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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220124 DOCKET: C67740

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

L.L. Appellant

Counsel: Jon Doody and Fady Mansour, for the appellant Hannah Freeman, for the respondent

Heard: December 14, 2021

On appeal from the convictions entered by Justice Rick Leroy of the Superior Court of Justice on May 29, 2019.

REASONS FOR DECISION

OVERVIEW

[1] The appellant was convicted of sexual touching of a person under the age of 16, invitation to sexual touching, sexual touching while in a position of trust, and uttering a death threat. The last three convictions were stayed pursuant to the principle in R. v. Kienapple, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524. The appellant appeals from his conviction.

[2] The focus of the appellant’s appeal is narrow. The appellant argues that the trial judge’s use of a short statement he made to the police was tainted by legal error.

BACKGROUND

[3] The convictions stemmed from allegations made by the appellant’s stepdaughter. She alleged that her stepfather had committed a very large number of sexual offences over a period of eight years, starting when she was 11 years old and ending as she was approaching the age of 19.

[4] The complainant alleged that her stepfather committed the sexual offences at different family residences, as well as in his truck when he was driving his stepdaughter around on various matters. The trial judge stated that the complainant described about 468 incidents of sexual intercourse in the appellant’s truck, starting when she was 11 or 12 years old. Many of the incidents in the truck involved the appellant paying the complainant for sex, what the trial judge described in his reasons as the “truck routine”.

[5] The complainant testified that the last sexual offence took place on July 8, 2014 when she was 18 years old. She recalled the specific date because the first anniversary of her relationship with her boyfriend was approaching. According to the complainant, the appellant asked her to work with him on a driveway sealing job. He picked her up in his truck. After finishing the job, he drove the complainant to a rural road, where he stopped the truck on the side of the road and asked whether she wanted to perform fellatio. She declined. The appellant then offered the complainant $50; she declined and asked for more compensation. The appellant agreed, went to the passenger side and engaged in sexual intercourse with the complainant. As put by the trial judge in his reasons: “They dressed and [the appellant] handed [the complainant] the sum of $100 and said ‘Nice doing business.’” He then drove the complainant home.

THE APPELLANT’S STATEMENT

[6] The complainant and her mother testified at the trial; the appellant did not. However, the trial judge admitted into evidence a very short statement the appellant had made to the police.

[7] The statement arose in the following way. Charges for the offences against the complainant were first laid in Québec. A decision was then made to charge the appellant in Ontario. OPP Detective Jason Cholette left a message with the appellant, identifying himself and requesting a call back. The appellant returned the call. Detective Cholette advised him that there were grounds for his arrest and attempted to arrange for the appellant’s arrest and release. In the course of his conversation with Detective Cholette, the appellant made the following statement, as recorded by the officer in his notebook and as repeated by the trial judge in his reasons:

She is 19 not 10. I was sleeping with aunt, wife’s sister. She was trying to get $4,000 from me. (hereafter the “Statement”) [1]

[8] The voluntariness of the appellant’s Statement was admitted. The trial judge was satisfied that the Statement had been made and the officer’s notes “captured the main thrust.” The trial judge rejected the defence submission that the Statement reflected the appellant’s spontaneous reaction when first confronted with the complainant’s allegations because by that time the appellant was already immersed in criminal proceedings in Québec regarding the same issues and therefore knew about the allegations.

[9] At trial, the defence submitted that the Statement was exculpatory in that the appellant admitted to sexual activity when the complainant was 19 years old, not younger. Although that admission might not be entirely helpful for the appellant, it was a sign of his credibility. While the conduct admitted might be morally problematic, it was not a criminal offence as it concerned conduct when the complainant was 19 years old.

[10] The Crown argued that the Statement was not exculpatory but one that confirmed the complainant’s testimony that she had sexual relations with the appellant that continued beyond her 18th birthday. The Crown submitted that it would not be reasonable for the court to reject the complainant’s evidence about sexual relations with the appellant prior to the age of 18 but use the Statement to confirm her testimony about sexual relations after she turned 18 years old. The Crown submitted:

There has been no part of the narrative whatsoever to suggest that all of a sudden, at the age of 18, [the complainant] experienced some turn in her relationship with [the appellant], not from [the complainant], and not from any of the other witnesses. To the contrary, this evidence supports what the Crown has submitted to the Court on repeated occasions, that there was a continuing pattern of inappropriate sexual abuse – Well, all sexual abuse is inappropriate, but sexual abuse by [the appellant] to [the complainant]. The fact that it continued, and that [the appellant] indicates that it was somehow consensual after the age of 18 adds nothing to any of the exculpatory aspects of the defence that he did not raise. My friend invites Your Honour to employ common sense, and the standard legally is beyond a reasonable doubt, but common sense does not lend to the finding that, all of a sudden, [the appellant], at the age of 18, started having sex with his stepdaughter, who he raised from the age – from the time that she was prepubescent. That defies common sense, Your Honour.

THE TRIAL JUDGE’S REASONS

[11] The trial judge performed an extensive review and assessment of the evidence from the complainant and her mother. He was “not persuaded to the legal standard” by a number of the complainant’s allegations – including the quid pro quo incidents, the morning assaults, and rampant sexual assault in the home – due to uncertainties and inconsistencies in the complainant’s testimony, as well as the difficulty conceiving how the appellant evaded random detection given the large number of the allegations of sexual misconduct (approximately 1,339) made against him. The trial judge stated: “My conclusions and uncertainty logically raise issues about the stand-alone reliability and credibility of this portion of [the complainant’s] evidence that was shown to be unreliable.”

[12] The trial judge continued by considering the effect of the Statement made by the appellant on his credibility assessment, stating:

That said the admission of sexual intercourse in [the complainant’s] 19th year in my view substantially rehabilitates such concerns for reliance on [the complainant’s] assertions about previous transactional sexual activity in the truck on the side of the road on the passenger side floor.

As unlikely as it is that [the appellant] and [the complainant] would even have the conversation, let alone sexual intercourse, if there was not an earlier routine is persuasive, circumstantial, corroborative evidence of an earlier routine. That this was a first such incident is implausible. But for a routine of sexual engagement for pay this one-off incident is inconceivable. It would mean:

1. They converted a safe life-long parent/child relationship on its head in a moment’s whim.
2. That [the complainant] would consent, let alone consider sexual intercourse with her stepfather with whom she had safely resided in and travelled hundreds of times to and from work, access and town on a whim.
3. From her perspective she had the wits to negotiate about consideration for sexual favour in circumstances that would have been astonishing and traumatizing; and
4. [The complainant] was about to celebrate her first anniversary with her boyfriend. This was the last thing she would tolerate as a first-time occurrence.

Notwithstanding my conclusions regarding the other allegations relative to the criminal standard of proof as noted, it does not mean the evidence is untrue. The burden of the Crown is closer to certainty than a balance of probabilities.

[The appellant] is presumed innocent. [F]or the reasons stated, I am not sure whether [the appellant] committed the criminal acts attributed to him other than those reported in the truck.

I accept as true [the complainant’s] central memories of [the appellant] sexually abusing her in the truck before she turned 16.

I accept that the sexual abuse in the truck involved fellatio, cunnilingus and sexual intercourse and the one time [the appellant] threatened [the complainant’s] life were she to disclose.

GROUNDS OF APPEAL

[13] The appellant submits the trial judge made two main reversible errors in his use of the Statement.

[14] First, the trial judge improperly used the Statement to infer that since the appellant acknowledged having sexual relations with the complainant after she turned 19, he must have had sexual relations with her before that age. According to the appellant, that inference was the product of impermissible propensity reasoning and the application of stereotypical assumptions.

[15] The second error was the failure of the trial judge to treat the Statement as exculpatory in part and conduct a proper analysis in accordance with the principles in R. v. W.(D.), [1991] 1 S.C.R. 742.

FIRST GROUND OF APPEAL: IMPERMISSIBLE REASONING ERRORS

[16] The appellant submits that the trial judge’s reasoning ran afoul of three basic rules:

i. The general rule against propensity reasoning. One rationale for the general rule excluding evidence about an accused’s bad character or propensity to have done acts of a discreditable nature on occasions other than those for which the accused is charged is the risk that the trier of fact might convict the accused based on bad personhood or infer guilt from general disposition or propensity, the so-called “moral prejudice” risk: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31;

ii. The rule that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. JC, 2021 ONCA 131, 70 C.R. (7th) 38, at para. 58; and

iii. The rule that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. It is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility and equally wrong to draw inferences from stereotypes about the way accused persons are expected to act: JC, at para. 63.

[17] We are not persuaded that the trial judge ran afoul of any of those rules.

[18] Appellate review requires a functional and contextual reading of a trial judge’s reasons, reading them in context and as a whole, in light of the live issues at trial, and without finely parsing the reasons in a search for error: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at para. 69. When read in that way, we do not see the trial judge’s use of the Statement as tainted by reversible error.

[19] We do not read the trial judge’s reasons as concluding that since the appellant admitted to a sexual encounter with the complainant when she was 19 years old, he therefore had a propensity to engage in discreditable conduct from which one could infer that he had committed the alleged acts against the complainant when she was underaged.

[20] Nor do we read his reasons as engaging speculative reasoning that invokes “common-sense” assumptions not grounded in the evidence or using stereotypical inferences about human behaviour to make credibility determinations. As this court explained in JC, the rule against ungrounded common-sense assumptions does not prevent a trial judge from relying upon common sense or human experience to identify inferences that arise from the evidence. Instead, the rule prohibits judges from using common sense or human experience to introduce new considerations, not grounded in the evidence, into the decision-making process, including considerations about human behaviour: JC, at paras. 59-61. For its part, the rule against stereotypical inferences only prohibits inferences that are based on stereotype or “prejudicial generalizations”: JC, at para. 65.

[21] As we read his reasons, the trial judge used the Statement as part of his evidence-based credibility assessment. Towards the start of his assessment of the evidence, the trial judge summarized the significance of the Statement on his credibility assessment: the appellant’s “acknowledgement of the sexual encounter after [the complainant] attained the age of 18 years is strong circumstantial corroborative evidence supporting the inference of the truck routine [the complainant] alleges.”

[22] Later in his reasons, the trial judge explained why he reached the conclusion that the incident admitted by the appellant in his Statement was not a one-off incident but the result of a multi-year routine of sexual engagement that the complainant had described in her evidence. As set out in the portion of his reasons reproduced at para. 12 above, the trial judge provided several reasons why he thought it was “inconceivable”, or improbable, that the admitted incident was a one-off incident. Those reasons were grounded in the evidence about the nature of the relationship between the appellant and the complainant, as described by the complainant in her evidence at trial. His use of the Statement to support the credibility of the complainant’s testimony about the sexual assaults in the truck was grounded in the evidence, not a product of speculative or other prohibited reasoning.

SECOND GROUND OF APPEAL: FAILURE TO CONDUCT A PROPER W.(D.) ANALYSIS

[23] The appellant submits that the trial judge failed to recognize that the Statement had an exculpatory aspect, in that the appellant stated that the complainant was 19 years old, not 10, when he had a sexual encounter with her. As a result, the trial judge failed to perform a proper W.(D.) analysis.

[24] We see no such error. The trial judge expressly recognized that the Statement was “partially exculpatory.” However, the trial judge attached “little weight” to the exculpatory aspect of the Statement as he regarded it more as “an alternate narrative” – namely, that the complainant was of age when consensual intercourse occurred – than a denial of the charges against him. It was open to the trial judge to assess the Statement in that way: Justice David Watt, Watt’s Manual of Criminal Evidence 2021 (Toronto: Thomson Reuters, 2021), at §37.06.

[25] As well, the trial judge found that because the Statement by the appellant when first confronted by Det. Cholette was not spontaneous, the circumstances surrounding the making of the Statement stripped it of any significant value to the appellant. We see no error in this reasoning. It was open to the trial judge to give the exculpatory portion minimal weight due to its lack of spontaneity. An exculpatory statement provided to the Detective after he had already been charged by the police in Quebec was not likely to be of much significant value.

[26] Further, the trial judge clearly stated that the appellant was presumed innocent. Indeed, the trial judge was not prepared to accept that the allegations against the appellant involving conduct in the residences and the “quid pro quo” instances of sexual favours in return for rides into town or lunch money had been proved beyond a reasonable doubt.

[27] While the elements of the trial judge’s W.(D.) analysis are found in different parts of his reasons, when read as a whole the reasons disclose a proper W.(D.) analysis. The reasons make it clear that the trial judge did not accept the appellant’s admission in the Statement of sexual intercourse as credible evidence denying the allegations against him or raising a reasonable doubt. As he stated in his reasons: “The circumstances are such that very little weight can be attached to the statement [as] evidence of an alternate narrative.” Later in his reasons the trial judge completed his W.(D.) analysis, explaining why he was convinced beyond a reasonable doubt of the appellant’s guilt with respect to the incidents in the truck – namely, the appellant’s Statement confirmed the complainant’s evidence of a lengthy history of sexual offences against her in the truck, often accompanied by the payment of money.

DISPOSITION

[28] For the reasons set forth above, the appeal is dismissed.

“E.E. Gillese J.A.”

“David Brown J.A.”

“S. Coroza J.A.”

[1] The transcript and officer’s notes record the first part of the Statement as: “She was 19 not 10.” At trial, Detective Cholette explained the context in which the appellant made the Statement: I thanked him for calling me back, and I advised him that there was grounds for his arrest in regards to sexual assault allegations brought forward by [the complainant]. I advised him that if he would turn himself in that he would be released on a recognizance with a deposit, as he lives out of province, which is a practice for us, instead of just a promise to appear, if he attended. And if he wished not to attend, that I would seek a warrant for his arrest. At that point, [the appellant] started speaking very quickly and started saying all sorts of things. I made a couple notes in my book. I didn’t get the full – all – everything that he was saying because it was numerous just things, I guess. Some of the two that I – that I had – that I remember directly because it related in regards to my investigation was one of them stated that she was 19 years old, not 10. He continued to speak, and then one that I actually got in quotes, which is exactly what he had said, was, “I was sleeping with her aunt, wife’s sister.”, end quote. At that point, I stopped [the appellant], immediately. I sort of talked over him, and I advised him and cautioned him that what he says could be used in court. At that point, he acknowledged, and then stated another statement in regards to she was trying to get $4,000. So, everything that he was saying within those – just the statements that I had mentioned within my notes kind of corroborated what the investigation or some of the videos that I watched and what [the complainant] was saying, so he was providing an inculpatory statement against himself, which I tried to actually help him – cut him off, and I even advised him not to speak anymore, and if he had a lawyer, currently, as he was previously charged in Quebec, that he should bring the phone number with him when he comes into the detachment to turn himself in. [Emphasis added.]