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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

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. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2019-12-02

Docket: C65651

Judges: Benotto, Brown and Paciocco JJ.A.

Between

Her Majesty the Queen Appellant

and

L.M. Respondent

Counsel:

• Andrew Cappell, for the appellant
• Maija Martin and David M. Reeve, for the respondent

Heard: October 30, 2019

On appeal from the acquittal entered on June 28, 2018 by Justice Gary W. Tranmer of the Superior Court of Justice.

Decision

Benotto J.A.:

[1] Introduction

[1] The trial judge acquitted the respondent of sexual assault, sexual interference, invitation to sexual touching, and assault. The four charges against the respondent arose from allegations of sexual activity with his girlfriend's daughter, who was between the ages of 11 and 14 years old at the time of the alleged offences. The Crown appeals.

[2] In a voluntary statement to the police, the respondent admitted to one instance of oral sex and one instance of penetration. He testified at trial and denied the allegations. The trial judge did not believe him and agreed with the trial Crown's characterization of specific pages within the police statement as a "confession" to "a sexual crime" upon the complainant.

[3] The Crown submits that the trial judge failed to give effect to his own findings and seeks a conviction on two of the counts (sexual assault and sexual interference) or a new trial on all counts. The respondent submits that the trial judge had a reasonable doubt with respect to all counts and the appeal should be dismissed.

[4] As I will explain, the trial judge engaged in faulty reasoning, which led to errors of law. Specifically, the trial judge failed to make necessary findings of fact and failed to reconcile the evidence with his conclusion. Consequently, his reasons are insufficient to permit appellate review. They are also insufficient to substitute a conviction on any of the counts. On this basis, I would allow the appeal and order a new trial.

Facts

[5] The complainant was placed in foster care when she was in grade two. Three years later, she returned to live with her mother, who began dating the respondent the following year. Within a short time thereafter, the complainant's mother invited the respondent to move in with her. He was in his late forties at the time. Approximately two and a half years later, the complainant disclosed several incidents of sexual abuse by the respondent that began when she was 11 years old.

[6] The following four incidents described by the complainant formed the basis of the charges:

(1) The movie night

[7] The respondent and the complainant were watching a movie on the couch sitting next to each other under a blanket. He reached down her tank top and played with her breasts. He then pulled out his penis and pushed her head down to it so that she could perform oral sex.

(2) In the bunk bed

[8] About one month after the movie night incident, while the complainant was lying on the top bunk of her bunk bed, the respondent started to play with her breasts and vagina. She tried to move away but he then put his penis in her mouth.

(3) The "two bed" incident

[9] At some point the bunk bed was replaced with two beds. The complainant was lying on top of one of the beds. The respondent got on top of her, took her pants off, then had intercourse with her and ejaculated on her stomach.

(4) Moving day

[10] During a move to a new house, the complainant and the respondent returned to the old house to retrieve items. The complainant was lying on a bed playing games on her phone. The respondent got on top of her and had vaginal intercourse with her from behind.

[11] The complainant initially recanted the allegations but later said it was because she was worried about being taken away from her mother, who did not believe her allegations and had said that the complainant would cause them financial problems. As it turns out, after she made her second statement to the police resulting in the respondent's arrest, the complainant returned to foster care.

[12] The respondent was charged that he:

Count 1

DID commit sexual assault on [the complainant] contrary to Section 271, subsection (1) of the Criminal Code of Canada.

Count 2

AND FURTHER THAT, he did with a part of his body, namely his penis for a sexual purpose, directly touch the body of a person under the age of sixteen years, namely [the complainant], contrary to Section 151 of the Criminal Code of Canada.

Count 3

AND FURTHER THAT, he did for a sexual purpose, invite a person under the age of sixteen years, namely [the complainant], to directly or indirectly touch with a part of her body the body of [the respondent], contrary to Section 152 of the Criminal Code of Canada.

Count 4

AND FURTHER THAT, he did commit assault on [the complainant], contrary to Section 266 of the Criminal Code of Canada.

[13] The respondent made three statements to the police that were admitted into evidence. In the first two statements, the respondent denied the allegations. Defence counsel acknowledged that these two statements were voluntary. The third statement, referred to at trial as the "polygraph statement", is at issue in this appeal. At trial, following a voir dire, the trial judge found the statement to be voluntary. All three statements were admitted into evidence for the truth of their contents.

[14] In the polygraph statement, Warrant Officer Rose asked the respondent questions. With respect to the "movie night", the following exchange took place:

L.M.: …And as I'm sitting like this… and she grabs my arm… and pulls it down … "Oh… come on." And I'm… "No." Then that's when she spun around… and went down on me… and then I jumped up… and I went, "No. No. I love your mother… not you."

DC Rose: Mmm… hmm…

L.M.: In that way.

DC Rose: And ah… when she went down on you… how long… did that…ah… take place?

L.M.: Seconds. Not even. As soon as… I umm… realized what she was going to do… umm… whether she just put her tongue down… or her lips touched… I just… broke her connection…

L.M.: She's facing the tv… same as I am… and she's not really laying on me... but… I have my arm up on the couch… like this… and she grabs my hand… and brings it down… and puts in onto her breasts… and I move my hand… I put it back…

DC Rose: Mmm… hmm…

L.M.: She grabs it again… and put it down. I put it back up… and I said, "[complainant's name]… no." That's when she spun around… like turned… from her back… to her face… covered… herself… and then she was going down… she was smiling… at me… and… and I'm like… "What are you doing?" And then… soons… as I felt she was touching me there… I stood up and left the room.

DC Rose: And then… she put her mouth on your penis?

L.M.: Or… something touched me… I don't know if it was her vagina… or…

DC Rose: Oh… you know… now you know (inaudible) was.

L.M.: It was some…

DC Rose: Her head's going down?

L.M.: Something… went wet… I… I don't know… and it was just the touch… and soon as she… touched me… I jumped up. I did not let her…

DC Rose: Down onto her breast… not once… but twice… and you still never did anything about it… you still sat there… and then she engaged in oral sex with you…

L.M.: Tried to. I didn't let it happen.

DC Rose: Good for you… but she went down on you… and you said you felt something like… touch… your penis…

L.M.: Yeah. Yeah.

[15] With respect to a second incident of sexual contact, the following exchange took place:

L.M.: … I turn around… and went downstairs… she followed… you know… pursued me… and umm… wanted to engage… and I kept denying her… and denying her… and denying her. I guess… I just must have got weak at one time… and ah… I didn't like… actually slip it into her… she came and sat onto me… and that's when I pushed her away. …

L.M.: You know… umm… it was probably just a bad day for me. You know? I… maybe I had a couple drinks… or… and I… weak. I must have been weak… and… she did that… and sat on me… and then I pushed her off. I said, "No. This is just wrong. This is wrong… on so many levels… you do not… you don't… I don't know why you're doing this to me."

DC Rose: Mmm… hmm…

L.M.: I feel… victimized… in the sense that… I kept pushing it away… pushing away… pushing away… and then I guess… I just… failed her… you know… as… being… honourable enough... to prevent her from going further.

DC Rose: …[J]ust a minute ago… you said… that you did take it out… and slide it inside?

L.M.: No. I didn't do that. She did.

DC Rose: Okay. Tell me what…

L.M.: She… did.

DC Rose: That's why I need you to tell me what happened.

L.M.: After that… I went downstairs… s[a]t onto the couch… and she came over… and she sat… right directly… on top of… my groin area.

DC Rose: Mmm… hmm…

L.M.: And she started… rubbing it.

DC Rose: Mmm… hmm…

L.M.: Right? And then she's… she pulls down the pants… sucks it in… and then I pushed her away…

DC Rose: Did you get aroused?

L.M.: She started arousing me. Yes. Of course. And… then… when that happened… she pulled down… her pants… and… ah… she's reaching behind… like this… and grabs me… and puts it in… and goes to sit down on me… and that's when I pushed her away… and went, "No. Please [name of the complainant]… I don't want to do this. I don't. No." I don't need to do that. I'm… I'm way too big… big anyways… anything like… I would rip you apart. …

L.M.: She… she didn't like… get the full… penetration of… my endowment… no sir. She just… sat… onto it… and I pushed her away.

DC Rose: When she straddled you… and put your penis inside of her…

L.M.: Yes.

DC Rose: Did you ejaculate?

L.M.: No.

L.M.: Yeah. The second time she... I… just like… okay. If that's what you want… what the… you know… and then… since she put it in… it was like… "owe"… like… "Well… 'cause I'm fucking way too big for you. I would rip you. …"

DC Rose: Hmm… she had a… a hard time putting it in?

L.M.: Mmm… hmm… So… I said, "It's not even… like I said... half an inch… in it... just to say… it was there."

[16] At trial, the respondent denied the allegations against him. He acknowledged making the statements to Warrant Officer Rose, but said that at all times the complainant was the aggressor and he attempted to push her away.

The Reasons for Judgment

[17] The trial judge began with a summary of the evidence.

[18] He identified considerations that would support the reliability of the polygraph statement when he said:

Having watched the entire post-polygraph interview conducted by Warrant Officer Rose, I am completely satisfied that [the respondent] was engaged, responsive, attentive, and fully understanding of the conversation he was having with the officer. There is no indication whatsoever of a breaking down of the will of [the respondent], or of an oppressive atmosphere, or of [the respondent] saying whatever the officer wanted to get the interview over with.

In the cross-examination, [the respondent] testified that he told Warrant Officer Rose the truth. "The examples I gave are real."

[19] The trial judge then instructed himself as to the three stages in the W.(D.) analysis: R. v. W.(D.), [1991] 1 S.C.R. 742. At the first stage of W.(D.), if the trial judge believes the evidence of the accused, he must acquit. The second stage of W.(D.) requires the trial judge to acquit the accused if he does not believe the accused's evidence, but was left in reasonable doubt by it. Finally, at the third stage of W.(D.), even if the accused's evidence did not leave the trial judge with a reasonable doubt, the trial judge must decide whether the entirety of the evidence he accepted left him without reasonable doubt of the accused's guilt: W.(D.), at p. 758.

Stage one

[20] At stage one, the trial judge again referred to the polygraph statement. He rejected the respondent's claim that some of his statements were inaccurate because "he was confused or stressed or hungry or thirsty or needed a break or too cold." Moreover, the trial judge agreed that the respondent used words that depicted an abnormal relationship with a stepdaughter, including:

• "This is like wrong on so many levels. This is not possible. Sorry, not doing this with you."
• "I feel victimized."
• "She's asking for it and I refused her. I have enough problems in my life."

[21] In addition, the trial judge found as follows:

[The respondent] made eight clear references to oral sex and eight clear references to penetration in his statement to Warrant Officer Rose. He denied such conduct in his trial testimony.

I agree with the Crown characterization of [the respondent's] statement to Warrant Officer Rose as transcribed from pages 142 to 144 as a confession by him to a sexual crime against [the complainant].

[22] After reviewing his concerns with the respondent's testimony and the testimony of the complainant's mother, the trial judge then commented that:

The Crown specifically seeks convictions based on [the complainant's] allegations and did not specifically advance a position for conviction on the basis of his admissions. As indicated, there are some inculpatory statements made to Warrant Officer Rose in the course of that interview.

[23] At the end of his stage one analysis, the trial judge concluded that he did not believe the respondent's denials of the substantive allegations.

Stage two

[24] At the second stage of W.(D.), the trial judge stated that the defence evidence and the evidence favourable to the defence did not leave him with a reasonable doubt as to the respondent's guilt.

Stage three

[25] The trial judge began the third stage of the W.(D.) analysis as follows:

At this step, the court must give close scrutiny to the testimony of the complainant and the difficulties that arise in the complainant's evidence.

[26] He proceeded to analyze the complainant's credibility and reliability. When listing the concerns with her credibility, he said:

Interest in sex

On her evidence, she has an interest in sex. She volunteered that she was taking sex education in school. She commented positively on [another individual's] statement as to size.… She volunteered that an average boy's penis is five and a half inches in explaining how the oral sex in the top bunk could have occurred.

[27] Following the W.(D.) analysis, the trial judge concluded he must acquit the respondent because he was left with a reasonable doubt "on the whole of the evidence."

Issues

[28] The Crown submits that the trial judge erred by: (i) failing to give legal effect to his own factual findings; (ii) failing to consider the evidence as a whole in relation to the ultimate issue of guilt or innocence; and, (iii) taking into account the complainant's "interest in sex" as a factor detracting from her credibility. The Crown seeks a conviction on counts one and two or a new trial on all counts.

[29] The respondent submits that the trial judge had a reasonable doubt as to his guilt on the whole of the evidence and the appeal should be dismissed.

[30] As I will explain, the issues in this appeal arise from the trial judge's analysis, which discloses three faults: (i) a failure to correctly address the third stage of W.(D.); (ii) a reliance on a misunderstanding of the trial Crown's position; and, (iii) a reference to the complainant's interest in sex. These issues led directly to a more general error that encompasses the Crown's grounds of appeal: the trial judge's failure to make the findings of fact necessary to explain why he was left with a reasonable doubt. The reasons are not sufficient to permit appellate review.

Analysis

[31] I begin by setting out the considerations when the Crown appeals an acquittal. I then address the three faults in the trial judge's reasoning and the insufficiency of his reasons that stemmed from these errors. Finally, I consider the appropriate remedy in allowing this appeal.

Appeal against acquittal

[32] The Crown's right of appeal against an acquittal is restricted to questions of law alone: Criminal Code, R.S.C. 1985, c. C-46, s. 676(1)(a). As this court has made clear in R. v. Trachy, 2019 ONCA 622, at para. 68, questions of law include:

misinterpretation or misapplication of salient legal standards, including the elements of the offences; assessing evidence based on erroneous legal principles; making findings of fact not based on the evidence; failing to give legal effect to findings of fact or of undisputed facts; failing to consider all the evidence bearing on guilt or innocence; failing to properly admit evidence; and, failing to provide adequate reasons: R. v. Fitton, [1956] S.C.R. 958; R. v. Audet, [1996] 2 S.C.R. 171; R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197.

The trial judge's analysis

[33] I turn to the trial judge's three errors set out above.

W.(D.) analysis

[34] At the third stage of the W.(D.) analysis, the trial judge said that he "must give close scrutiny to the testimony of the complainant and the difficulties that arise in the complainant's evidence." At this stage, he was required to consider the whole of the evidence, including the admissions made by the appellant in his polygraph statement. Had he done so, the trial judge would have had to reconcile his findings with these statements and the ultimate acquittal.

[35] I recognize that W.(D.) does not prescribe a "sacrosanct" formula. However, as the Supreme Court of Canada explained in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23:

What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment. [Emphasis added.]

[36] That the trial judge focused exclusively on the complainant's evidence at the third stage of W.(D.), without considering the polygraph statement admissions, is evident in his reasons when he referred to the decision R. v. Nyznik, 2017 ONSC 4392:

[The trial judge] spoke of the difficulties that the court faces in assessing the credibility and reliability of the complainant's evidence, which stands largely on its own, as [the trial judge] pointed out was often the case. [Emphasis added.]

[37] In Nyznik, the sole contentious issue was the complainant's consent. On this issue, the trial judge said that the complainant's evidence "stands alone": at para. 2. In the present appeal, consent was not an issue. The complainant was incapable of giving consent because she was under the age of 16 when the alleged offences occurred, and the respondent was in a position of trust towards her. Here, the issue was the sexual contact between the respondent and a child, and the complainant's evidence did not stand alone. It had to be considered in the context of all the evidence that the trial judge accepted, including the polygraph statement.

[38] The respondent submits that the trial judge must have rejected most of the polygraph statement because he only referred to a few pages as a confession when he said:

I agree with the Crown characterization of [the respondent's] statement to Warrant Officer Rose as transcribed from pages 142 to 144 as a confession by him to a sexual crime against [the complainant].

[39] I do not agree that, by referring to the three pages in the statement, the trial judge limited his characterization of a confession. These pages come at the end of a 147-page statement and clearly incorporate the rest of the statement. They include the following statements made by the respondent:

• "It wasn't something that I asked… for."
• "I had a weak moment …I was vulnerable."
• "[She] took advantage of that."
• "I'm not sure what… umm... the law will look at me…as being…not an aggressor…you know…a person of…umm…sexual crime… I suppose… but I don't… hopefully they have leniency."
• "I've been a… a great person my whole life… until this…I'll be judged in the end. … So… whatever the punishment is …for this…punished for being a victim? … 'cause I wasn't …strong enough… to break it down… to walk away from it. …it wouldn't have occurred if that child hadn't have come on to me...and found that I'm weak."

[40] The statements on pages 142 to 144 are part of and incorporate the entire narrative. Further, had the trial judge taken such a narrow view of the statement, he would not – and could not – have said that the respondent's statement was a confession by him to "a sexual crime." In my view, the confession contained on those pages has no meaning unless it is interpreted in light of the respondent's previous comments in the polygraph statement.

[41] It appears that the trial judge may have been under the mistaken belief that he was required to be satisfied beyond a reasonable doubt of "what actually happened" when he referred again to the trial judge's guidance in Nyznik, at para. 12:

It is possible that the judge might not fully believe the defendant's version of events and might find the complainant's version to be more credible, but still be uncertain as to what actually happened. [Emphasis added.]

[42] As jurors are repeatedly instructed, the evidence does not have to answer every question raised in the case, but only those matters that are essential to say whether the crime has been proven beyond a reasonable doubt: David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 231.

[43] At the third stage of W.(D.), the trial judge must determine whether, on the whole of the accepted evidence, the Crown has proven the elements of the offences beyond a reasonable doubt, not the details of what actually happened.

[44] The Crown submits that the respondent is guilty of the first two counts: sexual assault and sexual interference.

[45] Touching of a sexual nature is a requisite element of the offence of sexual assault. At the time of the alleged offence, the complainant was incapable of consent. The trial judge's acceptance of portions of the polygraph statement as a truthful confession to a sexual crime coupled with his rejection of the respondent's denials at trial could have satisfied the elements of this offence.

[46] Likewise, there was evidence to support the elements of the offence of sexual interference. In the polygraph statement, the respondent admitted that he touched part of the complainant's body, she was under the age of 16, and he did so for an arguably sexual purpose.

[47] However, as I will discuss below, the trial judge neither made the requisite findings of fact nor explained his conclusion in a manner sufficient for this court to enter a conviction on the first two counts. There is no way of knowing why the trial judge said that he had a reasonable doubt with respect to the elements of the offences. As I will set out later, this court is left with only questions and consequently, "the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment": Dinardo, at para. 23.

Misunderstanding the Crown's submissions

[48] The trial judge also appears to have misunderstood the trial Crown's position as being based exclusively on the complainant's testimony, which further compounded his error. Contrary to the trial judge's view, at trial the Crown did place significant reliance upon the polygraph statement in seeking convictions. In fact, the trial Crown closed her submissions by emphasizing the importance of the admissions contained in the statement:

You have the transcript so I've just paused it there and my concluding remarks are in this inculpatory statement, January the 18th, that was voluntary and informed and the result of two other police interviews and an interest in clearing his name and no reason to doubt the veracity of any of the things that he said and the details that he went over again and again, that what you're hearing right here are the self-reflective, introspective remarks of a guilty man who's acknowledging his guilt for the first time and coming to terms with it and I'm asking Your Honour to return verdicts of guilty on all counts.

[49] The trial judge clearly misunderstood these submissions. But even if he did not misunderstand, and the trial Crown did rest on the complainant's evidence, the trial judge was still required to consider the evidence as a whole.

The complainant's interest in sex

[50] Finally, the trial judge erred in law by referring to the complainant's "interest in sex" when considering her credibility.

[51] Evidence of a complainant's prior sexual activity is never admissible to support the twin myths that the complainant is less worthy of belief or more likely to have consented to the activity. Consent of a child is irrelevant and, in these circumstances, impossible at law. Yet, the trial judge considered this evidence in reference to her credibility. It appears in the section of the reasons dealing with the complainant's credibility. Other underlined headings include "Lies" and "Motivated by Money".

[52] Consideration of this evidence was an error of law.[1]

Sufficiency of reasons

[53] The flaws in the trial judge's analysis lead directly to the insufficiency of his reasons. For example, had he considered the whole of the evidence at stage three of W.(D.), he would have been required to reconcile the respondent's polygraph statement and his disbelief of the respondent's testimony with his conclusion of reasonable doubt. His failure to do so, "preclude[s] meaningful appellate review": R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 50.

[54] This is not a case where the trial judge accepts the evidence of the complainant and thus inferentially rejects the denials of the accused: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. Here the trial judge flatly rejected the denials of the respondent, found his polygraph statement to be voluntary, called parts of it a "confession", and never reconciled this evidence with an acquittal. Nor did he articulate the basis for his verdict.

[55] This court is left with only questions. Did the trial judge mistakenly think that only the complainant's evidence was significant at the third stage of W.(D.)? Did he think he had to be satisfied of exactly what occurred between the respondent and the complainant, rather than consider the elements of the offences? Did he misunderstand the trial Crown's position that the case rested on the allegations of the complainant? Did he misunderstand the law that he was required to look at the whole of the evidence even if the trial Crown had made submissions that the case rested on the complainant's allegations? Did he conclude that – despite his indications in his reasons to the contrary – the polygraph statement was unreliable?

[56] In short, the reasons do not "reveal an intelligible basis for the verdict" or explain how the trial judge could be left with a reasonable doubt despite his acknowledgement of the "mountain of suspicion as to [the respondent's] guilt": Sheppard, at para. 28; R.E.M., at para. 53. The reasons are insufficient for appellate review. The reasons are not responsive to the central issues raised at trial. Although the trial judge's credibility findings are entitled to deference, in this case the reasons do not "sufficiently articulate how credibility concerns were resolved": Dinardo, at para. 26. This constitutes a reversible error. By failing to address "significant inconsistencies" in the evidence, the trial judge did not provide a satisfactory explanation for the respondent's acquittal, nor did he demonstrate he understood the parties' respective positions: R. v. D.H., 2016 ONCA 569, at para. 35; R. v. Morrissey, (1995), 22 O.R. (3d) 514 (C.A.), at para. 29; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 20-21; Dinardo, at paras. 26, 30; Sheppard, at para. 28; R.E.M., at paras. 50, 53.

The Remedy

[57] On appeal from a judge alone, an appellate court may "enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law": Criminal Code, s. 686(4)(b)(ii). As this court has explained, "In that event, the court is authorized to either sentence the accused directly or remit the matter back to the trial court for sentencing" (citations omitted): Trachy, at para. 86.

[58] The Crown submits the trial judge made all the findings necessary to convict the respondent of the first two counts. Having made the finding that the respondent confessed to a sexual crime and that he did not believe the respondent's denials of the complainant's allegations, the trial judge was bound to convict because the elements of the offences had been proven. Therefore, the Crown submits that this court should enter convictions on counts one and two.

[59] There are two impediments to the Crown's request for a conviction: (i) the trial judge never made the required findings of fact; and, (ii) he never reconciled the conflicting evidence.

Failure to make findings of fact

[60] In his reasons referenced above, the trial judge makes findings that support the reliability of the polygraph statement. However, he does not make a finding about whether he accepts the respondent's statements (or portions thereof) as the truth.

[61] Likewise, the trial judge adopts the trial Crown's characterization of the statement as a confession to a sexual crime. He does not go on to make a finding about whether he accepts the respondent's confession (or portions thereof) as the truth.

[62] Similarly, the trial judge uses the terms "admissions" and "inculpatory statement" but fails to make a finding as to whether he accepts any portion as the truth. The trial judge's use of familiar labels used to describe the kinds of evidence presented by the Crown – "admissions" and "inculpatory statement" - cannot be substituted for factual findings. Nor does the fact that the trial judge rejected the respondent's evidence lead directly to a conviction. In my view, the trial judge was required to make findings as to what evidence – all, some, or none – he accepted as true.

Failure to explain reasons

[63] In addition to the failure to make factual findings, the trial judge also failed to explain why – in light of the polygraph statement and his rejection of the defence evidence – he had a reasonable doubt. In his reasons, he alludes to two opposite conclusions: the respondent committed a sexual crime on the complainant, and he had a reasonable doubt as to the respondent's guilt.

[64] The fact that the trial judge never reconciled these two conflicting conclusions is the reason that I would allow the appeal. This omission is also an impediment to entering a conviction for it is impossible to know what the result would have been but for these errors in law. This is not a case where there is a clear error of law which – but for the trial judge's error – would have resulted in a conviction: see R. v. Cassidy, [1989] 2 S.C.R. 345, at pp. 354-355.

[65] Clearly, there was enough evidence to convict. However, that is not the test. Ultimately, this court must ask the question: but for the error in law would a conviction be inevitable? I am unable to answer that question.

Disposition

[66] I would allow the appeal and order a new trial on all counts.

Released: December 02, 2019

"M.L. Benotto J.A."

"I agree David Brown J.A."

"I agree David M. Paciocco J.A."

[1] It also would have been an error had the complainant been an adult for it would not have survived the tests in s. 276 of the Criminal Code.