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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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. K.J.W., 2015 ONCA 870

DATE: 20151211

DOCKET: C56870

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

And­­

K.J.W.

Appellant

Brian H. Greenspan and Naomi M. Lutes, for the appellant

David Lepofsky, for the respondent

Heard: June 11, 2015

On appeal from convictions entered by Justice Richard Gates of the Superior Court of Justice, dated December 17, 2012, and on appeal from sentences imposed on April 15, 2013.

Doherty J.A.:

I

OVERVIEW

[1] The appellant’s stepdaughters, Complainant 1 and Complainant 2, alleged that the appellant sexually assaulted them. The allegations produced a 10-count indictment. Counts 1-4 involved an allegation by Complainant 2, the younger daughter, that when she was about nine, the appellant carried her into his bedroom, tied her hands and feet to the bed with binder twine, and sexually assaulted her. Counts 5-8 arose out of an allegation by Complainant 1, the older sister, that the appellant did the same thing to her when she was about 11 or 12. Counts 9 and 10 involved allegations by Complainant 2 that when she was 15 or 16 years old, the appellant touched her breasts and/or her vagina on several occasions when he was giving her a massage. Complainant 2 also alleged that in late December 2007 when she was 16, the appellant ran his hand up her inner thigh to her groin.

[2] The outcome at trial turned largely on the trial judge’s assessment of the credibility of the various witnesses. The Crown called Complainant 1, Complainant 2, their mother, T.S., and D.T., Complainant 2’s boyfriend, as witnesses at the trial. The Crown’s case depended mainly on the evidence of Complainant 1 and Complainant 2. T.S. gave evidence primarily about the circumstances surrounding her daughter’s disclosures of the alleged assaults in February 2010. D.T. gave evidence about Complainant 2’s disclosure to him in early 2008 that the appellant had placed his hand on her inner thigh and moved it upward toward her groin area.

[3] The appellant testified and denied the allegations. The defence maintained that the allegations emerged in February 2010 in the midst of a bitter breakup of the appellant’s marriage to T.S. The defence contended that T.S. and her daughters colluded to make false allegations against the appellant as part of T.S.’s attempt to ruin his life and force a more favourable financial settlement from him.

[4] The defence did acknowledge that in early 2008, Complainant 2 had alleged that the appellant had touched the inside of her thigh while she was lying in bed. The appellant testified that his wife asked him about this allegation, he denied it, and she accepted the denial. According to the defence, nothing more was said to the appellant about the incident until February 2010 when T.S. made a reference to the allegation in an email she sent to the appellant at about the same time as she was asking Complainant 1 and Complainant 2 about any possible misconduct by the appellant. Those inquiries led to the February 2010 revelations.

[5] The trial judge accepted the evidence of the Crown witnesses. He rejected the defence claim that the allegations were fabricated by T.S. and her daughters after her marriage with the appellant broke up and the bitter marital dispute developed in early 2010. In arriving at his conclusion, the trial judge was strongly influenced by evidence, which he accepted, that Complainant 2 had complained in late 2007 or early 2008 to her mother and her boyfriend that the appellant had touched the inside of her leg and moved his hand up to her groin area. The trial judge reasoned that Complainant 2’s prior complaint that the appellant had inappropriately touched her leg, long before the marriage breakup, negated the defence claims that T.S. and her daughters had fabricated the allegations first made after the marriage breakup.

[6] The trial judge entered convictions on counts 1 and 2 (sexual assault and confinement of Complainant 2), counts 5 and 6 (sexual assault and confinement of Complainant 1), and count 9 (sexual assault of Complainant 2). The conviction on count 9 appears to have been based on a finding that the appellant sexually assaulted Complainant 2 when giving her massages and sexually assaulted her by putting his hand on her thigh near her groin area.[^1] The other charges in the indictment arose out of the same events and were stayed under the Kienapple principle. The trial judge imposed sentences totalling 36 months.

[7] The appellant appeals conviction and sentence.

II

[8] The arguments raised on appeal require a somewhat detailed review of the evidence. I will begin with a chronological outline.

Date

Event

1994

The appellant and T.S., the girls’ mother, begin dating.

December 1998

The appellant and T.S. marry. Complainant 1 is 9 and Complainant 2 is 7.

Around 2000-2001

Complainant 2 alleges that when she was about 9 or 10, she was home alone with the appellant. He threw her over his shoulder, carried her into his bedroom, tied her hands and feet to the bed in a “starfish” position with binder twine, and sexually assaulted her (counts 1-4).

Around 2000-2001

Complainant 1 alleges that when she was about 11 or 12, she was home alone with the appellant. He grabbed her, threw her over his shoulder, carried her into the bedroom, tied her hands and feet to the bed with binder twine in a “starfish” position, and sexually assaulted her (counts 5-8).

2006 – early 2008

Complainant 2 testifies that when she was 15 or 16, the appellant, on several occasions, touched her vagina and/or breasts while giving her a massage (counts 9, 10).

Late December 2007

Complainant 2 testifies that the appellant came into her bedroom and made suggestive comments about how she could avoid being grounded. While doing so, he ran his hand along her inner thigh to her groin (counts 9, 10).

Late 2007 - Early 2008

Complainant 2 tells her boyfriend that the appellant ran his hand up her thigh to her “crotch” area. At her boyfriend’s insistence, Complainant 2 discloses this event to her mother. Her mother speaks to the appellant who, according to the mother, admits that the event happened, but explains that he was testing the lengths to which Complainant 2 would go with her boyfriend. In his testimony, the appellant acknowledges that T.S. told him that Complainant 2 had made the accusation. He testifies that he denied the allegation and nothing more came of it.

Early 2008

The appellant catches Complainant 2 and her boyfriend, D.T., engaged in sexual activity in her bedroom. According to Complainant 2, the appellant tells her she could “be grounded or get drunk and stupid with him”. Complainant 2 also testifies that the appellant insisted that either Complainant 2 tell her mother about the sexual activity with her boyfriend, or the appellant would tell her mother. Complainant 2 chose to tell her mother.

November 2009

The appellant, who has been having an affair with a younger woman, leaves T.S. and her daughters for that woman.

February 2010

The marital breakup has become very acrimonious. T.S. and her girls are in financially difficult circumstances and the appellant is apparently reneging on promised support. T.S. threatens to make the appellant’s life “a living hell”. In various emails, she makes reference to allegations by Complainant 2 and Complainant 1 about the appellant’s misconduct.

February 13-15, 2010

Complainant 1 and Complainant 2 tell their mother about being tied up and sexually assaulted by the appellant some nine or ten years earlier. This is the first time either has disclosed the incident to anyone. Complainant 1 disclosed first and Complainant 2 disclosed the next day. Complainant 2 also tells her mother that the appellant assaulted her while giving her massages. She had not told anyone about this before that disclosure.

Post February 15, 2010

Complainant 1, Complainant 2 and T.S. discuss the incidents disclosed by Complainant 1 and Complainant 2 in February 2010. According to Complainant 1 and Complainant 2, they do not discuss the details of the events with each other, but instead discuss matters relating to the timing and chronology of the events. They do discuss details with their mother.

March 2010

Complainant 1 and Complainant 2 begin counselling.

July 2010

Complainant 1 and Complainant 2 go to the police.

III

Complainant 1’s allegations (counts 5 to 8)

[9] Complainant 1 described a single incident during which she was tied up and sexually assaulted by the appellant. Apart from that incident, she described a normal father/daughter relationship with the appellant that extended over many years, including several years before the incident and almost 10 years after the incident. Complainant 1 also had a good relationship with her biological father throughout the same period.[^2]

[10] Complainant 1 recalled that the incident occurred when she was in grade six. She was 11 or 12 years old. She and the appellant were home alone playing “mini sticks” in the living room. Suddenly, the appellant picked her up, threw her over his shoulder, carried her into his bedroom and threw her on the bed. The appellant began tickling Complainant 1. He straddled Complainant 1, pinning her arms above her head. He proceeded to tie her arms above her head to the side of the bed using binder twine attached to the bed. The appellant did the same thing with Complainant 1’s feet. When asked by Crown counsel to describe her positioning, Complainant 1 replied, “It was kind of like a starfish”.

[11] The appellant pulled Complainant 1’s pants down and began to massage the insides of her legs, telling her that she had to learn how to react if she was kidnapped. His hands moved close to, and touched the outside of her vagina. The touching went on for a few moments and Complainant 1 blacked out. The next thing she remembered, she was in her bedroom trying to figure out what had happened. She did not know how the assault had ended.

[12] Complainant 1 testified that sometime after the incident when she was alone in the house, she went into the appellant’s bedroom. She saw four pieces of binder twine attached to the corners of the box spring of the bed with nails. There were slipknots on the end of each piece of binder twine. T.S. confirmed that the binder twine was attached to the bed. She and the appellant had used it during consensual sexual activity.

[13] Complainant 1 did not mention the attack to her mother, her sister, her biological father, or anyone else until February 2010. She put the incident out of her mind and gave it no further thought. Her relationship with the appellant continued as it had before the attack. She spent time alone with him and one summer worked with him on his ice cream truck. She also arranged for the appellant to stay in her apartment when she was at university for a few days after a break-in.

[14] Complainant 1 was living away from home at university in November 2009 when the appellant left her mother and moved in with another woman. Complainant 1 went home to provide support for her mother who was very hurt and angry with the appellant. Her mother became angrier in early 2010 when she learned that the appellant’s new girlfriend was pregnant. Complainant 1 agreed that she too was angry with the appellant and she saw herself as the protector of her younger sister and mother.

[15] The appellant’s sudden departure from the family left Complainant 1, Complainant 2 and her mother in difficult financial circumstances. Those circumstances worsened as the appellant failed to provide financial support. By mid-February 2010, the relationship between Complainant 1’s mother and the appellant had become very acrimonious. Her mother threatened to make the appellant’s life “a living hell” if he did not meet her demands for financial support. In an email to the appellant on February 11, 2010 T.S. threatened to tell her lawyer that the appellant got Complainant 2 drunk and molested her.

[16] Complainant 1 testified that in mid-February 2010, T.S. told her that Complainant 2 had told her that when Complainant 2 and the appellant were drinking together, the appellant “touched her leg and went up her leg”. Complainant 1’s mother asked Complainant 1 if anything like that had happened to her. After a brief pause, Complainant 1 told her mother that the appellant had tied her up and sexually assaulted her. According to Complainant 1, she described the entire incident to her mother.

[17] T.S., Complainant 1’s mother, gave a somewhat different version of the disclosure. She testified that she did tell Complainant 1 about Complainant 2’s complaint that the appellant had touched her leg and she did ask Complainant 1 whether anything like that had happened to her. Complainant 1 only indicated that the appellant had tied her up. According to T.S., Complainant 1 did not say anything about a sexual assault and T.S. did not think there was any sexual assault involved. T.S. testified that it was only after she spoke to Complainant 2 the next day and Complainant 2 told her that she had been tied up and sexually assaulted that T.S. went back to Complainant 1 and asked for more details. Complainant 1 then described the sexual assault.

[18] T.S. did not suggest to her daughters that they should go to the police. Instead on February 13, 2010, she emailed the appellant and accused him of tying Complainant 1 up and seducing her daughters. In a second email, sent the same day, she demanded a written support agreement from the appellant.

[19] Complainant 1 testified that in March 2010, she and Complainant 2 went into counselling. They attended counselling sessions separately and did not discuss the details of the incident apart from some discussions about the timelines and their respective ages when the incidents occurred. Complainant 1 testified that she and Complainant 2 went to the police together in July 2010, but made their complaints independently of each other.

[20] Complainant 1 also testified that at some time after the initial disclosure, her mother told her that she and the appellant had used the binder twine on the bed for consensual sexual activity. T.S. denied telling her daughter anything about her sexual activity with the appellant.

IV

Complainant 2’s allegations

[21] Like Complainant 1, Complainant 2 had a daughter/father relationship with the appellant. Complainant 2 was particularly close with the appellant and did not have a relationship with her natural father. Also, like Complainant 1, Complainant 2 was very angry with the appellant when he left the family and moved in with another woman. She wrote a letter to the appellant at Christmas 2009 in which she made her anger and strong sense of betrayal clear. She wrote, in part:

I can’t believe one thing that comes out of your mouth. It kills me to know that you lied to me, went behind my back and betrayed me. You aren’t the same person that I loved as my father. You are a stranger to me now!

You claim that you love [Complainant 1] and I … but a person that loves us couldn’t do the things you are doing … not even our real father. Just face it you love yourself more …

[22] On February 14, 2010, T.S. told Complainant 2 that Complainant 1 had told her that the appellant had tied her up. In response to a question from her mother, Complainant 2 revealed for the first time that the appellant had tied her to his bed and sexually assaulted her some 10 years earlier.

[23] At trial, Complainant 2 recalled that the appellant threw her over his shoulder and carried her kicking and screaming into the bedroom. He tied her arms and legs to the bed with binder twine that was attached to the four corners of the bed. She described herself as positioned “like a starfish”. Complainant 2 testified that the appellant licked her vagina and nipples while saying words to the effect that he did not want anyone to do something like that to her.

[24] Complainant 2 had no recollection of how the incident ended. She did recall seeing binder twine attached to the bed years later. She also testified that when she told her mother about the incident, T.S. told her that she and the appellant used the binder twine for consensual sexual activity. T.S. denied talking to Complainant 2 about her sexual activity with the appellant.

[25] Complainant 2 testified that the appellant had not done anything improper to her before this incident. He never attempted to tie her up again. Complainant 2 did not tell anyone about the assault. She testified that she forgot about it and put it out of her mind. Her relationship with the appellant after the alleged assault went on as it had been before that incident.

[26] When Complainant 2 made her initial disclosure to her mother on February 14, 2010, she could not speak about the incident, but instead gave her mother a written description. She provided a second written description, describing the assaults committed by the appellant when he was giving her massages. These assaults occurred when she was a teenager. Neither written description was available at trial.

[27] Complainant 2 denied that she discussed any of the details of the sexual assaults with her sister. She did have some discussion with Complainant 1, but only to put together the timeline relating to the incident in which she was tied to the bed. Complainant 2 did discuss the details with her mother and she had no idea what her mother said to Complainant 1.

[28] After months of counselling, Complainant 2 decided to go to the police. Before going to the police, she spoke to her mother who reminded her to be sure to tell the police that the appellant had got her drunk on one occasion.

[29] Complainant 2 also gave evidence about the assaults that occurred when she was 15 or 16. Complainant 2 testified that the appellant often gave her and Complainant 1 massages, particularly when they were sore after hockey. He would give the girls massages in the bedroom and in the living room and sometimes other members of the family would be present. Initially, nothing untoward happened. However, when she was 15 or 16, the appellant began to touch Complainant 2’s breasts and vagina while giving her massages. This touching did not occur every time the appellant gave her a massage, but did occur on several occasions when they were in the bedroom together. Complainant 2 did not tell anyone about these assaults until she made her disclosures in February 2010.

[30] Complainant 2 starting dating D.T. in July 2007 when she was almost 16. They began engaging in sexual activity sometime after her sixteenth birthday in September 2007.

[31] In early 2008, the appellant caught Complainant 2 and her boyfriend engaged in sexual activity in her room. Complainant 2 said that the appellant told her she would be grounded unless she got “drunk and stupid” with him. Complainant 2 understood this comment to have a sexual connotation.

[32] Complainant 2 testified that on a previous occasion, after she had started dating D.T., and at her request, the appellant had given her several drinks so that she could learn to handle her liquor when with her friends. Complainant 2 testified that she became drunk and her mother came home and found her vomiting in the bathroom. Complainant 2 did not suggest that the appellant did anything improper to her while she was intoxicated. Her mother did not say anything to her about the drinking incident. The appellant acknowledged in his evidence that he had given Complainant 2 liquor and she got drunk. He agreed that he acted irresponsibly.

[33] Complainant 2 testified in-chief that she told her mother about the appellant’s “drunk and stupid” comment and as a result avoided being grounded for the incident with her boyfriend. T.S. testified that Complainant 2 did not tell her about the appellant’s comment. T.S. did testify that Complainant 2 told her about engaging in sexual activity with her boyfriend. In cross-examination, Complainant 2 testified that she only told her mother about the incident with her boyfriend because the appellant insisted that she do so. The appellant told her that if she did not tell her mother, he would tell her.

[34] Complainant 2 also recalled an incident in late 2007. She had been grounded for failing to do an assigned chore. She was unhappy that she could not communicate with her friends. The grounding was extended when Complainant 2 broke the rules. She repeatedly asked the appellant to remove the grounding restrictions.

[35] Complainant 2 testified that one night the appellant called her into his room and in a suggestive manner asked her whether she would do anything to end the grounding. She responded, “that’s what you have a wife for”. Complainant 2 left the room. Later that evening, the appellant came into her bedroom and again made comments about ending the grounding. As he did so, he ran his hand up her thigh to her groin area on the outside of her pajamas. Complainant 2 told the appellant she would stay grounded.

[36] Complainant 2 testified that she told her boyfriend, D.T., about the appellant rubbing his hand along her thigh up to her groin area. He insisted that she tell her mother or go to the police. D.T. testified that he recalled Complainant 2 telling him about the appellant rubbing her leg while she was lying in bed up to her “crotch”. He recalled that she said the incident occurred while she was grounded. D.T. was not sure but he thought the grounding was imposed after the appellant had found D.T. and Complainant 2 engaged in sexual activity in her bed.

[37] T.S. testified that sometime after Complainant 2 and D.T. started dating in September 2007, Complainant 2 told her that, on one occasion, the appellant had run his hand along her leg up to her crotch area. T.S. said that when the appellant returned home she spoke to him about Complainant 2’s allegation. The appellant acknowledged that he had run his hand up her leg and indicated he “just wanted to see how far she would go with her boyfriend”. T.S. believed her daughter “110%” but could not believe that the appellant would sexually assault Complainant 2. She ultimately accepted the appellant’s explanation, although she became uncomfortable with the appellant being alone with Complainant 2.

[38] The appellant testified that T.S. did confront him about the leg touching incident. He told T.S. that no such thing happened and nothing more was said about it until after the marriage broke up.

V

the grounds of appeal

[39] Mr. Greenspan, for the appellant, mounted a vigorous multi-pronged attack on the trial judge’s reasons. He submitted that despite the length of the reasons (92 pages), they contain virtually no analysis of the evidence, but instead, after a lengthy and confusing summary of the evidence, simply set out the trial judge’s findings in a conclusory and unexplained way. Counsel submits that the reasons defy meaningful appellate review. He also raises several specific complaints, most of which focus on the alleged misapprehension of material evidence.

[40] Mr. Greenspan does not argue that the verdicts are unreasonable, but instead submits that the quality of the reasons as a whole, and the specific errors in the reasons, taken separately or together, necessitate the quashing of the convictions and the ordering of a new trial on all counts.

[41] Mr. Lepofsky, Crown counsel, takes the position that the reasons adequately set out the basis upon which the trial judge reached his conclusions. He submits that the case turned on findings of credibility and that the trial judge made those findings and explained those findings adequately in his reasons. Mr. Lepofsky contends that the appellant’s submissions are essentially an argument that the verdict is unreasonable. He argues that the merits of that argument must be assessed within the narrow limits of appellate review contemplated by s. 686(1)(a)(i) of the Criminal Code. Crown counsel urges the court to reject the appellant’s invitation to retry the allegations.

[42] There is force to Mr. Greenspan’s complaints about the reasons taken as a whole. However, I do not accept the claim that the reasons do not allow for meaningful appellate review. The reasons make it plain that the trial judge understood that the outcome turned on credibility assessments. The reasons also demonstrate that the trial judge understood that the competing versions of the relevant events called for a careful application of the criminal burden of proof and the presumption of innocence. The trial judge correctly identified the three-step approach described in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, as the template for the analysis of the competing versions of events. He accurately described that three-step approach (pp. 55-58) before applying that approach to the evidence (pp. 61-68).

[43] Although I agree with Mr. Lepofsky that the trial judge’s reasons are susceptible to appellate review, I also agree with Mr. Greenspan that those reasons reveal reversible error. The trial judge, in the course of his application of the principles in W.(D.) to the evidence, made three significant errors that necessitate the quashing of the convictions.

(i) The trial judge misapprehended the evidence of animus

[44] The trial judge found that there were significant marital difficulties after the appellant left T.S. in November 2009. Heated arguments developed over support for T.S. and the girls. The trial judge held that the breakup and the subsequent financial disputes caused significant hostility between the appellant and T.S. He went on to hold “but this was their issue, not the girls” (p. 63).

[45] The evidence of Complainant 1 and Complainant 2 makes it abundantly clear that the animus caused by the marriage breakup extended to the girls. Both acknowledged that they were very angry with the appellant. Complainant 1 in particular saw her role as the protector of her mother and younger sister. Complainant 2’s letter to the appellant at Christmas of 2009 vividly reveals her bitter disappointment, anger and sense of betrayal.

[46] The trial judge’s misapprehension of the evidence of animus was important. The defence was premised on the claim that the February 2010 disclosures by Complainant 1 and Complainant 2 were triggered by the animus that the girls and their mother had for the appellant as a result of the marriage breakup and the appellant’s refusal to provide the necessary financial support for T.S. and them. By erroneously holding that the animus extended only to T.S., the trial judge all but pulled this key plank from the case for defence.

(ii) The trial judge misapprehended the appellant’s evidence about being confronted with the allegation that he had improperly touched Complainant 2’s leg

[47] In the course of his W.D. analysis and, in particular, his consideration of the appellant’s evidence, the trial judge, at p. 62, indicated that when the appellant was asked in his evidence about the “leg touching incident”:

He denied this happened and he denied the confrontation with [T.S.] had occurred. However, later in cross-examination he admitted that his prior testimony that no one had ever accused him of a sexual advance was wrong. He resiled from this position and admitted he had been confronted by [T.S.] over the incident.

[48] The trial judge seriously misapprehended the appellant’s evidence. The appellant never denied that T.S. asked him about the “leg touching” incident. The topic was first raised during the examination-in-chief of the appellant:

Q. All right. Do you recall – did that happen?

A. She asked me back when we lived on [Road] about an incident like that and I just – I denied it because it wasn’t right or true and after that it was kind of dropped.

Q. Okay. So when would this have been, to the best of your knowledge?

A. I think it was just after I caught her and [D.T.] fooling around.

Q. Just after you caught her and?

A. [Complainant 2] and [D.T.] fooling around.

Q. Okay. And just after, do you mean weeks after, days after or?

A. A few weeks after, I believe.

Q. Okay. T.S. presents this allegation to you?

A. Yes, she did.

Q. Do you recall what it was?

A. Something about that I was going up her thigh with my hand or something down that line.

Q. Yes. And so what did you say?

A. I told her, no, I wouldn’t do that.

[49] Nor did the appellant ever “admit” in his cross-examination that his evidence in-chief was wrong and “resile” from that evidence. To the contrary, when questioned on cross-examination, the appellant denied that he had ever intended to suggest in his evidence in-chief that he had not been asked about the “leg touching” incident by T.S.[^3]

[50] The trial judge’s misapprehension of this part of the appellant’s evidence was significant. The misapprehension provided one of the few references by the trial judge during his W.D. analysis to the content of the appellant’s testimony. Furthermore, the trial judge’s misapprehension of the appellant’s evidence provided a powerful reason for rejecting his evidence. The misapprehension went directly to the credibility of the appellant’s evidence concerning the “leg touching” incident. That incident became the central factual feature for the trial judge in his resolution of the credibility issues raised by the evidence.

(iii) The trial judge misused the evidence that Complainant 2 disclosed the “leg touching” incident prior to the animus that developed after the marriage broke up in November 2009

[51] The trial judge referred several times in his reasons to the uncontradicted evidence that Complainant 2 had disclosed a “leg touching” incident to her mother early in 2008, almost two years before the marriage breakup. The trial judge held that Complainant 2’s disclosure in early 2008 of the “leg touching” incident refuted the defence claim that Complainant 1, Complainant 2 and their mother had fabricated the allegations made for the first time in February 2010 to get back at the appellant for the marriage breakup and to assist T.S. in obtaining a favourable financial settlement. In his reasons, the trial judge described the evidence of the disclosure of the “leg touching” incident prior to the marriage breakup as “rebutting” or “negating” the defence claim of collusion. For example, he said, at p. 65:

In my view, this evidence [disclosure of the “leg touching” incident] is not only credible, it negates the defence position that they were lying and therefore engaged in a form of collusion either active or passive to make him pay for leaving their home. [Emphasis added.]

[52] Evidence that Complainant 2 had told her mother about the “leg touching” incident was admissible as part of the Crown’s case. Complainant 1 had testified that it was T.S.’s reference to Complainant 2’s disclosure to her about the “leg touching” incident that precipitated Complainant 1’s disclosure to T.S. on February 13, 2010 that the appellant had tied her to his bed and sexually assaulted her some 10 years earlier. Consequently, evidence that Complainant 2 had in fact told her mother about the “leg touching” incident was relevant to support the evidence of both T.S. and Complainant 1 concerning the disclosures made by Complainant 1.

[53] Evidence that Complainant 2 had disclosed the “leg touching” incident to her mother and boyfriend in early 2008 would also have been admissible to rebut any suggestion that Complainant 2 had fabricated that allegation out of animus for the appellant generated by the acrimonious breakup of the marriage. However, there was no defence allegation, explicit or implicit, that Complainant 2 had fabricated the “leg touching” allegation after the marriage breakup. To the contrary, it was the defence position that Complainant 2 had made that allegation to her mother in early 2008 after she was caught in bed with her boyfriend. The appellant had denied the allegation, and nothing more had been said about it.[^4]

[54] The trial judge used the evidence of the prior disclosure of the “leg touching” incident to do much more than rebut any suggestion that Complainant 2 had fabricated that specific allegation after the marriage breakup. On the trial judge’s analysis, the disclosure of the “leg touching” incident negated the defence contention that the February 2010 allegations by both Complainant 1 and Complainant 2 were precipitated by the strong animus created by the breakup of the appellant’s marriage with T.S. Although the trial judge did not explain why he regarded the disclosure of the “leg touching” incident as having that effect, it seems implicit that the trial judge found that the evidence that Complainant 2 had made an allegation of sexual impropriety against the appellant before the marriage breakup would rebut any suggestion that Complainant 1, Complainant 2 and their mother had concocted entirely different and much more serious allegations of sexual impropriety after the marriage breakup. Mr. Lepofsky, in his submissions, accepted this logic and argued that the evidence of the prior disclosure of the “leg touching” incident had the effect of “blowing a huge hole in the defence theory”.

[55] I do not accept the reasoning of the trial judge. The value of a prior consistent statement lies in its ability to counter the argument that a witness has lied for a specific reason. As explained in R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5:

Prior consistent statements have a probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose. [Emphasis added.]

[56] A prior statement by a witness that is consistent with the witness’s testimony can rebut an allegation that the witness has fabricated her testimony for a specific reason if the prior consistent statement was made before the reason said to have generated the false testimony existed. As is evident from the phrase “prior consistent statement”, the significance of the statement lies in the consistency between the allegation made before the alleged motive to fabricate existed and the later allegation made after the alleged motive arose. If the allegations are different, the forensic force of the prior statement is lost.

[57] The allegation Complainant 2 made against the appellant in 2008 is drastically and dramatically different from the allegation she made in February 2010. In 2008, she alleged a single improper touching of her inner thigh on the outside of her pyjamas. By February 2010, she was alleging that the appellant, when Complainant 2 was a very young child, had tied her to his bed and perpetrated a very serious sexual assault. She was further alleging that when she was a teenager, she was the victim of repeated sexual assaults by the appellant. To use the language of Stirling, Complainant 2 did not tell the “same story” before and after the marriage breakup. Rather, she told two dramatically different stories. Indeed, a comparison of her allegation in 2008 with the allegations made after the marriage breakup could lend credence to the claim that the much more serious allegations made in February 10, 2010 were precipitated by the animus generated by the marriage breakup.

[58] I appreciate that a witness’s credibility is not properly assessed by dissecting her testimony into pieces and examining each in isolation from the other. The credibility of Complainant 2’s evidence, like any witness’s evidence, had to be examined as a whole: see R. v. Stirling, at para. 12. In a broad sense, the unchallenged evidence that Complainant 2 had made the “leg touching” complaint could make her allegations of sexual misconduct against the appellant more credible than they otherwise would have been. Accepting that evidence of the prior disclosure had some relevance to Complainant 2’s overall credibility is, however, a long way from holding that the evidence could operate like a prior consistent statement to negative a defence claim that the allegations were fabricated for a specific reason. The trial judge misunderstood the potential value of the evidence of Complainant 2’s prior disclosure of the “leg touching” incident. He improperly used that evidence as if it were a prior consistent statement in respect of the allegations made in the February 2010 disclosures. Complainant 2’s prior disclosure of the “leg touching” incident could not “negate” the collusion claim advanced by the defence.

[59] The many references in the reasons to Complainant 2’s disclosure of the “leg touching” incident demonstrate the powerful impact that evidence and its misuse by the trial judge had on the verdicts. The collusion argument was the main component of the defence. The trial judge’s use of the evidence of the disclosure of the “leg touching” incident effectively took collusion off the table. The trial judge’s misuse of that evidence as determinative of the collusion claim also meant that the trial judge did not come to grips with the substantial body of evidence relevant to, and capable of supporting, the collusion claim. I make this point by reference to two examples from the evidence.

[60] The defence argued that there were striking similarities in the language used by Complainant 1 and Complainant 2 to describe the incident in which they alleged they were tied to the bed and sexually assaulted by the appellant. The defence argued that these striking similarities in the descriptions were indicative of collusion, or at least subconscious tainting brought about as a result of discussions among Complainant 1, Complainant 2 and their mother. The defence also claimed that these similarities put the lie to the evidence of Complainant 1 and Complainant 2 that they did not discuss the details of the incidents.

[61] Complainant 1 and Complainant 2 did use the same words to describe some parts of the alleged confinement and sexual assault in the bedroom. Both testified that the events began in the living room when the appellant, out of nowhere and with no prior history of any misconduct towards them, picked them up, threw them over his shoulder and carried them into the bedroom. Complainant 1 and Complainant 2 both testified that they were tied up and positioned “like a starfish”. Both also testified that they had no recollection of how the assault ended.

[62] The similarities in the language used by Complainant 1 and Complainant 2 to describe several features of the alleged assault in the bedroom required careful consideration in the assessment of the collusion claim. Perhaps the most striking similarity is the use of the word “starfish” by both Complainant 1 and Complainant 2 to describe their positioning after the appellant tied them up. The trial judge indicated that the use of the word “starfish” by both did not concern him. He did not explain why except to refer to the Crown argument that it was hardly surprising that both girls would be familiar with the shape of a starfish (p. 77). The significance to the collusion claim lay not in the possibility that both girls might not be aware of the shape of a starfish absent collusion, but rather that out of all of the possible descriptors that Complainant 1 and Complainant 2 could have chosen to describe their positioning, each chose exactly the same descriptor.

[63] In the same vein, the potential impact on the collusion claim of evidence that both Complainant 1 and Complainant 2 professed to have no recollection of how the assault ended is not muted, as suggested by the trial judge by reference to the inability of children to remember the details of long past events (p. 66). The significance to the collusion claim lies in the fact that the memories of both girls appear to end at the same point in the assault, arguably suggestive of collusion, or at least a joint reconstruction of a recollection.

[64] A second aspect of the evidence relevant to collusion that was not addressed in any detail by the trial judge relates to the evidence of discussions among Complainant 1, Complainant 2 and their mother about the alleged assaults between February 2010 and July 2010 when the girls went to the police. Complainant 1, Complainant 2 and T.S. gave different evidence about the discussions among the three before the girls went to the police in July. Complainant 1 acknowledged talking about the events after the February 10^th^ disclosure with her mother and Complainant 2. She later insisted that she had not discussed the details with Complainant 2, although she had perhaps discussed the details with her mother. Complainant 2 denied knowing the details of the assault on Complainant 1, although she did testify that she discussed details with her mother. T.S. testified that she deliberately refrained from discussing any details with her daughters and did not tell one what the other had said about the incidents.

[65] The trial judge did not examine any of this evidence as it applied to collusion. He did not, for example, consider whether apart entirely from deliberate collusion, the evidence of Complainant 1 and Complainant 2 may have been tainted by information passed from one sister to the other through T.S. Presumably, the trial judge, having rejected the collusion claim because of the evidence of Complainant 2’s disclosure of the “leg touching” incident, saw no need to examine the conflicting and confusing evidence pertaining to the discussions among Complainant 1, Complainant 2 and T.S. before the girls went to the police in July 2010.

[66] The trial judge’s misuse of the evidence of the prior disclosure of the “leg touching” incident is perhaps the trial judge’s most significant error in his application of W.(D.) to the evidence in this case. That error denied the appellant a full and fair evaluation of the evidence relevant to collusion. I do not suggest that the collusion claim would necessarily have carried the day had the trial judge properly limited the use of the evidence of the disclosure of the “leg touching” incident. It is enough to say that the collusion claim had support in the evidence. There is no way of knowing how the evaluation of that claim might have come out on a proper consideration of the evidence.

VI

conclusion

[67] The misapprehension of material evidence and the misuse of the evidence of Complainant 2’s disclosure of the “leg touching” incident taken together constitute reversible error. The proviso cannot be applied. While the convictions are justifiable on the evidence, they are far from inevitable.

[68] I would order a new trial on all counts, including those counts on which the trial judge entered stays based upon the “Kienapple” principle: see R. v. P. (D.W.), [1987] 2 S.C.R. 3.

Released: “DEC 11 2015” “DD”

“Doherty J.A.”

“I agree S.E. Pepall J.A.”

“I agree C.W. Hourigan J.A.”

[^1]: It is difficult to tell from the trial judge’s reasons whether his conviction on this count related to both the massages and the incident involving the touching of the thigh or only the latter (see reasons, pp. 86-89). Either would have been sufficient to convict and, as best as I can tell, the trial judge found both.

[^2]: Complainant 1 testified that when she was in high school, the appellant sometimes touched her breasts when giving her massages. She felt this was inappropriate and would immediately discontinue the massage if he touched her breasts. This alleged conduct was not the subject of a count in the indictment. The defence brought a mistrial application when Complainant 1 gave evidence about the improper touching during the massages. The trial judge refused the mistrial, indicating he would disregard any evidence “pertinent to an allegation which has not been pursued”. Apart from a brief reference when summarizing Complainant 1’s evidence, the trial judge made no reference to this evidence. I proceed on the basis that the trial judge did not find that the appellant sexually assaulted Complainant 1 when giving her massages.

[^3]: The appellant was asked in-chief whether when he left in November 2009 any allegations were made with regard to the children “of the nature you’re facing now”. The appellant answered “no”. Three questions later, his lawyer specifically asked about the “leg touching” incident and the exchange quoted above in para. 53 followed.

[^4]: Prior consistent statements are also sometimes admissible as part of the narrative to help a trier of fact understand how a complaint was made and evolved: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 37. No one suggested that the evidence of Complainant 2’s disclosure of the “leg touching” incident should be treated as part of a disclosure process that culminated in the February 2010 disclosures.