COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.A., 2025 ONCA 52[^1]

DATE: 20250122

DOCKET: COA-24-CR-0213

Trotter, Gomery and Madsen JJ.A.

BETWEEN

His Majesty the King

Respondent

and

P.A.

Appellant

Alexander Ostroff, for the appellant

Hannah Freeman, for the respondent Crown

Heard: January 20, 2025

On appeal from the conviction entered on January 19, 2023, by Justice Kathryn L. Hawke of the Ontario Court of Justice, with reasons dated February 16, 2023.

REASONS FOR DECISION

[1] The appellant appeals his conviction on three counts of sexual assault. After hearing his counsel’s oral submissions, we dismissed the appeal with reasons to follow. These are our reasons.

[2] The complainant is the appellant’s niece. The Crown alleged that the appellant forced her to have sex with him, through physical means and threats, when she was sleeping over in the basement of his home in late October and early November 1989. The complainant was 17 years old, and the appellant 42 years old at the time. He had just sponsored the complainant and her father so that they could immigrate to Canada from the Philippines. The appellant denied the assaults or that he had any contact at all with the complainant on the days they allegedly took place.

[3] The trial judge did not believe the appellant’s evidence and was not left in reasonable doubt by it. She accepted the complainant’s evidence with respect to the sexual assaults. Based on this evidence, the appellant’s corroboration of other aspects of the complainant’s evidence, and the evidence of the complainant’s husband that she disclosed the assaults to him two years after they occurred, she held that the Crown had proved that the appellant was guilty beyond a reasonable doubt.

[4] The appellant contends that the trial judge materially misapprehended the evidence, giving rise to a miscarriage of justice. He asks this court to quash the conviction and order a new trial.

[5] We do not accept these arguments.

[6] Where a conviction is appealed on the basis that the trial judge misapprehended the credibility and reliability of witness testimony, the appellant must show that the judge committed a palpable and overriding error: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 82, 85.

[7] The appellant contends that the trial judge erroneously found inconsistencies in his evidence about his routine activities during the period that the sexual assaults allegedly occurred. He contends that she interpreted some of his answers in chief too broadly and that this led her to find, mistakenly, that he changed his evidence in cross-examination, when in fact he merely elaborated on it.

[8] Having reviewed the trial transcripts, we find it was reasonable for the trial judge to conclude that the appellant’s account of his activities at the relevant time evolved significantly during his testimony and that the resulting internal inconsistencies significantly undermined his credibility. Over the course of his testimony, the appellant offered a series of different explanations for why he could not have been in the basement of his home, where the complainant slept, on Sundays during the period in question. He denied that he had any knowledge of the complainant sleeping over at his house in late October 1989. The trial judge concluded that this denial was implausible, and that this central element of his testimony was not credible.

[9] The trial judge noted other inconsistencies in the appellant’s evidence in her summary of his cross-examination. These were all findings entirely open to her to make on the record.

[10] The appellant also contends that the trial judge materially misapprehended the complainant’s evidence by overlooking internal inconsistencies in her testimony on some issues that give rise to reasonable doubt about the overall reliability of her account.

[11] The trial judge found that the complainant testified to three separate incidents of sexual assault “in a manner that demonstrated that she was accurately recalling and relating a real incident.” She noted that the complainant was cross-examined about surrounding circumstances and peripheral details, but not about her account of the assaults in the appellant’s recreation room. The trial judge concluded that the complainant’s evidence about each incident was “a unique and complete narrative”; that each narrative was both internally consistent and consistent with the surrounding circumstances; and that many of the surrounding circumstances were confirmed by the appellant’s evidence. She also found the complainant’s explanation for her actions after the assaults and why she delayed going to the police for many years was plausible.

[12] The trial judge addressed possible concerns about the complainant’s evidence. She found that the complainant incorrectly recalled the days of the week that two of the assaults occurred and gave an inconsistent account of how she got home after the second assault. The trial judge characterized these points as minor and inconsequential. She rejected the suggestion that the complainant could not have been invited to assist the appellant in distributing Halloween candy on November 1^st, taking judicial notice that this date is celebrated as the All Saints’ Day holiday in the Philippines. The trial judge concluded that the issues raised did not cause her to doubt the complainant’s evidence about the assaults themselves.

[13] The trial judge had the benefit of listening to the viva voce testimony and was in the best position to assess it: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46; Kruk, at paras. 83-84. We find no error in her appreciation and interpretation of the evidence, to which we must defer.

[14] We do not accept the appellant’s argument that the trial judge failed to address his arguments about the reliability of the complainant’s evidence in her reasons. We are satisfied that the trial judge explained why she accepted the complainant’s evidence.

[15] The appeal is accordingly dismissed. The appellant’s sentence appeal is still outstanding and will be heard as an inmate appeal in due course.

“Gary Trotter J.A.”

“S. Gomery J.A.”

“L. Madsen J.A.”

[^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.