Court of Appeal for Ontario

Date: 2025-06-03
Docket: COA-23-CR-1291
Coram: Fairburn A.C.J.O., Roberts and Madsen JJ.A.

Between

His Majesty the King
Respondent

and

Lorne Rappaport
Appellant

Appearances:
Mark C. Halfyard and James Bray, for the appellant
Luke Schwalm, for the respondent

Heard: May 27, 2025

On appeal from the convictions entered by Justice R. Cary Boswell of the Superior Court of Justice, dated June 30, 2023, with reasons reported at 2023 ONSC 3911.

Reasons for Decision

Introduction

[1] This is an appeal from convictions for sexual interference, invitation to sexual touching and sexual exploitation.

[2] The appellant was the complainant’s hockey coach. The complainant came forward with allegations of sexual impropriety over ten years after her relationship with the appellant had ended. She alleged that during a specific hockey season, when she was 15 years old, she and the appellant formed a bond. The appellant was more than 20 years her senior. She thought that they were soul mates, that he loved her, and that one day they would be together to start a family. Things evolved from sexual touching to sexual intercourse in clandestine locations, including at arenas, hotels, the appellant’s vehicle and so on. The complainant testified that, after numerous sexual encounters, they had grown so close that they even had names for each other’s sexual organs.

[3] About a year after the relationship commenced, the complainant came to the realization that she and the appellant had no future together and that she had been living a lie. Accordingly, she sent him a text message indicating that their relationship was “sick”, that he “used her”, and that she wanted no further contact. She did not report the matter to the police until about ten years later.

[4] The respondent categorically denied any relationship with the complainant. While he agreed that he was her hockey coach and that she had worked at his hockey academy, he denied any form of sexual activity. He also denied any form of text or phone communication with the complainant.

[5] The reasons for judgment are detailed and long. The trial judge clearly understood the key issues and squarely grappled with central questions of credibility and reliability in this case.

Grounds of Appeal

[6] The appellant raises two overarching grounds of appeal.

[7] First, the appellant claims that the trial judge misapprehended the evidence in two material respects: (a) in concluding that the appellant was lying when he suggested that he had never engaged in text messaging with the complainant; and (b) in concluding that the evidence of two of the complainant’s former teammates corroborated her suggestion that she and the appellant used to text message one another. Second, the trial judge is said to have erred by relying on R. v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.) to reject the appellant’s evidence.

[8] To succeed on an appeal based on a misapprehension of evidence – whether due to a failure to consider relevant evidence, a failure to give proper effect to evidence, or a misstatement of evidence – the alleged misapprehension must go to substance and not detail. By going to substance, we mean that the misapprehension of evidence must be material to the reasoning of the trial judge.

[9] We start with this latter point because, in our view, even if the trial judge misapprehended the evidence in the way suggested by the appellant, these misapprehensions were not material to the reasoning process. We say this for the following reasons.

The Text Messaging Evidence

[10] The alleged misapprehensions of evidence relate to only one of the trial judge’s reasons for rejecting the appellant’s credibility: the text message reason. Specifically, the trial judge found that the appellant had lied when he denied during his evidence that he had ever communicated with the complainant by text message. The trial judge concluded that this lie was nothing more than an attempt by the appellant to distance himself from the complainant. The trial judge’s confidence in the appellant’s credibility was shaken by this intentional lie about never having text messaged with the complainant.

[11] In the normal course, a misapprehension of evidence going to the heart of a credibility assessment, especially in a case turning on credibility, may well rise to the level of materiality. But, in this case, the trial judge specifically said that, even without considering what he concluded was the lie about not having text messaged with the complainant, there was another reason to reject the appellant’s credibility.

[12] This second reason for rejecting the appellant’s credibility arose from the application of the legal principles set out at para. 53 in J.J.R.D.. To this end, the trial judge concluded, based on what he referred to as a “reasoned and considered acceptance of the truth” of the complainant’s evidence, that the appellant’s “bare denials” were not credible.

[13] We will return to the J.J.R.D. point shortly, as the appellant challenges the trial judge’s reasoning on this point. What is important for present purposes is that the trial judge made it clear that, even if the appellant had not lied about the text messaging, he still would have rejected the appellant’s credibility regarding his denials that there had been sexual activity between him and the complainant: “Second, even if his credibility had not been undermined by his lie [the text message reason], I find that when his evidence is stacked against [the complainant’s] evidence, I am not left with a reasonable doubt about whether sexual activity occurred between them.” Based on this reasoning, it is difficult to describe the alleged misapprehension of evidence surrounding the text messaging as “material” to the credibility findings.

[14] In any event, we do not agree that there were any material misapprehensions of the evidence.

[15] The first alleged misapprehension relates to an argument that the appellant was not specifically asked about whether he communicated with the complainant via email [1] or through an alternative messaging platform like Blackberry Messenger. Therefore, the trial judge is said to have misapprehended the evidence in the sense that he erroneously thought that the appellant had denied all forms of text-based communications when, in fact, he had only denied engaging in certain types of text messaging, specifically SMS-based text messaging.

[16] Based on our reading of the record as a whole, it was entirely open to the trial judge to understand the appellant’s evidence as a full denial of all forms of text-based communications. For instance, the following exchange occurred in examination-in-chief:

Q. Keeping with [the complainant] and, and in particular the summer of 2009 pre-season … was there any texting going on between you and [the complainant]?
A. No.
Q. Was there any texting with [the complainant] once the, the season started, but before the captaincies had been chosen?
A. No.
Q. How about after the captaincy?
A. Nope. [Emphasis added.]

[17] Clearly, the appellant denied “any texting” during all identifiable stages of the relationship. This dovetailed with his full denial of any sexual relationship with the complainant. In our view, the trial judge’s interpretation of the appellant’s evidence, as a full denial of text-based communications, was a reasonable one and cannot be said to constitute a misapprehension of the evidence.

Corroboration Evidence

[18] The second alleged misapprehension of evidence relates to the trial judge’s finding that two witnesses, specifically H.M. and B.W., provided corroboration for the complainant’s suggestion that she and the appellant communicated by text message.

[19] To put this alleged misapprehension of evidence into its proper context, at least four witnesses, including H.M. and B.W., testified about the complainant and appellant’s means of communication, including by text message and cell phone.

[20] The appellant objects to how the evidence of H.M. and B.W. was dealt with by the trial judge. As for B.W., she testified that, from time-to-time, she would see the appellant’s name “pop up” on the home screen of the complainant’s phone, suggesting that a text message had been received. The trial judge accurately summarized that evidence, and we see no misapprehension. It was open to him to find B.W.’s evidence as confirmatory.

[21] As for H.M.’s testimony on this point, the appellant argues that it was somewhat confusing in nature and included hearsay information. Specifically, H.M. testified that some of her knowledge about the text messaging was based upon what the complainant had told her. The appellant notes that this was clearly hearsay. We agree, but so did the trial judge, who said that “[t]o the extent that H.M.’s knowledge of cell communications is based on statements made to her by [the complainant], it is inadmissible hearsay.” Yet, H.M. based her evidence on more than inadmissible hearsay. She also spoke about her own observations. While her evidence on this point lacked clarity, it was open to the trial judge to interpret her evidence as he did, and that interpretation invites deference.

[22] In any event, we end where we started. Even if H.M. and B.W’s evidence could not provide corroboratory support to the complainant’s suggestion that she texted with the appellant, this was not material to the verdict.

Application of Legal Principles

[23] The second ground of appeal rests on the suggestion that the trial judge erred in his application of J.J.R.D. in the circumstances of this case. Of course, this legal principle allows for a rejection of an accused’s evidence based upon a “considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”: J.J.R.D., at para. 53.

[24] The appellant argues that the reasons for judgment belie the suggestion that a reasoned and considered approach was taken toward the complainant’s evidence. Specifically, the appellant points to what he describes as numerous problems in the complainant’s evidence.

[25] For instance, the complainant originally told the police she was 16 years of age when the sexual acts began. When informed that the police would not be laying charges, she provided a second statement saying she was 15 years of age. Additionally, the complainant recalled the first instance of sexual intercourse occurring on a date that overlapped with Thanksgiving weekend. The appellant says this was highly unlikely because there was evidence that Thanksgiving was important to their family, and it was a time when his schedule and the schedules of his wife and daughter connected. Moreover, the complainant testified about an overnight stay in a hotel. Again, the appellant denied this could have occurred, leaning heavily on the testimony of his wife who denied that he was ever away overnight, except for the two away hockey tournaments he attended in that critical year.

[26] The trial judge specifically addressed each of the areas of the complainant’s evidence that were said to adversely impact her credibility. He was unable to resolve some of them but specifically concluded that, in relation to one unresolvable matter, it made “little difference in [his] assessment of the evidence as a whole.”

[27] The appellant maintains that the trial judge erroneously approached the matters said to shake the complainant’s credibility in a piecemeal fashion, and that he failed to step back and consider their holistic effect. By looking at them piecemeal and failing to measure their cumulative strength, the trial judge is said to have lost track of their overall impact on the complainant’s credibility. The appellant emphasizes the seriousness of this piecemeal approach in a case that turns on credibility findings, particularly one where the legal principles from J.J.R.D. are central to the verdict.

[28] Despite the capable submissions made, we cannot accept the appellant’s position. In our view, the trial judge’s extensive 250-paragraph judgment thoroughly engaged with all necessary issues. He understood the challenges to the complainant’s credibility, addressed each of them directly, analyzed them thoroughly, and ultimately explained why they did not give him cause for concern. He understood that the burden of proof remained on the Crown throughout. He correctly articulated the principles from R. v. W.(D.), [1991] 1 S.C.R. 742. And, importantly, he repeatedly acknowledged the need to consider the evidence as a whole, specifically the need to consider problematic features of the complainant’s evidence “in the context of the evidence as a whole.” In the end, he simply rejected the appellant’s “bare denials” on the basis of what can only be described as a reasoned and considered acceptance beyond a reasonable doubt of the complainant’s evidence.

Disposition

[29] The appeal is dismissed.

“Fairburn A.C.J.O.”
“L.B. Roberts J.A.”
“L. Madsen J.A.”

[1] The complainant agreed in cross-examination that she and the appellant never communicated through email.