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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. R.D., 2016 ONCA 574

DATE: 20160719

DOCKET: C59486

Laskin, Cronk and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.D.

Appellant

Brad Greenshields, for the appellant

Katherine Beaudoin, for the respondent

Heard: March 8, 2016

On appeal from the convictions entered on May 29, 2014 and the sentence imposed on September 26, 2014 by Justice Martin S. James of the Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A. Overview

[1] The appellant, R.D., appeals convictions for the sexual abuse of his step-daughter, K.Y.

[2] K.Y. was born in 1993. She grew up in rural Ontario with her mother, the appellant, two older step-sisters, and two younger half-sisters. She testified that for a ten-year period beginning around 2002, when she was nine years old, the appellant sexually abused her “once or twice a year, if that”. Typically he came into her bedroom in the morning while she was still sleeping and no one was home. He lay down in bed beside her, fondled her vagina, and then had unprotected sexual intercourse with her, following which he generally went into the bathroom to ejaculate. She said that the last incident of sexual abuse occurred in May 2012, when she was 18, about a year after she had graduated from high school. She left home five months later and soon after reported the abuse to the police.

[3] The appellant testified and denied that he had ever sexually abused K.Y. One of K.Y.’s older step-sisters, A.D., also testified for the defence.

[4] The trial judge convicted the appellant of sexual interference, sexual exploitation, and sexual assault, and sentenced him to four years and ten months in the penitentiary. After finding K.Y.’s testimony to be credible and reliable, the trial judge concluded: “Having accepted the evidence of the complainant, as I do, having found her testimony to be credible and reliable, I am prepared to flatly reject the conflicting testimony of the accused even though there are no obvious flaws with it.”

[5] The appellant appeals only his convictions, having abandoned his sentence appeal. He raises three issues:

(1) In rejecting the appellant’s evidence because he accepted the complainant’s evidence, did the trial judge erroneously rely on this court’s judgment in R. v. J.J.R.D.(2006), 2006 40088 (ON CA), 218 O.A.C. 37 (C.A.)?

(2) Did the trial judge misapply the burden of proof?

(3) Did the trial judge err by holding that K.Y.’s prior out-of-court statements to her mother were inadmissible?

B. The Issues

(1) Did the trial judge erroneously rely on this court’s judgment in R. v. J.J.R.D.?

(a) Background

[6] J.J.R.D. is an important case about the sufficiency of a trial judge’s reasons. It has its origins in the Supreme Court of Canada’s landmark decision in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, where the Court first said that trial judges in criminal proceedings have a duty to give sufficient reasons for their decisions. Sufficiency is not a stand-alone ground of appeal but has to be assessed in the light of the purposes of reasons. Two important purposes are explaining to accused persons why they have been convicted and permitting effective appellate review: Sheppard, at paras. 24-25. An appellate court asks: do the reasons tell the parties why the accused was convicted, and do they enable us to understand the basis for the trial judge’s decision?

[7] Following Sheppard, provincial appellate courts appeared to disagree on whether these two purposes could be met by a trial judge’s conclusory rejection of an accused’s evidence. In this court the issue was resolved by Doherty J.A.’s judgment in J.J.R.D. He wrote, at para. 53:

The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

(b) The trial judge’s reasons

[8] The trial judge relied on J.J.R.D. in assessing the credibility of K.Y. and the appellant. He first framed the issue he had to decide as follows:

The issue in this case is whether the Court can reject the evidence of the accused and find him guilty solely on the basis of the Court’s acceptance of the complainant’s evidence.

[9] Next, the trial judge considered the appellant’s evidence. He found no obvious flaws in it:

My assessment of the evidence of the accused is that it is neither, impressive or unimpressive. His demeanour while testifying was unremarkable. His answers to the cross-examiner’s questions in substance and in tone did not appear evasive. He did not contradict himself. I have also considered that, his evidence being a general denial of the complainant’s allegations must necessarily lack details. There was no obvious flaw or shortcomings in his testimony.

[10] The trial judge then extensively canvassed K.Y.’s evidence. He found her evidence to be “completely credible”:

At the same time, as for the complainant, I found her to be completely credible. She gave her evidence in a manner that sounded like she was recalling real incidents. She acknowledged that she remained outwardly friendly to the accused. She gave him hugs at appropriate times at family gatherings. She asked him for rides on occasion. She said she wasn’t afraid to go with him in the car because he had never assaulted her in the car.

[11] The trial judge considered various “discrepancies” in K.Y.’s evidence but held that they did not undermine her core allegations of sexual abuse:

Despite these questions and answers, the complainant was unshaken in her testimony respecting the particulars of the assaults and the circumstances in which they occurred.

The complainant did not exaggerate or engage in hyperbole. She did not hesitate when giving her answers. She answered questions directly and was not evasive or defensive. She did not challenge counsel when pressed during cross-examination. I found her to be a thoroughly credible witness who gave truthful and reliable evidence.

[12] The trial judge accepted that he could not reject the accused’s evidence by looking only at his testimony. He said – correctly – that he was required to consider all the evidence to determine whether there was a reasonable doubt about the accused’s guilt. He concluded in words drawn from J.J.R.D., but which the appellant now challenges on appeal:

Standing alone the evidence of the accused cannot support a finding of guilt, but when weighed against the totality of the evidence and in particular the evidence of the complainant, I am not left with a reasonable doubt regarding the guilt of the accused.

Having accepted the evidence of the complainant, as I do, having found her testimony to be credible and reliable, I am prepared to flatty reject the conflicting testimony of the accused even though there are no obvious flaws with it.

(c) Discussion

[13] The appellant submits that the trial judge erred by finding him guilty solely because he accepted that K.Y.’s evidence was credible. Indeed, the appellant contends the trial judge set out the issue he had to resolve using precisely that incorrect framework. Doing so ignored the reasonable doubt standard. Instead, the trial judge had to consider whether, based on the evidence as a whole, he could accept K.Y.’s evidence beyond a reasonable doubt even if he did not accept the appellant’s evidence. The appellant relies on this court’s decision in R. v. O.M., 2014 ONCA 503, 318 O.A.C. 390, which he says qualifies or at least clarifies J.J.R.D.

[14] I do not agree with the appellant’s submission. In my view, J.J.R.D. and O.M. are entirely consistent, and the trial judge’s reasons are faithful to them.

[15] J.J.R.D. and O.M. make two important and related points: one about the sufficiency of a trial judge’s reasons; the other about the burden of proof. For convenience, I repeat para. 53 of Doherty J.A.’s reasons in J.J.R.D.:

The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[16] At para. 42 of O.M., which the appellant relies on, my colleague Cronk J.A. cautioned:

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

[17] Three paragraphs later, Cronk J.A. quotes and relies on para. 53 of J.J.R.D.:

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

[18] The sufficiency point: the bare rejection of an accused’s evidence will meet the two important purposes for giving sufficient reasons – explaining why the accused was convicted, and permitting effective appellate review – provided that the bare rejection is based on a “considered and reasoned acceptance” of a complainant’s evidence. Implicitly, the bare acceptance of a complainant’s evidence and the bare denial of an accused’s evidence (“I accept the complainant’s evidence; therefore I reject the accused’s evidence”) are unlikely to amount to sufficient reasons. A trial judge who relies on the formulation in J.J.R.D. should at least give grounds for accepting a complainant’s evidence.

[19] In J.J.R.D., Doherty J.A. placed his point about the sufficiency of reasons in the context of the evidence as a whole and the reasonable doubt standard. The accused’s denial in that case, when “stacked beside” the complainant’s evidence and her diary entries, “did not leave the trial judge with a reasonable doubt.” And so Doherty J.A. explained that “an outright rejection of an accused’s evidence” may be “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence…” (emphasis added). In doing so, he addressed the need for the trial judge to be convinced that the conflicting credible evidence established the accused’s guilt beyond a reasonable doubt.

[20] The burden of proof point: a trial judge who says only “I reject the accused’s evidence because I accept the complainant’s evidence” risks being held by an appellate court to have chosen which of the two parties to believe and failed to determine whether, on all the evidence, the accused’s guilt had been proved beyond a reasonable doubt. That risk is what Cronk J.A. cautioned about in O.M. But, as O.M. also shows, a trial judge can still reject an accused’s evidence because either the complainant’s evidence or other evidence establishes the accused’s guilt beyond a reasonable doubt. Thus, J.J.R.D. and O.M. are entirely consistent.

[21] In the case before us, the trial judge’s reasons were sufficient. He did summarily reject the appellant’s evidence though it had no obvious flaw in it. But he did so based on a “considered and reasoned acceptance” of K.Y.’s evidence. He discussed her evidence at length, including the discrepancies in it, and gave several grounds for why he found her evidence to be both credible and reliable.

[22] The trial judge also properly applied the burden of proof. In his initial formulation of the question, he did use language similar to that cautioned against in O.M. But the rest of his reasons show he properly applied the reasonable doubt standard. He expressly instructed himself that he must “avoid an either/or approach in choosing between competing versions of what actually happened”. He said that “[g]uilt or innocence is to be determined by considering all of the evidence.” And then he found:

Standing alone the evidence of the accused cannot support a finding of guilt, but when weighed against the totality of the evidence and in particular the evidence of the complainant, I am not left with a reasonable doubt regarding the guilt of the accused.

[23] That finding, in substance, is the same finding made by the trial judge in J.J.R.D. and upheld by this court. I would not give effect to the appellant’s submission on the first issue.

(2) Did the trial judge misapply the burden of proof?

[24] The appellant submits the trial judge misapplied the burden of proof in two ways: in finding K.Y.’s evidence credible, the trial judge overemphasized her demeanour; and he failed to consider whether the exculpatory evidence of K.Y.’s older sister A.D., who testified for the defence, raised a reasonable doubt. I do not agree with either branch of the appellant’s submission.

[25] On the first branch, in assessing K.Y.’s evidence and finding it credible, the trial judge did say she “sounded authentic” and she “sounded like she was recalling real events”. But these comments were relatively minor points in his credibility analysis. Despite academic and judicial commentary suggesting demeanour evidence is unreliable, under Canadian jurisprudence it remains relevant to the assessment of a witness’s credibility: see, for example, R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; and O.M., at para. 34. As long as a trial judge does not unduly rely on demeanour to make a credibility finding, the trial judge will not fall into error. Here, the trial judge did not unduly rely on K.Y.’s demeanour in finding her evidence credible.

[26] On the second branch, A.D. is the appellant’s daughter from a previous marriage. She was 26 when she testified at trial. She gave evidence about a Skype conversation she had with K.Y. in September or October of 2012. She claimed K.Y. told her she had lost her virginity to J.M., who later became K.Y.’s fiancé. According to A.D., K.Y. said that when she had sex with J.M., it was the first time she had had sex with anyone.

[27] K.Y. acknowledged the Skype conversation and that she had sex with J.M. But she denied telling A.D. she was previously a virgin. At trial, she said the appellant was the first person she had sex with.

[28] If, after considering all of the evidence, the trial judge had accepted A.D.’s version of the Skype conversation or found that it raised a reasonable doubt about whether K.Y. and the appellant had ever had sex, then the appellant would be entitled to an acquittal. But the trial judge rejected A.D.’s evidence. He said:

I do not accept the evidence of A.D. on this issue. Ms. D. is clearly aligned with her father, the accused. At best, I conclude that she may have misinterpreted what she was told by the complainant.

[29] The trial judge had good reasons for not accepting A.D.’s evidence. A.D. admitted she resented K.Y. for breaking up the family and having the appellant arrested. Then she admitted writing offensive comments about K.Y. and K.Y.’s mother on her Facebook page. The trial judge did not err because he did not expressly advert to whether A.D.’s evidence raised a reasonable doubt about the appellant’s guilt. That it did not raise a reasonable doubt was evident from the trial judge’s rejection of A.D.’s evidence and his acceptance of K.Y.’s testimony.

[30] I would not give effect to the appellant’s submissions on the second issue.

(3) Did the trial judge err by holding that K.Y.’s prior out-of-court statements to her mother were inadmissible?

[31] For ten years, K.Y. did not tell anyone in authority outside the home that the appellant had sexually abused her. She testified she was afraid that if she disclosed the abuse the family would split up and she would go into foster care.

[32] K.Y. did, however, disclose the abuse to her mother. K.Y. testified that when she was twelve or thirteen, her mother told her for the first time that the appellant was not her biological father. K.Y. responded that the appellant had touched her inappropriately, and she pointed to her vagina. K.Y.’s mother said they would talk later and, when they did, her mother questioned K.Y. about what had happened. K.Y. became uncomfortable and told her mother it was just a bad dream.

[33] After the initial conversations, K.Y.’s mother again asked her daughter whether the appellant had really sexually abused her. K.Y. testified at trial that she lied to her mother and said he had not; it was just a bad dream.

[34] The trial judge heard this evidence about K.Y.’s statements to her mother and ruled it inadmissible. He took the view that K.Y.’s out-of-court statements to her mother were prior consistent statements, which could not be used to bolster her trial testimony, and were not needed to rebut a claim of recent fabrication.

[35] The appellant acknowledges that as K.Y. did not adopt at trial her previous denials of the abuse, these denials could not be used for the truth of their contents. But the appellant submits that the trial judge erred in ruling K.Y.’s previous statements inadmissible on two grounds. First, they were admissible as part of the narrative as they put what allegedly occurred in context. Second, K.Y.’s previous denials of abuse were not prior consistent statements. They were prior inconsistent statements. Therefore, though not admissible for their truth, they were relevant and admissible to assess the reliability of her trial testimony: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12-13.

[36] On the appellant’s first ground, I agree K.Y.’s previous statements to her mother were admissible as part of the narrative and sequence of what occurred. Nothing turns on this apparent error of the trial judge. He heard the evidence and considered it in his reasons.

[37] On the appellant’s second ground, K.Y.’s previous statements to her mother had both consistent and inconsistent aspects. Her initial disclosure of sexual abuse was a consistent statement. Her later denials or recantations were inconsistent statements. As the appellant submits, these inconsistent statements were relevant to assessing the reliability of K.Y.’s evidence at trial.

[38] Still, though the trial judge ruled the statements inadmissible, later in his reasons he considered K.Y.’s denials. He accepted her explanation for why she insisted the appellant’s abuse was part of a bad dream:

There was an air of resignation in her description of the assaults. He was the only father she had ever known. She was afraid the disclosure would rupture their family. She was afraid that if she told someone what was happening, she may have to live somewhere else or go into foster care. When asked by a staff member at her school, if something was going on at home, she denied any problems. Her mother was not employed, so there was a lack of economic independence. Her family lived in the country, there was nowhere to go except when she got rides to go into town.

After she moved to Belleville, the complainant acknowledged that she engaged in Facebook communications and dialogue with the accused. These communications were put in evidence at the trial and they had a friendly and familiar tone to them.

At the same time, there was a sense of passivity and acceptance of her lot in life, in the way the complainant gave her evidence. Her reason for not disclosing when she did, after learning that her younger sister would be spending more time at home alone with the accused, sounded authentic. She seemed prepared to accept without complaint what had happened to her, but she wasn’t prepared to risk having her sister assaulted as well.

[39] The trial judge concluded that K.Y.’s refusal to disclose the abuse did not detract from the credibility or reliability of her evidence. On the record before him, the trial judge was entitled to come to that conclusion. I would not give effect to the appellant’s submission on the third issue.

C. Conclusion

[40] For the above reasons I would dismiss the appeal. At bottom, the appellant challenges the trial judge’s credibility findings. There is no basis for this court to interfere with those findings.

Released: July 19, 2016 (“J.L.”)

“John Laskin J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. B.W. Miller J.A.”