Court of Appeal for Ontario

Date: 2024-10-31 Docket: C70798

Fairburn A.C.J.O., Gillese and Dawe JJ.A.

Between:

His Majesty the King Respondent

and

J.E. Appellant

Counsel: Jessica Zita, for the appellant Owen Goddard, for the respondent

Heard: September 9, 2024

On appeal from the conviction entered by Justice Robert Horton of the Ontario Court of Justice on August 17, 2021, and the sentence imposed on April 20, 2022.

DAWE J.A.:

[1] In 2020, the appellant’s stepdaughter made a police complaint alleging that approximately three years earlier, when she had been living with her mother and the appellant, he had repeatedly sexually assaulted her. After a trial in the Ontario Court of Justice, the appellant was convicted of sexual interference and sentenced to four and a half years’ imprisonment. [2] He appeals against his conviction and also seeks leave to appeal against his sentence, although his sentence appeal is limited to challenging certain ancillary orders made by the sentencing judge.

[2] For the following reasons, I would allow the appellant’s conviction appeal and order a new trial. This makes it unnecessary to address his sentence appeal.

A. Factual background

[3] This was a three-witness case, although one witness testified twice. The Crown called the complainant’s mother A.R. as its first witness, followed by the complainant, T.R.S., whose video-recorded police statement was adduced as part of her evidence under s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46. The defence then briefly recalled A.R. to give additional evidence before the appellant testified in his own defence.

(1) The family relationship

[4] The background facts about the family relationship were largely undisputed. A.R. and the appellant met in another province before moving to Ontario in 2012. T.R.S., who was A.R.’s daughter from a previous relationship, remained behind, living with her father. However, in December 2015, when T.R.S. was 11 years old, her father became terminally ill and could no longer care for her, and she came to Ontario to live with A.R., the appellant, and their two young daughters. The appellant and A.R. gave T.R.S. the master bedroom of the family home and began sleeping in the sunroom.

[5] T.R.S. and A.R. agreed that their relationship was strained and that they frequently fought. At trial, A.R. testified that T.R.S. exhibited behavioural problems that included lying and stealing. The local Children’s Aid Society (“CAS”) eventually became involved with the family as a result of the conflict between T.R.S. and A.R.

[6] In June 2017, after T.R.S. had been living with the appellant and A.R. for about a year and a half, the CAS arranged for her to go live with her grandmother in another part of Ontario. The trial judge explained in his reasons that this move came about “as a result of the conflict between T.R.S. and her mother, which culminated with an incident in which T.R.S. sustained a bloody nose.” T.R.S. testified that A.R. had slapped her in the face, but A.R. maintained that she had hit T.R.S. accidentally.

(2) T.R.S.’s allegations

[7] In the spring of 2020, T.R.S. made disclosures that eventually led to her making a police statement.

[8] In her police statement and at trial, T.R.S. explained that about a year after she moved in with her mother and the appellant, her mother got a job that required her to work a night shift. Soon afterwards, the appellant began sexually touching T.R.S. at times when her mother was either at work or sleeping. At trial, T.R.S. testified that the first time this happened T.R.S. and the appellant had both been seated on the couch in the living room. T.R.S. described the appellant on this occasion as putting his hand up her shirt and then down her pants, digitally penetrating her vagina. Similar incidents then occurred “at least once per week”, with increasing frequency over time, until T.R.S. moved out of the house in June 2017. During most of this timeframe T.R.S. was 12 years old.

[9] T.R.S. also maintained that on one occasion the appellant came into her bedroom, lay on top of her and tried to penetrate her vagina with his penis. However, before he could do so, one of her young siblings came into the bedroom needing her diaper changed. T.R.S. then left the bedroom, and when she came back the appellant was gone. In her police statement, she described this incident as occurring on an occasion when A.R. was gone from the house for two days, having left in the middle of the night after a “big argument” with the appellant. In her trial testimony, A.R. denied that this had ever happened.

[10] T.R.S. testified that after the second or third time the appellant touched her sexually, she tried to tell A.R. what the appellant was doing, but that A.R. did not believe her and told her to stop lying. In his reasons for judgment, the trial judge summarized T.R.S.’s evidence about this disclosure as follows:

T.R.S. recalled going into her mother’s room when [the appellant] was at work following her school day and telling her mother of the assaults. Her mother’s response was to disbelieve her daughter, telling her not to lie and create drama, notwithstanding T.R.S. having provided specific details including having been fondled and digitally penetrated.

[11] T.R.S. also maintained that she also “tried to talk to CAS about whatever was happening with [the appellant]”, but that “they just dismissed it.” T.R.S. testified that the CAS worker to whom she made her disclosure told her that the CAS “weren’t here to talk about him and only my mom”.

[12] For her part, A.R. denied that T.R.S. ever came into her bedroom and alleged that the appellant was sexually abusing her. The CAS worker to whom T.R.S. said she had made a similar complaint was not identified and did not testify at trial.

B. Analysis

(1) The errors in the trial judge’s reasons

[13] The appellant’s first ground of appeal focuses on the trial judge’s treatment of A.R.’s trial testimony.

[14] Since T.R.S. described the sexual abuse by the appellant as always occurring when A.R. was either at work or asleep, A.R. could not, and did not, directly refute any of T.R.S.’s allegations of sexual misconduct by the appellant. However, A.R.’s testimony remained important to the defence because she contradicted T.R.S. on two other contested issues: (i) whether T.R.S. had disclosed the appellant’s sexual abuse to A.R. shortly after it first started; and (ii) whether there was ever a time when A.R. was away from the house for two days, which on T.R.S.’s account was when the appellant came to her bedroom and tried to have sexual intercourse with her.

[15] Although both of these disputed issues were peripheral to T.R.S.’s sexual abuse allegations, they were not entirely inconsequential. If the trial judge did not accept T.R.S.’s testimony on these points, this could have raised a doubt about the credibility and reliability of other aspects of her evidence, including her allegations against the appellant. The trial judge was obliged to consider all of the evidence, including A.R.’s testimony and the appellant’s denials, when deciding whether the evidence as a whole satisfied him of the appellant’s guilt beyond a reasonable doubt.

[16] However, the trial judge’s reasons reveal that he took the wrong analytic approach to A.R.’s evidence, compartmentalizing it from the rest of the evidence, and ultimately rejecting A.R.’s testimony because he was not satisfied beyond a reasonable doubt that it was true. He reached this conclusion in part because A.R.’s testimony was not independently corroborated.

[17] The trial judge stated:

While A.R.’s testimony attempted at almost every opportunity to contradict the evidence of T.R.S., I am skeptical of A.R.’s testimony to the extent that I am unable to be satisfied beyond a reasonable doubt on the issue of her credibility. As noted previously, corroboration of the complainant’s evidence is not required to sustain a conviction.

While I have maintained an open mind and considered all the evidence presented at trial, I am of the view that the testimony of A.R. was considered and deliberate, excusing away any possibility that T.R.S. was being truthful.

The testimony of A.R. clearly indicated her loyalty to [the appellant]. This is also reflected in the choices made by A.R. prior to the alleged offences: her choice to move across the country with [the appellant] as opposed to staying in [their original hometown] for her daughter; and her writing a letter to the police after [the appellant] was charged casting negative aspersions on her daughter.

I do not find A.R. to have been a neutral witness. This casts a doubt over the denial by A.R. of T.R.S. having gone to her initially and disclosing the sexual abuse.

In light of the above, and having not received any evidence corroborating the evidence of A.R., I am left with doubt as to the credibility of the evidence of A.R. [Emphasis added.]

[18] This passage reveals three main legal errors.

[19] First, the criminal standard of proof beyond a reasonable doubt does not apply to individual items of evidence: see e.g., R. v. Morin, [1988] 2 S.C.R. 345, at pp. 354, 359; R. v. Miller (1991), 5 O.R. (3d) 678 (C.A.), at pp. 699-701. The trial judge improperly siloed A.R.’s evidence, and seems to have then given her testimony no further consideration because he was not satisfied beyond a reasonable doubt that it was true.

[20] Second, the high criminal standard of proof applies only to the Crown’s case against the accused, and more particularly to the essential elements of the charged offences. The defence was not required to prove any contested facts even on a balance of probabilities, let alone beyond a reasonable doubt. The trial judge, however, repeatedly indicated that he was discounting A.R.’s testimony because he was “left with doubt” or not satisfied beyond a reasonable doubt about her credibility.

[21] Third, it was an error for the trial judge to treat A.R.’s evidence as requiring independent corroboration before it could contribute to a reasonable doubt: see e.g., R. v. J.R., 2022 YKCA 9, at para. 40. While the trial judge was correct to note that corroboration of T.R.S.’s evidence was not legally required, this was equally true of A.R.’s testimony.

(2) The significance of the trial judge’s errors

[22] Crown counsel fairly acknowledges that “[t]he language used by the trial judge in these passages does not reflect the proper legal standard”, and that “[t]here was no need to be satisfied beyond a reasonable doubt about A.R.’s credibility before relying on her testimony.” However, he seeks to minimize the significance of the trial judge’s misstatements, on two main bases.

(a) The potential importance of A.R.’s evidence

[23] First, Crown counsel discounts the importance of A.R.’s evidence in this case, noting that “[s]he did not have direct observations that went to the guilt or innocence of the appellant.” He also points out that defence counsel at trial (not Ms. Zita) framed his challenge to T.R.S.’s inculpatory testimony as an attack on her reliability, rather than on her credibility. For these reasons, Crown counsel contends that “A.R.’s evidence was of little significance.”

[24] I do not agree that the trial judge’s errors can be dismissed as inconsequential on the grounds that A.R.’s evidence was unimportant. While it is true that A.R.’s testimony was not determinative of the appellant’s guilt or innocence, it was still potentially capable of contributing to a reasonable doubt. Since there was no independent evidence that confirmed either T.R.S.’s allegations or the appellant’s denials, the verdict hinged on the trial judge’s assessment of their respective testimony. Crown counsel at trial urged the trial judge to accept T.R.S.’s testimony as so compelling that the appellant’s denials could be rejected, even if no “obvious flaws” in his evidence could be identified: see R. v. J. J.R. D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69. In this context, any evidence that could possibly have undermined T.R.S.’s credibility or reliability, even on peripheral points, was potentially significant.

[25] Moreover, trial counsel’s tactical decision not to challenge T.R.S.’s credibility head-on did not take the issue of her credibility entirely off the table. To find the appellant guilty, the trial judge had to be satisfied beyond a reasonable doubt that T.R.S.’s evidence was both credible and reliable. In any event, A.R.’s testimony had the potential to cast doubt on the reliability of T.R.S.’s memories, as well as on her testimonial credibility.

[26] The potential importance of A.R.’s evidence in this case is elevated by the sparseness of the trial judge’s reasons for rejecting the appellant’s denials, and for accepting T.R.S.’s evidence. The trial judge stated:

In reviewing the evidence of [the appellant], it is difficult to overlook his practice of acknowledging facts which are benign to the allegations while all else was denied with varying degrees of explanation.

However, he gave no other explanation for rejecting the appellant’s testimony or for accepting T.R.S.’s evidence, apart from his finding that he was not satisfied of A.R.’s credibility beyond a reasonable doubt.

[27] The appellant has raised the adequacy of the trial judge’s reasons as a separate ground of appeal, and also argues that the trial judge improperly reversed the burden of proof by treating the appellant’s denial of anything other than “benign” facts as a reason for rejecting his evidence: see e.g., R. v. Titong, 2021 ABCA 75, at para. 9.

[28] Whether or not these complaints rise to the level of free-standing reversible errors, the sparseness of the trial judge’s reasons for accepting T.R.S.’s evidence, and for rejecting the appellant’s testimony, weigh against the Crown’s argument that his analytic errors with respect to A.R.’s evidence were of no consequence. It is not apparent from the trial judge’s reasons that he would have viewed A.R.’s evidence as unimportant if he had considered it properly, and had not dismissed it on the grounds that he was not satisfied beyond a reasonable doubt that her testimony was true.

(b) The trial judge did not simply misspeak

[29] Crown counsel’s second argument, in effect, urges us to conclude that the trial judge did not really mean what he said in his reasons for judgment. Crown counsel notes that trial judges are presumed to know the law and observes that elsewhere in his reasons the trial judge correctly instructed himself that “individual items of evidence are not to be subjected to the standard of proof beyond a reasonable doubt, which applies to the essential elements of the offence”. Crown counsel argues that the trial judge’s reasons as a whole show that he did not reject A.R.’s testimony merely because he had a reasonable doubt about her evidence.

[30] I do not accept these arguments, for two main reasons.

[31] First, the presumption that trial judges know the law only goes so far. As this court recently observed in R. v. Morin, 2024 ONCA 562, at para. 41:

Although trial judges are presumed to know the law, this presumption does not entitle appellate courts to ignore what trial judges actually say in their reasons. A corollary of the judicial duty to give reasons is that when reasons are given, they should generally be taken seriously and at face value, as an accurate reflection of their author’s thought processes.

It is difficult to dismiss the trial judge’s repeated statements in his reasons that he was rejecting A.R.’s evidence because he had a doubt about her credibility as a mere slip of the tongue.

[32] Second, as I have already discussed, the legal errors I have identified go beyond the trial judge subjecting A.R.’s testimony to an unduly high standard of proof. It was not the defence’s burden to establish that A.R. was more believable than T.R.S., either on a balance of probabilities or beyond a reasonable doubt.

[33] Rather, to properly apply the criminal burden of proof to the Crown’s case, the trial judge had to critically assess T.R.S.’s testimony in light of the evidence as a whole, including A.R.’s testimony, even if he did not affirmatively accept A.R.’s evidence as proved to be true. The trial judge’s reasons do not show that he engaged in this essential analysis.

[34] In view of the conclusion I have reached on the appellant’s first ground of appeal against his conviction, I need not address the other grounds he raises on his conviction appeal, or deal with his sentence appeal.

C. Disposition

[35] I would accordingly allow the conviction appeal, lift the conditional stay entered on Count 1, quash the appellant’s conviction on Count 2, and order a new trial on both counts.

Released: October 31, 2024 “J.M.F.” “J. Dawe J.A.” “I agree. Fairburn A.C.J.O.” “I agree. E.E. Gillese J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The appellant was also found guilty on a charge of sexual assault, but this count was conditionally stayed pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729.