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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231206 DOCKET: C70780

Tulloch C.J.O., Feldman and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

L.G. Appellant

Counsel: Ian B. Kasper and Nusra Khan, for the appellant Luke Schwalm, for the respondent

Heard: November 8, 2023

On appeal from the conviction entered on February 24, 2022 by Justice Kathryn A. Fillier of the Ontario Court of Justice.

REASONS FOR DECISION

A. Overview

[1] On February 24, 2022, the appellant was found guilty of gross indecency and sexual assault. The offences took place in late 1985 and early 1986 when the appellant was 30 years old and the complainant was 14.

[2] The appellant admitted to sexual activity with the complainant on one occasion in 1987 but claimed it was consensual. (It is agreed that at the relevant time, the age of consent was 14.)

[3] In her reasons for judgment, the trial judge rejected the appellant’s evidence, finding it to be incredible, particularly in light of inconsistent statements he had voluntarily made to the police when he was arrested in 2019. The trial judge also found that the appellant’s credibility and reliability was not enhanced by the testimony of his wife and sister-in-law, who had testified as defence witnesses. Nor, the trial judge found, did the appellant’s evidence give rise to a reasonable doubt as to his guilt.

[4] In contrast, the trial judge found that the complainant’s evidence was careful and measured, internally consistent, and confirmed by independent, non-contentious evidence. She accepted the complainant’s evidence and found that it established the appellant’s guilt beyond a reasonable doubt.

[5] The appellant appeals his conviction on the following two grounds:

(i) the trial judge’s approach to the evidence of the appellant’s wife and sister-in-law constituted a reversal of the burden of proof; and,

(ii) the trial judge erred in her reliance on non-contentious evidence as enhancing the complainant’s credibility or reliability.

[6] For the reasons that follow, we dismiss the appeal.

B. Trial Evidence

[7] The complainant testified that she babysat the appellant’s two young children every Sunday afternoon from September 1985 until the Spring of 1986 while the appellant and his wife, along with the appellant’s sister-in-law and her husband, were out bowling in a local bowling league. The complainant described three separate occasions on which the appellant assaulted her while she was at his house babysitting.

[8] The first two incidents and the events leading up to them, as described by the complainant, were similar. In each of the first two incidents, which took place in late 1985, the appellant had returned home early from bowling, without his wife or in-laws, and told his children to go outside and play. He then took the complainant upstairs and had intercourse with her without her consent on a waterbed in his bedroom. Following these two incidents, the complainant said the appellant drove her home in his grey van.

[9] The complainant said that on the third incident in early 1986, the appellant was the only adult in the house with her. She and the appellant were in the kitchen when he told her that “this time we are going to try something different.” He bent her over the stove, pulled her pants down and had anal intercourse with her using some kind of oil as a lubricant.

[10] The appellant’s evidence was that he had a single sexual encounter with the complainant on October 25, 1987, but that she initiated sex with him and was a willing and active participant. The appellant said prior to this occasion, he had seen the complainant from time to time at family gatherings. On October 25, 1987, the Sunday before his thirty-second birthday, the complainant was babysitting his sister-in-law’s three-month old daughter (i.e., the appellant’s niece) at his sister-in-law’s home. The appellant had dropped his wife there as she was going bowling with her sister and her sister’s husband. The appellant invited the complainant to come over to his house with the three-month-old niece to spend some “socializing time” with him.

[11] The appellant said that after returning to his house, he was preparing deviled eggs for his birthday celebration that was to take place later that day after bowling and had some egg and mayonnaise on his fingers. The complainant approached him and began licking the egg and mayonnaise off his fingers, until she reached the index finger, which she started “fellating”. She looked him in the eye and asked him to go upstairs. The appellant said he was hesitant and nervous but, after the complainant reassured him and produced a condom, he followed her upstairs. They had sexual intercourse in his bedroom but it only lasted 45 seconds, after which the complainant expressed disappointment.

[12] Once they were back downstairs in the kitchen, the complainant asked for anal sex. Because the appellant told her he was physically unable, she performed oral sex on him until he attained an erection. She then dropped her underwear, pulled up her skirt, and they had anal sex.

[13] The appellant testified that he had a clear recollection of October 25, 1987 as the events of that day were seared in his mind. It was a day he would “never forget”. The encounter with the complainant had been burned in his memory because of the deviled eggs, and every time he makes these eggs (which happens about five or six times a year) the whole scenario runs through his mind. In particular, he said he had a crystal-clear memory of the fact that the complainant was wearing a distinctive cowboy outfit with a leather skirt that had a six-inch slit up the back.

[14] The appellant also said that, although he was a bowler, he did not participate in the bowling league between the years 1983 to 1988. He also was certain that the complainant never once babysat his children since, in his view, she was not of an age to babysit.

[15] The appellant’s wife testified on behalf of the appellant and said that the complainant never babysat her children. She further testified to having a specific recollection of the events of Sunday, October 25, 1987, including the fact that when she returned home from bowling that day, the complainant and her three-month-old niece were present. She confirmed that she loves her husband very much, that they have discussed the allegations, and that she is concerned about the outcome of the case before the court.

[16] The appellant’s sister-in-law also testified on behalf of the defence. She had a specific recollection of the events of October 25, 1987, including the fact that the complainant was at her house that day to babysit her three-year-old daughter while she and her husband were bowling. She specifically recalled that on that particular day the complainant and her daughter went over to the appellant’s house.

C. Trial Judge’s Reasons

[17] After instructing herself regarding the applicable legal principles, including the framework set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge identified numerous concerns she had regarding the appellant’s credibility.

[18] In particular, there were significant inconsistencies between his evidence at trial and what he had said to the police upon his arrest in 2019. Although at trial the appellant had said that he was certain the sexual encounter he described with the complainant took place on October 25, 1987, in his 2019 statement to police he was unsure of the exact date but thought it had happened when he was 30. He was also not certain whether the encounter had taken place on his birthday. The trial judge found that his claim that the events of October 25, 1987 had been replayed over and over in his mind for more than 30 years was “completely and utterly undermined” by what he had said to the police in 2019.

[19] The trial judge also noted that, although in his trial evidence the appellant claimed that the complainant had performed oral sex on him in order to assist him in getting an erection so that they could have anal intercourse, he never mentioned this fact in his statement to the police. The trial judge found this to be a major inconsistency that significantly detracted from his credibility and reliability.

[20] Further, the trial judge pointed out that although the appellant claimed at trial that he was certain the complainant never babysat his children, in his police statement he could not say one way or the other whether the complainant had looked after his children.

[21] The trial judge was also concerned by the fact that, not only was the appellant’s trial evidence inconsistent with what he told police, his wife and his sister-in-law gave the exact same testimony as the appellant on these key issues. Yet the appellant’s wife and sister-in-law acknowledged that they had no reason to remember who babysat who or when, or what happened on one Sunday afternoon in October 1987. There was nothing noteworthy or significant about October 25, 1987 for either of them and they concurred that a person’s 32nd birthday is certainly not a milestone celebration.

[22] The trial judge found that it was completely incredible that both women would specifically recall babysitting arrangements and other minor details of that particular day, when the appellant himself (who claimed to have a crystal-clear memory of the day) was unclear on many of these same details when he spoke to police in 2019. Moreover, the appellant’s subsequent improved memory at trial happened to align perfectly with that of his wife and sister-in-law. The trial judge also pointed out that, if events had unfolded in the manner suggested by the appellant, at least one of these other witnesses would have recalled the distinct cowgirl ensemble outfit that was supposedly being worn by the complainant, yet neither had mentioned it.

[23] Noting that the appellant had discussed the allegations with both his wife and sister-in-law, the trial judge rejected their evidence, either because they had intentionally sought to mislead the court or were subtly influenced by the appellant and/or one another in these discussions.

[24] The trial judge then rejected the appellant’s evidence on the basis that it was inconsistent with his police statement and was implausible and incredible. Nor was the credibility and reliability of his version of the events enhanced by the testimony of his wife or sister-in-law. In short, the trial judge rejected the defence evidence and found that it did not raise a reasonable doubt as to the appellant’s guilt.

[25] Turning to the complainant’s evidence, the trial judge noted a number of inconsistencies between her trial testimony and her statement to the police. However, the trial judge found that these inconsistencies were minor if not inconsequential. At the core of her allegations, the complainant was consistent both internally and with other non-contentious evidence. For example, it was agreed that the appellant had a waterbed in his master bedroom in 1985, as testified to by the complainant, but that he had replaced the waterbed with a regular mattress by October 1987. In addition, it was conceded that the appellant had owned a grey Chevy van in 1985 and early 1986, consistent with the complainant’s description of the vehicle which the appellant used to drive her home after the first two incidents, but that the van had been replaced with a different vehicle by October 1987. The complainant also testified that the bowling league ran every Sunday between Labour Day and the following May, which was confirmed by all three defence witnesses.

[26] The trial judge found the complainant to be a careful, measured and dispassionate witness who readily admitted when she was unsure of something or did not remember. Moreover, the trial judge found the complainant’s explanation for any inconsistencies in her evidence to be completely reasonable. She accepted her evidence and was satisfied beyond a reasonable doubt that the Crown had established the guilt of the accused beyond a reasonable doubt.

D. Analysis

(1) The Trial Judge Did Not Reverse the Burden of Proof in Her Consideration of the Defence Evidence

[27] The appellant argues that the trial judge reversed the burden of proof in her consideration of the evidence of the appellant’s wife and sister-in-law. In particular, the appellant objects to the fact that the trial judge concluded that there was some form of deliberate collusion or inadvertent tainting of their evidence despite the fact that the possibility of such collusion was never put to either witness. Nor were these witnesses asked about whether the complainant had been wearing a distinctive cowgirl outfit on October 25, 1987. It was thus improper for the trial judge to rely on the failure of those witnesses to mention this distinctive cowgirl outfit in considering their credibility or reliability. The appellant argues that in assessing their evidence, the trial judge incorrectly held the defence witnesses to an unspoken standard of how a witness in their circumstances would recall the events they described.

[28] We do not agree.

[29] The trial judge’s finding of collusion or inadvertent tainting in relation to the evidence of the appellant’s wife and sister-in-law was firmly grounded in the evidence rather than in some unspoken standard. What was particularly significant for the trial judge was the fact that, although the appellant testified at trial that the events of October 25, 1987 were seared in his memory, in his initial statement to the police in 2019 he thought that his sexual interaction with the complainant had occurred when he was 30 years old, which would have been in 1985 or 1986, rather than in October 1987.

[30] At the same time, both the appellant’s wife and his sister-in-law agreed that as far as they were concerned there was nothing particularly significant or distinctive about October 25, 1987. They also agreed that they had never thought about what happened that day until these allegations came to light in 2019, over 30 years after the fact. Yet in their trial evidence they were both able to recall seemingly inconsequential details of that particular day, such as that the appellant had arranged to bring the complainant over to his house while the others went bowling, and the fact that the sister-in-law had transported certain items of baby equipment to the appellant’s house. What the trial judge found to be incredible was that the evidence of both these defence witnesses over such minor details happened to align perfectly with each other, as well as with the appellant’s evidence at trial.

[31] Given these concerns, it was open to the trial judge to conclude that the evidence of the appellant’s wife and sister-in-law regarding the events of October 25, 1987 was simply not believable and that, therefore, there must have been some form of collusion or inadvertent tainting of their evidence.

[32] More concerning is the trial judge’s apparent reliance on the failure of the appellant’s wife or his sister-in-law to mention the distinctive cowgirl outfit which the complainant was supposedly wearing that day as a basis for rejecting their evidence. The appellant rightly points out that neither witness was asked about the cowgirl outfit, and it is therefore difficult to see how their failure to mention it could, in itself, justify rejecting their evidence.

[33] In assessing this concern, we are mindful of the Supreme Court’s clear direction in R. v. G.F., 2021 SCC 20, at para. 69, that a trial judge’s reasons must be read in context and as a whole. Moreover, given the fact that a trial judge has the intangible benefit of having heard the witnesses’ testimony, findings of credibility and reliability, particularly in sexual assault cases, deserve particular deference: G.F. at para. 82.

[34] In this case, the trial judge found the evidence of the appellant’s wife and sister-in-law to be “completely incredible” through the combined effect of three considerations: (i) their apparent ability to recall in detail events from an otherwise unremarkable day 30 years earlier; (ii) the fact that their recollection aligned with the trial evidence of the appellant; and (iii) the fact that the appellant himself had had no particular recollection of those same details when he had spoken to police two years earlier. In our view, it was clearly open to the trial judge to reject the evidence of the wife and sister-in-law on this basis. Read in context, therefore, we regard the trial judge’s comment concerning the witnesses’ failure to mention the cowgirl outfit as an additional consideration that merely reinforced her credibility and reliability findings regarding these witnesses.

[35] In short, we find that the trial judge did not reverse the burden of proof in her treatment of the defence evidence and therefore dismiss this ground of appeal.

(2) The Trial Judge Did Not Err in Her Consideration of Confirmatory Evidence

[36] The appellant argues that the trial judge erred in finding that the complainant’s evidence was confirmed by the fact that in 1985 and 1986 the appellant owned a waterbed and a grey van, and that the bowling league took place on Sundays from Labour Day to the following May. He argues that this evidence is equally consistent with the truth or falsity of the complainant’s evidence, since these were details which the complainant would have been expected to know outside of any of the incidents she had described.

[37] In considering this ground of appeal, we note that independent circumstantial evidence can be confirmatory of a complainant’s evidence provided that it is more consistent with a complainant’s version of events than with another version. Moreover, confirmatory evidence need not directly confirm key allegations of a complainant’s evidence or directly implicate an accused: R. v. Demedeiros, 2018 ABCA 241, at paras. 8 to 10, aff’d 2019 SCC 11; R. v. Primmer, 2021 ONCA 564, at para. 39. Further, the weight to be given to the confirmatory evidence is simply another part of a trial judge’s credibility and fact finding and is only reviewable for palpable and overriding error. The determination of whether evidence can be confirmatory involves a “common sense analysis of whether the evidence can provide comfort to the trier of fact that the witness is telling the truth”: R. v. Khela, 2009 SCC 4, at para. 39.

[38] Contrary to the appellant’s submission, the confirmatory evidence was not equally consistent with the truth or falsity of the complainant’s evidence. The complainant testified that two of the sexual assaults occurred on a waterbed in the upstairs bedroom, and that the appellant drove her home after the first two assaults in a grey van. She also testified that she babysat for the appellant and his wife while they were participating in the bowling league that took place on Sunday afternoons from Labour Day until the following May.

[39] The appellant confirmed that he had a waterbed and a grey van in 1985 and 1986, when the complainant said the assaults occurred, but that he no longer had either of these items in October 1987, when the appellant said he and the complainant had consensual sex. Thus, her evidence about the waterbed and grey van tends to confirm her recollection of the timing of the relevant events and disprove the appellant’s claim that the sexual interaction between them took place on October 25, 1987. Her recollection of the dates and times of the bowling league are also more consistent with her account of babysitting for the appellant, as her personal schedule would have been directly impacted by his bowling.

[40] The appellant argues that the complainant would have gained independent knowledge of the waterbed, the van, and the appellant’s family’s bowling schedule through her babysitting. Yet both the appellant and his wife adamantly denied that the complainant had ever babysat their children.

[41] Apart from the occasions when she babysat for the appellant’s family, the complainant said she only visited the appellant’s home infrequently in the company of her mother, and that these visits were very brief. There is no evidence to suggest that through these brief visits she would have become aware of the appellant’s waterbed or grey van, much less that she would have remembered these details 30 years later, if she had not experienced the sexual assaults she described.

[42] In our view, it was open to the trial judge to find that this independent evidence was more consistent with the complainant’s account of the sexual assaults, as opposed to the version of events described by the appellant. Therefore, there was no error in the trial judge’s finding that the independent evidence confirmed the complainant’s allegations, and this finding is entitled to deference.

[43] On this basis, we dismiss this ground of appeal.

E. Disposition

[44] The appeal is dismissed.

“M. Tulloch C.J.O.”

“K. Feldman J.A.”

“P.J. Monahan J.A.”