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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

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.

486.6(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.

Court of Appeal for Ontario

Date: November 23, 2017

Docket: C62080

Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Jitender Krishan Sahdev Appellant

Counsel: Mark Halfyard and Breana Vandebeek, for the appellant Kathleen Farrell, for the respondent

Heard: August 29, 2017

On appeal from the order of Justice Andrew J. Goodman of the Superior Court of Justice, dated February 25, 2014, and from the convictions entered by Justice A. Duncan Grace of the Superior Court of Justice, sitting without a jury, on December 11, 2015.

Trotter J.A.:

A. Introduction

[1] Jitender Sahdev, the appellant, was trained as a surgeon in India. Because he was not qualified as a doctor in Canada, he opened a massage and yoga studio with his wife. He was charged with sexually assaulting two female massage clients.

[2] The Crown wanted the charges tried together. The appellant wanted separate trials. Well before his trial date, the appellant applied for severance. The application judge, who was then assigned to be the trial judge, dismissed the application. He promised to deliver written reasons at a later date, but never did so. As it turned out, a different judge conducted the trial. The trial judge found the appellant guilty on both counts.

[3] The appellant challenges his convictions on several grounds. I am not persuaded that the trial judge committed any errors. However, in my view, the appeal must be allowed and a new trial ordered because the application judge's failure to provide reasons for refusing severance frustrates meaningful appellate review.

B. The Severance Application

[4] The offences for which the appellant was convicted occurred on June 11 and 12, 2012. The appellant was originally charged in separate Informations. An Information containing both counts was subsequently sworn. Following committal to stand trial, an indictment was preferred that contained both counts.

[5] The appellant originally elected to be tried by judge and jury. On February 21, 2014, more than a year and half before trial, he re-elected to be tried by a judge sitting alone. On the same day, he applied for severance.

[6] In materials filed before the application judge, defence counsel (not Mr. Halfyard or Ms. Vandebeek) contended that there was a "likelihood" that the appellant would testify in relation to one of the complainants (N.P.), but a "substantially lesser likelihood" that he would testify in relation to the other (A.W.). The trial Crown (not Ms. Farrell) argued that the appellant's proposal to testify in relation to just one count was not realistic.

[7] Until this point in the proceedings, the Crown had considered bringing a cross-count, similar fact evidence application. During the severance application, the Crown advised that it might also call three other women as similar fact witnesses. Overall, the Crown was non-committal on the similar fact issue, and said it would make a firm decision at trial. Defence counsel conceded that, if the application judge determined that it was likely that the similar fact application should succeed, then "the application for severance would fall."

[8] The application judge adjourned the case to February 25, 2014, "for my oral decision on the severance application." On that date, he said:

As I mentioned, written reasons to follow during the course of the judgment in this case. Having reviewed the material, the submissions of counsel, and for written reasons to follow, the application for severance is dismissed.

As previously noted, the application judge did not conduct the trial, nor did he release reasons on the severance application.

C. The Proceedings at Trial

(1) Introduction

[9] The trial commenced 20 months later before a different judge. Although reasons for refusing the severance application were still outstanding, defence counsel did not renew the application before the trial judge.

[10] Both complainants testified, as did the appellant and his wife, along with a couple of other massage and yoga clients. The three additional similar fact witnesses mentioned by the Crown on the severance application did not testify.

[11] The events took place at the premises of Savy International ("Savy"), the massage and yoga studio operated by the appellant and his wife in London, Ontario. The two complainants, A.W. and N.P., came to the studio in similar circumstances – both purchased discounted massage coupons on a website called "Dealfind". A.W. received her massage on June 11, 2012; N.P. had hers on June 12, 2012.

(2) The Evidence Concerning N.P.

[12] N.P. was 25 years old at the time. During her massage, N.P. was naked, but under a draping sheet. She testified that, as the appellant massaged her thighs, his fingers lightly grazed her vagina. He also massaged her breasts and briefly put his thumbs on her nipples. The appellant then massaged her outer labia with both hands. N.P. complained that she was in pain because she had a clitoral abscess. The appellant told her she did not. He massaged her clitoris. N.P. verbalized her discomfort, but he applied pressure in the area for five to six minutes. He stopped because she continued to complain of pain. The appellant then kissed N.P. on the mouth three times until she turned her head away.

[13] N.P. testified that, after the massage was finished, she calmed herself and quickly left the premises. She got into her car, screamed loudly, and then called her boyfriend. Her boyfriend called the police, and N.P. spoke to them that same night.

[14] The appellant testified and denied touching N.P.'s breasts or vagina. As the massage progressed, N.P. told him that she experienced pain in her breast and from a clitoral abscess. The appellant said he was "offended" because N.P. had failed to note these issues on the intake form she completed upon her arrival at Savy. According to the appellant, having learned of his medical training from his website, N.P. asked him to examine her breast. The appellant declined and told her to consult a doctor. Later in the massage, and again because of the appellant's training as a surgeon, N.P. asked him to examine the abscess on her clitoris. He refused, advising her that he did not have the necessary tools and was not qualified in Canada. The appellant encouraged N.P. to sign up for a trip that he was organizing to a yoga retreat in India. If she came along, the appellant said he would introduce her to doctors who could examine her clitoral abscess. N.P. denied asking the appellant to examine her breast or her clitoris. She said there was no discussion of yoga or treatment in India.

[15] The defence called the appellant's wife and another Savy client to suggest that nothing untoward happened during N.P.'s massage. Both witnesses saw N.P. leave the premises after the massage. She appeared to be fine. Ms. Sahdev said that N.P. smiled and said the massage was "lovely". The client said that N.P. looked like a "normal person" and did not look angry or upset. The client did not hear any unusual sounds (i.e., screaming) coming from the parking lot.

[16] The trial judge accepted most of N.P.'s evidence, although he did not accept that the appellant massaged her vaginal area for as long as she claimed. The trial judge rejected the appellant's evidence on this count. He variously described it in the following ways: "defies belief"; "makes no sense"; "not believable"; "nothing short of incredible and wholly unbelievable"; "unfathomable"; and "a figment of Mr. Sahdev's imagination".

(3) The Evidence Concerning A.W.

[17] A.W., who was 27 years old, came to Savy on June 11, 2012. She completed the intake form and indicated that she suffered from multiple sclerosis and had tension and soreness in her back and neck. She anticipated receiving a relaxing back, shoulder, and neck massage.

[18] A.W. went into the massage room and removed her upper clothing and climbed under the sheet. When the appellant entered, he noticed that she was wearing pants and instructed her to remove them. He left the room while she did so. A.W. thought this request was "a little strange", but she complied. She consented to a full body massage. When the appellant returned, A.W. was covered with a draping sheet.

[19] The massage commenced with A.W. on her stomach. The draping sheet either fell or was pulled off of her at some point during the session. As the appellant was massaging her left side, he massaged A.W.'s buttocks for 10 to 15 seconds and spread her buttocks apart with his thumbs. A.W. clenched, indicating her discomfort. The appellant told her to relax and to let him do his job. While massaging her right side, the appellant did not massage her buttocks again. However, his fingers ventured into her inner thigh, near her vagina.

[20] When A.W. was on her back, the appellant briefly massaged her breasts, without touching her nipples. He then worked his way down her body and applied pressure to the top of her pubic area, but did not touch her vagina.

[21] When the massage was over, A.W. dressed and left the premises quickly. She told the appellant that she would book her next appointment online. She had no intention of doing so. A.W. did not complain for a few days, and only after seeing a press release following N.P.'s complaint.

[22] The appellant testified that, when A.W. arrived, he told her that he could not honour her coupon because it was issued in the name of her boyfriend. She was told that she would have to pay for her session but could use the coupon at another time. A.W. agreed.

[23] The appellant took A.W. to the massage room and told her she could keep on all of her clothing. He said he reminded her of this again. The appellant helped her onto the table. He put a draping sheet over her, even though she was fully clothed. He said he did this as a matter of "courtesy". The appellant testified that the massage proceeded normally and that he did not touch her breasts, buttocks, or her vaginal area. The appellant testified that A.W. said that the massage was the best she had ever received. However, when it was over, she said she could not pay at that time and promised to return the next day to pay. She never did.

[24] The appellant's wife said that, as she was readying the room for A.W.'s massage, she heard her husband tell A.W. that she could remain fully clothed.

[25] On June 28, 2012, "Dealfind" advised the appellant that a refund had been requested for the voucher presented by A.W. On July 4, 2012, the appellant was arrested for sexually assaulting A.W.

[26] The trial judge identified shortcomings in A.W.'s evidence that "troubled" him. He attributed them to her failure to review her videotaped police interview. Nevertheless, he accepted A.W.'s evidence in general.

[27] The trial judge rejected the appellant's evidence. He found that the appellant's seemingly encyclopaedic memory of A.W's massage session was contrived. He rejected Ms. Sahdev's evidence about hearing her husband tell A.W. that she could remain fully clothed as "particularly improbable". He rejected the appellant's evidence about draping a fully clothed client as incredible. The trial judge said: "Bluntly, I do not believe either Mr. or Ms. Sahdev."

(4) The Similar Fact Application

[28] At the conclusion of the evidence, the Crown applied to have the evidence of each complainant used as similar fact evidence in relation to the other. Defence counsel resisted the application.

[29] In his reasons for judgment, the trial judge assessed the evidence in relation to each charge separately and determined that guilt had been proved beyond a reasonable doubt. He concluded his reasons by saying: "Because of my conclusions, it is unnecessary to rule on the Crown's similar fact application."

D. Issues on Appeal

[30] The appellant argues that he is entitled to a new trial because the application judge failed to provide reasons for refusing severance, thereby frustrating meaningful appellate review. He further submits that the trial judge subjected his evidence to a higher level of scrutiny than the complainants'. Finally, the appellant contends that the trial judge erred in the manner that he treated N.P.'s immediate complaint to the police.

[31] As stated at the outset of these reasons, I would allow the appeal on the severance issue. The other grounds have no merit.

E. Analysis

(1) Severance and the Failure to Give Reasons

[32] Counsel on appeal made inquiries to determine whether the application judge had delivered, or would be delivering, reasons. There was no indication that reasons were forthcoming. This court made its own inquiries, yielding identical results.

[33] The Crown properly concedes that the application judge erred in law by failing to provide reasons for his decision: see R. v. Sliwka, 2017 ONCA 426, 38 C.R. (7th) 115, at para. 2; and R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 25. The application judge's announcement of his decision to deny severance does not constitute "reasons that in any way explain that decision or expose it to proper appellate review": Sliwka, at para. 30. See also R. v. Frost, 2010 ONCA 494, at para. 2.

[34] Appellate courts must look beyond the absence of reasons and determine whether the rationale for the decision under review may be evinced from the record as a whole: see Sheppard, at paras. 25-33, 46; and Sliwka, at para. 25. It is not apparent from the record why the application judge decided the issue in the manner that he did.

[35] Having conceded the error, the Crown submits that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, should be applied. Citing R. v. Aalami, 2017 ONCA 624, at para. 18, Ms. Farrell argues that, "[i]t is open to this court to determine itself whether the counts should have been severed (and therefore whether the trial that followed was fair), based on the record before it."

[36] In making this submission, the Crown also draws upon the standard of review applicable to severance decisions. In R. v. Savoury, 200 C.C.C. (3d) 94, Doherty J.A. wrote, at para. 26:

The trial judge's decision to refuse severance was an exercise of her discretion. Like any other discretionary decision, the trial judge's refusal to grant severance is entitled to deference: R. v. Litchfield, 86 C.C.C. (3d) 97 at 113-114. This court will interfere with the exercise of that discretion where the trial judge had failed to consider the relevant principles, or has considered an irrelevant principle. If the trial judge has erred in principle, it falls to this court to decide, according to the proper principles, whether severance should have been granted. Even if a trial judge has considered the relevant principles, this court will review the trial judge's exercise of her discretion against a reasonableness standard. [Emphasis added.]

[37] Pulling these strands of s. 686(1)(b)(iii) and Savoury together, the Crown argues that this court should treat the lack of reasons in the same way as an erroneous severance decision, and then go on to determine whether severance should have been granted.

[38] I would decline to decide the case on this basis. It would involve deciding the severance issue afresh, without any foundation other than the bare conclusion of the application judge. This is a fundamentally different exercise than attempting to evince reasons from the record. We are essentially being asked to reverse-engineer the application judge's bottom line conclusion to deny severance. This is not the role cast for an appellate court when reasons have not been provided. This limit is recognized in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, in which Charron J. wrote the following, at para. 32:

This exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge. Where the trial judge's reasoning is not apparent from the reasons or the record, as in the instant case, the appeal court ought not to substitute its own analysis for that of the trial judge (Sheppard, at paras. 52 and 55).

See also R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135, at paras. 52 and 74. As this court said in Frost, at para. 2: "It is not for this court to make findings of fact that are necessary for the determination of the presenting legal issues."

[39] Acceding to the Crown's request would involve overshooting the limits of Dinardo in not just one, but two respects. This is because, embedded in the severance decision, is a similar fact evidence application. Because the application judge failed to deliver written reasons, this court does not have the benefit of his appraisal of the potential merits of this application. In fairness to the application judge, the Crown was non-committal on this issue. In the circumstances, the application judge may have given this factor minimal weight. But without reasons, we are left to guess.

[40] The issue is further complicated by what happened at trial. For perfectly legitimate reasons, the trial judge determined that he did not need to consider the similar fact application. He evaluated the evidence on each count separately.

[41] This combination of circumstances, involving a decision without reasons on one issue (severance), coupled with no decision on the other (similar fact evidence), presents serious challenges for appellate review. Both are discretionary decisions attracting deference on appeal. In the case of severance decisions, see R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 354; and Savoury, at para. 26. For similar fact rulings, see R. v. B. (C.R.), [1990] 1 S.C.R. 717, at p. 738; R. v. Arp, [1998] 3 S.C.R. 339, at para. 42; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73; and R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 153.

[42] In all of the circumstances, I have concluded that this is not an appropriate case for this court to decide these two issues afresh. Regrettably, these issues must be resolved at a new trial.

[43] I appreciate the repercussions of deciding the case on this basis. The appellant's trial was a model of fairness. As I explain below, the trial judge made no errors in conducting the trial. However, severance is not a minor or technical matter; it is a critical procedural decision, governed by the "interests of justice": Litchfield, pp. 349-350.

[44] The appellant was entitled to know why it was not in "the interests of justice" (see s. 591(3) of the Criminal Code) to conduct two short trials instead of one slightly longer trial. In order to meaningfully review the application judge's decision not to order severance, this court requires considered reasons for making this discretionary decision, reasons that would have included at least some preliminary assessment of the similar fact evidence issue. Without reasons on either issue, this court is required to start from scratch, contrary to the proscription in Dinardo.

[45] The Crown relies on the decision of this court in Aalami, in which the trial judge failed to provide reasons for dismissing an application under s. 11(b) of the Charter. This court determined that there was no need for a new trial because it was "able to explain the result to the parties": at para. 18, citing Sheppard, at para. 55. The court applied the presumptive guidelines established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and dismissed the appeal.

[46] The test for severance is not so straightforward or self-applying. It is highly discretionary and requires a balancing of numerous factors. In Last, the Supreme Court of Canada articulated the factors to be considered. As Deschamps J. wrote, at para. 18:

The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons. [Citations omitted; emphasis added.]

[47] A number of the underscored factors in this passage were in play in this case. Some pointed in the direction of a single trial, such as the legal and factual nexus between counts, along with the desire to avoid a multiplicity of proceedings. Moreover, and while not mentioned in Last, the fact that the appellant ultimately elected trial by judge alone may have gone some way to ameliorating any prejudice involved in a joint trial.

[48] Some of the other Last factors were more contentious – the proposed use of similar fact evidence and the appellant's stated desire to testify only in relation to the N.P. count. Realistically, both of these issues had to be addressed in order to properly decide the severance issue.

[49] As the Court held in Last, the admission of similar fact evidence will favour a joint trial. However, assessing the viability of a similar fact application on a severance application can be tricky, given that the burden to achieve severance is on the defence, while the burden to admit similar fact evidence is on the Crown. The exercise must be approached with great care: see Last, at para. 33; Arp, at para. 52; and R. v. Waudby, 2011 ONCA 707, at para. 4.

[50] The Crown was reticent to fully argue the similar fact issue before the application judge. Moreover, the factual basis of the similar fact application had changed dramatically by the time the trial commenced 20 months later. The three non-complainant witnesses did not testify at trial. This shift in position was not necessarily fatal to the correctness of the decision to refuse severance. However, the application judge's views on this issue, and the extent to which he relied on the possibility of the three additional witnesses testifying, would be important in reviewing his decision.

[51] The viability of the similar fact application impacted on the appellant's desire to testify only in relation to N.P. Counsel for the appellant told the application judge that the case for severance would dissolve if the similar fact application were to be allowed. In these circumstances, the appellant would not benefit from separate trials; he would be required to confront the testimony of both complainants in either scenario. Without an indication as to the viability of the similar fact application, it is difficult to evaluate the reasonableness of the appellant's stated intention to testify in relation to just one of the counts.

[52] As stated above in para. 6, the application judge was advised that there was a "likelihood" that the appellant would testify on the N.P. count but a "substantially lesser likelihood" that he would testify in relation to A.W. These are rather tentative expressions. Similar language was used in Last, which the trial judge in that case found to be too vague to be taken seriously, at para. 22. However, an accused person is not required to commit to a course of action in advancing a defence. As Deschamps J. stated, at para. 26:

However, while a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused's burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention. The information could consist of the type of potential defences open to the accused or the nature of his testimony…. However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate. [Citation omitted; emphasis added.]

[53] It might be said that there was an objective rationale for the appellant to testify only on one count. It was at least arguable. While there were many similarities in relation to the two counts, N.P. alleged a more invasive sexual assault, one that might have led to a different tactical approach. To succeed on the N.P. count, especially given that she testified the appellant kissed her, the appellant may have been required to testify in order to effectively challenge N.P.'s version. With A.W., the charge was fought on the more straightforward basis of a mistaken impression about the nature of touching during the massage.

[54] The appellant did not need to convince the application judge that this was a winning strategy; he only needed to provide an objective rationale for testifying on one count but not the other.

[55] In Last, the Court found that the appellant's strategy was objectively justifiable. However, in the final analysis, it was not the only factor. In this case, it was a factor that needed to be weighed in the context of all the other factors, including the viability of the similar fact application.

[56] The Crown argues that, if s. 686(1)(b)(iii) is not applied to the A.W. count (on which the appellant said he was reluctant to testify), it should be applied to the N.P. count (on which the appellant said there was a likelihood that he would testify). I would decline to apply the proviso in this manner. To do so would suggest that the trial was only half fair. Preserving the conviction on one count, but not the other, is an inadequate half measure that fails to properly vindicate the duty to give reasons for a fundamental decision, which is at the heart of this appeal.

[57] I would allow the appeal on this basis and order a new trial. However, for the sake of completeness, I briefly consider the appellant's other grounds of appeal.

(2) Uneven Scrutiny

[58] The trial judge did not approach the evidence unfairly by applying differential standards of scrutiny to the Crown and defence evidence. He carefully reviewed the evidence of each witness for honesty, plausibility, as well as internal and external consistency. This was undertaken through the lens of the presumption of innocence and the proper burden of proof.

[59] This court has considered the complaint of uneven scrutiny on many occasions. The argument usually fails. In R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, Laskin J.A. explains why. At para. 39, he said:

The "different standards of scrutiny" argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations.

[60] In R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, Pardu J.A. elaborated on what is required to succeed, at para. 19:

For an appellant to successfully advance this ground of appeal, she must identify something clear in the trial judge's reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge's credibility assessments. [Citations omitted.]

[61] The appellant has been unable to identify anything in the trial judge's reasons that would substantiate his claim. The passages he points to are minor and unimportant, holding the trial judge's reasons to an impossible standard. Moreover, the trial judge was aware of this body of law. He said the following in his reasons:

In assessing the evidence of witnesses, the same level of scrutiny must be applied to all of the evidence provided at trial, whether given or introduced by a complainant, the defendant or some other witness. I believe I have done so.

[62] The trial judge's detailed reasons confirm that he observed the standard he correctly identified. There is no merit to this ground of appeal.

(3) Immediate Reporting to the Police

[63] In what appears to be a reverse recent complaint argument, the appellant argues that the trial judge erred in relying on the fact that N.P. reported the incident to the police almost immediately. The trial judge referred to this evidence when recounting defence evidence concerning N.P.'s seemingly normal demeanour when she left the premises. N.P. said that she went into her car, screamed, and then called her boyfriend, who told her to go talk to the police immediately. She did. As the trial judge said in his reasons:

[N.P.] complained to the police within hours, if not minutes. Mr. Sahdev was arrested about six hours later. The fact [N.P.] made an almost immediate complaint to the police is not proof of Mr. Sahdev's guilt.

[64] The trial judge did not err in dealing with this evidence. At trial, the appellant's counsel argued that N.P.'s credibility was in doubt because she failed to complain earlier, inside the Savy premises. The defence also suggested collusion on the part of the complainants. In these circumstances, the trial judge did not err in using this evidence in the way that he did: see R. v. D.B., 2013 ONCA 578, 310 O.A.C. 294, at paras. 30-38. He cautioned himself appropriately.

[65] I would reject this ground of appeal.