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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230908 Docket: C69851

Hourigan, Paciocco and Nordheimer JJ.A.

BETWEEN

His Majesty the King Respondent

and

D.G. Appellant

Counsel: Yaroslav Obouhov, for the appellant Lilly Gates, for the respondent

Heard: September 6, 2023

On appeal from the convictions entered by Justice John Olver of the Ontario Court of Justice on April 22, 2021.

Reasons for Decision

[1] D.G. appeals from his conviction on a single count of sexual assault. He was acquitted of a number of other sexual assault charges. At the conclusion of the hearing, we allowed the appeal, set aside the conviction, and ordered a new trial.

[2] The appellant was charged with a number of counts of sexual assault, sexual interference, and one count of assault with a weapon. He was convicted only on one count. That count related to his step-grandaughter. He was accused of sexually assaulting her many years earlier when she was between the ages of 14 and 18. It was alleged that the sexual assault occurred when he and the complainant were driving on Highway 400 on a return trip to their home in Newmarket. The complainant alleged that the appellant placed his hand on her thigh and slid it up to her vagina, which he touched over her underwear.

[3] In his reasons, the trial judge recognized that the sole issue at trial was the credibility and reliability of the complainant and of the appellant, who had denied the alleged conduct. The trial judge first rejected the appellant’s evidence. He found his evidence to be “evasive, internally inconsistent and made little sense”.

[4] The trial judge then turned to the complainant’s evidence. He stated that there were obvious concerns with her evidence and detailed four specific instances that led to those concerns. Three of those concerns related to material inconsistencies between the complainant’s evidence and her police statements. The fourth instance arose after the complainant testified that she had documented the appellant’s conduct towards her in journals and that she had used these journals to refresh her memory between the time that she gave her statement to the police and the time that she gave her evidence at trial. She sought to explain the inconsistencies in her evidence in this way. The trial was adjourned so that she could produce the journals. When the trial resumed, she did not have the journals that she claimed to have consulted. She said that, although she found unrelated journals, she could not find the journals she had reviewed before giving her evidence.

[5] The trial judge did not believe her. He said that he was “deeply troubled” by the missing journals. He found that the circumstances surrounding the journals significantly impacted on the complainant’s overall credibility. In commenting on the absence of the journals, the trial judge said:

…the more reasonable inference is that she divested herself of said journals intentionally, if they ever existed at all.

[6] He also said that based on these “obvious concerns, I find that I have to approach [the complainant’s] evidence with caution.”

[7] Notwithstanding the strong findings he had made about the complainant’s disposal (or fabrication) of the journals, and his self-admonition to approach the complainant’s evidence with caution, the trial judge concluded that there was “some truth in her recollection” of the alleged incident, and he convicted on that basis. The trial judge did not explain why he reached this conclusion, other than referring to the manner in which the complainant gave her evidence, which he described alternatively as “compelling and appropriate” to “defensive and combative”. We note, on this point, the limited value of demeanour evidence: R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 85.

[8] In our view, the trial judge failed to explain how he convicted the appellant in the face of the credibility difficulties regarding the complainant that he found to exist. In light of his finding that the journals had either been deliberately destroyed by the complainant, or that they did not exist at all, and his recognition of the need to exercise caution in accepting her evidence, (taken with the acquittals he arrived at relating to the other incidents some of which also involved the complainant), the trial judge was obliged to explain how he determined that he could nonetheless believe the complainant’s evidence about what transpired in the appellant’s vehicle. He did not do so.

[9] One of the fundamental purposes of reasons is to explain why the result was reached and to allow for proper appellate review. In a criminal case, an accused is entitled to know why they were convicted and to have the basis for that conviction reviewed. As Binnie J. explained in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 46:

In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention.

[10] In light of the trial judge’s findings regarding the complainant’s evidence, we do not know the basis for his conclusion that she could be believed with respect to this one count of sexual assault, notwithstanding the credibility problems he had identified, nor does the appellant know. We cannot test his conclusion against the available record. The trial judge’s reasons are simply inadequate. As was noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19:

This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court.

[11] It is for these reasons that we allowed the appeal, set aside the conviction, and ordered a new trial.

“C.W. Hourigan J.A.”

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”