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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20200526 DOCKET: C66840

Lauwers, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

G.J.S. Appellant

Counsel: Paul Calarco, for the appellant Adam Wheeler, for the respondent

Heard: February 10, 2020

On appeal from the conviction entered on December 13, 2018 by Justice Meredith Donohue of the Superior Court of Justice, sitting without a jury, with reasons reported at 2018 ONSC 7251, and from the sentence imposed on March 6, 2019 by Justice Meredith Donohue of the Superior Court of Justice.

Trotter J.A.:

A. Introduction

[1] This appeal involves the alleged sexual abuse of the appellant’s step-daughter, commencing in 1988 when she was seven years old, and continuing until she was 20.

[2] The appellant was charged with sexual interference (Criminal Code, R.S.C. 1985, c. 46, s. 151(a)), sexual assault (s. 271), and sexual exploitation (s. 153(1)(a)). The first two charges alleged sexual touching during the earlier years. The sexual exploitation charge involved sexual intercourse in the later years, after the complainant was 12 or 14 years old.

[3] The appellant was found not guilty of sexual exploitation. Although the trial judge found the complainant to be a credible witness, she concluded that the evidence relating to this time period was “not sufficiently reliable”. However, the trial judge found the appellant guilty on the other two charges, relying heavily on the complainant’s prior consistent statements to her sister and her mother, as well an incident where, upon hearing of the complainant’s allegations, her biological father threatened the appellant.

[4] The appellant appeals his conviction and the sentence of four years’ imprisonment that was imposed.

[5] I would allow the appeal from conviction and order a new trial. The distinction that the trial judge made between the two time periods, while somewhat delicate, was one that was available on the evidence. However, the trial judge’s differential findings rested on the misuse of the complainant’s prior consistent statements and the threatening incident. Although they were admissible to rebut an allegation of recent fabrication, the trial judge strayed further and found that the statements provided “the reliability necessary to support [the complainant’s] testimony” and that the threat “lends support to what was happening in the family at the time”. The improper use of this evidence formed an important part of the trial judge’s overall analysis and must result in a new trial.

B. Overview of the Evidence

(1) The Complainant

[6] At the time of trial, the complainant was 37 years old. She alleged that the appellant sexually abused her in the various homes that she lived in with her mother, her siblings, and the appellant.

[7] The complainant testified that she had day-to-day challenges as a child as a result of A.D.D. and A.D.H.D., for which she took Ritalin. Her mother described her as “slow’. The trial judge described the complainant as having “limited cognitive ability” and “still very much a child”. The complainant is now married and has children of her own.

(2) The Earlier Allegations

[8] When the complainant was about seven years old, she was often drowsy from taking Ritalin and would rest in her bed before dinner. Late one afternoon, the appellant came into her bedroom and touched her vagina while he masturbated. The complainant’s mother was out of the house at the time, as were the other children. The appellant told the complainant he would hurt her and deny what he did if she ever told anyone. The complainant testified that this touching occurred two or three times a week, if not more, “every time my mom would go out.”

[9] The complainant testified that the appellant started to insert his fingers into her vagina when she was 11 ½ to 12. After about a month of this, things escalated.

(3) The Later Allegations

[10] The complainant testified that, when she was 12 to 12 ½ (which would have been in late-1993/early-1994), the appellant started to penetrate her with his penis. The first time this happened the other children were outside playing, while her mother was at bingo. The appellant came to her room and said, “It’s time.” He penetrated her while wearing a condom. After ejaculating, he left the bedroom, renewing his threat to hurt her if she told anyone. The complainant was in pain and bled for two and a half hours. She had to throw out her sheets.

[11] The complainant testified that it happened again a few days later, but this time the appellant ejaculated onto her sheets. When confronted with the fact that she testified at the preliminary inquiry that the appellant was wearing a condom at the time, the complainant asserted that there was a hole in the condom. The trial judge found that, “this was clearly a flight of imagination.” The complainant referenced throwing out sheets after this incident as well. It was unclear whether she threw out her sheets once or more.

[12] The complainant testified that sexual intercourse continued from the age of 12 until she was 20 years old (in 2001), when she finally left the house. She said it happened two to three times a week, when she was home. During this period of time, the complainant periodically ran away from home. She stayed in group homes and treatment centres, as well as with friends. She accumulated a criminal record. The complainant became pregnant by her boyfriend and moved back home. She testified that, after she gave birth to this child, the appellant attempted sexual intercourse with a condom, but stopped because it hurt her too much.

[13] The complainant also testified that, when she was 13 to 14, the appellant tried to get her to suck his penis. She bit his penis and ran away. He did not attempt this again. Within the same timeframe, the appellant performed cunnilingus on the complainant on a few occasions, including when she moved back into the family home while she was pregnant.

(4) Evidence of the Complainant’s Disclosures

[14] The testimony relating to the complainant’s disclosure of the sexual abuse was contradictory. The complainant said that she made her first disclosure to her sister, T.S., when she was 12. T.S. said that they had to tell their mother.

[15] T.S., who is 7 years older than the complainant, testified that her sister came into her bedroom “with tears in her eyes” and told her that the appellant “touched her in her private area with his fingers”. She appeared scared and very intense. At T.S.’s insistence the two went downstairs and T.S. told their mother that the complainant had something to tell her. T.S. did not stick around for that discussion. She recalled that when this incident occurred, the complainant was probably 6 or 7, “no older than that”. T.S. also testified that she was home most nights, 90% of the time, doing homework. She could not recall any other disclosures being made.

[16] The appellant’s mother, S.M., also testified about the complainant’s disclosure. As discussed below, S.M. displayed extreme disdain for the appellant on many occasions while testifying. Her evidence was less clear on the issue of disclosure. Initially, she said that the complainant disclosed the abuse following a doctor’s visit. Because the complainant had a learning disability and behavioural problems, S.M. took her to the doctor. S.M. explained that the doctor said, “there’s something going on in her life that she’s not telling us. And when I question, she came and told me that her dad was touching her.” On the other hand, S.M. described an incident when she heard the appellant say something to the complainant, who responded by saying, “‘I’m telling mom what you’re doing.’ And she came to me and told me that dad was coming in her room at night and touching her.”

[17] S.M. first testified that the complainant was 10 or 11 when she disclosed that the appellant was touching her; in cross-examination, it was 8 or 9. The complainant was crying and mentioned something about being touched on the leg. When S.M. confronted the appellant, he started “bawling like a baby and said he would swear on his dead father’s grave that he never touched her”.

[18] S.M. called the Children’s Aid Society (“CAS”) after this disclosure but was apparently told that they could not help. She said that there were two other disclosures, but she could not remember when they were made. There was no complaint of sexual intercourse in any of the complainant’s disclosures.

[19] S.M. testified that the CAS eventually became involved. She also said, “I wasn't the only one [the complainant] told”. S.M. thought the complainant told her teachers. The complainant did not report doing so. S.M. agreed that there was a police investigation in 1995, when the complainant was 14.

[20] S.M. took the complainant to the doctor to put her on birth control. This occurred when she was 16 because “they get active.” The complainant believed her mother put her on birth control because she knew what the appellant was doing to her, and claimed that it happened when she was younger.

(5) The CAS Records

[21] The appellant obtained production of CAS records on an application under s. 278 of the Criminal Code. The complainant was cross-examined on these records. At the conclusion of the viva voce evidence, the trial judge admitted most of these records for their truth, based on R. v. Khan, [1990] 2 S.C.R. 531. These records included: (1) an August 29, 1995 interview with the complainant (who was 14 at the time); and (2) notes made by a caseworker on October 25, 1995, when the complainant was interviewed by the police. Portions of these notes contradicted the complainant’s testimony. For instance, she told a CAS worker that the appellant penetrated her anally, an allegation from which she resiled at trial.

(6) The Threat by the Complainant’s Biological Father

[22] S.M. testified that, after the complainant made one of her disclosures, S.M. called her former husband, the complainant’s biological father, to tell him what had happened. The father came to her house one day, grabbed the appellant by the neck, and threatened to kill him if he ever touched the complainant again.

[23] The complainant gave a different account. She testified that she told her biological father’s best friend about the abuse, who she believed told her father. She also witnessed the physical confrontation between her biological father and the appellant.

C. Reasons for Judgment

[24] The trial judge thoroughly reviewed the testimony of the three witnesses. She identified six points of conflict in their evidence. Five of them concerned the complainant’s earlier allegations of the appellant touching her vagina.

[25] The trial judge also addressed inconsistences in the complainant’s evidence, between her trial testimony, her preliminary inquiry testimony, her police statement in 2016, and what she told the police and a CAS worker in 1995. The trial judge listed 14 items, some of which related to the earlier years of abuse. She classified some as more serious than others. The trial judge assessed these inconsistencies in light of the Supreme Court’s direction in R. v. W.(R.), [1992] 2 S.C.R. 122, regarding an adult testifying about events experienced as a child.

[26] The trial judge described the complainant as “still very much a child” who “displayed muddled thinking and was quite unable to have any insight into the contradictions in her evidence”: at para. 80. On the issue of her sincerity, the trial judge said, at paras. 81-82:

On the whole however, I found that with her limited cognitive ability she was doing her best to be sincere and truthful. She was trying her best to be honest. She was certainly adamant that there was sexual touching from the accused over multiple occasions. At one point in cross-examination she said “Yes, as I’ve told you five million dozen times!”

The issue becomes less one of credibility than one of reliability. [Emphasis added.]

[27] On the issue of reliability, the trial judge drew a distinction based on the complaint’s age when she alleged that said certain events occurred. The trial judge found that the sexual intercourse allegations were unreliable. Her evidence was self-contradictory in terms of “whom she told; whether there was anal intercourse; whether condoms were used; and what time of day it occurred”: at para. 84. She also observed that there were problems with the complainant’s evidence of “one episode of cunnilingus” when she was 12-14. [1] As she said, at para. 85: “I find the evidence, as whole, is not sufficiently reliable to support the charge of sexual exploitation involving his touching her with his penis.”

[28] Turning to the reliability of the earlier allegations, the trial judge said, at paras. 86-88:

In contrast, there are a number of facts which I accept on her early allegations of sexual touching. Her description of starting to run away and stay away from the home is supported by her mother's testimony and is a natural response to such alleged touching. The CAS records note her wishes to not be at home if the accused was there. Her disclosure to her mother and sister is consistent with their testimony and their description of her demeanour of fear, tension, and tears. Her mother also describes the reaction of the complainant's biological father in threatening the accused in a similar manner to the complainant's description. That threat lends support to what was happening in the family at the time.

[The complainant’s] testimony of the sexual touching from ages 7 to 14 was clear and convincing and not contradicted in any material way. I find that the early disclosure to her mother, and particularly her sister, provides the reliability necessary to support her testimony.

The elements of sexual assault and sexual interference are therefore satisfied by the evidence of this early sexual touching. [Emphasis added.]

[29] The appellant was convicted of sexual interference and sexual assault. The sexual assault conviction was conditionally stayed: Kienapple v. The Queen, [1975] 1 S.C.R. 729.

D. Positions of the Parties

[30] The appellant raises numerous grounds of appeal. He submits the trial judge erred in: (1) failing to make proper credibility determinations, including the failure to deal with the animus of the complainant and her mother; (2) how she addressed the issue of reliability across the two time periods; (3) failing to give adequate reasons; and (4) misusing the complainant’s prior consistent statements and her father’s threat to kill the appellant. The appellant also submits that the verdict is unreasonable. The respondent counters each of these alleged errors, relying principally upon appellate deference as an answer.

E. Analysis

(1) Introduction

[31] As noted above, I would allow the appeal based on the trial judge’s use of the complainant’s prior consistent statements to her mother and sister, and the threatening incident involving the complainant’s biological father. This ground of appeal also engages a consideration of the sufficiency of the trial judge’s reasons in explaining how she used this evidence. Given that there must be a new trial, it is not necessary to address the other grounds of appeal, save one – the appellant’s contention that the verdict is unreasonable and that he is entitled to an acquittal. I would reject this ground of appeal, which I can deal with briefly.

(2) The Verdict Was Not Unreasonable

[32] In support of his submission that the verdicts are unreasonable and cannot be supported by the evidence, within the meaning of s. 686(1)(a)(i) of the Criminal Code, the appellant points to the frailties in the complainant’s evidence, the shortcomings in the supportive evidence of the complainant’s mother and sister, and the lack of corroboration. In reality, the appellant’s complaint is a “thinly veiled” invitation to have this court substitute its own credibility assessments for those made by the trial judge: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 47.

[33] An unreasonable verdict claim may be based on findings of credibility: W.(R.), at p. 131. However, as McLachlin J. (as she then was) said, at p. 131: “The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses”; see also R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 30-31. Further, an appellate court must not interfere unless it is established that the trial judge’s credibility assessments “cannot be supported on any reasonable view of the evidence”: see R. v. Burke, [1996] 1 S.C.R. 474, at para. 7; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10.

[34] Subject to what I have to say below about the trial judge’s use of the complainant’s prior consistent statements and the threatening incident, I see no error in the trial judge’s credibility and reliability assessments. It was open to the trial judge, weighing all of the evidence, to accept the complainant’s account of the earlier allegations that involved touching. The trial judge confronted the shortcomings in the complainant’s evidence, including both the internal and external inconsistencies in her first-hand account of being abused. The appellant has not established that his convictions cannot be supported on “any reasonable view of the evidence”.

[35] Nor are the verdicts unreasonable because they are inconsistent, as the appellant submits. The appellant relies on R. v. Tillekaratna (1998), 124 C.C.C. (3d) 549 (Ont. C.A.), in which Charron J.A. (as she then was) found that, on a multi-count indictment against a single accused person, “[t]he evidence with respect to any one incident was too wound up with the evidence on the others to be logically separable”: at para. 11. The appellant contends that, because the evidence in this case all came from the same witnesses, the differential verdicts are irreconcilable. I disagree.

[36] In R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, Charron J. addressed the issue of inconsistent verdicts once again. Although the case involved a multi-accused situation, she also commented upon the single-accused/multiple-count scenario. She said, at para. 8, that “different verdicts may be reconcilable on the basis that the offences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses” and that “[t]he strength of the evidence relating to each count may not be the same, leaving the jury with a reasonable doubt on one count but not on the other.”

[37] That is the situation in this case. Even though the evidence came from the same witnesses, their testimony related to incidents that were “temporally distinct”, relating to different time periods. The alleged conduct was also “qualitatively different”. During the first time period, the appellant was alleged to have repeatedly touched the complainant’s vagina; in the second time period, the allegations included sexual intercourse. Moreover, it was open to the trial judge to find that the strength of the evidence on the latter allegations was undermined by the complainant’s evidence relating to bed-sheets and condom use.

[38] In short, the trial judge was not required to accept the evidence as a package, yielding a uniform result across counts. I would reject this ground of appeal.

(3) Prior Consistent Statements and Insufficient Reasons

[39] The appellant also submits that the trial judge’s reasons are inadequate. In particular, he points to her brief reliability analysis in paras. 86-88 on the sexual interference and sexual assault counts (as set out in para. 28, above). The appellant contends that they are conclusory, amounting to little more than an assertion of, “I believe the complainant.”

[40] I reject the appellant’s broad claim about the sufficiency of the reasons. Read as a whole, they satisfy the functional requirements of reasons: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11, 35, 55. They permit meaningful appellate review. In general, the reasons pose no difficulties in discerning why the trial judge decided the case as she did: R.E.M., at para. 17; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 524-525.

[41] However, in addressing the reliability problems concerning the earlier allegations, the reasons are unsatisfactory in their treatment of the threat made by complainant’s biological father, and her prior consistent statements to her mother and sister. The trial judge viewed this evidence as significant, finding that the threat “lends support to what was happening in the house at the time”, and the statements provide “the reliability necessary to support her testimony”. Read as a whole, her reasons demonstrate that she used this evidence for the improper purpose of confirming the substance of the complainant’s allegations.

[42] During the trial, the defence made an allegation of recent fabrication, said to arise from the breakdown of the appellant’s marriage to S.M. As noted above, S.M. was highly critical of the appellant in her testimony. However, the marriage did not come to an end until 2016, much later than the complainant’s initial disclosures. The Crown relied upon the complainant’s prior statements to her mother and sister to neutralize the recent fabrication allegation. The threatening incident was also capable of playing the same role given that the incident was instigated by the father’s knowledge of the complaint made by his daughter against the appellant.

[43] The trial judge acknowledged the Crown’s position at para. 74: “The Crown submitted that the assertion that this was a recent fabrication is rebutted by the fact that the complainant disclosed sexual abuse by the accused in 1995 and earlier.” The trial judge referenced this body of evidence again in that part of the judgment reproduced in para. 28, above. However, she made no further mention of recent fabrication; her language reflects a more extensive use of this evidence. For convenience, I reproduce the critical aspects of this passage again:

Her disclosure to her mother and sister is consistent with their testimony and their description of her demeanour of fear, tension, and tears. Her mother also describes the reaction of the complainant's biological father in threatening the accused in a similar manner to the complainant's description. That threat lends support to what was happening in the family at the time.

[The complainant’s] testimony of the sexual touching from ages 7 to 14 was clear and convincing and not contradicted in any material way. I find that the early disclosure to her mother, and particularly her sister, provides the reliability necessary to support her testimony. [Emphasis added.]

[44] As a preliminary matter, I note that reference to the complainant’s evidence of disclosure being “consistent with their testimony and their description of her demeanour of fear, tension, and tears” is not entirely accurate. As discussed above, there were differing accounts of how the allegations came to light, especially in the evidence of S.M. [2] Moreover, the trial judge’s reference to the complainant’s evidence as “clear and convincing and not contradicted in any material way” overstates the cogency of her evidence. Earlier in her reasons, the trial judge identified a number of inconsistencies in her evidence, both internal and external, related to this time period.

[45] I accept the appellant’s submission that the trial judge’s reference to the threat made by complainant’s father was problematic. The respondent submits that the trial judge’s finding – “[The biological father’s] threat [to the appellant] lends support to what was happening in the family at the time” – was a reference to the complainant having disclosed the abuse, and nothing more. Had this been the case, this would have been a legitimate use of this evidence: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7. But the trial judge went further.

[46] It was important that the evidence of this incident be carefully contained. The evidence was unclear on the issue of who told the complainant’s father about the allegations, but the information surely originated with the complainant. In view of his reaction, it is clear that her father believed the allegations. The trial judge failed to restrict the use of this evidence to the sole basis upon which it was admissible – to neutralize the recent fabrication allegation. Finding that the “threat lends support to what was happening in the family at the time” indicates a more substantive use, not one restricted to the mere fact that it was reported at a particular point in time.

[47] This type of reasoning is even more apparent in the trial judge’s use of the complainant’s statements to her mother and sister, which she said “provides the reliability necessary to support her testimony”. This statement extends beyond recent fabrication. The trial judge improperly used this evidence to enhance the complainant’s general trustworthiness: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 37, 40.

[48] In R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused [2017] S.C.C.A. No. 139, Hourigan J.A. explained, at para. 41: “[prior consistent statements] cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony”; see also R. v. D.C., 2019 ONCA 442, at para. 19; R. v. S.K., 2019 ONCA 776, 148 O.R. (3d) 1, at para. 90; and R. v. D.K., 2020 ONCA 79, 60 C.R. (7th) 123, at para. 35. This appears to be exactly how the trial judge used the complainant’s prior statements and the threatening incident.

[49] The respondent argues that this evidence was admissible under the narrative as circumstantial evidence exception, “not to corroborate the evidence of the witness, but to provide the surrounding circumstances and context to evaluate the credibility and reliability of the witness’s in-court testimony”: Khan, at para. 39; Dinardo, at para. 37; R. v. G.C., [2006] O.J. No. 2245, at paras. 20-22. This was not the basis of admissibility advanced by the Crown at trial; nor is there any indication in the trial judge’s reasons that she used the evidence for this limited purpose. The trial judge gave no explanation of how this evidence “provides the reliability necessary to support her testimony” or how “it lends support to what was happening in the family at the time”.

[50] Moreover, the allegation of recent fabrication was a challenge to the complainant’s credibility or sincerity (i.e., that she made-up the allegations). It had nothing to do with the complainant’s reliability. As the trial judge said in the passage reproduced at para. 26, above: “The issue becomes less one of credibility than one of reliability.” Neither the threatening incident nor the complainant’s statements to her mother and sister were capable of providing the “support” that the trial judge attributed to this evidence.

[51] In summary, looking at the trial judge’s reasons as a whole, this evidence was used improperly to enhance the complainant’s general trustworthiness as a witness through her repetition of the allegations on prior occasions: Stirling, at para. 10; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 42.

[52] In Dinardo, the Supreme Court disagreed with the majority holding in the court of appeal that the trial judge’s misuse of the prior consistent statements occasioned no prejudice. Writing for the Court, Charron J. said, at para. 40: “The trial judge relied heavily on the corroborative value of the complainant's prior statements in convicting Mr. Dinardo. He was clearly of the view that the complainant's consistency in recounting the allegations made her story more credible.”

[53] The trial judge followed the same path of reasoning in this case in her use of the threatening incident and the complainant’s statements to her mother and sister. Her references to this evidence appeared in a critical part of her judgment where she explained why the complainant’s evidence was sufficiently reliable in relation to the earlier allegations, even though it had not been on the later allegations. It was determinative of the appellant’s guilt.

[54] I would allow the appeal on this ground.

F. Disposition

[55] I would allow the appeal from conviction. I would lift the stay on the sexual assault conviction and order a new trial on both counts. In the circumstances, it is unnecessary to consider the appeal against sentence.

[56] As a result of the COVID-19 emergency, the panel relieved the appellant from the term of his bail that requires him to surrender into custody prior to this decision being released.

Released: “PL” May 26, 2020

“Gary Trotter J.A.”

“I agree. P. Lauwers J.A.”

“I agree. Fairburn J.A.”

Footnotes:

[1] The complainant testified to multiple incidents of cunnilingus.

[2] It might also be said that the trial judge’s reference to “fear, tension, and tears” is incorrect. Earlier in her reasons, at para. 49, she said the complainant’s mother testified that the she was “bawling like a baby” when she made the disclosure. This was an error. The mother testified that it was the appellant who was “bawling like a baby” and this was when he was confronted with the allegations.