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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210921

DOCKET: C67887

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

E.B.

Respondent

Lorna Bolton, for the appellant

Lauren M. Wilhelm, for the respondent

Heard: April 23, 2021 by videoconference

On appeal from the acquittal entered by Justice R. Cameron B. Watson of the Ontario Court of Justice on December 12, 2019.

Zarnett J.A.:

INTRODUCTION

[1] The respondent was acquitted, after trial, of charges of sexual assault and sexual interference, contrary to ss. 271 and 151, respectively, of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The offences were alleged to have occurred when the complainant, J.C., then five years old, was at the home of the respondent, her de facto stepfather, for a sleepover. The Crown’s case included statements made by J.C. to her mother, paramedics, a nurse, and in two police interviews, which the trial judge admitted after a voir dire, and DNA evidence that the respondent’s semen was found on a pair of J.C.’s underwear.

[3] The trial judge acquitted the respondent. He found the respondent’s denial of any improper sexual conduct believable. Even if he did not believe the respondent’s testimony, it left him with a reasonable doubt; and in any event, he was not satisfied on the balance of the evidence that the Crown had proven its case beyond a reasonable doubt.

[4] The Crown appeals, raising two issues. First, it submits that the trial judge’s reasons are inadequate to explain the acquittal in the face of a powerful Crown case. Second, it argues that the trial judge, in making credibility determinations, applied a higher degree of scrutiny to the Crown’s evidence than to that of the respondent. The Crown seeks a new trial.

[5] For the reasons that follow, I would dismiss the appeal.

[6] The Crown may appeal an acquittal only on a question of law: Code, s. 676(1)(a). The legal requirement that reasons be adequate is aimed at ensuring the reasons explain what the trial judge has decided, thus permitting appellate review. As the Supreme Court of Canada has held, caution must be taken not to create a ground of appeal of “unreasonable acquittal” by seizing on perceived deficiencies in a trial judge’s reasons for acquittal: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 2.

[7] The reasons of the trial judge here meet the legal requirement of adequacy, as they do not foreclose meaningful appellate review. They explain what the trial judge’s factual and credibility determinations were, how he made them taking into account the evidence as a whole, and why, on the basis of these determinations, the trial judge concluded that an acquittal was warranted. Concerns about whether the trial judge should have taken a different view of the evidence do not show that the reasons fall below the legal requirement of adequacy.

[8] The Crown’s different standards of scrutiny argument also fails. The Crown has not met the high burden of showing that the credibility determinations the trial judge made were the result of a legally erroneous application of different standards of scrutiny to the evidence, sufficient to displace the deference owed to the trial judge on issues of credibility.

THE TRIAL PROCEEDINGS

(1) The Crown’s Case at Trial

[9] For about four and a half years, J.C.’s mother, S.C., was in a relationship with the respondent. They lived together for a portion of this time. The respondent acted as de facto stepfather to J.C. The respondent and S.C. also had a son together who was about a year younger than J.C.

[10] When S.C. and the respondent ceased living together, the respondent was permitted weekend visits with his son and J.C.

[11] S.C. testified that on July 30, 2016, the children went to the respondent’s home for a sleepover. When S.C. called the next day to see how the children were, J.C. was hysterical. Once the children returned home, J.C. was “a little miserable” and would not settle down after being put to bed.

[12] S.C. went to J.C.’s bedroom and saw her lying naked with her legs spread on the bed; S.C. observed a rash on her vagina. J.C. told her mother that it hurt and was hot. S.C. asked, “is he touching you?” Initially, she received no response, but after telling J.C. that she needed to answer, J.C. stated, “he likes to play peek-a-boo.” She lay on her side and made gestures which, in closing submissions, defence counsel described as motions of opening her vaginal area and pointing to her buttocks. J.C told S.C. that the respondent pulled her pants down to her knees and that it hurt a bit. She also told S.C. that the respondent used what her brother has — S.C. explained that J.C. had seen her brother naked and knew he had a penis. S.C. asked J.C. where her brother had been during this. J.C. said that he was at the end of the bed but was told not to look.

[13] S.C. called 911. Two paramedics attended.

[14] The paramedics’ evidence was that the senior paramedic explained to J.C. that her mother had noticed redness on J.C.’s front area and bum, to which J.C. said “vagina.” He asked J.C. if she was in pain, to which she nodded and said it was itchy. He then told J.C. that her mother had mentioned a game called “peek-a-boo”. He asked her to explain the game, but she was reluctant to do so. He then asked her to use a teddy bear to show him; she poked its eye, and said, “I don’t want to poke it where it really happens.” When asked what this meant, she turned the bear over and poked it where its rectum and vagina would be. He asked her what was used to touch those spots and suggested fingers or the respondent’s private parts. J.C. said she did not know. J.C. said that the respondent comes in while she is sleeping and whispers, “let’s play peek-a-boo”, and that she does not sleep well at his home.

[15] The paramedics asked S.C. to collect the clothing that J.C. had changed out of that night. S.C. testified that she retrieved the clothing that J.C. had worn to the respondent’s residence and back home, which she thought included two pairs of shorts, two shirts, and one or two pairs of underwear. J.C. was taken to the hospital and the clothing was turned over to hospital staff.

[16] The ER nurse who saw J.C. at the hospital noted that she volunteered “daddy plays peek-a-boo” while gesturing to her groin area.

[17] A sexual assault examination was conducted two days later. It proved inconclusive.

[18] The police conducted a video-taped interview of J.C. on August 2, 2016. Although she was unable to articulate in detail what had occurred, she said, among other things, that the respondent wakes her up to play peek-a-boo and that she enjoys it. Later, she said it hurts when they play peek-a-boo and identified her vagina as where it hurts. Although she would not say what the respondent did during peek-a-boo, she did say it happened on the respondent’s bed.

[19] The police sent J.C.’s clothing to the Centre for Forensic Sciences (the “CFS”).

[20] The police also advised S.C. to take notes of J.C.’s words and actions, which S.C. did for the next several months. Statements or actions that S.C. noted included J.C. saying that the respondent used his penis and that she did not want to go to the respondent’s house because “he plays peek-a-boo”. When testifying, S.C. also described an occasion she did not document of J.C. lying down, spreading her legs, and saying “he put it in here”, referring to her vagina, and, when S.C. asked, “I thought you said he put it in your bum”, J.C. responding, “well, he put it there too”. S.C. also testified that J.C. said that the respondent wiped her afterwards with wet toilet paper. S.C. only partially recorded this statement.

[21] On March 24, 2017, the police conducted a further video-taped interview of J.C. On this occasion, she answered only a few of the questions asked. When asked if anyone had touched her private parts, she said the respondent had (although she was not sure with what), that he had done so at the respondent’s home, that her brother was on the bed watching TV at the time, and that the respondent had pulled her pants down. When asked what parts of her body the respondent had touched, J.C. gestured at her vagina.

[22] The underwear examined at CFS had J.C.’s D.N.A and male D.N.A. — it was stained with a patch of semen. The expert witness from the CFS testified that the male DNA matched the respondent’s DNA, that the random match probability was 1 in 51 quadrillion, and that the semen on the underwear had not been laundered with detergent and water.

[23] J.C. testified at trial. She was six years old at the time. After viewing her video statements to the police, she agreed she was in the “movie” and was doing her best to tell the truth. She was reluctant to discuss the allegations. She did not remember playing peek-a-boo. However, she stated that she did not want to see the respondent again because she did not “want him to do it again.” She eventually elaborated on what it was that she did not want done again: he “put his penis into my vagina and then he wiped it.” On cross-examination, she was not sure what kind of people had a penis and what kind had a vagina. She also did not know what it meant when she said someone put a penis in her vagina.

(2) The Khan/Khelawon Ruling

[24] At the conclusion of the Crown’s case, the trial judge granted the Crown’s application to admit the video statements of J.C. made on August 2, 2016 and March 24, 2017, pursuant to s. 715.1 of the Criminal Code. The trial judge also admitted the various hearsay statements and gestures attributed to J.C. by the Crown witnesses pursuant to the principles in R. v. Khan, [1990] 2 S.C.R. 531 and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.

[25] The defence conceded that the video statement taken on August 2, 2016 was admissible pursuant to s. 715.1. The trial judge admitted the second video statement taken on March 24, 2017 because the subsequent statements of J.C. that S.C. had documented and the DNA evidence necessitated a second interview. While that interview was not immediate, it took place within a reasonable period of time. Both interviews were taken at a Child Advocacy Centre in a less hostile and more comfortable environment than a court.

[26] The trial judge held that the Crown had established that J.C.’s hearsay statements and demonstrations were sufficiently reliable to justify their admission into evidence for the truth of their contents. In reaching this conclusion, he noted the following “strong indicia of reliability”: (i) J.C. was a disinterested witness; (ii) her initial statements to her mother were natural and spontaneous, and her statements to the paramedics emerged naturally and in her own words and demonstrative actions; (iii) J.C. lacked the life experience or capacity to “make up [the] explicit sexual acts [she] complained of”; (iv) there was no evidence anyone had planted ideas in J.C.’s head; and (v) the reliability of the statements was corroborated by the unexplained presence of the respondent’s semen in her underwear. He said, “it is extraordinarily unlikely that [S.C.] and [J.C] would be fabricating a story at the time they chose to do so which coincidentally coincided with the presence of the semen from [the respondent] being present in [J.C.’s] underwear”. The trial judge also commented with respect to J.C.’s oral testimony that she was clearly intimidated by the court process and her reluctance to discuss the allegations was not surprising for a young witness.

[27] The trial judge concluded: “It will be for me, wearing my separate 'hat' as the trier of fact at the close of the case, to determine the weight to attach to the statements and demonstrations of [J.C.] in light of the entire evidentiary record.”

(3) The Respondent’s Case at Trial

[28] The respondent gave evidence denying any wrongdoing. He testified that J.C. was upset on the phone call with her mother because he had spanked her on the bottom over her clothes. He denied playing peek-a-boo in the sexual manner J.C. described. He said that the children would play hide and seek together in his room but called it “peek-a-boo”.

[29] The respondent was unable to explain how his semen ended up on J.C.’s underwear. He gave certain evidence that was, in the defence’s closing argument, said to be relevant to that question.

[30] First, the respondent stated that although both he and S.C. were dating other people at the time, his sexual relationship with S.C. continued until the time of the alleged offences. He testified that they would have sex in S.C.’s bedroom. At the completion of sex, he would clean his penis by wiping it with clothes which were on the floor, which included J.C.’s clothes. The respondent testified that one of these incidents took place about a week before the weekend in question.

[31] Second, and while he initially denied it, the respondent also testified that on the night of the alleged offence, he had video sex with his girlfriend on the floor of his room while the children were asleep on his bed. He said that he covered himself with a blanket. After he ejaculated, he cleaned himself with his shirt. This shirt, as well as the children’s clothes, were placed in a pile in the corner of the room.

[32] The next day, he showered the children and dressed them in clean clothes to wear home. He handwashed the children’s clothes and dried them on a heater in his room before returning the children to S.C.

(4) The Trial Judge’s Decision to Acquit

[33] In his reasons, the trial judge reviewed authorities that explained the difference between a threshold reliability finding (the precondition to admitting evidence under Khan and Khelawon), and the ultimate reliability and weight to be assigned to such evidence. He also reviewed authorities concerning the treatment of the evidence of children.

[34] The trial judge conducted the analysis set out in R. v. W.(D.), [1991] 1 S.C.R. 742. At the first stage, he found the respondent to be a believable witness whose denial was not shaken in cross-examination. While his lack of explanation of why his semen was in the complainant’s underwear was “somewhat hard to accept” and “somewhat hard to believe”, the trial judge instructed himself that it was not the respondent’s onus to come up with an innocent explanation. The trial judge observed a number of times that the respondent was a simple and unsophisticated man. He considered the respondent to have told a story that was simple and unsophisticated, but believable.

[35] The trial judge continued the W.(D.) analysis to the second stage, and held that even if he did not believe the respondent, he was left with a reasonable doubt by his evidence. He proceeded to the third stage and held that even if the respondent had not raised a reasonable doubt, the Crown had not met its burden to prove the essential elements of the offences beyond a reasonable doubt.

[36] The trial judge had reservations about the credibility and reliability of J.C. and S.C.’s evidence when considered and weighed with the totality of the evidence. He noted that J.C did not recall what it means to put a penis in a vagina in her testimony at trial, and that she acknowledged that these were words she has only spoken about with her mother. The trial judge noted that J.C. did not recall what, if anything, happened at the respondent’s home. As such, he concluded he could not give much weight to her evidence.

[37] The trial judge had “trouble placing much weight” on any of the notes taken by S.C. after the police had asked her to keep notes because they were not all made contemporaneously with J.C.’s utterances. Although some were originals, some were created from point form notes that were then destroyed. This clouded the truth-seeking function of the trial and the weight of S.C.’s evidence was “substantially reduced.”

[38] The trial judge also gave diminished weight to the evidence of the paramedics, whom he considered not properly trained to conduct sexual assault investigations. He found them to be “misguided” in their mandate and in conducting a quasi-investigation based on what they were told by S.C.

[39] The trial judge explained, in connection with the reservations he expressed about the evidence of J.C. and S.C., that he had made his Khan/Khelawon ruling prior to hearing the evidence of the respondent.

ANALYSIS

(1) Did the trial judge err by failing to provide adequate reasons?

[40] The failure of a trial judge to give adequate reasons, in the sense of reasons that permit appellate review, is an error of law. However, “[i]f deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify [appellate] intervention”: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25, 28.

[41] The assessment of the adequacy of reasons is thus concerned with whether the reasons explain what was decided and why, not with the substantive correctness of the explanation provided. The requirement for adequate reasons is not an invitation for an appellate court to substitute its perceptions of what factual and credibility findings should have been made, nor does it provide a remedy for a party who, from the reasons, knows why the verdict was reached but is in “informed disagreement with the trial judge”: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 23; R. v. Braich, 2002 SCC 27, [2002] 1 SCR 903, at para. 21.

[42] Where a case turns on credibility, the reasons must show that the trial judge has “seized the substance of the issue” – whether the accused’s evidence, in the context of the evidence as a whole, left the judge with a reasonable doubt as to the accused’s guilt. The degree of detail that the trial judge is required to use when explaining their credibility findings in support of this ultimate question depends on the nature of the case and may vary with the evidentiary record: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 31, 50, and 51; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 23, 30. The fact that a trial judge’s reasons are “ambiguous” or “imperfect” is not sufficient to justify appellate intervention: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at paras. 76-79.

[43] The adequacy of the reasons must also be assessed in light of whether they convict or acquit. In Walker, at para. 2, Binnie J. explained:

[W]hile the trial judge's duty to give reasons applies generally to acquittals as much as to convictions, the content of the reasons necessary to give full effect to the right of appeal is governed by the different issues to which the reasons are directed on an acquittal (perhaps no more than the basis of a reasonable doubt) and a conviction (factual findings showing the pathway to conviction, explaining why significant elements of the evidence are accepted, rejected or fail to raise a reasonable doubt). Caution must be taken to avoid seizing on perceived deficiencies in a trial judge's reasons for acquittal to create a ground of "unreasonable acquittal" which is not open to the court under the provisions of the [Code].

[44] The Crown argues that the trial judge’s reasons are inadequate in two pivotal respects: (i) they do not adequately address the DNA evidence; and (ii) they are irreconcilable with the Khan/Khelawon ruling.

(a) Did the trial judge err by failing to adequately address the DNA evidence?

[45] The Crown argues that the key issues in the case were the credibility of the respondent’s denial and the reliability of J.C.’s evidence. The DNA evidence was powerful evidence bearing on both.

[46] The trial judge said in his reasons that the respondent was unable to explain the presence of his semen on the complainant’s underwear, but, the Crown submits, did not adequately explain how in light of that he could accept the respondent’s denial of sexual misconduct.

[47] The Crown further submits that, at trial, counsel for the respondent had argued that there were two possible innocent explanations. The first was that the underwear turned over by S.C. were not those worn by J.C. at the respondent’s residence, but a pair used by the respondent to wipe his penis after sex with S.C. on a prior occasion. The second was that the semen must have been transferred to J.C.’s underwear from whatever the respondent used to wipe himself after phone sex with his girlfriend on the evening J.C. slept over. The Crown argues that the reasons are inadequate since the trial judge did not seem to accept either explanation or, if he did, describe how he could have in light of evidence that the Crown says undermined both.

[48] The Crown suggests that this case is similar to R. v. L.M., 2019 ONCA 945, 59 C.R. (7th) 410, in which this court allowed a Crown appeal from an acquittal on charges of sexual offences, due to insufficient reasons. In L.M., the trial judge found that the accused had confessed to a sexual crime, disbelieved the accused’s denial at trial, found that the accused’s evidence did not leave him with a reasonable doubt, but acquitted at the third stage of the W.(D.) analysis. This court found that the trial judge “flatly rejected the denials of the respondent, found his polygraph statement to be voluntary, called parts of it a ‘confession”, and never reconciled this evidence with an acquittal. Nor did he articulate the basis for his verdict”: L.M., at para. 54. The court was left “with only questions”, such as whether the trial judge thought he was only to consider the complainant’s evidence, rather than all of the evidence, or whether the trial judge had changed his view on the reliability of the polygraph confession. The reasons did not reveal an intelligible basis for the verdict, or explain how the judge could be left with a reasonable doubt and were insufficient for appellate review: L.M., at paras. 1-3, 55-56.

[49] I do not accept the Crown’s argument. The trial judge’s reasons show that he addressed the “decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt”: Dinardo, at para. 23. And they show that he expressly considered the DNA evidence and the inability of the respondent to explain it in connection with that very question. He found the lack of an explanation somewhat “hard to accept” and “hard to believe”. But immediately after making those observations, he explained that he found the respondent’s denial of wrongful conduct with J.C. believable or that it left him with a reasonable doubt. And he explained why he came to that conclusion: the respondent was not shaken from his denial in cross-examination; he was an unsophisticated person who told a simple, unsophisticated, believable story; and because it was not the respondent’s onus to provide an innocent explanation for the presence of the semen. (On the latter point, although the DNA evidence was corroborative of the Crown’s case, it was not, as a confession might be, on its own conclusive. There was no direct evidence of how the semen was deposited on the underwear).

[50] In contrast to L.M., here the reasons explain the basis for the verdict, and do not leave open the type of questions that the reasons in L.M. did. The trial judge not only said he found the respondent’s denial credible, or sufficient to raise a reasonable doubt, but he explained how he reconciled that finding with the DNA evidence and the respondent’s lack of explanation, which the trial judge acknowledged made it somewhat hard to accept or believe the respondent. Moreover, the reasons explain why the trial judge was left with a reasonable doubt on the third branch of the W.(D.) analysis. They thus explain the basis of the existence of a reasonable doubt: Walker, at para. 2.

[51] The Crown’s argument is, in essence, that its case was so powerful that an acquittal is inexplicable. But the legal requirement of adequate reasons is that they contain the trial judge’s explanation for the acquittal in light of the powerful evidence favouring conviction, in a way that permits appellate review. Since they provide that explanation, the ground of inadequacy of reasons is not available. And since the explanation provided reveals the factual and credibility-based determinations the trial judge made, the power of the DNA evidence and any frailties in the evidence the trial judge accepted go not to the legal adequacy of the reasons, but to the reasonableness of an acquittal. But that is not a ground of appeal available to the Crown. It is not the role of this court to substitute its views for the views of the trial judge, absent legal error.

[52] The Crown has not shown that the way the reasons address the DNA evidence forecloses meaningful appellate review. When considered in the context of the Crown’s limited right of appeal on acquittals, this ground of appeal must fail.

(b) Did the trial judge err by failing to reconcile the reasons for judgment with the Khan/Khelawon ruling?

[53] The Crown also argues that the reasons for judgment are inadequate to explain the divergence between the favourable view toward certain evidence that the trial judge expressed in the voir dire ruling, and the diminished weight he gave to the same evidence in the reasons for acquittal.

[54] The Crown acknowledges that the trial judge’s reasons explain why he was not prepared to rely on J.C.’s viva voce testimony, the statements made to the paramedics, or the statements made to her mother after the allegations were reported. However, the Crown argues that they do not explain why he did not accept her initial hearsay statements to her mother and the ER nurse on July 31, 2016, or her video statement of August 2, 2016. The trial judge’s findings of fact in admitting the complainant’s statements in the Khan/Khelawon ruling are, according to the Crown, difficult to reconcile with his conclusion on ultimate reliability. In admitting the statements, he found them to have “strong indicia of reliability”, including that J.C. was disinterested, that she lacked the sexual knowledge to fabricate, that there was no evidence of ideas being planted in her head, and that her statements were corroborated by the respondent’s semen in her underwear. The Crown also argues that the trial judge’s failure to address J.C.’s inability to fabricate in making his ultimate reliability finding is all the more problematic as allegations by children have a particular stamp of reliability.

[55] I would not give effect to these arguments.

[56] In my view, the trial judge adequately explained the difference between any “favourable” comments made in deciding to admit the evidence, and his ultimate determination about the weight to be assigned to it.

[57] The issue addressed in the Khan/Khelawon ruling was threshold reliability for the purpose of whether the evidence should be admitted. That issue is qualitatively different than determinations of weight and ultimate reliability. The latter determinations are the sole province of the trier of fact: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 41.

[58] The trial judge made it clear that he was observing that distinction: that in the Khan/Khelawon ruling, he was determining threshold reliability of the evidence, and was not determining the weight, if any, to be assigned to it. All of the statements he made about the quality of the evidence in the Khan/Khelawon ruling were expressly made in that context. The trial judge expressly stated in his Khan/Khelawon ruling that although he was admitting the evidence, he would decide weight only as the trier of fact.

[59] The trial judge also made it clear that it was only in the acquittal ruling that he needed to, and did, assess whether the hearsay statements should ultimately be relied on and their probative value. He explained that he had decided only threshold admissibility in his earlier ruling, and in the acquittal ruling, as trier of fact, was now deciding weight. The distinction the trial judge made is exactly that described in Bradshaw.

[60] These explanations in his reasons, together with his explanations of the effect that the balance of the evidence had on his assessment of whether the hearsay statements should be relied on and their probative value, meet the requirements of adequacy.

[61] I also do not accept the Crown’s argument that the trial judge’s reasons were inadequate because, although they explained why he would not rely on some evidence of, and statements attributed to, J.C., he did not explain why, for example, he did not rely on J.C.’s original hearsay statement to S.C. The trial judge was entitled to consider all of J.C.’s evidence. He did so having expressly referred to the principles concerning evidence of a child witness. He expressed a conclusion of diminished weight with respect to all of J.C.’s evidence, drawn from his concerns articulated about some of it. In my view, that met the requirement of adequacy.

[62] I would not give effect to this ground of appeal.

(2) Did the trial judge err by applying different levels of scrutiny to the Crown and defence evidence?

[63] The Crown argues that the trial judge erred in applying a higher level of scrutiny to the evidence of the Crown than to that of the respondent.

[64] The Crown contends that major inconsistencies in the respondent’s evidence were ignored or excused including:

• His semen was found in the complainant’s underwear with no explanation of how it came to be there;
• He was a self-admitted prevaricator who deceived his then-fiancée about the nature of his relationship with S.C.;
• He said that he was a caring stepfather who would never harm the complainant, but admitted to masturbating in close proximity to her;
• The CFS expert testified that the complainant’s underwear had not been washed, contrary to the respondent’s evidence that he had washed it;
• The respondent gave inconsistent evidence about whether he engaged in video sex on the night in question; and,
• The respondent claimed that he dried the complainant’s underwear on his bedroom heater in July.

[65] On the other hand, the Crown argues that the trial judge was much more critical of the Crown evidence. He was critical of a 6-year-old’s inability to answer questions during cross-examination, gave diminished weight to the paramedics’ evidence because they should not have engaged in a quasi-investigation (after considering them reliable in the Khan/Khelawon ruling), and was unwilling to accept some of the evidence of S.C.

[66] An argument that a trial judge erred by applying a higher or stricter level of scrutiny to defence evidence than to Crown evidence is generally difficult because “credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations”: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39. What is necessary, to succeed in such an argument, is more than showing that different credibility assessments were made. It must be shown that the different assessments resulted from different standards of scrutiny being applied, significant enough to displace the deference due to a trial judge’s credibility assessments: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19.

[67] The Crown argues in this case that the uneven scrutiny flowed in the other direction — that the Crown evidence was subjected to a higher degree of scrutiny than that of the defence. In my view, the Crown has not succeeded in overcoming the high hurdle attached to this argument.

[68] The first prong of the Crown’s argument is that relaxed scrutiny was applied to the respondent’s evidence. But the trial judge’s ultimate conclusion that the respondent’s denial was believable or sufficient to raise a reasonable doubt does not lead to the conclusion that his evidence was not carefully scrutinized. The trial judge critically evaluated the respondent’s evidence. He characterized parts of it as hard to accept and hard to believe. He adverted to many of the points the Crown relies on — for example, the DNA evidence – but did not draw the same ultimate conclusion from them that the Crown sought at trial. The trial judge expressed a number of reasons for accepting the respondent’s denial — including the fact that he was not shaken in cross-examination and told a simple, unsophisticated, and believable story. He reached an individualized assessment of the respondent’s evidence in light of the evidence as a whole. Moreover, although the Crown relies heavily on the lack of an explanation for the DNA evidence, the trial judge reminded himself that the respondent did not have the onus of providing an innocent explanation.

[69] The second prong of the Crown’s argument is to contrast the relaxed standard the Crown says was applied to the respondent’s evidence, which the Crown maintains involved forgiving inconsistencies and frailties, with the trial judge’s decision to give diminished weight to, and express reservations about, elements of the Crown’s evidence. In my view, this prong of the argument fails. As explained above, I am not satisfied that the Crown has shown that the trial judge used a relaxed standard in assessing the respondent’s evidence, rather than coming to an individualized credibility assessment in light of all of the evidence. Nor am I satisfied that the trial judge used a different standard for the Crown’s evidence. Credibility determinations are not a science and involve many factors: R.E.M., at para. 49. The fact that different credibility determinations were made for different witnesses reflects that individualized process, and does not, in and of itself, show that different standards of scrutiny were used to reach those determinations.

[70] The matters referred to by the Crown are more in the nature of a complaint about the results of the trial judge’s credibility assessments than about the standards of scrutiny used by him to reach them. These examples do not displace the deference due to the trial judge’s assessments, nor demonstrate that he was using a more relaxed standard of scrutiny in deciding whether to accept the respondent’s evidence than he used in assessing the Crown evidence.

[71] Moreover, the comparison that the Crown proposes becomes more difficult given that the trial judge did not limit the basis of the acquittal to a finding that he believed the respondent. He also held that even if he disbelieved the respondent, he would have acquitted as the respondent’s evidence still left him with a reasonable doubt. It cannot be argued that, on this branch of the W.(D.) analysis, the trial judge was applying a more favourable standard to the respondent’s evidence — on the contrary, it is premised on disbelieving it.

[72] I would reject this ground of appeal.

CONCLUSION

[73] For these reasons, I would dismiss the appeal.

Released: September 21, 2021 “D.W.” “B. Zarnett J.A.” “I agree. David Watt J.A.” “I agree. L.B. Roberts J.A.”