge for rejecting the appellant’s evidence was her finding that he had “denied and then minimized [the complainant’s] odd behaviour in the spring and fall of 2011”.

[49] The appellant submits that he neither denied nor minimized the complainant’s odd behaviour in 2011, and that the trial judge misapprehended his evidence in so finding. He contends that the trial judge’s misapprehension of his evidence on this matter was central to her credibility findings and, in particular, to her rejection of his evidence. Because of this erroneous view of the substance of the appellant’s testimony about the complainant’s odd behaviour, the appellant maintains that the basis for the trial judge’s credibility findings is destroyed.

[50] I see nothing in this submission. The trial judge was in the best position to assess the appellant’s evidence on the matter of the complainant’s odd behaviour in 2011 and the findings she made were fully available on the record.

[51] While the appellant did acknowledge some of the complainant’s odd behaviour, it was open to the trial judge to find that he initially denied it. For example, when testifying in chief, the appellant described the changes in the complainant’s behaviour during the relevant time period as her becoming “a bit more argumentative” and not content. He denied noticing a change in the relationship between the complainant and CM, beginning in 2010, and when asked if he would ever characterize the complainant’s relationship with CM as weird, he responded “No never”.

[52] Further, it was fully open to the trial judge to find that even when the appellant did acknowledge the complainant’s odd behaviour, he minimized it. In paras. 155-56 of her reasons, the trial judge gives examples of this by reference to the appellant’s testimony about the intensity of the complainant’s attachment to him at the relevant time. To this, I would add two additional examples of the appellant minimizing the complainant’s odd behaviour.

[53] The first example relates to the complainant’s practice, during the relevant time period, of leaving the house and sitting in the appellant’s truck at around 5:30 a.m., even on days that she was not going to ride to work with him. In cross-examination, the appellant expressed the view that the strangeness of the complainant’s behaviour, on days when he was going to give her a ride to work, was that she didn’t just wait in the house with him and then walk to the truck together. And, on days when he was not going to drive her to work, the appellant said that the strangest aspect of her behaviour was not that she waited for him in the truck, but that she didn’t wait for him in the house.

[54] The second example relates to the complainant’s behaviour toward CM in the relevant time period. In response to the suggestion in cross-examination that during that time, the complainant “wasn’t getting along very well with [CM]”, the appellant replied “Well I don’t believe that”. When asked if the complainant was fighting more and more with CM and the relationship between them getting progressively more argumentative, he responded “I guess they have discussions”.

[55] Accordingly, as I have said, I see nothing in this ground of appeal.

3. Did the trial judge err in finding that inadmissible and neutral evidence corroborated the complainant’s testimony?

[56] The appellant submits that the trial judge made two further errors of law, both of which affected her assessment of the complainant’s credibility.

[57] First, the appellant contends that the trial judge used the out of court statements as corroboration for the complainant’s account of the Mother’s Day 2010 incident. In advancing this argument, he relies in particular on paras. 145 and 146 of the trial judge’s reasons. Those paragraphs read as follows:

[145] The disclosure was made to police by [ET] and [SR], without [the complainant’s] knowledge. The “Mother’s Day incident” was divulged to Officer Limlaw while the two were sitting in his cruiser on December 6. [The complainant] did not wish to give a statement.

[146] The Court accepts [the complainant’s] version of events with respect to this event. The other Crown witnesses corroborated [the complainant’s] testimony to varying degrees, and with respect to varying portions of it.

[58] The appellant says that the finding of corroboration referred to in para. 146 is a legal error because the complainant’s prior out of court statements could not, in law, be used to corroborate her trial testimony.

[59] Second, the appellant says that the fact the complainant was reluctant to disclose was neutral, because it was equally consistent with either the truth or falsity of her allegations. He submits that the trial judge erred by using the evidence of the other Crown witnesses confirming the complainant’s reluctance to disclose her allegations as evidence corroborating the complainant’s testimony.

[60] In my view, the impugned out of court statements were admissible. Furthermore, despite the trial judge’s use of the word “corroborate” in her reasons, she did not impermissibly use the out of court statements as corroborative of the complainant’s testimony.

Admission of the Out of Court Statements

[61] The appellant concedes that some of the complainant’s out of court statements were admitted as narrative. He complains, however, that the text messages were unnecessarily admitted because the trial judge did not need the content of the texts to understand how events had unfolded.

[62] I see no error in the admission of the out of court statements.

[63] Prior consistent statements are generally inadmissible. However, they may be admissible as part of the “narrative”. If so admitted, the out of court statements are not to be used for the truth of their contents, but to help the trier of fact understand how a complainant’s story was initially disclosed. While out of court statements cannot be used to confirm the truthfulness of the sworn allegations, narrative evidence may be used to show the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 36-37.

[64] Out of court statements may also be admitted to rebut an allegation of recent fabrication. Admission on the basis of this exception does not require that an allegation of recent fabrication has been expressly made. It is sufficient if the circumstances of the case reveal it to be the apparent position of the opposing party: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.

[65] In this case, the Crown called several witnesses and entered as an exhibit the text messages in which the complainant first disclosed the abuse to ET. The purpose of this evidence was to explain the narrative of the disclosure process. It should be noted that the text messages were admitted at trial on consent and that the trial Crown explicitly stated that the text messages were not being used as prior consistent statements.

[66] Further, the trial Crown was careful to not ask the other Crown witnesses about the content of their conversations with the complainant. It was defence counsel at trial who asked those witnesses about the content of those conversations because the defence wanted to rely on inconsistencies in the complainant’s out of court statements and text messages to undermine the complainant’s credibility.

[67] Given the apparent defence position that the complainant fabricated the allegations because she was infatuated with the appellant, the circumstances surrounding disclosure took on heightened importance. In any event, the out of court statements were admissible as part of the narrative about the disclosure process.

[68] Furthermore, when cross-examining the complainant at trial, defence counsel put to the complainant that she made up the allegations after Alicia Michaud told the complainant that her sister would be returning to the home of the appellant and CM but she would not. In light of this cross-examination, it may have been open to the Crown to rely on the out of court statements to show that the complainant had disclosed the allegations prior to that time – that is, to rebut a possible defence allegation of recent fabrication.

The Trial Judge’s Use of the Out of Court Statements

[69] I do not read para. 146 in the manner urged by the appellant. In my view, the trial judge did not use the out of court statements to corroborate the complainant’s account of the Mother’s Day incident, and para. 146 does not say as much.

[70] For convenience, para. 146 is set out again now.

[146] The Court accepts [the complainant’s] version of events with respect to this event. The other Crown witnesses corroborated [the complainant’s] testimony to varying degrees, and with respect to varying portions of it.

[71] I accept the appellant’s submission that in the first sentence of para. 146, when the trial judge says that she accepts the complainant’s “version of events”, she is referring to the complainant’s version of what took place during the Mother’s Day 2010 incident.

[72] However, I do not accept that in the second sentence of para. 146, the trial judge is saying that she was using the out of court statements to corroborate the complainant’s testimony about that incident. In the second sentence, there is no mention of the out of court statements. Rather, the trial judge says that “[t]he other Crown witnesses corroborated [the complainant’s] testimony” in varying degrees and on various points. It is in the following paragraph that the trial judge mentions the evidence of the complainant’s friends and Officer Limlaw about the complainant’s reluctance to disclose her allegations to the police.

[73] Clearly, the evidence of these witnesses could not corroborate the complainant’s testimony about the Mother’s Day incident. If the appellant is suggesting that the trial judge put their evidence to this use, I disagree.

[74] In Dinardo, the Supreme Court stated, at para. 37, that while prior consistent statements admitted as part of the narrative must not be used to confirm the truthfulness of an allegation, they may be used “for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility" (emphasis in original, citations omitted). Dinardo cites with approval the decision of this court in R. v. C. (G.), 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245, itself citing R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.), where it was noted that prior consistent statements may help triers of fact to understand “the sequence of events from the alleged offence to the prosecution so that they can understand the conduct of the complainant and assess her truthfulness” (Dinardo, at para. 38).

[75] The trial judge relied on the out of court statements for the limited purpose allowed by Dinardo – that is, as a part of the sequence of events so that she could understand the complainant’s conduct and assess her truthfulness. I understand the trial judge to mean, in the second sentence of para. 146, that the evidence given by the complainant’s friends and Officer Limlaw about the complainant’s attitude towards disclosure and conduct during the disclosure period was consistent with the complainant’s testimony that she was reluctant to disclose. Paragraphs 170-73 of the reasons make it clear that this is what the trial judge intended to express in the second sentence of para. 146.

[76] Paragraphs 170-73 read as follows:

[170] [The complainant] testified that she did not want to disclose, as to do so would not only affect [the appellant] and his reputation, but also would affect her status in the only family which she had known. Sadly, it seems that this fear has come true.

[171] [The complainant] was a credible witness, whose testimony was detailed and articulate. Her evidence was corroborated in varying degrees by the other Crown witnesses.

[172] [ET] and [SR] both spoke of their friendship with [the complainant], somewhat in contrast to the evidence presented by defence. Their testimony corroborated the fact that [the complainant] was reluctant to disclose the sexual allegations against [the appellant].

[173] Officer Limlaw confirmed [the complainant’s] disclosure with respect to the Mother’s Day incident. He also confirmed her refusal to provide a statement.

[77] I also disagree with the appellant’s submission that the trial judge used the neutral fact of the complainant’s reluctance to disclose for the impermissible purpose of corroborating her allegations.

[78] The defence had urged the trial judge to conclude that the complainant’s reluctance came about because she had fabricated her allegations. The Crown argued that the complainant’s reluctance was because she did not want to destroy her family life. The trial judge accepted the Crown’s argument and found that the complainant did not want to disclose what had happened because it would imperil the only family life she had ever known. In drawing this conclusion, the trial judge was permitted to use other witnesses’ evidence showing that the complainant had been reluctant to come forward, for the reasons discussed above.

[79] Having said this, I find problematic the trial judge’s use of the word “corroborate” in this part of her reasons. I would reiterate the caution that Pepall J.A. recently made, on behalf of this court, in R. v. B. (D), 2013 ONCA 578, 310 O.A.C. 294, at para. 38: in discussing prior consistent statements, judges must be cautious when using words such as “corroborate”, “confirm”, “bolster”, “strengthen” or “support” to ensure that they do not imply that the evidence is being used for an impermissible purpose.

[80] Nonetheless, I am satisfied that the trial judge did not err in her use of the out of court statements. Accordingly, I would not give effect to this ground of appeal.

4. Did the trial judge misapprehend inconsistencies in the complainant’s evidence?

[81] The appellant submits that the trial judge failed to grapple with important inconsistencies in the complainant’s evidence. Specifically, he contends that the trial judge failed to adequately address the inconsistencies between the complainant’s trial testimony and:

1. certain of the complainant’s statements to her friends, ET and SR;

2. Officer Limlaw’s account of the complainant’s discussion with him; and

3. her sworn statement to the police.

[82] As I will explain, I see no basis on which to interfere with the trial judge’s findings of credibility. She was alive to each of the areas of inconsistency and other alleged frailties in the complainant’s testimony raised in the defence submissions. She took them into account when assessing the complainant’s reliability and credibility. The trial judge provided an explanation for some and dismissed the others as being peripheral and not affecting the overall reliability of the complainant’s testimony.

[83] A trial judge’s findings on credibility are entitled to considerable deference by an appellate court. As this court said at para. 66 of R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466:

Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses’ credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events. [Citations omitted.]

[84] In R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11, the Supreme Court recently reiterated that credibility determinations by a trial judge attract a high degree of deference. It quoted from para. 26 of Dinardo, in which Charron J. explained:

Where a case turns largely on determinations of credibility, the sufficiency of reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.

The Complainant’s Statements to her Friends

[85] The complainant told her friends that she had sexual contact with the appellant, among other times, on Boxing Day and during family vacations. However, at trial, the complainant denied that sexual conduct took place at those times.

[86] The complainant also told ET that her sexual contact with the appellant ended in July[^1], whereas at trial she testified that it ended in January of 2011.

[87] The trial judge recognized that the complainant’s statements to her friends about sexual acts taking place on Boxing Day and in hotels during family vacations were inconsistent with her trial evidence. However, the trial judge found that this was “a peripheral matter within the context of the trial, and does not affect the overall reliability of [the complainant’s] evidence”. She stated that she would not place much weight on these inconsistencies.

[88] As for the complainant’s inconsistent reports of when the appellant ended the sexual relationship, the trial judge found that it was not sufficiently serious so as to affect the complainant’s reliability.

[89] It was open to the trial judge, having considered the inconsistencies in the complainant’s testimony, to find that they did not affect her assessment of the complainant’s credibility and reliability. I see no error in the trial judge’s treatment of these inconsistencies.

The Complainant’s Statement to Officer Limlaw

[90] At trial, Officer Limlaw testified that the complainant told him that the morning after the appellant first touched her breast, she awoke wondering whether the touching had just been a dream. He also testified that the complainant told him that she had “feelings” for the appellant, which Officer Limlaw took to mean sexual feelings. At trial, however, the complainant denied making the dream comment to Officer Limlaw and also denied telling him that she had sexual feelings for the appellant.

[91] The trial judge accepted Officer Limlaw’s testimony. The appellant submits that having accepted that evidence, the trial judge must have found that the complainant either lied or was mistaken when she testified at trial and that the trial judge should have considered this when assessing the complainant’s credibility.

[92] I see nothing in this submission.

[93] The trial judge was fully alive to the inconsistencies in question and gave cogent reasons for why those inconsistencies did not cause her to doubt the complainant’s credibility. At para. 192 of her reasons, the trial judge rejected the defence submission that the inconsistencies between the complainant’s trial testimony and the statements that Officer Limlaw attributed to her were “stunning”. She found that the inconsistencies arose from the complainant’s reluctance to give a statement to the police and her refusal to make complete disclosure at that time. The trial judge attributed the inconsistency in the complainant’s account of her feelings for the appellant to a difference in the way she viewed her feelings over time. It was open to the trial judge to reach this conclusion.

The Complainant’s Statement to the Police

[94] The complainant’s in-court testimony about the first time that she and the appellant had intercourse differed from her sworn police statement. Although the alleged intercourse fell outside the scope of the Information, the trial judge relied on the detail that the complainant gave when describing this event as bolstering the complainant’s credibility. The appellant says that the trial judge failed to address these inconsistencies and that such a failure was material to her credibility determination.

[95] When these inconsistencies were drawn to the complainant’s attention in cross-examination, she reacted with a profane outburst.

[96] The trial judge was aware of the inconsistencies and the change in the complainant’s demeanour when cross-examined about them. In her reasons, she noted that for the most part, the complainant presented as a “calm, articulate witness” but that she had become agitated during cross-examination and used profanity. The trial judge stated that the complainant’s outburst had to be assessed within the context of the trial and considering the fact that the complainant had testified over a period of four days. After observing that the outburst was brief and “certainly inappropriate”, the trial judge found that it did not negate the complainant’s reliability and credibility. That finding was open to her.

DISPOSITION

[97] Accordingly, I would dismiss the appeal.

Released: November 7, 2014 (“E.E.G.”)

“E.E. Gillese J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. M. Tulloch J.A.”

[^1]: ET believed that the complainant meant July 2011 but was unsure as she might have meant 2010.