Court of Appeal for Ontario

Date: 2025-05-13
Docket: COA-24-CR-0205

Coram: B.W. Miller, D.A. Wilson, R. Pomerance JJ.A.

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

Appearances:
Nate Jackson, for the appellant
Andrew Cappell, for the respondent

Heard: 2025-04-24

On appeal from the conviction entered on July 10, 2023 by Justice M.J. Lucille Shaw of the Superior Court of Justice, with reasons reported at 2023 ONSC 3985.

Reasons for Decision

Introduction

[1] The appellant was convicted of sexual assault and sexual interference on his daughter, S., who was seven years old at the time of the offences. He appeals his convictions. He argues that the trial judge unevenly scrutinized the evidence led by Crown and defence, and that she failed to properly apply the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742, to the appellant’s girlfriend’s evidence. We dismissed the appeal for reasons to follow. These are those reasons.

Background

[2] The appellant and S.’s mother, M.D., separated in 2013. S. lived primarily with her mother, but the appellant had weekend parenting time. On January 1, 2020, S. was spending the weekend with her father at his apartment. They shared a bed. She testified that while she was in bed, the appellant pulled her pyjamas down. She heard a rustle as he took his own pyjamas down, and then she felt his penis against her buttocks and then between her legs close to her vagina. She asked the appellant why he took her pyjamas down and he responded that he had not.

[3] The appellant denied pulling the complainant’s pyjama pants down. He testified that she must have dreamed the incident. The complainant testified that, when she first became aware of the sexual touching, she felt as though she was half asleep. However, she maintained in her evidence that she was awake when the event occurred, and that it was not merely a dream.

[4] The appellant also took the position that M.D. coached the complainant to fabricate the incident, because of her ongoing animus toward him. The trial judge rejected that suggestion. She found that the evidence did not bear it out, including that given by M.D. at trial.

[5] The trial judge believed the complainant’s testimony. She found that the event occurred as the complainant described it, that she was awake at the time it occurred, and that the appellant’s testimony did not raise a reasonable doubt. She therefore found the appellant guilty of sexual interference and sexual assault, and conditionally stayed the latter conviction under R. v. Kienapple, [1975] 1 S.C.R. 729.

Uneven Scrutiny

[6] Uneven scrutiny is a “notoriously difficult argument to prove”, given the level of deference owed to the trial judge’s factual findings: R. v. G.F., 2021 SCC 20, para 99.

[7] The appellant has failed to demonstrate such an error in this case. The trial judge carefully considered the various inconsistencies in the complainant’s testimony and that of the appellant. Her reasons do not disclose that she was more stringent or exacting in evaluating the appellant’s evidence.

[8] The crux of the appellant’s position is that the trial judge considered the appellant’s evidence as confirming the complainant’s account but did not consider the complainant’s evidence as confirming the appellant’s account.

[9] It was open to the trial judge to find that the appellant confirmed the complainant’s account because he testified that she complained that her pyjama pants were being pulled down. That is consistent with what the complainant described in her evidence.

[10] But the complainant’s testimony did not confirm the exculpatory features of the appellant’s. The appellant testified that the complainant was asleep and dreamed the incident. He claimed that she must have been talking in her sleep when she said what she did. The complainant gave a different account. She claimed that she felt half-asleep when she first became aware of the assault, but was adamant that she was awake at the time, and not dreaming as the appellant suggested. The complainant’s evidence neither confirmed nor corroborated the appellant’s testimony on the material issue of whether she was asleep or awake at the time she perceived the assault. This was a finding that was open to the trial judge to make.

[11] While the trial judge noted that there were some inconsistencies in S.’s evidence, particularly her testimony that she was half-asleep when the assault began, she accepted her evidence that she was awake when the assault occurred and that she recalled the appellant’s actions and his comments to her. Those findings were available to her on the evidence, and she gave cogent reasons for making them, which are entitled to deference from this court.

W.(D.)

[12] We are similarly unpersuaded that the trial judge erred in her W.(D.) analysis. The trial judge instructed herself extensively on the W.(D.) framework. She concluded, after a thorough review of the appellant’s evidence, that it did not leave her with a reasonable doubt. In so concluding, the trial judge considered “the totality of the evidence”, including the appellant’s girlfriend’s evidence. The trial judge did not, as the appellant argues, remove that evidence from the pool of defence evidence capable of raising a reasonable doubt. This ground of appeal fails.

Disposition

The trial judge gave careful, comprehensive, and cogent reasons setting out the governing legal principles and the bases for all of her findings. The task of an appellate court is not to finely parse the trial judge’s reasons in a search for error. It is to assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way so as to permit effective appellate review: R. v. G.F., 2021 SCC 20, para 69.

[13] The reasons in this case disclose no basis for appellate intervention.

[14] The appeal is therefore dismissed.

“B.W. Miller J.A.”
“D.A. Wilson J.A.”
“R. Pomerance J.A.”

Publication Ban

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