Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210611 DOCKET: C66594

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Alexander Rose Appellant

COUNSEL: K.Y. Tina Yuen, for the appellant Avene Derwa, for the respondent

Heard: December 11, 2020 by video conference

On appeal from the conviction entered on August 29, 2018 by Justice David L. Corbett of the Superior Court of Justice.

Jamal J.A.:

OVERVIEW

[1] The appellant, Alexander Rose, appeals his conviction of sexual assault. The only issue at trial was consent. The appellant testified that his sexual encounter with the complainant was consensual, while the complainant testified that the appellant forced himself upon her. The case turned on credibility.

[2] The trial judge determined that he “simply did not believe a word of what [the appellant] had to say where it differed from the complainant’s version of events.” He also concluded that the complainant’s version of events was “probably true” and that “probably the events happened as she described them”. But he highlighted certain issues with her evidence that led him to conclude it would be “unsafe” to base a conviction on her evidence alone.

[3] Even so, the trial judge was convinced of the appellant’s guilt based on the complainant’s post-event demeanour as seen in about 30 minutes of video surveillance footage from the appellant’s condo building. The video footage showed the complainant in a highly distraught emotional condition just after the alleged assault. The trial judge found this post-event demeanour evidence “powerfully corroborative of the complainant’s evidence”. He ruled that “the corroboration provided by the video surveillance evidence [was] more than enough to satisfy [him] beyond a reasonable doubt of the truth of the complainant’s account of events.”

[4] The appellant now appeals his conviction. He asserts that the trial judge erred in evaluating the complainant’s post-event demeanour, rendered an unreasonable verdict, and improperly assessed the evidence. For the reasons that follow, I would dismiss the appeal.

BACKGROUND FACTS

[5] The facts were largely uncontested, except on the key issue of consent.

[6] In May 2016, the appellant, then aged 22, and the complainant, then aged 20, met at Yorkdale Mall in Toronto. The appellant was shopping with his friend Jordan for Jordan’s birthday. Jordan noticed the complainant in one of the stores and asked for her opinion on some shoes. The complainant then went shoe shopping with Jordan and the appellant. Before they parted, Jordan asked the complainant for her phone number and she gave it to him.

[7] The complainant and Jordan texted each other over the next few days. A week later, the complainant invited Jordan to her place where they had consensual sex. Jordan then went to the airport to catch a flight to the Dominican Republic. When he returned a week later, he and the complainant arranged a date. They were to meet in Jordan’s area and would then go to a restaurant or bar.

[8] On the evening of May 15, 2016, the complainant arrived at what she thought was Jordan’s condo building (it was actually the appellant’s condo). She was recorded on the condo building’s video surveillance camera as she waited for about 10 minutes in the downstairs lobby for Jordan to come down. When Jordan came down, he told her he had forgotten something, so they went upstairs to get it. The appellant was in the condo. He gave the complainant a rum and coke while Jordan went to the bedroom to get what he had forgotten. When Jordan returned, the three of them chatted and watched television. A few minutes later, Jordan and the complainant went to the bedroom and had consensual sex.

[9] Jordan, who was naked, then left the bedroom and the appellant came in to look for something. The complainant was sitting on the bed, partially undressed with her chest exposed. The appellant then left and Jordan returned, still naked. The complainant said this happened a few times. She found this strange and told them it was weird. She testified that, after Jordan left again, the appellant approached her on the bed. The appellant complimented her breasts and told her he wanted to see them, to which she said, “No”. He then tried to reach down the top of her dress. She told him to stop and pushed his hand away. The complainant testified that at this point the appellant was effectively blocking her from getting up or going around him.

[10] According to the complainant, the appellant remarked that she was shy and asked whether another drink would make her less shy. She said she guessed so. The appellant left the room to get more rum, returned, and refilled her drink. He then said, “Show me your dome skills”, a request for oral sex. She said no. The appellant then left the room again, returned with a condom, and put it on. He got on top of her and told her to “Relax. Relax”, and then said, “What’s the big deal? You have two good looking guys here”. She told him, “No. Like stop.” She tried to kick him off. But he held her hands down and penetrated her vagina. He asked her to turn around but she said “[n]o.” When her hands freed, she pushed him off her, and he left the room.

[11] The complainant testified that Jordan then returned to the bedroom and told the complainant that she had just had a threesome. She felt insulted but said nothing. The appellant and Jordan then announced that they were going to a nightclub but did not invite the complainant. She got dressed and the three of them left the condo together. All three were videotaped by the condo video surveillance camera in the elevator as they went down. The complainant said goodbye to Jordan and gave him a hug. She did not say goodbye to the appellant. When they got downstairs, Jordan and the appellant showed the complainant the way to the lobby before going to the parking garage for their night out. The complainant then called an Uber, which arrived about 30 minutes later and took her home. The complainant was recorded by the condo video surveillance camera as she waited for the Uber in the lobby.

[12] As the complainant waited in the lobby, she called her ex-boyfriend, J.F., but did not reach him. She also called two close friends, one of whom later testified that the complainant called him and told him that she had been raped by her date’s friend. That friend testified that the complainant sounded distraught and was crying throughout the roughly 30-minute conversation.

[13] The complainant texted J.F., who also testified at trial, and asked him if he would defend her if someone tried to hurt her. The complainant and J.F. met and spoke about what the complainant alleged had happened. J.F. called the appellant and Jordan and spoke to them on speakerphone, in the complainant’s presence, accusing them of rape. J.F. testified that one person on the call was arrogant and laughing the whole thing off, while the other person was not and apologized. J.F. later had another call with the person who had apologized, who now claimed that he was innocent. Later the same day, the complainant went to a police station and made a police report against the appellant.

[14] The appellant testified in his own defence but Jordan did not testify. The appellant claimed that the sex was consensual. He said that after Jordan left the room, he went to check on the complainant because she was a guest in his home and asked her if she wanted another drink. She said yes, so he went to get more rum. He said he returned, engaged in small talk with her, and leaned in to kiss her. He claimed she moaned and then moved back onto the bed. After a couple of minutes of touching and kissing, the appellant left to get a condom, returned, and engaged in what he asserted was consensual sex. He testified that the complainant’s body language was receptive throughout and that she never protested or told him to stop. The three then left the apartment and parted ways. The appellant and Jordan did not invite the complainant to the club with them and she said nothing about going with them.

THE TRIAL DECISION

[15] The trial judge did not believe the appellant’s testimony. He described the appellant’s testimony as “glib, often terse” and said it “failed utterly to convince [him] that he was providing a full and accurate account of what happened.” He said he “simply did not believe a word of what [the appellant] had to say where it differed from the complainant’s version of events”.

[16] The trial judge further stated that although he had concluded that the complainant’s evidence was “probably true” and “probably the events happened as she described them”, there were issues with parts of her evidence that were “numerous and serious enough” that it would be “unsafe” to base a conviction on her evidence alone. The trial judge highlighted the following: (1) the complainant lied to the police in her initial interview about not sleeping with Jordan when he came over to her place, in the trial judge’s view because she may have been embarrassed or uncomfortable talking to an older male officer, though she later went back to the police to tell the truth; (2) the complainant lied at the preliminary inquiry about the telephone call between J.F. and the appellant and Jordan by saying that J.F. had told her about the call, when she was actually present with J.F. on speakerphone during the call; (3) the trial judge found the complainant was trying to enlist J.F. to “exact justice on her behalf, rather than going to the police”, an explanation that the trial judge accepted. He found this did not run against her credibility but made it more likely that she was telling the truth about what happened in the condo; and (4) the complainant testified that she was holding her drink during the sexual assault, which the trial judge found improbable. The trial judge found that the appellant took the drink from her when he forced himself on her. The trial judge noted that this sort of confusion in the precise sequence of events is not unusual for shocking events that happen quickly.

[17] Despite these concerns, the trial judge declared that he “still believe[d] the complainant” and that he “still believe[d] that matters unfolded as she described.” He found she had no reason to lie about the assault. He rejected the defence theory that she had a motive to fabricate because Jordan and the appellant did not take her out to a club. He found her to be “emotionally resilient” and not so heavily invested in Jordan that she “would find her world shattered by his being rude to her or insensitive at the end of an evening.”

[18] The trial judge also found the condo video footage “powerfully corroborative of the complainant’s evidence”. He found “the corroboration provided by the video surveillance evidence [was] more than enough to satisfy [him] beyond a reasonable doubt of the truth of the complainant’s account of events.” The footage covered three time periods: (1) the complainant waiting in the lobby for about 10 minutes as she arrived to see Jordan at the beginning of the evening; (2) the complainant, the appellant, and Jordan in the elevator as they left the condo after the alleged assault; and (3) the complainant as she waited in the lobby area for about 30 minutes after the alleged assault, during which she can be seen crying.

[19] Applying the analysis in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge concluded that: (1) he did not believe the appellant’s evidence; (2) the appellant’s evidence did not leave him with a reasonable doubt as to the appellant’s guilt; and (3) the complainant’s evidence, combined with the video evidence, satisfied him of the appellant’s guilt beyond a reasonable doubt.

ISSUES

[20] The appellant raises three issues:

1. Did the trial judge err in evaluating the complainant’s post-event demeanour as recorded on the video footage?
2. Did the trial judge render an unreasonable verdict?
3. Did the trial judge improperly assess the evidence?

DISCUSSION

Issue #1: Did the trial judge err in evaluating the complainant’s post-event demeanour as recorded on the video footage?

[21] The appellant’s first and principal ground of appeal asserts that the trial judge erred in evaluating the complainant’s post-event demeanour as recorded on the video footage. At trial and before this court, both parties agreed that the video footage — which contained no sound — was admissible. It was entered into evidence on consent, although each side asked the trial judge to draw different inferences from it. The Crown argued that the video evidence corroborated the complainant’s testimony, while the defence urged the alternative inference that the complainant was upset because she “regretted” having consensual sex with both men and felt “massively disrespected” by being left to go home alone.

[22] Evidence of the post-event demeanour of a sexual assault complainant can be used as circumstantial evidence to corroborate the complainant’s version of events: R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at paras. 40-41, per Rothstein J. (dissenting, but not on this point); R. v. Steele, 2021 ONCA 186, 154 O.R. (3d) 721, at paras. 54, 94, per van Rensburg J.A. (concurring); and R. v. Mugabo, 2017 ONCA 323, 348 C.C.C. (3d) 265, at para. 25. Such post-event demeanour evidence can be invoked by either side: it can assist the defence in raising a reasonable doubt on the issue of consent, or it can assist the Crown in proving non-consent: Steele, at para. 54; see also Lisa Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.J. 316, at pp. 328-29.

[23] In Murphy v. The Queen, [1977] 2 S.C.R. 603, at pp. 612, Spence J. writing for the majority and the unanimous court on this point, explained how post-event demeanour evidence can assist the prosecution:

Independent testimony of a rape complainant’s emotional condition is capable at law of corroboration where it is sufficiently damning that it may be considered by a jury to be more consistent with her denial of consent than with the existence of consent, or, to put it another way, where a reasonable inference can be drawn by a jury, considering all the circumstances, that there is a causal relationship between the assault and the complainant’s distraught emotional condition.

[24] The appellant does not challenge these principles but asserts that the trial judge erred in applying them. He claims that the trial judge erred: (1) by making findings about the complainant’s post-event emotional state unsupported by the video footage and contradicted by the complainant’s testimony; and (2) in rejecting an alternative, innocent explanation for the complainant’s post-event demeanour.

[25] I do not accept the appellant’s submissions. Although I agree with the appellant that some of the trial judge’s characterizations of the complainant’s demeanour on the video are exaggerated, he was entitled to find that the video footage corroborated the complainant’s denial of consent and was not reasonably consistent with the existence of consent.

[26] The trial judge’s core conclusions about the complainant’s post-event emotional state are supported by the video footage and are not contradicted by the complainant’s testimony. The trial judge found that the video footage of the complainant in the lobby waiting for the Uber “shows a woman in a very different emotional state than the woman who entered the condominium some 90 minutes or so before.” That central finding is unassailable. As the trial judge found, when the complainant arrived she appeared “poised”, “confident” and was “running her fingers through her hair.” She was “laughing occasionally while she [was] talking on the phone.” She was “smiling” and her “body posture [was] relaxed.” She was swinging her arms in a “rather carefree manner.” But 90 minutes later, after the alleged sexual assault, she was “crying pretty much throughout the time of the video.” Although there is no audio, it is obvious, as the trial judge found, that she was “wiping the tears away from her face virtually throughout the entire time she [was] in the lobby. She [was] obviously very, very upset.” As the trial judge also found: “I see a video of an extremely distraught young woman who is crying copiously and is very, very upset.” I see no basis to interfere with these core conclusions.

[27] Even so, I agree with the appellant that the trial judge went too far when he described the complainant as “close to being emotionally shattered by what ha[d] just happened to her, very defensive, and on the verge of losing her self control”. In my view, the video footage does not justify this characterization of the complainant’s inner emotional state. This rhetorical flourish, however, does not undercut the trial judge’s core conclusions set out above. As a majority of the Supreme Court of Canada recently underscored in R. v. G.F., 2021 SCC 20, at para. 76, a trial judge’s reasons, “particularly in sexual assault cases”, must be reviewed “functionally and contextually” rather than “in a search for error”. Trial decisions must not be overturned “on the basis of parsing imperfect or summary expression on the part of the trial judge”, particularly on issues of credibility: at para. 76. Thus, while I would find the trial judge went too far in his characterization of the video footage, that does not justify setting aside his core conclusions.

[28] Nor are the trial judge’s core conclusions undercut by his conjecture that the complainant’s demeanour in the elevator — where she was huddled in the corner and hugged Jordan on the way out but ignored the appellant’s hand as he reached out to her — suggested that she “was still hoping that [Jordan] was a person that she might be able to have some continued relation with.” The trial judge appears to have ignored his own salutary caution, expressed a few lines earlier, that one “cannot read too much into something like that, it is a very short clip.”

[29] I also disagree with the appellant’s claim that the trial judge’s findings of the complainant’s emotional state are contradicted by her own testimony. The complainant rejected defence counsel’s suggestion that, at one point in the video, she was in a squatting position in the lobby because she was standing in high heels and getting tired. Instead, she testified that it was because she was “sad”. The appellant says that the complainant described herself as being only “sad”, a far cry from being (in the trial judge’s words) “close to being emotionally shattered by what has just happened to her”. But the trial judge’s use of much more expressive language than the complainant does not detract from his essential point — that the complainant’s emotional state in the video corroborated her testimony that the sex was not consensual.

[30] Finally, I do not accept that the trial judge erred in rejecting an alternative, innocent explanation for the complainant’s post-event demeanour. The appellant argued that the complainant was upset when she realized that the date with Jordan was a pretext to get her to the condo to have sex with both men, that the men considered her (as defence counsel at trial, who was not appeal counsel, put it) “sex worthy, but … not club worthy”, and that she was upset about Jordan’s comment that she had just been in a “threesome”. The trial judge considered and rejected this defence theory for the complainant’s post-event demeanour. As he explained:

[Counsel for the appellant], in his very able argument, put it to me that the complainant had been treated very shabbily by [Jordan] and [the appellant]. She had been invited over for a night out and instead, as soon as the two men had had sex and got what they wanted from her, they just dumped her at the doorstep to take her own Uber home and went off to have a night out on their own. If I was to accept that version of facts, that the leaving of the complainant at the front door was a callous disregard for her as a human being and treating her as just an object for sexual gratification, who was not wanted the moment the men got what they wanted, if I were to accept that, I still would find that motivation to not explain the distraught emotional state in which I see the complainant in the lobby of the building. Nor would it explain false allegations of sexual misconduct against [the appellant] or anyone for that matter. Nor would it explain the curious decision to make the allegation against [the appellant] but not against [Jordan], if that was a false allegation.

[31] The trial judge’s other findings supported this conclusion. He accepted the complainant’s evidence that she was at first unsure of Jordan’s role in what had taken place in the condo and only realized that Jordan was “in on it” — in the sense of inviting her to the apartment for a “threesome” — over the next day or two. [1] I see no basis to interfere with any of these conclusions.

[32] I also reject the appellant’s claim that the trial judge convicted the appellant based solely on the post-event demeanour evidence. The trial judge’s reasons were clear that he completely rejected the appellant’s evidence. He also stated that he believed the complainant’s evidence that the appellant had sexually assaulted her. However, given the high standard of proof required for a criminal conviction, the trial judge fairly noted that he would have had reservations convicting the appellant without the video evidence. I see no error in the trial judge’s reasoning process or conclusion.

[33] I therefore conclude that the trial judge did not err in evaluating the complainant’s post-event demeanour as recorded on the video footage. He was entitled to conclude that the video footage corroborated the complainant’s denial of consent and was not reasonably consistent with the existence of consent. He was also entitled to infer a causal relationship between the sexual assault and the complainant’s distraught emotional state reflected in the video footage.

Issue #2: Did the trial judge render an unreasonable verdict?

[34] The appellant’s second ground of appeal asserts that the trial judge’s verdict was unreasonable.

[35] A verdict is unreasonable if: (1) it is not one that a properly instructed jury or judge, acting judicially, could have reasonably rendered; or (2) the trial judge drew an inference or made a finding of fact essential to the verdict that (a) is plainly contradicted by the evidence that the trial judge relied on in support of that finding or inference, or (b) is incompatible with evidence not otherwise contradicted or rejected by the trial judge: R. v. C.P., 2021 SCC 19, at paras. 28-29; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9.

[36] When determining whether the verdict was reasonable, an appellate court cannot interfere with the trial judge’s assessments of credibility unless it is established that those assessments cannot be supported on any reasonable view of the evidence: C.P., at para. 30; R.P., at para. 10.

[37] Here, the appellant asserts that the trial judge’s verdict is unreasonable because the complainant’s narrative had such fundamental contradictions that it rendered her version of events impossible. He notes the complainant testified that she was physically held down as she was assaulted and that she struggled and kicked in an attempt to escape — which suggested she understood at the time that she was being assaulted — yet she also testified that it was only later, when she was in the lobby waiting for the Uber, that she began to process what had happened to her. The appellant also notes that there was an alternative, innocent explanation for the complainant’s post-event demeanour that could not be excluded.

[38] I do not accept the appellant’s submissions. Although the trial judge fairly acknowledged that there were problems with aspects of the complainant’s evidence, he found those problems did not go to the core of her account of forced, non-consensual sex. The complainant was unequivocal that she did not consent to the sexual activity with the appellant. The trial judge determined that her post-event demeanour or emotional state, as recorded on the video, corroborated her account. In these circumstances, in my view, the verdict cannot be said to have been unreasonable.

[39] Nor is there any contradiction in the complainant’s testimony that, on the one hand, she resisted the appellant, and, on the other hand, that she only processed what had happened to her later, when she was downstairs in the lobby. The events recounted by the complainant happened quickly. She testified that she was “in shock” when she was sexually assaulted and was “trying to process” what had happened to her. That she fought back during the assault does not mean that she had fully processed or comprehended what had just happened to her. The appellant’s argument presumes that resisting during a sexual assault is incompatible with not fully understanding the nature of the assault until later. Yet both the Supreme Court of Canada and this court have repeatedly cautioned that “there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at paras. 31-34. There is similarly no inviolable rule on how a sexual assault complainant will process a traumatic event. I see nothing incompatible with resisting during a sexual assault, being in a state of shock, and only fully processing the assault somewhat later.

[40] The trial judge was also entitled to reject the appellant’s alternative explanation for the complainant’s post-event demeanour, for the reasons already noted above.

[41] To conclude, I do not accept that the trial judge’s verdict was unreasonable. Even accepting that the trial judge’s description of the video was exaggerated or involved speculation in places, this does not undercut his core finding that the complainant did not consent to sex with the appellant.

Issue #3: Did the trial judge improperly assess the evidence?

[42] Finally, the appellant raised several arguments in his factum that he did not pursue in oral argument, alleging that the trial judge improperly assessed the evidence. The appellant claims that the trial judge: (1) engaged in stereotypical reasoning as to why the complainant did not leave the room when the appellant first made advances towards her, as reflected in the trial judge’s comment that “part of being a young woman in today’s age is rebuffing unwanted sexual advances”; (2) speculated that the complainant lied in her police statement that she did not have sex with Jordan the second time she met him because she was embarrassed; (3) addressed the complainant’s credibility but failed to analyze her reliability; and (4) engaged in uneven scrutiny of the evidence of the appellant and complainant.

[43] I see no merit in these arguments. They essentially invite this court to second-guess the trial judge’s credibility findings based on a paper record and to circumvent the appellate deference owed to those findings. As a majority of the Supreme Court recently underscored in G.F., at para. 81, “a trial judge’s findings of credibility deserve particular deference”, because “in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial.” The majority in G.F. emphasized, once again, that “[c]redibility findings are the province of the trial judge and attract significant deference on appeal” (citations omitted): at para. 99. Here, in my view, the trial judge complied with his obligation to “[strive] to explain why [the] complainant [was] found to be credible, or why the [appellant was] found not to be credible, or why the evidence [did] not raise a reasonable doubt”: at para. 81. I therefore see no basis to intervene.

[44] Nor is there any merit in the appellant’s argument that the trial judge failed to assess the complainant’s reliability. The majority in G.F. emphasized that “[a] trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability” (citation omitted): at para. 82. The majority concluded that, provided trial judges consider the relevant considerations bearing on credibility and reliability, “there is no requirement that they utter the word ‘reliable’”: at para. 82. Here, even though the trial judge did not specifically refer to the reliability of the complainant’s evidence, he carefully scrutinized both the appellant’s evidence and the complainant’s inculpatory evidence, as corroborated by the video evidence, including the truthfulness and accuracy of both. I see no basis for this court to intervene.

CONCLUSION

[45] Despite Ms. Yuen’s excellent submissions, I would dismiss the appeal.

Released: June 11, 2021 “R.G.J.” “M. Jamal J.A.” “I agree. R.G. Juriansz J.A.” “I agree. Coroza J.A.”

Footnotes

[1] The trial judge found that Jordan “understood that [the appellant] had just had sex with the complainant in the bedroom”, but “did not understand” that the sex was without consent.