Court of Appeal for Ontario

Date: 2025-06-03
Docket: COA-22-CR-0245

Coram: Simmons, George and Pomerance JJ.A.

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

Counsel:
Howard L. Krongold and Michelle Psutka, for the appellant
Stephanie A. Lewis, for the respondent

Heard: 2025-02-26

On appeal from the convictions entered on August 9, 2022 by Justice Michelle O’Bonsawin of the Superior Court of Justice.

J. George:

Overview

[1] The appellant was found guilty of five counts of sexual assault and four counts of sexual interference. The trial judge found that the appellant began to sexually abuse his stepson, N.J.L., when he was eight or nine years old. N.J.L did not report the abuse until he was 18 years old, after his girlfriend E.B. told him that she had witnessed the appellant touching him in a sexual manner while he was asleep.

[2] The incident that E.B. said she witnessed occurred during a family trip to Toronto, while she and N.J.L. were sharing a bed. At trial, N.J.L. testified about other instances of sexual abuse which took place in their family home and while on a trip to Kingston when he was in high school.

[3] The appellant appeals his convictions. He argues that the trial judge (1) erred by failing to consider his mixed out-of-court statements, and (2) erred in finding that the Crown witnesses had “corroborated” each other. If the appeal is allowed the appellant seeks a new trial.

Evidence at Trial

[4] The appellant and N.J.L.’s mother, C.J., began dating in 2009 when N.J.L. was about eight years old. Soon after they moved in together.

[5] N.J.L. testified that the first incident of sexual touching occurred while the family lived at a residence in Orleans. He did not remember the time of year but recalled awaking to find the appellant standing beside his bed. He said that the appellant stroked his penis, and tried to have him stroke the appellant’s penis by placing his hand on it. N.J.L. pretended to be asleep and did not recall if the appellant had ejaculated.

[6] N.J.L. testified about two specific incidents of sexual touching after the family had moved to a different home in the Ottawa area. He could not recall how old he was. On one occasion he was asleep in a sleeping bag in his bedroom when he was awoken by the appellant unzipping the bag. N.J.L. testified that the appellant put his hand inside his boxers and stroked his penis. Again, N.J.L. pretended to be asleep. On another occasion N.J.L. recalled sleeping with his younger brother, C.S., in C.S.’s bed. N.J.L. testified that he awoke to find the appellant kneeling beside the bed, and that he reached inside his boxers and stroked his penis. Once again, N.J.L. pretended to be asleep. C.S. did not awake.

[7] N.J.L. testified that while there were approximately fifteen similar incidents in this home, a lot of them blended together and that only the two incidents described above could be “[made] out into … an actual … memory”.

[8] In 2016, N.J.L. and the appellant took a “boys’ trip” to Kingston. N.J.L testified that after go-karting and hitting baseballs in a batting cage the two consumed alcoholic beverages in their hotel room. N.J.L. said that the two eventually went to sleep in separate beds. At some point he awoke to movement in his bed. He testified that the appellant got under the blankets, sat on his legs, pulled down his boxers, and began to stroke his penis. He said that while doing this the appellant was holding what appeared to be a cell phone light under the sheets. N.J.L. testified that the appellant performed oral sex on him, which lasted for approximately five to ten minutes.

[9] During examination in chief, N.J.L. testified that the Kingston trip was the only time that the appellant had performed oral sex on him. When cross-examined N.J.L. was confronted with his police statement in which he said there was more than one incident of oral sex. N.J.L. explained that there were indeed other occasions but that he could only recall details about the Kingston trip. When confronted with his preliminary hearing testimony, where he indicated oral sex had only occurred during the Kingston trip, N.J.L said that he was embarrassed and was holding back details at the preliminary hearing. He apologized and said that he “should have been open and honest”.

[10] N.J.L. did not remember much about the Toronto incident. He did recall that the appellant, C.J., E.B., C.S. and his uncle all made the trip. They rented a three-bedroom Airbnb. N.J.L. and E.B. shared a bedroom as did the appellant and C.J. The bedrooms and the bathroom were all in a row in one hallway. After spending the day together everyone retired to the Airbnb. C.J. and E.B. went to bed first while N.J.L., his uncle, and the appellant stayed up and consumed alcohol. N.J.L. said that he went to bed around 3 a.m. He testified that he was awakened by E.B., who was crying. E.B. told him that she saw the appellant in their room and that he was touching him under the blankets. N.J.L. was still intoxicated. N.J.L. told E.B. that he believed her and that this was not the first time it had happened.

[11] E.B. testified about the Toronto trip. She recalled going to bed before N.J.L. She awoke in the middle of the night to find N.J.L. naked in their bed. While she was facing N.J.L.’s back in a spooning position, she saw the appellant kneeling on the ground beside the bed. She testified to seeing the appellant reach his hand under the sheets towards N.J.L.’s genitals. While she could not see the appellant’s hands she could see movement under the sheet which she described as back and forth rubbing. She believed the appellant was touching N.J.L.’s penis. She said it lasted five to ten minutes before he left their bedroom, and that she pretended to be asleep. E.B. testified that she attempted to awaken N.J.L. by pinching him in the back. He did not wake up.

[12] E.B. went out into the hallway and then into the bathroom where she found the appellant crouching over the toilet. E.B. said she confronted the appellant about what she had just observed. She was emotional and maybe crying. According to E.B. the appellant said that he felt he was going to throw up and had mistakenly entered their bedroom, believing it was the bathroom, and that he took a break in their room to regain energy. Later, after E.B. had returned to her bedroom, the appellant knocked on the door and told E.B. that he had not done the things she said he had. She asked to see his cell phone. Her testimony made clear that she thought the appellant may have used it to take photographs.

[13] C.J. overheard their conversation and joined them. E.B. was emotional and crying at the time. After N.J.L. finally awoke he asked to speak with E.B. in their room. When alone, N.J.L. consoled E.B. and told her that he believed her.

[14] Later that morning the appellant drove everyone except C.J. back home. C.J. remained in Toronto to visit a friend. The next day, after C.J. returned home, E.B. discussed the incident with N.J.L., C.J. and the appellant. E.B. explained how the appellant came into her and N.J.L.’s bedroom and sexually touched him. E.B. testified that during this conversation the appellant “would have told the same story” as he did in Toronto.

[15] C.J. testified. She believed that the appellant was a great stepfather and that he had a great relationship with N.J.L. She recalled that on the night in question she did not stay up very late and that when she went to bed neither the appellant nor N.J.L. was intoxicated. She woke up between 5:30 a.m. and 6 a.m. when the appellant entered their room and then left; she could hear someone crying. She exited the room to find that it was E.B. crying. The appellant said something along the lines of “she’s accusing me of being a creep”. The appellant told C.J. that he left the bedroom to go throw up, that he went into E.B. and N.J.L.’s room thinking it was the bathroom, and that while in their room he laid down on the ground. According to C.J., E.B. was so shaken she had difficulty saying anything. C.J. advised that at the time she believed the appellant but could not make sense of E.B.’s reaction.

[16] As noted earlier, C.J. remained in Toronto when everyone left to return home. On her return she, N.J.L., E.B. and the appellant discussed the incident at the dining room table. The appellant explained that he mistakenly entered N.J.L. and E.B.’s bedroom thinking it was the bathroom. E.B. responded that she saw the appellant touch N.J.L. “down there”, which was the first time C.J. had heard these details. She was in shock. She also recalled the appellant mentioning certain details that “may have come later” after providing his initial explanation, specifically that he “had been at the side of the bed and had touched the blankets”. N.J.L. later asked to speak with C.J. in private when he told her about the other incidents of sexual touching over the years.

[17] The appellant testified. He denied ever engaging in sexual acts with N.J.L. With respect to the Toronto incident, the core aspect of his explanation remained that he ran out of his room to go to the bathroom to throw up and mistakenly entered E.B. and N.J.L.’s bedroom. The bedrooms and the bathroom were on the same side of the Airbnb apartment, and the doors looked the same and opened in the same direction. The appellant further testified that, while in E.B.’s and N.J.L.’s bedroom, he fell to his knees with his face in his hands trying not to throw up. He unsuccessfully tried to get up on more than one occasion. Once he was able to collect himself he went into the bathroom where he dry heaved before throwing up a couple of times. In cross-examination, the appellant stated that he was half a foot away from the bed, had his elbows on the floor, and was staring at his own hands the whole time. He said he never put his hands on the bed in E.B.’s and N.J.L.’s room and that he never touched N.J.L.

[18] The appellant was confronted by E.B. in the bathroom. He testified that she asked what he was doing in their bedroom and asked to see his phone. He explained that he thought he was going to be sick and thought their bedroom was the washroom. He assumed that she wanted to see if he had taken photos. He told her he did not have his phone and that it was charging on the nightstand in his bedroom. After E.B. left, he freshened up, had a glass of water, and went to knock on her door. He asked if she was okay and she responded that she wanted to see his phone. He testified that he did eventually retrieve his phone and attempted to provide it to E.B., but she refused to take it. C.J. joined them and he asked her to go through the phone. He explained to C.J. that E.B. was accusing him of being a creep but that he walked into their bedroom thinking he was going to throw up and then made his way to the washroom. He said that E.B. was not crying or yelling and that “she appeared more annoyed, or pissed off”.

[19] When the family met at home the following day, the appellant explained that he woke up feeling sick and while attempting to find the bathroom entered the wrong room. He was on his knees and elbows with his face in his hands trying to control his breathing so he would not throw up on the floor. E.B. said that was not correct, and that the appellant went into their bedroom and touched N.J.L. The appellant was upset and accused E.B. of lying.

Decision Below

[20] The Crown brought a cross-count similar fact application, which the trial judge dismissed. She held that the earlier incidents alleged by N.J.L. were not sufficiently proximate to the Toronto incident and that the conduct alleged was not sufficiently distinctive.

[21] The trial judge found that N.J.L. testified in a forthright manner, did not exaggerate, and that most of the inconsistencies in his evidence were peripheral, except for his testimony at the preliminary hearing that there was only one instance of oral sex (in Kingston). Despite this inconsistency, the trial judge accepted his evidence.

[22] The trial judge accepted E.B.’s evidence. She found that while there were some inconsistencies in E.B.’s testimony they were minor, and that E.B. was unshaken about what she saw in her and N.J.L.’s bedroom.

[23] The trial judge found that the appellant testified in a “forthright manner” and was categorical about never having touched N.J.L. for a sexual purpose. In the end, however, she rejected his testimony and found that it did not raise a reasonable doubt. With respect to the Toronto incident, the trial judge found that the appellant’s evidence was “questionable” in two ways: (1) she found the appellant’s claim to have never touched the bed while in N.J.L.’s room, when he made several attempts to gather himself and get up from the floor, to be unbelievable, and (2) she disbelieved the appellant’s testimony that E.B. appeared more annoyed or “pissed off” when she confronted the appellant, preferring E.B.’s (and C.J.’s) evidence that she was crying and distraught.

Discussion

Appellant’s Mixed Out-of-Court Statements

[24] The appellant submits that the trial judge erred by failing to consider his mixed out-of-court statements. Relying on R. v. Bagherzadeh, 2023 ONCA 706, the appellant argues that his utterances to E.B. and C.J. as to why he went into E.B. and N.J.L.’s room, both at the Airbnb and when discussing the matter after returning home, were admissible for their truth. He contends that the trial judge failed to recognize this. He highlights this sentence in the trial judge’s reasons, when she is discussing general legal principles applicable to the assessment of evidence: “prior consistent statements of a witness are not admissible for their truth.”

[25] According to the appellant, after rejecting his in-court testimony, the trial judge should have gone on to consider whether his out-of-court statements were capable of raising a reasonable doubt. In his view, this could have had an impact on the outcome because the two “questionable” aspects of his in-court testimony were not part of and did not relate to his out-of-court statements. Further, because the out-of-court statements were made immediately after being confronted by E.B., the appellant argues that they were “near contemporaneous” and could rehabilitate those aspects of his in-court testimony that were rejected by the trial judge.

[26] The respondent does not dispute that the appellant’s utterances to E.B. and C.J. were both inculpatory and exculpatory: he confirmed his presence in N.J.L’s room at the time of the alleged assault, but provided an exculpatory reason for why he was there (i.e., he mistakenly thought it was the bathroom). The appellant’s statements to his family when they met and discussed this matter the following day at their dining room table were also mixed. Because these statements were tendered by the Crown they were substantively admissible both for and against the appellant, even though the appellant testified: Bagherzadeh, at paras. 24 and 50.

[27] The use of a mixed statement “depend(s) on…the specific inferences sought to be drawn from the evidence”: Bagherzadeh, at para. 53. While it need not fall into one of the exceptions to the exclusion of prior consistent statements, it is subject to oath-helping concerns. That is to say, the trier-of-fact cannot rely on the accused’s mere repetition of the statement or use the out-of-court statement as independent verification of their in-court testimony: Bagherzadeh, at paras. 27, 40 and 52.

[28] This court in Bagherzadeh, at paras. 55-56, without purporting to be exhaustive, outlines two ways in which mixed out-of-court statements can be used. One is “to rely on the statement for the truth of its contents, either to assess the inculpatory part of the mixed statement or to consider the statement as a whole.” An example would be where the inculpatory aspect and the exculpatory aspect need to be understood together to avoid unfairness to the accused. The second type of use relates to the declaratory aspect of the statement “because of the context in which it was uttered”. The statement could, for example, serve “as evidence of the reaction of the accused to the accusation and as proof of consistency”: Bagherzadeh, at para. 56, quoting R. v. Edgar, 2010 ONCA 529, para 72.

[29] The appellant’s submissions invite us to consider both types of uses and assert that the trial judge’s failure to consider such uses constitutes reversible error.

[30] While Bagherzadeh required the trial judge to consider the appellant’s mixed out-of-court statements for the truth of their contents, I am not persuaded that her failure to expressly advert to this in her reasons gives rise to reversible error in the circumstances of this case.

[31] As a starting point, the appellant did not advance these submissions at trial. Further, contrary to the appellant’s submissions on appeal, the trial judge was not required to consider such statements in a piecemeal fashion; rather, she was required to take them into account as part of her assessment of all the evidence. Here, any substantive use of the exculpatory aspects of such out-of-court statements could not be divorced from the evidence as a whole. The declaratory value of such statements was so limited it is unsurprising that the trial judge failed to expressly address it.

[32] On the substantive use of the mixed out-of-court statements, at first blush this case engages a key reason why mixed out-of-court statements should be admissible for their truth when adduced by the Crown; as explained in Bagherzadeh, at para. 45, an accused’s in-court evidence may suffer testimonial flaws that do not bear on the reliability and credibility of their out-of-court statement.

[33] However, the trial judge did not reject the appellant’s explanation for his presence in E.B. and N.J.L’s room because of testimonial flaws that were unrelated to what he had said earlier. She did so because she did not believe his version of events. In other words, her concerns with the appellant’s evidence went to the substance of his denials. She found that “some of [the appellant’s] evidence about what occurred in Toronto is questionable. This evidence related to important facts related to what occurred in that bedroom in Toronto.” As mentioned earlier, in light of the appellant’s claim that he had fallen onto the bedroom floor, near the bed, and that he had made multiple attempts to get up, the trial judge found his evidence that he did not touch N.J.L.’s bed to be “not believable”.

[34] I disagree that the specifics of how the appellant fell and attempted to get up, and his positioning in relation to the bed, were peripheral details, the rejection of which still left open the possibility that the core of his explanation could give rise to a reasonable doubt. Where an accused testifies, the point of cross examination is to test their version of events, often by eliciting details not present or not clear in their initial explanation. The fact that their initial explanation had been provided in an out-of-court statement does not mean a trial judge cannot reject the core of that explanation based on details that only came to light during their in-court testimony. A trial judge is obliged to consider the totality of the evidence, including how these details would affect the reliability and credibility of the core of the accused’s explanation. Bagherzadeh does not change this: see para. 51.

[35] Notably, the appellant does not argue that his out-of-court statements contain substantive elements not present in his in-court testimony. As Bagherzadeh notes at para. 56, “the relevancy of the truth of the contents of the prior consistent statement may be functionally eclipsed by the subsequent consistent in-court testimony of the accused”.

[36] I turn now to the second type of use explained in Bagherzadeh, i.e., the declaratory use.

[37] The appellant does not suggest that his utterances to C.J. and E.B. outside E.B. and N.J.L.’s bedroom were contemporaneous enough to enhance his credibility. Nor is this arguable. On the appellant’s own evidence, he had the opportunity to “freshen up” by having a glass of water, knock on E.B.’s bedroom door, and head back to his own bedroom to retrieve his phone, all before returning to speak to E.B. and subsequently C.J. The appellant then provided a more detailed account of what he claimed transpired while he was in the bedroom (being on the floor attempting to control his breathing and then trying to get up) the following day at the dining room table.

[38] While the admissibility of mixed statements under Bagherzadeh does not need to fit into an exception to the exclusion of prior consistent statements (at para. 40), the underlying rationales of these exceptions can help assess the probative value of the statement when an accused’s proposed use of the statement aligns with an exception. I note that to qualify as an excited utterance, the circumstances of a statement must suggest “a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction”: R. v. Camara, 2021 ONCA 79, para 85.

[39] The appellant’s initial utterances to E.B. in the bathroom were likely an instinctive response made while potentially still intoxicated, but their probative value is undermined by the fact that neither E.B.’s allegation nor the appellant’s response at the time appears to have mentioned the touching of N.J.L.’s penis. An unspecific allegation would not dominate the mind to the same extent as a pointed and accurate one. The appellant’s own evidence on the exchange in the bathroom indeed indicates that E.B. asked only why he was in the bedroom and he provided only a general explanation without any account of how he ended up on the floor beside the bed:

A. While I am throwing up, [E.B.] comes in and she asks me what was I doing in her bedroom. I explained, I thought I was going to be sick, I thought it was the bathroom, here I am, I found it.

Q. Then what happens?

A. Then – then [E.B.] asks for me to give her, her phone - for me to give her my phone.

And, I tell her that I don’t have it on me, while pointing at my torso, saying I’m wearing – showing that I’m wearing boxers. There’s nowhere to put a phone, and then I let her know that my phone is in the – my bedroom charging.

Q. Does she tell you why she wants to see your phone?

A. She does not.

[40] E.B. initially testified that when she went to speak with the appellant in the bathroom she told him that she “had seen his hand under the sheet” and asked, “why he was in [her and N.J.L’s] room”. However, she was later confronted with her answer at the preliminary inquiry: “At that moment I don’t think that I had accused him exactly of having committed the touching, maybe I was crying, so I think – I think I was at that moment I had gone back to my room.” She also agreed that what she told C.J. on the day of the incident “wasn’t clear” but said that C.J. “understood that [the appellant] had touched [N.J.L.] sexually.” On this point, the trial judge observed that E.B. “was unsure about the sequence of events at times during her testimony.”

[41] Crucially, the lack of detail in E.B.’s initial allegation was a feature highlighted by trial counsel in her closing submissions. She pursued a theory of collusion, arguing that the appellant thought E.B. was accusing him of being “a creep” because he had taken photos on his phone, and that the allegation of sexual touching came out for the first time the following day at the dining room table.

[42] If the most damning aspect of the allegation indeed crystalized some time after the general tenor of the allegation was first conveyed, the passage of time would have allowed the appellant to reflect on and adjust his explanation. I note also that the initial explanation provided by the appellant in the bathroom was a generalized account that was largely confined to what he was doing at the very moment of the confrontation – throwing up in the bathroom. In these circumstances, the out-of-court statements had limited probative value.

[43] Given the extensive evidence about what transpired immediately following the alleged sexual assault in Toronto, and given the focus of counsel’s closing submissions, the trial judge was well aware of the circumstances in which the appellant provided his prior statements.

[44] I would reject this ground of appeal.

“Corroboration” of Crown Witnesses

[45] The appellant argues that the trial judge erred either by finding that the Crown witnesses corroborated one another through prior consistent statements, or alternatively, by relying on evidence equally consistent with competing accounts as confirmatory evidence to prefer one account over the other. The appellant cited several examples of the trial judge improperly using the term corroborate:

• After noting inconsistencies in N.J.L.’s evidence about the number of instances of oral sex, the trial judge found that N.J.L. was truthful in reporting the sexual abuse, as his evidence was clear, detailed, and “somewhat corroborated” by E.B. and C.J.
• The trial judge noted that N.J.L.’s evidence “regarding what took place after the return from Toronto was corroborated” by E.B. and C.J.
• The trial judge found E.B.’s evidence “regarding certain issues of what occurred in Toronto” to be “corroborated” by C.J., and that her evidence about “what occurred after they returned from Toronto” by N.J.L. and C.J.
• During her W.(D.) analysis, the trial judge accepted the evidence of the Crown witnesses, stating that “[m]uch of their evidence corroborated what the other[s] testified to regarding the events in Toronto”.

[46] According to the appellant, once the trial judge dismissed the Crown’s similar fact application there was no evidence corroborating N.J.L.’s account of the abuse, nor E.B.’s claim to have witnessed a sexual assault in Toronto. In other words, N.J.L.’s testimony was the only evidence of the historical sexual abuse, and E.B.’s testimony the only evidence of the alleged sexual assault in Toronto. E.B.’s and C.J.’s testimony about the historical abuse was essentially N.J.L.’s prior consistent statements, which could not have been used to corroborate his evidence. Nor could N.J.L.’s or C.J.’s testimony about the alleged sexual assault in Toronto, which consisted essentially of evidence of prior consistent statements made by E.B., corroborate E.B.’s evidence.

[47] As is well established, a witness’s prior consistent statement is not an independent source nor is it capable of confirming the witnesses’ veracity: R. v. Casarsa, 2023 ONCA 826, para 12; R. v. Zou, 2017 ONCA 90, para 41.

[48] When a trial judge’s use of the term “corroboration” is challenged on appeal a contextual reading of the reasons must be undertaken to assess whether the trial judge used that term in its legal technical sense or whether it was meant to convey that some feature of a witness’s evidence was confirmed or supported by other evidence. See Zou, para 42; R. v. Brown, 2022 ONCA 417, para 15; R. v. D.A., 2018 ONCA 612, para 17.

[49] In my view, upon a complete and contextual reading of the trial judge’s reasons it is clear that she did not use the term in its technical legal sense. First of all, as corroboration is not required in order to find someone guilty of sexual assault there was no reason to invoke the technical legal concept; and second, because evidence cannot lie somewhere between satisfying and not satisfying the requirements of corroboration, the word “some” would be an odd qualifier if the trial judge had indeed intended to use corroboration in its technical legal sense: D.A., at para. 17.

[50] Further, in the passages the appellant refers to the trial judge was making general assessments about the entire account of each witness, including the aftermath of the Toronto trip. For example, in the following discussion about E.B.’s evidence, if the trial judge was specifically referring to her prior consistent statements to the other witnesses she would simply have said that E.B.’s evidence was “corroborated” by N.J.L. and C.J., without drawing a line between her evidence regarding “what occurred in Toronto” and “what occurred after they returned from Toronto”.

I find that [E.B.] provided sufficient details as to what occurred in Toronto and after their return to [their home]. Her evidence regarding certain issues of what occurred in Toronto was also corroborated by [C.J.] and with regard to what occurred after they returned from Toronto was corroborated by [N.J.L.] and [C.J.]. I accept [E.B.’s] evidence and find that her evidence is a credible and reliable. [Emphasis added.]

[51] While the trial judge did not explicitly say, per this court’s decision in R. v. A.M., 2014 ONCA 769, para 15, that repetition of a story does not make an in-court description of that event any more credible, this self-instruction was unnecessary in the circumstances.

[52] It is important also that the trial judge only mentioned the content of the prior consistent statements in her detailed outline of the evidence. In her analysis the trial judge does not attribute any significance to them, and her use of the word “corroborate” is not connected to any specific part of the evidence such that a reader could conclude that she was referring to the prior consistent statements.

[53] I note that in Zou, the trial judge expressly stated at para. 30 of his reasons (2015 ONSC 4479) that “most importantly, I find [the complainant’s] email [describing the alleged offence], sent contemporaneously with the events, to be corroboration of her evidence.” The trial judge here never indicated that she was using the prior consistent statements to bolster in-court testimony, nor can any of the passages where “corroboration” is used be reasonably interpreted in this way.

[54] The appellant argues further that the trial judge erred by using the word “corroborate” even if her intention was to convey that the evidence was confirmatory. This is because the Crown witnesses’ accounts about the aftermath of the alleged sexual assault in Toronto were consistent both with E.B.’s version of what she saw in the bedroom and with the appellant’s denial. And these witness accounts were also consistent both with N.J.L.’s allegations of historical sexual abuse and with the appellant’s denial. As such, they can provide no basis to prefer one version over another: Casarsa, at para. 9; R. v. Varghese, 2024 ONCA 555, para 49.

[55] The appellant says that the following passage from the trial judge’s reasons demonstrates the error:

I now turn to the three steps in W.(D.). First, based on my findings above, I question [the appellant’s] evidence about what occurred between him and [N.J.L.]. Second, based on my findings above, I question [the appellant’s] testimony and I am not left in reasonable doubt by it. Third, based on my findings above, [the appellant’s] evidence does not raise a reasonable doubt, and on the basis of the evidence that I accept, I am convinced beyond a reasonable doubt of [the appellant’s] guilt with regard to all counts, specifically counts 1, 3, 5, 8, 11, 12, 13, 14 and 16. I do not accept [the appellant’s] evidence about what occurred between him [and N.J.L.]. I find the evidence of [N.J.L.], [E.B.] and [C.J.] is credible and reliable and was more consistent. Much of their evidence corroborated what the other testified to regarding the events in Toronto. There is no evidence to support that there was collusion of any kind in this matter. [Emphasis added.]

[56] I disagree. I understand the trial judge’s reference to N.J.L’s, E.B.’s and C.J.’s evidence as being “more consistent” to be just another way of her saying it was “credible and reliable”, and not that she was treating this as a contest between the appellant’s evidence and that of Crown witnesses, which would not be faithful to the W.(D.) framework. As this court held in Brown, at para. 22, evidence consistent with differing accounts is not necessarily irrelevant since “evidence that is supportive of a witness’s testimony can … be used in assessments of credibility in making findings of fact”.

[57] It was therefore open to the trial judge to consider the extent to which the Crown witnesses offered consistent accounts and descriptions. For instance, C.J. confirmed that N.J.L. slept in his younger brother’s room at times (albeit potentially not as frequently as N.J.L. recalled). C.J.’s confirmation that there was a chair and a swing beside the brother’s bed at one point was to similar effect, as N.J.L. testified that these items were beside his brother’s bed at the time of the incident he described at trial. Another example is C.J.’s confirmation of N.J.L.’s evidence about the layout of the townhouse in Orleans where the abuse first occurred, and the fact that a roommate of the appellant’s was living with them at the time.

[58] It is quite common for trial judges to instruct juries that one of the factors they can consider when assessing a witness’s evidence is whether it is similar to or different from what other witnesses have said about the same events.

[59] In this case, it was open to the trial judge to rely on the consistency between Crown witness accounts to find that they took care with the truth and could accurately recall and recount past events.

[60] I would therefore reject this ground of appeal.

Conclusion

[61] For these reasons I would dismiss the appeal.

Released: June 3, 2025

“J.S.”
“J. George J.A.”
“I agree. Janet Simmons J.A.”
“I agree. R. Pomerance J.A.”

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

[2] Four counts of sexual assault were subsequently conditionally stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.