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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210823 DOCKET: C64651

Hourigan, Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

M.R. Appellant

Counsel: Eric Neubauer, for the appellant Nicholas Hay, for the respondent

Heard: May 31, 2021, by videoconference

On appeal from the conviction entered by Justice R. Cary Boswell of the Superior Court of Justice on October 6, 2017, with reasons reported at 2017 ONSC 5891.

Hourigan J.A.:

A. Introduction

[1] The appellant invited the complainant, who was his employee, to his house to discuss the complainant’s employment. The two had dinner and drinks, after which they both fell asleep. What happened next is at the crux of the case. According to the complainant, he awoke to the appellant fondling his genitals and rubbing his buttocks, and then the appellant inserted something into his anus. He testified that when he tried to leave, the appellant grabbed and stopped him. In contrast, the appellant's evidence was that he never touched the complainant, and when the complainant awoke, he was panic-stricken and incoherent. Both parties agreed that the complainant ended up in a bathroom. The complainant stated that while in this bathroom, he called his sister for assistance.

[2] The appellant was convicted of sexual assault and was acquitted of unlawful confinement. He appeals his conviction, submitting that the trial judge erred in: (1) relying on speculative conclusions to make his credibility and reliability assessments; (2) failing to consider comments made by the complainant that suggested his account of the sexual assault was unreliable; (3) providing insufficient reasons; and (4) employing different levels of scrutiny in his assessment of the appellant’s and the complainant’s evidence.

[3] As I will explain, I find these arguments to be unpersuasive. I am not satisfied that the trial judge relied on speculative reasoning to bolster his credibility and reliability assessments. The remaining grounds of appeal all amount to essentially the same submission: the trial judge should have disbelieved the complainant because he was in a state of cognitive impairment on the evening in issue. In my view, the trial judge’s credibility and reliability assessments were well-grounded in the evidence, and there is no basis for appellate interference. I would accordingly dismiss the appeal.

B. Facts

[4] The complainant worked as a ramp attendant at a municipal airport. The appellant was a part-owner of the company where the complainant was employed. In August 2014, the complainant made his third significant error on the job, and the appellant was called into work to deal with the situation. According to the complainant, the appellant informed him that he would be dismissed. He became upset with the news, and went into the washroom and cried. The appellant denied that he told the complainant that he would be fired, but he agreed that the complainant went to the bathroom after speaking with him and that when the complainant returned, it was apparent he had been crying.

[5] In any event, it is common ground that when the complainant came out of the washroom, the appellant said that they could have a meeting to discuss a second chance. The complainant testified that the appellant told him that the meeting had to remain a secret. In contrast, the appellant testified that the meeting was originally supposed to occur in the hangar and that anyone around could participate.

[6] The appellant and the complainant ultimately met in the early evening at the parking lot of a Canadian Tire store. The complainant then followed the appellant to his house. The two ate dinner together and began drinking alcohol. The complainant testified that he did not expect or want to drink, but the appellant demanded that he take a shot during each commercial break. He did not believe that the appellant drank every time he did. On the other hand, the appellant testified that the complainant was in control of how much he drank and that he simply told the complainant to help himself to alcohol. It was the complainant, he says, who was mixing the drinks throughout the evening.

[7] At some point, the complainant became very emotional when discussing his family. According to the complainant, the appellant asked him if his parents had hurt him and said his father must have “hurt him really bad”. The appellant then put his arm around the back of the complainant’s torso and pulled him over his lap. The appellant’s account of this conversation was that he simply asked the complainant why he was having difficulty concentrating at work. At that point, the complainant became very emotional, began to cry, and hugged the appellant.

[8] Later that evening, the complainant vomited on himself. The appellant offered to wash his clothes. The complainant testified that he asked if he could go and see if he had extra clothes in his car, but the appellant said no and provided the complainant with his bathrobe. The pair returned to the couch and eventually fell asleep.

[9] The complainant testified to waking up with his underwear around his knees. The appellant was standing beside him with his belt undone, his pants unbuttoned, and his zipper down. According to the complainant, the appellant was fondling his penis and rubbing his buttocks. The complainant said that he tried to push his back up against the couch and pull up his underwear, but the appellant grabbed his buttocks and penetrated his anus with something other than his penis. The complainant’s evidence was that he then "freaked out," pulled up his underwear, and raised his voice. The appellant told him to calm down and that he had a nightmare. The complainant ran out of the basement exit door, but the appellant grabbed him, pulled him back, and told him he could not go outside because it was not safe.

[10] The appellant testified that he woke up to the complainant standing up and having some sort of seizure. He was unsteady, hyperventilating, and asking, “where am I?” and “what’s happening to me?” According to the appellant, he helped steady the complainant and directed him outside to get some fresh air. The appellant denied ever touching the complainant on the buttocks or genitals.

[11] The complainant testified that the appellant told them they were going to the spare bedroom. The complainant said that he tried to escape through the front doors, but was stopped by the appellant. He ran into a bathroom, where he said he called his sister. His sister testified to receiving a call at approximately 6:00 a.m. The complainant was panic-stricken; he did not know where he was or how to get home and asked her for help. The call dropped, and she called back. The complainant continued to talk as if he did not realize that they had been disconnected. He told her that the devil was taking over his body. She called 911.

[12] The 911 operator contacted the complainant, who said that he had never felt like this before, that he was “screwed up," and that the appellant was "giving him drugs." The appellant also spoke to the operator and provided his name, date of birth, and address. He told the operator that the complainant was not injured and that he had gone to bed and suffered a panic attack. In the background of the call, the complainant could be heard yelling, "I know everything I did; I know everything that happened" and "I don't want him to fuck me, please."

[13] When the police arrived, the complainant was escorted to an ambulance. The responding officer, P.C. Ledwidge, testified that the complainant smelled of alcohol and was clearly under its influence, but was able to provide a coherent account of what happened. The officer noted that the appellant did not appear intoxicated. The complainant was taken to a hospital where he saw a sexual assault and domestic violence nurse. Blood samples and penile and rectal swabs were taken from the complainant. His blood alcohol content was 100 mg of alcohol per 100 ml of blood. A small quantity of the appellant's D.N.A. was found on the complainant's penis.

C. Decision Below

[14] Credibility and reliability were the central issues at trial. The trial judge explained why he found the complainant credible and reliable and why he disbelieved much of the appellant’s testimony. He rejected the attacks on the complainant's credibility, which centred on the manner in which he testified and the alleged inconsistencies in his testimony. Regarding the appellant's evidence, the trial judge rejected critical components of his testimony, including who was directing the consumption of alcohol by the parties that evening. The trial judge ultimately concluded that he was satisfied, beyond a reasonable doubt, that the appellant sexually assaulted the complainant.

[15] The appellant was acquitted of unlawful confinement. The trial judge was not satisfied that, post-sexual assault, the complainant’s perception of the events was entirely reliable. This was mainly due to the complainant's heightened emotional state. The trial judge also had doubts about whether the appellant would be physically capable of restraining the complainant. Additionally, he noted that the complainant was not deprived of his mobile phone, which he ultimately used to call for help.

D. Analysis

(1) Speculation in Credibility and Reliability Assessment

[16] The appellant's first ground of appeal is that the trial judge erred by using speculative conclusions in assessing credibility and reliability. Specifically, he submits that the trial judge erred in: (a) his consideration of the D.N.A. evidence; (b) assessing the complainant's level of intoxication by using his blood alcohol content and neglecting his consumption of marijuana; and (c) his assessment of the appellant’s level of intoxication.

(a) The D.N.A. Evidence

[17] The first complaint is regarding the trial judge's use of the D.N.A. evidence. The appellant argues that the trial judge erred in concluding that it was "significantly more likely that [the appellant's] DNA found its way onto [the complainant’s] penis through direct transfer." This was speculation, he submits, because the D.N.A. expert called by the Crown testified that “there’s nothing in this case file that [would] indicate whether it’s indirect or direct transfer.” According to the appellant, the trial judge then used his speculative conclusion to bolster the credibility of the complainant and the reliability of his evidence.

[18] At trial, the primary defence position was that the D.N.A. had been indirectly transferred in one of the bathrooms used that night. The defence theory rested on the appellant's evidence that "[m]ost times" he spits in the toilet when he urinates. The complainant testified that he urinated in the downstairs washroom (but could not remember how many times) and that he defecated once in the upstairs washroom after the assault. The appellant testified that he used the downstairs washroom three to four times and the upstairs washroom a couple of times. The defence also suggested, in its cross-examination of the Crown’s D.N.A. expert, that there could be indirect D.N.A. transfer through the handling of a remote control or as a consequence of the complainant wearing the appellant's bathrobe.

[19] The Crown's D.N.A. expert testified that, due to the small size of the D.N.A. material, he could not opine on whether the presence of the appellant's D.N.A. on the complainant's penis was the result of an indirect or direct transfer. His evidence was that his findings were consistent with the "handling or fondling" of the complainant's penis. However, he fairly conceded that an indirect transfer by means of a toilet seat or through the use of the robe or remote was possible in certain conditions. According to the expert, four factors would have to be considered in assessing whether an indirect transfer was possible: dryness, pressure/friction, duration, and amount of source material.

[20] The evidentiary foundation in support of this indirect transfer theory was weak. There was no evidence that the appellant had, in fact, spit on the toilet seat (as opposed to in the toilet) or any other area that could have come in contact with the complainant's penis. There was also no testimony about the sequence or the timing of the complainant’s and the appellant’s respective trips to the downstairs bathroom. Nor was there any evidence — and the complainant was never asked — about whether his penis had come into contact with a toilet seat. Further, neither the appellant nor the complainant testified about the complainant touching the remote. The complainant wore the appellant’s robe but kept his underwear on, thus reducing the chance of direct contact between the complainant’s penis and the robe.

[21] Contrary to the assertion that the trial judge speculated regarding the D.N.A. evidence, he was, in fact, careful to downplay its significance in his analysis. His treatment of the evidence was as follows:

[120] I should also comment on the DNA evidence more directly. I have used this evidence only as a piece of circumstantial evidence that is consistent with [the complainant’s] version of events.

[121] I accept that it is consistent with other, innocent means of transfer and for that reason I have not used it as the "powerfully corroborative" evidence that the Crown suggested it is.

[122] I think in the circumstances it is significantly more likely that [the appellant’s] DNA found its way onto [the complainant’s] penis through direct transfer. Indeed, I consider the suggestion of possible indirect transfer to be little more than speculation.

[123] In the usual course, it is not necessary for the Crown to establish any given fact to the reasonable doubt standard. It is usually enough that I be satisfied that the evidence on offer is sufficiently reliable to conclude that a fact in issue is proven. But if I were to conclude that the DNA on [the complainant’s] penis was the result of direct transfer, the essential element of an intentional touching would be established on that inference alone. Whether the touching occurred is the central issue in the case and for that reason, it is my view that I must apply the reasonable doubt standard to my consideration of the means by which [the appellant’s] DNA came to be on [the complainant’s] penis. Given the limited amount of DNA and the evidence of [the Crown’s expert], I am unable to say that the evidence meets that high standard.

[22] Based on the foregoing, it is clear that the trial judge concluded that it was more likely than not that the D.N.A. was transferred directly and not indirectly. In other words, if he applied a balance of probabilities standard, he would have been satisfied that there was a direct transfer. This was a finding that was open to the trial judge, as he was not bound by the expert opinion proffered in a factual vacuum: R. v. McNeill-Crawford, 2020 ONCA 504, 392 C.C.C. (3d) 127, at para. 40. The trial judge properly considered the issue of the D.N.A. evidence, having regard to all of the evidence adduced at trial as he was required to do: R. v. Singh et al., 2020 MBCA 61, at para. 69.

[23] In his reasons, the trial judge was at pains to avoid an inference of guilt based on a finding, on a balance of probabilities standard, that there was no indirect transfer. Instead, the trial judge held the Crown to the beyond a reasonable doubt standard. Therefore, rather than using his finding regarding the D.N.A. to draw the inference that was open to him, the trial judge limited its use to a piece of circumstantial evidence that was consistent with the complainant's version of events. This use of the evidence in assessing the credibility of the parties worked to the appellant's benefit.

[24] Further, there was nothing impermissible in the trial judge using this evidence as a piece of circumstantial evidence consistent with the complainant's version of events. Evidence does not become irrelevant simply because it can be interpreted in more than one way or because multiple inferences can be drawn from it. The trial judge's responsibility is to decide on the weight to be given the evidence in light of the other evidence: R. v. Sutherland, 2016 ONCA 674, 342 C.C.C. (3d) 309, at para. 36; R. v. Carroo, 2010 ONCA 143, 259 O.A.C. 277, at para. 33. The trial judge did just that, and there is no basis for appellate interference.

(b) The Complainant’s Intoxication

[25] The appellant submits the trial judge erred in finding that the complainant’s “blood alcohol content was not sufficiently high enough to support a conclusion that he was not capable of distinguishing between a nightmare and the experience of his boss fondling his penis.” He argues that this is another instance where the trial judge wrongly used speculation to bolster his credibility findings.

[26] Specifically, the appellant says there are two problems with this finding. The trial judge was not entitled to infer the effects of a blood alcohol content on the complainant without evidence. Second, he says that the trial judge drew this inference from an incomplete evidentiary record. The evidence spoke only to the complainant’s blood alcohol content at the time of testing, not at the time of the assault. In addition, the trial judge did not consider that the complainant also had marijuana in his system.

[27] The Crown submits that the point made by the trial judge was that there was no evidence adduced about whether alcohol, at any level, is capable of causing someone to hallucinate or lose the ability to distinguish between dream and reality. Further, the Crown says that it was open to the trial judge, in the absence of such evidence, to conclude that he could not infer any such effects.

[28] In my view, in this part of his reasons, the trial judge was turning his mind to the critical issue of whether the complainant was so intoxicated that it prevented him from accurately perceiving what was happening to him. His reference to the complainant's blood alcohol content without mentioning the other evidence on the complainant’s intoxicated level was unfortunate. However, leaving aside whether extreme intoxication is capable of causing someone to lose the ability to distinguish between dream and reality, there was ample evidence to ground a finding that the complainant was not so intoxicated that he hallucinated or was in a delusional state.

[29] For example, P.C. Ledwidge, who spoke with the complainant shortly after the sexual assault, testified that he “was under the influence of alcohol, but he was coherent enough to have a conversation.” The complainant was able to explain, in detail, to P.C. Ledwidge why he was at the appellant’s house and the events of the evening. In addition, there was also evidence from the appellant that the complainant remained coherent despite the amount of alcohol he drank. In cross-examination, the appellant was adamant that, throughout the night, the complainant was not “extremely drunk.”

[30] I also agree with the Crown that the complainant’s marijuana use was a non-issue. The complainant smoked marijuana approximately 21 hours before the assault. He was clear in his testimony that he was not feeling any effects from it by the time he met the appellant. In addition, he testified that marijuana has never caused him to have delusions, and that mixing marijuana and alcohol had never affected his recall.

[31] In summary, I am not persuaded that the trial judge engaged in speculation in his consideration of the complainant's level of intoxication. The record well supported his finding that there was no basis for concluding that the complainant was so intoxicated that he could not distinguish between a nightmare and an actual sexual assault.

(c) The Appellant’s Intoxication

[32] The trial judge found that if the appellant had been matching the complainant's drinking as he said he was, he would have been "quite intoxicated" when the responding officer arrived. The appellant submits that the trial judge had no evidentiary basis for concluding whether the appellant would have been intoxicated from drinking the same amount as the complainant.

[33] I would not give effect to this argument. It highlights the folly in dissecting a trial judge's reasons and reviewing them in a piecemeal fashion. The more significant point that the trial judge was making concerned the vital issue of who was directing the alcohol consumption that evening. The complainant testified that the appellant told him to drink at every commercial, but that the appellant had very little to drink himself. In contrast, the appellant testified that the complainant was leading the drinking and that they consumed a significant amount together. This discrepancy was a critical issue in understanding the competing narratives of what occurred that evening.

[34] The trial judge rejected the appellant’s suggestion that the complainant was in control of the amount of alcohol consumed. He found that the appellant was dominant and clearly a person of authority over the complainant. Further, he noted that it was the appellant's home and alcohol, and that the appellant was the complainant's boss and almost 40 years older than the complainant. In his view, it was unlikely that the complainant would have chosen to consume excessive amounts of alcohol at his boss' house while trying to save his job. The trial judge also did not believe the complainant would be drinking as he was planning on driving home. As such, the trial judge found that the appellant was likely the one directing the consumption of alcohol. He noted that none of this was positive evidence of guilt, but that he was simply rejecting these portions of the appellant's evidence.

[35] In this context, the trial judge did not believe the appellant's assertion that he had drunk as much as the complainant. That finding was supported by independent evidence. For example, the trial judge determined that the appellant gave no impression of being intoxicated when he spoke to the 911 operator or P.C. Ledwidge. Further, during an interview by the police two months after the incident, the appellant said he was sober when P.C. Ledwidge and the ambulance arrived at his home.

(2) The Reliability Assessment of the Complainant

[36] The appellant further argues that the trial judge failed to consider evidence relevant to the material issue of the reliability of the complainant’s testimony, which he says amounts to a misapprehension of evidence. According to the appellant, that misapprehension played an essential role in convicting him and thereby undermined trial fairness.

[37] The appellant submits that the fact the complainant believed he was assaulted is not determinative of guilt. The trial judge's reliability assessment needed to grapple with whether the complainant had falsely perceived the assault in a state of cognitive impairment. According to the appellant, the trial judge failed to consider several pieces of evidence regarding the complainant’s cognitive impairment at the time of the incident, including:

• telling his sister that the devil was taking over his body and being unresponsive on the phone with her;
• stating that he did not know where he was;
• appearing unaware that their conversation ended when she phoned him back; and
• telling the 911 operator that he did not "know anything" and that he thinks he is "screwed up" and that the appellant was giving him drugs.

[38] Additionally, the appellant says that the trial judge’s reliability assessment also ignored that the complainant expressed reservations about whether he recalled the assault accurately. Finally, the appellant submits that the verdict on the count of unlawful confinement itself raised doubt about whether the complainant was able to perceive events accurately.

[39] I would not give effect to this ground of appeal, which amounts to an invitation to redo the trial judge’s reliability assessment. The trial judge was alive to the complainant’s actions and statements after waking up, and drew an inference that his erratic behaviour was due to genuine traumatization. That was a finding open to the trial judge. We are long past the point in our jurisprudence where we impose on sexual assault victims stereotypical notions of how they are to behave after being assaulted and then assess their credibility and reliability based on whether their behaviour was consistent with those stereotypes.

[40] In my view, the appellant also places undue emphasis on the complainant's statement about whether he recalled the assault accurately. It is correct that the complainant explained that he had doubts in the sense that he did "not [want] to think [the assault] actually happened." However, he was unshaken in cross-examination that he "know[s] it happened" and that he "wasn't imagining."

[41] I also see nothing in the acquittal on the count of unlawful confinement that is supportive of this ground of appeal. The trial judge distinguished between the complainant's memory of waking to find his boss sexually assaulting him from his ability to recall what happened immediately afterward when he was increasingly in a state of emotional trauma. That was a sensible and available interpretation of the evidence.

(3) Insufficient Reasons

[42] In a submission largely overlapping the grounds of appeal considered above, the appellant argues that the trial judge provided insufficient reasons for his decision. According to the appellant, by speculating and ignoring critical evidence, the reasons insufficiently articulate how serious reliability concerns were resolved. He says that the primary concern was whether the complainant’s perception of the sexual assault was sufficiently reliable to ground a conviction.

[43] The thrust of the appellant's submission is that the trial judge resolved this issue by relying on speculation and without reference to evidence which suggested that the complainant did not accurately perceive events. He argues that the central question remains unanswered when these errors are stripped from the reasons. In particular, sufficient reasons were needed to explain why the complainant feeling like the devil had taken over his body, falsely believing that the appellant gave him drugs, feeling “screwed up” and not knowing anything, and expressing doubts about what actually occurred, did not give the trial judge some concern that the complainant could not accurately perceive reality.

[44] The most recent guidance from the Supreme Court regarding insufficient reasons is R. v. G.F., 2021 SCC 20. Karakatsanis J., writing for the majority, said the following, at paras. 69-70:

[69] This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient: Sheppard, at paras. 28-33 and 53; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15; R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10, 15 and 19; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 15; R. v. Chung, 2020 SCC 8, at paras. 13 and 33. Appellate courts must not finely parse the trial judge’s reasons in a search for error: Chung, at paras. 13 and 33. Their task is much narrower: they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. As McLachlin C.J. put it in R.E.M., “The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”: para. 17. And as Charron J. stated in Dinardo, “the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues”: para. 31.

[70] This Court has also emphasized the importance of reviewing the record when assessing the sufficiency of a trial judge’s reasons. This is because “bad reasons” are not an independent ground of appeal. If the trial reasons do not explain the “what” and the “why”, but the answers to those questions are clear in the record, there will be no error: R.E.M., at paras. 38-40; Sheppard, at paras. 46 and 55.

[45] Further, Karakatsanis J. observed that particular deference should be afforded credibility findings, as they are often difficult to articulate with precision. This is especially the case in sexual assault cases. Karakatsanis J. stated, at para. 81:

[81] As Slatter demonstrates, a trial judge's findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon, at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[46] With those comments in mind, I consider the sufficiency of the reasons issued by the trial judge. There is no merit in this submission, which, to my mind, is a reiteration of his argument that the trial judge’s credibility and reliability assessments were flawed. The trial judge’s reasons fairly read make plain that he concluded that the complainant was not hallucinating but was genuinely traumatized. It was this traumatization that the trial judge concluded was the explanation for the complainant’s behaviour post-sexual assault.

[47] Obviously, the appellant disagrees with this finding, but this does not amount to insufficient reasons. In my view, the reasons of the trial judge are clear and do not frustrate appellate review. Consequently, I would reject this argument.

(4) Uneven Scrutiny of the Parties’ Evidence

[48] The final argument advanced by the appellant is that the trial judge subjected his evidence and the evidence of the complainant to different degrees of scrutiny. He says that the trial judge rejected his evidence because he disbelieved his account of who directed the drinking, because he disbelieved his amount of alcohol consumption, and because he described the complainant’s condition as a seizure. In addition, he submits that the trial judge's conclusion that the appellant could not have drunk as much as the complainant was a result of speculation. This, according to the appellant, is in sharp contrast to the trial judge’s use of speculation to boost the complainant’s credibility and reliability. Finally, he says that the trial judge ignored critical evidence and dismissed as insignificant many inconsistencies in the complainant’s testimony.

[49] The law regarding the uneven security ground of appeal continues to develop. The seminal case on the point is R. v. Howe, (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59:

[59] [I]t is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

[50] In G.F., Karakatsanis J. cast doubt on the utility of uneven scrutiny as an analytical tool to demonstrate error in credibility findings. However, in the absence of full submissions on the issue, she declined to determine whether uneven scrutiny is a helpful or independent ground of appeal.

[51] In my view, this is yet another argument made by the appellant that essentially asserts that the trial judge erred in his credibility and reliability assessments. For the reasons stated above, I see no error in the trial judge's analysis. I also reject the argument that he subjected the evidence of the appellant and the complainant to different levels of scrutiny. The trial judge canvassed the alleged inconsistencies in the complainant's evidence. He held that these inconsistencies were minor and explained by the traumatic circumstances. Accordingly, there is no merit in this submission.

E. Disposition

[52] For the foregoing reasons, I would dismiss the appeal. In accordance with the parties’ agreement, I would also dismiss as abandoned the appellant’s sentence appeal and his application to re-open that appeal.

Released: August 23, 2021 “C.W.H.” “C.W. Hourigan J.A.” “I agree. B. Zarnett J.A.” “I agree. S. Coroza J.A.”