WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5 of the Criminal Code. This subsection reads as follows:

486.5 Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

A NON-PUBLICATION ORDER IN THIS PROCEEDING HAS BEEN ISSUED

UNDER SECTION 486.5 OF THE CRIMINAL CODE OF CANADA

CITATION: R. v. K., 2015 ONSC 3102

BRACEBRIDGE COURT FILE NO.: CR-14-07-00AP

DATE: 20150529

CORRECTED DATE: 20150603

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

H. K.

Appellant

T. Carlton, for the Crown

F. Addario and A. Burgess, for the Appellant

HEARD: April 15, 2015

Corrected Decision: The text of the original Reasons for Decision was

corrected on June 3, 2015 and the description of the correction is appended.

REASONS FOR DECISION

On appeal from the decision of The Hon. Mr. Justice J. Evans

Dated January 17, 2014

QUINLAN J.:

Overview

[1] Mr. K. seeks to quash convictions imposed by Evans J. of the Ontario Court of Justice on January 17, 2014, on counts of sexual assault and sexual interference relating to his granddaughter. The abuse is alleged to have occurred at the appellant’s cottage in Bala between August 3 and 5, 2012, when the complainant was 9 years old.

[2] The allegations involve “tickling” of the complainant by the appellant. The issue was whether the tickling was sexual in nature.

[3] The evidence was that tickling was a frequent activity in the family. Sometimes the complainant would ask the appellant to tickle her. She would usually lay face-down across the appellant’s knee and he would tickle her back under her shirt and her legs.

[4] The complainant alleged that during the August long weekend at the appellant’s cottage, the appellant touched her four times under her clothing in the place “where [she goes] pee”.

[5] The appellant’s evidence was that he never intentionally touched the complainant in any inappropriate places. He never put his hand under her underwear. If he did ever touch the complainant on her genitals outside of her clothes, it was completely accidental.

[6] The trial judge accepted the complainant’s evidence and disbelieved the appellant. After a two-day trial, he convicted the appellant of sexual assault and sexual interference. He stayed the sexual assault count under the Kienapple principle.

[7] On behalf of the appellant, Mr. Addario argues that the trial judge’s reasons were insufficiently responsive to the appellant’s main defence that the complainant was mistaken regarding the nature of the tickling. He argues that the trial judge’s conclusion was based on a material misapprehension of the evidence and that the trial judge placed undue emphasis on demeanour evidence.

[8] The appellant acknowledges that there was evidence on which a trier of fact could have convicted. As a result, the appellant does not seek an acquittal, but a new trial.

Evidence at Trial

The Complainant’s Evidence

Videotaped Statement

[9] Pursuant to s. 715.1 of the Criminal Code, part of the complainant’s evidence was entered through a videotaped statement she gave to the police on August 27, 2012.

[10] In the videotaped statement, the complainant said that there was a time in Florida during March break that year when the appellant was tickling her and he went “lower down [her] back, and then lower, and lower, and lower, and [she] did not like it at all.” She said she told her mother and then her grandmother, and “kinda (sic) said it the wrong way”. Her grandmother told the appellant, and they all “came in and they told [her] – well, they explained that um, - that [she’d] said it the wrong way and it could hurt people.”

[11] In the interview the complainant said that the incident in Florida was not “that serious yet…as it was this time we went to the cottage. I mean, he wasn’t the place where he stopped yet”. She said that she did not know if he was touching her at all in Florida – that he was touching her places she felt uncomfortable, but she didn’t know “if he was actually touching me”. She said that she “hadn’t explained it that specifically last time” and, when her mother, grandmother and the appellant talked to her about it, they said, “Oh, that’s not what he’s done.”

[12] The complainant said that, “everybody thought it was a mistake,” because he had a slightly bigger hand, so he might have gone lower down than he meant to, “but then he actually started going lower down on purpose.”

[13] According to the complainant, the touching at the cottage happened four times: the night the family arrived, one morning when she was on the couch with her younger siblings[^1] and her youngest sister had gone to get a bowl of Cheerios, one time after breakfast when her siblings were “glued to the movie”, and one time when everyone else had gone to the dock.

[14] The complainant did not tell the appellant to stop because she did not want to hurt his feelings again, as she had in Florida, when he had cried.

[15] During the course of the videotaped statement, the complainant pointed to her vaginal area when she explained where the appellant touched her. She also described it as the area on her stuffed cat that was the “poo hole”.

[16] The complainant said that, on the last occasion, when her brother came in to the cottage, the appellant stopped and told her to keep it a secret “because [he was] not really allowed to be doing this.”

[17] The complainant stated that the touching was under her underwear. She began to wear clothes so “he could not get at the places [she] felt uncomfortable.”

[18] The complainant said that, despite the appellant’s request to keep it a secret, she did not keep it a secret and she told her mother. The complainant told her mother that “what was happening in Florida was happening again, but it makes [her] feel really uncomfortable this time”. She “only told her [mother] a bit”. When she told her father, she ended up telling him everything.

[19] According to the complainant, it happened the first time at the cottage, when she got out of the truck; the second time, early in the morning when she turned on the movie and tried to “plug” the couch up with her siblings; the third time after breakfast when they watched a movie; and the fourth time, when everybody was down at the dock and she was finishing the movie.

The Complainant’s Evidence at Trial

[20] In addition to adopting her videotaped statement, the complainant was asked a number of questions in examination-in-chief.

[21] There were some inaccuracies and inconsistencies in the complainant’s evidence:

(a) she testified that she had given the videotaped statement when she was in school. She didn’t remember if it was early or later into the school year. When the complainant returned to the courtroom after a break, she said she had been really nervous and had made a mistake. She saw the date on the transcript and realized that when she spoke to the police, it was at the end of the summer; it was sunny outside, it looked like spring or summer, but a little bit of autumn. “Just perfect weather, kind of”;

(b) the complainant did not remember who was at the cottage on the weekend in question, but testified that she was “almost positive that maybe [her] cousins were there, too.” She testified she didn’t remember, but knew that at one point, her cousins were at the cottage after the March break trip to Florida;

(c) the complainant was unclear as to whether her brother was present during any part of the last incident; and

(d) in cross-examination, the complainant’s evidence was inconsistent with her videotaped interview as to whether she had fallen asleep in the car on the way to the cottage.

[22] The complainant testified that, when the appellant touched her in the places that made her feel uncomfortable, he touched her under her clothing, skin-to-skin. She described it as “the place where you go to the washroom”. The Crown asked the complainant to use the adult word. She asked if she could write it down. The Crown asked her to draw a diagram and circle the body part that the appellant touched that made her feel uncomfortable. The complainant circled “vagina?” She wrote and drew arrows to the words “really. You know, right?” and an arrow from “I told you”. A copy of the exhibit is appended as Appendix “A” to these reasons.

[23] The complainant’s evidence was that the appellant told her that he wasn’t really allowed to be touching her where he was.

[24] The complainant was not asked specifically about the number of times she was touched, but indicated that it happened when the appellant carried her into the cottage, when he tickled her the next morning after breakfast when her sister went to get a bowl of Cheerios, when her brother was getting a Coke and, the last time, when none of the other children were there and the appellant said to keep it a secret. [^2]

[25] In cross-examination, the complainant was asked whether the appellant had asked her to give him a kiss before he went outside. She agreed that she gave him a peck on the lips and then he told her she could do better. She testified that she didn’t like it when he said that.

[26] She was asked if she had then given the appellant an open-mouth kiss, and whether this was what the secret was about. She denied having done so, and said, “He’s lying.” She asked, “Why do people lie…why did he lie?” On re-examination, she said that that was not what the secret was about.

The Complainant’s Mother’s Evidence

[27] The complainant’s mother testified. She saw nothing out of the ordinary during the weekend at the cottage. She testified that tickling was a normal occurrence.

[28] After the incident in Florida, the complainant’s mother told the complainant that there were serious consequences to saying what she had said, and that she could not use those words and say something like that if it did not happen. She told the complainant that what happened in Florida must have been an accident.

[29] After the trip to the cottage, the complainant told her that the tickling made her uncomfortable and that she did not want to go to the cottage anymore when the appellant was going to be there.

[30] After the complainant told her father what had happened, and he had spoken to his sister, the complainant’s mother contacted the police.

The Appellant’s Evidence

Examination-in-Chief

[31] The appellant testified that he has never touched the complainant in any inappropriate places. He never put his hand under her panties, either in Florida, or at the cottage. If he did touch her at all, outside of her clothes, it was completely accidental, and he “sure wasn’t made aware of it”.

[32] The appellant testified that he would usually tickle the complainant when she was on her belly, across his lap in front of a movie or the television. Sometimes he would tickle her if she was sitting up. She liked to be tickled, “definitely under her clothes”, typically on the back, arms, and on her legs.

[33] In Florida, the complainant told the appellant’s wife that “she was uncomfortable with the places I was tickling her”. He testified that, to this day, he didn’t know whether he actually accidentally touched her or not. It could have happened when he was stroking her legs that his hand somehow touched her in some body part that she wasn’t comfortable with, which, he had to presume, as she said, was “the place where she goes pee”.

[34] The appellant, his wife and the complainant’s mother tried to get across to the complainant that, “if it happened, it happened totally accidentally”.

[35] As a result of what happened in Florida, the complainant’s mother told him to behave as normal, take his lead from the complainant, and try to keep the tickling at the waistline or higher. The appellant testified he did this.

[36] He tickled her in between the time in Florida and the time at the cottage. Earlier in the summer, the complainant’s family and the complainant’s cousins had been at the cottage together.

[37] When asked if he ever tickled the complainant under her underwear or under her pants, he testified, “Absolutely not. Absolutely not.” He testified that he asked her several times during the tickling whether she was comfortable, and whether she wanted him to stop, because he was very sensitive to make sure that supposed incidents like Florida would not happen again.

[38] The appellant testified that, on the August long weekend, the complainant’s family arrived between 10:00 and 11:00 p.m. He and his wife went out to greet them and he asked the complainant whether she wanted him to carry her to the cottage, which he did. The other children came along with their parents. He cannot remember whether he was inside the cottage then. He put the complainant on a chair and then went out and tried to help his son unpack. When the complainant was sitting in the chair, no one else was in the cottage yet. They were just coming in the door. He did not tickle the complainant when he brought her in from the truck.

[39] The appellant testified that the next morning, he sat beside the complainant on the couch. His other grandchildren were there. He tickled the complainant. He did not touch her in the vaginal area. His wife and the complainant’s mother were “probably” making breakfast and he didn’t know where the complainant’s father was.

[40] There were further tickling sessions that day, after breakfast, when the complainant was by herself, watching the rest of the movie. The appellant tickled her under her shirt, on her back. He did not tickle her in any private place. He asked her throughout whether she was uncomfortable, and whether she wanted him to stop. When the complainant’s younger brother came up from the dock and the appellant “hesitated”, she told him not to stop. That is when the open-mouth kiss happened.

[41] The secret had to do with the complainant giving him an open-mouth kiss. When the appellant was about to go outside, he asked the complainant to give him a kiss. When she did, he said to her that she could do better than that. Then she gave him a kiss with an open mouth. He asked her where she learned that, and she said that he had taught her. He disagreed and told her that he had taught her “nibble kisses” and that they’d better not tell her mother. It would be their secret. The secret came up again later that day when he asked the complainant for a kiss and he said, “Don’t forget. We’ve got a secret.”

Cross-Examination

Florida

[42] The appellant agreed that the incident in Florida was a fairly serious matter. He testified that that was why he told his wife that they had to tell the complainant’s mother right away.[^3] He agreed that he wanted it to be out in the open, to have a family discussion about it, and did not want it to be a secret. The complainant’s concern at the time had been tickling her in “the place where she goes pee”. He assumed that meant “either on her bum or her vagina”.

The Secret

[43] The appellant’s evidence was that there was only one secret. After the complainant kissed the appellant and he told her she could do better, he wanted her to give him a firmer kiss: he had told his grandchildren that the more kisses and the better kisses they give him, the more hair would grow on his head. When she gave him an open-mouth kiss, he was shocked and surprised, and thought it was inappropriate. After asking her where she had learned that and telling her he had not taught her that, he told her, “we’d better not tell your mother,” because the complainant “shouldn’t do this” or “we shouldn’t do this” and he told her to keep it a secret.

[44] The appellant disagreed that this was completely out of line with his family values of talking about things out in the open; he didn’t want the complainant to get in trouble with her mother. When asked whether he would not want to alert her parents that there had been some behaviour that needed to be clarified, the appellant testified that, if he was going to teach the complainant about secrets and snitching, what better way to do this than on something that is not huge. He agreed that he saw this as an opportunity to teach his granddaughter how to keep secrets and lie.

[45] Later on in the day, he reminded the complainant about the secret.

The Police Interview

[46] The appellant was cross-examined about a statement he gave to the police. He was asked whether he told the police that he might have gone under the complainant’s clothing. The appellant testified that the police did not ask him “what specific instances” and he did not know or was not told if it was in front of the television or in the living room. He testified that he “did not go under her clothing … in Florida, nor in Bala”. He did not touch her in the area where she goes pee. If he did, “it was completely unintentional, and [he] sure wasn’t aware of it”.

[47] The appellant was cross-examined about the following exchange with the police:

Q. “So, did you go under the waistband on that day in Bala?”

A. “I have no idea. I don’t even know what instance we’re talking about.”

[48] The appellant again testified that if he touched the complainant inappropriately, it was completely accidental. He maintained that he “absolutely” did not touch her under her panties. There was “absolutely” never any instance in the cottage when he went below her waistband.

Positions of the Parties at Trial

[49] Written submissions were provided to the court.

The Defence Position at Trial

[50] The defence argued at trial that the very narrow issue before the court was whether the conduct alleged, intentional touching or tickling of the vagina with the appellant’s hand, was proven beyond a reasonable doubt. While the complainant presented as a mature and articulate witness, her evidence was inconsistent, vague, confusing, improbable on crucial matters, not corroborated in any meaningful way, and was insufficiently reliable to prove the allegations beyond a reasonable doubt. Moreover, the whole of her evidence was consistent with the substantial likelihood that the appellant tickled her in a non-sexual manner that nonetheless made her feel uncomfortable.

[51] The complainant’s repeated comparison of the touching that occurred at the cottage with the earlier incident in Florida, where she was not sure if the appellant was “actually touching” her sexually, was one that should be fatal to her overall reliability in establishing, beyond a reasonable doubt, the actus reus of the allegations.

[52] In addition, the improbability that the appellant had the opportunity while six other family members were “milling about” affected the reliability of the complainant’s evidence.

[53] The complainant’s other descriptions of the touching were vague and confused because of her description of being “uncomfortable” about what the appellant was doing and being touched in places that she “didn’t really want him to”.

[54] At its highest, the complainant’s evidence disclosed the touching of her body underneath her pants or underwear. There was no direct evidence that the appellant touched her genitals. She never used the word “vagina” to describe the place where she was touched. The fact that the complainant had also put “bladder?” on the diagram supports the substantial likelihood that the touching was only near her sexual zone. The fact that “vagina” was followed by a “?” and was not connected to the body of the stick figure is not the type of reliable evidence to satisfy the court that the elements of the offence were proven beyond a reasonable doubt.

[55] There were inconsistencies in the complainant’s evidence: when she gave the videotaped statement, whether her cousins were at the cottage that weekend, whether she had been asleep in the car before arriving at the cottage, and whether her brother was in the room when the appellant talked about the “secret”.

[56] The appellant candidly acknowledged the possibility that he had accidentally touched the complainant in Florida in a way that made her feel uncomfortable.

[57] His demeanour was consistent, reasonable and fair; however, demeanour evidence must be approached with particular care.

[58] In relation to the secret, the complainant only acknowledged that there had been a kiss when confronted with the appellant’s account of the secret. The appellant was not offering an alternate version of why he asked the complainant to keep the secret when he testified that it was an appropriate opportunity for the complainant to learn about secrets: he was merely defending his decision against Crown counsel’s criticism.

[59] The police interview disclosed no inconsistencies with the appellant’s trial evidence.

The Crown’s Position at Trial

[60] The case turned on the resolution of issues of credibility and reliability, and the application of the principles in R. v. W.(D.). The complainant was a truthful and reliable witness. The testimony of the appellant was simply not believable.

[61] The Crown met its burden of proof beyond a reasonable doubt in relation to the counts of sexual assault and sexual interference.

The Trial Judge’s Reasons

[62] The trial judge found that the complainant presented as a very intelligent, articulate and sensitive witness, who evidenced a good recollection of events and the details surrounding those events. Although she did not verbally specify the place that the appellant tickled her, she described it as the place where she goes pee and as the area on her stuffed cat that she described as a “poo hole”.

[63] The trial judge noted that the complainant demonstrated no animus toward the appellant. She acknowledged that she enjoyed being tickled and that it was a common practice within her family. She further acknowledged that on the first occasion in Florida, when she felt uncomfortable with the appellant’s tickling, she was not sure whether or not he had actually touched her in a particular place. The trial judge found that the complainant appeared to accept that the incident in Florida was a mistake.

[64] The trial judge noted that, after the August long weekend, the complainant did not want to go to the cottage if the appellant was going to be there. Although she did allow him to tickle her that weekend, she did not tell him to stop when she felt uncomfortable because she did not wish to again hurt his feelings. The court found that that was not at all surprising, given her relationship with the appellant and his reaction to her statement in Florida.

[65] The trial judge noted the contradictions in the complainant’s evidence, including the timing of her videotaped statement and whether or not her cousins were at the cottage on the weekend, she was asleep in the car when she arrived at the cottage, and her brother was in the room on one of the tickling occasions. The trial judge found that taken individually, or even as a whole, the contradictions did not shake his confidence in the credibility or reliability of the complainant’s testimony, particularly with respect to the relevant core issue: the inappropriate touching.

[66] Apart from her reluctance to verbalize the specific part of her body being tickled, the complainant was not evasive and her responses were direct, straightforward and appropriate. The trial judge accepted her testimony as being wholly credible and reliable.

[67] The trial judge found the complainant’s mother’s evidence to be both credible and reliable. She testified in a direct, straightforward manner without bias or animus toward the appellant. Her evidence generally confirmed much of the complainant’s testimony, the change in her daughter after the August long weekend and her demeanour when the complainant told her what had happened.

[68] The trial judge next dealt with the evidence of the appellant. He noted that the appellant categorically denied any intentional sexual touching of his granddaughter. His evidence was, for the most part, consistent with that of the complainant, except for the sexual touching and the open-mouth kiss.

[69] The trial judge found a difference in the appellant’s demeanour and response in examination-in-chief and cross-examination. He found that the greatest concern with respect to the appellant’s credibility arose from his proffered explanation for the secret. He found that explanation to be contrived and unworthy of belief, and his explanation for not telling the complainant’s mother to fly directly in the face of common sense. He noted that the complainant’s reaction and response to the suggestion of an open-mouth kiss by defence counsel was “immediate, visceral and entirely believable”. As well, such conduct was entirely at odds with the character and demeanour of the complainant, as evidenced throughout her testimony and as described by her mother.

[70] The trial judge found another area of “credibility concern” in the appellant’s evidence arising from the inconsistency between the accused’s categorical denial in his evidence of going under the waistband at the cottage, and his statement to the police which was, “I have no idea”. The trial judge found the appellant’s explanation of the inconsistency proffered in re-examination, that it was his first experience in a police station and he had been told a few days before that he needed heart surgery, to be “incredible and at odds with common sense, given that he knew he was being investigated by the police with respect to a serious allegation”.

[71] The trial judge rejected as untrue the appellant’s categorical denials of any sexual touching, “not only because I find [the complainant’s] evidence to be credible and reliable and convincing beyond a reasonable doubt, but also because I find some significant aspects of the [appellant’s] testimony to be unworthy of belief”. The appellant’s testimony, in the light of the whole of his evidence, did not raise any reasonable doubt.

[72] The trial judge then conducted an analysis under R. v. W. (D.). He found the possibility that the contact was accidental to be without merit and unsupported by any cogent evidence. The trial judge was satisfied that the contact was of a sexual nature and was intentional. Accordingly, he found the accused guilty of both counts.

Analysis

Were the Trial Judge’s Reasons Sufficiently Responsive?

[73] Appeal courts are to adopt a functional approach to reviewing the sufficiency of reasons. As noted in R. v. Dinardo:[^4]

The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel [citation omitted].

[74] For that reason, in deciding whether the trial judge’s reasons were sufficiently responsive, it is necessary to consider not only the reasons for judgment and the submissions of counsel, but also the evidence at trial.

[75] The appellant argues that the reasons fail to respond to the central defence submission that the complainant’s evidence was not sufficiently reliable to prove guilt beyond a reasonable doubt.

[76] The trial judge directly addressed the reliability of the complainant’s evidence. He dealt with her ability to observe, recall and recount the events at issue. These are relevant factors to consider in assessing the reliability of a witness’ testimony.[^5]

[77] Although the trial judge did not expressly deal with the defence submission that the complainant equated what happened in Florida, where she was not sure if the appellant was “actually touching [her]”, with what happened at the cottage, the trial judge was alive to the complainant’s evidence as to what happened in Florida. He noted that the complainant appeared to accept that what happened in Florida was a mistake.

[78] It is clear from a review of the evidence, including the videotaped interview that formed part of the evidence, that the complainant did not equate what happened in Florida with what happened at the cottage. The complainant was not sure if the appellant intentionally touched her in Florida; her evidence was that the touching at the cottage went farther. In her interview the complainant said that the incident in Florida was not as serious as the incident at the cottage. She said “he actually started going lower down on purpose.” The touching at the cottage was also accompanied, on the last occasion, by the appellant’s comment that they were to keep it a secret because he was not really allowed to be doing what he was doing.

[79] The complainant’s account of the touching was not, as argued by the appellant, “vague, inconsistent and contradictory”. The trial judge dealt with the complainant’s reluctance to verbalize the area where she was touched and contrasted it with the directness of her other evidence. He noted that she described the area as “the place where she goes pee”, an area on her stuffed cat that she described as a “poo hole”.

[80] In the course of the trial, when asked to circle on her diagram where the appellant touched her, the complainant circled “vagina” and put “?” after it. The trial judge was alive to the fact that the complainant did not “verbally specify that place as her vagina”.

[81] The reasons demonstrate that the trial judge considered the manner in which the complainant described the location of the touching and was satisfied of the reliability of that evidence.

[82] The trial judge directly dealt with the defence submission that the touching at the cottage was accidental: in accepting the complainant’s evidence concerning the number of contacts (her evidence was of four occasions of tickling underneath her underwear, “skin-to-skin”, on “the place where [she] goes pee”), the trial judge found that the possibility of unintentional touching “was without merit and unsupported by any cogent evidence.”

[83] In reviewing his reasons as a whole, I am satisfied that the trial judge fully considered the central issue of whether the complainant’s evidence was capable of establishing the actus reus of the offences beyond a reasonable doubt.

[84] The trial judge was alive to the inconsistencies in the complainant’s evidence. He specifically referred to the inconsistency in the complainant’s evidence as to whether her younger brother was present on the last occasion. In viewing these inconsistencies the trial judge determined that, even as a whole, “these contradictions did not shake the Court’s confidence in the credibility or reliability of [the complainant’s] testimony, particularly with respect to the relevant core issue: the inappropriate touching.”

[85] The appellant argues that the trial judge failed to resolve the issue of opportunity. On the appellant’s evidence, he was alone in the cottage with the complainant when the family first arrived, and when the remainder of the family were at the dock. This is consistent with the complainant’s evidence and demonstrates opportunity. The evidence was that on the other two occasions, one or more of the complainant’s younger siblings were present. The only evidence that any adult may have been in the vicinity during any of the occasions of touching was the appellant’s evidence that the complainant’s mother and the appellant’s wife were “probably” in the kitchen. Considering this evidence, I do not find that the trial judge erred in failing to directly address the issue of opportunity.

[86] The trial judge did not bolster his ultimate conclusion with evidence that the complainant’s behaviour changed after the weekend at the cottage. Rather, a review of the reasons discloses that he was reviewing the evidence and noting that the complainant’s mother’s evidence was confirmatory of the complainant’s in that regard.

[87] Although the reasons were brief, read in their entirety in the context of the evidence, the arguments and the trial, they demonstrate that the trial judge was alive to the defence concerns about the reliability of the complainant’s evidence. The trial judge considered the manner in which the complainant described the area where the appellant touched her. He was aware that she accepted that what happened in Florida was probably a mistake. The trial judge specifically adverted to the inconsistencies in the complainant’s evidence. Despite these inconsistencies, he found the complainant’s evidence to be both credible and reliable. He considered the appellant’s denial and gave reasons for rejecting that denial.[^6] He resolved the contradictory evidence of whether the touching was intentional sexual touching, accepting the complainant’s evidence of the manner in which the touching took place and found, given the number of instances, the possibility of it being accidental was without merit. He further resolved the contradictory evidence in relation to the “secret”.

[88] I am satisfied that the reasons were sufficiently responsive to the issues at trial.

Was the Trial Judge’s Conclusion Based on a Material Misapprehension of the Evidence?

[89] I do not accept that the trial judge misapprehended inconsistencies in the appellant’s evidence. In the course of his evidence at trial, the appellant categorically denied touching under the complainant’s underwear. In his statement to the police, in response to the question, “So, did you go under the waistband that day in Bala?” the appellant responded, “I have no idea. I don’t even know what instance we’re talking about.”

[90] The trial judge did not err in finding that this was a significant inconsistency in the appellant’s evidence or that the appellant’s explanation for that inconsistency was “at odds with common sense, given that he knew he was being investigated by the police with respect to a serious allegation”.

Was There Over-Reliance on Demeanour Evidence?

[91] A trial judge is entitled to consider demeanour evidence. A review of the reasons does not support that demeanour evidence played the “large and possibly determinative role” argued by the appellant.

[92] The reasons demonstrate that demeanour played only a small part in the trial judge’s assessment of the complainant’s evidence. Rather, the trial judge considered the reliability and credibility of her evidence, apart from her demeanour.

[93] The trial judge had the benefit of seeing the complainant’s demeanour during her videotaped statement and in the course of the trial. The complainant’s mother had testified about the complainant’s usual demeanour. The trial judge’s consideration of the complainant’s demeanour when asked about the open-mouth kiss was an appropriate use of demeanour evidence.

[94] The change in the appellant’s manner when he responded to questions was also an appropriate consideration for the trial judge, and was clearly only a minor factor in his assessment of the appellant’s evidence. The trial judge found the greatest concern with respect to the appellant’s credibility arose from his proffered explanation for the secret, and that concerns also arose from the inconsistency between the appellant’s evidence concerning whether he had touched the complainant under her waistband or underwear.

[95] A review of the reasons as a whole demonstrates that the trial judge did not place an over-reliance on demeanour evidence.

Conclusion

[96] For the foregoing reasons, the appeal is dismissed.

[97] The appellant is directed to surrender himself into custody to commence serving his sentence on June 6, 2015.

QUINLAN J.

Released: June 3, 2015

June 3, 2015 – Correction:

Para. 97 now reads: The appellant is directed to surrender himself into custody to commence serving his sentence on June 6, 2015.

[^1]: The complainant has three younger siblings. At the time of trial, the complainant was 10 years old and her sisters were 8 and 5 and her brother was 7.

[^2]: In the videotaped interview, the complainant told the police that her younger brother came in during the last incident. This was not dealt with in examination-in-chief. In cross-examination, the complainant testified that everyone was at the dock and her brother was getting a Coke. Later, she indicated that her brother was not still in the room getting a Coke. It was unclear as to which occasion the complainant was referring when her brother was no longer in the room.

[^3]: This appears to contrast with the complainant and her mother’ evidence, that the complainant first told her mother and then her grandmother.

[^4]: 2008 SCC 24, [2008] 1 S.C.R., 788 at para. 25.

[^5]: R. v. C.(H.), 2009 ONCA 56, at para. 41.

[^6]: In the next section I will deal with the appellant’s argument that the trial judge misapprehended the evidence in so doing.