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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211217 DOCKET: C66599

Doherty, Pardu and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

D.G. Appellant

Counsel: Chris Rudnicki and Arash Ghiassi, for the appellant Jessica Smith Joy, for the respondent

Heard: November 10, 2021

On appeal from the conviction entered on November 5, 2018 and the sentence imposed on February 8, 2019 by Justice Jamie K. Trimble of the Superior Court of Justice.

Pardu J.A. :

[1] The appellant argues that the trial judge erred in convicting him of sexual offences against two foster children, RY and TY, who were placed in his home. He was acquitted of assaults upon CSJ, another child placed in the home, upon SH, a girlfriend of TY, and upon his own daughter RB.

Arguments on Appeal

[2] The appellant submits that the trial judge misapprehended the evidence in concluding that there was no air of reality to the argument that the complainants had colluded with one another, and that this error affected both his ruling that similar act evidence was admissible to support the credibility of the complainants and his assessment as to whether guilt had been proven beyond a reasonable doubt. The appellant further submits that the trial judge applied uneven scrutiny as between the Crown evidence and the defence evidence, thereby misapplying the burden of proof. He argues that the trial judge rejected the defence evidence because of peripheral inconsistencies but forgave important contradictions in the evidence led by the Crown.

[3] The trial judge found that the Crown had proven, beyond a reasonable doubt, that the appellant was guilty of the charges relating to RY and TY, but acquitted the appellant of the charges relating to the remaining three complainants. RB recanted at trial and refused to testify. Consent was an issue for one of the other complainants, SH, who was TY’s girlfriend. CSJ was a belligerent witness who admitted to lying at the preliminary hearing. The trial judge concluded that although RY’s evidence corroborated CSJ’s evidence about the religious practices in the house, this was not sufficient to dispel the concerns he had about the reliability of her other evidence.

[4] The alleged offences involving RY and TY ultimately came to light when police contacted both girls, after CSJ made allegations against the appellant in July 2014.

The Evidence of the Complainant TY

[5] RY and TY are sisters. TY was 22 years old when she testified and was 14 years old when she and her sister were placed into foster care in the appellant’s home. TY felt welcomed there and part of the family. After about two to three months she was introduced to the religious practices in the home. The appellant’s family hosted dinners where friends and family could socialize and discuss religious matters. The “banquets” were held in the basement of the home. There was a prayer room in the basement used for religious rituals.

[6] At times, the appellant would act as though an evil spirit, “Skull,” manifested through him. The appellant’s voice and attitude would change when this happened. When “Skull” manifested, he would drink brandy and smoke cigarettes or cigars.

[7] TY testified that the sexual assaults began in about October 2010 when she was still 15 years old. The appellant had begun to groom her for sexual activity, asking her if she loved and trusted him. On the day of the first assault, the appellant took TY to the prayer room in the basement and gave her a glass of brandy. As she drank it, the appellant asked her if she trusted and loved him. He asked if she would kill for him. She said yes. He told her that as a sign of her love and trust, she should remove her clothes. She complied. He instructed her to sit on his lap then to lie on the floor on her back. He removed his clothes and had unprotected intercourse with her. TY testified that the sexual assaults continued on a weekly basis and estimated that there were over a hundred instances of intercourse. About half the time, the appellant made her perform oral sex upon him. He purchased Plan B post-intercourse birth-control medication for her on three or four occasions. TY moved out in August 2013 and obtained her own apartment. The appellant visited her there five times and had intercourse with her there three times. Intercourse was always preceded by questions about whether she loved and trusted him.

[8] Police contacted her in February 2016 because of RY’s allegations. She told police only that the appellant had been “handsy”. In March 2016, TY related the extent of the sexual conduct to which she had been subjected and explained why she had been reluctant to reveal this earlier.

The Evidence of RY

[9] RY was 11 years old when she went to live in the appellant’s home. She felt like she was part of the family. The family opened a restaurant and RY worked there—cleaning, painting and doing other work. She said she was alone there with the appellant about once a week. RY testified about the prayer room in the basement and stated that it was only after three or four months that she was allowed into that room. She also talked about the “banquets” that took place, how the appellant would summon a spirit called “Skull”, and how the appellant would then speak in a different voice. RY believed in the power of “Skull” to make things happen and observed that when the appellant channeled Skull, he would drink alcohol from crystal glasses and smoke cigars.

[10] RY testified that after three or four months, her relationship with the appellant changed. When at the family restaurant, the appellant asked her to pull down her pants, then to suck on his nipple. She complied. Over the next month the sexual acts culminated in sexual intercourse and sexual touching. The incidents occurred in the basement, his bedroom, the garage or a bedroom in the basement. Again, these instances were always preceded by the appellant asking her if she loved and trusted him. He told her she could not trust anyone else and made her promise not to tell anyone about their sexual contacts. She was only 11 years old when the first instance of intercourse occurred. Vaginal intercourse at first took place once or twice a week, then increased to four to six times a week for the entire time she lived in the home. About 60% of the sexual contact took place in the home and some took place in the restaurant. He also had her perform oral sex upon him. The intercourse was unprotected. He provided her with “Plan B” more than ten times.

[11] RY gave statements when police contacted her after CSJ made her allegations against the appellant. On July 18, 2014, July 28, 2014 and January 6, 2016, RY denied sexual contact and denied knowledge of any entity called “Skull”. At trial she said that she lied to police in these earlier statements to protect her family. If she told police about the sexual abuse, she would lose the only real family she had ever known. On May 9, 2016, she described to police the course of conduct about which she testified at trial.

The Similar Act Evidence of CSJ

[12] CSJ was 19 years old when she testified and was 13 years old when she came to live in the appellant’s home as a foster child. RY and TY were already living there. CSJ testified that the appellant began to make sexual advances towards her after she broke up with her boyfriend. The appellant would call her down to the basement, tell her to lie down and then lie on top of her, fully clothed. On two occasions he asked her to take her pants down and expose her vagina. He then instructed her to pull her pants back up, telling her that he was interested to see if she would comply with his instructions. On June 22, 2014, the appellant administered a spiritual bath to her, involving the use of perfumed water and the breaking of eggs upon her. CSJ then went to a party with the appellant and RY. When they returned, the appellant summoned her to the basement. RY and a number of other family members were there. The appellant appeared to manifest an entity called “Skull”. The appellant consumed brandy and smoked cigars. The appellant appeared to bite a crystal glass, chew the fragments and spit them out at her. “Skull” said he would depart and the appellant would return. The others left the room. The appellant then told her to lie on a bed and vaginally penetrated her. She cried and resisted and he grew angry and told her to let him finish. He told her it was not rape because she let him do it and that he could now trust her. CSJ went to visit an aunt a few days later, described what had happened to her aunt, and was immediately removed from the appellant’s home by the Children’s Aid Society.

The Appellant’s Evidence

[13] The appellant testified. He said he never touched RY, TY or CSJ in a sexual manner. He dismissed as ridiculous the suggestion that he would have chewed on glass at any time. He identified himself as a pastor and described a prayer room in the basement and the use of “Florida water”—a perfumed liquid used in administering spiritual or cleansing baths. The purpose of the spiritual baths was to remove unclean, dirty spirits. He said he did speak in tongues, which occurred when the Holy Spirit “arrested” him, but said he never identified himself as “Skull”. There was some alteration of his tone of voice when he spoke in tongues. He said it was part of his faith to pray to Ezekiel and that his young son could not pronounce that name but said “Skull” instead. There were flags with images of skulls on them displayed in his house. He would cast out demons, but never smoked cigars as part of his religious ceremonies.

The Appellant’s Wife

[14] The appellant’s wife also testified and indicated that she never saw any indication of sexual contact by her husband with CSJ, TY or RY. She largely confirmed her husband’s evidence about the religious rites performed in the household and the prayer room in the basement. She did learn that her husband had spent a weekend with SH in a hotel room and that the two had committed sexual intercourse.

The Trial Judge’s Decision

[15] The trial judge concluded that both TY and RY were credible witnesses.

[16] At para. 118 of his reasons, he noted: “[TY] was a credible and reliable witness. She gave her evidence in a straightforward manner. She was thoughtful. She corrected herself quickly when she was mistaken. She was not shaken, on material issues, in cross-examination, in any significant way. She was forthright about the internal conflict she faced between her desire to keep the family she had with the G. family, and the fact she was being abused by [DG]”.

[17] He reviewed potential concerns about her reliability and credibility, and rejected the appellant’s argument that TY came forward with a complaint in retaliation for the appellant’s sexual contact with her friend, SH.

[18] Similarly, he concluded that RY was also a credible and reliable witness who had given her evidence in a straightforward manner: “She was thoughtful. She corrected herself quickly when she was mistaken. She was not shaken, on material issues, in cross-examination, in any significant way”. He reviewed the concerns expressed about her evidence by the defence, her adamant denial of any sexual assault in three different interviews with police and her initial denial of the rituals in the house, including the chewing of glass.

[19] The trial judge observed that both RY and TY’s evidence was consistent with what CSJ had to say about the spiritual baths, the rites used to summon “Skull” and what happened when the appellant channeled “Skull”. He concluded, however, that CSJ was not a reliable witness in large part because of her behaviour during her testimony and her admitted lying under oath.

[20] The trial judge concluded that the appellant was an unreliable witness. He observed that his evidence was self-serving and that he downplayed his opportunity for contact with his foster daughters, even when other defence witnesses indicated he clearly had more extensive contact with them. His answers were generally absolute and extreme, and he contradicted himself about the time the children spent at the restaurant he operated. The trial judge found that the appellant made nonsensical assertions about his sexual contact with SH. He found that the appellant’s detailed recall of an evening years earlier that he described as entirely banal could not be true. He found that the appellant’s description as to how “Skull” came to be referred to in his home was tortured and contrived. He observed that the appellant had a motive to fabricate, beyond merely winning the case. He had an image to protect as a pastor and risked losing the tithes he collected. The trial judge rejected the appellant’s wife’s evidence for similar reasons.

[21] The trial judge went on to consider the possibility of collusion, noting that if there was collusion the similar act evidence would not be admissible and other evidence would be thrown into doubt. By collusion he meant to include conduct ranging from secret agreements to deceive to innocent tainting that occurs “when witnesses discuss the allegations between themselves or discuss their evidence with the investigators in the presence of other witnesses”. The appellant argued that RY, TY and SH collaborated to falsely accuse the appellant.

[22] The trial judge rejected this collusion argument on the following grounds:

1. CSJ testified that she did not speak to TY about what happened to her nor did TY tell her anything about what happened to TY.
2. Although CSJ did tell RY during a lunch in summer 2015 that the appellant had assaulted her, and RY responded that it had happened to her too, the two did not share any other particulars of the events.
3. TY did not disclose her own experiences to RY until shortly before the preliminary inquiry in 2016, long after CSJ and RY had made their allegations. The conversation occurred because both girls received a subpoena for the preliminary inquiry and TY inferred that RY was also a complainant.
4. TY did not discuss her allegations with CSJ.
5. RY said she knew nothing of the details of TY’s allegations.
6. SH had no relationship with RB, RY or CSJ. She heard that CSJ was removed from the G home because she alleged that DG had sexually assaulted her. She never had a direct discussion with CSJ. The first she heard of RY’s allegations was shortly before the preliminary inquiry when TY told SH that RY had also been summoned. SH said that she and TY spoke from time to time about their respective allegations during the course of the relationship but she never learned any details of what DG did. RY only found out about SH’s allegations in May 2016 when summoned to testify at the preliminary inquiry. She never discussed her allegations with TY.

[23] The trial judge concluded that there were striking similarities to the assaults described by each of TY, RY and CSJ, at para. 152 of his reasons:

a) The complainants are all teenage girls over whom DG stood in loco parentis or a position of trust (daughter, foster children). b) The abuse took place in a private family home, where the complainants ought to have felt secure, or other places in DG’s control, when he was a supervising adult. c) DG allegedly groomed each complainant to be his victim by asking them if they loved and trusted him, by saying that he wanted them to be part of his inner circle which they could only do by performing acts that proved that he could trust them, by demanding that they perform certain high risk, embarrassing actions such as pulling down their pants and underwear and showing themselves to him. d) He allegedly asked each to keep the acts a secret. When TY Told BG in 2012 that she was having sex with DG, DG accused her of breaking his trust, and made her earn it again. e) The details of the sexual acts that DG performed or demanded of the three were similar.

[24] He ultimately concluded that he would not rely on count to count application of similar act evidence but would rely on similar act evidence only in relation to his assessment of the credibility of the complainants.

[25] He concluded by saying that upon application of the W.D. analysis, he did not accept the evidence of the appellant or his wife, accepted the evidence of RY and TY and found that guilt had been proven beyond a reasonable doubt in respect of those complainants.

Analysis of Arguments Advanced by the Appellant in his Factum

[26] The appellant makes two arguments in his factum:

1. The trial judge misapprehended the evidence of collusion. His misapprehensions were material to both his similar fact ruling and to his ultimate assessment of the Crown’s burden.
2. The trial judge applied an uneven standard of scrutiny as between Crown and defence evidence, misapplying the burden of proof.

[27] He submits that a new trial is required because of these errors.

Misapprehension of the Evidence

[28] The Crown concedes that the trial judge did misstate the evidence on several issues but submits that these did not amount to material misapprehensions.

[29] While the trial judge found that RY did not know anything about the allegations made by SH, RY testified that she did know that there was an allegation that the appellant had taken advantage of SH, though she knew of no further details.

[30] The trial judge found that RY learned about TY’s allegations after RY was subpoenaed to court for the preliminary inquiry. RY testified, however, that she learned TY had sexual contact with the appellant during a meal when TY told her that the appellant had raped her. TY said the meal occurred in November 2016. RY said it was in April or May 2016.

[31] While the trial judge found that RY learned of CSJ’s allegations over a lunch meeting with CSJ, RY’s evidence was that she learned about the allegations in a Facetime call in the summer of 2014. CSJ told RY that the appellant had called her into the basement, asked her to lie down and to pull her pants down. CSJ told RY that the appellant bent her over in a cubby hole and had intercourse with her from behind. CSJ said she tried to get away but the appellant wanted to finish and that she ran away upstairs.

[32] TY testified that she never spoke to CSJ about the appellant’s conduct but that RY had told her that the appellant had sexually assaulted CSJ, without giving any details.

[33] A misapprehension of material evidence can result in a miscarriage of justice requiring a new trial. As discussed in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541:

The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[34] Here, the misapprehensions of evidence related to peripheral matters—the time and place of discussions amongst the complainants. These were not important in the trial judge’s assessment of the evidence. What mattered is that generally, there were no discussions about the details of the alleged assaults—particularly the grooming, the use of rituals, or the supply of post intercourse medications to prevent pregnancy. It was the striking similarities in these respects that made the similar act evidence compelling.

[35] The allegations about SH and RB were so different in their nature and mode of commission that they would have had no impact on the trial judge’s reasoning in relation to the allegations involving TY and RY. The trial judge did not use the allegations involving SH and RB to support the credibility of TY and RY.

[36] It was open to the trial judge to conclude that the evidence of TY and RY was not tainted by discussions with each other or with others.

[37] His decision to admit the similar act evidence is owed deference. He did not reach an unreasonable conclusion, commit a legal error or materially misapprehend the evidence: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 153; R. v. J.W., 2013 ONCA 89, 302 O.A.C. 205, at para. 40; R. v. Creswell, 2009 ONCA 95, at para. 7.

[38] Moreover, the trial judge expressly stated that the possibility of collusion or tainting had to be considered both at the stage of determining the admissibility of the similar act evidence and when assessing whether the offence had been proven beyond a reasonable doubt.

Uneven Scrutiny

[39] The Supreme Court has expressed reservations as to whether uneven scrutiny is a “helpful or independent ground of appeal”, though it has not yet decided the issue: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 101.

[40] A trial judge’s credibility assessments are owed significant deference. I am not persuaded that the trial judge here erred in the manner in which he assessed credibility of the witnesses.

[41] The appellant submits that the number of paragraphs devoted to review of the evidence illustrates uneven scrutiny, with more than 70 paragraphs devoted to the Crown evidence and only four to the defence evidence. This is not emblematic of uneven scrutiny but flows from the nature of the evidence. Five complainants described repeated sexual assaults, while the defence evidence was mostly that nothing happened.

[42] The appellant argues that the trial judge failed to address the unbelievable evidence about the appellant chewing glass. This was not, however, an essential element of the offence, and the trial judge did not have to finally decide whether that had occurred or not. Juries are often told that the evidence might well leave some questions about what happened unanswered, but that their task is to determine whether the elements of the offence have been proven beyond a reasonable doubt.

[43] Similarly, the appellant argues that the trial judge did not address what he describes as the unbelievable frequency of the assaults alleged, nor the impact on the credibility of the complainants of their previous denials that they had been assaulted. The complainants could not, in this context, be expected to be precise about the number of times they had been assaulted and it would be inappropriate for this court to speculate about the normal frequency of sexual assaults. RY and TY explained why they initially denied that they had been assaulted. They did not want to lose the only family they had.

[44] The trial judge was aware of these issues and concluded that RY and TY were nonetheless credible and reliable witnesses.

[45] Nor am I persuaded that the trial judge treated the defence witnesses unfairly. This was a 16-day trial, with 4 days devoted to defence evidence.

[46] As noted in R. v. G.F., at para. 81:

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.

[47] While the trial judge mentioned the appellant’s obvious interest in the outcome of the proceedings, I am not persuaded that he placed “undue weight on the status of a person in the proceedings as a factor going to credibility” in a manner that undermined the presumption of innocence: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 11.

[48] It is not disputed that the trial judge accurately summarized the law relating to the burden of proof and the assessment of evidence. He expressly addressed the defence arguments about frailties in the evidence: see para. 116 of reasons below.

[49] I am not persuaded that the trial judge erred in his assessment of the credibility and reliability of the evidence or that he subjected the evidence to “uneven scrutiny”.

New Matter Raised in Oral Argument

[50] In the course of oral argument, the appellant suggested for the first time that the trial judge failed to adequately consider the possibility that RY’s evidence could have been tainted by the content of questions put to her by police. The appellant suggests that RY could have been so influenced by the content of the police questions that she incorporated that content into a later statement she made to police. It is suggested that this tainting could have affected both the ruling on admissibility of similar act evidence and the overall assessment of credibility. This argument was not made to the trial judge. On appeal, the Crown did not object to consideration of this issue.

[51] When RY met with police on January 6, 2016 the police asked her the following questions:

[C]an you talk to me about the religious practices at the house? What about like cleansing baths? You know the one with the eggs. You know and then you have to rinse with holy water that sort of thing. While someone reads the Bible[?] What about that room that’s in the basement[,] the prayer room[?] …[E]ver have any baths that were performed on you? …[E]ver have any eggs broken on your shoulders or on your head? You didn’t get called down to the basement…. [a]nd witness Skull come out[?] You didn’t see…biting of the glass and spitting it? So what do you think about someone who’s 50 having sex with someone who’s 15 let’s say?

[T]ell me about like when he calls himself Skull, what is that all about?

[52] A trial judge is not required to refer to every aspect of the evidence that might have some impact on a witness’s credibility. In a case like this, that could encompass all of the evidence. Save for exceptional cases, it would undermine the work of trial judges if an appeal court were to re-assess credibility based on new arguments never made to the trial judge.

[53] As observed in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66:

…[t]he trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and a “very credible witness”, and concluding that her testimony on specific events was “not seriously challenged. It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt. [Footnotes omitted.]

[54] Similarly, in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 19, the court held that reasons are sufficient where they tell the appellant why the trial judge decided as he did, and:

…[t]he trial judge found the complainant’s evidence compelling, the problems in her evidence inconsequential, and the appellant’s concoction theories speculative. The reasons reveal that the trial judge accepted the complainant’s evidence where it conflicted with the appellant’s evidence. No further explanation for rejecting the appellant’s evidence was required.

[55] As noted in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31, the “inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues”. The reasons of the trial judge make it clear that he was alive to the issue that a witness’s evidence might be tainted by exposure to investigator’s questions: see para. 139 of reasons below.

[56] For all the reasons above, and given the deference owed to a trial judge’s credibility findings, this court should not, on appeal, revisit those findings for several reasons. First, the questions put by the officer made only skeletal reference to events in the appellant’s household. These questions contained nothing close to the detail provided in the evidence of the complainants CSJ, RY and TY. Second, by the end of the trial, even on the appellant’s own evidence, there was no dispute that there was a prayer room in the basement, that religious ceremonies were performed there, that the appellant performed “spiritual baths” on other people with some special liquid and that there was some reference to “Skull” in one form or another. The potentially suggestive nature of the questions put to RY by the officer was not a significant issue by the end of the trial, given all of the evidence that had been adduced. Third, the potentially suggestive questions were derived from information CSJ provided to police. There was no issue of RY tainting CSJ’s evidence. The possibility that RY could have relayed the information to TY is foreclosed by the trial judge’s finding that there was no collusion between them, by way of either collaboration or innocent tainting of their evidence.

[57] In his reasons at para. 152, however, the trial judge found that there were “persuasive similarities” among the descriptions of the assaults given by RY, TY and CSJ. He cited the following:

a. DG allegedly groomed each complainant to be his victim by asking them if they loved and trusted him and saying that he wanted them to be part of his inner circle which they could only do by performing acts that proved that he could trust them; b. He demanded that they perform high risk, embarrassing actions such as pulling down their pants and underwear and showing themselves to him; c. He asked each to keep the acts a secret and this was a matter of trust; and d. The details of the sexual acts that DG performed or demanded of the three were similar.

[58] None of this evidence pertained to any of the questions asked by the police on January 6, 2016.

[59] Lastly, RY’s and TY’s statements to police, which included denials that any sexual assaults had occurred, were a prominent feature of the defence. The trial judge considered those statements.

[60] For these reasons, I do not agree that the trial judge failed to adequately consider the possibility that RY’s evidence could have been tainted by the content of questions put to her by police.

[61] I therefore see no basis to revisit the trial judge’s findings of credibility in response to the suggestion made about the possibility that the officer’s questions tainted RY’s evidence.

[62] The appellant did not pursue the sentence appeal and leave to appeal sentence is refused.

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

Released: December 17, 2021 “D.D.” “G. Pardu J.A.” “I agree, Doherty J.A.” “I agree J.A. Thorburn J.A.”