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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210615 DOCKET: C64312

Doherty, van Rensburg, and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

R.C. Appellant

Counsel: Mark C. Halfyard, for the appellant Catherine Weiler, for the respondent

Heard: April 29, 2021 by videoconference

On appeal from the conviction entered by Justice Kofi N. Barnes of the Superior Court of Justice on January 30, 2017.

Thorburn J.A.:

Overview

[1] On January 30, 2017, the appellant, R.C., was convicted of sexual assault, sexual interference, incest, and assault. The trial judge provided oral reasons for these convictions (“the Oral Reasons”). In his reasons, the trial judge stated:

I will at the end of my decision order a transcript of my decision, at which time, I will include excerpts of the questions and answers verbatim from the transcript to illustrate my areas of concern [with the appellant’s evidence].

[2] On September 23, 2017, the appellant was sentenced to eight years in custody less 30 days’ pre-trial custody.

[3] On January 9, 2019, nearly two years after the Oral Reasons were given, the trial judge released edited reasons for the convictions (“the Edited Reasons”).

[4] The appellant now raises three grounds of appeal in relation to the convictions entered in January 2017:

a) The trial judge failed to properly assess the material inconsistences in the complainant’s evidence and the reasons he gave for resolving those inconsistencies were illogical. As such, he failed to properly apply the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742; b) The trial judge applied more scrutiny to the appellant’s evidence than he did to the complainant’s evidence; and, c) The trial judge provided insufficient reasons.

[5] The appellant claims that in assessing his three grounds of appeal, this court should consider only the Oral Reasons rendered on January 30, 2017 not the Edited Reasons released on January 9, 2019. The appellant further asserts that the Oral Reasons are insufficient to support a conviction on any of the charges.

The First Issue: Whether the Oral or Edited Reasons Should Be Considered on This Appeal

[6] The appellant filed a motion to consider fresh evidence on the consent of both parties in support of his request that this court consider only the Oral Reasons. The fresh evidence includes both the Oral Reasons and the Edited Reasons, and a blackline comparison of the changes.

[7] In the Edited Reasons the trial judge did not disavow his Oral Reasons.

[8] The Edited Reasons (a) contain further explanations of the trial judge’s reasons for rejecting the appellant’s evidence; (b) omit two grounds for rejecting the appellant’s evidence (relating to income he reported to immigration authorities in support of his immigration application for his children, and how long he remained employed at his place of work); and (c) provide further reasons for why the trial judge found the complainant’s evidence to be credible. The changes between the Oral and the Edited Reasons are succinctly set out in the appendices to the respondent Crown’s factum.

[9] The changes in the Edited Reasons are both extensive and substantive.

[10] A trial judge’s reasons are presumed to be an accurate reflection of the reasoning that led the trial judge to the decision. That presumption, while strong, can be rebutted by cogent evidence. For example, reasons given long after a verdict was rendered and subsequent to the commencement of an appeal, can compel the conclusion that the reasons are not an accurate reflection of the decision-making process engaged in by the trial judge and that the trial judge engaged instead in a result-driven consideration of the evidence. This is particularly true where – as here – the reasons were rendered after an appeal had been commenced: R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at paras. 18‑19; R. v. Wang, 2010 ONCA 435, 263 O.A.C. 194, at paras. 9-12.

[11] In Wang, at para. 9, this court observed that “it is inappropriate to modify, change or add to a transcript of oral reasons rendered in court.” At a minimum, where oral reasons are given and written reasons issued sometime later, changes that represent “something substantially different from what in fact occurred in the courtroom” are not permitted: Wang, at para. 10.

[12] The presumption of validity has been rebutted in this case by virtue of the substantive changes made in the Edited Reasons.

[13] The Edited Reasons therefore cannot be relied upon to justify the convictions. However, the Oral Reasons remain intact. The appellant does not argue those reasons do not reflect the trial judge’s reasoning process. Instead, the appellant argues that reasoning process is legally flawed. The outcome of the appeal turns on those arguments: see R. v. Arnaout, 2015 ONCA 655, 127 O.R. (3d) 241, at para. 60.

[14] Therefore, only the Oral Reasons of 2017 will be considered in reviewing these grounds of appeal as they were issued contemporaneously with the appellant’s convictions and have not been disavowed.

The Second Issue: Whether the Oral Reasons Are Sufficient to Justify the Convictions

[15] The second issue is whether the Oral Reasons are sufficient to justify the verdict.

[16] In this case, credibility was critical as there were no witnesses to any of the incidents. Considerable deference is afforded to trial judges who see and hear the witnesses firsthand, provided the reasons as a whole disclose an intelligible basis for the verdict: R. v. G.F., 2021 SCC 20.

[17] In order to assess whether the reasons are sufficient to justify the verdict, I will briefly review the evidence before addressing the legal issues raised and the reasons of the trial judge.

(1) The Evidence Adduced at Trial

[18] The appellant is the complainant’s father. At the time of trial, the complainant was 22 years old. She was born in Jamaica and moved to Canada in 2007. The appellant was the complainant’s immigration sponsor. The complainant lived with other family members until 2008, when she and her older sister moved into the home of the appellant’s friend Vivienne, where the appellant also resided.

[19] The complainant says she was sexually assaulted by the appellant six times in 2008-2009, when she was 13 or 14 years old. She claims the assaults took place at Vivienne’s home, at a Motel 6, and in the bedroom of another apartment she and her father shared with others.

The complainant’s evidence

[20] At the time of the first alleged assault, the complainant said she was sleeping in the basement of Vivienne’s house, lying on her stomach, when she felt the appellant touch her vagina over her clothes, shift her underwear to the side, and then penetrate her vagina with his penis. She said she did not remember if he ejaculated. She said she was shocked and confused but told no one.

[21] The second incident is not the subject of this appeal, as the appellant was acquitted of this charge. I will describe the trial judge’s approach to this charge in greater detail below.

[22] The complainant testified that the third and fourth incidents took place while she and her father were living in a Motel 6. On the third occasion, the complainant said she was in the bathroom when the appellant called her out, asked her to look through the window to see if a car was there, pulled her onto the bed, and had sexual intercourse with her. In so doing, she said the appellant pushed her toward him, took her towel off, shifted her underwear to one side and inserted his penis into her vagina. The complainant said she knew he was using protection because she could feel it though she did not see him putting it on. She claimed she was screaming.

[23] On the fourth occasion, the complainant said the appellant approached her while she was sleeping on her stomach. She felt something on her thighs, the appellant shifted her underwear to one side and inserted his penis into her vagina. She testified that she was on her side when this happened. She said she asked him to stop but he did not. She did not know if he ejaculated.

[24] The complainant testified that, on the fifth and sixth occasions, she and the appellant were sharing one room in a two-bedroom apartment. The second bedroom was occupied by two women tenants and a baby. The complainant said she was sleeping on a mattress on the floor, the appellant touched her legs and had intercourse with her. She did not remember if the other tenants were home or whether the appellant used protection.

[25] On the sixth occasion, she said the appellant came into the room and asked her to take off her clothes. She replied “Why?” and he said, “Just take off your clothes.” She was wearing a tank top. She said he then grabbed her, put her on the ground and had intercourse with her. She did not remember whether he ejaculated. She said they fought and he punched her on the lips with a closed fist. She claimed her lips were bleeding. In cross-examination she said that her lips were cut on the inside.

[26] Shortly thereafter, the complainant spoke to her school guidance counsellor and said she had been abused. She did not tell the counsellor the nature of the abuse. She was picked up by her aunt and spent the rest of the school year living with her grandmother.

[27] She never lived with the appellant again and returned to Jamaica at the end of that school year. While in Jamaica, she registered a complaint to the Jamaican police about the alleged sexual assaults. Also while in Jamaica, she became pregnant by a boyfriend. The complainant said that when her father called and asked her if she was pregnant, she lied and said she was not. She later admitted that she was pregnant.

[28] Her father arranged for her to return to Canada to have the baby. The complainant said she “snuck” her passport from her mother’s home and did not tell her mother she was coming to Canada. When she arrived in Canada, in 2012, the complainant was told by her aunt that she would have to live with her father. The complainant refused and called police to report the allegations of sexual assault. The police interviewed her and sent her to a shelter.

Other Crown witnesses’ evidence

[29] Vivienne’s daughter testified that, when she was 7 or 8 years old, she went into the basement of Vivienne’s home and saw the appellant lying on top of the complainant with sheets pulled over their shoulders. She said the appellant started yelling at her, telling her this was not her business and that she should leave. In cross-examination, she said he may have simply been reaching over the complainant to get to the television remote control. The trial judge concluded that the disparities in her account left him in a reasonable doubt about what she saw. As such, he did not rely on her evidence.

[30] The appellant’s adult daughter also testified that, while living in Vivienne’s home, she saw the complainant and the appellant lying in bed together in an inappropriate position with the complainant on top of the appellant. She said that when she told the complainant that she should not be in that position at her age, the complainant “did not react”.

[31] Vivienne testified and confirmed that the complainant preferred to sleep in the basement with her father despite having other sleeping options available. She said she never saw anything inappropriate take place.

The appellant’s evidence

[32] The appellant denied all of the allegations of sexual assault. He admitted that he assaulted the complainant by hitting her and slapping her twice on the arm and may have hit her on the mouth. He said he did so after they had had an argument because the complainant kept coming home late. He testified that the day after their physical fight, the complainant went to school, and he heard from his sister that the complainant had gone to live with her.

[33] The appellant testified that the complainant told him one of her friends falsely accused her father of sexual assault so that she would get her own place to live. He suggested that this was the complainant’s motive to fabricate the allegations.

[34] He also testified that when she returned from Jamaica, she told him she wanted to go on welfare and live on her own. He told her she could not as he was her immigration sponsor and financially responsible for her. She left and never returned.

(2) Analysis and Conclusion as to Whether the Verdict Was Justified

The law

[35] Considerable deference is afforded to trial judges on findings of credibility as, unlike appeal courts, trial judges see and hear the witnesses firsthand: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 28 and 32. The reasons must however, when read in context of the record as a whole, “disclose an intelligible basis for the verdict capable of permitting meaningful appellate review”: M. (R.E.), at para. 53; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10-19.

[36] When assessing credibility and two different versions of events are presented, the principles set out in R. v. W.(D.) are to be applied. In short, (i) if the accused’s evidence is believed, the accused must be acquitted; (ii) if the accused’s evidence is not believed but the court is left in reasonable doubt by that evidence, the accused must be acquitted; and (iii) even if the judge is not left in doubt by the evidence of the accused, the court must still ask whether, on the basis of the evidence that is accepted, the court is convinced beyond a reasonable doubt by that evidence of the accused’s guilt.

[37] Trial judges are not required to address every inconsistency in the evidence of a witness. They are however obliged to explain how they resolve major inconsistencies. Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a “carelessness about the truth” while inconsistencies about peripheral issues are of less significance: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 30-31.

[38] At issue in this case is whether, in convicting the appellant, the trial judge (a) failed to properly assess the material inconsistences in the complainant’s evidence and the reasons he gave for resolving the inconsistencies were illogical, (b) applied more scrutiny to the appellant’s evidence than he did to the complainant’s evidence, and/or (c) provided insufficient reasons.

The trial judge’s treatment of the appellant’s evidence

[39] The trial judge made reference to W.(D.), although he did not outline the elements of the three-part test to be followed when assessing credibility where there are two different versions of events presented. The trial judge recognized that this was a case that turned on credibility and noted that the burden of proof was on the Crown.

[40] The trial judge recounted the testimony of each of the witnesses at trial.

[41] He identified seven areas of concern in the appellant’s testimony. These are (i) the income the appellant reported to immigration authorities in support of his immigration application for his children; (ii) the duration and circumstances of his employment; (iii) how long he slept in Vivienne’s room and when he moved to the basement; (iv) the options available to him for sleeping arrangements when, according to him, the complainant insisted she wanted to sleep in the basement with him; (v) certain evasive answers given as to whether or not the complainant was sleeping with him in bed when Vivienne’s daughter came into the basement bedroom; (vi) his unresponsive and evasive answers given in cross-examination when asked whether he ever slept in the same bed as the complainant; and (vii) the appellant’s testimony in chief that he had no contact with the complainant after she moved to his sister’s house in April (before moving back to Jamaica in July). However, in cross-examination, he spoke of drive-by sightings of the complainant during this period.

[42] The trial judge concluded that “[it is based on] the cumulative effect of all of these types of changes in the testimony and others that I will lay out in my transcribed reasons, that I conclude that [the appellant] was not being truthful and, in fact, I reject his evidence and conclude that it does not raise a reasonable doubt in my mind, nor do I accept it.”

The trial judge’s rejection of certain evidence adduced by the Crown

[43] The trial judge also did not accept the evidence of Vivienne’s daughter and the appellant’s older daughter that they had observed the appellant in bed with the complainant doing inappropriate things. The trial judge held that Vivienne’s daughter was “very young when she made her observations. Several years have passed prior to her testifying in this trial and she said it was possible that [the appellant] was leaning over [the complainant] to get the remote”. He concluded that “her willingness to accept that it could simply have been an act of reaching for the remote create the doubt in my mind on what she saw.”

[44] He also rejected the appellant’s daughter’s evidence that she saw the complainant on top of the appellant in bed. In cross-examination she said that the appellant was “sleeping when she made her observations about what she described as inappropriate”. He concluded that “her testimony does not add anything to the Crown’s case… Her evidence is inconclusive at best. Ultimately, I find it to be a red herring.”

The trial judge’s treatment of the complainant’s evidence

[45] The trial judge acquitted the appellant of the second instance of alleged sexual assault because the complainant’s inconsistency in versions of the events led him to have some concerns about her recollection of the events, leaving him in a reasonable doubt as to whether the events took place. Those versions of events are as follows:

i. In examination-in-chief she said he pinched her vagina over her clothes but on cross-examination said he tapped her vagina. In re-examination she said it was a pinch; ii. In examination-in-chief she said that the appellant asked her if she liked it and she said “no” but on cross-examination she did not remember if he said anything to her; and, iii. On cross-examination she said the appellant’s hand was not just resting on her leg, then indicated that she did not recall his hand resting on her leg, and then said he was rubbing her leg with his right hand.

[46] The trial judge reviewed her testimony and concluded that “[a]t the very minimum, it leaves me in a reasonable doubt as to whether this specific incident she described actually took place”. He therefore acquitted the appellant of this assault not on the basis of an adverse credibility finding, but rather, on the basis of the reliability of her evidence in respect of this one incident.

[47] Importantly, the complainant was not cross-examined in respect of any of the other five assaults of which the appellant was convicted.

[48] The trial judge found there was a second inconsistency relating to the complainant’s reasons for reporting the sexual assaults in 2012. In examination‑in-chief, she testified that she went to the police at her mother’s urging after her aunt told her she was going to have to live with her father again. In cross-examination she denied that the only reason she reported the sexual assaults to the police was so that she would no longer have to live with her father. Later, in cross‑examination, she said she told the truth at the preliminary inquiry when she said that, in her mind, she disclosed the assaults because the only way to avoid living with her father was to go to the police.

[49] However, the trial judge did not accept the defence theory that this demonstrated that the complainant was not believable and that her only motive in going to police was her desire to live on her own.

[50] The trial judge correctly noted that the defence theory was belied by the fact that “as early as 2010, the complainant had already made an allegation about sexual assault by her father to the police in Jamaica. This is before she had returned to Canada and before she had found out that at some point, she was going to have to live with her father.” For this reason, this inconsistency did not adversely affect the trial judge’s assessment of the complainant’s credibility.

[51] While summarizing her testimony, the trial judge noted that the complainant’s testimony contained several other inconsistencies between both (i) her prior statements and (ii) the appellant’s testimony, namely:

i. She said she had little contact with the appellant as a child, growing up in Jamaica, though she later admitted she saw him regularly; ii. When she first came to Canada, she said she first stayed with her grandmother when it was in fact her aunt; iii. She initially said her aunt sponsored her to come to Canada, though she later acknowledged that the appellant was her sponsor; iv. She claimed the appellant owned a gun though the appellant denied this and there was no evidence he had one; v. She testified that she lied to the appellant about her pregnancy when she first became pregnant by her boyfriend in Jamaica; and, vi. She initially said that, after she reported abuse, her guidance counsellor told her to call 911. She later said she did not recall if she was told to call 911. When she was shown the preliminary inquiry transcript, she accepted that evidence that the counsellor did not tell her to contact police.

[52] The trial judge concluded however that, “ I find the inconsistencies in [the complainant’s] evidence, as I have already reviewed them to be minor, and thus I accept her testimony.” He held that “upon the evidence, I do accept that the Crown has proven the charges against [the appellant] beyond a reasonable doubt, and therefore he is found guilty on all counts.”

Analysis of the trial judge’s reasons for conviction

[53] In R. v. R.A., 2017 ONCA 714, 421 D.L.R. (4th) 100, this court reviewed the principles governing an appeal based on the trial judge’s assessment of credibility and resolution of testimonial inconsistencies. This court held, at para. 46, that “an appellate court should not interfere with a trial judge’s findings of credibility if the core of the complainant’s allegations against an appellant remain largely intact on a review of the entirety of the evidence”.

[54] Moreover, in R. v. A.A., 2015 ONCA 558, 337 O.A.C. 20, at para. 124, this court observed that:

Disagreement with the weight assigned does not ascend to the level of palpable and overriding error. Nor does the failure to consider inconsistencies on the periphery compel intervention in the absence of any obligation to consider and respond to each claim no matter how distant from the core issues of this case.

[55] In R. v. G.F., at paras. 81-82, the Supreme Court emphasized the deference owed to a trial judge’s credibility findings, the presumption that trial judges must be taken to know the law especially “settled principles,” and that reasons which are “imperfect” or language which is “ambiguous” does not per se require reversal.

[56] The trial judge adverted to the well-known W.(D.) principles. After reviewing the evidence, he found that that the appellant’s testimony was evasive and contained inconsistencies such that he did not believe the appellant, and his evidence raised no reasonable doubt as to his guilt. There was evidence to support his conclusion such that, when read in context, they are sufficient to disclose an intelligible basis for the verdict.

[57] While his explanation of how he assessed the complainant’s testimony thereafter was brief, the trial judge, while recounting her evidence in the Oral Reasons, provided some evaluation of its strength. He addressed the two material inconsistencies identified on appeal. Although there were several other inconsistencies in her evidence, he adverted to these inconsistencies in reviewing the evidence and, in my view, his reasons fairly characterized these inconsistencies as minor.

[58] Given the considerable deference afforded trial judges when deciding issues of credibility, the fact that the trial judge did assess the material inconsistencies in both the appellant and the complainant’s evidence and provided some reasons for resolving the inconsistencies, when read in context, the Oral Reasons are sufficient to disclose an intelligible basis for the verdict. They reveal no uneven scrutiny of the evidence nor do they demonstrate a misapprehension of the Crown’s burden.