ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-4000004-00AP
DATE: 20120608

BETWEEN:

HER MAJESTY THE QUEEN – and – J.E.

Heather Davies , for the Crown/Respondent
Mark Halfyard for the A…

HEARD: April 13, 2012

M.A. CODE J.

REASONS FOR JUDGMENT

A. INTRODUCTION

[ 1 ] The Appellant J.E. (hereinafter J.E.) was convicted by Budzinski J. of one count of sexual assault. He was found not guilty on a second count alleging a separate sexual assault against the same complainant. These verdicts were reached on July 23, 2009, after a four day trial and after the trial judge had reserved judgment for four months. J.E. was sentenced on January 5, 2010 to an eighteen month conditional sentence. The Crown proceeded summarily.

[ 2 ] J.E. appeals his conviction on the one count of sexual assault. There is no cross-appeal against the acquittal on the other count and neither party appealed against the sentence.

[ 3 ] Two broad grounds of appeal are raised. First, it is alleged that the trial judge correctly instructed himself in accordance with the well-known principles set out in R. v. D. (W). (1991), 63 C.C.C. (3d) 397 (S.C.C.) but then failed to apply them. Second, the sufficiency of the trial judge’s reasons is attacked based on equally well-known principles set out in R. v. Sheppard (2002), 162 C.C.C. (3d) 298 (S.C.C.).

B. FACTS

[ 4 ] The complainant T.B. and the Appellant J.E. both testified about various encounters between them in September and October, 2006. She was a student at H[…] College and she also worked as manager of the women’s basketball team and as a server at the student pub. He was a strength and conditioning coach for the men’s basketball team. He was a married American and he had just arrived at H[…] College to take up his position in September, 2006. T.B. had applied, unsuccessfully, for the job as manager of the men’s basketball team. She was admittedly disappointed at not getting this job. The head coach explained her failure to get the job, in a conversation with her in late August or early September 2006, on the basis that he thought she would be a “distraction” to the male basketball players.

[ 5 ] T.B. and J.E. described three principal encounters during the relevant period. The first occasion they met was on September 28, 2006. There was a basketball game and they danced at the student pub and had some conversation afterwards. She described him as sexually aggressive, grabbing her buttocks on the dance floor, making sexually charged comments about her appearance, and then attempting to kiss her in the parking lot. He denied grabbing her buttocks or attempting to kiss her and he insisted that their conversation was polite and friendly and was focused on her disappointment about not getting the manager’s job. This first encounter was the subject of the sexual assault count that Budzinski J. dismissed. He held that the attempted kiss in the parking lot was “ambiguous”, in the sense that J.E.’ unwanted sexual advances were not necessarily “intentional”, as opposed to being a “mistaken effort to say goodbye in an overly friendly manner”.

[ 6 ] Two of T.B.s friends testified and confirmed that J.E. was making inappropriate comments on this first occasion and was pursuing T.B.

[ 7 ] The second encounter between T.B. and J.E. was on October 5, 2006 at the student pub. They had a brief conversation. She testified that it was sexually charged and he testified that this was simply a misunderstanding. No one else witnessed this conversation.

[ 8 ] The third encounter was the most significant one. It occurred on October 11, 2006 and it culminated in the sexual assault incident on which the trial judge found J.E. guilty. T.B. had not been impressed with J.E.’ prior conduct and she did not like him. There were men’s and women’s basketball games on this night but T.B. did not join the coaches and the team manager in the pub after the games. She went to the bus stop and waited for a bus. It was late at night and she was going to a friend’s place. J.E. left the pub and drove by the bus stop and offered T.B. a ride in his car. She did not immediately accept his offer of a ride, according to both of their accounts. She testified that he apologized for his prior behaviour and they talked for some time, while she waited for the bus. After about twenty minutes, when the bus had still not arrived, she agreed to accept a ride from him. J.E. drove her to the street where her friend lived.

[ 9 ] At this point, the two accounts diverge. There were no other witnesses to the ensuing events in the car. T.B.’s account was that she asked J.E. to let her out, while they were a few buildings away from her friend’s apartment, but that he drove to a dark parking area behind one of the buildings. He locked her passenger door when she attempted to get out of the car, he reached over and reclined her seat, and then he got on top of her. He was trying to kiss her, while grinding his hips and putting his hand on her shirt such that it tore. He pulled up her skirt and digitally penetrated her. She bit his tongue, slapped him, pushed him away, kneed him in the groin and asked “are you gonna rape me”? At this point he stopped and allowed her to get out.

[ 10 ] J.E.’ account was that there was no apology at the bus stop for his prior misconduct as there had been no prior misconduct. He simply offered her a ride, she eventually accepted, and he dropped her off at her friend’s building without any incident whatsoever.

[ 11 ] T.B. delayed for about two weeks before she reported the matter to the police, after talking to her sister and to a friend.

C. LAW

[ 12 ] It can be seen from the above summary of the evidence that the central issue in the case was credibility. If T.B. was believed, then the Crown had proved what was undoubtedly a sexual assault. If J.E.’ account raised a reasonable doubt, then he was entitled to an acquittal. Both grounds of appeal relate to this central issue of credibility.

(i) The W.D. ground of appeal

[ 13 ] The first ground of appeal is based on the principles set out in W.D. , supra which simply apply the burden of proof to any exculpatory account advanced by the defence. There are two parts to Mr. Halfyard’s argument. First, he submits that the trial judge never applied the so-called “second branch” in W.D. Second, it is submitted that the trial judge never applied the W.D. framework to the entire body of exculpatory evidence and, instead, applied it to the accused’s evidence alone. This latter point relies on the recent decision in R. v. D.(B.) (2011), 266 C.C.C. (3d) 197 (Ont. C.A.), which was released after the trial judge’s decision in the case at bar.

[ 14 ] The first branch of the argument, in my view, is based on a misreading of the law. Mr. Halfyard’s submission, as he put it in his Factum, is as follows:

… even if the entirety of the A…’s evidence is rejected, it may still raise a reasonable doubt when considered in the context of the whole of the evidence. … the trial judge performed no analysis of the second branch. This was critical in this case as both the Complainant and the A… gave plausible versions of what occurred. If the trial judge properly analyzed the entirety of the A…’s evidence and still concluded he was not to be believed, his evidence in conjunction with the evidence as a whole, may still result in reasonable doubt. [Emphasis of Mr. Halfyard].

[ 15 ] Early in his reasons, the trial judge instructed himself impeccably as to the principles set out in W.D. This is not disputed. He then went on to analyze the evidence. He disbelieved the A…’s benign or non-sexual account of his intentions, and gave detailed reasons for this finding. He then set out equally detailed reasons for believing T.B.’s account of the final incident. Based on these findings, the trial judge concluded:

His [J.E.’] description of the event does not fit into the reality of the situation. I disbelieve the defendant . I am satisfied beyond a reasonable doubt that the Crown has made out its case with respect to the sexual assault that occurred in the automobile … [Emphasis added].

[ 16 ] The sufficiency of these reasons, in resolving the credibility issue, is the subject of the second ground of appeal based on Sheppard , which I will address below. Mr. Halfyard’s first ground of appeal, as set out above, is that W.D. requires a trial judge who has completely rejected an accused’s account of the alleged offence to, nevertheless, go on and ask whether that rejected evidence could still give rise to a reasonable doubt.

[ 17 ] The misconception in this approach to W.D. , with respect, is that it treats the three jury instructions set out in that case in brief summary form by Cory J. as if they were sequential analytical steps that a trier of fact must always pass through before reaching a verdict. This is not an accurate reading of W.D.

[ 18 ] Because Cory J. was setting out a model jury charge, where the judge does not know what conclusions the trier of fact will reach on the issue of credibility, the instruction leaves open three quite different findings that a trier might make in relation to credibility. The root cases, on which W.D. is based, are R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), R. v. Nimchuk (1977), 33 C.C.C. (2d) 209 (Ont. C.A.), and R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.). In Challice , supra at 556-7, Morden J.A. (as he then was) gave the judgment of the Court and referred to the three findings that a trier can arrive at in a case where there is a credibility dispute on a “vital issue”. He described the three options as “total acceptance, total rejection, or something in between”. The middle ground, or “something in between”, was described as “being unable to resolve the conflicting evidence and, accordingly, being left in a state of reasonable doubt.” Morden J.A. was relying, in this regard, on Martin J.A.’s earlier judgment on behalf of the Court in Nimchuk , supra at 210, where he stated that complete acceptance of the complainant’s evidence or complete acceptance of the accused’s evidence were not the only options when a trier of fact is faced with conflicting accounts. Martin J.A. held that there was another “choice” and he put it this way:

There was, of course, a third alternative , namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay , it would, of course, require an acquittal. [Emphasis added].

[ 19 ] Challice , and its reliance on Nimchuk , was authoritatively adopted by the Supreme Court of Canada in Morin , supra at 207-8 and 211, where Sopinka J. held that the above passages “correctly state the law” and should be used in jury instructions. In W.D. , supra at para. 27, decided only two years after Morin , Cory J. made it clear that his judgment was not breaking new ground but was simply following settled law as articulated in Challice and Morin . Indeed, in W.D.S. , a case decided shortly after W.D. , Cory J. used Martin J.A.’s language in Nimchuk and referred to the middle ground as a “third alternative”. In other words, the second stage or step in W.D. refers to a finding of fact that is quite different from the positive states of belief or disbelief referred to in the first and third branches of the W.D. framework. They are three separate alternatives or choices for the trier of fact that will depend on the strength of the evidence. In R. v. S.(W.D.) (1994), 93 C.C.C. (3d) 1 at 10 (S.C.C.), Cory J. again gave the majority judgment and put it this way:

Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essence of these instructions be given. It is erroneous to direct a jury that they must accept the Crown’s evidence or that of the defence. To put forward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version in preference to the other and yet on the whole of the evidence be left with a reasonable doubt . The effect of putting such a position to the jury is to shift a burden to the accused of demonstrating his or her innocence, since a jury might believe that the accused could not be acquitted unless the defence evidence was believed.

It seems to me that the recharge in this case suffers from the same flaw as the recharge in R. v. W. (D.) , supra . It will be remembered that in that case the trial judge instructed the jury on the recharge that the issue that they had to decide was whether they believed the accused or the complainant. Directions such as that exclude what has sometimes been referred to as the “third alternative”; namely, that without believing the accused, the jury, upon considering the evidence of accused in the context of all of the evidence, may have a reasonable doubt as to his guilt . [Emphasis added].

[ 20 ] Accordingly, the so-called “second branch” of W.D. does not require a trier of fact to take evidence that has been completely rejected and use it as a basis for finding reasonable doubt. This is not rational. The middle ground in W.D. is an “alternative” to complete belief or complete rejection and arises where a trier cannot “resolve the conflicting evidence” and cannot find “exactly where the truth of the matter lay”, as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk . It refers to a state of indecision or uncertainty where the trier is not “able to select one version in preference to the other”, as Cory J. put it in W.D.S. In the case at bar, Budzinski J. completely rejected J.E.’ account and completely accepted T.B.’s account. In other words, he was able to resolve the conflict in the evidence and he was not left in a state of uncertainty. By stating definitively, “I disbelieve the defendant”, the trial judge could not have been left in reasonable doubt by that testimony.

[ 21 ] The Supreme Court of Canada’s decision in R. v. Boucher (2005), 202 C.C.C. (3d) 34 (S.C.C.) is dispositive of this point. The trial judge in that case disbelieved the accused’s evidence as to the amount of beer he drank, prior to driving, but did not address whether the accused’s evidence raised a reasonable doubt. Deschamps. J., speaking for the majority, held that this was not an error. She stated the following ( Boucher , supra at para. 29 ):

The approach set out in W.(D.) is not a sacrosanct formula that serves as a straitjacket for trial courts. Trial judges deliver oral judgments every day and often limit their reasons to the essential points. It would be wrong to require them to explain in detail the process they followed to reach a verdict. They need only give reasons that the parties can understand and that permit appellate review: R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869, and R. v. Burns , [1994] 1 S.C.R. 656. In the instant case, the judge, by stating that she did not believe Mr. Boucher, was implicitly addressing the first two steps in W.(D.) . [Emphasis added].

Charron J., although dissenting in the result, did not disagree with the narrow point of law set out above as she stated ( Boucher , supra at para. 59 ):

I agree with Deschamps J. that a ritual incantation is not required in every case. The trial judge did not have to repeat the formula set out in W.(D.) to demonstrate that she had relied on correct legal principles in assessing the accused’s credibility. Moreover, she is presumed to know those principles. Thus, when a trial judge states that he or she “rejects” an accused’s testimony, it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind . Here, however, it is apparent from the whole of the trier of fact’s reasons that she imposed too heavy a burden of proof on the accused. [Emphasis added].

[ 22 ] Almost three years after Boucher was decided, McLachlin C.J.C. made the same point, while giving the unanimous judgment of the Court in R. v. M.(R.E.) (2008), 235 C.C.C. (3d) 290 at para. 56 (S.C.C.).

For example if, in a case that turns on credibility, a trial judge explains that he or she has rejected the accused’s evidence, but fails to state that he or she has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused’s evidence failed to raise a reasonable doubt.

McLachlin C.J.C. might have referred, in this regard, to her earlier judgment in W.D.S. , supra at 18 (dissenting in the result but not on this point):

Certainly if the jury rejected (as opposed to merely being undecided about) all of the evidence of the accused, it is difficult to see how that very evidence, having been rejected, could raise a reasonable doubt. [Emphasis of McLachlin J., as she then was].

Also see: R. v. S.(J.H.) (2008), 231 C.C.C. (3d) 302 at 307-8 (S.C.C.); Jack Gibson, “ W.D. Revisited; Is Step Two a Misdirection?” (2003), 11 C.R. (6 th ) 323 .

[ 23 ] Accordingly, the first branch of Mr. Halfyard’s argument fails. The trial judge did not have to go on and ritualistically declare that the accused’s evidence did not give rise to a reasonable doubt, having completely rejected it.

[ 24 ] The second branch of the first ground of appeal, as framed by Mr. Halfyard, is that the trial judge did not apply the principles in W.D. to the entire body of exculpatory evidence. Instead, it is submitted that he looked only at the accused’s evidence in isolation. Once again, the trial judge instructed himself impeccably on this point. Although he did not have the benefit of the Court of Appeal’s recent decision in B.D. , supra , he stated the following:

I caution myself that a criminal trial cannot be reduced to a credibility contest … and whose evidence I prefer … The Court must look at the totality of the evidence and not examine the evidence piecemeal … If there remains a reasonable doubt as to the accused’s guilt after considering all the evidence , the doubt must be resolved in favour of the accused. … in the context of all the admissible evidence, even if I am not left in doubt by the evidence of the accused, or any evidence adduced by the defendant’s side , I must ask myself whether on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused … And it is not a question, as I have said earlier, of preferring one witness or one person, or one party, over that of the other, it is looking at all the evidence carefully and scrutinizing all the evidence to come to findings of fact . [Emphasis added].

[ 25 ] It can be seen that the trial judge repeatedly referred to the approach set out in Morin , of applying the burden of proof to the totality of the evidence and not to individual items of evidence, regardless of which one of the W.D. “alternatives” he was to arrive at. He also held that the principles in W.D. applied to “any evidence adduced by the defendant’s side”, as B.D. has now made clear. It would be hard to improve on these instructions. I will set out the trial judge’s reasons, when he came to analyze the evidence, at greater length below when I address the second ground of appeal. I am satisfied that when the trial judge ultimately disbelieved J.E.’ evidence, he did so after a consideration of all the evidence and not on the basis of a piecemeal consideration of that evidence in isolation. This is the correct approach to any findings of credibility in relation to any witness, whether called by the Crown or by the defence. See: R. v. Hoohing (2007), 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.); R. v. Campbell (2003), 57 W.C.B. (2d) 363 (Ont. C.A.).

[ 26 ] When Mr. Halfyard was pressed, during oral argument, as to what other exculpatory evidence was advanced by the defence, aside from J.E.’ own testimony, there was little or nothing that he could point to. For example, there was no evidence called by the defence (or by the Crown) as to T.B.’s demeanour immediately after the alleged offence. There was no photograph of J.E.’ car put in evidence, showing the dimensions of the front seat, and the photograph of a similar model that was produced was never put to T.B. in cross-examination. The evidence of J.E.’ wife, to the effect that she noted no injuries or abnormal demeanour when J.E. got home, had little or no weight as T.B. had not suggested that she injured J.E. and it took him some time to drive home. In short, there was no other body of exculpatory evidence that the trial judge failed to consider when applying the principles set out in W.D.

[ 27 ] The first ground of appeal is dismissed.

(ii) The sufficiency of the trial judge’s reasons

[ 28 ] The A…’s second ground of appeal alleges that the trial judge’s reasons, when resolving the credibility issue, were insufficient. It is submitted that the trial judge made only a brief conclusory assertion of disbelief, when rejecting J.E.’ evidence, and failed to address the fundamental problem in T.B.’s evidence, namely, her alleged failure to explain why she got in the car with a man she claimed to dislike.

[ 29 ] Since releasing its seminal decision in Sheppard on the duty to give reasons, in 2002, the Supreme Court of Canada has applied it in a number of cases where the central issue was credibility. See, for example: R. v. Gagnon (2006), 207 C.C.C. (3d) 353 (S.C.C.); R. v. Dinardo (2008), 231 C.C.C. (3d) 177 (S.C.C.); R. v. R.E.M. , supra .

[ 30 ] The principles emerging from this line of authority are set out in R.E.M. , supra at paras. 48-50 and 54-6 by McLachlin C.J.C., speaking for a unanimous Court:

The sufficiency of reasons on findings of credibility – the issue in this case – merits specific comment. The Court tackled this issue in Gagnon , setting aside an appellate decision that had ruled that the trial judge’s reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that “[a]ssessing credibility is not a science”. They went on to state that it may be difficult for a trial judge “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”, and warned against appellate courts ignoring the trial judge’s unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge’s.

While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.

What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo , where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to the contradictory evidence. However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. “In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt” (para. 23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflicting evidence: Dinardo , at para. 30 .

An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge’s perceptions of the facts. As decided in H.L. v. Canada (Attorney General) , [2005] 1 S.C.R. 401, and stated in Gagnon (at para. 20 ), “in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected”. It is true that deficient reasons may cloak a palpable and overriding error, requiring appellate intervention. But the appellate court’s point of departure should be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law.

The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.

If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out.

[ 31 ] Applying these principles to the case at bar, the trial judge took the first seven pages of his reasons to correctly instruct himself on the law relating to credibility assessments and to correctly identify credibility as the central issue in the case. He also identified some of the most helpful factors for triers to rely on when assessing credibility:

One looks to the consistency of a witness’ evidence within itself, the consistency of a witness’ evidence with other witnesses, and the consistency of a witness’ evidence in the overall picture that evolves in the trial. … what is important is the objectivity of a witness’ evidence, the frankness of a witness.

[ 32 ] He noted that a witness’ demeanour is a relevant factor but one to be approached with caution and one that “does not play any great role” in this case.

[ 33 ] None of this initial reasoning could be criticized in any fashion. At page eight of his reasons, the trial judge began his analysis of the evidence in the case and continued until he reached his conclusion at page fourteen. These six pages set out the way in which he resolved the credibility issue. There were three critical steps in his reasoning process.

[ 34 ] First, he made findings on the one issue on which there was a substantial body of evidence that was independent of J.E.’ and of T.B.’s two conflicting accounts. That issue was whether J.E.’ intentions or interest in T.B. was benign and friendly or whether it was overtly romantic and sexual. He reasoned as follows:

I disbelieve the defendant’s description as an interest related to trying to empathise or understand or deal with her particular role and her failure to gain the management position that she so much desired.

The Defence evidence as to his intentions with respect to various encounters with the complainant, runs counter to the other civilian witnesses, the other witnesses in this case, and lacks consistency within [it]self, both as to the language he used, the nature of the conversations that he related to the Court, and as to the intent of his actions. As I have said, it supports a desire on his part to gain the complainant’s attention, and not to empathise or befriend her because of her failure to become a manager. The defendant’s evidence does not fit the overall picture, and is inconsistent with the other witnesses who may not have had the same interest as the defendant had in this case.

I reject the defendant’s evidence as to his intentions …

[ 35 ] Second, the trial judge made findings concerning the alleged sexual assault in the car, including favourable findings about T.B.’s credibility and findings about her reluctant decision to get into J.E.’ car:

I find his intentions were again repeated or renewed, in a sense to befriend her, to gain her attention. And when she took him up on his offer to drive her home, her reluctance, her caution in coming to all these determinations, and her dialogue with the accused are all indicators of that cautious concern of his earlier intentions. Her descriptions of the events are consistent with the overall picture and history of their association. She is clear, frank and consistent in her description of the events. There is not a tendency to overstate, but if anything, there is a tendency to understate.

[ 36 ] Finally, the trial judge concluded that he disbelieved J.E.’ denial of the sexual assault and held that the Crown had proved its case to the requisite standard:

His description of the event does not fit into the reality of the situation. I disbelieve the defendant. I am satisfied beyond a reasonable doubt that the Crown has made out its case with respect to the sexual assault that occurred in the automobile outside the parking lot at the place where she was being dropped off by the accused. As a result, there will be a finding of guilt.

[ 37 ] The above three steps in the trial judge’s reasoning are consistent with the classic authorities on how best to resolve issues of credibility. First, the trial judge was applying the approach recommended by O’Halloran J.A. in Faryna v. Chorny , [1952] 2 D.L.R. 354 at 356-7 (B.C.C.A.) by inquiring into the consistency or harmony of the two conflicting stories with the surrounding circumstances. O’Halloran J.A. stated:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions. [Emphasis added].

[ 38 ] This passage from Faryna v. Chorny has been repeatedly adopted in the modern Ontario Court of Appeal jurisprudence concerning credibility assessments. See, for example: R. v. Norman (1993), 87 C.C.C. (3d) 153 at 174 (Ont. C.A.); R. v. G.(M.) (1994), 93 C.C.C. (3d) 347 at 355-6 (Ont. C.A.)

[ 39 ] Second, the trial judge was also applying the caution that necessarily arises when a witness has given evidence that is internally inconsistent on a material point and that is inconsistent with other credible witnesses. As Galligan J.A. put it in R. v. G.(M.) , supra at 354:

… where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

Also see: R. v. B (R.W.) (1993), 19 W.C.B. (2d) 260 (B.C.C.A.) ; R. v. S.(W.) (1994), 90 C.C.C. (3d) 242 at 252-3 (Ont. C.A.); R. v. Winterfield (2010), 93 M.V.R. (5 th ) 34 at paras. 39-40 (Ont. S.C.J.).

[ 40 ] Finally, the trial judge was applying the well known proposition that “a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of the accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence”. See: R. v. D.(J.J.R.) (2006), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A); R. v. R.E.M. , supra at para. 66 ; R. v. Beteta-Amaya , 2011 ONSC 6633 at paras. 50-54 .

[ 41 ] I am satisfied that the trial judge’s process of reasoning, when resolving the issue of credibility, was more than sufficient to satisfy the functional and substantive test for reasons that emerges from the Sheppard line of authority. He found that J.E. had not been frank with the court on a very material issue and that J.E.’ story simply did not fit with the known circumstances. T.B.’s account, on the other hand, was fair and frank and understated and it did fit with the known circumstances. For all these reasons, he believed her version of the events in the car and disbelieved his version. This was a proper and transparent basis for finding that guilt of sexual assault had been proved beyond reasonable doubt.

[ 42 ] The second ground of appeal is, therefore, dismissed.

D. CONCLUSION

[ 43 ] As neither ground of appeal has succeeded, the appeal from conviction on one count of sexual assault must be dismissed. I would like to thank Mr. Halfyard and Ms. Davies for their helpful, well-researched, and focused submissions.

M.A. Code J.

Released: June 8, 2012