Court of Appeal for Ontario

Date: 2025-04-01
Docket: COA-23-CR-0603

Before:
Michal Fairburn A.C.J.O., Bradley W. Miller J.A., Jonathon Dawe J.A.

Between:
His Majesty the King (Respondent)
and
C.O. (Appellant)

Appearances:
Mark C. Halfyard, for the appellant
Maria Anghelidis, for the respondent

Heard and released orally: March 28, 2025

On appeal from the conviction entered by Justice Jessica Wolfe of the Ontario Court of Justice, dated March 10, 2023.

Reasons for Decision

Background

[1] This is an appeal from convictions for two counts of sexual interference. The 14-year-old complainant was the daughter of the appellant’s then partner. She did not live with her mother and the appellant. One weekend, the three of them attended a camp that had a small, 100 square foot cabin on it. The complainant testified that the appellant secretly plied her with alcohol and while her mother was sleeping in the cabin, he twice took her on his ATV to another location and had sexual intercourse with her.

Grounds of Appeal

[2] This appeal rests on two issues. The appellant argues that: (1) the trial judge erred in her analysis pursuant to R. v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.); and (2) the trial judge drew speculative inferences or materially misapprehended the evidence. For the reasons that follow, we would not give effect to these arguments.

Application of J.J.R.D.

[3] Concerning the first ground, the appellant raises three specific points. First, the trial judge’s comment that the “complainant’s evidence can tip the scales to a conviction” amounts to a misapplication of J.J.R.D. and a failure to give effect to the proper burden of proof. The appellant argues that this comment is a legally erroneous summary of J.J.R.D. The Crown argues that the trial judge was merely summarizing the Crown’s submissions. In our view, it does not matter because, when read contextually, the reasons make clear that the trial judge understood J.J.R.D. and its underlying foundation. Indeed, right before stating her final conclusion, she stated the legal principle perfectly, including that the accused’s evidence may be rejected, “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence [the complainant’s evidence]”: J.J.R.D., at para. 53.

[4] The second and third points relate to how the trial judge applied the principles in J.J.R.D. Specifically, the appellant argues that the trial judge can only use a complainant’s evidence pursuant to J.J.R.D. if her analysis was “considered and reasoned” and that in this case, the trial judge failed to conduct a “reasoned and considered” assessment of the evidence. In support of this argument, he identifies various arguments.

[5] For instance, the trial judge erred by referring to the complainant’s evidence, specifically how the appellant returned home from the camp, as peripheral. This evidence changed between the complainant’s in-chief evidence, which included a statement admitted under s. 715.1(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and her evidence in cross-examination. The appellant maintains that the complainant’s fluctuating account as to how the appellant left the camp after the sexual assaults had been disclosed was incapable of being characterized as peripheral in nature. The appellant argues that the failure to properly characterize this issue infected and undermined the trial judge’s reasoning process on J.J.R.D.

[6] We disagree. It was open to the trial judge to characterize this issue as a peripheral one, especially in light of the contextual facts that the trial judge accepted as true, including that the 14-year-old child had been plied with alcohol. The trial judge is owed deference on this finding of fact.

[7] The trial judge is also said to have erred in mischaracterizing a defence argument as a suggestion that there needed to be corroboration to accept the complainant’s evidence. We do not read the reasons this way and, in any event, the trial judge’s rejection of corroboration as being necessary created no prejudice.

Credibility and Reasoning

[8] Turning to the second issue, the appellant argues that the trial judge erred in her reasoning process when she rejected the appellant’s evidence as lacking in credibility. The respondent relies on two points. First, the trial judge found that the appellant’s ability to remember every detail of the weekend of the sexual assaults compared with his inability to remember things that happened at the camp on other weekends reflected an error of mixed fact and law. Second, the appellant also suggests it was not open to the trial judge to find that his credibility was undermined by his suggestion that he would not leave a bottle of alcohol at the camp as it may be stolen, while simultaneously deciding to leave an ATV valued at $16,000 there.

[9] In our view, it was open to the trial judge to arrive at these conclusions and to take them into account in her assessment of the appellant’s credibility. She is owed deference on these points.

Fresh Evidence

[10] Finally, the appellant seeks the admission of fresh evidence, specifically relating to the fact that he purchased a battery for his ATV almost two months after the alleged offence date. Leaving aside due diligence, we do not see this evidence as sufficiently probative that it could reasonably, when taken with the other evidence at trial, be expected to have affected the result: R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 99. One of the disputed issues at trial was whether the ATV was operable at the time of the incident in early June 2020. The evidence that he bought a new battery in late July sheds no light on this issue and falls short of the test for fresh evidence set out in R. v. Palmer, [1980] 1 S.C.R. 759.

Disposition

[11] The appeal is dismissed.

“Michal Fairburn A.C.J.O.”
“Bradley W. Miller J.A.”
“Jonathon Dawe J.A.”

Publication Ban

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