WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.P., 2020 ONCA 637

DATE: 20201009

DOCKET: C66242 & C66401

Watt, Harvison Young and Coroza JJ.A.

DOCKET: C66242

BETWEEN

Her Majesty the Queen

Respondent

and

R.P.

Appellant

DOCKET: C66401

AND BETWEEN

Her Majesty the Queen

Appellant

and

R.P.

Respondent

Margaret Bojanowska, for the appellant/respondent by way of cross-appeal

Amanda Rubaszek, for the respondent/appellant by way of cross-appeal

Heard: in writing

On appeal by R.P. from the conviction entered on July 10, 2018 by Justice Irving W. André of the Superior Court of Justice, with reasons reported at 2018 ONSC 4288.

On appeal by the Crown from the sentence imposed on December 13, 2018.

Harvison Young J.A.:

A. Overview

[1] In 2018, the appellant was convicted of one count of sexual interference in relation to the complainant (“C.H.”), his step-daughter. He was sentenced to a conditional sentence of imprisonment of 2 years less one day. The offence allegedly took place in 2012, when the complainant was around 10 years old.

[2] The appellant challenges the conviction on the basis that the trial judge committed a number of errors assessing credibility, which was the only issue in this three-day trial. In particular, the appellant claims that the trial judge erred in his treatment of the motive to fabricate, failed to adequately scrutinize numerous and material inconsistencies in the evidence, misused a prior consistent statement of the complainant, and did not apply the second limb of test outlined in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The Crown appeals from the conditional sentence of two years less a day and asks this court to impose a sentence of imprisonment of 3 years.

[3] For the reasons that follow, I would allow the appeal and order a new trial. As such, it is not necessary to consider the sentence appeal.

B. Factual Background

[4] In January 2016, when C.H. was 14, she told her guidance counsellor at school that she was not getting along with her mother and the appellant, with whom she lived at home. She had decided that she wanted to live somewhere else. In the course of this discussion with her guidance counsellor, the complainant disclosed that the appellant had sexually assaulted her a few years earlier. Later that day, the complainant gave a videotaped statement to the police.

[5] The complainant alleged that she had been home alone with the appellant. She went into the guest room, which was across the hall from the master bedroom, and asked the appellant a question. She laid down on the bed in the guest room. The appellant tried to take off the complainant’s pants and open her legs and then got on top of her. She told him to stop but he persisted. He attempted to penetrate her but did not succeed. The complainant told the police the appellant used a condom.

[6] The trial took place over three days in May 2018. The complainant (then about 16) and one of her older sisters testified as Crown witnesses. The complainant’s videotaped statement to the police was also admitted as part of the Crown’s case. C.H.’s mother (the appellant’s wife) was the only defence witness.

[7] The complainant’s evidence at trial was that when she disclosed the incident to her guidance counsellor, she had already decided that she would leave home even if the Children’s Aid Society (“CAS”) did not become involved. She acknowledged that she was aware that the sexual assault allegation would have an impact on where she could live, in that she thought she would “move to CAS”. She also acknowledged that, at the age of 14, it was not a real possibility for her to leave home on her own.

[8] The sister testified that C.H. had disclosed the assault to her within a week of the assault occurring. The sister testified that the complainant was very emotional at that time, and that she had cautioned C.H. that this allegation would have serious repercussions for everyone if she was lying. I will return to this evidence later, as it concerns the complainant’s prior consistent statement that the appellant submits was improperly used to corroborate the complainant’s account about the assault.

[9] The mother testified about the complainant’s behavioural problems at school and at home. She said the problems began when C.H. was very young and long before the appellant had moved in and they were married. She said the complainant had a motive to lie, because the complainant did not like the appellant and did not want him living in their home. She denied that the complainant told her about the incident shortly after it occurred, saying that the first she heard about it was when the police contacted her in 2016.

[10] The mother did say that when the complainant was somewhere around nine to eleven years old, the complainant told her that the appellant had asked her if she had ever had sex; that the appellant had been very upset when confronted about this accusation; and that she had decided that she did not believe her daughter. She also stated that if she had been told that the appellant had sexually assaulted C.H., she would have reported it to the police.

[11] In convicting the appellant, the trial judge found the mother was not credible. He accepted the complainant’s testimony about the assault, finding her credible. In finding C.H. to be credible, he emphasized her sister’s testimony, particularly her evidence that the complainant had been very emotional and had stuck to her story despite being warned about lying.

C. Issues on appeal

[12] The grounds of appeal from conviction are interrelated and concern different aspects of credibility assessment. As the parties acknowledge, credibility was the only issue at trial. While deference is generally owed to assessments of credibility, such assessments must be undertaken within the context of the presumption of innocence and the requirement that guilt be proved beyond a reasonable doubt.

[13] The appellant claims that the trial judge erred in a number of ways, including:

1. his treatment of the complainant’s motive to fabricate;

2. failing to address material inconsistencies in the evidence;

3. his use of the complainant’s prior consistent statement, which was introduced into evidence by the sister’s testimony; and

4. failing to consider whether the mother’s evidence raised a reasonable doubt pursuant to the second step of W.(D.).

[14] I will address these issues in turn.

D. Analysis

(1) Motive to fabricate

[15] There was no dispute at trial that, at the time that the complainant went to the guidance counsellor in January of 2016, she was unhappy and wanted to leave home. This was a key pillar of the defence theory at trial, which was that the complainant had fabricated the allegation as a way of getting out of the house. The Crown called the sister as a witness at trial in part to rebut this recent fabrication argument.

[16] As Doherty J.A. noted in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 120:

It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence.

[17] Here, the trial judge found that that the complainant’s testimony “contradict[ed] this alleged motive for fabricating a story”. The trial judge highlighted C.H.’s testimony that, on the day she disclosed the incident to the guidance counsellor, she had already decided that she was going to leave home, even if CAS did not get involved.

[18] It is not clear, however, that this reasoning meaningfully addresses or resolves the recent fabrication argument. The complainant’s testimony that she would leave home, even without CAS involvement, does not necessarily negate a motive to fabricate. It is just as likely that the complainant made the allegation to bolster the chances of CAS becoming involved, as CAS had with her older sister (for unrelated reasons). As the complainant acknowledged, it would have been hard for her to leave home at 14 years old without support.

[19] Moreover, the motive to fabricate argument had some strength given the tensions at home, which predated the alleged incident. This called for a closer examination of the complainant’s credibility, and of the various alleged inconsistencies in the evidence, which I will review in more detail shortly. However, the trial judge did not engage in the necessary close examination.

[20] One particularly relevant but unaddressed inconsistency on this issue was that the sister testified that she had spoken to the complainant about going into the care of CAS, both in terms of her own experience, and also as an option for the complainant. The sister agreed in cross-examination that she told C.H. that C.H. would go into CAS care if she told an adult or guidance counsellor about the assault. The complainant, however, denied having conversations with her sister that she might be better off with CAS or a foster family. This conflicting evidence went directly to the complainant’s credibility and her motive to fabricate an allegation to leave home (perhaps with the assistance of CAS), but this is not addressed in the reasons. Given the centrality of credibility in this case, these issues required greater scrutiny.

(2) Material inconsistencies

[21] The appellant submits that the trial judge failed to address a number of material inconsistencies in the evidence. These inconsistencies were material, as they concerned issues critical to a credibility assessment, such as the manner of the complainant’s disclosure, the details of the alleged sexual incident, and as mentioned earlier, the complainant’s potential motive to fabricate the allegation. The Crown submits that the alleged inconsistencies were either immaterial or were not, in fact, inconsistencies. As this court has outlined in R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 14:

A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses. [Citations omitted.]

[22] It would be an error of law to suggest presumptions about a child’s timing and manner of disclosure. A child’s sense of timing may be different from that of adults. However, it is also the case that the credibility and reliability of a child’s evidence, like that of any witness, still require careful assessment and scrutiny by the trier of fact: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134; R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55. To suggest otherwise would undermine the presumption of innocence and the requirement that guilt be proven beyond a reasonable doubt.

[23] In my view, the trial judge did not adequately address the major inconsistencies in the evidence.

[24] I will only review the main inconsistencies. These relate to the question of when, how, and to whom the complainant disclosed, and to the details given by the complainant of the assault.

(a) How, when and to whom the complainant disclosed the alleged assault

[25] There was different testimony regarding when and how the complainant disclosed the assault. The complainant said she first disclosed the assault to a different sister (one who did not testify) and to their mother about a month or two months after the incident. The sister who testified said the complainant disclosed the assault to her within a week after the incident occurred. The mother’s evidence was that she knew nothing of the alleged assault until after her daughter disclosed to the guidance counsellor in 2016, about four years after the alleged incident.

[26] C.H. initially said the sister who testified encouraged her to tell her mom. Later, she said that she did not speak to this sister before disclosing the incident to her mother. On the other hand, the sister testified that she was sure that the complainant disclosed the allegation to her before she disclosed to her mother. It was during this conversation the sister warned the complainant that she should not lie about such serious matters.

[27] The sister also testified that there had been a three-way telephone call between the complainant and her two sisters about the assault just after the complainant had disclosed to them. The sister said that in this three-way telephone call, they were “just elaborating on everything and how [they] were going to tell mom”. The complainant did not recall any such call having taken place.

(b) The details of the alleged assault

[28] With respect to the details of the alleged assault, the complainant testified at the preliminary inquiry that she saw the appellant go into the master bedroom across the hall from the guest bedroom, look through a dresser drawer, go into a bathroom, and then return to the guest room. At trial, in direct examination, C.H. testified she saw the appellant go into her mother’s bedroom, enter the washroom in her mother’s bedroom, and then leave the room, with no mention of rummaging through the dresser drawer. When C.H. spoke to police she made no mention of the appellant going to her mother’s room at all to retrieve anything. C.H. claimed both versions of events were true and testified for the first time in cross examination at trial that the appellant went to both the dresser drawer and the washroom. Her mother testified that it would not have been possible to see the dresser from the guest bedroom. Her sister testified that the master bedroom was directly across the hall from the guest room, but the master bedroom’s door itself was not directly across from the door to the guest room but was at an angle.

[29] The trial judge did not address these inconsistencies, except to the extent that he stated that the sister’s evidence about the location of the guest bedroom confirmed the complainant’s evidence. With respect to the timing of the disclosure to the sister (whether it was within a week or one or two months later), the trial judge referred to it as a “discrepancy” but did not address it further.

[30] He did reject a few of the defence’s reasons for finding the complainant not credible. For example, there was evidence that the complainant had stolen a cell phone in 2015 from the pastor at their church. The trial judge stated that the complainant’s acknowledgment of her wrongdoing did not undermine her credibility. He also noted that the mother had “inexplicably” retained the cell phone instead of returning it to the rightful owner.

[31] The trial judge also indicated that the complainant was frank and did not exaggerate her account of the events:

[The complainant] gave a candid account of what allegedly happened in the summer of 2012. She candidly admitted that she disliked [the appellant] because he carried untrue stories about her to [her mother.] She also admitted that she had attendance problems at school while she lived with her mother and after she left her mother’s home. She did not appear to have embellished or exaggerated her account of what happened. Had she wished to demonize [the appellant] as much as possible, she would not have testified that he did not succeed in his attempts to penetrate her. Significantly, when the interviewing officer asked her what she thought should happen to [the appellant], she replied that the police should caution him. She made no mention of wanting to have him charged and/or imprisoned.

[32] As the examples above illustrate, however, the trial judge did not grapple with the inconsistencies in and as between the testimony of the complainant and her sister. These were material here, both because there were a number of them, and also because the only issue in the case was that of credibility.

[33] Some of the inconsistencies were more significant than others. For example, the differences about when the complainant told her sisters may not have been very significant, given that the complainant was only about 10 years old at the time of the incident. Another discrepancy, however, was whether there was a three-way conversation between the sisters after the complainant’s initial disclosure to them. The sister who testified clearly recalled a three-way conversation while the complainant did not. Although it would have been open to the trial judge to assess this inconsistency as not serious, it is arguably more significant than the timing of the disclosure because one might expect that even a 10-year-old would remember the fact that such an important conversation (in which the sisters strongly encouraged her to disclose) took place.

[34] In my view, the most significant inconsistency is between the complainant and her sister as to whether the complainant had disclosed to her mother before disclosing to the sister who testified. Even if the previously mentioned inconsistencies may be given latitude because of the complainant’s age, it seems harder to resolve this inconsistency. There was evidence that the complainant’s relationship with her mother was fraught and she was scared to tell her mother. In my view, it is surprising that the complainant would not remember a conversation with her sister who told her the allegations would have serious consequences if she was lying and would not remember whether she disclosed to her mother before disclosing to the sister who testified.

[35] In summary, it was open to the trial judge to resolve these and other inconsistencies raised by the defence. Had he explicitly done so, his conclusions would have attracted significant deference from this court. In this case, however, there was an absence of scrutiny or resolution of these inconsistencies, as well as a failure to explain why he did not consider them to be material.

(3) Use of the complainant’s prior consistent statement

[36] The sister testified that when the complainant disclosed the incident to her, the complainant was very emotional. The sister said that she had warned the complainant that this was a very serious allegation and that she should stop if it was not true, but the complainant insisted it was true.

[37] When dealing with this testimony, the trial judge began by citing this court in R. v. G.C., 2006 CanLII 18984 (Ont. C.A.), at para. 20:

[E]vidence of prior complaint cannot be used as a form of corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can “be supportive of the central allegation in the sense of creating a logical framework for its presentation” … and can be used in assessing the truthfulness of the complainant.

[38] The trial judge continued:

In R. v. Khan, [2017 ONCA 114, 136 O.R. (3d) 530, leave to appeal refused [2017] S.C.C.A. No. 139], the Court of Appeal noted at para. 41 that “such evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborated in-court testimony.”

Based on these principles, I cannot use [the sister’s] testimony as confirmative or corroborative of the account of [the complainant.] However, her evidence can be used, as the court noted in G.C., to “assess the truthfulness of the complainant”: see R. v. Nyznik, 2017 ONSC 4392, at para. 198.

In that regard, there are two aspects of [the sister]’s testimony that can be used to assess [the complainant]’s credibility and the reliability of her testimony. First, [the sister] testified that [the complainant] was very emotional when she described what had allegedly happened. Second, [the sister] gave uncontradicted evidence that she warned [the complainant] that the allegations she was levelling against [the appellant] were very serious and that if she was lying, she should stop it immediately. Despite this warning, [the complainant] did not retract her statement about being sexually assaulted by [the appellant.]

[39] The appellant argues that the trial judge improperly used the complainant’s prior consistent statements. I agree.

[40] Here, as I have mentioned, the central purpose in calling the sister as a witness was to rebut the defence of recent fabrication. The trial judge found that the sister’s statement supported the complainant’s credibility, because the complainant had stuck to her story despite the sister’s cautions about lying. This use of C.H.’s prior consistent statement went well beyond rebutting the defence of recent fabrication. In essence, the trial judge concluded that the fact that the complainant continued to make the same statements, despite the cautions of her sister, reflected positively on her credibility. I do not see how that is different from relying on the assertion that any statement that is repeated is more likely to be true – the very inference prohibited by the rule against prior consistent statements. Nor do I understand the logic of the trial judge’s finding that C.H. was credible and reliable because C.H. did not retract her story when she was warned by her sister that there would be consequences if she was lying. The trial judge’s reasons are silent on this point. The fact that C.H. did not retract her allegation was not a positive factor that enhanced the credibility of the complainant.

[41] This case is very different from Khan. In that case, the complainant’s prior consistent statement was spontaneous. As this court stated in Khan, the fact of the statement, as well as its timing and spontaneity, could be used for a limited purpose, to “[assess] the truthfulness of the complainant’s in-court testimony”: Khan, at para. 43. The statement in this case was not spontaneous. On the sister’s evidence, the complainant disclosed the allegation to her a week after it had happened. The statement was also not admitted under the narrative as circumstantial evidence exception, nor did the statement have similar indicia that could be used to assess the complainant’s truthfulness in court.

[42] This error compounds the problems outlined above, namely the failure to resolve the inconsistencies in the evidence and the motive to fabricate. This error was particularly important in this case where the evidence raised a clear motive to fabricate. There was also no dispute that C.H. disliked the appellant and believed he was always trying to get her in trouble with her mother. This had been the case, according to all of the evidence, since well before the alleged incident.

(4) W.(D.)

[43] The principles of W.(D.) are well known but are worth repeating:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[44] There is no dispute that these principles apply not only to cases where the accused testifies, but also to cases where “there is other defence evidence called contradicting the Crown’s case and/or conflicting evidence favourable to the defence in the Crown’s case”: R. v. B.D., 2011 ONCA 51, 226 C.C.C. (3d) 197, at para. 105. Trial judges do not need to rigidly recite the three steps in the W.(D.) instruction. It is not a magical incantation. Rather, as Molloy J. summarized in R. v. Nyznik, 2017 ONSC 4392, 350 C.C.C. (3d) 335, at para. 14:

What is critical is for the judge to avoid turning the fact-finding exercise into a choice as to which is the more credible version of the events. This cannot be a credibility contest, with a conviction if the complainant wins the contest and an acquittal if the defendant does.

[45] The appellant argues that the trial judge in this case did not refer to and did not apply the principles in W.(D.). In particular, he argues the trial judge did not consider whether the mother’s evidence raised a reasonable doubt, despite the fact that he did not find her to be credible. The Crown responds that it is implicit in the trial judge’s reasons that he did not accept the defence evidence and he was satisfied that it did not raise a reasonable doubt. Though the trial judge did not specifically mention W.(D.), trial judges are presumed to know the law.

[46] In my view, this is a case in which the defence evidence, seen in the context of all the evidence, could have raised a reasonable doubt, despite the fact that the trial judge rejected it. Much of the mother’s evidence, particularly that which related to C.H.’s behavioural issues, the conflict between the complainant and the appellant, and the existence of a motive to fabricate, was consistent with other evidence heard at the trial. In these circumstances, the trial judge was obliged to expressly consider whether the defence evidence raised a reasonable doubt. The reasons do not show that he did so.

[47] This is compounded by a related problem. The trial judge found the mother was not credible. He referred in particular to the mother’s evidence that she had not known about the sexual assault allegation before the complainant disclosed it to the guidance counsellor in January 2016 and that, had she known, she would have called the police. The trial judge cited the sister’s evidence that the mother had been told well before 2016 as a reason for not believing the mother’s testimony that she would have called the police had she known.

[48] The sister’s evidence on this point was not put to the mother and so she did not have a chance to explain or respond. The trial judge’s reasons do not indicate that he appreciated that the sister’s evidence on this point was never put to the mother. The use of this evidence to reject the only defence evidence thus undermines the trial judge’s finding that the mother was not credible.

E. Disposition

[49] The trial judge in this case fell into a number of related and overlapping errors related to the assessment of credibility. While any one of these errors on its own might not have warranted a new trial, viewed as a whole, the guilty verdict cannot stand. I would therefore allow the conviction appeal, set aside the conviction, and order a new trial.

[50] Given this disposition, it will not be necessary to consider the sentence appeal.

Released: October 9, 2020

“DW”

“A. Harvison Young J.A.”

“I agree David Watt J.A.”

“I agree S. Coroza J.A.”