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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230901 Docket: C67863

Zarnett, Thorburn and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

J.P. Appellant

Counsel: Jonathan Shime and Amanda Ross, for the appellant Emily Bala, for the respondent

Heard: June 08, 2023

On appeal from the convictions entered on June 19, 2019 by Justice Beth A. Allen of the Superior Court of Justice, sitting with a jury.

George J.A. :

[1] The appellant was alleged to have sexually assaulted the complainant, who was at the relevant time between the ages of 8 and 14 years. At trial, the complainant’s evidence contained several inconsistencies and was contradicted in many respects by her mother’s testimony. A jury nonetheless found the appellant guilty of sexual assault and sexual interference. After a hearing, the trial judge made several findings of fact which informed her decision to impose a 60-day intermittent sentence. The trial judge found, for the purposes of sentencing, that only one incident of the appellant touching the complainant on the buttocks was consistent with both the evidence and the jury’s verdict.

[2] The appellant appeals his convictions. He argues that the jury’s verdict was unsupported by the evidence and was therefore unreasonable. He asks that we substitute an acquittal.

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

Background

[4] The appellant is the complainant’s stepfather. The complainant and her younger sister, who were born in Ecuador, moved to Canada in 2011 after her mother married the appellant. In 2013, her mother gave birth to another child. The appellant worked; the mother stayed at home and cared for the children. Both insisted that the complainant help around the house and limited her time on social media. The appellant was stricter about these rules.

[5] The complainant alleged that the appellant sexually abused her on hundreds of occasions. While she particularized a few incidents, many of the complainant’s allegations were non-specific, with no date, time or details provided. The complainant said that the appellant sexually assaulted her for the first time in 2011, when she was 8; and for the last time on April 17, 2017, when she was 14.

[6] The complainant went to the police on April 19, 2017 and provided a statement. She provided a second statement in November 2017.

Forensic Evidence

[7] On April 19, 2017, the complainant attended Sick Kids Hospital where swabs were taken from inside and around her vagina. No male DNA was detected. The police also seized the complainant’s bedsheets, which apparently had not been washed since the most recent sexual assault, and had them analyzed. No semen was detected.

The Trial

[8] The Crown’s theory of the case was that from 2011 until shortly before her statements to the police in 2017, the complainant was sexually assaulted by the appellant at times he knew that her mother was out of the home or when she was asleep. The Crown urged the jury to find the complainant credible and reliable and described the various inconsistencies in her testimony as something you would typically expect from a child witness. Crown counsel submitted that the complainant had no reason to fabricate the allegations.

[9] The defence argued that the complainant fabricated the allegations because she was angry with the appellant for imposing and enforcing house rules and for limiting her time on social media. Defence counsel highlighted the several occasions the complainant contradicted herself. They described the mother as honest and reliable and pointed to those aspects of her testimony that contradicted the complainant’s. In addition to casting the complainant as a liar who was intent on exacting revenge on the appellant, the defence argued that most of the incidents described by the complainant simply could not have happened as she described.

[10] The jury was presented with an agreed statement of facts that confirmed the absence of DNA on the vaginal swab and bedsheets. The jury also heard about a pubic hair from the appellant that the complainant claimed to have retrieved from their apartment. The complainant testified that she placed the hair in a piece of paper and then put it in a plastic bag. She did not tell anyone about the hair, including the police when she was first interviewed in April 2017. The complainant did, however, provide it to the police when she was interviewed again 7 months later in November. The complainant told the police that she collected the hair after the appellant attempted to assault her.

[11] As mentioned, the complainant provided two statements to the police, both of which were played for the jury and entered into evidence at trial pursuant to s. 715 of the Criminal Code, R.S.C. 1985, c. C-46. The complainant, adopting her statements, testified that she was sexually assaulted by the appellant hundreds of times. She indicated that the appellant touched her legs, breasts and buttocks, which would often, though not always, lead to sexual intercourse.

[12] The complainant’s allegations can be broken down into two separate time periods: the first from 2011 to 2014; and the second from 2014 to 2017. As highlighted by the trial judge, the allegations were “incredibly numerous” and encompassed “hundreds of incidents”.

[13] The complainant testified that one early incident occurred in the fall of 2011 when she was eight years old. The complainant stated that, while her mother was away, the appellant touched her chest, slipped his hands under her clothes, and then had intercourse with her.

[14] The complainant also testified that during the first timeframe, the appellant sexually assaulted her on several occasions when the entire family was sleeping in the same bed in the parents’ bedroom.

[15] The mother acknowledged that the family did all sleep together for a while but said that this arrangement only lasted for a few months. The complainant, on the other hand, said it lasted for about three years. In any case, the complainant said that while the others were asleep the appellant would remove her pants and underwear and have sex with her from behind. The complainant testified that no one ever awoke while she was being assaulted. The mother testified that during this period both younger children would awake through night because the youngest was being breastfed and the middle child had asthma. She testified that she never witnessed or heard anything that caused her concern.

[16] With respect to the second timeframe, 2014 to 2017, the complainant shared a bedroom with her younger sister. While they slept in the same bed for a while, for most of the time there was a bunk bed, with the youngest child in the top bunk and the complainant on the bottom.

[17] As indicated in her police statements, the complainant recalled two particular instances in October and November 2016 where the appellant had intercourse with her while her mother and sisters were out of the home at swimming lessons. On both occasions she said the appellant wore a condom.

[18] The mother testified that from 2014 to 2016 her in-laws stayed in the guest bedroom. She testified that there were few opportunities for the complainant to be alone with the appellant and, generally, provided a version of events that, if believed, would have made many of the complainant’s allegations unlikely.

[19] The complainant also testified about an incident in which her mother came into the bedroom at night after the appellant had gotten into bed with her. She testified that her mother entered the bedroom as the appellant was about to assault her, with the appellant immediately pushing her off the bed to hide what he was about to do. Then, after inquiring about what was going on, the appellant told the mother that he was just making sure the girls were asleep and that he was just “playing” when he pushed the complainant. The mother gave a different account of this incident, recalling that she was actually in the room when the appellant pushed the complainant, which he did after asking the complainant for more room on the bed, and that he was just being playful.

[20] The mother did confirm that on another occasion she found the appellant in the girls’ room with the door locked and that she had to tell him to never lock the door when in there with them. However, she did not see or hear anything untoward.

[21] The complainant testified that the last two incidents occurred on April 14 and April 17, 2017. On April 14, the appellant came into her bedroom, laid next to her on the lower bunk of a bunk bed and had intercourse with her from behind. She said that her sister was asleep on the top bunk and that while she attempted to resist, she eventually grew tired and submitted. On April 17, the complainant said that she awoke to find the appellant again in bed with her. She claimed that the appellant was touching her and that, after telling him to go to sleep, he got up and locked the bedroom door. The appellant then returned to bed, had sex with her, and after ejaculating cleaned himself with dirty clothes. The complainant said that during this incident her sister was asleep in the top bunk, that her mother was asleep in a nearby bedroom, and that her grandparents were in an adjoining guest room.

[22] Apart from the glaring differences between the complainant and her mother’s testimony, there were several other concerning aspects to the complainant’s evidence. She testified about events she had not disclosed to the police, and in one instance disclosed a sexual assault for the first time during cross-examination.

[23] The jury found the appellant guilty of sexual assault and sexual interference.

Findings of Fact for Sentencing

[24] Pointing to the various incidents of alleged sexual misconduct, said to have occurred over an extended period of time, the appellant argued that it was unclear what facts the jury relied on to arrive at the findings of guilt. As such, and for the purposes of sentencing, the trial judge convened a hearing to determine what facts from the evidence had been proven beyond a reasonable doubt. During the hearing, the appellant’s trial counsel highlighted several internal inconsistencies in the complainant’s evidence, inconsistencies between her testimony and the forensic evidence, and the contradictory testimony of the complainant’s mother.

[25] For example, in direct examination at the preliminary inquiry the complainant maintained what she had initially told the police, which was that, during what was referred to in the evidence as the “Mountain Game Incident”, the appellant had sexual intercourse with her. However, in cross-examination she testified that he did not have sex with her during that incident. And then, at trial, she testified that she was uncertain and could not remember if there was intercourse.

[26] With respect to the two occasions when the complainant said the appellant had sex with her while wearing a condom, the complainant’s mother contradicted her in several significant ways. For instance, she contradicted the complainant’s evidence as to when she began babysitting her younger siblings. Further, the complainant provided three different versions of these events – one in her police statement (that the appellant ejaculated when he was done); an entirely different version during her preliminary inquiry testimony (that the appellant had not ejaculated but did remove her clothes); and yet another at trial (where she could not recall if the appellant had removed her clothes).

[27] Trial counsel highlighted various aspects of the appellant’s ever-changing story, arguing that much of what she said had occurred was improbable, in many cases impossible and, with respect to some of the events she described, contradicted by forensic evidence.

[28] The Crown took the position that the factual implications of the jury’s verdict were unambiguous. That is to say, the facts were implicit in the verdicts and the trial judge therefore did not have to engage in her own fact-finding mission.

[29] The trial judge disagreed concluding that she had no choice but to independently determine the relevant facts, ultimately concluding that, R. v. J.P., 2019 ONSC 6298, at paras. 48-51:

I find the evidence shows that [the complainant’s] evidence on the particularized incidents of sexual abuse involving intercourse are replete with internal inconsistencies, inconsistencies with the mother’s evidence and the forensic evidence, and is in many areas simply implausible.

[The complainant] gave inconsistent accounts as between her statements to the police and her evidence at the preliminary inquiry about the sexual intercourse incidents. The fact that those incidents are alleged to have occurred at times when other persons including the mother, sister and grandparents were in close proximity in the home and the fact that the mother testified [the complainant] was not home alone with the younger children after school as [the complainant] alleged raises serious credibility, reliability and plausibility problems for [the complainant].

The unspecified incidents are incredibly numerous, hundreds of incidents of sexual abuse at both the Ennerdale and Riverview apartments both in the bed and bunk bed shared with the sister and in the parents’ bed while [the appellant] slept beside the mother. The implausibility and incredibility of that evidence is obvious.

This is clearly a case with substantial credibility and reliability problems for [the complainant]. It is therefore, for the purpose of sentencing, open to me to find the minimum facts consistent with the jury verdict. [The complainant] testified that some incidents involved [the appellant] touching her buttocks. I accept the defence’s submission that there is the factual basis to find that one incident of [the appellant] touching her buttocks has been proven beyond a reasonable doubt and that those facts can support the charge of sexual interference and sexual assault. [Emphasis added.]

[30] The trial judge considered only one incident of sexual touching for the purposes of sentencing (i.e., touching of the buttocks). She imposed a 60-day intermittent sentence and made a 2-year probation order.

Issue

[31] There is only one issue: was the jury’s verdict unsupported by the evidence and therefore unreasonable?

Position of the Parties

Appellant

[32] The appellant submits that no trier of fact, acting judicially, could have rendered this verdict. Despite the high threshold for appellate intervention, the appellant says this is one of those rare cases where the risk of wrongful conviction is simply too high to allow the jury verdict to stand.

[33] The appellant relies heavily on R. v. M.(N.), 2012 ONCA 296, 291 O.A.C. 157, where this court recognized that a reasonableness review provides an important safeguard against miscarriages of justice. The appellant argues that, like in M.(N.), the complainant’s evidence is riddled with demonstrable and unexplained falsehoods, of greater significance than ordinary inconsistencies, and that it was therefore unreasonable to ground a conviction on the complainant’s uncorroborated evidence. Based on the improbability of the complainant’s claims, the appellant urges us to repudiate the jury’s guilty verdict and to substitute an acquittal.

Respondent

[34] The Crown argues that it was for the jury to decide how to treat inconsistencies and alleged motives to fabricate, and to ultimately determine how much weight to give any witness’s account, including that of the complainant. At trial, the Crown pointed to the complainant’s young age noting that “[f]laws such as contradictions in a child’s evidence should not be given the same effect as similar flaws in the testimony of an adult”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536; R. v. W.(R.), [1992] 2 S.C.R. 122. It distinguishes the problematic aspects of this case with those present in M.(N.) where the complainant had without question told significant lies in both her statement and testimony; whereas here the question of whether the complainant lied (or was simply having trouble recalling the details of past events) was very much a contested issue, and for the jury to decide. As juries are always instructed, including in this case, they can believe some, none, or all of a witness’s testimony.

[35] The Crown urges us not to use the trial judge’s findings of fact to undermine the jury’s fact-finding role. A trial judge can only step in and make findings if it is unclear what facts a jury relied on to render a guilty verdict. The Crown does not challenge the trial judge’s decision to do so here, nor does it challenge her findings or sentence.

Discussion

Applicable Legal Principles

[36] To start, it is for a jury to decide how much weight to assign any piece of evidence, how to treat inconsistencies in a witness’s account, and whether to accept an allegation that a complainant had a motive to fabricate. When a claim of unreasonable verdict relies on credibility findings this court cannot intervene unless those findings are unsupportable on any reasonable view of the evidence: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10. Stated otherwise, a “trial by jury must not become trial by appellate court on the written record”: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 34; R. v. Burke, [1996] 1 S.C.R. 474.

[37] Further, when someone testifies about events that transpired when they were a child – especially on matters such as time and location, or about precise details – their evidence must be assessed differently taking into account their age, level of maturity and the passage of time. The fact it is challenging for a child witness to remember and recount precise details of an event, like the “when and where”, “does not mean they have misconceived what happened to them”: R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55. See R. v. W.(R.), at pp. 133-34; R. v. A.M., at para. 9.

[38] Appellate courts will rarely disturb a jury’s credibility assessments. While this court is obligated to review the reasonableness of criminal convictions: Criminal Code, s. 686(1)(a)(i), in so doing we must appreciate the trier of fact’s advantaged position and be ever mindful of the limited scope of review: R. v. L.M., 2017 ONCA 33, at paras. 25-26; M.(N.), at para. 32.

[39] Assessing the reasonableness of a verdict requires looking at the evidence on which it rests: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. This includes examining credibility assessments (see M.(N.), at paras. 34 and 36) and the propriety of the fact-finding exercise, as described for the jury in the final charge: see L.M., at para. 32.

The verdict was reasonable in view of the complainant’s credibility.

[40] Unlike in M.(N.), the complainant never resiled from her allegation that she was sexually assaulted by the appellant many times over the course of several years. She was cross-examined at length and the details of her account were vigorously probed. She was confronted on the many inconsistencies in her testimony and police statements and was challenged about any motive she might have had to fabricate, all of which were addressed by counsel in their respective closings and by the trial judge in her final instructions. The jury had a job to do – to consider the evidence presented in the courtroom, to weigh that evidence, follow the law as instructed, and in the end to decide whether the Crown had met its onus. The jury performed that role.

[41] One of the appellant’s specific complaints is that many of the allegations simply could not be true in that he could not have sexually assaulted the complainant while others were in the same room, and in some cases same bed, because the others would have surely detected it. While the defence framed this contradiction as a lie at trial, nothing outright established it as such, and the complainant maintained that it in fact happened.

[42] Absent a demonstrable and deliberate lie, none of the concerns about the complainant’s credibility rendered all of her evidence incapable of belief. The jury knew full well what was being alleged, and knew of the deficiencies in the complainant’s account. They understood each party’s position, and the law they had to apply to the facts as they found them. In this case, a jury, acting reasonably, could have attributed inconsistencies to the complainant being a child witness. It was open to the jury to conclude that they had a reasonable doubt about some aspects of the complainant’s testimony, but not about others. Again, concerns about the complainant’s credibility did not necessarily mean that her testimony was incapable of supporting the jury’s finding of guilt.

[43] To the extent there was any uncertainty about what the jury accepted, or did not accept, as there was in this case, the process worked as it should have when the trial judge stepped in and, for the purposes of sentencing, determined what facts in her view had been established beyond a reasonable doubt.

The fact-finding exercise was not flawed

[44] Both M.(N.) and L.M. make it clear that even if a jury has been adequately charged, and even when they have been cautioned against drawing unwarranted conclusions, in some cases the totality of the evidence, and its peculiar factual circumstances, will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed.

[45] This can occur when the evidence demonstrates a deliberate lie, and even more so when such dishonesty is not highlighted in the jury instructions.

[46] However, once again, this is the significant distinction between the case at bar and the facts in M.(N.) and L.M., where demonstrable lies had been clearly established. Further, while this court in L.M. found that the “risk of a wrongful conviction [was] too high”, and therefore allowed the appeal and substituted an acquittal, it wrote this at para. 32:

As in R. v. M.(N.), had the jury been instructed on the potential significance of N.M.’s lies – that a deliberate lie on an important matter would be very significant in their assessment of whether guilt beyond a reasonable doubt had been proven on the basis of a complainant’s evidence – an appellate court might have greater confidence in the verdict. [Emphasis added.]

[47] In our case, the trial judge highlighted for the jury inconsistencies in the complainant’s evidence, and as between her account and her mother’s, and she addressed the alleged motive to fabricate. Unlike in M.(N.), what to do with and how to treat conceded, or otherwise established, lies was not in issue. As the pertinent questions were properly framed for the jury, the fact-finding exercise was not flawed.

The Jury Charge

[48] Though the appellant did not pursue this in oral argument, his notice of appeal and factum argue that the jury charge was inadequate. I disagree.

[49] The trial judge, over the course of 17 paragraphs, reminded the jury of several instances where the complainant provided prior inconsistent statements. She dealt with the argued motive to fabricate and with the defence’s submissions regarding credibility. She did not provide a “bulk recitation of all the evidence heard at trial, without discrimination or analysis”: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508; R. v. Barreira, 2020 ONCA 218, 2020 ONCA 2018, 62 C.R. (7th) 101, but rather tailored it to ensure that the evidence was placed in its proper context and related to the presenting issues.

[50] I assessed earlier the complainant’s credibility as being capable of supporting a guilty verdict on a reasonable view of the evidence. It follows that since the instructions highlighted the inconsistencies and contradictions in the complainant’s evidence, they did not insufficiently raise their “potential significance”. In the absence of a demonstrated deliberate lie there was no need for a more specific credibility instruction.

[51] The jury instructions did not undermine the reasonableness of the eventual verdict nor the propriety of the fact-finding exercise.

The trial judge’s findings for the purposes of sentencing do not necessarily render the verdict unreasonable

[52] The trial judge sentenced the appellant for one incident of touching the complainant’s buttocks. A trial judge making minimum findings of fact consistent with the jury’s verdict does not mean that the verdict was unreasonable. Nor does it undermine the fact-finding role of the jury.

[53] The appellant argues that the trial judge’s reasons are, in effect, a signal to us to remedy an injustice, placing so much reliance on it as to suggest that the appellant would likely have no grounds to appeal but for the trial judge’s comments. The appellant points to L.M. where the court noted that the sentencing reasons “attenuate[d] concerns that might otherwise deter an appellate court from intervening in a case like this”: at para. 31.

[54] I disagree again because of the very different context of the instant case from both M.(N.) and L.M. In addition to the lack of a demonstrated deliberate lie, the appellant did not testify (which is a factor to consider), and in instructing the jury the trial judge appropriately reinforced counsel’s submissions by emphasizing inconsistencies in the complainant’s testimony.

[55] Whether the trial judge might have had a reasonable doubt, if sitting alone, is not a basis to disturb a jury’s verdict. The jury was asked by the appellant to reject the complainant’s evidence in its entirety, and by the Crown to consider her evidence in light of the fact she was a young child when the events occurred. The jury would have clearly understood these two competing positions, and were properly instructed on how to approach their task.

[56] The trial judge’s ultimate findings of fact do not provide a basis for this court to conclude that the complainant did in fact lie on all of her allegations. Indeed, the trial judge accepted that there was evidence to support the convictions. She accepted that “there is the factual basis to find that one incident of [the appellant] touching her buttocks has been proven beyond a reasonable doubt and that those facts can support the charge of sexual interference and sexual assault.” As noted above, this court cannot intervene unless those findings are unsupportable on any reasonable view of the evidence. The fact-finding exercise here was not so flawed that the collective judicial experience of this panel must step in and displace the jury’s verdict.

Conclusion

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

Released: September 1, 2023 “B.Z.” “J. George J.A.” “I agree. B. Zarnett J.A.” “I agree. Thorburn J.A.”