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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. S.K., 2023 ONCA 733

DATE: 20231107

DOCKET: C70887

Benotto, Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

S.K.

Appellant

Anthony Moustacalis and Aidan Seymour-Butler, for the appellant

Scott Clarke, for the respondent

Heard: October 10, 2023

On appeal from the convictions entered by Justice Danalyn J. MacKinnon of the Ontario Court of Justice, dated February 25, 2022.

REASONS FOR DECISION

OVERVIEW

[1] Following a judge alone trial, the appellant was convicted of sexual interference contrary to s. 151 of the Criminal Code, R.S.C. 1985, c. C-46 and sexual assault contrary to s. 271 of the Code. The appellant appeals from those convictions.

[2] At the time of the incidents, the appellant, S.K., was 19 years old and the complainant was 12. The complainant was a member of Scouts Canada and S.K. was working to become a Scout leader.

[3] The first incident occurred in July 2019.

[4] The complainant alleged that the appellant invited her and N.G., a male Scout who was 12 years old at the time, to his sailboat. Their plan was to go swimming, watch a movie at a theatre and then spend time on his boat. The complainant was going to be picked up by her mother at 10 pm but she phoned her mother and asked if she could spend the night on the boat. Her mother gave her permission to stay. During the evening, the appellant suggested that they play a game of “truth or dare”. The complainant testified that the game involved sexual dares, including that the complainant perform oral sex on the appellant and that she have sexual intercourse with him. The complainant said she felt pressured and complied.

[5] The appellant denied this version of events. He said the game was innocuous and not sexual.

[6] The second incident occurred a few weeks later, in August 2019.

[7] The appellant invited the complainant to his family home. The two were alone in the house. After swimming and watching a movie, the appellant took the complainant to his parents’ bedroom, where he had her perform oral sex on him and then had sexual intercourse with her for about an hour. The appellant denied the complainant’s version of events.

[8] The complainant disclosed the incidents to her mother, who took the complainant to the police the next day where the complainant provided a written statement. Later, both the complainant and N.G. provided video-recorded statements to the police.

REASONS FOR CONVICTION

[9] The complainant, her mother, N.G., and S.K. testified at trial. The trial judge rejected S.K.’s evidence, accepted much of the evidence of the complainant and N.G., and found that there was no reasonable doubt concerning the charges for either incident.

[10] In considering the evidence before her on the first incident, the trial judge noted some inconsistencies in the evidence of N.G. and the complainant. For example, N.G. claimed that the only sexual dare was when he dared the appellant and the complainant to have intercourse. However, the trial judge found that N.G.’s testimony corroborated essential aspects of the complainant’s allegations, such as that N.G. dared the appellant and the complainant to have sexual intercourse, that the two went into a bedroom on the sailboat after the dare, and that S.K. and the complainant slept together in the bed on the boat that night.

[11] S.K. denied that any sexual dares or acts occurred on the boat. He also denied sleeping in the bed with the complainant overnight. The trial judge rejected these denials. She preferred the corroborated evidence of the complainant and found that on issues such as the occurrence of sexual dares beyond the sexual intercourse the complainant’s evidence did not need corroboration.

[12] Concerning the second incident, the trial judge found that the complainant’s detailed description of the appellant’s parents’ bedroom supported that the complainant had spent a considerable amount of time in the room. The trial judge was not persuaded by the appellant’s claim that the complainant had this knowledge because of the house tour that he gave her, finding it unconvincing that a 12-year-old would remember a room in detail after only seeing it briefly during a tour.

[13] Throughout the trial, the judge found S.K.’s testimony to lack credibility. S.K. often claimed that he could not recall certain details, such as where the complainant slept on the boat, where she sat during the movie at his parents’ house, or where she changed to go swimming at his parents’ house. The trial judge concluded that his testimony was evasive and amounted to a denial of the allegations. The trial judge was also troubled by the appellant’s view of himself as a peer of the complainant, N.G., and other Scouts, and his initiating meetings outside of Scout events, contrary to the Scouts’ official policy.

[14] Taken together, the trial judge found that the allegations against S.K. were made out beyond a reasonable doubt.

ISSUES

[15] The appellant raises the following grounds of appeal:

(1) The trial judge erred in relying on evidence from improper cross-examination by the Crown.

(2) The trial judge erred in her analysis of N.G.’s evidence.

(3) The trial judge erred in not addressing problems with the complainant’s evidence.

(4) The trial judge subjected the appellant’s memory to excessive scrutiny.

ANALYSIS

(1) The trial judge did not rely on improper cross-examination evidence

[16] The appellant argues that the trial judge relied on evidence arising from improper cross-examination. According to the appellant, the Crown improperly asked the appellant to speculate on the motives of a witness and whether the appellant could explain why a witness would make false allegations: R. v. G.H., 2020 ONCA 1, at para. 24; R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 38, leave to appeal refused, [2015] S.C.C.A No. 110. The result, the appellant contends, was a miscarriage of justice under s. 686(1)(a)(iii) of the Code.

[17] We disagree.

[18] The sections of the transcript that form the basis of the appellant’s concern involve questions where the appellant was asked to comment on evidence from other witnesses. For example, the appellant highlights this exchange:

Q. I understand, okay. Okay, so I have one last question for you, [S.K.], and that is with regard to very similar to one question that I asked you before.

A. Okay.

Q. So [the complainant] also testified that the dares you played that night were of a sexual nature. You heard her testimony. What do you have to say to that?

A. It did not happen. I would never ever do a sexual dare with a kid, never in my life I would ever do that.

Q. And if I put to you that two kids having the same story makes me more likely to believe that those games were sexual, what would you say to that?

A. Honestly, I don't know what the [indiscernible] say, I just know I did not do that and I could never ever do it in my life. I don't know what I'd do with myself it I did, I did not do that. I don't know what I'd even think I as of right now I don't never ever want to see them again after these, these accusations. [Emphasis added.]

[19] The considerations for reviewing alleged miscarriages of justice arising from cross-examination were summarized by this court in R. v. K.L., 2018 ONCA 792, at para. 8:

First, it will only be conduct that compromises trial fairness that will justify ordering a new trial, not merely improper conduct. Second, while not dispositive of the issue, the failure of defence counsel to object at trial is a relevant factor to consider. And finally, the reviewing court will look at the overall effect of the improper questions and conduct of the Crown in the context of the full cross-examination and the entire trial: R. v. A.G., 2015 ONCA 159, at paras. 20-25.

[20] Here, the questions asked by the Crown elicited no improper or inadmissible evidence that imperilled trial fairness. The questions above, and the others referred to by the appellant, merely resulted in denials from the appellant as to the sexual dares that the complainant and N.G. testified had taken place. Similar denials were made by the appellant throughout his testimony. There is no indication that the impugned responses provided by the appellant altered the trial judge’s understanding of S.K.’s reliability or credibility.

[21] Furthermore, these questions resulted in no objection or re-examination by the defence. In fact, the defence used the appellant’s statements made in response to the question above. In its closing statement, defence counsel stated: “[S.K.’s] evidence is he would never ever do a sexual dare with a child. He would not know what to do with himself after he would do something like that.” While not determinative, the lack of any objection and the use of the impugned testimony by the defence weighs against a finding that the cross-examination led to a miscarriage of justice.

[22] Moreover, there is no basis on the record for concluding that the questions asked by the Crown inappropriately influenced the trial judge’s credibility analysis or resulted in the trial judge improperly shifting the burden on to the appellant to provide explanations in response to the testimony of the complainant and N.G. The appellant points out that the trial judge’s reasons for judgment state that “[S.K.] stated he would never have allowed sexual dares to be given.” However, it is unclear how this statement demonstrates trial unfairness, particularly in the context where the appellant made repeated denials of engaging in any sexual dares and where the defence made a similar statement in its closing statement.

[23] In our view, the trial judge appropriately considered the appellant’s denials in response to the impugned questions, and other denials given, as part of the totality of the evidence before her. After carefully considering the evidence as a whole, the trial judge rejected the appellant’s evidence.

[24] Accordingly, this ground of appeal fails.

(2) The trial judge did not err in her analysis of N.G.’s evidence

[25] The appellant also argues that the trial judge relied improperly on the evidence of N.G., which the appellant describes as “seriously questionable” based on a number of concerns. These include that N.G. did not recall certain events and that the trial judge acknowledged inconsistencies between the evidence of the complainant and N.G., specifically related to the consumption of alcohol on the boat, the use of a wooden spoon during the game of truth or dare to inflict punishment for refusing a dare, and the nature of other dares made that night. The appellant also notes that the trial judge expressed the concern that N.G. may have been trying to minimize his level of complicity in the events of the first incident during his testimony. According to the appellant, these issues mean that the trial judge should have looked for independent evidence to support N.G.’s testimony.

[26] The findings of trial judges on the credibility and reliability of witnesses are owed significant defence. Absent palpable and overriding error, appellate courts will not intervene: R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 81.

[27] We see no error in the trial judge’s assessment of, and reliance on, N.G.’s evidence. The evidence of N.G. was carefully considered by the trial judge, who set out the areas where its gaps and discrepancies caused some concern and the findings that were supported by N.G.’s evidence. The trial judge also found that there were a number of key areas where N.G.’s testimony corroborated the complainant’s evidence. It was open to the trial judge to find that she could rely on these.

[28] Moreover, it is not incumbent on a trial judge to resolve every inconsistency in witness testimony: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 14. This is especially the case where the witness is a child, as both the complainant and N.G. were during the incident and at trial: R. v. K.C., 2021 ONCA 401, 157 O.R. (3d) 161, at para. 75. Taken together, there is no indication of error, let alone palpable and overriding error, in the trial judge’s assessment of N.G.’s evidence.

[29] This ground of appeal also fails.

(3) The trial judge did not err in how she addressed the complainant’s evidence

[30] The appellant raises three concerns with the trial judge’s treatment of the complainant’s evidence. First, that the trial judge failed to properly scrutinize the complainant’s claim that her memory improved over time. Second, that the trial judge failed to address inconsistencies with the complainant’s evidence. And third, that the trial judge should have sought corroboration of the complainant’s evidence concerning the appellant’s parents’ bedroom in the second incident.

[31] The complainant stated that her memories of the 2019 allegations were better at the time of the trial in December 2021 than they were when she gave her written statement to the police in October 2020 and her video statement to the police in May 2021.

[32] The appellant argues that the trial judge erred by accepting that the complainant’s memory improved over time given what the appellant argues are serious inconsistencies in the evidence. In particular, the appellant points to the complainant not providing the police with information on the second incident, in August 2019, until after giving her first statement to the police.

[33] In response to the complainant’s statement that her memory improved over time, trial counsel for the defence, in their submissions, asked the court to take judicial notice of the suggestion that memory generally degrades over time. When pressed by the judge, they resiled from that position and settled on the submission that the idea of unlocking repressed memories is controversial without scientific evidence.

[34] The Crown argues that the complainant addressed the discrepancy between her first and second account of the incidents to the police during her video-recorded statement to police in May 2021. She began speaking about the August 2019 incident and advised the interviewing officer that “there were a couple of things that were off in the report and a couple of things that weren’t in there that I knew happened.” During that interview, the complainant described the events of August 2019, and did so in a manner consistent with her evidence at trial.

[35] The complainant also provided an explanation for her improved memory of the events. She noted that her interactions with law enforcement and the legal system made her think more about the events and in doing so, her memory of what happened improved.

[36] The Crown submits that the trial judge was fully aware that the complainant’s recollection and recounting of events was more detailed under questioning at trial than when she first reported the incident to the police.

[37] In our view, there was nothing improper about the trial judge’s approach to the complainant’s memory.

[38] Second, the appellant asserts an inconsistency in the complainant’s evidence that amplified the importance of scrutinizing the complainant’s memory. In particular, the appellant asserts that in her video statement to police the complainant initially stated that, despite dares to do so, she did not insert objects into her vagina. Later in the video, when asked if anything went inside of her, she said that other objects did. Her evidence at trial was that she did not place the objects in her vagina.

[39] However, we agree with the Crown that the appellant’s argument misconstrues the record and evidence by conflating the complainant’s testimony relating to two different dares – one that the complainant ‘touch herself’ and the other that she insert objects into her vagina. The record demonstrates that the complainant’s evidence on this point was consistent throughout – namely, that she refused to touch herself, but complied with the objects dare.

[40] The third concern the appellant’s raise with the complainant’s evidence is the trial judge’s treatment of the complainant’s description of S.K.’s parents’ bedroom. The trial judge found that the level of detail used in the description supported the fact that the complainant spent a significant amount of time in the bedroom and that this was consistent with her testimony on the sexual assault. This appellant contends that this preference was improper because there was no independent evidence about whether the description actually matched the parent’s bedroom.

[41] We disagree. The complainant described the room in detail in both her video-recorded statement and in court. Her statements were consistent. The complainant’s description was not challenged, nor was it contradicted. It was open to the trial judge to conclude that the complainant’s description of the room was consistent with her testimony about being sexually assaulted, rather than receiving a tour.

[42] The trial judge did not err in her assessment of the complainant’s evidence. This ground of appeal also fails.

(4) The appellant’s evidence was not subject to unequal scrutiny

[43] The appellant argues that the trial judge over-emphasized the appellant's inability to recall details of the incidents and subjected the appellant’s evidence to excessive scrutiny that was not applied to discrepancies in the complainant’s evidence.

[44] According to the appellant, even if the evidence could have supported a conviction, where the trial judge has applied different standards to the assessment of prosecution and defence evidence, the defendant has not received a fair trial and thus has been the victim of a miscarriage of justice: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 43; R. v. B.T.D., 2022 ONCA 732, at paras. 54-56.

[45] The Crown submits that the claim of unequal scrutiny is not supported by the record and emphasizes that the appellant was an adult at the time of the incidents and 22 at trial, while the complainant and N.G. were 12 at the time, and only 15 when testifying at the trial. In this context, different approaches to the evidence of each witness are entirely appropriate: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 32.

[46] The threshold for establishing unequal scrutiny is high. As this court held in R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at paras. 26-28:

We begin with an observation repeatedly made in the jurisprudence of this court. This “uneven scrutiny” argument is one that is difficult to make successfully. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial.

An appellant who advances an “uneven scrutiny” argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment.

Appellate success on an argument of uneven scrutiny is achieved only by those who can point to something in the trial judge’s reasons, or elsewhere on the record, that demonstrate that the trial judge had applied different standards in assessing the competing versions. [Citations omitted.]

[47] In the trial judge's analysis, she found that she did not believe the appellant's evidence in part because she found him to be evasive. In the reasons for judgment, the trial judge cited two examples in particular. Regarding the first incident, the judge considered that the appellant stated he did not remember where he and N.G. slept – but noted that the complainant and N.G. both testified that S.K. and the complainant slept in the bed together. For the second incident, the trial judge cited the appellant's lack of memory about where the complainant sat during a movie and where she changed into her swimsuit as a refusal to answer difficult questions.

[48] We do not accept that the trial judge applied different standards in assessing the competing version of events in this case, or that she erred in her credibility assessments of the appellant, N.G., or the complainant. There is no indication in the trial judge’s reasons, or elsewhere, that an inappropriate difference in standards was applied. To the extent the trial judge treated the evidence of the complainant and N.G. as children differently from the evidence of the appellant as an adult, this was appropriate in the circumstances.

[49] This ground of appeal fails.

DISPOSITION

[50] For these reasons, the appeal is dismissed.

“M.L. Benotto J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”