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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 20230331 Docket: C69162

Feldman, Zarnett and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

T.O. Appellant

Counsel: Amy Ohler, for the appellant Alysa Holmes, for the Crown

Heard: September 7, 2022

On appeal from the convictions entered by Justice Kathleen E. Cullin of the Superior Court of Justice on November 12, 2020, with reasons at 2020 ONSC 7013.

Feldman J.A.:

[1] The appellant was convicted of sexual assault (s. 271 of the Criminal Code, R.S.C. 1985, c. C-46), touching for a sexual purpose a person under fourteen (s. 151 of the Criminal Code) and invitation to sexual touching of a person under fourteen (s. 152 of the Criminal Code). The conviction under s. 271 was stayed in accordance with R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant was sentenced to 30 months imprisonment concurrent on each of the counts under s. 151 and s. 152 of the Criminal Code plus a number of ancillary orders.

[2] The offences were historical in nature. The complainant was 33 years old at the time of the trial and between 3 and 12 years old when the offences were alleged to have occurred. The appellant had been married to the complainant’s aunt initially. The offences were alleged to have occurred when the complainant and her mother were visiting with the appellant at their home or at the home of the appellant when he was her uncle by marriage, and later at the home the appellant shared with his mother and sister when the complainant’s mother became friends and socialized with the appellant’s mother and sister. The complainant alleged that incidents occurred when she was in diapers, when she was around 5 years old and when she was a few years older. The appellant testified and denied any sexual contact with the complainant.

[3] The trial judge was not satisfied beyond a reasonable doubt that the two earlier incidents occurred, but she was satisfied that the appellant committed five sexual acts with the complainant when she was older.

[4] The appellant submits that the trial judge made a number of errors in her analysis of the credibility and reliability of the complainant and of the appellant, and that those errors require a new trial. I agree that the trial judge made an error of law by improperly relying on oath-helping to bolster the credibility of the complainant’s evidence regarding whether she touched the appellant’s penis, and that that error requires a new trial on the count of invitation to sexual touching under s. 152 of the Criminal Code.

[5] I would therefore allow the appeal in part.

Findings by the trial judge

[6] The complainant described a very unhappy childhood. Her family moved around to a number of small towns in northern Ontario; her mother’s struggles with alcohol led to the complainant’s placement in foster care; and there was physical, mental and sexual abuse among her extended family and friends. She described her family as “diseased”. At age 19, she left home and moved to Alberta where she lives with her fiancé and her four children. She has had little contact with her family in Ontario since she moved to Alberta.

[7] The trial judge identified three different “occurrences” of sexual abuse by the appellant that were described by the complainant. The “diaper” incident occurred when the complainant was under the age of three, and involved the appellant pushing her diaper aside and rubbing her vagina. The “lifting” incidents occurred every time the appellant picked up the complainant. The appellant would pick her up whenever he could so that he could touch her vagina. One time when she was around five years old, he inserted his thumb or finger into her vagina.

[8] With respect to these two sets of occurrences, the trial judge found that there was insufficient credible, reliable evidence to support a conviction.

[9] The trial judge labelled the third set of occurrences as the “couch and garage” occurrences. They took place at the home the appellant shared with his mother and sister after he separated from the complainant’s aunt. The complainant’s mother was playing cards in the dining room with the other women and another man, while the complainant, who was between 8 and 12, was in the living room with her younger cousin, the appellant’s son, watching television. The complainant was sitting on a couch covered by a blanket, when the appellant sat down at the other end, put his feet under the blanket on her vagina and rubbed her vagina over her clothes with his foot or feet.

[10] He eventually moved next to her on the couch and touched her vagina with his hand over her clothes. He then asked her to go to a room on the main floor of the house that she described as the “garage room” where, she said, there may have been tools. She went, and once there he put his arm around her back to prevent her from backing up. He put one hand inside her pants and touched her vagina. His pants were unzipped and he put her hand on his penis. He attempted to push her shoulder down, and asked her if she wanted to have sex with him. She answered no because she thought it would hurt. When he asked her what she would do if he did it anyway, and she answered that she would scream, he left the room.

[11] After that she felt uncomfortable and that she had done something “wrong”.

[12] With respect to the “couch and garage” occurrences, the complainant was not able to recall whether everything happened on one occasion or whether it was a series of incidents that were combined in her memory.

[13] The trial judge accepted that the complainant actually touched the appellant’s penis, although the complainant’s testimony at trial contradicted her Criminal Discovery testimony. The trial judge described the issue in the following two paragraphs in her judgment:

13. There was some debate during the complainant’s cross-examination about her evidence that the accused compelled her to touch his penis. This was an incident which was initially described by the complainant in her statement to the police on May 23, 2016. During the Criminal Discovery proceedings on May 31, 2018, when asked about whether she touched the accused’s penis, the complainant testified, “I don’t think so. I can’t remember for sure, but I don’t think so.” During her evidence at trial, the complainant was unequivocal that she had a vivid memory of touching the accused’s penis.

14. The complainant was asked to explain the discrepancy in her evidence. She described that, at the time of the Criminal Discovery, she testified by videoconference. She was by herself, the process was new to her, and she was nervous. She was instructed in advance of the Discovery that she was not to say anything during her testimony unless she was sure about it. She described the entire experience as “stressful”.

[14] In considering whether the evidence of the “couch and garage” occurrences supported a conviction beyond a reasonable doubt, the trial judge applied the R. v. W.(D.), [1991] 1 S.C.R. 742 framework. First, she rejected the evidence of the appellant, specifically his evidence that he lacked the opportunity to sexually abuse the complainant. She found his evidence to be evasive, contradictory and not credible. She gave three examples. First, he initially insisted that he only had contact with the complainant three or four times in total, then he shifted to saying that he had contact with her once or twice a month while he was living with his mother and sister. Second, he tried to limit the impact of this evidence by saying he was focused on his own children and therefore could not have interacted with the complainant. However, the trial judge noted that because the complainant was a child herself, she “most likely would have been engaged in activities with the accused’s children”. Third, the appellant was a mechanic, who asserted that he did not store a single tool in the house but kept all his tools in his vehicle outside for work. The trial judge found this assertion to be implausible and disingenuous, and stated that his concession that he “may” have stored his chainsaw in the house “did nothing to bolster the credibility of his evidence.”

[15] Having found that she did not believe the appellant, the trial judge next considered whether his evidence raised a reasonable doubt. She considered the principal basis on which she could potentially be left with a reasonable doubt to be the appellant’s assertion that he did not store tools in the house and that there was no “tool room” or “garage room” there. The trial judge discounted the importance of the accuracy of the complainant’s description of the location where the sexual assault occurred, as opposed to her description of being lured to a quiet place away from other adults and being subjected to sexually coercive conduct by the appellant. The trial judge concluded that the description of the “garage room” and tools was not sufficiently central to the complainant’s evidence to raise a reasonable doubt if it was inaccurate.

[16] Finally, the trial judge turned to the third branch of W.(D.), whether the evidence she accepted − in particular, the evidence of the complainant − satisfied her of the appellant’s guilt beyond a reasonable doubt.

[17] The trial judge found that the complainant’s evidence regarding the surrounding circumstances was largely corroborated by the evidence of the other Crown witness, the complainant’s aunt who had been married to the appellant, as well as by the evidence of the appellant himself.

[18] The corroborated details the trial judge identified were the description of the property, except for the garage/tool room, the relationships with the appellant’s mother and sister and another man, who were all present when the complainant visited, as well as the presence of the appellant’s children including the cousin she referred to.

[19] The trial judge rejected the defence submission that the complainant was openly hostile to the appellant, that she exaggerated and that there were unexplained inconsistencies in her evidence that undermined her credibility and reliability. The trial judge disagreed, finding her to be a credible and compelling witness who was forthright, not unreasonably defensive, and who provided plausible explanations for any memory shortcomings.

[20] The complainant testified about her prior drug abuse, mental health issues that resulted in hospitalization, legal problems, her estrangement from her family and her wish for catastrophe to befall the appellant. She acknowledged that her perception about the pervasiveness of child abuse generally, and particularly where she grew up, could be skewed by her own troubled childhood. The trial judge found these to be expected consequences of her personal history which did not undermine her credibility. The trial judge also found that the complainant’s description of how she has tried to repress her traumatic memories from her childhood provided context for the frailties of her memory which assisted in the assessment of her reliability, and that the repression did not make her memories less reliable, particularly where they were corroborated by the evidence of other witnesses.

[21] In addition, the trial judge found that the complainant was unshaken on the core elements of the “couch and garage” occurrences except on whether she touched the appellant’s penis. On that issue the trial judge stated:

The only detail that was subjected to any serious cross-examination was her description of being compelled to touch the accused’s penis, because her disclosure of this abuse was inconsistent between her police statement, Criminal Discovery evidence and trial evidence. The complainant offered a compelling explanation for this discrepancy when she described feeling uncertain, nervous, and alone when she testified by videoconference at the Criminal Discovery. In my view, her explanation was further bolstered by the fact that she elected to travel from Alberta to Ontario during a pandemic to testify in person at trial rather than testify again by videoconference.

[22] Having found the complainant to be credible, the trial judge accepted her evidence regarding the “couch and garage” occurrences and found the appellant guilty on all three counts in respect of those occurrences, which she found occurred between 1998 and 1999.

Issues on Appeal

[23] There are two issues on this appeal: 1) Did the trial judge err in law in her assessment of the complainant’s credibility and reliability by: a) failing to consider how her findings regarding the complainant’s lack of credibility and reliability on the “diaper” and “lifting” allegations impacted her general credibility and reliability; b) ignoring inconsistencies in the complainant’s evidence regarding the location, number and nature of the sexual touching occurrences; c) resolving the material inconsistency on whether the complainant touched the appellant’s penis in an unreasonable and illogical way using oath-helping. 2) Did the trial judge err in law in her assessment of the credibility of the appellant by: a) misapprehending his evidence; b) rejecting his evidence on an unreasonable basis; c) applying uneven scrutiny to the assessments of the credibility of the complainant and of the appellant.

Analysis

(1) Issue 1: The complainant’s credibility

[24] The appellant submits that the trial judge erred in her assessment of the complainant’s credibility and reliability. He submits first that in finding the complainant to be reliable in her description of the “couch and garage” occurrences, the trial judge failed to factor into her consideration the fact that she had completely discounted the reliability of the complainant’s testimony regarding the “diaper” and “lifting” incidents. In addition, when she rejected the complainant’s evidence regarding the “diaper” and “lifting” incidents, the trial judge must have rejected the evidence that the appellant put his thumb or finger in the complainant’s vagina, but she made no specific finding on the issue. The appellant submits that by leaving this issue unaddressed, the trial judge avoided making a negative finding against the complainant that could have affected her analysis at the third stage of W.(D.) and the ultimate issue of the complainant’s credibility.

[25] The appellant also points to the fact that the trial judge did not attempt to reconcile inconsistencies in the complainant’s description of the location of the alleged assault, the number of incidents there were, or the nature of the assault itself. Counsel for the appellant points to a new detail that the complainant mentioned for the first time at trial, that the appellant pushed down on her shoulder, as an example.

[26] Finally, the trial judge found that the fact that the complainant had repressed the trauma of her childhood provided context to the frailties of her memory, which the trial judge considered in assessing her reliability. The appellant submits, however, that the complainant did not seek to blame any lapses in memory on her repressed childhood trauma, contrary to the trial judge’s finding.

[27] I would not give effect to these complaints by the appellant. While there were a number of significant concerns regarding the complainant’s evidence and her ability to recall historical events with accuracy, the trial judge was clearly alive to these concerns and took them into account in coming to her conclusions regarding the complainant’s credibility and reliability.

[28] In her reasons, the trial judge referred to the difference between credibility and reliability and noted the importance of consistency in a witness’s evidence. She also referred to case law on assessing the evidence given by an adult regarding events that occurred during their childhood, taking into account the effect of the passage of time, but not treating the person as a child: R. v. Pindus, 2018 ONCA 55, at paras. 34, 37; R. v. M.(A.), 2014 ONCA 769, 123 O.R. (2d) 536, at para. 11. Finally, in conducting her credibility analysis, the trial judge explained on a number of occasions the factors she was considering in coming to her conclusions.

[29] A trial judge is owed very significant deference with respect to findings of credibility and reliability of witnesses: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 81; R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 18, per Pepall J.A. (dissenting; adopted in 2020 SCC 36, 452 D.L.R. (4th) 1). In addition, courts of appeal are instructed not to parse the reasons of the trial judge looking for error. Instead, as the Supreme Court of Canada directed in G.F., “Their task is much narrower: they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: at para. 69.

[30] In this case, subject to the specific error with respect to one finding that I will discuss under the next heading, while there were concerns regarding aspects of the complainant’s evidence, the trial judge was aware of those concerns and took them into account in reaching her conclusions. I see no legal basis to interfere.

(i) The inconsistency regarding whether the complainant touched the appellant’s penis

[31] One of the complainant’s specific allegations regarding the “couch and garage” occurrences was that the appellant made her touch his penis. At the Criminal Discovery, where the complainant was testifying by remote videoconference, she said that she could not remember for sure whether she touched the appellant’s penis, but she didn’t think she did. However, at trial, she was positive that she did touch his penis.

[32] The trial judge accepted the complainant’s evidence at trial. She found that the complainant “offered a compelling explanation” for the discrepancy: she was feeling uncertain, nervous and alone when she testified by videoconference. The trial judge concluded: “In my view, her explanation was further bolstered by the fact that she elected to travel from Alberta to Ontario during a pandemic to testify in person at trial rather than testify again by videoconference.”

[33] There was no evidence regarding the complainant’s trip to Ontario to testify. Rather, Crown counsel advised the court that the complainant was “insistent” on attending the trial in person. The trial judge made note of the fact at the beginning of her reasons, stating: “Of note is the fact that she travelled to Ontario to testify, notwithstanding that she was permitted by the Court to attend by videoconference from Edmonton due to the pandemic. I was advised that the complainant felt that it was important that she attend in person.”

(a) Case-law on the rule against oath-helping

[34] This panel recently discussed the rule against oath-helping in R. v. R.M., 2022 ONCA 850. In that case, Crown counsel asked the complainant at the close of her examination-in-chief whether she had chosen to testify of her own free will, and she responded: “I have”.

[35] The court found that the question was improper and should not have been asked. The fact that the complainant chose to testify was not relevant to any issue at trial and was intended to bolster the complainant’s credibility. As the court stated, “[t]he impermissible inference lying behind this type of questioning is that she was more likely to be telling the truth because even when given the opportunity not to testify, she made the choice to come to court (because she was telling the truth)”: at para. 39.

[36] Copeland J.A. explained that the evidence constituted a type of oath-helping and that “[t]he rule against oath-helping prohibits the reception of evidence solely for the purpose of establishing the truthfulness of a witness: R. v. J.H., 2020 ONCA 165, at paras. 93-95, 103; R. v. B.(F.F.), [1993] 1 S.C.R. 697, at p. 729; R. v. Llorenz (2000), 145 C.C.C. (3d) 535 (Ont. C.A.), at paras. 27-28; R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, at paras. 31, 33-35” (citations in original): at para. 40.

[37] In that case, it was not necessary to decide whether that error alone required a new trial because the court had already found that a new trial was necessary based on other errors.

[38] Another recent decision of this court where an oath-helping error was found is R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173. In that case, after a police officer was cross-examined suggesting that his evidence had been fabricated because of his dislike for the accused, the Crown sought to rehabilitate the witness in re-examination by eliciting that he had never been charged with or cited for misconduct and had been promoted since the accused’s arrest. The appellant argued that this evidence constituted oath-helping and required a jury instruction that the evidence was irrelevant to their decision.

[39] Watt J.A. explained that while evidence can be elicited to rehabilitate a witness’s credibility after impeachment, “the bolstering evidence must be responsive to the nature of the attack and not exceed permissible limits.…At root, the admissibility of rehabilitative evidence should depend on whether what is proposed is logically relevant to rebut the impeaching fact.…The wall, attacked at one point, may not be fortified at a distinctly separate point: McCormick on Evidence (7th ed., 2013, Thomson Reuters: Westlaw), at §47, pp.307-308” (citation in original): Tash, at para. 43.

[40] Applying these principles, the court found that the fact that the officer had no disciplinary record and had been promoted to his current rank after the events at issue was not responsive to the allegation that he had motive to fabricate his evidence against the accused and therefore constituted impermissible oath-helping. Based on that and other errors that affected the credibility assessments of the principals at trial, a new trial was ordered.

[41] Finally, in R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, at paras. 33-39, Juriansz J.A. explained the rule against oath-helping and the two exceptions to it. In that case, the trial judge believed the complainant, in part because of the conservative manner in which she was dressed in court and because she was a religious person. Both these factors were irrelevant to her credibility. The trial judge’s use of the complainant’s religious beliefs to bolster her credibility constituted impermissible oath-helping.

[42] The court noted the two exceptions to the admissibility of oath-helping evidence: 1) where the evidence is from the accused testifying in a criminal proceeding; and 2) to rehabilitate the credibility of a witness whose credibility has been attacked, as long as the evidence is responsive to the attack, as explained in Tash, at para. 43. The irrelevant evidence that the complainant was a religious person did not meet the second exception. However, in that case, because both considerations played a very small role in the trial judge’s assessment of the complainant’s credibility, the court found it unnecessary to order a new trial.

(b) Application of the case-law

[43] Before applying the principles of the rule against oath-helping to this case, I first observe that the fact that the complainant travelled to Ontario to attend the hearing in person and felt that it was important to do so, was not a matter raised or discussed in evidence. It was reported by Crown counsel to the court. Even before considering the principles that apply to oath-helping evidence, in this case, the trial judge’s reliance in her reasons on a matter that was not in evidence before the court, and not subject to cross-examination, affects the fairness of the trial in respect of that part of the reasons. The trial judge was not entitled to use that information for any purpose, at least without raising it with counsel and receiving submissions: see e.g. R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 38, 74 re judicial notice.

[44] Applying the principles that govern the rule against oath-helping, the information that the complainant chose to travel to Ontario to give her evidence in person was not relevant to her credibility or reliability. While it could indicate that she wanted to be in a more comfortable atmosphere when she testified, that does not speak to the truthfulness or accuracy of her testimony on either occasion, both being under oath.

[45] Nor was that information responsive to the inconsistency, such as something that specifically jogged her memory of the actual occurrence, as required for any such evidence (if it had been evidence) to be admissible under the second exception to the rule against oath-helping: Tash, at para. 43.

[46] In the result, the trial judge’s use of the information that the complainant wanted to travel to Ontario to appear in person at the trial was impermissible oath-helping and constituted an error of law.

[47] Unlike in Santhosh, the trial judge relied heavily on this information in order to resolve a direct inconsistency in the complainant’s evidence on a material issue, namely in the couch and garage occurrences, whether she touched the appellant’s penis. The invitation to sexual touching count was particularized as the appellant inviting the complainant to touch the appellant with her hands. As a result, the conviction for invitation to sexual touching cannot stand.

(2) Issue 2: The appellant’s credibility

[48] The appellant argues that the trial judge erred in her assessment of the credibility of the appellant for several reasons. The appellant submits first that the trial judge misapprehended the appellant’s evidence regarding how often he saw the complainant as a child and therefore regarding his lack of opportunity to commit the offences as she alleged. The trial judge found that the appellant shifted his evidence on that issue by first saying he only saw the complainant 3 or 4 times in total, then saying he saw her once or twice a month when he was later living with his mother and sister. The appellant says that was not a shift as the appellant was asked about different time periods.

[49] I would not give effect to this argument. The appellant at one point in his cross-examination at trial described three occasions when he would have seen the complainant, concluding: “That’s the only time I’ve ever seen [the complainant]”. Later in his cross-examination he talked about seeing her once or twice a month when the complainant’s mother would come over to play cards, which he said he forgot. The trial judge was entitled to view that evidence as a shift in position.

[50] The appellant’s second argument is that it was unreasonable for the trial judge to conclude that the appellant was trying to minimize his contact with the complainant by saying he would have been busy with his own children, and concluding that all the children would likely have been playing together. He submits that there was no evidence to support that conclusion. Again, I would reject this submission. There was evidence from the complainant’s aunt that the complainant would visit their residence when she was married to the appellant multiple times per week, that the complainant would sleep over, and that “the kids all grew up together.” The trial judge was entitled to draw the inference that when the complainant visited at the appellant’s mother’s home, she would have been together with the appellant’s children.

[51] The appellant’s third objection is to the trial judge’s disbelief of the appellant’s statement that he stored all his tools in his vehicle and not in the house he shared with his mother and sister. While there was no evidence on this subject from the aunt, who was the only witness other than the complainant and the appellant, the appellant acknowledged that he might have stored a chainsaw in the house. That was a sufficient basis for the trial judge to reject the appellant’s blanket statement about where he stored his tools.

[52] Finally, the appellant submits that the trial judge applied an uneven standard of scrutiny to the evidence of the complainant and of the appellant. The Supreme Court in G.F. emphasized that this ground of appeal is a “notoriously difficult argument to prove” and that, if it can be a stand-alone ground of appeal, the “focus must always be on whether there is a reversible error in the trial judge’s credibility findings”: see paras. 99-100.

[53] The only such error made by the trial judge was in using the information from the Crown that the complainant wanted to travel to Ontario to testify at the trial in a manner that amounted to oath-helping. However, that error related only to one specific aspect of the complainant’s evidence, which was the discrepancy from her Criminal Discovery evidence on whether she touched the appellant’s penis. There is no indication that it formed part of the overall credibility factors the trial judge relied on to assess the evidence of the complainant or the appellant generally.

[54] The appellant focuses this ground of appeal on the trial judge’s finding that whether or not there was a “garage”, as testified by the complainant, was not as important as the fact that the appellant took the complainant to a separate room, away from the supervision of other adults, and subjected her to sexually coercive conduct. He argues that by minimizing the importance of whether there actually was a “garage”, the trial judge avoided making an adverse finding against the complainant, amounting to an example of uneven scrutiny.

[55] I do not accept this characterization of the trial judge’s approach. She accepted that there was a quiet area of the house where the appellant took the complainant. The trial judge was entitled to accept the complainant’s evidence, given on the basis of childhood memories, that she was taken to a quiet area of the house, even if she could not give a full description of it. The trial judge accepted this evidence because aspects of the complainant’s testimony were independently corroborated by the complainant’s aunt and by the appellant. These are the type of findings that are within the province of the trial judge and to which deference is owed.

Conclusion

[56] The trial judge made an error of law by using information that was not evidence as oath-helping to resolve an inconsistency in the evidence of the complainant on the issue of whether she touched the appellant’s penis, and to accept her trial evidence that she did touch it. That formed the basis for the conviction for invitation to sexual touching as particularized in the indictment. That conviction must be set aside and a new trial ordered.

[57] The court must also decide whether that error tainted the trial judge’s entire credibility assessment of the complainant, or whether it was confined to one specific issue.

[58] A close examination of the reasons makes it clear that the trial judge’s error was confined solely to her consideration of whether to accept the complainant’s evidence at trial that she was sure she touched the appellant’s penis, contrary to how she testified at the Criminal Discovery. It did not form part of the balance of her assessment on the other proven incidents which supported convictions for sexual interference and sexual assault as particularized.

[59] I would therefore allow the appeal in part, set aside the conviction for invitation to sexual touching and order a new trial on that count, and dismiss the appeal from the conviction for sexual interference.

Released: March 31, 2023 “K.F.”

“K. Feldman J.A.”

“I agree. B. Zarnett J.A.”

“I agree. Copeland J.A.”