WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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. D.H., 2016 ONCA 569

DATE: 20160715

DOCKET: C58814

Feldman, Cronk and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.H.

Appellant

Jason Rabinovitch, for the appellant

Jessica Smith Joy, for the respondent

Heard: January 15, 2016

On appeal from the conviction entered on February 18, 2014 and the sentence imposed on May 20, 2014 by Justice Marion L. Cohen of the Ontario Court of Justice.

Feldman J.A.:

[1] The appellant, D.H., was convicted in Youth Justice Court of three counts of sexual assault, sexual interference, and invitation to sexual touching of his cousin, the complainant. The events were said to have occurred when the complainant was between the ages of 6 and 11 and the appellant was between 13 and 18. The complainant was 22 at the time of the trial, while the appellant was 30 years old. The appellant was sentenced to 6 months in custody followed by 3 months of community supervision, plus 18 months of probation. He appeals his convictions and sentence.

Facts

[2] Three witnesses testified at the trial: the complainant, her mother and the appellant.

[3] The parents of the complainant were separated when she was a baby, and on alternate weekends, beginning at about age one, she would sleep at the home where her father lived. During the relevant period, he lived with his mother, his sister, and his sister’s son and infant daughter. The complainant’s grandmother’s room was on the main floor. The appellant had a room in the basement, where there was also the only bathroom in the home that the family used, as well as a second room, where his mother and infant sister slept.

[4] The complainant said that while she sometimes slept with her grandmother, most of the time she slept with the appellant in his room. She said that because she had a bed-wetting problem, she did not sleep with her grandmother. The appellant denied that the complainant ever slept in his bed with him or in his room. There was no other evidence on this issue. The trial judge concluded that, in light of the bed-wetting problem, it was “reasonably possible that the complainant was consigned to the [appellant’s] bedroom to sleep”.

[5] The complainant testified that the first incident of sexual abuse occurred when she was about six years old and in senior kindergarten. She and the appellant were watching television in his bedroom on his bed. He removed her one–piece pyjama and the underwear she was wearing underneath. He started touching and rubbing her vagina. He also kissed her on the lips, but did not French kiss her. She said he was breathing very heavily because he had asthma. The incident ended when the grandmother’s male friend came down the basement stairs to use the washroom and the appellant told the complainant to put her clothes back on.

[6] Following this first incident, the complainant said that every time she went to her father’s house, the appellant would try something new. Sexual acts would occur repeatedly, including French kissing, touching her vagina, cunnilingus, analingus, fellatio and failed attempts at penetration with his penis. She said that the appellant would always take off her bottoms and leave on her top, that he did not wear a condom, and that he did not ejaculate. He called her “baby”, treated her like a girlfriend, and refused to stop when she told him to.

[7] The complainant had an ongoing problem with bed-wetting, soiling herself, and smearing feces. The complainant testified that when she was 11, her mother repeatedly asked her why she did those things and what was wrong with her. She said this eventually led to her telling her mother about the sexual abuse. She said, “D.H. is doing it to me”, and although she did not give any details, her mother understood what she meant.

[8] The mother’s version was that when the complainant was 11 years old, she suspected from an incident where the complainant was playing under a blanket with her step-sister that the complainant had been abused by someone. The mother began to ask her about it. The complainant said that the mother never suggested inappropriate touching, while the mother said she asked the complainant directly whether anyone had touched her. Finally, after a number of weeks, the complainant responded, “Yes”, it had happened, and after being coaxed for the name, said it was the appellant.

[9] The mother immediately called the appellant’s mother and told her, “Your son molested my daughter”, and, “Your son touched my daughter.” The complainant’s mother testified that she did not remember where the complainant was for the phone call. Although the mother said the call was not on speakerphone, she thought the complainant could have heard her repeat what was being said. The complainant testified the call was on speakerphone and that that was how she heard what was being said on the other end.

[10] According to the complainant’s mother, the appellant’s mother was concerned for her own daughter’s safety, as well as about the effect of this revelation on the grandmother (her mother). According to the complainant, the appellant’s mother reacted with concern that the allegations would jeopardize the appellant’s imminent attendance at university.

[11] The complainant’s mother said she then asked if the appellant was there and his mother gave him the phone. He acknowledged that he had touched her daughter; he said that he was just experimenting and that she could send the police because he knew what he had done was wrong. She asked him how he would feel, and he responded that a priest had done it to him. The complainant’s account of this part of the phone call was similar to her mother’s, except she did not say that the appellant referred to calling the police, or specify that it had been a priest who had done something to him.

[12] The complainant’s mother did not report the abuse to the police. She gave a number of explanations for this: she did not feel she had enough information to call the police, despite what the appellant had told her on the phone; she was discouraged by a colleague at work who said it was not enough; she did not think the police would do anything; she did not want the appellant to be hurt because he was family; and she thought both her daughter and the appellant should get counselling, which she told the appellant’s mother, but she knew that he did not get any counselling.

[13] The complainant’s mother continued her relationship with the appellant’s mother. She never discussed the phone call with her daughter, but over the next ten years, pressed her for details of the abuse. However, the complainant did not disclose the details for many years, until sometime just before she went to the police in January 2012. According to the mother, the complainant also disclosed further details to her shortly before the trial.

[14] The complainant’s mother also testified that when the complainant was in grade eight, after the disclosure of the sexual abuse and after the phone call, the mother held a birthday party where she invited the appellant and his mother. She explained that she did not think it would do any harm and that the appellant’s mother was still her friend and she did not hold anything against her. The mother testified that after the party, her daughter defecated in her clothes and smeared feces all over the stairs, but that this was the last time that happened.

[15] The mother never took her daughter to the police, but left the decision whether to come forward up to her.

[16] The complainant said that the first time she gave a detailed account of what happened was to the police in January 2012. She said she gave her mother details of the sexual abuse afterwards, not long before the trial.

[17] The appellant testified and denied all the complainant’s allegations. He said he saw the complainant when she came on weekends, and while she sometimes slept in the basement in his mother’s room, she did not sleep with him in his. He denied the phone conversation with the complainant’s mother. He also denied being at the birthday party described by the mother, and said he never saw the complainant again after she stopped coming to the house.

The Trial Judge’s Analysis

[18] Defence counsel made a number of arguments to the trial judge. First, the appellant was straightforward and unshaken in his evidence, and he could do nothing but deny the historical allegations of events that were said to have spanned a long time period. Second, he submitted that the court should have significant concerns about the reliability of the Crown’s evidence, given the complainant’s lack of disclosure for five years and her failure to complain to police for ten years.

[19] Third, there was a lack of detail in the complainant’s description of the sexual acts, which were described generically. Fourth, there were discrepancies between the complainant’s statements to police and her testimony at trial, particularly with respect to the frequency of the sexual acts. Fifth, there were inconsistencies between the evidence of the complainant and her mother, such as whether the complainant cried when she was taken to her father’s on weekends or whether she was okay to go, as well as whether she stopped going at age 9 or age 11.

[20] Sixth, the defence submitted the trial judge should not use the complainant’s very emotional manner of testifying to strengthen an otherwise weak Crown case. The complainant had great difficulty controlling her emotions while testifying at trial. There were repeated outbursts where she berated the appellant and his mother, who was in the courtroom. She described how unwell she was with Crohn’s disease and how the memories of the abuse and seeing the appellant in court made her sick. The trial judge described her manner as tormented.

[21] The defence also submitted that the complainant had a reason to fabricate the allegations to her mother in order to respond to her mother’s concerns about her bed-wetting, soiling, and the incident with her step-sister.

[22] Finally, with respect to the phone call, the defence submitted that the appellant denied it, and that the mother’s reasons for not calling the police after such a phone call were illogical and incredible.

[23] The trial judge began her legal analysis and assessment of the evidence by first acknowledging the merit of the defence arguments, especially the difficulty an accused has in defending against allegations of historical sexual assault. She referred to the presumption of innocence and the burden of proof on the Crown to prove guilt beyond a reasonable doubt. She agreed that, in assessing the evidence of the complainant, she should not give too much weight to her demeanour as a witness. She also acknowledged the fact that there were inconsistencies between the complainant’s testimony and her mother’s, and between what the complainant told the police and what she told the court. She further acknowledged that, in some cases, both the complainant and her mother could not recall dates or the complainant’s age at the relevant times.

[24] After instructing herself on R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the trial judge first addressed the evidence of the appellant. She found that he was neither shaken in cross-examination nor inconsistent. However, relying on R. v. J.J.R.D. (2006),2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), she found that she did not believe the appellant, and that his evidence did not leave her with a reasonable doubt.

[25] She then turned to an assessment of the complainant’s evidence, acknowledging that she was giving evidence as an adult of events that had occurred when she was a child. The trial judge further recognized the context of the complainant’s difficult childhood, where her mother worked two jobs and was separated from her father, and where the complainant had problems with bed-wetting and soiling herself, and slept at the foot of her mother’s bed until she was 15.

[26] In that context, the trial judge viewed the complainant’s difficulties remembering details of places and dates as peripheral matters that did not affect the acceptance of her evidence on the material points, which the trial judge found was consistent and unshaken. Those points were what happened the first time, the kinds of sexual acts, how they were performed, how the appellant behaved, and the details the complainant remembered that were not contradicted by the appellant.

[27] The trial judge rejected the suggestion that the complainant had a motive to fabricate. She explained that finding in a sentence added as an amendment to the reasons: “In arriving at that conclusion I have considered the quality of the relationship between the mother and daughter, as revealed in their testimony, the mother’s disposition, her patience, her lack of animus, and the evidence of mother and daughter regarding how the disclosure occurred.”

[28] The trial judge also took into account the demeanour of the complainant while testifying, including her anger and torment, as well as her issues and disturbing behaviour as a child. The trial judge stated that, from that behaviour, one could draw the inference that the complainant had been “experiencing abuse”, although “other inferences [were] possible.” The trial judge stated that she considered this history as a factor in assessing the complainant’s credibility.

[29] The trial judge then turned to the issue of the complainant’s reliability, given the fact that she was testifying as an adult about events that she said occurred in childhood. On the issue of the complainant’s reliability and the potential for contamination of evidence, the trial judge looked to the evidence of the mother. The trial judge noted that, like the complainant, she was vague or inconsistent on some details, such as dates and the age of the complainant at the relevant times, but the trial judge nonetheless found her to be credible and reliable on the material issues.

[30] The trial judge found no evidence that the mother’s questions had tainted the complainant’s evidence. She found the mother’s inaction following the disclosure by her daughter and the appellant’s admission to her during the phone call to be consistent with a lack of animus towards the appellant, and also consistent with the complainant’s evidence that she did not give her mother any details of the sexual abuse. The trial judge explained that both the complainant’s and the appellant’s statements to the mother were general, so that the mother “did not really know what had been done to her daughter.”

[31] The trial judge found the appellant’s admission on the phone to be confirmatory evidence. Although the appellant denied that the call took place, the trial judge believed the mother. The trial judge used what she viewed as the mother’s “extraordinary lack of animus” towards the appellant and his family as indicative of her credibility regarding the phone call. She found “nothing illogical or incredible” about the mother’s testimony that she continued to view the appellant and his mother as family, and that she did not want her daughter to be full of hatred.

Issues

[32] The appellant submits the trial judge erred in law by failing to give effect to the third branch of W. (D.) by:

1. failing to resolve material inconsistencies in the evidence on significant issues which could have raised a reasonable doubt, including:

a) inconsistencies between the evidence of the complainant and of her mother;

b) inconsistencies in the complainant’s versions of the frequency of the sexual abuse between her disclosure to the police and her evidence at trial;

2. failing to give adequate reasons for drawing conclusions and inferences from the evidence of the mother and of the complainant that did not accord with the logic of the situation and were contrary to the evidence of the appellant; and

3. relying on the complainant’s problems in childhood as evidence that she was sexually abused without expert evidence.

Analysis

1. Failure to resolve material inconsistencies in the evidence on significant issues

[33] The trial judge gave lengthy reasons for decision, including instructing herself on the burden of proof and the application of W. (D.), and explaining why she found the complainant and her mother to be credible on what she identified as the material issues. It was only because she accepted their evidence that she rejected the evidence of the appellant, relying on this court’s decision in J.J.R.D., which states, at para. 53:

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.

[34] A trial judge’s assessments of credibility are accorded very considerable deference on appeal, as long as the trial judge has sufficiently explained how significant discrepancies that could undermine credibility and reliability have been resolved. This court recently reiterated that principle in R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 17-19:

[W]here a case turns largely on determinations of credibility, the sufficiency of reasons must be considered in light of the deference generally afforded to trial judges on credibility findings. It is rare for deficiencies in a trial judge's credibility analysis, as expressed in the reasons for judgment, to warrant appellate intervention: Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11; Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26.

Nevertheless, the failure of a trial judge to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error: Vuradin, at para. 11; Dinardo, at para. 26; R. v. Braich, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29, 2002 SCC 27, at para. 23. After all, an accused is entitled to know why the trial judge had no reasonable doubt about his or her guilt: R. v. Gagnon, [2006] 1 S.C.R. 621, [2006] S.C.J. No. 17, 2006 SCC 17, at para. 21.

Similarly, we take it as self-evident that a legal error made in the assessment of credibility may displace the deference usually afforded to a trial judge's credibility assessment and may require appellate intervention.

[35] While a trial judge is not required to resolve every inconsistency in the evidence, the trial judge “should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31”: M. (A.), at para. 14. As the Supreme Court stated in R. v. Dinardo, at paras. 26-27, the failure to articulate how credibility concerns are resolved, particularly in the face of significant inconsistencies in a complainant’s testimony, may constitute reversible error, as an accused is entitled to know why the trial judge is left with no reasonable doubt.

a) Inconsistencies between the evidence of the complainant and her mother

[36] The appellant submits that although the trial judge acknowledged many of the inconsistencies between the evidence of the complainant and her mother with respect to the events that they both testified about, in accepting the evidence of both, she failed to resolve those inconsistencies or to explain how they factored into her conclusions.

[37] One way the trial judge avoided the need to resolve some of the problems she perceived with the credibility of the complainant’s evidence, including when it conflicted with her mother’s evidence, was by discounting them as referable to peripheral matters, as a trial judge is entitled to do: R v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 134, 135-36.

[38] One such matter was the complainant’s attitude when her mother took her to stay with her father and his family on weekends during the period of the abuse. The complainant testified that she cried every time she was dropped off at her father’s house and that she would say to her mother that she did not want to stay there. The mother’s evidence was to the contrary. She said the complainant was fine going to her father’s house, never gave any indication she did not want to go, and did not ever cry or complain about it.

[39] The trial judge dealt with this discrepancy by first finding that the mother corroborated much of the complainant’s childhood history of unhappiness and anger, frequent school moves, having no friends, blaming her mother, soiling her pants, and bed-wetting – although she was uncertain about the complainant’s age range for some of these behaviours. The trial judge then turned to the discrepancy between them about the complainant’s attitude with respect to going to stay at her father’s:

The mother did not, however, corroborate the complainant’s evidence that she cried when she had to go to her father’s house. She testified that the complainant gave her no reason to think anything was happening when she took her there. According to the mother, the complainant never resisted or cried, and seemed normal. She described the complainant as being “outspoken,” and she stated she was shocked the complainant hadn’t told her about the abuse.

[40] The trial judge did not expressly resolve this discrepancy or analyze its significance. She only dealt with it when assessing the credibility and reliability of the complainant’s evidence, where, after reviewing the difficulties she experienced during childhood, the trial judge asked rhetorically, “Why would one conclude her evidence was unreliable because she remembers crying when her mother dropped her off at her cousin’s house, while her mother thought she ‘seemed o.k.’ with it, and ‘completely normal’”. The trial judge concluded that the complainant’s inconsistent or confused testimony on such peripheral matters did not prevent her from accepting the complainant’s evidence on the central events.

[41] It appears that the trial judge was implicitly accepting the mother’s version of this event by suggesting that the complainant’s recollection may have been unreliable because she was testifying as an adult about events during her very difficult childhood. However, if so, the trial judge provided no analysis as to why she concluded that the mother’s memory was the correct one with respect to this particular event.

[42] Furthermore, to characterize this as a peripheral matter was a misapprehension of the evidence. This was a significant issue in the narrative of the abuse time period and one of the few issues on which both the complainant and her mother were participating witnesses and about which they could testify directly. Nor could their evidence be reconciled: the complainant described a scene of crying and objecting to go – not just on one occasion, but every time – which the mother denied occurred at all.

[43] If the complainant did in fact object to being left at her cousin’s house, that would have added credence to her allegations, but it would also have undermined the credibility of the mother’s testimony. By implicitly accepting the mother’s version, the trial judge avoided dealing with this issue with respect to her assessment of the mother’s credibility. And by calling it a peripheral matter, even though it was part of the complainant’s narrative of the time of the abuse, the trial judge did not have to give a reason why she could rely on the complainant’s version of the abuse, but not on her contemporaneous reaction to it.

[44] Another potentially significant area of inconsistency between the complainant and her mother was in how the disclosure occurred. The mother said that there was an occasion when the complainant was 11, where she observed her under a blanket with her step-sister. The mother then became concerned that someone had done something to her daughter and began asking her if anyone had touched her inappropriately. She continued to ask for approximately six weeks until the complainant finally responded, “Yes”. The mother then had to press her to find out who had done it, suspecting the step-brother or the mother’s former boyfriend.

[45] The mother indicated that about a couple of years before this incident, she had been asking her daughter about her problems with bed-wetting and soiling herself. However, after the incident with the step-sister, she was asking her if she had been touched.

[46] The complainant, on the other hand, stated that her mother was asking her questions about her bed-wetting and defecating when she was 11. She said that it was in response to those questions that she finally acknowledged the abuse. She denied that her mother ever suggested that anyone had touched her inappropriately.

[47] The trial judge referred to defence counsel’s argument that the complainant had a motive to fabricate in order to defend herself from her mother’s questions regarding her bed-wetting and defecating. The trial judge found there was no motive to fabricate, relying in part on the evidence of both witnesses regarding how the disclosure had occurred. In so doing, she made no reference to the discrepancy in their accounts, and later in her reasons found that the mother and the complainant were “roughly consistent about the general history of the complainant’s visits to the appellant’s home, about the complainant’s difficulties, including the bed-wetting and the soiling, and about the circumstances of the complainant’s disclosure, and the steps she did and did not take as a consequence” (emphasis added). The trial judge also found there was no evidence that the mother’s questions had tainted or contaminated the complainant’s evidence.

[48] This characterization represents a failure by the trial judge to deal with the discrepancy in the two witnesses’ evidence regarding the disclosure. By not acknowledging the fact that, on the mother’s account, she suggested to the daughter that she had been touched inappropriately, the trial judge failed to address the complainant’s possible motive to fabricate in the context of the mother’s suggestion of the answer.

[49] Also, by viewing the versions told by the two witnesses as “roughly consistent”, the trial judge failed to resolve the inconsistency or to consider its effect on the credibility and reliability of each of them, and therefore on the issue of reasonable doubt. See R. v. Burnie, 2013 ONCA 112, 294 C.C.C. (3d) 387, at para. 48.

b) Inconsistencies in the complainant’s versions given as an adult

[50] Another issue that the trial judge labeled as peripheral was the complainant’s inconsistencies on the number of times she was abused by the appellant. In R. v. H.S.B., 2008 SCC 52, [2008] 3 SCR 32, at paras. 11, 14-15, the Supreme Court allowed that a trial judge may treat this issue as peripheral when assessing an adult witness’s credibility in the context of remembering events from childhood.

[51] The trial judge described the complainant’s accounts of the frequency of the abuse as “wildly varying”. She described those accounts in the following two paragraphs of the reasons:

After this first incident, the complainant stated that “It just got worse and worse.” She said that every time the accused would try something new. She said the sexual acts occurred repeatedly, but gave inconsistent answers to questions about how many times she was sexually abused by the accused. In her testimony in chief, she stated that she went to the accused’s home every second weekend, from ages 6 until 11, and that “It continuously happened every time I was there.” In her video statement to the police the complainant said it happened ten times. She stated that every time the accused was home, every time she slept in his room, it would happen – day or night – whenever she was alone with him, and he had the chance. She stated it probably happened more than once in a day, and “probably thirty times.” When it was put to her, in cross examination, that over the numbers of weekends and years she stated the abuse occurred, it would have happened 120 times, she agreed that this was possible.

In her video statement to the police, and in her testimony, the complainant also gave wildly varying estimates of the frequency with which the various sex acts were performed by the accused. She stated that after the first time, he “had me do a lot of stuff,” and that this happened “every time except the first time,” “almost every time,” “probably three or four times,” “two times,” “ten times”, and “random times throughout the years he was molesting me.” Ultimately she testified that she “lost track of how many times. It just happened repeatedly. I got used to it.”

[52] The trial judge acknowledged these inconsistencies in her analysis of the complainant’s credibility and reliability, but discounted them on two bases. First, the complainant had such a troubled childhood, she could not be expected to remember “the exact number of times” or “the exact way” in which the sexual abuse occurred. As an adult witness, she testified that she lost track of the number of times and just got used to it. The trial judge found these statements credible and explanatory. Second, the frequency of the abuse was a peripheral matter.

[53] While this analysis follows the Supreme Court jurisprudence in assessing the evidence from the perspective of an adult recalling terrible events from her past, it takes no account of the complainant’s inconsistency in recounting the events to the police as an adult, then to the court the next year, going from abuse occurring 10 times to possibly 120 times, and the effect of this inconsistency on the credibility and reliability of her account in her evidence. As this court stated in M. (A.), at para. 12, “one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions.”

[54] The complainant went to the police as an adult and reported her story. Although the trial judge was entitled to treat the frequency of the abuse as a peripheral matter in terms of an adult recalling events from childhood, the trial judge failed to also treat and assess the major inconsistency between the complainant’s report to the police and her trial evidence the next year about the number of times the sexual abuse occurred, as a prior inconsistent statement. She failed to consider how this significant change in the complainant’s memory should be viewed in the context of both her credibility and reliability in recounting the events in a formal context with legal consequences.

2. Failure to adequately explain significant conclusions and inferences from the evidence of the complainant and of the mother that did not accord with the logic of the circumstances

[55] The trial judge accepted the evidence of the complainant on the issue of where the complainant slept when she stayed at her father’s place on weekends, a critical issue of dispute between the complainant and the appellant. There was no other evidence on the issue. The complainant testified that she would not sleep with her grandmother because she wet her bed. The trial judge acknowledged that the sleeping arrangements were relevant in light of the appellant’s denial that the complainant ever slept with him. The trial judge concluded that, in light of the complainant’s bed-wetting problem, it was “reasonably possible that the complainant was consigned to the accused’s bedroom to sleep.”

[56] This reasoning by the trial judge did not address the obvious issue with this conclusion – that the complainant also would have the bed-wetting problem in the appellant’s bed – and how a teenage boy would react to having a small girl wet his bed on a semi-regular basis. The other issue not considered by the trial judge was the likelihood of adults like the aunt and grandmother putting a young girl in the same bed as a teenage boy.

[57] Again, it was open to the trial judge to make the finding she did, if she could explain her conclusion on the basis of the evidence before her. However, in light of the appellant’s denial, the trial judge was obliged to show that she considered the problems with the evidence, and explain how she decided to believe the complainant in the face of those problems.

[58] The second important example of this problem with the trial judge’s analysis related to the evidence of the incriminating phone call. The trial judge accepted that the mother had a phone conversation with the appellant when he was 18, where he admitted that he sexually abused her daughter. The appellant denied it. The trial judge found the mother’s evidence to be corroborative of the evidence of the complainant. It was obviously of critical importance.

[59] The final branch of the trial judge’s analysis of the Crown case was her assessment of the evidence of the mother, and in particular, the mother’s reaction to the disclosure of the abuse by her daughter and the immediate admission of guilt by the appellant.

[60] In recounting the evidence of the witnesses, the trial judge described how, following the critical telephone call with the appellant, the mother did not immediately call the police. The mother gave several explanations for this. One was that she did not feel she had enough information to call the police, regardless of what the appellant had told her on the phone. She also felt that because the appellant was family, although he had already hurt her daughter, she did not want to hurt him. She thought the best way to deal with what had occurred was for both her daughter and the appellant to get counselling, although she testified that she knew he never did.

[61] The trial judge found it “[m]ost extraordinary of all” that the mother did not end her relationship with her sister-in-law, the appellant’s mother, but remained friends with her and continued to talk to her.

[62] Therefore, in her analysis of the credibility of the evidence of the mother, and in particular that the incriminating phone call with the appellant had taken place, despite his denial, the trial judge had to deal with the “extraordinary” reaction of the mother to the disclosure of the abuse of her daughter.

[63] She found there was nothing in the evidence to suggest why the mother would fabricate her evidence. The trial judge reasoned that the mother’s “extraordinary lack of animus” towards the appellant and his family was what gave her account credibility. She found nothing illogical or incredible about the mother’s desire to maintain good relations with the appellant and his mother as family, or about the fact that she did not hate them and did not want her daughter to do so either.

[64] With respect to the trial judge, this reasoning is conclusory and insufficient to explain her decision to accept this evidence. As she had observed earlier, the mother’s reaction to the disclosure that her daughter had been sexually abused by her cousin was extraordinary. The mother failed to call the police to protect her 11-year-old daughter and to hold the appellant accountable. Her explanation that she did not think she had enough information to call the police when the appellant had confessed to her was illogical. She also invited the appellant to her home for a birthday party, knowing her daughter would be present and would have to face the person who she said had sexually abused her.

[65] The trial judge did not explain how the mother’s lack of animus – animus that one would normally expect from a mother against someone who had hurt her child in an egregious way – supported her credibility. That is, she did not explain the logic of using a reaction that one would not expect from a mother to bolster her credibility as a witness, rather than undermine it.

[66] Although the trial judge was entitled to accept the evidence of the mother with respect to the phone call, in light of the appellant’s denial, it was incumbent on the trial judge to give a basis for her finding that bears scrutiny.

3. Effect of the Crown’s failure to call expert evidence

[67] The appellant also submits that the trial judge erred by giving weight in her analysis to an inference of sexual abuse drawn from the complainant’s behavior in childhood – including bed-wetting, soiling herself and acting out – without expert evidence. The Crown’s position is that the trial judge was careful not to draw this inference, but only used these behaviours as part of the complainant’s history in the assessment of her credibility.

[68] A close reading of the reasons supports the position of the Crown that the trial judge acknowledged that an inference of abuse could be drawn from the complainant’s history, but that other inferences were also possible. The trial judge said: “In this context the history is a factor to be weighed in assessing the complainant’s credibility, and I have taken it into account.” I would not give effect to this ground of appeal.

Conclusion

[69] In applying the burden of proof beyond a reasonable doubt and using the rule in J.J.R.D., the trial judge rejected the testimony of the appellant and found it did not raise a reasonable doubt because she accepted as true the evidence of the complainant and her mother.

[70] The trial judge was entitled to make those findings, as long as she gave adequate reasons that explained how she resolved material inconsistencies and discrepancies on significant matters in the evidence she accepted.

[71] In my view, the totality of the errors by the trial judge in failing to resolve important discrepancies in the evidence, or failing to do so in a cogent manner where required, undermines the reliability of her analysis; it does not amount to “a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence” of the Crown case, in accordance with J.J.R.D., and constitutes reversible error. See also M. (A.), at paras. 18-19, 27.

[72] I would allow the appeal, set aside the convictions and order a new trial. As a result, I have not addressed the sentence appeal.

Released: July 15, 2016 (“K.F.”)

“K. Feldman J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. L.B. Roberts J.A.”