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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 20240314 Docket: C70519

Simmons, van Rensburg and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.I. Appellant

Counsel: R.I., acting in person Peter Copeland, appearing as duty counsel Frank Au, for the respondent

Heard: November 8, 2023

On appeal from the convictions entered on December 9, 2021, by Justice Pierre E. Roger of the Superior Court of Justice, with reasons reported at 2021 ONSC 8015.

Reasons for Decision

[1] The appellant was convicted of sexual interference and invitation to sexual touching and sentenced to four years’ imprisonment less credit for pre-sentence custody. A sexual assault count was stayed based on the principle in R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant appeals his conviction and seeks a new trial. By the time the appeal was argued, he had served his sentence.

[2] For the reasons that follow we allow the conviction appeal.

[3] The appellant was charged in 2019 with sexual offences against his two stepdaughters, E.L. and S.L., stemming from incidents alleged to have taken place between January 2013 and December 2018. The allegations included repeated instances of inappropriate touching, fellatio and attempted and actual vaginal and anal penetration in relation to each complainant.

[4] The trial judge did not accept the appellant’s evidence and concluded that it did not raise a reasonable doubt. After considering the other evidence, consisting of the testimony of E.L., S.L. and the girls’ mother, the trial judge concluded that the totality of the evidence about E.L.’s allegations left him with a reasonable doubt. He acquitted the appellant of all offences in relation to E.L.

[5] With respect to S.L.’s allegations, the trial judge concluded that S.L. had exaggerated the frequency of what happened, and that he did not accept that she had been repeatedly sexually assaulted by the appellant. He was also left with a reasonable doubt about whether there were any instances of fellatio and vaginal or anal penetration because of the many contradictions and inconsistencies in S.L.’s evidence, and because some of her evidence about those allegations was unacceptably vague.

[6] The trial judge went on to note that the contradictions, inconsistencies and weaknesses in S.L.’s other evidence related more to peripheral matters or were understandable and did not leave him with a reasonable doubt, and that having assessed all the evidence relating to S.L., he was not left with a reasonable doubt about the appellant’s guilt on the counts related to S.L. He found that the appellant had sexually assaulted S.L. for a period of about ten months in 2018 when she was about ten years old, and that the sexual abuse included the appellant once placing S.L.’s hand on his penis and genitals, which progressed to his touching S.L.’s breasts and vagina at least once both over and under her clothing, and that this progressed to the appellant rubbing his penis on S.L.’s buttocks and vagina on at least two occasions both over and under her clothing.

[7] While acknowledging that a trial judge’s assessment of the credibility and reliability of evidence is entitled to deference, duty counsel submits that the appellant’s convictions were tainted by reversible errors. First, duty counsel asserts that the trial judge made a number of errors in his assessment and rejection of the appellant’s evidence. Second, duty counsel contends that the trial judge failed to properly assess the evidence of collusion between the complainants.

[8] We will deal with each ground of appeal in turn.

The alleged errors in the assessment of the appellant’s evidence

[9] The focus with respect to this ground of appeal is on paras. 27 to 35 of the trial judge’s reasons, under the heading “The Accused”. This section of the reasons begins with the trial judge’s summary of the appellant’s evidence. The trial judge stated, at para. 27:

The [appellant] testified briefly. He denied all allegations. He said that the allegations are not true, that they are ridiculous. He did not deal separately with the allegations of [E.L.] and [S.L.]. He said that he sometimes yelled at the complainants and that he occasionally lost his cool but said that none of those things that are alleged ever happened.

[10] After self-instructing on the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge concluded that, when he considered the evidence of the appellant in the context of the evidence relating to each of E.L. and S.L., he did not believe the appellant, nor did the appellant’s evidence leave him with a reasonable doubt about his guilt on the counts relating to each complainant. The trial judge noted that the appellant denied all allegations, but that his testimony was brief and unconvincing. It is in the explanation that follows that duty counsel points to alleged errors in respect of each of the reasons the trial judge provided for this conclusion.

[11] The first reason the trial judge gave for concluding that the appellant’s evidence was unconvincing had to do with his evidence about the arrival of a new dog in the summer of 2018. The trial judge stated that the appellant’s explanation about why he obtained the dog (that he had had six dogs while the family was together, that he was replacing a dog they had given up, and that he and E.L. and her brother liked dogs) was unpersuasive, and that the dog’s surprise arrival was “more consistent with [E.L.’s] version that she was promised another dog by the [appellant] or more consistent with the [appellant] trying to keep [E.L.] happy and quiet than with the [appellant’s] vague explanation”.

[12] Duty counsel submits that the trial judge rejected the appellant’s account about the dog while relying on E.L.’s testimony, without having considered the significant frailties in her evidence that he outlined later in his reasons.

[13] Crown counsel, relying on R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal to S.C.C. refused, 31767 (May 10, 2007), submits that the trial judge did not err in rejecting the appellant’s evidence about the dog: he was entitled to disbelieve the appellant’s evidence based on his acceptance of the evidence of both complainants and the mother that the dog’s arrival was a complete surprise.

[14] We agree with duty counsel’s submission. The importance of the evidence on this point is that E.L. testified that she had been promised a new dog in exchange for performing fellatio on the appellant. However, the trial judge was not persuaded beyond a reasonable doubt by E.L.’s evidence, which he described as having important contradictions, unexplained failures to remember things, and as unreliable. And, at para. 66 of his reasons, the trial judge specifically addressed E.L.’s evidence that the appellant asked her to perform fellatio for a new dog in the spring or summer of 2018. He described various concerns with that evidence that were brought out during E.L.’s cross-examination and re-examination, and he concluded that “[i]n the face of these many contradictions, the fact that [the dog] surprisingly materialized is not sufficient counterweight”. Later, at para. 70 of his reasons, the trial judge indicated that he was not finding that the events that E.L. alleged “did not possibly occur”, and he observed that they “might have”.

[15] In assessing the appellant’s evidence, the trial judge appears to have relied on evidence about the reason for the dog’s appearance, that he expressly did not accept later in his reasons. Indeed, the trial judge’s description of the dog’s surprise arrival as “ more consistent with the [appellant] trying to keep [E.L.] happy and quiet than with the [appellant’s] vague explanation” (emphasis added) suggests that he was applying a civil standard of proof, rather than applying the principle set out in J.J.R.D.

[16] In J.J.R.D. Doherty J.A. observed that the rejection of an accused’s evidence may be explained by “a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”: at para. 53. The trial judge did not accept E.L.’s evidence, even to the extent that it was corroborated by her mother’s evidence, beyond a reasonable doubt. Indeed, he had significant concerns about such evidence, such that he acquitted the appellant of all offences relating to E.L.

[17] The trial judge’s second reason for rejecting the appellant’s evidence was that his bare denials were not convincing because he provided no detail or particulars to explain why the allegations of each of the complainants were ridiculous. At para. 31 of his reasons the trial judge observed that, “[w]hen trying to convince, details can be important and here the accused provided very little”. The trial judge then referred to the appellant’s evidence that E.L. was a difficult child and prone to frequent outbursts, and that although he loved both E.L. and S.L., he had a poor relationship with them because he was often the parent left to enforce discipline. The trial judge stated that such evidence did not leave him with a reasonable doubt.

[18] Duty counsel contends that the trial judge erred in placing a persuasive burden on the appellant to explain why the allegations of the complainants were false. The Crown submits that the trial judge could not have reversed the burden of proof because he went on to acquit the appellant with respect to a number of charges.

[19] In direct examination the appellant, in response to a question by his own counsel, testified that he could not say where the allegations came from, referred to some of the difficulties in his relationships with the children, and said that the allegations were “ridiculous”. Under cross-examination, the appellant confirmed that he viewed the allegations as “ridiculous” and that “[n]othing at all rings true”, and he denied specific allegations that were put to him by the Crown.

[20] We agree that the trial judge erred in appearing to place the persuasive burden on the appellant when he faulted him for failing to provide details or particulars to explain why the allegations against him were ridiculous. There is no burden on an accused to explain why a false accusation would have been made: R. v. S.S.S., 2021 ONCA 552, 406 C.C.C. (3d) 314, at para. 38. The trial judge noted that the appellant provided few details; however, it is not clear what further evidence the appellant could have provided, given that he was denying the alleged instances of abuse. Moreover, we agree with duty counsel that it appears that the trial judge may well have accepted the Crown’s submission during closing arguments that, if the trial judge were to believe the appellant, he would need to conclude that the complainants were not confused or mistaken, but were “outright lying” and that the case cried out for “some evidence” as to why false allegations would have been made.

[21] The trial judge’s third and final reason for rejecting the appellant’s evidence was at para. 32 of his reasons where he stated that the appellant was evasive and reluctant to admit the obvious: that he was the actual and active father of the complainants for a long time, and that the appellant’s evidence left the impression that he was trying too hard to artificially distance himself from the complainants to better explain or justify why each would make a false complaint.

[22] Duty counsel submits that the trial judge misapprehended the appellant’s evidence. First, the appellant readily acknowledged that he was a father figure to the complainants after their biological father was no longer involved with them. Second, the evidence of the two complainants and their mother was that the complainants did not have a good relationship with the appellant. As such, duty counsel argues that the evidence did not reasonably support the trial judge’s conclusions about the appellant’s evasiveness about his relationship with the complainants, or that he was trying to distance himself from them to explain or justify why they would make false complaints.

[23] Crown counsel submits that it was open to the trial judge to conclude that on occasion the appellant was evasive and trying to distance himself from the complainants in his answers about being a father figure to them.

[24] Having carefully reviewed the transcript of the appellant’s evidence, we agree with duty counsel that the appellant admitted that, while he was not a father figure to the complainants as soon as he and their mother married, the relationship developed over time, after their biological father was no longer involved. He readily admitted that the complainants looked to him as a father, and that he had assumed a parental role. Moreover, the suggestion that the appellant was trying to “artificially distance” himself from the complainants is not supported by the evidence. Rather, the uncontested evidence was that there were difficulties in the appellant’s relationship with both complainants, and that there were reasons for the lack of closeness. Indeed, at paras. 74 and 78 of the reasons, the trial judge referred to S.L.’s detailed evidence setting out the many reasons, apart from the alleged sexual assaults, that she strongly disliked the appellant. The trial judge concluded that the evidence, including that of the appellant and the complainants’ mother, which he appears to have accepted on this point, was that they were not close. As such, the trial judge’s statement that the appellant was “artificially” distancing himself from the complainants does not take into account the evidence he did accept, that, for any number of reasons, the appellant did not have a close relationship with either girl.

[25] Finally, we agree with duty counsel that the trial judge’s observation at para. 33 of his reasons that, by contrast to the appellant, each of the complainants testified convincingly, and had shown emotion and insight and seemingly answered questions fully and fairly, does not provide a reason for rejecting the appellant’s evidence. Again, the trial judge did not advert to the various frailties in the complainants’ testimony that informed his later analysis and conclusions about their evidence. And, as he properly recognized at para. 19 of his reasons, caution is required in considering unfavourable or favourable demeanour evidence, particularly where there are significant inconsistencies and conflicting evidence.

[26] For these reasons we accept the argument that there were errors in each of the reasons provided by the trial judge for rejecting the appellant’s evidence and concluding that the evidence did not raise a reasonable doubt.

The trial judge’s treatment of the allegation of collusion

[27] The appellant also contends that the trial judge erred in his assessment of S.L.’s evidence when he failed to grapple with the evidence that S.L. had repeatedly overheard E.L. and their mother discussing E.L.’s allegations between December 2018 (when E.L. spoke to the police) and March 2019 (when S.L. first disclosed her allegations). Rather than considering whether S.L.’s exposure to this information tainted her evidence and provided a basis for her to falsely accuse the appellant, the trial judge, at para. 88 of his reasons, found that the conversations were not “abnormal or unreasonable” and were “not unreasonable in these circumstances within such a family”. He went on to state that S.L.’s evidence appeared independent but noted that demeanour was difficult to assess. While the trial judge held that S.L.’s “reluctance to admit some of the above” affected her credibility and reliability, the appellant contends that he understated the full import of this evidence, and he did not squarely address the defence allegation of collusion, which was an important consideration having regard to S.L.’s significant animus against the appellant.

[28] While not addressing the trial judge’s treatment of the issue of collusion directly, the Crown asserts that the trial judge’s acquittal of the appellant on all charges relating to E.L. and his rejection of much of S.L.’s evidence demonstrates that he carefully considered the various frailties in the complainants’ evidence and that he took seriously the burden of proof.

[29] We agree with duty counsel’s submission that the trial judge understated the importance of the evidence of potential collusion, and did not properly assess its impact on S.L.’s credibility and reliability, when he convicted the appellant of having sexually assaulted S.L.

[30] In her examination in chief, S.L. testified that she had no recollection of overhearing any discussion of E.L.’s allegations between the time E.L. gave her police statement and her own disclosure, and she referred to the time as a “blank space”. She maintained that the only thing she knew was that the appellant had moved out. On cross-examination, however, E.L. was taken to her police statement where she said that E.L. and her mother “literally talk about it all the time”. She maintained that she had overheard only one conversation, but she acknowledged that she might have overheard others but not understood what was being talked about. The trial judge did not address S.L.’s apparent unwillingness to acknowledge that she had overheard and had conversations about E.L.’s allegations. Instead, after finding that S.L. would listen to conversations between E.L. and her mother about E.L.’s allegations, and that E.L. and S.L. talked about their allegations prior to S.L.’s police disclosure, he concluded that the conversations were not abnormal or unreasonable.

[31] In so concluding, the trial judge failed to properly consider whether S.L.’s exposure to the conversations about E.L.’s allegations affected her credibility and reliability. It is well-established that hearing the evidence of other witnesses “can have the effect, whether consciously or unconsciously, of colouring and tailoring [a witness’s] descriptions of the impugned events”: R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at para. 28, citing R. v. C.B. (2003), 167 O.A.C. 264, at para. 40. For this reason, a trial judge faced with evidence of potential collusion must directly address the evidence and consider its impact on the witness’s credibility and reliability. It remains open to the trial judge to rely on the witness’s testimony, but only if the trial judge is demonstrably satisfied that the alleged collusion did not taint the witness’s credibility or reliability: C.G., at paras. 33-40; R. v. Burnie, 2013 ONCA 112, 303 O.A.C. 76, at paras. 36, 41.

[32] We agree with duty counsel that the trial judge in this case did not adequately address the evidence of potential collusion and explain why this factor, together with S.L.’s animus and the various frailties in her evidence, did not leave him with a reasonable doubt.

[33] We therefore are of the view that the cumulative errors in the trial judge’s analysis justify allowing the appeal.

[34] Finally, although his written argument addressed the order against the appellant under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”), in view of the Supreme Court’s recent decision in R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389, and the Royal Assent to Bill S-12 following that decision, duty counsel advised that the appellant is not proceeding with his challenge to the SOIRA order in this court. He seeks leave to withdraw the notice of constitutional question that was filed with the court, without prejudice to bringing an application under the new provisions in the Superior Court on a proper record. We so order.

[35] For these reasons, we allow the conviction appeal and direct a new trial on the charges involving offences against S.L.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“J. George J.A.”