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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. T.A., 2020 ONCA 783

DATE: 20201211

DOCKET: C67552

Simmons, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.A.

Appellant

Lauren M. Wilhelm, for the appellant

Jerry Brienza, for the respondent

Heard: November 16, 2020 by video conference

On appeal from the conviction entered on June 28, 2019 by Justice Catrina D. Braid of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was charged with indecent assault of his niece,[^1] B.F., and sexual assault and sexual interference in relation to B.F.'s son, J.F. The charges involving B.F. related to the period January 1, 1976 to January 1, 1978; those involving J.F., January 1, 2011 to January 1, 2015.

[2] Following a 2019 trial, the trial judge found the appellant not guilty of the charge involving B.F., but guilty of the charges involving J.F. The sexual assault charge was ultimately conditionally stayed pursuant to Kienapple.[^2]

[3] The appellant appeals from his conviction for sexual interference. The main issues on appeal are whether the trial judge erred by approaching the conflicting evidence as a credibility contest and further erred by misapplying the principles in J.J.R.D.[^3]

[4] For the reasons that follow, the appeal is allowed, the conviction set aside and a new trial is ordered.

Background

[5] J.F. testified he was about six years old when the incident giving rise to the charges occurred. Together with his other evidence, this likely placed the events in the early summer of 2013.

[6] The appellant lived next door to J.F.'s grandparents. On an occasion when he was visiting his grandparents, J.F. went to the appellant's house with his Hot Wheels Collectors Catalogue intending to assess the value of a collection of toy cars at the house.

[7] According to J.F., he was sitting on the floor in an upstairs bedroom where the cars were located. The appellant came into the room, scooped him up, put him on the bed, pulled down his pants and underwear and then rubbed, licked and kissed J.F.'s penis. The incident lasted about two to three minutes. It ended abruptly when J.F.'s grandmother arrived at the appellant’s home and called J.F. downstairs. J.F. did not see the appellant again that day. And he did not discuss the cars with the appellant’s wife on that occasion.

[8] J.F. testified that he did not immediately tell anyone about the incident because, some time previously, the appellant read him a book about monsters and whispered to J.F. that he could control monsters. J.F. said that scared him. When asked if anything else scared him, J.F. testified the assault may have happened twice. He was not sure, events had “blended together” into “one big blob”. If there was a second time, it was the same as the first time except he did not have his Hot Wheels Collectors Guide with him.

[9] J.F. disclosed the incident to his mother in March 2018 after similar allegations were made by the appellant's granddaughter and grandson, J.F.’s best friend. Those charges were ultimately withdrawn. J.F. knew that his mother was upset about the charges being withdrawn.

[10] J.F.'s grandmother, S.P., testified that B.F. had instructed her not to let J.F. go to the appellant's home alone when the appellant was present. S.P. recalled that, on one occasion during the summer, when J.F. was about six, she sent J.F. to the appellant's house while she finished baking a cake, believing the appellant was not there. However, when she went over to the house and called upstairs for J.F. to come home, to her surprise, the appellant came down the stairs.

[11] The appellant testified and denied the allegations. He explained that he worked in the aircraft industry and traveled globally to provide aircraft engineering and other services in several sectors, including the U.S. military sector. When he traveled, he could be away for a long time, as much as a year or more. He said he had never been upstairs alone with J.F., and had never read him a book about monsters, or for that matter any other book. Indeed, he said that he had never read books to his own children.

[12] In cross-examination, the appellant was asked where he was working between 2011 and 2015. He said recently he had spent a lot of time in El Paso, Texas and San Marcos, Texas. When asked by the trial judge to focus on 2011 to 2015, he said those were the places where he was consistently. But he had also been to other places. When asked about duration, he said in 2015 he spent over a year in El Paso. In response to the Crown’s suggestion that the timeline concerning when he was home between 2011 and 2015 was a little fuzzy, he responded that he would be in and out a lot, so he did not keep a record of time.

[13] The appellant's wife, C.A., said J.F. came to their home unaccompanied around four times. She was home alone on those occasions and the appellant was not present. When asked during examination in-chief if the day S.P. was baking a cake provided her with any point of reference, C.A. said that could be the day J.F. was playing upstairs with her grandchildren.

[14] However, C.A. did recall a day when J.F. came over with his Hot Wheels Catalogue. She testified that happened once. When referred to the 2011 to 2015 timeframe in the indictment, she thought it would be closer to the 2014, 2015 years. C.A. testified that the appellant was not present on the occasion when J.F. came over with the Hot Wheels Catalogue. He was either in Texas or Wyoming or Ohio. Depending on the year, he could have been away anywhere from a year to six months.

[15] C.A. recalled that she was in the living room reading a book. While looking at the cars, J.F. came downstairs from time to time to tell her about the value of the cars.

[16] In cross-examination, C.A. confirmed that J.F. came over unaccompanied four times. She described the purpose of his visit on each occasion and clarified that she did not know about any day that S.P. was baking a cake. However, she agreed that the day J.F. came over with his Hot Wheels Catalogue was a memorable detail.

[17] Although C.A. initially testified that she thought the Hot Wheels visit happened in 2014 or 2015, she agreed J.F. would have been six in the summer of 2013. In response to the suggestion that she did not know where the appellant was when the alleged incident happened, she asserted that she knew where he was in 2013, 2014 and 2015. In 2013, he was in El Paso, Texas from May until the following May. After he came home, the couple separated for a while. In 2015, the appellant was in Wyoming from October until March 2016. C.A. reiterated that the appellant was not home on the day of the Hot Wheels visit.

The trial judge's reasons

[18] The trial judge focused the initial part of her analysis on J.F.’s testimony and the reliability and credibility of his evidence. During the course of that portion of her analysis, she considered the “[c]onflicting evidence regarding when J.F. was upstairs in [the appellant’s home]”. She noted that defence counsel had argued that J.F. said he was only at the appellant’s home with his Hot Wheels Catalogue on one occasion. She said if this were true and she was unable to reject C.A.’s evidence that the appellant was not home on that day, C.A.’s evidence may give rise to a reasonable doubt.

[19] As for C.A.’s evidence that the appellant was not home on the day that J.F. came over with his Hot Wheels Catalogue, the trial judge noted that J.F. did not say that the day the incident occurred was the only day he went over with his Catalogue. Further, J.F. said he did not show the appellant's wife the cars and the Catalogue on the day the offence occurred. Concerning this evidence, the trial judge concluded:

I am not satisfied that C.A.’s evidence provides a reasonable doubt or definitively tells me what occurred on this particular occasion. It may be that she was talking about a different occasion, I cannot be certain.

[20] In response to a defence argument that there was no opportunity for the appellant to read the book about monsters to J.F. and that the evidence was fabricated, the trial judge said she accepted J.F.’s “version of events as credible on this point.” She said she would return to the issue later in her reasons.

[21] Although J.F. testified he was moderately confident that a second incident occurred, the trial judge was not satisfied that was the case. She noted that J.F. was certain that the first event occurred and was clear and articulate in his description of that event. She concluded that the fact that J.F. said there may have been a second incident that occurred in exactly the same fashion did not undermine his reliability and credibility in relation to the first incident.

[22] Ultimately, the trial judge found J.F. a credible witness. While she acknowledged some inconsistencies in his evidence in relation to other evidence, she found they related generally to peripheral matters such as timing and sequence and that the core details of his account were corroborated by the evidence of adult witnesses. She concluded he was both reliable and credible.

[23] After reaching this conclusion, the trial judge turned to the defence evidence. She identified some minor issues with that evidence:

• the appellant gave an inaccurate answer to the police when he said no in response to a question whether J.F. came over to visit. However, his explanation that J.F. was not visiting him but rather his grandchildren was not unreasonable;
• the appellant's evidence about his work schedule and travel especially concerning the time of the alleged events was vague; and
• the defence evidence concerning where the appellant was working at the time of the alleged events was inconsistent, the appellant saying Texas, his wife, C.A., saying Wyoming.

[24] The trial judge concluded her reasons with a section she titled “W.(D.) Analysis.” She began this analysis by saying:

The testimony of J.F. and [the appellant] are diametrically opposed. They cannot both be telling the truth.

[25] She then stated that because the appellant called evidence, she was required to apply W.(D.)[^4]. She began by noting that the appellant adamantly denied the allegations and that there was nothing more he could do or say in a case of this nature. However, she found herself in the same position as the trial judge in J.J.R.D. There was nothing in the substance of the appellant's evidence or in the manner in which he testified that would cause her to reject his evidence. Nonetheless, she said,

However, based on the totality of evidence which I do accept, I must reject it. It simply cannot be true. I am entitled to take into account the strength of the Crown's case and reject [the appellant's] evidence based on a considered and reasoned acceptance of the conflicting evidence from the Crown's witnesses. This is a sufficient basis upon which to reject an accused's evidence.

I therefore find the Crown has proven, beyond a reasonable doubt, [the offences]. [Emphasis added; citations omitted.]

Discussion

[26] We accept the appellant’s argument that the trial judge erred by approaching the conflicting evidence in this case as a credibility contest and failing to properly consider reasonable doubt.

[27] It is noteworthy in our view, that the trial judge began her W.(D.) analysis by observing that the evidence of the appellant and J.F. was diametrically opposed and stating, “[t]hey both cannot be telling the truth”. Such a statement is the antithesis of a W.(D.) analysis, which requires the trier of fact to consider whether, even if she does not accept the defence evidence, she is still left with a reasonable doubt by it.

[28] It is not the task of a trier of fact to determine which of two versions of an event is true. Rather, the trier’s task is to determine whether the Crown has met its burden of proving the elements of an offence beyond a reasonable doubt. As Cory J. held at p. 757 of W.(D.):

It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

[29] A finding that a complainant is both reliable and credible is not sufficient to satisfy the burden of proof beyond a reasonable doubt. As noted by this court in R. v. J.W., 2014 ONCA 322, 316 O.A.C. 395, at para. 26: “a reasonable doubt can survive a finding that the complainant is credible.”

[30] Here, the trial judge purported to rely on J.J.R.D. to support her rejection of the appellant’s evidence and to justify her finding that the Crown met its burden of proof. However, what the trial judge failed to do was consider whether the evidence, as a whole, raised a reasonable doubt.

[31] Nowhere in her W.(D.) analysis does the trial judge refer to reasonable doubt. In both the opening and concluding statements of her analysis, she refers to the fact that the two versions of the event (namely, that it happened and that it did not happen) cannot both be true. Although that may be accurate as far as it goes, it fails to address the fundamental issue of reasonable doubt or reflect an appreciation that what was at issue was not a credibility contest. Rather, it was whether the Crown had proven guilt beyond a reasonable doubt.

[32] Further, although she referred to reasonable doubt elsewhere when she recognized the possibility that C.A.’s evidence could raise a reasonable doubt if J.F. had been to the house with his Hot Wheels Catalogue on only one occasion, the trial judge assessed the question whether C.A.’s evidence raised a reasonable doubt in relation to only one aspect of the evidence.

[33] Specifically, in closing submissions, defence counsel asserted that J.F. testified he went to the appellant’s house with his Hot Wheels Catalogue only once. In her reasons, the trial judge said she relistened to J.F.’s evidence and he did not make such a statement. However, in considering this issue, the trial judge did not refer to C.A.’s evidence that J.F. had been to her house with the Hot Wheels Catalogue on only one occasion. Had she considered that evidence, she would also have had to consider the lack of specific evidence from J.F. concerning how many times he had been to the house with his Hot Wheels Catalogue.

[34] The trial judge also mistakenly concluded that the appellant’s evidence and C.A.’s evidence were inconsistent on the issue of where the appellant was when the offence was alleged to have occurred.

[35] The trial judge said the appellant was in Texas while C.A. said he was in Wyoming. However, that does not accurately reflect their evidence. On J.F.’s evidence, the offence most likely occurred in the summer of 2013. The appellant and C.A. both identified Texas as the appellant’s destination in 2013.

[36] To invoke J.J.R.D., a trial judge must assess the whole of the evidence and reject the defence evidence based on a considered and reasoned acceptance of the Crown’s evidence:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence: J.J.R.D., at para. 53.

[37] Here, we are not satisfied that the trial judge fulfilled the J.J.R.D. requirements. She failed to assess the whole of the evidence or to do so accurately in considering whether it was capable of raising a reasonable doubt.

[38] Further, we conclude that the trial judge approached the W.(D.) analysis as a credibility contest rather than what it is: a method of assessing whether the Crown has met its burden of proving guilt beyond a reasonable doubt.

[39] Based on the foregoing reasons, we allow the appeal.

Conclusion

[40] The appeal is allowed, the conviction is set aside, and a new trial is ordered.

“Janet Simmons J.A.”

“P. Lauwers J.A.”

“I.V.B. Nordheimer J.A.”

[^1]: The appellant’s wife’s sister is B.F.’s mother. [^2]: Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. [^3]: R v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69. [^4]: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.