COURT FILE NO.: CR-15-4237-00AP DATE: 20170719 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – YOUNG VON SEEFRIED Appellant
Peter Scrutton for the Crown/Respondent Frank Addario for the Appellant
HEARD: June 21, 2017
ruling on summary conviction appeal
Boswell j.
INTRODUCTION
[1] It’s 4:30 a.m. in Markham. A man sees the flashing lights of a police cruiser in his rear view mirror and pulls his car to the side of the road. An officer approaches the vehicle. He asks the man about whether he has consumed any alcohol. He has not. The man has a passenger; his girlfriend. The officer asks the woman if she has been drinking. She says she has had a couple of bottles of beer.
[2] The officer asks the woman to accompany him back to his cruiser. She sits in the back seat, with the door open. The officer asks her a few personal questions, then wonders aloud if she will go home with him. She’s not agreeable. The officer tells her she is sexy. He kisses her and slips his hand under her shirt. His hand moves down to her shorts and she feels it slide under the waistband. Then his fingers on her vagina. The woman notices that the officer’s erect penis is exposed through the fly of his pants. He puts her hand on it. He asks if she wants to taste it. She does not.
[3] The woman asks the officer to let her go. He asks her again if she will go home with him. She is still not agreeable. He lets her go back to her boyfriend’s vehicle. A few minutes later, the officer again approaches the car. He tells the man to update the colour of his car with Service Ontario. He mentions how lucky the man is to have such a pretty girlfriend. The encounter ends.
[4] The woman calls 911. The officer is charged with, then convicted of, sexual assault. He appeals the conviction.
[5] Like many other sexual assault trials, the outcome of this one turned on the trial judge’s assessment of the credibility of the complainant and of the officer (now the appellant). The appellant argues that the trial judge made two legal errors when assessing his credibility. He submits that those errors infected the entire credibility assessment and that justice requires that his conviction be set aside and a new trial ordered.
[6] Stated briefly, the alleged errors are: (1) the trial judge moved improperly from the rejection of part of the appellant’s evidence to a conclusion that he fabricated his evidence to avoid culpability; and (2) the trial judge improperly engaged in propensity reasoning to conclude that the appellant was the type of person who would engage in the risky behaviour alleged in the offence.
[7] I will flesh out the facts a little more to provide additional context before I examine the appellant’s allegations in detail.
THE FACTS
The Roadside Stop Begins
[8] The appellant was a ten-year veteran of the York Region Police Service. He was on patrol duty in Markham in the early morning hours of January 4, 2015.
[9] There is little controversy about how the traffic stop began. The complainant, X.X., and her boyfriend, J.F., had been at a karaoke bar. They were headed to meet a friend with the plan to go to a restaurant for some food. They were in J.F.’s car – a Mercedes. It had recently been painted gold. Its unusual colour caught the attention of the appellant, who ran a check on the car and found that it was registered as being red. He decided to pull the car over and warn the driver that the registration needed to be updated.
[10] The appellant activated his emergency lights. The vehicle he was in – a Ford SUV – was equipped with a forward facing dash camera that automatically began recording when the emergency lights were activated. It could be manually shut off, however, and the appellant had a practice of shutting it off when conducting traffic stops. He followed that practice on this occasion and turned off the camera even before his vehicle had fully come to a stop.
[11] The appellant approached the driver’s side door of the vehicle. He could detect the odour of alcohol and so he asked J.H. about whether he had been drinking. J.H. had not consumed alcohol. The appellant then asked X.X. if she had been drinking. She said she had consumed two or three bottles of beer. The appellant asked X.X. to accompany him back to his vehicle. She complied.
The Interaction in the Police Vehicle
[12] Certain facts about what happened after X.X. accompanied the appellant back to his vehicle are not in dispute. For instance, it is common ground that:
(a) X.X. got into the rear passenger side of the vehicle. Her legs were fully inside the vehicle; (b) The door remained open; (c) The vehicle was equipped with a rear-facing camera, but it was not activated; and, (d) The appellant did not keep notes of his interaction with X.X. He did write down her phone number, but he wrote it in the back of his notebook.
[13] Just about everything else in terms of what happened at the police vehicle is in dispute.
[14] The version of events testified to by X.X., and accepted by the trial judge, is reflected in the introductory section of this ruling.
[15] The appellant’s version of events was benign and significantly at odds with that of X.X.
[16] The appellant testified that as he was talking to the occupants of the Mercedes, he became suspicious that something was odd between them. When he asked about their relationship, J.H. said they were friends; X.X. said J.H. was her boyfriend. The appellant said he had concerns that perhaps they were having a domestic incident, or perhaps X.X. was an escort. He thought it would be best to separate the two of them and speak to her independently.
[17] The appellant testified that when she got out of J.H.’s car, X.X. became much happier, cheerful and flirtatious. He said that at one point she even winked at him. He described a brief conversation where he questioned X.X. about her relationship with J.H. and he confirmed that everything was okay between them. He then told her she could go back to her own vehicle.
The Roadside Stop Ends
[18] X.X. returned to J.H.’s car. J.H. questioned her about why the police officer asked her to go to his car. She said she told him, “I’ll tell you later”. She was concerned that she would not be able to control her emotions and the roadside stop might escalate into something else. She testified that she told him about the sexual assault as they drove away.
[19] J.H. said that when he initially asked what happened, X.X. told him, “Do you believe it? The police officer said he likes me and he kissed me”. He said she looked frightened.
[20] The appellant returned to the vehicle and gave J.H. a warning about updating the colour of his car. According to both X.X. and J.H. he made a comment about J.H. being lucky because X.X. is so pretty.
[21] J.H. said as they drove away, X.X. began crying.
[22] About a half hour later the appellant called X.X.’s phone number two times: at 5:10 and 5:11 a.m. On the second occasion, he left a voicemail message saying, “Hey X.X. I hope you got home okay.”
THE POSITIONS OF THE PARTIES AT TRIAL
[23] The submissions of counsel at trial focused, not surprisingly, on the credibility of the two main witnesses: the appellant and X.X. Defence counsel outlined the features of the testimony of X.X. that he thought raised questions about her veracity. He also explained why the evidence of the appellant ought to have at least raised a reasonable doubt about his guilt.
[24] Defence counsel pointed to, amongst other things, frailties in the evidence of X.X. about her consumption of alcohol. He suggested that her narrative of the assault evolved over time. And he referred to what he described as the “brazenness” of the alleged assault as support for the assertion that the complainant’s version of events was not believable.
[25] The assault allegedly occurred during a traffic stop, in a police vehicle with the door open and interior light on, on the side of a major thoroughfare (Woodbine Avenue), while the vehicle’s emergency lights were flashing. The boyfriend of X.X. was sitting in his own car just a few metres away from the police vehicle. J.H. testified that several cars passed along the roadway during the traffic stop. Presumably some of the passersby would have been curious about the stop and slowed to take a look. The defence submission was that the version of events testified to by X.X. was so implausible as to stretch credulity.
[26] Conversely, Crown counsel urged upon the court a number of reasons to find the evidence of X.X. to be credible and reliable, including her forthright demeanour, the corroboration of some of her evidence through other witnesses and the lack of any motive to fabricate evidence. The Crown submitted that the circumstances of the alleged assault were not as implausible as defence counsel made them out to be. The incident occurred at 4:30 a.m. when there was very little traffic. It was dark and rainy outside. The windows of the police vehicle were tinted. If J.H. could not see what was going on from ten feet away, then it would be unlikely any other passerby could see what was going on.
THE TRIAL JUDGE’S REASONS
[27] Undoubtedly this case turned on the trial judge’s assessment of the credibility of the two principal parties: the complainant and the police officer. They were the only witnesses to what happened in the cruiser. They gave diametrically opposed accounts about what happened.
[28] This case might be described as a classic R. v. W.(D.), 1991 SCC 93 case. In cases where credibility is an important issue, W.D. reminds the trier of fact to apply the reasonable doubt standard to that issue. While the trial judge did not precisely follow the standard WD template in his reasons, there is no assertion that he did not properly apply its principles.
[29] Rather, the appellant’s assertion is that the trial judge made legal errors along the pathway to his conclusion that the appellant’s evidence was not credible and did not raise a reasonable doubt about his guilt.
[30] The trial judge found X.X. to be a “powerful and persuasive witness”. He found her evidence to have been substantially corroborated by other evidence and sufficient to support a finding that she had been sexually assaulted. He then went on to consider the evidence of the appellant.
[31] It is abundantly clear from the trial judge’s detailed reasons, that he did not find the appellant to be a credible or persuasive witness. To the contrary, the trial judge identified a number of reasons why he rejected the evidence of the appellant and found him not to be credible or reliable.
[32] The trial judge made the following findings amongst others:
(a) The appellant testified that he was aware of a York Region Police Service directive that his dash camera was to remain on during all traffic stops. He admitted that he ignored the directive and turned the camera off during most stops. His reason for doing so was that he found it easier to build a rapport with people when they realized they were not on video. He also said that he did not give out a lot of tickets and did not consider it necessary to have a record of warnings. The trial judge rejected the appellant’s evidence in this area as “nonsensical”. He said the appellant’s “stated reasons for this practice are irrational, directly impact his personally safety, and frankly, cause me to question his truthfulness”; (b) The trial judge concluded that there was nothing to justify the appellant requesting to speak to X.X. away from J.F. There was no interaction between J.F and X.X. that raised any concern. There were no observable injuries and no signs of distress. The appellant testified that he sought to speak to X.X. alone because of a concern about domestic issues or vice-related issues. The trial judge found this evidence to be “an obvious fiction designed to justify the defendant’s removal of the complainant from the passenger side of the vehicle that night”; (c) The trial judge “emphatically” and “categorically” rejected the appellant’s evidence that X.X. had been flirtatious with him and had even winked at him; (d) The appellant did not deny making the statement to J.F. to the effect that he was lucky that his girlfriend was so pretty. The trial judge concluded that the appellant had indeed made this statement; (e) The trial judge rejected the appellant’s explanation for the calls he made to X.X. at 5:10 and 5:11 a.m. The appellant said he was just making sure that X.X. got home safely. The trial judge found this evidence to be “nonsensical” as well. By this point the appellant knew there were no domestic violence-related issues. There was no reason to be calling to check up on a passenger in a car stopped for a Highway Traffic Act violation. The appellant did not extend the same concern for J.H.; he did not check to make sure J.H. got home safely; and, (f) The officer did not utilize the rear seat camera in the police vehicle, even though on his version of events, his purpose in speaking to X.X. in the back of the vehicle was to potentially gather evidence. Moreover, he did not keep any notes about his interaction with X.X. He did mark down her phone number, but not in the part of his notebook where he referred to the traffic stop. Instead he wrote it in the back of his notebook. The trial judge rejected his explanation that he did so because it wasn’t generally a part of the investigation. All the appellant noted was X.X.’s first name and her phone number. He failed to cross-reference it in any way to the incident in issue. Again, the trial judge concluded that the appellant was simply trying to fashion a justification for having secured her number and called her twice.
[33] The trial judge went on to assess what he called the “brazen act defence”. He characterized defence counsel’s submissions about the implausibility of the events described by X.X. as an assertion that the appellant would not have committed the offence due to the risk of detection. He found that this submission was akin to suggesting the appellant was not the sort of person who would commit the offence given the risk of detection.
[34] The trial judge went on to say that the defence submissions potentially engaged good character considerations or “positive propensity-type reasoning”. He held that he did not need to engage in this type of reasoning because neither party expressly raised it in argument and because he rejected the “brazen act defence” on other grounds.
[35] But the trial judge then went on engage in a propensity analysis. He indicated that to consider the “brazen act defence” he must consider the subjective characteristics of the appellant. He made the following observations about the appellant:
(a) He was a risk-taker; (b) He deliberately ignored mandatory directives concerning the use of dash cameras; (c) He was more concerned about avoiding court appearances than performing his public duty; (d) He was the type of police officer who would persist in stopping people operating their motor vehicles even though he knew he is not going to issue a ticket; (e) “His everyday police work was rife with assumed risk”.
[36] The trial judge concluded, in rejecting what he called the “brazen act defence”, that the subjective make-up of the appellant attenuated any submission that he was not the sort of person who would be risk averse given the chance of detection.
[37] To be fair, the “brazen act defence” was not rejected solely on propensity grounds. The trial judge also concluded that the circumstances did not involve so great a risk of detection as to make X.X.’s evidence implausible.
[38] Ultimately, the trial judge concluded that he had “enormous” difficulty with the evidence of the appellant and “serious problems with his credibility”.
THE POSITIONS OF THE PARTIES ON APPEAL
[39] No dispute is taken with the trial judge’s credibility findings in terms of the evidence of the complainant, X.X.
[40] The appellant, however, asserts that the trial judge made two legal errors during his assessment of the appellant’s credibility. In particular:
(a) The trial judge found the appellant’s explanation about why he turned off his dash camera at traffic stops “illogical”, then equated the illogical nature of the evidence with dishonesty. Doing so was an improper leap from a rejection of the appellant’s explanation to positive proof that he was lying; and, (b) The trial judge engaged in improper propensity reasoning to conclude that the appellant was a risk taker – just the type of person likely to commit a brazen sexual assault in a police cruiser during a traffic stop.
[41] The appellant submits that the trial judge’s errors loom large in his credibility assessment. He says it is impossible to know exactly how significant a role they played, but they were clearly important considerations. The trial judge’s credibility assessment is tainted with error, in the appellant’s view, and in the result the conviction is not safe and should be overturned.
[42] The Crown argues that the trial judge did a careful and thorough assessment of the credibility of both witnesses. He delivered “model reasons for conviction”.
[43] The Crown submits that the trial judge was entitled to consider the illogical nature of parts of the appellant’s testimony as part of his overall credibility assessment. At no time did the trial judge leap from a rejection of evidence to the conclusion that the evidence was fabricated. He did not use a rejection of any part of the appellant’s testimony as positive evidence of guilt.
[44] The Crown further submits that the trial judge did not engage in impermissible propensity reasoning. He expressly stated that he was not drifting into a determination that the appellant was guilty of committing this offence because of his approach to police directives and the general performance of his duties. Moreover, he concluded that the circumstances prevailing at the time of the alleged assault were not as objectively implausible as the appellant asserted.
[45] In the result, the Crown urges the court to give the trial judge’s reasons the deference they are due and dismiss the appeal.
ANALYSIS
[46] The grounds of appeal raised in this case directly and solely relate to the trial judge’s assessment of credibility.
[47] It is well-settled that a high level of deference must be accorded to the credibility findings of a trial judge. They will not be disturbed absent a palpable and overriding error: see H.L. v. Canada (Attorney General), 2005 SCC 25 at para. 53. For this reason it is rare to see appellate intervention based on deficiencies in a trial judge’s credibility analysis: R. v. Dinardo, 2008 SCC 24 at para. 26; see also R. v. J.J.B., 2013 ONCA 268 at para 22.
[48] Having said that, a legal error made in the assessment of credibility may displace the deference usually afforded to a trial judge's credibility assessment and may require appellate intervention. R. v. A.M., 2014 ONCA 749 at para. 19.
[49] The appellant asserts that there were two legal errors made by the trial judge that not only displace any deference that would otherwise be accorded to his reasons, but which significantly undermine the safety of the conviction.
[50] I will examine the two alleged errors in turn. Both of them relate to an alleged improper use of evidence.
The Leap from Rejection to Fabrication
[51] The first alleged error relates to the use the trial judge purportedly made of the appellant’s evidence about why he routinely turned off his dash camera during traffic stops, contrary to York Region Police Service policy.
[52] The trial judge accepted that the appellant had a general practice of shutting off his dash camera during traffic stops. There was clear evidence to support that finding. He went on to say,
But his stated reasons for this practice are irrational, directly impact his personal safety, and frankly, cause me to question his truthfulness. If I have not made it clear, I have serious trouble with this evidence.
[53] The appellant argues that the foregoing passage demonstrates that the trial judge equated disbelief of the appellant’s explanation with concoction. In other words he suggests that the trial judge rejected the appellant’s explanation for why he routinely turned off his dash camera, then improperly leapt to the conclusion that the appellant had fabricated the explanation.
[54] The appellant relies on a line of cases that include R. v. Hibbert, 2002 SCC 39; R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.); R. v. Coutts, [1998] O.J. No. 2555 (C.A.); R. v. Paul, 2009 ONCA 443; R. v. Bradey, 2015 ONCA 738; and R. v. Clause, 2016 ONCA 859. These cases stand as authority for the principle that evidence which is rejected by the trier of fact as untruthful or otherwise incapable of belief is not positive proof of anything. Evidence rejected by the trier of fact as unbelievable or unreliable is to be treated as though it had not been given.
[55] Under Canadian law, there is a difference between disbelieving evidence and concluding that evidence has been fabricated. A determination that evidence has been fabricated entitles the trier of fact to use the fabricated evidence as substantive evidence of guilt. But before concluding that disbelieved evidence was fabricated, the trier of fact must be satisfied that there is independent evidence of fabrication. In other words evidence independent of the evidence that the trier of fact used to conclude that the evidence was not capable of belief.
[56] The Court of Appeal explained the rule and the policy underlying it in R. v. O’Connor, as above, at paras. 19-21, as follows:
19 The distinction between mere disbelief and a finding of fabrication has regard to the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof in cases where statements of an accused are tendered or an accused testifies. The distinction reduces the risk that a trier of fact may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. The distinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused's explanation and may move too readily from mere disbelief to a finding of guilt…
20 In [R. v. Coutts, (1998), 126 C.C.C. (3d) 545 (C.A.)], Doherty J.A. explained the rationale underlying the rule as follows at pp. 551-52:
If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused's guilt beyond a reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events. [references omitted]
21 Despite the fact that in many cases an inference of fabrication will flow logically from disbelief of an accused's statement, the policy underlying the distinction between disbelief and the finding of fabrication militates against using disbelief to infer fabrication. The courts have, therefore, attached the requirement that a finding of fabrication must be founded on evidence that is independent from the evidence which contradicts or discredits the accused's version of events: R. v. Hibbert, supra, at p. 151; R. v. Coutts, supra, at p. 552; and R. v. Tessier, supra, at p. 556.
[57] It is clear that the trial judge rejected the appellant’s explanation for his use, or non-use, of the dash camera. He was entitled to do so. The fact that a witness gives evidence that is illogical, not in accordance with common sense and/or not consistent with the probabilities of the case as a whole is a valid reason to reject the evidence. Moreover, it is a relevant factor in the overall assessment of that witness’ credibility.
[58] The trial judge did not identify any independent evidence that supported a conclusion that the appellant fabricated evidence about his dash camera practice. That said, in my view, the trial judge did not reach such a conclusion.
[59] The trial judge’s ruling does not reflect, at any time, an inference of concoction from disbelief. I do not read the impugned passage as suggesting that the appellant fabricated evidence. I read it as rejecting the appellant’s explanation as incapable of belief.
[60] The trial judge did not utilize his rejection of the appellant’s explanation as positive evidence of guilt. He never lost sight of the Crown’s obligation to prove the case beyond a reasonable doubt and he did not equate a failure on the part of the appellant to provide a credible defence with guilt.
[61] There was no “O’Connor” error committed by the trial judge and I reject this ground of appeal.
Propensity Reasoning
[62] The second legal error allegedly committed by the trial judge in the course of his assessment of the appellant’s credibility was to engage in propensity reasoning; to suggest that the appellant’s tendency to engage in risky behaviour made it more likely that he committed the alleged offence.
[63] Propensity reasoning generally involves the drawing of two inferences. First, the inference that a person has a disposition to act in a certain way, based on past behaviour. Second, the inference that the person likely acted in accordance with his or her disposition on the occasion in question.
[64] As a matter of human experience, character (disposition) is often relevant to our everyday judgments about other people. As Justice Binnie observed in R. v. Handy, 2002 SCC 56, at para. 39,
It is, of course, common human experience that people generally act consistently with their known character. We make everyday judgments about the reliability or honesty of particular individuals based on what we know of their track record.
[65] But Canadian law presumptively precludes the Crown from introducing propensity evidence against an accused person. The exclusionary rule has its roots in Makin v. Attorney-General for New South Wales, [1894] A.C. 57, where Lord Herschell said, at p. 65,
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.
[66] The presumptive exclusion of propensity evidence is based on policy considerations. As Binnie J. explained in R. v. Handy, as above at para. 37, propensity evidence may “capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value.”
[67] Similarly, in R. v L.O., 2015 ONCA 394, Doherty J.A. explained, at para. 70, that evidence of disposition is generally inadmissible against an accused person “either because it is irrelevant to a fact in issue, or even if relevant, its potential prejudicial effect outweighs the potential probative value.”
[68] In this instance, I am of the view that the trial judge made two errors related to propensity reasoning.
[69] First, he mischaracterized defence counsel’s submissions. He described the defence position as “the brazen act defence” and held that defence counsel’s submissions implied that the appellant is not the sort of person who would commit the alleged offence given the risk of detection.
[70] The so-called “brazen act defence” was not a “defence” at all. It was a submission made in the context of defence counsel’s argument with respect to the assessment of credibility. The assertion had nothing to do with the appellant’s disposition to engage in risky behaviour. Rather, it was based on an objective assessment of the circumstances: the narrative described by X.X. was objectively implausible. If the trial judge agreed that the events, as described, were objectively implausible, he could factor that implausibility into his assessment of whether he believed the complainant or whether he at least had a reasonable doubt about the guilt of the appellant.
[71] Second, the trial judge went on to assess whether the appellant was indeed the sort of person who would engage in risky behaviour like the events described by X.X.
[72] The trial judge expressly stated that he need not engage in any propensity analysis because neither counsel had engaged in it in their submissions. Moreover, as he said, he rejected the implausibility argument on other grounds. Nevertheless, he did go on to assess whether there was any validity to what he considered an implied assertion that the appellant was not the sort of person who would commit this brazen offence. He considered a number of subjective characteristics of the appellant, such as his approach to police directives, and concluded,
When I consider the subjective make-up of this defendant it serves to attenuate the submission that he is the sort of person who would be risk adverse give the chance of detection. His everyday approach to police work was rife with assumed risk. Risk he knowingly accepted.
[73] In my view, the unavoidable conclusion to be drawn from the language used by the trial judge is that he engaged in impermissible propensity reasoning. As I indicated, the defence submission, properly interpreted, was that the events described by X.X. were objectively implausible. The defendant, by virtue of this submission, did not “open the door” as it were, to an assessment of his personal characteristics. There was no probative value in determining whether he was prepared to engage in risky behaviour as a police officer. A general propensity for risk-taking does not make it any more likely that the appellant would have engaged in a sexual assault at the side of the road during a traffic stop.
[74] The trial judge fell into legal error to the extent that he utilized propensity reasoning to assist in the assessment of the appellant’s credibility.
[75] The question remains whether the court should continue to defer to the trial judge’s credibility findings or whether they are now so tainted as to require a new trial.
[76] In my view, the error relating to propensity reasoning did not have a significant impact on the credibility findings of the trial judge.
[77] I agree with Crown counsel’s submission that the trial judge’s reasons were detailed and thorough in terms of his credibility assessments. A number of his stated reasons for rejecting the evidence of the appellant about what happened between him and X.X. are set out in para. 32 above.
[78] The trial judge provided similarly detailed reasons for accepting the evidence of X.X.
[79] In relation to the “brazen act” issue, even though the trial judge engaged in propensity reasoning, he expressly stated that he did not need to do so because he rejected the argument on a number of other grounds. While it would have been preferable if he had then followed his own self-instruction, he ultimately reviewed the circumstances of the offence as described by X.X. and J.H. and he concluded that the alleged offence was not objectively implausible.
[80] A reviewing court cannot overturn a trial judgment based on a trial judge’s credibility determination(s) unless, after considering all of the evidence that was before the trial judge, it is concluded that that the credibility determination(s) cannot be reasonably supported by the evidence: R. v. J.J.B., 2013 ONCA 268, as above, at para. 24.
[81] In this instance, despite the error relating to propensity reasoning, I am of the view that the trial judge’s credibility determinations are amply supported by the evidence and are entitled to deference.
[82] In the result, there is no basis to overturn the judgment. The appeal is therefore dismissed.
Boswell J. Released: July 19, 2017