Court of Appeal for Ontario

Date: 2025-10-29

Docket: COA-23-CR-0642

Justices: van Rensburg, Paciocco and Wilson JJ.A.

Between

His Majesty the King Respondent

and

H.P. Appellant

Counsel

Margaret Bojanowska, for the appellant

Martin Heslop, for the respondent

Heard

September 24, 2025

Appeal

On appeal from the convictions entered by Justice Jennifer Woollcombe of the Ontario Superior Court of Justice, on January 12, 2023, with reasons reported at 2023 ONSC 182.

Reasons for Decision

Overview

[1] The appellant, H.P., was convicted of sexual interference, invitation to sexual touching, sexual exploitation, and sexual assault, committed against his stepdaughter, beginning when she was 15 years of age. The violations were found to have occurred during nocturnal visits to the complainant's room over a period of approximately 20 months. For the following reasons, we dismiss his appeal of those convictions.

The Audio Recording Evidence

[2] In her decision, the trial judge relied heavily upon an audio recording surreptitiously captured by the complainant in her bedroom on November 3, 2019. She found the audio recording was "objective, compelling and persuasive evidence that wholly supports the complainant's credibility and reliability" and was inconsistent with the appellant's testimony about the event. The appellant argued before us that the trial judge's amplification of the audio recording during deliberations undermined the fairness of the trial and that the trial judge misapprehended its contents.

[3] There is no basis for finding that the trial judge used the audio recording unfairly during deliberations. We see no issue with the trial judge's confirmation that she had listened to it repeatedly out of court. The audio recording was real evidence of what occurred. One would expect its close examination by the trial judge before making factual findings about what it revealed. Similarly, no trial fairness issues arise from the trial judge's acknowledgment that parts of the audio recording became "clearly audible" when amplified. It had been played and replayed at full volume during the trial, and there is no indication on the record that the trial judge discovered anything on the audio recording during post-trial deliberations that was not addressed during the trial.

[4] We are also unpersuaded that the trial judge misapprehended the audio recording by failing to give it proper effect. The appellant testified that the audio recording captured him visiting the complainant to check on her injured ankle before giving her two innocent goodnight kisses on the forehead and telling her he loved her, in keeping with their routine. The trial judge's conclusion that this account was "demonstrably false and contrived and ma[de] no sense" was open to her, notwithstanding the complainant's confirmation of her injured ankle and that the appellant would come into her bedroom to say goodnight and kiss her on the forehead. The appellant ultimately agreed that five kisses could be heard on the audio recording, instead of two. There is also a time lag between the kisses, inconsistent with a perfunctory kiss good night. There was no reference on the audio recording to the complainant's injured ankle. What can be heard are the sounds of rustling, as well as the complainant saying "stop", followed by the appellant saying "okay", "okay baby", and "you okay baby". The trial judge concluded, as she was entitled to, that the appellant's whispering tone on the audio recording was intimate, consistent with the sexual encounter that the complainant described. It was entirely open to the trial judge to make the findings about the audio recording that she did.

Motive Theory and Chronology

[5] The appellant argued during the trial that the complainant was motivated to make a false allegation of sexual assault against the appellant because she wanted to get back at him for finding drugs she had secreted in the house, which had upset her mother. In rejecting this motive theory, the trial judge noted that "the chronology of events does not support" it. The appellant argues before us that the trial judge misapprehended material evidence relating to the chronology of events in coming to this conclusion. Specifically, the appellant asserts that the trial judge failed to consider the complainant's own testimony that her friend's mother had confronted her about her drug use a couple of days before the complainant made her allegation to the police, thereby confirming that her drug use was a live issue at the time. Instead of referring to this testimony, the trial judge noted that the complainant's friend's mother denied that she had been asked by the complainant's mother to speak to the complainant about drug use the week before the complaint was made.

[6] We are not persuaded that the trial judge misapprehended material evidence in reasoning as she did. The complainant's testimony that she was confronted by her friend's mother shortly before the complaint was made is not evidence that her mother asked her friend's mother to do so. There is therefore no conflict between the evidence the trial judge noted and the testimony that she did not note.

[7] Moreover, although the complainant's testimony does confirm that her drug use was a live issue for her friend's mother around the time of the sexual assault complaint, it does not support a finding that it was an ongoing concern for her mother. Therefore, the trial judge's conclusion that "[t]here is no evidence that there was any ongoing concerns about [the complainant's] drug use being expressed by [her mother] at the point at which she made the allegations" does not disclose a misapprehension of the evidence.

[8] Even if the trial judge had misapprehended the evidence as the appellant contends, we are not persuaded that a miscarriage of justice would have resulted. For that to occur, the error must have played a central role in the trial judge's decision: R. v. C.B., 2017 ONCA 862, at paras. 44-46. The evidence the appellant relies upon did not do so.

[9] First, the trial judge's finding that the chronology did not support the appellant's motive theory had several prongs, including that the complainant's marijuana use had been discovered many months before the police complaint. Although the trial judge did not put it this way, she was clearly recognizing that this was a longstanding issue, rather than one likely to lead to a complaint at the point in time when the complainant came forward. Moreover, the trial judge was persuaded that the chronology in fact supported the complainant's explanation for going to the police. Specifically, the complainant testified that in early 2020 she had been "struggling with her mental health and felt betrayed by her mother after having reported to her twice what was happening and playing the recording for her." Yet, the sexual abuse continued. She then shared what was happening with her friend, and her friend then told her own mother, resulting in a meeting between the complainant, her mother, and her friend's mother. The complainant's mother's reaction prompted her friend's mother to go to the police. When the judgment is read as a whole, it is clear that the trial judge was effectively saying that this chronology of events showed that it was the sexual violations that were the burning issue at the time, not the drug use. The evidence now relied upon by the appellant would not have altered this conclusion.

[10] Second, the trial judge did not rely solely or mainly on the chronology of events in rejecting the appellant's motive theory. The appellant's motive theory depended on the trial judge accepting that the complainant may have manufactured a sexual assault allegation to get back at the appellant. It is evident that the trial judge rejected this theory in large measure because of her finding that the audio recording confirmed the sexual assault complaints were not false allegations. In contrast, she found the appellant's testimony about his drug motive theory to be internally implausible, given that his testimony also suggested that the discovery of the drugs was "not a big deal and would never have been a motivation for a false allegation."

[11] In sum, we are not persuaded that the trial judge misapprehended the evidence relating to the chronology of the events or that the alleged misapprehensions, if they had occurred, would have been material. We therefore reject this ground of appeal.

Credibility Assessment

[12] We do not find that the trial judge erred in assessing the complainant's credibility. In support of this submission, the appellant marshals several "inconsistencies" that the trial judge did not address in her reasoning. We acknowledge that trial judges can err by failing to consider or address significant inconsistencies when assessing the credibility of the testimony of a key witness: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 27. However, we agree with the Crown that most of the illustrations that the appellant offers are not inconsistencies at all, and none are significant enough to require the trial judge's attention in her reasons, particularly given that many of the alleged inconsistencies were neither put to the complainant nor relied upon in the appellant's submissions at trial.

[13] The only "inconsistency" regarding a non-peripheral issue that was raised and not addressed by the trial judge arose from the testimony of the complainant's friend about the sexual contact the complainant disclosed to her. In her testimony the friend adopted her police statement in which she characterized the disclosed acts as the appellant forcing the complainant to "jerk him off", have sex with him, and "put her mouth on his dick." We agree with the Crown that those labels are capable of being applied to the acts the complainant described in her testimony. There is no clear inconsistency here, and no effort was made to flesh out the friend's characterization of what was disclosed to her by pursuing either what she meant by those terms or precisely what the complainant had said to her. In the circumstances, we are not prepared to infer that the trial judge failed to consider this testimony because she did not advert to it in her reasons, nor are we persuaded that she erred in failing to address this evidence in her decision.

[14] The trial judge did not speculate in accepting the complainant's evidence that a lock was placed on the door after she disclosed the sexual abuse to her mother. The trial judge was entitled to find that the undisputed fact that a lock had been placed on the complainant's bedroom door, even though the complainant had been found to be hiding drugs, gave plausibility to the complainant's explanation for the lock. On the evidence before her it was logical for the trial judge to infer that the complainant's mother would be unlikely to permit a lock on the door unless there was a more significant concern for the complainant's protection. We acknowledge that it would have been better had the trial judge not said, in explaining her reasoning, that "[n]o parent would permit a lock on the door of a child who was hiding drugs unless there was more significant concern for her protection", since universal statements about human behaviour are apt to be overinclusive. However, the substance of the reasoning – that, in the circumstances of this case, the sexual assault provides a credible explanation for the lock – was entirely open to the trial judge as a matter of inference, not speculation.

Appellant's Credibility

[15] We do not agree with the appellant's submissions that the trial judge erred in assessing the appellant's credibility. It is not an error to conclude that a witness has fabricated evidence, without independent confirmation, when assessing the credibility of the witness. An error occurs only if the trial judge relies on their fabrication finding as circumstantial evidence of guilt, in the absence of independent evidence: R. v. Iqbal, 2021 ONCA 416, 406 C.C.C. (3d) 208, at para. 58. Although the trial judge characterized the appellant's testimony about the audio recording as "demonstrably false and contrived" and concluded "he fabricated his explanation", there is no indication that she relied upon these findings as affirmative evidence of his guilt. She used her conclusions, as she was entitled to do, in assessing his credibility.

[16] Likewise, there is no basis for finding that the trial judge relied upon the inconsistencies that she found in the appellant's testimony as affirmative evidence of his guilt. Again, the trial judge used them in assessing his credibility.

Prior Consistent Statement

[17] Finally, we do not accept that the trial judge misused a prior consistent statement in admitting or relying upon an earlier complaint made by the complainant to her mother in December 2019. It was not contested that during this event the complainant played the audio recording for her mother, and the mother then played it for the appellant. The prior consistent statement was admitted into evidence for narrative purposes, including to explain the circumstances of the confrontation between the mother and the appellant, as well as the appellant's reaction. In his testimony about this event, the appellant claimed that at no time did the complainant's mother tell him that the complainant was alleging sexual impropriety and that he believed he was being confronted about his practice of going into the complainant's room to say goodnight.

[18] It would have been an error if the trial judge had treated the content of the earlier out-of-court disclosure of the complaint as proof of the sexual assault or if she inferred that, because the complainant had made this same complaint in the past, she was more likely to be telling the truth in court: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 7. But the trial judge did not engage in either of these prohibited lines of reasoning. Instead, she relied on the content of the audio recording in finding that the appellant's testimony about his encounter with the mother about the audio recording was so implausible as to be incredible. The prior consistent statement itself was not misused.

Disposition

[19] The appeal is therefore dismissed.

K. van Rensburg J.A.

David M. Paciocco J.A.

D.A. Wilson J.A.

Footnotes

[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.

[2] The sentence appeal raised in the Notice of Appeal was not pursued and is dismissed as abandoned.