Court of Appeal for Ontario

Date: March 13, 2025
Docket: COA-24-CR-0608
Before: Janet Simmons, R. Pomerance, B.W. Miller JJ.A.

Between:
His Majesty the King (Respondent)
and
T.A. (Appellant)

Appearances:
Robert J. Reynolds, for the appellant
Andrew Cappell, for the respondent

Heard: February 27, 2025

On appeal from the conviction entered on September 13, 2023, by Justice Kristin Muszynski of the Superior Court of Justice, with reasons reported at 2023 ONSC 5150.

Reasons for Decision

Simmons and Pomerance JJ.A.:

[1] Following a judge alone trial, the appellant was found guilty of four counts of sexual assault, three counts of incest and one count of sexual interference in relation to his biological daughter.

[2] The complainant asserted that the offences occurred when she was between 6 and 12 years old and started with sexual touching. She reported the events in December 2020 about a week after a recent incident of sexual touching over her clothes. She was 15 when she testified at trial. Her December 2020 police statement was admitted into evidence under s. 715.1 of the Criminal Code (the “s. 715.1 statement”).

[3] At trial, the complainant adopted the s. 715.1 statement and also gave evidence about the events. She described three specific incidents of sexual intercourse as well as the most recent incident of sexual touching over her clothing. She said two of the incidents of sexual intercourse occurred in the downstairs bathroom of the family home and one occurred in the upstairs bathroom. She could not recall whether the recent incident of sexual touching occurred in her room or her parents’ room, but both rooms were downstairs.

[4] The appellant did not testify at trial.

[5] The appellant focused on two issues in oral argument.

1. Alleged Misapprehension of Evidence

[6] First, he alleged that the trial judge misapprehended the evidence in stating at para. 30 of her reasons that, “[i]n total, [the complainant] testified that her father had sexual intercourse with her approximately 7-8 times.” The appellant asserted that, in fact, the substance of the complainant’s evidence was that, during the period between 2017 and 2020, her father had intercourse with her “every day or every week or so” – in other words, on 100, or even more, occasions. The appellant submitted that as a result of this misapprehension, the trial judge failed to grasp and grapple with the implausibility of the complainant’s assertion in the context of what the trial judge accepted was an extremely busy household.

[7] We do not accept this submission.

[8] It is helpful to begin by referring to the entirety of para. 30 of the trial judge’s reasons:

In total, [the complainant] testified that her father had sexual intercourse with her approximately 7-8 times. The sexual touching, over the clothes, went on for a few years. In her video statement, [the complainant] reported initially that the abuse happened “every day” but then corrected herself and said that it happened “every week or two”.

[9] The appellant alleges that the trial judge’s finding that the complainant’s father had sexual intercourse with the complainant approximately 7-8 times reflects a misapprehension of the evidence. However, in this portion of her reasons, the trial judge was not making findings, she was merely reciting the complainant’s evidence.

[10] When asked during her examination in-chief how many times her father had had intercourse with her, the complainant responded, “I don’t know.” She then agreed it was more than five times. When asked for a number she would be comfortable saying it was at least that many, the complainant said, “seven, eight maybe.” This evidence supported the trial judge’s statement in the first sentence of para. 30 of her reasons that the complainant “testified that her father had sexual intercourse with her approximately 7-8 times.”

[11] Moreover, it is important to note that the complainant never stated, in her trial testimony, that the abuse took place once weekly for many years. In the portion of the complainant’s s. 715.1 statement that the trial judge appears to be referring to in the last sentence of para. 30, the complainant was merely repeating to the police what she had told her boyfriend, namely, that the appellant “had been raping [her] for the past couple of years” and it had been “going on off and on every day basically or like every week or so.” When that portion of the complainant’s s. 715.1 statement was put to her in cross-examination and the suggestion was made to her that, “in fact, it wasn’t that frequent, your memory was a bit wrong about that, wasn’t it”, the complainant said, “yeah, but I did say like every week.”

[12] Later, in the complainant’s s. 715.1 statement, the following exchange took place:

Officer: Okay, a few minutes ago you said this happened pretty much weekly, is that–
The complainant: Kind of, yeah.

The officer then asked if there was ever anything that stood out that prompted “it” to happen, without clarifying what “it” meant or what the complainant intended when she said “kind of”.

[13] The complainant’s evidence in her s. 715.1 statement about what she said to her boyfriend was not a testimonial assertion. Rather, it was simply a reference to an out-of-court statement she had made, i.e., what she told her boyfriend. The complainant’s subsequent answer in her s. 715.1 statement was unclear.

[14] Perhaps more importantly, trial counsel for the appellant (not Mr. Reynolds) did not cross-examine the complainant on the apparent inconsistency between what she told her boyfriend and what she said in her trial testimony or attempt to clarify the complainant’s subsequent answer in her s. 715.1 statement. Nor did trial counsel argue that the trial judge had to resolve any apparent inconsistency between the complainant’s s. 715.1 statement and her trial testimony. It is therefore not surprising that the trial judge described the complainant’s evidence in the way that she did.

[15] It is unclear whether the trial judge treated the complainant’s description in her s. 715.1 statement of what she said to her boyfriend as a prior out-of-court statement or as a testimonial assertion. However, the fact remains that the statement about abuse once a week – whether treated by the trial judge as an out-of-court statement or as a testimonial assertion – does not detract from the validity of the trial judge’s subsequent factual findings made in the analysis section of her reasons. The trial judge was alive to the fact that the complainant could not be certain of the precise number of incidents of abuse. She stated the following in para. 56:

56. [The complainant] had challenges testifying about dates and time. When pressed by defence counsel, she estimated that one of the incidents of sexual intercourse lasted about 20 minutes while another lasted less than 30 minutes. The defence submits that it is implausible that an assault of this nature would last that long. [The complainant] very reluctantly offered estimates of time. Her testimony may not have been entirely reliable as to the duration of the assaults. Similarly, [the complainant] did not have a good sense of how many times the assaults took place. She could not recall whether the most recent assault took place in her bedroom or her parents’ bedroom. She could not situate the assaults in specific years or seasons. To the extent that [the complainant’s] memory is unreliable, I find it is on peripheral details. I am not troubled by [the complainant’s] inability to date and timestamp each assault. This is not unexpected or uncommon when abuse has been ongoing for years. [Emphasis added.]

[16] We see no error in the above passage. The trial judge adverted to the complainant’s uncertainty on some issues, including the number of incidents of abuse. It was clearly open to the trial judge to find that, despite the uncertainty, the appellant’s guilt had been proved beyond a reasonable doubt. This is particularly so, given that the incidents occurred when the complainant was a child. As noted by the trial judge, a lack of precision as to times and dates and the number of occurrences is not unusual in these circumstances, particularly when the abuse has continued for years. The trial judge undoubtedly addressed the appellant’s arguments about implausibility based on her findings of fact. She noted that there was evidence demonstrating that the appellant and the complainant were alone on occasion and further, that the complainant’s evidence was that the abuse took place behind closed doors. The appellant has failed to demonstrate that the trial judge misapprehended the evidence and this ground of appeal must fail.

2. Use of s. 715.1 Statements

[17] We close with the observation that care must be taken in assessing the scope of the admissible evidence when s. 715.1 statements are introduced into evidence. Section 715.1 statements are themselves an exception to the traditional rules of evidence, which generally foreclose admission of out-of-court statements. However, the use of this exception does not displace all other rules of admissibility. Because these statements are taken outside of court, most often by non-lawyers, questioners may be less concerned with the strict rules of admissibility. Where such statements are introduced, care must be taken to identify those utterances that are and are not proper testimonial assertions. Section 715.1 does not make admissible evidence that would be inadmissible were the child testifying in court.

[18] In this case, as we have said, the complainant’s evidence of what she said she told her boyfriend was not a testimonial assertion admissible for the truth of its contents. It was evidence of a prior out-of-court statement, i.e., a hearsay utterance not admissible for its truth. Nor was it admissible as a prior consistent statement (to the extent of any consistency). It might have been admitted as part of the narrative but, in that instance, the content of the statement would not be necessary. It might also have been used by defence counsel at trial to cross-examine on as a prior inconsistent statement, but that did not happen in this case. To do so, it would have been necessary that trial counsel draw the complainant’s attention to both her trial evidence and that portion of the out-of-court statement giving rise to the alleged inconsistency.

3. Surveillance Camera and Implausibility

[19] Second, the appellant submitted that the trial judge failed to recognize and address the significance of the evidence that, to the knowledge of the appellant, there was a surveillance camera pointing down the hallway to the main floor bedrooms and bathroom of the family home. This, he asserted, added to the implausibility of the complainant’s allegations because of the unlikelihood that the appellant would have committed the offences knowing of the presence of the camera.

[20] We do not accept this submission. Much of the force of the appellant’s argument about implausibility falls away given our rejection of the appellant’s first ground of appeal. All but one of the specific incidents the complainant described occurred downstairs in the family home rather than on the main floor. In any event, it would be speculative to conclude that the appellant would refrain from engaging in behaviour behind closed doors because of the presence of a camera without a view behind those doors.

4. Complainant’s Vivid Recall and Credibility

[21] The appellant raised a third issue in his factum, namely, that the trial judge erred by relying on the complainant’s vivid recall of certain details as enhancing her credibility when such details included matters well within her knowledge, for example, the description of a yellow plastic chair in one of the bathrooms where she alleged assaults occurred.

[22] We do not accept this submission. The trial judge’s focus in relation to the specific example was the complainant’s recollection of sitting in the chair, rather than the chair itself. The trial judge gave other examples, such as the complainant’s recollection that the appellant was wearing work boots and jeans during one of the assaults and her recollection that one of her legs remained in her tights during another assault. We see no error in the trial judge relying on the complainant’s vivid recollection of these types of details as part of her credibility assessment.

Disposition

[23] Based on the foregoing reasons, the appeal is dismissed.

Released: March 13, 2025

“J.S.”
“Janet Simmons J.A.”
“R. Pomerance J.A.”
“I agree. B.W. Miller J.A.”

Publication Ban

[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 sexual assault charges were subsequently conditionally stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729; R. v. T.A.A., 2024 ONSC 1350.